Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 1 of 40
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORID A
FLORIDA PEDIATRIC SOCIETY/ THE FLORIDA CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS ; FLORIDA ACADEMY OF OF PEDIATRIC DENTISTRY, INC . ; ASHLEY DOVE , as the next friend of Kaleb Kelley , a minor child; BLANCHE SPELL , as the next friend o f Khalillah Spell, a minor child ; and EVA CARMONA, as the next friend of Vanessa and Jennifer Patino, minor children ; AMY TORCHIN as the next friend of Theodore Torchin, minor child ; RITA GORENFL O and LES GORENFLO as the next friends of Thomas and Nathanial Gorenflo , minor children .
Plaintiffs ,
vs . ALAN LEVINE in his official capacity as Secretary of the Flo ri da Agency for Health Care Administration (AHCA) ; LUCI D . HADI in her official capaci ty as Secretary of the Florida Department of Children and Family Se rv ices ; and M . RONY FRACOIS , M .D., in his official capacity as Secretary of the Flori da Department of Health,
Defendants .
COMPLAINT - CLASS ACTION
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I.

Introductio n

1 . This civil rights action is brought to remedy the systematic and continuing violation of

federal law by Florida state health officials . Specifically, this action seeks to redress the failure

of Florida state health officials to provide children in Florida who are enrolled in federally-

funded medical assistance (commonly known as Medicaid) with essential medical and dental

services as required by Title XIX of the Social Security Act, 42 U .S.C. § 1396 et seq. ("Title

XIX") .

2. Title XIX mandates that all of these children be furnished Early and Periodic Screening,

Diagnosis and Treatment Services ("EPSDT") - the primary, preventive, acute and specialty care and services which are necessary to their good health and development .

3 . This action is brought on behalf of the more than 1 .6 million children who are enrolled in

the Florida Title XIX and EPSDT services program (collectively referred to as "Medical

Assistance"), by the Florida Pediatric Society/The Florida Chapter of the American Academy of

Pediatrics ('FPS"), the Florida Academy of Pediatric Dentistry, Inc . ("FAPD"), and the named plaintiffs and their families .

4. Plaintiffs seek declaratory and injunctive relief to end the violation of federal law taking

place in Florida which denies our state's children the delivery of prompt, complete and

continuing health care .

5 . The defendants are the Secretary of the Florida Agency for Health Care Administration

("AHCA"), the state governmental agency designated by the Governor to be Florida's single

agency responsible for implementing Title XIX, the Secretary of the Florida Department of

Children and Family Services, and the Secretary of the Florida Department of Health .

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6. The failure of the defendants to comply with federal law has resulted in, and, if left unremedied, will continue to result in, the needless infliction of pain, the endangerment of young lives, the preemption of learning, development, and growth, and the stunting of the children's life chances . 7. Because of the defendants' violation of federal law, hundreds of thousands of eligible Florida children have not been furnished any preventive health care services . According to the State of Florida's own statistics, in FFY 2004, for example, more than 500,000 Medicaid enrolled Florida children were furnished no preventative health care services at all . Among these children :
• more than 30,000 infants (children under the age of 1) received no preventative medical services during the first year of their life ,
• more than 152,000 toddlers (children between the ages of I and 5) received no preventative medical services ; an d
• more than 337,000 school age children (children between the ages of 6 and 18) received no preventative medical services .
8. These statistics are not isolated examples but are demonstrative of the systematic failure of the defendants to comply with the mandates of federal Medicaid law . Indeed, statistics provided to the federal government by Florida's Medicaid Agency show that for the years 1999 to 2004 at least 44% of the children enrolled in Florida's Medicaid program failed to receive even one of the health check ups that they were entitled to under federal law . During that same time period more than 75% of Florida's enrolled children were furnished no dental care whatsoever, despite their entitlement to such care .
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9. To remedy Florida's systemic failure to comply with federal law, this action requests tha t the Court , inter alia :
a. Require the defend ants to conform to the mandates of Title XIX, its implementing regulations and guidelines , and provide the children of Flo ri da with timely, complete and continuing health care and services ;
b . Require the defendants to ensure that payments to providers , including pediatricians, dentists , pediatric subspecialists , and other specialty care physicians, are sufficient to provide children receiving Medical Assistance access to care and se rvices to the same extent that such care and se rvices are available to other children in the same geographic area ;
c. Require defendants to bring children's health care and services to the children, including : (i) informing children and their families of Florida's obligation to promptly furnish complete and continuing children's health care ; (ii) utilizing cooperative arrangements with other child -intensive agencies in order to effectively achieve enrollment and easy re-enrollment of all eligible children ; and (iii) providing scheduling assistance , tr an spo rtation , outstations and casemanagement .
d. Require defendants to assure that health mainten ance organizations that participate in Flo rida ' s Medical Assistance program have the capacity , and fully and effectively use it , to deliver to all enrolled Flo rida children with them the timely , continuing and complete health care to which they are entitled .
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II. Jurisdiction and Venu e 10. Plaintiffs bring this action to redress the deprivation of rights secured under the laws of the United States . 11 . The jurisdiction of the Court is invoked under 28 U .S .C. §§ 1331, 1343(a)(3) and 1343(a)(4), this being a civil action arising under 42 U .S .C . § 1983 for declaratory and injunctive relief for the deprivation of rights secured by Title XIX of the Social Security Act of the United States . 42 U.S.C. §§ 1396 et seq . 12. Plaintiffs request declaratory and injunctive relief, as authorized by 28 U .S.C. §§ 2201 and 2202 ; 42 U.S.C. § 1983 ; 28 U.S .C. § 1331, and Fed .R.Civ .P. 57 and 65 . 13 . Venue in this district is proper under 28 U .S .C . § 1391(b), in that a substantial part of the events and omissions giving rise to this claim have occurred and are occurring in this district . III. The Pa rtie s
Individual Plaintiffs 14 . Kaleb Kelley is the minor son of Ashley Dove, who appears in this matter as his next friend. Kaleb was born on December 25, 2003 . Ashley Dove and her son reside in Lee County, Florida .
a. Kaleb is eligible to receive medical and dental care through Medicaid . b. Kaleb has suffered from chronic and recurrent ear infections and has required
periodic medical treatment, including treatment from Ear Nose and Throat ("ENT") specialists as a result . c. Despite diligent efforts, his mother has been unable to obtain necessary medical treatment for Kaleb.
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15. Khalillah Spell is the sixteen year old minor daughter of Blanche Spell, who appears in this matter as Khalillah's next friend . Khalillah and her mother live in Miami-Dade County, Florida .
a. Khalillah is eligible to receive medical and dental care through Medicaid . b. Effective July 1, 2004, Atlantic Dental, Inc . ("ADI") was awarded a contract by
the State of Florida Agency for Health Care Administration to provide dental benefits to more than 200,000 children who are Medicaid-eligible in Miami-Dade County, including Khalillah Spell . c . After ADI had been awarded the contract, despite diligent efforts Ms . Spell has not obtained needed treatment for Khalillah and her other children through the ADI program. 16. Vanessa and Jennifer Patino are the minor daughters of Eva Carmona, who appears in this matter as their next friend . Eva Carmona and her daughters reside in Miami-Dade County, Florida . a. Vanessa and Jennifer are eligible to receive medical and dental care through Medicaid . b . Effective July 1, 2004, ADI was awarded a contract by the State of Florida Agency for Health Care Administration to provide dental benefits to more than 200,000 children who are Medicaid-eligible in Miami-Dade County, including Vanessa and Jennifer . c. Once the ADI regime took effect in July 2004, Eva Carmona sought to find a dentist that would accept her daughters as part of the ADI program . Despit e
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diligent efforts, Eva Carmona, to this day, has been unable to find an ADI dentist to see her daughters, and Ms . Carmona has not obtained necessary dental treatment for her daughters . 17. Theodore Torchin is the minor son of Amy Torchin, who appears in this matter as his next friend . Theodore was born on October 28, 1999 . Amy Torchin and her son live in Coral Springs, Florida . a. Theodore suffered severe brain damage as the result of an accident on or about December 19, 1999 . b . Theodore is covered by Medicaid as a result of a medically needy waiver . Since his mother has private insurance, Medicaid functions as a second or excess insurer. c. On or about August 21, 2005, Theodore's night-time nursing care was abruptly terminated and Ms . Torchin was subsequently informed that his nursing care allegedly did not meet the requirements for medical necessity . d. Ms . Torchin protested the decision and on or about August 31, 2005, Ms . Torchin was able to get Theodore nursing care temporarily reinstated . e . Theodore continues to receive private nursing care at night, but his mother does not know when or if the state will attempt to terminate his care again . 18. Thomas and Nathaniel Gorenflo are the adopted , minor sons of Rita and Les Gorenflo, who appear in this matter as their next best friend . Thomas was born on December 29, 1998, Nathaniel on February 10, 1998 . The Gorenflos live in Palm Beach Gardens . a. Both children are eligible for Medicaid as a result of their adoption.
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b . In addition to other medical and developmental issues, Thomas has multiple related orthopedic problems . Despite diligent efforts, the Gorenflos have not obtained necessary medical treatment for Thomas .
c . In addition to other medical and developmental issues, Nathaniel suffers from chronic sinusitis and needs ENT treatment . Despite diligent efforts, the Gorenflos have not obtained necessary medical treatment for Nathaniel .
Organizational Plaintiffs 19. The Florida Pediatric Society/Florida Chapter of the American Academy of Pediatrics, ("FPS") is a non-profit professional organization of pediatricians and pediatric specialists . FPS's purpose is to secure to all infants, children and adolescents in Florida full access to timely, continuous and complete health care and services, and further the goals of the American Academy of Pediatrics . 20. FPS exists to advocate for infants, children and young adults and provide for their care ; to collaborate to assure child health, and to assure that decision making affecting the health of children and their families is based upon the needs of those children and families . 21 . Since at least 1989, FPS has expended substantial organizational resources seeking to ensure that the defendants comply with federal law by providing timely, complete and continuous healthcare for all Medicaid-eligible children in Florida . If Defendants had not failed to comply with federal law, and instead actually furnished Medical Assistance to all enrolled children, as required by Title XIX, 42 U .S .C . §§ 1396a(a)(8), 1396a(a)(10) , 1396a(a)(30)(A), I 396a(a)(43), the Florida Pediatric Society could and would devote these considerable resources to other purposes such as the advancement of child safety, public healt h
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measures against substance abuse, as well as pediatric and public education campaigns to help eradicate the environmental causes of asthma, the social causes of child violence and obesity, and other conditions which prejudice the growth and learning and life-chances of children . 22. In providing treatment to children receiving Medical Assistance, members of FPS are faced with rates that fail to cover costs and also with administrative burdens and impediments which are barriers to children receiving needed health care . For example, because of defendants' actions and omissions, members of FPS are faced with Medicaid payment rates that are substantially below Medicare and commercial rates and which in many cases fail to even cover the member's costs . Thus, the members of FPS have suffered economic injury (and their ability to provide quality care has been undermined) as a result of defendants' violation of federal law . 23 . FPS sues (a) for itself as an organization that has suffered injury as a result of the defendants' acts and omissions, (b) on behalf its members (who have suffered injury as a result of the defendants' acts and omissions), and (c) on behalf of its members' patients - the Medicaid enrolled children of Florida harmed by defendants' actions and omissions . 24 . Likewise Plaintiff Florida Academy of Pediatric Dentistry, Inc . ("FAPD") is a non-profit organization . Some members of FAPD provide dental care to children eligible for Medical Assistance . The mission of FAPD is to improve and maintain the oral health of infants, children and adolescents, and persons with special needs . FAPD is dedicated to promoting policies that increase access to oral health-care for low income children . Thus, FAPD seeks to assure that children who are Medical Assistance beneficiaries receive periodic and comprehensive dental examinations and treatment .
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25 . The acts and omissions of the defendants have imposed otherwise unnecessary expenditures of organizational resources on the FAPD . For example, the FAPD has spent significant organizational resources seeking to ensure the defendants comply with federal law . If the defendants had in fact complied with federal law, those resources could have been expended on other programs seeking to promote children's oral health . 26. In addition, the unlawful acts of the defendants have resulted in payments to FA-PD members which, in many cases, fail to even cover the member's costs . Thus, the members of the FAPD have suffered economic injury and their ability to provide quality care has been undermined . 27 . The FAPD sues (a) for itself as an organization that has suffered injury as a result of the defendants' acts and omissions, (b) on behalf its members (who have suffered injury as a result of the defendants' acts and omissions), and (c) on behalf of its members' patients - the Medicaid enrolled children of Florida harmed by defendants' actions and omissions .
Defendants 28. Defendant Alan Levine is Secretary of the Florida Agency for Health Care Administration ("AHCA") . AHCA is the single state agency designated by the Governor and under Florida Statute § 408 .034, and as required by Title XIX, 42 U .S .C . § 1396a(a)(5), to administer the Medical Assistance program in Florida . As Secretary of AHCA, Mr . Levine is the Agency's Chief Executive Officer responsible for implementing the Medical Assistance Program, for formulating, directing and monitoring its policies, rules and its actual performance and for insuring its compliance with state and federal law . Mr . Levine is sued in his official capacity .
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29 . Defendant Luci D . Hadi is Secretary of the Florida Department of Children and Families ("DCF"). DCF is the state department responsible for administering Medicaid eligibility determinations and, with responsible AHCA officials, is responsible for assuring effective use of presumptive eligibility, continuous eligibility, joint applications and effective cross-enrollment among child serving programs . As Secretary of DCF, Ms . Hadi is responsible for assuring that Medicaid eligibility determinations are administered in compliance with state and federal law, including that they do not impede or defeat, but advance the prompt, complete and continuous delivery of Medical Assistance required by Title XIX to be furnished to all eligible children . Ms. Had] is sued in her official capacity . 30. Defendant M . Rony Francois, M .D . is the Secretary of the Florida Department of Health . The Florida Department of Health's stated mission is to protect and promote the health and safety of all people in Florida through the delivery of quality public health services and the promotion of health care standards. The Department of Health is organized in divisions and one of its divisions, the Division of Children's Medical Services, administers Florida's Medicaid program for children with special health care needs . As Secretary of the Department of Health, Dr. Francois is responsible for administering the department's programs for providing children's health care and services, including the Division of Children's Medical Services, in compliance with state and federal law . Dr. Francois is sued in his official capacity . IV. Class Action Allegation s 31 . The named individual plaintiffs bring this action on behalf of themselves and all other similarly situated pursuant to Fed .R.Civ .P. 23 (a) and 23 (b)(2) . The plaintiffs' class consists o f
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children under the age of 21 who now, or in the future will, reside in Flo rida and who are, or will be, eligible under Title XIX of the Social Security Act for EPSDT . 32. The requirements of Fed .R.Civ .P. 23(a) are met in that the class is so numerous that joining all members is impractical . Defend ants ' unduplicated count of children determined during FFY 2004 the number of children eligible and enrolled in Medical Assistance w as over 1 .6 million children . 33 . The named individual plaintiffs raise claims based on questions of law and fact that are common to the cl ass. Plaintiffs and the class members rely on the defendants to ensure that they have access to and are provided health care se rvices guaranteed to them by federal law . Plaintiffs and the class members are being dep rived of these services because of the systematic violation of federal law by the defendants . Questions of fact common to the cl ass include whether the defendants fail :
a. to ensure that payments to providers are sufficient so that enrolled children have access to and are provided health care as required by Title XIX;
b . to ensure that health care and se rvices are delivered to children entitled to Medical Assistance benefits ;
c . to develop and implement a coordinated system of care that provides the class members with medical , vision , hea ring, dental and developmental screening, diagnosis and treatment at approp riate intervals that meet reasonable standards of medical care ; and
d. to ensure that families of children enrolled in Medical Assist ance are adequately informed of their children ' s right to receive EPSDT services and how to obtai n II

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such se rvices . 34. Questions of law common to the entire class include whether defendants ' acts and omissions dep rive plaintiffs of EPSDT services in violation of the Medicaid Act, 42 U .S .C. §§ 1396a, 1396d(a), 1396d(r), and 1396u -2, and the regulations and guidelines promulgated thereunder. 35 . Certification under Rule 23 (b)(2) is appropriate because the defendants have acted or refused to act on grounds generally applicable to the class as a whole , thereby making approp riate final injunctive relief on a class basis . Specifically , plaintiffs request that this Court declare defendants by their actions and omissions to be in violation of Title XIX, 42 U .S.C. §§ 1396a, 1396d(a), 1396d(r), and 1396u-2 and to issue injunctive relief as follows :
a. Requi ri ng defendants to furnish all Medicaid-eligible children the timely, complete, and continuing health care and se rvices required by Title XIX;
b. Requi ri ng defendants to ensure that payments to providers are sufficient to ensure that Medicaid eligible children have access to care and se rv ices at least to the same extent that such care and se rvices are available to other children in the same geographic area, and to assure that such payments are consistent with quality of care ;
c . Requiring defendants to design , implement, ensure and enforce eligibilitydetermination assignment and managed care arrangements which c an and do deliver in timely and continuing fashion, the full array of children's health care se rvices required to be delivered by Title XIX; an d
d. Requiring defendants to b ring children ' s health care to the children, including : 12

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aggressively informing children and their families of Florida's obligation to furnish timely, complete and continuing children's health care ; fully utilizing cooperative arrangements with other child-intensive agencies in order effectively to achieve enrollment and re-enrollment of all eligible children and in order to accomplish the actual delivery of necessary health care and services to all enrolled children; and providing scheduling assistance, outstations and case-management. 36. The named plaintiffs will fairly and adequately protect the interests of the class . The named plaintiff organizations have the resources to prosecute this action on behalf of the proposed class . They are represented by attorneys employed by Boies, Schiller & Flexner LLP, the Public Interest Law Center of Philadelphia, and Miller, Keffer & Bullock PC . Counsel have experience in complex class action litigation involving health care and civil rights laws . Counsel have the resources, expertise, and experience to prosecute this action . 37. Defendants' acts and omissions have affected and will affect the class generally, thereby making finial injunctive relief and declaratory relief with respect to the class as a whole appropriate . V. The Law and Structure of Children 's Health Care Under Title XIX of the Social Security Ac t 38 . Medical Assistance (often known as "Medicaid") is a joint and cooperative federal-state program for furnishing and financing health care and services . Title XIX was first enacted in 1965. Its children's health care provisions were first made express in 1967 . Its 1989 and 1990 Amendments significantly expanded family incomes at which children are eligible and the health care and services, primary and specialty care alike, that must be furnished to all eligible children .
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39. Title XIX, the Medical Assistance title of the Social Security Act, was enacted "[for the purpose of enabling each state . . . to furnish ( 1) medical assistance on behalf of families with dependent children and . . . disabled individuals, whose income and resources are insufficient to meet the costs of necessa ry medical se rvices, and (2) rehabilitation and other se rvices to help such families and individuals attain or retain capability for independence or self-care ." 42 U.S.C. § 1396 . 40. To enable the states to fulfill this purpose , and in exchange for acceptance of the obligations imposed by Title XIX, Title XIX provides :
there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this subchapter . The sums made available under this section shall be used for making payments to States which have submitted, and had approved by the Secretary, State plans for medical assistance . 42 U.S .C. § 1396 . 41 . Although state participation in Medical Assistance is entirely voluntary, once a state chooses to participate, it must carry out the requirements of Title XIX and its regulations . Florida has elected to participate in Medical Assistance . 42. The Centers for Medicare and Medicaid in the United States Department of Health and Human Services ("CMS") oversees the program for the Secretary . Defendant Florida officials are responsible under Title XIX and state law for implementation of Florida's Medicaid program in accordance with the requirements imposed by Title XIX, its implementing regulations and policy directions . 43 . Under Title XIX, provision of children's health care is mandatory upon each participating state . Title XIX expressly provides :
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The term "medical assistance" means payment of part or all of the cost of the following care and services . . . early and periodic screening, diagnostic and treatment services (as defined in subsection (r) of this section) for individuals who are eligible . . . and under the age of 21 . 42 U.S.C. § 1396d(a)(4)(B) . 44. Title XIX further provides that each participating state must make available "at least the care and services listed in paragraph [4(B)] of section 1396d(a) to all individuals who are [eligible] ." 42 U .S .C. § 1396a(a)(10)(A) . 45. States that elect to participate in the Medical Assistance program are reimbursed by the CMS without any financial cap for 50% or more of their medical expenditures in exchange for compliance with the requirements of Title XIX . 46. Since 1989, at 42 U .S.C. § 1396d(r), Title XIX has set forth expressly what items and services the mandatory "early and periodic screening, diagnostic and treatment services" must include ; namely: a . Comprehensive screening examinations "provided at intervals which meet
reasonable standards of medical and dental practice, as determined by the State after consultation with recognized medical and dental organizations involved in child health care and, with respect to immunizations . . ., in accordance with the schedule referred to in Section 1396S(c)(2)(B)(u) of this title for pediatric vaccines" and "at such other intervals, indicated as medically necessary, to determine the existence of physical or mental illnesses or conditions and which shall at a minimum include (i) a comprehensive health and developmental history (including as sessment of both physical and mental health development), ( ii) a
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comprehensive unclothed physical exam, (iii) appropriate immunizations . . . according to age and health history, (iv) laboratory tests (including lead blood level assessment according to age and health history), and (v) health education (including anticipatory guidance) ." b. Vision services "provided at intervals which meet reasonable standards of medical practice as determined by the State after consultation with recognized medical organizations involved in child health care and otherwise as medically necessary to determine the existence of a suspected illness or condition ; and which shall at a minimum include diagnosis and treatment for defects in vision, including eyeglasses ." c. Dental services "provided at intervals which meet reasonable standards of dental practice as determined after consultation with recognized dental organizations involved in children's health care ; and which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health ." d . Hearing services at similar intervals determined in similar ways and "which shall at a minimum include diagnosis and treatment for defects in hearing, including hearing aids. " e. All such other health care , diagnostic services, treatment, and other measures described in § 1396a(a) necessary to correct or ameliorate defects and physical and mental illnesses and conditions , "whether or not such services are covered [otherwise] under the State plan ."
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47 . Title XIX has long required that a pa rticipating state's "payments for care and se rvices" be "consistent with . . . quality ." 42 U .S.C . § 1396a(a)(30)(A) . In 1989, as part of its expansion of income eligibility c riteria for children ' s health care and of the preventive care and se rvices required to be delivered to children Congress codified a long-standing regulation into Title XIX, requi ring also that each participating state :
provide such methods and procedures relating to the utilization of, and payment for, care and services available under the plan . . . as may be necessary . . . to assure that payments . . . are sufficient to enlis t enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. 42 U.S .C. § 1396a(a)(30)(A) . 48 . The criteria for sufficiency of payments necessary to assure equal access has been interpreted by courts to mean that reimbursement rates are at least 90% of payments in commercial and other public (i.e . Medicare) coverage, that they enlist at least two-thirds of each specialty's practitioners in full participation in Medicaid, and that they actually achieve delivery of the required care and services . Currently, Florida's Medicaid reimbursement rates are far below this st andard. 49. In short, the obligation imposed upon responsible state officials by Title XIX of the Social Security Act is, as stated in one of the earliest of the long and consistent line of federal court cases enforcing Title XIX, to wit :
The mandatory obligation upon each participating state to aggressively notify, seek out and screen persons under 21 in order to detect health problems and to pursue those problems with the needed treatment is made unambiguously clear by the 1967 act and by the interpretive regulations and guidelines . [A] somewhat casual approach to EPSDT hardly conforms to the aggressiv e
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search for early detection of child health problems envisaged by Congress . It is difficult enough to activate the average affluent adult to seek medical assistance until he is virtually laid low . It is utterly beyond belief to expect that children of needy parents will volunteer themselves or that their parents will voluntarily deliver them to the providers of health services for early medical screening and diagnosis . By the time [a] . . . child is brought for treatment it may too often be on a stretcher . This is hardly the goal of "early and periodic screening and diagnosis ." EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the congressional purpose. Stanton v . Bond, 504 F .2d 1246, 1250-51 (7th Cir . 1974), cert. denied, 420 U .S . 984 (1975) (emphasis added) . 50. In 1989, Congress linked children's health care eligibility directly and simply to a child's age and his or her family's income . In doing so, Congress intended to, and did, expand the numbers of poor, near-poor and middle income children who are entitled to health care, particularly including those in working families whose jobs pay only low wages, right up into, for large families, median family income . 51 . The 1989 Amendments required states to provide health care to children from birth through age five in families with income equal to or less than 133% of the poverty level, and to children born after September 30, 1983 (who are age 6 through age 18), 100% of the poverty level, and to age 21, the cash assistance standards . The 1989 Amendments authorized eligibility standards to 185% of the poverty level for infancy (birth to age one), and at all ages allowed the States, by waiver, to choose still higher eligibility standards, while maintaining the same proportion of federal financial participation .
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VI. Defendants ' Violations of Federal La w 52. Florida has chosen to participate in Medical Assistance . Like all states which have chosen to participate, Florida is reimbursed by the Federal Centers for Medicaid and Medicare Services-without any financial cap-for the largest portion of its expenditures for health care and services on the condition that state officials carry out the requirements of Title XIX . 53 . In Florida, the federal government currently pays 58 .9% of all expenditures for health care and services furnished under Title XIX, including the costs of state administration; Florida pays the remaining 41 .1 % . 54. Nearly one-third of all of Florida's children are eligible for Title XIX Medicaid . In FFY 2004, some 1 .6 million Florida children, aged birth to 21, were eligible and enrolled and an estimated additional 200,000 children were eligible but still not enrolled by defendants. In 2000, some 43% of births, in Florida were Medicaid covered . 55 . Although in FFY 2003-04 children were more than half (53 .3%) of the persons enrolled in Medical Assistance, this health care and services constituted less than 18% of Florida's Medical Assistance expenditures . Preventive health care for children is the most economical expenditure providing the greatest public health benefit for each dollar spent . 56. Florida administers a set of four programs to provide health care and services to children . Together the four are called "KidCare" . The four programs are :
a. Medicaid, funded and operating under Title XIX of the Social Security Act ; b. Children's Medical Services ("CMS") addressed to children with complex
healthcare needs, almost entirely funded under Title XIX and operating thereunder ;
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c . Healthy Kids, funded and operating under Title XXI (the State Children's Health Insurance Program, "SCHIP") of the Social Security Act, 42 U .S .C . § 1397aa el seq a federal-state block grant, non-entitlement program for children whos e family incomes range above Medicaid eligibility income limits to 200% of the federal poverty level ;
d . Medikids, also funded and operating under Title XXI, for children ages I through 5 whose family income is between 133% and 200% of the federal poverty level .
57. This action concerns Medicaid and Children's Medical Services but not Healthy Kids or Medikids, except insofar as federal law creates obligations upon the latter two programs, for example, to assure the enrollment in Medicaid of any children identified in the operation of the two programs including their application processes as being eligible for Medicaid, because of a decline in family income or because a child is in foster care, adoption assistance, or on social security disability assistance . 58 . Florida has chosen to set children's family eligibility for Medical Assistance at 200% of the federal poverty level for infants from birth to age 1, 133% of the federal poverty level for children ages 2 through 5, 100% of the federal poverty level for ages 6 through 18, and for ages 19, 20 and 21 at 23% of the federal poverty level . 59 . In addition, children receiving Supplemental Security Income, 42 U .S.C. § 1382 (based upon disability) ; Adoption Assistance, 42 U .S.C. § 670 ; and Foster Care, 42 U .S .C . § 670, are, categorically, eligible for Title XIX children's health care . 60 . During the federal fiscal year ending September 30, 2004, an unduplicated count of more than 1 .6 million Florida children were determined to be eligible for Title XIX children's healt h
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care and were enrolled therein by defendants or their agents . This was approximately 37% of Florida 's children . 61 . In Flo rida, pursu ant to § 1396d (r) and requirements of the EPSDT, and in partial accord ance with the American Academy of Pediatrics ' "Recommendations for Preventive Pediatric Health Care," six comprehensive medical screening examinations are required to be furnished in an infant 's first year of life, beginning within one month after birth and at the second, fourth, sixth , ninth , and twel fth months ; two in the second year ; one yearly , at ages 2 through 5 years ; and biannually , at ages 6 through 9 years , and annually at ages 10 through 20 years , with the option of an additional screening examination at ages 7 years and 9 years, if medically necessary, as follows :
a. By one month ; an d b . At 2 months, 4 months , 6 months, 9 months , 12 months , 15 months, and 18
months ; and , c. At 2 years, 3 years, 4 years and 5 years; and , d . At 6 years, 8 years, 10 years, 11 years, 12 years, 13 years, 14 years, 15 years, 16
years, 17 years , 18 years , 19 years and 20 years . 62 . In Flo rida, vision examinations and treatment are required du ring each EPSDT visit . 63. In Florida, dental examinations , including preventive care , are required once every 6 months for children ages 3 and older, and hearing evaluations are required every 12 months . 64. By any measure, as the figures cited above in paragraphs 7 and 8 demonstrate , Flo rida has systemically failed to provide this care to Flo rida's Medicaid enrolled children , and thus has violated the m andates of Title XIX . Because of these violations , hundreds of thousands eligibl e
21

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 23 of 40
Florida children have not been furnished any preventive health care services . According to the State of Florida's own statistics , in FFY 2004, for example, 554,749 Medicaid enrolled Florida children were furnished no preventative health care services at all . 65 . One of the primary reasons for this failure is the inadequate reimbursement rates paid by Florida to Medicaid providers . Indeed, a July 2001 United States General Accounting Office report entitled Medicaid : Stronger Efforts Needed to Ensure Children's Access to Health Screening Services found that "Higher Medicaid fees can attract new providers or motivate existing providers to see more patients ." The report also provided that in 1995 after Florida increased in reimbursement for an EPSDT screen 116 percent (from $30 .00 to $64 .82), screening rates doubled - from 32 percent to 64 percent . That was Florida's last substantial increase in provider reimbursement and it occurred 10 years ago, despite substantial increases in provider costs during that same period . 66. In 2004, the Florida State Department of Health conducted a Provider Access Survey of its 17 area and regional Children's Medical Services Offices covering all 67 Florida counties . The Survey inquired about access to pediatric primary specialty care services for Children's Medical Services of Florida ("CMS of Florida") patients, which include children eligible for Medicaid, many of whom have special health care needs . 67 . The survey drew a 100% response rate. The Department of Health, CMS of Florida survey found that during the period January, 2003 through December, 2003 :
• Every CMS of Florida office reported that some CMS of Florida-enrolled private primary care practices were closed to new CMS of Florida patients during calendar year 2003 .
• Low reimbursement rates and lack of capacity were the top two reasons cited fo r 22

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 24 of 40
the closure of primary care practices to new CMS of Flo rida patients , followed by the patients ' health conditions being considered too complex for primary care practice and administrative burden /paperwork .
Every CMS of Florida provider recruitment office attempted to recruit p rimary care practitioners to become providers du ring calendar year 2003 . Almost threefourths (72%) of the contacted private p rimary care providers declined to enroll as providers . Low reimbursement rates and lack of capacity were the main reasons cited for declining to pa rticipate . Consistent with other survey findings, access to primary care physician services for CMS patients is most difficult in rural counties.
68. With regard to pediatric specialty care, the Department of Health survey found :
• The most frequently reported pediatric specialties for which no access was reported were : dentistry, dermatology, neurological surgery, orthopedics, psychiatry, and urology.
• Among the pediatric specialties for which limited access or access only with a medical director's intervention was reported, dermatology and oral surgery were first, neurology was second and dentistry and orthodontics were third .
• When responses for no access or limited access were combined, the following pediatric specialties were most often cited : dentistry, dermatology, neurological surgery, neurology, orthodontics, orthopedics, and urology .
69. During 2003, CMS of Florida staff attempted to recruit pediatric specialists to the CMS
of Florida network and, similarly to the primary care experience, a large number of those
approached declined to participate . Low reimbursement was the number one reason, followed
by lack of capacity and administrative burden/paperwork .
70. Thus, according to Florida's own studies, low reimbursement rates are a principal reason
for low provider participation rates .
71 . Contrary to their obligation under law, defendants have not and do not "provide", let
alone "assure", that payments for children's health care and services are either "consistent with .
23

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 25 of 40
. . quality" or "sufficient to enlist enough providers so that care and services are available [to Medicaid-enrolled children] at least to the extent that they are available to children in the general population." 42 U .S .C. § 1396a(a)(30) ; 45 C .F.R. § 447 .204 . 72. Defendants' payments for children's health care and services are inconsistent with the preventive purposes of Medicaid children's health care ; they are inconsistent also with the timely low-cost delivery of preventive care and the avoidance of high cost chronic conditions and high cost crisis care, needlessly forcing children into very much higher cost hospital-based emergency rooms, into costly and sometimes extended inpatient hospital care, and inflicting extended and aggravated conditions upon children which if addressed preventively would have been sharply mitigated . 73. Moreover, the administrative systems which defendants have put in place to manage Florida's Medicaid program frequently and unnecessarily impose barriers to, delay and often frustrate completely the provision of medical and dental care to children enrolled in Florida's Medicaid program in a number of different ways . Highly typical of these barriers, delays and frustrations are the practices described below :
a. Without the consent of or notice to the child or its parents, a child is often reassigned by Florida's Medicaid program from one primary care provider to another. The child and his parent only discover this when the child gets sick, needs prompt attention and in making or arriving for an appointment with the primary care provider, the provider discovers, upon checking Florida's computer system, that the child has been reassigned to a different provider . This leaves the child and the primary care provider with the following dilemma : if the provider 24

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 26 of 40
treats the child's urgent need, the provider will receive no reimbursement ; if the provider declines to treat the child, the family must make arrangements (usually after considerable delay) with the newly assigned provider who has never seen the child and doesn't know the history . This interrupts continuity of care and, thus, injures quality of care . Normally, it is a matter of at least weeks and sometimes a couple of months, for the child to be reassigned back to the original provider if the child's parent wishes to do so . b. Without knowledge of or notice to the child or its parents, the child's Medicaid eligibility is incorrectly and without justification terminated . Again if the child gets sick, and is taken to a provider, the provider risks getting no reimbursement for the service and/or c an look forward to delays and difficulties in getting reimbursed which impose costs greater than the fee Medicaid may eventually pay when the error is corrected . 74 . The circumstances described in paragraphs (a) and (b) above occur frequently both to children enrolled in the Florida Medipass program and to children enrolled in Medicaid HMOs . The circumstances described in paragraph (a) occur most frequently when the child is enrolled in Medipass and is reassigned without notice or knowledge to an HMO whose panel of providers does not include the child's existing primary care provider . Representatives of plaintiff FPS have on numerous occasions brought the aforesaid situations to the attention of defendants or their predecessors in office, but to date no changes have been made that have effectively prevented the continuation of these problems . Defendants' failures to change thei r
25

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 27 of 40
administrative systems to eliminate these problems violates defendants' duties to plaintiffs under 42 U.S .C. § 1396a(a)(10)(A) and § 1396 a (a)(8) . 75. Defendants also fail to adequately monitor managed care organizations that provide se rvices to Medicaid patients . Specifically, under 42 U .S .C. § 1396a(a)(10)(A) and 42 U .S.C. § 1396a(a)(8), defendants must ensure the provision of care and services with reasonable promptness to plaintiff children . Further, 42 U .S .C . § 1396u-2(a) and § 1396u-2(b)(5) require that when a Medicaid managed care organization is employed to provide care and services to children enrolled in the Medicaid program, the defendants must ensure that the Medicaid managed care organization :
a. offers an appropriate range of services and access to preventative and primary care services for the population to be enrolled in such service area, an d
b . maintains a sufficient number, mix and geographic distribution of providers of service .
42 U.S .C. § 1396u-2(b)(5)(A) and (B) . 76. Defendants have failed to fulfill these requirements as many Florida Medicaid managed care organizations' panels of providers are significantly inadequate . These inadequacies result frequently in unreasonably delaying and often in totally frustrating the provision of needed care to plaintiff children. The inadequacy of the panels of Florida Medicaid managed car e organizations is most pronounced for pediatric medical subspecialists and for dentists . There are, however, a significant number of plaintiff children enrolled in Medicaid managed care organizations who encounter unreasonable delays in accessing primary medical care due to the inadequacy of the primary medical care provider panels of those organizations .
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Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 28 of 40
77 . A particularly egregious example of defendants' failure to adequately monitor the HMO's with which Florida has contracted involves the contract that Florida entered with a managed care organization named Atlantic Dental, Inc . ("ADI") to provide dental care to children enrolled in the Medicaid program in Miami-Dade County . When the contract went int o effect, July 1, 2004, dental care for Medicaid children in Miami-Dade County was no longer available through Medipass, or any managed care organization other than ADI . This lack of alternatives deprived plaintiff class members residing in Dade County of the choice of managed care organizations to which they were and are entitled by 42 U .S .C. § 1396u-2(a)(3) . After July 1, 2004, in addition to the named plaintiffs Khalillah Spell and Eva Carmona, numerous other Dade County children enrolled in Medicaid were unable to access treatment for dental problems because of the total inadequacy of ADI's panel of dentists and dental specialists . Dade County Medicaid children also experienced difficulty in promptly receiving dental screenings because of ADI's inadequate panels . The inadequacy of ADI's panels was largely a direct result of ADI's setting the rates at which it compensated panel members at levels so low as to provide powerful disincentives : (a) for providers to participate at all in ADI panels and (b) for ADI panel members to provide treatment and screenings to Medicaid children assigned to their practices . 78 . As detailed above, defendants have systematically failed to meet their obligations under federal law, and the plaintiffs have suffered and, in the absence of relief, will continue to suffer real cognizable and redressable injuries as a result .
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Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 29 of 40
CLAIMS FOR RELIE F First Cause of Action
Action to Enforce Children's Rights to Medical Assistanc e 79. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 78 , as though fully set forth herein . 80. The Social Security Act, 42 U .S.C. § 1396a(a)(8) and (a)( l0) as defined by 1396d(a) and d(r), provide that "medical assistance shall be furnished with re asonable promptness to all eligible individuals ." 81 . "Medical Assistance " means regular check-ups at inte rvals determined by the state after consultation with medical and dental organizations involved in children 's healthcare, which check-ups must include a comprehensive health and development history ( including assessments of physical and mental health ), a comprehensive unclothed physical examination , laboratory tests , including lead blood level assessment, age-approp riate immunizations according to the schedule of the Advisory Committee on Immunization Practices , "anticipatory guidance" for children and their caretakers as part of the basic child healthcare examination , and vision , dental, and hearing examinations . 42 U.S .C . § 1396d( a) and (r) . 82. "Medical Assistance " also me ans diagnoses , then treatment or other me asures to correct or ameliorate Plaintiffs ' defects and physical , dental and mental illnesses and conditions, whether or not such services are covered under Florida's Medical Assist ance program for adults . 42 U .S.C. § 1396d(r) .
28

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 30 of 40
83 . In violation of 42 U.S.C. § 1396a(a)(8) and (a)(10), as defined by 42 U .S .C. § 1396d(a) and (r), defendants have refused or failed to provide the required medical assist ance with reasonable promptness to all eligible individuals . 84. Defendants ' violation of 42 U.S .C § 1396a( a)(8) and (a)(10), as defined by 42 U .S.C. § 1396d(a) and (r), h as caused and will cause harm to individual Plaintiffs in that they have been, or will be , denied the required healthcare se rvices . The unlawful dep rivation of medically necessary care results in the needless infliction of pain , the endangerment of young lives, the disruption of lea rning, development and growth and the stunting of children's ch ances to achieve their full potential . 85 . Defendants ' violation of 42 U.S .C. § 1396a( a)(8) and (a)(10) has caused and will cause harm to org anizational Plaintiffs in that they have incurred , or will incur, otherwise unnecessa ry expenditures of org anizational resources . 86 . Defendants ' violation of 42 U.S .C. § 1396a( a)(8) and (a)(10) has caused and will cause harm to the members of the org anizational Plaintiffs in that they have incurred , or will incur, economic damage. 87. Defendants ' violation of 42 U .S.C. § 1396a( a)(8) and (a)(10) as defined by 42 U .S.C. § 1396d (a) and 1396d (r), provides a cause of action to Plaintiffs under 42 U.S.C- § 1983, inasmuch as Defendants, under color of state law, custom , or usage, have deprived, are depriving, and will continue to dep rive Plaintiffs of their clearly established rights under 42 U .S.C. § 1396a(a)(8) and (a)(10), as defined by 42 U .S.C. § 1396d( a) and (r) . 88 . The harm to Plaintiffs is irreparable and Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable inju ry caused by defendants' acts or omissions .
29

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 31 of 40
Second Cause of Actio n Action to Enforce Children's Rights To Access to
Healthcare Services Required by Title XI X 89. Plaintiffs incorporate the allegations set fo rth in paragraphs 1 through 78 as though fully set fo rth herein . 90. The Social Security Act imposes upon defendants a non -delegable duty to assure that payments to medical providers are consistent with quality of care and are sufficient to enlist enough providers so that care and se rvices are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . 42 U.S .C. § 1396a(a)(30)(A) . 91 . Defendants have violated this duty by developing and establishing a Medical Assistance Program which does not pay providers high enough reimbursement fees to ensure that all eligible Flo rida children have access to the quality and quantity of care at least to the extent that such care and se rvices are available to the general population in the geographic area . 92. Defendants ' violation of 42 U.S.C. § 1396a(a)(30)(A ) has caused and will cause harm to individual Plaintiffs in that they have been, or will be , denied the required healthcare se rvices . The unlawful dep rivation of medically necessa ry care results in the needless infliction of pain, the endangerment of young lives, the disruption of learning, development and growth and the stunting of children 's chances to achieve their full potential . 93 . Defendants ' violation of 42 U .S.C. § 1396a(a)(30)(A) has caused and will cause harm to organizational Plaintiffs in that they have incurred , or will incur, otherwise unnecessa ry expenditures of organizational resources .
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Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 32 of 40
94 . Defendants' violation of 42 U .S.C. § 1396a(a)(30)(A) has caused and will cause harm to the members of the organizational Plaintiffs in that they have not received, or will not receive, payments high enough to be consistent with quality of care . 95 . Defendants' violation of 42 U.S.C. § 1396a(a)(30)(A) provides a cause of action to Plaintiffs under 42 U .S.C . § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive Plaintiffs of their clearly established rights under 42 U .S .C . § 1396a(a)(30)(A) . 96. The injury to Plaintiffs is irreparable and the Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants' acts or omissions .
Third Cause of Action Failure to Ensure HMO Compliance With Federal Requirement s 97 . Plaintiffs incorporate the allegations set forth in paragraphs I through 78 as though fully set forth herein . 98. The Social Security Act imposes upon defendants a non-delegable duty to assure that payments to medical providers are consistent with quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . 42 U.S .C . § 1396a(a)(30)(A) . 99 . Where, as in Florida, the state has contracted with health maintenance organizations to provide children's healthcare services, the Social Security Act has added to the state's obligation in 42 U .S.C . § 1396u-2(b)(5), which requires the state to obtain assurances that the HMO offers an appropriate range of services and access to preventive and primary care services for th e
31

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 33 of 40
population expected to be enrolled and maintain a sufficient number , mix and geographic distribution of providers . 42 U.S .C. § 1396u-2(b)(5) . 100. Defendants have violated this duty by failing to ensure that Flo rida's HMO contractors offer an appropriate range of se rvices and access to preventive and p rimary care services for the population expected to be enrolled and maintain a sufficient number, mix and geographic distribution of providers . 101 . Defendants ' violation of 42 U.S .C . § 1396u- 2(b)(5) has caused and will cause harm to individual Plaintiffs in that they have been , or will be , denied the required healthcare se rvices . The unlawful dep rivation of medically necessa ry care results in the needless infliction of pain, the endangerment of young lives, the disruption of lea rning, development and growth and the stunting of children 's ch ances to achieve their full potential . 102 . Defendants ' violation of 42 U.S .C. § 1396u-2(b)(5) h as caused and will cause harm to organizational Plaintiffs in that they have incurred , or will incur, otherwise unnecessary expenditures of org anizational resources . 103 . Defend ants ' violation of 42 U.S .C. § 1396u-2(b)(5) provides a cause of action to Plaintiffs under 42 U.S.C. § 1983, inasmuch as Defend ants, under color of state law , custom, or usage , have deprived , are depriving, and will continue to dep rive Plaintiffs of their clearly established rights as defined by 42 U.S .C. § 1396u-2(b)(5) . 104 . The injury to Plaintiffs is irreparable and the Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable inju ry caused by Defend ants ' acts or omissions .
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Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 34 of 40
Fourth Cause of Actio n Denial of Basic Child Healthcare Outreach and Informatio n 105 . Plaintiffs incorporate the allegations set forth in paragraphs 1 through 78, as though fully set forth herein . 106 . The Social Security Act, 42 U .S.C. § 1396a(a)(43), requires defendants to : a. Effectively inform Plaintiffs and their adult caretakers of the existence of the Medical Assistance children's healthcare program ; b. Effectively inform Plaintiffs and their adult caretakers about the availability of specific child healthcare services under the Medical Assistance EPSDT program ; c. Effectively inform Plaintiffs and their adult caretakers of health resources and the benefits of preventive care through both oral and written activities that are aggressive and effective ; d. Effectively inform Plaintiffs and their adult caretakers of information in clear and non-technical terms, so that they know what services are available under the Medical Assistance children's healthcare program, where these services are available, and how to obtain them ; e. Effectively inform Plaintiffs and their adult caretakers of the availability of scheduling, assistance to help them obtain children's healthcare services ; and
33

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 35 of 40
f. Monitor the provision and quality of services and ensure appropriate coordination of services received from different providers, and agencies ,
107. In violation of 42 U .S .C. § 1396a(a)(43), Defendants have refused or failed to effectively inform Plaintiffs and their caretakers of the existence of the Medical Assistance children's healthcare program, the availability of specific child healthcare services, and related assistance . 108 . Defendants' violation of 42 U .S .C . § 1396a(a)(43) has caused and will cause harm to individual Plaintiffs in that they have been, or will be, denied information about access to children's healthcare services with resulting harm to their mental and physical health . The unlawful deprivation of medically necessary care results in the needless infliction of pain, the endangerment of young lives, the disruption of learning, development and growth and the stunting of children's chances to achieve their full potential . 109 . Defendants' violation of 42 U .S .C . § 1396a(a)(43) has caused and will cause harm to organizational Plaintiffs in that they have incurred, or will incur, otherwise unnecessary expenditures of organizational resources . 110 . Defendants' violation of 42 U .S.C. § 1396a(a)(43) provides a cause of action to Plaintiffs under 42 U .S .C. § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive, Plaintiffs of their clearly established rights under 42 U .S.C. § 1396a(a)(43), as defined by 42 U .S.C. § 1396d(a) and(r) . 111 . The injury to Plaintiffs is irreparable and the Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants' acts or omissions .
34

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 36 of 40
REQUEST FOR RELIE F WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant the following relief: a. Determine that this action may be maintained as a class action on behalf of the
class of children under the age of 21 who now, or in the future will, reside in Florida and who are, or will be, eligible under Title XIX of the Social Security Act for EPSDT . b. Declare defendants to have violated the children's health care provision of Title XIX of the Social Security Act as aforesaid . c. Enter an ordered requiring defendants: • To promptly furnish to all enrolled and eligible Florida children the
continuing and complete children's health care to which they are entitled ; • To provide payments for care and services to health care providers which
are sufficient to enlist enough providers so that care and services ar e available to enrolled and eligible children at least to the extent that such care and services are available to children in the geographic area ; • To assure that health maintenance organizations that participate in Florida's Medical Assistance program have the capacity, and fully and effectively use it , to deliver to all enrolled Florida children with them the timely, continuing and complete health care to which they are entitled ; • To aggressively establish and utilize cooperative arrangement with other child-intensive agencies, to seek out, to inform and to arrange for th e
35

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 37 of 40 timely, complete and continuing children's health care and services to all enrolled and eligible Florida children, as well as to secure enrollment, reenrollment, extension, maintenance, presumptive eligibility, and ease of reporting to the children, their families and their providers, and to secure transpo rtation , scheduling and case management ; an d
• To take such actions as are proper and necessary to remedy their violations .
d. Award plaintiffs reasonable attorneys' fees and costs, as authorized pursuant to 42 U.S .C. § 1988 .
e. Grant such other relief as the Court may judge just and proper .
36

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 38 of 40

Dated : November 21, 2005

Respectfully Submitted ,

By : Stuart H . Singer (Florida Bar No . 377325) Carl E . Goldfarb (Flo rida Bar No . 0125891) Damien J. Marshall (Florida Bar. No. 0191302) BOIES, SCHILLER & FLEXNER LLP 401 East Los Ol as Blvd, Suite 1200 Fort Lauderdale, Flo rida 33301 Tel . (954) 356-001 1 Fax (954 ) 356-0022 Attorneys for Plaintiffs
Of Counsel : Thom as K. Gihool James Eiseman, Jr. PUBLIC INTEREST LAW CENTER
OF PHILADELPHI A 125 South Ninth Street , Suite 700 Philadelphia , Pennsylvania 19107 Tel. (215) 627-7100 Fax (215) 627-318 3
Louis W . Bulloc k MILLER KEFFER & BULLOCK PC 222 S . Kenosha Ave . Tulsa, Oklahoma 741120 Tel . (918 ) 584-200 1 Fax (918) 743-6689

37

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 39 of 40

CIS 44 (Rev 11!04)

CIVIL COVER SH T

U. The JS 44 civil cover sheet and the information contained herein neither replace nor supplemen t the fill

s tir

t by local rules ofcourt . This form, approved by the Judicial CCoonnffeerence of the United States in Septem r
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM )

I

e of plead r other papers as required by law, except as provide d 111111111111d f t tgthe Cerk of Coun for the purpose of initiatin g i i_

I . (a) PLAINTIFF S

DEFENDANTS

Florida Pediatric Society'/The Florida Chapter of the American Academy of Pediatrics; Florida Academy of Pediatric Dentistry, Inc . ; Ashley Dove, Blanche Spell, Eva Carmona, Amy Torchin, Rita & Les
(b) County of Residence of First Listed Plaintiff Leo n
(EXCEPT IN U .S . PLAINTIFF CASES )

(C) Attorney' s (Firm Name. Address, and Telephone Number)

Stuart H . Singer, Esq . (954) 356-001 1

Boies, Schiller & Flexner LL P

401 E . Las Olas Blvd ., Suite 1200,

Fort Lauderdale, FL 33301

1

Alan Levine, Luci D . Hadi and M. Rony Fracois, M .D.

~~ F r

County of Residence of First isfd endant

Leo n

(IN U S . PLA F C ~ ES ONLY )

NOTE : IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED . A

Att9meys (If Known )

`y~,~

7r

(d) Check County Where Action Arose : X DADE D MONROE D BROWARD D PALM BEACH O MARTIN ID SWLUCIE(~INDIAN D OKE6CJ-IOB E HIG D S

H . BASIS OF JURISDICTION ( Place an 'A" in One Box Only)

D 1 U .S. Government

R3 Federal Questio n

Plaintiff (U .S . Government Not a Party)

111 . CITIZENSHIP OF PRINCIPAL PARTIE S(Placean ':- n ox for Plaintif f
(For Diversity Cases Only) andOne Box for fendant) PTF DEF PT DE F
Citizen of This State D I D I Incorporated or Ptincipal Place • D D 4
of Business In This State

D 2 U .S . Government Defendant

04 Diversity (Indicate Citizenship o Pa rties in item III )

Citizen of Another State

0 2 D '- Incorporated aril Principal Place ® 5 - .ID 5 of Business In Another State ')

IV . NATURE OF SUIT (Place an"
CONTRACT

JAM3
in One Box Onl
TORTS

Citizen or Subject of a D 3 D 3 Foreign Nation Foreign Country

FORFEITURE/PENALTY

BANKRUPTCY

D6D 6 OTHER STA ES

Cl 110 Insurance D 120 Marine D 130 Miller Act D 140 Negotiable Instrument

PERSONAL INJURY PERSONAL INJURY

D 310 Airplane D 362 Personal Injury-

D 315 Airplane Product

Med. Malpractice

Liability

D 365 Personal Injury -

D 150 Recovery of Overpayment 0 320 Assault- Libel & Product Liability

At Enforcement of Judgment

Slander

D 368 Asbestos Personal

D 151 Medicare Act

D 330 Federal Employers' Injury Product

D 152 Recovery of Defaulted Student Loans (Excl . Veterans)

Liability Liability D 340 Ma rine PERSONAL PROPERTY D 345 Ma rine Product D 370 Other Fraud

D 153 Recovery of Overpayment

Liability D 371 Truth in Lending

of Veteran' s Benefits D 160 Stockholders' Suits

D 350 Motor Vehicle D 380 Other Personal

D 355 Motor Vehicle

Property Damage

D 190 Other Contract

Product Liability D 385 Property Damage

D 195 Contract Product Liability D 360 Other Personal Product Liability

D 196 Franchise

Iniury

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS

D 210 Land Condemnation

D 441 Voting

D 510 M ot ions to Vacate

D 220 Foreclosure

D 442 Employment

Sentence

D 230 Rent Lease & Ejectment D 443 Housing/

Habeas Corpus :

D 240 Torts to Land
D 245 Tort Product Liability D 1--90 All Other Real Property

Accommodations D 444 Welfare D 445 Amer w/Disabilities -
Employment

D 530 General D 535 Death Penalty
D 540 Mandamus & Other D 550 Civil Rights

0 446 Amer -'Disabilities - D 555 Prison Condition

Other

fd 440 Other Civil Rights

Cl 610 Agriculture D 620 Other Food & Drug D 625 Drug Related Seizu re
of Property 21 USC 881 D 630 Liquor Laws D 640 R.R . & Truck D 650 Airline Regs. D 660 Occupational
Safety/Health
D 690 Other
D 710 Fair Labor Standards Act
D 720 Labor/Mgmt. Relations D 730 Labor/Mgmt .Reporting
& Disclosure Act
D 740 Railway Labor Act D 790 Other Labor Litigation D 791 Empl . Ret . Inc .
Security Act

D 422 Appeal 28 USC 158 D 423 Withdrawal
28 USC 157
I PROPERTY RIGHTS D 820 Copyrights D 830 Patent D 840 Trademark
D 861 HIA (1395m D 862 Black Lung (923) D 863 DI WC'DI W W (405(g)) D 864 SSID Title XVI D 865 RSI (405(g))
FEDERAL TAX SUITS Cl 870 Taxes (U .S . Plaintiff
or Defendant) D 871 IRS-Third Party
26 USC 7609

D 400 State Reapportionmen t 0 410 Antitrust
D 430 Banks and Banking 0 450 Commerce D 460 Deport ation D 470 Racketeer Influenced and
Corrupt Organization s D 480 Consumer Credit D 490 Cable/Sat T V
D 810 Selective Serv ice
Cl 850 Securities/Commodities/ Exchange
D 875 Customer Challeng e 12 USC 341 0
D 890 Other Statutory Actions 0 891 Agricultural Acts
D 892 Economic Stabilization Ac t
D 893 Environmental Matte rs D 894 Energy Allocation Ac t 0 895 Freedom of Information
Act D 900Appeal of Fee Determinatio n
Under Equal Acces s to Justic e D 950 Constitutionality o f State Statute s

V . ORIGI N
Oct I Original Proceeding

(Place an "X" in One Box Only)

Ap al to Distric t

O 2 O 3 O 4 0 5 Transferred from D 6 0 7 Judge from

Removed from

Remanded from

Reinstated or another district Multidistrict Magistrat e

State Court

Appellate Court Reopened (specify) Lineation Judgmen t

(Cite the U S . Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity).

VI . CAUSE OF ACTIO N 42 U .S .C . § 1396 et seq . This action is brought to remedy Defendants' violation of Federal Medicaid law .

VII . REQUESTED IN COMPLAINT :

LENGTH OF TRIAL snot ~ days estimated (for bosh sides to in more case )

CHECK IF THIS IS A CLASS ACTION UNDER F .R.C .P. 2 3

DEMANDS

CHECK YES only if demanded in complaint

JURY DEMAND:

D Yes

No

VIII . RELATED CASE(S) IF AN Y

(See instructions) .

JUDGE DOCKET NUMBE R

DAT E

SIG\ATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY RECEIPT k

A\lOV\T APPLYING I F P

/

c) ?

V

I b- ► IL

Case 1:05-cv-23037-AJ Document 1 Entered on FLSD Docket 11/28/2005 Page 40 of 40

JS 44 Reverse (Res 11%04 )

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court . This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet . Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed . The attorney filing a case should complete the form as follows :

1.

(a) Plaintiffs- Defendants . Enter names (last, first, middle initial) of plaintiff and defendant . If the plaintiff or defendant is a government agency, use only

the full name or standard abbreviations . If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving

both name and title .

(b) County of Residence . For each civil case filed, except U .S . plaintiff cases. enter the name of the county where the first listed plaintiff resides at the time of filing . In U .S . plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing . (NOTE : In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved . )

(c) Attorneys . Enter the firm name, address, telephone number, and attorney of record . If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

(d) County Where Action Arose . Check only one County .

II . Jurisdiction . The basis of jurisdiction is set forth under Rule 8(a), F .R .C .P . . which requires that jurisdictions be shown in pleadings . Place an "X" in one of the boxes . If there is more than one basis of jurisdiction, precedence is given in the order shown below .

United States plaintiff. (1) Jurisdiction based on 28 U .S .C . 1345 and 1348 . Suits by agencies and officers of the United States are included here .

United States defendant . (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box .

Federal question. (3) This refers to suits under 28 U .S .C . 1331, where jurisdiction arises under the Constitution of the United States . an amendment to the Constitution, an act of Congress or a treaty of the United States . In cases where the U .S . is a party, the U .S . plaintiff or defendant code takes precedence, and box
1 or 2 should be marked .

Diversity of citizenship . (4) This refers to suits under 28 U .S .C . 1332, where parties are citizens of different states . When Box 4 is checked, the citizenship of the different parties must be checked . (See Section III below ; federal question actions take precedence over diversity cases . )

Ill . Residence ( citizenship) of Principal Pa rt ies. This section of the 1S 44 is to be completed if diversity of citizenship was indicated above . Mark this section for each principal party .

IV. Nature of Suit. Place an "X" in the appropriate box . If the nature of suit cannot be determined, be sure the cause of action . in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit . If the cause fits more than one nature of suit, select the most definitive .

V . Origin . Place an "X" in one of the seven boxes .

Original Proceedings . (I) Cases which originate in the United States district courts .

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U .S .C . . Section 1441 . When the petition for removal is granted, check this box .

Remanded from Appellate Court . (3) Check this box for cases remanded to the district court for further action . Use the date of remand as the filing date.

Reinstated or Reopened . (4) Check this box for cases reinstated or reopened in the district court . Use the reopening date as the filing date .

Transferred from Another District . (5) For cases transferred under Title 28 U .S .C . Section 1404(a) . Do not use this for within district transfers or multidistrict litigation transfers .

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U .S .C . Section 1407 . When this box is checked, do not check (5) above .

Appeal to District Judge from Magistrate Judgment . (7) Check this box for an appeal from a magistrate judge's decision .

VI . Cause of Action . Report the civil statute directly related to the cause of action and give a brief description of the cause . Do not cite jurisdictional statutes unless diversity . Example : U .S . Civil Statute : 47 USC 55 3
Brief Description : Unauthorized reception of cable servic e

VII . Requested in Complaint . Class Action . Place an "X" in this box if you are filing a class action under Rule 23 . F .R .Cv .P .

Demand . In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction .

Jury Demand . Check the appropriate box to indicate whether or not a jury is being demanded .

VIII . Related Cases. This section of the JS 44 is used to reference related pending cases if any . If there are related pending cases . insert the docket numbers and the corresponding judge names for such cases .

Date and Attorney Signature . Date and sign the civil cover sheet.

 
 Case 1:05-cv-23037-AJ Document 40 Entered on FLSD Docket 01/12/2007 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION CASE NO. 05-23037-CIV-JORDAN

FLORIDA PEDIATRIC SOCIETY / THE )

FLORIDA CHAPTER OF THE

)

AMERICAN ACADEMY OF

)

PEDIATRICS, et. al.

)

) Plaintiffs
)

vs.

)

) ALAN LEVINE, et. al.

Defendants ____________________________________

ORDER ON MOTION TO DISMISS

The Florida Pediatric Society, Florida Chapter of the American Academy of Pediatrics, the Florida Academy of Pediatric Dentistry, Inc. (“organizational plaintiffs”), and Ashley Dove, Blanche Spell, Eva Carmona, Amy Torchin, Rita Gorenflo, and Les Gorenflo (“individual plaintiffs”), have filed a four-count civil rights class action against Andrew Agwunobi1, in his official capacity as Secretary of the Florida Agency for Health Care Administration (AHCA), Robert A. Butterworth, in her official capacity as Secretary of the Florida Department of Children and Family Services, and Joseph J. Chiaro, M.D., in his official capacity as the Secretary of the Florida Department of Health, alleging violations of federal law arising out of the defendants’ alleged failure to provide Florida children enrolled in Medicaid with essential medical and dental services as required by the Social Security Act. The defendants have moved to dismiss the complaint. For the reasons stated below, the defendants’ motion to dismiss [D.E. 9] is GRANTED as to Count III and DENIED in all other respects.

I. FACTS & PROCEDURAL HISTORY

1 Alan Levine, Lucy Hedi and M. Rony Fracois, M.D., no longer hold offices at issue in this case. As a result, they are no longer the official capacity defendants.

Case 1:05-cv-23037-AJ Document 40 Entered on FLSD Docket 01/12/2007 Page 2 of 6
This case concerns the defendants’ allegedly unlawful failure to provide Florida children enrolled in Medicaid with essential medical and dental services as required by the Social Security Act. Specifically, Title XIX of the Social Security Act mandates that children enrolled in Medicaid be furnished with the primary, preventative, acute, and specialty care and services which are necessary to their good health and development. See generally 42 U.S.C. 36, et. seq. The plaintiffs allege that more than 500,000 Medicaid-enrolled children were not furnished with preventative healthcare in violation of federal law. The plaintiffs seek declaratory and injunctive relief to compel the defendants to meet their alleged obligations under the Medicaid Act on a going forward basis.2
The defendants urge me to dismiss the complaint because (1) the organizational plaintiffs do not have standing to bring this action and (2) the statutes which they have allegedly violated do not create enforceable rights.3 The organizational plaintiffs do, however, have standing to bring this action, and -- with the exception of 42 U.S.C. 1396u-2(B)(5) -- the statutes under which the plaintiffs bring suit confer individually enforceable rights. As a result, the motion to dismiss is denied. Only Count III is subject to dismissal.
II. LEGAL STANDARD A motion to dismiss is granted only when the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations of the complaint are taken as true and construed in the light most favorable to the plaintiff. See McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1220 (11th Cir. 2002). The scope of the court’s review of a motion to dismiss is limited to the four corners of the complaint. See St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).
III. DISCUSSION A. RESOLUTION OF THE ORGANIZATIONAL PLAINTIFFS’ STANDING IS UNNECESSARY
2 The plaintiffs do not seek any damages arising from the defendants’ alleged continued and systematic violation of federal law.
3 The defendants do not argue that the plaintiffs have failed to state a cause of action. 2

Case 1:05-cv-23037-AJ Document 40 Entered on FLSD Docket 01/12/2007 Page 3 of 6
The defendants do not contend that the individual plaintiffs lack standing to bring this suit. Rather, they argue that the organizational plaintiffs do not have standing to assert the claims at issue. It is well-established, however, that when one plaintiff has standing to bring all claims in an action, a court need not inquire into the standing of the others. See Carey v. Population Services, Intern., 431 U.S. 678, 682 (1977) (“We conclude that appellee Population Planning Associates, Inc. has the requisite standing and therefore have no occasion to decide the standing of the other appellees.”); Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 254 n. 9 (1977) (same); American Iron and Steel Institute v. Occupational Safety and Health Administration, 182 F.3d 1261, 1274 n.10 (11th Cir. 1991) (“No one questions that the Steelworkers have standing. Thus, except to the extent that the doctors raise points not adopted by the steelworkers, the standing question is moot”); Planned Parenthood of the Atlanta Area, Inc., v. Miller, 934 F.2d 1462, 1465 n.2 (11th Cir. 1991) (when one plaintiff has standing to bring all claims in an action, the court need not inquire into the standing of the others). In this case, the defendants have not challenged the standing of the individual plaintiffs. Therefore, their argument that the organizational plaintiffs have no standing need not be resolved at this stage of the case.4
B. THE STATUTES UNDER WHICH THE PLAINTIFFS BRING SUIT CONFER INDIVIDUALLY ENFORCEABLE RIGHTS
The defendants also argue that the complaint must be dismissed because the statutes under which the plaintiffs sue do not create individually enforceable rights. The Supreme Court has previously explained that in order to determine whether a federal statute creates an enforceable right a court must analyze three factors:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on
4 The defendants also argue that the Florida Academy of Pediatric Dentistry is barred from bringing this suit because it is a dissolved corporation. Since the filing of the motion to dismiss, however, the Academy has been reinstated nunc pro tunc to the date of its dissolution and, under controlling law, this contention must be rejected. See S.E.C. v. Diversified Group, 378 F.3d 1219, 1228 (11th Cir. 2004); Allied Roofing Industries v. Venegas, 862 So. 2d 6 (Fla. 3d D.C.A. 2003).
3

Case 1:05-cv-23037-AJ Document 40 Entered on FLSD Docket 01/12/2007 Page 4 of 6
the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.
Blessing v. Freestone, 520 U.S. 329, 341 (1997) (emphasis added). For statutory language to be “rights-creating,” it must clearly impart an “individual entitlement” and have an “unmistakable focus on the benefitted class.” Gonzaga University v. Doe, 536 U.S. 273, 287 (2002). The defendants’ contentions fail because the statutes at issue in this case -- with the exception of 42 U.S.C. §1396U2(b)(5) -- meet the three-prong test established in Blessing, as refined by Gonzaga.
1. COUNT I: 42 U.S.C. §1396a(a)(8) & a(10) Count I of the plaintiffs’ complaint is based in part on the Reasonable Promptness Clause of the Social Security Act, 42 U.S.C.1396(a)(a)(8). The Eleventh Circuit has specifically held that §1396(a)(8) meets all three elements of the Blessing test. Doe v. Chiles, 136 F.3d 709, 719 (11th Cir. 1998). Doe is binding, and I do not believe its holding has been called into doubt by Gonzaga. I am persuaded by Sabree v. Richman, 367 F.3d 180, 190-92 (3d Cir. 2004), a post-Gonzaga decision which agreed with the holding in Doe. See also Bryson v. Shumacy, 308 F.3d 79, 88-90 (1st Cir. 2002) (§1396a(a)(8) creates enforceable rights). Count I also alleges a violation of §1396a(a)(10), which provides that a “State plan for medical assistance must provide for making medical assistance available.” I agree with the Third, Fifth, Sixth, Seventh, Eighth, and Ninth Circuits, which have all squarely addressed this issue and concluded that under Blessing and/or Gonzaga, §1396a(a)(10) confers enforceable rights on the plaintiffs.5 See Watson v. Weeks, 2006 WL 288147, at *8 (9th Cir. 2006); Sabree, 367 F.3d at 190; S.D. ex. rel. Dickson, 391 F.3d 581, 607 (5th Cir. 2004); Westside Mothers v. Haveman, 289 F.3d 852, 862-63 (6th Cir. 2002); Pediatric Specialty Care, Inc., v. Arkansas Dept. Of Human Services, 293 F.3d 472, 477 (8th Cir. 2002); Miller v. Whitburn, 10 F.3d 1315, 1319-20 (7th Cir. 1993).
2. COUNT II: 42 U.S.C. §1396a(a)(30)(A)
The defendants also claim that §1396a(a)(30)(A) -- the statute’s “equal access” provision -does not confer enforceable rights on the plaintiffs. This provision, however, “directly focuses on access to medical care” and, as a result, “the recipient plaintiffs have an individual entitlement to the
5 No circuit has held that §1396a(a)(10) does not create an enforceable right. 4

Case 1:05-cv-23037-AJ Document 40 Entered on FLSD Docket 01/12/2007 Page 5 of 6
equal access guarantee.”6 Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000); See also Pediatric Specialty, 364 F.3d at 930 (§1396a(a)(30)(a) is a “clearly established right” enforceable by recipients and providers). Ark. Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 526 (8th Cir. 1993) (“The equal access provision is indisputably intended to benefit the recipients by allowing them equivalent access to health care services”). Accord Visiting Nurse Ass'n v. Bullen, 93 F.3d 997, 1004 n.7 (1st Cir. 1996) (acknowledging that Medicaid recipients “are intended beneficiaries under the 'equal access' requirement as it affects the availability of their medical care”). Therefore, §1396a(a)(30)(A) confers enforceable rights on the plaintiffs.7
3. COUNT III: 42 U.S.C. §1396u-2(b)(5) Unlike the other statutes at issue, 42 U.S.C. §1396u-2(b)(5) does not establish a privately enforceable right under §1983. That provision states, in relevant part, that “[e]ach medicaid managed care organization shall provide the State and the Secretary with adequate assurances...that the organization, with respect to a service area, has the capacity to serve the expected enrollment in such service area, including assurances that the organization” offers an appropriate range of services and has an adequate geographic distribution of providers of services. The statute describes the assurances that must be provided by a managed care organization and the state and the Secretary of the Department of Health and Human Services. I conclude that, under Gonzaga, §1396u-2(b)(5) does not have the “unmistakable focus on the benefitted class” required to establish a private right of action. The focus of this provision is aggregate and systemwide in nature, and it does not focus on the needs of a particular class of individuals. As a result, it does not create a privately enforceable right.
6 The defendants also argue that none of the cases cited by the plaintiffs demonstrate Congress’ intention to benefit individuals via §1396a(a)(30)(A). However, “medical assistance” -as it appears in and is defined by the Social Security Act – refers to “individuals” who are eligible for coverage. Thus, even if the plaintiffs had failed to cite a case on point, the plain meaning of the statute renders the defendants’ contentions incorrect.
7 I disagree with the Ninth Circuit’s contrary decision in Sanchez v. Johnson, 416 F.3d 1051, 1060 (9th Cir. 2005). I also disagree with the Tenth Circuit’s decision in Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir. 2006). In that case, the Tenth Circuit held that 42 U.S.C. §1396a(a)(30)(A) does not create rights enforceable pursuant to §1983.
5

Case 1:05-cv-23037-AJ Document 40 Entered on FLSD Docket 01/12/2007 Page 6 of 6

4. COUNT IV: 42 U.S.C. §1396a(a)(43)(A)
Finally, the defendants contend that Count IV should be dismissed because §1396a(a)(43)(A) does not confer enforceable rights on the plaintiffs. I disagree. First, the Eleventh Circuit in a preGonzaga case, 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), held that this provision created enforceable rights. Second, I do not think 31 Foster Children has been called into question by Gonzaga, and I concur with those other district courts that have addressed this issue postGonzaga and concluded that §1396a(a)(43)(A) confers enforceable rights on the plaintiffs. See Clark v. Richman, 339 F. Supp. 2d 631, 638-640 (M.D. Pa. 2004); Memisovski v. Maram, No. 92 C 1982, 2004 WL 1878332, *8-11 (N.D. Ill. 2004); Health Care for All v. Romney, 2005 WL 1660677, *13 (D. Mass. July 14, 2005); Westside Mothers v. Olszewski, 368 F. Supp. 2d 740, 769-770 (E.D. Mich. 2005); A.M.H. v. Hayes, 2004 U.S. Dist. Lexis 27387, *19 (S.D. Ohio 2004).8 The provision at issue requires the defendants to provide basic outreach and information to the plaintiff class. As a result, Congress must have intended that the provision in question benefit the plaintiffs, and the clear right that is protected by the provision is neither “vague” nor “amorphous.”
IV. CONCLUSION For the reasons stated herein, the motion to dismiss is GRANTED as to count III, and DENIED in all other respects. The defendants shall answer the complaint by February 12, 2007, and two weeks later the parties shall file a joint scheduling report. DONE and ORDERED in chambers in Miami, Florida, this 11th day of January, 2007.

Copy to: All counsel of record

_______________________ Adalberto Jordan United States District Judge

8 In fact, the defendants have not pointed to any decision holding that §1396a(a)(43)(A) does not confer enforceable rights on the plaintiffs.
6

 
 Case 1:05-cv-23037-AJ Document 58 Entered on FLSD Docket 04/24/2007 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION CASE NO. 05-23037-CIV-JORDAN

FLORIDA PEDIATRIC, et. al.

)

) Plaintiffs
)

vs.

)

) ANDREW AGWUNOBI, et. al.
)

Defendants

)

____________________________________ )

ORDER DENYING MOTION TO RECONSIDER MOTION TO DISMISS AND TO CERTIFY ISSUES AS IMMEDIATELY APPEALABLE
The defendants previously urged me to dismiss the complaint in this case because the organizational plaintiffs did not have standing to bring this action and because the statutes which the defendants allegedly violated do not create enforceable rights. I concluded, however, that the plaintiffs have standing to sue, and that -- with the exception of 42 U.S.C. § 1396u-2(B)(5) -- the statutes under which the plaintiffs bring suit confer individually enforceable rights. As a result, I dismissed only Count III and denied the motion to dismiss in all other respects.
The defendants have now asked me to reconsider my prior ruling denying their motion to dismiss. Additionally, they have requested me to certify certain issues as immediately appealable to the Eleventh Circuit. The defendants have not set forth reasons warranting a reconsideration of my order denying the motion to dismiss, nor have they established the requirements necessary for certification. There is no need to delay further prosecution of this case. As a result, their motion [D.E. 41-1] is DENIED.
LEGAL STANDARD “A court has the power to revisit prior decisions of its own court or of a coordinate court in any circumstance, although as a rule courts should be loath to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817(1988). The Eleventh Circuit has stated that “Courts must rarely invoke the ‘clear error’ exception, less the exception swallow the rule.” Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1370 (11th Cir.

Case 1:05-cv-23037-AJ Document 58 Entered on FLSD Docket 04/24/2007 Page 2 of 4
2003). However, if new developments convince a court that it erred in an earlier ruling, it would be “wasteful and unjust to require the court to adhere to its earlier ruling.” Robinson v. Parrish, 720 F.2d 1548, 1550 (11th Cir. 1983). Thus, in order to prevail upon a motion for reconsideration, a party must demonstrate that the court’s prior ruling was clearly erroneous or that new developments have rendered the ruling incorrect.
Additionally, in exercising my discretion, I may certify certain issues for immediate appeal to the Eleventh Circuit if doing so involves controlling questions of law to which there are “substantial” differences in opinion, the resolution of which would “materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). See generally McFarlin v. Conseco Services, 381 F.3d 1251, 1257-59 (11th Cir. 2004) (explaining § 1292(b) standard).
DISCUSSION The defendants have failed to demonstrate that my prior ruling was clearly erroneous or that new developments have rendered the ruling incorrect. Rather, the defendants continue to recite the same theories that they initially relied upon in their motion to dismiss. Furthermore, the defendants have failed to introduce any new legal authority or evidence that would support their contentions that I previously erred in denying their motion to dismiss. With respect to Count I, I continue to agree with the Third, Fifth, Sixth, Seventh, Eighth, and Ninth Circuits, which have all squarely addressed the issue of whether 42 U.S.C. § 1396a(a)(43) creates an enforceable right and have concluded that under Blessing and/or Gonzaga, §1396a(a)(10) confers enforceable rights on the plaintiffs. See Watson v. Weeks, 2006 WL 288147, *8 (9th Cir. 2006); Sabree, 367 F.3d at 190; S.D. ex. rel. Dickson, 391 F.3d 581, 607 (5th Cir. 2004); Westside Mothers v. Haveman, 289 F.3d 852, 862-63 (6th Cir. 2002); Pediatric Specialty Care, Inc., v. Arkansas Dept. Of Human Services, 293 F.3d 472, 477 (8th Cir. 2002); Miller v. Whitburn, 10 F.3d 1315, 1319-20 (7th Cir. 1993).1 In regard to Count II, I concluded -- and the defendants still have not persuaded me otherwise -- that “the recipient plaintiffs have an individual entitlement to the equal access guarantee.” Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000); See also Pediatric
1 Indeed, no circuit has held to the contrary. 2

Case 1:05-cv-23037-AJ Document 58 Entered on FLSD Docket 04/24/2007 Page 3 of 4
Specialty, 364 F.3d at 930 (§1396a(a)(30)(a) is a “clearly established right” enforceable by recipients and providers). Ark. Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 526 (8th Cir. 1993) (“The equal access provision is indisputably intended to benefit the recipients by allowing them equivalent access to health care services”). Accord Visiting Nurse Ass'n v. Bullen, 93 F.3d 997, 1004 n.7 (1st Cir. 1996) (acknowledging that Medicaid recipients “are intended beneficiaries under the 'equal access' requirement as it affects the availability of their medical care”). Therefore, I adhere to my earlier view that §1396a(a)(30)(A) confers enforceable rights on the plaintiffs.
And with respect to Count IV, I agree with the Eleventh Circuit’s decision in 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), which held that 42 U.S.C. §1396a(a)(43)(A) created enforceable rights. I do not think -- nor have the defendants introduced new authority to the contrary -- that 31 Foster Children has been called into question by Gonzaga University v. Doe, 536 U.S. 273, 287 (2002), and I concur with those other district courts that have addressed this issue post-Gonzaga and concluded that §1396a(a)(43)(A) confers enforceable rights on the plaintiffs.
Finally, the defendants’ request to immediately appeal seven issues to the Eleventh Circuit is similarly denied. This is not the type of case contemplated by § 1292(b). The defendants have not demonstrated that a substantial difference of opinion exists in regard to the seven issues they seek to appeal. See McFarlin, 381 F.3d at 1258-59.
CONCLUSION For the foregoing reasons, the defendants’ motion for reconsideration and for certification of issues immediately appealable is DENIED.
DONE and ORDERED in chambers in Miami, Florida, this 24th day of April, 2007.

Copy to: All counsel of record

_______________________ Adalberto Jordan United States District Judge
3

Case 1:05-cv-23037-AJ Document 58 Entered on FLSD Docket 04/24/2007 Page 4 of 4 4

 
 Case 1:05-cv-23037-AJ Document 77 Entered on FLSD Docket 06/05/2007 Page 1 of 41
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO. 05-23037-CIV-JORDAN/TORRES
FLORIDA PEDIATRIC SOCIETY/THE FLORIDA CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS; FLORIDA ACADEMY OF PEDIATRIC DENTISTRY, INC.; ASHLEY DOVE, as the next friend of Kaleb Kelley, a minor child; BLANCHE SPELL, as the next friend of Khalillah Spell, a minor child; and EVA CARMONA, as the next friend of Vanessa and Jennifer Patino, minor children; RITA GORENFLO and LES GORENFLO, as the next friend of Thomas and Nathaniel Gorenflo, minor children; HEIDI CHRISTAKIS, as the next friend of Charles and Christo Christakis, minor children; JESSE WATLEY, a minor child, by and through his next friend, EDNA WATLEY; YISET ESPINO, as next of Angel Banos, a minor child; N.A., a minor child, by and through his next friend, C.R., OLGA SERAFIN and MARIO RODRIGUEZ, as the next friend of Adrian Rodriguez, a minor child.
Plaintiffs, vs.
ANDREW AGWUNOBI, M.D., in his official capacity as Secretary of the Florida Agency for Health Care Administration (AHCA); ROBERT BUTTERWORTH in his official capacity as Secretary of the Florida Department of Children and Family Services; and ANA M. VIAMONTE ROS, M.D., M.P.H. in her official capacity as Secretary of the Florida Department of Health,
Defendants. ______________________________________________________/
AMENDED COMPLAINT – CLASS ACTION
20401 v1

Case 1:05-cv-23037-AJ Document 77 Entered on FLSD Docket 06/05/2007 Page 2 of 41

I. Introduction

1. This civil rights action is brought to remedy the systematic and continuing

violation of federal law by Florida state health officials. Specifically, this action seeks to redress

the failure of Florida state health officials to provide children in Florida who are enrolled in

federally-funded medical assistance (commonly known as Medicaid) with essential medical and

dental services as required by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.

(“Title XIX”).

2. Title XIX mandates that all of these children be furnished Early and Periodic

Screening, Diagnosis and Treatment Services (“EPSDT”) – the primary, preventive, acute and

specialty care and services which are necessary to their good health and development.

3. This action is brought on behalf of the more than 1.6 million children who are

enrolled in the Florida Title XIX and EPSDT services program (collectively referred to as

“Medical Assistance”), by the Florida Pediatric Society/The Florida Chapter of the American

Academy of Pediatrics (‘FPS”), the Florida Academy of Pediatric Dentistry, Inc. (“FAPD”), and

the named plaintiffs and their families.

4. Plaintiffs seek declaratory and injunctive relief to end the violation of federal law

taking place in Florida which denies our state’s children the delivery of prompt, complete and

continuing health care.

5. The defendants are the Secretary of the Florida Agency for Health Care

Administration (“AHCA”), the state governmental agency designated by the Governor to be

Florida’s single agency responsible for implementing Title XIX, the Secretary of the Florida

Department of Children and Family Services, and the Secretary of the Florida Department of

Health.

20401 v1

1

Case 1:05-cv-23037-AJ Document 77 Entered on FLSD Docket 06/05/2007 Page 3 of 41

6. The failure of the defendants to comply with federal law has resulted in, and, if left unremedied, will continue to result in, the needless infliction of pain, the endangerment of young lives, the preemption of learning, development, and growth, and the stunting of the children’s life chances.
7. Because of the defendants’ violation of federal law, hundreds of thousands of eligible Florida children have not been furnished any preventive health care services. According to the State of Florida’s own statistics, in FFY 2004, for example, more than 500,000 Medicaid enrolled Florida children were furnished no preventative health care services at all. Among these children:
• more than 30,000 infants (children under the age of 1) received no preventative medical services during the first year of their life,
• more than 152,000 toddlers (children between the ages of 1 and 5) received no preventative medical services; and
• more than 337,000 school age children (children between the ages of 6 and 18) received no preventative medical services.
8. These statistics are not isolated examples but are demonstrative of the systematic failure of the defendants to comply with the mandates of federal Medicaid law. Indeed, statistics provided to the federal government by Florida’s Medicaid Agency show that for the years 1999 to 2004 at least 44% of the children enrolled in Florida’s Medicaid program failed to receive even one of the health check ups that they were entitled to under federal law. During that same time period more than 75% of Florida’s enrolled children were furnished no dental care whatsoever, despite their entitlement to such care.
9. To remedy Florida’s systemic failure to comply with federal law, this action requests that the Court, inter alia:

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a. Require the defendants to conform to the mandates of Title XIX, its

implementing regulations and guidelines, and provide the children of

Florida with timely, complete and continuing health care and services;

b. Require the defendants to ensure that payments to providers, including

pediatricians, dentists, pediatric subspecialists, and other specialty care

physicians, are sufficient to provide children receiving Medical Assistance

access to care and services to the same extent that such care and services

are available to other children in the same geographic area;

c. Require defendants to bring children’s health care and services to the

children, including: (i) informing children and their families of Florida’s

obligation to promptly furnish complete and continuing children’s health

care; (ii) utilizing cooperative arrangements with other child-intensive

agencies in order to effectively achieve enrollment and easy re-enrollment

of all eligible children; and (iii) providing scheduling assistance,

transportation, outstations and case-management.

d. Require defendants to assure that health maintenance organizations that

participate in Florida’s Medical Assistance program have the capacity, and

fully and effectively use it, to deliver to all enrolled Florida children with

them the timely, continuing and complete health care to which they are

entitled.

