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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JOANNA DYKES; DAVID WALKER, by and through his next friend, Michele Beauregard; LORETTA DAVIS, by and through her next Friend, Trish Mlekodaj; HEATHER YOUNG, by and through her next friend Robert Stark; MICHELLE CONGDEN; AMANDA PIVINSKI; JOSHUA WOODWARD; ALYSSA FERRARO, by and through her next friend, Sharon Ferraro and DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

CASE NO.:

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and BRIAN VAUGHAN in his official capacity as (Interim) Director of the Florida Agency for Persons with Disabilities, and RICK SCOTT in his official capacity as Governor of the State of Florida.

Defendants. /

AMENDED CLASS ACTION COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF

1. This is a statewide class action brought on behalf of over 19,000 individuals with developmental disabilities, as defined by Section 393.063(9) of the Florida Statutes, eligible to receive services through Florida Medicaid in intermediate care facilities for the

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developmentally disabled (ICF/DD)1 and in the community under Florida‟s Home and Community Based Services Waivers for persons with developmental disabilities (“DD Waivers”). 2. The plaintiffs are persons who are unable to fully care for themselves and, therefore, require various degrees of care, treatment, and/or habilitation. The plaintiffs seek appropriate day services, therapies, behavioral supports, residential placement, and other home and community based services to enable them to reside in the most integrated setting possible. 3. Some plaintiffs reside in private ICF/DDs or nursing homes where they have been confined to a category of waiting persons that will never move forward on the list. 4. Some plaintiffs reside in their families‟ homes and have been on the DD Waivers waitlist for over five years. They will not be prioritized for the DD Waiver until their caretakers succumb to incapacitation or death. 5. Plaintiffs have been placed on waiting lists for enrollment on the DD Waivers where they languish for years without services thereby placing them at risk of institutionalization and regression of skills and therapies learned from educational programs. 6. The defendants have failed to provide the plaintiffs with appropriate community
1 On February 3, 2011, Rule 59G-6.045 of the Florida Administrative Code - Payment Methodology for Services in Facilities Not Publicly Owned and Publicly Operated (Facilities Formerly Known as ICF/DD Facilities) - was filed. For simplicity, the term “ICF/DD” will be used herein.
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services through the DD Waivers in order to avoid institutionalization.2 7. Through statute and rules, the DD Waivers‟ waitlist categories prioritize those persons deemed to be in crisis. Rule 65G-1.047 of the Florida Administrative Code defines crisis as meeting one of three conditions:
a. “First priority” crisis category: The applicant is currently homeless, living in a homeless shelter, or living with relatives in an unsafe environment.
b. “Second priority” crisis category: The applicant exhibits behaviors that, without provision of immediate waiver services, may create a life-threatening situation for the applicant or others, or that may result in bodily harm to the applicant or others requiring emergency medical care from a physician.
c. “Third priority” crisis category: The applicant‟s current caregiver is in extreme duress and is no longer able to provide for the applicant‟s health and safety because of illness, injury, or advanced age. The applicant needs immediate waiver services to remain living with the caregiver or to relocate to an alternative living arrangement.
8. Those persons on the waitlist that do not meet one of the three crisis priorities are further categorized into seven other categories pursuant to Section 393.065(5) of the
2 DD Waiver services that are available include the following: Adult Day Training, Adult Dental Services, Behavior Analysis Services, Behavior Assistant Services, Companion Services, Consumable Medical Supplies, Dietitian Services, Durable Medical Equipment and Supplies, Environmental Accessibility Adaptations, In-Home Support Services, Medication Review, Occupational Therapy, Personal Care Assistance, Personal Emergency Response Systems, Physical Therapy, Private Duty Nursing, Residential Habilitation Services, Residential Nursing Services, Respiratory Therapy, Respite Care, Skilled Nursing, Special Medical Home Care, Specialized Mental Health Services, Speech Therapy, Support Coordination, Supported Employment, Supported Living Coaching, and Transportation.
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Florida Statutes. 9. For at least the past five years, only those persons deemed to be in crisis were enrolled on the DD Waiver. 10. For at least the past five years, the defendants have limited the number of crisis enrollments to only those that could be served with funding saved through attrition (i.e., when a current enrollee dies, becomes ineligible or moves out of state). 11. The defendants‟ statutes, rules and policies for waitlist management force persons with developmental disabilities currently residing in the community to forgo services completely while waiting for one of the three desperate and dangerous categories of crisis to take hold. 12. For those persons already institutionalized, they will never be enrolled in the DD Waivers so long as the State continues to only fund enrollments of those in crisis. 13. The plaintiffs seek to remedy the pervasive systemic and continuing failure of the defendants to provide necessary services in a reasonably prompt manner to meet their needs, as required by the integration mandate of Title II of the Americans with Disabilities Act (“ADA”). See 28 C.F.R. § 35.130(d). 14. The plaintiffs seek a declaration that denial of adequate services with reasonable promptness, denial of notice of prioritization on the waitlist, and the denial of freedom of choice of those waitlisted persons violates Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq., 42 C.F.R. § 431 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), and 42 U.S.C. § 1983.
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JURISDICTION
15. This Court has jurisdiction over the claims presented in this action pursuant to 28 U.S.C. § 1331. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 16. The plaintiffs‟ claims are predicated upon the applicable provisions of the Medicaid Act, namely 42 U.S.C. §§ 1396a(a)(8) & (23) & 42 C.F.R. § 435.930, requiring the delivery of Medicaid services to eligible persons with reasonable promptness and freedom of choice of providers; the ADA, 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs‟ claims for relief are also predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights privileges and immunities secured by the Constitution and laws of the United States.
NAMED PLAINTIFFS
JOANNA DYKES
17. The Plaintiff, Joanna Dykes (“DYKES”), is a 23-year old woman diagnosed with an intellectual disability3 and mental illness. She has no family and resides in an ICF/DD
3 The developmental disabilities community strongly encourages use of the term “intellectual disability” in lieu of “mental retardation” or “retardation.” See Shalock, Luckasson, and Shogren. “The Renaming of „Mental Retardation:‟ Understanding the Change to the Term „Intellectual Disability.” Intellectual and Developmental Disabilities. Vol. 45, No. 2: 116-124 (2007). See also Pub. Law. 111-256, § 1, Oct. 5, 2010, 124 Stat. 2643 (“Rosa‟s Law”). “Retardation” is defined in Section 393.063 of the Florida Statutes. For purposes of consistency, since the State of Florida and APD still use the term “retardation” or “mental retardation,” those terms will be used interchangeably.
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at Florida Mentor Facility, in Pensacola, Florida. DYKES has been on the DD Waivers waitlist for over three years. 18. DYKES desires to live independently. She is articulate and repeatedly requests to move to a supported living environment. She is capable of being employed and has received Supported Employment Coaching services through Vocational Rehabilitation. DYKES has interviewed for jobs and hopes to be gainfully employed so she can be more independent. She was forced to turn down a job offer when a prior ICF/DD where she was living would not provide transportation during the evening when her shift would end. 19. DYKES no longer had support from natural sources when she reached the age of majority. She eventually became a resident at Lakeview Center. During discharge from Lakeview, DYKES was not apprised of the DD Waiver or its waitlist. She was placed in a privately owned ICF/DD and no longer received the services of a support coordinator, instead relying on her client advocate to seek services in her best interests. After several years in the ICF/DD, DYKES‟s client advocate learned of the DD Waiver. 20. DYKES is capable of living in a supported living situation with the assistance of community services such as in-home supports and supported living coaching. 21. Despite her desire and ability to live in a community setting, DYKES has remained at the ICF/DD with little to no hope of ever residing in the community. DYKES has been informed that enrollments to the DD Waivers have been limited to crisis enrollments. Because of DYKES‟ placement in an ICF/DD, she would never meet the definition of crisis as defined in Rule 65G-1.047 of the Florida Administrative Code. 22. Section 393.065 of the Florida Statutes and Rules 65G-11.001-.003 of the Florida
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Administrative Code appears to require DYKES‟ placement into waitlist prioritization Category 3. 23. DYKES has not received notification of her prioritization assignment and any appealable rights she may have for that assignment. 24. Because of DYKES‟s living situation in the ICF/DD, she will never meet the requirements for any of the preceding categories other than Category 3 and will, therefore, never move up in priority for enrollment on the waiver. Should the State continue to limit funding for only those deemed to be in crisis, DYKES will never be considered for enrollment on the DD Waiver and will remain segregated in contravention to the integrated setting she desires and for which she qualifies.
DAVID WALKER
25. The Plaintiff, David Walker (“WALKER”), is an individual diagnosed with mental retardation and cerebral palsy. He resides with other persons with developmental disabilities in a private cluster ICF/DD in Holly Hill, Florida. WALKER has been on the DD Waiver waitlist for seven years. 26. WALKER files this complaint through his guardian advocate, Michele Beauregard of Deltona, Florida. 27. WALKER requires assistance in daily living. He requires verbal prompts or assistance in eating, uses a wheelchair, requires assistance in shifting his weight or transferring, maintaining his personal hygiene and remaining safe. He would benefit from personal care assistance, adult day training program, and/or companion services.
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28. WALKER was previously a resident of Sunland, a state-run institution, and was then enrolled in the DD Waiver and lived in a group home. Due to illness, WALKER was admitted to a hospital and then a nursing home. While recovering at the nursing home, WALKER lost his placement at the group home. His public guardian at the time then placed WALKER in an ICF/DD, foregoing his DD Waiver services. 29. In 2003, WALKER‟s current Guardian applied for the DD Waiver and WALKER was placed on the waitlist. WALKER has the ability and desire to reside in the community, but needs DD Waiver assistance to do so. 30. WALKER has been informed that enrollments to the DD Waiver have been limited to crisis enrollments. Because of his placement in an ICF/DD, he would never meet the crisis definition. 31. Florida Statutes Section 393.065 and Rules 65G-11.001-.003 of the Florida Administrative Code appear to require WALKER‟s placement in Waitlist Prioritization Category 3. 32. WALKER has not received notice of his prioritization assignment, nor any appeal rights he may have. 33. Because of WALKER‟s living situation in the ICF/DD, he will never meet the requirements for any of the preceding categories other than Category 3 and will, therefore, never move up in the enrollment of individuals to the waiver. Without funding for categories other than crisis, David will remain institutionalized as he will never be considered in crisis pursuant to APD‟s rules.
LORETTA DAVIS 8

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34. The Plaintiff, Loretta Davis (“DAVIS”), is an adult female of 56 years and residing in a private ICF/DD in LeCanto, Florida. It is uncertain if Defendants have registered DAVIS on the DD Waivers waitlist though her guardian has applied for her. 35. In the ICF/DD, DAVIS has participated in leisure activities during the day that do not incorporate aggressive educational or functional training. DAVIS has had numerous accidents, including falls, and maladaptive behaviors that have continued without proper attention. 36. DAVIS has been diagnosed as having cerebral palsy and intellectual disability. She has been determined to be disabled and eligible for an institutional level of care. 37. DAVIS has been informed that enrollments to the DD Waiver have been limited to crisis enrollments. Because of her placement in an ICF/DD, she would never meet the definition of crisis. DAVIS would like to be in the community and participate in her choice of day training. 38. Section 393.065 of the Florida Statutes and Rules 65G-11.001-.003 of the Florida Administrative Code appear to require placement of DAVIS into Category 3 of the waitlist prioritizations categories. 39. DAVIS has not received notification of her prioritization assignment or any rights she may have to appeal. 40. Because of DAVIS‟ living situation in the private ICF/DD, she will never meet the requirements for any of the preceding categories other than Category 3 and will, therefore, never move up in the enrollment of individuals to the waiver. Without funding for categories other than crisis, DAVIS will remain institutionalized as she will never be
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considered in crisis pursuant to APD‟s rules.
HEATHER YOUNG
41. The Plaintiff, Heather Young (“YOUNG”), is a 21-year old woman diagnosed with mental retardation and orthopedic impairments, including paralysis. She has been on the DD Waivers waitlist for over four years. 42. YOUNG entered Florida‟s foster care system at age 11 and should have transitioned to the DD Waiver once she aged out of the foster care system at age 18. However, that did not happen and she was instead placed on the DD Waivers waitlist. 43. YOUNG has waited for community placements while being served in institutions and institution-like settings. She currently resides in a nursing home, unable to fully access the community or live in the community with supports. 44. Despite her paralysis and orthopedic impairments, YOUNG uses one hand to effectively communicate with an alphabet board. She requires medical assistance with a gastric tube and tracheotomy, but valiantly overcame Methicillin-resistant Staphylococcus aureus (MRSA) and a year-long battle with needing a respirator. She is now respirator-free and able to live in the community with supports. 45. YOUNG has been informed that enrollments to the DD Waivers have been limited to crisis enrollments. Because of her placement in a skilled nursing facility, she would never meet the definition of crisis. 46. Florida Statutes Section 393.065 and Florida Administrative Code Rules 65G11.001-.003 appear to require YOUNG‟s placement in Waitlist Prioritization Category 3.
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47. YOUNG has not received notice of her prioritization assignment or any appeal rights she may have. 48. Because of YOUNG‟s age and living situation in the nursing facility, she will never meet the requirements for any of the preceding categories other than Category 3 and will, therefore, never move up in the priority for enrollment to the waiver. Unless the State ceases to allow only crisis enrollments, she will remain segregated in the nursing facility, never realizing the benefit of community services and the integration mandate of the ADA.
MICHELLE CONGDEN
49. The Plaintiff, Michelle Congden (“CONGDEN”), is a 34-year old woman diagnosed with mental retardation. She has been on the DD Waivers waitlist for 13 years. 50. She currently resides with her sister and her sister‟s three young children. While on the waitlist, CONGDEN‟s father passed away and she moved in with her sister. 51. CONGDEN‟s sister is the sole caregiver for CONGDEN and her own three children; she needs respite services for her sister in order to avoid institutionalizing her. CONGDEN has hit and pushed her caregiver‟s small children and her sister believes the recent outbursts to be caused by a lack of stimulation. CONGDEN is in need of a day program to maintain her skills and occupy her to prevent maladaptive behaviors. CONGDEN seeks a day program or companion, a personal care assistant for bathing and toileting and a behavioral analysis as services from the DD Waiver. 52. APD uses general revenue funds for the provision of individual and family
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services to waitlisted persons who have emergency needs critical to avoid a crisis situation. However, using general revenue funds is precarious. CONGDEN‟s sister was notified that she could use nominal monies for CONGDEN, but would have to do so by the end of the month, leaving little time to coordinate CONGDEN‟s care or benefits. 53. Florida Statutes Section 393.065 and Florida Administrative Code Rules 65G11.001-.003 appear to place CONGDEN‟s in Waitlist Prioritization Category 6. 54. CONGDEN has not received notice of her prioritization assignment nor any appeal rights she may have. 55. Because of CONGDEN‟s age, the age of her caregiver, and her living situation, it would be decades before she met the requirements for any of the preceding categories other than Category 6 and will, therefore, never move up in the priority for enrollment to the waiver. CONGDEN is relegated to the very end of a waitlist without a chance of progression, giving rise to a subclass of persons who are precluded from participating in and receiving services other than through segregated, isolated, institutional placement. 56. Without the day program, personal care assistance, and behavior analysis that CONGDEN seeks from the DD Waiver, her health, safety and welfare will decline. This places CONGDEN at risk of institutionalization.
AMANDA PIVINSKI 57. The Plaintiff, Amanda Pivinski (“PIVINSKI”), is a 24-year old woman diagnosed with Autism Spectrum Disorder and residing with her parents. She has been on the DD Waivers waitlist for over 7 years. 58. PIVINSKI is able to reside in the community, maintains a job, but continues to be
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in need of services. Her employment was recently jeopardized by her need for a job coach. Without her mother‟s assistance as a job coach, PIVINSKI would not be able to maintain her employment and otherwise interact with others in community living. 59. The defendant‟s categorization of those persons on the waitlist places PIVINSKI‟s parents in the precarious position of having to evict their own daughter in order to secure services for her before they die or become incapable. 60. Florida Statutes Section 393.065 and the Florida Administrative Code Rules 65G11.001-.003appear to require PIVINSKI‟s placement in Waitlist Prioritization Category 6. 61. Because of her parents‟ age and living situation in her family home, she will never meet the requirements for any of the preceding categories other than Category 6 for several decades. 62. Unless the defendants cease to admit only crisis enrollments, PIVINSKI will remain without services or forced to seek institutionalization to receive services. 63. PIVINSKI needs employment supports to maintain her in the community. Skills PIVINSKI learned in school will regress if not utilized daily in her employment and community activities. PIVINSKI is at risk of institutionalization. 64. PIVINSKI will also be subject to the continued growth of Category 5 which includes those expected to graduate from secondary school within the next 12 months. Without funding and enrollment for all categories, the State will never enroll those persons like PIVINSKI who are relegated to Categories 6 and 7, creating a sub-class of un-served persons who are precluded from participating in and receiving services unless
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they enter segregated, isolated, institutional placements. This places PIVINSKI in imminent risk of institutionalization.
JOSHUA WOODWARD 65. The Plaintiff, Joshua Woodward (“WOODWARD”), is a 22-year old man diagnosed with Trisomy 21 and residing with his father and stepmother. He has been on the DD Waiver waitlist for over three years. 66. Because WOODWARD‟s parents are under 70 years of age, he is unlikely to ever move to any of the higher categories. WOODWARD‟s father is in poor health and needs assistance with his son. 67. WOODWARD resides in the community, seeks competitive employment, and needs services to maintain skills acquired in school. While he does not need much assistance with activities of daily living, he needs assistance with speech therapy, an employment coach, and behavior assistance. 68. The defendant‟s categorization of waitlisted persons places WOODWARD‟s parents in the precarious position of having to evict WOODWARD to secure services for him before they die or become incapable of providing care. 69. Unless the defendants cease to admit only crisis enrollments, WOODWARD will remain without services or forced to seek institutionalization to receive services. 70. WOODWARD will also be subject to the continued growth of Category 5 which includes those expected to graduate from secondary school within the next 12 months. Without funding to completely and continuously fund Category 5, the State will never enroll those persons like WOODWARD who are relegated to Categories 6 and 7, creating
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a sub-class of un-served persons who are precluded from participating in and receiving services unless they enter segregated, isolated, institutional placements. Without the speech therapy and behavior assistance, WOODWARD‟s skills attained in school are likely to regress putting his health, safety and welfare in jeopardy. The inability of WOODWARD to access needed services places him at risk of institutionalization.
ALLYSA FERRARO 71. The Plaintiff, Allysa Ferraro (“FERRARO”), is a young woman of 22 years residing with her mother, who is under 70 years of age. She has been on the DD Waiver waitlist for six years. 72. FERRARO has been diagnosed as having a developmental disability, specifically Dandy Walker malformation, and resides with her mother. 73. FERRARO had back surgery in 2002 and no longer walks on her own. She utilizes a wheelchair for mobility although her mother believes she could walk if given physical therapy. FERRARO can climb into and out of the shower. 74. FERRARO resides in the community, wants to attend adult day training, and needs services to maintain skills acquired in school. 75. Because FERRARO‟s caregiver is under 70 years of age, she is unlikely to ever move to any of the higher categories. Yet, FERRARO‟s mother, her sole caregiver, cannot meet FERRARO‟s needs without assistance. 76. FERRARO‟s mother does not earn enough income to pay for FERRARO‟s adult day program and a place for her to live; she is faced with moving from her current apartment in order to pay for FERRARO‟s services on her own or institutionalizing
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FERRARO. Currently, FERRARO‟s mother pays for the adult day program four days per week. On the fifth day, she either takes FERRARO to work with her or takes time off to care for FERRARO, attending doctor‟s appointments, or other activities. 77. FERRARO‟s mother previously sought residential placement, but was told by the Agency for Persons with Disabilities (“APD”) that if she placed FERRARO in the group home near her, she would have to pay for the services. Although FERRARO‟s mother does not desire to institutionalize her daughter, APD did not inform her of her right to receive services in an ICF/DD. 78. FERRARO applied for and was denied crisis enrollment four times. Instead, Defendants VAUGHAN and APD provided FERRARO with adult day training program and speech therapy services through general revenue funds, depriving FERRARO of the complete DD Waivers service array. 79. The defendants‟ categorization of waitlisted persons places FERRARO‟s mother in the precarious position of having to evict her own daughter to secure services for her. 80. Florida Statutes Section 393.065 and Florida Administrative Code Rules 65G11.001-.003 appear to require FERRARO‟s placement in Waitlist Prioritization Category 6. 81. Because of her mother‟s age and her residence in the family home, she will never meet the requirements for any of the categories preceding Category 6. Without the adult day training program she seeks, FERRARO is in imminent risk of institutionalization. 82. Unless the defendants cease to admit only crisis enrollments, FERRARO will remain without services or forced to seek institutionalization to receive services.
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83. FERRARO will also be subject to the growth of Category 5 which includes those expected to graduate from secondary school within the next 12 months. Without funding to completely and continuously fund Category 5, the State will never enroll those persons like FERRARO who are relegated to Categories 6 and 7, creating a sub-class of unserved persons precluded from participating in and receiving services unless they enter segregated, isolated, institutional placements. This places FERRARO in imminent risk of institutionalization.
DISABILITY RIGHTS FLORIDA
84. The Plaintiff, Disability Rights Florida, Inc., d/b/a Disability Rights Florida, formerly known as the “Advocacy Center for Persons with Disabilities, Inc.,” (the “P&A”), is a not-for-profit-corporation serving as Florida‟s federally funded protection and advocacy system for individuals with disabilities. The P&A maintains offices in Tampa, Hollywood and Tallahassee. Its main office is located at 2728 Centerview Drive, Suite 102, Tallahassee, Leon County, Florida. 85. The P&A‟s mission is to advance the quality of life, dignity, equality, selfdetermination, and freedom of choice of people with disabilities through collaboration, education, and advocacy, as well as legal and legislative strategies. 86. Specifically, on behalf of persons with developmental disabilities, the P&A is authorized by federal law to “pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of individuals within the State who are or who may be eligible for treatment, services, or habilitation, or
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who are being considered for a change in living arrangements.” 42 U.S.C. § 15043(a)(2)(A)(i). 87. The P&A has represented and continues to represent persons with developmental disabilities in individual actions, class actions and systemic relief initiatives affecting all such individuals. 88. The defendants‟ rules and policies adversely affect the substantial interests of the P&A, as clients and potential clients who are on the DD Waivers waitlist are not receiving needed services until they transition onto the DD Waivers. 89. The P&A has standing to file this action as it provides representation and other legal services to persons receiving Medicaid services under the DD Waivers. See Florida Institutional Legal Servs., Inc. v. Florida Parole & Probation Comm’n, 391 So. 2d 247 (Fla. 1st DCA 1980). Additionally, challenging the defendants‟ policy falls within the P&A‟s general scope of interest and activity, and the relief requested, declaratory and injunctive, is the type of relief appropriate for the plaintiffs to receive on behalf of the individuals who the P&A is mandated to serve. See NAACP, Inc. v. Florida Bd. of Regents, 863 So. 2d 294 (Fla. 2003), on remand, 876 So. 2d 636 (Fla. 1st DCA 2004). 90. The P&A and the individual plaintiffs are represented in this action by undersigned counsel. Service should be made at the address of counsel as set forth below.
DEFENDANTS
ELIZABETH DUDEK 18

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91. The defendant Elizabeth Dudek (DUDEK) is the Secretary of Florida‟s Agency for Health Care Administration (AHCA) and is sued in her official capacity. AHCA is the chief health policy and planning entity for the state, responsible for administering Florida‟s Medicaid Program, which includes the DD Waivers. See §§ 20.42(3) & 393.0661, Fla. Stat.
BRIAN VAUGHAN
92. The defendant Brian Vaughan (VAUGHAN) is the Interim Director of Florida‟s Agency for Persons with Disabilities and is sued in his official capacity. Under Chapter 393 of the Florida Statutes, APD is responsible for providing all services to persons with developmental disabilities, including state-run ICF/DDs and the programmatic management of the DD Waivers. See § 20.197(3), Fla. Stat. APD administers the Medicaid DD Waiver program under an interagency agreement with AHCA.
RICK SCOTT 93. Governor Rick Scott (SCOTT) is the chief executive officer of the State of Florida. He is responsible for directing, supervising and controlling the executive departments of state government. Governor SCOTT is ultimately responsible for ensuring that Florida operates its long-term care system for people with disabilities in conformance with federal law. He is sued in his official capacity and only for prospective injunctive relief. 94. Pursuant to Article IV § 1(a), Florida Constitution, Defendant SCOTT is the
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“chief administrative officer of the state responsible for the planning and budgeting of the state.” 95. Pursuant to Executive Order Number 11-72, Office of the Governor, neither VAUGHAN nor DUDEK, may propose, repeal, or make changes to its administrative rules without first obtaining approval from SCOTT through his designee of delegated powers, the Office of Fiscal Accountability and Regulatory Reform (OFARR). OFARR has the specific delegated power from SCOTT to review executive office agencies‟ rules for their impact to “adversely affect the availability of professional or occupational services to the public [and] impose an unjustified overall cost and economic impact, including indirect cost to consumers.” SCOTT has specifically delegated to OFARR the power to analyze the “impact of proposed and existing rules on matters of public health, public safety, public welfare” and to identify and review “actions taken by State agencies to improve program performance, meet program standards [and] promote economy and efficiency.” 96. DUDEK and VAUGHAN serve as the head of their respective agencies at SCOTT‟s discretion. SCOTT controls DUDEK and VAUGHAN through the power of removal and his ability to “inform such agency heads of the considerations that may lead to retention or removal”4 whether informally or through formal communications such as Executive Order 11-72. 97. SCOTT‟s statements and creation of OFARR evidence his intention to retain 4 SCOTT‟s “Response to Petition for Writ of Quo Warranto,” Whiley v. Scott, Case No. SC 11-592, (where SCOTT maintains his authority as the ultimate decision maker and ability to control executive agencies exists informally even if OFARR did not exist).
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close supervisory power over actions or omissions taken by VAUGHAN and DUDEK. 98. VAUGHAN‟s and DUDEK‟s illegal actions and omissions have been sanctioned, either formally through OFARR, or informally directly through SCOTT. 99. At all times relevant to this Complaint, the defendants were and are acting under color of state law and knew or should have known of the policies, practices, acts and conditions alleged herein.
CLASS ACTION ALLEGATIONS
100. Pursuant to Fed. R. Civ. P. 23 (a) and (b)(2), the named plaintiffs bring this action on behalf of themselves and all other persons similarly situated. 101. The proposed class consists of:
a. all eligible individuals who are enrolled on the DD Waiver waitlist and residing in institutions or institution-like settings, including but not limited to skilled nursing facilities;
b. all eligible individuals residing in institutions or institution-like settings who possess both the desire and capability to reside in the community with supports;
c. eligible individuals enrolled on the DD Waiver waitlist who would be or are assigned to categories three through seven; and
d. eligible individuals who will be subject to defendant‟s implementation of Florida‟s statute and rule to place them in waitlisted categories three through seven if they apply for the DD waiver in the future.
102. Numerosity: The class is so numerous that joinder of all its members is 21

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impracticable. The plaintiffs believe there are over 19,000 class members, as it is believed that there are 19,000 individuals on the DD Waiver waitlist. Although the exact number is known to the defendants and is ascertainable, plaintiffs do not know the exact number of the individuals. 103. Commonality: There are questions of law or fact that are common to all named plaintiffs, as well as to all putative class members including:
a. Whether the defendants‟ policies unnecessarily cause and perpetuate the segregation and discrimination through continued institutionalization or risk of institutionalization of persons with developmental disabilities, violating the ADA‟s integration mandate as enforced through 42 U.S.C. § 1983. b. Whether the defendants‟ relegation of persons with developmental disabilities to a waitlist that has not been effectively implemented or funded for over five years violates Medicaid Act‟s requirement for the provision of services with reasonable promptness pursuant to 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930 through 42 U.S.C. § 1983. c. Whether the defendants‟ failure to enroll into the DD Waiver persons currently institutionalized and those turned away for crisis enrollment denies those plaintiffs the Medicaid Act‟s requirement for the freedom of choice of provider of services pursuant to 42 U.S.C. § 1396n(c)(2), enforced through 42 U.S.C. § 1983. d. Whether the Defendant‟s failure to inform those person on the DD Waiver waitlist of their prioritization categories and afford them an opportunity for
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hearing deprives them of due process pursuant to 42 U.S.C. §1396a(a)(3), 42 C.F.R. 431.220. 104. Typicality: The claims of the named plaintiffs are typical of the claims of the class as a whole in that the named plaintiffs and purported class are Medicaid eligible recipients who have been denied home and community based services by being placed on a lengthy waitlist that has little to no hope of culminating in community based services and no means to challenge their lack of prioritization by the Defendants.. 105. Adequate representation: The named plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole. The named plaintiffs do not have any interests antagonistic to those of other class members. By filing this action, the named plaintiffs have displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The named plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation, Medicaid law, practice and procedure in the federal courts, and the prosecution and management of class action litigation. 106. The defendants have acted or refused to act on grounds generally applicable to the class, 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 services provided by the DD Waiver Program, have been found to need and are eligible for these services as they meet the level of care required for placement in an ICF/DD, have been denied an opportunity to receive prompt services on the DD Waivers, and have been denied an opportunity to challenge their lack of
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prioritization by Defendants.. A class action is superior to individual lawsuits for resolving this controversy.
MEDICAID STATUTORY AND REGULATORY FRAMEWORK
Medicaid Optional and Mandatory Services
107. 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. 108. States are not required to participate in the Medicaid Program. If a state elects to participate, however, it is required to comply with applicable federal statutory and regulatory requirements. 109. The Medicaid program allows states to furnish persons (including those with developmental disabilities) “rehabilitation and other services to help such families and individuals attain or retain capability for independence or self care." 42 U.S.C. § 1396. 110. In addition to providing services that support the independence of program participants, the Medicaid Act requires that each state medical assistance program be administered in the best interests of the recipients. See 42 U.S.C. §1396a(a)(19). 111. Federal funding is available to state Medicaid programs for both the provision of health care services and various administrative functions. The amount of federal funding available to a state is referred to as federal financial participation (FFP) and is determined by comparing a state's per capita income to the national average. 112. The Medicaid state plan must identify the required and optional health care
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services it will provide. 113. In addition to the required services that each Medicaid program must provide, a state may choose any of thirty-four optional services to include in its plan. Each optional service a state offers must be provided consistent with all federal requirements. 114. Placement in an ICF/DD is an optional Medicaid service. Florida opts to provide ICF/DD Medicaid services to persons who meet level of care criteria for placement in an ICF/DD. See § 409.906(15), Fla. Stat. Thus, placement and receipt of services in an ICF/DD are an entitlement. 115. In an ICF/DD, a client receives a continuous active treatment program, including “aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services ..., that is directed toward the acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and the prevention or deceleration of regression or loss of current optimal functional status.” 116. The Medicaid Act also requires that a state plan for medical assistance "must . . . provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). 117. Federal regulations require that a state Medicaid agency must "furnish Medicaid promptly to recipients without delay caused by the agency's administrative procedures" and "continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." 42 C.F.R. § 435.930.
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118. Medicaid beneficiaries are allowed to choose their health care professionals from a range of participating providers. See 42 U.S.C. § 1396a(a)(23).
Medicaid Waivers and Developmental Disabilities Service Delivery System 119. Medicaid home and community-based services waiver 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 developmental disabilities or mental retardation who would otherwise need the level of care provided in an ICF/DD. 120. Florida Statutes Chapter 409 and Florida Administrative Code Rule 59G-13.080 authorize the Florida Medicaid Developmental Disabilities Waiver (DD Waivers). Florida‟s DD Waivers are home and community-based waivers, created to maintain persons with developmental disabilities in a home setting with supporting services necessary to prevent institutionalization. 121. The DD Waivers program allows states to waive three specific Medicaid requirements: state-wideness, comparability of services, and community income and resource rules. 122. A state‟s DD Waivers program must comply with all federal Medicaid requirements that are not specifically waived, including reasonable promptness. 123. States apply to the Centers for Medicare & Medicaid Services (CMS) for permission to operate a home and community based waiver; waiver applications must be approved before implementation. 124. When a state offers waiver services, it must inform individuals likely to require
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nursing home or ICF/DD care about "any feasible alternatives available under the waiver" and give them the "choice of either institutional or home and community-based services." 42 U.S.C. § 1396n(c)(3). See also 42 C.F.R § 441.302(d).
Florida Medicaid
125. Florida defines “ICF/DD” as a facility licensed under state law and certified under federal regulations to furnish health care, rehabilitative services, and other related services to individuals who have mental retardation, a developmental disability or related conditions. See FLA. ADMIN. CODE R.65G-1.010(131). 126. Pursuant to Florida Statutes Chapters 409 and 393, Florida provides Medicaid services to persons with developmental disabilities. Florida defines “Developmental disability” as “a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” § 393.063(9), Fla. Stat. 127. Under Federal and Florida Medicaid program statutes and rules, persons who meet level of care criteria for placement in an ICF/DD are also eligible to receive services in the community under the DD Waivers program. 128. The purpose of the DD Waivers is to maintain eligible persons in the community and prevent institutionalization. 129. ICF/DD‟s are considered institutional placements and annually cost more than services in the community.
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Florida’s DD Waivers and ICF/DD Program
130. Florida has declared “the greatest priority shall be given to the development and implementation of community-based services that will enable individuals with developmental disabilities to achieve their greatest potential for independent and productive living, enable them to live in their own homes or in residences located in their own communities, and permit them to be diverted or removed from unnecessary institutional placements.” § 393.062, Fla. Stat. 131. Florida operates a four-tiered DD Waiver program. Each tier is a separate waiver and, per statute, has its own annual expenditure limit per individual. Tier 4 has the lowest annual expenditure limit and Tier One has the highest. 132. The number of unduplicated recipients in the DD Waivers has been as high as 31,066. Currently, there are fewer persons enrolled in the DD Waivers. Upon information and belief, Defendants have applied for and received approval for 31,500 unduplicated recipients for the DD Waivers. 133. Defendants VAUGHAN and DUDEK control the number of recipients able to receive services through the DD waivers. 134. For Fiscal Year 2010-2011, Florida appropriated $283,409,222 as the state‟s share for services to persons in the community. A federal match was provided to bring the amount to $805,826,618. 135. APD‟s state-run developmental disabilities centers were appropriated $124,471,261 of state dollars for Fiscal Year 2010-2011. 136. For fiscal year 2009-2010, there were 2,857 Medicaid recipients in privately
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owned and operated ICF/DDs at a cost of $326,966,255. 137. For state fiscal year 2009-2010, the average cost of a person in an ICF/DD was approximately $114,000.00 per person annually. For state fiscal year 2009-2010, the average cost of a person in the DD waivers was approximately $31,000.00. 138. The number of waitlisted persons residing in privately owned and operated ICF/DDs has increased since February 1, 2009.
The DD Waiver Waitlist 139. Currently, there are over 19,000 individuals, both children and adults, on the DD Waivers waitlist. 140. Defendants steer individuals to accept unavailable waiver services while not amending their waivers to accommodate an increase in participants, developing additional providers, or increasing funding. Defendant‟s policies evidence an imbalance of the delivery of services that belie its stated intent. 141. APD has adopted rules to implement the waitlist categories pursuant to Florida Statute §393.065(5). See FLA. ADMIN. CODE R. 65G-11.002. They are:
a. Category 1 includes individuals determined to meet the crisis criteria specified in Rule 65G-1.047of the Florida Administrative Code;
b. Category 2 includes children who are jointly served by the Agency and the Department of Children and Family Services (“DCF”, also known as the Department of Children and Families) in the Child Welfare program;
c. Category 3 includes the following individuals: i. Individuals for whom the caregiver has a condition or
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circumstance that is expected to render the caregiver unable to provide care within the next twelve months and other caregivers are unable, unwilling or unavailable to provide care. ii. Individuals who are at substantial risk of incarceration or court commitment which is defined as unlawful activity by the individual that has required the intervention of local or state law enforcement even if the unlawful activity did not result in an arrest or criminal charges. iii. Individuals who are currently incarcerated and are expected to be released within 12 months. iv. Individuals whose behaviors or physical needs place them or their caregiver at risk or harm within the next 12 months, and for whom no other supports are currently available to meet their needs. v. Individuals who are identified by the facility as ready for discharge from a state mental health hospital, intermediate care facility for the developmentally disabled, a skilled nursing facility, correctional facility, or a secure forensic facility within the next 12 months. vi. Individuals receiving Voluntary Protective Services (VPS) or requesting DCF assistance to prevent their child from entering foster care. d. Category 4 includes individuals whose primary caregiver is age 70 years
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of age or older and no other alternate caregiver is available, willing or able to provide support. e. Category 5 includes individuals who are expected to graduate from secondary school within the next 12 months, individuals who have received a special diploma and need the support available through waiver funded services to obtain or maintain competitive employment, or individuals who have applied for and been accepted to an accredited institution for postsecondary education. f. Category 6 includes individuals who are 21 years of age or older, and do not meet the criteria for any other category. g. Category 7 includes those individuals who are younger than 21 years of age and who do not meet the criteria for any other category. 142. As of July 1, 2010, APD reported that 37.2% of those on the waitlist had been waiting for community services longer than five years and 12.2% had been waiting for four to five years. 143. As of February 2011, 16% of those persons registered for the waitlist were categorized by APD as Category 3. Categories 6 and 7 contain the next highest numbers of waitlisted persons. Roughly 8% were not yet categorized by APD. 144. Despite the legislative intent of Chapter 393 of the Florida Statutes, there has been no expansion of DD Waiver funding or waiver enrollments available to non-crisis Medicaid eligible recipients. 145. For at least the past five years, new DD Waiver enrollees have been funded only
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through attrition, meaning persons currently enrolled in the DD Waiver must become ineligible, move out of state, or die before funds are available for waitlisted persons. 146. The defendants provide minimal services to waitlisted persons through general revenue funds to stave off DD Waiver crisis enrollment or institutionalization. 147. As of December 2010, 1,137 persons on the waitlist received APD non-Medicaid services through state General Revenue and social services block grants. 148. The use of general revenue funds does not draw down federal matching funds and deprives the individual of the full array of DD Waiver services. 149. Those persons enrolled through crisis have APD‟s designation of homeless, without a caregiver, or a danger to themselves or others because of behaviors. 150. Persons enrolled through crisis have increased and more substantial needs requiring sufficient providers and quality services to maintain them in the community. 151. Funding for the DD Waivers has steadily decreased to 2005-2006 levels. 152. SCOTT instructed the Inspector General‟s audit of APD to specifically identify a historical financial crisis in order to reduce DD Waiver provider rates by 12.5% by executive order.
Unnecessary Institutionalization of Florida Citizens
153. At present, there are approximately 198 persons with developmental disabilities residing in private ICF/DDs who are registered on the DD Waivers waitlist. 154. Another 1,136 persons with developmental disabilities currently registered for the DD Waiver waitlist reside in what APD terms “other.” This includes psychiatric
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facilities, large group homes, state-run non-ICF/DD facilities, and other institutional-like settings. 155. Additionally, 69 persons with developmental disabilities registered for the DD Waivers waitlist reside in state-run ICF/DDs. 156. In further contravention of its stated intent, Florida‟s numbers in nursing home admissions for persons with developmental disabilities has risen steadily in recent years. 157. At present, there are approximately 115 persons with developmental disabilities residing in nursing homes registered for the DD Waivers waitlist. 158. Persons on the waitlist languish for years without DD Waiver services that meet their needs in the most integrated setting possible. 159. APD‟s waitlist of over 19,000 people evidences the community‟s preference for DD Waiver services over institutions and other institutional-like settings. 160. Despite Florida‟s intention to concentrate its efforts to meet the growing demand for community services, Florida continues to serve individuals in costlier institutional settings, including ICF/DDs and nursing homes, whether state or privately operated.
COUNT ONE REASONABLE PROMPTNESS 161. Paragraphs 1 through 160 are incorporated by reference. 162. This count is brought pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396a, 42 C.F.R. § 435.930, and 42 U.S.C. § 1983. 163. The defendants voluntarily participate in the federal Medicaid program under 42 U.S.C. § 1396 et seq.
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164. Federal law requires that any state which elects to participate in the Medicaid program to provide all services, including DD Waiver services, to eligible individuals with reasonable promptness. 165. The defendants have failed and continue to fail to provide adequate DD Waiver services with reasonable promptness by developing and implementing policies designed to place Medicaid eligible individuals with developmental disabilities on a waitlist for waiver services with no real chance of ever enrolling in the DD Waiver and realizing the benefits of community integration. 166. The defendants‟ operation of the DD Waiver has resulted in five years of stagnant growth where an enrolled person would either have to die or move out of state in order for a DD Waiver slot to be available to a new enrollee that then has to meet the definition of crisis. 167. The unavailability of services in the community relegates Medicaid eligible persons with developmental disabilities to a waitlist placement for years, violating the reasonable promptness provisions of Title XIX of the Social Security Act, 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930. 168. The consequence of the defendants‟ actions is the costlier placement of persons with disabilities in inappropriate settings such as large ICF/DDs, psychiatric facilities, and nursing facilities. 169. SCOTT, VAUGHAN and DUDEK have failed to design and identify a comprehensive, effectively working plan to meet their obligation under the ADA in order to provide services to the putative class in a reasonably prompt manner.
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170. VAUGHAN and DUDEK have failed to remove barriers in their rules, policies, and implementation of their programs for the putative class to receive services in the community in a reasonably prompt manner. 171. SCOTT has approved VAUGHAN‟s and DUDEK‟s rules to impose barriers to the putative class in receiving community services in a reasonably prompt manner. 172. SCOTT‟s agent, OFARR, has omitted VAUGHAN‟s and DUDEK‟S barriercreating rules from the list of rules to be modified, repealed or amended. 173. SCOTT continues to violate the putative class‟ rights in receiving community services in a reasonably prompt manner until he authorizes approval of the repeal, modification and change to VAUGHAN‟s and DUDEK‟s rules to remove those barriers. 174. VAUGHAN, DUDEK, and SCOTT continue to constrain the DD Waivers‟ services, funding, and available slots while allowing the numbers of persons residing in institutional settings to increase. 175. The plaintiffs have suffered harm and will continue to suffer harm as a direct and proximate result of defendants‟ violations of the Medicaid Act and implementing regulations. 176. Named plaintiffs, DYKES, WALKER, DAVIS and YOUNG, as well as those similarly situated, will never qualify for crisis because of their placements in institutions and are dependent upon SCOTT, VAUGHAN and DUDEK to develop and implement a comprehensive, effectively working plan and resource allocation so that all categories of Florida‟s waitlist prioritizations receive services in the most integrated setting possible in a reasonably prompt manner.
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177. Named plaintiffs, CONGDEN, PIVINSKI, WOODWARD , FERRARO and those similarly situated, have been placed on a waitlist for services that are likely to take decades to materialize putting them at risk of institutionalization due to the lack of services in a reasonably prompt manner.
COUNT TWO FREEDOM OF CHOICE 178. Paragraphs 1 through 160 and 165 through 174 are incorporated by reference. 179. This count is brought pursuant to 42 U.S.C. § 1983. 180. The defendants engage in a pattern and practice that forces plaintiffs to forgo any Medicaid services and to languish on the waitlist until their caregivers are incapacitated or die for enrollment in the DD Waiver to occur. 181. The defendants‟ pattern and practice violates statutory freedom of choice requirement under the Social Security Act, § 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2), as defendants require Medicaid eligible individuals to choose between (1) an indefinite and lengthy placement on the DD Waivers waitlist without services, or (2) placement in an ICF/DD or other institutional setting with services but decreased independence, where they would be frozen in category 3. 182. SCOTT, VAUGHAN and DUDEK have failed to provide the freedom of choice of services to the putative class as required by 42 U.S.C. § 1396n(c)(2). 183. SCOTT has affirmatively permitted VAUGHAN and DUDEK, through SCOTT‟s specific instructions and delegation of powers, to continue to allocate scarce resources to
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institutions and institutional-like settings to the detriment of community services in the DD Waivers. 184. SCOTT‟s OFARR has allowed VAUGHAN‟s and DUDEK‟s rules to continue the isolation and segregation of registered waitlisted persons in institutions and institutional-like settings in violation of their freedom of choice as delineated in 42 U.S.C. §1396n(c)(2). 185. SCOTT has failed to instruct VAUGHAN and DUDEK to identify and assess those persons not registered on the waitlist but residing in institutions or institutional-like settings for community placements as part of his duties as the chief administrative officer of planning and budgeting. 186. VAUGHAN and DUDEK have failed to remove barriers in their rules, policies, and implementation of their programs for the putative class to exercise their freedom of choice to receive services in the community. 187. SCOTT has allowed and permitted VAUGHAN and DUDEK‟s rules to impose barriers to the putative class to exercise their freedom of choice in receiving community services by omitting them from OFARR‟s list of rules to be modified, repealed or amended. SCOTT failed to identify VAUGHAN‟s and DUDEK‟s rules as ones that adversely affect the availability of professional or occupational services to the public and impose an unjustified overall cost and economic impact, including the indirect cost to consumers; and failed to analyze the impact of those rules on the matters of public health, public safety, and public welfare. 188. The defendants‟ pattern and practice to forgo continued counseling of the right to
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elect to receive services in the community after placement in an institution or institutionlike facility violates statutory freedom of choice requirement under the Social Security Act, § 1915(c)(2), as amended, 42 U.S.C § 1396n(c)(2). 189. Named plaintiffs, DYKES and WALKER, were placed in ICF/DDs despite their desire and ability to reside in the community. DYKES and WALKER were unable to secure enrollment in, or even placement on the waitlist for, the DD Waiver due to the unavailability of family or advocates at the time of their placement in the ICF/DDs. 190. VAUGHAN failed to identify DYKES, DAVIS and WALKER as able to live in the community and to ensure their eligibility and registration for the DD Waivers upon admission to the institution. 191. The defendants failed to provide the necessary choice counseling to ICF/DD residents to determine whether an integrated setting is more appropriate for them. 192. The defendants do not routinely and continuously identify ICF/DD residents who can live in the community and desire to do so. 193. The defendants do not have a proactive plan to use their professional judgment to identify the most appropriate integrated setting, and often the less costly setting, for ICF/DD residents. 194. Named plaintiff, YOUNG, was placed in a nursing home despite having the ability to reside in the community for less cost with appropriate services. 195. YOUNG qualifies for the DD Waiver based upon her disability. The DD Waiver offers an array of services capable of meeting YOUNG‟s needs to reside in the community and YOUNG has chosen to apply for the DD Waiver.
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196. The defendants have failed to identify all DD Waiver eligible persons that have been diverted to nursing homes, and to routinely and continuously offer choice counseling to those persons to ensure they are in the most appropriate integrated setting . 197. Due to their placement on the DD Waivers waitlist, named plaintiffs, CONGDEN, WOODWARD, FERRARO and PIVINSKI, are denied the freedom of choice of providers, as the only provider available to them is an institution.
COUNT THREE AMERICAN WITH DISABILITIES ACT and SECTION 504 OF THE
REHABILITATION ACT 198. Paragraphs 1 through 160, 165 through 174, and 183 through 197 are incorporated by reference. 199. This count is brought pursuant to 42 U.S.C. § 1983. 200. The defendants are public agency directors responsible for operation of a public entity, pursuant to 42 U.S.C. §§ 12131(1)(A)&(B). 201. The defendants direct state agencies that receive federal financial assistance. 202. The defendants‟ pattern and practice in its administration of the Medicaid waiver program violates the ADA, 42 U.S.C. § 12101 et seq., in that Florida continues to fund unnecessary placements of individuals with similar disabilities in ICF/DDs at the expense of those individuals seeking services in the community, to the detriment of both groups. 203. Pursuant to the ADA, public entities, including the defendants, must administer services, programs and activities in “the most integrated setting appropriate” to the needs
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of qualified individuals with disabilities. See 28 C.F.R. § 35.130(d). 204. The ADA‟s implementing regulations further 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. § 35.130(b)(3). 205. Section 504 of the Rehabilitation Act of 1973 also contains an integration mandate for recipients of federal funds. See 29 U.S.C. § 794. 206. Section 504‟s regulations prohibit recipients of federal financial assistance from:
Utiliz[ing] criteria or methods of administration…(i)that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient‟s program with respect to handicapped persons. 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(1). 207. 28 C.F.R. § 41.51(d) requires a public entity to administer its services, programs and activities “in the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 208. The defendants have funded unnecessary and costlier institutional placements for eligible individuals, to the detriment of the named plaintiffs and class members awaiting services through the community. 209. The defendants‟ practice of unnecessarily allocating these funds for institutional
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long-term care contravenes the stated intent of Florida Statutes Section 393.062, violates the ADA, and violates Section 504 of the Rehabilitation Act. 210. The defendants have unnecessarily institutionalized plaintiffs and class members by (1) failing to properly assess the services and supports needed to reside in the community and (2) failing to inform the plaintiffs and class members of available community services upon admission and thereafter to the ICF/DDs, nursing homes, and other institution-like settings. 211. The defendants‟ diversion of resources and categorization of waitlisted persons consequently results in only crisis enrollments to the DD Waivers, perpetuating the unnecessary segregation of those in institutions and virtually locking the doors so that no resident will ever receive community services. 212. The defendants‟ use and administration of Medicaid resources violates the antidiscrimination provision of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, by limiting community-based care while allowing institutional care to rise. 213. The result of the defendants‟ actions and inactions is that eligible individuals are forced to choose between forgoing services in order to remain in the community or forgoing independence to obtain services in institutional placements. 214. The defendants‟ patterns and practices subject the plaintiffs to harm and injury by segregating named plaintiffs and class members and indefinitely depriving them of social integration through failure to continuously assess whether the institutional placement is more appropriate than services provided in a community setting.
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215. The defendants‟ failure to provide DD Waiver services to named plaintiffs and class members in the community places them in jeopardy of receiving services in an institution, rather than in the most integrated setting appropriate to their needs, in violation of the integration mandate of the ADA and 504 of Rehabilitation Act, 42 U.S.C. § 12115 et seq., 29 U.S.C. § 794, and the implementing regulations, and 28 C.F.R. §§ 35.130(d) and 41.51. 216. SCOTT, VAUGHAN and DUDEK have failed to provide the most integrated setting possible to the putative class as required by the integration mandate of the ADA and in violation of Section 504 of the Rehabilitation Act. 217. SCOTT has affirmatively permitted VAUGHAN and DUDEK, through SCOTT‟s specific instructions and delegation of powers, to continue to allocate scarce resources to institutions and institutional-like settings to the detriment of community services in the DD Waivers. 218. SCOTT‟s OFARR allowed VAUGHAN‟s and DUDEK‟s rules and policies to continue the isolation and segregation of over 500 registered waitlisted persons, and others class members not yet registered for the waitlist, in institutions and institution-like settings in violation of the integration mandate of the ADA and Section 504 of the Rehabilitation Act. 219. VAUGHAN and DUDEK have failed to remove barriers in their rules, policies, and implementation of their programs for the putative class to receive services in the community in accordance with the ADA and in violation of Section 504 of the Rehabilitation Act.
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220. SCOTT has allowed and permitted VAUGHAN‟s and DUDEK‟s rules to impose barriers to the putative class in receiving community services by omitting them from OFARR‟s list of rules to be modified, repealed or amended. SCOTT failed to identify VAUGHAN‟s and DUDEK‟s rules as ones that: adversely affect the availability of professional or occupational services to the public; impose an unjustified overall cost and economic impact, including the indirect cost to consumers; or impact matters of public health, public safety, and public welfare. 221. YOUNG qualifies for the DD Waiver but cannot access those services because of VAUGHAN‟s and DUDEK‟S actions limiting community services. The DD Waiver offers an array of services capable of meeting YOUNG‟s support needs to reside in the community. 222. VAUGHAN and DUDEK‟s administration of the DD Waivers waitlist subject the named plaintiffs, DYKES, YOUNG, DAVIS and WALKER, and class members, to permanent placement on the DD Waivers waitlist due to the prioritization of individuals awaiting services pursuant to Section 393.065(5) of the Florida Statutes and Rules 65G11.001-.003 of the Florida Administrative Code. 223. Defendants‟ actions and omissions subject the named plaintiffs, DYKES, YOUNG, DAVIS and WALKER, and class members, to permanent placement on the DD Waiver waitlist due to the accompanying policies to continue funding their own unnecessary institutional placements in lieu of community services. 224. Defendants‟ actions and omissions subject the named plaintiffs CONGDEN, WOODWARD, FERRARO and PIVINSKI, and class members residing in the
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community awaiting services, to a constructive permanent placement on the waitlist due to the continued allocation of scarce resources to unnecessary institutional placements in lieu of community resources. The defendants‟ actions and omissions described herein subject CONGDEN, WOODWARD, FERRARO and PIVINSKI and similarly situated class members to the risk of institutionalization.
COUNT FOUR DENIAL OF DUE PROCESS 225. Paragraphs 1 through 160, 165-174, 183-197, and 200-201are incorporated by reference. 226. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits states from depriving any person of life, liberty, or property, without due process of law. U.S. Const. Amend. XIV §1. 227. Plaintiffs have a constitutionally protected property interest in Medicaid benefits. 228. State plans must provide for granting an opportunity for a fair hearing before the state agency to any applicant whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness. 42 U.S.C. §1396a(a)(3), 42 C.F.R. § 431.220. 229. VAUGHAN and DUDEK have failed to provide notice to DYKES, WALKER, DAVIS, YOUNG, CONGDEN, PIVINSKI, WOODWARD and FERRARO of their right to a hearing upon their application for the DD Waiver and their placement into a waitlist prioritization category pursuant to 42 C.F.R. § 431.206, § 431.220.
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RELIEF REQUESTED
Plaintiffs request the following relief be granted: a. Certify this action as a class action pursuant to Fed. R. Civ. P. 23. b. Declare that the defendants‟ failure to provide named plaintiffs and class members with services in the most integrated setting appropriate to their needs violates Title II of the ADA, Section 504 of the Rehabilitation Act. c. Declare that the defendants‟ rules, policies and actions violate the Medicaid Act‟s freedom of choice and reasonable promptness provisions. Social Security Act, § 1915(c)(2), as amended, 42 U.S.C. §§ 1396a(a)(8) & 1396n(c)(2), and 42 C.F.R. § 435.930. d. As to the class members residing in family homes, enter a Permanent Injunction requiring the defendants to: i. Inform named plaintiffs and class members that they may be eligible for publicly-funded community services and that they have the choice of such services; and ii. Determine eligibility for those desiring community services and notify them in writing with due process rights for hearing in adverse determinations; and iii. Conduct assessments and preliminary support plans that are centered on needs, and not available resources, through person-centered planning; and
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iv. Ensure coverage of long-term care services and supports in the community by enrolling those eligible individuals most at risk of institutionalization as determined by their assessments and preliminary support plans; and
v. Determine the cost to enroll all class members residing in family homes and design and implement a comprehensive effective working plan to enroll those individuals in a reasonably prompt manner.
e. As to the class members residing in institutions or institutional-like settings, enter a Permanent Injunction ordering the defendants to: i. Inform named plaintiffs and class members that they may be eligible for publicly-funded community services and that they have the choice of such services; and ii. Determine eligibility for those desiring community services and notify them in writing with due process rights for hearing in adverse determinations; and iii. Require waiver support coordinators to be assigned to develop discharge plans, support plans and individualized habilitation programs through person-centered planning for each plaintiff and class member; iv. Transition each plaintiff and class member who desires to reside in the community with effective developmental services to the most integrated community setting appropriate with the necessary support services to meet the individual‟s needs;
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v. Make available the necessary alternative residential facilities, home services and vocational and day services in the community to allow the individual to reside in the most integrated setting appropriate.
f. Order the defendants to remove arbitrary administrative barriers which prevent class members from accessing individualized home and community based waiver services without alleging or facing a crisis situation precedent.
g. Order the defendants to provide plaintiffs and class members with necessary services to enable them to live in the community with reasonable promptness through the development of a comprehensive effective plan to eliminate and enroll persons from the DD Waiver waitlist.
h. Order the defendants to provide plaintiffs with notice of their denial for DD Waiver services, placement on the waitlist and assigned prioritization category together with their hearing rights.
i. Order the defendants to determine the eligibility of and enroll class members relegated to categories of the waitlist that do not incorporate crisis and to continue enrolling those individuals at a reasonable rate and pace so that a comprehensive effective working plan to eliminate the waitlist exists.
j. Order the defendants to develop a reliable and accurate means of tracking and projecting service demand and associated trends in order to maintain a comprehensive effective working plan to enroll persons from the DD Waiver waitlist with reasonable promptness.
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k. Award named plaintiffs and class members their reasonable attorneys‟ fees, litigation expenses and costs.
l. Grant such other relief as the court deems just and proper. DATED in Tallahassee, Florida on this 8th day of July, 2011.