II. Jurisdiction and Venue

10. Plaintiffs bring this action to redress the deprivation of rights secured under the

laws of the United States.

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11. The jurisdiction of the Court is invoked under 28 U.S.C. §§ 1331, 1343(a)(3) and

1343(a)(4), this being a civil action arising under 42 U.S.C. § 1983 for declaratory and injunctive

relief for the deprivation of rights secured by Title XIX of the Social Security Act of the United

States. 42 U.S.C. §§ 1396 et seq.

12. Plaintiffs request declaratory and injunctive relief, as authorized by 28 U.S.C. §§

2201 and 2202; 42 U.S.C. § 1983; 28 U.S.C. § 1331, and Fed.R.Civ.P. 57 and 65.

13. Venue in this district is proper under 28 U.S.C. § 1391(b), in that a substantial

part of the events and omissions giving rise to this claim have occurred and are occurring in this

district.

III. The Parties

Individual Plaintiffs

14. Kaleb Kelley is the minor son of Ashley Dove, who appears in this matter as his

next friend. Kaleb was born on December 25, 2003. Ashley Dove and her son reside in Lee

County, Florida.

a. Kaleb is eligible to receive medical and dental care through Medicaid.

b. Kaleb has suffered from chronic and recurrent ear infections and has

required periodic medical treatment, including treatment from Ear Nose

and Throat (“ENT”) specialists as a result.

c. Despite diligent efforts, his mother has been unable to obtain necessary

medical treatment for Kaleb.

15. Khalillah Spell is the sixteen year old minor daughter of Blanche Spell, who

appears in this matter as Khalillah’s next friend. Khalillah and her mother live in Miami-Dade

County, Florida.

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a. Khalillah is eligible to receive medical and dental care through Medicaid. b. Effective July 1, 2004, Atlantic Dental, Inc. (“ADI”) was awarded a
contract by the State of Florida Agency for Health Care Administration to provide dental benefits to more than 200,000 children who are Medicaideligible in Miami-Dade County, including Khalillah Spell. c. After ADI had been awarded the contract, despite diligent efforts Ms. Spell has not obtained needed treatment for Khalillah and her other children through the ADI program. 16. Vanessa and Jennifer Patino are the minor daughters of Eva Carmona, who appears in this matter as their next friend. Eva Carmona and her daughters reside in Miami-Dade County, Florida. a. Vanessa and Jennifer are eligible to receive medical and dental care through Medicaid. b. Effective July 1, 2004, ADI was awarded a contract by the State of Florida Agency for Health Care Administration to provide dental benefits to more than 200,000 children who are Medicaid-eligible in Miami-Dade County, including Vanessa and Jennifer. c. Once the ADI regime took effect in July 2004, Eva Carmona sought to find a dentist that would accept her daughters as part of the ADI program. Despite diligent efforts, Eva Carmona, to this day, has been unable to find an ADI dentist to see her daughters, and Ms. Carmona has not obtained necessary dental treatment for her daughters.

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17. Thomas and Nathaniel Gorenflo are the adopted, minor sons of Rita and Les Gorenflo, who appear in this matter as their next best friend. Thomas was born on December 29, 1998, Nathaniel on February 10, 1998. The Gorenflos live in Palm Beach Gardens.
a. Both children are eligible for Medicaid as a result of their adoption. b. In addition to other medical and developmental issues, Thomas has
multiple related orthopedic problems. Despite diligent efforts, the Gorenflos have not obtained necessary medical treatment for Thomas. c. In addition to other medical and developmental issues, Nathaniel suffers from chronic sinusitis and needs ENT treatment. Despite diligent efforts, the Gorenflos have not obtained necessary medical treatment for Nathaniel. 18. Charles and Christo Christakis are the minor sons of Heidi Christakis, who appears in this matter as their next friend. Heidi Christakis and her sons reside in Broward County, Florida, but during part of the time in question resided in Palm Beach County. a. Charles Christakis, who was born on November 18, 1992, and Christo Christakis, who was born on February 13, 1995, are eligible to receive medical and dental care through Medicaid. b. On or about January 31, 2005, Charles broke his wrist playing baseball. c. Despite diligent efforts, Ms. Christakis has had difficulty and at times was unable able to obtain the necessary medical treatment for Charles. d. Charles required braces and still needs a retainer; Christo requires braces.

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e. Despite diligent efforts, Ms. Christakis has had difficulty and at times has

been unable to obtain the necessary dental treatment for Charles and

Christo.

19. Jesse Watley is the minor grandson of Edna Watley, who appears in this action as

his next friend with the express approval of his father and guardian Joseph Watley. Edna Watley

and her grandson live in Escambia County, Florida.

a. Jesse, who was born on July 26, 1994, has been eligible to receive medical

and dental care through Medicaid at all relevant times.

b. Jesse had a tumor removed from his leg in late December 2004.

c. Despite diligent efforts, Ms. Watley has had difficulty and at times has

been unable to obtain the necessary follow-up medical treatment for Jesse.

20. Angel Banos is the minor son of Yiset Espino, who appears in this action as his

next best friend. Ms. Espino and her son reside in Miami-Dade County.

a. Angel Banos, who was born on February 6, 1999, was at all relevant times

eligible for medical and dental care through Medicaid. Angel is now

eligible for medical and dental care through Healthy Kids.

b. Effective July 1, 2004, Atlantic Dental, Inc. (“ADI”) was awarded a

contract by the State of Florida Agency for Health Care Administration to

provide dental benefits to more than 200,000 children who are Medicaid-

eligible in Miami-Dade County, including Angel.

c. After ADI had been awarded the contract, Ms. Espino has had difficulty

and at times has been unable to obtain the necessary dental treatment for

Angel.

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21.

N.A., is the minor foster son of C.R., who appears in this action as his next

friend.1 C.R. and her foster son live in Leon County, Florida.

a. N.A. was at all relevant times eligible for medical and dental care through

Medicaid.

b. When N.A. was approximately two months of age, he was randomly re-

assigned from MediPass to an HMO in another county without the

knowledge or consent of C.R., who was then his foster mother.

c. C.R. has had difficulty and at times has been unable to obtain the

necessary medical care for N.A.

22. Adrian Rodriguez is the minor son of Olga Serafin and Mario Rodriguez, who

appear in this action as his next best friend. Ms. Sarafin, Mr. Rodriguez, and their son live in

Miami-Dade County, Florida.

a. Adrian Rodriguez, who was born on August 5, 1994, was at all relevant

times eligible for medical and dental care through Medicaid. He is now

eligible for medical and dental care through Healthy Kids.

b. Effective July 1, 2004, Atlantic Dental, Inc. (“ADI”) was awarded a

contract by the State of Florida Agency for Health Care Administration to

provide dental benefits to more than 200,000 children who are Medicaid-

eligible in Miami-Dade County, including Adrian.

1 Because N.A. is a foster child, his identity and the identity of C.R are omitted from this public filing to protect

their confidentiality. Plaintiffs will disclose N.A.’s and C.R.’s identities to defendants. In addition, plaintiffs will

file a separate motion with the Court for permission to prosecute the action under pseudonyms on behalf of N.A. and

C.R.

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c. After ADI had been awarded the contract, Ms. Sarafin and Mr. Rodriguez have had difficulty and, at times, has been unable to obtain the necessary dental treatment for Adrian.
Organizational Plaintiffs 23. The Florida Pediatric Society/Florida Chapter of the American Academy of Pediatrics, (“FPS”) is a non-profit professional organization of pediatricians and pediatric specialists. FPS’s purpose is to secure to all infants, children and adolescents in Florida full access to timely, continuous and complete health care and services, and further the goals of the American Academy of Pediatrics. 24. FPS exists to advocate for infants, children and young adults and provide for their care; to collaborate to assure child health, and to assure that decision making affecting the health of children and their families is based upon the needs of those children and families. 25. Since at least 1989, FPS has expended substantial organizational resources seeking to ensure that the defendants comply with federal law by providing timely, complete and continuous healthcare for all Medicaid-eligible children in Florida. If Defendants had not failed to comply with federal law, and instead actually furnished Medical Assistance to all enrolled children, as required by Title XIX, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10), 1396a(a)(30)(A),1396a(a)(43), the Florida Pediatric Society could and would devote these considerable resources to other purposes such as the advancement of child safety, public health measures against substance abuse, as well as pediatric and public education campaigns to help eradicate the environmental causes of asthma, the social causes of child violence and obesity, and other conditions which prejudice the growth and learning and life-chances of children.

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26. In providing treatment to children receiving Medical Assistance, members of FPS

are faced with rates that fail to cover costs and also with administrative burdens and impediments

which are barriers to children receiving needed health care. For example, because of defendants’

actions and omissions, members of FPS are faced with Medicaid payment rates that are

substantially below Medicare and commercial rates and which in many cases fail to even cover

the member’s costs. Thus, the members of FPS have suffered economic injury (and their ability

to provide quality care has been undermined) as a result of defendants’ violation of federal law.

27. FPS sues (a) for itself as an organization that has suffered injury as a result of the

defendants’ acts and omissions, (b) on behalf its members (who have suffered injury as a result

of the defendants’ acts and omissions), and (c) on behalf of its members’ patients – the Medicaid

enrolled children of Florida harmed by defendants’ actions and omissions.

28. Likewise Plaintiff Florida Academy of Pediatric Dentistry, Inc. (“FAPD”) is a

non-profit organization. Some members of FAPD provide dental care to children eligible for

Medical Assistance. The mission of FAPD is to improve and maintain the oral health of infants,

children and adolescents, and persons with special needs. FAPD is dedicated to promoting

policies that increase access to oral health-care for low income children. Thus, FAPD seeks to

assure that children who are Medical Assistance beneficiaries receive periodic and

comprehensive dental examinations and treatment.

29. The acts and omissions of the defendants have imposed otherwise unnecessary

expenditures of organizational resources on the FAPD. For example, the FAPD has spent

significant organizational resources seeking to ensure the defendants comply with federal law. If

the defendants had in fact complied with federal law, those resources could have been expended

on other programs seeking to promote children’s oral health.

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30. In addition, the unlawful acts of the defendants have resulted in payments to

FAPD members which, in many cases, fail to even cover the member’s costs. Thus, the

members of the FAPD have suffered economic injury and their ability to provide quality care has

been undermined.

31. The FAPD sues (a) for itself as an organization that has suffered injury as a result

of the defendants’ acts and omissions, (b) on behalf its members (who have suffered injury as a

result of the defendants’ acts and omissions), and (c) on behalf of its members’ patients – the

Medicaid enrolled children of Florida harmed by defendants’ actions and omissions.

Defendants

32. Defendant Andrew Agwunobi, M.D., is Secretary of the Florida Agency for

Health Care Administration (“AHCA”). AHCA is the single state agency designated by the

Governor and under Florida Statute § 408.034, and as required by Title XIX, 42 U.S.C. §

1396a(a)(5), to administer the Medical Assistance program in Florida. As Secretary of AHCA,

Dr. Agwunobi is the Agency’s Chief Executive Officer responsible for implementing the

Medical Assistance Program, for formulating, directing and monitoring its policies, rules and its

actual performance and for insuring its compliance with state and federal law. Dr. Agwunobi is

sued in his official capacity.

33. Defendant Robert Butterworth is Secretary of the Florida Department of Children

and Families (“DCF”). DCF is the state department responsible for administering Medicaid

eligibility determinations and, with responsible AHCA officials, is responsible for assuring

effective use of presumptive eligibility, continuous eligibility, joint applications and effective

cross-enrollment among child serving programs. As Secretary of DCF, Mr. Butterworth is

responsible for assuring that Medicaid eligibility determinations are administered in compliance

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with state and federal law, including that they do not impede or defeat, but advance the prompt, complete and continuous delivery of Medical Assistance required by Title XIX to be furnished to all eligible children. Mr. Butterworth is sued in his official capacity.
34. Defendant Ana M. Viamonte Ros, M.D., M.P.H., is the Secretary of the Florida Department of Health. The Florida Department of Health’s stated mission is to protect and promote the health and safety of all people in Florida through the delivery of quality public health services and the promotion of health care standards. The Department of Health is organized in divisions and one of its divisions, the Division of Children’s Medical Services, administers Florida’s Medicaid program for children with special health care needs. As Secretary of the Department of Health, Dr. Viamonte Ros is responsible for administering the department’s programs for providing children’s health care and services, including the Division of Children’s Medical Services, in compliance with state and federal law. Dr. Viamonte Ros is sued in her official capacity. IV. Class Action Allegations
35. The named individual plaintiffs bring this action on behalf of themselves and all other similarly situated pursuant to Fed.R.Civ.P. 23 (a) and 23 (b)(2). The plaintiffs’ class consists of children under the age of 21 who now, or in the future will, reside in Florida and who are, or will be, eligible under Title XIX of the Social Security Act for EPSDT.
36. The requirements of Fed.R.Civ.P. 23(a) are met in that the class is so numerous that joining all members is impractical. Defendants’ unduplicated count of children determined during FFY 2004 the number of children eligible and enrolled in Medical Assistance was over 1.6 million children.

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37. The named individual plaintiffs raise claims based on questions of law and fact

that are common to the class. Plaintiffs and the class members rely on the defendants to ensure

that they have access to and are provided health care services guaranteed to them by federal law.

Plaintiffs and the class members are being deprived of these services because of the systematic

violation of federal law by the defendants. Questions of fact common to the class include

whether the defendants fail:

a. to ensure that payments to providers are sufficient so that enrolled children

have access to and are provided health care as required by Title XIX;

b. to ensure that health care and services are delivered to children entitled to

Medical Assistance benefits;

c. to develop and implement a coordinated system of care that provides the

class members with medical, vision, hearing, dental and developmental

screening, diagnosis and treatment at appropriate intervals that meet

reasonable standards of medical care; and

d. to ensure that families of children enrolled in Medical Assistance are

adequately informed of their children’s right to receive EPSDT services

and how to obtain such services.

38 Questions of law common to the entire class include whether defendants’ acts and

omissions deprive plaintiffs of EPSDT services in violation of the Medicaid Act, 42 U.S.C. §§

1396a, 1396d(a), 1396d(r), and 1396u-2, and the regulations and guidelines promulgated

thereunder.

39. Certification under Rule 23(b)(2) is appropriate because the defendants have acted

or refused to act on grounds generally applicable to the class as a whole, thereby making

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appropriate final injunctive relief on a class basis. Specifically, plaintiffs request that this Court declare defendants by their actions and omissions to be in violation of Title XIX, 42 U.S.C. §§ 1396a, 1396d(a), 1396d(r), and 1396u-2 and to issue injunctive relief as follows:
a. Requiring defendants to furnish all Medicaid-eligible children the timely, complete, and continuing health care and services required by Title XIX;
b. Requiring defendants to ensure that payments to providers are sufficient to ensure that Medicaid eligible children have access to care and services at least to the same extent that such care and services are available to other children in the same geographic area, and to assure that such payments are consistent with quality of care;
c. Requiring defendants to design, implement, ensure and enforce eligibilitydetermination assignment and managed care arrangements which can and do deliver in timely and continuing fashion, the full array of children’s health care services required to be delivered by Title XIX; and
d. Requiring defendants to bring children’s health care to the children, including: aggressively informing children and their families of Florida’s obligation to furnish timely, complete and continuing children’s health care; fully utilizing cooperative arrangements with other child-intensive agencies in order effectively to achieve enrollment and re-enrollment of all eligible children and in order to accomplish the actual delivery of necessary health care and services to all enrolled children; and providing scheduling assistance, outstations and case-management.

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40. The named plaintiffs will fairly and adequately protect the interests of the class. The named plaintiff organizations have the resources to prosecute this action on behalf of the proposed class. They are represented by attorneys employed by Boies, Schiller & Flexner LLP, the Public Interest Law Center of Philadelphia, and Miller, Keffer & Bullock PC. Counsel have experience in complex class action litigation involving health care and civil rights laws. Counsel have the resources, expertise, and experience to prosecute this action.
41. Defendants’ acts and omissions have affected and will affect the class generally, thereby making finial injunctive relief and declaratory relief with respect to the class as a whole appropriate. V. The Law and Structure of Children’s Health Care
Under Title XIX of the Social Security Act 42. Medical Assistance (often known as “Medicaid”) is a joint and cooperative federal-state program for furnishing and financing health care and services. Title XIX was first enacted in 1965. Its children’s health care provisions were first made express in 1967. Its 1989 and 1990 Amendments significantly expanded family incomes at which children are eligible and the health care and services, primary and specialty care alike, that must be furnished to all eligible children. 43. Title XIX, the Medical Assistance title of the Social Security Act, was enacted “[f]or the purpose of enabling each state . . . to furnish (1) medical assistance on behalf of families with dependent children and . . . disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or selfcare.” 42 U.S.C. § 1396.

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44. To enable the states to fulfill this purpose, and in exchange for acceptance of the

obligations imposed by Title XIX, Title XIX provides:

there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this subchapter. The sums made available under this section shall be used for making payments to States which have submitted, and had approved by the Secretary, State plans for medical assistance.

42 U.S.C. § 1396.

45. Although state participation in Medical Assistance is entirely voluntary, once a

state chooses to participate, it must carry out the requirements of Title XIX and its regulations.

Florida has elected to participate in Medical Assistance.

46. The Centers for Medicare and Medicaid in the United States Department of

Health and Human Services (“CMS”) oversees the program for the Secretary. Defendant Florida

officials are responsible under Title XIX and state law for implementation of Florida’s Medicaid

program in accordance with the requirements imposed by Title XIX, its implementing

regulations and policy directions.

47. Under Title XIX, provision of children’s health care is mandatory upon each

participating state. Title XIX expressly provides:

The term “medical assistance” means payment of part or all of the cost of the following care and services . . . early and periodic screening, diagnostic and treatment services (as defined in subsection (r) of this section) for individuals who are eligible . . . and under the age of 21.

42 U.S.C. § 1396d(a)(4)(B).

48. Title XIX further provides that each participating state must make available “at

least the care and services listed in paragraph [4(B)] of section 1396d(a) to all individuals who

are [eligible].” 42 U.S.C. § 1396a(a)(10)(A).

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49. States that elect to participate in the Medical Assistance program are reimbursed

by the CMS without any financial cap for 50% or more of their medical expenditures in

exchange for compliance with the requirements of Title XIX.

50. Since 1989, at 42 U.S.C. § 1396d(r), Title XIX has set forth expressly what items

and services the mandatory “early and periodic screening, diagnostic and treatment services”

must include; namely:

a. Comprehensive screening examinations “provided at intervals which

meet reasonable standards of medical and dental practice, as determined

by the State after consultation with recognized medical and dental

organizations involved in child health care and, with respect to

immunizations . . ., in accordance with the schedule referred to in Section

1396S(c)(2)(B)(u) of this title for pediatric vaccines” and “at such other

intervals, indicated as medically necessary, to determine the existence of

physical or mental illnesses or conditions and which shall at a minimum

include (i) a comprehensive health and developmental history (including

assessment of both physical and mental health development), (ii) a

comprehensive unclothed physical exam, (iii) appropriate immunizations .

. . according to age and health history, (iv) laboratory tests (including lead

blood level assessment according to age and health history), and (v) health

education (including anticipatory guidance).”

b. Vision services “provided at intervals which meet reasonable standards of

medical practice as determined by the State after consultation with

recognized medical organizations involved in child health care and

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otherwise as medically necessary to determine the existence of a suspected illness or condition; and which shall at a minimum include diagnosis and treatment for defects in vision, including eyeglasses.” c. Dental services “provided at intervals which meet reasonable standards of dental practice as determined after consultation with recognized dental organizations involved in children’s health care; and which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health.” d. Hearing services at similar intervals determined in similar ways and “which shall at a minimum include diagnosis and treatment for defects in hearing, including hearing aids.” e. All such other health care, diagnostic services, treatment, and other measures described in § 1396a(a) necessary to correct or ameliorate defects and physical and mental illnesses and conditions, “whether or not such services are covered [otherwise] under the State plan.” 51. Title XIX has long required that a participating state’s “payments for care and services” be “consistent with . . . quality.” 42 U.S.C. § 1396a(a)(30)(A). In 1989, as part of its expansion of income eligibility criteria for children’s health care and of the preventive care and services required to be delivered to children Congress codified a long-standing regulation into Title XIX, requiring also that each participating state: provide such methods and procedures relating to the utilization of, and payment for, care and services available under the plan . . . as may be necessary . . . to assure that payments . . . are sufficient to enlist enough providers so that care and services are available

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under the plan at least to the extent that such care and services are available to the general population in the geographic area.
42 U.S.C. § 1396a(a)(30)(A).
52. The criteria for sufficiency of payments necessary to assure equal access has been
interpreted by courts to mean that reimbursement rates are at least 90% of payments in
commercial and other public (i.e. Medicare) coverage, that they enlist at least two-thirds of each
specialty’s practitioners in full participation in Medicaid, and that they actually achieve delivery
of the required care and services. Currently, Florida’s Medicaid reimbursement rates are far
below this standard.
53. In short, the obligation imposed upon responsible state officials by Title XIX of
the Social Security Act is, as stated in one of the earliest of the long and consistent line of federal
court cases enforcing Title XIX, to wit:
The mandatory obligation upon each participating state to aggressively notify, seek out and screen persons under 21 in order to detect health problems and to pursue those problems with the needed treatment is made unambiguously clear by the 1967 act and by the interpretive regulations and guidelines.
[A] somewhat casual approach to EPSDT hardly conforms to the aggressive search for early detection of child health problems envisaged by Congress. It is difficult enough to activate the average affluent adult to seek medical assistance until he is virtually laid low. It is utterly beyond belief to expect that children of needy parents will volunteer themselves or that their parents will voluntarily deliver them to the providers of health services for early medical screening and diagnosis. By the time [a] . . . child is brought for treatment it may too often be on a stretcher. This is hardly the goal of “early and periodic screening and diagnosis.” EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the congressional purpose.
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Stanton v. Bond, 504 F.2d 1246, 1250-51 (7th Cir. 1974), cert. denied, 420 U.S. 984 (1975) (emphasis added).
54. In 1989, Congress linked children’s health care eligibility directly and simply to a child’s age and his or her family’s income. In doing so, Congress intended to, and did, expand the numbers of poor, near-poor and middle income children who are entitled to health care, particularly including those in working families whose jobs pay only low wages, right up into, for large families, median family income.
55. The 1989 Amendments required states to provide health care to children from birth through age five in families with income equal to or less than 133% of the poverty level, and to children born after September 30, 1983 (who are age 6 through age 18), 100% of the poverty level, and to age 21, the cash assistance standards. The 1989 Amendments authorized eligibility standards to 185% of the poverty level for infancy (birth to age one), and at all ages allowed the States, by waiver, to choose still higher eligibility standards, while maintaining the same proportion of federal financial participation. VI. Defendants’ Violations of Federal Law
56. Florida has chosen to participate in Medical Assistance. Like all states which have chosen to participate, Florida is reimbursed by the Federal Centers for Medicaid and Medicare Services—without any financial cap—for the largest portion of its expenditures for health care and services on the condition that state officials carry out the requirements of Title XIX.
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57. In Florida, the federal government currently pays 58.9% of all expenditures for health care and services furnished under Title XIX, including the costs of state administration; Florida pays the remaining 41.1%.
58. Nearly one-third of all of Florida’s children are eligible for Title XIX Medicaid. In FFY 2004, some 1.6 million Florida children, aged birth to 21, were eligible and enrolled and an estimated additional 200,000 children were eligible but still not enrolled by defendants. In 2000, some 43% of births, in Florida were Medicaid covered.
59. Although in FFY 2003-04 children were more than half (53.3%) of the persons enrolled in Medical Assistance, this health care and services constituted less than 18% of Florida’s Medical Assistance expenditures. Preventive health care for children is the most economical expenditure providing the greatest public health benefit for each dollar spent.
60. Florida administers a set of four programs to provide health care and services to children. Together the four are called “KidCare”. The four programs are:
a. Medicaid, funded and operating under Title XIX of the Social Security Act;
b. Children’s Medical Services (“CMS”) addressed to children with complex healthcare needs, almost entirely funded under Title XIX and operating thereunder;
c. Healthy Kids, funded and operating under Title XXI (the State Children’s Health Insurance Program, “SCHIP”) of the Social Security Act, 42 U.S.C. § 1397aa et seq a federal-state block grant, non-entitlement program for children whose family incomes range above Medicaid
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eligibility income limits to 200% of the federal poverty level; d. Medikids, also funded and operating under Title XXI, for children ages 1
through 5 whose family income is between 133% and 200% of the federal poverty level. 61. This action concerns Medicaid and Children’s Medical Services but not Healthy Kids or Medikids, except insofar as federal law creates obligations upon the latter two programs, for example, to assure the enrollment in Medicaid of any children identified in the operation of the two programs including their application processes as being eligible for Medicaid, because of a decline in family income or because a child is in foster care, adoption assistance, or on social security disability assistance. 62. Florida has chosen to set children’s family eligibility for Medical Assistance at 200% of the federal poverty level for infants from birth to age 1, 133% of the federal poverty level for children ages 2 through 5, 100% of the federal poverty level for ages 6 through 18, and for ages 19, 20 and 21 at 23% of the federal poverty level. 63. In addition, children receiving Supplemental Security Income, 42 U.S.C. § 1382 (based upon disability); Adoption Assistance, 42 U.S.C. § 670; and Foster Care, 42 U.S.C. § 670, are, categorically, eligible for Title XIX children’s health care. 64. During the federal fiscal year ending September 30, 2004, an unduplicated count of more than 1.6 million Florida children were determined to be eligible for Title XIX children’s health care and were enrolled therein by defendants or their agents. This was approximately 37% of Florida’s children.
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65. In Florida, pursuant to § 1396d(r) and requirements of the EPSDT, and in partial accordance with the American Academy of Pediatrics’ “Recommendations for Preventive Pediatric Health Care,” six comprehensive medical screening examinations are required to be furnished in an infant’s first year of life, beginning within one month after birth and at the second, fourth, sixth, ninth, and twelfth months; two in the second year; one yearly, at ages 2 through 5 years; and biannually, at ages 6 through 9 years, and annually at ages 10 through 20 years, with the option of an additional screening examination at ages 7 years and 9 years, if medically necessary, as follows:
a. By one month; and b. At 2 months, 4 months, 6 months, 9 months, 12 months, 15 months, and
18 months; and, c. At 2 years, 3 years, 4 years and 5 years; and, d. At 6 years, 8 years, 10 years, 11 years, 12 years, 13 years, 14 years, 15
years, 16 years, 17 years, 18 years, 19 years and 20 years. 66. In Florida, vision examinations and treatment are required during each EPSDT visit. 67. In Florida, dental examinations, including preventive care, are required once every 6 months for children ages 3 and older, and hearing evaluations are required every 12 months. 68. By any measure, as the figures cited above in paragraphs 7 and 8 demonstrate, Florida has systemically failed to provide this care to Florida’s Medicaid enrolled children, and thus has violated the mandates of Title XIX. Because of these violations, hundreds of thousands
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eligible Florida children have not been furnished any preventive health care services. According

to the State of Florida’s own statistics, in FFY 2004, for example, 554,749 Medicaid enrolled

Florida children were furnished no preventative health care services at all.

69. One of the primary reasons for this failure is the inadequate reimbursement rates

paid by Florida to Medicaid providers. Indeed, a July 2001 United States General Accounting

Office report entitled Medicaid: Stronger Efforts Needed to Ensure Children’s Access to Health

Screening Services found that “Higher Medicaid fees can attract new providers or motivate

existing providers to see more patients.” The report also provided that in 1995 after Florida

increased in reimbursement for an EPSDT screen 116 percent (from $30.00 to $64.82), screening

rates doubled – from 32 percent to 64 percent. That was Florida’s last substantial increase in

provider reimbursement and it occurred 10 years ago, despite substantial increases in provider

costs during that same period.

70. In 2004, the Florida State Department of Health conducted a Provider Access

Survey of its 17 area and regional Children’s Medical Services Offices covering all 67 Florida

counties. The Survey inquired about access to pediatric primary specialty care services for

Children’s Medical Services of Florida (“CMS of Florida”) patients, which include children

eligible for Medicaid, many of whom have special health care needs.

71. The survey drew a 100% response rate. The Department of Health, CMS of

Florida survey found that during the period January, 2003 through December, 2003:

•

Every CMS of Florida office reported that some CMS of Florida-enrolled

private primary care practices were closed to new CMS of Florida patients

during calendar year 2003.

•

Low reimbursement rates and lack of capacity were the top two reasons

cited for the closure of primary care practices to new CMS of Florida

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patients, followed by the patients’ health conditions being considered too complex for primary care practice and administrative burden/paperwork.

•

Every CMS of Florida provider recruitment office attempted to recruit

primary care practitioners to become providers during calendar year 2003.

Almost three-fourths (72%) of the contacted private primary care

providers declined to enroll as providers. Low reimbursement rates and

lack of capacity were the main reasons cited for declining to participate.

•

Consistent with other survey findings, access to primary care physician

services for CMS patients is most difficult in rural counties.

72. With regard to pediatric specialty care, the Department of Health survey found:

•

The most frequently reported pediatric specialties for which no access was

reported were: dentistry, dermatology, neurological surgery, orthopedics,

psychiatry, and urology.

•

Among the pediatric specialties for which limited access or access only

with a medical director’s intervention was reported, dermatology and oral

surgery were first, neurology was second and dentistry and orthodontics

were third.

•

When responses for no access or limited access were combined, the

following pediatric specialties were most often cited: dentistry,

dermatology, neurological surgery, neurology, orthodontics, orthopedics,

and urology.

73. During 2003, CMS of Florida staff attempted to recruit pediatric specialists to the

CMS of Florida network and, similarly to the primary care experience, a large number of those

approached declined to participate. Low reimbursement was the number one reason, followed

by lack of capacity and administrative burden/paperwork.

74. Thus, according to Florida’s own studies, low reimbursement rates are a principal

reason for low provider participation rates.

75. Contrary to their obligation under law, defendants have not and do not “provide”,

let alone “assure”, that payments for children’s health care and services are either “consistent

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with . . . quality” or “sufficient to enlist enough providers so that care and services are available [to Medicaid-enrolled children] at least to the extent that they are available to children in the general population.” 42 U.S.C. § 1396a(a)(30); 45 C.F.R. § 447.204.
76. Defendants’ payments for children’s health care and services are inconsistent with the preventive purposes of Medicaid children’s health care; they are inconsistent also with the timely low-cost delivery of preventive care and the avoidance of high cost chronic conditions and high cost crisis care, needlessly forcing children into very much higher cost hospital-based emergency rooms, into costly and sometimes extended inpatient hospital care, and inflicting extended and aggravated conditions upon children which if addressed preventively would have been sharply mitigated.
77. Moreover, the administrative systems which defendants have put in place to manage Florida’s Medicaid program frequently and unnecessarily impose barriers to, delay and often frustrate completely the provision of medical and dental care to children enrolled in Florida’s Medicaid program in a number of different ways. Highly typical of these barriers, delays and frustrations are the practices described below:
a. Without the consent of or notice to the child or its parents, a child is often reassigned by Florida’s Medicaid program from one primary care provider to another. The child and his parent only discover this when the child gets sick, needs prompt attention and in making or arriving for an appointment with the primary care provider, the provider discovers, upon checking Florida’s computer system, that the child has been reassigned to a different provider. This leaves the child and the primary care provider with the
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following dilemma: if the provider treats the child’s urgent need, the provider will receive no reimbursement; if the provider declines to treat the child, the family must make arrangements (usually after considerable delay) with the newly assigned provider who has never seen the child and doesn’t know the history. This interrupts continuity of care and, thus, injures quality of care. Normally, it is a matter of at least weeks and sometimes a couple of months, for the child to be reassigned back to the original provider if the child’s parent wishes to do so. b. Without knowledge of or notice to the child or its parents, the child’s Medicaid eligibility is incorrectly and without justification terminated. Again if the child gets sick, and is taken to a provider, the provider risks getting no reimbursement for the service and/or can look forward to delays and difficulties in getting reimbursed which impose costs greater than the fee Medicaid may eventually pay when the error is corrected. 78. The circumstances described in paragraphs (a) and (b) above occur frequently both to children enrolled in the Florida Medipass program and to children enrolled in Medicaid HMOs. The circumstances described in paragraph (a) occur most frequently when the child is enrolled in Medipass and is reassigned without notice or knowledge to an HMO whose panel of providers does not include the child’s existing primary care provider. Representatives of plaintiff FPS have on numerous occasions brought the aforesaid situations to the attention of defendants or their predecessors in office, but to date no changes have been made that have effectively prevented the continuation of these problems. Defendants’ failures to change their
27

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administrative systems to eliminate these problems violates defendants’ duties to plaintiffs under 42 U.S.C. § 1396a(a)(10)(A) and § 1396 a(a)(8).
79. Defendants also fail to adequately monitor managed care organizations that provide services to Medicaid patients. Specifically, under 42 U.S.C. § 1396a(a)(10)(A) and 42 U.S.C. § 1396a(a)(8), defendants must ensure the provision of care and services with reasonable promptness to plaintiff children. Further, 42 U.S.C. § 1396u-2(a) and § 1396u-2(b)(5) require that when a Medicaid managed care organization is employed to provide care and services to children enrolled in the Medicaid program, the defendants must ensure that the Medicaid managed care organization:
a. offers an appropriate range of services and access to preventative and primary care services for the population to be enrolled in such service area, and
b. maintains a sufficient number, mix and geographic distribution of providers of service.
42 U.S.C. § 1396u-2(b)(5)(A) and (B). 80. Defendants have failed to fulfill these requirements as many Florida Medicaid
managed care organizations’ panels of providers are significantly inadequate. These inadequacies result frequently in unreasonably delaying and often in totally frustrating the provision of needed care to plaintiff children. The inadequacy of the panels of Florida Medicaid managed care organizations is most pronounced for pediatric medical subspecialists and for dentists. There are, however, a significant number of plaintiff children enrolled in Medicaid managed care organizations who encounter unreasonable delays in accessing primary medical
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care due to the inadequacy of the primary medical care provider panels of those organizations. 81. A particularly egregious example of defendants’ failure to adequately monitor the
HMO’s with which Florida has contracted involves the contract that Florida entered with a managed care organization named Atlantic Dental, Inc. (“ADI”) to provide dental care to children enrolled in the Medicaid program in Miami-Dade County. When the contract went into effect, July 1, 2004, dental care for Medicaid children in Miami-Dade County was no longer available through Medipass, or any managed care organization other than ADI. This lack of alternatives deprived plaintiff class members residing in Dade County of the choice of managed care organizations to which they were and are entitled by 42 U.S.C. § 1396u-2(a)(3). After July 1, 2004, in addition to the named plaintiffs Khalillah Spell and Eva Carmona, numerous other Dade County children enrolled in Medicaid were unable to access treatment for dental problems because of the total inadequacy of ADI’s panel of dentists and dental specialists. Dade County Medicaid children also experienced difficulty in promptly receiving dental screenings because of ADI’s inadequate panels. The inadequacy of ADI’s panels was largely a direct result of ADI’s setting the rates at which it compensated panel members at levels so low as to provide powerful disincentives: (a) for providers to participate at all in ADI panels and (b) for ADI panel members to provide treatment and screenings to Medicaid children assigned to their practices.
82. As detailed above, defendants have systematically failed to meet their obligations under federal law, and the plaintiffs have suffered and, in the absence of relief, will continue to suffer real cognizable and redressable injuries as a result.
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CLAIMS FOR RELIEF First Cause of Action
Action to Enforce Children’s Rights to Medical Assistance 83. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 78, as though fully set forth herein. 84. The Social Security Act, 42 U.S.C. § 1396a(a)(8) and (a)(l0) as defined by 1396d(a) and d(r), provide that “medical assistance shall be furnished with reasonable promptness to all eligible individuals.” 85. “Medical Assistance” means regular check-ups at intervals determined by the state after consultation with medical and dental organizations involved in children’s healthcare, which check-ups must include a comprehensive health and development history (including assessments of physical and mental health), a comprehensive unclothed physical examination, laboratory tests, including lead blood level assessment, age-appropriate immunizations according to the schedule of the Advisory Committee on Immunization Practices, “anticipatory guidance” for children and their caretakers as part of the basic child healthcare examination, and vision, dental, and hearing examinations. 42 U.S.C. § 1396d(a) and (r). 86. “Medical Assistance” also means diagnoses, then treatment or other measures to correct or ameliorate Plaintiffs’ defects and physical, dental and mental illnesses and conditions, whether or not such services are covered under Florida’s Medical Assistance program for adults. 42 U.S.C. § 1396d(r).
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87. In violation of 42 U.S.C. § 1396a(a)(8) and (a)(10), as defined by 42 U.S.C. § 1396d(a) and (r), defendants have refused or failed to provide the required medical assistance with reasonable promptness to all eligible individuals.
88. Defendants’ violation of 42 U.S.C § 1396a(a)(8) and (a)(10), as defined by 42 U.S.C. § 1396d(a) and (r), has caused and will cause harm to individual Plaintiffs in that they have been, or will be, denied the required healthcare services. The unlawful deprivation of medically necessary care results in the needless infliction of pain, the endangerment of young lives, the disruption of learning, development and growth and the stunting of children's chances to achieve their full potential.
89. Defendants’ violation of 42 U.S.C. § 1396a(a)(8) and (a)(10) has caused and will cause harm to organizational Plaintiffs in that they have incurred, or will incur, otherwise unnecessary expenditures of organizational resources.
90. Defendants’ violation of 42 U.S.C. § 1396a(a)(8) and (a)(10) has caused and will cause harm to the members of the organizational Plaintiffs in that they have incurred, or will incur, economic damage.
91. Defendants' violation of 42 U.S.C. § 1396a(a)(8) and (a)(10) as defined by 42 U.S.C. § 1396d(a) and 1396d(r), provides a cause of action to Plaintiffs under 42 U.S.C- § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive Plaintiffs of their clearly established rights under 42 U.S.C. § 1396a(a)(8) and (a)(10), as defined by 42 U.S.C. § 1396d(a) and (r).
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92. The harm to Plaintiffs is irreparable and Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by defendants’ acts or omissions.
Second Cause of Action Action to Enforce Children’s Rights To Access to
Healthcare Services Required by Title XIX 93. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 78 as though fully set forth herein. 94. The Social Security Act imposes upon defendants a non-delegable duty to assure that payments to medical providers are consistent with quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. 42 U.S.C. § 1396a(a)(30)(A). 95. Defendants have violated this duty by developing and establishing a Medical Assistance Program which does not pay providers high enough reimbursement fees to ensure that all eligible Florida children have access to the quality and quantity of care at least to the extent that such care and services are available to the general population in the geographic area. 96. Defendants’ violation of 42 U.S.C. § 1396a(a)(30)(A) has caused and will cause harm to individual Plaintiffs in that they have been, or will be, denied the required healthcare services. The unlawful deprivation of medically necessary care results in the needless infliction of pain, the endangerment of young lives, the disruption of learning, development and growth and the stunting of children's chances to achieve their full potential.
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97. Defendants' violation of 42 U.S.C. § 1396a(a)(30)(A) has caused and will cause harm to organizational Plaintiffs in that they have incurred, or will incur, otherwise unnecessary expenditures of organizational resources.
98. Defendants’ violation of 42 U.S.C. § 1396a(a)(30)(A) has caused and will cause harm to the members of the organizational Plaintiffs in that they have not received, or will not receive, payments high enough to be consistent with quality of care.
99. Defendants’ violation of 42 U.S.C. § 1396a(a)(30)(A) provides a cause of action to Plaintiffs under 42 U.S.C. § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive Plaintiffs of their clearly established rights under 42 U.S.C. § 1396a(a)(30)(A).
100. The injury to Plaintiffs is irreparable and the Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants’ acts or omissions.
Third Cause of Action Failure to Ensure HMO Compliance With Federal Requirements 101. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 78 as though fully set forth herein. 102. The Social Security Act imposes upon defendants a non-delegable duty to assure that payments to medical providers are consistent with quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. 42 U.S.C. § 1396a(a)(30)(A).
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103. Where, as in Florida, the state has contracted with health maintenance organizations to provide children’s healthcare services, the Social Security Act has added to the state’s obligation in 42 U.S.C. § 1396u-2(b)(5), which requires the state to obtain assurances that the HMO offers an appropriate range of services and access to preventive and primary care services for the population expected to be enrolled and maintain a sufficient number, mix and geographic distribution of providers. 42 U.S.C. § 1396u-2(b)(5).
104. Defendants have violated this duty by failing to ensure that Florida’s HMO contractors offer an appropriate range of services and access to preventive and primary care services for the population expected to be enrolled and maintain a sufficient number, mix and geographic distribution of providers.
105. Defendants’ violation of 42 U.S.C. § 1396u-2(b)(5) has caused and will cause harm to individual Plaintiffs in that they have been, or will be, denied the required healthcare services. The unlawful deprivation of medically necessary care results in the needless infliction of pain, the endangerment of young lives, the disruption of learning, development and growth and the stunting of children's chances to achieve their full potential.
106. Defendants’ violation of 42 U.S.C. § 1396u-2(b)(5) has caused and will cause harm to organizational Plaintiffs in that they have incurred, or will incur, otherwise unnecessary expenditures of organizational resources.
107. Defendants’ violation of 42 U.S.C. § 1396u-2(b)(5) provides a cause of action to Plaintiffs under 42 U.S.C. § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive Plaintiffs of their clearly established rights as defined by 42 U.S.C. § 1396u-2(b)(5).
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108. The injury to Plaintiffs is irreparable and the Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants’ acts or omissions.
Fourth Cause of Action Denial of Basic Child Healthcare Outreach and Information 109. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 78, as though fully set forth herein. 110. The Social Security Act, 42 U.S.C. § 1396a(a)(43), requires defendants to: a. Effectively inform Plaintiffs and their adult caretakers of the
existence of the Medical Assistance children’s healthcare program; b. Effectively inform Plaintiffs and their adult caretakers about the availability of specific child healthcare services under the Medical Assistance EPSDT program; c. Effectively inform Plaintiffs and their adult caretakers of health resources and the benefits of preventive care through both oral and written activities that are aggressive and effective; d. Effectively inform Plaintiffs and their adult caretakers of information in clear and non-technical terms, so that they know what services are available under the Medical Assistance children's healthcare program, where these
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services are available, and how to obtain them; e. Effectively inform Plaintiffs and their adult caretakers of the
availability of scheduling, assistance to help them obtain children's healthcare services; and f. Monitor the provision and quality of services and ensure appropriate coordination of services received from different providers, and agencies, 111. In violation of 42 U.S.C. § 1396a(a)(43), Defendants have refused or failed to effectively inform Plaintiffs and their caretakers of the existence of the Medical Assistance children’s healthcare program, the availability of specific child healthcare services, and related assistance. 112. Defendants’ violation of 42 U.S.C. § 1396a(a)(43) has caused and will cause harm to individual Plaintiffs in that they have been, or will be, denied information about access to children’s healthcare services with resulting harm to their mental and physical health. The unlawful deprivation of medically necessary care results in the needless infliction of pain, the endangerment of young lives, the disruption of learning, development and growth and the stunting of children’s chances to achieve their full potential. 113. Defendants’ violation of 42 U.S.C. § 1396a(a)(43) has caused and will cause harm to organizational Plaintiffs in that they have incurred, or will incur, otherwise unnecessary expenditures of organizational resources. 114. Defendants’ violation of 42 U.S.C. § 1396a(a)(43) provides a cause of action to Plaintiffs under 42 U.S.C. § 1983, inasmuch as Defendants, under color of state law, custom, or
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usage, have deprived, are depriving, and will continue to deprive, Plaintiffs of their clearly

established rights under 42 U.S.C. § 1396a(a)(43), as defined by 42 U.S.C. § 1396d(a) and(r).

115. The injury to Plaintiffs is irreparable and the Plaintiffs have no adequate remedy

at law to prevent the continuing wrong and irreparable injury caused by Defendants’ acts or

omissions.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant the

following relief:

a. Determine that this action may be maintained as a class action on behalf of the

class of children under the age of 21 who now, or in the future will, reside in

Florida and who are, or will be, eligible under Title XIX of the Social Security

Act for EPSDT.

b.

Declare defendants to have violated the children’s health care provision of Title

XIX of the Social Security Act as aforesaid.

c.

Enter an ordered requiring defendants:

•

To promptly furnish to all enrolled and eligible Florida children the

continuing and complete children’s health care to which they are entitled;

•

To provide payments for care and services to health care providers which

are sufficient to enlist enough providers so that care and services are

available to enrolled and eligible children at least to the extent that such

care and services are available to children in the geographic area;

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•

To assure that health maintenance organizations that participate in

Florida’s Medical Assistance program have the capacity, and fully and

effectively use it, to deliver to all enrolled Florida children with them the

timely, continuing and complete health care to which they are entitled;

•

To aggressively establish and utilize cooperative arrangement with other

child-intensive agencies, to seek out, to inform and to arrange for the

timely, complete and continuing children’s health care and services to all

enrolled and eligible Florida children, as well as to secure enrollment, re-

enrollment, extension, maintenance, presumptive eligibility, and ease of

reporting to the children, their families and their providers, and to secure

transportation, scheduling and case management; and

• To take such actions as are proper and necessary to remedy their

violations.

d. Award plaintiffs reasonable attorneys’ fees and costs, as authorized pursuant to 42

U.S.C. § 1988.

e. Grant such other relief as the Court may judge just and proper.

Dated: June 5, 2007

Respectfully submitted,

Stuart Carl Da BOIES, 401 Fort

By: _/s/ Stuart H. Singer__________________ H. Singer (Fl. Bar No. 377325)
E. Goldfarb (Fl. Bar No. 0125891) mien J. Marshall (Fl. Bar. No. 0191302)
SCHILLER & FLEXNER LLP East Los Olas Blvd, Suite 1200 Lauderdale, Florida 33301 Tel. (954) 356-0011 Fax (954) 356-0022 Attorneys for Plaintiffs
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Of Counsel: Thomas K. Gihool James Eiseman, Jr. PUBLIC INTEREST LAW CENTER
OF PHILADELPHIA 125 South Ninth Street, Suite 700 Philadelphia, Pennsylvania 19107 Tel. (215) 627-7100 Fax (215) 627-3183 Louis W. Bullock MILLER KEFFER & BULLOCK PC 222 S. Kenosha Ave. Tulsa, Oklahoma 741120 Tel. (918) 584-2001 Fax (918) 743-6689
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Case 1:05-cv-23037-AJ Document 77 Entered on FLSD Docket 06/05/2007 Page 41 of 41
CERTIFICATE OF SERVICE I hereby certify that on this 5th day of June, 2007, a copy of the foregoing has been served via Notice of Electronic Filing on counsel for Defendants at the following address: Chesterfield Smith, Jr. Senior Assistant Attorney General Chief, State Programs Litigation Office of the Attorney General 850/414-3300 The Capitol, Suite PL-01 Tallahassee, FL 32399-1050 Telephone: (850) 414-3300 Facsimile: (850)-488-4872 Stephanie A. Daniel Senior Assistant Attorney General Office of the Attorney General 850/414-3300 The Capitol, Suite PL-01 Tallahassee, FL 32399-1050 Telephone: (850) 414-3300 Facsimile: (850)-488-4872
_ /s/ Carl E. Goldfarb_________ Carl E. Goldfarb
40

 
 Case 1:05-cv-23037-AJ Document 148 Entered on FLSD Docket 02/14/2008 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO. 05-23037-CIV-JORDANtrORRES

FLORIDA PEDIATRIC SOCIETY/ THE FLORIDA CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS, et al.,
Plaintiffs,
vs.

ANDREW AGWUNOBI, M.D., in his official capacity as Secretary ofthe Florida Agency for Health Care Administration (AHCA), et al.,
Defendants.
----------------------------~/
(PROPOSED] ORDER ON PARTIAL MOTION TO DISMISS COUNT ID OF THE AMENDED COMPLAINT
THIS CAUSE came before the Court upon Defendants' unopposed Partial Motion To
Dismiss Count III of the Amended Complaint. Upon due consideration, and for the good cause
shown, Defendants' motion is GRANTED.

DONE

and

ORDERED

in

Chambers

in

Miami,

Florida,

this.t~l.

day

t:c bf"j "l.cood
of Jtil,, 2007:

.

cc: All counsel ofrecord

Adalberto Jordan United States District Judge

 
 Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 1 of 153
IN THE UNITED STATE!DISTRICT COURT
FO R TH E SO U TH ER N D ISTR IC T O F FL O R ID A
CA SE N O.05-23037-ClV-JORDAN/O 'SULLIVA N
FL O R ID A PED IA TR IC SO C IET Y/T H E FLOR IDA CHA PTER OF TH E AM ERICA N ACADEM Y O F PEDIATRICS;FLO RIDA A C A D EM Y O F PED IA TR IC D EN TISTR Y , IN C .,etal.,
P laintiffs,
VS.
LIZ D U D E K ,et.aI.,
D efendants.
A M EN D ED FIN D IN G S O F FA C T A N D C O N C LU SIO N S O F LA W 1 Thisis a classand representative action in w hich plaintiffs seek declaratory
and injunctive relieffrom Florida officials responsible forthe state'sM edicaid
program . Plaintiffs contend that the Florida M edicaid program has failed to provide Florida children w ith accessto m edicaland dentalcare in accordance w ith the EPSD T, R easonable Prom ptness, Equal A ccess, or O utreach requirem ents
undertheM edicaidAct,42U.S.C.j1396etseq.
1.PR O C E DU R AL H ISTO R Y Thisaction w asinitiated in 2005 by theFlorida Pediatric Society,the Florida A ssociation ofPediatric D entists,and on behalfofa num berofindividualchildren in the M edicaid program by theirparentsorlegalguardians. The suitw asbrought against the Secretary of the Florida A gency for H ealth Care A dm inistration
($$AHCA''),the Secretary of the Florida Department of Children and Family
iA llam endm entsto thepriorfindingsoffactand conclusionsoflaw arein bold type.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 2 of 153

Services(tçDCF''),andtheSurgeonGeneralandagencyheadoftheDepartmentof Hea1th (ççDOH''),in theiroftscialcapacities.z AHCA çtisdesignated asthesingle
stateagency authorized to m ake paym ents''forcovered m edicalgoodsand services underTitle X1X ofthe SocialSecurity Act,to the extentthatsuch services are
providedtoeligibleindividualsby qualified M edicaidproviders. SeeFla.Stat.j
409.902. D CF isresponsible form aking M edicaid eligibility determ inationsunder
Floridalaw. SeeFla.Stat.j409.963. DOH hasbeen delegatedtheresponsibility to administer the Children's M edical Services (ttCM S'') program, which is
responsible for ensuring that M edicaid children w ith special health care needs
receiveM edicaidservices.3 F1a.Stat. jj391.016,391.021(3),391.026.
Plaintiffs' second am ended com plaint alleged various violations of the federal M edicaid statutes,arguing those statutes provide them a private right of
action under 42 U.S.C.j 1983. Specifically,the second amended complaint alleged violations of (1) 42 U.S.C.j 1396a(a)(8) and (a)(10),requiring that
children receive m edical and dental services know n as the Early Periodic
ScreeningDiagnosisandTreatment(CIEPSDT'')(tCEPSDT Requirements''),andto do so with reasonable promptness(Count1)(ssReasonable Promptness'');(2)42 U.S.C.j 1396a(30)(A),requiring thatrates forreimbursing medicaland dental
providersbe set,inter alia,so asto secure accessto care forchildren thatisequal
tothatofotherchildreninthesamegeographicalarea(Count1l)(sçEqualAccess''); (3)42 U.S.C.j 1396u-2(b)(5)regarding l-IM os(Count111);and (4)42 U.S.C. j 1396a(a)(43) requiring thatthe states conduct outreach programs to inform
individuals determ ined to be eligible forM edicaid of the availability of services

2Forshorthand ,

1 w

ill som

etim

es refer to

the agencies as defendants in

thisOrder.

3tttchildren w ith specialhealth care needs'm eansthose children youngerthan 21 years

ofage who have chronic physical,developm ental,behavioral,orem otionalconditions and w ho

also require health care and related services ofatypeoram ountbeyond thatw hich isgenerally

requiredbychildren.''Fla.Stat.j391.021(2)(2009).

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 3 of 153
and to insure such patients requesting those services are able to receive them
(Count1V)(ççoutreach'').
D efendants filed a m otion to dism iss all four counts, arguing that the M edicaid A ctdid notprovide privately enforceable rightsperm itting such actions
tobeenforcedunder42U.S.C.j1983.OnJanuary 11,2007,ldeniedthemotion
to dism iss asto three ofthe fourclaim s,dism issing C ountIIIbecause 1found that
noenforceablerightexistsunderj1396u-2(b)(5).D.E.40.
Follow ing discovery,the issue of class certification w as referred to U .S. M agistrate Judge M cA liley for a reportand recom m endation. O n July 30,2008, M agistrate Judge M cA liley recom m ended that certain additional plaintiffs be perm itted to intervene. Iaffirm ed thatruling asto K .V .,S.C.,K .S.,and S.B .only. D .E.268. M agistrate Judge M cA liley,follow ing briefng and argum ent,found the requirem entsofRule23 satisfied in an extensive reportand recom m endation. D .E.
613. Afterfurtherbriefing and argument,loverruled defendants'objectionsand certified a class for declaratory and injunctive relief consisting of allFlorida
children eligible forEPSD T services underthe M edicaid A ct. D .E.671. A spart ofthatdecision,l found thatatleastone nam ed plaintiffhad standing to advance each ofthe three rem aining countsw ith respectto each ofdefendants. See Class C ertification O rder. D .E .671,p.3-5. D efendants filed a requestforinterlocutory review oftheclasscertification order,w hich w asdenied by theEleventh Circuiton D ecem ber 1,2009.
Priorto trial,defendantsfiled amotion forsummaryjudgmentarguingthat
the M edicaid statutes failed to provide a private rightof action and thatnone of plaintiffs had standing. I denied this m otion on Septem ber 30,2009. D .E.672. Trialbegan on D ecem ber 9,2009,consisted of 94 trial sessions,and ended in January of 2012. Follow ing the close of the evidence, the parties subm itted proposed findings offactand conclusions oflaw and presented closing argum ents

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 4 of 153

on M arch 26-27,2012. These sndingsrelateto defendants'liability and plaintiffs'

entitlementto declaratory relief. Federaljurisdiction existsunder28 U.S.C.j 1331,j 1343(a)(3)and j 1343(a)(4),asthis isa civilaction under 51983 for declaratory and injunctivereliefunderTitle X1X ofthe SocialSecurity Act,42 U .S.C.jj 1396c/seq.4
ll.SUM M ARY O F PARTIES'PO SITIO N S ON ISSUES TRIED

Plaintiffs contend thatthe Florida M edicaid program has failed to provide Florida children w ith access to m edicaland dental care in accordance w ith the

EPSD

T,R

easonable

Prom

ptness, Equal A

ccess ,

or O utreach

requirem

ents

under

the M edicaid A ct.

Plaintiffs allege that a num ber of structural ,

tinancial, and

adm inistrative barriers resultin children notreceiving the access to care to w hich

they areentitled to underfederallaw . Plaintiffscategorize these violationsinto six categories:
First,plaintiffs subm it that Florida's M edicaid reim bursem ent stnlcture is fundam entally inconsistent w ith the Federal M edicaid A ct. Florida determ ines reim bursem ent,plaintiffsargue,by a ttconversion ratio''w ith respectto the setting

of reimbursem ent rates for m ost m edicalprocedures so as to assure ddbudget

neutrality,'' w hile failing to consider whether such rates are suffcient to m eet federalrequirem ents. Plaintiffs contend this is aperse stnlcturalviolation ofthe

guaranteesofaccessto EPSDT services,to receive required care with reasonable

prom ptness,and therightto equalaccessto care. Second,plaintiffscontendthatFloridahasviolated thefederalM edicaid Act

by wrongly term inating thousandsofyoung children from eligibility who were in

fact entitled

to

çscontinuous eligibility.''

M

oreover,w hen

eligibility

w as restored ,

thesechildren w ere often itswitched''to a differentprim ary providerthan the one

4 A sthe

parties have

agreed ,

anadditionalhearingontheissueofinjunctivereliefwillbe

held atalaterdate.

4

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 5 of 153
whom the parenthad initially selected. Plaintiffscontend these issuesaffecttens ofthousandsofM edicaid children each year,who are denied theirrightsto EPSD T servicesand theirrightto receive such care w ith reasonableprom ptness.
Third, plaintiffs argue the children are not receiving the prim ary care to w hich they w ere entitled underthe EPSD T Requirem ents,as evidenced by the fact thathundreds ofthousandsofchildren do notreceive any preventative health care according to the official EPSD T reports subm itted to the federal governm ent. M oreover,the percentage of children receiving certain aspects of preventative health care,such as lead blood screens,w as extrem ely low . Plaintiffs point to
legislativebudgetrequests(ççLBRs'')thatAHCA hassubmitted to thelegislature
calling for increases in reim bursem ent for child health check-ups, blood lead screening and outreach,as evidence thatFlorida'sprogram w asnotin com pliance w ith federallaw .
Fourth, plaintiffs m aintain that M edicaid children face long delays and unreasonable obstacles in receiving access to specialistcare in m any areas ofthe states. Receiving specialistcare,plaintiffs argue,isa federalrightaspartofthe
EPSDT Requirementsunder42 U.S.C.jl396d(r)(5),thereasonable promptness provisions,and under 42 U.S.C. j1396a(a)(43) for children requesting such
services. Plaintiffs point to adm issions m ade by senior AH CA officials that Florida M edicaid recipients face a criticallack ofaccessto specialistcare,surveys ofAH CA area officesreflecting acute shortage ofspecialists,and the testim ony of both prim ary care physicians and specialists with respectto the difficulties and delaysin ûnding specialiststo treatchildren on M edicaid.
Fifth,plaintiffscontend thatFlorida failsto provide children w ith accessto dental care,w hich is one of the EPSD T Requirem ents under the M edicaid A ct. They pointto ofscial govem m entreports show ing Florida w as ranked the w orst state in the country w ith only 21% ofchildren on M edicaid receiving dentalcare.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 6 of 153
Plaintiffs argue that low reim bursem ent rates for Florida dentists w ho accept M edicaid children w ere the principal reason for this failure. A s a result,they argued,m any dentistsrefused to treatM edicaid children.
Sixth,plaintiffscontendthatthestatehasviolated j1396a(a)(43)byusing
an application form thatw asunnecessarily com plex and elim inating the statew ide outreach program designed to infol'm M edicaid-eligible children oftheirrights to services. Plaintiffsargue thatover250,000 Florida children are eligible forbutnot enrolled in theM edicaid program .
D efendants argue that the nam ed plaintiffs lack standing because they did not have a problem receiving needed care and face no reasonable prospect of a
future denialofcare. Defendantsfurtherobjecttothecertification ofa classon
m ultiple legal grounds, including that plaintiffs have failed to dem onstrate
adequate evidence ofinjury. Defendants also contend thatthe relevantfederal
M edicaid statutes do not create enforceable private rights of action. They argue the statuteslack clarity asto them eaning oftçreasonableprom ptness''and ddm edical assistance.''
A s to the m erits, defendants argue no system ic problem s existed in the Florida s4edicaid prograna. D efendants m aintain that children w ho needed care yvere able to receive it. Indeed,defendants argue,plaintiffs failed to prove any
injuriesforsomeclaimssuch asoutreachtotheuninsured,difficultiesinapplying
for M edicaid, and issues w ith continuous eligibility or delays in activation of new borns.
W ith regard to any delays in receiving m edicalcare,defendantsargued that delays w ere not closely connected to defendants'custom or policy,nor that the delaysw ere w idespread and pervasive enough to supporta fnding ofa custom or class-w ide liability. D efendants further contended that plaintiffs' position w as based on overstated statisticaland unreliableanecdotalinform ation.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 7 of 153
D efendants assertthatplaintiffs failed to prove they w ere harm ed by low providerreim bursem ents. They contend thatA H CA 'SpriorLB RS are notadequate evidence that program funding w as so low it violated federal law . D efendants sim ilarly claim thatsurveysofthe state'sproblem s in accessing specialistcare are inaccurate. They argue there isno reliable proofto show the availability ofcare in a geographic region. They fault plaintiffs for failing to provide a quantitative analysisorbenchm arks againstw hich the courtcould com pare accessto M edicaid w ith access to private insurance. lnstead,they argue thatplaintiffs'proofconsists ofisolated anecdotesthatfailto supporttheirclaim s.
In addition,defendantsargued thatthestatenow doesabetterjob through
m anaged care and other initiativesin m aking sure children receive accessto care, claim ing that the record show s abundant outreach by the state and its partners. They argue im provem ents have occurred, such as a recent increase in dental reim bursem ent.
111.T H E N A M ED PLA IN TIFFS A N D STA N D IN G A .LegalR equirem entsfor Standing To prosecute a case as a class action, Sdthe nam ed plaintiffs m ust have
standingg.j'' Vega v.T-M obile USA Inc.,564 F.3d 1256,1265 (11th Cir.2009) (citationsomitted).ForaplaintifftohaveArticlell1standing:
(1)ghemustprovethathehasjsufferedan injury in fact-an invasion ofalegallyprotected interestwhich is(a)concreteandparticularized and (b)actualorimminent,notconjecturalorhypothetical;(2)there mustbe a causalconnection between the injury and the conduct complained of-the injuryhasto befairlytraceableto thechallenged
action ofthe defendant,and notthe resultofthe independentaction of
some third pal'ty notbefore the court;and (3)itmustbe likely,as opposed to merely speculative,thattheinjury willberedressed by a
favorable decision.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 8 of 153

Bloedornv.Grube,631F.3d 1218,1228(11th Cir.2011)(citationsomitted).$$1n
essence,the question ofstanding isw hetherthe litigantisentitled to havethe court

decidethe m eritsofthe dispute orofparticularissues.'' W arth v.Seldin,422 U .S.
490,498(1975). Plaintiffsbearthe burden ofestablishing the elem ents ofstanding. Lujanv.
Defendersof Wildlfe,504 U.S.555,561(1992). Since standing isnotattmere pleadingrequirementl)butratheran indispensablepartoftheplaintiffscase,each
elem ent m ust be supported in the sam e w ay as any other m atter on w hich the

plaintiffbearsthe burden ofproof,i.e.,with the m annerand degree ofevidence
required atthe successive stagesofthe litigation.'' 1d. (citationsomitted).Thus,at
trial, plaintiffs m ust set forth specific facts to prove standing. 1d. A nd if controverted,those facts ttm ustbe supported adequately by the evidence adduced

attrial.''1d.(citationomitted).

W

here

a plaintiff seeks only

prospective relief ,

as is the

case

here, he

m ust

provenotonly harm,butalso t1a çrealand immediatethreat'offuture injury in

ordertosatisfytheçinjury in fact'requirement.'' Koziara v.City of Casselberry,

392F.3d 1302,1305(11thCir.2004)(citationsomitted).lnotherwords,heSsmust
show a suffcient likelihood that he w ill be affected by the allegedly unlaw ful

conductinthefuture.''1d.tç'robelikelyenough,thethreatenedfutureinjurymust

posea irealisticdanger'and cannotbemerely hypotheticalorconjectural. How

likely enoughr,j is a necessarily qualitative judgment.'' Florida State

ConferenceOfNLA.A.C.P.v.Browning,522F.3d 1153,1161(11thCir.2008).

An injury tdmay existsolely by virtue ofSstatutescreating legalrights,the invasion ofwhich creates standingl.l''' Warth,422 U.S.at 500. As 1have

explained in my priornllings,D.E.541and 671,thealleged injuriesinthiscase
are the delay and denialofhealthcare and the lack accessto m edicalservices and

information.D.E.541at6-7.Theseinjuries,1now find,resultedfrom defendants'

8

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 9 of 153
failure to satisfy their statutory obligations underthe M edicaid A ct. Specifically, as w ill be discussed m ore fully below in the findings of fact,defendants have
engagedinseveralunlawfulpoliciesandpractices,including:(1)failingtoprovide childrenwithcontinuouseligibilityasrequiredbylaw;(2)switchingchildrenfrom
oneM edicaid program to anotherw ithouttheirparents'know ledge orconsent;and failing com ply w ith M edicaid's equal access m andate by setting
reim bursem ent rates so low that doctors refuse to participate in the M edicaid program .
Continued exposure to thesepoliciesand practicesis sufficientto satisfy the
injury-in-factrequirement.Toprovearealandimmediatethreatoffutureinjury, plaintiffsneed only show thatttthe anticipated injury (willjoccurwithrinjsome tixedperiodoftimeinthefuture,notthatit(willlhappeninthecolloquialsenseof
soon orprecisely w ithin a certain num ber ofdays,w eeks orm onths.'' Browning ,
522 F.3d at116l.
M oreover,astheEleventh Circuithasrecognized,when futureinjuriesare theresultofan injuriouspolicy,asopposed to random unauthorized acts,ttitis significantly more likely thattheinjurywilloccuragain.'' 31FosterChildren v. Bush,329F.3d 1255,1266(11th Cir.2003);seealsoChurchv.City ofHuntsville, 30 F.3d 1332,1339 (11th Cir.1994)(holding thatplaintiffshad standing where
they çtalleged thatit is the custom ,practice,and policy ofthe City to com m itthe
constitutional deprivations of which they complain''). Because plaintiffs are
unableto dtavoid future exposureto the challenged course ofconductin which the
(governmentj...engagesy''id.at1338,theinjurp in-factrequirementofstanding
issatisfed. Plaintiffs have also dem onstrated the second elem ent of standing-
causation. To prove causation,plaintiffs m ustshow thattheirprospective harm s are ççfairly traceable''to defendants'non-com pliance w ith the M edicaid A ct. See
9

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 10 of 153
Sicarv.Chertoffi54lF.3d 1055,1059 (11th Cir.2008). llere,there isa direct
connection betw een defendants'failure to properly discharge theirstatutory duties
andplaintiffs'injuries.
The Florida legislature designated A H CA Ccas the single state agency authorized to m akepaym entsform edicalassistance and related servicesunder''the
M edicaid Program. Fla.Stat. j 409.902(1). It is responsible for assigning
m anaged care providers and prim ary providers to M edicaid patients. A H CA is
also tasked with setting reimbursementrates to M edicaid providers. 1d.at j
409.908. The reim bursem ents m ustbe tdconsistentw ith efficiency,econom y,and
qualityofcareand (mustbeqsufficienttoenlistenoughproviderssothatcareand
services are available under the plan at least to the extent that such care and servicesare available to the generalpopulation in the geographic area.'' 42 U .S.C .
j 1396a(a)(30)(A).
D CF is responsible ttfor M edicaid eligibility determ inations,including,but not lim ited to, policy, rules, and the agreem ent w ith the Social Security A dm inistration for M edicaid eligibility determ inations for Supplem entalSecurity
lncomerecipients,aswellastheactualdetenuination ofeligibility.'' Fla.Stat.j 409.902(1). In essence,DCF isresponsibleforany changesmadeto aM edicaid
recipients'eligibility status.
DOH,through its Children's M edical Services ((çCM S'') program,must tdgpjrovide essential preventive, evaluative, and early intervention services for
children at risk for or having special health care needs, in order to prevent or
reduce long-term disabilities.'' 1d.atj 391.016(2). ln administering the CM S program,DOH'sdutiesare,amongotherthings,to:(l)ççprovideorcontractforthe provisionofhealthservicestoeligibleindividualsi''(2)çtdeterminethemedicaland
financialeligibility ofindividualsseeking health servicesfrom the program ,''id.at
j 391.026(1), (3), (9); and (3) dsreimburse healthcare providers for services
10

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 11 of 153
renderedthroughthe(CM Sqnetworkl.q''1d.atj391.045(1). LikeAHCA,DOH
m ust establish reim bursem ents rates that w ill encourage providers of health
servicestoparticipateinM edicaid.See42U.S.C.j1396a(a)(30)(A).
A llthree defendantsbearthe responsibility ofinform ing M edicaid recipients
oftheir rights to certain services under the M edicaid program. See id.atj 1396a(a)(43)(A).
The factualrecord indicatesthatplaintiffs'injuries are fairly traceable to
defendants'failure to satisfy these statutory obligations. 1find thatseveralofthe nam ed plaintiffs experienced delay in receiving,or com plete denial of,m edical services because defendants did not provide continuous eligibility as required by law . D efendants have also en-oneously ttsw itched''som e of the nam ed plaintiffs from one M edicaid plan to another w ithoutthe patient's know ledge or consent, w hich also caused delaysordenialsin theprovisioning ofhealthcare.
I further find thatplaintiffs experienced insufficientaccessto m edicalcare because A H CA 'S and D O H 's reim bursem ent rates are so low that they failçûto enlistenough providers so that care and services are available ...atleastto the
extentthat (theyj are available''to those with private insurers. 42 U.S.C.j 1396a(a)(30)(A). M oreover,1find thatdefendants did notinform plaintiffs of
servicesthatare available to them ,w hich resulted in severalofthe nam ed plaintiffs being unable to take advantage ofm edicalservicesto w hich they are entitled. The
evidence presented at trial makes clear that plaintiffs' injuries are directly
attributable to defendants'unlaw fulconduct. W ith respectto redressability,çtthere is ordinarily little question''thatw here
government action has caused a plaintiffs injury,ç1a judgment preventing or
requiring theaction willredressit.'' Lujan,504 U.S,at561-62. Redressability
here is inherentin a declaration,and ifnecessary,an injunction,againstfuture
term inationsofcontinuouseligibility orsw itching,orrequiring the elim ination of

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 12 of 153
barriers to enrollm ent and receipt of service, such as in the Florida A CCESS application orlow reim bursem entrates.
Previously,in a pre-trialruling,I found thatplaintiffs do nothave standing
tobringCount11(lackofaccesstomedicalcare)againsttheheadofDCF because
they failed to m eet the causation requirem ent. D .E . 541 at 8. D CF has no authority to setorm odify M edicalreim bursem entrates. By law ,the responsibility
forsettingsratesresidesinAHCA andDOH.SeeFla.Stat.jj409.908;391.045.
1furtherfound thatplaintiffsdo nothave standing to sue D O H forpurposes ofCountIV . D .E.541 at 18. D OH hasengaged in extensive outreach activitiesto ensure thateligible children living in each ofthe nam ed plaintiffs'countiesw ere referred to CM S fora determ ination ofclienteligibility.
In addition,l found thatthree nam ed plaintiffs have standing to assertthe
claimsallegedinthiscase.lconcludedthat:(1)S.M .hasstandingtoassertCounts 1againstAHCA and DCF and CountIV againstAHCA;(2)J.S.hasstandingto raise Count11againstAH CA ;and(3)T.G.hasstandingtopursueCountsIand11
againstD O H .D .E .541and 671. G enerally,if atleastone nam ed plaintiffhas standing to asserteach ofthe
claim s raised,a courtneed not analyze w hether the rem aining nam ed plaintiffs
have standing. SeeFlorida cx rc/.Atty.Gen.v.U S.Dep'tofHealth ttHuman Servs., 648 F.3d 1235, 1243-44 (11th Cir.2011) (finding that ttltlhe law is
abundantly clear that so long as at least one plaintiff has standing to raise each claim - as isthe case here- w e need notaddressw hether the rem aining plaintiffs
have standing''and collecting cases.),aff'd inpart,rev'd inpartsub nom.Nat'l Fed'noflndep.Bus.v.Sebelius,132S.Ct.2566(2012).
To preserve an adequate record for appeal,how ever, l w ill at this tim e analyze standing forallthenam ed plaintiffsin thiscase.
B .T he N am ed Plaintiffs
12

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 13 of 153
Previously,l ruled that S.M .had standing to proceed against A H CA and D C F. D .E .541 at 4-9. I continue to adhere to m y ruling,exceptw ith respectto C ountIV againstD C F. l find thatS.M .no longer has standing to
pursueCountIV againstDCF given therecentexpiration ofj409.9122(2)($
of the Florida Statutes, w hich delegated to D C F certain outreach and inform ationalresponsibilities.
S.M . w as dssw itched''from one M edicaid program to another w ithouthis m other's know ledge or consent. Because his doctor w as nota participantin the new M edicaid plan,S.M .w as unable to obtain his EPSD T screening,a critical appointm ent,at 18 m onths ofage. S.M .'S screening w as delayed fortw o m onths w hile his m other attem pted to switch him back to his initialplan. This delay exposed S.M .to health risks.
O n another occasion,S.M .w as unable to take a lead blood screening test because the laboratory w ould take three hoursto reach by bus,round trip. S.M .'S m other w as unaw are thatshe w as entitled to free transportation services through M edicaid. Furtherm ore,S.M .'Sm otherw asneverinform ed thatshe w asentitled to dentalservices. S.M .'Sdoctorw asunable to recom m end a dentistthatw ould treat S.M . S.M .'Sm othercalled severaldentistsw ho purported to acceptM edicaid but wasunableto findadentistwillingtotreatherson.
S.M .'Sinjurieswere theresultofdefendants'failure to comply with their
statutory duties and, due to his continuous exposure to defendants' policies and
practices,issubstantially likely toexperiencethesetypesofinjuriesinthef'uture.
A s such,he hasstanding to assertC ountIagainstD C F and A H C A and C ount IV againstA H CA only.
L .C .has standing to assert Count11againstA C H A . L.C .'Spsychologist recom m ended that he receive intense psychological services, including w eekly play therapy,because ofhis severe behavioralissues. H is psychiatristw ould not

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 14 of 153
provide the therapy because she did notacceptM edicaid. L.C .'Sm othertook him
to PeaceRiverCenter(llpeaceRiver''or$$PRC'')>theexclusiveM edicaidmental
health providerin L.C .'Sarea. PRC ,how ever,w asunable to provideplay therapy ,
or any other type of therapy, on a w eekly basis because the clinic had an unreasonable caseload.
L.C .'S m otherhad to pay out-of-pocketto provide her son w ith the proper care. A H C A failed to satisfy its duty to ensure that a sufficient am ount of psychologists thataccepted M edicaid w asavailable in L.C .'sarea. A sa result, A H C A is responsible for L .C .9s lack of access to m edical care. T here is a realistic danger thatL .C .w illnothave equalaccess to psychiatric services in the future ascom pared to those thatare privately insured because A H CA has a policy ofsetting inadequate reim bursem entrates.
K .K .hasstanding to bring C ountIagainstD C F and A H C A and C ounts 11and IV againstA H CA . A fterdiscussing the advantagesof Stayw ellw ith one ofitsrepresentatives,K .K .'Sm other,A .D .,voluntarily sw itched K .K to Stayw ell's insurance plan. Subsequently,A .D .took K .K .to the em ergency room because his earstarted to bleed. The em ergency room advised A .D .to take K .K .to his thencurrentEN T specialist,D r.John D onaldson,the follow ing day so thatK .K 's ear could bedrained.Upon m aking an appointm entw ith theENT specialist,A .D .was infonned thatD r.D onaldson did notacceptStayw ell'sinsurance.
A .D .contacted Stayw ellto inquire aboutan EN T specialistin her area and w as referred to a Stayw ell-affiliated doctor in Sarasota, w hich is located approxim ately tw o hours aw ay from her hom e nearFortM eyers. D r.D onaldson agreed to seeK .K .laterthatday,atthe risk ofnotreceiving paym ent. Stayw elldid nothave a suffcient am ountof EN T specialists on its panelin the m etropolitan area of Fort M yers. T his is a result of A H C A 'S failure to set suffk ient
reimbursementratesasrequired by42U.S.C.j1396a(a)(30)(A).

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 15 of 153
ln anotherexam ple,in 2010 K .K wasnoteligible forM edicaid becausehis
mother'sincomeexceededeligibilityrequirements.ln2011,A.D.lostherjoband
once again enrolled K .K .in M edicaid.A .D selected M edipass as her son'splan. W ithout A .D .'S know ledge or consent,how ever,M edicaid assigned Stayw ell as K .K.'Sprovider.Staywellwould notapproveK .K .forhisthen-currentm edication, V yvance,a drug necessary to controlhisbehavioralissues. Before Stayw ellw ould approve theprescription,itrequired thatK .K firsttry and failon A dderall.
A fterK .K .took A dderall,his conductsignificantly deteriorated,w hich had an adverse effecton his perform ance atschool. Once A .D .w as able to getK .K reassigned to M edipass,he w asable to resum e theproperm edication. AH CA and D CF'S failure to properly assign K .K .to the correctM edicaid plan resulted in an unreasonable delay in receiving the appropriate prescription. K .K is likely to
experience these injuries again because defendants have switched M edicaid
patientsw ithouttheirconsent. N .G .also hasstanding to pursue C ountsland 11againstD O H . M s.R ita
G orenflo,N .G .'s adoptive m other,tried to obtain an em ergency appointm ent for N .G .becausehe had severepain in hisear. ltw asim perative forN .G.to receive treatm entim m ediately due to his com prom ised im m une system ,w hich m ade him susceptible to infection. lnitially,M s.Gorenflo w as inform ed that the next available appointm ent w ould be in six m onths. A fter num erous phone calls,an EN T tlnally treated N .G .five days after M s.G orenflo sought an appointm ent. Thisunreasonabledelay in theprovision ofhealth servicesplacedN .G .'Shealth at signifcantrisk. Justasthe othernam ed plaintiffs in this case,N .G .is likely to suffer this type of delay in the future because D O H frequently fails to provide sufficient specialty services to M edicaid patients. Additionally,DO H fails to provide M edicaid patientsw ith equalaccessto care because privately insured
15

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 16 of 153
patients suffering from the sam e sym ptom sare able to see an EN T either the sam e day or atthe Iatest,the follow ing day.
In m y prior ruling on J.S.,I focused on w hether she had standing to bring Count 11 against A H CA . l tind again that she does. The evidence, sum m arized below in Part V l, Section E, show s that children on M edicaid throughout Florida have difficulty accessing specialty care,and often m ustw ait considerable periods or travel signifcant distances to obtain such care. J.S.'S experiencesw ith M edicaid areno different.
Three tim es in the last 10 years or so,J.S.has broken her ankle or wrist, goneto the em ergency room ,and been directed to see an orthopedistforfollow -up care. In all three instances, she had diffculty, in varying degrees, locating an orthopedist w ho w ould agree to treat her as a M edicaid patient. The evidence adduced attrialshow sthatJ.S.facesa ttrealisticdanger''ofnotbeing able to obtain equalaccessto specialty care,ascom pared to children w ith private insurance. See
Babbittv.United Farm WorkersNat'1Union,442 U.S.289,298 (1979). M any
specialty providers currently do not participate in Florida M edicaid or sharply curtail their participation because of A H C A 'S low reim bursem ent rates.
Likew ise,N .V . is likely to experience future delays or denialof m edical services and thus has standing to raise Counts Iand 11 againstA H CA . N .V .w as diagnosed w ith Shw achm an D iam ond Syndrom e, w hich causes pancreatic insufficiency and t00th decay. N .V .'S dentist refused to continue treating him because he needed caps. The dentistinform ed N .V .'Sm otherthatM edicaid w ould notpay forareplacem entifhelosta cap and itw ould be difficultto find anyone to perfonu the w ork through M edicaid. N .V .'S m other called severaldentists in her area but did not find anyone w ho w ould accept M edicaid to perform the w ork.
16

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Eventually,onemonth later,shew asreferredto adentisttwohoursfrom herhom e thatw asw illing to acceptM edicaid.
ln anotherinstance,N .V .experienced trouble com prehending in schooldue tohisillness.N.V.w asrefen-edtotwoneuropsychologistswhoacceptedM edicaid butw as not able to be treated untiltw o m onths afterhis m other firstsoughtthe initialappointm ent. A gain,A H CA 'Spractice ofreim bursing doctorsatlow ratesis the cause for these delays in the receiptof m edicalcare. As long as N .V .is eligible for M edicaid,there is a substantial likelihood that he w ill not receive tim ely care.
1also find thatJ.W .hasstanding to bring Count1againstA H CA and D CF.5 J.W .'S oncologist recom m ended a CT scan forthe purpose of detecting w hether J.W .'S cancer had spread from his leg to his neck. A H CA and D CF sw itched J.W .'S prim ary care physician, w hich prolonged J.W .'S ability to obtain authorization for the C T scan. Five w eeks after the initial request for authorization,the oncologistconducted theCT scan. The scan revealed thatJ.W .'S cancerhad spread and infiltrated to his spinalcord. A sexplained above,AH CA and D CF are responsible forim propersw itching. J.W .islikely to be,and indeed has been, sw itched again and experience signiticant delays in the provision of healthcare.
I previously found thatT.G .had standing to assertCounts land 11against
DOH.D.E.54lat13-17.T.G.isnow deceased,however,andisnolongersubject to futureinjury.SeeBowenv.FirstFamilyFin.Servs.,Inc.,233F.3d 1331,1340 (11th Cir.2000)(findingthatplaintiffsonly havestanding ifthey can allegethe
5Previouslj,defendantsarguedthatJ.W .'Sclaimsweremootbecausehewastemporarily ineligibleforMedlcaid basedon thefactthathewasincarceratedin ahighrisk facilitj in
Novem berof201l. Sce D.E. 1062. Since filing thism otion,the parties have filed aJoint stipulation offactsstating thatJ.W .w asreleased from the high risk facility on April16,2012 andwassubsequentlyapprovedforM edicaid.SeeD .E.1190.Thus,J.W .'Sclaim sarenotm oot.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 18 of 153
possibilityofafutureinjuly).Becausethisisanactionforprospectivereliefonly,
T.G .doesnothave standing and isdism issed asa nam ed plaintiff. l also find thatN .A .doesnothave standing to sue defendants in this case.
N .A . has a history of significant respiratory issues and aw oke one m orning coughing and congested. N .A .'S m other, C .R ., called N .A .'S pediatrician to schedule an appointm ent but w as told that N .A .had been sw itched to a new pediatrician under a different M edicaid plan. A lthough defendants im properly sw itched N .A .,he did notsufferany m eaningfuldelay in receiving care asa result of the reassignm ent. N .A .'S pediatrician agreed to treathim the sam e m orning, despitethe insurance issues. Sim ilarly,laterthatday C.R.had to pay $70 out-ofpocketbecause the pharm acy w asunable to process herM edicaid num ber. C .R ., how ever,wasreim bursed the nextbusinessday once the problem wasresolved. N .A .did notexperience any delay ordenialofservicesbecausehew assw itched to anotherprovider. A ccordingly,he does nothave standing and is dism issed as a nam ed plaintiffin thiscase.
In sum ,ltind the follow ing nam ed plaintiffshave standing: * S.M .has standing to assert C ount I against A H C A and D CF and C ountIV againstA H CA ; * L.C.hasstanding to assertCount11againstAH CA ; @ K .K has standing to assert C ount I against D CF and A H C A and C ounts11and IV againstA H C A ; * N.G .hasstanding to assertCountsland 11againstDO H ; * J.S.hasstanding to assertC ount11againstA H C A ; * N .V .hasstanding to assertCountsIand 11againstA H CA ;and

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* J.W .hasstanding to assertCount1againstA H CA and D C F.6

lV .C ER T IFIC A TIO N O F TH E C LA SS

A s noted earlier,1 certified a class under Rule 23 for declaratory and

injunctivereliefconsisting ofçtallchildrenundertheageof21whonow,orinthe

future

w

ill, reside

in

Florida

and

w

ho

are ,

or w

ill be, eligible

under

T

itle

X

1X

of

Social Security A ct for Early Periodic Screening D iagnosis and Treatm ent

Services.''

D .E.671 at8-9.

W

ith

the benefit of a lengthy

trial ,

having

received

substantial docum

entary

and

testim

onial evidence ,

1 reaffirm

m y class certification

ruling.