By s/ Amanda Heystek Amanda Heystek, Esquire Florida Bar No. 0285020 Disability Rights Florida 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org Lead Trial Counsel

By

s/ Paul E. Liles

Paul E. Liles, Esquire

Florida Bar No. 0921270

Disability Rights Florida

Senior Trial Counsel

paull@disabilityrightsflorida.org

Christopher White, Esquire

Florida Bar No. 0060109

christopherw@disabilityrightsflorida.org

1000 N. Ashley Drive, Suite 640

Tampa, Florida 33602

Maryellen McDonald,

Director of Legal and Advocacy Services

Florida Bar No. 607533

maryellenm@disabilityrightsflorida.org

2728 Centerview Drive, Suite 102

Tallahasseee, FL 32301

(850) 488-9071 Telephone

(850) 488-8640 Facsimile

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 Case 4:11-cv-00116-RS-CAS Document 45 Filed 07/22/11 Page 1 of 29

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JOANNA DYKES; DAVID WALKER, by and through his next friend, Michele Beauregard; LORETTA DAVIS, by and through her next Friend, Trish Mlekodaj; HEATHER YOUNG, by and through her next friend Robert Stark; MICHELLE CONGDEN; AMANDA PIVINSKI; JOSHUA WOODWARD; ALYSSA FERRARO, by and through her next friend, Sharon Ferraro and DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

Case No. 4:11-cv-00116-RS -WCS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and BRIAN VAUGHAN in his official capacity as (Interim) Director of the Florida Agency for Persons with Disabilities, and RICK SCOTT in his official capacity as Governor of the State of Florida.,
Defendants. ________________________________/
DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT
The Defendants, Elizabeth Dudek, in her official capacity as Secretary of the
Florida Agency for Health Care Administration (“AHCA”), and Brian Vaughan, in his
official capacity as Interim Director of the Florida Agency for Persons with Disabilities,

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hereby file this their Motion to Dismiss Plaintiffs‟ Amended Complaint and state as follows1:
MEMORANDUM OF LAW Defendants move to dismiss Plaintiffs‟ Amended Complaint for failure to state a cause of action. Fed. R. Civ. P. 12(b)(6). In deciding a motion to dismiss, Courts ordinarily assume that the material allegations of the complaint are true. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). If, however, a plaintiff fails to make plausible factual allegations that would support his cause of action, the court should dismiss the case. Sibley v. The Florida Bar, 2008 WL 4525395 (N.D. Fla. 2008) (citing Twombly). A plaintiff must provide more than mere labels and conclusions, and formulaic recitations of the elements of a cause of action will not suffice. Twombly, 127 S.Ct. at 1964-65. A plaintiff‟s factual allegations must be enough to raise his right to relief beyond the speculative level. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (citing Twombly).
ARGUMENT I. Medicaid Overview
A. Statutory Framework Medicaid is a joint federal and state program for the funding of medical services for certain defined categories of low income recipients established by Title XIX of the Social Security Act of 1965. 42 U.S.C. § 1396 et seq. (the “Medicaid Act”). In order to
1 As explained in a separate filing, Governor Scott is not a proper defendant in this action pursuant to Eleventh Amendment immunity, and has therefore moved to be dismissed as a defendant. Should the Court deny the Governor‟s motion, he joins in this motion. The other Defendants do not waive any of their immunity defenses under the Eleventh Amendment.
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participate in Medicaid, a state must submit to the federal government a plan outlining its program to fund medical services for the poor and needy in accordance with the federal Medicaid Act. This is referred to as the Medicaid State Plan. 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)).
Congress passed the Medicaid Act pursuant to its spending power under Article I, § 8, Clause 1 of the U.S. Constitution. See Pharm. Research & Mfrs. Of Am. v. Walsh, 538 U.S. 644, 682-3 (2003). When Congress exercises its spending power, the States that accept Federal funds enter a “quasi-contractual” relationship with the Federal government. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981). In this quasi-contractual relationship, states must be made aware of the conditions attached to federal funds to ensure they have “voluntarily and knowingly accept[ed] the terms of the „contract.‟” Id.
The federal Medicaid Act defines “medical assistance” to mean payment for all or part of a variety of health care services listed in the Act. See e.g. 42 U.S.C. § 1396a(a)(10)(A) and 42 U.S.C. § 1396d(a)(1)-(29). There are three main categories of Medicaid services: (1) mandatory services; (2) optional services; and (3) “waiver” services. Each category of services gives rise to different state rights and obligations.
1. Mandatory Medicaid Services The federal Medicaid statute lists all of the mandatory and optional services in 42 U.S.C. § 1396d(a)(1) through (29). Of the 29 listed services, eight are mandatory,
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meaning that a state must include these eight services in its state plan to participate in Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services include inpatient hospital services, outpatient hospital services, laboratory and x-ray services, nursing facility services, nurse-midwife services, certified nurse practitioner services, and freestanding birth center 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), (21) and (28)). In providing for these mandatory services Medicaid-participating states must make these services available in every political subdivision in the state, which is referred to as the program‟s “statewideness” requirement. 42 U.S.C. § 1396a(a)(1). Additionally, the state must make all mandatory services available in equal amount, duration, and scope to every Medicaid-eligible person in the state. 42 U.S.C. § 1396a(a)(10)(B)(i). For example, this requirement (which is known as Medicaid‟s “comparability” requirement) means that a state cannot ordinarily pay for 45 days of inpatient hospitalization per year for Medicaid recipients in Tallahassee, but only 35 days per year for recipients in Pensacola. Similarly, a state cannot pay for 45 days of hospitalization for someone with HIV/AIDS, but only 35 days for someone with cerebral palsy. All Medicaid recipients then, generally speaking, have access to the exact same package of mandatory services.
2. Optional Medicaid Services In addition to the eight mandatory services, the federal Medicaid statute lists 21 other services that Medicaid-participating states may provide payment for through the state Medicaid program. These other 21 listed services are referred to as “optional services,” with the states having the discretion whether to include these services in their
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Medicaid State plans. Optional services include services in an intermediate care facility for the mentally retarded (“ICF/DD”)2, physical therapy services, prescription drug coverage, dental services, vision services, and several others. 42 U.S.C. § 1396d(a)(6)-(16), (18)-(20), and (22)-(29). As with mandatory services, once a state decides to include an optional service in its Medicaid program, it must make the service available statewide and give all Medicaid-eligible persons access to the same amount, duration, and scope of the service. Doe 1-13 By & Through Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 721 (11th Cir. 1998).
3. Federal Requirements for State Medicaid Programs Each state‟s Medicaid program must conform to the standards set forth in the Medicaid Act and its implementing regulations. Two significant requirements, statewideness and comparability, are described above. Two other significant standards to which state Medicaid programs must adhere are the “reasonable promptness” requirement and the “freedom of choice” requirement. The reasonable promptness provision requires that each state plan “provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). The freedom of choice provision, in turn, requires that each Medicaid state plan provide that “any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which
2 While the federal Medicaid Act uses the term “mentally retarded,” the State of Florida prefers “developmentally disabled.” Hence the abbreviation “ICF/DD.”
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provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23). As demonstrated below in sections II and III of this Motion, neither of these provisions entitles the Plaintiffs to the relief they seek in the Amended Complaint.
Another requirement of the Medicaid Act relevant to this lawsuit is related to the provision of fair hearings. Each Medicaid State Plan must “provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3). The federal regulations implementing the Medicaid Act go further. Each state‟s Medicaid program must inform recipients of their right to fair hearings and how to obtain such hearings. 42 C.F.R. § 431.206.
4. Medicaid Waiver Services. In addition to the mandatory and optional 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 a Home and CommunityBased (“HCBS”) waiver program. See 42 U.S.C. § 1396n(c). With “waiver” services, the state has requested (and the federal government has agreed) to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation. 42 U.S.C. § 1396n(c)(3). In this way, the Medicaid Act allows states to provide an enhanced benefit package to certain populations within the state. The Medicaid Act allows the states to enhance their benefit package in waiver programs in two ways. First, a state can provide more of a Medicaid-covered service to a
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waiver recipient than to a non-waiver Medicaid recipient. Thus, even though a nonwaiver Medicaid recipient can only receive 45 days of inpatient hospitalization per year, a waiver recipient might be able to receive significantly more days. Second, a state can provide services to waiver recipients that are not listed among the 29 mandatory and optional Medicaid services, including respite care, homemaker and companion services, and habilitation services. 42 U.S.C. § 1396n(c)(4)(B). As a result of this waiver authority, Florida has created waiver programs with enhanced benefit packages targeted to Medicaid-eligible persons with HIV/AIDS, traumatic brain injuries, spinal cord injuries, cystic fibrosis, autism, spina bifida, and cerebral palsy, among others. These waiver programs, with explicit federal knowledge and approval, exclude and deny these enhanced benefits to persons who do not have the specific disabling condition targeted by the waiver program.
Additionally, the Medicaid Act explicitly permits the federal government to waive Medicaid‟s customary “statewideness” and “comparability” requirements, allowing states to limit the number of people who receive waiver services, to limit waiver programs to certain areas of the state, and to provide an enhanced benefit package only to this limited population. federal law specifically allows states to “cap” the number of persons receiving waiver services. 42 U.S.C. § 1396n(c)(9)-(10). Federal law also allows the states to limit their waiver programs to certain parts of the state as opposed to persons living throughout the state. 42 U.S.C. § 1396n(c)(3). Thus, Medicaid can deny waiver services to persons are not under the cap or who do not live in the specified area of the state where the waiver is in effect.
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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). Nor 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).
B. The Florida Medicaid Developmental Disabilities Waiver Program The Florida Medicaid Developmental Disabilities Waiver program (“DD Waiver”) was implemented in 1982 as a combined waiver with aged and disabled adult services. These populations were split into separate waivers in 1985. The purpose of the DD Waiver is “to promote, maintain and restore the health of eligible recipients with developmental disabilities; to minimize the effects of illness and disabilities through the provision of needed supports and services in order to delay or prevent institutionalization; and to foster the principles of self-determination as a foundation for services and supports.” Florida Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook3, p. 1-8. The DD Waiver offers additional state plan services as well as waiver services such as personal care assistance and companion services to individuals with developmental disabilities such as mental retardation, autism, cerebal
3 Incorporated by reference by AHCA as an administrative rule by Rule 59G-13.083, Florida Administrative Code.
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palsy, spina bifida, or Prader-Willi Syndrome. Id., at 2-3. The DD Waiver is operated by Florida‟s Agency for Persons with Disabilities.
In 2007, the Florida Legislature mandated the implementation of a four-tier system in the DD Waiver. See § 393.0661, Florida Statutes. Recipients are placed in tiers based upon assessments of their needs. For example, tier one “is limited to clients who have service needs that cannot be met in tier two, three, or four for intensive medical or adaptive needs and that are essential for avoiding institutionalization, or who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harm to themselves or others.” § 393.0661(3)(a), Florida Statutes. II. With Regard to Reasonable Promptness, the Plaintiffs Have Failed to State a
Claim Upon Which Relief Can be Granted The Plaintiffs allege that their placement on the wait list for the DD Waivers violates the reasonable promptness requirement found in 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930. Amended Complaint ¶¶ 161-177. This claim is unfounded. The Medicaid Act requires that State plans for medical assistance “provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). Likewise, the administrative regulations implementing the Medicaid Act require that a state Medicaid agency: (a) Furnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures; (b) Continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible; and
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(c) Make arrangements to assist applicants and recipients to get emergency medical care whenever needed, 24 hours a day and 7 days a week. 42 C.F.R. § 435.930. As demonstrated below, neither of these provisions operates to guarantee Plaintiffs placement on the DD Waiver. Section 1396a(a)(8) guarantees reasonable promptness only to “eligible individuals.” The cap on waiver services operates as a “constraint on eligibility.” Boulet v. Cellucci, 107 F. Supp. 2d 61, 77 (D. Mass. 2000). Only those individuals who are “under the cap” are eligible pursuant to § 1396a(a)(8). See Id. (“eligible individuals under the cap are entitled to waiver services.”) Only “[t]hose patients who are on the waiting list and for whom slots are available” are “eligible.” Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir. 2002). The District Court for the Middle District of Alabama offered a cogent analysis of this issue in Susan J. v. Riley, 616 F. Supp. 2d 1219 (M.D. Ala. 2009): “Only those persons who both (1) meet the preliminary eligibility requirements for participation in the Waiver program, as indicated by their presence on the waiting lists, and (2) are entitled to one of the few Waiver slots are entitled to the provision of medical assistance with reasonable promptness….The many persons who are on the waiting list, who evidently meet the preliminary eligibility requirements, but who are not entitled to one of the few available Waiver slots are not entitled to the provision of medical assistance with reasonable promptness” at 1241. It is thus clear that the Plaintiffs on the waiting list for the DD Waiver are only entitled to enrollment onto the DD Waiver with “reasonable promptness” if there are available slots. The Plaintiffs have failed to allege that there are any available slots and
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thus have failed to state a claim upon which relief can be granted. Thus, Count One of Plaintiffs‟ Complaint should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. III. With Regard to Freedom of Choice, the Plaintiffs Have Failed to State a
Claim Upon Which Relief Can be Granted Plaintiffs claim that Defendants‟ conduct “violates statutory freedom of choice requirement” under 42 U.S.C. § 1396n(c)(2). Amended Complaint, at ¶181. In fact, no such requirement exists. The only provision in § 1396n(c)(2) that in any way relates to recipient choice is subparagraph (C), which requires a state to assure that: “such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded;” 42 U.S.C. § 1396n(c)(2)(C). Several points are of note regarding this provision as it relates to this case. First, it does not require states to provide alternatives. It only requires states to inform recipients of alternatives to the extent they exist (“if available under the waiver”). A state could only violate this provision by failing to inform individuals regarding alternatives, not by failing to provide alternatives that are not available at the time. Second, the Defendants would not violate § 1396n(c)(2) by failing to inform individuals regarding services in the DD Waiver because, to the extent there are no open slots in the DD Waiver, such alternatives are neither “feasible” nor “available.” To the extent that there are no available slots in the DD Waiver for individuals on the waiting list, “the waiver services are not „feasible‟ for them until the cap has risen to include them.” Boulet, at 77 (citing 42 U.S.C. § 1396n(c)(2)(C)). Likewise, a waiver
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“program is not „available‟ under the statute when the slots available” have been filled. Makin ex rel. Russell v. Hawaii, 114 F. Supp. 2d 1017, 1028 (D. Haw. 1999) (citing 42 U.S.C. § 1396n(c)(2)(C)). Because services in the DD Waiver are neither “feasible” nor “available,” the Plaintiffs have failed to state a claim under § 1396n(c)(2) upon which relief can be granted.
The other provision cited by Plaintiffs in the Amended Complaint regarding freedom of choice is § 1396a(a)(23). Amended Complaint, at ¶¶ 16, 118. This provision states that state plans for medical assistance must provide that
“any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services” 42 U.S.C. § 1396a(a)(23). The issues raised in part II above regarding reasonable promptness apply to this freedom of choice provision as well. Individuals on the waiting list for the DD Waiver are not “eligible” for services in the waiver and § 1396a(a)(23) therefore does not apply to them. As one court explained, “[i]ndividuals who apply [for a Medicaid waiver program] after the cap has been reached are not eligible” for services in the waiver program. Boulet, at 77. As Plaintiffs are not “eligible,” they have failed to state a claim under § 1396a(a)(23) upon which relief can be granted. Regardless, the provisions of the Medicaid Act Plaintiffs cite in their Amended Complaint do not give rise to private rights of action, particularly § 1396n(c)(2). According to the Eleventh Circuit and the Supreme Court, there are three requirements that must be met before a federal statute will be read to confer a private cause of action
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under §1983: (1) the provision in question must benefit the plaintiff; (2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial resources; and (3) the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Id. at 1269, citing Blessing v. Freestone, 520 U.S. 329, 340-1 (1997) (calling the three part analysis the “Blessing test”). A plaintiff can only sue under §1983 to protect unambiguously conferred rights, and cannot sue to protect mere benefits or interests created in a federal statute. Id. at 1269, citing Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).
In Gonzaga v. Doe, the Supreme Court noted that only twice in history has it recognized a federal right in a spending clause statute – and both times the statutory provision in question created a specific monetary entitlement in the plaintiff. Gonzaga v. Doe, 536 U.S. 273, 280-1 (2002). Medicaid is found in a spending clause statute. The provisions Plaintiffs cite, however, do not create specific monetary entitlements. For example, § 1396n(c)(2) involves information that the state must pass along to a Medicaid recipient – an administrative requirement that is best enforced by the federal administrative agency that governs the Medicaid program and not by the courts.
As Plaintiffs have failed to state a claim upon which relief can be granted with regard to freedom of choice, this Court should dismiss Count Two pursuant to Rule 12(b)(6), Fed. R. Civ. P. IV. Plaintiffs’ Claims Under Count Four of the Amended Complaint Should be
Dismissed Because Plaintiffs Have Failed to State a Claim Upon Which Relief Can be Granted
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Section 1 of the Fourteenth Amendment of the U.S. Constitution states that “[n]o state shall… deprive any person of life, liberty, or property.” After citing this provision in their Amended Complaint, Plaintiffs assert that they “have a constitutionally protected property interest in Medicaid benefits.” Amended Complaint, at ¶ 227. Plaintiffs have no protected property interest in the DD Waiver program, because, as explained in parts II and III above, Plaintiffs are not “eligible” for these programs.
While Plaintiffs are not eligible for the DD Waiver, they are entitled to an opportunity for a fair hearing under § 1396a(a)(3) of the Medicaid Act and to notice of such right under the federal regulations. 42 C.F.R. § 431.206. However, the right to such notice in the regulation is not enforceable by private right of action pursuant to 42 U.S.C. § 1983. Neither the right to a hearing nor the right to notice constitutes a specific monetary entitlement. See Gonzaga, at 280-1.
This Court should note that Plaintffs do not allege that they were never notified as to the denial of DD Waiver services. Rather, Plaintiffs Dykes, Walker, Davis, Young, and Congden assert that they were not notified as to their categorization on the waitlist.4 Amended Complaint, ¶¶ 23, 32, 39, 47, 54. The Medicaid Act does not create any enforceable right to be placed on a waiting list for services for which an individual is not currently eligible. Therefore, there is no right to a fair hearing pursuant to § 1396a(a)(3) regarding wait list categorization. There is only a right to a fair hearing when an
4 Plaintiffs do not allege any failure of Defendants to inform Plaintiffs Ferraro, Pivinski, or Woodward.
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application is denied or is not acted upon with reasonable promptness. 42 U.S.C. § 1396a(a)(3). Plaintiffs do not allege either of these things.5 V. Plaintiffs’ Claims Under the Americans with Disabilities Act and Section 504
of the Rehabilitation Act Should be Dismissed Because Plaintiffs Have Failed to State a Claim Upon Which Relief Can be Granted A. Statutory, Regulatory, and Case Law Framework The Americans with Disabilities Act (“ADA”) became law in 1990. 42 U.S.C. § 12101, et seq. Title II applies to public entities, the definition of which includes the Defendants. 42 U.S.C. § 12131(1). The Title II provision most relevant to this lawsuit, provides 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. Section 504 of the Rehabilitation Act of 1973 (“Section 504”) includes a prohibition of discrimination substantially identical to the one in § 12131(1) of the ADA. 29 U.S.C. § 794(a). The ADA and Section 504 can be analyzed together as “[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act.” Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045, n.11 (9th Cir. 1999). The regulations implementing Title II of the ADA require a public entity to “make reasonable modifications in policies, practices, or procedures when the
5 Plaintiffs do not allege such facts because none exist. The Florida Agency for Persons with Disabilities notifies recipients when they are denied enrollment in the DD Waiver and provides an opportunity for a fair hearing.
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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.” 42 C.F.R. § 35.130(b)(7). Thus, where a modification would constitute a fundamental alteration to the service, program, or activity at issue, it is not required under the ADA.
In Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999), the Supreme Court was faced with the question of whether the proscription of discrimination found in Title II of the ADA may require placement of persons with mental disabilities in community settings rather than institutions. See Olmstead, at 587. The Court held that the answer is “a qualified yes.” Id. The Court found that the ADA requires the placement of a person with a disability in community settings rather than institutions when (1) the State‟s treatment professionals have determined that community placement is appropriate, (2) the transfer from the institution to the community is not opposed by the individual, and (3) the placement can be reasonably accommodated, taking into account (a) the resources available to the State, and (b) the needs of others with disabilities. Id. Reading Olmstead together with Title II‟s implementing regulations, it is clear that the question of whether a modification constitutes a fundamental alteration must necessarily take into account the resources available (e.g., funding) and the needs of others with disabilities (e.g., the number of persons who must be served with those resources).
Justice Ginsburg‟s opinion in Olmstead suggests that a fundamental alteration would lie where a Court is asked to disrupt a State‟s “comprehensive, effectively working” plan of deinstitutionalization. “If, for example, the State were to demonstrate
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that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.” Id., at 605-606. Note that only three other justices joined Justice Ginsburg in Part III-B, so this passage is not part of the Court‟s holding. Nor has the Eleventh Circuit Court of Appeals adopted the substance of this provision in any case. As such, while this provision may be instructive, it does not constitute binding law that this Court must follow. Even if Part III-B were part of the Supreme Court‟s opinion, it still remains that this passage does not require a showing of a comprehensive, effectively working plan in order to demonstrate that a requested modification would constitute a fundamental alteration. Rather, a comprehensive, effectively working plan is one example of a showing of fundamental alteration.6
Like the provision of Title II of the ADA which it interprets, Olmstead is about non-discrimination and does not create an absolute prohibition against institutionalization. Nor does Olmstead, or the ADA, create an absolute right for persons with disabilities to remain in the community and avoid institutionalization. As the Second Circuit has noted, “Olmstead does not…stand for the proposition that states must provide disabled individuals with the opportunity to remain out of institutions.” Rodriguez v. City of New York, 197 F.3d 611, 619 (1999).
B. Interplay of the ADA and the Medicaid Act
6 It should also be noted that the “comprehensive, effectively working plan” described in Olmstead is one of deinstitutionalization, not a plan for ensuring that no individual with a disability ever has to enter an institution.
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1. The ADA Neither Abrogates Nor Amends the Medicaid Act Plaintiffs‟ claims would require the Court to find that the ADA has invalidated one or more provisions of the Medicaid Act. For example, the Court would have to invalidate the Medicaid Act‟s 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. An inherent assumption of Plaintiffs‟ lawsuit is that the Medicaid Act has been impliedly amended by the ADA. However, the criteria for statutory amendment by implication are not met here. The Supreme Court has held that “[a]mendments by implication, like repeals by implication, are not favored.” United States v. Welden, 377 U.S. 95, 103 (U.S. 1964). In a case where “two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (U.S. 1974). The Medicaid Act and the ADA are capable of co-existence, and the ADA contains no clear congressional intent to amend the Medicaid Act. Moreover, the Medicaid Act is a more specific statute than the ADA. Indeed, the ADA generally prohibits discrimination, while the Medicaid Act ordinarily prohibits discrimination but waives this prohibition in a specific, public health policy context. According to the U.S. Supreme Court, “it is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche
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Ross & Co., 426 U.S. 148, 153 (U.S. 1976). The more specific statute controls “regardless of the priority of enactment.” Morton, at 551.
2. Constitutional Implications The Plaintiffs‟ assumption that the Medicaid Act has been impliedly amended by the ADA raises grave constitutional concerns. Congress passed the Medicaid Act pursuant to its spending authority under Article I, section 8 of the U.S. Constitution. See Ball v. Rodgers, 492 F.3d 1094, 1105 n.15 (9th Cir. 2007). To be constitutional, a spending clause statute must meet certain criteria. One of these is that Congress must clearly and unambiguously state the conditions that come with receiving federal money. Congress must do this so that states can decide whether to accept the money knowingly, “cognizant of the consequences of their decision.” Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981); South Dakota v. Dole, 483 U.S. 203, 207 (1987). In the Medicaid Act, Congress requires states that participate in Medicaid to provide for nursing facility services for all Medicaid recipients who need them. 42 U.S.C. § 1396a(a)(10)(A); 42 U.S.C. § 1396d(a)(4). Put another way, Congress requires states to provide nursing facility services as a condition of receiving federal Medicaid dollars. Likewise, Congress requires states that, like Florida, have decided to include ICF/DDs in their Medicaid State Plans to provide services in ICF/DDs for all Medicaid recipients who need them as a condition of receiving federal Medicaid dollars. Id. The Medicaid Act does not require states to provide HCBS waiver services in lieu of nursing facility and ICF/DD services. 42 U.S.C. § 1396n(c)(1) and (2). Instead, Congress has made these waiver services optional. Id. Stated another way, Congress
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does not require states to provide waiver services as a condition of receiving federal Medicaid dollars.
Plaintiffs‟ legal theory holds that by virtue of their providing nursing facility services and ICF/DD services in the Florida Medicaid program, the Defendants have obligated themselves to provide services in the more “integrated setting” of the community through the DD Waiver. As this obligation is not clearly and unambiguously stated in the Medicaid Act, the Plaintiffs‟ theory raises grave concerns regarding the Medicaid Act‟s constitutionality under the Spending Clause.
C. Count Three Plaintiffs’ Amended Complaint Count Three of Plaintiffs‟ Amended Complaint would require a finding that the Medicaid Act has been impliedly amended by the ADA. However, as demonstrated above, the criteria for amendment by implication has not been met here. Moreover, such amendment would effectively render the Medicaid Act unconstitutional. As such, Count Three of Plaintiffs‟ Amended Complaint fail to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P.
VI. Nursing Home Residents Have Failed to State a Claim Under the Americans with Disabilities Act A. Plaintiff Heather Young is a Member of a Certified Statewide Class on Same Issues The matter of Lee, et al. v. Dudek, et al., Case No. 4:08cv26-RH/WCS, a
statewide class action lawsuit, is currently pending before this Court. The Honorable Robert L. Hinkle, U.S. District Court Judge, presided over a trial in the matter from February 7, 2011, through February 16, 2011, and a final order is still forthcoming.
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The class in Lee v. Dudek consists of “any Florida Medicaid-eligible adult who, at any time while this litigation has been pending, has resided in a nursing home that receives Medicaid funding, and who could and would reside in the community with appropriate community based services.” Lee v. Dudek Docket Entry 136. The Defendants in the Lee v. Dudek matter are AHCA and the Florida Department of Elder Affairs. The class in Lee v. Dudek claims that “Defendants have required that Named Plaintiffs and class members be confined unnecessarily in institutions, i.e., nursing facilities, rather than permit them to reside in the community in order to obtain long-term care services in violation of the ADA‟s integration mandate.” Lee v. Dudek Amended Complaint (Docket Entry 13).
Plaintiff Heather Young and the 115 putative class members identified in ¶ 157 of the Amended Complaint in the instant matter are members of the Lee v. Dudek class. Moreover, the issues, at least with respect to the ADA and Section 504, are the same in the instant case as in Lee v. Dudek. The same parties and the same claims are before the same Court in a different matter. Even if this Court disagrees with Defendants‟ arguments below, it would be an unnecessary waste of judicial resources to permit Plaintiff Young‟s claims, and those of the 115 putative class members in nursing homes, under the ADA and Section 504 to proceed in this matter.7
While the principle of res judicata would not strictly apply until a final order issues in Lee v. Dudek, allowing the ADA and Section 504 claims of Plaintiff Young and the 115 putative class members in nursing homes to proceed would also be contrary to
7 As shown in Parts II and III above, all claims under the Medicaid Act should also be dismissed.
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the purposes of Rule 23, Fed. R. Civ. P., the procedural rule which permitted the class members in Lee v. Dudek to join together in a single class action. The purposes of Rule 23 “are to avoid a multiplicity of suits, provide common binding adjudication, and prevent inconsistent or varying adjudications.” Mungin v. Florida E. Coast Ry. Co., 318 F. Supp. 720, 730 (M.D. Fla. 1970) aff'd, 441 F.2d 728 (5th Cir. 1971) (emphasis added).
In Schrader v. Selective Serv. Sys. Local Bd. No. 76 of Wis., 329 F. Supp. 966, 967 (W.D. Wis. 1971), the District Court for the Western District of Wisconsin narrowed the purposes of Rule 23 down to one: “to reduce multiple litigation of the same issues” (emphasis added). Plaintiff Young and the 115 putative class members in nursing homes are attempting to re-litigate claims brought in a case that was only just tried before this Court. Their claims under the ADA and Section 504 should be dismissed. Alternatively, Plaintiff Young should be dropped as a party pursuant to Rule 21, Fed. R. Civ. P.
B. Nursing Home Residents Have Other Community-Based Options To the extent that an ADA violation could lie under the facts alleged in the Plaintiffs‟ Complaint, such violation would arise solely from a failure of Defendants to provide services in the “most integrated setting appropriate.” 28 C.F.R. § 35.130(d). The Plaintiffs claim that this violation has occurred because the Defendants have not “provide[d] the plaintiffs with appropriate community services through the DD Waivers in order to avoid institutionalization.” Amended Complaint, ¶ 6. Plaintiffs ignore the fact that the Defendants have other Medicaid home and community-based waiver programs for which Plaintiff Young and the 115 putative class members in nursing
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homes would likely be eligible and which could provide the services necessary for these individuals to transition to the community8. The Plaintiffs fail to allege whether Ms. Young and any of the 115 putative class members in nursing homes have even applied for the Medicaid Aged and Disabled Adult Waiver, the Nursing Home Diversion Waiver, the Assisted Living Waiver, or the Traumatic Brain Injury / Spinal Cord Injury Waiver. Unless the Plaintiffs have applied for the waiver programs for which they are eligible and been wait-listed, they have not adequately explored the resources available to them to be able to claim that the Defendants are unjustifiably institutionalizing them. Indeed, to the extent these individuals reside in nursing homes, they would not be wait-listed if they applied for these waivers. The Florida Medicaid Program‟s Nursing Home Transition Program allows AHCA to transfer funds from the Medicaid nursing home budget to the budgets of any of these four waiver programs. Laws of Florida, Chapter 2011-69, Specific Appropriation 208; Laws of Florida, Chapter 2010-152, Specific Appropriation 219. As a result, any budgetary constraints within a given home and community-based waiver program would not prevent the transition of an eligible Medicaid recipient from a nursing home into that program. Thus, there is no wait list nursing home transition. VII. Plaintiffs Dykes, Walker, and Davis and the Putative Class Members in
ICF/DDs Will Now Have Similar Options as Those in Nursing Homes Plaintiffs Joanna Dykes, David Walker, and Loretta Davis currently reside in ICF/DD facilities. Amended Complaint, at ¶¶ 17, 25, 34. Plaintiffs also allege that there are 198 putative class members currently residing in private ICF/DDs, 69 putative class
8 While these waiver programs do not provide behavioral services, Medicaid nursing home residents also do not receive such services.
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members residing in state-run ICF/DDs, and 1,136 putative class members in settings defined as “other.” Id., at ¶ 153-155. As a result of legislation passed in the 2011 session of the Florida Legislature, Medicaid recipients in ICF/DDs will now have similar options as those for nursing home residents described in part VI.B. above. AHCA now has authority to transfer funds from the budgets for ICF/DDs to the DD Waiver budget. Laws of Florida, Chapter 2011-69, Specific Appropration 206. As a result, budgetary constraints in the DD Waiver would not prevent an eligible Medicaid recipient from transitioning into that waiver from an ICF/DD. VIII. Plaintiffs Congden, Pivinski, Ferraro, and Woodward Have Failed to State a
Claim Under the ADA or Section 504 Even if this Court disagrees with the Defendants‟ arguments in Part V above, Plaintiffs Michelle Congden, Amanda Pivinski, Alyssa Ferraro, and Joshua Woodward have failed to state a claim upon which relief can be granted under the ADA or Section 504. None of these individuals is currently institutionalized, nor have they alleged that they are in any serious risk of being institutionalized. As such, the Defendants have not violated the ADA or Section 504 with respect to these Plaintiffs. Count Three refers to unnecessary institutionalization and the integration mandate, but Plaintiffs Congden, Pivinski, Ferraro, and Woodward have not alleged any facts to indicate that they fall within the allegations in these Counts. Plaintiff Congden resides with her sister in the community. Amended Complaint, at ¶ 50. While the Amended Complaint does allege that Plaintiff Congden‟s sister is “in
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need of respite in order to avoid institutionalizing her,” it is not alleged that any institutionalization is, in fact, imminent. Id., at ¶ 51.
Plaintiff Pivinski resides with her parents in the community. Id., at ¶ 57. Plaintiffs allege that Ms. Pivinski “needs employments supports to maintain her in the community.” Id., at 63. However, the Plaintiffs allege no facts sufficient for the Court to include that the lack of “employment supports” places Plaintiff Pivinski at risk of institutionalization.
Plaintiff Ferraro lives with her mother in the community. Id., at 71. Plaintiffs allege that Plaintiff Ferraro‟s mother “cannot meet FERRARO‟s needs without assistance” and that she “is faced with moving from her current apartment in order to pay for FERRARO‟s services on her own or institutionalizing” her daughter. Id., at 75-76. However, the Plaintiffs provide no facts as to why Ms. Ferraro is suddenly at risk of institutionalization after having resided with her mother for years.
Plaintiff Woodwad lives with his father and stepmother in the community. Id., at 65. The facts alleged regarding Plaintiff Woodward do not allege any plausible risk of institutionalization, imminent or otherwise. The Amended Complaint states that he “seeks competitive employment” and “does not need much assistance with activities of daily living.” Id., at 67. The only needs the Amended Complaint identifies for Plaintiff Woodward are “assistance with speech therapy, an employment coach, and behavior assistance.” Id. The Plaintiffs fail to explain how or why the lack of these things would force Plaintiff Woodward out of the community and into an institution.
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It is clear that the ADA claims in this case are brought pursuant to the integration mandate. See e.g., Amended Complaint, at ¶ 2. The integration mandate states: “[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). It is also clear that the Plaintiffs‟ ADA claims all relate to “unjustified institutional isolation” which the Supreme Court has found to violate the ADA. Olmstead, at 600. See e.g., Amended Complaint, at ¶¶ 3, 5, 6, 12. Indeed, the very purpose of the integration mandate is “avoid unduly segregating the disabled,” Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004).
In addition, the purpose of Medicaid waiver programs, including the DD Waiver, is to permit states to offer home and community-based services “only to individuals who need them in order to avoid institutionalization.” Radazewski, at 601-02. Requiring a state to provide waiver services to individuals who do not need them in order to avoid institutionalization would clearly constitute a “fundamental alteration” of the waiver program which is not required by the ADA. See 28 C.F.R. § 35.130(b)(7).
It is true that institutionalization is not a prerequisite to bringing an action under the ADA and the integration mandate. See Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (Integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation”). However, in every case plaintiffs in the community have been permitted to bring claims under the integration mandate of the ADA, the plaintiffs
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have been “imperiled with segregation.” Fisher, at 1182. See also, Michele Haddad v. Thomas Arnold, et al., Case 3:10-cv-00414-UAMH-TEM (M.D. FL, July 9, 2010) (Without the requested services “Plaintiff would be forced to leave the community and enter a nursing home in order to receive the care she requires.”); Luis Cruz, et al., v. Thomas Arnold et al., Case 1:10-cv-23048-UU (S.D. Fl, November 24, 2010) (“Plaintiffs are at risk of institutionalization if they do not receive services available under the [waiver program].”)
Plaintiffs Congden, Pivinski, Ferraro, and Woodward all currently live in the community. Not one of them is institutionalized. Nor has any alleged facts sufficient for the Court to conclude that she or he is at substantial risk of being institutionalized. They are already in the most integrated setting appropriate for their needs.9 Therefore, Plaintiffs Congden, Pivinski, Ferraro, and Woodward have failed to state a claim under the ADA upon which relief can be granted. Plaintiffs Congden, Pivinski, Ferraro, and Woodward‟s claims in Count Three should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. Alternatively, these Plaintiffs should be dropped as parties pursuant to Rule 21, Fed. R. Civ. P. IX. Conclusion
For the foregoing reasons, the Defendants respectfully request that the Plaintiffs‟ Amended Complaint be DISMISSED.
9 In the Preamble to the Notice of Final Rule for the regulation including the integration mandate, the Department of Justice defines “most integrated setting” as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 56 FR 35694-01(July 26, 1991). By this definition, a recipient‟s parents‟ home is no less integrated a setting than her own apartment would be.
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Respectfully submitted this 22nd day of July, 2011.
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 BY: /s/ Beverly H. Smith Beverly H. Smith Assistant General Counsel Fla. Bar No. 612571 Agency for Health Care Administration 2727 Mahan Drive, Building MS #3 Tallahassee, Florida 32308 (850) 412-3630; (850) 921-0158 Fax
AGENCY FOR PERSONS WITH DISABILITIES BY: /s/ Michael Palecki Michael Palecki (FBN: 223824) General Counsel Marc Ito (FBN: 61463) Agency for Persons with Disabilities 4030 Esplanade Way, Ste. 380 Tallahassee, Florida 32399-0950 Tel: (850) 922-2030 Fax: (850) 410-0665
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Case 4:11-cv-00116-RS-CAS Document 45 Filed 07/22/11 Page 29 of 29 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 all attorneys of record, on this the 22nd day of July 2011.
/s/ Andrew T. Sheeran Andrew T. Sheeran
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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 1 of 23

I

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JOANNA DYKES; DAVID WALKER, by and through his next friend, Michele Beauregard; LORETTA DAVIS, by and through her next Friend, Trish Mlekodaj; HEATHER YOUNG, by and through her next friend Robert Stark; MICHELLE CONGDEN; AMANDA PIVINSKI; JOSHUA WOODWARD; ALYSSA FERRARO, by and through her next friend, Sharon Ferraro and DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

CASENO.: 4:11-CV-116-RS-WCS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and BRIAN VAUGHAN in his official capacity as (Interim) Director of the Florida Agency for Persons with Disabilities, and RICK SCOTT in his official capacity as Governor of the State of Florida.

Defendants.
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PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND MEMORANDUM OF LAW IN SUPPORT

Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), Plaintiffs, by and through their undersigned counsel, hereby move this Court for an order certifying this case as a class action and in support hereof state as follows:

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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 2 of 23

1. This is a statewide class action brought on behalf of over 19,000 individuals with

developmental disabilities, as defined by Florida Statute § 393.063 (9), who are eligible

to receive services through Florida Medicaid in intermediate care facilities for the

developmentally disabled (ICFIDD) and in the community under Florida's Home and

Community Based Waivers for persons with developmental disabilities ("DD Waivers").

2. The Plaintiffs seek declaratory and injunctive relief pursuant to 42 U.S.C. § 1983,

the Medicaid Act and its implementing regulations, the Americans with Disabilities Act

(ADA), and Section 504 of the Rehabilitation Act.

3. The named Plaintiffs in this action seek certification of this case as a class action

pursuant to Fed. R. Civ. P. 23(b) (2) to pursue resolution of all class members' claims. "

4. The proposed class consists of:

I

a. all individuals meeting the level of care required for placement in an

ICF/DD who are enrolled on the DD Waiver waitlist, who are assigned to

waitlist prioritization categories three through seven pursuant to

Defendants' promulgated rules, and are capable of residing in the

community with supports and do not object to receiving services in the

community. Within this class there exist subclasses of those who (1)

receive services in institutions or institutional-like settings and (2) reside

in the community without services.

5. Numerosity: The class is so numerous that joinder of all its members is

impracticable. The Plaintiffs believe that there are over 19,000 class members, because it

is believed that there are 19,000 individuals waitlisted to receive services through the DD

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Waiver. What is unknown to Plaintiffs, but known to Defendants, is the dispersion of those putative class members among the Defendants' seven categories of waitlist prioritization. Although the exact number of waitlisted persons is known to the Defendants and is ascertainable, Plaintiffs do not know the exact number. 6. Commonality: There are questions of law or fact that are common to all named Plaintiffs, as well as to all putative class members including:
a. Whether the Defendants' policies cause and perpetuate the unnecessary segregation and discrimination through continued institutionalization, or risk of institutionalization, ofpersons with developmental disabilities thus violating the ADA's integration mandate, as well as Sec. 504 of the Rehabilitation Act, as . enforced through 42 U.S.C. § 1983. b. Whether the Defendants' relegation ofpersons with developmental disabilities to a lengthy waitlist that has not moved at a reasonable pace violates the Medicaid Act's requirement for the provision of services with reasonable promptness pursuant to 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930 as enforced through 42 U.S.C. § 1983. c. Whether the Defendants' failure to provide community services through the DD Waiver to the putative class members violates the Medicaid Act's requirement for the freedom of choice of provider of services pursuant to 42 U.S.C. § 1396n(c)(2)(C) and § 1396a(a)(23) as enforced through 42 U.S.C. § 1983. d. Whether the Defendants' failure to notify persons enrolled on the DD
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Waiver waitlist of their prioritization category and afford them opportunity for hearing violates their due process rights as stated in 42 U.S.C. §1396a(a)(3) and implemented by 42 C.F.R. § 431.220 et seq. 7. Typicality: The claims of the named Plaintiffs are typical of the claims of the class. The named Plaintiffs and purported class are (1) Medicaid eligible recipients (2) precluded from home and community based services by being placed on a waitlist that has not moved at a reasonable pace, (3) without notice of their waitlist prioritization, (4) . depriving them ofthe freedom of choice ofproviders, and (5) segregating them in institutions or subjecting them to the risk of institutionalization. 8. Adequate representation: The named Plaintiffs will fairly represent and adequately protect the interests ofmembers ofthe class as a whole. The named Plaintiffs do not have any interests antagonistic to those of other class members. By filing this action, the named Plaintiffs have displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The relief sought by the named Plaintiffs is represented by counselors who are skilled and knowledgeable about civil rights litigation, Medicaid law, practice and procedure in the federal courts, and the prosecution and management of class action litigation. 9. The Defendants have acted or refused to act on grounds generally applicable to the class, making final injunctive relief appropriate with respect to the class as a whole under Fed. R. Civ. P. 23(b) (2). Class members have been found to need and are eligible for these services as they meet the level of care required for placement in an ICFIDD, and have been denied an opportunity to receive prompt services on the DD Waivers. Without
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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 5 of 23

prompt services on the DD waivers, the class members are at risk for segregation in institUtions as no other means for services exist. 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 in his or her own right. 11. Plaintiffs counsel conferred with Defendant's counsel who stated that they will not agree to class certification.
WHEREFORE the Plaintiffs respectfully request that this court certify this case as a class action pursuant to Fed. R. Civ. P. 23(a) and (b) (2).
MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION The purpose of class actions is to achieve efficiency and economy of litigation, both with respect to the parties and the courts. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). Plaintiffs bear the burden of meeting the requirements of Rule 23 for class certification. Valley Drug Co. v. Geneva Phann., Inc., 350 F.3d 1181 (11 th Cir. 2003). Analysis of class certification requires the Court to accept the substantive allegations as true. In considering class certification, the Court need not determine the merits of the underlying claim, but may consider the merits ofthe case to the degree necessary to determine whether Plaintiffs have met the requirements of Rule 23. Id. at 1188. The Plaintiffs bear the burden ofproving that they indeed meet the necessary requirements for class certification and some aspects of the Plaintiffs' allegations and the Defendants proposed defenses are evidence of compliance with Rule
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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 6 of 23

23. See Wal-Mart Stores, Inc. v. Dukes, 2011 WL 2437013, - U.S. - ,131 S. Ct. 2541, _L.Ed._(2011 ).
In this case, the Plaintiffs need services that currently exist for Floridians only by succumbing to institutional placement. The seminal case for desegregation of persons with disabilities was decided over ten years ago. Olmstead v. L.C. ex reI Zimring, 527 U.S. 581 (1999). Florida, aware of the effectiveness and cost-benefits of community services, has noted "The Legislature finds and declares that existing state programs for the treatment of individuals with developmental disabilities, which often unnecessarily place clients in institutions, are unreasonably costly, are ineffective in bringing the individual client to his or her maximum potential, and are in fact debilitating to many' clients." Fla. Stat. § 393.062.
The state's intent is clear, yet, for the Plaintiffs' and putative class members, the state's actions have stalled, sputtered, and regressed. Persons able to live in the community have been diverted to institutions. Persons in need of services have lost skills, sacrificed independence, and overworked their caregivers because they do not wish to live in an institution in order to receive services. The availability of these services is controlled solely by the Defendants' design and implementation ofthe Medicaid home and community based waivers (the "DD Waiver") and its corresponding waitlist. The Plaintiffs and proposed class members in this matter are challenging the lack of community services for persons with developmental disabilities due to the Defendants' actions and omissions that have cast them all in the same plight - forego services or give in to institutional placement.
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CLASS DEFINITION The proposed class definition in this matter is:
all individuals meeting the level of care required for placement in an ICFIDD who are enrolled on the DD Waiver waitlist, who are assigned to waitlist prioritization categories three through seven pursuant to Defendants' promulgated rules, and are capable of residing in the community with supports and do not object to receiving services in the community. Within this class there exist subclasses of those who (1) receive services in institutions or institutional-like settings and (2) reside in the community without services. The proposed class definition is adequate and readily identifies the class members by objective criteria. See Neumont v. Monroe County, Fla., 198 F.R.D. 554, 556 (S.D.PI. 2000) citing O'Connor v. Boeing North American, InC., 184 F.R.D. 311, at 319, (C.D.Cal. 1998) ("a class will be found to exist if the description ofthe class is definite enough so that it is administratively feasible for the court to ascertain whether an individual is a member"). Here, each named Plaintiff is currently enrolled on Defendants' DD Waiver waitlist and has been denied services by their placement on the waitlist. Moreover, each potential class member is readily identifiable by Defendants' own records and information. Thus, each named Plaintiff is a member of the defined class and the absent members ofthe class are easily identifiable by objective criteria. Furthermore, each member of the proposed class would have a live claim against each Defendant and standing to sue on his own behalf.
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-- - - - - - -- I--------------~-----~-----Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 8 of 23
PROPOSED CLASS MEETS RULE 23(A) CERTIFICATION REQUIREMENTS NUMEROSITY
Plaintiffs must show that the "class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). While numerosity does not require an exact number of class members be identified to show impractability ofjoinder, Plaintiffs must "proffer some evidence of the number in the purported class or a reasonable estimate." Leszcvnski v. Allianz Ins., 176 F.R.D. 659,669 (S.D. Fla. 1997). The Court should also consider 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.B. v. Carnehammar, 4 138 F.R.D. 594, 598-599 (S.D. Fla. 1991).
In this instance, the proposed class consists of approximately 19,000 persons with developmental disabilities that have contacted Defendants and applied for home and community based services resulting in their placement into categories three through seven ofDefendants' DD Waiver waitlist prioritization categories. The prioritization category ultimately affects a person's ability to effectuate their choice for services in the community in a reasonably prompt manner. Those in categories one and two, selected crisis cases and children who have open cases with the Department of Children and Families, have preference and receive available slots as current enrollees die, move out of state, or otherwise become ineligible. The joinder of all the members is impracticable due to the large size of the proposed class. The Defendants have the statutory obligation to maintain the list of persons that have applied for and are awaiting services as well as recording their contact information including addresses. See Fla. Stat. §393.065.
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Through records requests to the Defendants, Plaintiffs' counsel can further specify the number ofpurported class members and subclass members. The subclass of individuals residing in institutions or institutional-like settings incorporates the Defendants' listing of 198 waitlisted persons residing in ICF/DDs, 115 residing in skilled nursing facilities, 69 residing in state-run developmental institutions and 1,136 waitlisted persons residing in what the Defendants term "other," i.e. psychiatric facilities, jail, independent living, and foster homes for adults. The second subclass incorporates the Defendants' identification of over 17,000 waitlisted person residing in "the family home" with parents, siblings, or other extended family members or friends. The proposed class consists of thousands ofpeople throughout the state of Florida, making individual trials for each putative class member an inefficient use ofjudicial and party resources. The court may make common sense assumptions in order to find support for numerosity. Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1039 (5th Cir. 1981). I The size of the proposed class and the inclusion of future members make joinder impracticable in this matter. See Zeidman, at 1038. The requirement that the putative class be so numerous that joinder of all members is impracticable is clearly met in this matter. Fed. R. Civ. P. 23(a).
COMMONALITY Most recently, the United States Supreme Court declared that commonality for class representation requires a "common contention" that when the "determination of its
I In Bonner v. City of Prichard. 661 F.2d 1206,1209 (11 th Cir.1981)(en bane), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
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truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." Wal-Mart Stores, Inc. v. Dukes, 2011 WL 2437013, _ U.S. - ' 131 S. Ct. 2541, _L.Ed._(2011). The crux of commonality is more akin to whether or not there is a single answer. The commonality test is met when the resolution of at least one issue will affect all or a significant number of the putative class members. Mullen v. Treasure
Chest Casino, L.L.C., 186 F.3d 620,625 (5th Cir. 1999), Forbush v. J.C. Pe~ey Co., 994
F.2d 1101, 1106 (5th Cir. 1993). Where a common scheme is alleged, common questions oflaw or fact will exist. See Murray v. Auslander, 244 F.3d 807,813 (11 th Cir. 2001). The putative class members' plight involves questions of both law and fact that are common to all members of the proposed class and resting on wide-reaching, centralized'~. decisions made by Defendants. These consist of:
a. Whether the Defendants' design and implementation of the DD Waiver and its waitlist perpetuate the segregation and discrimination of persons with developmental disabilities through continued institutionalization, or risk of institutionalization, violating the ADA's integration mandate, as well as Sec. 504 of the Rehabilitation Act, as enforced through 42 U.S.C. § 1983.
b. Whether the Defendants' relegation of persons with developmental disabilities to a lengthy waitlist that has not moved at a reasonable pace violates the Medicaid Act's requirement for the provision of services with reasonable promptness pursuant to 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930 as enforced through 42 U.S.C.
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§ 1983. c. Whether the Defendants' failure to provide community services
through the DD Waiver to the putative class members violates the Medicaid Act's requirement for the freedom of choice of provider of services pursuant to 42 U.S.C. § 1396n(c)(2)(C) and § 1396a(a)(23), as enforced through 42 U.S.C. § 1983. d. Whether the Defendants' failure to notify persons enrolled on the DD Waiver waitlist of their prioritization category and afford them opportunity for hearing violates their due process rights as stated in 42 U.S.C. §1396a(a)(3) and implemented by 42 C.F.R. § 431.220 et seq;. Commonality does not require complete identity oflegal claims among class members. Johnson v. American Credit Co. of Ga., 581 F.2d 526,532 (5th Cir. 1978). As stated in Wal-Mart Stores. Inc., one resolution to the common questions would resolve the putative class' claims. Id. at 2551. "The mere presence of factual differences will not defeat the maintenance of a class action if there are common questions of law." Pottinger v. City of Miami, 720 F.Supp. 955 (S.D. Fla. 1989), quoting Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980). The Plaintiffs and the putative class harbor only differences in the degree of harm, regression, and loss of independence caused by the lack of community services. This is no reason to defeat commonality as all of the Plaintiffs implicate the Defendants' same actions and omissions. The Defendants have refused to expand the DD Waiver to accommodate other persons in the state of Florida from receiving those services. The Defendants have relegated each Plaintiff to a new
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prioritization category, which does not provide an opportunity to receive services in the community. Any available slots are directed to categories one and two, failing to provide relief for the Plaintiffs. The challenged actions and omissions affect each Plaintiff and putative class member in the same manner -precluding them from receiving services in the community.
The Defendants actions and omissions have forced the Plaintiffs, Joanna Dykes, David Walker, Loretta Davis and Heather Young, into unnecessary institutionalization without hope of ever attaining services in the community because they will never be homeless, a danger to themselves or others, or without a caregiver while in the institutions. Others in the second subclass exist on the same continuum of this path to" institutionalization. Without services, these Plaintiffs reside in the community without services experiencing regression in skills, loss of employment opportunities, the exhaustion of their natural caregivers,· and eventually the inability to maintain their independence and place in the community. The Plaintiff class' harm is caused by the same challenged policies, rules, and design and implementation of the DD Waiver and its waitlist. For some, the unnecessary segregation of their continued placement in institutions is evident. For others, the plight of their selection for community services over institutional services is that they will receive no services at all. The putative class has commonality in the harm suffered as well as commonality in the cause of that harm the Defendants' actions and omissions in the design and implementation of the DD Waiver and its waitlist.
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TYPICALITY When named Plaintiffs advance legal and remedial theories similar to those that would be advanced by class members if they were pursuing parallel actions, the typicality requirement is met. Mullen 186 F.3d at 625; Lightbourn v. County ofEI Paso, 118 F.3d 421,426 (5th Cir. 1997). The named Plaintiffs here are "part of the class and 'posess the same interest and suffer the same injury' as the class members." General Telephone Co. v. Falcon, 457 U.S. 147, 156 (1982) (quoting East Texas Motor Freight Systems Inc. v. Rodriguez, 431 U.S. 395,403 (1977). In Kornberg v. Carnival Cruise Lines, 741 F.2d 1332, 1337 (11 th Cir. 1984), the Court stated typicality exists when there is a
[... ]nexus between the class representatives' 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.
The Defendants' actions and omissions as applied to those in waitIist prioritization categories three through seven violate the Plaintiffs' rights. It is because of the Defendants' rules, policies and design and implementation of the DD Waiver and its waitlist that Plaintiffs are currently institutionalized or at risk of institutionalization. Even the unique defenses alleged in Defendant ARCA and APD's motion to dismiss as to one or more of the individual Plaintiffs does not disturb the typicality among the class and named representatives. Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 137 (5th Cir. 2005). Rather, the Court's inquiry should focus on whether the "class representative's claims
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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 14 of 23
have the same essential characteristics as those of the putative class." James v. City of Dallas, 254 F.3d 551,571 (5th Cir. 2001). Typicality is satisfied if the claims arise from "a similar course of conduct and share the same legal theory" and "factual differences will not defeat typicality." Id.; see Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999), cert. denied, 528 U.S. 1159 (2000); see also 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 each named plaintiff to those of each proposed class member).
Each named Plaintiff is precluded from community services because of the Defendants' design and implementation of the DD Waiver and the DD Waiver waitlist. Plaintiffs are currently institutionalized or at risk of institutionalization because of Defendants' refusal to provide community services. Each Plaintiff's ability to receive services in the community is thwarted by Defendants' continued reliance on the arbitrary "cap" on the number of persons eligible for community services. One subclass of Plaintiffs will never be classified as category one/crisis category, as they are currently institutionalized by the Defendants, effectively eliminating any chance ofmeeting Defendants' crisis criteria. Yet, Defendants claim that, pursuant to proviso language in this year's appropriations act, these Plaintiffs and the corresponding subclass members are eligible to transfer their institutional funds to the DD Waiver to receive services in the
As community. there are 1,518 institutionalized persons the Defendants identify as
eligible to benefit from this proviso language, then the Defendants must either admit that
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(a) there are 1,518 available slots or (b) the arbitrary "cap" on the number ofDD Waiver recipients is a soft cap, relevant only to cost-neutrality and capable of expansion to accommodate these individuals and therefore others. In other words, either there are enough available slots to accommodate those persons waitlisted in institutions, or the Defendants "cap" on services is just an easily modified administrative barrier to the deinstitutionalization and diversion from institutions of persons with developmental disabilities.
The putative class challenges the Defendants' refusal to expand the DD Waiver if necessary or to provide those available slots to the putative class members. As Defendants have deemed a putative subclass eligible for those 1,518 available DD Waiver slots (which must exist if the proviso language is to have any affect), that subclass ofpersons--represented by Plaintiffs Joanna Dykes, David Walker, Loretta Davis, and Heather Young--are the epitome of representatives to challenge the provision of those community services to them in a reasonably prompt manner along with their ability to choose providers. See 42 U.S.C. § 1396a(a)(8), § 1396n(c)(2)(C) and § 1396a(a)(23). See also 42 C.F.R. § 435.930, §441.302. While they are institutionalized, these Plaintiffs are receiving services through the facility, but they are entitled to seek services through any willing provider and have those funded in a reasonably prompt manner. The freedom of choice provision places an affirmative duty upon the Defendants to inform those class members of any feasible alternatives available under the waiver; and give them the choice of either institutional or home and community-based services. 42 C.F.R. § 441.302(d). Surely, this provision, which has been held to confer enforceable
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rights, must be read together with other Medicaid provisions including the ability to fund those choices in a reasonably prompt manner. Essentially, the freedom of choice provisions and their implementing regulations must mean more than the ability to check a box on an application. See Doe v. Kidd, 501 F.3d 348,357 (4th Cir. 2007) (§ 1396a(a)(23) requires state Medicaid plans to provide that any recipient of Medicaid assistance be able to choose among a range of qualified providers); see also Ball v. Rodgers, 492 F.3d 1094, 1116 (9th Cir. 2007)(§ 1396n(c)(2)(C) requires a state to provide its "HCBS-eligible" [Home and Community Based Service] patient population with specific rights and services.) To date, the Defendants have not informed those class members of their eligibility to transfer their institutional funds to the DD Waiver nor have. they funded that choice in a reasonably prompt manner. See Laws of Florida, Chapter 2011-69, and Specific Appropriation 206.
Conversely, if Defendants' contention is that they cannot provide community services chosen by the applicants in a reasonably prompt manner because they do not feasibly exist, then such information must be relayed to those applicants. Presumably, this is the defense to those class members forgoing services in order to remain in the community. Plaintiffs, Joshua Woodward, Amanda Pivinski, Alyssa Ferraro, and Michelle Congden are typical of these putative class members living in the community without services. Their challenge to the reasonably prompt provision of community services and their ability to choose providers based on the Defendants' refusal to expand the DD Waiver to accommodate them, or provide existing DD Waiver slots to them, is consistent among the claims of the proposed class. The Defendants' action of allowing
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only those persons they deem to be meeting the criteria for category one ofthe prioritization categories, makes that category the only coveted category. Without such a designation from the Defendants, these Plaintiffs and similar class members residing in the community are virtually cut off from receiving services unless they abandon their homes and families for confinement in an institution.
The proposed class representatives are challenging the discriminatory nature of Defendants' enactment and implementation ofrules and policies that relegate persons eligible for community services to a permanent waitlist, while allocating resources to serving those same eligible persons in institutional settings rather than expanding community based services. The named Plaintiffs and putative class members have identical legal claims and seek the same declaratory and injunctive relief. Therefore, the requirement of Fed. R. Civ. P. 23(a)(3) is met in this case in that the "claims or defenses of the representative parties are typical of the claims of the class."
ADEQUACY OF REPRESENTATION Rule 23 further requires the class representatives be persons who "will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). Two considerations exist to determine adequacy: (l) "whether plaintiffs counsel are qualified, experience 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 (lIth Cir. 1987) (quoting Griffin v. Carlin, 755 F.2d 1516, 1532 (11 th Cir. 1985)). The Plaintiffs and their counsel satisfy both considerations.