First,asto num erosity,Ifind thatbetw een October2009 and the tim e ofthe

trial's conclusion in 2012,anyw here betw een 1.5 m illion and 1.7 m illion children w ere enrolled in the M edicaid program throughoutFlorida. A ccordingly, nothing
presented during thetrialaltersmy earlierconclusion thatEjoinderofunknown
individualplaintiffs is certainly im practicable,''ifnotim possible.See Jack v.A m .

Linen Supply Ct?.,498F.2d 122,124 (5th Cir.1977)(finding numerosity existed

for

a

proposed

class

thatincluded

unknow

n ,

future black em

ployees).SeealsoFed.

R.Civ.P.23(a)(1).
Second, as com m onality, throughout the trial, plaintiffs presented

evidence regarding the severallegalquestionsthatare com m on to the entire class

and thatM agistrate Judge M cA liley identified in herreportand recom m endation .
These include w hether defendants are com plying w ith their obligationsunder the

federalM edicaidActtoprovideeligiblerecipientsw ith reasonably prom ptmedical

care and services, equal access to such care and services, and outreach and
inform ation aboutcare and services. Vega, 564 F.3d at 1268 (Commonality is

6

I do

not see

the

need

to

address

the

standing

of the

Florida

Pediatric

Society ,

the

Florida

Chapter of the Am erican Academ y of Pediatricians, or the Florida Academy of Pediatric

Dentistry atthistim e.1,how ever,reservetherightto do so in the futurein arevised order.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 20 of 153
satisfied when there isonequestion oflaw orfactthatiscom m on to theclassasa
whole.).SeealsoHaitl'anRefugeeCtn,Inc.v.Nelson,694F.Supp.864,877(S.D. Fla.1988)(slclassactionsseekinginjunctiveordeclaratoryrelief...bytheirvery naturepresentcommonquestionsoflaw orfact.'')
Third,asto typicality,the evidence presented attrialdoesnotdisturb m y
earlierconclusion thatthe claimsand alleged injuriesoftheindividualplaintiffs
are typicalofthe classm em bers. The individualplaintiffsdescribed theirinability to accessprom ptly orw ithoutgreatdifficulty m edicalservicesin a variety ofareas of care throughout Florida,w hich they attribute to defendants'adm inistration of Florida's M edicaid program . Even though their individual experiences in accessing care and services are varied,typicality is not defeated because they all share claim s thatthey have been denied reasonably prom pt and equalaccess to m edicalcare and services due to defendants'failure to com ply w ith their federal statutory obligations in adm inistering Florida's M edicaid program . See Prado
Steiman ex.rel.Prado v.Bush,221 F.3d 1266, 1279 n.14 (11th Cir.2000) (citationsomitted)(d$Thetypicality requirementcan çtttbe satisfied even ifsome
factualdifferences existbetw een the claim s ofthe nam ed representatives and the
claim softheclassatlarge.'').Thetçstrong similarity ofgthesellegaltheories... satisfliesqthetypicality requirementdespite ganyqsubstantialfactualdifferences.''
1d. Fourth,the classnam ed plaintiffsand class counselcontinue to rem ain able
toadequately representtheinterestsofal1classm em bers. Finally,nothing thatwaspresentedduring thecourseofthetrialchangesm y
conclusionthatthiscaseistheprototypicalcaseforRule23(b)certificationinthat
defendantsare alleged to haveççacted orrefused to acton the groundsthatapply
generally to the class, so that the final injunctive relief or corresponding

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declaratoryrelief(wouldbejappropriaterespectingtheclassasawhole.''SeeFed. R.Civ.P.23(b)(2).
V .A PPLIC A B LE L EG A L STA N D A R D S
A. CivilRightsActionUnder42U.S.C.j1983 Inrelevantpart,42U.S.C.j 1983,providesaprivatecauseofactionagainst
state actors w ho deprive an individualof (dany rights,privileges,or im m unities secured by the C onstitution and law s''ofthe U nited States. Itis w ell-established
thatj 1983providesaremedy forviolationsoffederalstatutoryrightsaswellas constitutionalrights.SeeM ainev.Thiboutot,448U.S.1,4(1980).Tomaintaina causeofactionunderj 1983 forviolationsoffederalstatutory rights,aplaintiff
first m ust establish that the pertinent federal statute provides an individually
enforceableright. SeeBlessing v.Freestone,520U.S.329.340(1997);Gonzaga Univ.v.Doe,536U.S.273,283-85(2002).
A s I have previously explained in m y prior orders, a courtm ust analyze three factors in deciding w hether the federal statute in question creates an enforceableindividualright:
First, Congress m ust have intended that the provision in question benetstthe plaintiff. Second,the plaintiff m ustdem onstrate thatthe right assertedly protected by the statute is not so ddvague and
amorphous''thatitsenforcementwould strain judicialcompetence.
Third,the statute m ustunam biguously im pose abinding obligation on the States.ln other w ords,the provision giving rise to the asserted rightm ustbe couched in m andatory,ratherthan precatory,term s.
Blessing,520 U.S.at34l(citationsomitted). The Supreme Courtsubsequently
clarified in Gonzaga that as to the first factor the statute m ust contain an
ççunambiguously conferred right''to supporta cause of action under j 1983.
G onzaga,536 U .S.at 283. The statutory provision m ust have çtrights-creating''
21

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language,id at287,have an individual,notaggregate,focus,id.at288,and be ççphrased in tennsofthe personsbenefitted.''1d.at284.
B . M edicaid Fram ew ork tçM edicaid is a cooperative federal-state program through w hich the Federal governm entprovidesfinancialassistanceto Statesso thatthey furnish m edicalcare
to needy individuals.'' Wilder P-tz.Hosp.Ass'n,496 U.S.498,502 (1990). Specifically, 42 U.S.C. j 1396a requires that states make medical services
available to categorically eligible needy children and adults. A state's participation in the M edicaid program isvoluntary,butifa state chooses to participate,itm ust com ply w ith the requirem ents outlined in the M edicaid statute.1d. ln order to qualify for federalM edicaid funds,a state m ustsubm ita state M edicaid plan to a
federalagency,theCentersforM edicare& M edicaid Services(CM S),within the DepartmentofHealthandHumanServices.SeeDouglasv.Indep.Living Ctr.ofs. Ca1.,lnc.,132 S.Ct1204,1208 (2012). Thatplan mustcomply with federal
M edicaid statutory and regulatory requirem ents.1d. Certain provisionsofthe federalM edicaid statutes are relevanthere. First,a
participating stateplan form edicalassistancem ust: provide that allindividuals w ishing to m ake application for m edical assistance under the plan shall have opportunity to do so, and that such assistance shallbe furnished w ith reasonable promptness to all eligible individuals.
42 U.S.C. j 1396a(a)(8) (emphasis added) (the ççReasonable Promptness'' provision).
Second, states m ust provide isfor m aking m edical assistance available,
includingatleastthecareand serviceslistedinparagraphs(1)through (5)...(of jl1396d(a)ofthistitle,to .allindividuals(who areeligiblel.'' 42 U.S.C.j 1396a(a)(10)(A).Inturn,j1396d(a)(4)(B)definesççmedicalassistance''toinclude
22

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içearly and periodic screening,diagnostic,and treatment services gas defined elsewherein thissection)forindividualswho are eligibleundertheplan and are underthe ageof21(.j'' The specificEPSDT servicesthatmustbeprovided are listedat42U.S.C.j1396d(r).
Third,a stateplan m ustalso:

provide such m ethodsand proceduresrelating to theutilization of,and

the paym entfor,careand servicesavailableunderthe plan ...asm ay

be necessary

to assure that paym ents are consistent w ith

efficiency,econom y,and quality of care and are sufficient to enlist

enough providersso thatcare and servicesareavailableundertheplan

at least to the extent that such care and services are available to the

generalpopulation in the geographic area.

42U.S.C.j1396a(a)(30)(A)(thetçEqualAccess''provision). Fourth,astateplan mustcontainprovisions(dgijnformingallpersonsinthe
State w ho are underthe age of21and w ho have been determ ined to be eligible for m edical assistance . . of the availability of early and periodic screening, diagnostic, and treatm ent services and the need for age-appropriate
immunizations against vaccine-preventable diseasesg.l'' 42 U.S.C. j 1396a(a)(43)(A)(theççEffectiveOutreach''provision).
W ith thisfram ew ork in m ind,Irevisitw hethertheseprovisionscreate enforceable rights.
1. R easonable Prom ptness & M edicalA ssistance C lauses:42 U .S.C .
jj1396a(a)(8)and(a)(10)
a. j 1396a(a)(8)
C ount I of plaintiffs' com plaint alleges a violation of the ççreasonable
promptness''clauseofj 1396a(a)(8).TheEleventh Circuit,in Doev.Chiles,136 F.3d709,719(11thCir.1998),expresslyheldthatj1396a(a)(8)providesafederal rightto reasonably promptprovision ofassistance,which isenforceableunderj
23

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 24 of 153
1983.Looking to the firstfactorofthe Suprem e Court's three-factorB lessing test,
theEleventh Circuitnoted thattheplain languageofj 1396a(a)(8)'sreasonable
promptness clause w as diclearly intended to benefit M edicaid-deligible
individuals.''' 1d.at715. Itfurtherconcluded thatj 1396a(a)(8)'srequirement
that ççassistance . . be furnished with reasonable prom ptness to all eligible individuals'' presented <ça sufsciently specific and definite standard'' that w as
çtreadily susceptible to judicialassessment,''thus satisfying Blessings'second
requirem ent. 1d.at717. Finally,in holding thatthe reasonable prom ptnessclause
metthe third factorofthe Blessing test,the Eleventh Circuitnoted thatttltjhe languageofthestatute gwasjundoubtedlycastinmandatory ratherthanprecatory termsl,l'' and that tça state's receipt of federal M edicaid funds is expressly conditioned onitscompliancewith provisionsofj 1396a.''1d.at718.
D oe is of course binding precedent.W hether D oe has been so eroded by
Gonzaga thatitshould be overruled isforthe Eleventh Circuitto decide. M yjob, asadistrictjudge,isto follow Doeatthistime. See U S.Valladares,544 F.3d 1257,1264-65(11thCir.2008);UnitedStatesv.Baxter,323Fed.App'x830,831 (11th Cir.2009)(EtBecauseM oore(apriorEleventhCircuitdecisionjhasnotbeen
overruled by thisC ourtsitting en banc orthe Suprem e C ourt,the districtcourtw as
boundto follow itsholding.''). Nevertheless,1do notbelievethatDoehasbeen
called into doubtby Gonzaga.
Asseveraldecisionsfollowing Gonzagamakeclear,ttgjj1396a(a)(8)meets
the standardssetforth in G onzaga''asw ell. Rom ano v.G reenstein,721 F.3d 373,
379 (5th Cir.2013). AstheFifth Circuitnoted in Romano,the language ofj l396a(a)(8)isindividually focused. 1d. ltis concerned with whethermedical
assistance hasbeen ftlrnished in a reasonably prom ptm annerto a particular class ofindividuals thosewho areM edicaid-eligible. 1d. itltdoesnotdspe4k only in term sofinstitutionalpolicy and practice,'nordoesithave an taggregate focus.'''

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 25 of 153
1d (quoting Gonzaga,536 U.S.at288). The First,Third,Fourth,and Sixth Circuitshavesimilarly held,post-Gonzaga,thatj 1396a(a)(8)providesafederal rightthatisenforceableunderj 1983. SeeBryson v.Shumway,308F.3d 79,89 (1stCir.2002);Sabreecxrel.Sabreev.Richman,367F.3d 180,193-94(3d Cir. 2004);Doe v.Kidd,501 F.3d 348,357 (4th Cir.2007);Westside M others Olszewski,454F.3d532,539-41(6th Cir.2006).
1 therefore conclude that the içreasonable Promptness''provision of j 1396a(a)(8)providesafederalrightthatisenforceableunderj 1983.
b. j 1396a(a)(10) Count1also allegesa violation ofj 1396a(a)(l0),which providesthata
State plan for m edical assistance m ust provide ttfor m aking m edical assistance
available,including atleastthecareand serviceslisted inparagraphs(1)through (5),(17),(21),and (28)ofgjq1396d(a)(,q''to ççallindividuals''meeting specifed financialeligibility standards. TheEleventh Circuithasnotaddressed whetherj l396a(a)(10)providesafederalrightthatisenforceableunderj1983.1therefore
draw upon the Suprem e C ourt's Blessing test, as m odiûed by G onzaga, to
determine whether j 1396a(a)(10) provides plaintiffs with a federal right enforceablebyj 1983.
The first prong ofthe Blessing test instructs that I look to whether j 1396a(a)(10)revealsacongressionalintentto createan individualized right.The
Suprem e C ourt in Gonzaga clarised that nothing short of an unam biguous
conferredrightcansupportacauseofactionunderj 1983. Gonzaga,536U.S.at
283. The appropriate inquiry,the Suprem e Courtnoted,is tçw hether ...Congress intendedto conferindividualrightsupon aclassofbeneficiaries.''1d.at285.This requiresthatastatutebephrased in term softheperson orpersonsbenefited.f#.at 284. Asan exam ple ofsuch çlrights-creating''language in a statute,the Suprem e C ourtcited Title V Iofthe C ivilR ights A ctof 1964 and Title IX ofthe Education

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 26 of 153
Amendm entsof 1972,which were found to create individualrightsbecausethey w ereplnrased dçw ith an unm istakable focuson the benefited class.''1d.
ln my opinion,j 1396a(a)(10)'s requirementthat medicalassistance be
m ade available to allindividualsthatm eetits eligibility standards isphrased in term s of the individuals benefited. Its focus is on m aking m edicalassistance available to a specifc classofbeneficiaries,nam ely those w ho,like plaintiffshere, satisfythefinancialeligibility standardsitsetsout.
D ecisions from the Third, Fifth, and N inth C ircuits support m y determ ination. See Sabree,367 F.3d at 190;S.D .cx rc/.D ickson v.H ood,391
F.3d 581,602-03(5th Cir.2004);Watson v.Weeks,436F.3d 1152,1159-60(9th Cir.2006).lndeed,theFifthCircuitstatedthatthelanguageof51396a(a)(10)ttis
precisely the sortof trights-creating'language identised in G onzaga ascriticalto dem onstrating a congressionalintentto establish a new right.'' D ickson,391 F.3d
at 603. The Third Circuit similarly concluded that ççit (isq diffcult,if not
im possible, as a linguistic m atter, to distinguish the im port of the relevant language CA State Plan m ustprovide' from the iN o person shall'language of
TitlesVland1Xg,q''Sabree,367F.3dat190.lnotedearlier,TitlesV1andIX were
cited by the Suprem e Court in G onzaga as exam ples of statutes tçw ith an
unmistakablefocusonthebenefitedclass.''1d.at187(emphasisomitted).
M oving on to the second prong oftheBlessing test,1concludethatthe rights
soughtto beenforced by plaintiffsarenottsso vague and amorphousthat(theirq enforcement would strain judicial competence.'' Blessing, 520 U.S. 340-41.
Plaintiffs seek to require thatdefendantsm ake available the (tm edicalassistances''
including EPSDT services,that they are entitled to under j 1396a(a)(10) as
individuals satisfying the specifed financial eligibility standards listed. The
26

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provision carefully details the specific services to be provided,and the services soughttobeenforcedbyplaintiffsarespecifcand enum erated.7
Finally,the third prong of the Blessing test is easily satisfed because
l396a(a)(10)unambiguously imposeson the participating statestherequirement thatthey provide formaking medicalassistance available. See j 1396a(a)(10) (çsstating that çtgal State plan for medicalassistance mustprovide for making
medicalassistanceavailable''). Accordingly,Iconcludethatj 1396a(a)(10)providesa federalrightthatis
enforceable under j 1983. 2.EqualAccess:42U.S.C.j1396a(a)(30)(A)
Statesarerequired,underj 1396a(a)(30)(A),toprovideadequatefundingto
ensure thatM edicaid beneficiarieshaveequalaccessto m edicalservicesand care
asavailable to the generalpopulation in theirgeographic area.Plaintiffshave sled
suitunderj1983becausedefendantshaveallegedlyfailedtosatisfythatmandate. Atissueiswhetherj 1396a(a)(30)(A)confersaprivaterightofaction.
1Totheextentdefendantsarguethatj 1396a(a)(10)isnotunambiguouslyworded,as
requiredtoconferaprivatelyenforceablefederalright,becausethetenntçmedicalassistance''is
ttvagueand amorphous,''Idlsagree.Itlndtheterm tobesuffciently definedin j 1396d(a)to satisfythesecond prong ofBlessing. SeeDoe,136 F.3d at711(upholding aclaim thatthe FloridaDepartmentofHealth & Rehabilitative Servicesviolated j1396a(a)(8)by failing to
providem edicalassistance,whichconsistedofthetétherapies,training andotheractivetreatment
towhich gtheplanparticipantswereqentitled'').lrecognizethatacircuitsplitexistsconcerning
whetherétm edicalassistance''encompasses only a rightto paym entfor the care and services
listedinj 1396d(a),orbotharighttopaymentandarighttothecareandservicesthemselves. CompareKatieA.exrel.Ludinv.fosAngelesCa/y'.,481F.3dat1154,withEqualAccessforEl Paso,Inc.v.Hawkins,562F.3d724,728-29(5th Cir.2009)(holdingthatmedicalassistance means payment for medical services); Westside Mothers, 454 F. 3d at 540-41 tsamel; Bruggeman cx relBruggeman v.Blogojevich,324 F.3d 906,910 (7th Cir.2003) tsamel; (dictum)OKAAP,472 F.3d at1214 (same). Butthatdefendants'argumentregarding what
exadlyiscoveredbythetenntlm edicalassistance''m oreaccurately addressesthemeritsofwhat plaintiffswould need to show to establish thattheirrightshavebeen violated. Accordingly,I addressthisargum entfurtherin the conclusionsoflaw .

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ln 1990,theUnited StatesSupremeCourtheld thathealthcareprovidershad a private rightofaction to challenge the m ethod by which the statesreimbursed them underthe M edicaid Act. See W ilder,496 U .S.at498. The Courtfound a private right of action w ithin the textofthe Boren A m endm ent,w hich required
states to
provide ...forpaym ent ...ofthe hospitalservices,nursing facility services,and servicesin an interm ediate care facility forthe m entally
retardedprovidedundertheplanthroughtheuseofrates(determined
in accordance w ith m ethodsand standardsdeveloped by the State ...
)which the State.#nJ5',and makes assurances satl'sfactory to the
Secretary,are reasonable and adequate to m eetthatcosts which m ust
beincurredbyey ciently andeconomically operatedfacilitiesinorder
to provide care and services in conform ity w ith applicable State and Federal law s, regulations, and quality and safety standards and to assure thatindividualseligible form edicalassistance have reasonable access...to inpatienthospitalservicesofadequate quality.
1d.at502-03(emphasisinoriginal).Healthcareproviderscouldsueunderj1983
to enforcethe Boren A m endm ent,theCourtheld,because they w ere the Ssintended beneficiaries''ofaprovisionthatimposed aççbindingobligation''on statestoadopt
reasonablerates. See id.at510. Since W ilder,the Suprem e C ourthas decided Blessing- cçeating a three-
factortestto determ ine w hethera federalstatute creates an enforceable right- and Gonzlgl---expounding on the ûrstprong oftheBlessing test,requiring thestatute to contain içrights-creating'' language and clearly im part an Sçindividual entitlem ent''on plaintiffw ith an tçunm istakable focus on the benefited class.'' See Blessing,520 U .S.at340-41;Gonzaga,536 U .S.at287. Despite so doing,the Courtin Gonzaga expressly preserved the WilderCourt'sanalysis,stating thatthe Boren Am endm entçtleftno doubtofitsintentforprivate enforcement...because

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 29 of 153
the provision required States to pay an tobjective' monetary entitlement to individualhealthcareprovidersl.j''Gonzaga,536U.S.at280-81.
Thus,Gonzaga concluded that W ilder rem ains good law ,and the Eleventh
Circuithasnotruledotherwise.SeeAgnostinl'v.Felton,521U.S.203,237(1997) (reaffirmingthatiçlijfaprecedentofthisCourthasdirectapplicationinacase,yet appearsto reston reasonsrejected in someotherline ofdecisions,theCourtof
A ppeals should follow the case w hich directly controls,leaving to this Courtthe
prerogativeofoverruling itsown decisions'')(internalquotation marksomitted).
A nd the Seventh C ircuithasconcluded that W ilderrem ainsbinding precedent.See
Bontragerv.Ind.Family drSoc.Servs.Admin.,697F.3d604,607(7th Cir.2012) (ççAlthough wehaveacknowledgedthatGonzagamayhavetaken anew analytical approach .. Wilder has notbeen overruled.'')(internalquotation marks and citation omitted).
Thestatutorylanguagein j 1396a(a)(30)(A)isnearlyidenticaltothetextof
the Boren A m endm entthatthe C ourtin W ilder found to create a private rightof
action.Underj1396a(a)(30)(A),stateprogramsarerequiredto:
Provide such m ethods and procedures relating to the utilization of, and thepaym entfor,care and services available underthe plan ...as m ay be necessary to safeguard againstunnecessary utilization ofsuch care and services and to assure that paym ents are consistent with
effciency,economy,and quality ofcare and aresuffîcientto enlist
enough providersso thatcare and services are available under the plan atleastto the extentthatsuch care and services are available to
thegeneralpopulationinthegeographictzrctlg.l
j1396a(a)(30(A)(emphasisadded).
G iven the strikingly sim ilar tçrights-creating''language thatm im icsthe test
oftheBorenAmendment,1concludethatj1396a(a)(30)(A)imposesamandateon
the states. The Boren A m endm entrequired statesto create program sthatprovided
reasonable paymentto provide access to adequate medicalassistance. And j

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 30 of 153
1396a(a)(30)(A)similarlyrequiresstatestocreateprogramsthatprovidesufficient
paym entto ensure thatadequate access to m edicalassistance is tçavailable under the plan.''
Theonly significantdistinction betweenthetwo provisionsisthattheBoren
Amendment's beneficiaries were medicalproviders,while j 1396a(a)(30)(A)'s
benesciaries are M edicaid-enrolled individuals w ho utilize the care and services ççavailableundertheplan.'' SeePa.PharmacistsAss'n v.H oustoun,283F.3d 531,
538 (3d Cir. 2002) (en banc) (Alito, J.) (holding that j 1396a(a)(30)(A)'s provisionsforquality ofcare and adequate accesswere ltdraftgedj with an unmistakablefocuson (M edicaidbeneficiariesq''). Granted,health careproviders
are explicitly m entioned within the text of the Boren Am endment,while plan
participantsarenotexpresslydiscussedin j 1396a(a)(30)(A).Butthisdistinction does not compel a different conclusion. Under 1396a(a)(30)(A), plan
participantsare given an enforcem entrightthrough the languagerequiring statesto m ake servicesdtundertheplan''available.
Iacknowledge that- as defendants argue- the majority of circuits have determined,vost-Gonzaga,thatj 1396a(a)(30)(A)doesnotexpressly create an enforceableindividualright.SeeEqualAccessforE1Paso,v.Hawkins,509F.3d 697,703-04 (5th Cir.2007);M andy R.ex rel.M r.(f M rs.R v.Owens,464F.3d 1139,1148 (10th Cir.2006);WestsideM others,454F.3d at542;N lrAss'n of Homes tfrServs.for theAging v.DeBuono,444 F.3d 147,148 (2d Cir.2006); Sanchezv.Johnson,416F.3d 1051,1060(9thCir.2005);fong Term CarePharm. Alliancev.Ferguson,362F.3d50,59(1stCir.2004).
These cases,how ever,are not persuasive or are distinguishable.D eB uono and Long Term Care,for example,involved claim sby providers,notindividual M edicaid beneficiaries. A nd,w ith the exception ofLong Term Care and M andy R ., the cases cited above fail to distinguish W ilder. Long Term Care

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 31 of 153
acknowledgedthattçtheBorenAmendmentandsubsection(30)(A)containljnearly
identicalsubstantive requirem ents,''butitdism issed the sim ilarity and concluded thatQçGonzaga requires clear statutory language for the creation ofprivate rights
enforceableundersection 1983(.1'' Long Term Care,362 F.3d at58.8 M andy R.
sim ilarly expressed incredulity that Gonzaga preserved W ilder and found that G onzaga tltightened the first requirem ent'' of finding a private right to enforce statutory violations and therefore no reliefw as available. See M andy R.,464 F.3d at 1147. Long Term Care and M andy R.failto give due w eightto W ilder,a case thatG onzaga expressly recognized rem ained good law .
1find thereasoning ofthe Seventh and Eighth Circuitsm ore persuasive.See
PediatricSpecialty Care,Inc.v.Ark.Dep'tofHumanSc?aw.,443F.3d 1005,1015 (8thCir.2006)(holdingthatj 1396a(a)(30)(A)çsisintendedtobenefitbothCI'IM S recipientsandproviders,andcreatesenforceablerightsforbothgroups''),vacated inparton othergrounds,l27 S.Ct.2000 (2007);Bontragers697 F.3d at607 (finding Wilderremainsgood1aw vost-Gonzaga and reaffirming itspre-Gonzaga
ruling thata private rightofaction forindividualbeneficiaries exists,albeitunder
themedicalassistance statute). See also M eml'sovskiv.M aram,No.92 C 1982, 2004 W L 1878332, at *8 (N.D. 111. Aug. 2004) (concluding that 1396a(a)(30)(A)createsindividuallyenforceablerights).
In light of the passage of tim e since m y earlier nllings, I have also considered w hether any subsequent pertinent and binding decisions have called
into question my conclusionsregarding the enforceability ofj l396a(a)(30)(A).
M y updated research,how ever,revealsno Eleventh Circuitdecision addressing the
8fong Term CarecitestherepealoftheBorenAmendm entin l997asareason toignore W ilder. See 362 F.3d at58. Thatm akesno sense. The subsequentrepealofan am endm entto increase tithe flexibility ofthe states''m ay shed light as to Congress'laterview s as to private enforcem entofthe Boren A m endm ent,butdoes notalterthe Suprem e Court'sanalysisthatthe
textoftheBorenAm endm entwassufficienttoconferarightsubjecttoprivateenforcement.

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individualenforceability of j 1396a(a)(30)(A) under j 1983. Thus,lremain
convinced for the reasons expressed in m y ruling on defendants' m otion for
summaryjudgmentthatthe Supreme Court's decision in Wilder compelsthe
conclusion that the statute is individually enforceable. W hile applying the
Gonzaga testto j 1396a(a)(30)(A) on a blank slate mightpossibly render a
different conclusion, 1 cannot ignore W ilder, w hich is directly on point and binding.
D efendantsdirectm y attention to the Suprem e C ourt's decision in D ouglas
v.IndependentLiving Center of Southern Calfornia,132 S.Ct.1204 (2012),
w hich w asdecided afterm y earlierrulings.A ccording to defendants,thisdecision
supportstheirpositionagainsttheindividualenforceabilityofj1396a(a)(30)(A).
In D ouglas, M edicaid providers and recipients in C alifornia asked the
SupremeCourttoconsiderwhetherj 1396a(a)(30)(A)wasenforceablethroughthe
Suprem acy C lause,in the w ake ofthe N inth C ircuit'sholding in Sanchez thatthe
statute was notenforceablethrough j 1983. SeeDouglas,132 S.Ct.at 1207.
G iven intervening events in the case after certiorarihad been granted,the C ourt declined to considerthe Suprem acy Clausequestion and instead rem anded the case back to the circuitcourtto considerw hetherthe case should be broughtunderthe
AdministrativeProceduresAct,5U.S.C.j701.1d.at1211. Althoughplaintiffs'
allegations in D ouglas- tUat C alifornia's M edicaid reim bursem ent rates did not com ply w ith federal1aw because they w ere insufficientto enlistenough providers to ensure adequate care and services- tracked plaintiffs'claim s here,the Suprem e C ourtin D ouglas w as notasked to- nor did it---decide the legalquestion ofthe
individualenforceability ofj l396a(a)(30)(A)underj 1983,raised by defendants in this case. Accordingly,Douglas does not impact my conclusion that j 1396a(a)(30)(A)isindividuallyenforceablethroughj 1983.
32

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TheEleventhCircuit'srecentdecisioninMartesv.ChiefExecutiveOf/zccof South Broward HospitalDistrict,683 F.3d 1323 (2012),which addressed the
individual enforceability of another M edicaid statute also does not alter m y

conclusion. In M artes, the Eleventh C ircuit concluded that a billing provision

w ithin

the

M edicaid

statutes ,

42

U.S.C. j

1396a(a)(25)(C),9

did

not confer

individually enforceablerightson M edicaid recipientsagainstservice providersfor

im properbilling. The Eleventh Circuitreached thisconclusion,in part,because it

determ ined thatthe statutory provision's édfocus isproscription ofcertain conduct

by M edicaid service providers''asitrelatesto theirbilling practicesratherthan the

rightson the individualM edicaid recipients. M artes,683 F.3d at1328. ltpointed

to the Suprem e C ourt's acknow ledgem entin Gonzaga thatSsstatutesthatfocus on

the person regulated ratherthan the individualsprotected''do notintend to confer

individually enforceablerights.1d.at1328-29 (citing Gonzaga,536U.S.at287).

Accordingly,because j 1396a(a)(25)(C)and itspreceding subsectionsprimarily
address the obligations of third party service providers, the Eleventh Circuit

concluded that the text and structure of j 1396a(a)(25)(C) did not speak to

9Thestatute,in

pertinentpart ,

reads as follow

s:

A Stateplan form edicalassistancem ust-

Provide ...thatinthecaseofan individualwho isentitled to medicalassistance
undertheStateplanwithresyecttoaserviceforwhichathirdpartyisliablefor palment,theperson furnishlngtheservicemay notseek tocollectfrom the
indlvidual (or any financially responsible relative or representative of that individual)paym entofan amountforthatservice(i)ifthetotaloftheamountof
the liabilities of third parties for that service is at least equal to the am ount
payableforthatselwiceundertheplan (disregardingsection 13060ofthistitle),or (ii)in an amountwhich exceedsthe lesserof(1)the amountwhich may be collectedundersection 13960ofthistitle,or(11)theamountbywhichtheamount payableforthatserviceundertheplan(disregardingsection 13960ofthistitle), exceedsthetotaloftheamountoftheliabilitiesofthirdpartiesforthatservicel.j

42U.S.C.j1396a(a)(25)(C).

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 34 of 153
individualrights,butratherto the obligations ofservice providers vis-à-visthird party liability.1d.at1330.
The sam e, how ever, cannot be said of the text and structure of
1396a(a)(30)(A),whichrequiresastateM edicaidplantoassurethatpaymentsfor
careand servicesçtare sufûcientto enlistenough providersso thatcareand services are available under the plan at least to the extent that such care and services are
availabletothegeneralpopulationinthegeographicareal.q''First,thefocusofj 1396a(a)(30)(A)ismaking surethatttcare and services''are availableto eligible
M edicaid recipients. The intended pum ose in enlisting a suflcient number of providers isnotforthe sake ofthe m edicalproviders,butratherforthe individual benetk iaries of the M edicaid program so that these individuals have the opportunity to receive m edicalcare in a m annersim ilarto theircounterpartsin the private insurance sector. The essence ofthis statutory provision is m aking sure thata state's M edicaid program functions as Congressintended:ensuring eligible individualsreceive the m edicalcare and servicesthata state'splan entitlesthem to
receive. Second,when j 1396a(a)(30)(A)isread in contextwith j 1396d(a),the
subsection that details the individual tscare and services''that a state plan m ust
provide,itbecomes even more apparentthatthe focus of subsection (30)(A)'s
tçsufficient''paym entprovision is on the individual's rightto access m edicalcare and servicesadequately 10
.
ln sum,Iagain concludethatj 1396a(a)(30)(A)createsaprivaterightof
action forM edicaid benefciaries.
10 Defendants raise several other argum ents in their discussion of the individual
enforceabilityofj1396a(a)(30)(A),whichIfindaremoreacclzratelyaddressedtothemeritsof
whatplaintiffswould need to show to establish thattheirrights,assuming the statuteconfers individualrights,havebeen violated by defendants. A ccordingly,Iw illaddressthese argum ents laterw hererelevantinthe Gndingsoffactsand conclusionsoflaw .

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3.EffectiveOutreach:42U.S.C.j1396a(a)(43)(A) ln regards to j 1396a(a)(43)(A),defendants raise no new argumentsbut
m aintain that the provision under Blessing as m odified by G onzaga, does not EEunm istakably focus'' on a benefit class and is too am biguous and general to
containanobjectivestandard.1disagree.
Post-Gonzaga, the Eleventh Circuit intem reted the first Blessing factor, w hich requires that Congress m ust have intended the relevant statute to benest
plaintiffs,to mean that the provision ttlmustj containl) individually focused, rights-creating language, (2) has an individual, rather than systemwide or aggregate focus; and (3) lacks an enforcement mechanism for aggrieved
individuals.'' M artes 683 F.3d at1326,citing Arrington v.H elm s,438 F.3d 1336,
1345(11thCir.2006).lnmyview,j1396a(a)(43)(A)clearlysatisfiesthistest. Aspal4 ofa comprehensiveM edicaid statute,j 1396a(a)(43)(A)requires
state plans to provide for inform ing ttall persons under the age of 21 w ho are eligible form edicalassistance''ofthe availability ofearly and periodic screening, diagnostic,and treatm entservicesand the need forage-appropriate im m unizations
againstcertain diseases. 42 U.S.C.j 1396a(a)(43)(A). Contrary to defendants'
contentions,this provision containsthe requisite Sdrights-creating''term inology.ln G onzaga, the statute at issue prohibited the Secretary Education from distributing fundsto any educationalagency orinstitution thatm aintained a policy orpractice ofperm itting the release of education records. Gonzaga,536 U .S.at 287. The Courtfound thattheprovision failed to conferindividualrightsbecause itfocused on the regulated party as opposed to those w ho w ould benefitfrom the statute. 1d.at 288. A dditionally,the Courtdeterm ined that the statute's ttnon-
disclosureprovisionsgspokeqonly intermsofinstitutionalpolicyandpractice,not
individualinstances of disclosure,''thereby giving it an aggregate focus. 1d.at 288.
35

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ln contrast,here the Effective Outreach provision com m andsthe State to inform al1 eligible children under 21 about available m edical services. Its em phasis,unlike the statute in Gonzaga,ison the individualsw ho w illreceive the
information ratherthan the regulated party.Thus,j 1396a(a)(43)(A)sufficiently
evincescongressionalintentto conferindividualrights. SeeBonnieL.v.Bush,180
F.supp.2d 1321,1346-47(S.D.Fla.2001),aff'donothergroundsand vacatedin part,31FosterChildrenv.Bush,329F.3d 1255(11thCir.2003).
The Effective O utreach provision also clearly m eets Blessing's second requirem ent- thatthe protected rightcannotbe ttso vague or am orphous thatits
enforcementwouldstrainjudicialcompetence.'' Gonzaga,536U.S.at282. This
provision iswholly differentfrom the am biguousprovisionsthatcourtshavefound to be too generalized to enforce.Forexam ple,the Suprem e C ourthasfound thata
statute imposes only a generalized duty when the tçmeaning of gthe directive wouldj obviously vary with the circumstances of each individual case''and
com pliancew ith the directive w aslargely leftup to the state.See Suterv.ArtistM ,
503U.S.347,360-63 (1992).Thisisnotthecasehere. Section 1396a(a)(43)(A)
im posespreciserequirem entson the state and leavesno room fordiscretion.
UnderthethirdBlessing factor,thequestionsiswhetherj 1396a(a)(43)(A) içunambiguously imposelsja binding obligation on the Stategj.'' Blessing,520
U .S.at341. tç-f'he provision giving rise to the asserted rightm ustbe couched in m andatory,rather than precatory,term s.'' 1d. The Effective O utreach provision
providesthatitgajStateplan formedicalassistancemustprovideforinformingall
personsin the State w ho areunderthe age of21 and w ho have been determ ined to be eligible for m edical assistance . ..of the availability of early and periodic
screening,diagnostic,andtreatmentservices....'' j l396a(a)(43)(A)(emphasis added). Thelanguage ofj l396a(a)(43)(A)isnotprecatory butrequiresa state
likeFlorida to com ply w ith itscom m and.
36

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 37 of 153
Defendantsareunabletoidentifyanycasesthatholdthatj1396a(a)(43)(A)
doesnotcreatea private rightofaction. ln fact,since G onzaga,atleastone circuit
courthasheld thatj l396a(a)(43)(A)createsenforceable rights. See Westside
M others,454 F.3d at544. Likew ise,districtcourts,post-G onzaga,have also held
thatj 1396a(a)(43)confersindividualrights. See e.g.,Hunterex rel.Lynah v. M edows,No.CIVA 108CV-2930-TW T,2009 W L 5062451,at*2-3 (N.D.Ga. Dec.16,2009);Clark v.Richman,339 F.Supp.2d 631,640 (M .D.Pa.2004)4
M em isovski,2004 W L 1878332,at *5;A.M H ex rel.P.H v.H ayes,N o.C2-03-
778,2004W L 7076544,at*6(S.D.OhioSept.30,2004). ln lightofthisprecedent,and forthereasonsstated above,1concludethatj
1396a(a)(43)(A) is mandatory, precise, and suffciently individualized under Blessingtopermitaclaim underj1983.
V l.FIN D IN G S O F FA C T The fndingsoffactw hich follow aretaken from directorcircum stantial evidencepresented attrialorfrom inferencesdraw n from such evidence.
A . T he N am ed Plaintiffs
1. S.51.
1. S.M . becam e eligible for M edicaid shortly after he w as born in A ugust2006. PX 583-2 at7-1+ 02294-98,TPF02305-07. S.B .,Ils.M .,s m other,
11s B voluntarily sentS.M .to livew ith hisfatherin A ugustof2011so shecould devote
moretimeandenergylookingforajob andan apartmentwhereshecould livewithherthree
m inor children. S.B .on 12/06/2011 Rough Tr.at90,135. Later,S.M .and S.B.'S tw o other minor children were rem oved from her legal custody as the result of a court order and proceedingsinitiatedby DCF. Id at89-90,135. W hileS.M .islivingwith hisfatherabout25 minutesoutsideTallahassee,S.B.continuestoseehersoneveryweek.Id at136.Thoseweekly visitsarenotsupervisedbyDCF.Id at154.
Even though S.B .currently doesnothavelegalcustody ofS.M .,S.B.isstillaproperand appropriate nextfriend. A n individualm ay sel've as a çsnextfriend''ofa m inor as long as the
37

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 38 of 153
chose Dr.Simm ons, who practices with the Tallahassee Pediatric Foundation
(ççTPF'')andwhowasherpediatricianforabout16years,tobeS.M .'Sdoctor.S.B.
on 2/11/2010 FinalTr.at1782:9-22. S.M .w ason M edipassand assigned to TPF on O ctober 1,2006. PX 582 at5. Since thattim e,S.B .hasexperienced difficulty
obtainingm edicaland dentalcareforS.M . 2. On July 5,2007,S.B.received a letter from TPF,which stated that
S.M .'S M edicaid had been canceled on June 30,2007. PX 583-2 at 15. B ecause S.M .w as only eleven m onths atthe tim e of the sw itch,the cancellation w as in violation ofhisrightto tw elvem onthsofcontinuouseligibility. 1d.;PX 583-2 at TPF002308;S.B .on 2/11/2010 FinalTr.at1787:1-2.
3. In responseto theletter,S.B .called theM edicaid num berto inform the agency that S.M .'S benefits had been improperly canceled. She requested that S.M .'S M edicaid be reinstated. S.B . on 2/11/2010 Final Tr. at 1786:18-22. M edicaid retroactively restored S.M .'S eligibility, m aking it appear as if his
linextfriend's''interests are not adverse to the minor and the ççnext friend''is sufficiently dedicatedtothem inor'sinterest.Gonzalezcx rel.Gonzalezv.Reno,86 F.Supp.2d 1167,1185
(S.D.Fla.2000)affdsubnom.Gonzalezv.Reno,212F.3d1338(11thCir.2000).A jarentmay
sueasa tçnextfriend''even ifheorshehaslostcustody to the state and hisorherrlghtshave beenterminatedprovidedtheparentisadvancingthechild'sinterests,and nothisown.M iracle
by M iraclev.Spooner,978F.Supp.l161,1163-64,1168(N.D.Ga.1997). Thekey issueis
whetherthe nextfriend'sinterestsarealigned with thoseofthem inorchild. SeeDolin cx rel.
N D.v.rr:,22F.Supp.2d1343,1353(M .D.Fla.1998)(stparentmaynotsueonbehalfofachild wheretheparent'sinterestsarenotaligned withthoseofthechild'),aff'd subnom.Dolin v.I'E, 207F.3d661(11thCir.2000).
S.B.hasno interestsantagonistictoS.M .'s,andhasnom otiveto serveashisnextfriend otherthan to ensure thatS.M .receivesthe M edieaid benefitsto which he isentitled. S.M .'s
father,T.M .,isalsowillingto serveasS.M 'snextfriend. SeePX 788(Declaration ofT.M ., filed on01/31/2012,D.E.1121). Hissonhasbeen livingwithhim sinceAugust,andT.M .'S onlyinterestinthislitigationistoprotecthisson.Id at!!1-8.IfforanyreasonS.B.isnotable
to continueasnextfriend forS.M .,lfindthatT.M .isan appropriate,substitute nextfriend for S.M .

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 39 of 153
beneftshadneverbeen canceled.PX 582at5;St.Peteryon 2/09/2010FinalTr.at 1491:3-7.
4. S.M .w asagain on M edicaid and again assignedtoTPF from Augustl, 2007 through Septem ber30,2007. PX 582 at5;St.Petery on 2/09/2010 FinalTr. at1486:21- 1487:5,1491:3-18. On,October5,2007,S.B.received yetanother letterfrom TPF,inform ing herthatS.M .'SM edicaid eligibility wasterminated on Septem ber 30, 2007. This cancelation w as tw o m onths after his M edicaid eligibility started on A ugust 1,2007 and constituted a violation ofhis rightto 12 m onthsofcontinuouseligibility. PX 582 at5;St.Petery on 2/09/2010 FinalTr.at 1486:21 - 1487:5, 1491:3-18; 1494:2-179M ccorm ick on 8/12/2010 FinalTr.at 4132:24 - 4133:8;S.B .on 2/11/2010 FinalTr.at 1787:9 - 1788:1;PX 583-2 at TPF02295,TPF002310. Once again,hiseligibility wasretroactively restored.PX 582 at5;St.Petery on 2/09/2010 FinalTr.at 1494:14 - 1495:11. Contrary to defendants'suggestion,Ido notfind thatthe cancellation w asvalid.
5. S.M .w as not assigned to M edicaid from Septem ber 30,2007 until N ovem ber 1,2007.PX 582 at5.S.B .'SM edicaid eligibility resum ed on N ovem ber 1,2007,w hen hew asreassigned to TPF.1d.
6. S.M .w as scheduled to see D r.Sim m ons in February 2008 for his 18m onthsw ell-child check-up. S.B.on 2/11/2010 FinalTr.at 1788:11- 1789:14. D r.Sim m ons'oftice told S.B .notto bring herson in forhis appointm entbecause S.M had been assigned orçtsw itched''to aM edicaid l4M O ,an insurance plan that S.M .'Sdoctordid notaccept. S.B .on 2/11/2010 FinalTr.at1788:11-1789:14;St. Petery on 12/10/2009 Final Tr. at 1389:17 - 1391: 25; see also PX 658 at Sim m ons000002.
ln February of2008,som etim e afterher visitto D r.Sim m on'soffice, S.B. received a package from Universal, alerting her of the change. S.B .on 2/11/2010 FinalTr.at1805:8-16. S.B .called M edicaid to resolve the issue.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 40 of 153
8. An employee ofM edicaid Options,which handled plan assignm ents forM edicaid in non-Reform counties,noted in S.M .'SrecordsthatS.B received a letter in February stating thatS.M .w as switched to anotherM edicaid plan and called to change the plan back to M edipass. PX 583-2 at TPF02312;S.B .on 2/11/2010 Final Tr. at 1790:4-25. A FM M IS print screen show s S.M . w as assigned to a M edicaid 1-1M 0 from February 1,2008 through M arch 31,2008. M ccorm ickon 8/12/2010FinalTr.at4136:25- 4138:21;PX 583-2 atTPF02319.
9. The M edicaid O ptions em ployee also noted thatM edicaid sent S.B.a letter,which gave herthe option to choose a M edicaid plan butS.M .wasautoassigned to a M edicaid 11M 0 when S.B .allegedly failed to m ake a choice. PX 583-2 at TPF02312-13. There is no evidence,how ever,that such a letter w as actually sent. S.B .did not receive a selection letter from M edicaid or any other state agency priorto Februaly of2008. S.B .on 2/11/2010 FinalTr.at l789:15 1790:3 12
.
10. S.M .w as not sw itched back to M edipass untilM arch 31,2008. S.B . on 2/11/2010 Final Tr. at 1790:23-25, 1804:24 1805:7, 1817:18 - 1818:7. D uring thatinterval,S.B.wasnotabletotakehersontoseeDr.Simm onsandwas concerned aboutherson'shealth. S.B .on 2/11/2010 FinalTr.at1791:9 - 1792:7.
'2D efendantssuggestthatS.B.did notreceivetheletterbecause shefailed to update her m ailingaddresswithAHCA.SeeDefs.CorrectedProposedFindingsofFactandConclusionsof Law at74. S.B .testitied thatshe m oved severaltim es during the firsttw o yearsof S.B.'Slife. S.B.on 2/11/2010 FinalTr.at 1783:12 - 178427. S.B.adm itted thatshe updated heraddress withTPFbutneverinform edAHCA .Duringthattim e,S.B.receivedcorrespondencefrom TPF athergrandmother's address.S.B.on 2/11/2010 FinalTr.at 1784:15-18. Her grandmother would contactherifshereceived anym ail. S.B.on 2/11/2010FinalTr.at1784:19-21.Despite thistestimony,Istilltlndthatdefendantsareresponsiblefortheswitch. First,defendantshave notsubm itted proofthatthe selection letterw asactually sentto S.B . Second,S.B .w ould not have had to apply forreinstatementorselecta M edicaid plan ifM edicaid did notim properly tenninate S.M .'S benefhs shortofthe required 12 m onths ofcontinuous eligibility. S.B.on 2/11/2010FinalTr.at1821:23 - 1822:7.
40

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 41 of 153
O n anotheroccasion,D r.Sim m ons referred S.M .to a laboratory for a lead blood screening test. S.B.was notable to gether son's blood tested for exposure to lead because it w ould have taken her an hour and a half each w ay, traveling by bus,to getto the laboratory'slocation. S.B .on 2/11/2010 FinalTr.at 1793:17 - 1794:11,1798:19 - 1799:17;S.B .on 12/06/201lR ough Tr.at111,143, 146. She also m issed appointm ents w ith D r.Sim m ons because of transportation problem s. 1d.at 145-46. She did notknow she w as entitled to free transportation through M edicaid.1d.at 144-46.
2. L .C .
12. w as hospitalized for seizures w hen he w as about 15 m onths old and had seizures laterin life asw ell. PX 655 atTridas Center000008;PX 65l at Peace R iver000016. L .C .m oved into S.C .'Shom e as a fosterchild w hen he w as tw o years,eightm onths old,and S.C .lateradopted him . S.C .on 1/11/2010 Final Tr.at 1319:21- 1320:1;1322:1-3. A sa child adopted through fostercare,L.C.is eligible forM edicaid regardlessofincom e.1d.at 1322:4-9.
13. In A ugustof2004,w hen L.C .w as about7 years old,S.C .took him to beevaluated by adevelopm entalpediatrician because ofhisdevelopm entaldelays and anxiety,which m anifested itselfin panic attacksand otherextrem e behavior. 1d.at1327:13 - 1329:15;PX 655 atTridasCenteroooool,000003,000007. The doctorrecom mended intense psychologicalservices. S.C.on 1/11/2010 FinalTr. at1331:21- 1332:1;PX 655 atTridasC enterooool1.
14. Based on herdoctor'srecom m endation,S.C .took L .C .to see Elizabeth Craig, who had an extensive history working w ith children w ith attachm ent disorder. S.C .on 1/11/2010 FinalTr.at 1332:19 - 1333:10. M s.Craig,w ho does nottake M edicaid,recom m ended w eekly play therapy. PX 652 atC raig000105; S.C.on l/11/2010 FinalTr.at1336:20-21. ln Septem berof2004,S.C.took her
41

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 42 of 153
son to PRC,the exclusive M edicaid m entalhealth provider in her area. 1d.at 1336:22 - 1338:12;PX 651 atPeace River000009. Peace River,however,was notableprovideplay therapy,and wasnotable to providew eekly therapy.1d.at 1338:13-17;1338:20- 1341:25;PX 740 atD efendants011707.
Peace Riverreferred S.C.to Dr.Jackie Reycraftfortherapy. S.C.on l/11/2010 FinalTr.at1342:19 - 1343:25.D r.R eycraftinform ed S.C .thatshew as leaving Peace R iver because, am ong other things, she had a case load of 110 patients. 1d. at47-48. A caseload ofthism agnitude isunreasonable and w ould hinder a therapist from proving adequate care to children. Sarkis on 1/19/2012 R ough Tr.at48-49,52-53,79-80.
16. D r.R eycraftalso stated thatshe could not deliver w eekly therapy to 1d. D r.Reycraftdeveloped a treatm entplan offering tw ice m onthly therapy from C hristy B ishop. 1d.at1333,1345. B ecauseherson could notgetthecare he needed atPeaceR iver,L .C .paid forherson to attend w eekly play therapy sessions w ith M s.Craig. 1d.at 1345:18 - 1346:6. A lthough these sum s w ere ultim ately reim bursed,M edicaid could notprovide accessto thecare thatL .C .needed.
ln 2005,a developm entalpediatrician recom m ended that L.C .begin taking certain m edications. D r.H elen H ubbard m anaged L.C .'Sm edication butin 2007 wasunw illing to continue m onitoring the drugs. 1d.at 1355:2 - 1357:24. There is no evidence to supportthatD r.H ubbard's unw illingness w as related to the factthat S.C.w as on M edicaid. S.C.returned to Peace River because she needed a psychiatristto prescribe and m onitor L.C.'S m edications,one ofwhich w as D epakote. 1d. at 1357:12-15; PX 651 at Peace R iver 000053; S.C . on
1/11/2010 FinalTr.at 1357:16-18;PX 651 atPeace River 000054 (ticurrent M entalHealth M edications''includetr epakote 500 m.g.''). S.C.informed PRC
that she needed a psychiatrist to m anage her son's m edication because abrupt rem oval from D epakote could cause seizures. S.C .on 1/11/2010 Final Tr.at
42

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 43 of 153
1357:19-24. PR C 'S records do not retlect that S.C.ever advised PRC that the m atterw asurgent. Instead,PR C characterized the appointm entasa routine visit. PX 651atPeaceR iver000053-000056.
18. PRC required thatL.C.go through the intake processand be evaluated by a therapistw ho w ould then determ ine w hetherL .C.needed a psychiatrist. S.C . on 1/11/2010 FinalTr.at 1358:3-7. A s a result,PRC could notschedule L.C .for an appointm ent for a psychiatristfor a period oftw o m onths or m ore. 1d. This w aitw as reasonable because PRC w as notaw are of the urgency ofthe situation. See Testim ony ofD r.Sarkis,1/19/12 ES 13-14,62-64,66-70,72-78,80-83,86-87, 89-91, 104.
19. U nw illing to w aittw o or m ore m onths for an appointm ent,S.C .paid D r. H ubbard out-of-pocket to m onitor her son's psychotropic m edications for abouttw o years. 1d.at 1358:17-25; 1359:7-9. Eventually,M edicaid reim bursed S.C.forthese out-of-pocketexpenses.1d.at1349:13-14.
20. W ith the help of D CF,S.C .w as later able to gether son in to see a psychiatrist atThe Sw eetC enterin W interH aven,w ho continued to m onitor his m edications.1d.at 1361:9 - 1362:23.
K .K .
A .D .is the m otherofK .K .,one ofthe nam ed plaintiffs in this action. A .D .on 8/12/2010 FinalTr.at4046:22 - 4047:13. K .K w asborn in D ecem berof 2003. A tthetim e,A .D .w asliving in Lehigh A cres,nearFt.M yers. 1d.at4049:89. K .K .becam e eligible forM edicaid atbirth.1d.at4050:5-6.
A .D .periodically has to renew her son's M edicaid. To do so,she can eithercalland geta packet by m ailor filloutthe renew alform online.In either case,she hasto figure outhow to com plete the form on herown. Som etim esshe had to callfivetim esperday forassistance.1d.at4069:5-11;4072:1-14.
43

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 44 of 153
23. O ne day w hile visiting the D CF office, A .D . m et a Stayw ell representative w ho discussed the benests of M edipass over Stayw ell. 1d. at 4055:8-23. The representative followed A.D .to hercarand convinced herthat Stayw ellhad m ore advantagesthan M edipass. 1d.at4074. O n January 1,2005, A .D . m ade a phone call to M edicaid to change K .K .'S M edicaid plan from M edipassto Stayw ell. 1d.at4074-4075. The change becam e effective on M arch 1,2005. D X 49 atD efendants 10106;D X 54 atD efendants 10125.
24. Less than tw o w eeks later, on M arch 9, 2005, K .K . w ent to the em ergency room atCape CoralHospitalbecausehisearstarted to bleed. TheER physician characterized K .K .'S ear as itnon-urgent'' and treated him . The ER physician consulted w ith D r.Liu,the EN T w ho previously put tubes in K .K .'S
ears,andnotedthatDr.John Donaldson,Dr.Liu'spartner,çtw gouldjseethepatient
tom orrow ...to suction outthe earcanalsand evaluate the tym panic m em branes.'' K .K .w as discharged from the hospitalin the early m orning hours on M arch 10, 2005.D X 56 p Cape Coral6,9-10;A .D .on 8/12/2010 at4082-83.
25. Thatm orning,A .D .called and m ade an appointm entw ith the office of D r.Liu. 1d.at4059:1-13. She soon received a callback,inform ing herthatthe doctorcould notsee K .K .because he w ason Stayw ell,one ofthe M edicaid plans thatthedoctordid notaccept.1d.at4059:14-21;4087:8-15.
26. A .D .called the Stayw ellrepresentative that convinced her to sw itch from M edipassto Stayw elland com plained thathercurrentdoctordid notaccept Stayw ell. 1d. at 4060:14-25. The Stayw ell representative referred her to a Stayw ell-affiliated EN T specialistin Sarasota.1d.at4059:22 - 4060:25;4061:1-6; 4081:3-7. A .D .did notow n a car atthe tim e and w asnot able to go to Sarasota because itw aslocated an hour and 45 m inutesto tw o hours aw ay. 1d.at4061:120.
44

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 45 of 153

27. D r.D onaldson agreed to see K .K .laterthatday,despite the insurance

problem . PX 612 at K K EL 00006;D onaldson D epo.D esig.at 78:18 - 80:18;

206:21-25. Because D r.D onaldson w as not a Stayw ellprovider,he risked not

getting reim bursed forhistreatm entofK .K . B eckeron 2/1/2012 R ough Tr.at30,

59-61. Dr.Donaldson determ inedthatK .K .hadpussrunning outofhisleftear,a

displaced tube in hisrightear,and an effusion behind the m iddle ear. PX 612 atK

K EL 00006. 28. 1find thatdefendantsdid notim properly sw itch A .D .from M edipassto

Stayw elland thatA .D .requested the change. lfind,how ever,thatdefendantsdid not provide suffcient access to EN T specialists under the Staywellplan. Ear,

nose, and throat diseases such as otitis m edia, sinusitis, and tonsillitis are

frequently encountered illnesses w ithin the pediatric population, and Stayw ell

should have had an EN T on its panelin a m etropolitan area such as Ft.M yers.

B

ecker

on

2/1/2012

R

ough

Tr .

at 27.13

29. Childrenonprivateinsurancewouldnotbesubjectedtothehardshipof
traveling to a differentm etropolitan area to obtain routine EN T care.14 u .at28.

The m other ofa child w ith private insurance would nothave experienced such

difficulty in obtaining care.1d.at30-31.

13D r M arie Beckerisaboard certified otolaryngologistw ho hasbeen in privatepractice .
since1995,treating childrenandadultscoveredbybothprivateinsuranceandM edicaid.Becker on 2/1/2012 Rough Tr.at9-10. Ifind hercredible and knowledgeable and certify herasan
expertinotolaryngology. DefendantshaveobjectedtoDr.Beckerandtheotherwitnesseswho
havegiven experttestim onyastothenam edplaintiffs'lack ofadequateandpromptcare.Ihave considered thesem otionsto excludetheexpertw itnesstestim ony and deny them aseach ofthese expertsiscompetenttotestifyasan expertbasedonareview ofthem edicalrecordsandthetrial testim ony. Further,I find their testimony m ore credible than the conclusory opinion of
defendants'expert,M s.Catherine Sreckovich (who is a non-physician),regarding the care
afforded each ofthenam edplaintiffs. 14 Defendantsproduced evidence, which show ed thatStayw ellhad EN T providersnear
Ft.M yerson itspanelasofM ay2009,seeDX 65A .Thisevidence,however,isinsufficientto establish thatStaywellhad availableENT specialiston itspanelin 2005,the tim e thatK.K. neededm edicalattention.
45

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 46 of 153
30. D efendants also failed to infonn A.D .ofher rights underM edicaid. A .D .did notknow that K .K .w as entitled to dental coverage through M edicaid untilaftershebecam e a plaintiff. A .D .on 8/12/2010 FinalTr.at4063:13-21. She did notrealize,even afterreceiving a letterdated D ecem ber 12,2007 from A H CA regarding w ell-child check-ups,thatM edicaid covered dentalcare forA.D . 1d.at 4064:11-25;4106:17 - 4108:2;4066:13 - 4067:1;PX 612 atK 1G 1-,00097.
ln November of2009,K .K 's doctor prescribed Adderallto treathis attention hyperactivity disorder. D X 55C at A ssociates in Pediatrics000366-67. A .D .on 1/25/2012 Rough Tr.at54. A .D .and K .K .'Spediatrician w entthrough a process oftrialand errorlasting severalm onthsto find outw hatm edication and at whatdosagewasm ostbenefcialforK.K .A .D.on 1/25/2012 at55-56;DX 55C at A ssociates in Pediatrics 000278,295-96,300,322,324. Eventually,they settled on V yvance atabout 50 m .g.a day. A .D .on 1/25/2012 R ough Tr.at56. A tthat dosage,K .K .,w ho failed kindergarten the yearbefore,becam ea straightA student. 1d.at56-57.
32. K .K .w asnoton M edicaid fora few m onthsin late 2010 through early 2011 because A .D .did notm eetthe econom ic eligibility requirem ents during that
time. f#.at70. A.D.lostherjob inJanuaryof2011and in FebruaryK.K.was,
once again,eligibleM edicaid.1d.at70. M edicaid asked A .D .to selectaplan for K .K .and she chose M edipass. 1d. at 71-72. K .K .,how ever,w as assigned to Stayw ell,w ithout A .D .'S consent. 1d.at 58. A .D .did not know thatK .K w as assigned to Stayw ell.1d.at58.15
33. The result of the sw itch w as harm ful to K .K . Stayw ell denied the prescription for Vyvance because first required K .K . to fail on
15 K K was also sw itched on another occasion to a M edicaid H M O that K .K 's pcdiatrician'sofficedid notaccept.A .D .on 1/25/2012 Rough Tr.at73.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 47 of 153

D extroam phetam ine,the key ingredient in A dderall. D X 55C at A ssociates in Pediatricsoooo76.
W hile appealing Stayw ell'sdenial,id.;A .D .on 1/25/2012 Rough Tr.at 57-59,thepediatrician putK .K.back on Adderallasa ûfsubstitute''because itw as the only m edication that Stayw ell w ould approve. D X 55C at A ssociates in Pediatrics000076-77;A .D .on 1/25/2012 Rough Tr.at59-60,63.A fterK .K .began taking A dderall,histeachercom plained abouthisconductand hism otheralso saw a signifcantdeterioration in his conduct. 1d.at64-65;D X 55C atA ssociates in Pediatrics000076-77.
K .K .w as changed back to M edipass, and began retaking V yvance aboutm id-M ay. A .D .on 1/25/2012 R ough Tr.at75. The doctorhad to increase thedosageofV yvanceto getitto w ork asithad before.1d.at65.
4. N athanielG orenflo

36. Rita Gorenflo isthe m otherofN athanielG orentlo,one ofthe nam ed

plaintiffs in this action. Gorentlo on 5/18/2010 FinalTr.at2290:23 to 2291:2.

The G orenfloslive in Palm

B each County .

1d.at2298:3-4.16

37. M s.Gorenflo isa registered nursewho spent 18 yearsworking in the

em ergency departm entatdifferenthospitalsin Ohio andFlorida.1d.at2289:19 -

2290:7;2290:11-13. She hasadopted seven children w ith specialhealth careneeds

who were in fostercare. 1d.at2291:3-6,2291:15-16;2292:1-8. Allthe children

are enrolled in CM S and allare eligible forM edicaid regardlessofthe fam ily's

incom e because they w ere adopted through foster care. 1d at 2291:17-21;

2291:22-25.

16M S. Gorenflo hasagreed to allow hername and herchildren'snam esto be used in theseproceedings.f#.at2288:21-23.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 48 of 153
38. Nathaniel's birth m other was on cocaine at the tim e Nathanielwas born. 1d.at2293:16-21. H e laterdeveloped A ID S. 1d.at2293:20-22;2294:11-
He isdevelopm entally delayed,hasm ultiple psychiatric issues,id.at2294:610, and sees a num ber of different m edical providers and specialists. 1d. at
2294:20-22. 39. ln 2005, M s. G orenflo w as unable to obtain tim ely EN T care for
N athaniel. The incident began on July 13,2005,w hen M s.G orentlo called her nurse coordinatoratCM S and said N athanielneeded to see an EN T physician right aw ay.1d.at2295:23- 2296:23;PX 617 atNG CM S000756.M s.Gorenflo called CM S because she did notknow ofany EN TSin Palm Beach C ounty thataccepted M edicaid otherthan through CM S. 1d.at2297:24 - 2298:4.
40. W hen M s.G orentlo called CM S on July 13,2005,to requestan EN T appointm ent forN athaniel,her son w as in pain. 1d.at2299:2-23. M s.G orentlo told CM S thather son w as in pain and needed to be seen right aw ay 17 u at
.
2300:7-13. She explained thather son could nottellherw here the pain w as but w ould çtscream and bang hishead''and putthew hole house in tttotalchaos.''1d.at
2299:24 - 2300:6. 41. M s.Gorenflo wanted her son to be evaluated by the doctorquickly
because of his com prom ised im m une system and history of ear problem s and chronic sinusitis.1d.at2311:24 - 2312:5;2294:17-19;231l:14-23.
171find M s. G orenflo to be a credible witnessand credithertestim ony thatherson w as in pain and thatsheinfonned CM S ofthesamewhen shecalled CM S and theENT'Sofficein July of 2005 and asked for a prom ptappointm ent forN athaniel. Typically,the person w ho spends m osttim e w ith the child is m ostknow ledgeable aboutw hetherthe child's behavior is norm al,and becauseN athanielwasdevelopm entaldelayed and could notexpressthrough words whetherhewasinpain,whathismothersaidabouthisconditionwasparticularlyim portant.See Beckeron 2/1/2012 Rough Tr.at15-16.
Furthermore,PaulaDorhout,anursing directorattheChildren M edicalService'soffice thatservesPalm BeachCount,agreedthatM s.Gorentloisaverydutifulcaregiverandthatifshe
saidhersonwasinpain,M s.DorhoutwouldacceptMs.Gorentlo'sjudgment.SeeDorhouton
4/4/2011Rough Tr.at3,144. 48

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 49 of 153

42. M s.G orentlo w asinform ed thatthe nextavailable appointm entw as in

six m onths .

1d. at 2300:14-18.18

M s.G orenflo said a six-m onth w aitw as not

acceptable because N athaniel w as in pain and needed an EN T evaluation

im m ediately .

1d.at2302:10-20.19 A fternum erousphone callsstretching outover

severaldays,an EN T fnally evaluated N athanielon July l8 - fve days afterhis

m other said he needed an im m ediate appointm ent. 1d. at 2303:13 - 2304:8;

2305:11 - 2306:4; 2310:4-8; 2310:15 - 2311:13; PX 617 at N G CM S00756.

Properprocedure dictatesthata child w ho isin a greatdealofpain in hisearm ust

seean EN T physician im m ediately.SeeD orhouton 4/4/2011R ough Tr.at 145.

43. N athaniel has a history of chronic sinusitis, as evidenced by his

m edicalrecords. Beckeron 2/1/2012 R ough Tr.at 12;DX 43 N .G .- CM S000717, 731,and 734. Thathistory m akesitm ore likely hew illsufferfrom sinusitisagain.

Becker on 2/1/2012 Rough Tr. at B ecause N athaniel has A ID S, he w as

im m une-com prom ised and susceptible to infection.1d.at 15. The factthathehad

A ID S m ade it im portant that he be seen and diagnosed quickly, before any

infection could spread. 1d. at 14-15, 19-21. Pain is one of the key signs an

infection isprogressing. 1d.at 15. G iven his sym ptom s,the factthathe w as in

pain,and suffered from A ID S,N athanielshould have been evaluated by an EN T

physician the day his m otherrequested an appointm entoratthe lateston the next

day.1d.at19-21.

18TheJuly

14 ,

2005,entry

in

the

CM

S

ntlrsing

notes,which

indicates that M

s. G

orenflo

called on July 13 and asked for an EN T appointm entforN athanielA SA P,does notsay M s.

G orenflo wasoffered an appointm entin six m onths. H ow ever,the notesare incom plete and in

factthere isa 16 or 17 m onth gap atonepointbetween entrieseven though M s.Gorenflo never

wentthatlong w ithouttaking N athanielto a CM S clinic. Gorenflo on 5/18/2010 FinalTr.at

2300:23- 2302:7,*PX 617 atN G CM S 000756.

19 M

s .

Gorenflo also call-ed CM

SinFebruaryof2008to seehow

long thew aitw ould be

foranotherofherchildren to getinto a CM S EN T clinic;the w aitw asfourm onths.'' Gorenflo

ON 5/18/2010 FinalTr.at2315:3- 2316:5. M s.Dorhout,theCM SnursingsupervisorinPalm

Beach County,testified that in Aprilof 2011 the w aiting list for the CM S EN T clinic w as

probablytwotothreem onths.Dorhouton4/4/2011RoughTr.at52.

49

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 50 of 153
44. A patientwith the sam e symptom sand private insurance would have been seen by an EN T eitherthe sam e day oratthe latest,the follow ing day. 1d.at 21-22 20
.
45. N athaniel experienced m uch greater diffculty accessing care than would a sim ilarly situated child with private insurance. 1d. at 23. Having N athanielw aitfive daysforan EN T evaluation w asttunreasonable.'' 1d.at25.H e should have received an EN T evaluation the sam e day hism other called or atthe very the latest,the nextday.1d.at25.
5. J.S.
46. K .S.isthem otherand nextfriendofJ.S.,oneofthenam ed plaintiffsin this action and lives in Jupiter. K .S. on 5/17/2010 Final Tr. at 1953:24-25; 1955:23 - 1956:5.J.S.hasbeen on M edicaid since birth. 1d.at1957:13-14.
47. J.S. has variable im m une defciency, w hich m eans she lacks an im m une system and can getsick very easily. 1d.at 1958:11-19;1958:23 - 1959:2. J.S.seesD r.G ary K leineratthe U niversity ofM iam iforher im m une defciency. 1d. at 1959:16-21. D r. K leiner restricts patients w ith M edicaid to Thursday appointm entsonly. 1d.at1959:22 - 1960:4. Dr.Kleiner,however,seespatients w ith privateinsuranceonotherdaysofthew eek.1d.at1960:13-18.Attim es,J.S. hashad to w aitup to a m onth foran appointm ent.1d.at1960:19-21.
48. J.S.hasbroken herankle on severaloccasions. The firsttim e w as in 2000. 1d.at 1961:10-l3. K .S.took herdaughterto JupiterM edicalC enter,w here they splinted herankle,and referred hertoan orthopedist.1d.at1961:10-19.The
20In herpractice, Dr.Becker m akes sure to see a child in pain the same day or atthe latestthenextday,regardlessofw hetherthe child isH IV positive orhasA ID S. 1d.at22. The factthatachild isHIV positiveorhasAIDS addstotheim portanceofseeingtheehild quickly. 1d.at22. She also m akessure,ifshereceive acallabouta child in pain on aFriday,to seethe childthatday so the child doesnothavetow aituntilM onday foran appointm ent.f#.at22-23.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 51 of 153
orthopedistdidnottakeM edicaid.Forseveraldays,K .S.called orthopedistsinthe phonebook to find one to treatJ.S.1(L at1961:20- 1962:5.
49. J.S.injured herankle asecond timein 2003 on aSaturday when she
wasseven yearold and slipped on som ewaterin a W izm D ixie. 1d at1962:6-13; PX 743atJM C000152.ShetookherdaughtertotheJupiterM edicalCenteragain, and again,they puton a splint,gavehercrutches,and referred herto an orthopedist for follow -up care. Id. at 1962:14-214 PX 743at JM C000147-157. That orthopedistagreed to see her daughterbutonly if she paid forthe visit. K .S.on 5/17/2010 FinalTr.at 1962:19 - 1963:4. The initialvisitalone w as going to cost about $300. 16L
50. K .S. then called a 1-800 M edicaid num ber for suggestions for an orthopedist.1d.at1965:17-22. She called allthe doctorsshe w asgiven butno one w ould agree to treather daughterbecause she w ason M edicaid. 1d.at 1965:23 1966:5; 1967:10-13. She also called orthopedists listed in the Y ellow Pages for Palm B each C ounty w ithoutsuccess. 16l at1966:6-18;1967:10-13. She called St. M ary'sH ospitalfora referralbutcould notfind an orthopedistthatw ay either. 1d. at 1966:19-22. N one of the orthopedists she called would agree to treat her daughteras a M edicaid patient. 1d at 1967:17-19; 1996:22 - 1997:13;2023:18 2024:1.
51. Finally,w ith help from a 1aw firm ,she obtained an appointm entw ith an orthopedist.1d.at1967:20 - 1968:7;2024:2-3.
52. In2007,J.S.injuredherwrist,K.S.on5/17/2010FinalTr.at1971:1-6;
2001:4-12,and w asgiven a splintin the E.R .and referred to an orthopedist. 1d.at 1971:7-13. K .S.called the orthopedistthatthe em ergency room recom m ended,but shew asunableto getan appointm ent,despiteherdiligentefforts.1d.at1971:141973:6.
51

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53. Eventually,theUniversity ofM iam igaveK.S.som esuggestionsforan orthopedicdoctor.1tL at1973:7-14. Two ofthosedoctorstoldherthatthey could notsee J.S.fora couple ofweeks,even though K.S.explained thatherdaughter had a broken w rist and needed follow -up care. 1d. at 1973:15-16; 1973:22 1974:3. The third doctor,D r.A ileen D anko,agreed to see J.S.three days aftershe broke her w rist. 1d. at 1973:20-21; 1974:14 - 1975:9; 2023:1-3; PX 746 at D A N K O 000001to 000020.D r.D anko'soffce isin CoralSpringsand isaboutan hourand a halfdrive each w ay from K .S.'s hom e.21 Id. at 1975:10-15. K .S.took herdaughterto seeDr.D anko aboutfourto fivetim es.1d.at1975:16-18.
54. The dentist,w ho used to treatJ.S.and billM edicaid forhertreatm ent, refused to continue seeing herw hen she turned 14. 1d.at 1976:25 - 1977:5. K .S. called a num berofdentiststrying to find a dentistw ho w ould acceptM edicaid and treather,butcould not find a M edicaid dentist. 1d.at 1977:6-11. Eventually, J.S.'Sform erdentistagreed to continue seeing her.
55. To m aintain J.S.'S M edicaid,K .S.has to go through a recertification processevery six m onths.1d.at1977:14to 1987:4. W hen shehastriedtocallthe M edicaid office,she had difficulty getting through because the line w asbusy. 1d. at 1978:5-17.
6. N .V .
56. N .V .wasbom in Febnlary of2004,in New Jersey. K .V.on 8/13/2010 Final Tr.at 4228:16-17. N .V . suffers from hydrocephalus and w as ultim ately
21Itakejudicialnoticeofthedistanceandpurporteddrivingtime,accordingtoGoogle andM apouest,from JupitertoDr.Danko'softice.D.E.1127,1136,and 1137. GûA Courtmay takejudicialnotice ofthe driving distance between two pointslocated in the record using
m apping serviceswhoseaccuracycannotreasonably bequestioned.'' UnitedStatesv.Williams,
476F.Supp.2d1368,1378(M .D.Fla.2007)(citingFed.R.Evid.201(b);Gordonv.fewistown Hosp.,272F.Supp.2d393,429(M .D.Pa.2003),*Richardv.BellAtl.Corp.,209F.Supp.2d23, 27n.2(D.D.C.2002)).Boththedistanceanddrivingtimearefartherifonestartsfrom K.S.'S
actualhom e address,notsim ply from Jupiter.

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diagnosed with Shw achm an Diam ond Syndrom e, which causes pancreatic insufficiency. 1d.at4229:6-20;4243:3-9. Propernutrition isthereforecriticalto N .V .'Shealth.1d.at4242:23 -4243:2.
K .V .applied forM edicaid forN .V .whilethe fam ily wasstillresiding in N ew Jersey. Id.at4230:3-16. N .V .is disabled,by socialsecurity standards, and thusentitled to receiveM edicaid.1d.
58. K .V .and her fam ily m oved to Florida in 2005. 1d.at 4246:22 4247:1. W hen N .V .w asaboutthree,he developed t00th decay,w hich he isprone to aspartofShw achm an D iam ond Syndrom e.1d.at4243:17-25.
59. K .V .took N .V .to D r.Charles M .Robbins,w ho treated N .V .forhis t00th decay and adm inistered his cleanings from January to Septem ber of 2007. 16L at 4236:18-20. In Septem ber of 2007,how ever, D r.R obbins advised that because N .V .needed caps,he w ould no longertreathim . 1d.at4238:18-22.22 o r. R obbins further explained thatif N .V .losta cap,M edicaid w ould notpay for a replacem ent; thus, it w ould be iivel'y hard''ççto find som eone w ho w ill accept M edicaid to do thatw ork.''1d.at4278:11-23.
60. UsingtheM edicaid handbook,K .V .m ade callsto m ultipleofficesbut could not find a dentist in her area w illing to treatN .V . 1d.at4240:10-16. She said nothing aboutN .V .'S com plex m edicalcondition;she did,how ever,identify M edicaid asthe fol'm ofpaym ent.1d.at4241:13-16.
U ltim ately,she wasreferred to Dr.Howard Sclmeider who islocated office is tw o hours from herhom e. 1d.at4231:11-16,.4242:8-19;4243:22-25. A m onth later,N .V .had hisfirstappointm entw ith D r.Schneider. 1d.at4242:13-17; PX 673. By thistim e,N .V .'Sappetitehad dim inished because ofthet00th decay
22Though Dr. Robbins'notesincludeanotationthathedoesnotdoGlwhite''fillings,PX 672,K.V.recalled the only reason Dr.Robbinstold her forrefusing to treatN.V.was that M edicaid would notpay for a second cap in the eventthe child lostone. Id.at4239:3-15. U ltim atelyN .V .gotboth stainlessand whitecaps.ld at18-20.
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to thepointthathe w asonly drinking m ilk. 1d.at4243:15-19. D r.Schneiderw as the only dentistK .V .could find w ho w as w illing to treatN .V . 1d.at 4279:7-10,. 4279:18-25. N .V .continues to see D r.Schneider. fJ.at4231:11-20. K .V .takes N .V .to see D r.Schneiderfourtim esayeardueto hisproclivity to t00th decay.1d. at4243:22-25.
62. In the fallof2011,N .V .'S neurosurgeon,D r.O livera,referred him to see a neuropsychologist after N .V .began to experience difficulty com prehending in school. K .V .on 2/1/2012 R ough Tr.at73,75. D r.O livera explained to K .V . that learning problem s are a com m on issue for children w ith hydrocephalus and recom m ended thatN .V .be evaluated by aneuropsychologistbefore the startofthe schoolyear.1d.
63. D r. O livera referred N .V . neuropsychologist group w ith tw o offices:one in O rlando,nearN .V .'Shom e,and the otherin M elbourne. 1d. at7475. In early Septem ber,K .V .attem pted to m ake an appointm ent,explaining that her son w as on M edicaid. 1d. at 74-75. The O rlando office did not have any available appointm ents and the M elbourne office could only offeran appointm ent in January w ith D r.Lyons. 1d.at 76-77. M oreover,D r.Lyons's office did not com m itto seeing N .V .in January,butinstructed K .V .to callback forconfirm ation ofwhetherN .V .could be seen. f#.at76. K .V.called back to the oftsce every w eek forthe nextsix w eeksto find outw hetherornotD r.Lyons w ould agree to treatN .V . 1d.at 77-78. D uring thisperiod,K .V .asked both D r.Lyons and D r. O livera for a referral for a neuropsychologist w ho w ould accept M edicaid, but neither could provide one. 1d.at 77. Finally,w ith assistance from D r.O livera, K .V .w as seen by D r.Lyons in N ovem ber of2011,abouttw o m onths afterN .V . firstsoughtan appointm ent.1d.at77-79.

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7. J.W .
64. ln 2004 and until otherwise specified, J.W .resided in Pensacola, Florida with hisgrandmother,E.W .,who serves ashisnextfriend in thisaction. On D ecem ber 2l,2004,E .W .took J.W .to see his pediatrician because he w as com plaining ofa pain in histhigh. PX 629 atW hibbs 000008. The pediatrician ordered x-rays ofhis knee and fem ur,and found a tum or on J.W .'S thigh. E.W . 6/16/2010 D epo.D esig.at11:24 - 12:10.
65. Thepediatrician referred J.W .to an oncologistatthe N em oursH ospital in Pensacola foran urgentconsult. The oncologistexam ined J.W .a few dayslater and,becauseitwasalm ostChristm as,agreed to letJ.W .go hom e fortheholiday. The oncologist began treatm ent im m ediately thereafter. PX 630 at JW C M S000027.23 O n D ecem ber27,2004,lessthan a w eek from the tim e when J.W .w ent to his pediatrician,the oncologist operated on and rem oved a tum or from his leftthigh. PX 630 atJW CM S00003l;E .W .6/16/2010 D epo.D esig.at 12:11- 14:14.
66. On July 20, 2005, E .W . took J.W . to his previously scheduled appointm entatNem oursto see Dr.Chatchaw in Assanasen. EW 6/16/2010 Dep. D esig.at 134:1- 135:7. J.W .com plained ofpain in his neck thatresem bled the pain in his thigh six m onths earlier. E.W .6/16/2010 D epo.D esig.at 19:22 20:17. D r.A ssanasen suspected a recurrence ofhistum or,saying the com plaints of tçneck pain''ttw ere highly concerning of new disease,'' PX 634 at N em ours 000145,and w anted to perform an im aging study,eithera CT scan or an M R I,to see ifthetum orhad returned.1d.at000l57.
23The adm ission history statesthex-ray wasmade on 10/22/047PX 630 atJW CM S -.
000027,butthatisclearly atypographicalerrorbecausethex-rayw asdone on 12/22/04.

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67. Thesam eday,Dr.A ssanasen'sofficesoughtauthorization from Hea1th Easeto perform an im aging study.1d.at000145;000157. Atthattim e,J.W .w as on M edicaid,and assigned to H ealth Ease,a M edicaid l-1M O . O n A ugust2,the requestw as stillpending and D r.A ssanasen personally called the 11M 0 to try to
expedite authorization forthe CT scan. 1d.at000157 (8/2/2005 note at 11:45 a.m .). Authorization was stilldelayed. Nemours000145 Csdifficulty obtaining authorization for imaging studies'');1d.at 000065 (çtdifficulty abtaining (sicq imaging studies'');E.W .on 6/16/2010Depo.Desig.at26:22-25;31:6-19;36:17-
24; 137:2-24; 195:5-22. 68. E.W . and the rest of the fam ily w ere deeply concerned,PX 634 at
N em ours 000157,as J.W .'S pain w as getting w orse. E .W .on 6/16/2010 D epo. D esig.at27:6 - 28:15. E.W .called D r.A ssanasen'soffice every day to see ifhe had been able to obtain authorization for an im aging study. 1d.at27:25 - 28:15; 29:9-20.
69. Partofthe delay in approving the im agining study apparently resulted from the factthatthe M edicaid 1-1M 0 had sw itched J.W .'Sprim ary care provider w ithoutthe know ledge orconsentofE .W . J.W .'Sprim ary care provider w as D r. W illiam J.W hibbs, PX 629 at W hibbs 000008; PX 630 atJW CM S 000003; E.W .6/16/2010 Depo.Desig.at46:16 - 47:8,buthe sw itched to Dr.Patrick M urray.E.W .6/16/2010Depo.Desig.at49:23- 50:23.
70. A spartofthe processofgetting H ealth Ease to approve the im agining study to see if the tum or had spread to J.W .'S neck,E.W .had took J.W .to be evaluated by D r.M urray on A ugust 10,2005. PX 632 atM urray 00001-3;E.W . 6/16/2010 D epo.Desig.at51:21- 52:16. Dr.M urray,again,recomm ended the C.T.scan for J.W . The study w as finally com pleted on A ugust 24,about five
56

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 57 of 153
w eeks after D r. A ssanasen's offce initially sought authorization from the insurance com pany.24 PX 634 atN em ours()()():jq.aa.
71. The study revealed that the tum or had spread to E.W .'S neck and
caused tisignificantbony disruption and tum orinfiltration to the spinalcanal.'' PX
634 atN em ours 000143. ft-l-he site ofthis new lesion w ashighly concerning for
cervicalinstability asw ellasrisk ofspinalcord depression ifthe m assw asallow ed
to spread.'' PX 634 at N em ours 000145. J.W .w as ddem ergently adm itted''for
evaluation by both oncology and pediatrics. f#. The doctorsbegan treating J.W . w ith chem otherapy and placed him in a Philadelphia collar to stabilize his neck.
1d.at000149. 72. H is oncologist w anted to adm inister the chem otherapeutic agents
through an infusaportbecause the agents are caustic and could burn his skin,but
dueto delay inreceiving approval,thiswasnotdone.1d.at000146(sçtherapeutic agentswhichcan ifextravasatedintoperipheralskincausesignificantburns''),'id.
24Defendantssuggestthatthe delay in authorization wasdue to the factthatD r. M urray, who wasresponsible forarranging and approving specialistcare w asnotcontacted tm tilA ugust 10. See Defs.'Corrected Proposed FindingsofFactand ConclusionsofLaw at87-88. E.W . testifed that Dr.Assanasen infonned her that he would handle the authorization. E.W . 6/16/2010 D epo.D esig.at136:15 - 138:12. She stated thatshe relied on Dr.A ssanasen because
sheçlfiguredthathe'dknow morethan(sheldidaboutwhototalkto,sogshelleftituptohim.''
A dditionally, J.W .'S PCP w as sw itched to D r. M unuy on A ugust 1, 2005, w ithout E.W .'S consent. Id.at46:16 - 47:8. l find thatE.W .reasonably relied on D r.A ssanasen to obtain authorization fortheC .T.scan. Ifurtherfind thatE.W .did notcontribute to the delay ofthe CT scan bynotcontacting Dr.M urray.
Defendantsalso suggestthattheCT scan wasnoturgentbecauseDr.M urray noted that
tûaHeatingpad gwasla11thatisusually needed tomake gthepain in J.W .'Sneck)go away.''
Defs.'CorrectedProposed FindingsofFactand ConclusionsofLaw at88. Thatthepaincould be treated with a heating pad does notnegate the factthatthe scan wasurgentto determine whetherJ.W .'Scancerhad returned. ltind thatthe fivew eek period ittook to authorizethe CT scan constituted an unreasonable delay. A child w ith private insurancew hosephysician ordered an im aging testbecause he suspected the child had atum orwould likely be ableto obtain an imaging study within a day ortwo,and in no eventwould have to waitm ore than a week. Having to waitfivew eeksforastudy w asbelow the standard ofcare. M iddlem ason 1/31/2012 Rough Tr.at5-6.
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at000150 (ût-lahechemotherapy wasgiven tlzrough aperipheralvein,aswehave
not yet received approval from H ealth Ease to have a surgical consultation for
Port-A-cath placement.'') The doctors began administering the chemotherapy
intravenously,through a syringe in late A ugust,so there w ould notbe a delay. 1d. at000149;E.W .6/16/2010 D epo.D esig.at57:5-15;58:2 - 59:15; 149:8-19. The infusaport w as subsequently approved by the M edicaid 1-IM O , and installed on Septem ber l5,2005,m ore than tw o w eeksafterthe chem otherapy began. PX 631 atSacred H eart000117.
73. J.W .waslaterswitched fora second time,thistim e from Hea1th Ease to ççstraightM edicaid''in aboutM arch of2007. E.W .6/16/2010 D epo.D esig.at 64:23 - 66:2;67:22 - 69:3. E.W .did notrequestthe switch and had to pay for J.W .'S psychologist herself because the psychologist w ould not accept ççstraight M edicaid.''1d.
74. E.W .later had trouble obtaining dentalcare for J.W .and there w as a period ofseveralm onthsw hen hedid nothave dentalcare untilE.W .heard abouta new dentalclinic atSacred H eartH ospital. 1d.at74:2-24.
75. Stilllater,E.W .had trouble renew ing J.W .'S M edicaid and had to call the 800 num berto tly to fix the problem . Every tim e she called the 800 num ber shehad to spend twohoursonhold.1d.at76:16- 77:15.J.W .w asnotenrolledin M edicaid foraboutsix weeksbefore E.W .w asable to negotiate the bureaucracy and gethis M edicaid renew ed. 1d.at 79:2-9. She had to pay outofpocket for J.W .'SA D I'ID m edicine because he could notgo w ithoutthe m ediation. Since she did nothavethe m oney herdaughterpaid forthe m edication forher. 1d.at80:24 81:25. E.W .has had repeated problem s w ith the M edicaid application. 1d. at 199:11-19.

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B. FloridaM edicaidReimbursementRates(FeeforService)

76. M -ICA is responsible for setting the reim bursem ent rates paid to

physicianswhoprovideM edicaidservices.SeeFla.Stat.j409.902.

77. A H CA sets M edicaid rates for physicians' services as a fraction of

M edicare rates,w hich are determ ined by the federalgovernm ent. See PX 128A ,

1/3/08 M em orandum from B .K idder to C.Snipes;PX 685,11B 329 A H CA B ill

A nalysis at AH CA 00755762;PX 495,D r.Sam uel Flint Reportat 13-14. The

dtM edicare fee schedule isderived and updated through a com plex processdone in

collaboration w ith

m edical provider groups as w ell as health policy

researchers.'' PX 495,Flint Reportat 13. Thatprocess results in the R esource

Based RelativeValue System ($dRBRVS''),by which allhealth careservicesare
assigned a code and a total relative value based on physician w ork, practice expense,and m alpractice expense. See PX 128A ;PX 685 at A H CA 00755762.

The federalgovem mentadjuststhe M edicare rates for each procedure code to
accountforgeographicalpractice costvariations. See PX 495,FlintReportat 13. Even though the resulting M edicare rates dshistorically have been below private

m arketratesl,q''they areintendedtoççprovidecurrent,fairrelativereimbursement ratesthrough (ajquasi-publicutility modeldriven by production costtheory and
tem pered by realw orld data and clinician review .''f#.at13. 78. A H C A determ ines Florida M edicaid rates for physician services,
exceptforcertain codesthatare held apartfrom the norm albudgetary process,by applying aconversion factorto theM edicareratesso thattotalexpected outlaysfor M edicaid services fit w ithin the program 's appropriations from the Florida

Legislature. See PX 128A ;PX 685. ln otherw ords,to achieve budget-neutrality, A H CA uses a conversion factor to convertM edicare's reim bursem ent rates into low er rates for use in the Florida M edicaid program . A s an internal State m em orandum explains'.

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The A gency determ ines physician fees using the M edicare R esource Based R elative V alue System ....The relative value is m ultiplied by aconversion factorto determ inethefee.TheAgency forHealth Care A dm inistration calculates a conversion factor to m aintain budget neutrality, unless the legislature provides additional funding for the physician servicesbudget.
PX 128A .Seealso PX 685. In 2008,the conversion factor w as 34.0682 forM edicare,com pared
with just19.6332 forM edicaid. See PX 128A atAHCA 00981413;Snipeson
12/9/2009 FinalTr.at357:7-23. Generally speaking,thism eans thatM edicaid rates forchildren's prim ary care services are about40% less than M edicare rates forcom parable services,both in the fee-for-service and the m anaged care contexts.
SeePX 128A;PX 495,FlintReportat14 (comparingFloridaM edicaidratesfor primarycareandspecialtycareservicestoM edicarerates).
80. ln discharging itsresponsibility to setphysician reim bursem entrates, A H CA doesnotconsiderw hetherthe reim bursem entratesare sufficientto ensure thatchildren on M edicaid have accessto health care servicesequalto thatofother children in thegeneralpopulation. See Snipeson 12/9/2009 FinalTr.at360:9-20; K idder on 5/19/2010 FinalTr.at2492:14 - 2494:19. N or does A H CA consider whethertheratesare sufficientto ensurethatEPSD T servicesare m adeavailable with reasonable prom ptness. 1d. Throughout this litigation,defendants have disavowed any legalresponsibility forensuring thathealth care servicesarem ade available to children on M edicaid,arguing that their duty is to provide paym ent w ith reasonableprom ptnessw hen such servicesare rendered. See,e.g.,D .E .548-3
(Def.M ot.forSumm .J.at5).
81. A H CA has not conducted studies as to w hether physicians' fees are sufficient to com ply w ith the law . See, e.g., Snipes on 12/9/2009 Final Tr.at
360:21- 362:23.Seealso Kidderon 5/19/10 FinalTr.at2649:2-18(AHCA has

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notconducted any studiessincethatreferenced in a 2003 LBR statingthatA HCA
had(çfoundcriticalshortagesofM edicaidparticipatingphysiciansinthestate.'').
82.Although certain codes for office-based and preventative health care visits are held outside the éçbudgetneutrality''and conversion factor analysis,an overwhelm ing num berofcodesarenot.SeeW illiam son 10/17/2011Rough Tr.at 133-134;K idder on 5/19/2010 FinalTr.at2502:5-14;D X 470. Even for those codes,trialtestim ony show s that cun-entFlorida reim bursem ent for M edicaid is substantially below the levelprovided for M edicare reim bursem ent for the sam e office-based services that are the m ost com m only billed codes. See K idder on 5/19/2010 FinalTr.at2497:16 - 2499:1.221.Plaintiffspresented credible evidence thatforareasin Florida outside ofM iam iand Ft.Lauderdale,office-based services underM edicaid forprim ary care physiciansserving children are compensated at ratesthatform ostcodesare lessthan halfofthe M edicaid rate.See PX 781,Louis
St.PeteryDemonstrativeExhibitA.223.Thecostofliving adjustmentstoM iami
and Ft.Lauderdale M edicare rates are higher in those areas,w hereas M edicaid reim bursem entisthe sam e statew ide. Thus,the differentialbetw een M edicaid and M edicare reim bursem entis greater in the M iam iand Ft.Lauderdale areas,with M edicaid paying an even low erpercentage ofM edicare reim bursem ent. See PX
780(M edicareRates);PX 781(M edicaidRates).
83.M edicaid reimbursementin Florida iseven lessthan levels ofprivate reim bursem ent program s. A ndrew A gm m obi, form er Secretary of A H CA ,
acknowledgedthatGGonethingisveryclear:gpjrovidersareingeneralunderpaidin
contrast to com m ercialinsurance and M edicaid.'' PX 126a at 6. A num ber of prim ary care providers testified that M edicaid reim bursem ent is substantially below private insurer reim bursem ent for the sam e procedures in the sam e geographicalareas.

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84. The difference betw een M edicaid reim bursem ent and private

reim bursem entisalso true forspecialists.
85.Prim ary carefeesw ere increased in 2000by atotalof$1.8 million for3

office visitcodes;in 2002,the Florida legislature authorized a 4% increase foral1

providers treating children. N o other increases for prim ary care providers for

children have occurred since 2000.25

px

128A

.

R

ather ,

in

O

ctober

of2008,the

legislature cutby one-third from $3 to $2,them onthly perchild feepaid prim ary

care providers participating in the M edipass system for m anaging the care

provided to children on M edicaid. St.Petery on 12/10/2009 FinalTr.at625:11-

15;W illiam son 10/17/2011 Rough Tr.at141. 86.C ertain specialists received an increase in 2004 of 24% for treating

children on M edicaid. SeePX 128A. Thisisthe only adjustmentin nearly 10
years, and it leaves specialist reim bursem ent substantially below the current

M edicare levelsforoffice-based services. 87.The difference betw een M edicaid reim bursem ent levels and those for

M edicarew illlikely increase in com ing yearsasM edicarereim bursem entaccounts

for cost-of-living changes, while Florida's M edicaid program does not. See

W illiam son 10/17/2011Rough Tr.at131. 88.Florida's M edicaid reimbursem entlevelwas in the low estquintile of

statesin the United Statesas of2003 and ithas continued to decline relative to

otherstates. Flinton 8/5/2010 FinalTr.at3521:2-20. 89.In LBR S over a num ber of years, A H CA has requested increases in

M edicaid reim bursem ent rates. These LBRS included an increase in the

com pensation paid for healthy kid check-ups as w ellas for specialist care. A s

25 M inor budget neutral changes have been made, both increases and decreases,in reim bursem entrates for individualcodes based on the annualResourcesBased Relative Value
System adjustments.
62

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explained by Carlton Snipes,form erDeputy Secretary ofM edicaid and M edicaid
Director for AHCA,the agency singled out4 specialty areas (dermatologists, neurologists, neurosurgeons, and orthopedists) for modest fee increases, not
because these w ere the only areas in w hich an increase w asneeded,butin hopes that a m odest request w ould be m ore politically acceptable. N one of these proposed increasesw ere enacted. The LB RS from A H C A m ade in each legislative year from the 2005-2006 legislative session through the 2009-2010 legislative session called for an increase in child-health check-up fees. PX 92-96;PX 702703;PX 734. In addition,A H CA proposed increasesin the 2008-2009 and 2009-
2010budgetsof40% forfourspeeialtyareas.Those,too,wererejectedeachyear.
PX 89-90;PX 727;Snipes on 12/9/2009 FinalTr.at405:21- 406:14. Finally,a
$2 feeproposalm adeto incentivizephysicianstocollectleadblood specim enswas also m ade but failed to pass each year for each legislative year from 2005-2006
through 2009-2010.PX 97-98;PX 704-705. 90.D efendants,and certain oftheir w itnesses,claim thatthese LBR S w ere
predicated on unsupported inform ation. See W illiam s on 10/17/2011R ough Tr.at 163-164;K idder on 10/3/201l Rough Tr.at77. I find defendants'explanations unpersuasive. The LBR S w ere prepared by offcials w ho recognized their obligation to be accurateand honestin presenting theview softheiragencytothe governorand the legislature. M oreover,these very w itnesses adm itted underoath as agency representativesduring theirdepositionsthatthe LBR Sw ere truthfuland correct. At trial,A H CA adm itted that they never told the legislature thattheir LBRS were wrong. In addition,the agency itselfrepeatedly acknowledged the im portance ofreim bursem entincreasesin subm issionsto the legislature. A s M r. Snipesacknow ledged,theserequestswereindicative notofsim ply wanting to pay doctorsm orebutofasubstantialproblem in currentreim bursem entlevels. Snipes on 12/9/2009 FinalTr.at380:4 - 381:10;Snipeson 1/8/2010 FinalTr.at1243:6-

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23. See also PX 701; PX 727. find the agency's ow n testim ony during depositionsregarding theirreasons forrequesting budgetincreasesisevidencethat M edicaid reim bursem ent rates for prim ary and specialist care w ere inadequate.
See also Cockrum v.Calfano,475 F.Supp. 1222, 1227 n.1 (D.D.C.1979) (Secretary ofHealth,Education and W elfare estopped from asserting claimants
responsibility for delays in adm inistrative hearings by his adm issions elsew here
thatthedelayproblem wasnationwideinscope.)
91.Experttestim ony attrialcom petently supported the proposition thatthe FloridaM edicaid reim bursem entlevelsare notsufficientforFlorida M edicaid to be a com petitive purchaser for m edical services. D r.Sam uelFlint,an A ssistant Professor of Public A ffairs at Indiana U niversity N orthw est w ho has published extensively on health econom ics,studied the health care m arket in Florida and concluded that çsthe Florida M edicaid program is nota com petitive purchaser for pediatric care atthistim e.'' PX 495,FlintR epol'tat20.See also id.at2.
92.D r.Flintm easured the difference in 2008 rates betw een M edicaid and M edicare for com m on office based procedure codes and concluded: tdFlorida M edicaid reim burses prim ary care physicians at slightly m ore than one-half of w hatM edicare pays,and specialists receive abouttw o-thirds ofM edicare rates.'' 1d.at2.See also PX 782.
93.D r.Flint also com pared Florida M edicaid rates against cost m easures, finding thattça prim ary care practice comprised of 75% M edicaid patientscould notrem ain solvent,even ifthe physician w orked forfree.'' PX 495,FlintR eportat 19.
94.D efendants' expertw itness,Catherine Sreckovich, adm ittedly did not conductany analysisofthe adequacy ofFlorida reim bursem entrates. Sreckovich on 1/10/2012 R ough Tr.at 140-141.
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Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 65 of 153
C . N ew borns,C ontinuousEligibility,and Sw itching 1. C ontinuous Eligibility
95.Florida m ustprovide children under the age of five w ith 12 m onths of continuouseligibility and children betw een theagesof5 and 18 w ith six m onthsof continuous eligibility. PX 712 at FL-M ED 08336. C hildren should not lose eligibility w ithin thatperiod unless they m ove outof the state or die. Lew is on 10/20/2010 FinalTr.at4654:10 - 4655:4. Every tim e a child is detenuined orredeterm ined to be eligible for M edicaid, a new period of continuous eligibility begins.1d.at4661:11- 4662:1.
96.Thousands ofchildren lose theireligibility during their firstyear oflife w hen they should have continuouseligibility.
97.M s.Sreckovich's initialreportexam ined the period betw een 2004 and 2008 and focused on children under five years of age. The num bers in M s. Sreckovich's reportretlected only children w hose eligibility w as term inated and subsequently reinstated during a single fiscal year. Sreckovich on 1/12/2012 R ough Tr. at 96-97. Those fgures are an underestim ate since, am ong other reasons,they exclude children who never regained eligibility. St.Petery on 2/2/2012 R ough Tr.at75-76.
98. A ccording to M s. Sreckovich's report, the M edicaid eligibility of children under one year ofage for M edicaid w as term inated 2.1% to 2.9% ofthe
time. DX 607at!22.Becausethosechildrenhadtheireligibilityreinstated,they
couldnothavedied orm oved outofthestate. Sreckovich on 1/12/2012 RoughTr. at 97. M s. Sreckovich acknow ledged that for children under one all those term inations w ere im proper. 1d. at 98. That m eans, based on the range of
improper terminations (2.1 to 2.9% ) and the number of children enrolled in
M edicaid,from 3,234 to 4,466 children w ere im properly term inated in one fiscal yearin violation oftheirrightto continuouseligibility.1d.at98-99.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 66 of 153
99.Forchildren oneto fiveyearsofage,theireligibility wasterm inated 6.8
% to7.0% ofthetime. DX 607 at!22. M s.Sreckovich acknowledgedthatfor
these older children,som e ofthosetenuinationsw ere im proper. 1d.97-98. In the case ofchildren agesone to five,thiswould be approxim ately 65,000 children in the course ofayear.1d.at93-96.
100.D C F acknow ledged thatforeach federalfiscalyearfrom 2003 to 2007,
atleast25,000(and sometimesmorethan31,000)childrenunderfiveyearsofage
had their eligibility term inated before they had received 12 m onths ofcontinuous eligibility. PX 737 at answ er to Interrogatory N o.1. By DCF'Sown adm ission, the percentage of children under five enrolled in M edicaid w hose M edicaid eligibility w asterm inated ranged each yearfrom approxim ately 3.5% to 5% . 1d. B ecause those figures do not include children w hose eligibility w as retroactively restored m aking itseem as if they had notlosteligibility,they underestim ate the num berofim proper term inations. St.Petery on 12/10/2009 FinalTr.at 593:19 594:19;PX 688.
10l.M r.N athan Lewis,D CF bureau chief,acknow ledged a tçtrem endous problem with the issueofm aintaining continuouseligibility.'' He stated thattçthe
problem wasthat(DCF'SIeligibility system rdidqnotautomatically ltnow what
period ofcontinuouseligibility a child''wasentitled to so thattiitisdependenton
staff'torecognizeçithatthere'sachild ...whomaybeentitledto (a1continuous
period ofeligibility and should notbeterm inated.'' Lew is on 10/20/2010 FinalTr. at4656:2-4;4657:18- 4658:22.M r.Lew isacknowledged attrial:<<-fhatproblem continuesto thisday.''1d.at4658:23-24.
102.D CF conducted a M edicaid eligibility quality controlanalysisin 2010 for federalCM S,and reported,in a Sept.20,2010 letter to the acting regional adm inistrator ofCM S,thatbased on a review of 1200 cases,7% of cases existed ççin which the M edicaid coverage was not provided through the entitlem ent

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 67 of 153
period.'' DX 169aat2;Lew ison 10/20/2010 FinalTr.at4660:24 -4664:8. M r. Lewisconcededthatisnotan dsacceptable''errorrate.Lew ison 11/29/2011Rough Tr. at 16-17. Som e of these w rongful term inations resulted from a M edicaid category being closed w ithouta new one being sim ultaneously opened. Lew is on 10/20/2010 FinalTr.at4666:14-25.
103.D C F in the sam e analysisalso looked m ore generally atw hetherornot therehad been w rongfuldenialsofcoverageorterm inationsand found that29% of the term inations for both children and adults w ere erroneous. D X 169a at3-4; Lew ison 10/20/2010 FinalTr.at4667:16-25,4671:1-12. M r.Lew is knew ofno reason w hy adults or children w ould have different term ination rates. 1d. at 4671:13-18.
104.D C F statesithas been trying since 2002 to fix the problem sthatcause som e children to be term inated in violation oftheirrightsto continuouseligibility. Poirier on 10/5/2011 R ough Tr.at71-72. For years,D C F has been considering im plem enting a com puterized system for m onitoring continuous eligibility of M edicaid Children, but has not done so- even though there is no technical problem thatwould preventDCF from instituting an autom aticsystem forensuring continuouseligibility. Lew ison 10/21/2010 FinalTr.at4800:10 - 4801:15.
105.D CF offcials have repeatedly acknowledged that young infants are som etim es im properly term inated. A D CF em ployee acknow ledged receiving tça string ofinquiries''from CarolM ccorm ick,the adm inistratorand nursing director ofthe Tallahassee Pediatric Foundation,concerning ddnewbol'ns being cut from theirM edicaidcoveragetoo soon.''PX 345atL-STP-R 000496. TheDCF worker
toldhercolleagues,çtEachonethatIhavelookedintowasjustthat.''1d Shesaid
she had received about 32 such inquiries in the last tw o m onths. 1d. See also M ccorm ick on 8/12/2010 FinalTr.at4123:13 - 4125:19. AnotherD CF official adm itted to D r.St.Petery thatitw asnotuncom m on thatD CF case w orkersw ould

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 68 of 153

inadvertently term inateachild'seligibility when them other'spregnancyM edicaid

term inated. St.Petery on 12/10/2009 FinalTr.at572:18-573:10.

106.Prim ary care providers regularly see children w ho lose theirM edicaid

eligibility in theirfirstyearoflife. Cosgroveon 5/19/2010 FinalTr. at2586:16 -

2587:10;Silvaon 5/20/2010FinalTr.at2804:10- 2805:9;St.Petery Depo. D esig. on 11/11/2008 at 194:6-13;R itrosky,D epo.D esig.on 11/10/2008 at97:4 - 98:2
,
98:15 - 99:25.

107. W hen

a

child's M

edicaid

eligibility

is incorrectly

term inated ,

the

child'sdoctorhasthechoiceoftreatingthechildandlikelynotgettingpaid(unless

eligibility

is

retroactively

restored,the

physician's

office

finds

out

about

it ,

and

incurstheexpenseofresubm ittingitspriorbill)orrefusingto treatthechild. St.

Petery on 12/10/2010 FinalTr.at594:20 - 596:6.

108.Astheexecutive directorofTallahassee Pediatric Foundation (TPF),
D r. St. Petery has access to FM M IS print screens w hich provide certain

inform ation regarding a child's eligibility and assignm ent to a prim ary care

provider. St.Petery on 12/10/2009 FinalTr.at554:19 - 555:10. D r.St.Petery has personally seen cases of improper term ination of continuous eligibility w ith

patients of TPF by studying those patients'FM M IS printscreens from which he

could tell their eligibility had been incorrectly term inated and then restored

retroactively.1d.at555:1-21,575:18- 576:11.

2. Sw itching

109.ddsw itching'' occurs when a child has been switched to a different

M edicaid plan. O ften tim es this is discovered w hen the child goes to their

pediatrician'sofficeforcare,and thepediatrician queriestheM edicaid system and

determ

ines

that

the

child, w

ithout the

parent's

know

ledge

or

consent ,

has

been

switched to a differentM edicaid plan forwhich thatphysician isnota provider.

St.Petery on 12/10/2009 Final Tr.at 548:13-19. Improper term ination is a

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com m on cause ofsw itching. Children w hose eligibility has been term inated and then reinstated w ithin a 60 day period are required to be reassigned back to the plan they originally chose. This requirem ent,how ever,is not alw ays follow ed, leading to m ore tdsw itching.'' M ccorm ick on 8/12/2010 Final Tr.at 4148:3 4149:14.
1l0.G etting a child sw itched back to the originalprim ary care providercan be a tim e-consum ing process because the system only allow s a change once a m onth. 1d.at562:14 - 563:15.içM any tim esthe provider's staff spends a lotof tim e trying to fix the problem so thatthe child can com e back to their practice.'' 1d.at558:1-4. A prim ary care doctor from w hom a child has been sw itched no longer can authorize a referralfor further care,even for an x-ray. 1d.at559:6 560:9. G enerally,ifa child hasbeen sw itched to an l1M O ,the 11M 0 w illnotpay thephysician to w hom thechild w aspreviously assigned.1d.at558:5-19.
111.Sw itching is an obstacle to M edicaid children's access to care. 1d.at 560:18-20. Because sw itching m oveschildren from one m edicalhom e to another, itinterferes w ith continuity ofcare,m ay delay care,and can lead to children not receiving care at all. 1d.at 560:23 - 56l:10. Privately-insured patients do not experience sw itching.1d.at561:1-6.
112.Sw itching is nota new problem . D r.St.Petery has been com plaining to A H CA and D CF about sw itching for 20-25 years, but the problem still continues.1d.at572:7-19.
1l3.RobertSharpe w as A H C A M edicaid D irector from 2000 to 2004 and assistantM edicaid D irector from 1998 to 2000. Sharpe on 11/16/10 FinalTr.at 4926:19 - 4927:2;4929:24 - 4930:8. M r.Sharpe testised thatduring his tim e as AH CA M edicaid D irector he received a low num ber of com plaints about sw itching. D r.St.Petery,how ever,m etw ith him on m ultiple occasionsto discuss sw itching. 1d.at 4932:22 - 4933:2. M r.Sharpe had his staff investigate cases
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broughtto him byDr.St.Petery,andthey determ ined thatthechildrenwereindeed sw itched w ithoutthe parent requesting a change of provider. 1d. at 4933:2:2 4933:12.
114.PhyllisSloyer,then A ssistantD irectorofCM S,also com plained to M r. Sham e aboutsw itching and how itaffected continuity of care for children in the C M S program . 1d.at4933:13 - 4935:9. M r.Sharpe w as notable to elim inate sw itching, w hich rem ained a problem during his tenure. f#. at 4935:10-15; 4936:13-15.
3. R easonsforSw itching 115.O ne w ay sw itching occurs isw hen D CF,w hich determ ines eligibility, incorrectly term inates a child's eligibility and then, realizing the error, reestablishes the child's eligibility. Since eligibility inform ation is transported nightly from D CF'S com puterto A H CA 'SFM M IS com putersystem ,these actions cause A H CA 'SFM M IS system to send a letterto the child's parent,as itdoesto any new M edicaid beneficiary,telling theparentthathe orshe m ustchoose a plan forthechild. 116.Som etim esthe parents do notreceive the letters because asm any as 40% ofthe letters directing M edicaid benesciariesto choose a m anaged care plan com eback asundeliverable. Brown-W oofteron 11/8/2011Rough Tr.at149-151. A tleastin som e instancesw hen A H CA investigated exam plesofsw itching,itw as notable to confirm thata choice letterw asindeed sentto the beneficiary. D epo. D esig.ofH am ilton on 11/6/2008 at 184:9 - 186:12. Som etim esthe parentsdo not understand the letter,perhapsbecausethe parentdoesnoteven know the child w as term inated and reinstated. St.Petery on 12/10/2009 FinalTr.at565:10- 566:6. ln eitherevent,theparentdoesnotrespond. 1l7.W hen AH CA does nothear back from the child's parentw ith a plan choice w ithin the allotted tim e,itauto-assignsthe child to a plan. Brow n-W oofter
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Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 71 of 153
on 11/8/2011 Rough Tr.at 148. By statute,65% of the assignm ents are to M edicaid 14M Os,which m ay notbe a plan in which the child's pediatrician is enrolled. St.Petery on 12/10/2009 FinalTr.at570:1-25;Plaintiffs'D em onstrative ExhibitC on Sw itching used w ith D r.St.Petery.
118.There are m ultiple eligibility categories for children on M edicaid. Lew is on 10/20/2010 Final Tr.at 4649:8-10.W hen a parent m akes a change, içsuch as applying for food stam ps or cash assistance, this can also cause sw itching''. St.Petery on FinalTr.at57l:3-18. This occurs because w hen D CF m akes such a change,even though the child does notlose M edicaid eligibility in D CF'S com puter system , the child som etim es loses eligibility in A H CA 'S FEM M IS system .
119.D uring the course ofthislitigation,D CF discovered thatw hen itdeletes the M edicaid eligibility category code for a child and places the child in a new eligibility category,A H CA som etim es interpreted thatchange as a term ination of the child's M edicaid eligibility,even though the second M edicaid categoly began im m ediately afterthe first category w as term inated. Lew is on 10/20/2010 Final Tr.at4645:15 - 4646:22. DCF learned this notonly during the course ofthis
litigation,butbecauseo/thislitigation.Lewison 11/29/2011RoughTr.at12-13.
120.To avoid thatsituation,DCF case workerswere instructed to closethe old category and open a new category simultaneously so thatAH CA would not confuse a category change w ith an eligibility termination. Lewis on 10/20/2010 FinalTr.at4646:23 - 4647:6.
121.D CF has nottaken any steps to m easure w hatim pacttheirchange in practice hashad on (ésw itching.'' Lew ison 10/20/2010 FinalTr.at4654:7-9.
4. Evidenceofsw itching 122.Severalofthe nam ed plaintiffs in this case- S.B ,K .K .J.W .- w ere sw itched,som e m ultiple tim es,and their sw itching led to delayed or interrupted
7 1

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 72 of 153
care. S.B .'S l8-m onth check-up w asdelayed. Because K .K .w assw itched,hehad to change from V yvance,an A D I-ID dnlg thatw orked for him ,to A dderall,one thatdid not. ln J.W .'Scase,on one occasion sw itching contributed to a five-w eek delay in perform ing an im aging study to see ifatum orhad reappeared on hisneck, and in another,it caused his fam ily to have to pay outof pocket for his A D I'ID m edication. See supra at55-58.
123.Testim ony attrial also show ed that sw itching is a regular occurrence for prim ary care providers. D r.Lisa Cosgrove is a prim ary care physician w ho practicesin M errittlsland,Florida,in Brevard County. Cosgrove on 05/19/2010 FinalTr.at2550:8-9,2552:15-25. D r.Cosgrove'sM edicaid patients are sw itched to other plans on a tçregular basis''; it occurs on a daily basis. 1d. at 2575:16 2577:19. Som e of D r. Cosgrove's patients w ho get sw itched end up in the em ergency room . 1d. at 2579:1-4,2580:14-20. Sw itching interferes w ith her patients'continuity of care. 1d.at2581:15 - 2582:13. Sw itching also consum es the tim e of office staffw ho try to assistpatients in getting sw itched back to her practice,forw hich there isno com pensation.1d.at2583:13 - 2584:5.
124.D r.N ancy Silva is a pediatrician w ho practices in B randon,Florida. Silva on 5/20/2010 Final Tr. at 2767:19-21; 2768:1-2. D r. Silva's M edicaid patientsaresw itched çtallthetim e''from oneprim ary careproviderto anotherand one insurer to another. 1d.at2796:11-21. Seldom does the child's new doctor authorize D r.Silva's office to see the child unless there is an acute signifcant illness. W ithoutauthorization from the new doctor,D r.Silva cannotgetpaid for any care provided. 1d.at2798:16 - 2799:3. Thus,sw itching interferes w ith her patients'continuity ofcare. 1d.at2799:4-20. Sw itching also results in lost staff tim e forpediatriciansand isadeterrentto participating in M edicaid.1d.at2799:21 - 2800:11. Ittakesapproxim ately six w eeksto geta M edicaid child w ho hasbeen
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Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 73 of 153
switched toanotherproviderreassigned to herpractice. Silvaon 1/19/2012Rough Tr.at147-48.
125. D r. Jerom e lsaac is a pediatrician w ho practices in Sarasota and Bradenton. lsaac on 8/11/2010 FinalTr.at3852:13-14;3853:20-21. Dr.lsaac's M edicaid patientsare som etim essw itched aw ay from hispractice.1d.at3894:1220. Generally,after a couple of m onths they return to his practice after getting sw itched back.1d.at3895:8-25. Sw itching generally leadsto delayed care forhis patients. 1d.at3896:15-24.
126.D r.D eloresFalcone Tam er isa pediatric cardiologistatthe U niversity of M iam i M edical School. Tam er on 10/19/2010 FinalTr.at 4494:13-23. D r. Tam er currently has a CM S clinic,a private clinic,and a clinic for the Jackson M em orialH ospital.1d.at4496:8- 4497:5. D r.Tam erencounterssw itching w hen a child isreferred to herby a prim ary care doctorw ho lacksauthorization to m ake the referral. 1d.at4531:9-18;4532:21- 4533:13. W hen such sw itching occurs,it usually m eanstheproceduresare postponed am onth.1d.at4533:14-17. Com m on diagnostic tests that are delayed fora m onth by sw itching are: echocardiogram s and electrocardiogram s,which testthe competency,anatom y,and function ofthe heart.1d.at4533:25 - 4434:12.
127.D r.Tom m y Schechtm an isa pediatrician w ho practicesatthree offces in Palm B each County: Palm B each G ardens,Jupiter,and Boca. Schechtm an on 5/20/2010 Final Tr. at 2832:8-13; 2833:7-14; 2833:18-22. D r.Schechtm an's M edicaid patientsarefrequently,and w ithouttheirknowledge,sw itched from one prim ary care provider to anotheror from one M edicaid productto another. 16l at 2847:6-20. D r.Schechtm an encounterssw itching severaltim esa day and he hasa ltperson in hisbusinessofficewho spends50% ofhertim e dealing with M edicaid eligibility,M edicaid sw itching and issues along those lines.'' 1ti at 2847:21 2848:4. A ccording to D r. Schechtm an, sw itching causes a num ber of adverse

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 74 of 153

consequences on the health and well-being of the switched child including: interrupting continuity ofcare and delaying check-ups and vaccinations. 1d.at 2848:5 2849:8. A lthough D r. Schechtm an's figures have som e reliability problem s,they are consistentw ith the testim ony ofother doctors w ith respectto

sw itching. 128.O therdoctorsregularly encountersw itching asw ell. D onaldson D epo.
D esig on 10/15/2008 at 140:9 - 141:4; K nappenberger D epo.D esignation on .
11/20/2008 at93:8 -94:12,95:4-6;R itrosky,D epo.D esignation on 11/10/2008 at 97:4 - 98:2,98:15 - 99:25;W eberD epo.D esig.on l1/6/2008 at24:22 - 25:2;J. St. Petery D epo. D esig. on 11/11/2008 at 81:19 82:1; 84:22 85:7; W . K nappenberger D epo.D esig.on 11/20/2008 at 95:23 - 96:7, 116:15 117:1; R itrosky, D epo. D esig. on 11/10/2008 at 105:5 106:22, 107:7-1l; K nappenbergerD epo.D esig.on 11/20/2008 at 115:20 - 16:9;J.St.Petery D epo. D esig. on 11/11/2008 at 104:9 105:21; K nappenberger D epo. D esig. on 11/20/2008 at 117:5-21; Ritrosky, D epo. D esig. on 11/10/2008 at 103:12-14,

107:16-18. 129.ln thepracticeD r.St.Petery sharesw ith hisw ife,switching is%çalm ost
an everyday occurrence.'' St.Petery on 12/10/2009 FinalTr.at 561:11 - 562:5; D r.Julia St. Petery D epo. D esig.on 11/11/2008 at 108:2-12. A s executive directorofTPF,D r.St.Petery seesa higherrate ofsw itching am ong the m orethan 7,000 TPS patients. St.Petery on 12/10/2009 FinalTr.at561:24 - 562:5.

5. içBaby 0 f9Process 130. çspresum ptively eligible'' new born

a child w hose M edicaid

eligibility presum ed by D CF based on the pregnant m other's M edicaid

eligibility. Lew is on 10/20/2010 Final Tr. at 4650:12-21. The purpose of

çtpresumptiveeligibility,''also known asthe(ibaby of'process,isto m ake achild

eligible for M edicaid as soon aspossible. St.Petery on 12/10/2009 FinalTr.at

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 75 of 153
602:3-15. ltiscalled the çtbaby of'processbecause itdescribesthepractice ofa pregnantm otherapplying to DCF foraM edicaid num berforherunbol'n child.1d. at 601:1-11. W hen the child is born,the M edicaid num ber is supposed to be activated.1d.at602:16- 603:1.
131.Dr.St.Petery hasobserved threeproblem swith thetçbaby of'process;
(1)themotherisnotprovidedwiththeopportunity topre-register;(2)even ifthe
m other pre-registers,there are delays in activating the child's M edicaid num ber;
and (3) children are sometimes issued two M edicaid numbers. Thisbecomes
problem atic because w hen DCF realizesthere are two num bers itcancelsone;if the physician has been using the cancelled num ber, all the services billed are denied even though thechild isactually eligible.1d.at603:2-25.
132.U nder the applicable periodicity schedule, children are supposed to visita physician w hen they are five daysold. D CF'S failure to activate the child's M edicaid eligibility can cause a delay in the child obtaining care orthe provider receiving paym ent. 1d.at604:1-14;605:19-22. Prim ary careproviders find that theactivation processforpresumptively eligiblenewbornsisoften delayed. lsaac on 8/11/2010 FinalTr.at3892:16 - 3893:24;Schechtm an on 5/20/2010 FinalTr. at2849:9 - 2850:7. Cosgrove on FinalTr.on 5/19/2010 at2584:6 - 2586:15.
133.C arol M ccorm ick is the adm inistrator and nursing director of TPF. M cconnick on 8/12/2010 FinalTr.at4110:9-19. Atthe tim e ofhertestim ony, TPF had about7,400 children enrolled,7,300 ofw hom w ere enrolled in M edicaid. Id. at 4114:22-25. Nurse case managers at TPF frequently encounter presum ptively eligible new borns whose M edicaid is not activated or w hose eligibility hasbeen term inated in lessthan a year's tim e. f#.at4118:8-24. In the fallof2008,w hen a subpoena fordocum entsw asserved on TPF,M s.M ccorm ick instructed herstaffto provideherw ith allthechartsofchildren w ho w ere currently experiencing eligibility problem s. In response,she received 90 charts. 1tL at
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4120:8 - 4121:20. Tw enty-four of those charts involved an issue ofcontinuous eligibility, 15 concerned presum ptive eligibility,and 47 w ere cases in w hich the parent's choice of health care plan had not been im plem ented or had been sw itched. 1d.at4121:21 - 4122:25. Som e ofthese filesretlected m ore than one problem .1d.at4123:1-5.
134.Priorto 2008,a m otherw as assigned a differentpersonalidentifcation num ber and case num ber than her baby. U nder this system , babies w ere som etim es given tw o personalidentification num bers because itw as difficult to m atch the ççbaby of' application w ith the subsequent new born child. Poirier on 10/5/2011R ough Tr.at39;43.See also PX 738. A ssoon asD CF found outthere w eretw o num bers fora child,itw ould cancelone. St.Petery on 12/10/2009 Final Tr.at603:18-25. If,how ever,a num berthata providerw as billing underw asthe num ber that w as cancelled,A H CA w ould deny paym ent for the services billed underthatnum ber.1d.
135.In 2008,D CF reprogram m ed itscom putersto allow apregnantw om an applying forM edicaid forherselfand herunborn child to be assigned the sam e case num ber,even though the m other and eventually the child would each be assigned a separate M edicaid personalidentification num ber. The new policy w as set forth in a July 2008 m em orandum to D CF w orkers. PX 738. U nder that policy, w orkers m ust m anually input data at 12 different steps. Poirier on 10/5/201l Rough Tr.at 43-45. lf a worker m akes a m istake in that m anual process,achildm ay beim properlyterm inated.1d.at45-47,68-69.
136.DCF'Snew procedurehasnotresolvedtheproblem sw ith thettbaby of' process. St.Petery on 12/10/2009 Final Tr.at 607:2 - 607:9. M oreover,the change ofplacing new borns into the m other's tçcase''hasthe potentialto increase the am ount of sw itching because it increases the chances that a change in the
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m other'seligibility category atD C F w illtriggerA H CA 'SFM M IS system to deem thechild'seligibility cancelled.St.Petery on2/2/2012RoughTr.at82-83.
137.Despite the issuance in 2009 by DCF ofa m em o directing thatbabies be keptin theiroriginalM edicaid category for 13 monthsregardlessofhousehold circum stances,interruptionsof eligibility forsuch children continue to occur. 1d. at 136.
138.Prim ary care providers continue to see problem s w ith sw itching,and term inations in violation of the right to continuous eligibility. Cosgrove on 1/31/2012 Rough Tr.at154-155;Silva on 1/19/2012 R ough Tr.at149-150.
D. ProvisionfutilizationofPrimaryCare(e.g.,EPSDT)
139.The purpose ofEPSD T isto identify and correctm edicalconditionsin children and young people before the conditions becom e serious and disabling;to provide entry into the health care system and access to a m edicalhom e for each child;and to provide preventative/w ell-child care on a regularly scheduled basis. PX 31 atA H CA 00963753;St.Petery on 12/10/2009 FinalTr.at518:11- 519:8.
140.M edicaid eligible children are entitled to check-ups from birth through age 20 in accordance w ith Florida'speriodicity schedule. They should receive check-ups at2 to 4 days, 1 m onth,2 m onths,4 m onths,6 m onths,9 m onths, 12 m onths,15 m onths,18 m onths,and then once peryearfrom 2 to 6,one at8,one at 10,andoneperyearfrom l1to20.A check-up includesacom prehensivemedical history, a dental screening, vision screening, hearing screening, appropriate im m unizations, and other services. PX 31 at A H CA 00963754 A H CA 00963757;St.Petery on 12/10/2009 FinalTr.at519:9 - 522:6.
141.Children w ho do notreceive check-upsarem ore than tw ice aslikely to require em ergency room care. PX at A H CA 00963773; St. Petery on 12/10/2009 FinalTr.at522:11-23. As defendants have stated in one of their
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LBRS,m ore child check-ups içm ay increase the early identifcation ofm edical conditionsbeforethey becom e seriousand disabling.'' PX 95.
1. T heC M S 416 R eports 142.M ore than 380,000 children on M edicaid in Florida w ho should have received at least one screening exam ination according to Florida's periodicity schedule did notreceive any preventative care in the federalfiscalyearending on
Sept.30,2007. SeePX 8atAHCA 0000087 (compareLine9,thetotaleligibles
w ho should have received atleastone initialor periodic,w ith Line 10,the total
eligibles receiving at least one initial or periodic screen); Snipes on 12/9/2009
FinalTr.at369:4 - 370:8. The 380,000 figure represents,notsim ply the num ber ofchildren enrolled in M edicaid w ho did notreceive a w ell-child check-up during the year,butrather the num berofchildren w ho w ere expected to receive a checkup- given the length oftheirenrollm entin M edicaid and the periodicity schedule for children theirage butdid notreceive one. Snipes on 1/8/2010 FinalTr.at
1261:7- 1264:19;PX 8atAHCA 0000087;PX 25(seeinstructionsforline4and line 8).
143.These fgurescom e from a form alreport,the CM S 416 report,which Florida and all other states m ust subm it arm ually to the federal Centers for
M edicare and M edicaid Services. See 42U.S.C.1396a(a)(43)(D)and Snipeson
1/7/2010 FinalTr.at 1146:25 - 1147:7. The reportforthe federalsscalyear ending Sept.30,2007isthem ostrecentCM S416reportin therecord.
144.The fgures expressed in the CM S 416 reportare ççparticipation ratios'' - the totaleligible children receiving atleastone initialorperiodic screen divided by the total eligible children w ho should receive at least one initial or periodic
screen.PX 25(seeinstructionsforline 10).Forthefederalfiscalyearendingon
Septem ber 30,2007,Florida had a participation ratio of 68% . PX 8 at A H CA 0000087;Snipes on 12/09/2009 FinalTr.at370:10-14. Thatm eans 32% ofthe
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children enrolled in M edicaid w ho w ere expected to receive at least one preventative screen did notreceive any. The federalgovernm enthasa goalofan 80% participationratio.Snipeson 12/09/2009FinalTr.at370:15-17.
145.The percentage ofchildren in M edicaid l-lM o s who received a w ellchild check-up w as even low er. For the fiscal year ending Sept.30,2007,the combinedparticipationratio forallFloridaM edicaid14M oswas55.10% .PX 16.
146.W hile there is som e criticism ofthe m ethodology underlying the CM S 416 report, and som e evidence that the data underlying the reports are not com plete,the CM S 416 reportis w idely considered the bestdata source available regarding the num ber of children on M edicaid w ho receive preventative care as w ellasthe num berofchildren eligible forpreventative care through M edicaid but w ho do notreceive such care.The CM S 416 reportsare considered reliableby the federal governm ent and by the health services research com m unity, and defendants'attackson thereportsarenotgenerally convincing. Flinton 1/24/2012 R ough Tr.at154.
147.M s.Sreckovich and otherdefense w itnesses contend thatthe CM S 416 reportsunderreportthecaredelivered to children in Florida. They claim theCM S
416reportsdonotincludesomewell-child check-upsbecause:(1)thereisatime 1aginreportingsomeclaimsdata;(2)somedoctorsprovidechildhealthcheck-up servicesbutthenbillforthoseservicesunderanotherCPT code;and(3)encounter
data from FlM o s is not complete. These contentions are speculative and not supported by the record. Seeid.at154-155.
148.A sto potentialdelay w ith reporting claim s,the federalfiscalyearends on Septem ber30,and the CM S 416 reportis notdue untilA prilofthe follow ing year,providing atleastfivem onthsforsubm ission ofclaim sorencounterdatafor servicesprovided on Septem ber30,and proportionally m ore,forservicesprovided earlierin theyear. Flinton 1/24/2012 Rough Tr.at162.
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149.W hilephysicianscompensated on afeeforservicebasishaveup toone yearfrom thedateofserviceto subm itaclaim forreim bursem entto AH CA ,there

is no evidence that physicians w ait to subm it their claim s, and it w ould be

econom ically irrationalforthem to do so. 1ti at l6l. Tellingly,while AH CA

could subm it an am ended CM S 416 reportto account for any claim s om itted

during the initialsubm ission because ofa so-called (Iclaim slag,''A H CA hasnever done so,though itisin itsclearinterest,especially during thislitigation,to do so if

thatw ould im prove itsperform ance on the CM S 416 report. Snipes on 12/9/2009

Final Tr.at 368:15-21; Snipes on 1/8/2010 Final Tr.at 1275:23-25, 1276:7-15,.

Flinton 1/24/2012 R ough Tr.at161. 150.Forphysicians to provide w ell-child screenings and then billunderan

alternative CPT code would be econom ically irrationalbecause alm ost al1the

alternativecodespay lessthantheCH CUP codes.Flinton 1/24/2012 RoughTr.at

155-58 26 .

O ften the com pensation for the physician is tw ice as high under the

EPSD T code than under the alternative codes M s.Sreckovich claim s the doctors

actually billed. 1d.at 158. In any event,defendantshave provided no evidence thatsuch m iscoding issystem ic orw idespread.M s.Sreckovich adm itted shecould notquantify any such alleged coding errors. Sreckovich on 1/10/2012 R ough Tr.

at 43-44. l51.Defendantsalso claim thatthe CM S 416 reports underreportthewell-

child check-up services provided because the encounter data thatFlorida l'IM o s

provideto AHCA isincom plete and doesnotcapture allthew ell-child check-ups perform ed by l1M O s. There is no quantification,how ever, of any signiscant

problem s w ith the reporting ofencounter data in Florida orthatany such alleged

26w hileonenew child code, 99205,paysm orethanwell-child codes,anew childcode can only beused onceperproviderperchild.
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problem s 1ed to underreporting on the CM S 416 reportfor the federalfiscalyear ending on Septem ber30,2007.
152.D efendantsdo notrely upon any Florida specific studies oranalysesto support the assertions that Florida I4M Os' encounter data suffers from underreporting orthatsuch underreporting has led to failure to reportwell-child check-ups on the CM S 416 report. The 2007 G A O report, Concerns Rem ain R egarding Sufficiency ofD ata forO versightof Children's D entalServices,noted that the quality and com pleteness of encounter data had im proved since 2001. Flinton 1/30/2012 R ough Tr.at103-104.
153.Florida I-lM O s,as partoftheircontractualrequirem ents w ith AH C A , are required to provide a m iniCM S 416 report. Brow n-W oofter 10/26/11 Rough Tr.at 43. They are also required to have that report audited and to provide a certitication thatthe inform ation on thatreportistnle and correct. B rown-W oofter on 10/18/2011 R ough Tr. at 121-122; Boone on 10/22/2008 D epo. D esig. at 153:10-18. D efendants have notprovided any basis for calling into question the accuracy of the audited results,w hich are incom orated into the final CM S 4l6 reports. ln fact, they tout the accuracy of other reporting perform ed by the M edicaid l4M o s and do not provide any basis for singling out the 1-IM o s'416 reportsasinaccurate orunreliable. Flinton 1/24/2012 R ough Tr.at154-155.
154.Ifanything,as explained by D r.Tom D arling,the results in the C M S 416 reportsoverstate thenum berofchildren who getcare,especially with respect to the screening ratiosthatcom pare thetotalnum berofhealthy kid check-upsto the num berofexpected exam inations. D r.D arling is an associate professoratthe U niversity of Baltim ore's School of Public A dm inistration and a director of governm ent technology for the Schaefer Center for Public Policy. D arling on 1/6/2010 FinalTr.at813:24 - 814:9.H ehasaPh.D .in publicadm inistration and policy from theU niversity ofA lbany. 1d.at815:21to 816:6. D r.D arling hasalso
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senred asan expertwitness in othercasesinvolving children'sM edicaid and has consulted forthe State ofM aryland'sstate agencies. 1d.at817:3 to 819:24. H e is qualified and w asaccepted asan expert,id.at819:25 - 821:10,and lagain accept him asan expertand tsnd histestim ony to becredible27
.
l55.First,Floridadoesnothaveseparateencounterdatathatwould allow it to ensure thatchildren are notdouble-counted ifthey m ove betw een tw o I-1M o sin a year or betw een fee-for-service and an 11M O . That m eans Florida's reported participation rate islikely inflated asaresultofdoublecounting som e children. 16l at852:13 - 854:5;873:14- 876:16.
156. Second, the federal instructions for com piling the CM S 416 report resultsin over-reporting ofscreening ratiosforthe tllessthan one''and ttone to tw o year''age groupsbecausethe periodicity schedule doesnotrequire screeningsat setintervals,butthe CM S reporting requirem ents assum e thatthe schedule does. D arling on 1/6/2010 FinalTr.at 850:5-17,857:25 - 859:10. The screening ratio thatFlorida reports is 28.92% higherthan w hatitshould be because the error in reporting results in the expected num berofscreeningsbeing too low .1d.at859:11 - 865:21;PX 461at32-33.
157.Third,because screenings tdtlow w ith the child,''i.e.,are reported in the agecategory thatcorrespondsto thechild'sageattheend ofthefederalûscalyear, there isa 45% over-reporting forthe 1-2 yearcategory. D arling on 1/6/2010 Final Tr.at866:12 - 868:15.
158.Oncethedataareadjusted to accountforDr.Darling'srecommended
corrections,the screening ratios go dow n to .62,.61,.62,.66,and .68 for2003 to
27 Irecognize that Dr. D arling w as notable to conduct an analysis based on services aduallyprovided ashe did in M emisovskiex rel.M emisovskiv.M aram,No.92 C 1982,2004
W L 1878332 (N.D.111.Aug.23,2004),which isthe betterapproach,because he wasnot
provided with the necessary claim sdata. lalso recognize thatDr.Darling wasnotable to com parehow children in the privatem arketaretreated.
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2007instead of.67,.66,.73.,.78,and .81. 1d.at869:5-20;PX 461(Table2-8).
These results retlect that Florida children on M edicaid consistently receive substantially few erscreensthan they should underthe stateperiodicity schedule.
159.D efendants contest these statistics. In her analysis,M s.Sreckovich purported to analyze the w ell-child care that M edicaid beneficiaries in Florida received by com bining the totalnum berofwell-child exam inations provided to children on M edicaid w ith certain sick child ortEproblem -oriented''exam inations. Sreckovich on 1/10/012 Rough Tr.at35.
160.There are serious problem sw ith this analysis. First,the credibility of M s.Sreckovich and herreportw ere underm ined by the factthather initialreport w rongly confused ttvisits''w ith tçservices.'' Sreckovich 1/10/2012 R ough Tr.at23-
She m adethe identicalerrorin heranalysisofdentalcareprovided to children on M edicaid. 16l Because, as M s. Sreckovich adm itted, it is custom ary for m ultipleservicesto be perform ed during achild'svisitto a doctorordentists,id.at 23,the result signifcantly overstate how m uch care children in M edicaid w ere receiving. 1d.30-35. She did notlearn ofthiserroruntilshe read Dr.Darling's rebuttalreport. 1d.at23-24. She did notknow how she m ade such a significant errorthatw asrepeated throughoutthe report.1d.at26-27. She also adm itted that shedid notrealizethatheranalysis,which purported to include only claim sdata, also im properly included som e encounterdata,untilshe read D r.D arling'srebuttal report. Id.at 22-23. R epeated errors such asthese underm ine M s.Sreckovich's credibility.
161. Second, even in her revised tables, M s. Sreckovich continued to com bine the total num ber of w ell-child exam inations w ith certain sick child exam inations. She calls the com bined services itpreventative assessm ent and evaluation services,''acategory shecreated,which lacksabasisintheCPT codes.
Flinton 1/24/2012RoughTr.at163.Shejustifiedthatapproachbysayingthatfor

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those sick child visits,the children received atleastsom e componentsofa wellchild exam ,even though they didnotreceiveallcom ponentsofawell-childexam . Sreckovich on 1/17/2012 Rough Tr.at 109. She acknow ledged that she is not aw areofanypeerreview studythathasendorsed suchan approach.Sreckovich on 1/10/2012 Rough Tr.at38-40. D r.D arling,w ho w orksextensively w ith CM S 416 reports,has notseen anyone com bine w elland sick child visits asM s.Sreckovich did. D arling on 01/23/2012 R ough Tr.at40-42.
162.Plaintiffs' experts, D rs.Flint and D arling, criticized that approach, stating that a sick visit w as usually focused around a particular presenting condition, and there w as no evidence that during such visits children receive preventative care. They further stated that such visits w ere not a substitute or proxy for w ell-child visits. D arling on 1/23/2012 R ough Tr.at 35-38;Flint on 1/24/2012 Rough Tr.at163-67.
163.Iagree w ith plaintiffsthatsick child visitsare nota proxy orsubstitute forw ell-child visits and do notplace any w eighton thispartofM s.Sreckovich's analysis.
164.M s.Sreckovich,in her analysis,also looked atthe average num berof visits per M edicaid child. N ot only did she include both w ell-child visits and certain sick child visits,she did notcap the m axim um num berofvisitsperchild at the num bersetby Florida'speriodicity schedule;rathershe included allvisits,no m atterhow m any there w ere. D arling on 1/23/2012 R ough Tr.at37;Sreckovich on 1/10/2012 R ough Tr.at46-47.
165. B ecause of M s. Sreckovich's m ethodology, sick or ill child care provided to certain children can m ake itseem as ifother children obtained care, w hen in actuality they did not. Sreckovich on 1/12/212 R ough Tr.at46-47. Both D r. D arling and D r. Flint are strongly critical of M s. Sreckovich's averaging approach, w hich they claim presents a m isleading picture of how m uch care

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children on M edicaid are receiving. D arling on 1/23/2012 R ough Tr.at 36-38;

Flinton 1/24/2012 R ough Tr.at163-65. 1agreethatw hen itcom esto determ ining

the scope ofpreventative care provided to children in Florida,an average approach

is

m

isleading ,

and

l

do

notplace

w

eight on

it.28

166.The consensus view am ong health care researchers and others in the

field is thatthe CM S 416 reports are reliable. Flint on 1/30/2012 R ough Tr.at

105-06. The C M S 416 reportis the ttbestyardstick w e have now ''and is tçw hat

CM S relies on.'' Crallon 1/26/2012 Rough Tr.at 155. 1 agree that CM S 416

reportsare reliable and an im portantindicatorofaccessto care. In addition,lfind

D r.D arling's testim ony persuasive and conclude thatthe CM S 416 reports m ore

likely than not overstate the am ount of EPSD T screening services actually

received.

2. H ED IS R eports

167.The CM S 416 reportisnottheonly reportthatshow schildren enrolled

in Florida M edicaid do not receive the prim ary care to w hich they are entitled

under federal law . A H CA requires its M edicaid I4M O s,in accordance w ith 42

C.F.R.j 438.358,to collectand reporton certain performance measureson an
annualbasis. PX 733 at A H CA chose to use H ealthcare Effectiveness D ata

andlnformationSet($$I4EDIS'')measures,asetofperformancedatathatisbroadly
accepted in the m anaged care environm entasthe industry standard to com pare and

28 A

s

part of

her

analysis ,

M

s. Sreckovich

focused

on

the

care

provided

to

the

nnm

ed

plaintiffs. W hile som e of the nam ed plaintiffs w ith chronic m edical conditions received a

significantam ountofspecialty care,they did notalwaysreceive al1theirw ell-child check-ups.

Forinstance,J.W .did notreceivenum erouswell-child check-ups,accordingto M s.Sreckovich's

own analysis. Heranalysis showshe should have received 5 well-child visitsduring certain

yearswhen he w asenrolled in M edicaid,butonly received onesuch visit. D X 410 atTable2B .

Sim ilarly,J.S.should have received 6 well-child visitsbutonly received three. DX 418atTable

2B . A nd S.M .did notreceive his l8-m onth w ell-child check-up on tim e because he had been

switched.Seesupra!!1-11.

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m easure health plan perform ances. 1d. ECAHCA expectsitscontracted I'IM osto support health care claim s system s, m em bership data, provider files, and hardw are/softw are m anagem ent tools, w hich facilitate accurate and reliable reporting of I-IED IS m easures.'' 1d. The agency contracts w ith H ealth Services A dvisory G roup,itsexternalquality review organization,to evaluate how Florida M edicaid's I4M o s perform againstcertain I-IED IS m easures. Brow n-W oofter on 11/8/2011Rough Tr.at12;PX 733 at1-1.
168.A llFlorida H'M o s are required to have their results confirm ed by a FIED IS com pliance audit. PX 733 at 2-4. The results are w ithin a 5 point sam pling error atthe 95% confidence level. 1d. I-IED IS m easures track the care provided to beneficiaries w ho are continuously enrolled in M edicaid for a certain period oftim e- typically eleven m onths in a year. Crallon 2/7/2011 FinalTr.at 5213:2-6.
169.For allthe I-IED IS m easures at issue in this action,M -ICA allow ed I4M o sto determ inetheirresultsusing the hybrid m ethod w hereclaim srecordsand adm inistrative data is supplem ented by a chartreview for benefciaries forw hom encounter data is m issing. Brown-W oofter on 11/8/2001 Rough Tr.at24-26. Thus,the hybrid m ethod does notdepend on the completeness ofthe encounter data. 1d.
170. A l1 the H ED IS m easures involve an apples-to-apples com parison because Florida M edicaid l'lM o s are com pared to M edicaid I-lM o s nationally. B row n-W oofteron 11/8/2001 Rough Tr.at20-21. O ne HED IS m easure tracksthe num berofchildren w ho do notreceive any w ell-child screeningsin the frstfifteen m onthsoftheirlives.
l7l.Ofthe 12 Florida14M osoperating in non-reform counties,11lIM os scored below the nationalm edian,and six scored below the 1ow perform ing level. B rown-W oofteron 11/8/2011 R ough Tr.at 19. ForH ealthy Palm B eaches,5.9%
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oftheinfantsreceived nowell-child screeningsin thefirst15m onthsoftheirlives; forPreferred M edicalPlan,lnc.6.0% ;forHum ana Fam ily c/o Hum an M edical Plan,lnc.6.724;for V ista H ea1th Plan Inc.-v ista South Florida 7.6% ;for V ista H ealth Plan,lnc.-B uena V ista M edicaid 7.7% ;and for Jackson M em orialH ealth Plan 9.2% . PX 733 at 3-4. For 2007,six ofthe l-lM o s had 5% or m ore ofthe infants receiving no w ell-child check-ups in the frstfifteen m onths of life. D X 361 atD efendants 022774. These fgures indicate that m any infants received no preventative care atall.
172.W hilewell-childcheck-upsareimportantforchildrenofallages,ççltjhe
need for appropriate im m unizations and health check-ups has ever greater im portance and significance at younger ages. lf undetected in toddlers, abnorm alities in grow th,hearing,and vision im pact future learning opportunities and experiences. Early detection of developm ental difficulties provides the greatest opportunity for intervention and resolution so that children continue to grow and learn free from any health-related lim itations.'' PX 733 at3-1.
173.O therI'IED IS m easures also show that in both reform and non-reform counties children on M edicaid l'IM o s receive less prim ary care than children enrolled in the average 11M 0 nationally. A 1l13 M edicaid 1-1M o soperating in nonreform counties fellbelow thatnationalm ean in 2007. DX 361 atDefendants 022775. Five oftheI4M oshad resultsthatclustered around the 25th percentile, and eightofthem had results around the 10th percentile. 1d. In reform counties, for the sam e year,seven ofnine Florida M edicaid 14M o s fellbelow the national m ean.DX 334 atDefendants021293.
174. A s for adolescent preventative care,Florida M edicaid 14M o s again generallyrankedbelow thenationalmean with only 43.6% ofenrolled m embers12 to 21 yearsofage w ith atleastone w ell-child visitw ith a prim ary care provideror an OB /G Y N practitioner during the m easurem entyear. D X 361 at D efendants

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 88 of 153
022757. Five ofthe 13 I-1M o sin Florida operating in non-reform countiesw ere at orabove the m ean,eightw erebelow it,w ith six clustered nearthe 25th percentile and two nearthetenth percentile.1d. ln reform counties,theresultsweresim ilar. Six M edicaid l'IM o sscored above the nationalm ean;nine w ere below it. 17X 334 atD efendants021277.
175.A nother FIED IS study looked at the w ell care provided to children betw een 1l to 20 years of age and found that only 19.6% received one or m ore w ell-child visitduring the study period;PX 689 atSum m ary ofFindings;Brow nW oofteron 11/9/2011R ough Tr.at14.
176.Florida M edicaid 14M o s also scored low in tel'm s ofthe percentage of pregnantw om en w ho received prenatalcare. Som e ofthese pregnantw om en on M edicaid are teenage m others. For these m others, prenatal care is a type of prim ary care. Seven of Florida's M edicaid l'lM o s have m ore than one-third of pregnantw om en failing to receivea singleprenatalvisitduring the study period.
177.The I-IED IS data show thatFlorida's I4M o s,both in reform and nonreform counties, rank below the national m ean on a num ber of m easures of preventative child care.
E . Prim ary C areProvidersParticipation in M edicaid 178.There isgenerally a shortage ofpediatricians in Florida. See D X 290c at1. The shortagegivespediatriciansthe ability to treathigherpaying patientsand eithernottreatorlim itthenumberofM edicaidpatientstheytreat.Theshortageof pediatricians in ruralareas isespecially acute. There are 10 Florida countiesw ith no pediatricians,and seven m ore countiesw ith only one pediatrician. D X 290c at Swanson Rivenbark on 11/15/2011 Rough Tr. 50. This shortage disadvantageschildren on M edicaid w ho m ustcom petew ith higherpaying patients forthe servicesofpediatriciansin othercounties.
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Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 89 of 153
179.The num ber ofchildren on the M edicaid rolls has grow n sharply,but the num berofpediatriciansw illing to treatthem hasnot. The num ber ofFlorida children enrolled in M edicaid increased from 713,540 in O ctober of 1998 to approxim ately 1.2 m illion in Octoberof2005.ByD ecem berof2008,1,272,342 of children w ere enrolled in M edicaid. PX 682 atFL-M ED 07816;D X 262;Snipes on 1/8/2010FinalTr.at1274:15- 1275:5.Asof2011,theenrollm enthadrisento 1.7 m illion children. Lew is on 11/29/2011 R ough Tr. at 48-49. Thus, the
percentageofchildrenonM edicaidhasincreasedby morethan 33% injustunder
three years,from D ecem berof2008 to N ovem berof2011. There isno indication that the num ber of prim ary care providers has increased at all, let alone proportionately,thusplacing an increased dem and on existing providers. See PX 682 at FL-M ED 07816; D X 262. ln fact, Florida has an overall shortage of physicians per 100,000 residents,com pared to the U nited States as a w hole,PX 742 atD efendants 026980,and a shortage ofpediatricians,D X 290c;PX 742 at D efendants 026979,thereby placing m ore dem and on Florida physicians to treat children on M edicaid,even though M edicaid paysfarlessthan otherpayors.
180. M ore than 20% of pediatricians in Florida w ere accepting no new M edicaid patients,according to a 2009 physician w orkforce survey. PX 742 at D efendants027039;Sw anson Rivenbark on 11/15/2011R ough Tr.at40-41. M ore than 60% offam ily practitionersw erenotaccepting a singlenew M edicaid patient. 1d. Thisissignificantbecausefam ily m edicinepractitionersprovidewellcare for olderchildren. St.Petery on 2/9/2010 at 1514:9-13.29
29The percentage ofphysiciansw ho acceptno new M edicaid patients is46% . Thisis significantly largerthan the percentage thatacceptsno new M edicare patients,w hich is 22% . Thisdisparity furtherillustratesthe inadequaciesofM edicaid reimbursem entrates. PX 742 at D efendants027033,D efendants027037.
89

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 90 of 153
181.In addition,num erous pediatricians lim itthe num ber of children on M edicaidthatthey w illaccept.SeeCosgroveon 5/19/2010FinalTr.at2553:15-
2557:12 (limiting practice for financial reasons to about 20% children on M edicaid);Silva on 5/20/2010 FinalTr.at2768:23 - 2775:23 (only two ofthe
non-for-profit com pany's seven pediatric sites accept new children on M edicaid, and for D r.Silva's site,the com pany has lim ited the num ber of new M edicaid
patientsby (1)notaccepting M edicaid I4M Os;(2)only accepting new patients under5;and (3)furtherlimiting new patientsto newborns,siblingsofexisting
patients,orexisting patientsw ho go on M edicaid;about20% ofherpatientsareon
M edicaidcomparedto 50% in2001).,Isaacon8/11/2010FinalTr.at3855:13-17; 3856:4-12;3861:5-25(lim itsnumberofM edicaidpatientsheaccepts;doesn'ttake
any M edicaid 14M O s; approves new M edipass patients on a case-by-case basis',
aboutone-third ofhispatientsare on M edicaid);Ritrosky on 11/10/2008 Depo. Desig.at8:13- 9:12.,11:1-11(toremain economically ttviable''practice,limited numberofM edicaid patients by only accepting as new M edicaid patients (1) siblingsofexisting patients;(2)existing patientswho lose private insurances;and (3)limitednumberofnewbornsl;Orellanaon l1/23/2008Depo.Desig.at99:24100:11(hadtostopacceptingM edicaidpatientsinhisGainesvillebutnothisLake Citylocation).
182.The principalreason pediatriciansdo notparticipate in M edicaid (or limit their participation in the program) is because of M edicaid's low reimbursementrates. Flint on 8/3/2010 FinalTr.at2949:21 - 2950:5 (d$The
fundam entalissue thatdrivesparticipation,thatdeterm ines physician,physicians' decisionsto participate in theprogram atall,orto lim ittheirparticipation,isthe
rate ofreimbursement.'');Tamer on 10/19/2010 FinalTr.at4512:21 - 4518:9 (describingaconsensusexpressedbyCM Sofficemedicaldirectorsthroughoutthe
90

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 91 of 153
state that ddM edicaid rates were so low that specialists were reluctant to take
patientswhoweresponsoredundertheM edicaidprogram .'').
183.D efendants have pointed to the availability of care at county health
departments(C14Ds)and federalqualifed health centers(FQHCS). TheClo s,
while providing som e prim ary care,are notan altem ative to private pediatricians. Collectively,CHD Sonly em ployed 27 pediatricians and no pediatric subspecialist as of 2009. Sw anson R ivenbark on 11/15/2011 R ough Tr.at 57-58. Sim ilarly,
FQHCShadjust32pediatriciansandonepediatricsubspecialist.1d.M oreover,all well-child visitsprovided by Cl'lDSand FQHCSare included on the CM S 416
repol't. C rallon 2/8/2011R ough Tr.at83-84. There isno reason to believe Clo S w illprovide increased care in the future. Indeed,the Florida Legislature reduced
the budget for the Clo s by $30 m illion as of July 2011,leading to 300-400 positionsbeing cutatthe ClD s. Sentm an on 10/6/2011R ough Tr.at11-13.
F. C hild H ealth C heck-u p R atelncreases 184. A n increase in the reim bursem ent rate for w ell-child, check-up exam inationsresulted in an increase inthenumberofchildren receiving well-child check-ups.ln 1995,AH CA increasedthereim bursem entrateforw ell-child check-
upsiçfrom $30 to $64.82,and theparticipation ratesincreased from 32 percentto
64 percent.'' PX 734. A H CA hasm ade thatsam e assertion repeatedly in form al budgetsubm issionsto thegovernorand legislature,see PX 734,PX 92,PX 93,PX 95,and in internalLBR S,PX 94,PX 96,PX 702,PX 703.Seealso D X 600.
185. A H CA highlighted the effect of the 1995 w ell-child check-up rate increase on the participation rate when itproposed a child health check-up rate increase from $71.59 to $90.97 for the 2007-2008 budget year. W illiam s on 10/13/2011 Rough Tr.at88-89;PX 734. A H CA then predicted thatsam e pattern w ould hold in the future. ççlncreasing the Child H ea1th Check-up reim bursem ent rate w illincrease accessto service,w hich w illincrease the early identification of

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 92 of 153
m edicalconditions before they become seriousand disabling,thereby decreasing future costly treatm entservices.'' PX 734. A H CA noted thatsince 1995,provider fees for well-child check-ups çthave increased only a few dollars due to the
ResourceBased RelativeValueSystem''and said,tûlaqn increasewillalso more
accurately reflect the cost of providing and docum enting this com prehensive, preventive service and w illencourage provider participation and retention in the C hild H eath Check-u p Program .'' 1d.
186.In 2007,thatsam e proposalw as one of A H CA 'S top three priorities. PX 720.See also PX 92;Snipeson 12/9/2009 FinalTr.at387:10 - 388:12;Snipes on 1/7/2010 FinalTr.at 1094:24 - 1095:10. A gain,the agency told the governor and legislature that increasing the C hild H ealth Check-u p rate iiw ill increase access to service,w hich w illincrease the early identifcation ofm edicalconditions before they becom e serious and disabling, thereby decreasing future costly
treatment.'' PX 92 (emphasisadded);Kidderon 5/19/2010FinalTr.at2512:4 -
2514:13;K idderon 10/3/2011Rough Tr.at28. 187.W hile continuing to supportLB R Sto increase the Child H ealth Check-
Up rate,AHCA changed thelanguageofitsproposalto indicatethatafeeincrease tçm ay,'' not w ill ççincrease access to services, w hich m ay increase the early identification ofm edicalconditions.'' PX 96.See also D X 600. Thatchange w as m ade during the course ofthislitigation and w asnotbased on any study or form al analysis. K idderon 5/19/2010 FinalTr.at2519:21to 2520:5. M r.Snipes,never reached a differentconclusion than thatsetforth in the ççw illincrease''language. Snipeson 12/9/2009 FinalTr.at351:3-9;382:11-24.
188.Even w ith the m odified language, how ever, the LBR S continued to
state:itln 1995,therewasafeeincreasefrom $30to$64.82andthe(ChildHealth Check-upqparticipationrateincreased9om 32percentto64percent.''PX 96.See
also D X 600. The A gency used thatsam e language in LB R Sforfive consecutive

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 93 of 153
years. K idder on 10/3/2011 R ough Tr. at 33-35. Tw o senior level agency adm inistrators testitied in depositions thatthe statem ents in the 2007 finalLBR regarding the proposed increase in reim bursem entrates for child health check-ups weretrueand correct. Onew itness,Beth K idder,wasBureau ChiefforM edicaid ServicesatAHCA,andhad heldthatposition since2005.M s.Kiddertestifiedata deposition in 2008,tlu-eeyearsafterthisaction began. K idderon 10/3/2011Rough Tr. at 28-30. A t trial, she acknow ledged her prior testim ony, including her testim ony that the language in the LBR w as m eant to indicate itcausation, a causative effect here,that if you increase the rates,you w ill increase physician participation and in turn thatw illresultin m ore kids receiving checkups.'' 1d.at
189.The second w itness,M elanie Brow n-W oofter,A H CA 'Sdesignee under
FED.R.Clv.P.30(b)(6),testifiedthatthefollowing statementwastl'ueandcorrect: Siln 1995,there was a fee increase 9om $30 to $64.82 and the (Child Hea1th Check-upqparticipation rateincreased from 32 percentto 64 percent.'' Brown-
W oofteron 11/9/2011R ough Tr.at2-3;PX 96. 190.Attrial,M s.Kidderchanged hertestimony when she was called asa
defense w itness,butnotw hen she w as called as an adverse w itness by plaintiff.
She testified that the 1995 fee increase from $30 to $64.82 did not cause the increaseintheparticipationratefrom 32% to 64% ,becausethefeeincreasedidnot lead to an im m ediate increase in theparticipation rate and because the increased
participation rate m ighthave resulted from otherfactors,such as better reporting by M edicaid 14M O s. K idderon 6/1/2011 R ough Tr.at 118-19. She changed her testim ony based on inform ation she was provided by defense counsel after testifying in M ay of 2010,as an adverse w itness in plaintiffs' case. K idder on l0/3/2011Rough Tr.at39-43.Generally,given herchangein testim ony,1did not find M s.K idder'stestim ony asadefensew itnesscredible.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 94 of 153

191. M s. Brow n-W oofter sim ilarly changed her view s and on redirect

exam ination provided an am ended answ er sim ilar to M s.K idder's. See Brow n-

W

oofter on

11/9/2011 R ough

Tr .

at122-26.30

She too,w asnotvery

credible as to

thism atter.

192.W hileaRule30(b)(6)witnessmaymodifyhisorhertestimonybecause itdoesnotconstituteajudicialadmission,acourtmayconsideranysuchchangein
assessing the credibility ofthe testim ony. D efendants'only explanation to support

admission of(and tocredit)M s.Kidder'sandM s.Brown-W oofter'sundisclosed
and untim ely decision to contradicttheirpriortestim ony,is thatthey had further

tim e to scrutinize certain LBR S. M s.K idder w as deposed on A ugust 27,2008,

m ore than tw o and one-half years after this action com m enced. M s.Brow n-

W oofterwasdeposedon Novem ber24,2008.D efendantshadadequatetim eanda

dutytopreparethesewitnessesonthedesignatedtopicspriortotheirRule30(b)(6)
deposition.

193.1find the statem ents in A H CA 'SLBR s- repeated overfive years w ith

differentsecretaries and staffin place and repeatedly reported to the govem orand

Florida Legislature- credible and illustrative of A H CA 'S beliefthat there w as a

cause and effect relationship betw een an increase in the reim bursem entrates for

well-child check-ups and the percentage ofchildren eligible for M edicaid who

received a w ell-child check-up. 1 find M s.K idder's and M s.Brow n-W oofter's

trialtestim ony does notm eaningfully callinto question A H CA 'S beliefas to this

cause-and-effectrelationship.

30On crossexam ination she saidtheincrease in theparticipation ratem ay have been due ,
to increased outreach,see Brown-W oofter on 11/9/2011 Rough Tr.at 4,a w holly different answ erthan thatelicited by defense counselon redirect.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 95 of 153
G . A H CA 'SR eportsand D efendants'L ay O pinion T estim ony 194.Several of defendants'witnesses- particularly M s.Sreckovich,M s. K idder,and M s.Brow n-W oofter- testified regarding thevariousprocessesA H CA
hasin place to monitorand evaluate primary care providers(PCP)enrolled in M edipassandmanagedcareorganizations(M CO).
195.AHCA devotesconsiderableresourcesto m onitoring.Thismonitoring, however,doesnotdemonstratethatchildren are receiving the careto which they are entitled underfederallaw .
196.First,though there w as extensive testim ony regarding the m onitoring processes, there is little in the record about the substantive results of those processes. lndeed,m uch of the m onitoring took place during the very tim e that A HCA 'Sow ndocum entsdemonstratethatchildrenwerenotreceiving care.
197.Second,there is little evidence in the record that any PC PS or M CO s w ere Gned, sanctioned, or expelled from the M edicaid program for failure to providecareto children on M edicaid orm eetany contractualrequirem entsrelating to the provision ofcare.
198.Third,process-oriented m onitoring does not establish that children receive care. For instance,the factthat a PCP does not have m ore than 1,500 children on M edicaid as patients and does notwork m ore than 30 m iles from where hisorherpatientslive,doesnotdem onstratethatthosechildren are ableto see thatPCP on atim ely basis. A H CA 'Sm onitoring show sthe system could w ork on paper,butitdoesnotprove thatitw orksin practice.
199.There isnothing persuasive in M s.Sreckovich's testim ony to establish that tim ely care and access to the appropriate array of pediatric doctors was actually provided ratherthan theoretically available. Thisisespecially trueifPCPS affliated w ith M edipass or an 14540 chose to treata large num berofchildren on M edicaid, despite the low M edicaid reim bursem ent rates. Flint on 1/24/2012

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 96 of 153
R ough Tr.at153. Further,M s.Sreckovich'sgeneralopinion thatshe hasnotseen evidence ofa system atic problem ,Sreckovich on 1/12/2012 Rough Tr.at54-55,is contradictedby statem entsm adeby AHCA in LBRSand CM S 4l6 reports,aswell asby the testim ony ofplaintiffs'experts. 1do notfind M s.Sreckovich'sopinions persuasive.
200.A num berofA H CA w itnesses,including M s.B row n-W oofterand M s. K idder,offered lay opinionsregarding access.
20l.M s.Brow n-W oofter offered a lay opinion thatthere are enough PCPS enrolled in M edipassto com ply w ith the contractualrequirem entthatno provider have m ore than 1,500 children on M edipass. Brow n-W oofter on 10/24/2011 Rough Tr.at67-69. H ertestim ony doesnotindicatew hetherchildren are actually receiving care from PC PS, w ho are not obligated to accept any children on M edicaid m erely because they enrolled as a M edipass provider. N or does her testim ony indicate w hetherthatcare istim ely and com parable to care provided to children on private insurance. M oreover,defendantsfailed to show thatthe 1,500to-l ratio w as actually m et in practice. M s.B row n-W oofter did not know the average num ber of M edicaid patients that a typical PCP enrolled in M edipass accepts.Brow n-W oofter on 11/8/2011 Rough Tr.at 81. Thus,if the num ber is substantially sm aller than 1,500, then the 1,500-to-1 ratio effectively m eaningless. ln sum ,1am notpersuaded by M s.Brow n-W oofter'slay opinions.
202.A ccording to M s.K idder's 1ay opinion,A H CA is able to deliver the care children on M edicaid need,w hen they need it,and close to w here they need it
(with limited exceptions),for both primary care and specialty care. She also
opined that the increased num ber of children enrolled in M edicaid has not im pacted A H CA 'S ability provide such care. K idder on 10/3/2011 Rough Tr.at 122-123, 150. H eropinion,however,isbased largely on whatshe wastold by others. ltisalso contradicted by A H CA 'S ow n statem ents in num erousLBRS,her
96

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 97 of 153
ow n testim ony ather deposition,the testim ony ofvarious other A H CA w itnesses
(including formerSecretary,Dr.Agm m obi,and formerM edicaid DirectorsM r. Snipes and M r.Sham e),the testimony ofpediatricians,and numerous AHCA
docum ents. A ccordingly,1 do not find M s.K idder's lay opinion credible or persuasive.
H . Children'sM edicalServices(CM S)
203.CM S isabranch oftheD OH dedicatedtohelping childrenw ith special health care needs. C onsistent w ith the problem s experienced by children on M edicaid in accessing prim ary care,CM S has experienced problem s in finding prim ary care providersto treatCM S children on M edicaid.
204.ln 2004,D O H conducted aProviderA ccess Survey,w hich show ed that
çtreqvery CM S area office orregionaloffice reported thatsome CM s-enrolled
private prim ary care practices w ere closed to new CM S patients during calendar year2003.'' PX 319 atD O H 00077968;St.Petery on 12/8/2009 FinalTr.at228:5 - 229:12.
205.Thatsamesurvey showed thatiçgljow reimbursementratesandlack of
capacity w ere the top tw o reasonscited forthe closure ofprim ary care practicesto new CM S patients,follow ed by CM S patients'health conditions being considered too complex forprim ary carepracticeand adm inistrativeburden/paperwork.''1d.
206.Thesurvey also showedthat'tlelveryCM S providerrecruitmentoffice
attem pted to recruitprim ary care practitionersto becom e CM s-enrolled providers
during calendaryear2003. Almostthree-fourths(72% )ofthecontacted private
prim ary care providers declined to enrollas CM S providers. Low reim bursem ent ratesand lack ofcapacity w erethem ain reasonscited fordeclining to participate.'' 1d. There is no indication in the record thatthese problem s have disappeared or havebeen substantially am eliorated.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 98 of 153
1. B lood Lead Screening 207.A spartofan EPSD T exam ,children on M edicaid m ustbe screened for blood lead poisoning at 12 and 24 m onths,and ifthey did nothave a testearlier, they m ustbe screened forblood lead poisoning betw een 36 and 72 m onths. PX 71 at AHCA 00148486. Doctors can comply w ith the blood lead screening requirem ents by either doing the testing them selves orreferring theirpatientsto a laboratory fortesting. Snipeson 12/9/2009 FinalTr.at391:12 - 393:2. 208.There isno safe leveloflead in the blood. PX 77 atFL-M ED 07068. The higherthe lead level,the m ore severe the consequences. 1d. H igherlevels have an even greater im pacton the health and cognitive developm entofchildren,
including lower1Q,behavioralproblems,hearing loss,neurologicalimpairments,
and death. 1d 209. Screening children for blood lead poisoning at an early age is
important. As defendantshave stated,içlsjcreening forblood lead can lead to
effective early interventions,decreasing overalltreatm entcostslater.'' PX 98. 210.According to the CDC,Florida ranks8th in thenation forthe num ber
ofestim ated children with elevated blood lead levels. PX 71atAH CA 00148485; Snipeson 12/9/2009 FinalTr.at399:12-16. Jacksonville and M iam irank 21stand 32nd respectively am ong large cities in the U nited States,w ith an estim ated 1,900 children w ith lead poisoning. PX 71atA H CA 00148485.
211.A prim ary source of lead exposure in children is lead-based paint, which w asused in m any hom esbuiltpriorto 1978. PX 77 atFL-M ED 07070. H om esbuiltpriorto 1950 pose an even greatestrisk forchildren,asthe am ountof lead in paint from that era is generally greater and the structural condition of the hom es often facilities greaterrisk oflead exposure. f#. The portion ofpre-1950
homesinFloridavariesbycountyfrom 3% tojustover15% .1d.
98

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 99 of 153

212.Florida'sdiverse population ofim m igrants,refugees,and foreign-born

children are at further risk for lead poisoning because of specific high-risk

behaviors and custom ary use offoreign products containing unsafe levels oflead.

PX 71atA H CA 00148485;Snipeson 12/9/2009 FinalTr.at399:8-11.

The CM S 416 report subm itted in A pril of 2008 show ed that only

60,000 blood lead screeningshad been conducted forthe 250,000 eligible children

betw een the agesof1 and 2. PX 8 atA H CA 0000087-88. M r.Snipestestified,ttl

w ould say personally to m e that's notacceptable.'' Snipes on 12/9/2009 FinalTr.

at372:5-11.

214.ln 2006,the m ostrecentyear forw hich there is fgures in the record,

there w ere 389 new reported cases ofblood lead poisoning in Florida,w ith 20 or

m ore new cases reported in Brow ard,D uval,H illsborough,M iam i-D ade,O range,

Pinellas,and Polk counties. PX 77 atFL-M ED 07073.

For fiscal years 2005-06, 2006-07, 2007-08, and 2009-10, A H CA

requested an increase in reim bursem entrates forblood lead screening forchildren,

stating:tdB ecause physicians are notreim bursed forthe collection and handling of

1ab specim ens during an office visit, M edicaid children are being referred to a

laboratory for the required blood lead test rather than the physician collecting the

specim en and forw arding itto the laboratory foranalysis. Lack ofreim bursem ent

has fragm ented care,due to the factthat m any recipients do not follow through

w ith the lab trip.,,31 px

7044PX

705;PX

97;PX

98;Snipeson

12/9/2009 FinalTr .

at391:12 - 397:8.