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I
I

Plaintiffs are represented by Disability Rights Florida, Inc., d/b/a Disability Rights Florida, formerly known as the "Advocacy Center for Persons with Disabilities, Inc." Disability Rights Florida, a not-for-profit-corporation serves as Florida's federally funded protection and advocacy system for individuals with disabilities (the "P&A"). The P&A's mission is to advance the dignity, equality, selfdetermination, and expressed choices of all individuals with disabilities in Florida. Under its federal mandate, the P&A is authorized to pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of all individuals with disabilities within the State of Florida. Specifically, on behalf ofpersons with developmental disabilities, the P&A is authorized by federal law to "pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of individuals within the State who are or who may be eligible for treatment, services, or habilitation, or who are being considered
for a change in living arrangements." See 42 U.S.C. §15041; 42 U.S.C §15043
(a)(2)(A)(i). The P&A has represented and continues to represent persons with developmental disabilities in individual actions, class actions and systemic relief initiatives affecting all such individuals.
Plaintiffs are represented by a team of attorneys and litigation staff at Disability Rights Florida who are qualified to prosecute the purported class' claims and will vigorously litigate the matter on behalf ofthe class. Disability Rights Florida maintains three offices throughout the state employing attorneys, paralegals, and advocates. In accordance with its mandate, the P&A has historically managed systemic class actions on

I

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l

Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 19 of 23
behalf ofpersons with disabilities. As the P&A, Disability Rights Florida is part of the National Disability Rights Network ("NDRN"). NDRN is the nonprofit membership organization for the federally mandated Protection and Advocacy Systems and provides technical and legal assistance to the state P&As.
Plaintiffs are represented by MaryEllen McDonald, Esquire, who has been a member of The Florida Bar for twenty-five years. Ms. McDonald has significant experience in the areas of disability law and civil rights litigation. Ms. McDonald has worked for various state agencies within the state of Florida and in recent past was the Assistant General Counsel for the Department of Elder Affairs and Chief Legal Counsel for the Department of Children and Families.
Plaintiffs are also represented by Paul E. Liles, Esquire, who has been a member of The Florida Bar for 19 years. During this time, Mr. Liles conducted 39 extensive administrative hearings, most of which involved persons with disabilities. He has handled more than 57 trials in state court and 15 trials in federal court, six of which involved civil rights issues. Mr. Liles has also completed 16 state appeals. His five federal appeals involved both civil rights and special education law. He has significant experience in the area ofcivil rights law, special education law, and practice in the federal courts, and his vigorous and zealous advocacy was noted by United States Magistrate Judge Frazier in School Bd. a/Lee County, Florida v. E.S., Dkt. No. 2:06-cv-198-FtM-29DNF, 2008 WL 479365, *4 (M.D. Fla., Nov. 2, 2008). In addition to this case, Mr. Liles has two pending federal cases, one of which is a class action matter.
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Plaintiffs are also represented by Amanda Heystek, Esquire, who has been a member ofThe Florida Bar for eleven years. Ms. Heystek has significant experience in litigation in criminal, marital and domestic, and administrative proceedings. In addition, Ms. Heystek recently litigated on behalf of Medicaid eligible children with developmental disabilities seeking services pursuant to the federal mandate of Early, Periodic, Screening, Diagnosis and Treatment in Case No. 4:1O-CV-00088-RH-WCS (N.D. Fla.). The matter was settled before the question of class certification was determined. Plaintiffs are also represented by Christopher White, Esquire, who has been a member of The Florida Bar for three years. Mr. White has practiced disability civil rights litigation exclusively, and has significant experience with Medicaid law in administrative hearings.
Plaintiffs' counsel pursued over two years of investigation into the matter of Defendants' waitlist for the DD Waiver. Plaintiffs' counsel has engaged in interviews with potential class members, as well as experts and stakeholders in the field. Disability Rights Florida maintains systems to receive potential class members and provide notice or other requirements of the Court to the putative class members. Disability Rights Florida has dedicated staff and monies to see this matter through the legal system for class members' relief. It would be difficult for class members to sustain individual actions due to their income levels and disability status.
The putative class members share a common interest to receive home and community-based services and avoid institutionalization. While there may be variations in the living arrangement of the putative class, that does not alter the relief sought. In
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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 21 of 23

essence, all of the putative class members are at different stages of the successive line to institutionalization. Some are waiting patiently for services, others have applied for crisis enrollment and were denied; some have family that are withering from the demands of providing services but are reluctant to give up their loved ones to strangers, others were directed by the Defendants to institutional placements due to lack of community services. However, all putative class members seek community services, with no hope in sight. Many Plaintiffs have lost skills acquired through the educational system, others have sacrificed potential employment, and some have lost the companionship of their caregivers who burned out trying to meet all of the Plaintiffs needs; yet all seek community services to promote their independence, avoid segregation, have selfdetermination, and live in their community. The putative class members share a common interest for the DD Waiver waitlist to move at a reasonable pace and for all persons on the waitIist to be able to receive services in the community instead of institutional settings. The class representatives and the putative class do not have interests antagonistic to each other. DEFENDANTHAS ACTED OR REFUSED TO ACT ON GROUNDS GENERALLY
APPLICABLE TO THE CLASS MAKING FINAL INJUNCTIVE AND DECLARATORYRELIEF APPROPRIATE FOR THE CLASS AS A WHOLE
Defendants have "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). This rule was intended "primarily to facilitate civil rights class
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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 22 of 23
actions, where the class representatives typically sought broad injunctive or declaratory relief against discriminatory practices." Hernandez v. Medows, 209 F.R.D. 665 (S.D. Fla. 2002) quoting Penson v. Telminal Transport Co., Inc., 634 F.2d989, 993 (5th Cir.1981) (citing Advisory COlmllittee Notes, 39 F.R.D. 98, 102 (1966».
COl11is have interpreted this provision to mean that the opposing party has acted in a consistent maImer toward members of the class or as paIi of a pattern of activity, or has established a regulatory scheme or set of practices COlmnon to all class members. Leszecvnski v. Alliance Ins. Co., 176 F.R.D. 659, 673-674 (S.D. Fla. 1997). Cases seeking declaratory or injunctive relief are patiicularly appropriate for certification under Rule 23(b)(2). Curtis v. Commissioner, Maine Dept. of Human Services, 159 F.R.D. 339 at 341 (D.Me. 1994). Plaintiffs' allegations satisfy this requirement. The Defendants' regulatory scheme, resource allocation, implementation of the waitlist, and omissions in amending the DD Waivers placed members of the putative class in institutions and subjects others to the risk of institutionalization and furthelmore deprives them of the Medicaid Act's protections for reasonable promptness, freedom of choice and due process. Plaintiffs seek the same declaratory and injunctive remedy that will provide relief to all putative class members.
CONCLUSION Plaintiffs therefore respectfully move this court to certify that this action may proceed as a class action on behalf of the class defined above. Dated this 31 st day of August 2011.
By sl Amanda Heystek
Amanda Heystek, Esquire
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Case 4:11-cv-00116-RS-CAS Document 61 Filed 08/31/11 Page 23 of 23

Florida Bar No. 0285020 Disability Rights Florida 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org Lead Trial Counsel

By

sf Paul E. Liles

Paul E. Liles, Esquire

Florida Bar No. 0921270

Disability Rights Florida

Senior Trial Counsel

paull@disabilityrightsflorida.org

Christopher White, Esquire

,Florida Bar No. 0060109

christopherw@disabilityrightsflorida.org

1000 N. Ashley Drive, Suite 640

Tampa, Florida 33602

Maryellen McDonald,

Director of Legal and Advocacy Services

Florida Bar No. 607533

maryellenm@disabilityrightsflorida.org

2728 Centerview Drive, Suite 102

Tallahasseee, FL 32301

(850) 488-9071 Telephone

(850) 488-8640 Facsimile

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe foregoing was furnished by CMfECF to all attorneys of record this 31 st day of August, 2011.

By sf Amanda E. Heystek Amanda E. Heystek, Esquire Florida Bar No. 0285020 Disability Rights Florida, Inc. 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org

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 Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 1 of 11

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JOANNA DYKES; DAVID WALKER, by and through his next friend, Michele Beauregard; LORETTA DAVIS, by and through her next Friend, Trish Mlekodaj; HEATHER YOUNG, by and through her next friend Robert Stark; MICHELLE CONGDEN; AMANDA PIVINSKI; JOSHUA WOODWARD; ALYSSA FERRARO, by and through her next friend, Sharon Ferraro and DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

Case

No. 4:11-cv-00116-RS-WCS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MICHAEL HANSEN in his official capacity as Director of the Florida Agency for Persons with Disabilities, and RICK SCOTT in his official capacity as Governor of the State of Florida.,
Defendants. ________________________________/
MOTION TO DISMISS FOR LACK OF STANDING
The Defendants, Elizabeth Dudek, in her official capacity as Secretary of the
Florida Agency for Health Care Administration, Michael Hansen,1 in his official capacity

1

Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Michael Hansen is au tomatically

substituted as a party as successor of Brian Vaughan.

1

Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 2 of 11

as Director of the Florida Agency for Persons with Disabilities, and Rick Scott, in his official capcity as Governor of the State of Florida,2 hereby submit this motion to dismiss the claims of Plaintiffs Michelle Congden, Amanda Pivinski, Joshua W oodward, and Allysa Ferraro in Count Three of the Am ended Complaint for lack of standing. As support therefor, Defendants submit the following memorandum of law.
MEMORANDUM OF LAW I. Requirements for Standing
The U.S. Constitution extends jurisdiction to the federal courts only over “cases” and “controversies.” U.S. Constitution, Artic le III, Section 2, Clause 1. The Suprem e Court has h eld that the “irreducible constitutional minimum of standing contains three elements.” Lujan v. Defenders of W ildlife, 504 U.S. 555, 560 (1992). First, the plaintiff must have suffered an “injury-in-fact” which is both: (a) “concrete and particularized”; and (b) “actual or imm inent, not conjectural or hypothetical.” Id . (internal quotation marks omitted). Secon d, a pla intiff must establish a “c ausal connection” between the injury and the defendant’s acts. Id. Finally, the injury must be “likely to be redressed by a favorable decision.” Sim on v. E. Kentucky Welfare Rights Org. , 426 U.S. 26, 38 (1976). In addition to the constitutional requirements, “[s]tanding doctrine em braces several judicially self-imposed lim its on the ex ercise of federal jurisdiction, such as the general prohibition on a litigan t’s raising another person’s legal ri ghts, the ru le barring adjudication of generalized grievances more appropriately addressed in the representative

2

As explained in Governor Scott’s pending Motion to Dismiss, Docket Entry 23, the Governor is

not a proper defendant in this action. Governor Scott joins in this motion only to preserve his rights in the

event that his Motion to Dismiss is denied.

2

Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 3 of 11
branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751 (1984).
A plaintiff seeking to esta blish standing “m ust clearly and specifically set f orth facts” sufficient to sa tisfy the constitutional r equirements. W hitmore v. Arkansas , 495 U.S. 149, 155 (1990). On deciding a defendant’s motion to dismiss, a federal court “must evaluate standing based on the facts alleged in the com plaint, and … may not speculate concerning the existence of standing or piece together support for the plaintiff.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (internal quo tation marks omitted). It is not enough for a plaintiff’s com plaint to set forth “facts from which [a court] could im agine an injury sufficient to satisfy Article III’s standing requirements.” Miccosukee Tribe of Indians of Florida v. F lorida State Athletic Comm ’n, 226 F.3d 1226, 1229 (11th Cir. 2000). II. Plaintiffs’ Injuries Do Not Confer Standing
At the outset, the injury that Plaintiffs Michelle Congden, Amanda Pivinski, Joshua Woodward, and Allysa F erraro (hereinafter the “Comm unity Plaintiffs”) are alleged to have suffered is not clear. All four of these individuals reside in their communities. See Amended Complaint, ¶¶50, 57, 65, and 71. None of these Plaintiffs is currently institutionalized. It appe ars from the Amended Complaint, that the injury-infact that the Community Plaintiffs have suffered is the possibility of institutionalization. See Id., ¶¶2, 5, 6, 51, 56, 62-64, 70, 81-83, 103a, 128, 203, 210-211, and 215. In the alternative, some provisions in the Amended Complaint seem to allege that the injury the Community Plaintiffs have suf fered is s imply the f ailure of the Def endants to provide
3

Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 4 of 11
them services through the Flor ida Medicaid Developmental Disabilities Waiver program (“DD Waiver”). See Id., ¶¶ 11, 13-14, 104, 140, 158, 202, 208, and 212-213. The Amended Complaint is a mbiguous as to the pr ecise nature of the injury-in-fact it is alleging. The alternative theori es of injury require different analyses as to standing, but under either theory, Community Plaintiffs currently lack standing to sue.
A. Possibility of Institutionalization as the Injury-in-Fact To the extent that the injury at issu e is the possibility of institutionalization, the Community Plaintiffs lack standing to bring a claim under Title II of the Am ericans with Disabilities Act (“ADA”) becaus e they have not suffered an “injury -in-fact.” As noted above, the Community Plaintiffs must show that they are “unde r threat of suffering” an injury that is “actual and im minent, not conjectural or hypo thetical.” Summers v. Earth Island Inst., 555 U.S. 488, 455 (2009). Only two of the Community Plaintiffs – Amanda Pivinski and Allysa Ferraro – even allege that their institutionalization is “imminent” and even these Plaintiffs fail to explain why or how such institutionalization is imminent. See Amended Complaint, at ¶¶ 64 and 83 (alleging no facts explaining why these Plaintiffs’ current living situ ations in the co mmunity will not continue to b e viable options for them). Likewise, the other C ommunity Plaintiffs – Michelle Congden and Joshua Woodward – do not allege that th e risk of institutionalization is imminent for them. Nor do they allege specific fact s that would support such a conclusion. For example, Plaintiffs admit that Plaintiff Woodward “does not need m uch assistance with activities of daily liv ing” and allege only that he needs “ass istance with speech th erapy, an
4

Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 5 of 11

employment coach, and behavior assistance.” Id., at ¶ 67. Such an individual cannot be

reasonably stated to face imminent institutionalization.

Plaintiff Congden sim ply asserts th at, without DD Waiver services, “ her health,

safety and welfare will decline” and that this pl aces her “at risk of institutionalization.” Id .,

at ¶ 56. Such a risk is not imminent.

Nowhere does Congden allege that such

institutionalization would or could happen imm inently, and any such risk appears to be

conjectural and hypothetical.

In short, Plaintiffs Congden and W oodward ask the Court to i magine

circumstances that could arise that could lead to their institutionalization. This is exactly

what the Eleventh Circuit in Miccosukee Tribe of Indians of Florida held not to constitute

a sufficient showing of standing.

Indeed, the Am ended Complaint assumes that the Community Plaintif fs will

remain at th e Category 6 leve l of prioritization on the DD Waiver waitlist. Am ended

Complaint, at ¶¶ 55, 61, 70, and 81. This m eans that the Comm unity Plaintiffs concede

that their caregivers are not “expected to … [be] unable to provide care within the next

twelve months,” and do not claim that “other caregivers are unable, unwilling or

unavailable to prov ide [alternative] care.” If Comm unity Plaintiffs were able t o make

such allegations, they would be eligible for Category 3 prioritization on the waitlist and their risk of institutionalization would be f ar more likely.3 Rule 65G-11.002(5)(a),

Florida Administrative Code. As such, the Community Plai ntiffs virtually concede that

they are not at imminent risk of institutionalization.

3

Category 4 and Category 5 prioritization levels are unavailable to Community Plaintiffs. See Rule

65G-11.002, Florida Administrative Code.

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Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 6 of 11
Given the lack of current or imm inent institutionalization, there is no “injury-infact” present to confer stand ing on the Community Plaintiffs. “Th e mere risk that Plaintiffs may be institutiona lized … does not constitute an actua l or imminent harm sufficient to satisfy the first element of standing.” Bill M. ex rel. William M. v. Nebraska Dept. of Health & Human Services Fin. & Support , 408 F.3d 1096, 1099 (8th Cir. 2005), vacated and remanded on other grounds ; United States v. Nebraska Dept. of Health & Human Services Fin. & Support, 547 U.S. 106 (2006).
B. Denial of Enrollment in the DD Waiver as the Injury-in-Fact Alternatively, standing is also lacking to the extent that the Community Plaintiffs’ injuries allegedly arise from the mere failure of the Defendants to provide them services through the DD W aiver. The m ere failure to enroll the Community Plaintiffs onto the DD Waiver does not constitute a violation of the ADA, Section 504 of the Rehabilitation Act, or the Medica id Act. Moreov er, the injury of not being enrolled in the DD W aiver does not fall within the zone of interests protected by the ADA. While standing “in no way depends on the m erits of the plaintiff’s co ntention that particular conduct is illegal,” “it often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U.S. 490, 500 (1975). “Essentially, th e standing question in su ch cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.” Id. Here, the statutory provision upon which the Community Plaintiffs rely is 42 U.S.C. § 12132, which provides that “no qualified individual with a disa bility shall, by reason of such disability , be excluded from participation in or be denied the benefits of
6

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the services, programs, or activities of a pub lic entity, or be subjected to discrimination by any such entity.” This provision protects individuals who are either: (1) excluded from participation in, or denied the benefits of, services, program s, or activities of a public entity by reason of a disability, or (2) subjected to discrimination by a public entity by reason of a disability. Id.
The Community Plaintiffs have not been excluded from participation in the DD Waiver or denied the DD Waiver’s benefits by reason of a disability . Indeed, it is because of their disabilities that the Community Plaintiffs are even elig ible for participation in th e DD W aiver. Th e DD W aiver is ava ilable only to individuals who have disabilities like those of the Commun ity Plaintiffs. Thus, the failure of the Defendants to enroll the Community Plaintiffs in the DD Wa iver cannot be by reason of their disabilities when the waiver program exists to serve precis ely those people with such disabilities. Nor have the Community Plaintiffs alleged any discrim ination by the Defendants that can in any way be a ttributed to their disabilities. The injury of not being enrolled in the DD W aiver does not fall with in the zone of inte rests of the ADA unless and until it results in unjustified institutionalization.
Importantly, the ADA is only violated by exclusion from programs or services, denial of benefits, or discrim ination, when the se things are by reason of disability . 42 U.S.C. § 12132. The Supreme Court has held that “undue institutionalization qualifies as discrimination ‘by reason of ... disabilit y.’” Olmstead v. L.C. ex rel. Zim ring, 527 U.S. 581, 597 (1999). The Suprem e Court has not extended this inte rpretation to exclusions from community based programs that do not result in undue institutionalization. In other
7

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words, when an ind ividual is ex cluded from participation in or denied the b enefits of services, programs, or activities of a public entity or otherwise discriminated by a public entity, and is not as a result unduly institutionalized, he or she would s till have to prove that such exclusion, deni al, or discrim ination was by reason of his or her disability in order to fall under the protection of the ADA.
III. Conclusion If the injury alleg ed by the Comm unity Plaintiffs is unjustif ied institutionalization, Community Plaintiffs lack standing beca use they have not actually suffered this injury and are not imm inently threatened with suffering it. If the injury alleged by the Community Plaintiffs is the simple failure of the Defendants to enroll them in the DD Waiver, such injury does not fall within the zone of interests of the ADA. Any such denial would not be because of the Co mmunity Plaintiffs’ disability, and therefore does not confer standing. Rega rdless of which alleged injury is used by the Court in its analysis, the Community Plaintiffs lack sta nding to bring their claim s under the A DA. Therefore, Count Three of the Am ended Complaint should be dism issed with respect to Plaintiffs Michelle Congden, Amanda Pivinski, Joshua Woodward, and Allysa Ferraro.
Respectfully submitted this 13th day of September 2011.
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Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 9 of 11

/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

/s/ Beverly H. Smith

Beverly H. Smith

Assistant General Counsel

Fla.

Bar No. 612571

Agency for Health Care Administration

2727 Mahan Drive, Building MS #3

Tallahassee, Florida 32308

(850) 412-3630; (850) 921-0158 Fax

/s/ Debora E. Fridie Debora E. Fridie Assistant General Counsel Fla. Bar No. 0886580 Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5407 (850) 412-3630; (850) 921-0158 Fax

Counsel for Secretary Elizabeth Dudek

/s/ Michael Palecki Michael Palecki (FBN: 223824) General Counsel Marc Ito (FBN: 61463) Agency for Persons with Disabilities 4030 Esplanade Way, Ste. 380 Tallahassee, Florida 32399-0950 Tel: (850) 922-2030 Fax: (850) 410-0665
Counsel for Director Michael Hanson

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Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 10 of 11
/s/ Timothy D. Osterhaus Scott D. Makar (FBN 709697) Solicitor General Timothy D. Osterhaus (FBN 0133728) Deputy Solicitor General Office of the Attorney General The Capitol, Pl-01 Tallahassee, Florida 32399-1050 (850) 414-3681 telephone (850) 410-2672 facsimile timothy.osterhaus@myfloridalegal.com
/s/ Charles M. Trippe Charles M. Trippe, Jr. (FBN 69760) General Counsel Jesse Panuccio (FBN 31401) Deputy General Counsel Executive Office of the Governor 400 South Monroe Street, Room 209 Tallahassee, FL 32399-6536 (850) 488-3494 telephone (850) 922-0309 facsimile Counsel for Governor Rick Scott
10

Case 4:11-cv-00116-RS-CAS Document 64 Filed 09/13/11 Page 11 of 11 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 all attorneys of record, on this the 13th day of September 2011.
/s/ Andrew T. Sheeran Andrew T. Sheeran
11

 
 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

JOANNA DYKES, et al.,

Plaintiffs, vs.

CASE NO. 4:11cv116/RS-WCS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, et al.,

Defendants. __________________________________

ORDER

Before me are the Defendants’ Motion to Dismiss for Lack of Standing (Doc. 64)

and Plaintiffs’ Response in opposition (Doc. 70).

Standard of Review Rule 12(b)(1) of the Federal Rules of Civil Procedure requires dismissal of claims for “lack of subject-matter jurisdiction.” See FED. R. CIV. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) may assert either a factual attack or a facial attack to jurisdiction. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citations omitted). A factual attack challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings. Matters outside the pleadings, such as testimony and affidavits, are considered. Id. In a facial attack, on the other hand, the court examines whether the complaint has sufficiently alleged subject-matter jurisdiction

and construes the complaint in the light most favorable to Plaintiffs and accepts all facts alleged in the complaint as true. Id; Trimble v. United States Soc. Sec., 2010 U.S. App. LEXIS 4811, at *8 (11th Cir. 2010).
Background This is a purported class action by individuals with developmental disabilities who are eligible to receive Medicaid. (Doc. 30, ¶ 1). Plaintiffs receive care in one of two settings: in intermediate care facilities for the developmentally disabled (“ICF/DD”) or in the community under Florida’s Home and Community Based Services Waiver program (“DD Waiver”). Plaintiffs contend that Defendants have a lengthy waitlist for the DD Waiver program. The waiting period may exceed more than five years in some cases. Id. at 2-3. Plaintiffs also contend that Defendants have limited the funding for the DD Waiver program which results in a portion of institutionalized patients never being enrolled. Plaintiffs allege that Defendants’ management of the DD Waiver program violates the reasonable promptness provisions of the Social Security Act (“SSA”), 42 U.S.C. § 1396(a)(8), violates the “Freedom of Choice” provisions of the SSA, 42 U.S.C. § 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2), violates the Americans with Disabilities Act and the Rehabilitation Act, 42 U.S.C § 12101 et seq, 29 U.S.C §794, and is a violation of Plaintiffs Due Process rights under the Fourteenth Amendment.

Analysis Article III of the United States Constitution limits the role of the federal judiciary to resolving cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559560, 112 S. Ct. 2130, 2136 (1992). Standing is a core component of this Article III requirement that must be established by litigants before a court may exercise jurisdiction over their claims. Id. at 560, 112 S. Ct. at 2136. The doctrine of standing requires (1) that Plaintiff must have suffered an injury-in-fact; (2) that there must be a causal connection between the injury and the conduct complained of; and (3) that it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision. Id. at 560-561, 112 S. Ct. at 2136. In order for this court to have jurisdiction over the claims, at least one named plaintiff must have standing for each of the claims. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 53, n2 (2006) (“The presence of one party with standing is sufficient to satisfy Article III's case-orcontroversy requirement.”). To support standing, general factual allegations of injury resulting from the Defendants’ conduct may suffice at the pleading stage. On a motion to dismiss, the court "presume[s] that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, at 561, 112 S. Ct. at 2137. Here, Defendants claim that several of the plaintiffs lack standing because they have not suffered an injury-in-fact. The “community plaintiffs,” Ms. Congden, Ms. Pivinski, Mr. Woodward, and Ms. Ferraro, reside in their communities and are not institutionalized. Defendants claim that the “possibility of institutionalization” is not

sufficient to confer standing. (Do c. 64, p.3). Defendants are correct that the injury-infact must be both “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Fla. Wildlife Fed'n., Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296 (11th Cir. 2011) (citation omitted). The community plaintiffs’ injuries are arguably more hypothetical than those plaintiffs who are institutionalized. However, because those non-community plaintiffs have standing, the fate of the community plaintiffs is better suited for a later stage--the class certification process.
The Motion to Dismiss (Doc. 64) is DENIED.

ORDERED on October 3, 2011.

/S/ Richard Smoak RICHARD SMOAK UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

JOANNA DYKES, et al.,
Plaintiffs, vs.
ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, et al.,
Defendants. __________________________________

CASE NO. 4:11cv116/RS-WCS

Before me are Plaintiffs’ Motion for Class Certification (Doc. 61) and Defendants’ Response in Opposition (Doc. 69).
Standard of Review Plaintiffs seek class certification under Fed. R. Civ. P. 23. “Rule 23 does not set forth a mere pleading standard.” Rather, a party seeking class certification must “affirmatively demonstrate [their] compliance with the Rule -- that is, [they] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (citation omitted). "[It] sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Id. “Certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule

23(a) have been satisfied.” Id.
Background This is a purported class action by individuals with developmental disabilities who are eligible to receive Medicaid. (Doc. 30, ¶ 1). Plaintiffs receive care in one of two settings: in intermediate care facilities for the developmentally disabled (“ICF/DD”) or in the community under Florida’s Home and Community Based Services Waiver program (“DD Waiver”). Plaintiffs contend that Defendants have a lengthy waitlist for the DD Waiver program. The waiting period may exceed more than five years in some cases. Id. at 2-3. Plaintiffs also contend that Defendants have limited the funding for the DD Waiver program which results in a portion of institutionalized patients never being enrolled. Plaintiffs allege that Defendants’ management of the DD Waiver program violates the reasonable promptness provisions of the Social Security Act (“SSA”), 42 U.S.C. § 1396(a)(8), violates the “Freedom of Choice” provisions of the SSA, 42 U.S.C. § 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2), violates the Americans with Disabilities Act and the Rehabilitation Act, 42 U.S.C § 12101 et seq, 29 U.S.C §794, and is a violation of Plaintiffs Due Process rights under the Fourteenth Amendment.
Analysis To meet their burden, Plaintiffs must first demonstrate four perquisites— numerosity, commonality, typicality, adequacy. Rule 23(a) provides: “A class may sue . . . on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.”
Second, the proposed class must satisfy at least one of the three requirements of
Rule 23(b). Plaintiffs rely on Rule 23(b)(2), which applies when “the party opposing the
class has acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declarative relief is appropriate respecting the class as a
whole.”
Threshold Issue: Standing
Article III of the United States Constitution limits the role of the federal judiciary
to resolving cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-
560, 112 S. Ct. 2130, 2136 (1992). Standing is a core component of this Article III
requirement that must be established by litigants before a court may exercise jurisdiction
over their claims. Id. at 560, 112 S. Ct. at 2136. The rules allowing the creation of class
actions cannot be used to circumvent this most fundamental requirement. “No class may
be certified that contains members lacking Article III standing.” Denney v. Deutsche
Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). See also Conigliaro v. Norwegian Cruise
Line, 2006 U.S. Dist. LEXIS 95576, *14-15 (S.D. Fla. 2006) (quoting Oshana v. Coca-
Cola Bottling Co., 225 F.R.D. 575, 580 (N.D. Ill. 2005) (“The proposed class description

'"must not be so broad as to include individuals who are without standing to maintain the action on their own behalf.”).
Here, the proposed class includes “all individuals meeting the level of care requirements for placement in an ICF/DD who are enrolled on the DD Waiver waitlist…” (Doc. 61, p.2). This class includes “subclasses of those who (1) receive services in institutions or institutional-like settings and (2) reside in the community without services.” Id.
The second subclass (“community plaintiffs”) identified by Plaintiffs does not run afoul of standing jurisprudence. The “injuries” suffered by those who currently reside in the community are sufficient to confer standing. Plaintiffs Congden, Pivinski, and Woodward are in this subclass and reside in their communities. They are not institutionalized.
The doctrine of standing requires (1) that Plaintiff must have suffered an injury-infact; (2) that there must be a causal connection between the injury and the conduct complained of; and (3) that it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision. Lujan, at 560-561, 112 S. Ct. at 2136.
A. Injury-in-Fact The injury-in-fact must be both “(a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical.” Fla. Wildlife Fed'n., Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296 (11th Cir. 2011) (citation omitted). Plaintiffs need not wait for an injury to occur. Rather, an allegation of future injury satisfies this prong of standing so long as the alleged injury “is likely to occur, and likely to do so

immediately.” 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003) (citing Lujan, 504 U.S. at 560, 112 S. Ct. at 2136).
Defendants assert that the community plaintiffs lack standing because they are “neither institutionalized nor at imminent risk of being institutionalized.” (Doc. 69, p.7). Defendants miss the mark. It is not the threat of institutionalization which is a cognizable injury. Rather, the “waiting lists for enrollment on the DD Waivers where [the community plaintiffs] languish for years without services” are the injury.
Plaintiffs have standing because their claims are grounded in statute. Plaintiffs interpretation of the reasonable promptness provisions of the Social Security Act, 42 U.S.C. § 1396(a)(8), the “Freedom of Choice” provisions of the SSA, 42 U.S.C. § 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2), and the Americans with Disabilities Act and the Rehabilitation Act, 42 U.S.C § 12101 et seq, 29 U.S.C §794 are the subject of this dispute. Whether they succeed or fail will be determined on the merits of their arguments. Defendants contend that Plaintiffs have no valid cause of action under the SSA or the ADA, and therefore have no standing. (Doc. 69, p.6-7). Whether Plaintiffs’ cause of action is valid will be determined outside the standing context.
Plaintiffs are incorrect in their standing analysis to the extent that they claim that the threat of institutionalization confers standing. Plaintiffs claim that the community plaintiffs are on the “continuum of [the] path to institutionalization.” (Doc. 61, p.12). For the community plaintiffs, the threat of institutionalization is speculative and is not relevant.

Class Certification A. Commonality and Typicality The commonality and typicality requirements of Rule 23(a) tend to merge. Both
serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551, n.5 (2011) (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157-158, n. 13 (1982).
“Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.” Id. This does not mean merely that they have all suffered a violation of the same pro-vision of law. Rather, “what matters to class certification . . . is not the raising of common 'questions' -- even in droves -- but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Id. (citation omitted).
Here, the main obstacle to class certification is the disparity between the two subclasses: the institutional plaintiffs are far different from the community plaintiffs.
Most problematic is that the law treats institutional and community plaintiffs differently. That is, undue institutionalization qualifies as discrimination under the ADA. Olmstead v. L. C. by Zimring, 527 U.S. 581, 597-598 (1999). But, it is unclear whether exclusion from community based programs qualifies as discrimination. Thus, the

institutionalized plaintiffs articulate a recognized cause of action. But, the community
plaintiffs will have more difficulty arguing their case. Answering the uncertainly in the
community plaintiff’s ADA claim will be central to their case, but inconsequential to the
institutional plaintiffs. This difference in established law is fatal to creating a class which
contains both groups.
A second problem that arises between the two groups is how Florida law treats
them. FLA. STAT. § 393.065(5) establishes the priority of those seeking waiver services:
Except as otherwise directed by law, beginning July 1, 2010, the agency shall assign and provide priority to clients waiting for waiver services in the following order:
(a) Category 1, which includes clients deemed to be in crisis as described in rule.1
(b) Category 2, which includes children on the wait list who are from the child welfare system with an open case in the Department of Children and Family Services' statewide automated child welfare information system.
(c) Category 3, which includes, but is not required to be limited to, clients:
1. Whose caregiver has a documented condition that is expected to render the caregiver unable to provide care within the next 12 months and for whom a caregiver is required but no alternate caregiver is available;
2. At substantial risk of incarceration or court commitment without supports;
3. Whose documented behaviors or physical needs place them or their caregiver at risk of serious harm and other supports are not currently available to alleviate the situation; or
4. Who are identified as ready for discharge within the next year from a state mental health hospital or skilled nursing facility
1 Florida Administrative Code § 65G-1.047 defines the crisis category. It includes the following: first priority as those who are homeless or living in an unsafe environment; second priority as those who exhibit behaviors that may create life-threatening situations or bodily harm; third priority as those who have caregivers in extreme duress and are not able to care.

and who require a caregiver but for whom no caregiver is available.
(d) Category 4, which includes, but is not required to be limited to, clients whose caregivers are 70 years of age or older and for whom a caregiver is required but no alternate caregiver is available.
(e) Category 5, which includes, but is not required to be limited to, clients who are expected to graduate within the next 12 months from secondary school and need support to obtain or maintain competitive employment, or to pursue an accredited program of postsecondary education to which they have been accepted.
(f) Category 6, which includes clients 21 years of age or older who do not meet the criteria for category 1, category 2, category 3, category 4, or category 5.
(g) Category 7, which includes clients younger than 21 years of age who do not meet the criteria for category 1, category 2, category 3, or category 4.Within categories 3, 4, 5, 6, and 7, the agency shall maintain a wait list of clients placed in the order of the date that the client is determined eligible for waiver services.
The community plaintiffs in the lawsuit are in category six or higher. They suffer
injuries different and distinct from the institutional plaintiffs. For example, Plaintiff
Pivinski is a 24-year old woman who resides in the community and maintains a job.
(Doc. 30, ¶57-58). She lives with her parents, and because of her parents’ age and living
situation, Pivinski will “never meet the requirements for any of the preceding categories
other than Category 6for several decades.” Id. at ¶61. Plaintiffs contend that Pivinski
will never be enrolled in the DD Waiver program, and that her caregivers must “evict
their daughter before they die or become incapable” in order to make her eligible. 2 Id. at
2 Plaintiff contends that only those in category one (the crisis category) are enrolled in the DD Waiver. (Doc. 30, ¶9).

¶59. They contend that this situation places Pivinski in “imminent risk of institutionalization.” Id. at ¶64.
Similarly, Plaintiff Woodward lives at home with his father and stepmother. He is 22-years old. He “does not need much assistance with activities of daily living.” Id. at ¶ 65-67. Woodward is in Category 6 or 7.
Plaintiff Young, on the other hand, is an institutional plaintiff. She currently resides in a nursing home and suffers from paralysis and other orthopedic impairments. Id. at ¶41-44. Young requires medical assistance with a gastric tube and tracheotomy. Young is a Category 3.
Here, the hurdle to class certification is that the reasoning why the community plaintiffs are not enrolled in the DD Waiver program is different from the institutionalized plaintiffs. The institutionalized plaintiffs are not enrolled in the waiver program because they “will never qualify for crisis (categorization) because of their placements in the institution.” (Doc. 30, ¶176). That is, the fact that they are in the institution precludes their ability to get off the waitlist. Not so for the community plaintiffs. The reason they are not in the DD Waiver program is much more fact specific. The crisis category, the one from which Defendants allegedly fill the slots for the waiver program, includes individuals whose “current caregiver is in extreme duress and is no longer able to provide for the applicant’s health and safety because of illness, injury, or advanced age.” FLA ADMIN. CODE §65G-1.047. The institutionalized plaintiffs who are in an ICF/DD will never fall into this category. However, many of the community plaintiffs will eventually find themselves in a situation where their caregivers are unable

to care for them. The two groups are on separate and distinct paths when it comes to
categorization under Florida statute. The facts which keep them from the waiver
program are different, making the combination into one class inappropriate.
A third problem is that the injuries suffered by the institutional plaintiffs are
different from the community plaintiffs. The institutional plaintiffs are stuck in ICF/DD
wanting to be in the community under the DD Waiver program. The community
plaintiffs are in the community, want to remain there, and also want to be enrolled in the
DD Waiver program. They fear institutionalization, but are not institutionalized. The
harm of not being in the DD Waiver program has different consequences for the two
classes of plaintiffs. The community plaintiffs are largely where they would be if they
were in the program. For them, the issue is mainly about resources. The institutional
plaintiffs are in a completely different situation. The issue for them isn’t so much funding as it is the actual setting.3
Finally, there is a conflict of interest between the two groups. The institutional
plaintiffs, many of whom are in higher priority categories, have a different agenda than
the community plaintiffs, many of whom are in a lower priority category. For example,
given that there are a fixed number of slots in the waiver program, the institutionalized
plaintiffs and those in higher priority would want to take those slots. They are invested in
keeping the status quo of prioritization. The lower priority candidates, like the
3 Plaintiffs may argue that the risk of institutionalizing makes the two classes sufficiently common. However, the possibility of institutionalization is mere speculation. For example, while Plaintiffs portray plaintiff Pivinski’s situation as extraordinarily dire, Piviniski’s categorization belies this claim. Because she is in category six, her caregivers must be younger than 70 years of age, and the caregivers do not have conditions which are expected to render them unable to provide care within the next 12 months. Fla. Stat. § 393.065(5). While the choice to keep her at home, rather than put her in an institution may be a difficult one, Pivinski and the others have not demonstrated that they are in imminent risk of institutionalization

community plaintiffs, have an interest in changing the prioritization regime. Their interest is to jump ahead or at least supplement higher prioritized candidates on the waitlist. For example, the community plaintiffs may argue that the length of time on the waitlist should be a critical factor in considering who gets into the DD Waiver program. The institutional plaintiffs and other higher priority candidates could disagree and contend that physical condition and status as institutionalized individuals should be a priority. In short, both groups are competing for the same scarce resources.
This simple illustration demonstrates why an approach combining the community plaintiffs and institutional plaintiffs into one class is untenable. A Category Six individual is far different from a Category Three individual. Numerous factors are considered when making these determinations: the age and health of caregivers; the age and condition of the individual; the effect of time on these conditions; the resources of the individual and her caregivers; and whether the individual is enrolled and will graduate from school. The interests of those in lower prioritization categories may be diametrically opposed to those in higher prioritization categories.
Plaintiffs’ Motion for Class Certification (Doc. 61) is DENIED.

ORDERED on October 14, 2011.

/S/ Richard Smoak RICHARD SMOAK UNITED STATES DISTRICT JUDGE

 
 Case 4:11-cv-00116-RS-CAS Document 124 Filed 05/02/12 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

JOANNA DYKES, et al.

Plaintiffs,

v. ELIZABETH DUDEK, et al.
Defendants. ___________________________________/

Case No.4:11-CV-116-RS-CAS

DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The Defendants, Elizabeth Dudek, in her offici al capacity as Secretary of the Agency for Health Care Administration (AHCA), and Michael Hansen, in his official capacity as Director of the Florida Agency for Persons with Disabili ties (APD), by and through undersigned counsel, file this Statement of Undisputed Material Fa cts In Support of Defendants' Motion for Summ ary Judgment pursuant to Rule 56.1 of t he Local Rules for the United States District Court for the Northern District of Florida.
UNDISPUTED MATERIAL FACTS 1. Plaintiff Michelle Congde n was en rolled on th e DD W aiver1 through the Crisis Rule 2
(Rules 65G-1.046 and 65G-1.047, Florida Administrative Code) and is currently enrolled on the DD Waiver. (Exhibit A).

1 In this Statement of Undisputed Material Facts, the term “DD Waiver” or “Waiver” will refer collectively to all the Home and Community Based Services Medicaid Waivers administered by APD. APD currently administers five waivers: Tier 1, Tier 2, Tier 3, Tier 4 and iBudget Florida. Sections 393.0661(3) and 393.0662 Fla. Stat. Florida is currently in the process of transitioning all wavier clients from the Tier waivers to iBudget Florida.
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2. Plaintiff Michelle Congden was determ ined to be in crisis by APD on the basis that she was a danger to herself or others. (Exhibit A).
3. Plaintiff Joanna Dykes was enrolled on th e DD W aiver from an Interm ediate Care Facility for the Developm entally Disabled (ICF/DD) through the aut hority provided to AHCA and APD in the proviso language of Laws of Florida 2011-69, Specific Appropriation 206. (Exhibit B).
4. Plaintiff Loretta Da vis was enrolled on the DD W aiver from an Interm ediate Care Facility for the Developm entally Disabled (ICF/DD) through the aut hority provided to AHCA and APD in the proviso language of Laws of Florida 2011-69, Specific Appropriation 206. (Exhibit B).
5. APD, in consultation w ith AHCA, has developed and im plemented a plan to m ove all eligible individuals currently residing in ICF/DDs to the DD W aiver by the end of Fiscal Year 2012/2013. To date, APD has identified 14 eligible individuals who wish to move. APD has so far transferred 3 of them, includi ng Plaintiffs Dykes an d Davis. APD plans to transition the rem aining eligible individuals who wish to move before June 30, 2013. (Exhibit C).
6. APD has never failed to provide services to, or assist with acquiring services for, a person determined to be in “crisis” according to the Crisis Rule. (Exhibit D).
7. The majority of individuals enrolled on th e DD Waiver remain on th e Waiver for the duration of their lives. (Exhibit D).
2 In this Statement of Undisputed Material Facts, the term “Crisis Rule” will refer to Rules 65G1.046 and 65G-1.047, Florida Administrative Code.
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8. There are no vacancies on the DD Waiver except for those persons deemed to be in crisis according to the Crisis Rule, foster child ren turning eighteen (18) years of age, and persons ordered on to the DD Waiver by a court. (Exhibit E).
9. In 2011, the Florida Legislature provi ded AHCA for Fiscal Year 2011/2012 an administrative mechanism to move to the DD wa iver any eligible individuals residing in ICF/DDs and transfer the asso ciated funds to APD’s approp riation for the DD W aiver. Laws of Florida 2011-69, Specific Appropriation 206.
10. In 2012, the Florida Legislature provi ded AHCA for Fiscal Year 2012/2013 an administrative mechanism to move to the DD wa iver any eligible individuals residing in ICF/DDs and transfer the asso ciated funds to APD’s approp riation for the DD W aiver. Laws of Florida 2012-118, Specific Appropriation 222.
11. In each of the DD W aivers, except for the Tier 4 W aiver, Appendix B-3, Sectio n f. i s titled “Selection of Entrants on the Waiver” and describes the process by which vacancies are determined on these waivers. (Exhibits I and J). It provides in relevant part: When the level of funding appropriated by the Florida Legislature provides funding for additional vacancies on the waiver, individuals shall be added to the waiver in the following order unless otherwise specified in the Appropriations Act for the current fiscal year. 1. Individuals determined by assessment using the Crisis Identification Tool to be in crisis shall have first priority for services. 2. Individuals with valid Court Orders or diversions from programs for persons adjudged incompetent to stand trial. 3. Children on the wait list who are from the child welfare system with an open case in the Department of Children and Family Services’ statewide automated child welfare information system.
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4. All other individuals shall be considered for enrollment on the waiver in the date order in which they are listed on the statewide waitlist, beginning with the earliest dates.3
12. In the Tier 4 W aiver, Appendix B-3, Section f. is titled “Selection of Entrants o n the
Waiver” and describes the process by which vacancies are determ ined on the Tier 4
Waiver. (Exhibits I and J). It provides in relevant part:
In accordance with legislative language, individuals on the waiting list may be enrolled on the FSL Waiver through Crisis determination due to funding limitations.

13. Amanda Pivinski has not applied f or enrolment on the DD W aiver through the Crisis

Rule. Amanda Pivinkski’s Response to Interrogatories (Exhibit F), Answer #4.

14. Amanda Pivinski is not able to specify a time when her caregivers are expected to no

longer be able or willing to care for her. Amanda Pivinkski’s Response to Interrogatories

(Exhibit F), Answer #14.

15. Amanda Pivinski intends to apply for crisis enrollm ent on the DD Waiver when her

caregivers are no longer available or expected to be unavailable to care for her. Amanda

Pivinkski’s Response to Interrogatories (Exhibit F), Answer #15.

16. Joshua Woodward has not applied for en rollment on the DD W aiver through the Crisis

Rule. Joshua Woodward’s Response to Interrogatories (Exhibit G), Answer #3.

17. Joshua Woodward is not able to specify a time when his caregivers are expected to no

longer be able or willing to care for hi

m. Joshua Woodward’s Response to

Interrogatories (Exhibit G), Answer #13.

3 This procedure has since been modified by the Waitlist Priority Schedule provided by Section 393.065, Florida Statutes.
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18. Joshua Woodward intends to apply for crisis enrollm ent on the DD Waiver when his caregivers are no longer available or expected to be unavailable to care for him . Joshua Woodward’s Response to Interrogatories (Exhibit G), Answer #14.
19. AHCA has the authority to transfer funds from the Medicaid nursing hom e line item appropriation to the several hom e and community-based waivers which are based upon a nursing facility level o f care, including th e Aged and Disabled Adult W aiver, “to transition the greatest number of appropriate eligible benefi ciaries from skilled nursing facilities to community-based alternatives in order to maximize the reduction in Medicaid nursing home occupancy.” Chapter 2011-69, La ws of Florida, Specific Appropriation 208.
20. Heather Young resides in a nursing home. Amended Complaint, ¶ 43. 21. To be eligible for the Aged and Disabled Adult Waiver, one m ust be eligible for a
nursing facility level of care. Florida Medicaid Aged and Disabled Adult Waiver Service Coverage and Limitations Handbook (“A/DA Ha ndbook”), at 2-2 – 203, incorporated by reference in Rule 59G-13.030, Florida Administrative Code. 22. Heather Young m eets the eligibility require ments for the Aged and Disabled Adult Waiver because she resides in a nursing hom e and therefore qualifies to m eet a nursing facility level of care. See 20 and 21 above. 23. AS of Septem ber 9, 2011, Heather Young wa s not receiving any be havioral health services in the nursing hom e. Heather Young’s Response to Interrogatories (Exhibit H), Answer #14.
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Respectfully submitted this 2nd day of May 2012.

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

BY:
Florida Assistant

/s/ Debora E. Fridie Debora E. Fridie
Bar No. 0886580 General Counsel
2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 (850) 412-3641 (Phone) (850) 921-0158 (Fax)

BY: /s/ Beverly H. Smith

Beverly H. Smith

Assistant General Counsel

Fla.

Bar No. 612571

Agency for Health Care Administration

2727 Mahan Drive, Building MS #3

Tallahassee, Florida 32308

(850) 412-3630; (850) 921-0158 Fax

AGENCY FOR PERSONS WITH DISABILITIES
BY: /s/ Marc Ito Marc Ito (FBN: 61463) Agency for Persons with Disabilities 4030 Esplanade Way, Ste. 380 Tallahassee, Florida 32399-0950 Tel: (850) 922-2030 Fax: (850) 410-0665

6

Case 4:11-cv-00116-RS-CAS Document 124 Filed 05/02/12 Page 7 of 7 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 all attorneys of record, on this the 2nd day of May 2012.
/s/ Marc Ito Marc Ito
7

 
 Case 4:11-cv-00116-RS-CAS Document 123 Filed 05/02/12 Page 1 of 25

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

JOANNA DYKES, et al.

Plaintiffs,

v. ELIZABETH DUDEK, et al.
Defendants. ___________________________________/

Case No.4:11-CV-116-RS-CAS

DEFENDANTS’ MOTION FOR SUMMARY JUDGEMENT

The Defendants, Elizabeth Dudek, in her offici al capacity as Secretary of the Agency for

Health Care Adm inistration (AHCA), and Mich ael Hansen, in his official cap acity as

Director of the Florida Agency for Persons with Disabilities (A PD), by and through

undersigned counsel, hereby file this Motion fo r Summary Judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure a nd Local Rule 56.1. The Defendants state the

following as the basis for this motion:

LEGAL STANDARD The Defendants move for summary judgment on the basis that there is no genuine dispute as to any material fact in the case at bar and th at Defendants are en titled to a judg ment of dismissal as a matter of law. Rule 56 of the Feder al Rules of Civil Pro cedure provides that “T he court shall grant summary judgment if the m ovant shows that th ere is no genuine dispute as to any m aterial fact and that the m ovant is entitled to judgm ent as a m atter of law.” “The party m oving for summary judgment has the burde n of showing the absen ce of a g enuine issue as to any

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material fact.” Bingham, Ltd. V. U.S., 724 F.2d 921, 924 (11th Cir. 1984). Even if a movant

sustains its burden of showing the absence of a genuine dispute as to any material fact, the

facts must still furnish an adequate basis f or the court to ap ply the proper legal principles in

resolve a difficult question of law. Id.

“Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd., v.

Zenith Radio Corp., 106 S.Ct. 1348, 1356, 475 U.S. 574, 587 (1986).

MEMORANDUM OF LAW

Plaintiffs bring four claims in this action:

1) Reasonable Promptness. Plaintiffs alle ge that Defendants have failed to provide

Medicaid services with reasonable promptness, pursuant to Title XIX of the Social Security

Act, 42 U.S.C. § 1396a, 42 C.F.R. § 435.930 and 42 U.S.C. § 1983. These claim

s fail

because the Medicaid Act only applies to peo ple on the waitlist to the extent th ere are

available vacancies on the wavier. As will be shown below, there are no available vacancies

on the waiver.

2) Freedom of Choice. Plaintiffs alle ge Defendants have failed to provide the

freedom of choice services, pursuant to the Social Security Act, § 1915(c)(2), as amended, 42

U.S.C. § 1396n(c)(2), and 42 U.S.C. § 1983. Th ese claims fail because the Medicaid Act

only applies to people on the waitlist to th e extent there are availab le vacancies on the

wavier. As will be shown below, there are no available vacancies on the waiver.

3) Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act

(Rehab Act). Plaintiffs allege Defendants are in violation of the ADA and the Rehab Act,

pursuant to the doctrine outlined in Olmstead v. Zimmering , 527 US 581 (1999). These

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claims fail because the Plaintiffs already liv ing in the com munity have failed to sh ow they are “at risk” of institutionalization, and for the one remaining plaintiff living in an institution, exclusion from the DD Waiver is not the cause of her institutionalization. Other Medicaid Waivers are available that she has chosen not to use.
4) Due Process. Plaintiffs allege Defendants failed to provide notice to Plaintiffs of their right to a hearing upon their placement into a waitlist priority category, pursuant to U.S. Const. Amend XIV § 1., 42 U.S.C. § 1396a(a)(3), 42 C.F.R. § 431.220, § 431.206. These claims fail because the Due Process Rights as sociated with the waitlist priority categories apply to people on the waitlist only to the extent there are available vacancies on the wavier. As will be shown below, there are no available vacancies on the waiver.
Summary of Argument Plaintiffs Michelle Congden, Joanna Dykes and Loretta Davis were enrolled on the DD Waiver1 after the comme ncement of this action. (Affidavits from Terri McGarrity and Jolie LaTourelle, attached as Exhibits A and B respectively). T heir claims are therefore m oot. One exception to the mootness doc trine, however, is reserved for claims associated with injuries that are capable of repetition yet evading review. Honig v. Doe , 484 U.S. 305, 318, 108 S.Ct. 592, 601 (1988). As w ill be shown below, any alleged injuries suffered by Plaintiffs Dykes and Davis are not capable of repetition because the Florida Legislature has since intervened and provided an adm inistrative mechanism and f unds to m ove to the DD waiver any individuals residing in Interm ediate Care Facilities f or the Developmentally
1 In this Motion, the term “DD Waiver” or “Waiver” will refer collectively to all the Home and Community Based Services Medicaid Waivers administered by APD. APD currently administers five waivers: Tier 1, Tier 2, Tier 3, Tier 4 and iBudget Florida. Sections 393.0661(3) and 393.0662 Fla. Stat. Florida is currently in the process of transitioning all wavier clients from the Tier waivers to iBudget Florida.
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Disabled (“ICF/DD”). Plainti ffs Dykes and Davis were enro lled on the DD waiver via this mechanism. See Laws of Florida 2011-69, Speci fic Appropriation 206 and 2012-118, Specific Appropriation 222. Through this mechanism, AHCA may transfer to the DD waiver any resident of an ICF/DD that otherwise qualifies for the DD waiver.
Likewise, any alleged injury suffered by Plaintiff Congden is not capable of repetition because the DD waiver allows enro llment for any applicant deemed to be in crisis according to the crisis procedures in Rules 65G-1.046 and 65G-1.047, Florida Administrative Code (the “Crisis Rule”). Ms. Congden was adm itted to the waiver af ter she applied via the cr isis rule and was determ ined to be in cr isis. The Cris is Rule was designed to enroll applicants in situations like Ms. Congden’s, and APD has neve r failed to either provide services to, or assist with acquiring services fo r, an applicant determ ined to be in crisis under the Crisis Rule. (Affidavit of Denise Arnold, attached as Exhibit D).
The remaining plaintiffs are Joshua Woodward, Amanda Pivinski and Heather Young. All three rem aining plaintiffs have br ought claims under the Medicaid Act and the Americans with Disabilities Act (ADA). This court noted in its order denying Defendants’ Motion to Dism iss, that the Med icaid Act cl aims are actionable only insofar as there are “available slots” on the waiver. (Doc. 60). The term “slots” is not u sed in the wa ivers at issue in th is case, but the sam e concept applie s. The DD W aiver refers to “vacancies.” Enrollment on the DD waiver is d etermined by whether there are av ailable funds for the needs of th e particular applicants at is sue. A ppendix B-3, Section f . of each of the DD Waivers is titled “Sele ction of Entrants on the Waiver.” (Exhibits I and J). It provides in relevant part:
When the level of funding appropria ted by the Florida Legislature provides funding for add itional vacancies on the waiver, ind ividuals shall
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be added to the waiver in the following order unless otherwise specified in the Appropriations Act for the current fiscal year.
1. Individuals determined by assessm ent using the Crisis Identification Tool to be in crisis shall have first priority for services.
2. Individuals with valid Court Orders or diversions from programs for persons adjudged incompetent to stand trial.
3. Children on the wait list who a re from the ch ild welfare system with an open case in the D epartment of Children and Family Services’ statewide a utomated child welf are information system.
4. All other individuals shall be considered for en rollment on the waiver in the date o rder in which they are listed on the statewide waitlist, beginning with the earliest dates.2
Rather than have “ava ilable slots,” the DD Waiver enrolls individuals when “funding
appropriated by the Florida Legislature provides funding for additional vacancies on the waiver.”
Since vacancies are determined by funding, there will never be a fixed number of “slots,” as that
term might imply, because different individuals have different needs. Rather, when funds
become available, APD must first determine the needs of the applicants at issue. Only after that
review may APD determine the number of individuals to be added to the waiver, or the num ber
of available “vacancies.” A particular am ount of funds may be s ufficient to fund many
applicants with m inimal needs or only a few applicants with intense needs, depending on the
applicants at that particular tim e. As such, it is im possible for Defendants to know, outside the
context of a particular group of a pplicants, a pr ecise number of available “slots.” Rather,
vacancies are determ ined by an ana lysis of a pa rticular pool of applicants, their n eeds and the
available funds. The Waiver itself, in Appendix B-3, Section f., along with the Crisis Rule and
2Due to its amendment history as the former Family and Supported Living Waiver (FSL), Appendix B-3, Section f. of the Tier 4 Waiver describes the process in slightly different language, but is substantively the same for purposes of this Motion. It provides in relevant part: “In accordance with legislative language, individuals on the waiting list may be enrolled on the FSL Waiver through Crisis determination due to funding limitations.” (Exhibit J).
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the Waitlist priority Statute (§ 393.0 65 Fla. Stat.) determine for APD which particu lar applicant pool to examine at any given time and with any given amount of available funds.
Claims under the M edicaid Act are actionab le only to the exten t that plaintiffs are “eligible” for Medicaid services. Bryson v. Shumway , 308 F.3d 79, 88 (1st Cir. 2002), Susan J. v. Riley, 616 F. Supp. 2d 1219 (M.D. Ala. 2009). As noted by this court, plaintiffs are only eligible for services to the extent there are avai lable “slots.” (Doc. 60). In the language of the DD Waiver, plaintiffs are only eligible for the wa iver to the extent there are “vacancies” on the DD Waiver. Attached as Exhibi t E is an affidavit from Marta Hardy, APD Deputy Director of Administration, in which she asserts that APD does not currently have any vacancies on the Waiver except for those individuals found to be in crisis, for foster children turning eighteen (18) years of age, and f or those individuals ordered to the waive r by the courts. As will be shown below, because none of Plaintiffs Woodward, Pivi nski or Young have been determ ined to fall into one of those th ree categories, they are no t “eligible” for the Medicaid services and their Medicaid claims must fail.
Under the s ame eligibility ana lysis, the Due Pr ocess claims must also f ail. However, although the Due Process claim s fail, APD nevert heless provides all applicants placed on the waitlist notice of their right to a Medicaid Fair Hearing and a hearing under Chapter 120, Florida Statutes, to challenge their placement on the waitlist. (Affidavit of Terri McGarrity, attached as Exhibit A). Furthermore, all waitlisted individuals may request a reconsideration of their waitlist priority category at any tim e, regardless whet her APD has taken any ne w State action. Rule 65G-11.003(3) Florida Administrative Code.
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The final claims of Plaintiffs Woodward, Pivinksi and Young fall under the ADA. Each plaintiff alleges that Defendants violated the A DA by not enrolling them on the DD W aiver, which plaintiffs allege is a violation of Olmstead v. Zimmering, 527 US 581 (1999).
Both Plaintiffs Woodward and Pivinski reside in the community and will be referred to as the “Community Plaintiffs.” The r emedy Olmstead offers is rem oval from an institu tion and placement in the community. T he Community P laintiffs, however, already reside in th e community. Some Courts have allowed Olmstead claims to proceed when plaintiffs are not in an institution if plaintiffs can show they are “at ris k of institutionalization.” 3 However, as will be shown below, the DD waiver is unique and disti nguishable from the cases adopting this doctrine because Florida has adopted the Crisis Rule. Fo r individuals already residing in the comm unity, the criteria Florida uses to determine whether someone is in cris is are at least coex tensive with any analysis to determine whether someone is “at risk of institutionalization. ” In some cases, it is broader. Under the Crisis Rule, when APD determines whether to enroll an individual on the Waiver, it analyses more than the mere risk of institutionalization. Though the two analyses may frequently overlap, the Crisis Rule is broader, incorporates more variables, and therefore reaches a greater number of individuals than a mere risk assessment for institutionalization. As will be shown below, because the Crisis Ru le casts a wi der net than a mere analysis of the Community Plaintiffs’ “risk of institutionalization,” it is not possible for the Community Plaintiffs to be at risk of institutionaliza tion and at the sam e time not be el igible for enrollm ent under the Crisis Rule.
3 See Fisher v. Oklahoma Health Care Auth., 335 F. 3d 1175 (10th Cir. 2003) and Cruz v. Dudek, 2010 WL 428595 (S.D. Fla. 2010) (Here the issue was raised in the context of preliminary injunction).
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Plaintiff Heather Young resides in a nur sing home. As shown below, Ms. Young’s exclusion from the DD W aiver is not the cause if her institutionalization. The Florida Legislature has provided AHCA with an adm inistrative mechanism4 to transfer Ms. Young, and others residing in nursing hom es, to the Medica id waivers which ar e tied to a nu rsing facility level of care. Nursing home residents have the choice to either enroll on one of these waivers or to remain in their current setting. I. The claims of Plaintiffs Congden, Dykes and Davis are Moot because these Plaintiffs
have been enrolled on the DD Waiver and the alleged injuries are not capable of repetition while evading review. Plaintiffs Congden, Dykes and Davis will be referred to as the “Plaintiffs on the Waiver.” Their claims are moot because they have already been enrolled on the DD Waiver. “A case becomes moot ‘when the issues presented are no longer ‘live’ or the parties lack a cognizable interest in the outcom e.” Reich v. Occupational Safety and Health Review Comm’n, 102 F.3d 1200, 1201 (11th Cir. 1997), citing Powell v. McCor mack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-1951 (1969). However, “[t] he Supreme Court has recognized an exception to this principle in certain cases where injunctiv e relief is sought.” Reich v. Occupational Safety and Health Review Comm’n, 102 F.3d 1200, 1201 (11th Cir. 1997), citing County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379 (1979). Unlike civil remedies, which addr ess past v iolations, injunctive relief is intend ed to address “ongoing or future violations.” Reich , 120 F.3d at 1202. “A claim for injunctive relie f may become moot if: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur and (2) in terim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. at 1201.
4 Laws of Florida 2011-69, Specific Appropriation 208
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Plaintiffs Congden, Dykes and Pivinski have all been enrolled on the DD W aiver. (Affidavits of Terri McGarrity and Jolie LaTou relle, Exhibits A and B respectively). Because these plaintiffs are now enrolled on the waiver, it is no longer possible that they will go without DD Waiver services. T he interim event of en rolling these Plaintiffs on the DD Waiver has completely and irrevocably eradicated any effects of the alleged injuries.
An otherwise m oot case m ay remain justiciable if the allege d unlawful conduct is “capable of repetition, yet evading review.” Honig v. Doe, 484 U.S. 305, 318, 108 S.Ct. 592, 601 (1988).
“[A] case m ay be considered within the ‘c apable of repetition, yet evading review’ exception only where: ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expira tion, and (2) there was a reasona ble expectation that the sam e complaining party would be subjected to the sam e action again.” Nat. Br oadcasting Co., Inc. v. Communications Workers of America, 860 F.2d 1022, 1023 (11th Cir. 1988), citing Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348-49 (1975).
The standard of “capable of repetition, yet ev ading review” requires that the threat of future injury is more than “conjectural” or “hypothetical.” Bourgeois v. Peters, 387 F.3d 1303, 1309 (11th Cir. 2004). For the Plaintiffs on the Waiver, any future removal from the DD Waiver is pure conjecture as it depends on future m edical and behavioral needs. Now that they are on the Waiver, their chances of leavin g the W aiver are the sa me as for any other en rollee on the Waiver. If individuals situated like the P laintiffs on the W aiver were granted standing for an Olmstead Claim, then the group of individuals with standing would also include individuals who have never lived a day in an institution, who have never lived a single day after the age of three off the waiver, and who will never face any risk of institutionalization. History indicates tha t a
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majority of Wavier enrollees are on the Waiver for life. (Affidavit of Denise Arnold, Exhibit D).
In short, allowing standing for the Plaintiffs on the Waiver for the Olmstead claims would confer
standing to every other enro llee on the waiver. This is precisely the type of situation the
“conjectural” and “hypothetical” test from Bourgeois seeks to avoid.
Furthermore, there are facts particular to each of the Plaintiffs on the W aiver that render
any possible injury suffered from a hypothetical future exclusion from the DD Waiver unlikely.
A. Michelle Congden was enrolled on the Waiver via the Crisis Rule and the existence of the Crisis Rule renders it impos sible that she could face the same circums tances in the future without being eligible for the Waiver
At the time this action was filed, Ms. Congden alleged in the Amended Class Action
Complaint (Doc. 30, ¶ 50 and 55-56), that she lived in the community with her Sister, and that: Because of CONGDEN’s age, the a ge of her ca regiver, and her living si tuation, it would be decades before she met the requirements for any of t he preceding [waitlist] categories other than Category 6 and will, therefore, never move up in the priority for enrollment to the waiver. CONGDEN is relegated to the v ery end of a waitlist without a c hance of p rogression, giving rise t o a subclass of perso ns who are precluded from participating in and receiving services other than through segregated, isolated, institutional placem ent . . . Without the day program , personal care assistance, and behavior analysis that CONGDEN seeks from the DD Waiver, her health, safety and welfare will declin e. This places CONGDEN at risk of institutionalization.
After this action was filed, Ms. Congden was determined to be in cris is through APD’ s crisis
procedure and was enrolled on the Waiver. (Exhibit A).
Florida’s Crisis Rule provides for enrollment on the Waiver for any one determined to be in
crisis. The Crisis Rule provides three levels of crisis:
(1) “First priority crisis category: The applicant i s currently homeless, living in a homeless shelter, or living with relatives in an unsafe e nvironment . . .” 65G-1.047(4), Florida Administrative Code.
(2) “Secon d priority crisis category: The applicant exhibits behaviors that, without provision of imm ediate waiver services, may create a life-th reatening situation for the applicant or others, or that m ay result in bodily harm to the applicant or others requiring
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emergency medical care from a physician . . .” 65G-1.047(5), Florida Administrative Code. (3) “Third priority” crisis category: The applicant’s current care giver is in extreme duress and is no longer able to prov ide for the applicant’s health and safety because of illness, injury, or advanced age. The applicant needs immediate waiver services to remain living with the car egiver or to r elocate to an alternative living arrangem ent . . .” 65G1.047(6), Florida Administrative Code. Ms. Congden was determ ined to be a danger to hers elf or others and in crisis under the second priority crisis category. (Exhibit A). Even if this court determined that it was not hypothetical or conjectural that Ms. Congden may one day again live in the com munity, not enrolled on the waiver, and experience the sam e circumstances she experienced at the tim e of her crisis application, the Cris is Rule would b e available to re-enroll her on the DD Waiver. The Crisis Rule successfully enrolled Ms. Congden on the Waiver the first time, and there is no reaso n the Crisis Rule would reach a d ifferent result the second tim e, or a third tim e, if Ms. C ondgen applied for enrollm ent under the same circumstances. In sho rt, the Crisis Rule work ed exactly th e way it was design ed to work: it identified an individual who was a danger to herself or others, a nd enrolled her on the waiver to alleviate that danger. The crisis r ule makes it im possible for Ms. Congden, or any other individual sim ilarly situated, to face the same medical, behavioral and life circumstances as Ms. Congden’s again but yet be ineligible for the DD. W aiver. Ms. Congde n’s alleged injury is th erefore not capable of repetition . She is enrolled on the DD W aiver and is receiving Medicaid services. (Exhibit A). Her claims are therefore moot. B. Joanna Dykes and Loreta Davis w ere enrolled on the w aiver from an
ICF/DD through a m echanism created by the Florida legislature and the existence of this mech anism renders it impossible that they could face the same circumstances in the future without being eligible for the Waiver. Like Ms. Congden, Plaintiffs Dykes and Davis were both enrolled on the waiver after
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the commencement of this action. The Florida Legislature, in both the 2011 and 2012 sessions, provided AHCA the authority to transfer eligible ICF/DD residents to the DD Waiver along with the appropriated funds for each transferred resident. L aws of Florida 2011 -69, Specific Appropriation 206 and 2012-118, Specific Appropriation 222. The proviso language from Laws of Florida 2011-69, Specific Appropriation 206, provides as follows:
From the funds in Specific Appr opriations 206 and 207 [the ICF/DD appropriation], the Agency for Health Ca re Administration, in consultation with the Agency for Persons with Disabilities, is authorized to transfer funds, in accordance with the provisions of chapter 216, Florida Statutes, to Specific Appropriation 231 for the Developm ental Disabilities Hom e and Comm unity based waiver, Tier 1 through 3; Family Supported Living Waiver (Tier 4);and the Developmental Disabilities Individual Budget Waiver; to transition the greatest number of appropriated eligible beneficiaries from ICF/DD to comm unity based alternatives in order to maximize the reduction in Medicaid ICF/DD occupancy. Priority for the use of thes e funds will be given to the planning and services areas with the greatest potential for transition success. The 2012 Appropriations Act grants AHCA the sam e authority with slightly altered language for Fiscal Year 2012/2013. Laws of Florida 201 2-118, Specific Appropri ation 222. APD and AHCA have developed and im plemented a plan to identify all waive r eligible individuals in ICF/DDs who wish to enroll on the DD Wavier and transfer them to the DD wavier by the end of fiscal year 2012/2013. So far, APD has identified a total of fourteen indi viduals who reside in ICF/DDs, wish to transfer to the DD W aiver and are eligible for the DD waiver. Through this program, APD has tran sitioned Plaintiffs Dykes a nd Davis, along w ith one other indiv idual. The current plan is to transi tion the rem aining identified i ndividuals before June 30 2013. (Affidavit from Vicki Draughon, attached as Exhibit C). Because the Legislature has prov ided AHCA the authority to transfer ICF/DD residents to the W aiver, and AHCA and APD have devel oped and im plemented a plan to move all the eligible residents from the ICF/DDs to the DD W aiver, it is not possible fo r Plaintiffs Dykes and
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Davis, nor any others sim ilarly situated, to return to an ICF/DD a nd yet not be eligible to return to the waiver. Any injury associated with residing in and ICF/DD while being excluded from the DD Waiver is therefore not capable of repetition. Though AHCA and APD plan to com plete the transition by the end o f Fiscal Year 2012/201 3, this cou rt has ind icated an unwillingn ess to speculate on whether the Florida Legislature will renew proviso language each year, 5 and should therefore not consider any argum ent or conjecture requiring an a ssumption that the proviso will not be renewed.
The claims of Plaintiffs Dykes and Davis should be dismissed as moot because they have both been enrolled on the DD Waiver, and the Fl orida Legislature intervened to permit AHCA and APD to im plement a trans ition plan th at makes it impossible f or any f uture eligible individual to reside in an ICF/DD without access to the DD Waiver if they wish to move.
The remaining Plaintiffs are Joshua W oodward, Amanda Pivinski and Heather Young. They bring claims under the Medicaid Act, Due Process and the Americans with Disabilities Act (ADA). These claims should be rejected and will be addressed separately.
II. The Medicaid claims and Due Process claims fail because the Medicaid Act and Due Process apply only to plaintiffs eligible for Medicaid services, and there are no available vacancies on the Waiver, causing the remaining plaintiffs to be “ineligible” for Medicaid Services
Claims under the M edicaid Act are actionab le only to the extent that plaintiffs are “eligible” for Medicaid services. Bryson v. Shumway , 308 F.3d 79, 88 (1st Cir. 2002), Susan J. v. Riley, 616 F. Supp. 2d 1219 (M.D. Ala. 2009). As noted by this court, plaintiffs are only eligible for services to the extent there are available “slots.” (Doc. 60). Likewise, th is court also noted that the Due Process claim s turn on whethe r there are available “s lots.” (Doc. 60). As explained above, in the language of the DD waiver, plaintiffs are onl y eligible for the W aiver to
5 Lee v. Dudek, Case 4:08-cv-00026-RH-WCS (N.D. Florida 2012)
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the extent there are “vacancies” on the DD Waiver. The number of vacancies is determined by an analysis of the available funds and the needs of a particular applicant pool at a particular tim e. (See pages 4-6 above and Appendix B-3, Section f. of any of the DD W aivers, attached a s Exhibit J).
Attached as Exhibit E is an affidavit fr om Marta Hardy, APD Dep uty Director for Administration, in which she affirm s that APD does not currently have any vacancies on the Waiver except for those individuals found to be in crisis, for foster children turning eighteen (18) years old, and for those individua ls ordered to the waiver by th e courts. Because none of the plaintiffs have demonstrated, nor alleged, that they fall into one of those three categories, they are not “eligible” for the DD Waiver. Since the Me dicaid Act applies only insofar as a plaintiff is eligible for Medicaid services, and the current plaintiffs are not eligible for Medicaid services, the Medicaid Act does not apply and their Medicaid Act claims should be denied.
Under the s ame eligibility ana lysis, the Due Pr ocess claims must also f ail. However, although the Due Process claim s fail, APD nevert heless provides all applicants placed on the waitlist notice of their right to a Medicaid Fair Hearing and a hearing under Chapter 120, Florida Statutes, to challenge their placement on the waitlist. (See Affidavit of Terri McGarrity, attached as Exhibit A). Further more, all w aitlisted individuals may request a reconsideration of their waitlist priority category at any tim e, regardless whether APD has taken any new State action. Rule 65G-11.003(3) Florida Administrative Code.
III. The ADA Claims of the Co mmunity Plaintiffs fail because the Crisis Rule ma kes it impossible for an individual to be “at risk of institutionalization” but not be in crisis as determined by the Crisis Rule Some courts have allowed Ol mstead claims to proceed by plaintiffs resid ing in the
community if they can show they a re “at risk o f institutionalization.” See Fisher v. Oklahoma
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Health Care Auth., 335 F. 3d 1175 (10th Cir. 2003) and Cruz v. Dudek , 2010 WL 428595 (S.D.
Fla. 2010) (Here the issue was raised in the contex t of preliminary injunction). Fl orida’s Crisis
Rule, however, distinguishes the facts of this cas e from the other cases that have adopted this
doctrine. For the community plaintiffs and others similarly situated, it is not possible for them to
become “at risk of institutionalization” without at the sam e time becoming eligible for
enrollment on the DD Waiver through the Crisis Rule.
As mentioned above, the Crisis Rule perm its enrollment on the DD W aiver for any
applicant determined to be homeless, a danger to oneself or others, or have a caregiver that is no
longer able to m aintain the applicant’s health or safety, and the Rule pr ovides a laundry list of
“indicia” for the agency to consider when m aking this determination. Fu rthermore, applicants
denied crisis enrollment are afforded a Fair Hearing under the Medicaid Act and Chapter 120,
Florida Statutes, wherein a neutral hearing officer determines findings of fact and conclusions of
law based on the “indicia.” The list of “indicia” in the Crisis Rule is s o vast it bea rs quoting in
full. Subsections (4), (5) and (6) of Rule 65G-1.047, Florida Administrative Code, are reprinted
in full here:
(4) “First priority” crisis category: The applicant is currently homeless, living in a homeless shelter, or living with relati ves in an unsafe environm ent. In such cases, the f ollowing indicia, supported by credible evid ence, are relevant to a crisis determination in this category:
(a) Without immediate provision of waiver services, the health and safety of the applicant are at risk;
(b) The applican t has no shelter avai lable and needs e mergency placement by the Agency or another state agency;
(c) Alternative funding is not availa ble for other placement and services to the applicant;
(d) The applicant temporarily is staying with friends or relatives but residence is not expected to last more than several weeks;
(e) The applicant’s caregiver has no legal obligation to provide shelter to the applicant and the caregiver’s commitment to shelter the applicant is low;
(f) Factors affecting the applican t’s safety in the curren t setting include risk of physical abuse of the applicant or risk of insufficient supervision and support;
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(g) The hom e has insuf ficient room to shelter the applicant, or the applicant must share a room in a n inappropriate living arrangem ent, based on the ages, genders, and conditions of the persons sharing the room;
(h) The applicant’s desire for p lacement creates a reason able expectation that the applicant will be cooperative with placement;
(i) Violence or illegal ac tivities within the applicant’s cur rent living environment by the applicant or others ha s required the intervention of local o r state law enforcement authorities;
(j) Complaints of neglect, exploitati on, or abuse of the applicant to Protective Services, or other adverse environm ental conditions affecting the applicant, have been investigated and confirm ed pursuant to Chapter 39, Part II, or Section 415.104, F.S.;
(k) The applicant requires services of greater intensity.
(5) “Second priority” crisis category: The applican t exhibits behaviors that, without provision of immediate waiver services, may create a life-threatening situation for the applicant or others, or that may result in bodily har m to the applicant or others requiring em ergency medical care from a physician. In such cases, the f ollowing indicia supported by credible ev idence are relevant to a determination of crisis under this category:
(a) Without immediate waiver services, the health and safety of the applicant or others in the household is at risk;
(b) The applicant’s injury to self or others is frequent or intense; (c) The applicant or others are at risk for serious injury or permanent damage; (d) There is docum entation of medical treatment for the applic ant’s injury to self or others; (e) No other supports are available to address the applicant’s behaviors; (f) Other attempted behavioral assessments and interventions have proven ineffective; (g) The relative ages, sexes, and sizes of the aggressor and the subjects of aggression place the subjects of aggression at risk of injury; (h) The caregiver has insufficient ability to control the applicant; (i) The ages or disabilities of the applicant or caregiver exacerbate the problems; (j) Violence or illegal activity within the applicant’s current living environment by the app licant or others has req uired the intervention of local or state law enforcement authorities; (k) Complaints of neglect, exploitati on, or abuse of the applicant, or other adverse environmental conditions affecting the applicant have been investigated by Protective Services and confirm ed pursuant to Chapter 3 9, Part II, o r Section 415.104, F.S.; (l) The applicant requires services of greater intensity.
(6) “Third priority” crisis catego ry: The ap plicant’s current caregiver is in extreme duress and is no longer able to provide for the app licant’s health and safety because of illness, injury, or a dvanced age. The applicant needs immediate waiver services to remain living with the caregiver or to relocate to an alte rnative
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living arrangement. In such cases, the fo llowing indicia, supported by credible evidence, are relevant to a determination of crisis in this category:
(a) Without immediate provision of waiv er services, the app licant’s health and safety are at imminent risk;
(b) Other potential caregivers, such as another parent, stepparent, brother, sister or other relative or pers on, are unavailable or are unwilling or unable to provide care;
(c) The caregiv er’s physical or m ental condition p revents the pro vision of adequate care;
(d) The caregiver is deceased, about to expire, or permanently disabled; (e) The caregiver’s age impairs the caregiver’s ability to provide sufficient care to the applicant; (f) The caregiver cannot provide sufficient care because of the age or size of the applicant, or the physical, functional, or behavioral demands of the applicant; (g) The services provided by the careg iver are lim ited in am ount, duration, or frequency, rendering the applicant semi-dependent or totally dependent; (h) The caregiver’s economic situation is unstable and unlikely to im prove as a result of the care-giving demands of the applicant; (i) The c aregiver’s obligations to the needs of other de pendents prevent the caregiver from providing the applicant with adequate care, or the caregiver’s obligation of care to th e applicant places other dependents at risk of in sufficient care; (j) Violence or illegal ac tivities within the applicant’s cur rent living environment by the applicant or others ha s required intervention by local or state law enforcement authorities; (k) Complaints of neglect, exploitati on, or abuse of the applicant, or other adverse environmental conditions affecting the applicant have been investigated by Protective Services and confirm ed pursuant to Chapter 3 9, Part II, o r Section 415.104, F.S.; (l) The individual requires services of greater intensity.
Not only do the indicia cover any situation leading to a “risk of institutionalization,” they
reach a much broader class of applicants for en rollment than would a m ere risk assessment for
institutionalization. At any rate, the Community Plaintiffs have not demonstrated, nor have they
alleged, that they are currently in a living situ ation that puts them at a risk of institutionalization
yet would not permit them to enroll on the waiver via the Crisis Rule. The community plaintiffs
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cannot make such an allegation because they have not applied for enrollm ent on the waiver through the Crisis Rule,6 at least not yet.
The Community Pla intiffs’ answers to interro gatories indicate they are not currently at risk of institutionalization but plan to apply f or crisis enrollment in the future if they become at such a risk, which is exactly the type of situation the Crisis Rule is designed to address, as it did in the case of Plaintiff Michelle Congden described above. Each Community Plaintiff’s answers to interrogatories will be addressed in turn.
First, Plaintiff Amanda Pivinski has never applied for crisis enrollm ent.7 In one answer she listed a num ber of events that h ave occurred since January 1, 2010 that have reduced the ability of he r caregivers to c are for her. 8 W hen asked when she exp ects her careg ivers to n o longer be able or willing to care for her, she replied, “I don’t know.” 9 When asked w hether her caregivers intended to have Plain tiff reside in an ins titution before Novem ber 1, 2011, she answered, “No.”10 However, when asked whether she intends to apply for crisis enrollment if her caregivers are no longer available or are expected to be unavailable, she answered “yes.”11
Plaintiff Joshua W oodward offered similar answers. First, he never applied for crisis enrollment.12 He also provided a number of events occurring since January 1, 2010 that have reduced the ability of his careg ivers to care for him, all of which were m edical events.13 When asked to describe each event expected to occur before December 31, 2012 that would reduce his
6 See answers to Interrogatories for both Amanda Pivinski and Joshua Woodward, Exhibits F and G. 7 Answer to Interrogatory 3, Exhibit F. 8 Answer to Interrogatory 12, Exhibit F. 9 Answer to Interrogatory 14, Exhibit F. 10 Answer to Interrogatory 16, Exhibit F. 11 Answer to Interrogatory 15, Exhibit F. 12 Answer to Interrogatory 3, Exhibit G. 13 Answer to Interrogatory 10, Exhibit G.
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natural or community supports, he provided a num ber of expected medical events and a loss of income.14 He further asserted that the poor health of one of his caregivers caused him to not have a caregiver cu rrently available to him.15 But when asked to indicate when he expects his caregivers to be unavailable to continue pr oviding care to him , he answered, “Unknown.” 16 When asked to indicate whether he or his caregivers intended to have him reside in an institution prior to November 1, 2011, he answ ered, “Not at this tim e.”17 When asked to indicate whether he or his caregivers intended to have him reside in an institu tion prior to March 1, 2012, he answered, “Not at th is time.”18 However, when asked whether he intends to apply for crisis enrollment if his caregivers ar e no longer available or are expe cted to be unavailable, he answered “yes.”19
As summarized above, both Community Plaintiffs indicated that their most likely path to a risk of institutionalization is the f uture inability of their careg ivers to care f or them. Also, neither they nor their caregivers have any intenti on of placing them in an institution in the near future. Rather, both Plaintiffs intend to app ly for crisis enrollment in th e event that the caregivers are no longer able to care for them, thus avoiding institutionalization.
Not only ar e the Cris is Rule’s ind icia of crisis at le ast coexstensive with any r isk assessment for institutionalization, if not broader, the Community Plaintiffs them selves have indicated they intend to use the Crisis Rule in the f uture for just such a purpose, that is, to avoid institutionalization.
14 Answer to Interrogatory 11, Exhibit G. 15 Answer to Interrogatory 12, Exhibit G. 16 Answer to Interrogatory 13, Exhibit G. 17 Answer to Interrogatory 15, Exhibit G. 18 Answer to Interrogatory 16, Exhibit G. 19 Answer to Interrogatory 14, Exhibit G
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The facts of the Community Plaintiffs com bined with th e existence of the Cr isis Rule clearly distinguish the case at bar from other cases allowing plaintiffs in the community to bring an Olmstead claim. In Cruz , at 13, the court described the plain tiffs’ risk of institutionalization this way:
In the case at bar, it is clear that Plai ntiffs are at risk of institutionalization if they do not receive the services available under the TBI/SCI W aiver Program. Both Plaintiffs in the case at b ar are individuals with disabilities who are eligible to and do receive services from Florida's Medicaid program. Each Plaintiff desires to and is able to live in their own home with adequate support services. However, because of the way Flo rida administers its Medicaid program, they are at risk of institutionalization. Plaintiff De La Torre has recen tly lost his caregiver, and without additional community-based serv ices from Florida's Medicaid plan, h e will have to enter a nu rsing home to recei ve the services h e needs to survive. Plaintiff Cruz is also at r isk of institutionalization, as dem onstrated by his repeated hospitalizations in recent months due to the fact that he does not receive adequate services from Florida's Medicaid plan.
If Plaintiff De La Torre in Cruz had been on the waitlist for the DD Waiver, he would not have been at risk of institutionalization because the Crisis Rule perm its enrollment on the waiver o f individuals who have “recently lost a caregiver,” as allowed by the Third Priority crisis category. 65G-1.047(6), Florida Adm inistrative Code. Likewise, if Plai ntiff Cruz had been on the DD Waiver waitlist, his repeated hospital visits caused by not receiving ade quate service would not have put him at risk of institu tionalization because one of the idicia f or every crisis category is whether “the individual requires services of greater intensity.” 65G-1.047(4)-(6), Florida Administrative Code.
In summation for the Community Plaintiffs, they cannot be considered at risk of institutionalization for three reasons:
First, a mere reading of the Crisis Rule indicates it is at least co extensive with any risk analysis for institutionalization, and Denise Arnold, Deputy Direct or of Programs, has provided
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an Affidavit affirming that APD has never failed to provide services to, or assist with acquiring services for, an applicant determined to be in Crisis in accordance with the Crisis Rule. (Exhibit D). If the crisis rule is coextens ive with the risk assessment, then it is n ot possible for someone to be at risk of institutionalization and yet be ineligible for waiver enrollment.
Second, the Community Plaintiffs themselves indicate they intend to use the Crisis Rule in the future in exactly this fa shion, that is, to avoid instituti onalization if the circum stances so require.
Third, at least in the few applicable cases in the District Courts of the Eleventh Circuit, the doctrine allowing plaintiffs in the community to bring Olmstead claims has only been applied in fact situations distinguishable from the case at bar, because the DD Waiver allows enrollm ent through the Crisis Rule, while the other waivers did not.
Because the Community Plainti ffs cannot be considered at risk of institutionalization, their Olmstead claims must fail.
IV. The ADA Claim of Heather Young fails because her exclusion from the DD Waiver is not the cause of her institutionalization. Plaintiff Heather Young reside s in a nursing facility. Am ended Complaint, ¶ 43. She
alleges that, because sh e does no t qualify for cr isis enrollment onto the DD W aiver, “she will remain segregated in th e nursing facility, never realizing the benefit of co mmunity services and the integration mandate of the ADA. ” Id., ¶ 48. This is not the case. While Plaintiff Young is currently institutionalized, she is n ot institutionalized for lack of DD W aiver services, as ther e are other community-based options availabl e to her. As such, Plaintiff Young’s institutionalization is not a violation of the ADA.
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In addition to the DD W aiver, which is tied to the level of care for adm ission to an
ICF/DD, Florida’s Medicaid program includes several home and comm unity-based waiver
programs which are designed to meet the needs of eligible recipients who require a nursing
facility level of care. Am ong these is the Aged and Disabled Adult Waiver program (“A/DA
Waiver”), which is administered by the Department of Children and Families for recipients ag ed
18 to 59 years old. The A/DA Waiver “provides ho me and community-based services to eligible
recipients who, but for the provision of these services, would require nursing facility placement.”
Florida Medicaid Aged and Disabled Adult Waiver Service Coverage and Limitations Handbook
(“A/DA Handbook”), at 1-2, inco rporated by reference in Rule 59G-13.030, Florida
Administrative Code. The purpose of the A/DA Waiver is “to promote, maintain, and restore the
health of eligible elde rs and adu lts with dis abilities and to m inimize the ef fects of illness and disabilities in order to delay or prevent institutionalization.” Id.20
Pursuant to a legislative budget proviso, AHCA has the authority to transfer funds from
the Medicaid nursing hom e line item appropriati on to the several hom e and community-based
waivers which are based upon a nursing facility le vel of care, including the A/DA W aiver, “to
transition the greatest number of appropriate eligible beneficiaries from skilled nursing facilities
20 The services available in the A/DA Waiver are: Adult Companion Services, Adult Day Health Care Services, Attendant Care Services, Caregiver Training and Support – Individual or Group, Case Aide, Case Management, Chore Services, Chore Services–Enhanced, Consumable Medical Supplies and Consumable Medical Supplies–Enhanced, Counseling Services, Emergency Alert Response System–Installation and Maintenance, Escort Services, Financial Assessment and Maintenance Risk Reduction Services, Home Delivered Meals, Home Modification Services, Home Manager and Homemaker Services, Nutritional Risk Reduction Services, Occupational Therapy Services, Personal Care Services, Pest Control Services–Initial Visit and Maintenance, Physical Risk Reduction Services, Physical Therapy Services, Rehabilitation Engineering Evaluation Services, Respiratory Therapy Services–Evaluation and Treatment, Respite Services– In-Home and Facility-Based, Skilled Nursing Services, Specialized Medical Equipment and Supplies, and Speech-Language Pathology Therapy Services. See A/DA Handbook, at 2-17 – 218.
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to community-based alternatives in order to maximize the reduction in Medicaid nursing hom e occupancy.” Chapter 2011-69, Laws of Florida, Specific Appropriation 208. As Judge Hinkle found in Lee v. Dudek , Case 4:08-cv-00026-RH- WCS (N.D. Florida 2012) this “proviso’s practical effect [is] to make unlimited funds available for transition.” (D.E. 372, at 10). There is thus no budgetary or financial barrier to tr ansitioning a nursing home resident to the A/DA Waiver.21
Heather Young m eets the e ligibility requirements for the A/DA Waiver. See A/DA Handbook, at 2-2 – 2-3. Heather Young m eets the cr iteria to be determ ined disabled by the Social Security Adm inistration. Given that sh e resides in a nursing home, she meets nursing facility level of care. As such, she meets the eligibility requirements for the A/DA Waiver. See A/DA Handbook, at 2-2 – 2-3. Thus, she could tran sition from the nursing facility in which she currently resides to a community setting and receive services through the A/DA Waiver.
Plaintiff Young has no t transitioned to the A/D A Waiver because she wishes to receive services through the D D Waiver in a group hom e facility licensed un der Chapter 393, Florida Statutes.22 Plaintiff Young is entitled to her preferences, but the lack of DD Waiver services is not causing her to be in stitutionalized in a nur sing home. W hile the DD W aiver may provide some services that are not available in the A/ DA Waiver, such as behavi oral health services, these are services that are also not available in nursi ng facilities. Indeed, in her response to Defendants’ First Set of Interrogatories, attached as Exhibit H, Plaintiff Young adm itted that as of September 9, 2011, she was not receiving any behavi oral health services in the nursing hom e. See Exhibit H, Answer No. 14. If Plaintiff Yo ung is not receiv ing in the nursing hom e those
21 The proviso language was renewed in the budget for the 2012-2013 fiscal year .See Laws of Florida 2012-118, Specific Appropriation 224. 22 While the DD Waiver is available in a group home facility, the A/DA Waiver is not.
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additional services which are available in the DD Waiver but not in the A/DA Waiver, the lack of the DD W aiver cannot be the reason she is institutionalized. Her nursing hom e institutionalization is thus irre levant for the purposes of her ADA allegations. Only if she were forced out of the nursing hom e and into an ICF/DD – or at least was p ut in significant risk of being so forced – would the lack of the DD W aiver services constitute the cause of her institutionalization. Lacking ICF/DD institutionalization or significant risk of the same, Plaintiff Young has no valid ADA claim of unjustified institutionalization here. She has pled neither.

V. Conclusion For the foregoing reasons, the Defendants respectfully request that this court order summary judgment in favor of the Defendants. Respectfully submitted this 2nd day of May 2012.
AGENCY FOR HEALTH CARE ADMINISTRATION

BY: Fla.
BY: Florida Assistant

/s/ Andrew T. Sheeran Andrew T. Sheeran
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
/s/ Debora E. Fridie Debora E. Fridie
Bar No. 0886580 General Counsel
2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 (850) 412-3641 (Phone) (850) 921-0158 (Fax)

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Case 4:11-cv-00116-RS-CAS Document 123 Filed 05/02/12 Page 25 of 25

BY: /s/ Beverly H. Smith

Beverly H. Smith

Assistant General Counsel

Fla.

Bar No. 612571

Agency for Health Care Administration

2727 Mahan Drive, Building MS #3

Tallahassee, Florida 32308

(850) 412-3630; (850) 921-0158 Fax

AGENCY FOR PERSONS WITH DISABILITIES

BY: /s/ Marc Ito Marc Ito (FBN: 61463) Agency for Persons with Disabilities 4030 Esplanade Way, Ste. 380 Tallahassee, Florida 32399-0950 Tel: (850) 922-2030 Fax: (850) 410-0665

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 all attorneys of record, on this the 2nd day of May 2012.
/s/ Marc Ito
Marc Ito

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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 1 of 27

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JOANNA DYKES; LORETTA DAVIS, by and through her next mend, Trish Mlekodaj; HEATHER YOUNG, by and through her next mend Robert Stark; MICHELLE CONGDEN; AMANDA PIVINSKI; JOSHUA WOODWARD; and DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

CASE NO.: 4:11-CV-116-RS-CAS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MIKE HANSEN in his official capacity as Director of the Florida Agericy for Persons with Disabilities,

Defendants.
------------------------~/
PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT

The Plaintiffs, Joanna Dykes ("Dykes"), Loretta Davis ("Davis"), Heather Young

("Young"), Michelle Congden ("Congden"), Amanda Piviniski ("Pivinski"), Joshua

Woodward ("Woodward"), and Disability Rights Florida, Inc., d/b/a Disability Rights

Florida (the "P&A"), by and through their undersigned attorneys, move for entry of

summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the

grounds that there are no genuine issues of material fact, and based upon the undisputed

facts, the Plaintiffs are entitled to judgment as a matter oflaw. In support oftheir motion,

the Plaintiffs submit herein their memorandum of law.

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STANDARD OF REVIEW

The Court may grant summary judgment if the Plaintiffs show there is no genuine

dispute as to any material fact and they are entitled to judgment as a matter of law based

upon the pleadings, depositions, answers to interrogatories, and admissions on file,

together with affidavits, ifany. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An

issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v.

Northern Crossarm Co., Inc., 357 F. 3d 1256, 1259 (1Ith Cir. 2004) (citations omitted).

The court must review the record, and all its inferences, in the light most favorable to the

.

I

l:,

1','

nonmovingpaliy. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The '

opposition to a motion for summary judgment

may not rest upon the mere allegations or denials in its pleadings. Rather, its responses, either by affidavits or otherwise as provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. A mere "scintilla" of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party."

Walkerv. Darby, 911 F. 2d1573, 1576-77 (11th Cir. 1990) (citing Anderson v. Liberty

Lobby, 477 U.S. 242 (1986». "Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial. '"

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation

omitted).

UNDISPUTED FACTS

Pursuant to Northern District Local Rule 56.1, the Plaintiffs' Statement of

Undisputed Facts, which has been filed contemporaneously with this motion, is

incorporated by reference as if fully set forth herein. References to the Exhibits in the

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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 3 of 27
Plaintiffs' Statement of Undisputed Facts are designated herein as "Dkt. No. XXX, Ex. (letter)."
MEMORANDUM OF LAW I. FLORIDA'S MEDICAID PROGRAM
a. Medicaid Statutory and Regulatory Framework Medicaid is ajoint federaVstate program authorized by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v. The Medicaid program allows states to furnish persons, including those with developmental disabilities, "rehabilitation and other
7·
services to help such families and individuals attain or retain capability for independeri6e or self care." 42 U.S.C. § 1396-1(2).
. The Medicaid state plan must identify the required and optional health care services that are available through the state Medicaid program. Once an optional service is identified in the state plan, the service must be provided consistent with all federal requirements. See Doe 1-13, by and through Doe, Sr. 1-13 v. Chiles, 136 F. 3d 709, 721 (11 th Cir. 1998) (and citations therein). Placement in an Intermediate Care Facility for persons with developmental disabilities ("ICFIDD") is an optional Medicaid service that Florida has elected to provide where level of care placement criteria are met. See § 409.906(15), Fla.Stat. Thus, placement and receipt of services in an ICF/DD are entitlements. See, e.g., Doe 1-13,136 F. 3d at 719 (enforceable right).
An ICFIDD client must receive a continuous active treatment program, including aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services
[...J, that is directed toward-
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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 4 of 27
(i) The acquisition ofthe behaviors necessary for the client to function with as much self determination and independence as possible; and
.(ii) The prevention or deceleration of regression or loss of current optimal functional status."
42 C.F.R. § 483.440(a)(I). See also Fla. Admin. Code R. 59G-4.171(4). Medicaid Waivers and Developmental Disabilities Service Delivery System Medicaid home and community-based services waiver programs are authorized
by 42 U.S.C. § 1396n(c) and governed by 42 C.F.R. §§ 441.300-.310. Developmental Disability Waiver programs ("DD Waiver") enable states to provide home and community-based services to individuals with developmental disabilities who would otherwise need the ICFIDD level of care. A state's DD Waiver program must comply'" with all federal Medicaid requirements that are not specifically waived.
States apply to the Centers for Medicare & Medicaid Services ("CMS") for permission to operate a home and community based waiver. The waiver must be approved before it can be effective. The "Application for a § 1915(c) Home & Community Based Waiver [version 3.5], Instructions, Technical Guide and Review Criteria" (Release Date January 2008) (Dkt. No. 125, Ex. "Q") is the most recent federal manual on the application process, requirements, forms, definition of terms for the application for, renewal, or amendment of a Medicaid waiver program.
Florida's Developmental Disability Waiver Program Florida has declared "the greatest priority shall be given to the development and implementation of community-based services that will enable individuals with developmental disabilities to achieve their greatest potential for independent and
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productive living, enable them to live in their own homes or in residences located in their own communities, and permit them to be diverted or removed from unnecessary institutional placements." § 393.062, Fla. Stat. (emphasis added). The Defendants operate five waivers for persons with developmental disabilities. They are the Tier Waivers consisting of tiers One through Four and the Individual Budgeting Waiver. One waitlist is maintained for all of the five waivers that Defendants operate.
The Waitlist Currently there are over 20,000 individuals, both children and adults, on the
,. {
waitlist for the DD Waiver program. (Arnold Depo., I, 25:16-18).1 AHCA has final authority on the DD Waiver application and the determination of any unduplicated .:. recipients requested to CMS. (Dkt. No. 125, Ex. "C", at 5). APD is responsible for new Medicaid admissions to ICF/DDs and conducts the Preadmission Screening and Resident Review ("PASRR,,)2 for persons residing in nursing homes that have a developmental disability or mental illness. (Smith Depo., 26:11-21).3 42 U.S.C. § 1396r; 42 C.F.R. § 483.100.
APD has adopted rules to define the waitlist categories pursuant to Section
393.065(5) of the Florida Statutes. See Fla. Admin. Code R 65G-11.002. The first
1Dkt. No. 125, Ex. "N" 2 PASRR requires states to assess whether "mentally retarded" individuals (1) need the level of care nursing homes provide and (2) require specialized services. See 42 U.S.C. § 1396r(e)(7)(B)(ii). States had to review all mentally retarded nursing home residents when the NHRA was enacted and still must review new admissions and residents whose conditions change significantly. ld. § 1396r(e)(7)(B)(ii)-(iii). Generally nursing homes may not admit or must discharge anyone found not to need their services. See id. §§ 1396r(b)(3)(F)(ii), (e)(7)(C)-(D). 3 Dkt. No. 125, Ex. "E".
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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 6 of 27
category is for those detennined by the agency to be in "crisis." Those in crisis have the designation of being homeless, without a caregiver or a danger to themselves or others. (Dkt. No. 125, Ex. "I", ~ 3). Only those applicants detennined by APD to meet this criteria have access to DD Waiver services. (Arnold Depo., I, 116:25 - 117:11-3) (Dkt. No. 125, Ex. "I", ~ 3). Without a crisis, a person must seek admission to an ICFIDD in order to secure services or may remain in the community on the waitlist and hope that APD will subsidize temporary or intennittent services through the Individual Family Supports program ("IFS"). The Defendants do not plan to enroll from categories other than "crisis." (Dkt. No. 125, ~ 15) (Arnold Depo., I, 116:25 - 117:3).
APD agreed to provide ARCA with monthly reports ofnewly enrolled waiver..:-recipients by district, recipient's name, Medicaid Identification number and by age, as well as the number of waiver recipients disenrolled along with corresponding demographic data. (Dkt. No. 125, Ex. "C", at 8). Further, APD agreed to maintain waiver waitlists that accurately reflect waitlist changes due to enrollments. (Dkt. No. 125, Ex. "C", at 8). Therefore, the Defendants have joint responsibilities for the admissions and continued residency of eligible persons with developmental disabilities in institutions and the preclusion of services to those on the waitlist. The Defendants' policies evidence an imbalance of the service delivery systems for persons with developmental disabilities that belie the legislative intent ofFlorida Statutes § 393.062.
Dykes, Davis, Young, Congden, Pivinski and Woodward are individuals with developmental disabilities, as defined by Section 393.063(9) of the Florida Statutes, who
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are eligible to receive services through Florida Medicaid in ICFIDDs and in the community under Florida's DD Waivers.
II. COUNT I: REASONABLE PROMPTNESS a. Enforcement under § 1983
Plaintiffs bring this claim having been deprived of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. To allow Plaintiffs' action under § 1983, the violation ofthe statute must harm an individual right through a showing that (1) Congress intended the statute to benefit the
}'
Plaintiff; (2) the right to be enforced is not "vague or amorphous," preventing clear enforcement; and (3) the statute "must unambiguously impose a binding obligation oiFthe, States." Blessing v. Freestone, 520 U.S. 329, 340-341 (1997). Plaintiffs here seek to enforce 42 U.S.C. § 1396a(a)(8), the reasonable promptness provision of the Medicaid Act. The Eleventh Circuit has stated that there is "a federal right to reasonably prompt provision of assistance under section 1396a(a)(8) ofthe Medicaid Act, and that this right is enforceable undersection 1983." Doe v. Chiles, 136 F.3d 709, 719 (11th Cir. 1998).
b. All Plaintiffs are eligible individuals Each individual Plaintiff is eligible to receive community services through the DD Waiver based upon their disabilities. (Dkt. No. 125, Ex. "A", ~~ 1 & 9-12 & Ex. "B", ~~ 1 & 9-12). The Defendants argue that they are not eligible because of a limit on the waiver enrollment afforded to them by 42 U.S.C. § 1396n(c)(9). Pursuant to the waiver enabling statute, the state may waive only three portions ofthe Medicaid program: "the requirements of section 1396a(a)(1) of this title (relating to statewideness), section
7

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- - -_. ~-..

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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 8 of 27

1396a(a)(1O)(B) of this title (relating to comparability), and section 1396a(a)(10)(C)(i)(III) of this title (relating to income and resource rules applicable in the community)." 42 U.S.C.A. § 1396n. There is no provision within the authorizing statute to waive "reasonable promptness" as provided in 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930. Restricting eligibility to state-imposed arbitrary recipient limits would allow a state to evade the reasonable promptness provision entirely. However, the undisputed facts are that Florida's DD Waivers are meant to provide services to at least 31,500 persons. (Dkt. No. 125, Ex. "R").
In a state's application for a waiver to the federal Centers for Medicaid and Medicare services ("CMS"), the state must identify the "unduplicated number of individuals that the state intends to serve each year the waiver is in effect. It is up to the state to determine this number, based on the resources that the state has available to underwrite the costs of waiver services. As state resources permit, this number may be modified by amendment while the waiver is in effect." (Dkt. No. 125, Ex. "Q" at 2).
In its application to CMS, the state must also assure the cost neutrality of the waiver, meaning "the average per participant expenditures for the waiver and non-waiver Medicaid services must be no more costly than the average per person costs of furnishing institutional (and other Medicaid state plan) services to persons who require the same level of care." (Dkt. No. 125, Ex. "Q" at 8). Appendix B of the waiver application "is designed to answer the question: 'Who receives waiver services?' In this Appendix, a state specifies:[ ...] (c) the number of individuals who will be served in the waiver and how this number will be managed during the period that the waiver is in effect; [...] (g)
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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 9 of 27
how individuals are afforded freedom of choice in selecting between institutional and home and community-based services[.]" (DIct. No. 125, Ex. "Q" at18).
The explanation for Appendix B-3 of the waiver application states: "How many individuals will be served each year during the period that the waiver is in effect and how that number is managed (Appendix B-3)." (Dkt. No. 125, Ex. "Q" at 79). CMS gives explicit guidelines on what this number means and how it is to be applied to waiver enrollment:
Until the maximum number of unduplicated participants in the approved waiver is reached, a state may not deny entry to the waiver of otherwise eligible individuals unless the state elects to establish a point-in-time enrollment limit, adopts a phase-in or phase-out schedule, or reserves capacity for specified purposes (see following items).As a consequence, the number ofpersons who will be served should be based on a careful appraisal ofthe resources that the state has available to underwrite the costs of waiver services. (DIct. No. 125, Ex. "Q" at 82). The state sought and received approval for the enrollment of at least 31,500 individuals. (Dkt. No. 125, Ex. "R") In March 2011, there were 30,033 individuals enrolled; in November 2011, there were 29,624 individuals enrolled, evidencing the declining number ofDD Waiver recipients. (Dkt. No. 125, Ex. "B", ~ 21). This leaves 1,876 slots for non-crisis waiver applicants. Therefore, as the Defendants have not reached their maximum CMS-approved enrollment, waiver slots are available for each named individual plaintiff here. c. The agency's administrative procedures cause delay and prevent
Plaintiffs from receiving services in a reasonably prompt manner.
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The Medicaid Act also requires that a state plan for medical assistance "must ... provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). A state Medicaid agency must "furnish Medicaid promptly to recipients without delay caused by the agency's administrative procedures" and "continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." 42 C.F.R. § 435.930.
Despite Florida's legislative intent, there has been no expansion ofDD Waiver
i>
enrollments available to non":crisis Medicaid eligible recipients. Indeed, funding for tfie DD waivers has steadily decreased to 2005-2006 levels. The Defendants' operation hf,the' DD Waiver has resulted in five years of stagnation: an enrolled person would have to die or move out of state to open a DD Waiver slot for a new enrollee in crisis. For the past five years, only those persons deemed to be in "crisis" have been enrolled and receiving services through the DD Waiver. (Dkt. No. 62, ~ 9). The unavailability of community services relegates Medicaid eligible persons with developmental disabilities to a waitlist placement for years in violation of the reasonable promptness provisions. 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930. As recently as July 2010, as many as 49.4% of those individuals waiting for DDWaiver services had been waiting more than four years. Ofthose, 37.2% had been waiting longer than five years. (Dkt. No. 62, ~~ 142 & 143).
The Defendants' statutes, rules and policies for management of the waitlist force persons who have developmental disabilities and currently reside in the community to forgo services completely, waiting for one ofthe three desperate and dangerous crisis
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categories to take hold. Institutionalized persons will never enroll in the DD Waivers, so long as the State continues to only fund crisis enrollments.
As of March 5, 2012, there are 233 individuals on the waitlist residing in ICF/DDs. (Kidd Depo., 24:1- 25:1). As of September 2010, there were at least 115 persons with developmental disabilities on the waitlist residing in Nursing Facilities. (Dkt. No. 125, Ex. "P"). Additionally, 69 persons with developmental disabilities registered for the DD Waivers waitlist reside in state-run ICF/DDs. Meanwhile, appropriations for privately owned ICFIDDs are assisted in accessing increasing rates through the use of Quality Assessment Fees. See §§ 409.9082 & .9083, Fla. Stat.
I
Nonetheless, private ICF/DDs have experienced an overall decline in their census from;'. FY 200412005. In that year, the total private ICF/DD population (inclusive of private caseload, clusters caseload, and six bed caseloads) was 2,079 persons. By FY 2010/2011 this census declined to 1,997. There have been no new ICFIDD beds built since 2006. (Dkt No. 125, Ex. "J", ~ 24). There has also been a constant existing ICF/DD bed vacancy of approximately 52 since June 2009. Justice Ginsburg'S plurality opinion required the state to show that with its available resources, immediate relief for those seeking community services would be inequitable, "given the responsibility the State has undertaken for the care and treatment of a large and diverse population ofpersons with mental disabilities." Olmstead v. L.c., 527 U.S. 581,604 (1999). It can hardly be said that· maintaining rates from year 2008 for a declining population of persons who have increasingly sought community services instead is enough to support a fundamental alteration defense to the relief sought here.
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Dudek and Hansen have failed to design a comprehensive, effectively working plan that might provide services in a reasonably prompt manner, and instead their policies . and administrative rules preclude them from meeting their Medicaid obligation. By assessing the needs ofthe persons on the waitlist and planning a method to enroll and fund persons in categories other than "crisis" - including those institutionalized in Category 3 and those not yet institutionalized in Categories 3-7 - the Defendants could meet their obligations and have a waitlist that moves at a reasonable pace.
Woodward, Pivinski, and other not yet institutionalized clients of the P&A, have been placed on thelengthy waitlist and continue to wait while the Defendants have I:
/'
acknowledged a reduction in the provision of community services for them. There are,no non-crisis enrollments. There are less crisis enrollments creating an even more competitive crisis enrollment process. There is a diversion of IFS funds to squelch less severe crisis situations thereby depriving those funds for services such as Supported Employment. There is a continued neglect and apathy of realizing savings by transitioning those in institutions that want community services to the DD Waiver with appropriate funding mechanisms. The consequence ofthe Defendants' actions is the complete absence of a moving waitlist. This Court should grant Congden's, Woodward's, Pivinski's, and the P&A's claims for violation of the reasonable promptness provision.
Dykes and Davis would never have qualified as a crisis; without this lawsuit, they would have remained in their institutions, never realizing the benefits of community interaction. Young is in a category all her own: the Nursing Home Transition program has denied her because she needs a residential placement such as those provided in the
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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 13 of 27
DD Waiver (Letter D. Newman); yet, there is no Nursing Home Transition proviso language to bring the funds that keep her in the Nursing Home to the DD Waiver. The Defendants have utterly failed Young. This Court should grant the claims of Dykes, Davis, Young and the P&A for violating Medicaid's reasonable promptness provisions.
III. COUNT II: FREEDOM OF CHOICE a. Enforcement under § 1983
, _Again, the Plaintiffs bring this claim having been deprived of "rights, privileges, or immunities secured by the Constitutionand laws" of the United States. 42 U.S.c. §
i'
ol 1983. The Plaintiffs seek enforcement of 42 U.S.C. § 1396n(c)(2)(C), the freedom
;",
choice provision of the Medicaid Act applicable to waiver programs. That provision:'has', been found by numerous courts to confer an enforceable right. Cramer v. Chiles, 33 F. Supp. 2d 1342, 1351 (S.D. Fla. 1999) (finding that § 1396n(c)(2)(C) met the elements stated in Doe v. Chiles to create an enforceable § 1983 right); see also Ball v. Rodgers, 492 F. 3d 1094, 1117 (9th Cir. 2007); Wood v. Tompkins, 33 F. 3d 600,612 (6th Cir. 1994).
b. All Plaintiffs are eligible individuals The individual Plaintiffs are eligible to receive community services through the DD Waiver based upon their disabilities. (Dkt. No. 125, Ex. "A", ~~ 1 & 9-12; Dkt. No. 125, Ex. "B", ~~ 1 & 9-12). Each of the Plaintiffs meet the level of care criteria for an ICF/DD. (Dkt. No. 125, Ex. "B", ~~ 5-8).
c. Davis, Dykes and Young have not been informed of the 'feasible alternatives' to services for persons with developmental disabilities.
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The Defendants must also do the following for: "such individuals who are detennined to be likely to require the level of care provided in a hospital, nursing facility, or intennediate care facility for the mentally retarded are infonned of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intennediate care facility for the mentally retarded." 42 U.S.C. § 1396n(c)(2)(C).
Defendants are jointly responsible for the operation of the DD Waivers according to 42 C.F.R. § 440.180 and 42 D.F.R. 441, subpart G. (Dkt. No. 125, Ex. "C", at 4). Both agencies have taken responsibility to "assure that individuals have freedom of choice ( between home and community-based services or institutional services." (Dkt. No. 125;' Ex. "C", at 4).
The Defendants' pattern and practice violates statutory freedom of choice requirement under the Social Security Act, § 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2), as the Defendants require Medicaid eligible individuals to choose between (1) an indefinite and lengthy placement on the DD waiver waitlist without services, or (2) placement in an ICFIDD with services but decreased independence, where they would be frozen in Category 3.
Pursuant to the Defendants' Interagency Agreement, (Dkt. No. 125, Ex. "C"), the APD agreed to do two things when it came to ICF/DD admissions and continued residency:
Maintain vacancy and waiting lists for placement of clients in ICF/DDs. When clients select an ICF/DD for placement, APD will complete necessary assessments and be responsible for making arrangements with the ICF/DD for admission.
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Conduct utilization and continued stay reviews for all residents of public and private ICF/DD facilities. When review is completed, APD will send a copy of the utilization review and continued stay review documents to the APD Area office and respective ICF/DD facility. For new admissions to a facility, a copy of the review is sent to the facility and to the adult payments worker at DCF to process. (Dkt. No. 125, Ex. "C", at 12). 42 U.S.C. § 1396n(c)(2)(C) exists within the specific requirements a state must comply with while implementing their Medicaid waiver service programs. The particular obligation absent here was the informing of 'feasible alternatives' to the institutional
~~
setting. At some time after 1999, when the Supreme Court issued its ruling in Olmstrad,
c' "
the Defendants knew or should have known that, for some, the placement in an institution , while simultaneously being on the waitlist could be in violation ofthe ADA. The " Defendants thenfailed to inform those persons in ICF/DDs that they could receive
services through the DD Waiver. Dykes and Davis were placed in ICF/DDs and required client advocates to assist
,them in applying for the DD Waiver and being subsequently being registered on the ,. waitlist. Hansen failed to identify Dykes and Davis as able to live in the community, pursuant to 42 U.S.C. § 1396n(c)(2)(C), and to ensure their eligibility and registration for the DD Waivers upon admittance to the institution.
Young was placed in a nursing home despite having the ability to reside in the community and a CMAT team actively trying to find a community placement for her, including through Defendants DD Waiver program. She qualified for the DD Waiver
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. based upon her disability and should have been informed of the possibility to receive services, or at least register for the waitlist, through the DD Waiver.
The Defendants have failed to identify all of those persons eligible to receive services through the DD Waiver that have been diverted to nursing homes and to routinely and continuously offer choice counseling to ensure a more integrated setting is not appropriate for those individuals. For these reasons, the Court should grant Dykes, Davis, Young, and the P&A summary judgment as to Count II.
IV. COUNT III: INTEGRATION MANDATE OF THE ADA AND SECTION 504 OF THE REHABILITATIVE ACT
Discrimination claims under the ADA and Section 504 are substantially simqar and are analyzed the same way. See Allmond v. Akal Sec., Inc., 558 F. 3d 1312, 1316 n.3 (11th Cir. 2009). The ADA requires "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, program, or activities of a public entity, or be subjected to discrimination by a public entity." 42 U.S.C. § 12132. The unjustified institutional isolation ofpersons with disabilities is a form of discrimination by reason of disability. See Olmstead, 527 U.S. at 597 & 600-01. The ADA requires states to provide community based treatment for persons with disabilities when:
(1) the state's treatment professionals have determined that community-based services are appropriate for an individual;
. (2) the individual does not oppose such services; and (3) the services can be reasonably accommodated, taking into account (a) the resources available to the state, and
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(b) the needs of others with disabilities.
,
See Olmstead, 527 U.S. at 602-04 & 607. "When these requirements are met, states must provide services to individuals in community settings rather than in institutions." Haddad, 784 F. Supp. 2d at 1298 (citing Fisher v. Oklahoma Health Care Auth., 335 F. 3d 1175, 1181 (lOth Cir. 2003».
a. For Dykes, Young, Davis, and other P&A clients residing in institutions, the community-based services are appropriate.
As APD placed Dykes, Young, and Davis on the DD Waiver waitlist, the Defendants have already recognized that these plaintiffs are "qualified individual[s] with .a disability" who could be served in the community. Dykes and Davis were recently: transitioned from their institutions to community settings, demonstrating their appropriateness for community-based services and satisfying the first prong.
Young's Children's Multidisciplinary Assessment Team ("CMAT") in 2001 noted her stability and progress and changed her status from Fragile to Skilled for the continued stay at the nursing home she resided in as a child. It was documented that "Future planning was discussed for [Young], noting that she may be more appropriate for a less restrictive setting." By 2005, the CMAT team noted "Heather would also be eligible for a Developmental Disabilities Group Home, but according to local officials, she cannot be a client of that progr~ until she is discharged from the Nursing facility. There is also a waiting list for placement with the program." In April 2009, Young had her final CMAT staffing as her 19th birthday would occur before her next staffing; on her 19th birthday, Young remained a resident of a nursing facility. Recently, Young was denied enrollment to the Aged and Disabled Adult Waiver-not because she could not
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live in the community, but merely because the support she would need, a group home placement, is offered only through the DD Waiver. The CMAT Team's recommendations satisfy the first prong for Heather's community based treatment.
b. For Dykes, Young, and Davis and other P&A clients residing in institutions, the community-based services are not opposed.
Dykes, Young, and Davis also satisfy the second prong - no opposition to receipt of in-home services - because they have affirmatively been seeking them by applying for the services and languishing on the waitlist. The process of getting onto the waitlist is not simple. It involves filling out an application with APD. (Arnold Depo., I, 10:14-20).i Then, APD reviews documentation, including intelligence tests, to determine if the .' . individual has a qualifying developmental disability. (Arnold Depo., I 11:21-25). APD has 45 days to determine eligibility for children and 60 days for adults. (Arnold Depo., I, 12:11-13). A staff psychologist and other trained personnel to complete the application and eligibility process. (Arnold Depo., I, 13:8-16). Then, APD discusses what services theDD Waiver can provide and what services the person is seeking from the DD Waiver. (Arnold Depo., I, 14:19-14).
Young has specifically requested to be on the waitlist, was found eligible for the .DD Waiver, was added to the waitlist, and has voluntarily participated in this lawsuit seeking community services. Dykes' and Davis' willingness to transition and their continued success in the community further evidences their lack of opposition. This satisfies the second prong for all three institutionalized Plaintiffs.
c. For Dykes, Young, Davis, and other P&A clients residing in institutions, the services can be reasonably accommodated, taking into
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account the resources available to the state, and the needs of others with disabilities. The remaining issue is whether Dykes, Davis, Young and other clients of the P&A residing in institutions can be reasonably accommodated, taking into account the resources available to the state, and the needs of others with disabilities. The requested accommodation, receipt of in-home services, which requires the transfer of funds from the ICFIDDs to the DD Waiver, is a reasonable accommodation in light of the Defendants' resources and their obligations to other disabled individuals. By using the proviso -language from the 2011 and 2012 Florida Appropriations Acts, the Defendan,ts have already recognized the transfer of funds as a reasonable accommodation. ARCA has analyzed the savings of the only two clients transferred to date, Davis and Dykes. For roughly one-half of the year, AHCA sees potential savings of$61,416.00.' Annualized, the approximate savings from the two transitions total $131,747.064, saving better than 50% of institutional costs. If the Defendants achieved a comparable rate of saving for every two individuals identified as being on the waitlist and residing in ICFIDDs (currently 233 individuals), they could realize potential annual savings around $15,348,532.49. This still does not account for the transition ofindividuals from nursing homes, such as Young, which could add to the potential savings.
4 Dykes: ICFIDD daily rate = $373.10 ($373.10 x 365=$136,181.50 per year for ICFIDD) and number of days out of the institution for FYII-12 = 149 ($26,538 in approved FYll_12 waiver costsI149=$178.10 per day on DD Waiver; $65,009.19 per year on DD Waiver); savings of$71,172.31 per year post transition. Davis: ICFIDD daily rate = _$351.83 ($351.83x365=$128,417.95 per year for ICFIDD) and number of days out of the , institution in FY11-12 = 195($36,245 in approved FY11-12 waiver costs/195=$185.87 per day on DD Waiver; $67,843.20 per year on DD Waiver); savings of$60,574.75 per year post transition. Total savings per year for Dykes and Davis = $131,747.06.
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AHCA has affinned, however, that any savings realized from transitions will remain respectively in the Medicaid Nursing Home and the Medicaid ICF/DD budget categories. Further, the state has another method to protect the services it provides to individuals in institutions. Since 2009, private ICF/DDs have been able to utilize Quality Assessment Fees ("QAF"), a pass-through, Medicaid-allowable cost for the ICF/DD which allows the return of the fee plus the federal match to the ICFIDD to compensate for any rate cuts since 2008. § 409.9083(3), Fla. Stat. Similarly, the Nursing Homes are able to buy back rates through the use of QAFs as well pursuant to § 409.9082, Florida Statutes.
Given the resources the state has to transfer monies from one line item in a budget category to another, the requested accommodation is very reasonable: the funds used to . pay for services for the institutions should simply go to the DD Waiver for the provision of services to Dykes, Davis, Young, and other P&A clients desiring community services. In fact, the accommodation saves the state money. Any speculative concerns about the funding ofthe ICF/DD placements or Nursing Home placements could potentially be alleviated by the use of the QAFs as history has demonstrated.
Dykes, Davis and Young have been injured because they were institutionalized, despite their eligibility for community based services through the DD Waiver. The Defendants' current system enrolls only crisis applicants to the DD Waiver. The legislature authorized the Defendants to define "crisis" by rule. Defendants have defined "crisis" as being homeless, having life-threatening maladaptive behaviors, or without a caregiver of person willing to provide care. Fla. Stat. 393.065(7)&(5)(a); Fla. Admin.