216.M r.Snipes supported the agency's request for an increase in fees for

handling blood and believed that it w ould im prove beneûciaries' ability to get

31One ofthe nam ed plaintiffs,S.M .,hasnotbeen tested for blood lead exposure,because the firsttim ehism othertook him to the lab itw asclosed,and she subsequently w asnotableto take
him backbecauseofdifficultiesinsecuringtransportation.Seesupraat!11.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 100 of 153
blood lead tests. Snipes on 2/9/2009 Final Tr. at 397:2-8. H e consistently proposed increases in reim bursement rates for blood lead testing, because he believed thatthere w asa problem thathad to be addressed.1d.at399:22 - 400:2.
J. Provision/u tilization/Tim elinessofSpecialistC are U nder the EPSD T requirem ents,children on M edicaid should have
access to preventative care screenings and treatm entfor the conditions identified.
42U.S.C.jl396a(a)(43)(C).Oftenspecialistcareisrequired.Brown-W oofteron
10/18/2011R ough Tr.at135. 218. D r. A gw unobi, speaking as Secretary of A H CA at the tim e,
acknow ledged the problem of access to specialists for the Florida M edicaid population,including children:
1 personally have traveled to a1lofour differentareas - our l1 area offices, and l found that by far, the single biggest problem facing A H C A today isaccessto specialty care forM edicaid recipients. The single biggest problem . W e have m any problem s, but that's the biggest.
PX .126A at5. D r.A gw unobi,in the sam e speech,referred to the problem as($a crisisin accessto specialty coverage forthispopulation.'' 1d.at6.
219.Defendantsobjecttothesestatementsonthegroundsthattheywerenot
applicableto children. D r.A gm m obi,how ever,expressly stated in hisspeech that hew asspeaking aboutaccessforspecialty care forchildren asw ellasadults: ççW e
have children and people rightnow thatneed accessto specialty care.'' PX 126A . H e illustrated the pointby stating:
So w hatthis m eans isthatw hen a child goesto the em ergency room w ith a broken arm ,they can'tfind an orthopedic surgeon to follow up w ith.A bscess teeth,can't getcare. U sually through m any hours of w ork and basically pleading on bended knee,w e have actually found care for thatpatient. H ow ever,there are unacceptable delays w hich translate into poor quality and som etim es patients have to travelfor m iles. So all of that is to say yes, the service indicates and our

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 101 of 153
experience confirm s that w e have a serious access to healthcare problem in thestateofFloridaand,wehavetoaddressit.
1d.at5. 220.Dr.A gw tm obisaid thatw hilethere arem any reasonsfortheproblem of
accessto specialists,tûonething isveryclearg,pqrovidersareingeneralunderpaid
in contrastto com m ercialinsurance and M edicare.''1d.at6.Seealso PX 305 atLSTP 012841.
221. 1 find D r. A gw unobi's adm issions regarding insufficient access to specialty care to be highly probative. D r.A gw unobi w as the highest ranking individual in the agency prim arily responsible for M edicaid, and he w as not testifying in the m idstof litigation. H e could nothave been m ore clear as to the seriousnessofthe issue,characterizing itasa ççcrisis.'' This adm ission issufficient evidenceofan accessproblem w ith respectto specialists.
222. O ther A H CA secretaries presented sim ilar view s in docum ents. Secretary Tom A rnold observed thatçtw e have a system thatisgrow ing by double digits,whereprovidersarepaidlessand lesseach year,accessislim ited,outcom es are notm easured,racialdisparitiesin health accesscontinue,and participantsare
stigmatized. l'dsay that'sabadsystem.'' PX 277A. SeealsoPX 195(emailof
M r.Arnold,then Deputy Secretary for M edicaid and later Secretary ofAHCA , asking dican w e do anything that m ay reduce the reluctance of specialists in
participatinginM edicaid?'').
223.D r.A gw unobi'sview s are reinforced by a 2007 survey ofthe A H CA
regionaloffices,which showed amajority ofregionalofficesreporting an ççacute
shortage''ofspecialistsform ostspecialty types:
101

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 102 of 153

'
AREA OFFIC ES - ListofM ostCom m on Specialty Shortages *

* =Acutos,rwapeot'Mostkuu prowep'sAeceptin.qA-l/ca/,ntizntq

AREAS

Specialty

21*o .%4o A*kq.?e go4t lwse 4x+ rae;io% 4.o+ #oo Aom zw4+% TOTAL

lotolaryrlgology

.

* è #..'* * è * ' ,* è *.. * 1'5

Ncurology/Netlrosurgel (Adults& Pediatric) * * * * * * * * *

* 10

OrthopedistsxrthppedirSyrq.tfy

u!)ermatology

- - - .-.

'Rheùmatology

. *

*

* ,
..=

'=*w t .

.

'

*

: *g

'*' .*k '

* * ** @ *

* *

* .' 10 * 9

* '* * * # @ '* @ ' ' * ' 9

PainManagement

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PX 205. 224. The survey responses from a num ber of the A H C A area offices

confirm ,and in certain instances,provide m ore detailthan the statew ide sum m ary.

SeePX 200(Area 10;Broward County);PX 201(Area 1shortages- Pensacola); PX 202 (Area 9 specialistshortages - Palm Beach county);PX 203 (Area 6

specialistshortages- Tampa);PX 204 (Area7;CentralFlorida);PX 722 (Area2; Floridapanhandlecounties);PX 708(Area8;SouthwestFlorida). Forexample,
the response form A rea 11,w hich includes M iam i-D ade and M onroe counties,

statesthatthere isa shortage ofççpediatric specialistsofevery kind''and thatd%there

are no specialists of any kind w illing to treat M edicaid recipients'' in M onroe

county. PX 199. A H CA ,through tw o agency representatives,testified thatthere

w as no reason to believe thatthe problem sidentified in the survey w ere problem s

for adults,but not for children. Kidder on 5/19/2010 FinalTr.at 2529:20 -

2530:10;B row n-W oofteron 10/25/2010 FinalTr.at83-96.

102

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 103 of 153
225.AHCA ranked the differentspecialty practicesexperiencing shortages. PX 710. Theselûpriority rankings''ofshortagesw ere applicable to children asw ell asadults.Nieveson 5/17/2010FinalTr.at2068:9-11.
226.Other internalAH CA docum ents and com m unications are consistent w ith the existence ofdifficulty in accessing specialists fortheM edicaid population
throughout the state. See e.g.,PX 210 (October 2007 letter from Secretary
A gm m obi inviting providers to a M edicaid A ccess to Specialty Care Sum m it, noting he had traveled the state,speaking aboutFlorida M edicaid w ith providers, com m unity-based organizations, and A H CA staff, and stating: ûçW ith rare exception,w hen asked w hatthe m ostcriticalissue facing the program w as,they identified the increasing lack of access to specialty m edical care for M edicaid
beneficiaries.''); PX 181 (shortage of dermatologists, neurologists and neurosurgeonsforkidsandadultsinJacksonville);PX 182A (documentingaccess
problem s for children seeking orthopedics gastroenterologists,neurologists,and
cardiology in Area 2);PX 188 (2006 AHCA survey showing lack of readily availablespecialistcare);PX 211at7-11(relativenumberofspecialistsproviding M edicaid servicesto totalspecialists);PX 221 (2000 survey ofaccess to care
show s relative lack of access for M edicaid population and also geographic
differencesin access);PX 187 (Area38 Ocalaareaservicesnotreadily available in number of specialty types);PX 319 (no or very limited access to certain specialty care for M edicaid children in CM S);PX 338 (tçsignificant crisis in PanamaCityareawithorthopediccoverage'').
227.The diffculty in access to specialist care found in the 2007 survey corroborates an earlier A H CA study entitled tçA ccess to M edicaid Physician Specialists.'' PX 563. This survey m easured access by dividing the totalnum ber of M edicaid arm ual visits in 2003-2004 by the national average of visits per specialistphysician and then com pared thisSçestim ated M edicaid access''figure to
lO3

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 104 of 153
low est and highest estim ate of needs based on the literature. Each physician specialty w as then given an access score from 1 to 5. The follow ing services
rankedeithert$1(indicating accessunder50% ofthelowestestimateofneed);or (access under the low estimate ofneed''): allergy,dentists,dermatology,
endocrinology,hem atology,infectious disease,nephrology,neurology,oncology, orthopedic surgery,pulm onary disease,rheum atology,and urologicalsurgery. PX 563 at Flint 01131,01135. This survey also show ed the com parative lack of accessper county.
228.SeveralAH CA areaadm inistratorsnonethelesstestified thatthey either neverhad orno longerw ere facing diffculties w ith respectto accessto specialty care forM edicaid recipientsin theirareas.See e.g.,N ieveson 5/18/2010 FinalTr. at2260:5-18;A lbury on 11/15/2011 Rough Tr.at 107;K im bley-cam panaro on 10/6/2011R ough Tr.at98-103. 1tind theirtestim ony unpersuasive for a num ber of reasons.
229.First,som e of these w itnesses directly contradicted their ow n sw orn deposition testim ony or prior written statements. For exam ple, M s.Kidder testitied attrialthatshe did notbelieve the shortages noted in the A H CA survey
ççwereassystematicastheyappearonthatchart(PX 2051.5'Kidderon5/20/2010
Final Tr.at 2751:1-6. At deposition,however,M s.K idder testifying as the A H cA -designated agency representative on these issues- acknow ledged thatthe agency believed ççthere w as a critical access to care problem in these specialty types''asto which a LBR was m ade,and thatremained true atthe tim e ofher deposition. 1tL at2751:7 - 2752:5. Seriouscredibility issues existw hen a w itness
signiticantly changes her testimony from thatgiven as a sworn Rule 30(b)(6)
w itness. Sim ilarly,testim ony by M s.K im bley-cam panaro,A H CA 'S Tam pa-area program director, directly contradicted her em ail, PX 203, w hich found
l04

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 105 of 153
tûchallenges'' in her area for ten different areas of specialists. tichallenges'' connotesdifsculty in finding sufficientspecialistproviders.
230.Second,som e ofthistestim ony w asbased on unreasonableassum ptions as to w hat constituted reasonable access to care. For exam ple,M s.Fran N ieves testified thatthere were no difficulties securing access to specialists in area 8, despite the factthat 14 areasofshortage w ere identified in 2007 forherarea. See PX 205. H eropinion assum ed thatifa single specialistw asavailable forM edicaid
recipientsin thatareaoranadjoiningarea,then sufficientaccessexisted.Nieves on 5/18/2010 Final Tr. at 2264:7-15; id. at 2265:1-5 (stating that çtif (a1
derm atologistin dow ntow n M iam iw asaccepting som e children on M edicaid,that w ould m ean forpum oses ofArea 8 over in Sarasota you w ould have an available
dermatologisf').
231.Third,A H CA area adm inistrators'testim ony w asbased on com plaints they received about difficulties in accessing care. If they did not receive com plaints,because beneficiariesorprovidersdid notcontactthe area offce,they w ouldnotknow aboutdifficultiesin accessing care.See,e.g.,Grayon 11/28/2011 atRough Tr.29;N ieveson 5/l8/2010 FinalTr.at2268:6-22;K idderon 5/20/2010 FinalTr. at 2753:2-19. The area office also does not follow up to determ ine whether care w as received, or if received,whether it was unduly delayed or involved extensive travel. See, e.g.,Gray on 11/28/2011 Rough Tr.at 30-32; A lbury on 11/16/2011 Rough Tr.at48;Fulleron 11/29/2011Rough Tr.at87,119120.Sim ilarly,theinability ofan AH CA employeeto recallany discussionsin the office concerning a child going w ithoutspecialty care is w eak evidence atbestof the lack ofa specialty access problem . A lbury on l1/15/2011 R ough Tr.at 121. This is especially true given docum entary evidence from the sam e area office attesting to ashortageofspecialists. Albury on 11/15/2011Rough Tr.at121.See
aslo PX 202 (specialistneeds in Area 9 where M r.Albury works);PX 198
105

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 106 of 153
(shortageofpediatricspecialistsofeverykindinArea11whereM s.Grayworks).
A s one A H CA w itness acknow ledged,he could not say w hether or not children
wereactually denied care,justthathewasnotmadeawarethatcarewasdenied.
Albury on 11/16/2011RoughTr.at46. 232. Fourth, when pressed, these same w itnesses often conceded the
existence of a specialist care problem . For exam ple,Rhea Gray,the A rea adm inistrator,testified she personally wasnotaware ofcomplaints aboutaccess problem sand thatan adequatenum berofspecialistsw ere enrolled in the M edicaid program . ButM s.Gray adm itted on cross exam ination that she had correctly w ritten thatthe realissuesw erethe w illingnessofthose specialiststo seeM edicaid patients,and thatlow pay and billing difscultiesw erethereported reasonsfortheir unwillingness. Gray on 11/28/2011Rough Tr.at43-44. Further,while she had not experienced m ore than a tw o-w eek delay in having patients seen at M iam i Children's H ospital or Jackson M em orialH ospital in M iam i,she acknow ledged thatfrequently the w aittim e forM edicaid children to be seen by a specialistatone of those hospitals w as from six to nine m onths. f#. at 45. Finally,M s.Gray subm itted a report,which w as approved by her colleagues,indicating thatthere w ere no specialists tçof any kind''w illing to see M edicaid recipients in M onroe County and thattheA rea 11 ofûcehad difficulty in fnding specialty care in eleven differentfields,including ttpediatricspecialistsofevery kind.'' PX 199.
233. Fifth, none of the testim ony provides an explanation to support defendants'argum entthatthe çsacute shortages''in mostspecialty areasstatewide hassuddenly disappeared. There have been no changesin reim bursem entratesfor specialists during this tim e period,Nieves on 5/18/2010 FinalTr.at2262:7-16, although dem and forservicescontinuedtoincrease.
l06

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 107 of 153
234.Forallofthesesam ereasons,Iplacelittleweighton theconclusorylay opinions offered by M s.K idder and other AH CA w itnesses that there w as no difsculty with regardto accessto specialistcareforchildren onM edicaid.
235. The existence of a severe problem in access to specialists is also reiected in AHCA 'SLBRS submitted to the governorand legislature to increase the reim bursem entrates forderm atology,neurology,neurosurgery and orthopedic surgery,each ofwhich are specialiststhatchildren utilize. K idderon 5/19/2010 FinalTr.at2528:12-17. The given reason forthe requested increase w asa critical accessto careproblem in those areas. PX 89;PX 90,PX l0;K idderon 5/19/2010 FinalTr.at2527:8 - 2528:7. O ne AH CA LBR stated: tt-l-heM edicaid area offices have identifed a physician specialty provider shortage and criticalaccess to care
problem''in these specialty areas. Ex.727 (emphasisadded). These areaswere
selected because a m odest proposal w as believed to have the best chance politically for passage. Snipes on 12/9/2009 Final Tr. at 405:6-13; lsaac on
8/11/2010FinalTr.at3883:4-24(testifyingtostatementofSec.Agwunobi).
236.M r.Snipes confirm ed that these LBRS retlected the views of the
agency. Snipes on 12/9/2009 FinalTr.at 403:11-22. He testified:ç%(W )e
supported the issues;w e feltthe issuesw ere im portant,even critical.'' fJ.at459:110.
237.The LB RS requested increases in specialistreim bursem entfor several years. A n A H C A w itnesstestified thatthey take the statem ents in those requests
ççextremely seriously'' and dsdo their best to give (the legislatureq accurate
inform ation.'' K idderon 5/20/2010 FinalTr.at2741:4-6. The LB R Sw entthrough a review processby a num berofindividualsand bureausinside A H CA ,including thesecretary.They werethenreviewedbythegovernor'sofficeand werelistedas
one ofthe prioritiesforlegislative action. PX 719 (for2009-2010 fiscalyear,
physician specialty fee increase w as num ber one A H CA priority in G overnor
107

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 108 of 153
Crist'srecommendations). 1find the agency'sconsistentposition expressed in
these LB RSpersuasive evidence asto the conditions in M edicaid relating to access to specialty care.
238.Evidence from the D OH dem onstratesthatCM S children on M edicaid also lack accessto specialty care. CM S reported in a2004 CM S survey ofthe 17 CM S area and regional offices widespread problem s with regard to accessing specialty care.The pediatric specialtiesforwhich no accesswasm ostfrequently encountered w ere derm atology,neurologicalsurgery,orthopedics,psychiatry,and urology. PX 319. ln O ctoberof2008,V ickie Posner,testifying asa designee of D OH ,w as asked w hether D O H w as aw are of any difference in the ability of children on M edicaid to access specialty care as com pared to children w ith other types of insurance. She replied: SsA necdotally w e know that som e- if you are going to include all of insurances in that question- private paying, private insurance children have access to services thatM edicaid children do nothave.1 think that'sfairly w idely recognized in the StateofFlorida.'' Posneron 10/28/2008
Depo.Design.at83:20- 84:12(limitedbycourtordertoCM Schildrenonly).
239.A num berofpediatriciansthroughoutthe statealso gave consistentand persuasive testim ony as to the difficulties they faced in refening children on M edicaid to specialist. Dr.Cosgrove,whose practice consistsofapproxim ately 20% M edicaid patients, has difficulty referring children on M edicaid to derm atologists,allergists,orthopedic surgeons,neurologists,and endocrinologists, difficulties she does not face with privately insured patients. Cosgrove on 5/19/2010 Final Tr.at 2563:12-17,2566:11-15,2569:11 - 2571:14,2573:1-6. These difficulties have continued with regard to referring M edicaid children to
108

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 109 of 153

rheum atologists,orthopedics,and derm atologists;C osgrove on 1/31/2012 R ough

Tr .

at

149-152.32

240.D r.Silva,w ho had approxim ately 20% ofherpractice w ith M edicaid

patients, also testified that she has trouble referring M edicaid patients to

derm atologists, EN T S, ophthalm ologists, orthopedists, endocrinologists, general

surgeons, rheum atologists,and infectiousdisease specialists,am ong others. Silva

on 5/20/2010 FinalTr.at2779:6-15. M edicaid children haveto waitthreeto five

m onths in B randon and one to three m onths in Tam pa, w hereas com m ercial-

insurance patientscan be seen w ithin one to tw o w eeks. 1d.at2779:17 - 2780:8. In rebuttal testim ony, D r. Silva confrm ed recent difficulties and travel tim es

experienced by M edicaid patients she refers to specialists, such as allergists,

derm atologists,and endocrinologists,difûculties not experienced by her private

patients. Silvaon 1/19/2010 Rough Tr.at140. 241.D r.Schechtm an,w hosepractice consists of23% children on M edicaid,

sim ilarly testised thatitis ttm uch m ore difficultto find a specialistw ho isw illing or has an open panelto see M edicaid patients.'' Schechtm an on 5/20/2010 Final

Tr.at2836:1-5. Forexample,achild with apotentially precancerousm ole could

not see a dennatologist for at least six m onths. 1d. at 2838:2-13. Orthopedic

surgeonsw ould only see M edicaid patientsw ith lim ited diagnoses.1d.at2839:3-

11. By contrast,there w ere ddno barriers''w ith respect to com m ercially-insured

patients. 1d. There w ere no pediatric neurologists in Palm B each C ounty w illing to accept M edicaid patients,requiring those patients to travelto M iam ito seek

care. 1d.at2840:16 - 2841:12. O n one occasion,D r.Schechtm an had to adm ita

child on M edicaid into the hospitalto receive cardiac care thatcould have been

m anaged in a low-costoutpatientsetting ifthe child's M edicaid 11M 0 plan had

32IrecognizethatDr. Cosgroveusuallycalledthefirstthreetofoursgecialistsonherlist,
andhavetakenthislim itationintoaccountinassessingtheweightofhertestlmony.
109

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 110 of 153
been accepted by pediatric cardiologists. f#.at2842:25 - 2844:14. Access for M edicaid patients to ENT specialists is also ttextrem ely lim ited,'' although privately insured patientshaveSino problem ''being seen.1d.at2844:15- 2845:17. Dr.Schechtman'srebuttaltestimony show edthatthe obstaclesin providing access to specialty care for children on M edicaid continue. Schechtm an on 1/26/2012 Rough Tr.at14-21,30-33.
242.D r.lsaac testified thatorthopedic care is not available to children on M edicaid in the ilreasonable area''around hispractice. C onsequently,he hasseen children w hose broken lim bs w ere only putin a splintand nota cast,w hich D r. Isaac characterized as çim edicalneglect.'' lsaac on 8/11/2010 FinalTr.at3869:1020. O verthe pastfew years,D r.Isaac hasbeen unable to referM edicaid patients to specialists in orthopedics, neurosurgery,derm atology, or psychiatry. 1d. at 3873:3-23.
243. O ther PCPS have also experienced trouble referring children on M edicaid to specialists- an issue that those w ith private insurance do not face. See e.g.,Seay D epo.D esig.on 11/14/2008 at15:9 - 16:24,20:2-9,57:7-21,103:710;St.Petery D epo.Desig.on 11/11/2008 at191:1-4,195:7- 196:11,197:15-25, 198:21- 199:10;Ritrosky D epo.D esig.on l1/10/2008 at 17:17- 18:14,27:18-22, 3929 - 40:3,45:2 - 47:7,50:8-23,50:8 - 51:1;Curran D epo.D esig.on 10/7/2008 at30:4 - 31:8,32:16 - 34:14,37:13 - 38:11,55:8 - 56:4;Chiu D epo.D esig.on 11/25/2008 at 103:19 - 106:1;K nappenbergerD epo.D esig.on 11/20/2008 at32:9 - 33:5,99:12 - 100-8.
244.Barriersto access to specialistcare w ere confirm ed by testim ony from various m edicalspecialists. D r.D uncan Postm a,w ho isthe supervising partnerat Tallahassee EN T ,testified that their practice lim its the geographical area from w hich they acceptM edicaid patients,declining to acceptpatients from outside the 7 county area and lim iting the num ber of new M edicaid patients to tw o new

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 111 of 153
patientsperweek,perdoctor. Postma on 8/4/2010 FinalTr.at3152:2-19. A sa result,M edicaid patients requiring non-em ergency ENT care face a two-m onth delay,as opposed to the two-week delay experienced by non-M edicaid patients. 1d.at3153:7-23,3155:7-16. These lim itations are im posed because Tallahassee
ENT dtlosegsqmoney on M edicaid patientsand can only affordto loseso much.''
1d. ln2006,theaveragecostofanENT patientencounterwas$138,butM edicaid paid approxim ately $88 per encounter;in 2007,the average encountercostwas $135,and M edicaidpaidapproxim ately$85.1d.at3187-89.ForaM edicaidchild patient,TallahasseeENT lostan averageof$45-$50 perpatientin 2006 and 2007.
1d.at3190:5-17. 245.D r.BrettB aynham is an orthopedic surgeon in Palm Beach C ounty,
whose practice is 95% children. Tw enty-five percentto 30 percentofhis patients used to be children on M edicaid. ln 2004,how ever,he lim ited the num ber of M edicaid patientshe w ould seebecause ofthe low reim bursem entrates. Baynham
on 1/24/2012 Rough Tr.at8-9,12.See also PX 770 (M arch 2010 em ailfrom
pediatric otolaryngologist,stating he isthe only pediatric EN T in the W estPalm Beach area seeing M edicaid patientsin an offce setting and thathe ispresently
schedulingM edicaidpatientsmorethan2-3monthsout.).
246.Dr.A dam Fenichel,an orthopedicsurgeon in theOrlandoarea,testifed similarly. W hile 80% ofhispatientsarechildren,only 5% are on M edicaid. Dr. Fenichelsees2,000 new patientsa year,buthe lim itshispractice to only a couple hundred M edicaid patients,becauseçtthereim bursem entforM edicaid islow erthan our cost to care for patients.'' Fenichel on 10/18/2010 Final Tr.at 4301:20 4302:4,4306:2-24.See also PhillipsD epo.Desig.on 11/24/2008 at14:9-17,33:210,34:2-16,83:8-18;.
247.Dr.RicardoAyala,aspecialistinpediatricneurology,testifiedthat:(1)
he lim itsthe num berofnew M edicaid patientshe sees in hisTallahassee practice;

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 112 of 153

(2)helosesmoneyontreatingthesechildren;and(3)thesechildren faceafourto
five m onth wait,as opposed to a two-week waitfor privately insured children. Ayala on 8/9/2010 Final Tr. at 3569:21 3570:1, 3580:4-16, 3589:2-11. Furtherm ore,w hen he needsto referchildren on M edicaid to otherspecialists,such as orthopedists,psychiatrists, sleep disorder specialists,and rheum atologists,the referralsarenotaccepted.1d.at3594:1-14;3615:6- 3620:24.
248.Plaintiffs also presented the testim ony of D r.R ex N orthup, w ho in addition to being a criticalcare pediatrician,served asthe CM S regionalm edical directorforN orthw estFlorida. Though he doesnotknow ofany CM A child w ho has been denied access to specialty care,there are a num ber of areas w ithin that region w here there is ççan inability to obtain accessto care w ithoutaugm enting or supplem enting the M edicaid rate.'' N orthup on 2/10/2010 FinalTr.at1598:13-21. C M S has supplem ented the M edicaid rate so as to obtain derm atology care, because no providers routinely see children for the M edicaid rate. N orthup on 2/10/2010 FinalTr.at 1617:8-25.See also Curran D epo.D esig.on 10/7/2008 at 45:1 - 46:9;K nappenberger D epo.D esig.on 11/20/2008 at 22:17-25; Seay on 11/12/2008 D epo.D esig.at 106:14 - 108:6. There are no orthopedists to treat children on M edicaid in the Panam aC ity area,exceptin theem ergency departm ent of the hospital. 1d. at 1620:17-20, 1622:6-22. Children requiring orthopedic specialty care m usttravelto otherareas,such asJacksonville or Gainesville,w hile there are orthopedists w illing see privately-insured patients in the area. 1d. at 1630:19 - 1631:23 33 EN TSin thearea lim itthe num berofM edicaid children they
.
willsee,requiring these patients to drive three hours or m ore for care. 1d.at 1638:2-12. Forpediatric neurology care,the w aitfor M edicaid patients is tw o to

33

D

r .

N

orthup'stestim

ony

on

these

points

isnotdependenton

the

residual exception

to

the hearsay rule,as to w hich anotheraspects ofDr.N orthup'stestim ony concerning rates w as

adm itted.Tr.at1636:22 - 1637:9.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 113 of 153
threem onths,asopposed to a couple ofweeksforotherpatients. 1d.at1643:23 1645:18.
K . Provision/u tilization/T im elinessofD entalC are 249.Dentalcare isespecially importantforchildren on M edicaid because low -incom e children are atsubstantially higherrisk fordentaldisease,and prim ary t00th decay,and havehigherlevelsofuntreated dentaldisease. PX 85,PX 707. 250. States are required to provide eligible children w ith dental services including dsrelief of pain and infections,restoration of teeth,and m aintenance of
dentalhealth.''42U.S.C.j1396d(r)(3)(B).Theyarealsorequiredtoreportonthe
num ber of children receiving dental services. The CM S 416 reportfulfills that reporting requirem ent.
251.For FY 2007,of the approxim ately 1.6 m illion children eligible for dentalservices through Florida M edicaid,only 343,000 received any dentalcare, according to the CM S 416 reportA H CA subm itted in A prilof 2008. See PX 8
(comparelines1and 12a).M r.Snipes,acknowledged,tçg-flhat'snotacceptable.''
Snipeson 12/9/2009 FinalTr.at373:1-8;see id.at442:17-23. Thatequatesto a
dentalutilizationof21% (343,529/1,611,397),PX 440at52-53,whichmeansthat
79% ofthe children on M edicaid in Floridaw erenotreceiving any dentalcare.PX 440 at52-53. Thattied Florida forthe low estM edicaid dentalutilization rate in the nation. PX 440 at 52-53. Fiscalyear 2007 w as not an aberration. ForFY 2006,Florida's M edicaid dental utilization rate w as also 21% ,w hich tied it for second low estin thenation.PX 440 at52-53.Seealso PX 418atp.9.
252.Children on private insurance receive dentalcare ata far higherrate. N ationally,55% ofchildren with privateinsurancevisited adentistwithin agiven year,w hile only 37% ofthe children on M edicaid visited a dentistover the sam e time period,according to a 2008 GA O report. PX 452 atCra1101734;Crallon 11/17/2010 atTr.5093:20 - 5094:9;5161:9 - 5162:25. O nly 49% of children

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 114 of 153
under 18 from fam ilies w ith incom es above the poverty line had a dentalvisitat leastonce during a lz-m onth period. Thatfigure rose to 26% and perhapsashigh as 73% for fam ilies w ith incom esabove 200% ofthe poverty line,according to a 2001reportby the federalD FIH S.PX 447 atCrall000750.
253.A H C A ,in a seriesofLBR Sand otherdocum ents,hasacknow ledged for nearly a decade thataccess to dentalcare for children on M edicaid is inadequate andthatratesmustbe increased.A HCA,through itsLBRS,furtheracknow ledged that:
* D entalparticipation in the Florida M edicaid program is declining, c.g.,PX 82,PX 83,PX 84,PX 85,PX 88,PX 109,PX 726.See also Sharpe on 11/16/2010 FinalTr.at 4947:1-8;Cerasolion 8/11/2010 FinalTr.at3934:18-25;
* Florida's M edicaid reim burses dentists at less than 40% of their usualand custom aly costs,e.g.,PX 80,PX 81,PX 82,PX 83, PX 109, PX 715, PX 718, PX 726. See also C erasoli on 8/11/2010 FinalTr.at3935:12 - 3939:14;
@Florida'sM edicaid reimbursem entrates are very low com pared to other states,c.g.,PX 80,PX 85;PX 88,PX 155;PX 718.See also C erasoli on 8/11/2010 Final Tr.at 3957:16 - 3961:18; Sham e on 11/16/2010 FinalTr.at4954:8-21;and
* Florida dentists say the state's M edicaid rates do not cover their costs.PX 80,PX 81,PX 82,PX 83,PX 84,PX 88,PX 109.
254.The LB R Srepeatedly called fora rate increase,and state,in alm ostthe exactsam e language,yearafteryear:(dA fee increase forchildren'sdentalservices
isneeded ifservice isto beavailable.'' PX 78.See also PX 80 (same),PX 82 (same),PX 83,PX 109 (same).TheLBRSalsostatethatEllaqn increaseoffeesis
expected to increase provider participation, and subsequently, increase access to

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 115 of 153
dentalcare.'' PX 80. The testim ony about these LB RS is consistent. See,e.g., Sharpe on 11/16/2010 FinalTr.at4945:18 - 4949:8;4952:16 - 4953:19;4956:16 - 4963:19;at4964:19 - 4966:19;4968:5- 4970:25;Snipeson 12/9/2009 at411:15 - 414:10;at415:10- 416:8;K idderon 5/19/2010 FinalTr.at2534:12-24.
255. N one of the above recom m endations to increase dental fees w as adopted by the legislature. Snipeson 12/9/2009 FinalTr.423:20-22. For every sscalyearsince 2005-2006,the K idcare Coordinating Councilhasrecognized the inadequacy of Florida's dental rates and recom m ended increases in dental reim bursem entrates. PX 697,698,699,349,350,682. From 1987 through 2010, Florida M edicaid dentalrates w ere increased once,by 13% in 1998. Cerasolion 8/11/10 FinalTr.at3951:10-25. M eanw hile,children's enrollm entin the Florida M edicaid program rose by approxim ately 78% from 1998 to 2008,thus w idening the gap betw een the services needed and the services available. PX 682 at 12; K idderon 5/19/2010 FinalTr.at2485:4 - 2486:4.
256.D efendants claim thatsom e sgures in the LBR S show ing a decline in the num ber of dentists participating in M edicaid w ere sim ply copied w ithout verification from one yearto the next. Even iftrue,how ever,itis clearthatthe percentage of licensed dentists enrolled in and participating in Florida M edicaid has declined. A H CA 'S ow n interrogatory responses dem onstrate thatthe num ber ofgeneraldentistsw ith 100 orm orepaid claim sfortreating children declined from 616 to 377,a drop ofm ore than 3824,from FY 2003 to FY 2007. PX 739 atTable
During the sam e tim e period,the numberoforalsurgeonswith 100 orm ore paid claim s for children fellm ore than 30% and the catchall category of other dentistsplum m eted from 130 to 42,a decline of67% .f#.
257. The reason for these declines Florida's inadequate dental reim bursem entrates. A 2004 study by the A m erican D entalA ssociation,w hich A H CA relied upon w hen drafting itsLBR S,show ed thatFlorida ranked 48th in the

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 116 of 153

nation forpreventative servicesand 49th in thenation fortreatm entservices. PX 155 at13-14;Cerasolion 8/10/10FinalTr.at3960:22- 3961:18.Thatsam estudy

show ed that for 15 dental procedures, Florida's M edicaid reim bursem ent rates

ranked

at or below

the

5 th

percenti1e

nationally .

For ten procedures, Florida's

reim bursem entrates w ere below the firstpercentile nationally. PX 155 at6;PX

109atAHCA 00719087to88(showingreimbursementrateswerebelow dentists'

costsfor6 of7 proceduresanalyzed);Cerasolion 8/10/1lFinalTr.at3957:3 -

3959:24. 258.ln 2001,theH ealth CareFinancing Agency,the predecessorto federal

CM S,stated;içln general,H CFA believes thatsignificantshortfalls in beneficialy

receipt of dental services,together w ith evidence that M edicaid reim bursem ent

falls below the 50th percentile of providers' fees in the m arketplace, create a

presum ption of noncom pliance w ith both these statutory requirem ents. Lack of access due to 1ow rates is not consistent w ith m aking services available to the M edicaid population to the sam e extent as they are available to the general population,andw ould be anunreasonablerestriction ontheavailability ofm edical assistance.'' PX 447 atCrall00751. Significantly,M s.Kidder adm itted thatif
M edicaid reimbursementsfordentistswerebelow the50thpercenti1e(which they were),then Floridawaspresumptively outofcompliancewith theM edicaid Act.
K idderTestim ony on 5/20/2010 FinalTr.at2733:5-1l. 259.N um erousotheragency officials,including theAH CA secretary,have
acknow ledged substantial problem s w ith Florida's M edicaid dental program . Form er A H CA Secretary, A lan Levine,sent an em ail lam enting that tçonly 16 percentofourchildren in M edicaid fee-for-service gotany preventative dentalcare lastyear.'' PX 277A . Form erD eputy Secretary and laterSecretary ofA H CA ,M r. Arnold,gave aspeech atthe2007 M edicaid Accessto Specialty Care Summ it,in which hepresented chartsshowing thatasm allfraction ofdentistsparticipated in

1 16

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 117 of 153
M edicaid and even fewer actually billed for M edicaid services. St.Petery on 12/8/2009 Final Tr.at240:3 - 245:15. D ocum ents show thatonly 7.8% of the 9,021licenseddentistsin FloridawereenrolledinM edicaid,and only 502 or5.6% , actually billedM edicaid.PX 218at4.SeealsoPX 211atp.9.
260.M r.Sham e testified thathe did notbelieve AH CA w asin com pliance w ith thereasonable prom ptnessstandard asto dentalcare.1d.at4976:15 - 4977:9. H e testified:$çW ell,w e're acltnow ledging that for a federally required service,at leastfor the children's portion of dental care,that the state is not even m eeting federalrequirem entsforthe provision ofthatcare.'' 1d.at4970:20-25;PX 108. H e said he could nothave m ade a stronger statem entw ithoutbeing fired. 1d.at 4962:11- 4963:19;4941:8-25.
261.M ore recently,AHCA recognized that even excluding the children enrolled in prepaid dentalplans,M edicaid 14M O s,and PSN S thatprovided dental care,834,651 children enrolled in Florida M edicaid had not received any dental care in atleastsix m onths,even though theperiodicity schedule callsforthem to havea dentalcheck-up every six m onths.PX 150,PX 790.
262.M s.K idderacknow ledged çia significantshortfallin beneficiary receipt ofdentalservices.'' K idderon 5/20/2010 FinalTr.at2756:21 - 2757:5;2728:2022;2730:6-9. In a Novem berof2006 em ail,she wrote M edicaid reim bursem ent ratesw ere llextrem ely low ''and stated: Sç-l-hisisa seriousbarrierto dentalcare and iscausing problem swith accessto dentalcareacrossm uch ofthestate ....'' PX 167.Seealso Cerasolion 8/11/2010 FinalTr.at3966:13-24.M s.M arcy Cerasoli, AH CA 'Sagency witness on dentalissues,acknowledged thatFlorida'sM edicaid reim bursem ent rates içare am ong the low est in the U nited States.'' Cerasoli on 8/11/2011FinalTr.at3932:13-15. Them ain reason m any Florida dentistsw illnot provide services to M edicaid recipients is because of M edicaid's low

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 118 of 153
reim bursem entrates. 1d.at3933:7-11. Few erand few erdentists are enrolling in FloridaM edicaid and treating M edicaid beneficiaries.16L at3934:18-25.
263.The D OH also acknowledged that tça comm on barrier to access to servicesisalack ofspecialty anddentalproviders,prim arily attributabletothelow M edicaidreimbursem entrates.''PX 315atDOH 00079770.
264. Florida M edicaid 1-1M o s in R efol'm and non-R eform counties m ust reporttheirHED IS results for annualdentalvisitsform em bers age 2 through 21. Florida M edicaid l'lM o s in both program s score poorly com pared to M edicaid l'IM o s nationally. The w eighed m easure of the Florida R eform lIM o s is 15.1955% and the national m easure for l-lM o s is 42.5% , according to a 2007 reporq them ostrecentin the record. DX 334 at2;Brown-W oofteron 11/8/2011 Rough Tr.at32-33.
265.The firstlarge 1-1M 0 to provide dentalcare to M edicaid beneGciaries
wasAtlanticDentallnc.(ççAD1''). From FY 2003 through FY 2007,the most
recentyear for w hich there is data in the record,A D lneverprovided m ore than 23.12% ofeligible recipientsw ith any dentalservices. PX 14,PX 15,PX 16,PX
R eports from individual dentalproviders,covering 2007 and 2008 in six-
month blocks,show thatforeach period,themajority ofproviderstreated fewer
than 15% of the children assigned to them . Severalprovided no dental care w hatsoeverforthechildren assigned to them . DX 519.
266.Testim ony from providersunderscoresthe lack ofaccessto dentalcare. ln the Tallahassee area,dentalcare is readily available to children with private insurance,butnotchildren on M edicaid. Patientsw ith cardiac issuesm ustbe sent to the University ofFlorida dentalclinic in G ainesville w here there is a six-m onth w aitfortreatm ent. St.Petery on 12/8/2009 FinalTr.at260:19 - 261:17;263:5 266:13.
118

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 119 of 153
267.D r.Cosgrove testified thatittakessix m onthsto refera M edicaid child enrolled in M edipassorin the W ellcare 11M 0 to a dentist.Cosgrove on 5/19/2010 FinalTr.at2573:7 - 2574:2. She had a patienton M edicaid w ith an abscessthat could notgetan appointm entw ith a dentistforthree m onths. 1d.at2574:3-23. ln rebuttal testim ony, she testified that these problem s continued. C osgrove on 1/31/2012 Rough Tr.at147-152.
268.D r.Silva testifed thathe does notknow ofany dentists w ho w illsee M edicaid kids for bottle rot or deep cavities. Silva on 5/20/2010 Final Tr. at 2768:1-2;2794:16 - 2796:9. N ordoes she know of any dentists in H illsborough County accepting new M edicaid patients.1d.at2819:20-24;2820:1-18.
269.D r.Schechtm an testified thatm ostofhisM edicaid patientsdo notsee a dentist.1d.at2845:18 - 2846:5;2846:6-18.
270.D r.N orthup testified that there are w aiting lists of ççseveralm onths' tim e''forC M S children to receive specialized dentalcare atSacred H eart's dental clinic. 1d. at 1600:9 - 1601:6; 1602:19 - 1603:9. A t the tim e D r.N orthup
testifed,theclinichadjustbecomeoperableagainafterattseveralmonths'period
of seeing no patients,''because there w as no dentistavailable. 1d. There is high dem and for services at the clinic,because it ttis the only dentalclinic or dental providerin the four-county area specifically seeing pediatricpatientsthatw illtake
M edicaidl.l'' 1d.at 1603:12-18. Otherdentistsin the area acceptchildren on
privateinsurance.fJ.at1603:19-21. 271.D r.N orthup som etim espaysdentistsrates above the M edicaid ratesto
treatCM S children because thatddis essentially the only w ay w e've been able to obtain accessto dentalcare forthose children.'' 1d.at 1605:20-22;1606:1-4. D r. N orthup supplem entstheM edicaid ratespaid to dentistsw hen a child needsurgent care and calm ot w ait the tw o to three m onths it otherw ise w ould take to see a dentist.1d.at1607:18 - 1608:1.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 120 of 153
272. Other PCPS also have trouble referring children on M edicaid to dentists. See e.g.,St.Petery D epo.D esig.on 11/11/2008 at 197:15-25;Curran Depo.D esig.on 10/7/2008at39:21- 41:1,41:22- 42:3,42:16- 43:5;ChiuDepo. D esig.on l1/25/2008 at 87:21 - 89:1;Ritrosky Depo.Desig.on l1/10/2008 at 49:9 - 50:7.
273.D r.N atalie Carris a pediatric dentistwho practices outside ofTam pa. Carron 8/10/2010 FinalTr.at3787:10-13. She practiced in Texas,w here 99% of herpatientsw ere on M edicaid. ln Florida,how ever,she did notacceptM edicaid, because Stthe reim bursem entin Florida w asm uch low erthan itw asin Texasatthe tim e.'' 1d.at3789:25 - 3790:2. Som etim es,parentsofM edicaid children com e to heroffering to pay herbecausethey cannottsnd aM edicaid dentist. 1d.at3791:24 - 3792:8. She has difficulty m aking referrals because there are so few dentistsin the area w ho accept M edicaid, and m ost of those dentists do not accept new patients. 1d.at3793:3-20;3808:17-24.D r.Cal'rtestified thatshe w ould notaccept M edicaid patientsin hernew practice because even w ith a 48% increase,thegap betw een the fees she charges and the reim bursem ent rate is too great. Carr on 1/23/2012Rough Tr.at7:2-19.
274.D r.RobertPrim osch isa ProfessorofPediatric D entistry and A ssociate D ean of Education at the College ofD entistry atthe U niversity of Florida. A s Chairm an ofthe D epartm ent of Pediatric D entistry,D r.Prim osch ran the dental clinic forchildren,80% ofw hom w ere on M edicaid. Prim osch on 8/10/2010 Final Tr.at 3721:15-20;3722:24 - 3723:4;3725:9-16. The clinic saw about 14,000 patients a year,and the dem and for its services exceeded its capacity. 1d. at 3732:25 - 3733:4;3725:17 - 3726:20. W hen D r.Prim osch ran the clinic,there w as a six-m onth w aiting period for children w hose dental needs required hospitalization,andthatwaiting period hasnotshortened sinceforchildren whose care hehassupervised.16L at3731:4- 3732:1.
120

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 121 of 153
275.Dr.James Crallis a professor ofpediatric dentistry atUCLA,and a form erchairofUCLA 'Spediatricdentistry section. Crallon 11/17/2010 FinalTr. at5069:21-23,5070:2-3;5071:1-13. From 2000 to 2008,he w as director ofthe NationalOralHealth Policy Center,which is funded by the Health Servicesand
ResourcesAdministrationII4RSAI.1d.at5070:11-21.Overthelast25years,Dr.
C rall has held a variety of positions w ith num erous national and federal govem m entbodiesdealing with oralhealth policy.1d.at5072:21- 5073:20. Dr. Crallhas tw ice testifed before Congressional com m ittees and tw ice before state legislatures. 1d. at 5073:22 - 5074:7. H e has published 60-65 articles in peer
reviewedjournals,id.at5075:14-19,includingmany on therelationship between
rates and participants by dentists in M edicaid program s. I acceptD r.Crallas an experton public policy w ith respectto the provision ofdentalcare to low -incom e children.
276.Dr.Cralltestifiedthat:(a)children'saccesstodentalcareinFlorida's M edicaid program quite low, declining, and inadequate; (b) dentists' participation in Florida'sM edicaidprogram islow,inadequate,anddeclining;(c)
Florida M edicaid rates are low as compared to m arket based fees charged by dentists and farbelow the average overhead costofproviding dentalservices;and
(d)M edicaidratesneedtobeincreased atleasttothe50th percentileofprevailing
fees charged by Florida dentists to significantly im prove access. Crall on 11/17/2010 Final Tr.at 5078:15 - 5079:5;5079:12 - 5081:149 5081:15-23;PX 418.
277.D r.Crall's conclusion regarding access was based on Florida'sCM S 4l6 reportsshow ing thatonly 21-23% ofeligible children received any dentalcare, and even few erchildrenreceived preventativedentalcareortreatment. PX 418 at p.9;Crallon 11/17/2010 FinalTr.at5082:8 - 5084:3;PX 447. By contrast,m ore than halfofprivately insured children receive dentalcare in the course ofa year.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 122 of 153
Crallon 11/17/2010 FinalTr.at5093:20 - 5094:9;5161:9 - 5162:24;PX 452 at 13.
278.D espite defendants'm ultiple attacks on the use ofthe CM S 416 report data to m easure accessto dentalcare,the reportrem ains the m ethod w hich CM S uses to m easure state perform ance. Crallon 2/7/2011 FinalTr.at 5208:1-22;PX 440 at3;C rallon 1/26/2012 Rough Tr.at155. I-IED IS data are available only for
managedcarecompanies(Crallon2/7/2011FinalTr.at5243:12-14)andarebased
on survey data,w hile the CM S 416 reportrelies on allthe data. Crallon 2/7/2011
FinalTr.at 5243:12-22. Defendants suggested that Clo s and FQHCS were
sufficient to com pensate for the lack of dental providers accepting M edicaid patients. B ased on the instructions for the C M S 416,how ever, a1ldental care
provided to children by CHD Sand FQHCSare counted on the CM S 416 report.
Crallon 2/8/2011 Rough Tr.at 82-83. Thus,1 find thatthe num ber ofchildren
receiving dentalcareateitherCl-lDsorFQHCS,whichrangedfrom about65,000
children in FFY 2003 to about103,000 children in FFY 2007,asshown on 17X739
(lastpage,table3),are included inthetotalnumberofchildren receiving dental
care asshown on the CM S 416 reportsforthose years. And thenum berson the C M S 416 reports dem onstrate that,notw ithstanding the im portantrole played by
ClD sandFQHCS,79% ofthechildrenonM edicaidinFloridadidnotreceiveany
dentalcare in FFY 2007. 279.D efendants'expertM s.Sreckovich confused dental procedures w ith
dental visits, despite her ow n back-up m aterials show ing she w as counting procedures. Sreckovich 1/10/2012 R ough Tr.at23-24,26-27. This significantly underm ines her analysisbecause dentists often perform severalprocedures during onevisit,id.at23,and heranalysism ade itappearasifchildren on M edicaid w ere receiving tw ice asm uch care,ifnotm ore,than they really w ere. 1d.at31-34. M s. Sreckovich also com puted an average num ber of dentalvisits am ong a1lpatients
122

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 123 of 153
thatobscuredthefactthatthevastmajority ofchildren received no dentalvisits.
2/8/2011Rough Tr.at102-03.
280.lconclude thatDr.Crallisjustised in relying upon the CM S 416
reports,and thatthe figuresin those reportsarem ore telling than M s.Sreckovich's average dentalvisitanalysis.
281.D r.Cralldeterm ined thatFlorida M edicaid ratesw ere farbelow m arket ratesand dentists'costs. He compared FloridaM edicaid paym entratesin each of the 14 procedure codes to the 51st and 70th percentiles of 2008 charge data provided to him by M etLife,a comm ercialdentalinsurer. Crallon 11/17/2010 Final Tr. at 5119:24 - 5120:13, 5122:5-22; 5126:3-4. D r. Crall also obtained charge data from the $$2008 N ationalD entalA dvisory Service C om prehensiveFee
Report''(theNDAS report),which usesasystem likeM edicare'sRBRVS system to make geographicaladjustments. 1d.at5126:9 - 5127:20. Florida M edicaid
rates equal only 22% to 41% ofthe 50th percentile N D A S charges and 22% to 45% ofthe 51stpercentile ofM etLife charges. 1d.at5131:7 - 5132:20;PX 418
(Table5andpageE11oftheAppendix).
282.D r.Crall considered the dental service com ponent of the Consum er Price lndex and detennined that since 2003, inflation w as about 40% , at a com pound rate,id.at5138:19 - 5139:15,and thatthe literature show sthat60-68% ofdentalofficerevenues,exclusive ofany compensation to the dentists,are spent on overhead.1d.at5139:17 - 5140:6.
283.D r.Crallexam ined notonly the 50th percentileofdentists'charges,but also 70t14-75th percentileofdentists'chargesbecause oftheuse ofthatpercentile as a benchm ark forM edicaid rates in Indiana,South Carolina,Corm ecticut,and Tennessee and in connection w ith settlem ent of litigation. 1d. at 5140:15 5141:20;PX 418 at 11. A sizeable increase in dentists'participation follow ed M edicaid dental rate increases to at least the 75th percentile of charges. 1d.at

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 124 of 153
5141:11 - 5144:19;PX 418 at 11. D r.Crallknow s of no state w hich had an increase of 58% or m ore in dental participation w ithout a contem poraneous increase in M edicaid ratesto atleastm arketlevels.1d.at5145:6-12.
284. D efendantscriticize D r.Crall'suse ofcharge data ratherthan paym ent data. D r. Crall used charge data rather than paym ent data because reports, including a G A O report,reflectthatdentists'collection rates are close to 95% .1d. at 5121:2-22;id.on 2/8/2011 R ough Tr.at 75:21 - 76:14. M oreover,m aking
comparisons using payment data from commercialinsurers (ifitwere readily available)wouldbeproblematicduetovariablessuchasco-paysand deductibles.
Crallon 2/8/2011R ough Tr.at82:7-17. 285.M ichigan had a 300% increase in dentalparticipation w ithin a yearin
the counties w here rates w ere increased. 1d.at 5147:1-7. In those counties,the num ber ofchildren receiving dental services increased about32.3 % in the first year.1d.at5148:23-25;Crallon 1/26/2012 Rough Tr.at106-107.
286.D r.Crall also exam ined the effect of the rate increases from 1998 to 2003 in A labam a, D elaw are, Indiana, South C arolina, and Tennessee on the num berofchildren reported asreceiving dentalcare in therespective states'CM S 416 reports. Crallon 11/17/2010 FinalTr.at 5147:12 - 5148:2;PX 418 at 11. The num ber of M edicaid children receiving any dental service over the period from 1998 to 2003 forthese five states increased by 168% to 446% ,according to the states'respective C M S 416 reports. C rall on 2/8/2011 Rough Tr.at 70-74. Those resultsareillustrated by a chartin hisreport:

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 125 of 153

FY1998 FY2X 1 2001vs.1 F72* 3 29:3v*.1998

CM S416 CMS 416 CMS 416 CMS416 CMS416

I/ew ith

% w ith

% with

% w ith

% w itb

DontalViNlts Dfm talVllils DentAlVjsttl A ntalVl*R$ DpntalVlsits

At

41.659 105,522

253%

1$1.534

3O %

DE

8.428

15.43û

1:3*/.

18 269

21PA

1&

47.73û 16$627 337%

.

@C 9.9,599 88.523 92%

.TN 148.ôià 141.140 95%

212.* 9 446%
24*,19.,1... 2*% 249.252 168%

PX 418 at12. (Thetsrst,second,and fourth columnsshould read tdnumberwith DentalVisits,''not$$% withDentalVisits.'').The2007Connecticutsettlement1ed
to an increase to the 70th percentile ofdentists'charges,and thatin turn resulted in a tripling of dentist participation in M edicaid and an increase of 38-45% in utilization in the m ostrecenttwo yearperiod. Crallon 11/17/2010 FinalTr.at

5140:15 - 5141:10,5150:12-24. 287.D r.Crallconcluded thatin orderto increase the num berofdentistsw ho
participate in the M edicaid program to an am ount com parable to the increases achieved in these states, it w ould be necessary to increase the rates Florida M edicaid paysdentistsatleastto the50th percentile ofdentists'chargesin Florida. 1tL at5149:15 - 5150:7. CM S hasalso used the 50th percentile asa benchm ark of

theadequacy ofdentalfees.PX 447atCRALL00751. 288.M s. Sreckovich's contention that increases in dental rates do not
increase dentists'participation isbelied by thenum erousexam plesDr.Crallcited in hisinitialreport. PX 418. Crallon 1/26/2012 Rough Tr.at104. AsDr.Crall opined, a significant increase w ould induce m ore dentists to participate in

M edicaid. 289. ççD entists cite as the prim ary reason for their not treating m ore
M edicaid patientsthatpaym entratesare too low .'' Crallon 2/7/2011FinalTr.at 5341:3-13;5380:15-16;PX 450 atCrall01638. D efendantsargue that1ow dental provider participation is the resultofother factors,such as high rates ofm issed

l25

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 126 of 153
appointm ents and higherrates ofdentaldisease. W hile this m ay be tnle,such factorsdo notdetractfrom plaintiffs'contention,ratherthey favordentistsbeing given fnancialincentivesto seeM edicaid children. Crallon 2/8/201lRough Tr. at 77-78.
290. D r. Crall also considered the num ber of dentists participating in M edicaid.Crallon 2/8/2011Rough Tr.at81;PX 418 at8-9.H econcluded,based on data from the CD C and from a State ofFlorida w ebsite,thatabout 1,000 active M edicaid dentists w as insufficientto serve a M edicaid population of 1,600,000. Crallon 11/17/2010FinalTr.at5089:13- 5099:18. ln arebuttalreport,Dr.Crall am plified hisanalysis,using the 700 M edicaid children peractiveM edicaid dentist benchm ark developed in the Tennessee M edicaid Litigation Settlem ent. Crallon 2/8/2011Rough Tr.at63;PX 439 atpp.7-8;Crallon 1/26/2012RoughTr.at188.
291.lnthevastmajorityofthecountiesofFlorida,thereareaconsiderable
num ber of dentists not actively participating in M edicaid. Even if only halfthe dentists in each Florida county participated in M edicaid, there w ould be 35 counties,including those with the largestpopulation ofM edicaid children,with
fewerthan 700M edicaidchildrenperparticipatingdentist.PX 439(AppendixA,
far rightcolum n show ing num berofM edicaid kids per active dentist is less than
350).
292.Defendantssuggested thatDr.Crallfailed to take into accountthata num berofFlorida counties are designated health shortage areas. ButD r.Crall's analysis is consistentw ith the FederalH ea1th Resources Services A dm inistration
I1-1RSAI,which considersasdentalshortage areasthose areaswherepopulation
per dentist ratio exceeds 3,000 to Crallon 2/7/2011 FinalTr.at 5348:21 5349:17. B ased on the data on I'IRSA 'Sw ebsite,only 15 % ofFlorida'spopulation livesinan areaconsidered underserved.Crallon 2/7/2011FinalTr.at5349:10-22.
126

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293.D efense counselalso suggested Dr.Crallshould have included adults seeking dentalcare in his w orkforce analysis. Crallon 1/31/2012 R ough Tr.at 121-122. 1agree w ith D r.Crallthatthe appropriate com parison for a w orkforce survey is betw een the access forchildren on M edicaid and the access forchildren in generalbecause he w as analyzing children's access to dentalcare. Crallon 2/8/2011Rough Tr.at59.
294. Effective July 1, 2011, follow ing an appropriation by the Florida Legislature,A H CA increased the rates paid by Florida's M edicaid Program for dentalservices by 48% . D .E.962,p.2. D r.Crallprepared a supplem entalreport dated M ay 24,2011,in w hich he assessed the im pactofFlorida's48% increase in rates.PX 786,Crallon 1/26/2012 R ough Tr.at87. D r.C rallconcluded thatççthe increase of48% stillleavesFlorida dentalM edicaid ratesseverely below adequate m arket-based rates,''and he continuesto believe these ratesm ustbe increased.1d. at 88. D r.Cralltook the increased rates and com pared them to tw o of the three m easuresw hich he used to evaluate the charges in hisinitialexpertreporti.e.,the 2008 N D A S com prehensive fee survey and the 2008 data he obtained from the comm ercial dental plan. 1d. at 88. The follow ing chart shows that after considering the 48% increase,Florida's dentalreim bursem ent is stillvery 1ow as compared to normaldentistry charges,even withoutaccounting forintlation since 2001.
127

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Procedure Code 0012û
D0150 D0210 /0272 17033: 01120 (71203 (71351 :2150
(72331 D2751 (72930 03220 D3310 07140

FLMedicaid

FL Medicald

Rates w/

Rato vs. FL Mediqald 48% Int v%. 2901ADA S RatesBased 2:0$ADA S

FLMedicald Attantk %- onProposed Atlantie%v

G tes

Iles

48% Ine

Iles

$15 5th

$22 33rd

S16 <1st

$24 5th

$32 <1st

$47 4tl1

$9 <1st

$13 2nd

S3O 1st

$44 4th

S14 <1st

$21 <1st

S11 4th

S16 20th

S13 <1st

$19 3rd

Sdl <1st

$61 4th

S39 *1st

$58 1st

N/A

S68 2nd

$101 loth

$50 3rd

$74 18th

$148 1st

$219 3rd

S2'/ *1st

$40 1st

D .E.964-6. Comparing Florida's increased rates to SoutheastAtlantic Region

percentiles from the A m erican D entalSurvey in 2001 show s a1l 14 ofthose new

FloridaM edicaid enhanced ratesfallbelow the 331-d percentileand l1ofthenew

ratesare in the 10th percentile orlow er.f#.at92-93. PX 786,ExhibitE. 295.From 2001to 2010 the dentalcom ponentofthe Consum erPrice lndex

increased 51% . f#. at 93. PX 786, par. 15. D r. Crall in his supplem ental

declaration concluded that:Sçgiven the w oeful inadequacy of the current rates,a

48% increase in Florida's M edicaid dentalreim bursem ent rates m ight slow the

exodus of providers from Florida's M edicaid program , but is not sufticient to

induce a significantnum ber of providers to enter or re-enter the program ,or to stim ulate current providers to substantially increase the num ber of children on

M edicaid thatthey arew illing to treat. Aslpreviously indicated,doing so would

require raising reim bursem ent rates to a least the 50th percentile of dentists'

prevailing charges.''1d.at93.PX 786par.16.

l28

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296. ln his initial report, D r. Crall also analyzed capitation rates. H e consideredthreeactuarialstudiesdonein 1998,1999,and2004 ofperm em ber,per
month (PM PM )amountnecessarytocoverdentalcareforchildren on M edicaid.
These studies,w hich on average are m ore than adecade old,found thatan increase from about$17 to $26 PM PM wasnecessary. Crallon 11/17/2010 FinalTr.at 5133:7 - 5160:10,PX 418 at6-8. By contrast,A H CA 'S 2009 contractw ith the
com pany thatacquired AD1called foraPM PM am ountbetw een $5.53 and $7.86,
depending on age and status. D X 355 at 88. Even w ith the 48% dental fee
increase, M CNA 'S blended capitation rate was $11.88, Brown-W oofter on
11/10/2011 Rough Tr.at66-67,stillfarbelow the am ount necessary to provide adequate dentalcare for children on M edicaid. These three studies cited by D r. Crallaretheonly such studiesin the record.
297.M s.Sreckovich has not done any analysis on the effect of the 48% increase in dental rates. Sreckovieh on 1/17/2012 R ough Tr. at 45-46. M s. Sreckovich's analysis of w hether Florida's M edicaid rates m ay be sufticient to coverthe variable costsoftreating a M edicaid patientisunpersuasive because she did not address the dentists' opportunity cost or consider whether actualrates above variable costs but below average costs w ould m otivate dentists to see M edicaid patients. Crallon 2/7/2011 FinalTr.at5334:19 - 5337:6;5342:4-6. ln heranalysisoftheFloridadentalrates,M s.Sreckovichreachednoconclusionasto w hetherthe rates paid to dentistsby the Florida M edicaid program w ere adequate to ensure children had accessto care. Sreckovich on 1/17/2012 Rough Tr.at3334.
298.The Florida Legislature authorized A H CA to expand M edicaid prepaid dentalplans statew ide. Brow n-W oofter on 10/25/2011 Rough Tr.at50-52. The prepaid dentalplansw illberequired to passalong to providersthe48% increase in dentalfees. Brow n-W oofteron 11/8/2011 Rough Tr.at 126-127. M s.Sreckovich

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 130 of 153
know s ofno evidence and offered no opinion regarding the likely effects ofthe prepaid dentalplan,which Florida isputting into effectin 2012. Sreckovich on 1/17/2012 Rough Tr.at 48. D efendants did not subm it any evidence by M s. Sreckovich or otherw ise that the 48% increase in dental rates or the statew ide
prepaiddentalplanwillbesufficient(a)toraiseFlorida'sM edicaiddentalratesto privatemarketrates;(b)inducesubstantialadditionalnumbersofFloridadentists toofferservicestochildrenenrolledinM edicaid;or(c)increasethepercentageof
children enrolled in M edicaid to the 30% level,w hich C M S has considered a m inim um threshold forcom pliance. See PX 447 at3. D efendantsdid notcallany dentists to testify.
299.A fter review ing the evidence and w eighing the expertopinions,1find that until the recent 48% increase,Florida's M edicaid reim bursem ent rate w as am ong the low est in the nation,and not surprisingly,Florida's M edicaid dental utilization ratew asalso am ong thevery low estifnotthelow estin the country.
300.Ifind thatw hile a num berofdifferentfactors affectdentists'decision as to w hether to participate in M edicaid,the adequacy ofreim bursem entrates is the m ostim portantofthose factors. A significantincrease in ratesw illresultin a signifcant increase in provider participation, w hich, in turn, w ill lead to a substantialim provem entin children'saccessto care.
301.D efendantshaveoffered no evidenceto contestD r.Crall's opinion that even w ith a 48% increase Florida'sM edicaid reim bursem entrates are inadequate. I find D r.Crall's opinion credible,especially given the lack of any contradictory evidence.
L. Provider Enrollm ent 302. W hile benefciaries and not providers hold the rights provided by federal law ,any analysis of benefciaries' ability to access care m ust take into
130

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accountthe relationship betw een providerreim bursem entratesand participation by providersin theprogram .
303. Subsection (a)(30)(A) itself retlects an understanding that
reim bursem entis directly related to access to m edicalcare by directing thatrates be set so as to ensure equalaccess to care for M edicaid children- a statutory provision w hich w ould m ake no sense in the absence ofa relationship betw een the
tw o.
304.Plaintiffs' expert, Dr.Flint,opined that çtthe fundam ental issue that drives participation, that determ ines physician's decisions to participate in the program ,or to lim it their participation is the rate of reim bursem ent.'' Flint on 8/3/2010 FinalTr.at 2949:21 - 2950:5. D r.Flint testified that 27 of 30 peerreview ed studiesthathe review ed supported thisview .1d. Thisacadem ic research cam e from different parts of the country, using different research m ethods, different tim e fram es, and different populations. 1d. at 2951:5-7. W hile this academ ic research did notdeny the presence ofother factors,in D r.Flint's view , the professional literature suppol'ts his opinion that doctors w ill ççput up'' w ith adm inistrative hassles,patientdifficulties,and other concerns ifthey are paid a satisfactory fee.1d.at2951:2-4.
305.Both sidesspentconsiderabletim eattrialreviewing specific studiesin thisacadem ic literature. D efendantsquotepassagesfrom som e studies,w hich they claim casts doubt on the strength or the universality of the causal relationship betw een fee levels and provider participation. The consensus of academ ic literature,how ever,reflectsa causalrelationship betw een reim bursem entratesand physician participation. See e.g.,PX 498.,PX 501.,PX 504;PX 505;PX 512,.PX 513;PX 524. M s. Sreckovich adm itted that she had identified no professional literaturethatD r.Flinthad noteonsidered.Sreckovich on 1/10/2012 R ough Tr.at 116. Reliance on peer-review ed studies,especially from m ultiple sources,is the

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 132 of 153
gold standard and farm ore reliable than non-peerreviewed work comm issioned forlitigation.
306.Both sidestreated thework by PeterCunningham asauthoritative.M r. Cunningham reported that84% ofphysicians surveyed identified low M edicaid reim bursem ent as a m oderate or very im portant reason for not accepting new M edicaid patients.PX 512 at Flint 01123,Flint 8/3/2010 Final Tr.at 2960:4 2961:2. M r.Cunningham also conducted aregression analysisthatççshowed that higher M edicaid fees relative to M edicare w ere associated w ith a higher probability of accepting new M edicaid patients.''PX 513 atFlint00152*,Flintat 2961:16-25. A third study by M r.Cunningham considered com m unity norm s, professional attitudes,and other factors,nonetheless identified physician fees as theçsdriving force''inphysician decision-m aking. PX 514;Flinton 8/3/2010Final
Tr.at2963:3-21,3514:11- 3515:23. M r.Cunningham studied aprojected 20%
increase in M edicaid reim bursem entrelative to M edicare. H e found a signifcant relationship am ong allcom m unities studied,one ofw hich w as M iam i,w here he
projected an increaseof11.8% inproviderparticipation. PX 514 atFlint00155
Flint;Flint on 1/24/2012 R ough Tr.at 173. The Cunningham study of 12,000 physicians and 60 com m unities also show ed thathigherreim bursem entratesw ere associated w ith a statistically significantreduction in unm etm edicalneeds ofthe M edicaid population,increased satisfaction w ith choice ofspecialists,and reduced useofem ergency care. PX 513,.Flinton 1/24/12 R ough Tr.at174-75.
307.Theseresultsareconsistentwiththesurveysand em piricaldatathatDr. Flint relied upon. A survey of Florida physicians w ho w ere m em bers of the A m erican A cadem y of Pediatrics reported a significant num ber of physicians w ould increase their w illingness to take M edicaid patients w ith higher reim bursem ents. PX 535. W hile this sunrey is m ethodologically lim ited by a sm all sam ple, it is consistent w ith the other evidence presented. The m ore

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 133 of 153
providerswho participate in M edicaid,them oreaccesschildren on M edicaid will have to care. Flint on 8/4/2010 Final Tr. at 3348:17 - 3350:13; Crall on 11/17/2010 FinalTr.at5106:23- 5107:15.
308. The relationship between fees and provider participation is also illustrated by D efendants'2009 survey ofFlorida'sphysicians. According to that survey,46% ofFloridaphysiciansw ere accepting no new M edicaid patients,w hile only 22% w ere accepting no new M edicare patients.PX 742 at62,66. M edicaid payssignificantly m orethan M edicaid.
309. In Polk County, Florida, physician reim bursem ent for treating uninsured patients w as increased to M edicare levels during FY 2007-2008. The resultw asa substantialincrease in accessto care. Flinton 1/24/2012 R ough Tr.at 182-184. W hile this occurred among a population ofuninsured individuals,the exam plerem ainsrelevantforourpum oses.Flint,R ough Tr.1/3012 at113-114.
310. Even M s. Sreckovich did not opine that there w as no relationship betw een rates and provider participation. Instead,she pointed to other factorsincludingphysician attitudestoward M edicaid patientsand adm inistrativeissuesasunderm ining thatrelationship. Sreckovich on 1/6/2012 Rough Tr.at83-84. M s. Sreckovich,how ever,could notdeny- indeed,she adm itted- thatfora significant num berofphysicians,those obstaclescan be overcome by higherreimbursement levels. Sreckovich on 1/9/2012 R ough Tr.atl19-120.
311.These studiesare confirm ed by AH CA 'SLBR S,w hich soughtincreased reimbursem ent for physicians and dentists. The LBRS relied upon the causal relationship betw een increased reim bursem ent rates and increased provider participation on the one hand,and increased providerparticipation and increased
accesson the otherhand. See PX 92 (çtlncreasing the Child Health Check-up reimbursementrate will increase access to services'');PX 93 (same);PX 94 (same). AHCA repeatedly observed thatwhen reimbursem ent rates for child

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 134 of 153

health check-ups doubled in 1995,the participation rate doubled as w ell. See PX

734;PX 92;PX 93;PX 94;PX 95' PX 96;PX 702.PX 703.34

,

,

312.ln addition,A H C A ,in m ultiple LBR S over severalyears,proposed a

fee increase for certain specialists as a solution for a tçspecialty provider shortage''

and the tçcriticalaccess to care problem .'' The LBR S recognize the obvious

existenceofarelationship am ong reim bursem entrates,physician participation,and

M edicaid participantaccess.

313.FederalCM S also recognized the relationship betw een reim bursem ent

rates,provider participation, and access. It declared in a D ear State M edical

D irector letter: édlsack of access due to 1ow rates is notconsistent w ith m aking

services available to the M edicaid population to the sam e extent as they are

available to the generalpopulation,and w ould be an unreasonable restriction on

theavailability ofm edicalassistance.''PX 447 atCrall00751.

M . M anaged C are

A s of O ctober of 2009, m ore than 1.5 m illion children w ere on

M edicaid in Florida. A pproxim ately 650,000 w ere assigned to an 1-1M 0 in a non-

R eform County, and approxim ately 120,000 w ere assigned to an 14M 0 in a

R eform county. D X 262a.

A H CA rem ains ultim ately responsible as the designated agency that adm inisters Florida's M edicaid program , regardless of w hether it chooses to provide care for children on M edicaid through a fee-for-service arrangem ent or through aM edicaid H M O .

34

Attrial5defendantssoughtto

question

this

relationship ,

even

though

itwasrepeatedly

submittedto thelegislatureandacknowledged ascorrectunderoath in depositions. Defendants

claim there w as a certain tim e lag before thehigherrateshad the observed effect. Such atim e

1ag betw een raising rates and an effecton participation and rate ofcheck-upsisnotsurprising.

D efendants also claim that certain other steps m ay have contributed to increased participation

rates,butno onesuggeststhoseotherfactors,such aseducationalefforts,w eretheprincipalcase.

See PX 524;Flinton 1/24/2012 Rough Tr.at186-93,GA O Reportciting increase asexam ple of

effectofincreased reim bursem entrates.

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 135 of 153
315.A H CA pays 14M o s on a capitated basis and determ ines how m uch to pay M edicaid I4M oson an annualbasis.Theam ountofAHCA 'SM edicaid 14M 0 paym entsisdriven in substantialpartby the am ountpaid to providerson a fee-forservice basis through the M edipass system and historical rates of utilization. W illiam s on 10/12/2011 Rough Tr. at 101-03; Brown-W oofter on 11/8/2011 Rough Tr.at 124-26;id.at11/9/2011 at25. A H CA discountsaggregatepaym ents to I'IM o s to account for the 1-1M o s' presum ed efficiencies.3s w illiam s on
10/17/2011Rough Tr.at171-73. 316.Florida is one ofthe low estpaying statesin term s ofits m anaged care
com pensation.1d.at2999:20 - 3000:4. ln 2005,A H CA obtained federal and state approval for a M edicaid
Reform pilot project. Brown-W oofter on 10/20/2011 Rough Tr. at 96-98.
M edicaid R eform w as instituted in July of 2006 in Brow ard and D uvalCounties and expanded in 2007 to B aker,Clay,and N assau Counties. 1d.at97. M edicaid Reform allow s A H CA to use m anaged care alm ost exclusively for services provided to M edicaid recipients. Brow n-W oofteron 10/18/2011R ough Tr.at9.
318.The M edicaid Reform pilotw asrequired to be budgetneutral,m eaning thatitw ould notcostm ore to operate w ith the w aiverthan itw ould have w ithout. Brow n-W oofteron 10/18/2011R ough Tr.at9-10.
319. Florida's O ffice of Program Policy A nalysis & G overnm ental
Accountability(SûOPPAGA'')inJuneof2009reportedontheprogressofM edicaid
Reform through D ecem berof2008 and found thedatadid notshow thatM edicaid R eform had im proved access,quality ofcare,orsaved the statem oney. PX 683:1. O PPA G A recom m ended the legislature notexpand M edicaid Refonn untilm ore data w asavailable to evaluate claim s ofits success. 1d. Thatw asthe m ostrecent
35Typically thediscounthasbeen about8 percent. W illiam son 10/7/2008 D epo.Desig. at59:13- 61:17.
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OPPA GA reportconcerning M edicaid Reform . Copa on 4/5/2011 Rough Tr.at 127-29. ln Septem ber of2007,AH CA 'S O ffice ofthe lnspectorG eneralm ade a sim ilarrecom m endation,afterform erSecretary ofAH CA Dr. Agw unobicalled
foran içindependent,objective and thorough analysis''to delay the expansion of
M edicaid Reform . AH CA adopted that recomm endation.A gm m obi2/13/2009 D epo.D esig.at183:7 - 187:1.
320.The three largestM edicaid l-1M O 'soperating through M edicaid Reform in Brow ard County in 2008 had approxim ately 50% oftheM edicaid enrollm entin thatcounty. Buttw o years later,none ofthe three plansrem ained in operation in thecounty.1d.at182-85.
321.A H CA 'S application to extend the w aiver forM edicaid Reform w ithin the five counties in which itis currently operating was granted for three years. Sreckovich on 1/18/2012 R ough Tr.at51-52. B utFlorida'sapplication to expand M edicaid Reform statew ide has not at the present tim e been approved by the federalgovernm ent. Copa on 4/5/201lR ough Tr.at128.
322.Children enrolled in M edicaid HM O s suffer from the sam e lack of accessto care aschildren in M edipassorfee forservice M edicaid. Asdiscussed above,LIED IS reports show thatchildren in both reform and non-reform counties on m anaged care do notreceive adequate preventative health care. PX 6894PX 733;D X 361;D X 334.
323.Som em edicalprovidersdo notacceptM edicaid 14510 patients. lsaac on 8/11/2010 FinalTr.at3856:4-12;Ayala on 8/9/2010 FinalTr.at3570:2-17; Fenichelon 10/18/2011 FinalTr.at4301:22 -4302:1. O therslim itw hich l'IM o s they w ill accept. Postm a on 8/4/2010 Final Tr. at 3149:1-3; St. Petery on 11/11/2008 Depo.Desig.at 176:8-23;Donaldson on 10/15/2008 D epo.D esig.at 78:18- 80:18;206:21-25.
l36

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324.A H CA 'S m onitoring process of1-IM o s fails to show thatchildren are receiving the care to which they are entitled under federal law for three fundam ental reasons. First,though there is extensive testim ony regarding the m onitoring process in the record, there is very little in the record about the substantive results ofthatm onitoring,and nothing to indicate thatchildren are receiving tim ely oradequate care. Flinton 1/24/2012 R ough Tr.at153.
325.Second,m ostofthe m onitoring focuses on process,and even ifthe m onitoring results w ere in the record,they w ould not dem onstrate the children w ere getting the requisite care. Forinstance,the factthatan 14M 0 has no m ore than 1,500 children perPC P,orhas a num ber ofspecialists on its paneldoes not dem onstrate thatthe doctorsw illsee thechildren atall,1etalone prom ptly.
326. Third, there is virtually no evidence and certainly no system atic evidence in the record thatany M C O sw ere hitw ith a substantialfine,orexpelled from the M edicaid program forfailure to provide care to children on M edicaid or m eetany contractualrequirem entsrelating to the provision ofcare. Thus,there is virtually no evidence thatA H CA hasused itspow er to sanction 14M o sto ensure children receive adequateand prom ptcare.
327.M s.Brow n-W oofter,A cting A ssistantD eputy Secretary for M edicaid operations,didnotknow whetherAH CA hadeverissuedany ûnancialsanctionsto a M edicaid 14M 0 forhaving a low percentage ofenrollees w ho received a blood lead screening exam .B row n-W oofteron 10/18/2011R ough Tr.atl16-18;B row nW oofteron 11/8/2011 Rough Tr.at131-32. W hile shetestified thatAHCA had issued somefinesagainstI-1M osforfailingtom eetastaterequirem entfora60 % screening ratio forchildren continuously enrolled in the14M 0 forsix m onths,she had no infonuation regarding theam ountsofthefines.1d.at118. AHCA did not issue any fnesagainst1-1M osforlow child health check-up screening ratesuntil 2008,years after this action began. Brow n-W oofter on 10/18/2011 Rough Tr.at

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 138 of 153

131-32. M s.Brown-W ooftertestified thata financialsanction w aslevied against

Universalin 2011,butwasnoteven sure why the sanction w as levied. Brown-

W oofteron 10/20/2011R ough Tr.at60. 328.M s.B row n-W oofter offered a lay opinion that children in M edicaid

l-IM os do not have trouble accessing prim ary or specialty care,and that any

trouble w ith specialty care is lim ited to a few individuals. Brow n-W oofter on 10/19/2011 R ough Tr. at 38-40, 74-77. l find her unsupported conclusions

unpersuasive. H er opinionsalso contlictw ith earliertestim ony thatshe gave asa

30(b)(6)witnessattheendofthediscoveryperiod,and,inrenderingheropinion,

she did not consider num erous A H CA docum ents regarding shortages of

providers36 .

See

Brow n-W

oofter on

10/25/2011 R ough

Tr.at 88-97,95-97, 100,

103-07,109-22,126-38;PX 205;PX 188;PX 186;PX 90;PX 101;PX 199.

N . O utreach and M edicaid A pplication Process 329. U ndisputed evidence at trial established that an estim ated 268,000

Florida children are eligible for butnot enrolled in the M edicaid program . 2009

Florida K idcare C oordinating C ouncilReport. PX 682 at2. Tw enty percent of

Floridachildren areuninsured,comparedtoanationalaverageof10% .Id. 330.B etw een 2004 and 2006,Florida m oved to a largely online system of

applications, elim inating m ost of the offce locations at w hich individuals can

apply in person for M edicaid coverage. PX 238. Fifty-seven percent of D CF

services centers w ere elim inated betw een 2004 and 2006. N ieves on 5/17/2010

FinalTr.at2098:20 - 2099:1. These changes,accom panied by cutsin personnel,

36w hileherdeposition testim ony focused on the fee-for-servicecom ponentofM edicaid not the HM O com ponent,there is overlap betw een the providers enrolled in fee-for-service M edicaid and M edicaid H M O s,testim ony ofBrown-W oofteron 10/25/2011 Rough Tr.at100, and no testim ony asto w hy M edicaid HM Os,whose percapita com pensation rate is driven by thefee-for-servicerates,w ould be ableto providebettercarethan theM edipassprogram .
138

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 139 of 153
were enacted notbecause they were viewed as improvem ents butratherdue to budgetcuts.Lew ison 10/20/2010 FinalTr.at4602:25 - 4603:14.
ln 2007, an analysis by A H CA of the revised application system
reported:(a)thattheonlinesystem willtimeoutin20minutesleadingto350lost sessionseach day;(b)25% ofapplicantsareunableto completetheirapplication on theirfirstattem pt;(c)çsoften,fornum erousreasons,applicantsareunawarethat
they have not subm itted the required additional infonuation and their case is
closedi'' and (d) that 17 to 20% of the applicant population due to language
baniers and other factors- cannotsuccessfully com plete one or a1lofthe steps in the new A CC ESS M edicaid eligibility process. PX 238;N ieves on 5/17/2010 FinalTr.at2106:9 - 2111:20.
332.If assistance is required,itis difficultto obtain. The Tam pa regional center reported 40% of incom ing calls abandoned or receiving busy signals in 2007. Tw o other regional centers reported: 20% in M iam i and 19%
Jacksonville.PX 238at3.Atthetimeofthetrial,M r.Lewis,DCF bureauchietl
testified thathe believed that40% ofthe incom ing callsto the Tam pa regionalcall centerwerestilleitherabandoned orreceiving busy signals.Lew ison 10/20/2010 FinalTr.at4638:3- 4634:8.
333.ln addition,D CF dataindicated thatbetw een June 1,2004 and M arch 1, 2005,applicationsw ere consistently processed abovethedesignated tim e standard. PX 238 at7.
334.The A ccess M edicaid application has purportedly been sim plified,but itrem ainsa form idable challenge to com plete.The application,reprinted aspartof
the application guide (DX 160),runs in excess of 50 pages of screens that
M edicaid applicants m ust navigate. N ieves on 5/17/2010 FinalTr.at 2105:2 2106:4. Because itis a com bined application in which fam ilies m ay apply for m ultiple cash and in-kind assistance program s,there are lengthy sectionsrequiring
139

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 140 of 153
answers on assets and expenses not needed for the determ ination of a child's M edicaid eligibility. Complex term s,forexample,are found in questionsasking about ççliquid assets''and içlife estates.'' An applicantmustgather a significant am ountofrecordsto com pletetheapplication. And,by virtue ofbeing an online application,basic com puterliteracy isrequired
335.Byeontrast,theFloridaKidcareapplication(DX 181)istwo-pagesfor
children seeking M edicaid or SCH IP assistance. The K idcare application, how ever,provides sufficientinform ation forD CF to m ake a M edicaid eligibility determination. Lew ison 11/29/2011Rough Tr.at31. Although AHCA added an online link to the K idcare application during the course ofthe trialin thisaction, the K idcare application is an alternative to the prim ary A CCE SS application w hich individuals m ust first find online- a feat that even M s. Sreckovich, defendants' expert w itness,had difficulty accom plishing unassisted by counsel. Sreckovich on 1/l7/2012 R ough Tr.at4-l8. A pplicants m ustthen indicate that they w ant to apply solely for their children's M edicaid eligibility and no other potentialprogram s.1d.
336.N o reason w as offered into evidence as to why the simple Kidcare application could not serve as the default application for children seeking M edicaid. St.Petery on 2/2/2012 R ough Tr.at86-87.
337.Even though D CF'Sonline application isthe prim ary vehicle by w hich applicantsare encouraged to apply forM edicaid,D CF doesnotattem ptto identify individuals who start the online application and do not complete it, collect dem ographic inform ation on them ,or determ ine why they failto complete the application. Poirier 10/5/2011 Rough Tr.at3-7,6-7 33. D CF doesnotknow how m any people startbutfailto finish theapplication.1d.at12.
338.ln addition to the com plex application and the difficulties in obtaining help to com plete the application, Florida has elim inated its prim ary outreach
l40

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 141 of 153
program for M edicaid. U ntil 2003, Florida dçhad an aw ard-w inning outreach program ''recognized by federalCM S asa m odelforotherstates. PX 700 atD O H
10000478. Beforefunding wasterminated in 2003,approxim ately $4 m illion was
spent on outreach program s annually,m ore than half of w hich cam e from the federalgovernm ent. f#. The outreach program included: statew idem ulti-m edia cam paigns in English, Spanish,and Creole on television, radio,bus cards,and billboards;free distribution ofapplicationsand prom otionalbrochures,posters,and booklets; 17 regional outreach program s responsible for recruiting and training com m unity partners; data driven m arket research, county level enrollm ent data reporting, and tracking; assistance for fam ilies w ith enrollm ent and coverage issues;and statewidetrainingandtechnicalassistance.1d atD OH 10000478-479; St.Petery on 12/10/2009 FinalTr.at526:3 - 531:9. Since 2003,directoutreach funding has been lim ited to a one-tim e non-recurring $1 m illion authorization in 2006. PX 700 atD O H 10000479. A s A H CA acknow ledged in its 2007-2008 budgetrequest,this leveloffunding ççw illprobably notprovide the am ountneeded
m ake an im pact on signifcantly decreasing the rate of uninsurance for
childrenl,q''evenifitwererecurring.PX 711atAHCA 01095027.
339.W hile a variety ofoutreach efforts continue to exist,A H CA does not assess the effectiveness of its w ritten m aterials. B oone on 10/21/2008 D epo. D esig.at58:21-60:2 A nd there hasbeen no show ing thatthese ad hoc efforts are an adequate substitute for the organized statew ide program that existed before funding w asterm inated. There are atleastfourstrong indicationsthatthey arenot.
340.First,the difference betw een the outreach conducted before the budget cuts and that perform ed now is stark. Statew ide m ulti-m edia cam paigns in
English,Spanish,and Creoleincluding public service announcements(PSAS)on
television and radio,as w ellasbuscards and billboards w ere elim inated. PX 700 at D O H 10000478-479. A nne B oone,who w as A H CA 'S child health check-up

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 142 of 153
coordinator when she was deposed in 2008,w as not aware ofany PSA airing recently anyw here in the state on eitherradio ortelevision. B oone on 10/21/2008 Depo.D esig.at65:3-67:8.Rather,allsheknew concem ingwhetherany PSA Shad been aired in the lastseveralyears on radio ortelevision isthata single PSA about blood leadpoisoning ddm ighthavebeen on aradio station.'' 1d. Thathypothetical PSA isthe only one in existence in the volum inousrecord in this action. D X 492. Rather than airing on the radio or television, A H CA 'S PSA S are show n on television sets at booths at health fairs. B oone on 8/28/2008 D epo.D esig.at 163:14-164:1;B oone on 10/21/2008 D epo.D esig.at309:21-310:6,311:18-312:2. Sim ilarly,M s.Boone knew of only one instance in recent years in w hich there w ere child health bus billboards,and even then,the billboardsonly appeared on bussesin one city.B oone on 10/21/2008 D epo.D esig.at67:9-20.
341.Second,the K idc are C oordinating Council,w hich has representatives draw n from a variety of govem m ental and private organizations interested in m edicalcare forchildren,stated asfollow s:
Unlessfam ilieslearn aboutFloridaK idcare,how to apply and where to seek assistance ifthey need it,the program w illnotfully reach the population it is intended to serve. Florida Kidcare enrollment significantly declined in 2004 ...Enrollm entstarted to increase again in 2007 as a result of increased emphasis on outreach. However, exceptfor a non-recun-ing $1 m illion appropriation to Healthy Kids for com m unity based outreach and m arketing m atching grants in FiscalY ear2007-08,otheractivitiesw ere undertaken w ithin existing resources and w ith non-recurring funds, m aking a large scale and ongoing initiativeunsustainablew ithoutadditionalresources.
PX 682 at25.The K idcare C oordinating Councilrecom m ended by a vote of22 to zero thatoutreach funding for program s forunenrolled children be restored. PX 682 at20. The Councilhasbeen m aking thisrecom m endation foryears.See PX
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Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 143 of 153
349atDOH 00078171;PX 350 at19-20;PX 682 at2;PX 697at16;PX 699at18; PX 700 atD O H 10000478.
342.Third,AH CA hasalso urged thatoutreach funding be restored in its LB RS. PX 711.
343.Fourth,the existence of over a quarter m illion children eligible for M edicaid but not enrolled as of 2008 is com pelling evidence that additional outreach program s are required. Indeed,an AHCA staffanalysis indicated that approxim ately 75% of children from fam ilies w ith incom es under 200% of the federal poverty level w ere ideal candidates for outreach efforts to increase enrollm entin existing program s. PX 240.
344.O ne exam ple of A H C A 'S inadequate com m itm ent to outreach is its dentalrem inder letter. A H CA used to send lettersrem inding parentsw ho had not taken their M edicaid child to a dentist for som e tim e to do so. A H CA stopped doing thisin 2000. Boone on 2/24/2012 D epo.D esignation at31:10-19,PX 441at 6. AH CA discontinued sending the lettersbecause so few dentistsparticipated in the program thatitw ashard forparentsto find a dentistclose to w here they lived. Parents becam e upset when they could not find a dentist willing to see their children. B oone on 8/28/2008 D epo.D esig.at33:3-12. A H CA even told federal CM S thatithad notactively m arketed its dentalprogram to recipients forfourto five yearsbecause ofthe few num bers ofdentistsparticipating in M edicaid and because itw asoften difficultforthose seeking treatm entto find aprovidernearby. Sharpeon 2/8/2011Rough Tr.at184.
345.M s.B oone adm itted thatthe lettersdid help increaseutilization. Boone on 8/28/2008 D epo.D esignation at32:14-19. Butforyears,A H CA did notsend outdentalrem inderletters,despitethe dentalprogram 'sextrem ely low utilization rate,an intentionalreduction ofoutreach efforts.
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346.ln February of2008,federalCM S conducted an on-sitevisitin Florida as partof its decision to review states w ith dentalutilization rates ator lessthan 30% on the CM S 416 reportfortheFY 2006. PX 440 at3. ln itsreportfrom that visit,federalCM S noted that Florida had sent reminder letters until2000 and recom m ended that Florida again send dental rem inder letters to çtparents of beneficiaries w ho have not received periodic dental services.'' PX 441 at 6-7. A H C A stated in its response that M edicaid's new fiscal agentbegan on July 1, 2008,and in Ssthe very nearfuture''ittsw illw ork w ith thenew fiscalagent''to send outdentalrem inderletters.1d.at7.
347.Several years later,how ever,w hen M s.K idder testified on M ay 31, 2011, she acknow ledged that AH CA had still not begun sending out dental rem inderletters. K idder on 5/31/2011R ough Tr.at 107-108. She said the letters w ould likely go out soon. M s. Cerasoli, w ho had testifed as A H CA 'S designated agency representative on dental issues atdeposition,testified that the dental letters w ere not sent because the agency did not view this as a priority. Cerasolion 8/11/2010 FinalTr.at3980:12 - 3981:1.
348.W hen A H CA analyzed itsclaim sdata in M ay of2011to seehow m any children enrolled in M edicaid had notreceived any dentalservices,they found that 834,651children had notreceived dentalservicesin the lastsix m onths. PX 790. Thatfgure did notinclude children enrolled in AD I,Reform 1-1M Os,and nonreform I-1M o soffering dentalservices.
349.G iven defendants'lim ited outreach,itis,perhaps,notsurprising that A .D .did notknow untilshe becam e a next friend in this action thather son w as
entitled to dentalcarethrough M edicaid. Seesupra at! 30. And S.B.did not
know that she was entitled to free transportation to doctor's appointm ents and
laboratoryvisits.Seesupraat! 11.