I

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Code R. § 65G-1.047. Placement in an institution precludes crisis for Dykes, Davis, Young, and other waitlisted P&A clients: "they will never fall into the [crisis category]." (Dkt. No. 80, at 9).
For Dykes, Davis, Young and other P&A clients residing in institutions, there are no undisputed facts upon which Defendants can rely to support their defenses. In fact, they did not allege any affirmative defenses in their Answer to Plaintiffs' Amended Complaint. (Dkt. Nos. 62 & 63). These Plaintiffs are eligible individuals with developmental disabilities that should be afforded an evaluation in the ICF/DD by the APD staff to determine if community services are appropriate. Dykes and Davis need'not be transitioned due to their recent community placements; Young's CMAT team felfshe was appropriate for a less restrictive environment since 2001 and pursued community options for her. Unfortunately, Young's CMAT team stopped when advised there was a waiting list for a Developmental Disabilities group home placement. For institutionalized clients that have affirmatively sought to be placed on the DD Waiver waitlist, thereby making their lack of opposition to community services known, the Defendants can and should conduct evaluations for the appropriateness of community services and reasonably accommodate their transitions to the community. As to Count III, regarding violations of the ADA and Section 504 for Dykes, Davis, Young, and the P&A, this Court should grant the motion for summary judgment.
d. For Woodward, Congden, Pivinski, and other P&A clients residing in the community waiting for community services can also be reasonably accommodated, taking into account the resources available to the state, and the needs of others with disabilities.
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Pivinski, Woodward, and Congden are persons with developmental disabilities, as defined in § 393.063, Fla. Stat. As such, they are also eligible for the DD Waiver. Pivinski and Woodward reside in their families' homes. Congden applied for crisis in March 2011 and began receiving DD Waiver services in April 2012. While Congden was on the waitlist, she resided in her sister's home, as both ofher parents were deceased. This Court acknowledged these Plaintiffs injuries as "languishing on the waitlist without services." (Dkt. No. 80, at 5).
The Defendants' policies unreasonably and arbitrarily deny community services . to Woodward, Pivinski, and other P&A clients waiting for services. First, crisis enrollments are shrinking despite not having used all of the approved CMS slots. (Ball Depo., 162:1-11)~5 Second, APD policies using General Revenue funds to alleviate certain crisis situations through limited services ultimately denies the full panoply ofDD Waiver services to otherwise crisis eligible individuals. (Arnold Depo., I, 122:8-12). Third, Defendants have retained the savings from actual deinstitutionalizations in the institutions' budget, enlarging the existing imbalance of funding. (Dkt. No. 125, Ex. "1", ~~ 12 & 13). Finally, Defendants have not planned to utilize the savings from deinstitutionalization for non-crisis enrollments or to otherwise move the waitlist. (Dkt. No. 125, Ex. "I", ~ 15) (Arnold Depo., I, 116:25 - 117:3).
Thesepolicies and practices preclude Pivinski and Woodward from obtaining their needed services. Pivinski and Woodward seek to maintain their independence and community involvement. Pivinski, Woodward, and other P&A clients who are neither in
5 Dkt. No. 125, Ex. "S".
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I

I

I
• I,

crisis or institutionalized could be feasibly served by the savings realized by transferring

the 233 individuals out ofICF/DDs. Ifthe savings followed the exiting individuals from

the institution to the DD Waiver in the budget as well, then the savings would allow up to 684 waitlisted individuals to be added to the waiver.6 As of March 2012, the DDWaiver

had 31,500 enrollment slots and 29,624 enrolled individuals, resulting in 1,876 open and

available slots. The 1,876 slots would easily serve the population on the waitlist seeking

to exit institutions (233 in ICF/DDs and 115 in nursing homes) along with the 495 that

could be realized though ICF/DD savings alone, resulting in an additional 843 persons on

the waiver. Even more individuals could fill the remaining 1,033 slots based on possible

savings from nursing home transitions.

The Court in Olmstead recognized that if a state "had a comprehensive,

effectively working plan for placing qualified persons with [disabilities] in less restrictive

settings, and a waiting list that moved at a reasonable pace, not controlled by the state's

endeavors to keep its institutions fully populated, the reasonable-modifications standard

would be met" and the COlirtwould have no reason to interfere. Olmstead, 527 U.S. at

605-606. As to Count III, regarding violations of the ADA and Section 504 for

Woodward, Congden, Pivinski, and the P&A, this Court should grant the motion for

summary judgment.

V. COUNT IV: DENIAL OF DUE PROCESS

It is a violation of 42 U.S.C. § 1983 for anyone, under color of state law, to

deprive a person "of any rights, privileges, or immunities secured by the Constitution and

6 $21,211,276.66 in approximate savings divided by the average annual waiver cost plan expenditure per capita ($31,000.00) equals 684 individuals.

23

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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 24 of 27
laws." Id. "In this circuit, a § 1983 claim alleging a denial ofprocedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally inadequate process." Arrington v. Helms, 438 F.3d 1336, 1348 (11 th Cir. 2006) (quoting Grayden v. Rhodes, 345 F.3d 1225, 1232 (11 th Cir. 2003)).
Under the Fourteenth Amendment to the United States Constitution, no state "shall ... deprive any person of life, liberty or property without due process oflaw." U.S. Const. amend. XIV, § 1. No person's property rights can be deprived except pursuant to constitutionally adequate procedures. See Cleveland Bd. ofEduc. v. Loundermill, 470 U.S. 532, 541 (1985). It is beyond dispute that Plaintiffs have a protected property - 'C interest in their Medicaid services, see, e.g., Goldberg v. Kelly, 397 U.S. 254, 262 n.8 & 264 (1970) (welfare), and the actions and inactions by Dudek and Hansen constitute "state action" under the second element. Compare Dkt. No. 30, ~ 99 with Dkt. No. 62, ~ 99 & Dkt. No. 63, ~ 99. Accordingly, the sole dispute here is whether notices of a right to hearing were ever provided to the Plaintiffs when they made their initial applications for DD Waiver services.
"The essential requirements of due process ... are notice and an opportunity to respond." Loudermill, at 470 U.S. at 546. See also Dusenbery v. United States, 534 U.S. 161, 167-68 (2002). In this case, written notice to each of the Plaintiffs was mandatory. _See 42 C.F.R. §§ 431.206(b) & 431.210. When determining the adequacy of a state's , notice of decision under the Due Process Clause, the Eleventh Circuit applies the test set
forth in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). See
24

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Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 25 of 27

Arrington, 438 F. 3d at 1349. Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314. Although due process is a flexible concept that varies with the particular circumstances of each case and myriad forms of notice may satisfy the Mullane standard, see Grayden, 345 F. 3d at 1239 n. 17, the failure to provide any required notice is a violation of due process. See, e.g., Holmes v. New York City Hous. Auth., 398 F. 2d 262,265 (2nd Cir. 1968).
Each of the Plaintiffs applied for the DD Waiver, which includes medical assistance. Each of their applications for DD Waiver services was either denied or not
acted on with reasonable promptness. Each of the Plaintiffs was placed in waitlist categories that precluded their receipt of medical assistance. None ofthe Plaintiffs received notice of their placement into non-crisis categories or what category they are in. Moreover, there is no evidence that any of the Plaintiffs ever received notification oftheir assigned waitlist prioritization category. Compare Dkt. No. 30, ~~ 23,39,47,54 & 229 with Dkt. No. 62, ~~ 23, 39, 47, 54 & 229 & Dkt. No. 63, ~~ 23, 39, 47, 54 & 229. Accordingly, the Plaintiffs have satisfied all of the elements for a denial of procedural due process, see Cramer v. Chiles, 33 F. Supp. 2d 1342, 1352 (S.D. Fla. 1999) (granting summary judgment), and have satisfied a claim for violation of 42 U.S.C. § 1983. Violations under 42 U.S.C. § 1983 warrant reasonable attorney's fees and costs under 42 U.S.C. § 1988. See id. As to Count IV, regarding due process violations for Dykes, Davis, Young, Woodward, Congden, Pivinski, and the P&A, this Court should grant the motion for summary judgment.
25

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Dated in Tampa, Florida on this second day of May, 2012.

By sl Amanda Heystek Amanda Heystek, Esquire Florida Bar No. 0285020 Disability Rights Florida 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org Lead Trial Counsel

By

sl Paul E. Liles

Paul E. Liles, Esquire

Florida Bar No. 0921270

Disability Rights Florida

Senior Trial Counsel

paull@disabilityrightsflorida.org

Christopher White, Esquire

Florida Bar No. 0060109

christopherw@disabilityrightsflorida.org

1000 N. Ashley Drive, Suite 640

Tampa, Florida 33602

Maryellen McDonald,

Director of Legal and Advocacy Services

Florida Bar No. 607533

maryellenm@disabilityrightsflorida.org

2728 Centerview Drive, Suite 102

Tallahasseee, FL 32301

(850) 488-9071 Telephone

(850) 488-8640 Facsimile

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by CMlECF to all attorneys of record this 2nd day of May, 2012.

By sl Amanda E. Heystek Amanda E. Heystek, Esquire Florida Bar No. 0285020

26

,.
Case 4:11-cv-00116-RS-CAS Document 126 Filed 05/02/12 Page 27 of 27
I··:···.····:·
Disability Rights Florida, Inc. 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org
27

 
 Case 4:11-cv-00116-RS-CAS Document 139 Filed 06/05/12 Page 1 of 17

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,
Plaintiff,
v.

Case No. 4:11-cv-00116-RS-CAS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MICHAEL HANSEN in his official capacity as Director of the Florida Agency for Persons with Disabilities,
Defendants. ________________________________/
DEFENDANTS’ MOTION TO DISMISS DISABILITY RIGHTS FLORIDA, INC.’S AMENDED COMPLAINT FOR LACK OF STANDING
The Defendants, Elizabeth Dudek, in her official capacity as Secretary, Florida
Agency for Health Care Administration (“AHCA”) and Michael Hansen, in his official
capacity as Director, Florida Agency for Persons with Disabilities (“APD”), by and
through undersigned counsel, pursuant to Rule 12(b)(1), Fed. R. Civ. P., and this Court’s
Order dated May 15, 2012 [Doc. 135], hereby submit this Motion to Dismiss Disability
Rights Florida, Inc. (“DRF”)’s Amended Complaint, for lack of standing.
1. At the time the Amended Complaint [Doc. 30] was filed, Plaintiffs
included eight individuals and DRF. DRF is Florida’s designated advocacy agency

1

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pursuant to the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §15001, Pub. L. No. 106-402.
2. At this time, DRF is the only remaining plaintiff in this suit. One of the individual named plaintiffs voluntarily dismissed her claims, and another was terminated as a result of his death. [Doc. 76, 83.] The remaining six individual plaintiffs entered into settlement agreements on May 8, 2012, and have since been dismissed as parties. [Doc. 134, 136, 137.]
3. The Amended Complaint included class action allegations and the Plaintiffs filed their Motion for Class Certification on August 31, 2011. [Doc. 61.] This Court denied certification of the Plaintiffs’ putative class and the Plaintiffs’ subsequent Motion for Reconsideration of the class certification denial. [Doc. 80, 81, 91.]
4. Defendants presume that associational standing is the legal basis DRF will attempt to rely upon to justify its right to continue in this suit notwithstanding dismissal of all the individual plaintiffs.
5. Defendants do not make this presumption because they have had prior notice of DRF’s intent to do so or because the the facts alleged in the Amended Complaint support associational standing (they do not), but because associational standing appears to be the only remaining basis for standing that DRF could possibly assert for continuing as a plaintiff in this case.
6. However, by continuing with this lawsuit based on associational standing after the individual plainiffs have been dismissed, DRF would be taking a second bite from the class certification apple. Indeed, the substantive allegations in the Amended
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Complaint that pertain to DRF are almost entirely limited to the class action allegations that have already been adjudicated and denied by this Court. [Doc. 80, 81, 91.]
7. The incorporated memorandum of law will show that DRF lacks standing because it has not articulated any injury against itself. Nor has it satisfied the test for associational standing. Particularly, DRF has failed to demonstrate that its members would otherwise have standing to sue in their own right, and the claim asserted and the relief requested requires the participation of individuals. Medicaid services cannot be provided to hypothetical anonymities, and an order from the Court for the provision of services to such hypothetical anonymities would be meaningless. And even assuming arguendo that DRF did meet the criteria for associational standing, its claims are now moot and should be dismissed.1
8. For the above stated reasons, and those stated in the incorporated memorandum of law below, DRF’s Amended Complaint should be dismissed.
MEMORANDUM OF LAW I. DRF LACKS STANDING TO MAINTAIN THIS ACTION
A. Standing Generally Federal courts are courts of limited jurisdiction and are “empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution or otherwise authorized by Congress.” Taylor v. Appleton, 30 F.3d 1365,
1 Moreover, without the claims of the individual named plaintiffs, DRF’s Amended Complaint fails to state a claim upon which relief can be granted. Since this issue is not directly related to standing, it will be analyzed in Defendants’ forthcoming Motion for Summary Judgment, pursuant to this Court’s Order dated May 15, 2012 [Doc. 135].
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1367 (11th Cir. 1994). Article III of the United States Constitution limits the jurisdiction of the federal courts to “cases” and “controversies.” U.S. Const. art. III, § 2.
The “irreducible constitutional minimum of standing contains three elements”: (1) the plaintiff must have suffered an “injury in fact” which is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical;” (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (internal citations omitted). When a federal court determines that there is no case or controversy before it, “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. 506, 514 (1868).
B. Associational Standing An organization can have standing in one of two ways. First, an organization can have standing if it has suffered an injury against itself. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (fair housing organization had standing to sue in its own right where it had suffered “concrete and demonstrable injury to the organization's activities—with the consequent drain on the organization's resources”). Second, an organization may have standing to sue on behalf of its members when: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). The first
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means of obtaining organizational standing is absent here, as DRF has not alleged any injury to itself.2 Thus, at issue is whether DRF has standing to sue on behalf of its members.
As a preliminary matter, this Court should note that the Amended Complaint contains no indication of DRF’s intention to pursue this case as an associational standing action. What the Amended Complaint clearly does contain are class action allegations. See Amended Complaint [Doc. 130, e.g., ¶¶ 100-106]. But class actions and associational standing cases are not identical. See Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 289 (1986) (noting that “special features . . . distinguish suits by associations on behalf of their members from class actions”). While DRF brought this case as a putative class action, it is now apparently attempting to make an end-run around the Court’s denial of class certification by transforming the case into an associational standing action.
If DRF intended to litigate this matter on behalf of its constitutents as an associational standing case, it might be asked why DRF wasted the Court’s and Defendants’ time by litigating the question of class certification. The apparent answer is that, having failed to certify the class, DRF did not want to let go of its classwide claims and thus now seeks to “shoehorn an unknown number of supposed, but unknown, victims into their cause of action by the mechanism of associational standing.” Concerned
2 DRF has averred that the Amended Complaint contains allegations “of systemic failures that effect [sic] the Plaintiff, Disability Rights Florida, and its constituents.” [Doc. 130.] However, in actuality all of the allegations in question refer to purported grievances of individuals with disabilities; there is not a single allegation that refers to any harm suffered by DRF itself.
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Parents To Save Dreher Park Ctr. v. City of W. Palm Beach, 884 F. Supp. 487, 489 (S.D. Fla. 1994).
1. DRF Has Not Demonstrated That Its Members Would Otherwise Have Standing to Sue in Their Own Right.
DRF lacks standing to bring this suit on behalf of its members because it cannot meet the necessary prequisites for associational standing. Specifically, DRF fails to meet the first and third prongs of the test set forth in Hunt. 432 U.S. at 343.
With respect to the first prong, DRF has failed to identify any members on behalf of whom DRF is bringing suit who have suffered a “concrete and particularized” injury which is “actual or imminent.” Lujan, 504 U.S. at 560. While the Amended Complaint identifies injuries potentially sufficient to confer standing, these are all injuries that relate to the individual named plaintiffs, each of whom brought suit on his or her own behalf and each of whom have since been dismissed as parties in this matter. Since the individual named plaintiffs were suing on their own behalf, DRF clearly was not suing on their behalf. Beyond those relating to the individual named plaintiffs, the allegations in the Amended Complaint are uniformly conjectural and speculative.
As the Supreme Court has held, “the entire doctrine of ‘representational standing,’ of which the notion of ‘associational standing’ is only one strand, rests on the premise that in certain circumstances, particular relationships . . . are sufficient to rebut the background presumption . . . that litigants may not assert the rights of absent third parties.” United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557 (1996) (emphasis added). The individual named plaintiffs in this case were not absent and, therefore, associational standing cannot rest on DRF’s relationship
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to them. See Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F. Supp. 2d 160, 175 (S.D.N.Y. 2006) (Where “the relevant third parties [were] not absent,” and the organization had “produced no evidence of injury to other disabled persons or . . . members. . . . prudential considerations merit[ed] removing [the organization] from th[e] action.”)
Admittedly, some courts have held that associational standing can rest solely on the association’s relationship with other named plaintiffs. See Colorado Cross-Disability Coal. v. Abercrombie & Fitch Co., 09-CV-02757-WYD-KMT, 2011 WL 2173713 (D. Colo. June 2, 2011) (citing Roe No. 2 v. Ogden, 253 F.3d 1225, 1230 (10th Cir. 2001) for the proposition that the first prong of the Hunt test was satisfied when the single named plaintiff was a member of the associational plaintiff's organization). In Colorado CrossDisability Coalition, the district court for the District of Colorado explained that “Hunt requires an organization to identify members who would be able to assert standing on their own behalf, but the Hunt Court never stated that these members could not also be individual named plaintiffs in the suit.” Id. (emphasis in original). The reasoning in this non-binding, unreported decision is flawed and should not be followed. While the Hunt Court did not explicitly state that the individual members could not also be named plaintiffs, this was clearly implied in its test which asks whether the members would “otherwise” have standing. Hunt, 432 U.S. at 343. Regardless, as noted above, any doubt arising from the Hunt opinion that associational standing only relates to absent third parties is eradicated by the Supreme Court’s subsequent decision in United Food,
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which made explicit the application of associational standing where the relevant third parties are absent.3
Given that DRF cannot rely upon the standing of the now-dismissed individual named plaintiffs, DRF could only have assocational standing if its Amended Complaint identified concrete and particularized injuries to other members of DRF that are actual or imminent. The Amended Complaint makes no such identification. If there is any question as to where to look for such allegations, DRF itself identifies the portions of the Amended Complaint it believes contain “factual allegations of the kinds of systemic failures that effect [sic] the Plaintiff, Disability Rights Florida, and its constituents.” [Doc. 130, ¶ 3.]4
Many of these so-called “factual allegations” are not allegations at all but are, in fact, purported statements of the law. Of those that are factual allegations, none identify an injury to other members of DRF that is sufficient to confer standing. Indeed, none of the cited paragraphs identifies or even alludes to an actual person who has suffered concrete and particularized injuries, aside from the named plaintiffs who are no longer party to this action. Rather, these allegations refer to supposed systemic failures that were clearly intended as support to DRF’s failed attempt to certify a class. Because DRF’s Amended Complaint does not identify injuries-in-fact incurred by absent third
3 Even if, arguendo, this Court were to follow the cases holding that associational standing could be based on the standing of other named plaintiffs, DRF’s standing here would be limited to its representation of the individual named plaintiffs and its claims would now be moot. This argument is taken up in Part II (pages 11-15 ) below.
4 The relevant paragraphs of the Amended Complaint identified by DRF are ¶¶ 84-90, 127-129, 132, 138, 140, 142-151, 153-160, 165-170, 174-175, 180-181, 186, 188, 191193, 196, 202, 208-215, 218, 225-228.
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parties whom DRF would purport to represent, DRF cannot meet the first prong of the Hunt test for associational standing.
2. The Claims Asserted and Relief Requested Require the Participation of Individual Members in this Lawsuit.
DRF cannot meet the third prong of the test for associational standing, which requires that “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343. Both the claims asserted and the relief requested in the Amended Complaint are personal and would require the participation of the relevant individuals. With regard to the claims asserted in Count One, which alleges that Defendants have failed to provide necessary Medicaid services with reasonable promptness, this Court could not determine that there has been a failure to provide services until it was demonstrated that there are individual persons who are eligible for such services, need such services, and have not received them. Such proof would require individual participation. Likewise, the requested relief corresponding to Count One – an order from Court to provide services with reasonable promptness – would require individual participation. Medicaid services cannot be provided to hypothetical anonymities, and an order from the Court for the provision of services to such would be meaningless. The same reasoning applies to the claims asserted and relief requested in Count Two, which relates to the provision of information regarding available services.
Count Three of the Amended Complaint alleges that the Defendants have violated Title II of the Americans with Disabilities Act (‘ADA”) and Section 504 of the Rehabilitation Act by failing to provide services in the “most integrated setting
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appropriate.” These allegations and the corresponding requested relief – an order from the Court requiring Defendants to provide services in the Florida Medicaid Developmental Disabilities waiver (“D.D. Waiver”) programs – require the participation of individual plaintiffs. As this Court has previously held with regard to Title II of the ADA, “any finding of an ADA violation requires proof as to each individual claimant. In addition, the relief afforded to each claimant would require an individualized assessment of what measures the City must take in order to comply with the ADA on a case-by-case basis.” Concerned Parents, 884 F. Supp. at 488-89. Indeed, the criteria set forth by the Supreme Court for determining whether an individual has been unjustifiably institutionalized in violation of the ADA are decidedly specific to the individual at issue and the immediately factual circumstances. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607, 119 S. Ct. 2176, 2190, 144 L. Ed. 2d 540 (1999) (holding that “under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”); see also Minor I Doe ex rel. Parent I Doe v. Sch. Bd. for Santa Rosa County, Fla., 264 F.R.D. 670, 688 (N.D. Fla. 2010) (noting that “associational standing fails where the nature of the claim or relief sought is not common to all members of the association or shared in equal degree, such that both the fact and extent of injury would require individualized proof.” (internal quotations omitted)).
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In certain cases, courts have limited the applicability of the third prong of the Hunt test to cases seeking relief in damages. See, e.g., Wein v. Am. Huts, Inc., 313 F. Supp. 2d 1356, 1360 (S.D. Fla. 2004) (holding that the third prong of Hunt barred an action for damages, but not an action for prospective declaratory or injunctive relief). Courts base this reasoning on dicta from the Supreme Court’s opinion in Warth v. Seldin, 422 U.S. 490, 515 (1975), in it postulated that “[i]f in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.” The Warth Court further noted that “in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind.” Id.
Courts such, as in Wein,have taken the above-stated language from Warth, later cited in Hunt, to mean that the third prong of Hunt always bars associtional standing in actions for damages and always permits associational standing in actions for prospective declaratory or injunctive relief. The first assumption is reasonable. The second is untenable.
The Supreme Court has interpreted Hunt’s holding to mean that individual participation “is not normally necessary when an association seeks prospective or injunctive relief for its members.” United Food, 517 U.S. at 546 (emphasis added). But Hunt does not and cannot mean that individual participation is never necessary for claims seeking injunctive or declaratory relief. Claims under Title II of the ADA, even those seeking only injunctive or declaratory relief, are precisely the kinds of claims that cannot
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satisfy the third prong of the Hunt test. See Missouri Prot. & Advocacy Services, Inc. v. Carnahan, 499 F.3d 803, 810 (8th Cir. 2007) (association in case brought under Title II of the ADA could not meet the third prong of the Hunt test “because the specific claim asserted and the relief requested require participation in the lawsuit by individual persons with specific claims”); see also Concerned Parents, 884 F. Supp. at 488-89.
Indeed, claims for unjustifiable institutionalization under the ADA and Olmstead, such as those in Count Three of the Amended Complaint, are entirely dependent upon the facts as they relate to an individual in question. A hypothetical person cannot be institutionalized, much less unjustifiably so. Moreover, the corresponding requested relief – the provision of services in “the most integrated setting appropriate” – cannot be granted to an unknown or unseen person(s).
Because DRF cannot meet the criteria for associational standing set forth in Hunt, DRF lacks standing to pursue this matter and the Amended Complaint should be dismissed. II. EVEN IF DRF HAD ASSOCIATIONAL STANDING, ITS CLAIMS ARE
NOW MOOT. As noted above, some courts in other jurisdictions have held that the first prong of the Hunt test can be met based solely on the association’s relationship to other named plaintiffs (i.e., members who are not “absent”). See Colorado Cross-Disability Coal., supra. The better reasoning is found in the cases that have found the opposite. See Access 4 All v. Trump, 458 F. Supp. 2d 160, supra. However, even if this Court were to find that DRF met the first prong of the Hunt test based solely on its relationship to the (non-absent) individual named plaintiffs,
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DRF’s standing should be limited to its representation of the individual named plaintiffs because DRF has not identified any other members who would have standing to sue in their own right. See Equal Rights Ctr. v. Hilton Hotels Corp., CIV. A. 07-1528 (JR), 2009 WL 6067336 (D.D.C. Mar. 25, 2009) (holding that organization had standing to assert claims of members who were also named plaintiffs, but that allegations regarding absent members were “simply too vague to establish that these members would have standing to sue in their own right” and that the organization’s “associational standing [was] limited to the specific claims” of the other named plaintiffs).
Like the organization in Equal Rights Center, DRF’s Amended Complaint utterly fails to establish that any absent members would have standing to sue in their own right. Indeed, DRF fails to even establish concretely the existence of a single individual member beyond the individual named plaintiffs. Thus, also like the organization in Equal Rights Center, any associational standing in this matter should at most be limited to DRF’s representation of the individual named plaintiffs.
With DRF’s standing limited to its representation of the individual named plaintiffs its claims are moot and should be dismissed. The individual named plaintiffs’ claims have all been settled or terminated and they have all been dismissed as parties [Doc. 76, 83, 134, 136, 137]; as such, the individual named plaintiffs’ claims are now moot. See Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1244 (11th Cir. 2003) (“The general rule is that settlement of a plaintiff's claims moots an action”) (citing Lake Coal Co. v. Roberts & Schaefer Co., 106 S.Ct. 553, 554 (1985); Hammond Clock Co. v. Schiff, 293 U.S. 529, 530 (1934)). The doctrine of mootness is closely
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related to that of standing. See Sims v. State of Fla., Dept. of Highway Safety & Motor Vehicles, 862 F.2d 1449, 1459 (11th Cir. 1989) (“Where a party challenges standing, the court inquires whether the plaintiff is entitled to relief. Where mootness is at issue, the court determines whether judicial activity remains necessary”); see also Liner v. Jafco, Inc., 375 U.S. 301, 306, n.3 (1964) (federal courts’ “lack of jurisdiction to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy”). “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969). Once a case is moot, it “is nonjusticiable and Article III courts lack jurisdiction to entertain it.” Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1281 (11th Cir. 2004). This Court, therefore, lacks Article III subject-matter jurisdiction to decide DRF’s claims.
The courts have recognized an exception to mootness for injuries that are “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911). The Eleventh Circuit has previously held that “in the absence of a class action, the exception to mootness for issues capable for repetition yet evading review is limited to cases in which: (1) the challenged action is too short in duration to be fully litigated prior to its cessation or termination, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Florida Farmworkers Council, Inc. v. Marshall, 710 F.2d 721, 731 (11th Cir.
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1983). Because this case is decidedly not a class action the criteria set forth in Florida Farmworkers are applicable here. [Doc. 80 and 91.]
There is nothing about the individual plaintiffs’ claims that is “capable of repetition, yet evading review.” DRF cannot reasonably claim that the challenged action is too short in duration to be fully litigated prior to its cessation or termination when the entire basis of the individual plaintiffs’ claims was that the time they were spending on the wait list for the D.D. Waiver was too long. [Doc. 30 (Amended Complaint), ¶¶ 3-5, 11-14, 17, 21, 24-25, 29-30, 33, 37, 40-43, 45, 48-49, 55, 57, 61, 65-66, 71, 75, 81-82.] For DRF to allege that the time spent on the wait list for the D.D. Waiver is so short that it evades review would nullify the claims set forth in the Amended Complaint. Therefore, the “capable of repetition, yet evading review” exception to mootness is not applicable here.
Another exception to mootness is the voluntary-cessation doctrine. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice”). Ordinarily, “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). The analysis is different, however, when a government actor voluntarily ceases a challenged practice. In such cases there is “a rebuttable presumption that the objectionable behavior will not recur.” Bankshot Billiards, Inc. v. City of Ocala, 634
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F.3d 1340, 1351 (11th Cir. 2011) (quoting Troiano, at 1283) (emphasis in original).
Indeed, the Eleventh Circuit “has consistently held that a challenge to government policy
that has been unambiguously terminated will be moot in the absence of some reasonable
basis to believe that the policy will reinstated if the suit is terminated.” Id.
Here, there is no reasonable basis to expect that the disputes between the
individual plaintiffs and the Defendants will be revived by any action on the part of the
Defendants. The voluntary cessation exception to mootness thus does not apply.
III. CONCLUSION
For the foregoing reasons, DRF’s Amended Complaint should be dismissed for
lack of standing. In the alternative, this matter should be dismissed as moot.
Respectfully submitted this 5th day of June, 2012.
AGENCY FOR HEALTH CARE ADMINISTRATION
BY: /s/ Stuart F. Williams STUART F. WILLIAMS General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building 3, MS #3 Tallahassee, Florida 32308 Florida Bar No. 0670731 (850) 412-3630 (phone) (850) 921-0158 (fax) Stuart.Williams@ahca.myflorida.com
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel 227 Mahan Drive, Building 3, MS#3 Tallahassee, Florida 32308 (850)-412-3630 (phone)
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(850) 921-0158 (fax) Andrew.sheeran@ahca.myflorida.com
BY: /s/ Beverly H. Smith Beverly H. Smith Assistant General Counsel Fla. Bar No. 612571 2727 Mahan Drive, Building 3, MS #3 Tallahassee, Florida 32308 (850) 412-3630 (phone) (850) 921-0158 (fax) Beverly.smith@ahca.myflorida.com
BY: /s/ Debora E. Fridie Debora E. Fridie Assistant General Counsel Fla. Bar No. 0886580 2727 Mahan Drive, Building 3, MS #3 Tallahassee, Florida 32308-5407 (850) 412-3641 (phone) (850) 921-0158 (fax) Debora.fridie@ahca.myflorida.com
AGENCY FOR PERSONS WITH DISABILITIES
BY: /s/ Marc Ito Marc Ito (FBN: 61463) Agency for Persons with Disabilities 4030 Esplanade Way, Ste. 380 Tallahassee, Florida 32399-0950 Tel: (850) 922-2030 Fax: (850) 410-0665
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 all attorneys of record, on this the 5th day of June 2012.
/s/ Andrew T. Sheeran Andrew T. Sheeran
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JOANNA DYKES; LORETTA DAVIS, by and through her next friend, Trish Mlekodaj; HEATHER YOUNG, by and through her next friend Robert Stark; MICHELLE CONGDEN; AMANDA PIVINSKI; JOSHUA WOODWARD; and DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

CASE NO.: 4:11-CV-116-RS-CAS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MIKE HANSEN in his official capacity as Director of the Florida Agency for Persons with Disabilities,

Defendants. _______________________________/

PLAINTIFFS’ STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGEMENT The Plaintiffs, Joanna Dykes (“Dykes”), Loretta Davis (“Davis”), Heather Young (“Young”), Michelle Congden (“Congden”), Amanda Piviniski (“Pivinski”), Joshua Woodward (“Woodward”), and Disability Rights Florida, Inc., d/b/a Disability Rights Florida (the “P&A”), by and through their undersigned attorneys, have moved for entry of summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, and in compliance with Northern District Local Rule 56.1, file this Statement of Undisputed Facts in support their motion as follows:

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Document Sources Not Already Filed Ex. “A” - References to Dudek’s Response to Plaintiffs’ Request for Admissions are
designated herein as “Ex. “A”, ¶(¶) (no[s]).”
Ex. “B” - References to Hansen’s Response to Plaintiffs’ Request for Admissions are designated herein as “Ex. “B”, ¶(¶) (no[s]).”
Ex. “C” - References to the Interagency Agreement are designated as “Ex. C, at (page no[s]).”
Ex. “D” - References to the deposition of Leigh Meadows, dated March 6, 2012, will be referred to as follows: “Meadows Depo., (page no.):(line no[s]).”
Ex. “E” - References to the deposition of Wendy Smith, dated February 24, 2012, will be referred to as follows: “Smith Depo., (page no.):(line no[s]).”
Ex. “F” - Letter from Dan Newman, Nursing Home Transition Coordinator
Ex. “G” - Young’s Support Plan – Short Form
Ex. “H” - AHCA Analysis of Cost Savings
Ex. “I” - References to Hansen’s response to the Plaintiffs’ Interrogatories are designated herein as “Ex. “I”, ¶(¶) (no[s]).
Ex. “J” - References to Dudek’s Responses to Plaintiffs’ Interrogatories are designated herein as “Ex. “J”, ¶(¶) (no[s]).”
Ex. “K” - ”References to the deposition of Tonya Kidd, dated March 5, 2012, will be referred to as follows: “Kidd Depo., (page no.):(line no[s]).”
Ex. “L” - References to the deposition of Jolie LaTourelle-Jones, dated January 19, 2012, will be referred to as follows: “LaTourelle-Jones Depo., (page no.):(line no[s]).”
Ex. “M” - References to the deposition of ThomasWallace, dated March 5, 2012, will be referred to as follows: “Wallace Depo., (page no.):(line no[s]).”
Ex. “N” - References to the deposition of Denise Arnold, dated January 17, 2012 (Volume I) and January 18, 2012 (Volume II), will be referred to as follows: “Arnold Depo., (Vol. No.), (page no.):(line no[s]).”
Ex. “O” - Waitlist by Residence Chart

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Ex. “P” - Public Records Disclosure from APD Clerk and accompanying chart Ex. “Q” - Application for a §1915(c) Home and Community Based Waiver; Instructions,
Technical Guide, and Review Criteria Ex. “R” - Waiver Applications B-3 Tables Ex. “S” - References to the deposition of Charles Ball, dated January 17, 2012, will be
referred to as follows: “Ball Depo., (page no.):(line no[s]).”. Ex. “T” - APD’s Quarterly Fiscal Reports Ex. “U” - ICF Vacancy Data from 2009 to 2012
STATEMENT OF UNDISPUTED FACTS Plaintiffs
1. Dykes, Davis, and Young are all individuals diagnosed with a developmental disability as described in Florida Statute § 393.063. (Ex. “A”, ¶ 1; Ex. “B”, ¶ 1).
2. Pivinski, Woodward, and Congden are all persons with developmental disabilities. ((Ex. “A”, ¶¶ 2, 3 & 4; Ex. “B”, ¶¶ 2, 3, & 4).
3. At the time of filing this matter, Dykes and Davis received services in an Intermediate Care Facility for persons with Developmental Disabilities (“ICF/DD”). (Dkt. 30, ¶¶ 17 & 34).
4. Young is eligible to receive services in an ICF/DD. (Ex. “A”, ¶ 5; Ex. “B”, ¶ 5). 5. Due to their disability, Young, Congden, Woodward, and Pivinski are eligible for
the DD Waiver as long as they can meet the income and assets limits for Medicaid. (Ex. “B”, ¶¶ 9-12). 6. At the time of filing this matter, Dykes had been on the waitlist for the DD Waiver for three years; Young had been on the waitlist for the DD Waiver for

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over four years; Congden had been on the waitlist for the DD Waiver for thirteen years; Woodward had been on the waitlist for the DD Waiver for three years; Pivinski had been on the waitlist for the DD Waiver for seven years. (Dkt. No. 30, ¶¶ 17, 41, 49, 57, & 65). 7. The P&A has represented and continues to represent persons with developmental disabilities in individual actions, class actions and systemic relief initiatives affecting all such individuals. (Dkt. No. 30, ¶ 87). Defendants 8. Dudek is the Secretary for the Agency for Health Care Administration (“AHCA”). (Dkt. No. 30, ¶ 91). 9. Hansen is the Director of the Agency for Persons with Disabilities (“APD”). (Dkt. No. 30, ¶ 92). 10. The grant of rulemaking authority pursuant to Chapter 393 of the Florida Statutes, is granted to both Defendants; however, AHCA retains final authority on any administrative rules, policies, procedures, regulations, or handbooks pertaining to the DD Waivers. (Ex. “C”, at 5). 11. Defendants are jointly responsible for the operation of the DD Waivers according to 42 C.F.R. § 440.180 and 42 C.F.R. § 441, subpart G. (Ex. “C”, at 4). 12. Both Defendants have agreed to provide “proposed manuals, policies, budgetary requests, and legislative or public reports to each other for review and comment, prior to their release to third parties.” (Ex. “C”, at 5).

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13. Both Defendants have agreed to “hold regularly scheduled meetings throughout the year to discuss and address issues pertaining to the operation, management, and administration of the developmental disabilities waivers.” (Ex. “C”, at 5).
14. APD agreed to provide AHCA with monthly reports of newly enrolled waiver recipients by district, recipient’s name, Medicaid Identification number and by age as well as number of waiver recipients disenrolled from the waiver also with corresponding demographic data (Ex. “C”, at 8)
15. APD agreed to maintain up to date waiver program wait lists that accurately reflect wait list changes due to enrollments. (Ex. “C”, at 8).
16. AHCA retained final authority over the waiver application, renewal and amendment process but nonetheless agreed to “provide APD with all proposed amendments to the waiver for review and comment prior to submission to Centers for Medicare and Medicaid Services (CMS).” (Ex. “C”, at 5).
Management of ICF/DD and Nursing Facility admissions and continued stays 17. APD is responsible for Medicaid admissions to ICF/DDs. (Meadows Depo., 78:14-15; 80:18-24). 18. Pursuant to the Defendants’ Interagency Agreement, regarding ICF/DD admissions and continued residency, APD agreed to: a. Maintain vacancy and waiting lists for placement of clients in ICF/DDs. When clients select an ICF/DD for placement, APD will complete necessary assessments and be responsible for making arrangements with the ICF/DD for admission.

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b. Conduct utilization and continued stay reviews for all residents of public and private ICF/DD facilities. When review is completed, APD will send a copy of the utilization review and continued stay review documents to the APD Area office and respective ICF/DD facility. For new admissions to a facility, a copy of the review is sent to the facility and to the adult payments worker at DCF to process. (Ex. “C”, at 12).
19. Both agencies have taken responsibility to “assure that individuals have freedom of choice between home and community-based services or institutional services.” (Ex. “C”, at 4).
20. Federal law requires that the State screen individuals with mental illness and developmental disabilities prior to admission in a nursing facility to ensure that the nursing facility level of care is required and if other specialized disabilityrelated services should be provided. (Preadmission Screening and Resident Review or “PASRR”) 42 U.S.C. § 1396r; 42 C.F.R. § 483.100
21. An APD staff member sits on a work group with AHCA staff to make sure they are following the PASRR policy. (Smith Depo., 23:7-12).
22. As a nursing home recipient, APD should have conducted a PASRR II for Young. (Smith Depo., 26:11-21).
23. Young was denied acceptance to the Nursing Home Transition Program because she did “not have a residence available in the community.” Further, she specifically was denied because her “request for assistance (funding a residential

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group home for a person with a developmental disability) is not an ADA medicaid Waiver sponsored service.” (Ex. “F”). 24. APD conducted a recent Support Plan – Short Version, dated October 10, 2011, demonstrating Young’s need for waiver enrollment and supported living with coaching, personal care, and companion as requested services. APD then denied those requests stating “You have been placed on the wait list for the waiver at present, APD does not have adequate funds to provide the services you have requested. Services will be provided upon availability of funds. Eligibility determined 9-25-06.” (Ex. “G”). 25. Placement in an institutional setting precludes crisis enrollment to the DD Waiver for Dykes, Davis and Young. The causal connection for them is clear, “they will never fall into the [the crisis category].” (Dkt. No. 80, at 9). 26. Only Dykes and Davis were transitioned from their Intermediate Care Facilities (“ICF/DD”) to the DD Waiver on February 3, 2012 and December 19, 2011, respectively. (Ex. “H”). Budgeting and Planning 27. The Legislature, on July 1, 2011, granted Defendants the latitude to transfer funds from ICF/DDs to “the Developmental Disabilities Home and Community based waiver, Tier 1 through 3; Family Supported Living Waiver (Tier 4); and the Developmental Disabilities Individual Budget Waiver; to transition the greatest number of appropriated eligible beneficiaries from ICF/DD to community based alternatives in order to maximize the reduction in Medicaid ICF/DD occupancy.

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Priority for the use of these funds will be given to the planning and services areas with the greatest potential for transition success.” Ch. 2011-69, § 206, at 55, Laws of Fla.; see also Ch. 2012-118, § 251, at 62, Laws of Fla. (similar proviso language). 28. The proviso language does not allow for a line item transfer from the Budget entity for nursing homes to the DD Waiver. (Ex. “I”, ¶ 15) (Ex. “J”, ¶ 11, Attachment D). 29. As of the time of answering interrogatories on October 24, 2011, no persons had been transitioned from ICF/DDs to the DD Waiver. (Ex. “J”, ¶ 11). 30. AHCA has not done any projections as to the amount that would be needed to transition all of the people that are on the waitlist residing in ICF/DDs. (Kidd Depo., 24:1-10). 31. As of January 19, 2012, there was no formal policy or procedure for utilizing the proviso language to transition persons from ICF/DDs to the DD Waiver (LaTourelle-Jones Depo., 81:21-25; 82:1-2). 32. The Defendants did not put together a tentative plan to utilize the proviso language until February 21, 2012. (Kidd Depo., 9:10-19). 33. The monies to transition Dykes and Davis were not effectuated until February 22, 2012. (Kidd Depo., 22:19-25; 23:1-3). 34. For Dykes and Davis, the amount transferred pursuant to the proviso was about $120,000.00 combined. (Kidd Depo., 23:22-25).

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35. Dykes’ per diem rate in the previous ICF/DD setting was $373.10 per day. The annual cost of her care at the ICF/DD at that rate would have been $136,181.50 if billed at 365 days per year. Dykes was transitioned to the community on February 3, 2012. For the 149 days remaining in the fiscal year, the savings realized (the cost of care in the ICF/DD less the cost of care in the community) was $29,054. Annualized, the savings realized is $71,172.55. (Ex. “H”).
36. Davis’ per diem rate in the previous ICF/DD setting was $351.83 per day. The annual cost of her care at the ICF/DD at that rate would have been $128,417.95 if billed at 365 days per year. Davis was transitioned to the community on December 19, 2011. For the 195 days remaining in the fiscal year, the savings realized (the cost of care in the ICF/DD less the cost of care in the community) was $32,362. Annualized, the savings realized is $60,575. (Ex. “H”).
37. The average cost of a person on the DD waiver is approximately $31,000. (Dkt. No. 62, ¶ 137).
38. The savings from transition from the ICF/DD to the DD Waiver will remain in the ICF/DD budget category. Likewise, Any savings from the Nursing Home Transition Program will remain in the Medicaid Nursing home budget category. (Ex. “J”, ¶¶ 12 & 13).
39. As of March 6, 2012, the APD had neither sent letters to waitlisted individuals in ICF/DDs nor conducted interviews with them about their desire to effectuate their request for Wavier services through the use of the Proviso language (Meadows Depo., 83:23-25; 84:5-10).

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40. AHCA does not provide choice counseling on community options to waitlisted individuals in nursing facilities or ICF/DDs. (Ex. “J”, ¶ 20).
41. APD's plan to move people from the waitlist to the DD Waiver is through the crisis enrollment process. (Ex. “I”, ¶ 15).
42. APD’s only plan to prevent the institutionalization of waitlisted individuals who are ineligible for the crisis enrollment is to utilize general revenue funding to temporarily alleviate a crisis situation. (Ex. “I”, ¶ 5).
43. AHCA receives applications for Certificates of Need for providers wishing to create new or transition existing ICF/DD beds. (Ex. “J”, ¶ 23).
44. The last Certificate of Need approved by AHCA was in April 2006 and primarily relocated existing beds to three different providers while adding two new beds. (Ex. “J”, ¶ 24).
45. In June 2009, the Florida Association of Rehabilitation Facilities showed 52 vacant beds for ICF/DD placements. (Ex. “U”) (http://www.floridaarf.org/vendorimages/farf/2009_june_icfdd.pdf).
46. In March 2012, the Florida Association of Rehabilitation Facilities showed 52 vacant beds for ICF/DD placements. (Ex. “U”) (http://www.floridaarf.org/vendorimages/farf/2012_march_icfdd.pdf).
47. Despite constant vacancies, the funding for private ICF/DDs has risen from 2009 to present. (Wallace Depo., 30:17-23).

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48. Despite the constant vacancies, the private ICF/DDs have been allowed to “buy back” rates greater than FY2008 levels through Quality Assessment Fees. (Ex. “J”, ¶ 27).
The DD Waiver and its Waitlist 49. Currently, there are over 20,000 individuals on the waitlist for the DD Waiver program. (Arnold Depo., I, 25:16-18). 50. As recently as July 2010, as many as 49.4% of those individuals waiting for DD Waiver services had been waiting more than four years. Of those, 37.2% had been waiting longer than five years. (Dkt. No. 62, ¶¶ 142 & 143). 51. As of March 5, 2012, there are 233 individuals on the waitlist residing in ICF/DDs. (Kidd Depo., 24:1 - 25:1). 52. The number of waitlisted persons residing in ICF/DDs increased from 165 in 2009 to 199 by February 2011. (Ex. “O”). 53. As of September 2010, there were at least 115 persons with developmental disabilities on the waitlist residing in Nursing Facilities. (Ex. “P”). 54. Defendants have adopted Fla. Admin. Code R. 65G-11.002 to define the waitlist categories, pursuant to Section 393.065(5) of the Florida Statutes. 55. The first category is for those determined by the agency to be in “crisis” As defined in Fla. Admin. Code R. 65G-1.047. Fla. Admin. Code. 65G-11.002(3). 56. The legislature authorized the Defendants to define the definition of “crisis” by rule. §§ 393.065(7) & (5)(a), Fla. Stat.

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57. Those in crisis have the designation of being homeless, without a caregiver or a danger to themselves or others. (Ex. “I”, ¶ 3).
58. The Defendants accept new enrollees to the waiver only through this “crisis” category. (Arnold Depo., I, 116:25 - 117:3) (Ex. “I”, ¶ 3).
59. Persons in other waitlist categories are not enrolled onto the waiver and the agency has no plans to begin enrollment from the other waitlist categories. (Ex. “I”,¶ 15) (Arnold Depo., I, 116:25 - 117: 3).
60. In a state’s application for a waiver to the federal Centers for Medicaid and Medicare services (“CMS”), the state must identify the “unduplicated number of individuals that the state intends to serve each year the waiver is in effect. It is up to the state to determine this number, based on the resources that the state has available to underwrite the costs of waiver services. As state resources permit, this number may be modified by amendment while the waiver is in effect.” (Application for a §1915(c) Home and Community Based Waiver; Instructions, Technical Guide, and Review Criteria (Ex. “Q”, a 2).
61. Appendix B of the waiver application “is designed to answer the question: ’Who receives waiver services?’ In this Appendix, a state specifies:[ …] (c) the number of individuals who will be served in the waiver and how this number will be managed during the period that the waiver is in effect; […] (g) how individuals are afforded freedom of choice in selecting between institutional and home and community-based services[.]” (Ex. “Q”, at 18).

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62. The explanation for Appendix B-3 of the waiver application directs States to explain: “How many individuals will be served each year during the period that the waiver is in effect and how that number is managed.” (Appendix B-3) (Ex. “Q”, at 79).
63. The number provided by the State in Appendix B-3 of the waiver is the number of individuals the state intends to receive services through the waiver for each waiver year. (Meadows Depo., 25:25; 27:1-3 & 7-18).
64. Appendix J-2-a of the waiver tables reflects the unduplicated number of participants. (Ex. “J”, ¶ 6, Attachment E).
65. CMS gives explicit guidelines on what this number means and how it is to be applied to waiver applicants seeking enrollment: “Until the maximum number of unduplicated participants in the approved waiver is reached, a state may not deny entry to the waiver of otherwise eligible individuals unless the state elects to establish a point-in-time enrollment limit, adopts a phase-in or phase-out schedule, or reserves capacity for specified purposes (see following items). As a consequence, the number of persons who will be served should be based on a careful appraisal of the resources that the state has available to underwrite the costs of waiver services.” (Ex. “Q”, at 82).
66. Florida has not elected to establish a point-in-time enrollment limit, a phase-in or phase-out schedule, or reserved capacity for specified purposes. (Ex. “A”, ¶ 32; Ex. “B”, ¶ 32).

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67. The B-3 Tables of the five waiver applications indicates the state sought and received approval for at least 31,500 waiver recipients. (Ex. “R”).
68. The Defendants have not sought an amendment to reduce the number of unduplicated recipients. (Meadows Depo., 42:7-10).
69. For the past five years, only those persons deemed to be in “crisis” have been enrolled and receiving services through the DD Waiver. (Dkt. No. 62, ¶ 9).
70. New “crisis enrollments” are funded solely through attrition of current DD Waiver recipients. (Arnold Depo., II, 196:20 - 197: 3).
71. As of March 1, 2011, there were 30,033 individuals enrolled in the DD Waiver. (Ex. “B”, ¶ 23).
72. As of November 1, 2011 there were 29,624 individuals enrolled in the DD Waiver evidencing the declining number of DD Waiver clients. (Ex. “B”, ¶ 21).
73. The number of unduplicated recipients is shrinking. (Ball Depo., 162:1-11) 74. APD provides services to waitlisted persons through general revenue funds in
their Individual Family Supports (“IFS”) program. (Dkt. No. 62, ¶ 146). 75. IFS funds are used to void crisis situations. (Arnold Depo., I, 122:8-12). 76. The number of waitlisted individuals receiving services through the Individual
Family Supports (IFS) program ranges from 1,000 to 1,600 individuals. Funding for the IFS program comes from General Revenue Funds and Social Services Block Grant. (Ball Depo., Ex 10, at7; Ex. “T”, Table 2a).

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77. For persons with developmental disabilities, APD is the only agency that provides follow-along or “Phase II” supported employment services. (Arnold Depo., II, 147:10-13).
78. Supported employment may mean the provision of a personal care assistant to come into the work site when the individual needs it. (Arnold Depo., II, 149:810).
79. The Supported employment services, Phase II, can be funded through the IFS program. (Arnold Depo., II, 150:3).
80. If there is no funding to provide the service or to even make the commitment for Phase II, the service won’t be provided. (Arnold Depo., II, 150:16-18).
81. The disbursement of IFS funds to the area offices is typically dependent on the waitlist caseload size and their last expenditure pattern. (Arnold Depo., II, 151:810).
82. There are no standard operating procedures, policies or spending plan memos for the use of IFS funds by the area administrators. (Arnold Depo., II, 151:18-23; 153:22-23).
83. If there is not enough funding to provide Phase II Supported Employment to all who qualify, the area offices determine what to do with the IFS funds. (Arnold Depo., II, 154:20-25).
84. The APD can utilize IFS funds to provide waiver services such as Adult Day Training in an ongoing manner, for years and years or decades and decades. (Arnold Depo., II, 171:25 - 172:14).

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85. Services provided through IFS are the same as those provided on the DD Waiver (Arnold Depo., II, 173:3-6).
86. Defendants have assigned all waitlisted persons to prioritization categories. (Arnold Depo., II, 176:13-19).
87. Defendants do not know if any of the Plaintiffs received notification of their assigned waitlist prioritization category. (Dkt. No. 62, ¶ 23; Dkt. No. 63, ¶ 23).
88. Applicants are only notified of their prioritization category if they ask for it. (Arnold Depo., I, 117:9-12)
89. Applicants who seek a reassessment of their prioritization category will get notice in writing of the agency’s determination but it is uncertain if that written notice will contain fair hearing rights. (Arnold Depo., I, 124:13-21).
90. Changing categories on the waitlist prioritization requires affirmative action by the family or individual to the agency, e.g. (Arnold Depo., I, 122:22 - 123:2).
Respectfully submitted on behalf of the Plaintiffs in support of their Motion for Summary Judgment.
Dated this 2nd day of May 2012.
By s/ Amanda Heystek Amanda Heystek, Esquire Florida Bar No. 0285020 Disability Rights Florida 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org Lead Trial Counsel

Case 4:11-cv-00116-RS-CAS Document 125 Filed 05/02/12 Page 17 of 17

By

s/ Paul E. Liles

Paul E. Liles, Esquire

Florida Bar No. 0921270

Disability Rights Florida

Senior Trial Counsel

paull@disabilityrightsflorida.org

Christopher White, Esquire

Florida Bar No. 0060109

christopherw@disabilityrightsflorida.org

1000 N. Ashley Drive, Suite 640

Tampa, Florida 33602

Maryellen McDonald,

Director of Legal and Advocacy Services

Florida Bar No. 607533

maryellenm@disabilityrightsflorida.org

2728 Centerview Drive, Suite 102

Tallahasseee, FL 32301

(850) 488-9071 Telephone

(850) 488-8640 Facsimile

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by CM/ECF to all attorneys of record this 2nd day of May 2012.

By s/ Amanda E. Heystek Amanda E. Heystek, Esquire Florida Bar No. 0285020 Disability Rights Florida, Inc. 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org

 
 Case 4:11-cv-00116-RS-CAS Document 148 Filed 07/06/12 Page 1 of 1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,
Plaintiffs,
v.
ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MIKE HANSEN in his official capacity as Director of the Florida Agency for Persons with Disabilities,
Defendants,

CASE NO.: 4:11-CV-00116-RS-CAS

MEDIATION REPORT

The undersigned reports to the court that the parties, having mediated this case on May 7,

8, 16, 2012 and with continuing negotiations, have amicably resolved all issues between them

in this case.

/~

DATED this t2 day of July, 2012.

Copies furnished electronically using CMIECF: The Honorable Richard W Smoak Mary Ellen McDonald Amanda Heystek Christopher White Darcy Abbott Andrew Sheeran Michael Palecki Mark Ito

Messer, Caparello ~ Self, P.A. Post Office Box 15579 Tallahassee, Florida 32308 (Mediator)

 
 Case 4:11-cv-00116-RS-CAS Document 149 Filed 07/09/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

DISABILITY RIGHTS FLORIDA, INC., a Florida non-profit corporation,

Plaintiff, vs.

CASE NO. 4:11cv116/RS-CAS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MIKE HANSEN, in his official capacity as Director of the Florida Agency for Persons with Disabilities,

Defendants. __________________________________

ORDER

Before me is the Mediation Report noting that the parties have reached a

settlement. (Doc. 148). Pursuant to N.D. Fla. Loc. 16.2,

IT IS ORDERED:

1. The case is dismissed from the active docket of the court.

2. In the event that the settlement is not consummated, the court reserves

jurisdiction, upon motion filed by any party within sixty days of the date of this

Order, to amend or vacate and set aside this Order and reinstate the case.

3. The clerk is directed to close the file of this case for administrative purposes,

and upon the expiration of sixty days without activity, the clerk is direct to

close the case in its entirety for all purposes.

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4. All pending motions are denied as moot.

ORDERED on July 9, 2012.

/S/ Richard Smoak RICHARD SMOAK UNITED STATES DISTRICT JUDGE

 
 Case 4:11-cv-00116-RS-CAS Document 143 Filed 06/26/12 Page 1 of 23

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,
Plaintiff,
v.

Case No. 4:11-cv-00116-RS-CAS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MICHAEL HANSEN in his official capacity as Director of the Florida Agency for Persons with Disabilities,
Defendants. ________________________________/
DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT
The Defendants, Elizabeth Dudek, in her official capacity as Secretary of the
Agency for Health Care Administration (“AHCA”), and Michael Hansen, in his official
capacity as Director of the Florida Agency for Persons with Disabilities (“APD”), by and
through undersigned counsel, hereby file this Motion for Summary Judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure, Local Rule 56.1, and this Court’s Order
dated May 15, 2012 [Doc. 135]. In support, Defendants state as follows:
1. At the time the Amended Complaint [Doc. 30] was filed, plaintiffs
included eight individuals and Disability Rights Florida, Inc. (“DRF”). The individual

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named plaintiffs were all on the waiting list for the Florida Medicaid Developmental Disabilities Waiver program.1
2. At this time, DRF is the only remaining plaintiff in this suit. All individual named plaintiffs have been dismissed as parties. [Doc. 134, 136, 137]. In spite of its lack of success in certifying a class, DRF continues to pursue this matter under the amorphous, quasi-class action theory of associational standing.
3. As set forth in Defendants’ Motion to Dismiss Disability Rights Florida, Inc.’s Amended Complaint for Lack of Standing [Doc. 139], DRF lacks standing to pursue this matter without the participation of the individual named plaintiffs.
4. Even if DRF had standing and the claims raised in the Amended Complaint were not moot, the undisputed facts show that Defendants are entitled to judgment as a matter of law. For the reasons set forth in the incorporated memorandum of law below, summary judgment should be entered in favor of the Defendants.
MEMORANDUM OF LAW I. INTRODUCTION
Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Rule 56(c), Fed. R.Civ.P. There must be more than a simple disputed fact involved, “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
1 The Florida Medicaid Developmental Disabilities Waiver program is made up of five separate Medicaid waiver programs: Tier 1, Tier 2, Tier 3, Tier 4, and iBudget (together, the “D.D. Waiver”).
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Lobby, Inc., 477 U.S. 242, 247-8 (1986). The moving party has the responsibility to inform the court why it is seeking the motion and to show the court the portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has accomplished this, “the nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). “A mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F. 2d 1573, 1577 (11th Cir. 1990); see also Anderson, 477 U.S. at 252 (1986). II. WITH RESPECT TO COUNT ONE, JUDGMENT SHOULD BE
ENTERED FOR DEFENDANTS AS A MATTER OF LAW A. The pleadings as they now stand no longer state a claim upon which
relief can be granted for violation of the “reasonable promptness” provision of the Medicaid Act. In Count One, Plaintiff asserts that Defendants “have failed and continue to fail to provide adequate DD Waiver services with reasonable promptness.” [Doc. 30, ¶ 165]. However, once the specific allegations in the Amended Complaint related to the former individual named plaintiffs are set aside, the remaining allegations are not sufficient to support a claim upon which relief can be granted. The Medicaid Act requires that state Medicaid programs “provide that all individuals wishing to make application for medical assistance under the plan shall have
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opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). In this provision, the focus is on “individuals.” However, with the exception of the former individual named plaintiffs who have all been dismissed as parties, the Amended Complaint makes no reference to a single individual who has been denied the reasonably prompt provision of Medicaid services. Rather, the Amended Complaint makes only generalized allegations that are not tied to any concrete human beings. The factual allegations in a complaint need not be detailed, but they must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed, such allegations “must be enough to raise a right to relief above the speculative level.” Id. It is difficult to imagine anything more formulatic and speculative than an allegation of a violation of a personal entitlement that fails to include any reference to an actual person. With the exception of the now-moot claims associated with the former individual named plaintiffs, the Amended Complaint fails to state a claim upon which relief can be granted with respect to Count One.
Because the Amended Complaint as it now stands fails to state a claim upon which relief can be granted, the only way to save DRF’s case would be to amend the Complaint again. After the period for amendments as a matter of course have passed, as is the case here, amendments to pleadings are permitted “only with the opposing party’s written consent or the court’s leave.” Rule 15(a)(2), Fed. R. Civ. P. While Plaintiff has not moved to file a Second Amended Complaint, such a motion, were it to be filed, should not be granted. An amendment to a pleading is not appropriate where it could
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cause “undue prejudice to the defendants.” Abramson v. Gonzalez, 949 F.2d 1567, 1581 (11th Cir. 1992).
Here, the Defendants would be severly prejudiced if DRF was permitted to amend its complaint. Defendants vigorously opposed certification of a plaintiff class. Having succeeded in these efforts, Defendants expended significant effort preparing to defend the claims of the individual named plaintiffs without any expectation that there was a quasiclass looming in the background. Once the individual named plaintiffs claims were settled, Defendants had every reason to expect that this case would be summarily brought to a conclusion. To now resurrect DRF’s class action claims in the form of DRF’s associational representation of its constituents would constitute undue prejudice to the Defendants. See McKenna v. United States, 21 F. App'x 591, 592 (9th Cir. 2001) (holding that magistrate judge did not abuse discretion in denying motion for leave to amend complaint because amendment of complaint on eve of trial would result in prejudice and undue delay); Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008) (“Undue prejudice arises when an amendment [comes] on the eve of trial and would result in new problems of proof”) (internal quotations omitted).
Because the Plaintiff did not, and cannot now, plead and prove the necessary elements of its claim in Count I, Defendants are entitled to the entry of summary final judgment in their favor as a matter of law.
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B. Even if the pleadings did state a claim for “reasonable promptness,” the undisputed facts show that, with respect to Count One, judgment should be entered for Defendants as a matter of law.
Only “eligible individuals” have an entitlement to the reasonably prompt provision of Medicaid services. 42 U.S.C. § 1396a(a)(8). In Florida, an “eligible individual” is “an individual whom the Department of Children and Family Services, or, for Supplemental Security Income, by the Social Security Administration, determines is eligible, pursuant to federal and state law, to receive medical assistance and related services for which the agency may make payments under the Medicaid program.” § 409.901(19), Fla. Stat. Eligibility for the D.D. Waiver further requires “a diagnosis of Down syndrome or a developmental disability as defined in [§ 393.063, Fla. Stat.].” § 393.0661(3), Fla. Stat.
Because the D.D. Waiver is a home and community based waiver program pursuant to § 1396n(c) of the Medicaid Act, AHCA is permitted to limit the number of recipients served. 42 U.S.C. § 1396n(c)(4)(A), (9), (10); 42 C.F.R. § 441.303(c)(6). The limit on the number of individuals to be served constitutes a “constraint on eligibility.” Boulet v. Cellucci, 107 F. Supp. 2d 61, 77 (D. Mass. 2000). Only those individuals who are “under the cap” are eligible and therefore entitled to the reasonably prompt provision of Medicaid services pursuant to § 1396a(a)(8). See id. (“eligible individuals under the cap are entitled to waiver services.”). Only “[t]hose patients who are on the waiting list and for whom slots are available” are “eligible.” Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir. 2002). To the extent that the number of individuals on the waiting list is greater than the number of “available” slots on the D.D. Waiver, there are individuals on the
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waiting list with no entitlement to reasonable promptness and thus no claim under Count One. See Susan J. v. Riley, 616 F. Supp. 2d 1219, 1241 (M.D. Ala. 2009) (“The many persons who are on the waiting list, who evidently meet the preliminary eligibility requirements, but who are not entitled to one of the few available Waiver slots are not entitled to the provision of medical assistance with reasonable promptness.”).
With regard to the D.D. Waiver, the question of “available slots” is complex. Each of the individual waivers that make up the D.D. Waiver has a separate “unduplicated recipient” cap. See Affidavit of Leigh Meadows, dated June 26, 2012, ¶¶ 3-8 [Doc. 142-1 ]. In Tier 1 of the D.D. Waiver, the unduplicated recipient cap is 4,000. Id., ¶ 4. In Tier 2, the unduplicated recipient cap is 5,000. Id., ¶ 5. In Tier 3, the unduplicated recipient cap is 7,500. Id., ¶ 6. In Tier 4, the unduplicated recipient cap is 15,000. Id., ¶ 7.
The unduplicated recipient cap is “the number of unduplicated beneficiaries to which [the State] intends to provide waiver services in each year of its program.” 42 C.F.R § 441.303(c)(6). The unduplicated recipient cap “will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment.” Id. On its face, then, the unduplicated recipient cap is a ceiling beyond which a state may not go, not a floor below which the the program must not fall.
That the unduplicated recipient cap is not a floor is further evidenced in the federal Medicaid regulation governing the replacement of waiver recipients. This regulation provides that the state’s “estimate of the number of individuals who may
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receive home and community-based services [i.e., the unduplicated recipient cap] must include those who will replace recipients who leave the program for any reason.” 42 C.F.R. § 441.305(a). In other words, individuals who leave the waiver and those who replace them on the waiver – two categories of recipients that by definition cannot be served at the same time – are included in the same unduplicated recipient cap number. The unduplicated recipient cap number thus cannot constitute a floor because the regulations governing Medicaid contemplate that not all of the recipients in this number will be served at the same time. The unduplicated recipient cap is therefore not identical with the concept of “available slots” as envisioned by the Bryson and Susan J. courts.
Furthermore, irrespective of the significance of unduplicated waiver caps, the analysis for “available slots” in the D.D. Waiver includes another important factor. The applications for the four waivers collectively constituting the D.D. Waiver – all of which have been approved by the federal Centers for Medicare and Medicaid Services (“CMS”) – tie entry onto the D.D. Waiver to either the availability of funds (iBudget and Tiers 1 through 3) or a determination that the individual is in Crisis (Tier 4). [Doc. 123-9, 12310]. With regard to the iBudget and Tier 1 through 3, the waiver applications, which have all been approved by CMS, state in Appendix B-3-f:
When the level of funding appropriated by the Florida Legislature provides funding for additional vacancies on the waiver, individuals shall be added to the waiver in the following order unless otherwise specified in the Appropriations Act for the current fiscal year.
1. Individuals determined by assessment using the Crisis Identification Tool to be in crisis shall have first priority for services.
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2. Individuals with valid Court Orders or diversions from programs for persons adjudged incompetent to stand trial.
3. Children on the wait list who are from the child welfare system with an open case in the Department of Children and Family Services’ statewide automated child welfare information system.
4. All other individuals shall be considered for enrollment on the waiver in the date order in which they are listed on the statewide waitlist, beginning with the earliest dates.
[Doc. 123-10]. Because this language was approved by CMS, it constitutes an agreement between CMS and AHCA as to how individuals are to obtain entry on to the D.D. Waiver. Indeed, when AHCA included this language in its applications to CMS, AHCA’s staff understood the language to mean that eligibility would only extend to those individuals for whom there was sufficient funding to serve them on the D.D. Waiver. See Affidavit of Leigh Meadows, dated June 26, 2012, ¶ 10 [Doc. 142-1 ]. The current level of funding of the D.D. Waiver cannot support new enrollees who are not either in crisis or foster children turning eighteen years old. See Affidavit of Marta Hardy, dated June 25, 2012, ¶ 1 [Doc. 142-2 ]. As such, there are no “additional vacancies” on the D.D. Waiver. See Affidavit of Marta Hardy, dated May 1, 2012 [Doc. 123-5]. Because there are currently no vacancies on the D.D. Waiver – except for individuals determined to be in crisis, foster children turning eighteen years old, and persons ordered onto the waiver by a court – there are no individuals eligible for D.D. Waiver services in iBudget or Tiers 1 through 3 who are not currently being served.
With regard to Tier 4, the waiver application approved by CMS limits entry on the waiver to “the Crisis determination process due to limitation of funds.” [Doc. 123-10,
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at 7]. When AHCA included this language in its waiver application for Tier 4, AHCA’s staff understood the language to mean that eligibility would only extend to those individuals for whom a crisis determination has been made. See Affidavit of Leigh Meadows, dated June 26, 2012, ¶ 12 [Doc. 142-1 ]. Thus, only individuals who have been determined to be in crisis are eligible for Tier 4 of the D.D. Waiver. APD has “never failed to either provide services to, or assist with acquiring services for, a person determined to be in crisis as defined by the Florida Administrative Code, Rule 65G1.047.” Affidavit of Denise Arnold, dated May 1, 2012 [Doc. 123-4]. Therefore, no person eligible for Tier 4 has ever been denied services.
To summarize, only “eligible” individuals are entitled to the reasonably prompt provision of Medicaid services. For Medicaid waiver programs, eligibility is contingent upon the existence of available slots in the waiver. Vacancies on the D.D. Waiver are tied to the availability of funds and there are no available funds to support new enrollments outside of those categories described above. There are therefore no vacancies on the D.D. Waiver and thus no eligible individuals who are not already being served. Accordingly, summary final judgment should be entered in favor of Defendants as to Count One. III. WITH RESPECT TO COUNT TWO, JUDGMENT SHOULD BE
ENTERED FOR DEFENDANTS AS A MATTER OF LAW A. The pleadings as they now stand no longer state a claim upon which
relief can be granted for violation of § 1396n(c)(2)(C) of the Medicaid Act. In Count Two of the Amended Complaint, Plaintiff alleges that Defendants “engage in a pattern and practice that forces plaintiffs to forgo any Medicaid services and
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to languish on the waitlist” which, according to DRF, “violates statutory freedom of choice requirement under the Social Security Act, § 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2).” [Doc. 30, ¶¶ 180-181]. Plaintiff finds the supposed violation of “statutory freedom of choice” in: (i) Defendants’ alleged “allocat[ion of] scarce resources to institutions and institutional-like settings to the detriment of community services in the DD Waivers”; and, (ii) Defendants’ alleged “fail[ure] to remove barriers in their rules, policies, and implementation of their programs for the putative class to exercise their freedom of choice to receive services in the community.” [Doc. 30, ¶¶ 183, 186].
At the outset, it should be noted that DRF attempts to make much more of the socalled “statutory freedom of choice requirement” than can be supported by the text of 42 U.S.C. § 1396n(c)(2) itself. Indeed, as this Court has noted “Plaintiffs’ so called ‘freedom of choice requirement’ is not nearly as expansive as their naming of the requirement might suggest.” [Doc. 60, at 5]. The Medicaid Act requires that states obtaining a waiver under § 1396n(c) provide CMS assurances that:
individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(2)(C) (emphasis added). As this Court has also noted, “this section creates an obligation to inform, not an obligation to provide.” [Doc. 60, at 5]. Regardless of Plaintiff’s misapplication of the scope of § 1396n(c)(2)(C), the pleadings as they now stand fail to state a claim for a violation of the provision. As is the case with the reasonable promptness claim, once the specific allegations related to the
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individual named plaintiffs are set aside, the Amended Complaint cannot support a claim for a violation of § 1396n(c)(2)(C).
As set forth above, the text of § 1396n(c)(2)(C) refers to “individuals.” However, with the exception of the now dismissed former individual named plaintiffs – whose claims are now moot – the Amended Complaint does not identify a single individual who has not been informed of feasible alternatives. Even if all the factual allegations supporting Count Two were correct, they are meaningless if they are not tied to an actual person. These “formulaic recitation[s]” utterly fail “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Again, the only way to save DRF’s claim in Count Two would be for DRF to file a Second Amended Complaint. This should not be permitted as it would unduly prejudice Defendants. Accordingly, Defendants are properly entitled to the entry of summary final judgment in their favor as to Count Two.
B. Even if the pleadings did state a claim for a violation of § 1396n(c)(2)(C), the undisputed facts show that, with respect to Count Two, judgment should be entered for Defendants as a matter of law.
As noted, the provision of the Medicaid Act at issue in Count Two creates an obligation to inform, not provide services. The language of § 1396n(c)(2)(C) limits the obligation even further. State Medicaid programs are only required to inform regarding “feasible alternatives, if available under the waiver.” 42 U.S.C. § 1396n(c)(2)(C). As there are currently no vacancies on the D.D. Waiver, there are no alternatives currently “available.” See Affidavit of Marta Hardy, dated May 1, 2012 [Doc. 123-5]. To put it another way, as there is insufficient funding to enroll recipients currently living in the
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community to the D.D. Waiver at this time, enrollment on the D.D. Waiver is not “feasible.” See Affidavit of Marta Hardy, dated June 25, 2012 [Doc. 142-2 ]. As there are no feasible alternatives available under the waiver, the Defendants have no duty to inform anyone of anything under § 1396n(c)(2)(C).
Even if § 1396n(c)(2)(C) did impose enforceable obligations in this case, the Defendants are already meeting those obligations. In March 2012, APD began conducting face-to-face meetings with each individual and his or her guardian who is currently living in an ICF/DD facility and is on the waiting list for D.D. Waiver. See Affidavit of Terri McGarrity, ¶ 3, dated June 25, 2012 [Doc. 142-4 ]. These meetings outline the options available to the individual in the community and describe the services provided by the D.D. Waiver. Id. The individual or guardian is asked to complete a Documentation of Choice form to indicate if the individual is interested in moving to community based services at this time and this form is filed in the individual’s central record. Id.
The Eleventh Amendment limits the Court’s power in this matter to prospective relief to halt an ongoing violation of federal law. Green v. Mansour, 474 U.S. 64, 68 (1985). A federal court is prohibited from granting retrospective relief for a state’s past violations of federal law and is prohibited from issuing declaratory judgments on whether a state’s past conduct violated federal law. Id. Since Defendants are currently providing the information that would be required by § 1396n(c)(2)(C), any allegations that Defendants failed to do so in the past are immaterial to this case.
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Because § 1396n(c)(2)(C) does not impose any obligations upon Defendants that

Defendants are not already meeting, judgment should be entered for Defendants as a

matter of law with respect to Count Two.

IV. WITH RESPECT TO COUNT THREE, JUDGEMENT SHOULD BE ENTERED FOR DEFENDANTS AS A MATTER OF LAW

A. The pleadings as they now stand no longer state a claim upon which relief can be granted for violation of the Americans with Disabilities Act or Section 504 of the Rehabilitation Act.

In Count Three of the Amended Complaint, DRF alleges that Defendants violate

Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”). Specifically,

DRF claims that Defendants’ “failure to provide DD Waiver services to named plaintiffs

and class members in the community places them in jeopardy of receiving services in an

institution, rather than in the most integrated setting appropriate to their needs, in

violation of the integration mandate of the ADA and 504 of Rehabilitation Act.” [Doc.

30, ¶ 215].

The ADA provides 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. The ADA is implemented in regulations

promulgated by the Department of Justice. 28 C.F.R. Pt. 35. These regulations provide

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).

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Section 504 contains a prohibition of discrimination similar to that of the ADA. Likewise, the regulations implementing Section 504 are similar to those implementing the ADA. See 45 C.F.R. Part 84. For the purposes of this Motion for Summary Judgment, Section 504 and the ADA can be analyzed interchangeably. See Cash v. Smith, 231 F.3d 1301, 1305, n.2 (11th Cir. 2000).2
The ADA allegations in the Amended Complaint are ambiguous. For example, Plaintiff’s state that “unnecessarily allocating…funds for institutional long-term care…violates the ADA.” [Doc. 30, ¶ 209]. This is a patent fabrication as the ADA says nothing about how funds must be allocated. However, taking all of the allegations in Count Three together, it becomes clear that DRF is essentially arguing that Defendants violate the ADA by unjustifiably institutionalizing persons with disabilities. See Amended Complaint [Doc. 30], ¶ 210 (alleging that “defendants have unnecessarily institutionalized plaintiffs and class members”), ¶ 211 (alleging that Defendants “perpetuat[e] the unnecessary segregation of those in institutions”), ¶ 215 (alleging that Defendants place “plaintiffs and class members…in jeopardy of receiving services in an institution, rather than in the most integrated setting appropriate to their needs”). Though the case is not mentioned by name in the Amended Complaint, it is nonetheless clear that the allegations in Count Three are claims of discrimination in the form of unjustifiable
2 There are in fact important differences between the ADA and Section 504. For example, the scope of the ADA is broader than that of Section 504. Defendants reserve the right to argue the significance of this and other distinctions between the ADA and Section 504 if this litigation progresses. However, the arguments in this Motion for Summary Judgment focus on the broader ADA and thus necessarily encompass the narrower Section 504.
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institutionalization as defined in the Supreme Court case Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
In Olmstead, the Supreme Court addressed the question “whether the proscription of discrimination” found in the ADA “may require placement of persons with mental disabilities in community settings rather than in institutions.” Id. at 587. The Court held that the answer was “a qualified yes.” Id. “Such action is in order when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. These criteria constitute the elements of an ADA claim under Olmstead. [Doc. 60, at 6].
The pleadings as they now stand no longer state a claim upon which relief can be granted for Count Three. Once the allegations related to the former individual named plaintiffs are set aside, what remains does not add up to a violation of the ADA. As with the Medicaid Act claims, the ADA is framed around discrimination to individuals. See 42 U.S.C. § 12132. However, with the exception of the former individual named plaintiffs, the Amended Complaint does not reference a single individual who has experienced discrimination. Not one actual person who has been institutionalized, segregated, or placed at risk of institutionalization or segregation is identified or even alluded to. It goes without saying that, lacking a specific individual, the other elements under Olmstead cannot be established. The State’s treatment professionals obviously cannot make a determination as to whether community placement is appropriate for a
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hypothetical anonymities. A theoretical person cannot have an opinion about his or her conjectural transfer to a less restrictive setting. Indeed, the Amended Complaint does not contain even a cursory attempt to make allegations satisfying the elements set forth in Olmstead. Consequently, Plaintiff has not, and cannot now, plead and prove the necessary elements of its claim in Count Three without impermissibly prejudicing Defendants through the filing of an amended pleading and relitigation of this suit from the intial pleadings stage. Defendants are, therefore, entitled to the entry of summary final judgment in their favor as to Count Three. B. Even if the pleadings did state a claim under the ADA, the undisputed facts
show that, with respect to Count Three, judgment should be entered for Defendants as a matter of law. When the elements of Olmstead are met for an individual, APD will enroll the individual on the D.D. Waiver. For an individual who is currently institutionalized in an Intermediate Care Facility for the Developmentally Disabled (“ICF/DD”), the Defendants have authority to transfer funds from the ICF/DD line item to the D.D. Waiver budget in order to serve the individual on the D.D. Waiver. See Laws of Florida Chapter 2011-69, Specific Appropriation 206; Laws of Florida Chapter 2012-118, Specific Appropriation 222. There is thus no financial barrier to transitioning individuals from an ICF/DD to the D.D. Waiver. See Affidavit of Terri McGarrity, dated June 25, 2012, ¶ 2 [Doc. 142-4 ]. The Defendants are currently operating an ICF/DD transition program in order to identify and assess individuals who wish to transition. See Id. APD, in consultation with AHCA, has developed a plan to identify and transition all eligible individuals residing in ICF/DDs to the D.D. Waiver by June 30, 2013. See Affidavit of Vicki Draughon, dated
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May 1, 2012 [Doc. 123-3]. Importantly, APD has discovered through contact with ICF/DD residents who are on the wait list for the D.D. Waiver that many do not wish to leave the ICF/DD. See Affidavit of Terri McGarrity, dated June 25, 2012, ¶ 6 [Doc. 1424]. Of the 247 individuals who have been contacted, 157 have declined enrollment onto the D.D. Waiver. Id. Thus, the mere fact that an individual is residing in an ICF/DD and is on the waiting list for the D.D. Waiver cannot be taken as evidence of unjustified institutionalization.
Individuals who currently reside in the community have no claim under the ADA for unjustifiable institutionalization unless they are at risk of institutionalization. To have a claim for unjustified institutionalization, an individual must, at the very least, “stand imperiled with segregation.” Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003).
Defendants do not require individuals at risk of institutionalization to languish on the waiting list without service. Rather, APD has a crisis prioritization rule designed to capture those individuals who stand imperiled with segregation and prioritize their enrollment on the D.D. Waiver. § 393.065(5), Fla. Stat.; Fla. Admin. Code R. 65G11.002. An individual is considered to be in the first priority crisis category if he or she is “currently homeless, living in a homeless shelter, or living with relatives in an unsafe environment.” Fla. Admin. Code R. 65G-1.047(4). Indicia relevant to whether an individual is in the first priority crisis category include, among other things, whether “[w]ithout immediate provision of waiver services, the health and safety of the applicant are at risk;” whether the individual “temporarily is staying with friends or relatives but
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residence is not expected to last more than several weeks;” and whether the individual “requires services of greater intensity.” Id.
An individual is considered to be in the second priority crisis category if he or she “exhibits behaviors that, without provision of immediate waiver services, may create a life-threatening situation for the applicant or others, or that may result in bodily harm to the applicant or others requiring emergency medical care from a physician.” Fla. Admin. Code R. 65G-1.047(5). Indicia relevant to whether an individual is in the second priority crisis category include, among other things, whether “[w]ithout immediate waiver services, the health and safety of the applicant or others in the household is at risk;” whether “[n]o other supports are available to address the applicant’s behaviors;” and whether the applicant “requires services of greater intensity.” Id.
An individual is considered to be in the third priority crisis category if his or her “current caregiver is in extreme duress and is no longer able to provide for the applicant’s health and safety because of illness, injury, or advanced age” and the individual “needs immediate waiver services to remain living with the caregiver or to relocate to an alternative living arrangement.” Fla. Admin. Code R. 65G-1.047(6). Indicia relevant to whether an individual is in the third priority crisis category are similar to those for the first and second priority crisis categories.
Taking all the criteria for crisis categorization into account, it is impossible to conceive of an individual who is at risk of institutionalization but would not qualify for crisis. Indeed, if the individual does not qualify for crisis categorization, it would effectively mean that the individual is not: “in an unsafe environment,” exhibiting
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behaviors that “may result in bodily harm to the applicant or others requiring emergency medical care from a physician,” and is not in “need[ of] immediate waiver services to remain living with the caregiver or to relocate to an alternative living arrangement.” Fla. Admin. Code R. 65G-1.047. An individual who meets none of these criteria are not in substantial risk of institutionalization. Therefore, the crisis categorization criteria are, at least, coextensive with a true risk of institutionalization.
As explained above, APD has “never failed to either provide services to, or assist with acquiring services for, a person determined to be in crisis as defined by the Florida Administrative Code, Rule 65G-1.047.” Affidavit of Denise Arnold, dated May 1, 2012 [Doc. 123-4]. Therefore, no person at substantial risk of institutionalization has been denied services on the D.D. Waiver.
Because Defendants are not unjustifiably institutionalizating individuals on the waiting list for the D.D. Waiver, judgment should be entered for Defendants as a matter of law with respect to Count Three. V. WITH RESPECT TO COUNT FOUR, JUDGMENT SHOULD BE
ENTERED FOR DEFENDANTS AS A MATTER OF LAW In Count Four of the Amended Complaint, Plaintiff claims that Defendants have failed to provide notice of waiting list prioritization in contravention of the Medicaid Act, CMS implementing regulations, and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. However, without exception, every allegation regarding failures to provide notice are related to the former individual named plaintiffs, all of whose claims are now moot. Without the allegations related to the now-dismissed plaintiffs, the Amended Complaint does not state any claims related to notice or due
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process violations. Because Defendants would be unduly prejudiced by permitting Plaintiff to file a Second Amended Complaint at this late stage in the proceedings, Plaintiff cannot plead and prove the essential elements of its claim in Count Four.
Moreover, as this Court has previously noted with regard to Count Four, “this claim turns on whether there are available slots.” [Doc. 60, at 6]. As demonstrated above, there are no available slots in the D.D. Waiver.3 Even if DRF’s Amended Complaint did state a claim upon which relief can be granted, the undisputed facts demonstrate that Defendants are not in violation of the law as Plaintiff alleges in this claim.
For the foregoing reasons, summary final judgment should properly be entered for Defendants as a matter of law with respect to Count Four. VI. CONCLUSION
For the foregoing reasons, Defendants request that summary judgment be entered in their favor on all counts.
Respectfully submitted this 26th day of June, 2012.
AGENCY FOR HEALTH CARE ADMINISTRATION BY: /s/ Stuart F. Williams STUART F. WILLIAMS General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building 3, MS #3 Tallahassee, Florida 32308 Florida Bar No. 0670731 (850) 412-3630 (phone)
3 See Part II. B. above [pages 6-10]. 21 of 23
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(850) 921-0158 (fax) Stuart.Williams@ahca.myflorida.com
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel 227 Mahan Drive, Building 3, MS#3 Tallahassee, Florida 32308 (850)-412-3630 (phone) (850) 921-0158 (fax) Andrew.sheeran@ahca.myflorida.com
BY: /s/ William M. Blocker WILLIAM M. BLOCKER, II, ESQUIRE Florida Bar No. 295700 Assistant General Counsel 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Telephone: (850) 412-3634 Facsimile: (850) 921-0158 william.blocker@ahca.myflorida.com
BY: /s/ Beverly H. Smith Beverly H. Smith Assistant General Counsel Fla. Bar No. 612571 2727 Mahan Drive, Building 3, MS #3 Tallahassee, Florida 32308 (850) 412-3630 (phone) (850) 921-0158 (fax) Beverly.smith@ahca.myflorida.com
BY: /s/ Debora E. Fridie Debora E. Fridie Assistant General Counsel Fla. Bar No. 0886580 2727 Mahan Drive, Building 3, MS #3 Tallahassee, Florida 32308-5407 (850) 412-3641 (phone) (850) 921-0158 (fax) Debora.fridie@ahca.myflorida.com
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AGENCY FOR PERSONS WITH DISABILITIES BY: /s/ Marc Ito Marc Ito (FBN: 61463) Agency for Persons with Disabilities 4030 Esplanade Way, Ste. 380 Tallahassee, Florida 32399-0950 Tel: (850) 922-2030 Fax: (850) 410-0665
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 all attorneys of record, on this the 26th day of June 2012.
/s/ Andrew T. Sheeran Andrew T. Sheeran
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

CASE NO.: 4:11-CV-116-RS-CAS

ELIZABETH DUDEK in her official capacity as Secretary of the Florida Agency for Health Care Administration, and MIKE HANSEN in his official capacity as Director of the Florida Agency for Persons with Disabilities,

Defendants. _______________________________/

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS

Plaintiff, Disability Rights Florida, Inc., d/b/a Disability Rights Florida, by and

through the undersigned counsel, files this Response to Defendants’ Motion to Dismiss.

(Doc. No. 139). In opposition thereto, the Plaintiff submits the following response and

memorandum of law.

1. Disability Rights Florida, Florida’s Protection and Advocacy System

(“P&A”), is charged with protecting “the legal and human rights of individuals with

developmental disabilities.” 42 U.S.C. § 15001(b)(2).

2. The P&A filed this suit against the agency heads for the Agency for

Persons with Disabilities (“APD”) and the Agency for Health Care Administration

(“AHCA”), for rights violations in their operation of the Medicaid Waiver for Persons

with Developmental Disabilities (“DD Waiver”).

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3. United States Supreme Court and Eleventh Circuit precedent demonstrates the P&A has the authority to seek legal remedies for rights violations on behalf of those it is mandated to protect.
4. The Defendants’ future and on-going harms to the P&A’s constituents meet the requirements for associational standing; there is no requirement to name the names of individual constituents of the P&A to overcome a facial attack on standing.
5. The Defendants’ assertion that the P&A must abandon all other avenues for redress but one when multiple viable avenues are present is unsupported; zealous advocacy requires otherwise. See International Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 288-89 (1986) (argument that association’s members “who wish to litigate common questions of law or fact against the same defendant be permitted to proceed only pursuant to the class-action provisions” fell “far short of meeting the heavy burden of persuading us to abandon settled principles of associational standing”).
6. For these reasons and those contained in the Plaintiff’s Memorandum of Law below, the Defendants’ motion should be denied.
MEMORANDUM OF LAW I. PLEADING STANDARDS
Defendants assert three arguments to challenge the P&A’s standing and this Court’s subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rule of Civil Procedure. First, the P&A has not demonstrated that its members would otherwise have standing to sue in their own right. Second, the claims asserted and relief requested
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requires participation of other named individuals. Finally, if the P&A had standing, its claims are now moot. None of the Defendants’ challenges can be sustained.
Motions to dismiss for lack of subject matter jurisdiction come in two forms — facial and factual. A facial attack does not rely on information outside of the complaint; the Defendants’ motion refers to alleged deficits in the P&A’s Amended Complaint and is, therefore, a facial attack. “A ‘facial attack’ ... requires the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F. 2d 1525, 1528-29 (11th Cir.1990).
Standing doctrine is concerned with “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, and it is presumed that those allegations embrace the facts necessary to support them. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Also, “Article III standing must be determined as of the time at which the plaintiff's complaint is filed.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000)) (emphasis added).
II. STANDING, GENERALLY Article III of the United States Constitution requires a case or controversy for the
federal court to decide. Id. This requirement is met when there is an injury-in-fact that is
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traceable to the actions or inactions of the Defendants which is likely to be remedied by
an order of the court granting the requested relief. Lujan, 504 U.S. at 560-61. “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition to the presumption of truth, one
or both of the Defendants have admitted the following allegations from the P&A’s
Amended Complaint:
 For at least the past five years, only those persons deemed to be in crisis1 were enrolled on the DD Waiver; (Compare Doc. 30, ¶9 with Doc. 62, ¶9).
 There are over 19,000 individuals, both children and adults on the DD Waivers waitlist; (Compare Doc. 30, ¶139 with Doc. 62, ¶139).
 As of July 2010, APD reported that 37.2% of those on the waitlist had been waiting for community services longer than five years and 12.2% had been waiting for four to five years; (Compare Doc. 30, ¶142 with Doc. 62, ¶142).
 As of February 2011, 16% of those persons registered for the waitlist (approx.. 3,140) were categorized by APD as Category Three2; (Compare Doc. 30, ¶143 with Doc. 62, ¶143).
 At present, there are approximately 198 persons with developmental disabilities residing in private ICF/DDs (intermediate care facilities for the developmentally disabled) who are registered on the DD Waivers waitlist; (Compare Doc. 30, ¶153 with Doc. 62, ¶153).
 Additionally, 69 persons with developmental disabilities registered for the DD Waivers waitlist reside in state-run ICF/DDs. (Compare Doc. 30, ¶155 with Doc. 62, ¶155).
1 “Crisis” is defined by Rule 65G-1.047 of the Florida Administrative Code to mean those who are homeless, a behavioral threat to themselves or others, and without a caregiver. 2 Category 3 includes, but is not limited to, those for whom their caregivers are “expected” to be unable to provide care within the next 12 months and those who are identified by a facility as ready for discharge from a state mental health hospital, intermediate care facility for the developmentally disabled, a skilled nursing facility, correctional facility, or a secure forensic facility within the next 12 months. § 393.065(5), Fla. Stat. & Fla. Admin. Code R. 65G-11.002.
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Not everyone can be on the DD Waiver waitlist. APD first receives a written application, then reviews documentation alleging a qualifying developmental disability, pursuant to Florida Statutes § 393.063(9). See also Fla. Admin. Code R. 65G-4.014. APD must provide a comprehensive assessment to definitively identify individual conditions or needs, and gives the applicant hearing rights if the eligibility determination is adverse. APD has already found that the individuals named in the First Amended Complaint were eligible to receive community services through the DD Waiver and, at the time of filing, the named individuals remained on the Defendants’ waitlist subject to the policies and rules challenged in the First Amended Complaint.
III. ASSOCIATIONAL STANDING A. STANDARD
An association can sue on behalf of its members when three things occur: (1) Its members would have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization’s purpose3; and (3) neither the claim nor relief requested require the participation of individual members. Hunt v. Washington State Apple Comm’n, 432 U.S. 333 (1977).
In Doe v. Stincer, the Eleventh Circuit stated: “It is enough for the representative entity to allege that one of its members or constituents has suffered an injury that would allow it to bring suit in its own right.” 175 F. 3d 879, 884-85 (11th Cir. 1999) (internal citations omitted). The Defendants’ position that a P&A’s constituent must be named or 3 This element was not contested and is therefore not discussed herein. Nonetheless, pursuant to 42 U.S.C. § 15043, the relief sought and claims asserted in this matter are germane to the P&A’s purpose.
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identified is contrary to the Eleventh Circuit holdings. See id. (no need for an “explicit statement of representation”); see also Church of Scientology v. Cazares, 638 F. 2d 1272, 1279 (1981)4 (neither unusual circumstances, inability of individual members to assert rights nor an explicit statement of representation are requisites). The Eleventh Circuit looks for a close nexus between the organization and its members on one side and the alleged injury as a result of Defendant’s conduct on the other. Stincer, 175 F. 3d at 88485.
The nexus here is between the Defendants’ rules and policies in operating the DD Waiver, its enrollment, and the waitlist, and the effect of those rules and policies on the P&A’s constituents—persons with developmental disabilities who are DD Waiver eligible. The P&A has alleged, and Defendants have admitted in part, that there is a finite number of constituents waiting for DD Waiver services and residing in institutionalized settings—private ICF/DDs, state-operated institutions, and nursing homes. (Doc. No. 30, ¶¶ 153-155 & 157). Yet, the Defendants’ agencies’ rules and policies only allow persons in crisis to obtain community services; persons in institutions don’t meet “crisis” pursuant to rule. (Doc. No. 30, ¶¶ 7, 9, 21, 24, 30, 33, 37, 40, 141, & 144). Constituents in community settings wait for services for exorbitant amounts of time, suffering the regression of skills and abilities, while the Defendants refuse to enroll individuals up to the federally approved intended recipient count. (Doc. No. 30, ¶¶ 49, 51, 57, 63, 65, 70). The P&A’s constituents desire and wait for community services, but the Defendants’ 4 See Bonner v. Prichard, 661 F. 2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent in the Eleventh Circuit, all decisions of the former Fifth Circuit announced prior to October 1, 1981).
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policies preclude enrollment of the vast majority who are waiting. Because the Defendants’ conduct and omissions pertains to the P&A’s constituents and their injuries, a nexus exists.
The United States Supreme Court has affirmed the P&A’s ability to pursue litigation to vindicate the rights of those it protects. See Virginia Office for Prot. & Advocacy v. Stewart, __ U.S. ___, 131 S. Ct. 1632 (2011) (Virginia P&A filed suit pursuant to the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15043 (DD Act)). The Court stated, “in addition to pressing its own rights, a P & A system may ‘pursue administrative, legal, and other remedies on behalf of’ those it protects.” Stewart, 131 S.Ct. at 1636; see also 42 U.S.C. § 15044(b). The P&A specifically alleged its claims according to its authority, found within 42 U.S.C. § 15043(a)(2)(A)(i), on behalf of itself and the individuals it was charged with protecting “as clients and potential clients who are on the DD Waivers waitlist are not receiving needed services until they transition onto the DD Waivers.” (Doc. No. 30, ¶ 88).
The Eleventh Circuit has already recognized this P&A’s associational standing in Stincer, where the P&A filed suit pursuant to its authority in the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801,5 seeking redress for
5Congress intended that the authorities under the DD Act, the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §§ 10801 et seq. (“PAIMI”), and the Protection and Advocacy of Individual Rights Program of the Rehabilitation Act, 29 U.S.C. § 794e (“PAIR”), be applied in a consistent manner. See, e.g., S. Rep. 109, 99th Cong., 1st Sess. 3 (1986); S. Rep. 113, 100th Cong., 1st Sess. 24 (1987); S. Rep. 357, S. Rep. 454, 100th Cong., 2nd Sess. 10 (1988); 102nd Cong. 2nd Sess. 100 (1992); 29 U.S.C. § 794e; & Alabama Disabilities Advocacy Program v. J.S. Tarwater Devtl. Ctr., 894 F. Supp. 424, 427 (M.D. Ala. 1995), aff'd, 97 F.3d 492 (11th Cir. 1996).
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the effect a state statute had on obtaining records for constituents who had sought mental health therapy. 175 F. 3d at 883. The court likened the plaintiff P&A to the plaintiffs in Hunt, as both plaintiffs were designated by the government to protect a specific segment of society. Id. at 886. The court further found that the P&A’s multi-member governing board, advisory council, opportunity for public comment on its priorities and activities, and grievance system resembled a traditional membership organization. Id.
Pursuant to the DD Act asserted in this matter, this P&A is a non-profit entity with a multi-member governing Board of Directors. (Doc. No. 11). The majority of the board includes “individuals with disabilities, including individuals with developmental disabilities, who are eligible for services, or have received or are receiving services through the system” or “parents, family members, guardians, advocates, or authorized representatives of individuals referred to in clause.” 42 U.S.C. § 15044(a)(1)(B)(i)&(ii). As such, this P&A’s multi-member governing Board of Directors specifically nullifies the necessity of an advisory council. See 42 U.S.C. § 15044(a); 45 C.F.R. § 1386.21(g). The P&A provides to the “public, including individuals with developmental disabilities attributable to either physical impairment, mental impairment, or a combination of physical and mental impairment, and their representatives, and as appropriate, non-State agency representatives of the State Councils on Developmental Disabilities, and Centers, in the State” an opportunity to comment on the P&A’s goals and priorities, including the basis rationales as well as the activities of the system. 42 U.S.C. § 15043(a)(2)(D). In so doing, the P&A must provide broad distribution of its proposed priorities and objectives “in a manner accessible to individuals with developmental disabilities and their
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representatives.” 45 C.F.R. § 1386.23(d)(2). The P&A also provides a grievance system for clients and potential clients to ensure full access to the services of the system. 42 U.S.C. § 15043(a)(2)(E).
Historically, litigation has been recognized as a crucial tool for the P&A to protect against and remedy discriminatory violations of those it was charged with protecting. See, e.g., Naughton v. Bevilacqua, 458 F. Supp. 610, 616 (D.R.I. 1978), aff'd, 605 F. 2d 586 (1st Cir. 1979) (“The enforcement of individual rights, however, cannot be achieved solely by withholding federal funds; not only is the Secretary incapable of investigating every violation, but the Secretary may quite properly be unwilling to withhold funds for a single violation. Thus, the advocacy agency and a private right of action are crucial to protect the rights secured by the Act.”). “To ensure such protection, the P&A System is given the express authority to ‘pursue legal, administrative, and other appropriate remedies’ to guarantee protection of, and advocacy for, the rights of the developmentally disabled individuals within the State.” Hawaii Disability Rights Ctr. v. Cheung, 513 F. Supp. 2d 1185, 1194 (D. Haw. 2007).
a. The P&A’s Constituents Would Have Standing to Sue in Their Own Right i. Injury to Constituents
The injury must be both “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical.” Florida Wildlife Fed'n., Inc. v. South Fla. Water Mgmt. Dist., 647 F. 3d 1296 (11th Cir.2011). The concept of “imminence” should “advance the purposes behind the case-or-controversy requirement of Article III.” Florida State Conference of N.A.A.C.P. v. Browning, 522 F. 3d 1153, 1161 (11th Cir.
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2008). In application, imminence should ensure that actual adversity exists, the courts’ powers are limited, and judicial resources are preserved. Id. The Defendants take issue that another “actual person” has not been described in the Amended Complaint. (Doc. No. 139, at 8). However, there is no case law supporting such a pre-requisite for a facial attack on an association’s standing. The alleged need for an “actual person” countervails Defendants’ supplemental argument that the named individuals must be absent.
There is adversity between these parties, as the P&A is designated to confront adverse policies, specifically with litigation such as this. 42 U.S.C. § 15043. Reservation of this Court’s resources is furthered by litigating pervasive and systemic violations rather than individual lawsuits for each of the 198 individuals waiting in ICF/DDs for community services, who could have been listed as Doe 1-198. The 69 individuals waiting for community services in state-run developmental institutions, the 115 individuals waiting for community services in nursing homes, and the 3,140 individuals categorized as expected to be without a caregiver within the next twelve months that are waiting for community services could similarly be listed as Does 199-3522, but it is not necessary to “to name a specific individual in order to have standing to sue.” Stincer, 175 F. 3d at 884. Therefore, the P&A has identified concrete and particularized injuries that are actual for institutionalized P&A members and imminent for those residing in the community, at minimum for those in Category 3. Constituents who are on the waitlist, eligible for the DD Waivers and seeking community services without receiving them, they meet the criteria for the P&A’s mandate to protect the legal and human rights of those with developmental disabilities. See 42 U.S.C. § 15001.
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In National Alliance for Mentally Ill, St. Johns Inc. v. Board of County Comm'rs of St. Johns County, 376 F. 3d 1292, 1296 (11th Cir. 2004), the Eleventh Circuit found that the plaintiff organization did not establish their standing at the stage of dispositive motions. The district court’s order (M.D. Fla., Case No. 3:01-cv-01070-UA, Doc. No. 118, at 52) found that the organizational plaintiff did not identify a constituent with a concrete injury when they had the chance to do so by overlaying the statutory criteria with their membership records to demonstrate an injured constituent. However, the Eleventh Circuit clarified Nat’l Alliance by distinguishing the burden necessary when the allegation is of future injury, as opposed to past injury. In Browning, the Eleventh Circuit stated that when claims are based on injuries allegedly caused by the defendant's past violations, the organization should be able to name an actually injured constituent. Id., 522 F. 3d at 1160. The court then clarified that “[w]hen the alleged harm is prospective, we have not required that the organizational plaintiffs name names because every member faces a probability of harm in the near and definite future.” Id. As the Defendants continue their waitlist categorizations and crisis-only enrollments, constituents with qualifying disabilities will continue to be denied DD Waiver services despite their selection for community services over institutionalization.
Therefore, the Defendants’ assertions that an individual constituent be named and his/her specific injury described are erroneous. Nonetheless, the First Amended Complaint describes those individuals and injuries. (Doc. No. 30, ¶¶ 1-6, 153, 154, 155, 156, 157, 176, & 177). The Defendants’ conduct “limits the number of crisis enrollments to only those that could be served with funding saved through attrition.” (Doc. No. 30, ¶
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10). The Defendants’ conduct forces persons to forgo services completely while waiting for the dangerous hold of crisis to set in. (Doc. No. 30, ¶ 11). Others will never be enrolled because they will never meet the Defendants’ description of “crisis.” (Doc. No. 30, ¶ 12). Meanwhile, the number of waitlisted persons residing in ICF/DDs has increased in recent years. (Doc. No. 30, ¶ 29). Persons on the waitlist languish for years without DD Waiver services that meet their needs in the most integrated setting possible. (Doc. No. 30, ¶ 158). The Defendants failed to provide the necessary choice counseling to ICF/DD residents to determine whether an integrated setting is more appropriate for them. (Doc. No. 30, ¶ 191). The Defendants do not routinely identify ICF/DD residents who can live in the community and desire to do so. (Doc. No. 30, ¶ 192). The Defendants have failed to identify all DD Waiver eligible persons that have been diverted to nursing homes, and to routinely and continuously offer choice counseling to them to ensure the most integrated setting. (Doc. No. 30, ¶ 196). These are concrete and particularized harms to those waiting for services in institutional settings and those seeking enrollment from community settings. More importantly, these allegations plead “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678.
In Cazares, the former Fifth Circuit Court of Appeals found the pleadings sufficient to confer associational standing on behalf of the Church members when the complaint alleged: the nature of the church’s services to its members; that it owned property utilized by its members to effectuate their freedom of religion; and that the city officials “inflamed public sentiment against the Church and its members and induced other churches and civic associations to shun association with the Church and its
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members.” Id., 638 F. 2d at 1279. This was sufficient to establish the nexus between the Church of Scientology and its members to confer associational standing. The court further found insufficient the argument that the complaint “did not specifically state that the Church was seeking to represent its members in the action.” Id. at 1277. The Fifth Circuit stated, “[w]e are unaware of any authority that requires such an explicit statement.” Id.
The Defendants’ reliance on Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condo., 458 F. Supp. 2d 160 (S.D.N.Y. 2006) is misplaced. That case involved an ADA physical accessibility issue pursuant to Title III, not Title II. Id. at 163. The Court found that the plaintiff association and the individually named plaintiff had identical claims; based on the prudential standing doctrine of allowing the best plaintiff to assert the claims, the court found that the association plaintiff should be dismissed because the individually named plaintiff was better suited to advance his arguments for the ADA violation. Id. The Defendants’ Access 4 All v. Trump assertions are contradictory. They claim the specific constituents of the P&A must be absent to invoke associational standing, while also asserting that the lack of a specifically-named P&A constituent is deficient for associational standing.
Nonetheless, the P&A has asserted that there are indeed specific constituents who are absent and that it filed this lawsuit on their behalf. Specifically, the P&A and the Defendants agree on the number of individuals residing in privately operated ICF/DDs and state-run developmental centers. Additionally, the P&A has asserted the number of institutionalized individuals waiting for services in skilled nursing facilities. The P&A
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has also asserted the numbers of other individuals at risk of institutionalization while waiting for community services, including 3,140 individuals that the Defendants expect to be without their current caregivers within the next twelve months. Therefore, the P&A’s First Amended Complaint contains the “plausible grounds to infer” to survive the Defendant’s motion. Watts v. Florida Int’l Univ., 495 F. 3d 1289, 1295 (11th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).
Pointedly, the court in Access 4 All v. Trump stated that the organization could have produced evidence from multiple members that discussed different ADA violations at the hotel thereby allowing them to sue “on the cumulative violations, regardless of whether any individual member experienced all the violations.” Id., 458 F. Supp. 2d at 175. The plaintiff organization had solely relied on the individually named plaintiff’s affidavit to support its claim for standing on all alleged ADA violations. Id. In that case, the individually named plaintiff had no knowledge of and did not encounter all 31 alleged accessibility Title III violations of the ADA Accessibility Guidelines. Id. at 174. The court reasoned that a person with a visual impairment could not sue for someone with an audiological impairment by reason that “where the alleged violation does not affect a plaintiff's disability, that plaintiff is not injured and therefore has no standing to bring suit.” Id. Access 4 All v. Trump is inapposite to the allegations in the instant matter. The P&A constituents harmed by the Defendants are those persons with developmental disabilities. The Defendants’ methods of administering the DD Waiver denies community services to the P&A’s constituents and does not contradict the reasoning described in the New York case relied upon by Defendants.
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Given the former Fifth Circuit’s holding in Cazares and related case law, and the Defendants’ concession that the Amended Complaint “identifies injuries potentially sufficient to confer standing” (Doc. No. 139, at 6), the P&A’s constituents have standing to sue in their own right as pled by the P&A in its Amended Complaint.
ii. Fairly Traceable to Defendants’ Acts and Omissions In the Northern District Court of Florida, a causal connection between the Defendants and the injury that is clear and concise is in need of no further affidavits to support the claim. In Self-Ins. Inst. of Am. v. Gallagher, 11 Employee Benefits Cas. 2162, 1989 WL 143288 (N.D. Fla. 1989), aff'd sub nom., Self-Ins. Inst. v. Gallagher, 909 F.2d 1491 (11th Cir. 1990), the court analogized to Hunt and reasoned that “the requirements of the state statute so clearly impinged upon the activities of the Washington growers and shippers that the Court was satisfied that real injury existed without a showing that any particular grower had been subjected to the coercive or penal effects of the North Carolina law.” Id. at *6. (emphasis added). The court in Gallagher, found that the harm there was even more immediate than in Hunt. Id. at *7. The apple growers in Hunt alleged that their future action of shipping apples to North Carolina would subject them to the challenged state statute; the Gallagher plaintiffs were already performing acts in Florida pursuant to their employee benefits plan. Id. Likewise, some P&A constituents are institutionalized while waiting for DD Waiver services and nearly all are categorically denied DD Waiver services by the Defendants’ crisis-only enrollment policies.
iii. Likely to be Redressed by a Favorable Ruling by This Court
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Finally the injury must be able to be redressed by a favorable ruling of the court. In Warth, the Supreme Court noted that an organization’s standing is determined in “substantial measure” by the relief sought. Warth, 422 U.S. 490 at 515. When the relief requested is a declaration and prospective relief it is reasonable that the remedy would inure to the benefits of the organization’s members. Id. at 515. For violations of the ADA, courts have held that allegations “giving rise to an inference that he will suffer future discrimination by the defendant” are sufficient for standing to seek injunctive relief. Shotz v. Cates, 256 F. 3d 1077, 1081 (11th Cir. 2001). The future harm must not be conjectural or hypothetical. Id. Much like the Psychology candidate in Shaywitz v. American Bd. of Psychiatry & Neurology, 675 F. Supp. 2d 376, 383 (S.D.N.Y. 2009), there is a reasonable inference that the P&A constituents would be seeking enrollment to the DD Waiver, whether they currently live in institutions or not, to receive services if they did not think it was futile based on the Defendants’ challenged practices and policies.
b. Individual Participants are Unnecessary as to the Claim and Relief Sought
The third Hunt requirement was later determined to be prudential in United Food & Commercial Workers Union v. Brown Group Inc., 517 U.S. 544 (1996). Because the P&A is seeking declaratory and injunctive relief regarding the Defendants’ policies and processes for administering the DD Waiver, sample testimony without the need for individual participation is all that is necessary.
In 2010, the Eleventh Circuit affirmed a lower court’s finding of associational standing for a group of medical providers. Borrero v. United Healthcare of N.Y., Inc.,
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610 F. 3d 1296, 1306 (11th Cir. 2010). In Borrero, the medical providers did not seek associational standing in federal court and were instead challenging removal of the action from state to federal court. Id. at 1305. The Eleventh Circuit, however, held that because the association plaintiff had sought declaratory and prospective relief the federal court had jurisdiction over their claims. Id. at 1306. The court specifically looked to their complaint and found that they had sought relief “to vindicate the rights of the associations and their members” and “that the purposes of the associations encompass ensuring appropriate service-payment transactions between providers and insurers.” Id. at 1305. Further, the court analogized the case to Pennsylvania Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F. 3d 278 (3d Cir. 2002) where “[B]ecause the society challenged the methods of the managed care organizations, and not specific decisions made by the organizations, its case could be proved by sample testimony.” Id. at 1306. Such is the case here. The P&A challenges, on behalf of its constituents, the Defendants’ (1) refusal to enroll persons up to their federally approved amount of intended recipients, (2) their application of ‘crisis-only’ enrollments, and (3) the resulting life sentence of those waiting for services in institutional settings. These agency policies, practices and rules prevent persons on the waitlist from accessing community services in a reasonably prompt manner, effectively deny them the choice of community services, deny them the ability to make an informed choice without knowing their placement in Defendants’ waitlist categories and continue the unnecessary institutionalization of those waiting for services in inappropriate restrictive settings.
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Claims that “a program is being operated in contravention of a federal statute or the Constitution can nonetheless be brought in federal court” while at the same time leaving the individual eligibility determinations of those benefit programs to the state administrative agencies to decide. Brock, 477 U.S. at 285. In Brock, the court decided the claims and relief did not require the trial court to consider the individual circumstances of any aggrieved union member; instead, the suit presented a pure question of law concerning the interpretation of the Trade Acts’ eligibility provisions. Id, at 287. The Court found “the unique facts of each UAW member's claim will have to be considered by the proper state authorities before any member will be able to receive the benefits allegedly due him, the UAW can litigate this case without the participation of those individual claimants and still ensure that ‘the remedy, if granted, will inure to the benefit of those members of the association actually injured,’” Id. at 288 (quoting Warth, 422 U.S. at 515).
Indeed, Florida courts have recognized the exception to this prudential concern when the case presents a pure question of law. Minor I Doe ex rel. Parent I Doe v. School Bd. for Santa Rosa County, Fla., 264 F.R.D. 670, 688 (N.D. Fla. 2010). Again, this lawsuit involves the determination of the validity of the Defendants’ refusal to: enroll individuals up to the federally approved intended recipient amount; abdicate the enforcement of ‘crisis-only’ enrollments, especially when it comes to those residing in institutional settings; and provide notice of the assigned waitlist category to each individual to effectuate an informed decision in choosing between services that take decades to materialize while their skills regress or immediate institutional services.
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Not only is the instant matter a question of law pertaining to the Defendants’ policies and rules named herein, but the P&A is not required to name specific individuals whose rights under the ADA have been violated. “The Eleventh Circuit has recognized that the Hunt requirements are the ‘sole’ requirements for associational standing and that an association is not required to ‘name the members on whose behalf suit is brought.’” Harrell v. The Florida Bar, 2008 WL 596086 (M.D. Fla.) (quoting Doe v. Stincer, 175 F.3d 879, 882 (11th Cir.1999)). See also In re Managed Care Litig., 298 F. Supp. 2d 1259, 1308 (S.D. Fla. 2003) (the “absence” of any individual plaintiff member from the organization is not required to be joined by the organization for associational standing on behalf of its members to bring a valid claim).
The Southern District Court of Florida has dismissed the argument that ADA claims cannot be brought by associations representing their interests because the result robs those organizations of the ability to advance their interests collectively. “In essence, the argument asserted …that associational standing cannot exist because ADA claims require individualized proof-would require that no organization advocating for ADA compliance could ever obtain standing.” Access 4 All, Inc. v. L & D Investors Sunrise, Inc., 24 A.D. Cases 638, 2011 WL 69848, *2 (S.D. Fla. 2011). The reasoning relied upon Congressional intent, “especially in light of the Eleventh Circuit's decision in Stincer and its prior decision not to sua sponte raise associational standing in this context, see American Disability Ass’n v. Chmielarz, 289 F. 3d 1315 (11th Cir. 2002) (granting attorneys fees to an associational plaintiff pursuant to the ADA, but not raising standing concerns).” Id. The case law cited by Defendants, Concerned Parents To Save Dreher
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Park Ctr. v. City of W. Palm Beach, 884 F. Supp. 487 (S.D. Fla. 1994), predates and is supplanted by both the Stincer and Access 4 All v. L & D Investors Sunrise decisions.
“Prudential barriers do not, however, apply in all cases as ‘Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules.’” Equal Access For All, Inc. v. Hughes Resort, Inc., 504CV178MCR, 2005 WL 2001740, at *4 (N.D. Fla., Aug. 10, 2005) (citing Warth, 422 U.S. at 501). Here, Congress has given the P&A a mandate to pursue litigation to redress rights violations. 42 U.S.C. § 15043(a)(1)(A)(i). The claims made in the P&A’s First Amended Complaint consist of violations of the P&A’s constituents’ rights, based on the Defendants’ methods for managing the DD Waiver waitlist, its application of crisis-only enrollments, refusal to enroll up to the federally approved intended recipient count, and denial of waitlist categorization status to those waiting to make an informed choice of the delivery of services in the community or in an institution. The instant matter is much more akin to Borrero and Brock than any case the Defendants have cited and therefore does not require named individuals as Plaintiffs.
B. CAPABLE OF REPETITION YET EVADING REVIEW The Eleventh Circuit requires two showings to qualify a matter as capable of repetition yet evading review. First, the challenged action is too short in duration to be fully litigated prior to its cessation or termination. Secondly, there is a reasonable expectation that the same complaining party will be subject to the same action again. Florida Farmworkers Council, Inc. v. Marshall, 710 F. 2d 721, 731 (11th Cir. 1983). Here, the complaining parties are the P&A’s constituents, on whose behalf the P&A
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seeks associational standing. Class certification and associational standing have the same purpose and the notion that an association can only remedy its members’ injuries through class certification is erroneous. Brock at 289. The P&A seeks declaratory and injunctive relief as to the Defendant’s policies and rules implementing the DD Waiver program in opposition to federal statutes.
In Mississippi Prot. & Advocacy Sys., Inc. v. Cotten, 929 F. 2d 1054, 1057 (5th Cir. 1991) the court found that, where the defendants resolved the sole individually named plaintiff’s claim, the plaintiff could continue as class representative because the allegations would continue and escape judicial review. The matter involved access by the P&A’s attorneys to mentally ill constituents in jail. Id. at 1056. The defendants contended that once the individually named plaintiff obtained counsel, the matter was moot and the named plaintiff lacked standing. Id. at 1057. However, the court held that “[t]aking defendant's theory to its logical conclusion, no patient-if represented by counsel-could ever have standing to litigate this matter in a federal forum.” Id. Therefore, the reasoning in Cotten mirrors the instant matter and is in accord with the congressional mandate to the P&A to redress rights violations of persons with developmental disabilities.
“[W]hen the threatened acts that will cause injury are authorized or part of a policy, it is significantly more likely that the injury will occur again.” 31 Foster Children v. Bush, 329 F. 3d 1255, 1266 (11th Cir. 2003). Much like the plaintiffs in 31 Foster Children, the P&A’s constituents cannot avoid exposure to the defendants' challenged conduct. Id. at 1266. They seek services in community settings, but cannot obtain them without the approval of the Defendants.
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The allegations of rights violations in the instant matter are more similar to the governmental policies at issue in Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 122 (1974) in which the challenged governmental activity was “not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” The Defendants’ policies are fixed and definite; they have not ceased just because they offered relief to the six named individuals. In fact, one Plaintiff died before transitioning in accordance with his choice of community services over institutionalization. This case embodies the “important ingredient” in such cases – “governmental action directly affecting, and continuing to affect, the behavior of citizens in our society.”
Likewise, the P&A’s constituents who are at risk of institutionalization involuntarily go without services and cannot avoid future exposure to the Defendant’s policies of limiting the number of recipients for community-based services, crisis-only enrollments, and waitlist prioritization categories. Pivinski and Woodward continue to be subject to the challenged rules and policies of the Defendants. Constituents that reside in skilled nursing facilities, like Young, continue to be subjected to unnecessary institutionalization without a means to obtain services through the DD Waiver. They will never be considered as crisis enrollees because of their current living arrangements and will be subject to the waitlist prioritization categories, forever stuck in Category Three. Finally, the P&A’s constituents in ICF/DDs waiting for community-based services continue to be subject to the policies and omissions that have kept them there. They have not been moved, nor have the Defendants developed a comprehensive and effective plan
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to transition them to community services. Without this Court’s injunctive relief, they remain subject to the Defendants’ slow haphazard hand.
Defendants claim voluntary cessation as grounds to dismiss this action. However, “‘A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ (emphasis added). A burden-shifting provision accompanies this stringent standard.” Smith ex rel. Smith v. Bension, 22 Fla. L. Weekly Fed. D 117 (S.D. Fla. 2009) (quoting Friends of Earth, Inc., 528 U.S. 167 (“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 citations omitted). Yet, the Defendants do not state how their policies and rules of freezing institutionalized persons in a waitlist category, refusing to enroll individuals up to the federally approved intended recipient count, and limiting enrollments to only those persons in crisis has been “unambiguously terminated.” Troiano v. Supervisor of Elections, 382 F. 3d 1276, 1281–82 (11th Cir. 2004) Therefore, the Defendants’ argument of voluntary cessation fails.
C. ALTERNATIVE RELIEF TO AMEND COMPLAINT As alternative relief, should this court find the P&A’s Amended Complaint deficient, this court should allow the P&A to amend to again include more names of others that have gone without community services based on the Defendant’s conduct.
For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. At the same time, it is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized
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allegations of fact deemed supportive of [the] plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed. Warth, 422 U.S. at 501–02 (citation omitted) Other courts that are not bound to Stincer have also held the P&A should be allowed to amend. In the case of Pennsylvania Prot. & Advocacy, Inc. v. Houston, the individual plaintiffs seeking community services had been mooted out by the Defendants’ post-litigation provision of the sought-after services. 136 F. Supp. 2d 353, 365 (E.D. Pa. 2001). The court, however, relied on Stincer to say the P&A had to identify how a specific individual was injured in order to have standing. Houston, 136 F. Supp. 2d at 365. However, the Eleventh Circuit merely held only that the injury to the constituents was not proven by the original affidavit. Stincer, 175 F. 3d at 887. Thus, Stincer’s decision had more to do with the insufficiency of proof in the plaintiff’s motion for summary judgment of a concrete injury, rather than a pleading requirement to name names. More importantly however, is the contradictory precipice the Pennsylvania’s case places between the P&A and its constituents. On one hand, the statute mandates the P&A to advocate for and vindicate the rights of those persons with disabilities it was meant to protect including through the use of litigation. On the other hand, if read too narrowly, the Pennsylvania court purports to place the zealous advocacy of the individual plaintiffs at odds with the P&A’s mandate. If the P&A were to name individuals who subsequently at the eleventh hour, as in this case, were offered services to relieve their situations, the P&A would be placed in the position of counseling between what is in the best interest of
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the named individuals and fulfilling its mandated obligation to vindicate the rights of all the persons it was charged with protecting. Nothing in the doctrines of associational standing or the P&A’s grant of authority mandates the P&A to utilize its members as martyrs and therefore its holdings should not be applied to the instant matter. Moreover, the Eleventh Circuit Court of Appeals has never, nor has any Florida case, cited Houston.
Nevertheless, should this Court rule in favor of Defendant’s motion, the P&A should be given the opportunity to amend their pleading to add constituents that have not been mooted out by the Defendants. “It may be that Plaintiff can now identify a specific constituent who has suffered a concrete and particularized injury. If so, Plaintiff may move to amend its complaint to include this constituent.” Houston, 136 F. Supp. 2d at 368. The Eleventh Circuit panel in Stincer noted that the P&A “may well be able to establish its standing to sue in this case.” Id., 175 F. 3d at 888. The Stincer court allowed the P&A to amend, which it did, and standing was subsequently met.
CONCLUSION For the reasons contained herein, this Court should deny the Defendants’ motion to dismiss. Should the court grant the Defendants’ motion, however, the P&A should be given an opportunity to amend its complaint.
Respectfully submitted this 26th day of June, 2012.
By s/ Amanda Heystek Amanda Heystek, Esquire Florida Bar No. 0285020
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Disability Rights Florida 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile Lead Trial Counsel By s/ Paul E. Liles Paul E. Liles, Esquire Florida Bar No. 0921270 Disability Rights Florida Senior Trial Counsel Christopher White, Esquire Florida Bar No. 0060109 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 Maryellen McDonald, Director of Legal and Advocacy Services Florida Bar No. 607533 2728 Centerview Drive, Suite 102 Tallahasseee, FL 32301 (850) 488-9071 Telephone (850) 488-8640 Facsimile
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Plaintiff’s Response to the Defendants’ Motion to Dismiss was furnished by CM/ECF to all attorneys of record this 26th day of June 2012.
By s/ Amanda Heystek Amanda Heystek, Esquire
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DISABILITY RIGHTS FLORIDA, Inc., a Florida non-profit corporation,