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V Il.C O N C LU SIO N S O F LA W 1 conclude thatFlorida's M edicaid program has notcom pensated prim ary physicians or specialists ata com petitive rate as com pared with either that of M edicareorprivate insurancepayors.
further conclude that Florida's stnlcture for setting physician reim bursem ent fails to account for statutorily m andated factors in the M edicaid A ct,including the levelofcom pensation needed to assure an adequate supply of physiciansso asto dischargethem andateto provideEPSD T servicesorsetratesat a levelthatw illprom ote quality ofcare orequalaccess to care as required under
42 U.S.C.j 1396a(a)(30)(A). Exceptforcertain codesheld outsidethe normal
budgetary process,Florida'sconversion ratio and budget-neutrality m andatesresult in artiticially set rates for m any services w ithout any consideration of physician incurred costs orw hatis needed forcom petitive rates thatare sufficientto attract m edicalproviders.
A system w hich m andatesbudgetneutrality asthe determ ining factorin ratesetting, w ithout consideration of the factors required by federal law , does not
satisfytheEqualAccessrequirementofj l396a(a)(30)(A).Codessetby statute
outside the nonnalbudgetary processare also notevaluated to ensurethatthe rates are sufficient to attract prim ary and specialist physicians to treat M edicaid children.
There also isno processto adjustthoseratesforincreasesin the costof
living.W hilethe m edicalcostofliving index hasincreased overthepastdecade, there has been no com m ensurate increase in M edicaid reim bursem ent, and accordingly, the gap betw een M edicaid reim bursem ent and M edicare reim bursem enthasw idened form ostcodesand w illcontinueto do so.
V iolations of continuous eligibility deprive children w ho are im properly term inated from M edicaid oftheirrightsto EPSD T care and any needed follow -up

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 146 of 153
care under j 1396a(a)(10)and jj 1396a(a)(43)(B) and (C)and theirrightsto
m edicalcare under the R easonable Prom ptness and Equal A ccess provisions of TitleX IX .
The im proper sw itching of children from one provider to another w ithout their parents' know ledge or consent deprives children of their rights to EPSD T
careand anyneeded follow-up careunderj1396a(a)(10)and jj 1396a(a)(43)(B) and (C)and theirrightsto medicalcare underthe Reasonable Promptnessand
EqualA ccessprovisionsofTitleX IX . The failure ofA H CA orD CF to prom ptly m ake the M edicaid eligibility of
presumptively eligible newborns (i.e. ltbabies of'') operatively deprives those
babies of their rights to EPSD T care and any needed follow -up care under
j1396a(a)(10)and jj1396a(a)(43)(B) and (C)and theirrightsto medicalcare
undertheR easonableProm ptnessand EqualaccessprovisionsofTitleX IX . D efendantsresponsible forFlorida'sM edicaid program have failed to assure
thatplaintiffclassreceived the preventative health care required underthe EPSD T R equirem ents. Iconclude,sim ilarto othercourtsfacing such evidence,seeH ea1th
CareforAI1,lnc.v.Romney,No.Civ.A.00-10833RW Z,2005W L 1660677,*1011(D.M ass.July 14,2005)(findingviolationofEPSDT requirementsastodental carel;M emisovskiex.rel.M emisovski M aram,No.92 C 1982,2004 W L 1878332,at *50-56 (N.D.111.Aug.23,2004) (finding violation of EPSDT provisions),thattheEPSDT Requirementsthatchildrenreceivesuchcarehavenot
been m etw hen,as show n above,approxim ately one-third ofFlorida children on M edicaid are not receiving the preventative m edical care they are supposed to receive. This is true both for children on fee-for-service as w ellas in m anaged care,w here screening rates are potentially low er. In addition, an unacceptable percentage ofinfantsdo notreceive a single w ell-child visitin the first 18 m onths of their lives.
146

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Because one-third ofthe enrolled children are notreceiving any oftheir expected preventative care each year,Ialso conclude thatthey have notreceived care in accordancew ith theReasonablePromptnessrequirem entsofthe M edicaid
Act. See OAWWP v.Fogarty,366 F.Supp.zd 1050,1109 (N .D.Okla.2005) (fnding violation ofreasonablepromptnessprovision asto medicalcare);Hea1th CareForAll,Inc.,2005W L 1660677,at*10-11(finding violation ofreasonable promptnessprovisionastodentalcare);Clarkv.Kizer,758F.Supp.572,575-79 (E.D.Cal.1990)(fndingviolationofreasonablepromptnessprovisionastodental care),aff'dinrelevantpartsub.nom.Clarkv.Coyle,967F.2d585(9thCir.1992).
IalsoconcludethattherewasaviolationofSection30(a),becauseM edicaid
children lack equalaccessto prim ary care. I also conclude that m any pediatricians and fam ily practitioners refuse to
take any new M edicaid patientsand otherpediatricianssharply lim itthenum berof new M edicaid patientsthey w illaccept.
lalso conclude thatthe percentage ofchildren in Florida w ho receive blood lead screeningsisextrem ely low ,notw ithstanding the factthatpartofFloridahas an aging housing stock,w hich m eans children are m ore likely exposed to leadbased paint.
l agree w ith A H CA 'S statem entsin repeated LBR SthatifA H C A increased the M edicaid reim bursem entrates forw ell-child check-ups,m ore children w ould receive w ell-child check-ups.Iconclude thatthe testim ony ofthese pediatricians and specialists is credible, They are testifying based on their own personal experience and actions. D efendants did not calla single prim ary physician or specialistto counterthistestim ony. Thetestim ony ofplaintiffs'm edicalw itnesses is consistent w ith the survey evidence and A H CA 'S adm issions that there is a serious problem faced by M edicaid children in receiving prom ptand equalaccess to m edicalspecialists.

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I conclude thatchildren on M edicaid have notbeen provided the EPSDT guarantee of access to care for treatm ent of conditions identifed based on the A H CA surveys show ing seriousshortagesofspecialistcare forM edicaid,A H CA 'S adm issions,theLBR S,and thetestim ony ofanum berofm edicaldoctorspracticing throughout the state. Children on M edicaid have to travelto other areas of the state and/or w ait for several m onths to obtain care. W hile there are certain specialists and certain locations w here issues of access- and reasonably prom pt access- m ay notbe a problem ,the evidence presented leads m e to find thatthe issue extendsthroughoutthe state and acrossm any specialty types. M oreover,the evidence retlects that w hile a particular specialty problem in a given area m ay im prove w ith the arrival of a new doctor,the situation m ay change or another problem m ay occur because ofthe dependency ofthe M edicaid population on a relatively sm all num ber of providers. Further,those providers often lim it the num berofpatientsthey are w illing to see.A ccordingly,Iconclude w ith respectto specialty care thatduring the tim e covered by this case,Florida has notm et the
obligations of the EPSDT Requirements in Section (a)(10) or the reasonable promptnessrequirementsin Section (a)(8). See O& z1W#,366F.supp.zd at1109 (finding violation of reasonable promptness provision as to medical care); M emisovski, 2004 W L 1878332, at *50-56 (finding violation EPSDT provisions);Clarkv.Kizer,758F.Supp.at575-79(fndingviolationofreasonable promptnessprovisionastodentalcare),aff'dinrelevantpartsub.nom.Clark,961
F.2d 585. l sim ilarly conclude thatchildren seeking specialistcare have not received
that care as required under Sections 43(B) and 43(C) of the M edicaid Act. M emisovski, 2004 W L 1878332, at *50-56 (finding violation of 42 U.S.C. 1396a(a)(43)(C)relatingtotheprovisionofEPSDTcorrectiveservices).

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 149 of 153
l also conclude based on extensive record evidence that children on M edicaid do not receive equal access to specialist care, com pared to insured children in theirgeographicalareas. See,e.g.,PX 583.Seealso M emisovski,2004
W L 1878332,at*42-47(findingviolationofequalaccessprovision astomedical care);OIU AP,366F.supp.zdat1107(findingviolation ofequalaccessprovision astomedicalservices);Ark.M ed.Soc#,lnc.v.Reynolds,819F.Supp.816,82526 (E.D.Ark.1993)(finding violation ofequalaccessprovision asto medical care);Clark,758F.Supp.at580(Gndingviolation ofequalaccessprovisionasto dentalcare). Ratesare notsetwith any consideration to the levelrequired to
provide such equal access, consistent w ith the other requirem ents of Section
(30)(A).
B ased on the factthat79% ofthe children enrolled in M edicaid are getting no dentalservicesatall,1agree w ith D r.CrallthatM edicaid children in Floridaare not receiving dental services w ith reasonable prom ptness. C rall on 1/26/2012
Rough Tr.at96-97. SeeHea1th CareforA11,Inc.,2005W L 1660677,at*10-1l (finding violation of EPSDT requirements and the reasonable promptness provision as to dentalcare);M emisovskl',2004 W L l878332,at *50 (finding violation ofEPSDT provisions);Clark,758F.Supp.at580 (fnding violation of reasonablepromptnessprovisionastodentalcare).
1 conclude that Florida is also not in com pliance w ith the EPSD T
requirements.SeeHea1th CareforA1l,Inc.,2005W L 1660677,at*14(findinga violation of42U.S.C.j 1396A(A)(43)asto dentalcare);M emisovski,2004 W L 1878332,at*50-56(fndingviolationofEPSDTprovisions).
Ialso agreewith Dr.Crall'sopinionthatFlorida'sM edicaid dentalratesare
not sufscient enough to provide equal access in violation of 42 U.S.C. j 1396a(a)(30)(A)forFlorida'sM edicaid children in each ofAHCA'S 11regional
areas. Ibase m y conclusion on thelack ofdentistparticipating in Florida M edicaid
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and on the 79% ofchildren w ho receive no dental service. Crall on 1/26/2012 Rough Tr.at98:6-20.SeeH ea1th CareForA 1l,Inc.,2005 W L 1660677,at*10-11
(findingviolationofequalaccessprovisionastodentalcare);Clark,758F.Supp. at580(tindingviolationofequalaccessprovisionastodentalcare).
B ased on the evidence in this case,l conclude that w hile reim bursem ent ratesare notthe only factordeterm ining w hetherprovidersparticipate in M edicaid, they are by far the m ost im portant factor, and that a sufficient increase in reim bursem entratesw illlead to a substantialincrease in providerparticipation and acorresponding increase in accessto care.
There w as also substantial support at trial that M edicaid reim bursem ent rates- to have a significanteffect- need to be increased som ew here close to the levelpaid underthe M edicare program . D r.Flinttestified to thisopinion,and this w as the increase in the Polk County exam ple. Flint on 1/24/2012 Rough Tr.at 182-186. A n increasing num berofother stateshave setM edicaid reim bursem ent rates at or very near M edicare reim bursem ent rates 1d. at 191-92. M oreover, Congress,in recentlegislation,hasrequired foratw o-yearperiodthatprim arycare providers receive com pensation at least at the M edicare rate. Sreckovich on 1/12/2012 R ough Tr.at49. Itisalso logicalthatthe M edicarereim bursem entrates are a good indication ofcom petitive m arketprices. Flinton 1/24/2012 Rough Tr. at 191-92. There w as no evidence presented by defendants of any adequate differentrate level. G iven the record,1conclude thatplaintiffs have show n that achieving adequate provider enrollm ent in M edicaid- and for those providers to m eaningfully open theirpracticesto M edicaid children- requirescom pensation to be setatleastatthe M edicare level.
Based on theapplicablestatutesand caselaw ,IconcludethatAHCA ,asthe agency that adm inisters Florida M edicaid, is legally responsible to ensure that

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children who obtain theircarethrough aM edicaid 1-N 0 (orthrough a Provider ServiceNetwork)receivethecaretowhichtheyareentitledunderfederallaw.
1 further conclude thatthe fee-for-service reim bursem entrates A H CA sets forproviders is a key factorin determ ining the capitation rate paid to l-IM O s,and fordeterm ining how m uch H M O s can,in turn,pay their providers. A ccordingly, inadequate fee-for-service reim bursem entrates resultin inadequate com pensation by M edicaid H M O sto theirproviders.
Based on the H ED IS reports,the m ini-cM s 416 reports,as w ellas other docum ents and testim ony from providers,Ialso conclude thatthe sam e problem s that plague fee-for-service M edicaid- failure to provide w ell-child check-ups,a scarcity ofspecialists,excessive w aittim es and traveldistances for specialty care, and a lack of dental care- infect the M edicaid l1M O s. Thus,A H CA 'S 11M 0 system fails to m eet the federal requirem ents for providing EPSD T care, in
violation of(a)(10);do notprovidecarewith reasonablepromptness,asrequired by(a)(8);donotprovidecarewithequalaccessunderSection30(A);andhavenot complied withtheobligation toprovidecareasestablishedby sections43(b)and 43(c)oftheM edicaidAct.
There is also extensive record evidence that leads m e to conclude that children onM edicaidHM Osdonotreceiveequalaccessto specialistcare,andthat capitation ratespaid to M edicaid H M O sare notsetw ith consideration ofthe level needed to provide equalaccess,consistentwith the otherrequirementsofSection
(30)(a)asrequiredundertheM edicaidAct.
Federal law requires states to effectively inform all EPSD T eligible individuals ortheir fam ilies aboutthe availability of EPSD T services,how those services m ay be obtained,thatthose services m ay be obtained at no costto the
child,and thattransportation isavailable. See 42 U.S.C.j 1396a(a)(43)(A);42 C.F.R.j441.56(a). Floridahasdelegated toDCF,among otheragencies,certain

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 152 of 153
outreachandinformationalresponsibilities.SeeFla.Stat.j409.9122(2)(c)(DCF
mustprovide ikclear and easily understandable inform ation''aboutM edipass and M edicaid l-W fo s,the plansthrough which m ostchildren are supposed to receive
EPSDT servicesinFlorida).lpreviously held thatidDCF,aswellasAHCA and
D O H ,have outreach responsibilities;they are required to fensure that each M edicaid recipient receives clear and easily understandable inform ation' about M edipass or m anaged care options. T his requirem entarises from the M edicaid A ct's outreach provision-'' 9/30/2009 O rder on C lass C ertification,
D.E.671at7(citationsom itted).lreaffirm myholdinghereastoAHCA and DOH, but m odify my ruling with respect to DCF. I recognize that j 409.9122(2)(c),Fla.Stat-,hasexpired and DCF isno Iongertasked with these
outreach and inform ationalresponsibilities.
Defendantscontendthat42U.S.C.j 1396a(a)(43)doesnotrequirethem to
conductoutreach to children w ho are not enrolled butare eligible forM edicaid.
The plain languageofthe regulationsimplementing thissection statethatttgtlhe agency mustEpqrovideforacombinationofwritten andoralmethodsdesignedto inform effectively al1EPSDT eligible individuals (or their families)aboutthe EPSDT program.''See42C.F.R.j441.56(a)(1);FriendsofEvergladesv.S.Fla. Water M gmt.Dist,570 F.3d 1210,1227-28 (11th Cir.2009)(stating thatan
agency'sprom ulgation ofregulationsinterpreting am biguous statutory language is
entitled to deference as long as the intem retation is reasonable). ttM edicaid's implementingregulations(inspecific,j441.564a(1 ...obligateparticipatingStates
to çeffectively' inform al1 eligible individuals.'' See Westside M others
Olszewski, 454 F.3d 532, 543 (6th Cir. 2006). The plain language of the
regulations,com bined w ith the case law supporting this interpretation,com pelthe
conclusionthatj l396a(a)(43)and42 C.F.R.j441.56(a)(1)mandatethatthestate
conductoutreach to al1eligible individuals.
l 52

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Defendantshave failed to ççlpjrovidefora com bination ofwritten and oral methodsdesigned to inform effectively allEPSD T eligible individuals(ortheir families) aboutthe EPSDT program,''and to conductoutreach in tçclear and
nontechnical language'' that provides inform ation about the benests of preventative care,the services available underthe EPSDT program ,how those servicesm ay be obtained,thatthe servicesare available atno costto children,and
thattransportation servicesareavailable.See42C.F.R.jj441.56(a)(1)& 441.56 (a)(2)(emphasisadded).Seealsoj1396a(a)(43)(A).
I furtherconclude thatthe use ofthe Florida A ccess application in m any of the circum stances in w hich itcurrently is utilized constitutes an unnecessary and im perm issible barrierto the provision ofthe EPSD T servicesto children required undertheEPSDT Requirem entsoftheM edicaidAct.
V lII.C O N C LU SIO N
Theseconstitutem y findingsandconclusionsfollowing 90-plusdaysof

trial. D ON E and O R D ERED in cham bersin M iam i,Florida,this31Stday of

M arch,2015. Copyto: A llcounselofrecord

/>
A dalberto Jordan United StatesD istrictJudge

153

 
 Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 05-23037-CIV-JORDAN

FLORIDA PEDIATRIC SOCIETY/THE )

FLORIDA CHAPTER OF THE

)

AMERICAN ACADEMY OF

)

PEDIATRICS; FLORIDA ACADEMY OF )

PEDIATRIC DENTISTRY, INC., et al., )

Plaintiffs

) )

vs.

)

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

) ) ) )

Defendants

)

____________________________________ )

ORDER DENYING THE DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT For the reasons stated below, the defendants’ motions for summary judgment [D.E. 549, 560] are DENIED.
I. LEGAL STANDARD A m otion fo r s ummary jud gment sh ould b e g ranted w hen “ the ple adings, de positions, answers to interrogatories, and admissions onfile, together with the affidavits,if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party fails to prove an essential element of its case for which it has the burden of proof at trial, summaryjudgment is warranted. See Celotex Corp., 477 U.S. at 323. That is, “[w]here 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.’”See Matsushita Elec. Indus. Co. v. Zenith Radio Copr ., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). In making this assessment, the court “ must view all the evi dence and all fa ctual infe rences reasonably drawn from the evidence in the light most favoarble to the nonmovingparty,” see Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997), and “resolve all

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 2 of 9
reasonable doubts about the facts in favor of the nonmovant.” See United of Omaha Life Ins.v. Sun Life Ins. Co., 894 F.2d 1555, 1558 (11th Cir. 1990). I therefore review the facts in the light most favorable to the plaintiffs.
II. FACTS & PROCEDURAL HISTORY This case concerns the defendants’ allegedly unlawful failure to provide Florida children enrolled in (and eligible for) Medicaid with essential medical and dental services as required by the Social Security Act. S pecifically, Title XI X of the Socia l Security Act manda tes that children enrolled in Medic aid be f urnished with the primar y, preventative, acute, and spec ialty care and services which are necessary to their good health and development. The plaintiffs allege, in part, that more than 500,000 Medicaid-enrolled children were not furnished with preventative healthcare in violation of federal law. The plaintiffs seek declaratory and injunctive relief to compel the defendants to meet their alleged obligations under the Medicaid Act on an going-forward basis.1 The defendants urge me to grant summary judgment because (1) the plaintiffs lack a private right of action to sue under the Medicaid provisions at issue, including 42 U.S.C. §§ 1396a(a)(8), (a)(10), (a)(30), and (a)(43); and (2) even if the plaintiffs have a private right of action, the term “medical assistance,” included in §§ 1396aa()(8) and (a)(10), is narrowly defined and precludes relief for failure to provide medical services.2
III. DISCUSSION A. WHETHER 42 U.S.C. §§ 1396a(a)(8), (a)(10), AND (a)(30)
CONFER INDIVIDUALLY ENFORCEABLE RIGHTS
1The plaintiffs do not seek any damages arising from the defendants’ alleged continued and systematic violations of federal law.
2The defendants also contend that theplaintiffs lack standing. I reject this argument, and find that one individual plaintiff has standing to pursue the remaining three counts, as explained in the order on class certification. Additionally, I do not address the defendants’ argument, presented for the first time in their reply brief, that Secretary Sheldon is entitled to summary judgment on Count 4 because DCF is not alleged to have outreach obligations under § 1396a(a)(43). I cannot, and should not, consider new arguments raised for the first time in a reply brief. See Powell v. Carey Intern., Inc., 490 F. Supp. 2d 1202, 1204 n.4 (S.D. Fla. 2006).
2

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 3 of 9
The defendants assert that there is no private right of action under §§ 1396a(a)(8), (a)(10), and (a)(30). The Supreme Court has explained that to determine whether a federal statute creates an enforceable right against a state a court must analyze three factors:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial compete nce. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.
Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) (citations omitted). For statutory language to satisfy the first factor, it must be “rights-creating” and clearly impart an “individual entitlement” on the plaintiff with an “unmistakable focus on the benefitted class.” See Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002). The defendants’ contentions fail because the provisions at issue in this case meet the three-prong test established in Blessing, as refined by Gonzaga.
B. 42 U.S.C. §§ 1396a(a)(8) & (a)(10) Count 1 alleges a violation of the“reasonable promptness” clause of the Social Security Act, 42 U.S.C.§ 1396a(a)(8). As stated in myorder on the motion to dismiss, the Eleventh Circuit inDoe v. Chiles, 136 F.3d 70 9, 719 (11th Cir. 1998), expressly held that § 1396a( a)(8) meets all three requirements of the Blessing test. It is for the Eleventh Circuit to decide whether Doe has been so eroded by Gonzaga that it should be overruled. My job, as a district judge, is to follow Doe at this time. See, e.g., United States v. Baxter, 2009 WL 106649, *1 (11th Cir. 2009) (“Because Moore [ a pr ior El eventh Circuit decision] has not been overruled by this C ourt s itting en banc or the Supreme Court, the district court was bound to follow its holding”). In any event, I do not believe that Doe has been called into doubt by Gonzaga. My prior decision is supported by several postGonzaga opinions which agreed with the opinion in Doe. See Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002); Newark Parents Ass’n v. Ne wark Pub. Sch., 547 F.3d 199, 208 ( 3d Cir. 2008); Sabree ex. rel.Sabree v. Richman, 367 F.3d 180, 194 (3d Cir. 2004); Doe v. Kidd, 501 F.3d 348, 356 (4th Cir. 2007); Westside Mothers v. Olszewski, 454 F.3d 532, 536-37 (6th Cir. 2006).
3

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 4 of 9
Count 1 also alleg es a violation of § 1396a (a)(10), which provi des that a state plan for medical assistance must “provide for making medical assistance available.” Consistent with my decision on the motion to dismiss, and with the seven courts of appeal that have squarely addressed this issue post-Gonzaga, I hold that § 1396a(a)(10) confers enforceable rights on the plaintiffs. See Newark Parents Ass’n, 547 F.3d at 208; Sabree, 367 F.3d at 190; S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 607 (5th Cir. 2004); Westside Mothers, 454 F.3d at 536-37; Katie A. ex rel. Ludin v. L.A. County, 481 F.3d 1150, 1153 n.7 (9th Cir. 2007); Watson v. Weeks, 436 F.3d 1152, 1154 (9th Cir. 2006).
C. 42 U.S.C. § 1396a(a)(30)(A) The defendants also arg ue that § 1396a( a)(30)(A) -- the e qual access provision -- has an aggregate focus and does not confer enforceable rights on the plaintiffs. Because of the similarity of the statutory language in § 1396a(a)(30)(A) and the language of the Boren Amendment, which the Supreme Court found sufficient to confer a private right of action, I conclude that the individual plaintiffs may bring an action under § 1396a(a)(30)(A) in light of Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 519-20 (1990). In Wilder, the Supreme Court held that health care providers could sue to enforce the Boren Amendment because they were the “intended beneficiaries” of a provision that imposed a “binding obligation” on states to adopt reasonable rates. See id. at 509-510. The text of the Boren Amendment required states to:
“[P]rovide . . . for p ayment . . . of the hospital servic es, nursing facility services, and services in an intermediate care facility for the mentally retarded provided under the plan throug h the use of r ates (determined in accordance with methods and standards developed by the State . . . ) which th e S tate fi nds, a nd m akes a ssurances satisfactory to the Secretary, are reasonable and adequate to met the costs w hich m ust be inc urred b y e fficiently an d e conomically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards a nd to assure tha t individuals eligible for medical assistance have reasonable access . . . to inpatient hospital services of adequate quality.
Id. at 502-03. The judiciary was competent to enforce the requirement that a state adopt rates that were “reasonable and adequate to meet the costs” of medical facilities because “[w]hile there may be a r ange of r easonable rates, there certainly are some rates that no State co uld ever find to be reasonable and adequate.” Id. at 519-20.
4

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 5 of 9
The Supreme Court in Wilder applied a less stringent three-prong test than the one adopted by Gonzaga to determine whether the Boren Amendment conferred a private right of action. The Wilder C ourt’s a nalysis, h owever, w as e xpressly p reserved b y Gonzaga, which stated tha t the language of the Boren Amendment “left no doubt of its intent for private enforcement . . . because the provision required States to pay an ‘objective’ monetary entitlement to individual health car e providers.” See Gonzaga, 536 U.S. at 281. Wilder, then, remains good law.
In this case, § 1396a(a)(30)(A) requires a state program to: [P]rovide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care a nd se rvices a nd to a ssure tha t pa yments a re c onsistent w ith efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . .
§ 1396a(a)(30)(A) (emphasis added). In my view, § 1396a(a)(30)(A) imposes a mandate on states that mimics the Boren Amendment and contains similar “rights-creating language.” See Gonzaga, 536 U.S. at 290. The Boren Amendment required states to create programs that provided reasonable payment to provide access to adequate medical assistance, while § 1396a(a)(30)(A) requires states to cre ate pr ograms that provide s sufficient pa yment to ensure tha t adequa te ac cess to medica l assistance is “available under the plan.”3 The only distinction between the two provisions is that § 1396a(a)(30)(A)’s beneficiaries are Medicaid enrolled individuals who utilize the care and services “available under the plan” a nd the Boren Amendment’s beneficiaries are medical providers. See Penn. Pharm. Ass’n v. Houstoun, 283 F.3d 531, 543-44 (3d Cir. 2002) (en banc) (Alito, J.) (holding that § 1396a(a)(30)(A)’s provisions for quality of care and adequate access were “draft[ed] . . . with an unmis takable focus on Me dicaid bene ficiaries”). B ut the fac t that health ca re pr oviders ar e mentioned in the text of the Boren Amendment and plan participants are not explicitly discussed in
3Private enforcement of a provision is notunavailable merely because the statutoryprovision discusses the requirements of a state Medicaid plan. See 42 U.S.C. § 1320a-2 (“In an action brought to enforce a provision of this chapter, such provision is not deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan.”).
5

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 6 of 9
the text of § 1396a(a)(30)(A) does not compel a different result: plan participants are given a right of enforcement through the language requiring states to make available services “under the plan.”4
I acknowledge that several circuits have determined, post-Gonzaga, that § 1396a(a)(30)(A) does not expressly create an enforceable individual right. See Long Term Care Pharm. Alliance v. Ferguson, 362 F.3d 50, 59 (1st Cir. 2004); Equal Access for El Paso v. Hawkins, 509 F.3d 697, 703 (5th Cir. 2007); Westside Mothers, 454 F.3d at 542; Sanchez v. Johnson, 416 F.3d 1051, 1060 (9th Cir. 2005); OKAAP v. Fogarty, 472 F.3d 1208, 1210, 1215 (10th Cir. 2007); Mandy R. ex rel. Mr. and Mrs. R. v. Owens, 464 F.3d 1139, 1148 1( 0th Cir. 2006). With theexception of Long Term Care and Mandy R., however, none of the cases distinguish Wilder and are therefore not very persuasive. Long Term Care evaluates only whether § 1396a(a)(30)(A) provides a private right of action for providers, and though the First Circuit acknowledges that “the Boren Amendment and subsection (30)(A) c ontain[] near ly identical substantive re quirements,” it dismisses the s imilarity and concludes that “Gonzaga requires clear statutory language for thecreate of private rights enforceable under 1983.” See 362 F.3d at 58.5 Mandy R. similarly expressed credulity that Gonzaga preserved Wilder and found that Gonzaga “tightened the first requirement” of finding a private right to enforce statutory violations and therefore no relief was available. See Mandy R., 464 F.3d at 1147.
I admit that, if I were to apply the Gonzaga test to § 1396a(a)(30)(A) on a blank slate, it might be difficultto find sufficient “rights creating language” to allow for private enforcement. But it is not for the lower courts to decide that a Supreme Court case on point has been eroded to the point of no longer being binding precedent. See, e.g., Hohn v. United States, 524 U.S. 236, 252-53 (1998); Powell v. Barrett, 541 F.3d 1298, 1302 (11th Cir. 2008). The First and Tenth Circuits, in my opinion, gave too little deference and weight to Wilder.
I fi nd fu rther s upport fo r t he c onclusion th at § 139 6a(a)(30)(A) a llows fo r p rivate enforcement in the analy sis of another district c ourt ca se which holds that the “ structure and
4Although it is unclear whether thejudiciary has sufficient competence to determine if a state has assured sufficient payments to enlist enough providers as it does to determine if a state has made reasonable payment to meet the costs of facilities (as inWilder), the defendants have not argued that § 1396a(a)(30)(A) does not allow for enforcement because it is too vague and amorphous.
5Long Term Care cites the re peal of the Boren Amendment in 1997 as a r eason to ignore Wilder. See 36 2 F .3d a t 58 . T hat ma kes n o s ense. The su bsequent r epeal of a n a mendment t o increase “ the fl exibility of the sta tes” ma y sh ed li ght a s to Con gress’ lat er v iews a s to pr ivate enforcement of the Boren Amendment, but does not alter the Supreme Court’s analysis that the text of the Boren Amendment was sufficient to confer private enforcement.
6

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 7 of 9
language of [the Boren Amendment and § 1396a(a)(30)(A)] are nearly identical, and each focuses on mandatory obligations [that] a state plan must meet” there is “no principled basis to say that a private right of action is unavailable in this case.” See Memisovski v. Maram, 2004 WL 1878332, at *8 (N.D. Ill. 2004). See also Clark v. Richman, 339 F. Supp. 2d 631, 639-40 (M.D . Pa. 2004) (applying the reasoning of Memisovski to find that § 1396a(a)(30)(A) confers privately enforceable rights); Pediatric Specialty Care, Inc. v. Ark. Dept. of Human Servs., 443 F.3d 1005, 1014-16 (8th Cir. 2 007) (f inding tha t § 1 396a(a)(30)(A) c onfers a pr ivately enforceable ri ght t o M edicaid recipients), cert. granted and order vacated as to individual defendants only, 551 U.S. 1142 (2007).
D. 42 U.S.C. § 1396a(a)(43)(A) I decline the defendants’ invitation (contained in a footnote in their argument on standing) to reconsider my decision that § 1396a(a)(43)(A) created enforceable rights. The defendants identify no cases to contradict my prior ruling , and var ious courts have found that the provision creates enforceable rights. See Bonnie L. v. Bush, 180 F. Supp. 2d 1 321, 1346 (S.D. Fla. 2001), aff’d on other grounds and vacated in part, 31 Foster Children v. Bush, 329 F.3d 1255 ( 11th Cir. 2003); Westside Mothers, 454 F.3d at 543-44; Clark, 339 F. Supp. 2d at 638-40; Memisovski, 2004 WL at *8-11, Health Care for All v. Romney, 2005 WL 1660677, at *13 (D. Mass. 2005); A.M.H. v. Hayes, 2004 U.S. Dist. Lexis 27387, at *19 (S.D. Ohio 2004).
E. DEFINITION OF MEDICAL SERVICES The defendants argue that, even if I find that §§ 1396a(a)(8) and (a)(10) contain enforceable rights, relief unde r Count 1 is precluded be cause th e term “medical a ssistance” in eac h of the statutory provisions is narrowly defined by the Medicaid Act to include only payment for medical services. In Doe, however, the Eleventh Circuit followed Sobky v. Smoley, 855 F. Supp. 1123, 1145 (E.D. Cal. 1994), which held that “medic al assistance under the plan . . . ca n only mean medical services.” See 136 F.3d 709, 716 n.13. Based on this understanding, Doe upheld a claim that the Florida Department of Health & Rehabilitative Services violated § 1396a(a)(8) by failing to provide medical assistance, which consisted of the “therapies, training and other active treatment to which [the plan participants were] entitled.” Id. at 711. The Eleventh Circuit in Doe, then, considered and rejected the argument that the term “ medical assistance” is limited to payment alone. Indeed, the state had argued that it had “no obligation to place individuals in facilities; but were obligated only to reimburse the ICF providers with reasonable promptness.” See Brief of Appellee at 17-18, Doe v. Chiles , No. 96-5144 (11th Cir. Ap r. 9, 1997). F urthermore, the Ele venth Circuit’s broa d interpretation of “medical assistance” as including medical services is supported by decisions of the
7

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 8 of 9
First and Ninth Circuit, though there is admittedlya split in the circuits.See Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002); Katie A, 481 F.3d at 1154. But see Equal Access for El Paso, Inc. v. Hawkins, 562 F.3d 724, 728-29 (5th Cir. 2009) (holding that medical assistance means payment for medical services); Westside Mothers, 454 F.3d at 540-41 (same); Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003) (same); OKAAP, 472 F.3d at 1210 (same).
Finally, the text and structure of theMedicaid Act support theDoe panel’s interpretation that medical assistance includes medical services. To determine the meaning of a statutoryterm, a court consider the definition and context of the term. See Wachovia Bank, N.A. v. United States, 455 F.3d 1261, 1268 (11th Cir. 2006) (“[W]e do not read words or strings of them in isolation. We read them in context. We try to make them and their near and far kin make sense together, have them singing on the same note, as harmoniously as possible.”). The Medicaid Act defines “medical assistance” as “payment of par t or all of the c ost of the [li sted] care and ser vices.” 42 U.S.C. § 1396d(a), Additionally, § 1396a(a )(10) states that a plan must provide “ for making medical a ssistance available, including at least the care and services listed” in § 1396d(a), which specifies access to hospital services and physician services. See § 1396a(a)(10) (emphasis added); §§ 1396a(a)(d)(1), (d)(5). Because the word “include” shows that the statute’s dra fters “intended to provide a nonexhaustive list of examples to clarify the meaning of a term,” the structure of § 1396a(a)(10), read together with § 1396d(a ), suggests that car e and se rvices are contained w ithin t he definition of medical a ssistance.” See Jean v . Nelson , 863 F.2d 759, 777 ( 11th Cir. 1 988). Several other provisions in § 1396a(a)also describe “medical assistance” as including care and services. See, e.g., §§ 1396d(a)(43), 1396a(10)(C)(iii) and (C)(iv). Additionally, regulations enacted pursuant to the Medicaid Act require that a state plan “specify that” recipients are “furnished” listed “services,” see 42 C.F.R. §§ 440.210, 440.220, and require the state agency administering EPSDT provide recipients “services” including dental care and immunizations. See 42 C.F.R. § 441.56(c). These regulations are consistent with the plaintiffs’ definition of “medical services.”6 Given Doe, the language of §§ 1396a and 1396d, and the regulations discussed above, I reject the defendants’ narrow definition of “medical assistance” and conclude that medical assistance includes the provision of medical services.
6I reject the defendants’ contention that the term “medical services” is ambiguous. Rather, the regulations discussed merely provide further support for my interpretation of the plain language of thestatute. And even if the statutorylanguage is ambiguous, the agency’s interpretation is entitled to deference so long as it is reasonable. See Friends of Everglades v. S. Fla. Water Mgt. Dist., 570 F.3d 1210, 1227-28 (11th Cir. 2009).
8

Case 1:05-cv-23037-AJ Document 672 Entered on FLSD Docket 09/30/2009 Page 9 of 9

IV. CONCLUSION The defendants’ summary judgment motions are DENIED. DONE and ORDERED in chambers in Miami, Florida, this 30th day of September, 2009.

Copy to: All counsel of record

_______________________ Adalberto Jordan United States District Judge

9

 
 Case 1:05-cv-23037-AJ Document 1236 Entered on FLSD Docket 03/18/2013 Page 1 of 2
UN ITED STATES D ISTR IC T C O U RT SO U TH ER N DISTR IC T O F FLO R IDA
M IA M IDIV ISIO N C aseN o.05-23037-C IV -JO R D AN /BAN D ST R A FLO R IDA PEDIA TR IC SO C IETY/TH E FLO R ID A C H A PT ER O F TH E A M ER ICA N AC A D EM Y O F PED IATR ICS et al. Plaintiffs
V S.
SEC R ETA R Y O F T H E FL O R ID A AGENCY FOR HEALTH CARE A D M INISTM TIO N etaI.
D efendants
O RDER DENYING M OTION TO D ISM ISS
Thedefendants'motion fordism issalonm ootnessgroundsofcertainclaimsinthiscase
(D.E.1230 at 1-181isdenied.Asdiscussed atlastweek'shearing,CM S hasnotapproved Florida'sstateplan am endm ent(which,by theway,pointsoutthatrateincreasesaretemporary throughDecember31,2014).W ithoutthisapproval,qualifiedandeligiblemedicalprovidersin
Floridahavenotbeen paid,and w illnotbepaid,thehigherM edicarereim bursem entrates.These providers,therefore,are stillbeingpaid theratesthattheplaintiffsarechallenging in thiscase, and everythingrem ainsthesameasitwasattrial.Asaresult,asoftoday,nothingin thiscase-
notthemeritsoftheclaimsnortheinjunctivereliefrequested- hasbeen renderedmootby j 1202 oftheHealthCareandEducationReconciliation Actof2010,Pub.L.NO.111-152,j 1202, 124 Stat.1029,1052-53(2010)(codified inrelevantpartat42 U.S.C.j 1369(a)(13)(c)).See

Case 1:05-cv-23037-AJ Document 1236 Entered on FLSD Docket 03/18/2013 Page 2 of 2

Already,LLC v.Nike,Inc.,l33S.Ct.72l,726(2013)CûA casebecomesmoot- andthereforeno
longera çcase'orçcontroversy'forpurposesofArticle lll- twhen the issuespresented are no
longerilive'orthepartieslackalegallycognizableinterestintheoutcom e.''')

Ifand when CM S approvesFlorida's state plan amendment,the defendants can file a

notice of thatapproval and ask thattheir m otion to dism iss be considered anew.Butthe

defendantswillhave adifficultburdento overcom e.If,aseveryoneagrees,thereisspeculation

aboutw hatFlorida w illdo w ith respectto M edicaid rateson orafterJanuary 1,2015,and w hat

CM S w illdo w ith respectto Florida'sdecision,itw ould appearthatthe defendantsw illhave a

hard tim e show ing thattheireventualpaym entofM edicare ratesto certain providers- because

ofafederalm andatewhich lastsforonlytwo years- m ootsanypartofthiscase.See,e.g.,C//y,

ofMesquitev.Aladdin'sCastle,lnc.,455U.S.283,289(1982);Harrellv.TheFloridaftzr,608

F.3d 1241,1266-67(11th Cir.2010).Unlikethesituationin Greenv.Mansour,474U.S.64,65

(1985)- wherethenew federallaw wasindefiniteinduration- j 1202hasatwo-yearsunset,

andthiscasehastakensevenyearstolitigate.Cf TallahasseeMem '1Reg'1M ed Ctr.v.Bowen,

815F.2d 1435,1451(11thCir.1987).

D ON E

and O RD ERED

in cham bersin M

iam i,Florida,this l%X

dayofM arch2013 .

Copy to: A llcounselofrecord

*+
Adalberto rdan United StatesDistrictJudge

2

 
 Case 1:05-cv-23037-AJ Document 1236 Entered on FLSD Docket 03/18/2013 Page 1 of 2
UN ITED STATES D ISTR IC T C O U RT SO U TH ER N DISTR IC T O F FLO R IDA
M IA M IDIV ISIO N C aseN o.05-23037-C IV -JO R D AN /BAN D ST R A FLO R IDA PEDIA TR IC SO C IETY/TH E FLO R ID A C H A PT ER O F TH E A M ER ICA N AC A D EM Y O F PED IATR ICS et al. Plaintiffs
V S.
SEC R ETA R Y O F T H E FL O R ID A AGENCY FOR HEALTH CARE A D M INISTM TIO N etaI.
D efendants
O RDER DENYING M OTION TO D ISM ISS
Thedefendants'motion fordism issalonm ootnessgroundsofcertainclaimsinthiscase
(D.E.1230 at 1-181isdenied.Asdiscussed atlastweek'shearing,CM S hasnotapproved Florida'sstateplan am endm ent(which,by theway,pointsoutthatrateincreasesaretemporary throughDecember31,2014).W ithoutthisapproval,qualifiedandeligiblemedicalprovidersin
Floridahavenotbeen paid,and w illnotbepaid,thehigherM edicarereim bursem entrates.These providers,therefore,are stillbeingpaid theratesthattheplaintiffsarechallenging in thiscase, and everythingrem ainsthesameasitwasattrial.Asaresult,asoftoday,nothingin thiscase-
notthemeritsoftheclaimsnortheinjunctivereliefrequested- hasbeen renderedmootby j 1202 oftheHealthCareandEducationReconciliation Actof2010,Pub.L.NO.111-152,j 1202, 124 Stat.1029,1052-53(2010)(codified inrelevantpartat42 U.S.C.j 1369(a)(13)(c)).See

Case 1:05-cv-23037-AJ Document 1236 Entered on FLSD Docket 03/18/2013 Page 2 of 2

Already,LLC v.Nike,Inc.,l33S.Ct.72l,726(2013)CûA casebecomesmoot- andthereforeno
longera çcase'orçcontroversy'forpurposesofArticle lll- twhen the issuespresented are no
longerilive'orthepartieslackalegallycognizableinterestintheoutcom e.''')

Ifand when CM S approvesFlorida's state plan amendment,the defendants can file a

notice of thatapproval and ask thattheir m otion to dism iss be considered anew.Butthe

defendantswillhave adifficultburdento overcom e.If,aseveryoneagrees,thereisspeculation

aboutw hatFlorida w illdo w ith respectto M edicaid rateson orafterJanuary 1,2015,and w hat

CM S w illdo w ith respectto Florida'sdecision,itw ould appearthatthe defendantsw illhave a

hard tim e show ing thattheireventualpaym entofM edicare ratesto certain providers- because

ofafederalm andatewhich lastsforonlytwo years- m ootsanypartofthiscase.See,e.g.,C//y,

ofMesquitev.Aladdin'sCastle,lnc.,455U.S.283,289(1982);Harrellv.TheFloridaftzr,608

F.3d 1241,1266-67(11th Cir.2010).Unlikethesituationin Greenv.Mansour,474U.S.64,65

(1985)- wherethenew federallaw wasindefiniteinduration- j 1202hasatwo-yearsunset,

andthiscasehastakensevenyearstolitigate.Cf TallahasseeMem '1Reg'1M ed Ctr.v.Bowen,

815F.2d 1435,1451(11thCir.1987).

D ON E

and O RD ERED

in cham bersin M

iam i,Florida,this l%X

dayofM arch2013 .

Copy to: A llcounselofrecord

*+
Adalberto rdan United StatesDistrictJudge

2

 
 Case 1:05-cv-23037-AJ Document 613 Entered on FLSD Docket 06/25/2009 Page 1 of 35
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 05-23037-CIV-JORDAN/MCALILEY FLORIDA PEDIATRIC SOCIETY, et al., Plaintiffs, v. HOLLY BENSON, in her official capacity as Secretary of the Florida Agency for Health Care Administration, et al., Defendants. ___________________________________________/ REPORT AND RECOMMENDATION ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Pending before this Court is Plaintiffs’ Motion for Class Certification. [DE 281]. Plaintiffs ask the Court to certify, under Fed.R.Civ.P. 23(b)(2), a class of children in Florida who now are, or in the future will be, eligible to receive Medicaid; they also ask the Court to appoint Plaintiffs as class representatives and t heir counsel as class counsel. For the reasons that follow, this Court recommends that the Motion be granted.1 I. Background The Florida Pediatric Society/Florida Chapter of the American Academy of Pediatrics (FPS), the Florida Academy of Pediatric Dentistry, Inc. (FAPD) (here, the Organizational Plaintiffs), and the named individual Plaintiffs (here, the Individual Plaintiffs) bring this civil
1 The Motionwas referred to the undersigned by the Honorable Adalberto Jordan. [DE 218, 271].

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rights class action under 42 U.S.C. § 1983 against Holly Benson, in her official capacity as Secretary of the Florida Agency for Health Care Administration (AHCA), George Sheldon, in h is o fficial c apacity a s S ecretary o f th e F lorida D epartment o f C hildren a nd F amily Services (DCF), and Ana Viamonte Ros, M.D., M.P.H., in her official capacity as Surgeon General for the State of Florida and Secretary of the Florida Department of Health (DOH).2 Plaintiffs a ccuse D efendants o f sy stematically f ailing to a dminister F lorida’s M edicaid program i n compl iance w ith fede ral l aw. Speci fically, t hey claim t hat D efendants have violated Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (here, the Medicaid Act), by failing to provide children in Florida eligible for Medicaid with essential medical and dental services. [DE 220-2].3
The Individual Plaintiffs (each appearing with their next friend)4 are children who are eligible to receive medi cal and dent al car e t hrough M edicaid, and t he O rganizational Plaintiffs are non-profit professional organizations of pediatricians, pediatric specialists, and pediatric dentists, whose missions generally are to secure, improve and maintain the medical and dental care of Florida children. [DE 220-2, p. 10-11]. Plaintiffs seek declaratory and
2 The Defendants are hereafter referred to by their agency acronyms. 3 Medicaid is a cooperative federal-state program through which the federal government furnishes financial assistance to t he states so that the states may provide the necessary medical, rehabilitation and other services to low-income persons. See Prado-Steiman v. Bush, 221 F.3d 1266, 1268 (11th Cir. 2000). 4 The Individual Plaintiffs, identified in this lawsuit by their initials, are: L.C., S.M., N.V., J.S., J.W., N.A., K.K., T.G. and N.G.
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injunctive relief to end the alleged violations of federal law, and to compel Defendants to comply with certain provisions of the Medicaid Act. Specifically, in Count I of the Second Amended Complaint, Plaintiffs charge that Defendants failed to provide “medical assistance . . . w ith reasonable prom ptness to all eligible individuals” as required by 42 U .S.C. §§ 1396a(a)(8) and ( a)(10). C ount II charges that D efendants violated their duty under 42 U.S.C. § 1396a(a)(30)(A) to provide equal access to medical care by developing a Medicaid plan that assures that payments to medical providers are consistent with quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.5 Count IV alleges that Defendants failed to effectively inform Plaintiffs and their caretakers of the existence of the child healthcare services as mandated by 42 U.S.C. § 1396a(a)(43).6 [See generally, DE 220-2]. (In this opinion this Court will often refer to these claims by the shorthand phrases: “reasonable promptness” (Count I), “equal access” (Count II) and “outreach and information” (Count IV).)
Plaintiffs bring these claims on behalf of the following proposed class of children: “[a]ll children under the age of 21 who now, or in the future will, reside in Florida and who
5 Count III, which alleged a violation of 42 U.S.C. § 1396u-2(b)5(), has been dismissed. [DE 40].
6 J udge Jordan has dismissed some of these c laims as to Defe ndants DCF a nd DOH. Specifically, on March 19, 2009, he granted DCF’s motion for partial summary judgment on Count II, and as to Count I to the extent that it alleges a violation of 42 U.S.C. § 1396a(a )(10). DOH’s motion for partial summary judgment was granted as to Count IV. [DE 541].
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are, or will be, eligible under Title XIX of the Social Security Act for Early and Periodic Screening, Diagnosis and Treatment Services.” [DE 281, p. 2].
The Motion [DE 281], response [DE 299] and reply [DE 346] raise a multitude of issues, which counsel addressed at oral argument.7 This Court reached its conclusions after careful r eview of t he par ties’ m emoranda, t he r ecord i n t his cas e, appl icable l aw and counsel’s oral argument. II. Analysis
In their Motion, Plaintiffs argue that they have met the requirements of Federal Rule of Civil Procedure 23(a) and 23(b)(2) for class certification. Defendants dispute this, and also argue that a class cannot be certified because Plaintiffs do not have standing to bring the lawsuit. Defendants also re-present an argument, already considered and rejected by Judge Jordan, that Plaintiffs have no private right of action to bring the claims alleged in Counts I, II and IV.8 This Court considers each issue in turn.
A. Standing “[A]ny analysis of class certification must begin with the issue of standing.” PradoSteiman v. Bush, 221 F.3d 1266, 1279-80 (11th Cir. 2000). Before a court can certify a class
7 The transcript of that oral argument has been filed with the Court and is cited, at times, in this Report and Recommendation. [DE 447].
8 Defendants also argue that no class should be certified against DOH and DCF because Plaintiffs’ Complaint does not claim thatthese Defendants have statutory responsibilities under the Medicaid Act, and because there is n o evidence that either DCF or DOH has caused Plaintiffs’ alleged harm. [DE 299, p. 45-47]. Judge Jordan addressed these arguments in his Order on Motions for Summary Judgment [DE 541], and therefore this Court does not address them here.
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or even review class certification requirements, it “must determine that at least one named class representative has Article III standing to raise each class subclaim.” Id. Thus, the Court here need not find that each named Plaintiff meets the requirements of standing for each cause of a ction. I t is enough that the Court find, for each cause of action, that one named Plaintiff has standing, Id. at 1267, 1279-80;9 if it makes that finding, the Court may then turn to the question of class certification.
For a plaintiff to have standing under Article III, there must be (1) an injury-in-fact, i.e., an invasion of the plaintiff’s legally protected interest that is concrete and particularized, and actual or imminent; (2) a causal connection between the plaintiff’s injury and t he defendant’s conduct; and (3) the likelihood that a favorable decision will redress the injury. Lujan v . D efenders o f W ildlife, 5 04 U .S. 5 55, 5 60-61 (19 92); F lorida C onference of N.A.A.C.P. v . Br owning, 522 F.3d 1153, 1159 ( 11th C ir. 2008) ; O rder on M otions for Summary Judgment, DE 541, p. 4. Plaintiffs have the burden of establishing each of these three elements. 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003). “Each element of standing must be supported in the same manner as any other matter on which the plaintiff bears the burden of proof.” Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1177 (11th Cir. 2009). The evidence necessary to satisfy this burden depends on the stage of litigation at which standing is challenged. 31 Foster Children, 329 F.3d at 1263. When standing is raised at this point in the litigation - when class certification is being determined - t he
9 Judge Jordan has repeatedly recognized this principle. [DE 40, p. 3; DE 541, p. 4]. 5

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inquiry is “necessarily fact-specific and requires factual proffers, through affidavits and other evidentiary documents . . . .” Prado-Steiman, 221 F.3d at 1280.
Pl aintiffs ar gue t hat eac h of t he I ndividual and O rganizational Pl aintiffs have standing to assert each claim; Defendants counter that not one of them has standing. After carefully rev iewing the e vidence b efore the C ourt an d the a pplicable law , this C ourt concludes that for each claim - Counts I, II and IV - there is at least one Individual Plaintiff who has standing. For this reason, and others explained below, the Court does not need to determine whether either of the Organizational Plaintiffs have standing.
1. Individual standing In his Order on Motions for Summary Judgment (which addressed motions for partial summary judgment brought by Defendants DCF and DOH, but not Defendant AHCA), Judge Jordan settled a considerable portion of the parties’ debate about standing. Specifically, he found that there is an Individual Plaintiff who has standing to bring each of the claims (that survived summary judgment) against D efendants D CF and D OH. [D E 541, p. 4-9]. I n particular, Ju dge Jo rdan fo und that P laintiff S .M. h as stan ding to b ring C ounts I an d IV against DCF, and that T.G. has standing to proceed on Counts I and II against DOH. Id. The only remaining question is whether there is a Plaintiff who has standing to bring Counts I (reasonable pr omptness), II ( equal access) and IV (out reach and i nformation) agai nst Defendant AHCA.
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a. Injury in fact Plaintiffs s tate t hat t he I ndividual Pl aintiffs h ave s uffered, o r f ace a n i mminent prospect of sufferi ng, an invasi on of thei r l egally prot ected inter ests ( i.e. th eir rig ht to reasonably pr ompt m edical as sistance, equal acc ess t o heal th car e, and out reach and information about Medicaid services) which has, and will continue to result in, concrete and particularized injury. Plaintiffs cite to various examples of these injuries. [DE 281, p. 3436]. Defendants, for their part, define injury far more narrowly and focus their argument on their claim that no Individual Plaintiff has shown that he was denied health care, and that being the case, that no Individual Plaintiff has established that he has suffered an injury-infact. [DE 299, p. 33-34]. Defendants also argue that Plaintiffs have not shown that they have had difficulty receiving information about Early and Periodic Screening, Diagnosis and Treatment (EPSDT) services, or that payments for covered services have been insufficient to ensure that the Individual Plaintiffs received services. [Id. at p. 34]. Where a plaintiff seeks prospective (declaratory and injunctive) relief, as is the case here, he must establish imminent harm. The Supreme Court and this Circuit have held that, although a plaintiff seeking prospective relief must establish “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement,” the plaintiff “does not have to await the consummation of the threatened injury to obtain preventive relief.” Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979) (quotations omitted). See also Browning, 522 F.3d at 1161; 31 Foster Children, 329 F.3d at 1265; DE 541, p. 5-6.
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An imminent injury is one that is “likely to occur immediately.” Browning, 522 F.3d at 1161 ( citing 31 F oster C hildren, 329 F. 3d at 1265) . “I mmediately” has a di fferent meaning here: it “requires only that the anticipated injury occur with some fixed period of time in the future, not that it happen in the colloquial sense of soon or precisely within a certain number of days, weeks, or months.” Id.; see also DE 541, p. 6. Once the requirement of immediacy is met, a court must then consider the substantial likelihood of future injury. Browning, 522 F.3d at 1161. “To be likely enough, the threatened future injury must pose a ‘realistic danger’ and cannot be merely hypothetical or conjectural. How likely is enough[,] is necessarily a qualitative judgment.” Id.; see also DE 541, p. 6.
In Browning, the El eventh C ircuit C ourt of A ppeals held that the plaintiffs, w ho alleged that a Fl orida statute w ould prevent voters from being able to vote in upcoming elections, had shown a high likelihood that at least one of their 20,000 members would have his voter application rejected due to human error. On that reasoning the court found that the plaintiffs had demonstrated both an imminent threat of injury, and a substantial likelihood that the injury would occur, and noted that the threatened future injury was not based on conjecture about how people would act in the future. Id. at 1163.
Judge Jordan, in his O rder on M otions for Summary Judgment, applied this legal framework in resolving the question of standing as to DCF and DOH. As to DCF’s motion the Court found that S.M., an Individual Plaintiff, had demonstrated an injury-in-fact as to Counts I and IV. [DE 541, p. 5-7]. Plaintiffs’ allegations of injury-in-fact apply equally to
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Defendants DCF and AHCA, and this Court relies upon Judge Jordan’s finding that S.M. has
demonstrated an injury-in-fact as to C ount I and IV. F or convenience those findings are
briefly summarized in the following section.10 This Court finds that a different Individual
Plaintiff, J.S., has demonstrated an injury-in-fact as to Count II.
i. Counts I and IV
In his Order on Motions for Summary Judgment, Judge Jordan made the following
factual findings regarding S.M., an Individual Plaintiff:
S.M., a two-year old boy, has been switched11 from his insurance plan on more than one occasion. S.M. was unable to obtain an EPSDT appointment at 18 months of age as prescribed by law. W hen S.M.’s m other took him to his appointment, she was informed, for the first time, that S.M. could not be seen because S.M.’s Medicaid insurance plan has been switched and his doctor was not a participant in the newly assigned plan. S.M.’s screening was delayed by two months, during which time his mother and doctors attempted to switch him back to his initial plan and then wait[ed] for a new appointment to become available.
[DE 541, p. 5].
Judge Jordan considered Plaintiffs’ argument, that the two-month delay exposed S.M.
to substantial health risks because the 18-month screening is a critical appointment, and the
10 Redressibility, the third element of standing, is also equally applicable to Defendants DCF and AHCA. On the other hand, the second element of standing - the causal connection between the plaintiff’s injury and the defendant’s conduct - must be considered separately for each Defendant. Accordingly, in Section II(A)(1)(b) this Court undertakes an independent analysis of the causation element, vis-a-vis Defendant AHCA.
11 Switching refers to a child’s reassignment from one Medicaid insurance plan to another without notice, often pre venting the child from a ccessing c are when his existi ng doctor is not affiliated with the new Medicaid plan to which the child is assigned. [DE 541, p. 5].
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Defendants’ position that this was a mere delay that did not cause S.M. any negative health consequences, and rejected the D efendants’ position. Ju dge Jordan considered the h arm caused by switching and found that “the injury in this case, the lack of access to care and information, w ill occur w ith s ome fi xed per iod of t ime, and t he pl aintiffs have offer ed evidence that switching occurs frequently.” [DE 541, p. 6]. Judge Jordan specifically found that Plaintiffs satisfied the immediacy requirement, and further found that “the substantial likelihood of future injury in this case is not in ‘the realm of conjecture and speculation,’ because the plaintiffs have made a sufficient showing that it is likely that a child eligible for Medicaid will have his or her plan switched and thus unable to access care.” (citing to 31 Foster Children, 329 F.3d at 1266-67). [See DE 541, p. 7]. Judge Jordan concluded that:
[t]his cas e i s about t he al leged s ystemic pr oblem of delay and deni al of healthcare, so the injury is such delay and denial of healthcare, and need not be accompanied by an adverse health consequence. Here, S.M.’s 18-month EPSDT a ppointment w as d elayed, an d th at co nstitutes in jury-in-fact as to Count I. Moreover, S.M.’s mother stated that she did not receive information about S.M.’s rights from the defendants, and such lack of i nformation also constitutes an injury-in-fact with respect to Count IV. Id. p. 7. As a lready n oted, the se c onclusions m ade w ith regard to D efendant D CF a pply equally to Defendant AHCA.
ii. Count II This C ourt finds that a di fferent Individual Plaintiff, J.S., has shown that she has suffered an injury of the kind complained of in Count II: denial of equal access to health
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care. J.S.’s difficulties have concerned her access to specialty care. In 2007 J.S. broke her
wrist and the emergency room doctor instructed J.S.’s mother that it was crucial that she receive treatment the following Monday. J.S. did not receive timely treatment, however, because the orthopedic physician she was referred to did not accept Medicaid. [DE 281, Ex. 26]. J.S.’s mother then called ten or fifteen doctors who were listed in the phonebook, and about six doctors whose names were provided to her by Defendants, none of whom accepted Medicaid. [Id.]. As a result J.S.’s treatment was delayed by three days, and her mother had to drive an hour-and-a-half to obtain the follow-up care. [Id., Ex. 27]. Similarly, when J.S. received emergency treatment for a broken ankle, and her mother was told that it w as important to follow-up the next Monday, J.S.’s mother was unable to locate a doctor who would accept Medicaid. [Id., Ex. 26]. Plaintiffs also offer evidence that J.S. has been unable to access gynecological care [Id., Ex. 26, 28], and that her mother must drive from Jupiter to Miami to obtain care from a Medicaid provider for J.S.’s immune deficiency condition. [Id., Ex. 26].
Count II alleges that Plaintiffs, as Medicaid recipients, do not have equal access to health car e t hat i s ot herwise ava ilable t o t he gene ral popu lation. This C ourt fi nds t hat Plaintiffs have put forward sufficient evidence that J.S. repeatedly has not been able to access specialty care, in the way that a child with private funding could. This harm is imminent, within the context of standing, because it is likely to reoccur within some fixed period of time
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in the future. See Browning, 522 F.3d at 1161. In particular, given J.S.’s ongoing medical needs, including her immune deficiency disorder which requires travel to Miami every six months, Plaintiffs have established that J.S. will require specialty care in the future, and that there is a substantial likelihood that she will encounter similar problems accessing that care. In sum, J.S. has demonstrated that she has suffered an injury-in-fact, and hasthus established the first element of standing for Count II.
b. Causation Plaintiffs have easily demonstrated the second element of standing - causation - for S.M.’s and J.S.’ claims against AHCA. The Florida legislature designated AHCA as the single state agency authorized to make payments for M edicaid services. §§ 409. 901 and 409.902, F la. S tat. ( 2007). T his in cludes p ayment f or E PSDT a nd p hysician s ervices, § 409.905(2) and (9), Fla. Stat. (2007), and various optional Medicaid services that Florida has chosen to provide, such as children’s dental services (see § 409.906(6), Fla. Stat. (2007)). The F lorida leg islature h as a lso d elegated a uthority to A HCA f or se tting M edicaid reimbursement rates (see § 409.908, Fla. Stat. (2007)), and for ensuring that each Medicaid recipient receives i nformation abo ut M edicaid p lans ( see § 4 09.9122, F la. S tat. (20 07). Given the broad statutory responsibility AHCA has over the Medicaid program, Plaintiffs have easily demonstrated a causal connection between S.M.’s and J.S.’ injuries and AHCA’s conduct.
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c. Redressibility Judge Jordan has found that the injuries alleged in Counts I and IV (against DCF) and Counts I and II (against DOH) are likely to be redressed by a favorable ruling for Plaintiffs. [DE 541, p. 9, 17]. The same conclusion is easily reached for Counts I, II and IV against Defendant AHCA. For an injury to be redressible, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.” Lujan, 504 U.S. at 561; see also DE 541, p. 9. Plaintiffs’ injuries, alleged in Counts I, II and IV, will be prevented by the injunctive relief sought, which would require Defendants to: (1) furnish all enrolled and eligible Florida children the continuing and complete children’s health care to which they are entitled; (2) implement administrative systems that minimize both the switching of children between insurance plans, and eligibility problems; (3) provide sufficient payments to health care providers so that there are enough enlisted providers available to administer care and services to enrolled and e ligible children, at least to the same extent that such care and services are available to children in the geographic area; and (4) institute outreach programs that effectively inform children of their rights under the Medicaid Act. [DE 220-2, p. 38; DE 541, p. 9, 17]. In sum, this Court concludes that there is sufficient evidence that S.M. has standing to br ing t he cl aims alleged i n C ounts I and I V agai nst D efendant A HCA, and J .S. has standing to bring Count II against AHCA.
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2. Organizational standing For reasons explained below (see discussion of typicality, at S ection II(C)(3)) this Court c oncludes that t he O rganizational P laintiffs are not qu alified to ser ve as cl ass representatives. Given that finding, and the finding that there are Individual Plaintiffs who have standing, this C ourt need not determine w hether the O rganizational Plaintiffs have standing B. Private right of action Defendants argue that the Court should deny class certification because none of the sections of Title XIX should be read to confer on the Plaintiffs a private right of action. [DE 299, p. 30-32]. This Court declines to address that argument here, for two reasons. As for the Organizational Plaintiffs, as already noted, this Court concludes that they are not qual ified t o s erve as cl ass r epresentatives. T hat bei ng t he ca se, whether t he Organizational Plaintiffs have a private right of action is a question that need not be resolved in order to rule on the question of class certification. Moreover, the issue is presently before Judge Jordan, as it has been raised by Defendants in their Motion for F inal S ummary Judgment. [See DE 548-3]. As for t he I ndividual Pl aintiffs, J udge Jordan has t wice c onsidered and r ejected Defendants’ argument. [See Order on Motion to Dismiss, DE 40; Order Denying Motion to Reconsider Motion to D ismiss and to C ertify Issues as Im mediately Appealable, DE 58]. Judge Jordan’s prior rulings are the law of this case, and this Court relies upon them to reject
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Defendants’ arguments that the Individual Plaintiffs do not have a private right of action to bring the claims in Counts I, II, and IV.12
The Court turns to the question of class certification.
C. Class certification under Rule 23 “For a district court to certify a class action, the named plaintiffs must have standing,
and the putative class must meet each of the requirements specified in Federal Rule of Civil
Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Vega
v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009) (citations omitted). Under Rule
23(a) Plaintiffs first must satisfy the requirements of: (1) numerosity; (2) commonality; (3)
typicality; and (4) adequacy of both class Plaintiffs and class counsel. See Id.; Fed.R.Civ.P.
23(a). Plaintiffs here move to certify their class pursuant to Rule 23(b)(2), which requires
Plaintiffs to establish that “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 declaratory
relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2).
“A district court must conduct a rigorous analysis of the Rule 23 prerequisites before
certifying a class.” Vega, 564 F.3d at 1266 (citations omitted). The trial court should not
12 Defendants cite to opinions bythe Tenth and Fifth Circuit Courts of Appeals, issued since Judge Jordan ruled on this subject, which hold that the Medicaid Act obligates states to pay for, but not actually deliver, me dical ser vices. See Oklahoma Chapter of the American Academy of Pediatrics v. Fogarty, 472 F.3d 1208 (10th Cir. 2007); Equal Access for El Paso v. Hawkins, 562 F.3d 724 (5th Cir. 2009). Defendants contend that these decisions support their argument that the Plaintiffs have no priva te right of action as to Count I , because the Plaintiffs do not identify any Medicaid service Defendants failed to provide, nor do theyidentify any failure by Defendants to pay for such service. Again, this argument is pending before Judge Jordan, raised by Defendants in their Motion for Final Summary Judgment. [DE 548-3].
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determine the merits of the plaintiffs’ claim at the class certification stage. Id. “Therefore,
it is proper to accept the substantive allegations contained in the complaint as true when
assessing Rule 23 requirements.” Drayton v. Western Auto Supply Co.,Case No. 01-10415,
2002 WL 32508918, at *6 (11th Cir. March 11, 2002). However, “it may be necessary to
probe behind the pleadings before coming to rest on the certification issue.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982).13 The Court has broad discretion in
determining whether to certify a class. Washington v. Brown & Williamson Tobacco Corp.,
959 F.2d 1566, 1569 (11th Cir. 1992). The burden of establishing the Rule 23 requirements
is on the plaintiff who seeks to certify the suit as a class action. Heaven v. Trust Company
Bank, 118 F.3d 735, 737 (11th Cir. 1997). Plaintiffs have met that burden here.
1. Numerosity Rule 2 3(a) f irst re quires th at th e p roposed c lass b e “ so n umerous t hat jo inder is
impracticable.” Fed.R.Civ.P. 23(a)(1). “Practicability of joinder depends on many factors,
including, for example, the size of the class, ease of identifying its numbers and determining
their addresses, facility of making service on them if joined and their geographic dispersion.”
Kilgo v. B owman Trans portation, I nc., 789 F. 2d 859, 878 ( 11th C ir. 1986) ( citations
13 I n s upport of the ir mot ion fo r c lass c ertification, Plaintiffs ha ve fi led c onsiderable evidence, in the form of deposition testimony, affidavits, documents, and interrogatory responses. See generally DE 281, Ex. 1- 44. While a decision on class certification may be made by simply relying upon the allegations in t he complaint, the Court has made a careful review of Plaintiffs’ proffered evidence, and Defendants’ various challenges to that evidence. As a general proposition, the Court finds that Plaintiffs have supported each of the Rule 23 elements with proffered evidence. It simply is not practical, nor ne cessary, for the Court to cite to e ach example of suc h evidence. Instead, the Court cites some examples of that evidentiary support at various points in this Report and Recommendation.
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omitted). Plaintiffs assert that the numerosity requirement is easily satisfied here, as there are
1.6 million Medicaid-enrolled children dispersed throughout the state of Florida. [DE 281, p. 23]. Further, Plaintiffs contend that these class members are economically disadvantaged children f or w hom f inding c ounsel an d b ringing in dividual cla ims w ould b e e xtremely difficult, if not impossible, and that for these reasons joinder is particularly impracticable. [Id.].
Defendants, c hallenge n umerosity b y a rguing th at P laintiffs’ c lass d efinition is overbroad. [DE 299, p. 39]. According to Defendants, Plaintiffs have not shown that any class m embers have s uffered ac tual i njuries, s uch as havi ng been de nied pr eventative healthcare, or having had to endure unreasonably long w aits for healthcare. D efendants contend that on this record, the Court can only speculate as to the number of class members with claims against Defendants. [Id.].
Throughout their o pposition t o c lass c ertification, De fendants ma ke t his s ame argument, that no proof has been put forward that any Individual Plaintiff - much less any class member - has been “harmed” by Defendants’ administration of the Medicaid program. There are several problems with this argument. First, Defendants seek to define harm in the narrowest possible way - to mean only that a Plaintiff has experienced an outright denial of medical or d ental services. T his wished-for definition of harm ignores the very statutory provisions t hat Pl aintiffs ar e s uing t o enfor ce, w hich guar antee s omething m ore: t he
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reasonably prompt provision of those services, equal access to those services, and outreach and information. It also ignores that Plaintiffs allege, and offer evidence in support, that some Plaintiffs have been unable to access medical or dental providers who accept Medicaid, and thus have had to pay non-Medicaid providers out-of-pocket. Plaintiffs also allege other forms of harm, for example that some have hadto drive long distances to obtain care, or have had to endure unreasonably long delays to be seen by a provider. The second problem with this argument is that Defendants apparently presume that Plaintiffs, at the class certification stage, must present evidence of a kind and quality that will be needed to prevail at trial. In fact, as already noted, the burden on Plaintiffs is not that high. Drayton, 2002 WL 32508918, at *6 ( it i s pr oper at t his s tage t o “ac cept t he substantive al legations cont ained i n t he complaint as true”).
It is worth noting that Plaintiffs have presented evidence that many class members have b een d enied th e rig hts g uaranteed b y th e M edicaid A ct th at ar e th e su bject o f th is lawsuit. For example, they cite statistics that in 2007 approximately 386,000 M edicaidenrolled children did not receive preventative health care services (which supports Plaintiffs’ allegations, in Counts I and II, that Defendants have not met their statutory obligations of reasonable promptness and equal access) and that approximately 400,000 Florida children are eligible for Medicaid, but not enrolled. This latter statistic suggests a lack of outreach and information, which is the subject of Count IV of Complaint. [DE 167, Ex. 15; DE 281,
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Ex. 1014, 11]. Moreover, there is no doubt that joinder here would be impracticable, given the wide geographic distribution of the class. See Kilgo, 789 F.2d at 878.
“Parties seeking class certification do not need to know the precise number of class members, but they must make reasonable estimates with support as to the size of t he proposed class.” Jones v. Jeld-Wen, Inc., 250 F.R.D. 685, 693 (S.D. Fla. 2008) (citations omitted). The “sheer number of potential class members may warrant a conclusion that Rule 23(a)(1) is satisfied.” Id. On the point of numerosity, this case is not unlike Hernandez v. Meadows, 2 09 F .R.D. 6 65, 6 69 (S .D. F la. 2 002), a c lass a ction b rought b y M edicaid recipients against AHCA for failure to comply with certain provisions of the Medicaid Act, where the court found that the numerosity requirement was satisfied, as AHCA’s statistics showed that 35,000 Medicaid recipients had been denied coverage.
The C ourt t hus concl udes t hat Pl aintiffs have met t heir bur den t o s atisfy t he numerosity requirement.
2. Commonality The commonality requirement “demands only that there be questions of law or fact common to the class.” Vega, 564 F.3d at 1268; Fed.R.Civ.P. 23(a)(2). It “‘does not require
14 Exhibit 10 is the CMS-416 Report from 2006-2007 (416 Report). De fendants contend these statistics are unreliable, and that they underreport preventative screenings given children on Medicaid in 2007. [See Transcript of December 2, 2008 oral argument, DE 447, p. 66-9]. Even if Defendants are right, and significantly less than386,000 children did not get these screenings in that year, this does not defeat Plaintiffs’ showing of numerosity, as the standard for numerosity is well below theconsiderable class sizehere. As this Circuit has noted: “while there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate . . . .” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986).
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that all the questions of law and fact raised by the dispute be common’, or that common questions of law and fact ‘predominate’ over individual issues.” Vega, 564 F.3d at 1268 (citations omitted). In other words, to satisfy the commonality requirement, Plaintiffs must show that the class action involves issues that are susceptible to class-wide proof. Murray v. Au slander, 244 F.3d 8 07, 8 11 (1 1th C ir. 2 001). P laintiffs h ave m et th eir b urden to establish commonality.
The C omplaint presents three ov erarching legal questions that are com mon to all members of t he cl ass, s pecifically: ar e D efendants m eeting t heir obl igations under t he Medicaid Act to provide reasonably prompt services, equal access to those services, and outreach and information? Within these broad legal issues are other legal questions common to the class. For example, are the State’s Medicaid reimbursement rates adequate to ensure that cl ass m embers have a ccess t o pr oviders? A re cl ass m embers’ guar dians bei ng adequately informed o f t heir ri ght t o o btain E PSDT ser vices, and ho w t o o btain those services?
Commonality is often found to exist - in cases such as this - when plaintiffs allege that a defendant has acted, or is acting, uniformly regarding a class. Haitian Refugee Center, Inc. v. N elson, 69 4 F . S upp. 86 4, 87 7 (S.D. F la. 19 88). T his is particularly true for “[c]l ass actions seeking injunctive or declaratory relief [which] by their very nature present common questions of law or fact.” Id. Here, Plaintiffs seek prospective relief and there is no real debate that Defendants’ policies, and their implementation of the M edicaid program, a re
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applied uniformly to the members of the class. Defendants c hallenge c ommonality, b y a gain a rguing t hat t here i s n o p roof t hat
Medicaid’s f ee sc hedule, o utreach p rogram, o r a ny o ther a ct alle gedly a ttributable to Defendants, h as c aused a ny M edicaid-eligible c hild to n ot re ceive tre atment. F rom th is Defendants contend that there can be no question of law or fact common to the class. [DE 299, p. 40]. For the reasons already given, Defendants’ argument that Plaintiffs have not proved a n a ctual d enial o f se rvices, a nd th at th erefore this c lass c annot b e c ertified, is unpersuasive.
Defendants also argue that the class members’ complaints are too individualized. In particular, they point to Plaintiffs’ claims that class members have experienced unreasonable wait times for services. Defendants argue that Plaintiffs have not shown that any common act or omission by Defendants have led to those delays. Rather, Defendants argue, those delays have been caused by circumstances unique to each Plaintiff. Thus, say Defendants, there is no common proof that the Court might use to adjudicate on a classwide basis whether wait times have been reasonable, or if they have been the result of an a ct or omission by Defendants. [Id., p. 41].
Defendants try to raise the threshold for Plaintiffs’ proof of commonality; however, it is not high. Hernandez, 209 F.R.D. at 669. T he fact that there are factual differences between class members’ particular experiences, does not preclude a finding of commonality where a common question of law does exist. Hernandez, 209 F.R.D. at 669. It is enough
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for Plaintiffs to show a single question of law or fact that affects all class members alike, Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671, 676 (S.D. Fla. 2007) and, as already noted, Plaintiffs have done so here.
Defendants r ely upon J.B. v. V aldez, 186 F. 3d 1280 (10th C ir. 1999) for t he proposition t hat s weeping cl aims of s ystemic fa ilures by defe ndants do not s atisfy t he commonality requirement. The proposed class in Valdez was all disabled children in that state’s custody, in need of therapeutic services or support. The plaintiffs there alleged that the state violated a long list of statutes, with the end-result that the state had failed to provide disabled children in its custody with needed services. The court carefully reviewed each legal claim in the complaint, and compared it with the claim of each plaintiff, and found that there was no question of fact common to the class and more to the point here, that there was no common question of law, as “there was no one statutory or constitutional claim common to all named Plaintiffs and all putative class members.” Id. at 1289. It was on that record that th e c ourt w rote: “We refuse to h old, as a m atter o f law , tha t any al legation of a systematic violation of various laws automatically” establishes commonality. Id.
Defendants are wrong to compare Plaintiffs’ proof of commonality here, with that offered in Valdez. U nlike the plaintiffs in Valdez who offered a s morgasbord of alleged statutory violations, not one of which was common to all nam ed plaintiffs, Plaintiffs here charge only that Defendants, uniformly as to all Plaintiffs and class members, have failed to satisfy three specific provisions of the Medicaid Act, and have made an initial showing of
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evidence to support that charge. See e.g., DE 281, Ex. 3, 4, 5, 7, 10, 11. This case is far more similar to Hernandez, 209 F.R.D. at 669-70, where the common question presented was whether AHCA had vi olated the M edicaid Act’s provisions for notice and a fa ir hearing when it denied prescription dr ug coverage. T he court there rejected the notion that the individualized c ircumstances s urrounding eac h cl ass m ember’s pr escription dr ug deni al defeated commonality, because there was a legal question common to all class members. As in Hernandez, the details of each Plaintiffs’ efforts to access Medicaid services do not drown out the common legal question whether Defendants have met their obligations under the Medicaid A ct to pr ovide M edicaid eligible children w ith r easonably pr ompt care, equal access t o care, ou treach and i nformation. A s t he E leventh C ircuit recent ly ph rased it : “[t]hese c ommon q uestions a re s ufficient to satisfy th e lo w h urdle o f R ule 2 3(a)(2).” Williams v. Mohawk Industries, Inc., Case No. 08-13446, 2009 WL 1476702, at *6 (11th Cir. May 28, 2009).
On th is re asoning th is C ourt c oncludes th at P laintiffs have m et th eir b urden to establish commonality under Rule 23(a)(2).
3. Typicality The element of typicality requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). “Proof of typicality requires more than general conclusory allegations.” Hernandez, 209 F.R.D. at 671. The analysis therefore focuses on “w hether the class representative[s]’ interest is aligned
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enough with the proposed class members to stand in their shoes for purposes of the litigation and bind them in a judgment on the merits.” Colomar, 242 F.R.D. at 677 (citing General Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982) and Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984)). “A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).” Vega, 564 F. 3d at 1275 ( citations om itted). W hile comm onality and t ypicality m ay be related, “traditionally, commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Id.
According to Plaintiffs, the typicality requirement is met here, where each Individual Plaintiff’s inability to access care resulted from the same pattern or practice (i.e. Defendants’ administration of t he M edicaid system), and t heir claims are all based o n the same legal theory (i.e. violations of the Medicaid Act). [DE 281, p. 26]. In other words, Plaintiffs argue that typicality is satisfied by the Individual Plaintiffs’ and class members’ shared contention that they have been or will be harmed by Defendants’ unlawful operation o f th e F lorida Medicaid system and their common endeavor to bring Defendants into compliance with the law. Id.
Defendants, in arguing that the Individual Plaintiffs are not typical of the putative class once again attempt to define the class more narrowly as “all Medicaid eligible children in Florida who have not received Medicaid-financed healthcare, including EPSDT services.”
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[DE 299, p. 42] . A gain t his argument i s unavai ling, as t his l awsuit addr esses al leged violations of law beyond flat-out denial of medical care. Defendants further argue that some Individual Plaintiffs h ave re ceived so m uch sp ecialty ca re, t hat t hey h ave d eemed m ore routine EPSDT services unnecessary, making them atypical of most class members. [DE 299, p . 4 2]. Finally, at ora l argu ment D efendants ge nerally arg ued that ea ch P laintiff’s experiences accessing Medicaid services is so idiosyncratic, that it can not be said that the Individual Plaintiffs’ experiences are typical of each class member.
There is no d oubt that each M edicaid recipient has had per sonal, and s ometimes unique, experiences seeking and receiving medical and dental services. However, cases in this Circuit make clear that these factual differences do not defeat typicality. “The typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiff and other class members, unless the factual position of the representative markedly differs from that of other members of the class.” Hernandez, 209 F.R.D. at 671. To defeat typicality, a conflict between the Individual Plaintiffs’ claims and those of the calss members “ must b e c lear a nd m ust b e su ch th at the interests o f th e c lass a re p laced in significant jeopardy.” Id., at 672 (citations omitted). See also Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985), abrogated on other grounds by Green v. Mansour, 474 U.S. 64 (1985) (“The similarity of the legal theories shared by the plaintiffs and class at large is so strong as to override whatever factual differences might exist and dictate a determination that the named plaintiffs’ claims are typical of those of the members of the putative class.”).
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The Individual Plaintiffs’ claims here are typical of the proposed class members in that they have all allegedly been denied their rights to reasonably prompt care, equal access to care, preventative and corrective care, and outreach. The Individual Plaintiffs, who live in diverse geographic areas within the state,15 offer a broad spectrum of experiences that collectively illustrate the alleged failures of Florida’s Medicaid system. For example, the Individual Plaintiffs claim that they have been unable to access a variety of areas of care, including pediatric care, orthopedic care, dentistry, immune system care, psychiatry, spinal care, psychology, radiology, pharmaceuticals, ENT care, and gynecology. [DE 281, p. 28 and Ex. 17-18, 20-22, 26-27, 29-30, 32-34, 36-38]. Also, the Individual Plaintiffs are eligible for Medicaid services through a variety of criteria, including means-tests, custody status, a hybrid of medical conditions and means-tests, and complex medical conditions. [Id.]. The ages of the Individual Plaintiffs also range from infancy to teenagers. [Id.]. In the opinion of this Court, the prosecution of this case will benefit from the range of personal experiences presented by the Individual Plaintiffs, as they illustrate the breadth of the alleged harm to the proposed class and the need for universal relief.
While there necessarily will be factual variations between the Individual Plaintiffs’ claims and the claims of each proposed class member, each has suffered the same alleged injury (i.e. lack of medically prompt care, equal access to care, and outreach) as that alleged
15 The Individual Plaintiffs reside in South Florida (K.S., T.G., N.G.), the Panhandle (J.W.), the Capital Region (S.M., N.A.), the Gulf Coast (A.D.), Central Florida (L.C.) and Daytona Beach (N.V.). [See DE 281, p. 28].
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for the class, and each Individual Plaintiff has the same interest in assuring that Defendants comply with their obligations under the Medicaid Act. See Edmonds v. Levine, 233 F.R.D. 638, 641- 42 (S.D. Fl a. 2006) ( “Plaintiffs as sert t hat t he i njuries s uffered by t he representatives and pot ential cl ass m embers al l ar ise fr om A HCA’s pr actice of denying coverage f or cer tain us es, and t his pr actice, acc ording to Plaintiffs, vi olates t he fe deral Medicaid statute. In accordance with Eleventh Circuit standards, the typicality requirement is met.”)
A brief comparison to two recent Eleventh Circuit opinions is useful here. This case is unlike Vega, 564 F.3d 1256, an action brought by a T-Mobile sales representative against T-Mobile for unpaid commissions, where the court concluded that typicality was lacking where the complaint contained no allegation of acommon contract among all class members. Id. at 1276. With no common contract, the trial court would have to look to each plaintiff’s individual contract, what he was told regarding compensation when he was hired, etc. Thus, the named plaintiff’s claims could not be typical of those of class members. In contrast, the Individual Plaintiffs’ claims here, like those of each class member, turn on three provisions of the Medicaid Act.
By comparison, t he cour t i n Williams, 2009 W L 1 476702, f ound that the n amed plaintiffs’ claim was “typical of the claims of other members of the class because the claims are based on the same legal theory.” Id., at *6. The Court observed “[a]lthough this legal theory may ultimately not be sustained by the evidence, it is typical of the class of which [the
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named plaintiffs] are representative.” Id.. A s in Williams, here the Individual Plaintiffs’ claims are typical of the class because they are based on the same legal theory. W hether Plaintiffs can prove that theory at trial remains to be seen, but the Individual Plaintiffs stand in the same shoes as the class members when asserting those common claims.
As for the Organizational Plaintiffs, the Court concludes that they can not satisfy the typicality requirement. The stated mission of FPS is to improve the health and welfare of infants, children and young adults of Florida [DE 281, Ex. 39]; the mission of FAPD is to practice the art and science of Pediatric Dentistry and to promote optimal health care for infants, children, and persons with special needs [DE 281, Ex. 42]. From these missions it does appea r t hat t he O rganizational Pl aintiffs s hare t he interest of the propo sed cl ass members, that Defendants meet their obligations under the Medicaid Act. However, it can not be said that they share the same injury as the class members. (“A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).” Vega, 563 F.3d at 1275.) The Organizational Plaintiffs describe t heir i njuries i n t he fol lowing t erms: devot ing cons iderable t ime, eff ort and resources to remedying the Defendants’ alleged violations of Medicaid Act; being forced to forgo r evenue, by pr oviding services bel ow cos t, w hen t reating chi ldren on M edicaid; spending u ncompensated tim e helping c hildren a nd th eir p arents o vercome b ureaucratic obstacles to c are; bein g fo rced to tr eat children fo r free w ithout as surance o f f uture reimbursement, an d h aving lo st p otential p atients b ecause o f D efendants’ in adequate
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outreach. [DE 281, p. 38, 40]. These injuries of the providers of health care simply are not the same as those of health care consumers. See Georgia State Conference of Branches of NAACP v. State of G a., 99 F. R.D. 16, 35 ( S.D. G a. 1 983). B ecause the O rganizational Plaintiffs do no t sat isfy t he ty picality requi rement, t hey cann ot s erve as clas s representatives.16 Id.
4. Adequacy The requirement of adequacy ensures that there are no substantial conflicts of interest between the named representatives and members of the proposed class. Colomar, 242 F.R.D. at 678- 9. T his r equirement en compasses t he ade quacy of cl ass couns el and t he named Plaintiffs’ ability to adequately prosecute the action; therefore, the Court should consider (1) “whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation,” and (2) “whether plaintiffs have interests antagonistic to those of the rest of the class.” Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985). The Eleventh Circuit Court of Appeals has held that “a party’s claim to representative status i s defeated on ly i f t he co nflict between the repres entative an d the cl ass i s a fundamental o ne, going to th e s pecific is sues in c ontroversy.” P ickett v. I owa B eef Processors, 209 F.3d 1276, 1280 (11th Cir. 2000). “A fundamental conflict exists where some party members claim to have been harmed by the same conduct that benefitted other members of the class.” Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 350 F.3d 1181,
16 Given this conclusion , the Court does not rea ch the que stion of the adequa cy of the Organizational Plaintiffs to serve as class representatives.
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1189 (1 1th C ir. 2 003). In th at in stance th e named re presentatives c annot v igorously prosecute th e in terests o f th e c lass “ because their in terests a re a ctually o r p otentially antagonistic to, or in conflict with, the interests and objectives of other class members.” Id.
This Court finds no fundamental conflict between the Individual Plaintiffs and class members. To the extent Defendants are not complying with the Medicaid Act, they are doing so in a manner uniform to all Individual Plaintiffs and class members, all of whom would benefit from the injunctive and declaratory relief sought in this litigation. The Court agrees with Plaintiffs that the inclusion of several medically complicated Individual Plaintiffs as class representatives17 strengthens Plaintiffs’ ability to represent class members and prosecute their interests. T hese Individual Plaintiffs will likely require extensive health care in the future and therefore have a strong interest in pursuing claims that would improve Florida’s Medicaid system. T hese p articular In dividual P laintiffs a lso h ave h ad e xperiences w ith varied component s of t he M edicaid s ystem, and t herefore have broad know ledge of t he delivery of Medicaid services, which enhances their adequacy as class representatives.
Defendants again make the claim that not one Individual Plaintiff has been denied care, and they contend here that the Individual Plaintiffs can not adequately represent the interests of any class members who have been denied care. Defendants also point out that the proposed class includes children who are eligible for Medicaid, but who are not enrolled
17 For example, N.V. su ffers from Shwachman Dia mond sy ndrome; J.S . has immune deficiency; N.A. has respiratory ailments; N.G. has HIV/AIDS; and L.C. suffers from post-traumatic stress disorder. [DE 281, p. 31].
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in the program, and t hey note that no Individual Plaintiff fits this bill. [D E 299, p. 43; Transcript of D ecember 2, 2008 or al argument, D E 447, p. 50]. D efendants also m ake specific challenges to the adequacy of the proposed class representatives by arguing that J.W. and A.D. can not represent the class because the wait time they experienced in receiving care is not alleged to be the result of Defendants’ actions or inactions, and that L.C., J.S., T.G., N.G. and N.A., as children with special health care needs, are not adequate representatives because they qualify for health care and r elated services of a t ype or amount that is not generally required by other children. [Id., p. 43-44].
Defendants’ arguments fail because they have not shown that the Individual Plaintiffs “have interests antagonistic to those of the rest of the class,” Griffin, 755 F.2d at 1533, which is the core consideration when addressing adequacy. All children receiving Medicaid will have individualized health care needs, yet they all benefit from Defendants’ compliance with the mandates of the Medicaid Act, and thus they all have an interest in the relief sought by this lawsuit. Defendants, in essence, demand that all named Plaintiffs look identical to all class members, in terms of their needs for medical and dental services, and the difficulties they have experienced in accessing these services. This, of course, is an impossibility and Rule 23 does not demand as much. As for the class members who are eligible for Medicaid, but not enrolled in the program, they too have a stake in Defendants’ compliance with the Medicaid Act, and this Court sees no reason why the Individual Plaintiffs can not represent
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their interests.18 As a practical matter, it would seem impossible to find a Medicaid-eligible child who is not enrolled in the program to serve as a class representative, because if such a child were identified class counsel would surely represent their interests and help that child enroll in Medicaid. On this reasoning, this Court concludes that the Individual Plaintiffs’ interests can not be said to conflict with the interests of other members of the proposed class. See Hernandez, 209 F.R.D. at 673.
Lastly, Defendants do not dispute, and this Court specifically finds that class counsel, Boies Schiller & Flexner, LLP and Louis Bullock of Bullock & Blakemore, are qualified, experienced, and fully capable of representing the class in this litigation.
Accordingly, this Court concludes that the Individual Plaintiffs have shown adequacy of representation, and with this have satisfied the four requirements for class certification of Rule 23(a).
5. Rule 23(b)(2) To certify a class, Plaintiffs must satisfy the four requirements of Rule 23(a), as well as o ne o f th e su bsections o f R ule 2 3(b). P laintiffs a sk to c ertify t he c lass u nder R ule 23(b)(2), which applies where “the party opposing the class has acted or refused to act on the grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is ap propriate respecting the c lass as a whole.” F ed.R.Civ.P. 23(b)(2). “Rule 23(b)(2) was intended ‘primarily to facilitate civil rights class actions, where the class
18 For the same r easons offer ed her e, this Court concludes that the a bsence of a na med Plaintiff who is eligible-but-not-enrolled, does not defeat typicality.
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representatives typically sought broad injunctive or declaratory relief against discriminatory practices.” Hernandez, 209 F.R.D. at 673 (quoting Penson v. Terminal Transport Co., Inc., 634 F.2d 989, 993 (5th Cir. 1981)).
Defendants argue that Plaintiffs have not met their burden under Rule 23(b)(2) to show that Defendants acted or refused to act on grounds generally applicable to the class. [DE 299, p. 44]. Defendants again state that no Plaintiff has come forward with evidence of a denial or a wait time to receive a medical service that resulted in harm to that Plaintiff, or that was the result of an act or omission by Defendants that also caused a similar harm to the e ntire c lass. [ Id.]. Si mply put , acc ording t o D efendants, there i s no evi dence t hat Defendants e ver f ailed t o p rovide s ervices t o Pl aintiffs, t herefore Rul e 2 3(b)(2) i s n ot satisfied. [ Id.]. A gain, D efendants essentially argue that Plaintiffs can not m arshal the evidence neede d t o s ecure fi nal decl aratory and i njunctive r elief; i n s o doi ng, t hey misapprehend the que stion t hat i s befo re t his C ourt i n resol ving t his el ement of class certification.
At it s c ore, this c ase is a bout Defendants’ p olicies in a dministering M edicaid to Florida’s children. Plaintiffs allege that Defendants have implemented deficient policies that prevent children from receiving the medical and dental care to which they are entitled under the Medicaid Act. These policies are equally applicable to each member of the proposed class. See H ernandez, 209 F. R.D. at 673. “Injunctive or declaratory r elief s ettling t he legality of the pol icy w ith r espect t o t he cl ass as a w hole i s appr opriate.” Id. C lass
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certification is therefore appropriate here, under Rule 23(b)(2). III. Conclusion
For the foregoing reasons, this Court respectfully RECOMMENDS that Plaintiffs’ Motion for C lass C ertification [D E 281] be GRANTED and that t he C ourt cer tify t he following class: All children under the age of 21 who now, or in the future will, reside in Florida and who are, or will be, eligible under Title XIX of the Social Security Act for Early and Periodic Screening, Diagnosis and Treatment Services. This Court further recommends that Boies Schiller & Flexner, LLP and Louis Bullock of Bullock & Blakemore be appointed as class counsel. IV. Objections Period
The parties may file written objections to this Report and Recommendation with the Honorable Adalberto Jordan no later than July 16, 2009. The undersigned has conferred with Judge Jordan, who has advised that he will not grant any extension of this deadline. Failure to timely file objections shall bar the parties from attacking on appeal any factual findings contained herein. RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); LoConte v. Dugger, 847 F.2d 745, 749-50 (11th Cir. 1988).
RESPECTFULLY SUBMITTED in chambers at Miami, Florida this 25th day of June, 2009.
____________________________________ CHRIS MCALILEY UNITED STATES MAGISTRATE JUDGE
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 Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 05-23037-CIV-JORDAN

FLORIDA PEDIATRIC SOCIETY/THE )

FLORIDA CHAPTER OF THE

)

AMERICAN ACADEMY OF

)

PEDIATRICS; FLORIDA ACADEMY OF )

PEDIATRIC DENTISTRY, INC., et al., )

Plaintiffs

) )

vs.

)

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

) ) ) )

Defendants

)

____________________________________ )

ORDER GRANTING IN PART THE PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Following oral argument and a de novo review of the record, including the defendants’
objections [D.E. 622, 625] and the plaintiffs’ response [D.E. 623], I adopt the thorough and wellreasoned report and recommendation (“R&R”) issued by Magistrate Judge McAliley. Accordingly, the plaintiffs’ motion for class certification [D.E. 281] is GRANTED IN PART.
I. LEGAL STANDARD To certify a class action, “the named plaintiffs must have standing, and the putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” See Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir. 2009) (citations omitted). The “district court must conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class,”and though it “should not determine the merits of the plaintiffs’ claim at the class certification stage, [it] can and should consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.” Id.

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 2 of 9
at 1266 (citations omitted). Additionally, the court may “accept the substantive allegations in the complaint as true.”See Drayton v. W. Auto Supply Co., 2002 WL 32508918, at *6 (11th Cir. 2002).1
II. FACTS & PROCEDURAL HISTORY The background of this case is described in Judge McAliley’s R&R and I will not repeat it here. Judge McAlilely’s finding that class certification is appropriate is consistent with numerous federal c ases c onsidering a state’ s alleg ed non-c ompliance with t he Medic aid Act. See, e .g., Memisovski ex. rel. Memisovski v. Maram, 2004 WL 1878332, at *1 (N.D. Ill. 2004); Hawkins ex. rel. Hawkins v. Comm’r of N.H. Dep’t of Health and Human Servs., 2004 WL166722, at *4 (D.N.H. 2004); McCree v. Odum, No. 4:00-173 (H)(4) (E.D.N.C. 2002); Carr v. Wilson-Coker, 203 F.R.D. 66, 72-75 (D.Conn. 2001); Salazar v. District of Columbia, 954 F. Supp. 278, 287-88 (D.D.C. 1996); Sanders v. Lewis, 1995 WL 228308, at *1 (S.D. W. Va. 1995); Thompson v. Raiford, 1993 WL 497232, at *1 (N.D. Tex. 1993).2 Despite this precedent, the defendants hurl a litany of objections at t he R &R. T hough th e o bjections a re im pressive in n umber, th ey la ck me rit. I a ddress the defendants’ arguments in the following order: (a) whether the class representatives have standing; (b) whether Rule 23(a) is satisfied; and (c) whether Rule 23(b) is satisfied.
1The defendants argue that the R&R applies an incorrect legal standard to determine whether the proposed class satisfies Rule 23' s requirements and that I should conclusively resolve factual disputes where there is conflicting evidence. As is evident from the legal standard applicable to class actions, c onclusive re solution of fa ctual di sputes is no t r equired. I may a ccept t he pla intiffs’ allegations as true and may “consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.” See Vega, 564 F.3d at 1265-66.
Because it doesnot affect the Rule 23 analysis, addressed below, the defendants’ contentions that the plaintiffs have not proffered evidence of care received by Florida children with private insurance and that the plaintiffs rely on inaccurate statistical evidence will be resolved at summary judgment or trial. The defendants’ argument that there is no evidence that AHCA has failed to pay for requested medical services, and that therefore there is no claim under 42 U.S.C. §§ 1396a(a)(8) and (a)(10), is rejec ted, as e xplained in the orde r denying the defendants’ m otion for summary judgment.
2 These decisions are inconsistent with J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999), in which the Tenth Circuit denied class certification to the plaintiffs -- children suing New Mexico for failure to provide services required by Medicaid -- because the proposed class lacked commonality. Given the substantial legal support for finding class certification, the record in this case, a nd my o wn a nalysis o f th e c ommonality is sue d iscussed b elow, I d o n ot f ind Valdez persuasive.
2

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 3 of 9
III. DISCUSSION A. STANDING OF CLASS REPRESENTATIVES Before certifying a class, a court must ensure that “at least one named class representative has Article III standing to raise each class subclaim.” See Prado Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000) (citations omitted). For a plaintiff to have Article III standing, there must be (1) an injury in fact, i.e., an invasion of the plaintiff’s legally protected interest that is concrete and particularized, actual, or imminent; (2) a ca usal connection between the plaintiff’s injury and the defendant’s conduct; and (3) the likelihood that a favorable decision will redress the injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Fla. Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1159 ( 11th Cir. 2008). At the class c ertification sta ge, the plaintiff ne ed not conclusively prove tha t he has suff ered a re dressable injury in f act that is causally related to the defendant’s conduct to show standing. Rather, the plaintiff need only “allege facts demonstrating that he is a proper party with standing to invoke judicial resolution of a dispute.” See Hernandez v. Medows, 209 F.R.D. 665, 668 (S.D. Fla. 2002) (emphasis added) (citations omitted). To determine whether a plaintiff has adequately alleged standing, a court undertakes a fact-specific inquiry and examines “fac tual proff ers” such as “ affidavits and other e videntiary documents.” See Pr adoSteiman, 221 F.3d at 1280.3 Because I previously determined that individual plaintiffs had standingto bringCounts 1 and 4 against DCF and Counts 1 and 2 against DOH, see summary judgment order, [D.E. 541, p. 4-9],
3 The de fendants contend that Mag istrate Judge Mc Aliley failed to a dequately resolve claimed f actual contradic tions in t he af fidavits supporting sta nding. T he def endants, howe ver, misunderstand the plaintiffs’ burden in showing standing. At the cla ss cer tification stag e, the plaintiffs need only make an allegation, supported by “factual proffers” such as affidavits, that a plaintiff has standing. See Prado-Steiman, 221 F.3d at 1280. Ineed not determine that the plaintiffs’ factual allegations are conclusively correct at the class certification stage because lack of standing is a jurisdictional defect thatis “open to review at all stages of the litigation.” See Wilson v. State Bar of Ga. , 132 F.3d 1422, 1427 ( 11th Cir. 1998) (c itation omit ted). I find that the evide nce tha t Magistrate Judge McAliley relied on sufficient to support each element of standing at this stage. See generally Borchese v. Town of Ponce Inlet, 405 F.3d 964, 975-76 (11th Cir. 2005) (each element of standing must be supported in the same w ay as any other matter on whic h the plaintiff bea rs the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation).
3

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 4 of 9
and this decision re mains the law o f the case,4 the only issues remaining are whether there is an individual plaintiff who has standing to bring Counts 1 (reasonable promptness), 2 (equal access), and 4 (outreach and information) against AHCA.
Magistrate Judge McAliley found that S.M. had standing to pursue Counts 1 and 4 against AHCA because he faces imminent injuries: he was denied a timely medical screening in the past, his mother did not receive required information about S.M.’s rights from defendants, and these injuries are likely to recur in the future.5 Similarly, she found that J.S. had standing to pursue Count 2 against AHCA because she also faces an imminent injury: it is likely that she would be denied access to necessary, specialized medical care based on repeated, past denials. Both S.M. and J.S. can show causation and redressability because the imminent denial of prompt, necessary care and lack of information is allegedly caused by AHCA’s failure to fulfill itsstatutory responsibilities, including ensuring adequa te funding and providing information. The injuries w ould be re dressed by an injunction compelling compliance with the law. Indeed, several courts have held that there is a “direct conne ction betwee n Medica id rec ipients’ access to medical ca re a nd service s and low reimbursement rates” sufficient to prove causation and redressability. See Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 701 n.5 (5th Cir. 2007) ( citing Okla. Chapter of the Am. Acad. of Pediatrics v . F ogarty, 366 F. Supp . 2d 1050, 1106-07 (N.D .Okla.2005)); Me misovski e x re l. Memisovski v. Maram, 2004 WL 1878332, at *42 (N.D. Ill. 2004); Clayworth v. Bonta, 295 F. Supp. 2d 1110, 1116 (E.D. Cal.2003), rev'd on other grounds, 140 Fed. Appx. 677 (9th Cir. 2005); Clark v. Kizer, 758 F. Supp. 572, 577 (E.D. Cal.1990), aff'd in relevant part, Clark v. Coye, 967 F.2d 585 (9th Cir.1992); Thomas v. Johnston , 557 F. Supp. 879, 903-04 (W.D. Tex.1983)). As a result, I
4 “A court has the power to revisit prior decisions of its own . . . although as a rule courts should be loath to do so in the absenc e of e xtraordinary circumstances such as whe re the initial decision was clearly erroneous or would work a manifest injustice.”Christianson v. Colt Indus. Op. Corp., 486 U.S. 800, 817 (1988). The defendants have not identified any extraordinary circumstances or an intervening change in controllinglaw to compel meto reevaluate my March, 2009 decision that individuals plaintiffs have standing to bring Counts 1, 2, and 4 against DCF and DOH. Should the evidence at trial demonstrate otherwise, I will of course revisit my prior rulings.
5The defendants also argue that 42 U.S.C. § 1396a(a)(43) requires states to provide Medicaid recipients outreach regarding only EPSDT services and immunizations. The plaintiffs’ allegation that S.M.’s mo ther d id n ot r eceive inf ormation a bout S.M.’s r ights un der M edicaid r easonably encompasses this narrower claim because the EPSDT program is a component of Medicaid. It is therefore unnecessary to determine the scope of the statutory provision in the standing analysis.
4

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 5 of 9
conclude that S.M. has standing to pursue Counts 1 and 4 against AHCA, and that J.S. has standing to pursue Count 2 against AHCA.
The de fendants also arg ue, contr ary to clear prec edent of the Elev enth Circuit, that the plaintiffs have not demonstrated cognizable injuries in fact; according to the defendants, they have not shown by a preponderance of the evidence that they will suffer immediate harm because they have successfully received care in some instances. An injury in fact is imminent and “likelyto occur immediately” if there is a “realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement,” and that the “anticipated injury [will] occur with some fixed period of time in the future.” See Browning, 522 F.3d at 1161. Thus, the plaintiffs’ allegations of future harm based on inconsistent care in the past are sufficiently imminent to show standing because there is a “realistic danger of sustaining a direct injury” in the near future. See id.
Furthermore, the fact that some of the plaintiffs have in some instances received necessary care does not make their claims of imminent injury moot:
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. If it did, the courts would be compelled to leave the defendant free to return to his old ways. In accordance with this principle, the st andard we ha ve announc ed for deter mining whether a case has been mooted by the defendant's voluntary conduct is stringent: A case might become moot if subsequent events made it absolutely c lear that the alleg edly wrongful behavior could not reasonably be expected to recur.
see Sheely v. MRI RadiologyNetwork, P.A., 505 F.3d 1173, 11838- 4 (11th Cir. 2007) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs, Inc., 528 U.S. 167, 189 (2000)). Because the defendants voluntarily ceased the allegedly wrongful behavior that caused the plaintiffs’ past harm, and this harm could be reasonably expected to recur in the future, the plaintiffs’ claims are not moot.See id.
B. RULE 23(a)’S REQUIREMENTS Under Rule 23(a) , the plaintiffs must demonstrate ( 1) numerosity; (2) commonality ; (3) typicality; and (4 ) adequacy of both the cla ss plaintiffs and cla ss counsel. See Vega, 564 F.3d a t 1265.6 I find that the proposed class satisfies these elements.
6The defendants’ contentions that the R&R fails to assess conflicting evidencein its Rule 23 analysis (e.g., whether S.M. or T.G. suffered harm that satisfies the immediacy requirement) miss the mark because immediacy is evaluated under the standing principles and is distinct from the Rule 23 prerequisites. Because theseclass representatives have standing under the relevant legal standard,
5

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 6 of 9
1. NUMEROSITY The numerosity requirement is met when the proposed class is “so numerous that joinder is impracticable.” Fed . R. Civ. P . 23(a)(1). “Parties seeking certification do not need to know the ‘precise number of class members,’ but they ‘must make reasonable estimates with support as to the size of the proposed class.’” See Jones v. J eld-Wen, Inc., 250 F.R.D. 685, 693 (S.D. F la. 2008) (citations omitted). The necessity of making a reasonable estimate does not preclude certification of a class where all cla ss members ar e not known. I n fact, that a proposed c lass includes unknown individuals s upports f inding nu merosity be cause “ joinder of un known in dividuals i s c ertainly impracticable.” See Jack v. Am. Linen Supply Co. , 498 F.2d 122, 124 (5th Cir. 1977) (finding numerosity existed for aproposed class that included unknown, ufture black employees). In this case, the plaintiffs contend that there are more than 1.5 million class members. They cite the CMS-416 Report from 2006-2007, which specifies that the total eligible individuals for the child health care check-up participation report are 1,593,814.See Plaintiffs’ Motion for Class Certification. [D.E. 281, Ex. 10]. I conclude that this report provides a reasonable estimate of the members of the proposed class and that the inclusion of unknown individuals, including children who “now, or in the future will” reside in Florida and who “are or will be eligible” for Medicaid services, supports rather than undermines a finding of numerosity.
2. COMMONALITY Commonality is satisfied when there is one question of law or fact that is common to the class as a whole. See Vega, 564 F.3d at 1268. “Class actions seeking injunctive or declaratory relief . . . by their very nature present common questions of law or f act.” Haitian Refugee Ctr., Inc. v . Nelson, 694 F.Supp. 864, 877 (S.D. Fla. 1988). Additionally, all questions of law need not be common to all plaintiffs.See id. The plaintiffs, asMagistrate Judge McAlilely identified, haveraised several common legal questions including whether the defendants are meeting their obligations under the Medicaid Act to provide reasonably prompt services, equal access to those services, and outreach and information, and whether Florida’s Medicaid reimbursement rates are adequate to ensure that class member s have a ccess to providers. The pla intiffs, moreover , are seeking decla ratory and injunctive relief, and not damages. Because the plaintiffs share common legal questions and are seeking a n in junction r equiring F lorida’s c ompliance wi th t he Me dicaid A ct, t he c ommonality requirement is satisfied.
as discussed above, a separate Rule 23 analysis of immediacy is not warranted. 6

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 7 of 9
3. TYPICALITY The defendants argue that the plaintiffs’ class representatives cannot represent individuals who are eligible but not enrolled for Medicaid, because none of the class representatives are eligible but not enrolled for Medicaid. The typicality requirement, however, can “be satisfied even if some factual differences exist between the claims of the named representatives and the claims of the class at large.” See Prado Steiman, 221 F.3d at 1279 n.14 (citations omitted). A “strongsimilarity of legal theories will satisfy the typicality requirement despite substantial factual differences.” See id. As the plaintiffs explain, children enrolled in Medicaid and children unenrolled but eligible for Medicaid share the legal theory that Florida is failing to comply with federal law in the administration of the Medicaid program. In particular, both g roups pose that F lorida has f ailed to satisfy its outreach obligation under § 1396a(a)(43).7 Therefore, typicality exists. Additionally, I ag ree wi th Magistrate Judge Mc Aliley’s ana lysis that the org anizational plaintiffs cannot satisfy the typicality requirement because they do not share the same injury as the class members. The organizational plaintiffs’ injury of depletion of resources due to energy spent advocating for children improperly denied care under the Medicaid Act is distinct from the childrens’ injury of improper denial of care. See Vega, 563 F.3d at 1275 (“A class representative must possess the same interest and suffer the same injury as the class members in order to be typical under Rule 23(a)(3).”).
4. ADEQUACY The defendants do not clearly challenge the R&R’s adequacy analysis. I adopt Magistrate Judge McAliley’s finding that the plaintiffs’ counsel are well qualified and the named plaintiffs do
7The defendants contend that 42 U.S.C. § 1396a(a )(43) does not requir e them to conduc t outreach to children who are not enrolled but are eligible for Medicaid. The plain language of the regulations implementing this section state that “[t]he agency must [p]rovide for a combination of written and oral methods designed to inform effectively all EPSDT eligible individuals (or their families) about the EPSDT program.” See 42 C.F.R. § 441.56(a)(1); Friends of Everglades v. S. Fla. Water Mgt. Dist., 570 F.3d 1210, 1227-28 (11th Cir. 2009) (stating that an agency’s promulgation of re gulations interpre ting ambiguous statutory language is entitled to defe rence as long as the interpretation is reasonable). The one case the defendants cite to support their claim that “federal courts . . . have found that this section provides only to Medicaid recipients” and not all eligible individuals, [D.E. 622], conclusively supports the plaintiffs. It holds that “Medicaid’s implementing regulations [in specific, § 441.56(a)] . . . obligate participating States to “effectively” inform all eligible individuals.” See Westside Mothers v. Olszewski, 454 F.3d 532, 543-44 (6th Cir. 2006). The plain language of the regulations, combined withthe case law supporting this interpretation, compel the conclusion that § 1396a(a)(43) and 42 C.F.R. § 441.56(a )(1) mandate tha t the state conduc t outreach to all eligible individuals.
7

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 8 of 9
not have interests antagonistic to those of the rest of the class. See Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985) (finding that to determine adequacy, the court should consider whether the plaintiffs’ counsel are able to conduc t the litigation compete ntly and whe ther the plaintiffs have clearly antagonistic interests to each other). The fact that some of the plaintiffs, including K.K. and L.C., may have obtained private insurance in addition to the Medicaid coverage does not make their interests antagonistic to the those of the rest of the class.
C. RULE 23(b)(2)’S REQUIREMENTS In addition to meeting the requirements of Rule 23(a), the plaintiffs must also satisfy one of the requirements of Rule 23(b). In this case, the plaintiffs ask that the class be certified under Rule 23(b)(2), which a pplies where “the pa rty opposing the class has a cted or refused to act on the grounds that apply g enerally to the class, so that the fina l injunctive relief or corr esponding declaratory relief i s a ppropriate re specting the c lass a s a wh ole.” As the pla intiffs a ssert, th is provision was “designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a numerous and often unascertainable or amorphous class of persons.” See Baby Neal ex. rel. Kanter v. Casey, 43 F.3d 48, 58-59 (3d Cir. 1994) (citation omitted). For example, in Fabricant v. Sears Roebuck, 202 F.R.D. 310, 316 (S.D. Fla. 2001), the plaintiffs sought an injunction to force the defendants to comply with Florida laws regulating the sale of insurance. The district court found that “[r]equesting a declaration that def endants presently are violating the la w and a n injunction forcing de fendants to c omply wi th t he la w i s p recisely the ty pe o f class a ppropriate fo r c lass certification under Rule 23(b)(2).” See id. In this case, the plaintiffs are seeking injunctive relief to compel the AH CA and DoH to c omply with the Medica id Act. This is a proto-ty pical case for 23(b)(2) class certification.
IV. CONCLUSION For the above stated reasons, the plaintiffs’ motion for class certification is GRANTED IN PART. The following class is certified: all children under the age of 21 who now, or in the future will, reside in Florida and who are, or will be, eligible under Title XIX of the Social Security Act for Early
8

Case 1:05-cv-23037-AJ Document 671 Entered on FLSD Docket 09/30/2009 Page 9 of 9
Periodic Screening, Diagnosis and Treatment Services. Boies, Schiller & Flexner, LLP and Louis Bullock of Bullock & Blakemore are appointed as class counsel.
DONE and ORDERED in chambers in Miami, Florida, this 30th day of September, 2009.

Copy to: All counsel of record

_______________________ Adalberto Jordan United States District Judge

9

 
 eCase 1:05-cv-23037-AJ Document 1270 Entered on FLSD Docket 07/10/2014 Page 1 of 3

UN ITED ST ATE S D ISTR IC T C O U RT SO U TH ERN D ISTR IC T O F FLO R IDA

M IAM ID IVISIO N

C aseN o.05-23037-CIV -JO M A N/O 'SU LLlVA N

FLO R IDA PE DIA TRIC SO CIETY/TH E FLO R IDA C H A PTER O F TH E AM ERIC AN A CA D EM Y O F PEDIA TR IC S et aI.
Plaintiffs,
VS.
SE CR ETAR Y O F TH E FLO R IDA AG ENC Y FO R H E A LTH CA RE AD M IN ISTR ATIO N etaI.

FILED by

D.C.

JUL 1l 2219
STEVEN M LARIMORE CLERK U s Dls'r.cT. s.D ofFLA -MIAMI

Defendants. /

O RDER O N D EFENDANTS'SUGGESTION OFM OOTNESS

Following oralargumenton thedefendants'suggestion ofm ootness (D .E.1250,12671,

and forthe reasons setforth atthe conclusion ofthisw eek'shearing,lconclude thatatthistim e

no aspectofthiscaseism oot.

ttA case becom esm oot- and therefore no longera çcase'ortcontroversy'forpum oses

of A rticle Ill- lw hen the issues presented are no longer ilive' or the parties lack a legally

cognizableinterestintheoutcome.'''Already,LLC v.Nike,Inc.,133S.Ct.721,726 (2013)

(citation omitted).t((A1 defendant claiming that its voluntary compliance moots a case, (however,lbearsthe formidable burden ofshowing thatitisabsolutely clearthe allegedly

wrongful behavior could not reasonably be expected to recur.'' fJ.at 727. A s partof the

m ootnessanalysis,and asapplicable here,a courtm aytakeinto accountthe defendants'lçfailtlre

to acknowledgewrongdoingg,q(which)suggests...thata live dispute between theparties

Case 1:05-cv-23037-AJ Document 1270 Entered on FLSD Docket 07/10/2014 Page 2 of 3
remainsg,l''asthedefendantscould presumably resumetheiralleged wrongdoing becausethe
legality ofthepractice hasnotbeen determined. See Sheely v.M RIRadiology Network P.A., 505F.3d1173,1187(11thCir.2007).Seealso UnitedStatesv.I'I?TT GrantCo.,345U.S.629,
632 (1953)(noting thatthe Cçpublic interestin having the legality ofthe practicessettledl1 militatesagainstamootnessconclusion'l;Walling v.Helmerich(#rPayne,lnc.,323U.S.37,43 (1944)(alivecontroversy remainswherethedefendanttthasconsistentlyurgedthevalidityof the gpracticeqand wouldpresumably befreetoresume gitlwerenotsome effectiverestraint m ade'').
Iagain rejectthedefendants'contentionthatthetwo-yearincreaseofcertain Medicaid
reim bursem entrates to M edicare levels renders this case m oot. Thistem porary rate increase, paid forby federaldollars,endson December31,2014,andasoftoday nobody knowswhether the FloridaLegislature w illcontinueto fund the reim bursem entrateincreasesin w holeorin part
pastthatdate. See,e.g.,(7/y ofMesquitev.Aladdin'sCastle,Inc.,455U.S.283,289(1982); Harrellv.TheFloridaBar,608F.3d1241,1266(11thCir.2010).
Similarly,Florida'sdecisionto have98% to 99% ofM edicaid-eligiblechildrenplacedin m anaged caredoesnot,atthistim e,renderthiscasem oot. The defendantsacknow ledgethat1% to 2% ofM edicaid-eligible children willstillrem ain in a fee-for-service environm ent,and at leastasto thosechildren and theirdoctors,thereim bursem entrate claim s,am ong others,rem ain very much alive. Justasim portantly,Florida'sshih into a managed care system willnotbe com pleteuntilAugust1,zol4- assum ing thatthesystem isim plem ented in atim ely basis- and even then there w ill be an additional 60-day transition period to follow . That m eans that Florida'smanagedcaresystem willnotbeinfullswinguntilapproximatelyOctober1,2014.At thistimenobody knowswhetherornotthenew m anagedcaresystem willalleviateorsolvethe

Case 1:05-cv-23037-AJ Document 1270 Entered on FLSD Docket 07/10/2014 Page 3 of 3

issuesthatthe plaintiffshave been com plaining aboutforyears. W ithouta developed factual

recordonhow themanagedcaresystem isworking(ornotworking),itisimpossibletodeclare anypartofthiscasemoot.Anditisworthnotingthatççlclhangesmadebydefendantsafterasuit

isfiled do notremovethenecessity forinjunctive relief,forpracticesmay be reinstated as

swiftly asthey were suspended.'' Jones v.Diamond,636 F.2d 1364,1375 (5th Cir.1981),

overruled onothergroundsby Int'lWoodworkersofvjm.,AFL-CIO tfritsLocalNo.5-376v.

ChampionInt'lCorp.,790F.2d 1174(5th Cir.1986).
lrecognize thatthe viability of relief should be considered in analyzing m ootness,but

Sçgajcasebecomesmootonly when itisimpossible fora courtto grantany effectualrelief
w hateverto theprevailing party.'' Knox v.Serv.EmployeesInt'lUnion,Local1000,132 S.Ct.

2277,2287(2012)(emphasisadded). Thedefendantsarguethatthiscaseismootbecausethe
new m anaged care system willaffecttheability oftheplaintiffsto obtain thereliefsought,but

this argum ent- w hich goes to the legal availability of a certain kind of relief--conflates

mootness issues and merits issues. See Chahn v.Chafn,133 S.Ct. 1017,1024 (2013)

(explaining thatthe argumentthatacourtlacksthe authorityto orderacertain typeofrelief

tûconfusesmootnesswiththemerits').Atthispointintime,given a11theuncertaintyoverthe temporarytwo-yearincreaseforcertainreimbursementratesandtheeftkacy(orlackthereog of
the new m anaged care system ,I cannot say that itw illbe im possible to grant the plaintiffs

effective relief. DONE andORDERED inchambersinM iami,Florida,thisl

day ofJuly 2014 .

Copy to: A l1counselofrecord

A dalberto Jo dan U nited StatesD istrictJudge

 
 Case 1:05-cv-23037-AJ Document 1293 Entered on FLSD Docket 11/25/2014 Page 1 of 4

FILED by

D.ID.

U N IT ED STA TES DIST RICT CO UR T SO U TH ER N DISTRICT O F FLO R ID A
M IA M ID IV ISIO N

N0V 2 5 2019
s'rEvEx M LARIMORE
CLERKU à obsç c-r. s D ofFLA-rk!IXMI

C aseN o.05-23037-C IV-JO > A N/O 'SULL IV A N

FLO R ID A PED IATR IC SO C IETY /TH E FLO R ID A CH A PTER O F TH E A M E RICA N A CA D EM Y O F PE DIAT RIC S et aI.

Plaintiffs

SE CR ETAR Y O F TH E FLO R IDA A G EN C Y FO R H EA L TH C A RE A D M INISTR AT IO N ,etaI.
D efendants.
O RDER ON D EFENDANTS'M OTION R EOPEN THE R ECORD FOR TRIALON LIABILITY AND SUGGESTION OFM OOTNESS
The Secretary ofthe Departmentof Children and Families has m oved to dism iss all
claim sasm oot,orinthealternative,toreopentherecordon liability ID.E.12791.TheSecretary
ofthe A gency for Health Care A dm inistration and the Surgeon Generalhave m oved to reopen
therecordonliability ID.E.12811.Asexplainedbelow,them otionsaredenied.
1.W ith respectto the m otionsto reopen the record,1find thata reopening ofthe record
fordiscovery and furthertrialsessionswould cause substantialprejudice. As1have stated
repeatedly throughoutthese proceedings,there m ustbe a pointatw hich the evidentiary record on the issue ofliability isclosed. W e have long since passed thatstopping point. Ifm y findings concerningthe issue ofliability necessitatearemedy phase,then,as1stated previously and as both parties agreed,the plaintiffs and the defendantsw illhave the opportunity atthatstage lo presentevidence and testim ony concerning any changesthataffectthe ability ofthe plaintiffslo obtain thereliefsought.Therefore,Ideny defendants'm otionsto reopen therecord.

Case 1:05-cv-23037-AJ Document 1293 Entered on FLSD Docket 11/25/2014 Page 2 of 4
2.Asto DCF'Ssuggestionofmootness,1concludethatatthistim eno aspectofthiscase
ism oot. ûCIA!case ism ootwhen the issuespresented are no longertlive'orthe partieslack a legally cognizable interestin the outcom e.'' Powellv.M ccormack,395U .S.486,496 (1969).
çl-f'he burden ofestablishing m ootnessrestsw ith theparty seeking dism issal.'' Beta Upsilon C7;ï
UpsilonChapterattheUniv.ofFla.v.Machen,586F.3d908,916(11thCir.2009).And,asthe Eleventh Circuithasnoted,çlgtjhisburdenisaheavyone.''Id
D CF contends that in the past year it has m ade the follow ing changes to h0w it
detennines M edicaid eligibility:(1)itimplemented a new computersystem,the Medicaid Eligibility System (1çM ES''),which makes eligibility determinations based on new income eligibility standardsmandated by the AffordableCare Actof2010 (ççACA'')and includesa
feature that allow s the com puter system to set the continuous eligibility period for each
household member;(2)itimplemented a new streamlined M edicaid application;and (3)it
im plem ented a reduction in thenum berand type ofM edicaid coverage categoriesasrequired by the CentersforM edicareand M edicaid Services. DCF arguesthatShese changeshavemadeit im possible to aw ard any m eaningfulreliefto theplaintiffs,thusm ooting theirclaim s. SeeAkti'x
v.Serv.EmployeesInt'lUnion,Local1000,132 S.Ct.2277,2287(2012)(i1A casebecomes
m oot only when it is im possible for a courtto grant any effectual relief whatever to the
prevailingparty.'').1disagree.
Based on the record before m eatthistim e,Icannotsay thatitw ould be çûim possible ... to grantany effectualreliefw hatever''to the plaintiffs should they prevailon any ofthe clairrls they raise. Knox,132 S.Ct.at2287.Thechangesdiscussed by DCF have only recently bevrn implemented,and atthistime no onecan know whetherornotthey willeffectively solvetlte issues raised by the plaintiffs. For exam ple,D CF contends in its m otion that having fem lr M edicaid coverage categories GGshould m inim ize the possibility that com m unications betw een
M ES andtheFloridaM edicaid ManagementInfonuationSystem (tçFM M lS'')aboutchangesin
coverage categorieswilllead to initiation ofplan assignm entprocesses,''which theplaintifrs contend resultsin switching. Thatisa farcry,however,from establishing thatitisabsolutel.y clearthatswitching could notreasonably be expected to recurasa resultofcomm unicatiolls betweenM ESand FM M IS aboutchangesin coveragecategories.
Sim ilarly,w ith respectto the M ES com puter system ,Phase 2 of the system w as on'Ly recently implemented on Novem ber10,2014. Atthistim enobody knowswhetherornotthis

Case 1:05-cv-23037-AJ Document 1293 Entered on FLSD Docket 11/25/2014 Page 3 of 4
new computersystem willeffectivelysolvetheissuesraised byplaintiffs,includingtheissuec'f early tennination of M edicaid eligibility prior to the end ofthe continuous eligibility periotl.
See,e.g.,Finberg v.Sullivan,658F.2d93,97-99(3dCir.1980)(Noldingthatachangeinthelalv
alone doesnotdem onstrate thatthe com plained ofviolationshave ceased and w illneverrecur, rather evidence as to how the new law operates in practice is necessary before the new 1aw can
beheldtohavemootedaplaintiffsclaim ). .1
A sto the im plem entation ofa stream lined M edicaid application,again D CF statesthatit continued to implem entchangesto the application on Novem ber10,2014. Untilsuch timeCLs theapplication isfinalized and itseffectshavebeen studied,thereisno waytoknow whetherit rem ediestheissuesraised by plaintiffsso thatitwouldbetçim possibletoaward any meaningftll relieftotheplaintiffs,''asDCF arguesin itsmotion.
Absentan inquiry and study intotheoperation ofthesenew changes,andtheireffecton theprovision ofmedicalassistanceto M edicaid eligible children in Florida,Iam reluctantto hold thatthese changes moota11ofthe plaintiffs'claimsagainstDCF. To thisend,should a remedy phase be reached,DCF willhave the opportunity to presentevidence and testimocy concerning these changes and their effect on the ability of the plaintiffs to obtain the relief sought. W hetherthereliefsoughtby plaintiffscurrently rem ainslegally available to them isa
m erits issue,not a m ootness issue. See C/ltz.#?7v.Chahn, 133 S.Ct. 1024 (201.7)
(explaining thattheargumentthatacourtlackstheauthority to orderacertain typeofrelief ûiconfusesmootnesswiththemerits.''). Thus,ldeny DCF'Smotiontodismissformootnessat
thistim e2 .
' N otably the defendants continue to dispute that continuous eligibility w as ever a ,
system ic issue. Thisrefusalon thepartofthedefendantsto admitthatany systemicproblem
exists(orexisted)withrespecttotheissueofcontinuouseligibilitysuggeststhatalivedispute
between thepartiesremains.SeeSheely v.M RIRadiologyNetwork P.A.,503 F.3d 1173,1187 (11th Cir.2007)(çç(A1defendant'sfailuretoacknowledgewrongdoing ...ensuresthataliA/e disputebetweenthepartiesremains.'').
2Nothinginthisorderpreventsthedefendantsfrom presentingevidenceinthefuturein supportoftheirclaim ofm ootness.

Case 1:05-cv-23037-AJ Document 1293 Entered on FLSD Docket 11/25/2014 Page 4 of 4

DONE and ORDERED in chambers in M iltmi,Florida,this ZZ day ofNovember ,
2014.

Copyto: Allcounselofrecord

A dalberto Jordan U nited StatesDistrictJudge

 
 Case 1:05-cv-23037-AJ Document 1310 Entered on FLSD Docket 03/25/2015 Page 1 of 1

IN TH E UNITED STATES DISTR ICT CO URT FOR TH E SO UTH ERN DISTR ICT O F FLO RIDA
CA SE N O .05-23037-C lV -JO R D A N /O 'SU LL lV A N
FLORIDA PEDIATR IC SO CIETY/TH E FLORIDA CHA PTER O F TH E AM ERICAN ACADEM Y O F PEDIATR ICS;FLO RIDA A C A D EM Y O F PED IA T R IC D EN T ISTR Y , IN C .,etaI.,
Plaintiffs,
VS.
LIZ D U D E K ,et.aI.,
D efendants.

ORDER O N DEFENDAN TS'M O TION TO AM EN D OR ALTER FIN D IN G S O F FA C T

Thedefendants'motion (D.E.1300)to amend oralterthefindingsoffact

contained in the court'sorderofD ecem ber 30,2014 isG R AN TED IN PA R T and

D EN IED IN PA R T. Am ended findings of fact and conclusions of law w ill be

issued shortly.

DONE

and O RD ERED

in

cham bers

in

M

iam i ,

Florida, this

23rd

d ay

o;k-

M arch,2015.

4%
A dalbertoJordan U nited StatesD istrictJudge

Copy to: A 1lcounselofrecord

 
 Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 1 of 153

IN TH E UNITED STA TESDISTRICT COU RT FO R TH E SO U TH ER N D ISTR IC T O F FL O R ID A

C A SE N O .05-23037-C lV -JO M A N /O 'SU L LIV A N

FLO R ID A PED IA TR IC SO C IE TY /TH E FLO R ID A C H A PTER O F TH E A M ER IC A N A CA D EM Y O F PE D IA T R IC S;FLO R ID A A CA D EM Y O F PE D IA T R IC D EN T IST R Y , (IN C .,etaI.,
Plaintiffs,
VS.

FILED by

D.C.

DEC 3 2 2019
STEVEN M. LARIMORE CsL.EDR.KoftF;LsA..El-fsMTIA. cMT/.

L lZ D U D EK ,et.aI.,

D efendants.

FIN D IN G S O F FA C T A N D C O N C LU SIO N S O F LA W Thisisaclassand representativeaction in which plaintiffsseek declaratory
and injunctive relieffrom Florida officialsresponsible forthe state'sM edicaid
program . Plaintiffs contend that the Florida M edicaid program has failed to provide Florida children w ith accessto m edicaland dentalcare in accordance w ith the EPSD T, Reasonable Prom ptness, Equal A ccess, or O utreach requirem ents
undertheM edicaidAct,42U.S.C.j1396etseq.
L PR OCEDUR AL H ISTO RY Thisactionwasinitiated in2005by theFloridaPediatricSociety,theFlorida A ssociation ofPediatric D entists,and on behalfofa num berofindividualchildren inthe M edicaid program bytheirparentsorlegalguardians. The suitwasbrought against the Secretary of the Florida A gency for H ea1th Care A dm inistration
(tçAHCA''),the Secretary of the Florida Department of Children and Family Services(t(DCF''),andtheSurgeonGeneralandagencyheadoftheDepartmentof

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 2 of 153
Hea1th (ççDOH''),in theirofficialcapacities.l AHCA tçisdesignated asthe single
state agency authorized to m akepaym ents''forcovered m edicalgoodsand services under Title X 1X ofthe SocialSecurity Act,to the extentthatsuch services are
providedto eligibleindividualsby qualified M edicaidproviders. SeeFla.Stat.j
409.902. D CF isresponsible form aking M edicaid eligibility determ inationsunder
Floridalaw.SeeFla.Stat.j409.963.DOH hasbeendelegatedtheresponsibility to administer the Children's M edical Services ((çCM S'') program , which is
responsible for ensuring that M edicaid children w ith special health care needs
receiveM edicaidservices.2 F1a.Stat. jj391.016,391.021(3),391.026.
Plaintiffs' second am ended com plaint alleged various violations of the federal M edicaid statutes,arguing those statutes provide them a private right of
action under 42 U.S.C.j 1983. Specifcally,the second amended complaint alleged violations of (1) 42 U.S.C.j 1396a(a)(8) and (a)(10),requiring that
children receive m edical and dental services know n as the Early Periodic
ScreeningDiagnosisand Treatment(CIEPSDT'')(tCEPSDT Requirements''),and to do so with reasonable promptness(Count1)(tçReasonable Promptness'');(2)42 U.S.C.j l396a(30)(A),requiring thatrates forreimbursing medicaland dental
providersbe set,inter alia,so asto secure accessto care for children thatisequal
tothatofotherchildreninthesamegeographicalarea(Count1l)(itEqualAccess''); (3)42 U.S.C.j l396u-2(b)(5)regarding l'IM os(Count111);and (4)42 U.S.C. j1396a(a)(43) requiring that the states conduct outreach program s to inform
individuals determ ined to be eligible for M edicaid of the availability of services
1FOrShorthand Iw illsom etim esreferto the agenciesasdefendantsin thisO rder. y
2ttçchildren withspecialhealthcareneeds'meansthosechildren youngerthan 21years ofagewhohavechronic physical,developm ental,behavioral,oremotionalconditionsand who also require health care and related services ofa type oram ountbeyond thatwhich isgenerally
requiredbychildren.''Fla.Stat.j391.021(2)(2009).

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 3 of 153
and to insure such patients requesting those services are able to receive them
(Count1V)(édoutreach'').
Defendants filed a m otion to dism iss all four counts, arguing that the M edicaid A ctdid notprovide privately enforceable rights perm itting such actions
tobeenforcedunder42U.S.C.j 1983.OnJanuary 11,2007,ldeniedthemotion
to dism issasto three ofthe fourclaim s,dism issing CountIl1becauselfoundthat
noenforceablerightexistsunderj1396u-2(b)(5).D.E.40.
Follow ing discovery, the issue of class certification w as referred to U .S. M agistrate Judge M cA liley for a reportand recom m endation. On July 30,2008, M agistrate Judge M cA liley recom m ended that certain additional plaintiffs be pennitted to intervene. Iaffrm ed thatruling asto K .V .,S.C .,K .S.,and S.B .only. D .E.268. M agistrate Judge M cA liley,follow ing briefing and argum ent,found the requirem entsofR ule 23 satisfed in an extensivereportand recom m endation.D .E .
613. Afterfurtherbriefing and argument,loverruled defendants'objectionsand certised a class for declaratory and injunctive relief consisting of al1 Florida
children eligible forEPSD T servicesunderthe M edicaid A ct. D .E .671. A spart ofthatdecision,Ifound thatatleastone nam ed plaintiffhad standing to advance each ofthe three rem aining counts w ith respectto each ofdefendants. See C lass Certification O rder. D .E.671,p.3-5. D efendants filed a requestforinterlocutory review oftheclasscertiscationorder,which wasdeniedby theEleventh Circuiton D ecem ber 1,2009.
Priortotrial,defendantsfiled amotion forsummaryjudgmentarguingthat
the M edicaid statutes failed to provide a private right of action and thatnone of plaintiffs had standing. l denied thism otion on Septem ber 30,2009. D .E.672. Trial began on D ecem ber 9, 2009,consisted of 94 trial sessions,and ended in January of 2012. Follow ing the close of the evidence, the parties subm itted proposed findings offactand conclusionsof1aw and presented closing argum ents

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 4 of 153

on M arch 26-27,2012. These fndingsrelateto defendants'liability and plaintiffs'
entitlementto declaratory relief Federaljurisdiction exists under28 U.S.C.j 1331,j 1343(a)(3) and j 1343(a)(4),as this is a civilaction under j1983 for declaratory and injunctivereliefunderTitle X1X ofthe SocialSecurity Act,42 U .S.C.jj 1396etseq.3
Il.SU M M A R Y O F PA R T IE S'PO SITIO N S O N ISSU ES TR IED
Plaintiffs contend thatthe Florida M edicaid program has failed to provide Florida children w ith access to m edical and dental care in accordance w ith the EPSD T,R easonable Prom ptness,EqualA ccess,or O utreach requirem ents under the M edicaid A ct. Plaintiffs allege that a num ber of structural, Gnancial, and adm inistrative barriersresultin children notreceiving the access to care to which they are entitled to underfederallaw . Plaintiffscategorize theseviolationsinto six categories'.
First,plaintiffs subm it that Florida's M edicaid reim bursem ent structure is fundam entally inconsistent w ith the Federal M edicaid A ct. Florida determ ines reim bursem ent,plaintiffs argue,by a dsconversion ratio''w ith respectto the setting of reimbursem ent rates for m ost m edical procedures so as to assure ttbudget neutrality,''w hile failing to consider w hether such rates are sufficient to m eet federalrequirem ents. Plaintiffs contend this is aperse structuralviolation ofthe guaranteesofaccessto EPSDT selvices,to receive required care with reasonable prom ptness,and the rightto equalaccessto care.
Second,plaintiffscontend thatFlorida hasviolated the federalM edicaid A ct by w rongly term inating thousands ofyoung children from eligibility w ho w ere in factentitled to dscontinuous eligibility.'' M oreover,w hen eligibility w as restored, these children were often tçswitched''to adifferentprim ary providerthan the one

3 A

sthe parties have

agreed ,

anadditionalhearingontheissueofinjunctivereliefwillbe

held ata laterdate.

4

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 5 of 153
whom theparenthad initially selected. Plaintiffscontend theseissuesaffecttens ofthousandsofM edicaid children each year,w ho are denied theirrightsto EPSD T servicesandtheirrighttoreceivesuch carew ith reasonablepromptness.
Third,plaintiffs argue the children are notreceiving the prim ary care to which they wereentitled undertheEPSDT Requirem ents,asevidenced by thefact thathundreds ofthousandsofchildren do notreceive any preventative health care according to the official EPSD T reports subm itted to the federal governm ent. M oreover, the percentage of children receiving certain aspects of preventative health care,such as lead blood screens,w as extrem ely low . Plaintiffs pointto
legislativebudgetrequests(ççLBRs'')thatAHCA hassubmitted to thelegislature
calling for increases in reim bursem ent for child health check-ups, blood lead screening and outreach,as evidence thatFlorida'sprogram w as notin com pliance w ith federallaw .
Fourth, plaintiffs m aintain that M edicaid children face long delays and unreasonable obstacles in receiving access to specialistcare in m any areas ofthe states. Receiving specialist care,plaintiffs argue,is a federalrightas partofthe
EPSDT Requirementsunder42 U.S.C.j1396d(r)(5),the reasonablepromptness provisions,and under 42 U.S.C. j1396a(a)(43) for children requesting such
services. Plaintiffs point to adm issions m ade by senior AHCA officials that Florida M edicaid recipientsface a criticallack ofaccessto specialistcare,surveys ofA H CA area officesreiecting acute shortage ofspecialists,and the testim ony of both primary care physicians and specialistsw ith respectto the difficulties and delaysin finding specialiststo treatchildren on M edicaid.
Fifth,plaintiffscontend thatFlorida failsto provide children with accessto dentalcare,w hich is one ofthe EPSD T R equirem ents under the M edicaid A ct. They pointto officialgovernm entreports show ing Florida w as rarlked the w orst state in the country w ith only 21% ofchildren on M edicaid receiving dentalcare.

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 6 of 153
Plaintiffs argue that low reim bursem ent rates for Florida dentists w ho accept M edicaid children w ere the principal reason for this failure. A s a result,they argued,m any dentistsrefusedtotreatM edicaidchildren.
Sixth,plaintiffscontendthatthe statehasviolated j1396a(a)(43)by using
an application form thatw asunnecessarily com plex and elim inating the statew ide outreach program designed to inform M edicaid-eligible children oftheirrightsto services. Plaintiffs argue thatover250,000 Florida children are eligible forbutnot enrolled in theM edicaid program .
D efendants argue thatthe nam ed plaintiffs lack standing because they did not have a problem receiving needed care and face no reasonable prospect of a
future denialofcare. Defendantsfurtherobjecttothecertification ofaclasson
m ultiple legal grounds, including that plaintiffs have failed to dem onstrate
adequate evidence ofinjury. Defendantsalso contend thatthe relevantfederal
M edicaid statutes do notcreate enforceable private rights of action. They argue thestatuteslack clarity asto the m eaning ofSçreasonable prom ptness''and tçm edical assistance.''
A s to the m erits, defendants argue no system ic problem s existed in the Florida M edicaid program . D efendants m aintain that children w ho needed care were able to receive it. Indeed,defendants argue,plaintiffs failed to prove any
injuriesforsomeclaimssuch asoutreachto theuninsured,difficultiesinapplying
for M edicaid, and issues w ith continuous eligibility or delays in activation of new bom s.
W ith regard to any delays in receiving m edicalcare,defendants argued that delays w ere not closely connected to defendants'custom or policy,nor that the delaysw ere w idespread and pervasive enough to supporta finding ofa custom or class-w ide liability. D efendants further contended that plaintiffs' position w as based on overstated statisticaland unreliable anecdotalinform ation.
6

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 7 of 153
D efendants assertthatplaintiffs failed to prove they w ere harm ed by low providerreim bursem ents. They contend thatA H CA 'SpriorLBR Sarenotadequate evidence that program funding w as so low itviolated federal law . D efendants sim ilarly claim thatsurveysofthestate'sproblem sin accessing specialistcareare inaccurate. They arguethere isno reliable proofto show the availability ofcare in a geographic region. They fault plaintiffs for failing to provide a quantitative analysisorbenchm arksagainstw hich the courtcould com pare accessto M edicaid w ith accessto private insurance. Instead,they argue thatplaintiffs'proofconsists ofisolated anecdotesthatfailto supporttheirclaim s.
In addition,defendantsargued thatthestatenow doesabetterjob through
m anaged care and otherinitiatives in m aking sure children receive accessto care, claim ing that the record show s abundant outreach by the state and its partners. They argue im provem ents have occurred, such as a recent increase in dental reim bursem ent.
111.TH E N A M ED PLA IN TIFFS A N D STA N D IN G A .LegalR equirem entsfor Standing To prosecute a case as a class action,ttthe nam ed plaintiffs m ust have
standingl.l'' Vega v.T-M obile USA Inc.,564 F.3d 1256,1265 (11th Cir.2009) (citationsomitted).ForaplaintifftohaveArticle1lIstanding;
(1)(hemustprovethathehasqsufferedan injury in fact-an invasion ofalegally protectedinterestwhich is(a)concreteandparticularized and (b)actualorimminent,notconjecturalorhypothetical;(2)there mustbe a causalconnection between the injury and the conduct complained of-theinjury hasto be fairly traceabletothe challenged
action ofthe defendant,and notthe resultofthe independentaction of
some third party notbeforethe court;and (3)itmustbe likely,as opposedtomerely speculative,thattheinjurywillberedressedby a
favorable decision.
7

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 8 of 153
Bloedorn v.Grube,631F.3d 1218,1228(11th Cir.2011)(citationsomitted).çlln
essence,the question ofstanding isw hetherthelitigantisentitled to havethe court decide the m erits ofthe dispute orofparticularissues.'' W arth v.Seldin,422 U .S.
490,498(1975). Plaintiffsbeartheburden ofestablishing the elem entsofstanding.fujan v.
Defendersof Wildlife,504 U.S.555,561(1992). Since standing isnotaiçmere pleadingrequirementl)butratheranindispensablepartoftheplaintifpscase,each
elem ent m ust be supported in the sam e w ay as any other m atter on w hich the plaintiffbears the burden ofproof,i.e.,w ith the m anner and degree of evidence
required atthe successivestagesofthe litigation.'' 1d.(citationsom itted).Thus,at
trial, plaintiffs m ust set forth speciic facts to prove standing. 1d. And if controverted,those facts ççm ustbe supported adequately by the evidence adduced
attrial.''1d.(citationomitted).
W here a plaintiffseeks only prospective relief,as is the case here,he m ust
provenotonly harm,butalso tda çrealand immediate threat'offutureinjury in orderto satisfy the ûinjury in fact'requirement.'' Koziara v.Cit.vof Casselberry, 392F.3d 1302,1305(11thCir.2004)(citationsomitted).lnotherwords,hettmust
show a sufscient likelihood that he w ill be affected by the allegedly unlaw ful
conductinthefuture.''16L tt-f'obelikelyenough,thethreatenedfutureinjurymust pose a trealisticdanger'and cannotbemerely hypotheticalorconjectural. How likely enoughl,q is a necessarily qualitative judgment.'' Florida State ConferenceOJ-NLA.A.C.P.v.Browning,522F.3d 1153,1161(1lthCir.2008).
An injury çtmay existsolely by virtue ofistatutescreating legalrights,the invasion ofwhich creates standingl.l''' Warth,422 U.S.at500. As 1have explained in my priorrulings,D.E.541and 671,thealleged injuriesin thiscase
arethe delay and denialofhealthcare and the lack accessto m edicalservicesand
information.D.E.541at6-7.Theseinjuries,lnow find,resultedfrom defendants'
8

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 9 of 153
failure to satisfy their statutory obligations underthe M edicaid A ct. Specifically, as w ill be discussed m ore fully below in the fndings of fact, defendants have
engagedinseveralunlawfulpoliciesandpractices,including:(1)failingtoprovide childrenwithcontinuouseligibilityasrequiredbylaw;(2)switchingchildrenfrom
one M edicaid program to anotherw ithouttheirparents'know ledge orconsent;and
(3) failing to comply with M edicaid's equal access mandate by setting
reim bursem ent rates so low that doctors refuse to participate in the M edicaid Program .
Continued exposure to thesepoliciesand practices is sufficientto satisfy the
injurp in-factrequirement. Toprovearealand immediatethreatoffutureinjury, plaintiffsneed only show thatççthe anticipated injury (willjoccurwithginqsome fixedperiodoftim einthefuture,notthatit(w illjhappen in thecolloquialsenseof
soon orprecisely w ithin a certain num ber ofdays,w eeks orm onths.'' Browning, 522 F.3d at1161.
M oreover,astheEleventh Circuithasrecognized,when futureinjuriesare theresultofan injuriouspolicy,asopposed to random unauthorized acts,tçitis significantlymorelikelythattheinjurywilloccuragain.'' 31FosterChildrenv. Bush,329F.3d 1255,1266(11thCir.2003);seealso Churchv.CityofHuntsville, 30 F.3d 1332,1339 (11th Cir.1994)(holding thatplaintiffshad standing where
they ttalleged thatitis the custom ,practice,and policy ofthe C ity to com m itthe
constitutional deprivations of which they complain''). Because plaintiffs are
unable to çlavoid future exposure to the challenged course ofconductin w hich the
ggovernmentl...engages,''id.at1338,theinjury-in-factrequirementofstanding
is satisfied. Plaintiffs have also dem onstrated the second elem ent of standing-
causation. To prove causation,plaintiffs m ustshow thattheir prospective harm s are tdfairly traceable''to defendants'non-com pliance w ith the M edicaid A ct. See
9

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 10 of 153
Sicarv.Chertoffi541F.3d 1055,1059 (11th Cir.2008). Here,thereisadirect
connection betw een defendants'failure to properly discharge their statutory duties
andplaintiffs'injuries.
The Florida legislature designated A H CA çfas the single state agency authorized to m akepaym entsform edicalassistanceand related servicesunder''the
M edicaid Program. Fla. Stat. j 409.902(1). It is responsible for assigning
m anaged care providers and prim ary providers to M edicaid patients. A H CA is
also tasked with setting reimbursementrates to M edicaid providers. 1d.at j
409.908. The reim bursem ents m ustbe Sçconsistentw ith efficiency,econom y,and
qualityofcareand (mustbejsufticienttoenlistenoughproviderssothatcareand
services are available under the plan at least to the extent that such care and servicesare available to the generalpopulation in the geographic area.'' 42 U .S.C .
j 1396a(a)(30)(A).
D CF is responsible dçfor M edicaid eligibility determ inations,including,but not lim ited to, policy, rules, and the agreem ent w ith the Social Security A dm inistration for M edicaid eligibility determ inations for Supplem entalSecurity
lncomerecipients,aswellastheactualdetermination ofeligibility.'' Fla.Stat.j 409.902(1). In essence,DCF isresponsibleforany changesmadeto aM edicaid
recipients'eligibility status.
DOH,through its Children's M edical Services (ççCM S'')program,must (dgplrovide essential preventive, evaluative, and early intervention services for
children at risk for or having special health care needs, in order to prevent or
reduce long-term disabilities.'' 1d.atj 391.016(2). In administering the CM S program ,D OH 'sdutiesare,am ongotherthings,to:(l)ççprovideorcontractforthe provisionofhealthservicestoeligibleindividualsi''(2)dçdeterminethemedicaland
financialeligibility ofindividualsseeking health servicesfrom the program ,''id.at
j 391.026(1),(3), (9);and (3) tçreimburse healthcare providers for services
10

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 11 of 153
renderedthrough the(CM S)networkl.l'' 1d.atj39l.04541). LikeAHCA,DOH
m ust establish reim bursem ents rates that w ill encourage providers of health
servicestoparticipateinM edicaid.See42U.S.C.j 1396a(a)(30)(A).
A llthree defendantsbearthe responsibility ofinform ing M edicaid recipients
oftheir rights to certain services under the M edicaid program. See id.at j 1396a(a)(43)(A ).
The factualrecord indicatesthatplaintiffs'injuries are fairly traceableto
defendants'failure to satisfy these statutory obligations. I find thatseveralofthe nam ed plaintiffs experienced delay in receiving,or com plete denial of,m edical services because defendants did not provide continuous eligibility as required by law . D efendants have also erroneously tçsw itched''som e of the nam ed plaintiffs from one M edicaid plan to another w ithoutthe patient's know ledge or consent, w hich also caused delaysordenialsin theprovisioning ofhealthcare.
I further find thatplaintiffs experienced insuffcient access to m edicalcare because A H CA 'S and D OH 's reim bursem ent rates are so low thatthey fail Ssto enlistenough providers so thatcare and services are available ...atleastto the
extentthat (theyj are available''to those with private insurers. 42 U.S.C.j 1396a(a)(30)(A). M oreover,Ifind thatdefendants did notinform plaintiffsof
servicesthatare availableto them ,w hich resulted in severalofthenam ed plaintiffs being unable to take advantage ofm edicalservicesto w hich they are entitled. The
evidence presented at trial makes clear that plaintiffs' injuries are directly
attributableto defendants'unlaw fulconduct. W ith respectto redressability,Sithere isordinarily little question''thatw here
government action has caused a plaintifps injury,çça judgmentpreventing or requiring the action willredressit.'' Lujan,504 U.S.at561-62. Redressability here is inherentin a declaration,and ifnecessary,an injunction,againstfuture
term inations ofcontinuous eligibility or sw itching,orrequiring the elim ination of
11

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 12 of 153
barriers to enrollm ent and receipt of service,such as in the Florida A CCESS application orlow reim bursem entrates.
Previously,in a pre-trialruling,1found thatplaintiffsdo nothave standing
tobringCount11(lackofaccesstomedicalcare)againsttheheadofDCFbecause
they failed to m eet the causation requirem ent. D .E. 541 at 8. D C F has no authority to setorm odify M edicalreim bursem entrates. B y law ,the responsibility
forsettingsratesresidesinAHCA andDOH.SeeFla.Stat.jj409.908;391.045.
Ifurtherfound thatplaintiffsdo nothave standing to sue D OH forpurposes ofCount1V . D .E.541 at 18. D OH hasengaged in extensive outreach activitiesto ensure that eligible children living in each ofthe nam ed plaintiffs'counties w ere referred to CM S foradeterm ination ofclienteligibility.
In addition,Ifound thattlzree nam ed plaintiffshave standing to assertthe
claimsallegedinthiscase.Iconcludedthat:(1)S.M .hasstandingtoassertCounts 1and IV againstAHCA and DCF;(2)J.S.hasstanding toraiseCount11against AHCA;and(3)T.G.hasstandingtopursueCountsIand11againstDOH.D.E.541
and 671. Generally,ifatleastonenam ed plaintiffhasstanding to asserteach ofthe
claim s raised,a courtneed not analyze w hether the rem aining nam ed plaintiffs
have standing. See Florida cx rel.W//.)?.Gen. U S.Dep'tofHealth doHuman Servs.,648 F.3d 1235, 1243-44 (11th Cir.2011) (finding that idgtjhe law is
abundantly clear that so long as at least one plaintiff has standing to raise each claim- asisthe case here- we need notaddresswhetherthe rem aining plaintiffs
have standing''and collecting cases.),aft'd inpart,rev'd inpartsub nom.Nat'l Fed'noflndep.Bus.v.Sebelius,132S.Ct.2566(2012).
To preserve an adequate record for appeal,how ever,1 willat this tim e analyze standing forallthe nam ed plaintiffsin thiscase.
12

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B.TheN am ed Plaintiffs Iadhereto my priorruling thatS.M .hasstanding to proceed againstAHCA and D CF. D .E .541 at4-9. S.M .w asiçsw itched''from one M edicaid program to anotherw ithouthism other'sknow ledge orconsent. B ecause hisdoctorw asnota participant in the new M edicaid plan, S.M .was unable to obtain his EPSDT screening, a critical appointm ent, at 18 m onths of age. S.M .'S screening w as delayed for tw o m onths w hile his m other attem pted to sw itch him back to his initialplan. Thisdelay exposed S.M .to health risks. O n another occasion,S.M .w as unable to take a lead blood screening test because the laboratory w ould take three hoursto reach by bus,round trip. S.M .'S m other w as unaw are that she w as entitled to free transportation services through M edicaid. Furtherm ore,S.M .'Sm otherw asneverinform ed thatshe w asentitled to dentalservices. S.M .'Sdoctorw asunable to recom m end a dentistthatw ould treat S.M . S.M .'Sm othercalled severaldentistsw ho purported to acceptM edicaid but w asunable to find a dentistw illing to treatherson.
S.M .'Sinjurieswere theresultofdefendants'failureto comply with their
statutory duties and,due to his continuous exposure to defendants'policies and
practices,issubstantiallylikelytoexperiencethesetypesofinjuriesinthefuture.
Assuch,hehasstandingto assertCountsIandIV againstD CF andAH CA . has standing to assert Count 11 against D O H . L .C .'S psychologist
recom m ended that he receive intense psychological services, including w eekly play therapy,because ofhis severe behavioralissues. H ispsychiatristw ould not providethetherapy because shedid notacceptM edicaid. L .C .'Sm othertook him
to PeaceRiverCenter(ççpeaceRiver''orCIPRC'') theexclusiveM edicaidmental
health providerin L.C .'Sarea. PRC ,how ever,w asunableto provide play therapy, or any other type of therapy, on a w eekly basis because the clinic had an unreasonable caseload.

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 14 of 153
L .C .'S m other had to pay out-of-pocketto provide her son w ith the proper care. D OH failed to satisfy its duty to ensure that a sufficient amount of psychologiststhataccepted M edicaid wasavailable in L.C.'S area. As a result, D OH isresponsibleforL.C.'Slack ofaccessto m edicalcare. There isarealistic dangerthatL.C .w illnothave equalaccess to psychiatric services in the future as com pared to those thatare privately insured because D O H has a policy of setting inadequate reim bursem entrates.
K .K has standing to bring Counts I and IV against A H CA and D CF and C ount11againstD O H . A fterdiscussing the advantagesofStayw ellw ith one ofits representatives, K .K .'S m other, A .D ., voluntarily sw itched K .K to Stayw ell's insurance plan. Subsequently,A .D .took K .K .to the em ergency room because his ear started to bleed. The em ergency room advised A .D .to take K .K .to histhencurrentEN T specialist,D r.John D onaldson,the follow ing day so thatK .K 's ear could be drained. Upon m aking an appointm entw ith theEN T specialist,A .D .w as inform ed thatD r.D onaldson did notacceptStayw ell'sinsurance.
A .D .contacted Stayw ellto inquire aboutan EN T specialistin herarea and w as referred to a Stayw ell-affiliated doctor in Sarasota, w hich is located approxim ately tw o hoursaway from herhom e nearFortM eyers. Dr.D onaldson agreed to seeK .K .laterthatday,attherisk ofnotreceiving paym ent. Staywelldid nothave a sufficientam ount ofEN T specialists on its panelin the m etropolitan area of Fort M yers. This is a result of D OH 's failure to set sufficient
reimbursementratesasrequiredby42U.S.C.j1396a(a)(30)(A).
ln anotherexam ple,in 2010 K .K w asnoteligible forM edicaid because his
mother'sincomeexceededeligibilityrequirements.In2011,A.D.lostherjoband
once again enrolled K .K .in M edicaid.A .D selected M edipass as her son's plan. W ithoutA .D .'S know ledge or consent,how ever,M edicaid assigned Stayw ell as K .K .'Sprovider. Stayw ellw ould notapprove K .K .forhisthen-currentm edication,
l 4

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 15 of 153
Vyvance,adrug necessary tocontrolhisbehavioralissues.BeforeStaywellwould approvetheprescription,itrequired thatK .K firsttry and failon A dderall.
A fterKK took Adderall,hisconductsignifcantlydeteriorated,whichhad an adverse effect on his perform ance at school. Once A .D .w as able to getK .K reassignedtoM edipass,hew asableto resum etheproperm edication.AHCA and D CF'S failure to properly assign K .K .to the correctM edicaid plan resulted in an unreasonable delay in receiving the appropriate prescription. K .K is likely to
experience these injuries again because defendants have switched M edicaid
patientsw ithouttheirconsent. N .G .also hasstanding to pursue Count1againstD O H . M s.R ita G orentlo,
N .G .'S adoptive m other, tried to obtain an em ergency appointm ent for N .G . because he had severe pain in his ear. It w as im perative for N .G .to receive treatm entim m ediately due to his com prom ised im m une system ,w hich m ade him susceptible to infection. Initially, M s. G orentlo w as inform ed that the next available appointm ent w ould be in six m onths. A fter num erous phone calls,an EN T finally treated N .G .five days after M s.G orenflo sought an appointm ent. Thisunreasonable delay in theprovision ofhealth servicesplaced N .G .'shealth at significantrisk. Just as the other nam ed plaintiffs in this case,N .G .is likely to suffer this type ofdelay in the future because DOH frequently fails to provide sufficientspecialty servicesto M edicaid patients.
In m y prior ruling on J.S.,I focused on w hether she had standing to bring Count 11 against D O H . 1 find again that she does. The evidence,sum m arized below in PartV I,Section E,show s thatchildren on M edicaid throughoutFlorida have difficulty accessing specialty care,and often m ustw aitconsiderable periods ortravelsignificantdistancesto obtain such care.J.S.'SexperienceswithM edicaid are no different.
15

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Three tim es in the last 10 years or so,J.S.hasbroken herankle orwrist, goneto the em ergency room ,and been directed to see an orthopedistforfollow -up care. ln all three instances, she had difficulty, in varying degrees, locating an orthopedist w ho w ould agree to treat her as a M edicaid patient. The evidence adducedattrialshowsthatJ.S.facesaCtrealistic danger''ofnotbeing abletoobtain equalaccessto specialty care,ascom pared to children w ith private insurance. See
Babbittv.United Farm WorkersNat'lUnion,442 U.S.289,298 (1979). M any
specialty providers currently do not participate in Florida M edicaid or sharply curtailtheirparticipation because ofD O H 'slow reim bursem entrates.
Likew ise,N .V .is likely to experience future delays or denial of m edical services and thus has standing to raise Counts Iand 11againstA H CA . N .V .w as diagnosed w ith Shw achm an D iam ond Syndrom e, w hich causes pancreatic insufficiency and t00th decay. N .V .'S dentistrefused to continue treating him because he needed caps. The dentistinform ed N .V .'Sm otherthatM edicaid w ould notpay fora replacem entifhe lostacap and itw ould bedifficultto find anyoneto perform the w ork through M edicaid. N .V .'S m other called severaldentists in her area butdid nottsnd anyone who would acceptM edicaid to perform the work. Eventually,one m onth later,she w asreferred to adentisttw o hoursfrom herhom e thatw asw illing to acceptM edicaid.
ln anotherinstance,N .V .experienced trouble comprehending in schooldue to hisillness. N .V .w asreferred to tw o neuropsychologistsw ho accepted M edicaid butw as notable to be treated untiltw o m onths after his m other first soughtthe initialappointm ent. A gain,A H CA 'Spracticeofreim bursing doctorsatlow ratesis the cause for these delays in the receipt of m edical care. A s long as N .V . is eligible for M edicaid,there is a substantiallikelihood that he willnot receive tim ely care.
16

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 17 of 153
lalso find thatJ.W .hasstandingtobring CountIagainstAHCA and DCF.4 J.W .'S oncologistrecom m ended a C T scan for the purpose of detecting w hether J.W .'S cancer had spread from his leg to his neck. A H CA and D CF sw itched J.W .'S primary care physician, which prolonged J.W .'S ability to obtain authorization for the C T scan. Five w eeks after the initial request for authorization,theoncologistconducted the CT scan. The scan revealed thatJ.W .'S cancerhad spread and infltrated to hisspinalcord. Asexplained above,AH CA and D CF are responsible for im propersw itching. J.W .is likely to be,and indeed has been, sw itched again and experience significant delays in the provision of healthcare.
I previously found thatT .G .had standing to assertCounts I and 11 against
DOH.D.E.541at13-17.T.G.isnow deceased,however,andisnolongersubject tofutureinjury.SeeBowenv.FirstFamilyFin.Servs.,Inc,233F.3d 1331,1340 (11th Cir.2000)(findingthatplaintiffsonly have standing ifthey can allegethe possibilityofafutureinjury).Becausethisisan action forprospectivereliefonly,
T.G .doesnothave standing and isdism issed asa nam ed plaintiff. lalso find thatN .A .doesnothave standing to sue defendantsin thiscase.
N .A . has a history of signiscant respiratory issues and aw oke one m orning coughing and congested. N .A .'S m other, C .R ., called N .A .'S pediatrician to schedule an appointm ent but w as told that N .A .had been sw itched to a new pediatrician under a different M edicaid plan. A lthough defendants im properly switchedN .A.,hedid notsufferanym eaningfuldelay in receiving careasaresult ofthe reassignm ent. N .A .'S pediatrician agreed to treathim the sam e m orning,
4Previouslj,defendantsarguedthatJ.W .'Sclaimsweremootbecausehewastemjorarily
ineligible for M edlcaid based on the fact that he w as incarcerated in a high risk facllity in
Novemberof2011. SeeD.E.1062. Since Eling thismotion,thepartieshavefiled ajoint
stipulation offacts stating thatJ.W .w as released from the high risk facility on A pril 16,2012 andwassubsequentlyapprovedforM edicaid.SeeD.E.1190.Thus,J.W .'Sclaim sarenotmoot.

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 18 of 153

despitethe insurance issues. Sim ilarly,laterthatday C.R.had to pay $70 out-of-
pocketbecause the pharm acy w as unable to processherM edicaid num ber. C .R ., how ever,w as reim bursed the nextbusiness day once the problem w as resolved. N .A .did notexperience any delay ordenialofservicesbecausehe w assw itched to another provider. A ccordingly,he does nothave standing and is dism issed as a nam ed plaintiffin thiscase.
In sum ,Itsnd the follow ing nam ed plaintiffshavestanding: * S.M .has standing to assertC ounts 1 and IV againstA H CA and D CF; * L.C .hasstanding to assertCount11againstD OH ; * K .K has standing to assertC ounts I and IV against A H CA and D CF and Count11againstD O H ; * N .G .hasstanding to assertC ountlagainstD O H ; * J.S.has standing to assertCount11againstD O H ; * N .V .hasstanding to assertC ountsIand 11againstA H CA ;and * J.W .hasstanding to assertCountlagainstA H CA and D CF.5 IV .C ER TIFIC A T IO N O F TH E C LA SS
A s noted earlier, l certified a class under Rule 23 for declaratory and
injunctivereliefconsistingofççallchildren undertheageof21whonow,orinthe
future w ill,reside in Florida and w ho are,orw illbe,eligible underTitle X IX of Social Security A ct for Early Periodic Screening D iagnosis and Treatm ent Services.'' D .E.671 at8-9. W ith the benefitofa lengthy trial,having received substantialdocum entary and testim onialevidence,1reaffirm m y classcertification ruling.