Plaintiffs,

v.

CASE NO.: 4:11-CV-116-RS-CAS

DUDEK, et al.,

Defendants. _______________________________/

PLAINTIFF’S SECOND MOTION FOR SUMMARY JUDGMENT

The Plaintiff, Disability Rights Florida, Inc., d/b/a Disability Rights Florida (the

“P&A”), by and through its undersigned attorneys, moves for entry of summary

judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the grounds

that there are no genuine issues of material fact, and based upon the undisputed facts, the

P&A is entitled to judgment as a matter of law. In support of its motion, the P&A submits

herein its memorandum of law.

STANDARD OF REVIEW

The Court may grant summary judgment if the P&A shows there is no genuine

dispute as to any material fact and it is entitled to judgment as a matter of law based upon

the pleadings, depositions, answers to interrogatories, and admissions on file, together

with affidavits, if any. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue

of fact is “material” if it could affect the outcome of the case. See Hickson Corp. v.

Northern Crossarm Co., Inc., 357 F. 3d 1256, 1259 (11th Cir. 2004) (citations omitted).

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The court must review the record, and all its inferences, in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Opposition to a motion for summary judgment
may not rest upon the mere allegations or denials in its pleadings. Rather, its responses, either by affidavits or otherwise as provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. A mere “scintilla” of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F. 2d 1573, 1576-77 (11th Cir. 1990) (citing Anderson v. Liberty Lobby, 477 U.S. 242 (1986)). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
UNDISPUTED FACTS Pursuant to Northern District Local Rule 56.1, the Plaintiffs’ Second Statement of Undisputed Facts (Doc. No. 145), which has been filed contemporaneously with this motion, is incorporated by reference as if fully set forth herein. References to the Exhibits in the P&A’s Amended Statement of Undisputed Facts are designated herein as “Doc. No. 145, Ex. [letter(s)].”
MEMORANDUM OF LAW I. FLORIDA’S MEDICAID PROGRAM
A. Medicaid Statutory and Regulatory Framework Medicaid is a joint federal/state program authorized by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v. See Alexander v. Choate, 469 U.S. 287, 290 n.1

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(1985). The Medicaid program allows states to furnish persons (including those with
developmental disabilities) “rehabilitation and other services to help such families and
individuals attain or retain capability for independence or self care." 42 U.S.C. § 1396.
The Medicaid state plan must identify the required and optional health care
services that are available through the state Medicaid program. Optional services
identified in the state plan must be provided consistent with all federal requirements. See
Doe 1-13, by and through Doe, Sr. 1-13 v. Chiles, 136 F. 3d 709, 721 (11th Cir. 1998)
(and citations therein). Placement in an Intermediate Care Facility for persons with
developmental disabilities (“ICF/DD”) is an optional Medicaid service that Florida has
opted to provide to persons who meet level of care criteria for placement in an ICF/DD.
See § 409.906(15), Fla. Stat. Thus, placement and receipt of services in an ICF/DD are
entitlements. See, e.g., Doe 1-13, 136 F. 3d at 719 (enforceable right).
An ICF/DD client must receive a continuous active treatment program, including
aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services [...] that is directed toward— (i) the acquisition of the behaviors necessary for the client to
function with as much self determination and independence as possible; and (ii) the prevention or deceleration of regression or loss of current optimal functional status.” 42 C.F.R. § 483.440(a)(1). See also Fla. Admin. Code R. 59G-4.171(4).
B. Medicaid Waivers and Developmental Disabilities Service Delivery System
Medicaid home and community-based services waiver programs are authorized
by 42 U.S.C. § 1396n(c) and governed by 42 C.F.R. §§ 441.300-.310. Developmental
Disability Waiver (“DD Waiver”) programs enable states to provide home and

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community-based services to individuals with developmental disabilities who would otherwise need the ICF/DD level of care. A state’s DD Waiver program must comply with all federal Medicaid requirements that are not specifically waived. 42 U.S.C. § 1396n(c)(3).
States apply to the Centers for Medicare & Medicaid Services (“CMS”) for permission to operate a home and community based waiver, which must be approved before it can be effective. 42 U.S.C. § 1396n(c)(3). The “Application for a § 1915(c) Home & Community Based Waiver [version 3.5], Instructions, Technical Guide and Review Criteria” (Release Date January 2008) (Doc. No. 145, Ex. “Q”) is the most recent federal manual on the application process, requirements, forms, definition of terms for the application for, renewal, or amendment of a Medicaid waiver program.
C. Florida’s DD Waiver and ICF/DD Program Florida has declared “the greatest priority shall be given to the development and implementation of community-based services that will enable individuals with developmental disabilities to achieve their greatest potential for independent and productive living, enable them to live in their own homes or in residences located in their own communities, and permit them to be diverted or removed from unnecessary institutional placements.” § 393.062, Fla. Stat. (emphasis added). Dudek and Hansen operate five waivers for persons with developmental disabilities; they are called “Tier Waivers”, consisting of Tiers One through Four and an Individual Budgeting Waiver. One waitlist is maintained for all of the five waivers that the Defendants operate.

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D. The Waitlist Currently there are over 20,000 individuals, both children and adults, on the waitlist for the DD Waivers. (Doc. No. 145, Ex. “I”, ¶ 3, at 4; & Ex. “N”, Vol. I, 25:1618). Dudek has final authority on the DD Waiver applications and the determination of any unduplicated recipients requested to CMS. (Doc. No. 145, Ex. “C”, Sect. B.4.a, at 5). Hansen is responsible for new Medicaid admissions to ICF/DDs and also conducts the Preadmission Screening and Resident Review (“PASRR”)1 for persons residing in nursing homes that have a developmental disability or mental illness. (Doc. No. 145, Ex. “E”, 26:11-21). See also 42 U.S.C. § 1396r; 42 C.F.R. § 483.100. APD has adopted rules to define seven waitlist categories. See Fla. Admin. Code R. 65G-11.002 & § 393.065(5), Fla. Stat. The first category is for those determined by APD to be in “crisis” (i.e., homeless, without a caregiver or a danger to themselves or others). (Doc. No. 145, Ex. “I”, ¶ 3). The Defendants have no plans to begin enrollment from categories other than “crisis.” (Doc. No. 145, Ex. “I”, ¶ 15 & Ex. “N”, Vol. I, 116:25 – 117:1-3). Only those applicants or individuals on the waitlist that APD determines to have met the crisis criteria have access to DD Waiver services. (Doc. No. 145, Ex. “I”, ¶ 3, at 5; & Ex. “N”, Vol. I, 116:25 – 117:3). Absent a crisis, individuals on the waitlist must seek admission to an ICF/DD in order to secure services or remain in the

1 PASRR requires states to assess whether “mentally retarded” individuals (1) need the level of care nursing homes provide and (2) require specialized services. See 42 U.S.C. § 1396r(e)(7)(B)(ii). States had to review all mentally retarded nursing home residents when the NHRA was enacted and still must review new admissions and residents whose conditions change significantly. Id. § 1396r(e)(7)(B)(ii)-(iii). Generally nursing homes may not admit or must discharge anyone found not to need their services. See id. §§ 1396r(b)(3)(F)(ii) & (e)(7)(C)-(D).

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community on the waitlist and hope that APD will subsidize temporary or ongoing services through the Individual Family Supports program (“IFS”) similar to the relief obtained by Joshua Woodward and Amanda Pivinksi. (Doc. No. 136, ¶ 4).
APD agreed to provide AHCA with the number of waiver recipients disenrolled along with corresponding demographic data, and to maintain waiver wait lists that accurately reflect wait list changes due to enrollments. (Doc. No. 145, Ex. “C”, Sect. B.5.h & i, at 8). Therefore, the Defendants have joint responsibilities for the admissions and continued residency of eligible persons with developmental disabilities in institutions and the preclusion of services to those on the waitlist. II. THE P&A’S CONSTITUENTS ARE ELIGIBLE FOR SERVICES
To be eligible for entry onto the DD Waiver, the P&A’s constituents must show that they “both (1) meet the preliminary eligibility requirements for participation in the Waiver program, as indicated by their presence on the waiting lists, and (2) are entitled to one of the few Waiver slots.” Susan J. v. Riley, 616 F. Supp. 2d 1219, 1241 (M.D. Ala. 2009). See also Bryson v. Shumway, 308 F. 3d 79, 88 (1st Cir. 2002).
The P&A’s constituents meet the first element as they await DD Waiver services either in institutions, or without meaningful supports in the community. (Doc. No. 145, Ex. “U”, ¶ 6). To begin with, Hansen has admitted there are 198 persons with developmental disabilities residing in private ICF/DD facilities while waiting for DD Waiver services and another 69 persons with developmental disabilities waiting for DD Waiver services in state-operated ICF/DDs. Compare Doc. No. 30, ¶¶ 153 & 155, with Doc. No. 62, ¶¶ 153 & 155. Additionally, the P&A included an explicit statement of

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representation on behalf of Pivinski and Woodward who had continued to wait for DD
Waiver services while receiving the stop-gap temporary provision of state-only funded
services. Doc. No. 30, ¶ 90. Finally, the P&A has constituents waiting for services in
other privately run ICF/DDs, nursing facilities, and family homes that it continues to
advocate on behalf of in order to obtain services. (Doc. No. 145, Ex “U”, ¶¶ 6-9). All of
these identified waitlisted individuals have been found to have a qualifying
developmental disability, pursuant to Section 393.063(9) of the Florida Statutes, that
makes them eligible for the DD Waiver. (Doc. No. 145, Ex. “N”, Vol. I, 117:9-12).
The second element from the Susan J. and Bryson decisions is the key to this
entire matter. (Doc. No. 60, at 4). Enrollment in the DD Waiver is capped at the number
of unduplicated individuals proposed by the state and approved by CMS. See 42 C.F.R. §
441.303(f)(6). In a state’s waiver application to the federal Centers for Medicaid and
Medicare services (“CMS”), the state must identify the
unduplicated number of individuals that the state intends to serve each year the waiver is in effect. It is up to the state to determine this number, based on the resources that the state has available to underwrite the costs of waiver services. As state resources permit, this number may be modified by amendment while the waiver is in effect.
(Doc. No. 145, Ex. “Q”, at 7) (emphasis added). CMS gives explicit guidelines on what
the number of unduplicated individuals means and how it is to be applied to waiver
applicants seeking enrollment:
Until the maximum number of unduplicated participants in the approved waiver is reached, a state may not deny entry to the waiver of otherwise eligible individuals unless the state elects to establish a point-in-time enrollment limit, adopts a phase-in or phase-out schedule, or reserves capacity for specified purposes

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(see following items). As a consequence, the number of persons who will be served should be based on a careful appraisal of the resources that the state has available to underwrite the costs of waiver services.
(Doc. No. 145, Ex. “Q”, at 82) (emphasis supplied). The number of unduplicated
individuals serves as both the ceiling and the floor for a waiver program—ensuring that a
state does not exceed its agreed to limit on waived service provisions, while
simultaneously ensuring that the waiver is at capacity so long as there are eligible
individuals to fill the slots.
Section f of Appendix B-3 for each of the Florida waiver applications, states that
individuals shall be enrolled onto the DD Waiver “[w]hen the level of funding
appropriated by the Florida Legislature provides funding for additional vacancies on the
waiver.” While the Defendants may seek to read their section f assertion to tie slots or
available vacancies to the funding provided by the Florida Legislature, CMS provides
specific instructions to Appendix B-3, stating:
A state may find it necessary to reduce the maximum number of participants because legislative appropriations are insufficient to support the number of persons specified in the approved waiver. In order to effect such a reduction, a state must submit a waiver amendment and the amendment must be formally approved by CMS. As previously noted, in the past, states have been permitted to tie the number of participants to legislative appropriations and notify CMS in writing of the reduction in the number of participants due to legislative appropriations without submitting an amendment. This alternative is no longer available. The waiver is considered to be in effect as approved unless CMS has formally approved an amendment submitted by the state. If a state finds it necessary to freeze waiver enrollment or place a moratorium on new entrants to the waiver, the state also must submit an amendment to CMS to revise the unduplicated participant cap for the affected waiver year.

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Doc. No. 145, Ex. “Q”, at 82 (emphasis added). The directions for Appendix B-3, section f, further state that “[e]ntrance to the
waiver may not be deferred when there is unused waiver capacity.” Id. (emphasis added). Nor is it “appropriate to base policies for the selection of otherwise eligible individuals on factors such as the expected costs of waiver services or the types of services that an individual might require post-entrance.” Doc. No. 145, Ex. “Q”, at 88. While the Defendants may assess individuals to determine who is in crisis or in foster care and should gain priority entrance, they cannot consider “an analysis of a particular pool of applicants, their needs, and the available funds.” Doc. No. 123, at 5.
Based upon the most recently approved DD Waiver applications, the Defendants sought and received approval for the enrollment of at least 39,200 individuals in Tiers 1 through 4. (Doc. No. 145, Ex. “V” [DO 18893, Appx. B-3.a (4,000); DO 18897; DO14084, Appx. B-3.a (4,200); DO18907; DO14085, Appx. B-3.a (16,000); DO14118, Appx. B-3.a (15,000). In March 2011, there were 30,033 individuals enrolled. (Doc. No. 145, Ex. “A”, ¶ 23; Doc. No. 145, Ex. “B”, ¶ 23; Review of the Home and CommunityBased Care Waiver Program, dated 3/31/2011, http://apd.myflorida.com/ news/news/2011/hcsbw-review.pdf, at 2). In November 2011, there were 29,624 individuals enrolled, (Doc. No. 145, Ex. “A”, ¶ 21 & Ex. “B”, ¶ 21), evidencing the declining number individuals served annually by the DD Waiver. Not including the iBudget figures, this leaves 9,576 slots for non-crisis waiver applicants.
“Although participation in the Medicaid program is entirely optional, once a State elects to participate, it must comply with the requirements of Title XIX [of the

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Medicaid Act].” Harris v. McRae, 448 U.S. 297, 301 (1980). To the extent that the Defendants rely on their own eligibility and crisis rules or Florida Statutes to support the limitation on the availability of resources, such authority is in contravention of the Medicaid Act and cannot be enforced without violating federal law. After opting to participate in the program, and agreeing to a State Plan with CMS, the requirements of the Medicaid Act are mandatory and are the “supreme” law, which invalidates conflicting State law under the Supremacy Clause. See Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 478 (1996) (injunction against enforcement of State law to the extent of conflict with Medicaid Act). Cf. Blum v. Bacon, 457 U.S. 132, 138 (1982) (supremacy clause issue). The Supremacy Clause requires invalidation of any state constitutional or statutory provision that conflicts with federal law, see Reynolds v. Sims, 377 U.S. 533, 584 (1964), and compels compliance by participants in Title XIX federal aid programs with federal law and regulations. See King v. Smith, 392 U.S. 309, 316-17 (1968).
As the maximum CMS-approved enrollment has not been reached, waiver slots are available for the P&A’s constituents. The P&A’s constituents, having met both elements of Susan J. and Bryson, are eligible for services, and are entitled to reasonably prompt delivery of their chosen method to receive those services. III. COUNT III: INTEGRATION MANDATE OF THE ADA
AND SECTION 504 OF THE REHABILITATIVE ACT The P&A’s constituents have suffered and continue to suffer injuries consisting of their unnecessary segregation in institutional settings and their unnecessary languishing and regression of capabilities while waiting for community services. These injuries are directly traceable to the Defendants’ conduct of enforcing a crisis-only enrollment policy;

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categorization of institutionalized but waitlisted persons with developmental disabilities; and a refusal to enroll eligible applicants up to the approved intended recipient count.
Discrimination claims under the ADA and Section 504 are substantially similar and are analyzed the same way. See Allmond v. Akal Sec., Inc., 558 F. 3d 1312, 1316 n.3 (11th Cir. 2009). The ADA requires “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, program, or activities of a public entity, or be subjected to discrimination by a public entity.” 42 U.S.C. § 12132. The unjustified institutional isolation of persons with disabilities is a form of discrimination by reason of disability. See Olmstead, 527 U.S. at 597 & 600-01. The ADA requires states to provide community based treatment for persons with disabilities when:
(1) the state's treatment professionals have determined that community-based services are appropriate for an individual;
(2) the individual does not oppose such services; and (3) the services can be reasonably accommodated, taking into account
(a) the resources available to the state, and (b) the needs of others with disabilities. See Olmstead, 527 U.S. at 602-04 & 607. “When these requirements are met, states must provide services to individuals in community settings rather than in institutions.” Haddad v. Arnold, 784 F. Supp. 2d 1284, 1298 (M.D. Fla. 2010) (citing Fisher, 335 F. 3d at 1181).

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A. Community-based services are appropriate for the P&A’s constituents residing in institutions
The Defendants’ placement of Dykes, Young, Davis, and other constituents on the DD Waiver waitlist is tacit recognition that these persons are qualified individuals with a disability who could be served in the community. Dykes’s and Davis’s recent transitions to community settings demonstrate that community-based services were appropriate for them; thus, satisfying the first prong. Young was also placed on the waitlist by APD. In 2001, her CMAT team first noted that a less restrictive setting may be more appropriate and continued that documentation through April 2008 without ever obtaining community services. Not until this lawsuit was filed was Young finally accepted and transitioned to the DD Waiver. Dykes, Davis, and Young are but three of the identified 198 individuals residing in ICF/DDs and the 115 individuals residing in nursing homes that requested and were waiting for DD waiver services. But for the Defendants’ omission of routinely identifying and assessing ICF/DD and nursing home residents who can live in the community and desire to do so, these individuals and the apparently 14 individuals recently identified by the Defendants would have had their choice of community services effectuated in a reasonably prompt manner. (Doc.123, p.12). This also satisfies the first prong for community based treatment.
B. The P&A’s constituents residing in institutions do not oppose community-based services
The P&A’s constituents also satisfy the second prong - no opposition to receipt of in-home services - because they have affirmatively been seeking community services by applying for them and languishing on the waitlist. The P&A’s constituents, including

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Dykes, Davis and Young, have demonstrated their willingness to transition and their continued successful transition evidences the lack of opposition. (Doc. No. 145, Ex “U”.) This satisfies the second prong of the analysis.
C. Taking into account the resources available to the state and the needs of others with disabilities, the services can reasonably accommodate the P&A’s constituents residing in institutions
The remaining question is whether institutionalized constituents can be reasonably accommodated in the community, taking into account the resources available to the state and the needs of others with disabilities. The requested accommodation, receipt of in-home services, requires the transfer of funds from the ICF/DDs to the DD Waiver. The accommodation is reasonable in light of the Defendants' resources and their obligations to other disabled individuals. By previously using proviso language to assist transfers from institutions to the community, the Defendants have recognized funds transfers as a reasonable accommodation. There is no reason to believe, however, that the Defendants will have a permanent diversion and transition mechanism in place, as the only known individuals transitioned since the inception of the lauded proviso language were the two individually named Plaintiffs in this matter. The proviso language expires at the end of each fiscal year2 and the Defendants have failed to demonstrate any effective commitment to transition persons eligible for the DD Waiver out of institutional settings.
Thus far, AHCA has analyzed the savings potential of the only two clients transferred from institutions to the community — Dykes and Davis (Doc. No. 145, Ex
2 The State may not enact substantive law through an appropriations act without violating Fla. Const. art. III, § 12. See Department of Admin. v. Horne, 269 So. 2d 659, 660 (Fla. 1972) (citations omitted). See also Chiles v. Milligan, 682 So. 2d 74, 77 (Fla. 1996) (same).

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“H”). For roughly one-half of the year, AHCA has realized a potential savings of
$61,416.00. Annualized, the savings brought about from these two transitions totals $133,622.85.3 Assuming the same rate of savings for every two individuals identified as
being on the waitlist and residing in ICF/DDs (currently 196 individuals), there is a
potential annual savings of more than $13 million. The projected $13 million saved
would allow for 436 individuals on the waitlist to be added to the DD Waiver with a
$30,000 average cost plan. These savings also fail to account for transitions from other
institutions, including nursing homes, which could further add to the potential savings
and allow for more enrollees from the waitlist.
However, AHCA has affirmed that any savings realized from transitions will
remain respectively in the Medicaid Nursing Home and the Medicaid ICF/DD budget
categories. (Doc. No. 145, Ex. “J” ¶¶ 12 & 13). Further, the state has another method to
protect the services it provides to individuals in institutions. Since 2009, private ICF/DDs
have been able to use Quality Assessment Fees (“QAFs”) to compensate for any rate cuts
since 2008. See § 408.9083(3), Fla. Stat. Similarly, Nursing Homes are able to buy back
rates through the use of QAFs as well. See § 409.9082, Fla. Stat.
Dykes, Davis, Young, and other constituents have been injured by their
institutionalization, despite being eligible for community-based DD Waiver services.
3 Dykes: ICF/DD daily rate = $373.10 ($373.10 x 365 = $136,181.50 annually) & number of days out of the institution for FY2011-12 = 149 ($26,538 in approved FY2011-12 waiver costs 149 = $178.10 per day on DD Waiver; $65,006.50 annually on DD Waiver; savings of $71,175.00 per annum post transition. Davis: ICF/DD daily rate = $351.83 ($351.83 x 365 = $128,417.95 annually) & number of days out of the institution in FY2011-12 = 195 ($35,245 in approved FY2011-12 waiver costs 195 = $180.74 per day on DD Waiver; $65,970.10 annually on DD Waiver; savings of $62,447.85 per annum post transition). Total saving per year for Dykes & Davis = $133,622.85.

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Placement in an institution precludes crisis-enrollment for other identified constituents residing in privately run ICF/DDs, state run ICF/DDs and skilled nursing facilities. The causal connection for them is clear, “they will never fall into the [the crisis category].” (Doc. No. 80, at 9).
For institutionalized constituents, there are no undisputed facts upon which the Defendants can rely to support their defenses. In fact, no affirmative defenses were presented in their Answer to the Amended Complaint. (Doc. Nos. 62 & 63). Institutionalized constituents are eligible individuals with developmental disabilities that must be evaluated by APD staff to determine if community services are appropriate. §§ 393.13(2)(d)2, 3, & 7, Fla. Stat. While Dykes, Davis, and Young no longer require transition due to their recent community placements, at least another 196 individuals in private ICF/DDs, 69 individuals in state-run ICF/DDs, and 114 individuals in nursing homes still desire transition, but cannot achieve it due to the challenged administrative barriers of the Defendants. (Doc. 145, Ex. “O” & “U”). For institutionalized P&A constituents affirmatively seeking placement on the DD Waiver waitlist, thereby making their lack of opposition to community services known, the Defendants have failed to routinely conduct evaluations independent of the institution’s staff determining the ongoing appropriateness of community services. (Doc. No. 145, Ex. “C”, Sect. C., at 12).
D. The P&A’s constituents residing in the community waiting for community services can also be reasonably accommodated, taking into account the resources available to the state, and the needs of others with disabilities
The P&A’s not-yet-institutionalized constituents seek to maintain their independence and community involvement. Pivinski and Woodward, as well as other

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constituents of the P&A, are persons with developmental disabilities, as defined in Section 393.063 of the Florida Statutes, who are eligible for the DD Waiver. Some constituents, like Pivinski, Woodward, and A.Q. reside in their families’ home. (Doc. No. 30, at ¶¶ 57 & 65; Doc. No. 145, Ex. “W”, ¶ 2. This Court has already acknowledged these persons as incurring injuries by “languishing on the waitlist without services.” (Doc. No. 80, at 5).
The Defendants’ policies unreasonably and arbitrarily deny community services to the not-yet-institutionalized constituents waiting for services. First, crisis enrollments are shrinking despite being below the number of approved CMS slots. (Doc. No. 145, Ex. “S”, 162:1-11). Second, APD’s policies that use General Revenue funds to alleviate certain crisis situations through limited services otherwise deny the full panoply of DD Waiver services to otherwise crisis eligible individuals. (Doc. No. 145, Ex. “N”, Vol. I, 122:8-12). Third, through retention of the savings from actual deinstitutionalizations in the institutions’ budget, the Defendants further enlarge the existing imbalance of funding. (Doc. No. 145, Ex. “J”, ¶¶ 12 & 13). Finally, the Defendants have not used or planned to use the savings achieved from deinstitutionalization for non-crisis enrollments or to otherwise move the waitlist. (Doc. No. 145, Ex. “I”, ¶ 15 & Ex. “N”, Vol. I, 116:25 117:3).
The Defendants’ policies and practices preclude not-yet-institutionalized constituents from obtaining needed services. By transferring the individuals in ICF/DDs (198), in nursing homes (115), and the state-run ICF/DDs (69) to community placements, the savings realized could feasibly serve those persons who are neither in crisis nor

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institutionalized and eradicate any financial defenses the Defendants seem to claim. The savings, however, do not follow the exiting individuals from the institution to the DD Waiver in the budget allowing the Defendants to claim this arbitrary and state-created barrier as a defense to reaching its intended unduplicated recipient count as stated in its DD Waiver applications. Cramer v. Chiles, 33 F. Supp. 2d 1342, 1353 (S.D. Fla. 1999)(“Underfunding of the Home and Community–Based Waiver program compels institutionalization, thus negating a meaningful choice.”)
Based upon the foregoing, there is no genuine issue of material fact as to the Defendants’ violations of the ADA and Section 504; thus, this Court should grant the P&A’s motion for summary judgment on Count III of the Amended Complaint IV. COUNT I: REASONABLE PROMPTNESS
In Count I of the Amended Complaint, the P&A has filed a claim on behalf of its constituents under 42 U.S.C. § 1983 seeking to enforce the reasonable promptness provision of the Medicaid Act. See 42 U.S.C. § 1396a(a)(8) & 42 C.F.R. § 435.930. The Eleventh Circuit has held that there is “a federal right to a reasonably prompt provision of assistance under section 1396a(a)(8) of the Medicaid Act, and that this right is enforceable under section 1983.” Doe 1-13, 136 F. 3d at 719.
A. APD’s and AHCA’s administrative procedures cause delay and prevent the P&A’s constituents from receiving services in a reasonably prompt manner
A state plan for medical assistance "must ... provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible

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individuals." 42 U.S.C. § 1396a(a)(8) (emphasis added). A state Medicaid agency must "furnish Medicaid promptly to recipients without delay caused by the agency's administrative procedures" and "continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." 42 C.F.R. § 435.930.
The Defendants’ statutes, rules and policies for management of the waitlist force the P&A’s constituents currently residing in the community to forgo services completely, while waiting for one of the three desperate and dangerous categories of crisis to take hold. Despite Florida’s express legislative intent, there has been no expansion of DD Waiver enrollments available to non-crisis Medicaid eligible recipients. As recently as July 2010, 49.4% of those individuals waiting for DD Waiver services had been waiting more than four years. Of those, 37.2% had been waiting longer than five years. (Doc. No. 62, ¶¶ 142 & 143). See also Doc. No. 145, Ex. “U”, ¶¶ 6-9.
There are no non-crisis enrollments and fewer crisis enrollments, creating an even more competitive crisis enrollment process. Other not-yet-institutionalized constituents of the P&A have been placed on a lengthy waitlist and continue to wait while the Defendants reduce community services for them. IFS funds are diverted to squelch crisis situations deemed not critical enough for DD Waiver services, thereby depriving those funds for services, such as Supported Employment. (Doc. No. 145, Ex. “N”, Vol. II; 150:17-18). The unavailability of services in the community relegates Medicaid eligible persons with developmental disabilities to a waitlist placement for years in violation of the “reasonable promptness” provisions. See 42 U.S.C. § 1396a(a)(8) & 42 C.F.R. § 435.930.

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Institutionalized P&A constituents will never qualify for the Defendants’ crisis definitions as long as they remain in the institution. There are at minimum 196 individuals and at most 233 individuals on the waitlist residing in ICF/DDs. (Doc. No. 30, ¶ 153; Doc. No. 62, ¶ 153; & Doc. No. 145, Ex. “K”, 24:1 - 25:1). Additionally, 69 persons with developmental disabilities registered for the DD Waivers waitlist reside in state-run ICF/DDs. (Doc. No. 30, ¶ 155; Doc. No. 62, ¶ 155).
The Defendants have been able to utilize a proviso granting permission to transfer funds from private or state-operated ICF-DDs to the DD Waivers since its original insertion into the state’s appropriations bill in 2011. See Ch. 2011-69, § 3, at 55, Laws of Fla. To date, the P&A is aware of the physical transition from ICF-DD to community placement for only two individuals—Dykes and Davis, who were originally named as plaintiffs in this suit.
For the P&A’s constituents in nursing homes, there is no Nursing Home Transition proviso language to bring the funds to the DD Waiver that pay for the nursing home stay. While a Nursing Transition Program exists for another Florida Medicaid waiver, that waiver does not offer residential supports similar to the DD Waiver. As of September 2010, there were at least 115 persons with developmental disabilities on the waitlist residing in Nursing Facilities. (Doc. No. 145, Ex. “P”).
The Defendants’ continued neglect and apathy of realizing savings through transition of those persons in institutions who want community services to the DD Waiver is problematic. For example, by assessing the needs of the persons on the waitlist and planning a method to enroll and fund persons in categories other than “crisis” –

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including those institutionalized in Category 3 and those not yet institutionalized in Categories 3-7 – through realized savings, the Defendants could meet their obligations and have a waitlist that moves at a reasonable pace. The consequence of the Defendants’ actions is the complete absence of a moving waitlist. This Court should grant the P&A’s claim for violation of the reasonable promptness provision. V. COUNT II: FREEDOM OF CHOICE
In Count II of the Amended Complaint, the P&A seeks to enforce 42 U.S.C. § 1396n(c)(2)(C) — the freedom of choice provision of the Medicaid Act applicable to waiver programs, which is a federally enforceable right under 42 U.S.C. § 1983. See, e.g., Cramer v. Chiles, 33 F. Supp. 2d 1342, 1351 (S.D. Fla. 1999) (§ 1396n(c)(2)(C) met elements to create enforceable right under § 1983); Ball v. Rodgers, 492 F. 3d 1094, 1117 (9th Cir. 2007); & Wood v. Tompkins, 33 F. 3d 600, 612 (6th Cir. 1994).
A. The P&A’s constituents have not been informed of the ‘feasible alternatives’ for the provision of services to persons with developmental disabilities
The Defendants must inform those individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded of the feasible alternatives available under the waiver. See 42 U.S.C. § 1396n(c)(2)(C). Both Dudek and Hansen are responsible for the operation of the DD Waivers and have taken responsibility to “assure that individuals have freedom of choice between home and community-based services or institutional services.” (Doc. No. 145, Ex. “C”, Sect. B.3.c, at 4). See also 42 C.F.R. § 440.180 and 42 C.F.R. 441, subpart G. Instead, the Defendants require Medicaid eligible individuals to

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choose between: (1) an indefinite and lengthy placement on the DD waiver waitlist
without services, or (2) placement in an ICF/DD with services but decreased
independence, where they would be frozen in Category 3.
While implementing their Medicaid waiver service programs, a state must comply
with the Medicaid freedom of choice provision. At some time after 1999, when the
Supreme Court issued its ruling in Olmstead, the Defendants knew or should have known
that placement in an institution while simultaneously being on the waitlist could violate
the ADA. The Defendants failed to inform those persons in ICF/DDs, including the
P&A’s constituents, of the “feasible alternatives” to an institutional setting and that they
could receive services through the DD Waiver.
In seemingly furtherance of its obligation, APD agreed to:
Maintain vacancy and waiting lists for placement of clients in ICF/DDs. When clients select an ICF/DD for placement, APD will complete necessary assessments and be responsible for making arrangements with the ICF/DD for admission.
Conduct utilization and continued stay reviews for all residents of public and private ICF/DD facilities. When review is completed, APD will send a copy of the utilization review and continued stay review documents to the APD Area office and respective ICF/DD facility. For new admissions to a facility, a copy of the review is sent to the facility and to the adult payments worker at DCF to process.
(Doc. No. 145, Ex. “C”, Sect. C.3.j & k, at 12) (emphasis added).
Yet, Dykes, Davis, and other P&A constituents needed client advocates to assist
them in applying for the DD Waiver and being subsequently registered on the waitlist.
Hansen failed to identify that Dykes, Davis, and other P&A constituents are able to live
in the community, pursuant to the Medicaid freedom of choice provision. 42 U.S.C. §

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1396n(c)(2)(C). Similarly, despite having the ability to reside in the community, Young lived in a nursing home for more than a decade, while a Children’s Multidisciplinary Assessment Team (“CMAT”) sought a community placement for her through the DD Waiver program. Young was eligible for the DD Waiver based on her disability and should have been informed of the possibility to receive services through the DD Waiver. Only after this suit was filed did the Defendants provide a community placement for Young. There are another 114 P&A constituents who are now in the same position as Young. (Doc. No. 145, Ex.“P” & Ex. “U”, ¶ 9).
The Defendants have failed (1) to identify all institutionalized persons that are eligible to receive services through the DD Waiver and (2) to routinely and continuously offer choice counseling to ensure the appropriate integrated setting for those individuals. Therefore, the Court should grant the P&A’s motion for summary judgment as to Count II of the Amended Complaint. VI. COUNT IV: DENIAL OF DUE PROCESS
In Count IV of the Amended Complaint, the P&A seeks a remedy via 42 U.S.C. § 1983 for the Defendants’ violation of procedural due process. “In this circuit, a § 1983 claim alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally inadequate process.” Arrington v. Helms, 438 F.3d 1336, 1348 (11th Cir. 2006) (quoting Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)).
Under the Fourteenth Amendment to the United States Constitution, no state “shall ... deprive any person of life, liberty or property without due process of law.” U.S.

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Const. amend. XIV, § 1. No person’s property rights can be deprived except pursuant to constitutionally adequate procedures. See Cleveland Bd. of Educ. v. Loundermill, 470 U.S. 532, 541 (1985). It is beyond dispute that the P&A’s constituents have a protected property interest in their Medicaid services, see, e.g., Goldberg v. Kelly, 397 U.S. 254, 262 n.8 & 264 (1970) (welfare), and the actions and inactions by Dudek and Hansen constitute “state action” under the second element. Compare Doc. No. 30, ¶ 99 with Doc. No. 62, ¶ 99 & Doc. No. 63, ¶ 99. Accordingly, the sole dispute here is whether notices of a right to hearing were ever provided to the P&A’s constituents when they made their initial applications for DD Waiver services.
“The essential requirements of due process ... are notice and an opportunity to respond.” Loudermill, at 470 U.S. at 546. See also Dusenbery v. United States, 534 U.S. 161, 167-68 (2002). In this case, written notice to each of the P&A’s constituents was mandatory. See 42 C.F.R. §§ 431.206(b) & 431.210. When determining the adequacy of a state's notice of decision under the Due Process Clause, the Eleventh Circuit applies the test set forth in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). See Arrington, 438 F. 3d at 1349. Notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314. Although due process is a flexible concept that varies with the particular circumstances of each case and myriad forms of notice may satisfy the Mullane standard, see Grayden, 345 F. 3d at 1239 n. 17, the failure to provide any required notice is a violation of due process. See, e.g., Holmes v. New York City Hous. Auth., 398 F. 2d 262, 265 (2nd Cir. 1968).

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The P&A’s constituents applied for services through the DD Waiver. (Doc. No. 145, Ex. “N”, Vol. I; 9:1-25; 11:21 - 12:5; 13:8-16; Ex. “U”, ¶¶ 6-9). Each of their applications for DD Waiver services was either denied or not acted on with reasonable promptness as evidenced by their maintenance on the waitlist for numerous years. (Doc. No. 145, Ex. “U”; ¶¶ 6-9; & Ex. W, ¶ 7). Moreover, there is no evidence that any of the Plaintiffs ever received notification of their assigned waitlist prioritization category. (Doc. No. 145, Ex. “N”, Vol, I, 117:9-12 & Ex. “W”, ¶ 6). Compare Doc. No. 30, ¶¶ 23, 39, 47, 54 & 229 with Doc. No. 62, ¶¶ 23, 39, 47, 54 & 229 & Doc. No. 63, ¶¶ 23, 39, 47, 54 & 229. Accordingly, the P&A has satisfied all of the elements for a denial of procedural due process, see Cramer, 33 F. Supp. 2d at 1352 (granting summary judgment), and have satisfied a claim for violation of 42 U.S.C. § 1983.
CONCLUSION The P&A, on behalf of its constituents, should be granted summary judgment on Counts I-IV of the Amended Complaint. Where, as here, the P&A’s constituents are subjected to the acts or omissions at issue, “there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan, 504 U.S. at 561-62. Declaratory and injunctive relief are available to remedy the acts and omissions. Alternatively, the court should adjudicate those facts that are not genuinely in dispute. In conformance with Fed. R. Civ. P. 56(a) & (c), the P&A has supported its motion with admissible evidence, as set forth in its Second Statement of Undisputed Facts, Doc. No. 145. As there can be no dispute as to the facts alleged, the P&A requests the court to adjudicate its undisputed facts as established facts

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in the case. When a party fails to properly address another party's assertion of fact, as
required by Fed R. Civ. P. 56(c), the court may “consider the fact undisputed for
purposes of the motion.” See also Celotex, 477 U.S. at 324. Violations under 42 U.S.C. §
1983 warrant reasonable attorney’s fees and costs under 42 U.S.C. § 1988.
Respectfully submitted, this 26th day of June 2012.
By s/ Amanda Heystek Amanda Heystek, Esquire Florida Bar No. 0285020 Disability Rights Florida 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org
By s/ Paul E. Liles Paul E. Liles, Esquire Florida Bar No. 0921270 Disability Rights Florida paull@disabilityrightsflorida.org Christopher White, Esquire Florida Bar No. 0060109 christopherw@disabilityrightsflorida.org 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 Maryellen McDonald, Director of Legal and Advocacy Services Florida Bar No. 607533 maryellenm@disabilityrightsflorida.org 2728 Centerview Drive, Suite 102 Tallahasseee, FL 32301 (850) 488-9071 Telephone (850) 488-8640 Facsimile

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by CM/ECF to all attorneys of record this 26th day of June, 2012.
By s/ Amanda E. Heystek Amanda E. Heystek, Esquire Florida Bar No. 0285020 Disability Rights Florida, Inc. 1000 N. Ashley Drive, Suite 640 Tampa, Florida 33602 (850) 488-9071 Telephone (850) 488-8640 Facsimile amandah@disabilityrightsflorida.org

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 Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 1 of 19
CLOSED,MEDIATION
U.S. District Court Northern District of Florida (Tallahassee) CIVIL DOCKET FOR CASE #: 4:11−cv−00116−RS−CAS

DYKES et al v. DUDEK et al Assigned to: JUDGE RICHARD SMOAK Referred to: MAGISTRATE JUDGE CHARLES A STAMPELOS Cause: 28:1983 Civil Rights
Plaintiff

Date Filed: 03/23/2011 Date Terminated: 07/09/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

JOANNA DYKES TERMINATED: 05/15/2012

represented by CHRISTOPHER THOMAS WHITE DISABILITY RIGHTS FLORIDA − TAMPA FL TIMES BLDG − STE 640 1000 N ASHLEY DR TAMPA, FL 33602 850−488−9071 Fax: 850−488−8640 Email: christopherw@disabilityrightsflorida.org ATTORNEY TO BE NOTICED

MARYELLEN MCDONALD DISABILITY RIGHTS FLORIDA − TALLAHASSEE FL 2728 CENTERVIEW DR SUITE 102 TALLAHASSEE, FL 32301 850−488−9071 Fax: 850−488−8640 Email: maryellenm@disabilityrightsflorida.org ATTORNEY TO BE NOTICED

PAUL EDMUND LILES DISABILITY RIGHTS FLORIDA − TAMPA FL TIMES BLDG − STE 640 1000 N ASHLEY DR TAMPA, FL 33602 850−488−9071 Fax: 850−488−8640 Email: paull@disabilityrightsflorida.org ATTORNEY TO BE NOTICED

AMANDA ERIN HEYSTEK DISABILITY RIGHTS FLORIDA − TAMPA FL TIMES BLDG − STE 640 1000 N ASHLEY DR TAMPA, FL 33602 800−342−0823 Fax: 850−488−8640 Email: amandah@disabilityrightsflorida.org ATTORNEY TO BE NOTICED

Plaintiff
DAVID WALKER BY AND THROUGH HIS NEXT FRIEND MICHELE BEAUREGARD TERMINATED: 11/10/2011

represented by CHRISTOPHER THOMAS WHITE (See above for address) ATTORNEY TO BE NOTICED
MARYELLEN MCDONALD

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 2 of 19

(See above for address) ATTORNEY TO BE NOTICED

PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED

AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
HEATHER YOUNG BY AND THROUGH HER NEXT FRIEND ROBERT STARK TERMINATED: 05/15/2012

represented by CHRISTOPHER THOMAS WHITE (See above for address) ATTORNEY TO BE NOTICED
MARYELLEN MCDONALD (See above for address) ATTORNEY TO BE NOTICED

PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED

AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
MICHELLE CONGDEN TERMINATED: 05/15/2012

represented by CHRISTOPHER THOMAS WHITE (See above for address) ATTORNEY TO BE NOTICED

MARYELLEN MCDONALD (See above for address) ATTORNEY TO BE NOTICED

PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED

AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
AMANDA PIVINSKI TERMINATED: 05/15/2012

represented by CHRISTOPHER THOMAS WHITE (See above for address) ATTORNEY TO BE NOTICED

MARYELLEN MCDONALD (See above for address) ATTORNEY TO BE NOTICED

PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED

AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 3 of 19

DISABILITY RIGHTS FLORIDA INC A FLORIDA NON−PROFIT CORPORATION

represented by CHRISTOPHER THOMAS WHITE (See above for address) ATTORNEY TO BE NOTICED
MARYELLEN MCDONALD (See above for address) ATTORNEY TO BE NOTICED

PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED

AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
LORETTA DAVIS BY AND THOUGH HER NEXT FRIEND TRISH MLEKODAJ TERMINATED: 05/15/2012

represented by PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED
AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
JOSHUA WOODWARD TERMINATED: 05/15/2012

represented by PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED

AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
ALYSSA FERRARO BY AND THROUGH HER NEXT FIREND SHARON FERRARO TERMINATED: 10/14/2011

represented by PAUL EDMUND LILES (See above for address) ATTORNEY TO BE NOTICED
AMANDA ERIN HEYSTEK (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
ELIZABETH DUDEK IN HER OFFICIAL CAPACITY AS SECRETARY OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION

represented by ANDREW TAYLOR SHEERAN STATE OF FLORIDA − AGENCY FOR HEALTH CARE − TALLAHASSEE FL AGENCY FOR HEALTH CARE ADMN 2727 MAHAN DR BLDG #3, MS#3 TALLAHASSEE, FL 32308 850−412−3670 Fax: 850−921−0158 Email: andrew.sheeran@ahca.myflorida.com ATTORNEY TO BE NOTICED
BEVERLY H SMITH STATE OF FLORIDA − AGENCY FOR HEALTH CARE − TALLAHASSEE FL AGENCY FOR HEALTH CARE ADMN

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 4 of 19

2727 MAHAN DR BLDG #3, MS#3 TALLAHASSEE, FL 32308 850−412−3630 Fax: 850−912−0158 Email: Beverly.Smith@ahca.myflorida.com ATTORNEY TO BE NOTICED

DEBORA ELIZABETH FRIDIE AGENCY FOR HEALTH CARE ADMN − TALLAHASSEE FL 2727 MAHAN DR BLDG 3 TALLAHASSEE, FL 32308 850−412−3630 Fax: 850−921−0158 Email: Debora.fridie@ahca.myflorida.com ATTORNEY TO BE NOTICED

STUART FRASER WILLIAMS AGENCY FOR HEALTH CARE ADMN − TALLAHASSEE FL 2727 MAHAN DR BLDG 3 TALLAHASSEE, FL 32308 850−412−3630 Fax: 850−921−0158 Email: stuart.williams@ahca.myflorida.com ATTORNEY TO BE NOTICED

WILLIAM MICHAEL BLOCKER , II AGENCY FOR HEALTH CARE ADMN − TALLAHASSEE FL 2727 MAHAN DR BLDG 3 TALLAHASSEE, FL 32308 850−921−0046 Fax: 850−921−0158 Email: blockerw@ahca.myflorida.com ATTORNEY TO BE NOTICED

Defendant
BRIAN VAUGHAN IN HIS OFFICIAL CAPACITY AS INTERIM DIRECTOR OF FLORIDA AGENCY FOR PERSONS WITH DISABILITIES TERMINATED: 10/12/2011

represented by MARC ITO AGENCY FOR PERSONS WITH DISABILITIES − TALLAHASSE FL 4030 ESPLANADE WAY STE 380 TALLAHASSEE, FL 32399 850−922−2030 Fax: 850−410−0665 Email: marc_ito@apd.state.fl.us ATTORNEY TO BE NOTICED

MICHAEL ANTHONY PALECKI AGENCY FOR PERSONS WITH DISABILITIES − TALLAHASSE FL 4030 ESPLANADE WAY STE 380 TALLAHASSEE, FL 32399 850−414−8052 Fax: 850−410−0665 Email: mike_palecki@apd.state.fl.us ATTORNEY TO BE NOTICED

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 5 of 19

Defendant
RICK SCOTT IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA TERMINATED: 09/19/2011

represented by TIMOTHY DAVID OSTERHAUS FLORIDA DEPARTMENT OF EDUCATION − TALLAHASSEE FL 2002 OLD ST AUGUSTINE RD BLDG A TALLAHASSEE, FL 32301−4962 850−414−3681 Fax: 850−410−2672 Email: timothy.osterhaus@myfloridalegal.com ATTORNEY TO BE NOTICED

Defendant
MIKE HANSEN IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE FLORIDA AGENCY FOR PERSONS WITH DISABILITIES

represented by MARC ITO AGENCY FOR PERSONS WITH DISABILITIES − TALLAHASSEE FL 4030 ESPLANADE WAY STE 380 TALLAHASSEE, FL 32399−0950 850−922−2030 Fax: 850−410−0665 Email: marc_ito@apd.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

MICHAEL ANTHONY PALECKI AGENCY FOR PERSONS WITH DISABILITIES − TALLAHASSEE FL 4030 ESPLANADE WAY STE 380 TALLAHASSEE, FL 32399−0950 850−414−8052 Fax: 850−410−0665 Email: mike_palecki@apd.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

ELIZABETH NATALIE SINGH−SILVA AGENCY FOR PERSONS WITH DISABILITIES − TALLAHASSEE FL 4030 ESPLANADE WAY STE 380 TALLAHASSEE, FL 32399−0950 786−399−7877 Fax: 850−410−0665 Email: esinghsilva@gmail.com ATTORNEY TO BE NOTICED

TERIN BARBAS CREMER ALLEN NORTON &BLUE PA − N MONROE ST − TALLAHASSEE FL 906 N MONROE ST TALLAHASSEE, FL 32303−6143 850−561−3503 Fax: 850−561−0332 Email: terin.cremer@gmail.com ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 6 of 19

03/23/2011
03/23/2011 03/24/2011 04/12/2011 04/12/2011 04/12/2011 04/12/2011 04/14/2011 04/18/2011
04/20/2011
04/26/2011 04/26/2011
05/13/2011 05/13/2011
05/17/2011 05/17/2011
05/26/2011

1 COMPLAINT DYKES against ELIZABETH DUDEK, RICK SCOTT, BRIAN VAUGHAN ( Filing fee $ 350 receipt number 1129−1843036.), filed by DISABILITY RIGHTS FLORIDA, HEATHER YOUNG, DAVID WALKER, MICHELLE CONGDEN, JOANNA DYKES, AMANDA PIVINSKI. (Attachments: # 1 DUDEK summons, # 2 VAUGHAN summons, # 3 SCOTT summons) (HEYSTEK, AMANDA) (Entered: 03/23/2011)
2 CIVIL COVER SHEET. (HEYSTEK, AMANDA) (Entered: 03/23/2011)
3 Summons Issued as to ELIZABETH DUDEK, RICK SCOTT, BRIAN VAUGHAN. (Attachments: # 1 Summons, # 2 Summons) (jws) (Entered: 03/24/2011)
4 NOTICE of Appearance by MARC ITO on behalf of BRIAN VAUGHAN (ITO, MARC) (Entered: 04/12/2011)
5 NOTICE of Appearance by MICHAEL ANTHONY PALECKI on behalf of BRIAN VAUGHAN (PALECKI, MICHAEL) (Entered: 04/12/2011)
6 NOTICE of Appearance by BEVERLY H SMITH on behalf of ELIZABETH DUDEK (SMITH, BEVERLY) (Entered: 04/12/2011)
7 NOTICE of Appearance by ANDREW TAYLOR SHEERAN on behalf of ELIZABETH DUDEK (SHEERAN, ANDREW) (Entered: 04/12/2011)
8 MOTION for Extension of Time to File Answer and/or Motion to Dismiss by ELIZABETH DUDEK. (SHEERAN, ANDREW) (Entered: 04/14/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 8 STIPULATE MOTION for Extension of Time to File Answer and/or Motion to Dismiss filed by ELIZABETH DUDEK. (jws) (Entered: 04/18/2011)
10 ORDER GRANTING 8 MOTION for Extension of Time to File Answer and/or Motion to Dismiss filed by ELIZABETH DUDEK. ELIZABETH DUDEK answer due 5/31/2011; RICK SCOTT answer due 5/31/2011; BRIAN VAUGHAN answer due 5/31/2011. Signed by CHIEF JUDGE STEPHAN P MICKLE on 4/20/2011. (jws) (Entered: 04/20/2011)
11 Corporate Disclosure Statement/Certificate of Interested Persons by DISABILITY RIGHTS FLORIDA INC. (HEYSTEK, AMANDA) (Entered: 04/26/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 11 Corporate Disclosure Statement/Certificate of Interested Persons by DISABILITY RIGHTS FLORIDA INC. (jws) (Entered: 04/26/2011)
12 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, DAVID WALKER, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 05/13/2011)
13 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, DAVID WALKER, HEATHER YOUNG. (Attachments: # 1 Time Record) (HEYSTEK, AMANDA) (Entered: 05/13/2011)
14 NOTICE OF UNAVAILABILITY by DISABILITY RIGHTS FLORIDA INC (LILES, PAUL) (Entered: 05/17/2011)
16 INITIAL SCHEDULING ORDER signed by CHIEF JUDGE STEPHAN P MICKLE on 5/17/11 − Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set for 5/31/2011; Rule 26 Meeting Report due by 6/30/2011; Discovery due by 9/14/2011. (tss) (Entered: 05/20/2011)
17 Second MOTION to Extend Time to Answer Complaint (stipulated by the parties) by ELIZABETH DUDEK, RICK SCOTT, BRIAN VAUGHAN. (SHEERAN, ANDREW) (Entered: 05/26/2011)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 7 of 19

05/26/2011 05/31/2011 06/01/2011 06/03/2011
06/03/2011 06/14/2011 06/14/2011 06/14/2011 06/15/2011 06/15/2011 06/15/2011 06/15/2011 06/15/2011 06/21/2011 06/21/2011

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of CHIEF JUDGE STEPHAN P MICKLE notified that action is needed Re: 17 Second MOTION to Extend Time to Answer Complaint (stipulated by the parties) by ELIZABETH DUDEK, RICK SCOTT, BRIAN VAUGHAN. (jws) (Entered: 05/26/2011)
18 AMENDED INITIAL SCHEDULING ORDER signed by CHIEF JUDGE STEPHAN P MICKLE on 5/31/11 − Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set for 5/31/2011; Rule 26 Meeting Report due by 6/30/2011; Discovery due by 9/14/2011. (tss) (Entered: 05/31/2011)
19 ORDER re 17 Second MOTION to Extend Time to Answer Complaint (stipulated by the parties) filed by BRIAN VAUGHAN, ELIZABETH DUDEK, RICK SCOTT is GRANTED. (Answer due by 6/14/2011.). Signed by CHIEF JUDGE STEPHAN P MICKLE on 6/1/2011. (jws) (Entered: 06/01/2011)
20 ADMINISTRATIVE ORDER/ ORDER REASSIGNING CASE. Case reassigned to JUDGE RICHARD SMOAK for all further proceedings.ORDER REASSIGNING CASE. Case reassigned to JUDGE RICHARD SMOAK for all further proceedings. CHIEF JUDGE STEPHAN P MICKLE no longer assigned to case − the Clerk is hereby ORDERED to reassign the following cases as indicated, and the reassignment will be effective as of the date of this order. The Clerk is directed to file a copy of this order in each case, and refer the case to the assigned Judge. This order is entered with the concurrence of all of the United States District Judges for the Northern District of Florida. Signed by CHIEF JUDGE STEPHAN P MICKLE on 6/3/2011. (kdm) (Entered: 06/03/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 20 DMINISTRATIVE ORDER/ ORDER REASSIGNING CASE. Case reassigned to JUDGE RICHARD SMOAK for all further proceedings. (kdm) (Entered: 06/03/2011)
21 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by ELIZABETH DUDEK, BRIAN VAUGHAN. (SHEERAN, ANDREW) (Entered: 06/14/2011)
22 NOTICE of Appearance by TIMOTHY DAVID OSTERHAUS on behalf of RICK SCOTT (OSTERHAUS, TIMOTHY) (Entered: 06/14/2011)
23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by RICK SCOTT. (OSTERHAUS, TIMOTHY) (Entered: 06/14/2011)
24 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, DAVID WALKER, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 06/15/2011)
25 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, DAVID WALKER, HEATHER YOUNG. (Attachments: # 1 Non Atty Time report) (HEYSTEK, AMANDA) (Entered: 06/15/2011)
26 NOTICE of Appearance by CHRISTOPHER THOMAS WHITE on behalf of All Plaintiffs (WHITE, CHRISTOPHER) (Entered: 06/15/2011)
Set/Reset Deadlines as to 21 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . (Internal deadline for referral to judge if response not filed earlier: 6/29/2011). (sea) (Entered: 06/15/2011)
Set/Reset Deadlines as to 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . (Internal deadline for referral to judge if response not filed earlier: 6/29/2011). (sea) (Entered: 06/15/2011)
27 MOTION to Extend Time by MICHELLE CONGDEN, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, DAVID WALKER, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 06/21/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 27 MOTION to Extend Time (sea) (Entered: 06/21/2011)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 8 of 19

06/22/2011 07/07/2011 07/08/2011
07/12/2011 07/13/2011 07/13/2011 07/13/2011 07/13/2011 07/14/2011 07/15/2011
07/15/2011 07/15/2011
07/15/2011 07/15/2011 07/15/2011 07/18/2011

28 ORDER The relief requested by 27 Plas' Stipulated Motion For Local Rule 6.1 Extension For Filing Plas' Response To 21 23 Motions To Dismiss &Motion To Certify Class is granted. (Response to motions due by 7/15/2011.) Signed by JUDGE RICHARD SMOAK on 6/22/2011. (sea) (Entered: 06/22/2011)
29 DOCKET ANNOTATION BY COURT TO COUNSEL: Re 18 Amended Scheduling Order − Rule 26 Meeting Repot was due 6/30/2011. Rule 26 Meeting Report now due by 7/12/2011. Clerk to notify Chambers on 7/13/2011. (sea) (Entered: 07/07/2011)
30 First AMENDED COMPLAINT against All Defendants All Defendants., filed by DISABILITY RIGHTS FLORIDA INC, HEATHER YOUNG, DAVID WALKER, MICHELLE CONGDEN, JOANNA DYKES, AMANDA PIVINSKI, LORETTA DAVIS, JOSHUA WOODWARD, ALYSSA FERRARO. (HEYSTEK, AMANDA) (Entered: 07/08/2011)
31 STIPULATION Regarding Deadline for Filing Joint Scheduling Conference Report by ELIZABETH DUDEK. (SHEERAN, ANDREW) (Entered: 07/12/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 31 Stipulation Regarding Deadline for Filing Joint Scheduling Conference Report (sea) (Entered: 07/13/2011)
32 ORDER granted 31 Agreed Stipulation Regarding Deadline for Joint Scheduling Report. ( Joint Report due by 7/14/2011.) Signed by JUDGE RICHARD SMOAK on 7/13/2011. (sea) (Entered: 07/13/2011)
33 Joint MOTION for Extension of Time to File Joint Rule 26 Report by BRIAN VAUGHAN. (PALECKI, MICHAEL) (Entered: 07/13/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 33 Joint MOTION for Extension of Time to File Joint Rule 26 Report (sea) (Entered: 07/13/2011)
34 ORDER granted 33 Stipulated Motion for Extension. The Joint Report shall be filed not later than 7/15/2011. Signed by JUDGE RICHARD SMOAK on 7/14/2011. (sea) (Entered: 07/14/2011)
35 Joint MOTION Regarding Deadline For Filing Motion to Certify Class by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) Modified text on 7/15/2011 (sea). (Entered: 07/15/2011)
36 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 07/15/2011)
37 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Supplement Non−Atty) (HEYSTEK, AMANDA) (Entered: 07/15/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 35 Joint MOTION Regarding Deadline For Filing Motion to Certify Class (sea) (Entered: 07/15/2011)
38 REPORT of Rule 26(f) Planning Meeting. (HEYSTEK, AMANDA) (Entered: 07/15/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 38 Report of Rule 26(f) Planning Meeting − Scheduling and Mediation Order needed. Clerk to check status on 7/22/2011. (sea) (Entered: 07/15/2011)
39 ORDER denied 35 Joint Motion Regarding Deadline For Filing Motion To Certify Class. Any motion for class certification shall be filed not later than 8/31/2011. The

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 9 of 19

07/20/2011 07/21/2011 07/21/2011 07/21/2011
07/21/2011
07/21/2011 07/22/2011 07/22/2011 07/22/2011 07/22/2011 07/26/2011 07/27/2011 07/28/2011
07/28/2011
08/05/2011

parties may file an amended Rule 26 Joint Report not later than ten days from the date of this Order. (Amended Rule 26 Joint Report due by 7/28/2011). Signed by JUDGE RICHARD SMOAK on 7/18/2011. (sea) (Entered: 07/18/2011)
40 NOTICE Of Withdrawal by RICK SCOTT re 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (OSTERHAUS, TIMOTHY) (Entered: 07/20/2011)
41 NOTICE of Withdrawal of previously filed motion by ELIZABETH DUDEK, BRIAN VAUGHAN re 21 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (SHEERAN, ANDREW) (Entered: 07/21/2011)
42 Emergency MOTION for Leave to File Excess Pages in Defendants' Motion to Dismiss Amended Complaint by ELIZABETH DUDEK, BRIAN VAUGHAN. (SHEERAN, ANDREW) (Entered: 07/21/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 42 Emergency MOTION for Leave to File Excess Pages in Defendants' Motion to Dismiss Amended Complaint (sea) (Entered: 07/21/2011)
43 DOCKET ANNOTATION BY COURT TO COUNSEL: Re 42 Emergency MOTION − Counsel is reminded that the correct case number is: 4:11cv116 RS/WCS. The case was reassigned to Judge Richard Smoak on 6/3/2011, 20 Order. Please use the correct case number on future pleadings. (sea) (Entered: 07/21/2011)
44 ORDER granting 42 Motion for Leave to File Excess Pages. Signed by JUDGE RICHARD SMOAK on 7/21/2011. (jem) (Entered: 07/21/2011)
45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiffs' Amended Complaint by ELIZABETH DUDEK, BRIAN VAUGHAN. (SHEERAN, ANDREW) (Entered: 07/22/2011)
Set/Reset Deadlines as to 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plas' Amended Complaint. (Internal deadline for referral to judge if response not filed earlier: 8/9/2011). (sea) (Entered: 07/22/2011)
46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) by RICK SCOTT. (OSTERHAUS, TIMOTHY) (Entered: 07/22/2011)
Set/Reset Deadlines as to 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint). (Internal deadline for referral to judge if response not filed earlier: 8/9/2011). (sea) (Entered: 07/22/2011)
47 NOTICE of Appearance by DEBORA ELIZABETH FRIDIE on behalf of ELIZABETH DUDEK (FRIDIE, DEBORA) (Entered: 07/26/2011)
48 AMENDED CASE MANAGMENT REPORT. (HEYSTEK, AMANDA) Modified text on 7/28/2011 (sea). (Entered: 07/27/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 48 Report of Rule 26(f) Planning Meeting − Scheduling and Mediation Order needed. Clerk to check status on 8/4/2011. (sea) (Entered: 07/28/2011)
49 ORDER re 48 Amended Case Management Report. Counsel for all parties are directed to file a second amended joint report not later than August 8, 2011, with scheduling deadlines consistent with a discovery deadline of February 29, 2012, and trial on May 7, 2012. Signed by JUDGE RICHARD SMOAK on 7/28/2011.( Amended Rule 26 Meeting Report due by 8/8/2011.) (jcw) (Entered: 07/28/2011)
50 RESPONSE in Opposition re 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiffs' Amended Complaint filed by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 08/05/2011)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 10 of 19

08/05/2011
08/07/2011 08/07/2011 08/08/2011 08/08/2011 08/08/2011
08/09/2011 08/09/2011 08/10/2011 08/12/2011 08/15/2011 08/15/2011 08/24/2011

51 RESPONSE in Opposition re 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) filed by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 08/05/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 45 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Plaintiffs' Amended Complaint, 50 Response in Opposition to Motion (sea) (Entered: 08/07/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint), 51 Response in Opposition to Motion (sea) (Entered: 08/07/2011)
52 REPORT of Rule 26(f) Planning Meeting. (HEYSTEK, AMANDA) (Entered: 08/08/2011)
53 MOTION to Amend/Correct 51 Response in Opposition to Motion, by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 08/08/2011)
54 RESPONSE in Opposition re 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) filed by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 08/08/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 52 Report of Rule 26(f) Planning Meeting − Scheduling and Mediation Order needed. Clerk to check status on 8/16/2011. (sea) (Entered: 08/09/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 53 Unopposed MOTION to Amend 51 Pla's Response in Opposition to Motion (sea) (Entered: 08/09/2011)
55 ORDER granted 53 Unopposed Motion for Leave to Amend Pla's Response to the Governor's Motion to Dismiss Amended Complaint. The amended response shall be filed not later than August 15, 2011. (Internal deadline for referral to judge if response not filed earlier: 8/15/2011).Signed by JUDGE RICHARD SMOAK on 8/10/2011. (sea) (Entered: 08/10/2011)
56 SCHEDULING AND MEDIATION ORDER entered re 52 Report of Rule 26(f) Planning Meeting: Discovery deadline 2/29/2012. Mediation Report due by 4/2/2012. Jury Trial set for 5/7/2012 08:30 AM in U.S. Courthouse Tallahassee before JUDGE RICHARD SMOAK. Case referred to mediation. Signed by JUDGE RICHARD SMOAK on 8/12/2011. (jem) (Entered: 08/12/2011)
57 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 08/15/2011)
58 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Non Atty Time Record) (HEYSTEK, AMANDA) (Entered: 08/15/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 56 Scheduling Order. (Pretrial Order placed in Q drive) Set/Reset Deadlines: (Pretrial Order due by 8/31/2011.) (kgc)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 11 of 19

08/25/2011
08/30/2011 08/31/2011
09/13/2011 09/13/2011 09/13/2011 09/15/2011 09/15/2011
09/15/2011 09/19/2011
09/19/2011 09/20/2011 09/27/2011
09/28/2011 10/03/2011

(Entered: 08/24/2011)
59 PRETRIAL ORDER Pretrial Stipulation due by 4/20/2012. Jury Trial set for 5/7/2012 08:30 AM (EDT) in U.S. Courthouse Tallahassee before JUDGE RICHARD SMOAK. Pretrial Conference set for 4/30/2012 01:30 PM (CDT) in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK. Signed by JUDGE RICHARD SMOAK on 8/25/2011. (sea) (Entered: 08/25/2011)
60 ORDER denied 45 Motion to Dismiss. Signed by JUDGE RICHARD SMOAK on 8/30/2011. (sea) (Entered: 08/30/2011)
61 MOTION to Certify Class by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Internal deadline for referral to judge if response not filed earlier: 9/19/2011). (HEYSTEK, AMANDA) (Entered: 08/31/2011)
62 Defendant Hansen's ANSWER to 30 Amended Complaint, by BRIAN VAUGHAN. (ITO, MARC) (Entered: 09/13/2011)
63 ANSWER to 30 Amended Complaint, by ELIZABETH DUDEK. (FRIDIE, DEBORA) (Entered: 09/13/2011)
64 MOTION to Dismiss for Lack of Standing by ELIZABETH DUDEK, RICK SCOTT, BRIAN VAUGHAN. (Internal deadline for referral to judge if response not filed earlier: 10/3/2011). (SHEERAN, ANDREW) (Entered: 09/13/2011)
65 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 09/15/2011)
66 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 09/15/2011)
67 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 09/15/2011)
68 ORDER granted 46 MOTION TO DISMISS. The Governor is entitled to Eleventh Amendment immunity. He is therefore dismissed with prejudice. RICK SCOTT (IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF FLORIDA) terminated. Signed by JUDGE RICHARD SMOAK on 9/19/2011. (sea) (Entered: 09/19/2011)
69 RESPONSE in Opposition re 61 MOTION to Certify Class filed by ELIZABETH DUDEK, BRIAN VAUGHAN. (SHEERAN, ANDREW) (Entered: 09/19/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 61 MOTION to Certify Class, 69 Response in Opposition to Motion (sea) (Entered: 09/20/2011)
70 RESPONSE in Opposition re 64 MOTION to Dismiss for Lack of Standing filed by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 09/27/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 64 MOTION to Dismiss for Lack of Standing, 70 Response in Opposition to Motion (sea) (Entered: 09/28/2011)
71 ORDER denying 64 Motion to Dismiss. Signed by JUDGE RICHARD SMOAK on 10/3/2011. (jcw) (Entered: 10/03/2011)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 12 of 19

10/10/2011
10/11/2011 10/12/2011 10/12/2011 10/13/2011 10/13/2011 10/14/2011 10/14/2011 10/14/2011 10/14/2011 10/14/2011
10/14/2011 10/28/2011
10/31/2011 11/09/2011

72 Unopposed MOTION to Substitute Party and Change Style of Case by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (LILES, PAUL) Modified text on 10/11/2011 (sea). (Entered: 10/10/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 72 Unopposed MOTION to Substitute Party and Change Style of Case (sea) (Entered: 10/11/2011)
73 ORDER granting 72 Motion to Substitute Party. Signed by JUDGE RICHARD SMOAK on 10/12/2011. MIKE HANSEN added. BRIAN VAUGHAN (IN HIS OFFICIAL CAPACITY AS INTERIM DIRECTOR OF FLORIDA AGENCY FOR PERSONS WITH DISABILITIES) terminated. (jcw) (Entered: 10/12/2011)
74 MOTION to Extend Timeto Answer Plaintiffs' Discovery Requests by ELIZABETH DUDEK. (FRIDIE, DEBORA) (Entered: 10/12/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 74 MOTION to Extend Timeto Answer Plaintiffs' Discovery Requests (jcw) (Entered: 10/13/2011)
75 Consent MOTION to Dismiss Plaintiff Ferraro by ALYSSA FERRARO. (Internal deadline for referral to judge if response not filed earlier: 10/31/2011). (HEYSTEK, AMANDA) (Entered: 10/13/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 75 Consent MOTION to Dismiss Plaintiff Ferraro (jcw) (Entered: 10/14/2011)
76 ORDER entered on 75 Consent MOTION to Dismiss Plaintiff Ferraro. Pursuant to Fed. R. Civ. P. 41(a)(2), Plaintiff Alyssa Ferraro, through her next friend Sharon Ferraro, is dismissed as a party to this case without prejudice. Signed by JUDGE RICHARD SMOAK on 10/14/2011. (jcw) (Entered: 10/14/2011)
77 ORDER granting 74 Motion to Extend Time. Defendant Dudek shall respond to Plaintiffs discovery requests not later than October 26, 2011. Signed by JUDGE RICHARD SMOAK on 10/14/2011. (jcw) (Entered: 10/14/2011)
78 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 10/14/2011)
79 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Non−Atty time report) (HEYSTEK, AMANDA) (Entered: 10/14/2011)
80 ORDER denying 61 Motion to Certify Class. Signed by JUDGE RICHARD SMOAK on 10/14/2011. (jcw) (Entered: 10/14/2011)
81 MOTION for Reconsideration re 80 Order on Motion to Certify Class by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Exhibit Exhibit A) (HEYSTEK, AMANDA) (Entered: 10/28/2011)
Set/Reset Deadlines as to 81 MOTION for Reconsideration re 80 Order on Motion to Certify Class . (Internal deadline for referral to judge if response not filed earlier: 11/15/2011). (jcw) (Entered: 10/31/2011)
82 SUGGESTION OF DEATH Upon the Record as to David Walker by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (LILES, PAUL) (Entered: 11/09/2011)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 13 of 19

11/10/2011 11/15/2011 11/15/2011
11/17/2011 11/18/2011 11/23/2011 11/23/2011 11/28/2011 11/28/2011 11/30/2011
11/30/2011 12/01/2011
12/09/2011
12/12/2011 12/12/2011

83 ORDER re 82 Suggestion of Death. Signed by JUDGE RICHARD SMOAK on 11/10/2011. DAVID WALKER (BY AND THROUGH HIS NEXT FRIEND MICHELE BEAUREGARD) terminated. (jcw) (Entered: 11/10/2011)
84 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 11/15/2011)
85 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 11/15/2011)
86 RESPONSE in Opposition re 81 MOTION for Reconsideration re 80 Order on Motion to Certify Class filed by ELIZABETH DUDEK. (SHEERAN, ANDREW) (Entered: 11/17/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 86 Response in Opposition to Motion, 81 MOTION for Reconsideration re 80 Order on Motion to Certify Class (jcw) (Entered: 11/18/2011)
87 MOTION to Extend Timeto Answer Plaintiffs' Second Request for Production of Documents by ELIZABETH DUDEK. (FRIDIE, DEBORA) (Entered: 11/23/2011)
88 Amended MOTION to Extend Timeto Answer Plaintiffs' Second Request for Production of Documents by ELIZABETH DUDEK. (FRIDIE, DEBORA) (Entered: 11/23/2011)
Set/Reset Deadlines as to 88 Amended MOTION to Extend Timeto Answer Plaintiffs' Second Request for Production of Documents. (Internal deadline for referral to judge if response not filed earlier: 12/12/2011). (jcw) (Entered: 11/28/2011)
89 NOTICE of Appearance by ELIZABETH NATALIE SINGH−SILVA on behalf of MIKE HANSEN (SINGH−SILVA, ELIZABETH) (Entered: 11/28/2011)
90 MOTION to Compel Better Responses to Plaintiffs' First Request for Production to Defendant, Agency for Health Care Administration, and Motion for Attorney's Fees by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Exhibit Composite Exhibit "A") (LILES, PAUL) (Entered: 11/30/2011)
91 ORDER denying 81 Motion for Reconsideration. Signed by JUDGE RICHARD SMOAK on 11/30/2011. (jcw) (Entered: 11/30/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 90 MOTION to Compel Better Responses to Plaintiffs' First Request for Production to Defendant, Agency for Health Care Administration, and Motion for Attorney's Fees. Referred to WILLIAM C SHERRILL, JR. (jcw) (Entered: 12/01/2011)
92 RESPONSE in Opposition re 88 Amended MOTION to Extend Timeto Answer Plaintiffs' Second Request for Production of Documents filed by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG. (LILES, PAUL) (Entered: 12/09/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 92 Response in Opposition to Motion, 88 Amended MOTION to Extend Timeto Answer Plaintiffs' Second Request for Production of Documents (jcw) (Entered: 12/12/2011)
93 ORDER granting 88 Motion to Extend Time. Signed by JUDGE RICHARD SMOAK on 12/12/2011. (jcw) (Entered: 12/12/2011)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 14 of 19

12/14/2011
12/15/2011 12/15/2011 12/15/2011 12/19/2011 12/21/2011

94 RESPONSE in Opposition re 90 MOTION to Compel Better Responses to Plaintiffs' First Request for Production to Defendant, Agency for Health Care Administration, and Motion for Attorney's Fees and Defendant Dudek's Motion for a Protective Order Including a Motion for Costs for Producing Discovery filed by ELIZABETH DUDEK. (Attachments: # 1 Exhibit A − keywords for email search, # 2 Exhibit B − report of emails retrieved, # 3 Exhibit C − modified keywords for email search, # 4 Exhibit D − report of emails retrieved, # 5 Exhibit E − Medicaid confidentiality statute and regulations) (FRIDIE, DEBORA) (Entered: 12/14/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 90 MOTION to Compel Better Responses to Plaintiffs' First Request for Production to Defendant, Agency for Health Care Administration, and Motion for Attorney's Fees, 94 Response in Opposition to Motion. Referred to WILLIAM C SHERRILL, JR. (jcw) (Entered: 12/15/2011)
95 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 12/15/2011)
96 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Exhibit) (HEYSTEK, AMANDA) (Entered: 12/15/2011)
97 ORDER − To conserve judicial resources, the trial in this case will be held in Panama City. Signed by JUDGE RICHARD SMOAK on 12/19/11. (kgc) (Entered: 12/19/2011)
98 NOTICE of TELEPHONIC Hearing on 90 MOTION to Compel set for 12/27/2011 2:00 PM in U.S. Courthouse Tallahassee before MAGISTRATE JUDGE WILLIAM C SHERRILL JR. United States Courthouse, Courtroom 2 South, 111 North Adams St., Tallahassee, Florida 32301.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Angie Maxwell at 850−521−3516 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

12/22/2011 12/22/2011 12/23/2011
12/23/2011

s/ Angie Maxwell Courtroom Deputy Clerk (amm) (Entered: 12/21/2011)
99 Joint MOTION to Extend TimeFor Rule 26(a)(2)(C) Disclosure by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 12/22/2011)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 99 Joint MOTION to Extend TimeFor Rule 26(a)(2)(C) Disclosure (jem) (Entered: 12/22/2011)
100 NOTICE Plaintiffs' Response to the Defendant's Motion for Protective Order by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG re 94 Response in Opposition to Motion,, (Attachments: # 1 Exhibit Composite Exhibit 1 − CMS memorandum) (LILES, PAUL) (Entered: 12/23/2011)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 100 NOTICE Plaintiffs' Response to the Defendant's Motion for Protective Order. (jem) (Entered: 12/23/2011)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 15 of 19

12/27/2011
12/27/2011 12/28/2011 01/10/2012 01/11/2012 01/17/2012 01/17/2012 01/25/2012
02/06/2012 02/07/2012 02/14/2012 02/15/2012

101 Minute Entry for proceedings held before MAGISTRATE JUDGE WILLIAM C SHERRILL, JR: Motion Hearing held on 12/27/2011 re 90 MOTION to Compel. Parties address pending discovery motions. Ruling by Court: Parties are to try and work out the motions on their own and advise the Court of the status of their motions by January 10, 2012. (Court Reporter Lisa Jones) (erl) (Main Document 101 replaced on 12/28/2011) (erl). Modified on 12/29/2011 (pll). (Entered: 12/27/2011)
102 ORDER re 90 MOTION to Compel. (Status of discovery disputes due by 1/10/2012). Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 12/27/2011. (erl) (Entered: 12/27/2011)
103 ORDER granting 99 Joint Motion to Extend Time. Plaintiffs shall file their disclosure not later than February 7, 2012, and Defendants shall file their disclosure not later than March 7, 2012. Signed by JUDGE RICHARD SMOAK on 12/28/2011. (jem) (Entered: 12/28/2011)
104 STATUS REPORT RE Plaintiffs' Motion to Compel and Defendant's Motion for Protective Order by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Exhibit, # 2 Exhibit) (HEYSTEK, AMANDA) (Entered: 01/10/2012)
ACTION REQUIRED BY MAGISTRATE JUDGE: Chambers of MAGISTRATE JUDGE WILLIAM C SHERRILL, JR notified that action is needed Re: 104 Status Report,. (jcw) (Entered: 01/11/2012)
105 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 01/17/2012)
106 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 01/17/2012)
107 ORDER. GRANTING 90 MOTION to Compel. DENYING 94 Motion for Protective Order. On or before February 8, 2012, Defendants shall produce for inspection and copying all documents responsive to the requests for production identified above, to the extent that the motion to compel was granted as to those requests. On or before February 8, 2012, Defendants shall copy all of the emails identified to date as potentially responsive to these requests for production. On or before February 8, 2012, Defendants shall pay Plaintiffs $4,000 as Plaintiffs' expenses of this motion to compel. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 1/25/12. (pll) (Entered: 01/25/2012)
108 Joint MOTION for Extension of Time to Complete Discovery by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 02/06/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 108 Joint MOTION for Extension of Time to Complete Discovery (jcw) (Entered: 02/07/2012)
109 ORDER entered on 108 Joint MOTION for Extension of Time to Complete Discovery. Signed by JUDGE RICHARD SMOAK on 2/14/2012. ( Jury Trial rescheduled for 6/18/2012 08:30 AM in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK.) (jcw) (Entered: 02/14/2012)
110 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 02/15/2012)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 16 of 19

02/15/2012 02/21/2012 02/21/2012 03/15/2012 03/15/2012 04/02/2012 04/04/2012 04/16/2012 04/16/2012 04/20/2012
04/23/2012 04/23/2012 04/23/2012

111 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Exhibit Non Atty Time Record) (HEYSTEK, AMANDA) (Entered: 02/15/2012)
112 NOTICE of Unavailability of Counsel by ELIZABETH DUDEK (SHEERAN, ANDREW) (Entered: 02/21/2012)
113 ORDER − The pretrial conference in this case previously scheduled for April 30, 2012, in cancelled and rescheduled for Tuesday, June 5, 2012, at 1:30 p.m. in Panama City. Signed by JUDGE RICHARD SMOAK on 2/21/2012. ( Pretrial Conference set for 6/5/2012 01:30 PM in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK.) (jcw) (Entered: 02/21/2012)
114 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 03/15/2012)
115 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Non Atty Time Report) (HEYSTEK, AMANDA) (Entered: 03/15/2012)
116 ADMINISTRATIVE ORDER REASSIGNING CASE. Case reassigned to MAGISTRATE JUDGE CHARLES A. STAMPELOS. MAGISTRATE JUDGE WILLIAM C. SHERRILL no longer assigned to case. Signed by CHIEF JUDGE M CASEY RODGERS on 4/2/2012. **Please use case number with new judge initials on all future filings: 4:11cv116−RS/CAS. (kjw) (Entered: 04/03/2012)
Set/Reset Hearings: Jury Trial set for 6/18/2012 08:30 AM in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK. Pretrial Conference set for 6/5/2012 01:30 PM in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK. (kgc) (Entered: 04/04/2012)
117 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 04/16/2012)
118 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Non atty time report) (HEYSTEK, AMANDA) (Entered: 04/16/2012)
119 MOTION Modify the Scheduling and Mediation Order re 56 Scheduling Order,, Case Referred to Mediation, Unopposed by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Exhibit A − Dykes written authorization, # 2 Exhibit B− Davis written authorization, # 3 Exhibit C− Young written authorization, # 4 Exhibit D − Pivinski written authorization) (LILES, PAUL) (Entered: 04/20/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 119 MOTION Modify the Scheduling and Mediation Order re 56 Scheduling Order Unopposed (jcw) (Entered: 04/23/2012)
120 ORDER granting 119 Motion to Modify the Scheduling and Mediation Order. Plaintiffs are excused from personally appearing at the mediation. Signed by JUDGE RICHARD SMOAK on 4/23/2012. (jcw) (Entered: 04/23/2012)
121 NOTICE of Filing Exhibit "E" by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG re 119 MOTION

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 17 of 19

04/30/2012 05/02/2012
05/02/2012 05/02/2012
05/02/2012 05/09/2012 05/10/2012 05/11/2012 05/14/2012 05/14/2012

Modify the Scheduling and Mediation Order re 56 Scheduling Order,, Case Referred to Mediation, Unopposed (Attachments: # 1 Exhibit E− Woodward authorization) (LILES, PAUL) (Entered: 04/23/2012)
122 NOTICE of Filing Exhibit "F" by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG re 119 MOTION Modify the Scheduling and Mediation Order re 56 Scheduling Order,, Case Referred to Mediation, Unopposed (Attachments: # 1 Exhibit F− Congden authorization) (LILES, PAUL) (Entered: 04/30/2012)
123 MOTION for Summary Judgment by ELIZABETH DUDEK, MIKE HANSEN. (Internal deadline for referral to judge if response not filed earlier: 5/21/2012). (Attachments: # 1 Exhibit Affidavit of Terry McGarrity, # 2 Exhibit Affidavit of Jolie LaTourelle−Jones, # 3 Exhibit Affidavit of Vicki Draughon, # 4 Exhibit Affidavit of Denise Arnold, # 5 Exhibit Affidavit of Marta Hardy, # 6 Exhibit Answers to Interrogatories of Pivinski, # 7 Exhibit Answers to Interrogatories of Woodward, # 8 Exhibit Answers of Interrogatories of Young, # 9 Exhibit Affidavit of Susan DeBeaugrine, # 10 Exhibit Appendix B−3, S.f. of the DD Waivers) (ITO, MARC) (Entered: 05/02/2012)
124 STATEMENT OF FACTS Required by Local Rule 56.1 Re: 123 MOTION for Summary Judgment . (ITO, MARC) (Entered: 05/02/2012)
125 STATEMENT OF FACTS in SUPPORT OF 126 MOTION for Summary Judgment by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Internal deadline for referral to judge if response not filed earlier: 5/21/2012). (Attachments: # 1 Exhibit Dudek Response to RFA, # 2 Exhibit Hansen Respone to RFA, # 3 Exhibit Interagency Agreement, # 4 Exhibit Meadows Depo, # 5 Exhibit Smith Depo, # 6 Exhibit Letter D Newman, # 7 Exhibit Young Support Plan Short Form, # 8 Exhibit AHCA analysis of cost savings, # 9 Exhibit Hansen Answer Interrog, # 10 Exhibit Dudek Answer Interrog, # 11 Exhibit Kidd Depo, # 12 Exhibit LaTourelle Depo, # 13 Exhibit Wallace Depo, # 14 Exhibit Arnold Depo Vol I, # 15 Exhibit Arnold Depo vol II, # 16 Exhibit WL by Residence, # 17 Exhibit WL by Residence 2010, # 18 Exhibit Wvr Instr. &Tech. Guide, # 19 Exhibit iBudget Waiver, # 20 Exhibit T1 B−3 Table, # 21 Exhibit T2 B−3 Table, # 22 Exhibit T3 B−3 Table, # 23 Exhibit Ball Depo, # 24 Exhibit IFS funds Qrtrly Rprt, # 25 Exhibit ICF Vacancy Data) (HEYSTEK, AMANDA) Modified on 5/3/2012 (jcw). (Entered: 05/02/2012)
126 MOTION for Summary Judgment by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Internal deadline for referral to judge if response not filed earlier: 5/21/2012). (HEYSTEK, AMANDA) (Entered: 05/02/2012)
127 ACKNOWLEDGMENT . (CAPARELLO, DOMINIC) (Entered: 05/09/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 127 Acknowledgment (jcw) (Entered: 05/10/2012)
128 NOTICE of Appearance by STUART FRASER WILLIAMS on behalf of ELIZABETH DUDEK (WILLIAMS, STUART) (Entered: 05/11/2012)
129 Emergency MOTION for Extension of Time to File Response/Reply as to 126 MOTION for Summary Judgment by ELIZABETH DUDEK, MIKE HANSEN. (Attachments: # 1 Exhibit Settlement Agreements) (SHEERAN, ANDREW) (Entered: 05/14/2012)
130 RESPONSE in Opposition re 129 Emergency MOTION for Extension of Time to File Response/Reply as to 126 MOTION for Summary Judgment filed by DISABILITY RIGHTS FLORIDA INC. (HEYSTEK, AMANDA) (Entered: 05/14/2012)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 18 of 19

05/15/2012 05/15/2012 05/15/2012
05/15/2012 05/15/2012
05/15/2012
05/22/2012 05/23/2012 05/24/2012 05/31/2012 06/05/2012 06/15/2012

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 130 Response in Opposition to Motion, 129 Emergency MOTION for Extension of Time to File Response/Reply as to 126 MOTION for Summary Judgment (jcw) (Entered: 05/15/2012)
131 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 05/15/2012)
132 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Supplement Non−Atty Time Report) (HEYSTEK, AMANDA) (Entered: 05/15/2012)
133 NOTICE of Appearance by TERIN BARBAS CREMER on behalf of MIKE HANSEN (CREMER, TERIN) (Entered: 05/15/2012)
134 ORDER re 127 Mediation Report. The individual plaintiffs' claims are dismissed. They are dropped as parties to this case. In the event that the settlement is not consummated, the court reserves jurisdiction, upon motion filed by any party within thirty days of the date of this Order, to amend or vacate and set aside this Order and reinstate the claims. Plaintiffs shall file dismissals pursuant to the terms of their settlement agreements. This case remains open. Signed by JUDGE RICHARD SMOAK on 5/15/2012. (jcw) (Entered: 05/15/2012)
135 ORDER − Defendants shall, not later than June 5, 2012, address the issue of Plaintiff's standing to bring this suit. Plaintiff shall respond not later than June 26, 2012. The Motions for Summary Judgment (Docs. 123 &126 ) are DENIED as moot. The parties shall, not later than June 26, 2012, re−file motions for summary judgment which take into account the new posture of this case. The pretrial conference is rescheduled for August 21, 2012, at 10:00 a.m. Because this is a non−jury trial, it may be conducted by telephone upon joint motion of the parties. The non−jury trial is rescheduled for August 27, 2012 in Panama City. Signed by JUDGE RICHARD SMOAK on 5/15/2012. Response due by 6/5/2012., Plaintiff's response due by 6/26/2012. Bench Trial set for 8/27/2012 08:30 AM in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK., Pretrial Conference set for 8/21/2012 10:00 AM in U.S. Courthouse Panama City before JUDGE RICHARD SMOAK. (jcw) (Entered: 05/15/2012)
136 SETTLEMENT AGREEMENT Required Dismissals by MICHELLE CONGDEN, LORETTA DAVIS, JOANNA DYKES, AMANDA PIVINSKI, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 05/22/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 136 Settlement Agreement (jcw) (Entered: 05/23/2012)
137 ORDER re 136 Settlement Agreement filed by JOANNA DYKES, JOSHUA WOODWARD, MICHELLE CONGDEN, LORETTA DAVIS, AMANDA PIVINSKI, HEATHER YOUNG. Pursuant to Fed. R. Civ. P. 41(a)(2), Plaintiffs' claims are DISMISSED with prejudice. This case remains open. Signed by JUDGE RICHARD SMOAK on 5/24/2012. (jcw) (Entered: 05/24/2012)
138 NOTICE of Appearance by WILLIAM MICHAEL BLOCKER, II on behalf of ELIZABETH DUDEK (BLOCKER, WILLIAM) (Entered: 05/31/2012)
139 MOTION to Dismiss for Lack of Jurisdiction by ELIZABETH DUDEK, MIKE HANSEN. (Internal deadline for referral to judge if response not filed earlier: 6/25/2012). (SHEERAN, ANDREW) (Entered: 06/05/2012)
140 ATTORNEY TIME RECORDS by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (HEYSTEK, AMANDA) (Entered: 06/15/2012)

Case: 4:11-cv-116 As of: 10/25/2012 10:44 PM CDT 19 of 19

06/15/2012
06/26/2012
06/26/2012 06/26/2012 06/26/2012
06/26/2012 06/27/2012 07/02/2012 07/06/2012 07/09/2012 07/09/2012

141 ATTORNEY TIME RECORDS − SEALED PORTION by MICHELLE CONGDEN, LORETTA DAVIS, DISABILITY RIGHTS FLORIDA INC, JOANNA DYKES, ALYSSA FERRARO, AMANDA PIVINSKI, DAVID WALKER, JOSHUA WOODWARD, HEATHER YOUNG. (Attachments: # 1 Non−Atty Time Report) (HEYSTEK, AMANDA) (Entered: 06/15/2012)
142 NOTICE of Filing Statement of Undisputed Facts in Support of Defendants' Second Motion for Summary Judgment by ELIZABETH DUDEK, MIKE HANSEN (Attachments: # 1 Exhibit A (Affidavit of Leigh Meadows), # 2 Exhibit B (Affidavit of Marta Hardy), # 3 Exhibit C (ICF/DD Transition Budget Proviso), # 4 Exhibit D (Affidavit of Terri McGarrity)) (SHEERAN, ANDREW) (Entered: 06/26/2012)
143 Second MOTION for Summary Judgment by ELIZABETH DUDEK, MIKE HANSEN. (Internal deadline for referral to judge if response not filed earlier: 7/16/2012). (SHEERAN, ANDREW) (Entered: 06/26/2012)
144 RESPONSE in Opposition re 139 MOTION to Dismiss for Lack of Jurisdiction filed by DISABILITY RIGHTS FLORIDA INC. (HEYSTEK, AMANDA) (Entered: 06/26/2012)
145 NOTICE of Filing Second Statement of Undisputed Facts by DISABILITY RIGHTS FLORIDA INC (Attachments: # 1 Dudek Response to RFA and RFA, # 2 Hansen Response to RFA and RFA, # 3 Interagency Agreement, # 4 Meadows Depo, # 5 Smith Depo, # 6 Letter, # 7 Support Plan, # 8 Cost Savings, # 9 APD answer to Interrogs, # 10 Dudek Answer to Interrogs, # 11 Kidd Depo, # 12 LaTourelle Depo, # 13 Wallace Depo, # 14 Arnold Depo vol I, # 15 Arnold Depo vol II, # 16 WL by residence, # 17 WL by residence from clerk, # 18 Waiver App Manual CMS, # 19 Ball Depo, # 20 IFS funds, # 21 PH Affidavit, # 22 CW Affidavit) (HEYSTEK, AMANDA) (Entered: 06/26/2012)
146 Second MOTION for Summary Judgment by DISABILITY RIGHTS FLORIDA INC. (Internal deadline for referral to judge if response not filed earlier: 7/16/2012). (HEYSTEK, AMANDA) (Entered: 06/26/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 144 Response in Opposition to Motion, 139 MOTION to Dismiss for Lack of Jurisdiction (jcw) (Entered: 06/27/2012)
147 ORDER denying 139 Motion to Dismiss for Lack of Jurisdiction. Signed by JUDGE RICHARD SMOAK on 7/2/2012. (jcw) (Entered: 07/02/2012)
148 MEDIATION REPORT − Settled (CAPARELLO, DOMINIC) (Entered: 07/06/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE RICHARD SMOAK notified that action is needed Re: 148 Mediation Report − Settled (jcw) (Entered: 07/09/2012)
149 ORDER DISMISSING CASE re 148 Mediation Report − Settled. Signed by JUDGE RICHARD SMOAK on 7/9/2012. (jcw) (Entered: 07/09/2012)

 
 Newsroom - DD Waiver Waitlist Litigation Settled
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DD Waiver Waitlist Litigation Settled
Thursday, July 26, 2012
Dykes v. Dudek Settlement Agreement Summary
Disability Rights Florida ﬁled the Dykes v. Dudek lawsuit in March of 2011 on behalf of individuals with intellectual and developmental disabilities who needed care, treatment, and habilitation and who were on the Waitlist for DD Medicaid Waiver services. Some of the plaintiffs resided in private ICF/DDs or nursing homes and some of the plaintiffs resided in their families’ homes. Many had been on the DD Waitlist for over ﬁve years.
The lawsuit sought to compel Florida to develop a reliable and accurate means of tracking and projecting service demand and associated trends in order to design and implement a comprehensive plan for the continued enrollment of over 21,000 persons waiting for DD Waiver services. In October of 2011, the court denied our motion to proceed as a class action and the case proceeded instead on the basis of our agency’s standing to sue and on behalf of the named plaintiffs.
On July 3, 2012, the lawsuit was settled. Under the settlement agreement the Agency for Persons with Disabilities (APD) and the Agency for Health Care Administration (AHCA) will
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engage in the activities described below. The agreement addresses ﬁve key areas:
Individuals Residing in ICF/DDs and Nursing Homes
During 2011-2012 and 2012-2013, after the lawsuit was ﬁled, the Legislature enacted budget proviso language allowing APD and AHCA to utilize current appropriations in the ICF/DD budget to fund transitions of persons in ICF/DDs to the DD Waiver. Two named plaintiffs successfully transitioned to community services and APD began transitioning other individuals. The agreement requires that APD request another year of this key proviso language. Moreover, APD will complete the process of contacting everyone on the DD Waitlist who resides in an ICF/DD and providing transition support to those desiring to move. APD will also provide choice counseling at annual reviews and every 6 months after during the Continued Stay Reviews. Previously, the Continued Stay Review form only required a review of the level of care for the continuation of ICF/DD services. Thus, residents will be made aware of the available options more frequently and have a more meaningful option to view alternative placements and have their choice documented. APD and AHCA will provide Disability Rights Florida with monthly progress reports regarding ICF/DD transitions.
Additionally, the agreement requires that AHCA request a similar mechanism from the Legislature to transition people with DD who reside in nursing homes to the DD Waiver. The named plaintiff from the lawsuit who resided in a nursing home has successfully transitioned and is now thriving in a small group home setting in the community.
Crisis
Individuals approved for Crisis enrollment will receive DD Waiver-funded services within no more than ninety days from the determination of crisis. General revenue funds may continue to be used during the crisis application process. The ninety-day period is important because it ensures prompt enrollment on the DD Waiver as required by Medicaid law and greater certainty in the provision of needed DD Waiver services.
Individual Family Support (IFS) Funds
APD will notice the development of a rule to govern utilization

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of IFS funds and the rule will include a uniform application to be used statewide. APD will also track the IFS services requested, the IFS amounts requested, and whether each request was approved or denied. This data will be provided to Disability Rights Florida. These changes should make the statewide process more fair and equitable. Moreover, by tracking the services and amounts requested, APD will have a more reliable and accurate means of tracking and projecting service demand.
Waitlist Strategic Planning Workgroup
Each of the past few years, only 500-600 people were enrolled onto the DD Waiver and only if they qualiﬁed for crisis. To address this problem, the agreement requires APD to invite certain stakeholders (Self-Advocates, Family Care Council, DD Council, Centers for Independent Living, ARC, Disability Rights Florida, and others) to their Waitlist workgroup. The agreement outlines that the Waitlist Workgroup will consider developing ways to meet the needs of those waiting when it comes to housing, transportation, choice and community activities, investing in training for self-advocates, establishing peer connections, new training for Waitlist support coordinators, and a means of tracking and projecting service demand and associated trends.
Employment
Many people waiting for DD Waiver services need waiver services to access long-term employment supports to obtain and maintain a job. Disability Rights Florida will be added to APD’s Employment workgroup. This workgroup is charged with designing a system to support the employment objectives of people with DD who are waiting for DD Waiver services.
During the coming months, if you or someone you know is waiting for services, it is possible to request that APD provide notiﬁcation about the Waitlist category assigned. This notice must be requested. It is also possible to request reconsideration. Additionally, if you or someone you know needs assistance transitioning out of an ICF/DD, the APD Area/Regional ofﬁce can be reached to provide a contact person and more information about the transition process.
Disability Rights Florida will continue to provide free and conﬁdential services to individuals and be actively involved in

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monitoring the performance of the settlement agreement. Special attention will be placed on the stakeholder-developed comprehensive plan. Florida needs such a plan to meet the needs of those waiting for services as well as to continue the process of diverting and deinstitutionalizing those waiting in ICF/DDs or nursing homes. Over 3000 of the 21,000 people on the DD Waiver Waitlist live in an institution or are expected to need care in the next 12 months because of caregiver or behavioral issues. Another 209 report their caregiver as being over the age of 70. Moreover, approximately 115 people with DD on the Waitlist currently reside in nursing homes. We consider these to be urgent problems requiring a comprehensive plan developed by Florida’s stakeholders and we know you do too.
For more information about this settlement agreement, please contact Sylvia W. Smith, Director of Legislative and Public Affairs at Sylvias@disabilityrightsﬂorida.org.
If you would like to request information, referral, legal, or advocacy assistance regarding a DD Waiver issue or any other disability related issue, call 800-342-0823, ext. 4022 or submit your request conﬁdentially online using this link to our online intake request form.

Posted on 07/26

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