5

I

do

not

see

the

need

to

address

the

standing

of

the

Florida

Pediatric

Society ,

the

Florida

Chapter of the Am erican Academ y of Pediatricians, or the Florida A cadem y of Pediatric

Dentistry atthistim e.1,how ever,reservetherightto do so in thefuturein arevised order.

1 8

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 19 of 153
First,asto num erosity,Ifind thatbetw een O ctober2009 and the tim e ofthe trial's conclusion in 2012,anyw here betw een l.5 m illion and 1.7 m illion children w ere enrolled in the M edicaid program throughoutFlorida. A ccordingly,nothing
presented during the trialaltersmy earlierconclusion thatçjoinderofunknown
individualplaintiffs iscertainly im practicable,''ifnotim possible.See Jack v.Am .
Linen Supply Cb.,498F.2d 122,124 (5th Cir.1977)(finding numerosity existed foraproposedclassthatincludedunknown,futureblackemployees).SeealsoFed. R.Civ.P.23(a)(1).
Second, as to com m onality, throughout the trial, plaintiffs presented evidence regarding the severallegalquestions thatare com m on to the entire class and thatM agistrate Judge M cA liley identified in her reportand recom m endation. These include w hether defendants are com plying w ith their obligationsunderthe federalM edicaid A ctto provide eligible recipientsw ith reasonably prom ptm edical care and services, equal access to such care and services, and outreach and
informationaboutcareandservices. Vega,564 F.3d at 1268 (Commonality is
satisfied w hen there isone question oflaw orfactthatiscom m on to the class asa
whole.).SeealsoHaitianRefugeeCtn,Inc.v.Nelson,694F.Supp.864,877(S.D. Fla.1988)(ttclassactionsseekinginjunctiveordeclaratoryrelief...bytheirvery naturepresentcommonquestionsof1aw orfact.'')
Third,as to typicality,the evidence presented at trialdoes not disturb m y
earlierconclusion thattheclaimsand alleged injuriesoftheindividualplaintiffs
aretypicalofthe classm em bers. The individualplaintiffsdescribed theirinability to accessprom ptly orw ithoutgreatdifficulty m edicalservicesin a variety ofareas of care throughout Florida,w hich they attribute to defendants' adm inistration of Florida's M edicaid program . Even though their individual experiences in accessing care and services are varied,typicality is not defeated because they all share claim s thatthey have been denied reasonably prom pt and equalaccess to
19

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 20 of 153
m edicalcare and services dueto defendants'failure to comply w ith theirfederal statutory obligations in adm inistering Florida's M edicaid program .See Prado
Steiman ex.rel.Prado v.Bush,221 F.3d 1266, 1279 n.14 (11th Cir.2000) (citationsomitted)(:$Thetypicality requirementcan tlçtbe satisfed even ifsome
factualdifferencesexistbetween the claim s ofthe nam ed representativesand the
claimsoftheclassatlarge.'').TheSçstrong similarity of(thesejlegaltheories... satistlieslthetypicality requirementdespite(anylsubstantialfactualdifferences.''
1d. Fourth,the classnam ed plaintiffs and classcounselcontinue to rem ain able
to adequately representthe interestsofallclassm em bers. Finally,nothing thatw aspresented during the course ofthe trialchangesm y
conclusion thatthiscaseistheprototypicalcaseforRule23(b)certification in that
defendants are alleged to have tEacted or refused to act on the grounds that apply
generally to the class, so that the fnal injunctive relief corresponding declaratoryrelief(wouldbeqappropriaterespecting theclassasawhole.''SeeFed. R.Civ.P.23(b)(2).
V .A PPLICA B LE LE G A L STA N D A R D S
A. CivilRightsActionUnder42U.S.C.j1983 Inrelevantpart,42U.S.C.j 1983,providesaprivatecauseofaction against
state actors w ho deprive an individual of tçany rights,privileges,or im m unities secured by the Constitution and law s''oftheUnited States. Itisw ell-established
thatj 1983providesaremedy forviolationsoffederalstatutoryrightsaswellas constitutionalrights.SeeM ainev.Thiboutot,448U.S.1,4(1980).Tomaintaina causeofaction underj 1983 forviolationsoffederalstatutoryrights,aplaintiff
first m ust establish that the pertinent federal statute provides an individually
enforceableright. SeeBlessing v.Freestone,520U.S.329.340 (1997);Gonzaga Univ.v.Doe,536U.S.273,283-85(2002).
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As I have previously explained in m y prior orders,a courtmustanalyze three factors in deciding whether the federal statute in question creates an enforceable individualright'.
First, C ongress m ust have intended that the provision in question benefitthe plaintiff. Second,the plaintiffm ustdem onstrate thatthe right assertedly protected by the statute is not so ttvague and
amorphous''thatitsenforcementwould strain judicialcompetence.
Third,the statute m ustunam biguously im pose a binding obligation on the States.ln other w ords,the provision giving rise to the asserted rightm ustbe couched in m andatory,ratherthan precatory,term s.
Blessing,520 U.S.at341 (citationsomitted). The Supreme Courtsubsequently
clarified in G onzaga that as to the first factor the statute m ust contain an
ççunambiguously conferred right''to supporta cause of action under j 1983.
G onzaga,536 U .S.at 283. The statutory provision m usthave ttrights-creating'' language,id.at287,have an individual,not aggregate,focus,id.at 288,and be dsphrased in term softhepersonsbenefitted.''1d.at284.
B . M edicaid Fram ew ork çtM edicaid is a cooperative federal-stateprogram through w hich the Federal governm entprovidessnancialassistanceto Statessothatthey furnish m edicalcare
to needy individuals.'' Wilder v. P-1.Hosp.Ass'n,496 U .S.498,502 (1990).
Specifically, 42 U .S.C . 1396a requires that states m ake m edical services availableto categorically eligible needy children and adults. A state'sparticipation in the M edicaid program is voluntary,butifa state chooses to participate,itm ust com ply with the requirem ents outlined in the M edicaid statute.1d. ln orderto qualify for federalM edicaid funds,a state m ustsubm ita state M edicaid plan to a
federalagency,theCentersforM edicare& M edicaid Services(CM S),within the DepartmentofHealthandHumanServices.SeeDouglasv.Indep.Living Ctr.ofs.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 22 of 153
Cal.,Inc.,l32 S.Ct 1204,1208 (2012). Thatplan mustcomply with federal
M edicaid statutory and regulatory requirem ents.1d. Certain provisionsofthe federalM edicaid statutesare relevanthere. First,a
participating stateplan form edicalassistancem ust: provide thatallindividuals w ishing to m ake application for m edical assistance under the plan shall have opportunity to do so, and that such assistance shallbe furnished w ith reasonable promp tness to a1l eligible individuals.
42 U.S.C. j 1396a(a)(8) (emphasis added) (the tçReasonable Promptness'' provision).
Second, states m ust provide ççfor m aking m edical assistance available,
including atleastthecareandserviceslistedinparagraphs(1)through(5)...gof jq1396d(a)ofthistitle,to ..allindividuals(who areeligibleq.'' 42 U.S.C.j 1396a(a)(10)(A).lnturn,j 1396d(a)(4)(B)definesfçmedicalassistance''toinclude iiearly and periodic screening,diagnostic,and treatm ent services (as defined elsewhere in thissectionqforindividualswho are eligibleundertheplan and are undertheageof21(.q'' ThespecificEPSDT servicesthatmustbeprovided are listedat42U.S.C.j 1396d(r).
Third,astateplan m ustalso:
provide such m ethodsand proceduresrelating to theutilization of,and the paym entfor,care and servicesavailable undertheplan ...asm ay be necessary . . . to assure that paym ents are consistent w ith efsciency,econom y,and quality of care and are sufficient to enlist enoughprovidersso thatcareand servicesareavailableundertheplan at least to the extent that such care and services are available to the generalpopulation in thegeographic area.
42U.S.C.j1396a(a)(30)(A)(thetçEqualAccess''provision).
22

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 23 of 153

Fourth,astateplan mustcontain provisionsdtgijnformingallpersonsinthe
Statewho areundertheageof21and who havebeen determ ined to beeligiblefor

m edical assistance

of the availability of early and periodic screening,

diagnostic, and treatm ent services and the need for age-appropriate

immunizations against vaccine-preventable diseasesl.j'' 42 U.S.C. j

1396a(a)(43)(A)(thetçEffectiveOutreach''provision).
W ith thisfram ew ork in m ind,lrevisitwhetherthese provisionscreate

enforceable rights. 1. R easonable Prom ptness & M edicalA ssistance C lauses:42 U .S.C .
jj1396a(a)(8)and (a)(10)

a. j 1396a(a)(8)
C ount 1 of plaintiffs' com plaint alleges a violation of the tçreasonable

promptness''clauseofj 1396a(a)(8).TheEleventh Circuit,inDoev.Chiles,136 F.3d709,719(11thCir.1998),expresslyheldthatj1396a(a)(8)providesafederal rightto reasonably promptprovision ofassistance,which isenforceable underj
1983.Looking to the Grstfactorofthe Suprem e Court'sthree-factorBlessing test,

the Eleventh Circuitnoted thattheplain languageofj 1396a(a)(8)'sreasonable
prom ptness clause w as içclearly intended to benefit M edicaid-çeligible

individuals.''' 1d.at715. Itfurtherconcluded thatj 1396a(a)(8)'srequirement

that tlassistance

be furnished w ith reasonable promptness to all eligible

individuals'' presented 6Ea sufficiently specific and definite standard''that w as

dçreadily susceptible to judicial assessment,''thus satisfying Blessings'second
requirem ent. 1d.at717. Finally,in holding thatthe reasonable prom ptness clause

metthethird factorofthe Blessing test,the Eleventh Circuitnoted thatttgtlhe

languageofthestatute (wasqundoubtedlycastinm andatoryratherthan precatory termsg,j''and that <éa state's receipt of federal M edicaid funds is expressly conditionedonitscompliancewithprovisionsofj1396a.''1d.at718.

23

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 24 of 153
Doe is ofcourse binding precedent.W hetherD oe has been so eroded by
GonzagathatitshouldbeovelruledisfortheEleventhCircuittodecide.M yjob, asadistrictjudge,isto follow Doeatthistime. See U S.Valladares,544 F.3d 1257,1264-65(11thCir.2008);UnitedStatesv.Baxter,323Fed.App'x830,831 (11th Cir.2009)(ççBecauseM oore(apriorEleventh Circuitdecisionjhasnotbeen
oven-uled by thisCourtsitting en banc orthe Suprem e Court,the districtcourtw as
bound to follow itsholding.''). Nevertheless,IdonotbelievethatDoehasbeen
called into doubtby G onzaga.
Asseveraldecisionsfollowing Gonzagamakeclear,étgjl1396a(a)(8)meets
the standardssetforth in G onzaga''asw ell. Rom ano v.G reenstein,72l F.3d 373,
379 (5th Cir.2013). AstheFifth Circuitnoted in Romano,the language ofj 1396a(a)(8)isindividually focused. 1d. Itisconcerned with whethermedical
assistance has been furnished in a reasonably prom ptm annerto a particularclass ofindividuals- those w ho are M edicaid-eligible. 1d. çslt does nottspeak only in term sof institutionalpolicy and practice,'nordoes ithave an çaggregate focus.'''
1d.(quoting Gonzaga,536 U.S.at288). The First,Third,Fourth,and Sixth Circuitshave similarly held,vost-Gonzaga,thatj 1396a(a)(8)providesafederal rightthatisenforceableunderj 1983. SeeBryson v.Shumway,308F.3d 79,89 (1stCir.2002);Sabreecx rclSabreev.Richman,367F.3d 180,193-94(3dCir. 2004);Doe v.Kidd,501 F.3d 348,357 (4th Cir.2007); Westside M others Olszewski,454F.3d532,539-41(6thCir.2006).
l therefore conclude that the direasonable promptness''provision of j 1396a(a)(8)providesafederalrightthatisenforceableunderj 1983.
b. j 1396a(a)(10) Count1also allegesa violation ofj 1396a(a)(10),which providesthata
State plan for m edical assistance m ust provide Ctfor m aking m edical assistance
available,including atleastthecareand serviceslisted in paragraphs(1)through
24

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 25 of 153
(5),(17),(21),and (28)of(j11396d(a)(,)''tottallindividuals''meeting specified fnancialeligibility standards. TheEleventh Circuithasnotaddressedwhetherj 1396a(a)(10)providesafederalrightthatisenforceableunderj 1983.Itherefore
draw upon the Suprem e Court's Blessing test, as m odified by Gonzaga, to
determine whether j 1396a(a)(l0) provides plaintiffs with a federal right enforceableby j 1983.
The frstprong of the Blessing test instructs that 1 look to whether j 1396a(a)(10)revealsacongressionalintenttocreatean individualized right. The
Suprem e C ourt in Gonzaga clarifed that nothing short of an unam biguous
conferredrightcansupportacauseofactionunderj 1983.Gonzaga,536U.S.at
283. The appropriate inquiry,the Suprem e Courtnoted,istçw hether...Congress intended to conferindividualrightsupon a classofbeneficiaries.'' 16L at285. This requiresthatastatute be phrased in term softhe person orpersonsbenetited.1d.at 284. A s an exam ple of such itrights-creating''language in a statute,the Suprem e C ourtcited Title V 1ofthe C ivilR ightsA ctof1964 and Title IX ofthe Education A m endm ents of 1972,w hich w ere found to create individualrights because they werephrasedççwith anunm istakablefocusonthebenefitedclass.''1d.
In my opinion, j 1396a(a)(10)'s requirementthatmedicalassistance be
m ade available to al1individuals that m eet its eligibility standards is phrased in ten'ns of the individuals benefited. 1ts focus is on m aking m edicalassistance available to a specifc classofbeneficiaries,nam ely thosew ho,likeplaintiffshere, satisfy the financialeligibility standardsitsetsout.
D ecisions from the Third, Fifth, and N inth C ircuits support m y determ ination. See Sabree,367 F.3d at 190;S.D .ex rel.D ickson v.H ood,39l
F.3d 581,602-03(5th Cir.2004);Watson v.Weeks,436F.3d 1152,1159-60(9th Cir.2006).lndeed,theFifthCircuitstatedthatthelanguageofj 1396a(a)(10)(sis
precisely the sortof<rights-creating'language identised in Gonzaga ascriticalto
25

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 26 of 153
dem onstrating a congressionalintentto establish a new right.'' D ickson,391 F.3d
at 603. The Third Circuit similarly concluded that çtit (isq difficult,if not
im possible, as a linguistic m atter, to distinguish the im port of the relevant
language IA State Plan m ustprovide' from the çN o person shall'language of
TitlesV1and1XE,)''Sabree,367F.3dat190.1notedearlier,TitlesV1andIX were
cited by the Suprem e C ourt in Gonzaga as exam ples of statutes ttw ith an
unmistakablefocusonthebeneftedclass.''1d.at187(emphasisom itted).
M oving on to the second prong oftheBlessing test,lconclude thatthe rights
soughtto beenforced by plaintiffsarenotççso vagueand amorphousthat(theirl enforcement would strain judicial competence.'' Blessing, 520 U.S.340-41.
Plaintiffs seek to require thatdefendants m ake available the dsm edicalassistance,''
including EPSDT services,that they are entitled to under 1396a(a)(l0) as
individuals satisfying the specified fnancial eligibility standards listed. The provision carefully details the specific services to be provided, and the services soughtto be enforced by plaintiffsare specificand enum erated.6
6To theextentdefendantsarguethatj 1396a(a)(l0)isnotunambiguously worded,as
requiredto conferaprivately enforceablefederalright,becausetheterm ûçm edicalassistance''is
ttvagueandamorphous,''1disagree.Ifindtheterm tobesufficientlydefinedin j 1396d(a)to satisfy the secondprong ofBlessing. SeeDoe,136 F.3d at711(upholdinga claim thatthe FloridaDepm mentofHealth & Rehabilitative Selwicesviolated j1396a(a)(8)by failing to
provide m edicalassistance,w hich consisted ofthet4therapies,training and otheractivetreatm ent
towhichgtheplanparticipantswereqentitled'').Irecognizethatacircuitsplitexistsconcerning
w hether ûçm edicalassistance''eneom passes only a rightto paym ent for the care and selwices
listedinj 1396d(a),orbotharighttopaymentandarighttothecareandservicesthemselves. CompareKatieA.exrel.Ludin v.fosAngelesCn@.,481F.3dat1154,withEqualAccessforEl Paso,Inc.v.Hawkins,562 F.3d724,728-29(5th Cir.2009)(holdingthatmedicalassistance means payment for medical services); Westside Mothers,454 F.3d at 540-41 (same); Bruggeman ex relBruggeman v.Blogojevich,324 F.3d 906,910 (7th Cir.2003)(same); (dictum)OKAAP,472 F.3d at1214 (same). Butthatdefendants'argumentregarding what
exactly iscovered by thetenn çGm edicalassistance''m oreaccurately addressesthem eritsofw hat plaintiffswould need to show to establish thattheirrightshave been violated. Accordingly,l addressthisargumentfurtherintheconclusionsoflaw .
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Finally,the third prong ofthe Blessing testiseasily satisfied because j l396a(a)(10)unambiguously imposeson the participating statesthe requirement thatthey provide formaking medicalassistance available. See j 1396a(a)(10) (sçstating thatçûgaq State plan for medicalassistance mustprovide for making medicalassistanceavailable'').
Accordingly,1concludethatj 1396a(a)(10)providesafederalrightthatis enforceableunderj 1983.
2.EqualAccess:42U.S.C.j1396a(a)(30)(A) Statesarerequired,underj1396a(a)(30)(A),toprovideadequatefundingto
ensure thatM edicaid beneficiarieshave equalaccessto m edicalservices and care asavailabletothegeneralpopulation in theirgeographicarea.Plaintiffshavefiled
suitunderj 1983becausedefendantshaveallegedlyfailedtosatisfythatmandate. Atissueiswhetherj1396a(a)(30)(A)confersaprivaterightofaction.
ln 1990,the U nited StatesSuprem e Courtheld thathealth careprovidershad a private rightof action to challenge the m ethod by w hich the states reim bursed them underthe M edicaid A ct. See W ilder,496 U .S.at498. The Courtfound a private rightofaction w ithin the textofthe Boren Am endm ent,which required
states to
provide ...forpaym ent ...ofthe hospitalservices,nursing facility services,and services in an interm ediate care facility forthe m entally
retardedprovidedundertheplanthroughtheuseofrates(determined
in accordance w ith m ethodsand standardsdeveloped by the State ...
) which the State.#?W.ç,and makes assurances satisfactory to the
Secretary,are reasonableand adequate to m eetthatcosts which m ust
beincurredbyey cientlyandeconomicallyoperatedfacilitiesinorder
to provide care and services in conform ity w ith applicable State and Federal law s,regulations,and quality and safety standards and to assure thatindividualseligible form edicalassistance have reasonable access...to inpatienthospitalservicesofadequatequality.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 28 of 153
1d.at502-03(emphasisinoriginal).Healthcareproviderscouldsueunderj1983
to enforce theB oren A m endm ent,the Courtheld,becausethey w ere theçtintended benefciaries''ofaprovisionthatimposedaSsbindingobligation''on statestoadopt reasonablerates. See id.at510.
Since Wilder,the Suprem e Courthas decided Blessing- cçeating a threefactortestto determ ine w hethera federalstatute createsan enforceable right- and G onzaga expounding on the tirstprong ofthe Blessing test,requiring the statute to contain ççrights-creating'' language and clearly im part an çtindividual entitlem ent''on plaintiffw ith an içunm istakable focus on the benefited class.'' See B lessing,520 U .S.at 340-41;G onzaga,536 U .S.at 287. D espite so doing,the Courtin G onzaga expressly preserved the W ilder Court'sanalysis,stating thatthe B oren A m endm entttleftno doubtofitsintentforprivate enforcem ent...because
the provision required States to pay an tobjective' monetary entitlement to individualhealth careprovidersl.q''Gonzaga,536U .S.at280-81.
Thus,G onzaga concluded that W ilder rem ains good law ,and the Eleventh
Circuithasnotruledotherwise.SeeAgnostiniv.Felton,521U.S.203,237(1997) (reaffirmingthatççgijfaprecedentofthisCourthasdirectapplicationinacase,yet appearsto reston reasonsrejected in some otherlineofdecisions,theCourtof
Appealsshould follow the case which directly controls,leaving to thisCourtthe
prerogative ofoverruling itsown decisions'')(internalquotation marksomitted).
A nd the Seventh Circuithasconcluded thatW ilder rem ainsbinding precedent.See
Bontragerv.Ind.Family drSoc.kv mw.Admin.,697F.3d604,607(7thCir.2012) (diAlthoughwehaveacknowledgedthatGonzagamayhavetakenanew analytical approach . Wilder has notbeen ovelruled.'') (internalquotation marks and citation om itted).
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 29 of 153
Thestatutorylanguagein5 1396a(a)(30)(A)isnearly identicaltothetextof
the Boren A m endm entthatthe Courtin W ilder found to create a private rightof
action.Underj 1396a(a)(30)(A),stateprogramsarerequiredto:
Provide such m ethods and procedures relating to the utilization of, and the paym entfor,care and servicesavailable underthe plan ...as m ay be necessary to safeguard againstunnecessary utilization ofsuch care and services and to assure that paym ents are consistent w ith
efficiency,economy,and quality ofcare and are sufflcientto enlist
enough providers so that care and services are available under the plan atIeastto the extentthatsuch care and servicesareavailable to
thegeneralpopulationinthegeographicJrcll.l
j 1396a(a)(30(A)(emphasisadded).
G iven the strikingly sim ilar (drights-creating''language thatm im icsthe test
oftheBorenAmendment,1concludethatj 1396a(a)(30)(A)imposesamandateon
the states. The Boren A m endm entrequired statesto create program sthatprovided
reasonable paymentto provide accessto adequate medicalassistance. And j 1396a(a)(30)(A)similarlyrequiresstatestocreateprogramsthatprovidesuffcient
paym entto ensure thatadequate access to m edical assistance is ttavailable under
the plan.'' Theonly significantdistinction betw een thetw o provisionsisthattheB oren
Amendment's beneficiaries were medicalproviders,while j 1396a(a)(30)(A)'s
beneficiaries are M edicaid-enrolled individuals w ho utilize the care and services ççavailableunderthe plan.'' See Pa.Pharm acistsAss'n v.H oustoun,283 F.3d 531,
538 (3d Cir. 2002) (en banc) (Alito, (holding that 1396a(a)(30)(A)'s provisionsforquality ofcare and adequate accesswere tçdraftledl. .with an unmistakablefocuson (M edicaid beneficiariesq''). Granted,health careproviders
are explicitly m entioned w ithin the text of the Boren A m endm ent, w hile plan
participantsarenotexpressly discussedin j 1396a(a)(30)(A).Butthisdistinction does not compel a different conclusion. Under j 1396a(a)(30)(A), plan
29

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 30 of 153
participantsare given an enforcem entrightthrough the languagerequiring statesto m ake senricesttundertheplan''available.
I acknowledge that- as defendants argue- the majority ofcircuits have determined,post-Gonzaga,thatj 1396a(a)(30)(A)does notexpressly create an enforceableindividualright.SeeEqualAccessforElPaso,v.Hawkins,509F.3d 697,703-04 (5th Cir.2007))M andy R.ex rel.M r.ztM rs.R v.J vens,464 F.3d 1139,1148 (10th Cir.2006);WestsideM others,454F.3d at542;N.Jr Ass'n of Homes tt Servs.fortheAging v.DeBuono,444 F.3d 147,148 (2d Cir.2006); Sanchezv.Johnson,416F.3d 1051,1060(9thCir.2005);Long Term CarePharm. Alliancev.Ferguson,362F.3d50,59(1stCir.2004).
These cases,how ever,are notpersuasive or are distinguishable.D eBuono and Long Term Care,for exam ple,involved claim s by providers,notindividual M edicaid beneficiaries. And,with the exception ofLong Term Care and M andy R ., the cases cited above fail to distinguish W ilder. Long Term Care
acknowledgedthatûftheBorenAmendmentandsubsection(30)(A)containg)nearly
identicalsubstantive requirem entsy''but itdism issed the sim ilarity and concluded thatiQGonzaga requires clear statutory language for the creation of private rights
enforceableundersection 1983(.1'' Long Term Care,362 F.3d at58.7 M andy R.
sim ilarly expressed incredulity that G onzaga preserved W ilder and found that Gonzaga tltightened the first requirem ent'' of finding a private right to enforce statutory violationsand therefore no reliefw asavailable. See M andy R.,464 F.3d at1147.Long Term CareandM andy R.failto givedueweightto W ilder,a case thatG onzaga expressly recognized rem ained good law .
7fong Term Care citestherepealoftheB oren Am endm entin 1997 asareason to ignore Wilder.See362 F.3d at58. Thatm akesno sense.Thesubsequentrepealofan amendmentto increaseççthe flexibility ofthe states''may shed lightasto Congress'laterviewsasto private enforcementoftheBoren Am endment,butdoesnotaltertheSupremeCourt'sanalysisthatthe
textoftheBorenAmendmentwassufficienttoconferarightsubjecttoprivateenforcem ent.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 31 of 153
1findthereasoning oftheSeventh andEighth Circuitsm orepersuasive.See
PediatricSpecialty Care,Inc.v.Ark.Dep'tofHumanServs.,443F.3d 1005,1015 (8thCir.2006)(holdingthatj1396a(a)(30)(A)SûisintendedtobenefitbothCI'IM S recipientsandproviders,andcreatesenforceablerightsforbothgroups''),vacated inparton othergrounds,127 S.Ct.2000 (2007);Bontrager,697 F.3d at607 (finding Wilderremainsgood law vost-Gonzaga and reaffirming itspïe-Gonzaga
ruling thata private rightofaction forindividualbeneficiaries exists,albeitunder
the medicalassistancestatute). Seealso M emisovskiv.M aram,No.92 C 1982, 2004 W L 1878332, at *8 (N.D. 111. Aug. 23, 2004) (concluding that 1396a(a)(30)(A)createsindividuallyenforceablerights).
In light of the passage of tim e since m y earlier rulings, 1 have also considered w hether any subsequentpertinent and binding decisions have called
into question my conclusionsregarding the enforceability ofj 1396a(a)(30)(A).
M y updated research,how ever,revealsno Eleventh Circuitdecision addressing the
individualenforceability of j 1396a(a)(30)(A) under j 1983. Thus,1remain
convinced for the reasons expressed in m y ruling on defendants' m otion for
summary judgmentthatthe Supreme Court's decision in Wilder compels the
conclusion that the statute is individually enforceable. W hile applying the
Gonzaga testto j 1396a(a)(30)(A) on a blartk slate mightpossibly render a
different conclusion, l cannot ignore Wilder, which is directly on point and
binding. D efendants directm y attention to the Suprem e Court's decision in D ouglas
v.IndependentLiving Center of Southern Calfornia,132 S.Ct.1204 (2012),
w hich w asdecided afterm y earlierrulings.A ccording to defendants,thisdecision
supportstheirpositionagainsttheindividualenforceabilityofj1396a(a)(30)(A).
In D ouglas, M edicaid providers and recipients in Califom ia asked the
SupremeCourttoconsiderwhetherj1396a(a)(30)(A)wasenforceablethroughthe

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Suprem acy Clause,in the w ake ofthe N inth C ircuit's holding in Sanchez thatthe
statutewasnotenforceable through j 1983. See Douglas,132 S.Ct.at 1207.
G iven intervening events in the case aftercertiorarihad been granted,the Court declined to considerthe Suprem acy Clause question and instead rem anded the case back to the circuitcourtto considerw hetherthe case should be broughtunderthe
AdministrativeProceduresAct,5U.S.C.j701.1d.at1211.Although plaintiffs'
allegations in D ouglas- t%ak C alifornia's M edicaid reim bursem ent rates did not com ply w ith federallaw because they w ere insufficientto enlistenough providers to ensure adequate care and services- tracked plaintiffs'claim s here,the Suprem e Courtin D ouglas w as notasked to- nor did it---decide the legalquestion ofthe
individualenforceability ofj 1396a(a)(30)(A)underj 1983,raised by defendants in this case. Accordingly,Douglas does not impact my conclusion that j 1396a(a)(30)(A)isindividuallyenforceablethroughj 1983.
TheEleventhCircuit'srecentdecisioninM artesv.ChiefExecutiveO//ccof South Broward HospitalDistrict,683 F.3d 1323 (2012),which addressed the
individual enforceability of another M edicaid statute also does not alter m y conclusion.ln M artes,the Eleventh Circuit concluded that a billing provision
within the M edicaid statutes, 42 U.S.C. j 1396a(a)(25)(C),8 did not confer

8The

statute ,

inpertinentpart,readsasfollow

s:

A Stateplan form edicalassistance m ust-

Provide ...thatin the case ofan individualwho isentitled to m edicalassistance undertheStateplan with respectto aserviceforwhich athird party isliable for
?alment,theperson furnishingthe servicemaynotseekto collectfrom the
lndlvidual (or any financially responsible relative or representative of that individual)paymentofan am ountforthatservice(i)ifthetotaloftheamountof
the liabilities of third parties for that senrice is at least equal to the am ount
payableforthatserviceundertheplan(disregardingsection 13060ofthistitle),or (ii)in an amountwhich exeeedsthe lesserof(I)the amountwhich may be collectedundersection 13960ofthistitle,or(11)theamountbywhichtheamount payableforthatserviceundertheplan (disregardingsection 13960ofthistitlc), exceedsthetotaloftheamountoftheliabilitiesofthirdpartiesforthatserviceg.)
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 33 of 153
individually enforceable rightson M edicaid recipientsagainstserviceprovidersfor im properbilling. The Eleventh Circuitreached thisconclusion,in part,because it determ ined thatthe statutory provision's ttfocus is proscription ofcertain conduct by M edicaid service providers''asitrelatesto theirbilling practicesratherthan the rightson the individualM edicaid recipients. M artes,683 F.3d at 1328. ltpointed to the Suprem e C ourt's acknow ledgem entin Gonzaga thattçstatutes thatfocus on the person regulated ratherthan the individuals protected''do notintend to confer
individually enforceablerights.1d.at1328-29(citing Gonzaga,536U.S.at287). Accordingly,because j 1396a(a)(25)(C)and itspreceding subsectionsprimarily
address the obligations of third party service providers, the Eleventh C ircuit
concluded that the text and structure of j 1396a(a)(25)(C) did not speak to
individualrights,butrather to the obligations of service providers vis-à-vis third party liability.1d.at1330.
The same, however, cannot be said of the text and structure of j 1396a(a)(30)(A),which requiresastateM edicaidplantoassurethatpaymentsfor
care and servicesççare suffcientto enlistenough providersso thatcareand services are available under the plan at least to the extent that such care and services are
availableto thegeneralpopulation in thegeographicareal.l''First,thefocusofj 1396a(a)(30)(A)ismaking surethatitcare and services''areavailableto eligible
M edicaid recipients. The intended purpose in enlisting a sufficient num ber of providers isnotforthe sake ofthe m edicalproviders,butrather forthe individual beneficiaries of the M edicaid program so that these individuals have the opportunity to receive m edicalcare in am arm ersim ilarto theircounterpartsin the private insurance sector. The essence of this statutory provision is m aking sure thata state'sM edicaid program functions as Congress intended:ensuring eligible
42U.S.C.j1396a(a)(25)(C).
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 34 of 153
individualsreceivethe m edicalcare and servicesthata state'splan entitlesthem to
receive. Second,when j 1396a(a)(30)(A)isread in contextwith j l396d(a),the
subsection that details the individual ttcare and services''that a state plan m ust
provide,itbecomes even more apparentthatthe focusofsubsection (30)(A)'s
tçsufficient''paym entprovision is on the individual's rightto access m edicalcare and services adequately.9
ln sum,Iagain concludethatj 1396a(a)(30)(A)createsaprivate rightof
action forM edicaid beneficiaries.
3.EffectiveOutreach:42U.S.C.j1396a(a)(43)(A) ln regardsto j 1396a(a)(43)(A),defendants raise no new argumentsbut
m aintain that the provision under Blessing as m odified by G onzaga, does not içunm istakably focus'' on a benefit class and is too am biguous and general to
containanobjectivestandard.Idisagree.
Post-G onzaga, the Eleventh Circuit intem reted the Grst Blessing factor, w hich requires that Congress m usthave intended the relevant statute to beneft
plaintiffs,to mean that the provision ççgmustq containlj individually focused, rights-creating language, (2) has an individual, rather than systemwide or aggregate focus; and (3) lacks an enforcement m echanism for aggrieved
individuals.'' M artes683 F.3d at1326,citingArrington v.H elms,438F.3d 1336,
1345(11thCir.2006).lnmyview,j1396a(a)(43)(A)clearlysatissesthistest. AspartofacomprehensiveM edicaid statute,j 1396a(a)(43)(A)requires
state plans to provide for inform ing ttall persons under the age of 21 w ho are eligible form edicalassistance''ofthe availability ofearly and periodic screening,
9 D efendants raise several other argum ents in their discussion of the individual
enforceabilityofj 1396a(a)(30)(A),whichIfindaremoreaccuratelyaddressedtothemeritsof
whatplaintiffswould need to show to establish thattheirrights,assum ing the statute confers individualrights,havebeenviolatedby defendants.Accordingly,Iwilladdressthesearguments laterwhererelevantinthefindingsoffactsandconclusionsoflaw .
34

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 35 of 153
diagnostic,and treatm entservicesand the need forage-appropriate im m unizations
againstcertain diseases. 42 U.S.C.j 1396a(a)(43)(A). Contrary to defendants'
contentions,this provision containsthe requisite ttrights-creating''term inology.ln Gonzaga, the statute issue prohibited the Secretary of Education from distributing fundsto any educationalagency orinstitution thatm aintained apolicy orpractice ofperm itting the release ofeducation records. Gonzaga,536 U.S.at 287. The C ourtfound thatthe provision failed to conferindividualrightsbecause itfocused on the regulated party as opposed to those w ho w ould benefitfrom the statute. 1d.at 288. A dditionally,the Courtdeterm ined that the statute's ttnon-
disclosureprovisions(spokeqonlyintermsofinstitutionalpolicy andpractice,not
individualinstances of disclosure,''thereby giving it an aggregate focus. 16L at 288.
In contrast,here the Effective O utreach provision com m ands the State to inform all eligible children under 21 about available m edical services. Its em phasis,unlike the statute in Gonzaga,ison the individualsw ho w illreceivethe
information ratherthan the regulated party.Thus,j 1396a(a)(43)(A)sufûciently
evincescongressionalintentto conferindividualrights.SeeBonnieL.v.Bush,l80
F.supp.2d 1321,1346-47(S.D.Fla.2001),aff'donothergroundsandvacatedin part,31FosterChildrenv.Bush,329F.3d 1255(11thCir.2003).
The Effective O utreach provision also clearly m eets Blessing's second requirem ent- thatthe protected rightcannotbe ççso vague or am orphous thatits
enforcementwould strainjudicialcompetence.'' Gonzaga,536 U.S.at282. This
provision isw holly differentfrom the am biguousprovisionsthatcourtshave found tobetoo generalized to enforce.Forexam ple,theSuprem eCourthasfoundthata
statute imposes only a generalized duty when the çtmeaning of (the directive would) obviously vary with the circumstances of each individual case''and
com pliancew ith the directivew aslargely leftup to thestate.SeeSuterv.ArtistM ,
35

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 36 of 153
503U.S.347,360-63(1992).Thisisnotthecasehere.Section l396a(a)(43)(A)
im posespreciserequirem entson the state and leavesno room fordiscretion.
UnderthethirdBlessing factor,thequestionsiswhetherj 1396a(a)(43)(A) tçunambiguously imposelsqa binding obligation on the Stategj.'' Blessing,520
U.S.at341. çç-l'heprovision giving rise to the asserted rightm ustbecouched in m andatory,rather than precatory,term s.'' 1d. The Effective O utreach provision
providesthatççgalStateplan formedicalassistancemustprovideforinforminga1l
personsin the State w ho are underthe age of21 and who have been determ ined to be eligible for m edical assistance . .. of the availability of early and periodic
screening,diagnostic,andtreatmentservices....'' j 1396a(a)(43)(A)(emphasis added). The languageofj 1396a(a)(43)(A)isnotprecatory butrequiresa state
like Floridato com ply w ith itscom m and.
Defendantsareunabletoidentifyanycasesthatholdthatj 1396a(a)(43)(A)
doesnotcreate a privaterightofaction. In fact,since Gonzaga,atleastone circuit
courthasheld thatj 1396a(a)(43)(A)createsenforceable rights. See Westside
M others,454 F.3d at544. Likew ise,districtcourts,post-G onzaga,have also held
thatj 1396a(a)(43)confersindividualrights. See gg.,Hunterex rel.Lynah v. M edows,No.CIVA 108CV-2930-TW T,2009 W L 5062451,at*2-3 (N.D.Ga. Dec.16,2009);Clark v.Richman,339 F.Supp.2d 631,640 (M .D.Pa.2004);
M em isovski,2004 W L 1878332,at*5;A.M H ex rel.P .H r.H ayes,N o.C2-03-
778,2004W L 7076544,at*6(S.D.OhioSept.30,2004). ln lightofthisprecedent,and forthereasonsstated above,1concludethatj
1396a(a)(43)(A) is mandatory, precise, and sufficiently individualized under Blessingtopermitaclaim underj1983.
36

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 37 of 153
Vl.FIND ING S O F FACT The fndingsoffactw hich follow aretaken from directorcircum stantial
evidencepresented attrialorfrom inferencesdrawn from such evidence.
A . TheN am ed Plaintiffs
1. S.A1.
1. S.M . becam e eligible for M edicaid shortly after he w as born in A ugust2006. PX 583-2 at7-1+ 02294-98,TPF02305-07. S.B .,10 s.M .'s m other,
chose D r. Sim m ons, w ho practices w ith the Tallahassee Pediatric Foundation
10S B voluntarily sentS.M .to livew ith hisfatherin Augustof2011so shecould devote
moretimeandenergylookingforajobandanapartmentwhereshecould livewithherthree
m inorchildren. S.B.on 12/06/2011Rough Tr.at90,135. Later,S.M .and S.B.'Stwo other m inor children were removed from her legal custody as the result of a courtorder and proceedingsinitiated by DCF. Id at89-90,135. W hile S.M .isliving with hisfatherabout25 m inutesoutside Tallahassee,S.B .continuesto seeherson every w eck.Id.at136.Thosew cekly visitsarenotsupervised by D CF.1d.at154.
Even though S.B .currently doesnothave legalcustody ofS.M .,S.B .isstillaproperand appropriatenextfriend. An individualmay serveasa çûnextfriend''ofaminoraslong asthe tçnext friend's''interests are not adverse to the minor and the lçnext friend''is sufficiently dedicatedtothem inor'sinterest.Gonzalezcxre/.Gonzalezv.Reno,86F.Supp.2d 1167,1185
(S.D.Fla.2000)aff'dsubnom.Gonzalezv.Reno,212F.3d1338(11thCir.2000).A parentmay
sueasa çûnextfriend''even ifheorshehaslostcustodyto the state and hisorherrightshave beenterm inatedprovidedtheparentisadvancingthechild'sinterests,andnothisown.M iracle
by Miraclev.Spooner,978F.Supp.l161,1163-64,1168(N.D.Ga.1997). Thekey issueis
whetherthenextfriend'sinterestsarealigned with those ofthem inorchild. SeeDolin ex rel.
N D.v.r'f'r,22F.Supp.2d1343,1353(M .D.Fla.1998)(çsparentmaynotsueonbehalfofachild wheretheparent'sinterestsarenotalignedwiththoseofthechild''),aff'dsubnom.Dolinv.W , 207F.3d661(11thCir.2000).
S.B .hasno interestsantagonistic to S.M .'s,and hasno m otiveto serve ashisnextfriend otherthan to ensure thatS.M .receivesthe M edicaid benefitsto which he isentitled. S.M .'S
father,T.M .,isalso willingtoserveasS.M 'snextfriend. SeePX 788(DeclarationofT.M ., tiled on 01/31/2012,D.E.1121). Hisson hasbeen livingwith him sinceAugust,andT.M .'S onlyinterestinthislitigationistoprotecthisson.Id at!!1-8.IfforanyreasonS.B.isnotable
to continue asnextfriend forS.M .,lfind thatT.M .isan appropriate,substitute nextfriend for S.M .
37

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 38 of 153
(tçTPF'')andwhowasherpediatricianforabout16years,tobeS.M .'Sdoctor.S.B.
on 2/11/2010FinalTr.at1782:9-22. S.M .w ason M edipassand assigned to TPF on October1,2006.PX 582 at5. Sincethattim e,S.B.hasexperienced difficulty obtainingm edicalanddentalcareforS.M .
2. O n July 5,2007, S.B .received a letter from TPF,w hich stated that S.M .'SM edicaid had been canceled on June 30,2007. PX 583-2 at 15. B ecause S.M .w as only eleven m onths at the tim e of the sw itch,the cancellation w as in violation ofhisrightto tw elve m onths ofcontinuous eligibility. 16L;PX 583-2 at TPF002308;S.B .on 2/11/2010 FinalTr.at1787:1-2.
In response to the letter,S.B .called the M edicaid num berto inform the agency that S.M .'S benefits had been im properly canceled. She requested that S.M .'S M edicaid be reinstated. S.B . on 2/11/2010 Final Tr. at 1786:18-22. M edicaid retroactively restored S.M .'S eligibility, m aking it appear as if his benefitshad neverbeen canceled.PX 582 at5;St.Petery on 2/09/2010 FinalTr.at 1491:3-7.
4. S.M .w asagain on M edicaid and again assigned to TPF from A ugust1, 2007 through Septem ber30,2007. PX 582 at5;St.Petery on 2/09/2010FinalTr. at 1486:21 - 1487:5,1491:3-18. O n,O ctober 5,2007,S.B .received yetanother letterfrom TPF,inform ing herthatS.M .'SM edicaid eligibility w asterm inated on Septem ber 30, 2007. This cancelation w as tw o m onths after his M edicaid eligibility started on A ugust 1,2007 and constituted a violation of his rightto m onthsofcontinuouseligibility.PX 582 at5;St.Petery on 2/09/2010FinalTr.at 1486:21 - 1487:5,1491:3-18;1494:2-17;M ccorm ick on 8/12/2010 FinalTr.at 4132:24 - 4133:8;S.B .on 2/11/2010 FinalTr.at 1787:9 - 1788:1;PX 583-2 at TPF02295,TPF002310. O nce again,his eligibility w as retroactively restored. PX 582 at5;St.Petery on 2/09/2010 FinalTr.at 1494:14 - 1495:11. Contrary to defendants'suggestion,Ido notfind thatthecancellation w asvalid.
38

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 39 of 153
S.M .was not assigned to M edicaid from Septem ber 30,2007 until N ovem ber 1,2007.PX 582 at5.S.B .'SM edicaid eligibility resum ed on N ovem ber 1,2007,w hen hew asreassigned to TPF.1d.
6. S.M .w as scheduled to see D r.Sim m ons in Febnlary 2008 for his 18m onths w ell- child check-up. S.B .on 2/11/2010 FinalTr.at 1788:11 - 1789:14. Dr.Sim m ons'office told S.B .notto bring herson in forhisappointm entbecause S.M had been assigned orççsw itched''to aM edicaid 1-IM O,an insuranceplan that S.M .'Sdoctordid notaccept. S.B .on 2/11/2010 FinalTr.at 1788:11-1789:14;St. Petery on 12/10/2009 Final Tr. at 1389:17 1391: 25; see also PX 658 at Sim m ons000002.
7. In February of2008,som etim e afterher visitto D r.Sim m on's office, S.B . received a package from U niversal, alerting her of the change. S.B. on 2/11/2010 FinalTr.at 1805:8-16. S.B .called M edicaid to resolve the issue.
8. A n em ployee of M edicaid O ptions,w hich handled plan assignm ents forM edicaid in non-R eform counties,noted in S.M .'S records thatS.B received a letter in February stating that S.M .w as sw itched to another M edicaid plan and called to change the plan back to M edipass. PX 583-2 at TPF02312; S.B .on 2/l1/2010 Final Tr. at 1790:4-25. A FM M IS print screen show s S.M . w as assigned to a M edicaid 14M 0 from Febnlary 1,2008 through M arch 31,2008. M ccorm ick on 8/12/2010 FinalTr.at4136:25 - 4138:21;PX 583-2 atTPF02319.
The M edicaid O ptions em ployee also noted thatM edicaid sent S.B .a letter,w hich gave her the option to choose a M edicaid plan but S.M .w as autoassigned to a M edicaid 11M 0 w hen S.B .allegedly failed to m ake a choice. PX 583-2 at TPF02312-13. There is no evidence,how ever,that such a letter w as actually sent. S.B .did notreceive a selection letter from M edicaid or any other
39

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 40 of 153
state agency priorto February of2008. S.B.on 2/11/2010 FinalTr.at1789:15 1790:3 11
.
10. S.M .w as not sw itched back to M edipass untilM arch 31,2008. S.B . on 2/11/2010 Final Tr. at 1790:23-25, 1804:24 - 1805:7, 1817:18 - 1818:7. D uring thatinterval,S.B .w asnotable to take herson to see D r.Sim m ons and w as concerned aboutherson'shealth. S.B .on 2/11/2010 FinalTr.at1791:9 - 1792:7.
On another occasion,D r.Sim m ons referred S.M .to a laboratory fora lead blood screening test. S.B .w as not able to get her son's blood tested for exposure to lead because it w ould have taken her an hour and a halfeach w ay, traveling by bus,to getto the laboratory'slocation. S.B .on 2/11/2010 FinalTr.at 1793:17 - 1794:11,1798:19 - 1799:17;S.B.on 12/06/2011Rough Tr.at 111,143, 146. She also m issed appointm ents w ith D r.Sim m ons because oftransportation problem s. 1d.at 145-46. She did notknow she w as entitled to free transportation through M edicaid.1d.at144-46.
2. L .C .
12. L.C .w as hospitalized for seizures w hen he w as about 15 m onths o1d and had seizures laterin life as w ell. PX 655 atTridas Center000008;PX 651at Peace River000016. L.C .m oved into S.C .'S hom e asa fosterchild w hen he w as tw o years,eightm onthsold,and S.C.later adopted him . S.C .on 1/11/2010 Final
11D efendantssuggestthatS.B.did notreceive the letterbecause shefailed to update her m ailing addressw ith A H CA . See Defs.Corrected Proposed FindingsofFactand Conclusionsof Law at74. S.B.testified thatshemoved severaltim esduringthefirsttwo yearsofS.B.'Slife. S.B.on 2/11/2010 FinalTr.at 1783:12 - 1784:7. S.B .adm itted thatshe updated heraddress withTPF butneverinformedAHCA.Duringthattime,S.B.receivedcorrespondencefrom TPF ather grandm other's address.S.B.on 2/11/2010 Final Tr.at 1784:15-18. H er grandm other would contactherifshe received any m ail. S.B.on 2/11/2010 FinalTr.at1784:19-21. Despite thistestim ony,1stillfind thatdefendants are responsible forthe sw itch. First,defendantshave not subm itted proofthatthe selection letter was actually sentto S.B . Second,S.B .would not have had to apply forreinstatementorselecta M edicaid plan ifM edicaid did notimproperly term inate S.M .'S benefits shortof the required 12 m onths of continuous eligibility. S.B.on 2/11/2010 FinalTr.at1821:23- 1822:7.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 41 of 153
Tr.at 1319:21- 1320:1;1322:1-3. A sa child adopted through fostercare,L.C.is eligible forM edicaid regardlessofincom e.1d.at1322:4-9.
13. ln A ugustof2004,w hen L.C .w as about7 yearsold,S.C .took him to be evaluated by a developm entalpediatrician because ofhisdevelopm entaldelays and anxiety,w hich m anifested itself in panic attacks and other extrem e behavior. 1d.at 1327:13 - 1329:15;PX 655 atTridas Centeroooool,000003,000007. The doctor recom m ended intense psychologicalservices. S.C .on 1/11/2010 FinalTr. at1331:21- 1332:1;PX 655 atTridasCenterooool1.
14. Based on herdoctor'srecom m endation,S.C.took L.C .to seeElizabeth Craig, w ho had an extensive history w orking w ith children w ith attachm ent disorder. S.C .on 1/11/2010 FinalTr.at1332:19 - 1333:10. M s.Craig,w ho does nottake M edicaid,recom m ended w eekly play therapy. PX 652 atC raig000105; S.C .on 1/11/2010 FinalTr.at 1336:20-21. In Septem ber of2004,S.C .took her son to PRC ,the exclusive M edicaid m entalhealth provider in her area. 1d.at 1336:22 - 1338:12;PX 651 atPeace River 000009. Peace R iver,how ever,w as notableprovideplay therapy,and wasnotableto providew eekly therapy. 1d.at 1338:13-17;1338:20 - 1341:25;PX 740 atD efendants011707.
15. Peace R iverreferred S.C.to D r.Jackie R eycraftfor therapy. S.C .on 1/11/2010 FinalTr.at 1342:19 - 1343:25. D r.R eycraftinform ed S.C .thatshew as leaving Peace R iver because,am ong other things, she had a case load of l10 patients. 1d. at47-48. A caseload ofthism agnitude isunreasonable and w ould hinder a therapist from proving adequate care to children. Sarkis on 1/19/2012 Rough Tr.at48-49,52-53,79-80.
16. D r.R eycraftalso stated that she could not deliver w eekly therapy to 1d. D r.Reycraftdeveloped a treatm entplan offering tw ice m onthly therapy from Christy B ishop.1d.at 1333,1345. Because herson could notgetthe carehe needed atPeace R iver,L .C .paid forherson to attend w eekly play therapy sessions
4 1

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 42 of 153
w ith M s.Craig. 1d.at 1345:18 - 1346:6. A lthough these sum s w ere ultim ately reim bursed,M edicaid could notprovideaccessto the carethatL.C .needed.
17. ln 2005,a developm entalpediatrician recom m ended that L.C .begin taking certain m edications. D r.H elen H ubbard m anaged L.C .'Sm edication butin 2007 w as unw illing to continue m onitoring the drugs. 1d.at 1355:2 - 1357:24. There is no evidence to supportthatD r.H ubbard's unw illingness w as related to the fact that S.C .w as on M edicaid. S.C .returned to Peace River because she needed a psychiatristto prescribe and m onitor L .C.'S m edications,one of which w as D epakote. 1d. at 1357:12-15; PX 651 at Peace R iver 000053; S.C. on
1/11/2010 FinalTr.at 1357:16-18;PX 651 atPeace River 000054 (sçcurrent M entalHealth M edications''includefsDepakote 500m .g.''). S.C.informed PRC
that she needed a psychiatrist to m anage her son's m edication because abrupt rem oval from D epakote could cause seizures. S.C . on 1/11/2010 Final Tr.at 1357:19-24. PR C 'S records do not retlect that S.C .ever advised PR C that the m atterw asurgent. Instead,PRC characterized the appointm entas a routine visit. PX 651atPeaceR iver000053-000056.
18. PRC required thatL.C .go through the intake process and be evaluated by a therapistw ho w ould then determ ine w hetherL.C .needed a psychiatrist. S.C. on 1/11/2010 FinalTr.at 1358:3-7. A s a result,PR C could notschedule L.C .for an appointm entfor a psychiatristfor a period oftw o m onths or m ore. 1d. This w aitw as reasonable because PRC w as not aw are ofthe urgency ofthe situation. See Testim ony ofD r.Sarkis,1/19/12 ES 13-14,62-64,66-70,72-78,80-83,86-87, 89-91,104.
19. U nw illing to w aittw o or m ore m onths for an appointm ent,S.C .paid D r. H ubbard out-of-pocket to m onitor her son's psychotropic m edications for abouttw o years. 1d.at 1358:17-25;1359:7-9. Eventually,M edicaid reim bursed S.C .fortheseout-of-pocketexpenses.1d.at1349:13-14.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 43 of 153
20. W ith the help ofD CF,S.C .w as later able to get her son in to see a psychiatrist atThe Sw eetC enter in W interH aven,w ho continued to m onitorhis m edications.1d.at1361:9 - 1362:23.
3. K .K .
21. A .D .is the m otherofK .K .,one ofthe nam ed plaintiffs in this action. A .D .on 8/12/2010 FinalTr.at4046:22 - 4047:13. K .K w asborn in D ecem berof 2003.Atthetime,A.D .w asliving inLehighA cres,nearFt.M yers.1d.at4049:89. K .K .becam e eligible forM edicaid atbirth. 1d.at4050:5-6.
22. A .D .periodically hasto renew her son'sM edicaid. To do so,she can either calland geta packetby m ailor t511outthe renew al form online.In either case,she hasto figure outhow to com plete the form on herow n. Som etim es she had to callfive tim esperday forassistance.16L at4069:5-11;4072:1-14.
One day w hile visiting the D CF office, A .D . m et a Stayw ell representative w ho discussed the benefits of M edipass over Stayw ell. 1d. at 4055:8-23. The representative follow ed A .D .to her car and convinced her that Stapvellhad more advantagesthan M edipass. f#.at4074. On January 1,2005, A .D. m ade a phone call to M edicaid to change K .K .'S M edicaid plan from M edipassto Staywell. 1d.at4074-4075. Thechangebecam eeffective on M arch 1,2005. D X 49 atD efendants 10106;D X 54 atD efendants 10125.
Less than tw o w eeks later, on M arch 9, 2005, K .K . w ent to the em ergency room atC ape C oralH ospitalbecause hisear started to bleed. The ER physician characterized K .K .'S ear as tinon-urgent'' and treated him . The ER physician consulted w ith D r.Liu,the EN T w ho previously put tubes in K .K .'S
ears,andnotedthatDr.JohnDonaldson,Dr.Liu'spartner,çtwlouldlseethepatient
tomorrow ...to suction outtheearcanalsand evaluatethe tympanicm embranes.''
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 44 of 153
K .K .wasdischarged from the hospitalin the early m orning hourson M arch 10, 2005.17X 56p CapeCoral6,9-10;A .D .on 8/12/2010 at4082-83.
25. Thatm orning,A .D .called and m ade an appointm entw ith the office of Dr.Liu. 1d.at4059:1-13. She soon received acallback,inform ing herthatthe doctorcould notsee K .K .because he w ason Stayw ell,one ofthe M edicaid plans thatthedoctordid notaccept.1d.at4059:14-21;4087:8-15.
26. A .D .called the Stayw ellrepresentative that convinced her to sw itch from M edipass to Stayw elland com plained thather currentdoctor did notaccept Stayw ell. 1d. at 4060:14-25. The Stayw ell representative referred her to a Stayw ell-affiliated EN T specialistin Sarasota. f#.at4059:22 - 4060:25;4061:1-6; 4081:3-7. A .D .did notow n a car atthe tim e and w as notable to go to Sarasota because itw as located an hourand 45 m inutes to tw o hours aw ay. 1d.at4061:l20.
D r.D onaldson agreed to see K .K .laterthatday,despite the insurance problem . PX 612 at K IQEL 00006;D onaldson D epo.D esig.at 78:18 - 80:18; 206:21-25. Because D r.D onaldson w as not a Stayw ell provider,he risked not getting reim bursed forhistreatm entofK.K . Beckeron 2/1/2012 Rough Tr.at30, 59-61. D r.D onaldson determ ined thatK .K .had pussrunning outofhis leftear,a displaced tube in hisrightear,and an effusion behind the m iddle ear. PX 6l2 atK K EL 00006.
28. ltlndthatdefendantsdidnotim properly sw itch A .D .from M edipassto Stayw elland thatA .D .requested the change. 1find,how ever,thatdefendantsdid not provide sufficient access to EN T specialists under the Stayw ell plan. Ear, nose, and throat diseases such as otitis m edia, sinusitis, and tonsillitis are frequently encountered illnesses within the pediatric population, and Staywell
44

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 45 of 153

should have had an EN T on its panelin a m etropolitan area such as Ft.M yers.

B

ecker on

2/1/2012

R

ough

Tr .

at27.12

29. Childrenonprivateinsurancewouldnotbesubjectedtothehardshipof
traveling to adifferentmetropolitan areato obtain routineENT care.13 u .atJ,8.

The m other of a child w ith private insurance w ould not have experienced such

difsculty in obtaining care.1d.at30-31. 30. D efendants also failed to infonu A .D .of her rights under M edicaid.

A .D .did not know that K .K .w as entitled to dental coverage through M edicaid

untilaftershebecam eaplaintiff.A .D .on 8/12/2010 FinalTr.at4063:13-21. She did notrealize,even afterreceiving a letter dated D ecem berlz,2007 from A H CA

regarding w ell-child check-ups,thatM edicaid covered dentalcare forA .D . 16L at

4064:11-2544106:17 - 4108:2;4066:13 - 4067:1;PX 612 atK 1V L00097. In N ovem ber of 2009,K .K 's doctor prescribed A dderallto treat his

attention hyperactivity disorder. D X 55C at A ssociates in Pediatrics000366-67.

A .D .on 1/25/2012 R ough Tr.at54. A .D .and K .K .'Spediatrician w entthrough a

processoftrialand errorlasting severalm onthsto find outw hatm edication and at

whatdosagew asm ostbenefcialforK .K. A.D .on 1/25/2012 at55-56;DX 55C at

A ssociates in Pediatrics 000278,295-96,300,322,324. Eventually,they settled

12Dr. M arieBeckerisaboardcertifiedotolaryngologistwhohasbeenin privatepractice since1995,treatingchildren andadultscoveredbyboth privateinsuranceandM edicaid.Becker on 2/1/2012 Rough Tr.at9-l0. 1find hercredible and knowledgeable and certify herasan
expertinotolaryngology. DefendantshaveobjectedtoDr.Beckerandtheotherwitnesseswho
have given experttestim ony asto thenam ed plaintiffs'lack ofadequateand prom ptcare.Ihave considered thesem otionsto excludetheexpertw itnesstestim ony and deny them aseach ofthese expertsiscompetenttotestify asanexpertbased onareview ofthemedicalrecordsandthetrial testimony. Further, 1 find their testim ony more credible than the conclusory opinion of
defendants'expert,M s.Catherine Sreckovich (who is a non-physician),regarding the care
affordedeachofthenam edplaintiffs. 13Defendantsproduced evidence,which showed thatStaywellhad EN T providersnear
Ft.M yerson itspanelasofM ay 2009,seeDX 65A .Thisevidence,however,isinsufticientto establish thatStaywellhad available ENT specialiston itspanelin 2005,thetime thatK.K. needed m edicalattention.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 46 of 153
on Vyvance atabout50 m .g.a day. A .D.on 1/25/2012 Rough Tr.at56. Atthat dosage,K .K .,who failed kindergarten the yearbefore,becam e a straightA student. 1tL at56-57.
32. K .K .w asnoton M edicaid forafew m onthsin late2010through early 201lbecauseA .D .did notmeetthe econom ic eligibility requirem entsduring that
time. 1d.at70. A.D.lostherjob inJanuaryof2011andin FebruaryK.K.was,
once again,eligibleM edicaid.1d.at70. M edicaid asked A .D .to selectaplan for K .K .and she chose M edipass. 1d.at 71-72. K .K .,how ever,w as assigned to Stayw ell,w ithoutA .D .'S consent. 1d.at 58. A .D .did not know thatK .K w as assigned to Stayw ell.1d.at58.14
33. The result of the sw itch w as harm ful to K .K . Stayw ell denied the prescription for V yvance because it first required K .K . to fail on D extroam phetam ine,the key ingredient in A dderall. D X 55C at A ssociates in Pediatricsoooo76.
34. W hile appealing Stayw ell'sdenial,id.;A .D .on 1/25/2012 Rough Tr.at 57-59,the pediatrician putK .K .back on A dderallas a ççsubstitute''because itw as the only m edication that Stayw ell w ould approve. D X 55C at A ssociates in Pediatrics000076-77;A .D .on 1/25/2012 Rough Tr.at59-60,63. A fterK .K began taking Adderall,histeachercomplainedabouthisconductand hism otheralso saw a significantdeterioration in hisconduct. 1d at64-65;D X 55C atAssociatesin Pediatrics000076-77.
35. K .K .was changed back to M edipass, and began retaking V yvance aboutm id-M ay. A .D .on 1/25/2012 Rough Tr.at75. The doctorhad to increase thedosage ofV yvance to getitto w ork asithad before.1d.at65.
14 K .K . w as a1so sw itched on another occasion to a M edicaid HM O that K .K 's pediatrician'sofficedidnotaccept.A .D.on 1/25/2012RoughTr.at73.
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4. N athanielG orenno

36. Rita Gorentlo isthe m otherofN athanielGorentlo,one ofthe nam ed

plaintiffs in this action. Gorenflo on 5/18/2010 FinalTr.at2290:23 to 2291:2.

The Gorenfloslivein Palm

B each County .

1d.at2298:3-4.15

37. M s.G orenflo is a registered nurse who spent 18 years w orking in the

em ergency departm entatdifferenthospitalsin O hio and Florida. 16L at2289:19 2290:7;2290:11-13. She hasadopted seven children w ith specialhealth care needs w ho w ere in fostercare. 1d.at2291:3-6,2291:15-16;2292:1-8. A l1the children are enrolled in CM S and allare eligible for M edicaid regardless of the fam ily's incom e because they w ere adopted through foster care. 1d. at 2291:17-21;

2291:22-25. 38. N athaniel's birth m other w as on cocaine at the tim e N athaniel w as
bona. 16i at2293:16-21. H e laterdeveloped A ID S. 1d.at2293:20-22;2294:11l2. H e is developm entally delayed,hasm ultiple psychiatric issues,id.at2294:6l0, and sees a num ber of different m edical providers and specialists. 1d. at

2294:20-22. 39. In 2005,M s.Gorentlo was unable to obtain tim ely EN T care for
N athaniel. The incident began on July 13,2005,w hen M s.G orentlo called her

nurse coordinatoratCM S and said N athanielneeded to see an EN T physician right aw ay.1d.at2295:23 - 2296:23;PX 617 atN G CM S000756. M s.G orentlo called

CM S because shedid notknow ofany ENTSin Palm Beach County thataccepted

M edicaid otherthan through CM S. 1d.at2297:24 - 2298:4. 40. W hen M s.G orenflo called CM S on July 13,2005,to requestan ENT
appointm entforN athaniel,herson w as in pain. f#.at2299:2-23. M s.G orentlo

15M s Gorenflo hasagreed to allow hername and herchildren's namesto beused in .
theseproceedings.Id at2288:21-23.
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told CM S thather son was in pain and needed to be seen rightayvay.16 1#.at 2300:7-13. She explained thatherson could nottellherw here the pain w asbut

w ould ççscream and bang hishead''and putthewhole housein ççtotalchaos.''1d.at

2299:24 - 2300:6. 41. M s.Gorenflo wanted her son to be evaluated by the doctor quickly
because of his com prom ised im m une system and history of ear problem s and

chronic sinusitis.1d.at2311:24 - 2312:5;2294:17-19;2311:14-23.

42. M s.G orentlo w as inform ed thatthe nextavailable appointm entw asin

six m onths .

1d. at 2300:14-18.17 M s.G orentlo said a six-m onth w aitw as not

acceptable because N athaniel w as in pain and needed an EN T evaluation

im m ediately .

1d.at2302:10-20.18

A fternum erousphone calls stretching outover

severaldays,an EN T finally evaluated N athanielon July 18 - tive days after his

m other said he needed an im m ediate appointm ent. 1d. at 2303:13 2304:8; 2305:11 - 2306:4; 2310:4-8; 2310:15 - 2311:13; PX 617 at N G CM S00756.

16IfindM s. Gorenflo tobeacrediblewitnessandcredithertestim onythatherson was in pain and thatshe infonned CM S ofthe sam e when she called CM S and the EN T'S office in July of 2005 and asked for a prom pt appointm entforN athaniel. Typically,the person who spendsmosttime with thechild ism ostknowledgeable aboutwhetherthe child'sbehavioris norm al,andbecauseNathanielwasdevelopmentaldelayedandcouldnotexpressthrough words whetherhe w asin pain,w hathism othersaid abouthiscondition w asparticularly im portant.See
Beckeron 2/1/2012 Rough Tr.at15-16. Furthenuore,PaulaDorhout,anursing directorattheChildren M edicalService'soffice
thatservesPalm Beach Count,agreedthatM s.G orenflo isavery dutifulcaregiverand thatifshe
saidhersonwasinpain,M s.DorhoutwouldacceptM s.Gorenflo'sjudgment.SeeDorhouton
4/4/20l1Rough Tr.at3,144. 17The July 14 2005 entry in theCM S nursing notes,w hich indicatesthatM s.G orenflo
called on July 13 and asked foran ENT appointmentforNathanielASAP,doesnOtsay M s. Gorenflo w asoffered an appointm entin six m onths. H ow ever,the notesare incom plete and in
factthereisa 16or17m onth gap atonepointbetweenentrieseven though M s.Gorentlonever wentthatlong w ithouttaking N athanielto a CM S clinic. Gorenflo on 5/18/2010 FinalTr.at
2300:23- 2302:7;PX 617 atN G CM S 000756. 18M s Gorentloalsocall-ed CM S in Februaryof2008to seehow longthewaitwould be
.
foranotherofherchildren to getinto a CM S EN T clinic;the w aitw asfourm onths.'' Gorenflo ON 5/18/2010 FinalTr.at2315:3- 2316:5. M s.Dorhout,theCM S nursing supervisorin Palm Beach County,testified thatin Aprilof2011 the waiting listfor the CM S ENT clinic was
probablytwo to threem onths.D orhouton 4/4/2011Rough Tr.at52.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 49 of 153
Properprocedure dictatesthata child w ho is in a greatdealofpain in hisearm ust see an EN T physician im m ediately.SeeD orhouton 4/4/2011Rough Tr.at145.
43. N athaniel has a history of chronic sinusitis, as evidenced by his m edicalrecords. Beckeron 2/1/2012 R ough Tr.at12;D X 43 N .G . CM S000717,
-
731,and 734. Thathistory m akesitm ore likely hew illsufferfrom sinusitisagain. Becker on 2/1/2012 R ough Tr. at B ecause N athaniel has A ID S,he w as im m une-com prom ised and susceptible to infection. 1d.at15. The factthathe had A ID S m ade it im portant that he be seen and diagnosed quickly, before any infection could spread. 1d. at 14-15, 19-21. Pain is one of the key signs an infection is progressing. 1d.at 15. G iven his sym ptom s,the factthathe w as in pain,and suffered from A ID S,N athanielshould have been evaluated by an EN T physician the day his m otherrequested an appointm entoratthe lateston the next day.1d.atl9-21.
44. A patient w ith the sam e sym ptom s and private insurance w ould have been seen by an EN T eitherthe sam e day oratthe latest,the follow ing day. 1d.at 21-22 19
.
45. N athaniel experienced m uch greater difficulty accessing care than w ould a sim ilarly situated child w ith private insurance. 1d. at 23. H aving N athanielw ait5ve days foran EN T evaluation w astdunreasonable.'' 1d.at25. H e should have received an EN T evaluation the sam e day hism othercalled oratthe very the latest,the nextday.1d.at25.

19In

her

practice ,

D

r.Becker

m

akes

sure

to

see

a

child

in

pain

the

sam

e

day

or

at the

latestthenextday,regardlessofwhetherthechild isHlV positiveorhasAIDS.Id at22. The

factthatachild isHIV positiveorhasAIDS addstotheimportanceofseeingthechild quickly.

Id.at22. She also m akes sure,ifshe receive a callabouta child in pain on aFriday,to seethe

child thatday so thechild doesnothaveto w aituntilM onday foran appointm ent.1d.at22-23.

49

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 50 of 153
5. J.S.
46. K .S.isthe m otherand nextfriend ofJ.S.,one ofthenam ed plaintiffsin this action and lives in Jupiter. K .S. on 5/17/2010 Final Tr. at 1953:24-25,* 1955:23- 1956:5.J.S.hasbeen onM edicaidsincebirth.1d.at1957:13-14.
47. J.S. has variable im m une deficiency, w hich m eans she lacks an im m une system and can getsick very easily.1d.at1958:11-19;1958:23 - 1959:2. J.S.sees D r.G ary K leiner atthe U niversity ofM iam ifor herim m une deficiency. 1d. at 1959:16-21. D r. K leiner restricts patients w ith M edicaid to Thursday appointm entsonly. 1d.at 1959:22 - 1960:4. D r.K leiner,how ever,seespatients w ith private insurance on otherdaysofthe w eek.1d.at1960:13-18. A ttim es,J.S. hashad to w aitup to a m onth foran appointm ent. 1d.at1960:19-21.
48. J.S.hasbroken her ankle on severaloccasions. The tirsttim e w as in 2000. 1d.at 1961:10-13. K .S.took herdaughterto JupiterM edicalCenter,w here they splinted herankle,and referred herto an orthopedist. 1d.at1961:10-19. The orthopedistdid nottake M edicaid. Forseveraldays,K .S.called orthopedistsin the phonebook to find oneto treatJ.S.1d. at1961:20- 1962:5.
49. J.S.injured herankle asecond timein 2003 on aSaturday when she
w as seven yearold and slipped on som e w aterin a W irm D ixie. 1d.at 1962:6-13; PX 743 atJM C 000152. Shetook herdaughterto theJupiterM edicalCenteragain, and again,they puton a splint,gave hercrutches,and referred herto an orthopedist for follow -up care. 1d. at 1962:14-21; PX 743at JM C000147-157. That orthopedistagreed to see her daughterbutonly ifshe paid for the visit. K .S.on 5/17/2010 FinalTr.at 1962:19 - 1963:4. The initialvisitalone w as going to cost
about$300.1d.
50. K .S. then called a 1-800 M edicaid num ber for suggestions for an orthopedist.1d.at 1965:17-22. She called allthe doctors shew asgiven butno one
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 51 of 153
w ould agree to treatherdaughterbecause she w as on M edicaid. 1d.at 1965:23 1966:5;1967:10-13. She also called orthopedists listed in the Y ellow Pages for Palm Beach County withoutsuccess.1d.at1966:6-18;1967:10-13.Shecalled St. M ary'sH ospitalforareferralbutcouldnottsnd an orthopedistthatw ayeither.1d. at 1966:19-22. N one of the orthopedists she called w ould agree to treat her daughteras a M edicaid patient. 1d.at 1967:17-19;1996:22 - 1997:13;2023:18 2024:1.
51. Finally,w ith help from a law firm ,she obtained an appointm entw ith an orthopedist.1d.at1967:20 - 1968:7;2024:2-3.
52. In2007,J.S.injuredherwrist,K.S.on5/17/2010FinalTr.at1971:1-6;
2001:4-12,and w asgiven a splintin the E.R .and referred to an orthopedist.1d.at 1971:7-13. K .S.called the orthopedistthatthe em ergency room recom m ended,but shew asunableto getan appointm ent,despiteherdiligentefforts. 1d.at1971:141973:6.
Eventually,theU niversity ofM iam igave K .S.som e suggestionsforan orthopedic doctor.1d.at 1973:7-14. Tw o ofthose doctorstold herthatthey could notsee J.S.fora couple ofw eeks,even though K .S.explained thatherdaughter had a broken w rist and needed follow -up care. 1d. at 1973:15-16; 1973:22 1974:3. Thethird doctor,D r.A ileen D anko,agreed to see J.S.three daysaftershe broke her w rist. 1d. at 1973:20-21; 1974:14 1975:9; 2023:1-3; PX 746 at DANKO 000001to000020.Dr.Danko'soffceisin CoralSpringsand isaboutan hour and a halfdrive each w ay from K .S.'shom e.20 Id.at 1975:10-15. K .S.took herdaughterto see D r.D anko aboutfourto five tim es.1d.at1975:16-18.
20Itakejudicialnoticeofthedistanceandpurporteddrivingtime,accordingtoGoogle andMapouest,from JupitertoDr.Danko'soffice.D.E.1127,1136,and 1137. dûA Courtmay takejudicialnotice ofthe driving distance between two pointslocated in the record using
m apping servicesw hose accuracy cannotreasonably bequestioned.'' United Statesv.W illiams,
476F.Supp.2d1368,1378(M .D.Fla.2007)(citingFed.R.Evid.201(b);Gordonv.fewistown
5 1

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 52 of 153
54. The dentist,w ho used to treatJ.S.and billM edicaid forhertreatm ent, refused to continue seeing herw hen she turned 14. 1d.at1976:25 - 1977:5. K .S. calledanumberofdentiststryingto tlnd adentistwhow ould acceptM edicaidand treather,butcould notfind a M edicaid dentist. 1d.at 1977:6-11. Eventually, J.S.'Sform erdentistagreedto continueseeing her.
To m aintain J.S.'S M edicaid,K .S.has to go through a recertitication processevery six m onths. 16L at 1977:14 to 1987:4. W hen shehastried to callthe M edicaid office,she had difficulty getting through because the line w asbusy. 1d. at 1978:5-17.
6. N .V .
N .V .w asborn in Febnlary of2004,in N ew Jersey. K .V .on 8/13/2010 Final Tr.at 4228:16-17. N .V .suffers from hydrocephalus and w as ultim ately diagnosed w ith Shw achm an D iam ond Syndrom e, w hich causes pancreatic insuffciency. 1d.at4229:6-20;4243:3-9. Propernutrition is therefore criticalto N .V .'Shealth.16L at4242:23 - 4243:2.
57. K .V .applied forM edicaid forN .V .while the fam ily w asstillresiding in N ew Jersey. 1d.at 4230:3-16. N .V .is disabled,by social security standards, andthusentitledtoreceiveM edicaid.16L
58. K .V .and her fam ily m oved to Florida in 2005. 1d. at 4246:22 4247:1. W hen N .V .w as aboutthree,he developed t00th decay,w hich he isprone to aspartofShw achm an D iam ond Syndrom e.1d.at4243:17-25.
59. K .V .took N .V .to D r.Charles M .Robbins,w ho treated N .V .for his t00th decay and adm inistered hiscleaningsfrom January to Septem ber of2007. 1d.at 4236:18-20. In Septem ber of 2007,however,Dr.Robbins advised that
Hosp.,272F.Supp.2d393,429(M .D.Pa.2003),.Richardv.BellAtl.Corp.,209F.Supp.2d23, 27n.2 (D.D.C.2002:. Boththedistanceanddrivingtimearefartherifonestartsfrom K.S.'S
actualhom e address,notsim ply from Jupiter. 52

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 53 of 153
becauseN V .needed caps,hewould no longertreathim .1d.at4238:18-22.21 or. .
Robbins further explained that ifN .V .losta cap,M edicaid w ould notpay for a replacem ent;thus,itw ould be ççvery hard''Sito find som eone who w illaccept M edicaid to do thatw ork.''1d.at4278:11-23.
60. U sing the M edicaid handbook,K .V .m ade calls to m ultiple ofscesbut could nottlnd a dentistin her area w illing to treatN .V . 1d.at4240:10-16. She said nothing aboutN .V .'S com plex m edicalcondition;she did,how ever,identify M edicaid asthe form ofpaym ent.1d.at4241:13-16.
61. U ltim ately,she w as referred to D r.H ow ard Schneider w ho is located office is tw o hours from herhom e. 1d.at4231:11-16;4242:8-19.,4243:22-25. A m onth later,N .V .had hisflrstappointm entw ith D r.Schneider. 1d.at4242:13-17; PX 673. By thistim e,N .V .'S appetite had dim inished because ofthe t00th decay to thepointthathew asonly drirlking m ilk. 1é at4243:15-19. Dr.Schneiderwas the only dentistK .V .could fnd w ho w as w illing to treatN .V . 1d.at4279:7-10; 4279:18-25. N .V .continuesto see D r.Schneider. 1d.at4231:11-20. K .V .takes N .V.to seeDr.Schneiderfourtimesayeardueto hisproclivity tot00th decay.1d. at4243:22-25.
62. ln the fallof 2011,N .V .'S neurosurgeon,D r.O livera,referred him to see a neuropsychologistafterN .V .began to experience difficulty com prehending in school. K .V .on 2/1/2012 Rough Tr.at73,75. Dr.Oliveraexplained to K .V . that learning problem s are a com m on issue for children w ith hydrocephalus and recom m ended thatN .V .be evaluated by a neuropsychologistbefore the startofthe schoolyear.1d.
21Though D r. Robbins'notesincludeanotationthathedoesnotdoiçwhite''fillings,PX 672,K .V .recalled the only reason D r.Robbins told her for refusing to treat N .V .was that M edicaid w ould notpay for a second cap in the eventthe child lostone. Id at4239:3-15. UltimatelyN.V .gotbothstainlessandwhitecaps.ftfat18-20.
53

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 54 of 153
63. D r. O livera referred N .V . to a neuropsychologist group w ith tw o offces:one in Orlando,nearN .V .'Shom e,and the otherin M elbourne. 1d.at7475. ln early Septem ber,K .V .attem pted to m ake an appointm ent,explaining that her son w as on M edicaid. 1d.at 74-75. The Orlando offce did nothave any available appointm ents and the M elbourne office could only offer an appointm ent in January w ith D r.Lyons. 1d.at 76-77. M oreover,D r.Lyons's office did not comm itto seeingN .V .in January,butinstructedK .V.to callback forconfrmation ofw hetherN .V .could be seen. 1d.at 76. K .V .called back to the office every w eek forthe nextsix w eeksto find outw hether or notD r.Lyons w ould agree to treatN .V . f#.at 77-78. D uring this period,K .V .asked both D r.Lyons and D r. O livera for a referral for a neuropsychologist w ho w ould accept M edicaid,but neither could provide one. 1d.at77. Finally,w ith assistance from D r.O livera, K .V .w as seen by D r.Lyons in N ovem ber of2011,abouttw o m onths afterN .V . firstsoughtan appointm ent.1d.at77-79.
J.W .
64. ln 2004 and until otherw ise specified, J.W . resided in Pensacola, Florida w ith his grandm other,E.W .,w ho serves as his nextfriend in this action. O n D ecem ber 21,2004,E.W .took J.W .to see his pediatrician because he w as com plaining ofa pain in histhigh. PX 629 atW hibbs 000008. The pediatrician ordered x-rays of his knee and fem ur,and found a tum or on J.W .'Sthigh. E.W . 6/16/2010 D epo.D esig.at 11:24 - 12:10.
65. Thepediatrician referredJ.W .toan oncologistattheN em oursHospital in Pensacola foran urgentconsult. The oncologistexam ined J.W .a few dayslater and,because itw as alm ostChristm as,agreed to letJ.W .go hom e forthe holiday. The oncologist began treatm ent im m ediately thereafter. PX 630 at
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 55 of 153

JW

CM

S000027 22 .

On

December27,2004,lesstjaan aweek jyom

thetim ewhen

J.W .w entto hispediatrician,the oncologistoperated on and rem oved a tum or

from hisleftthigh. PX 630 atJW CM S000031;E.W .6/16/2010 D epo.Desig.at

12:11 - 14:14. 66. O n July 20, 2005, E.W . took J.W . to his previously scheduled
appointm entatN em oursto see Dr.Chatchaw in Assanasen. EW 6/16/2010 D ep. D esig.at 134:1 - 135:7. J.W .com plained ofpain in hisneck thatresem bled the pain in his thigh six m onths earlier. E.W .6/16/2010 D epo.D esig.at 19:22 20:17. D r.A ssanasen suspected a recurrence ofhis tum or,saying the com plaints of tineck pain''t<w ere highly concerning of new disease,''PX 634 at N em ours 000145,and w anted to perform an im aging study,either a C T scan oran M RI,to

see ifthetum orhad returned.1d.at000157. The sam e day,D r.A ssanasen'soffice soughtauthorization from H ealth
Easeto perform an im aging study. 1d.at000145;000157. A tthattim e,J.W .w as on M edicaid,and assigned to H ealth Ease,a M edicaid l1M O . O n A ugust2,the requestw as stillpending and D r.A ssanasen personally called the 14M 0 to try to
expedite authorization forthe CT scan. 1d.at000157 (8/2/2005 note at 11:45 a.m.). Authorization wasstilldelayed. Nemours000145 (ççdiftsculty obtaining authorization for imaging studies'');1d.at 000065 (içdifficulty abtaining (sicq imaging studies'');E.W .on 6/16/2010 Depo.Desig.at26:22-25;31:6-19436:17-

24;137:2-24;195:5-22. 68. E.W .and the rest of the fam ily w ere deeply concerned,PX 634 at
N em ours 000157, as J.W .'S pain w as getting w orse. E .W .on 6/16/2010 D epo. D esig.at27:6 - 28:15. E.W .called D r.A ssanasen'soffice every day to see ifhe

22 The adm ission history states the x-ray w as m ade on 10/22/045PX 630 atJW CM S .- .
000027,butthatisclearly atypographicalerrorbecausethex-raywasdoneon 12/22/04.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 56 of 153
had been ableto obtain authorization foran im aging study. 1d.at27:25 - 28:15;
29:9-20. 69. Partofthe delay in approving the im agining study apparently resulted
from the factthatthe M edicaid 11M 0 had sw itched J.W .'S prim ary care provider
w ithoutthe know ledge orconsentofE .W . J.W .'Sprim ary care providerw as Dr.
W illiam J.W hibbs, PX 629 at W hibbs 000008;PX 630 at JW CM S 000003; E.W .6/16/2010 D epo.D esig.at 46:16 - 47:8,but he sw itched to Dr.Patrick
M urray. E.W .6/16/2010 D epo.D esig.at49:23 - 50:23. 70. A spartofthe process ofgetting H ea1th Ease to approve the im agining
study to see if the tum or had spread to J.W .'S neck,E.W .had took J.W .to be
evaluated by D r.M urray on A ugust 10,2005. PX 632 atM urray 00001-3;E.W . 6/16/2010 D epo.D esig.at51:21 - 52:16. Dr.M urray,again,recom m ended the
C .T.scan for J.W . The study w as finally com pleted on A ugust 24,about Gve
w eeks after D r. A ssanasen's offce initially sought authorization from the insurance com pany.23 PX 634 atN em ours000219-22.
23Defendantssuggestthatthedelay inauthorization wasduetothefactthatDr.M urray, w ho w asresponsible forarranging and approving specialistcare w asnotcontacted untilA ugust 10. See Defs.'Corrected Proposed FindingsofFactand ConclusionsofLaw at87-88. E.W . testified that Dr.Assanasen informed her that he would handle the authorization. E.W . 6/16/2010Depo.Desig.at136:15- 138:12.Shestatedthatsherelied onDr.Assanasenbecause
sheStfiguredthathe'dknow morethan(sheldidaboutwhototalkto,sogshejleftituptohim.''
Additionally, J.W .'S PCP was sw itched to D r.M urray on August 1,2005,w ithout E.W .'S consent. Id at46:16 - 47:8. lfind thatE.W .reasonably relied on Dr.Assanasen to obtain authorization fortheC .T.scan. lfurtherfind thatE.W .did notcontribute to the delay ofthe CT scan by notcontacting Dr.M urray.
Defendantsalso suggestthattheCT scan wasnoturgentbecauseDr.M urray noted that
%ûaHeating pad (was)a1lthatisusually needed to make (thepain inJ.W .'Snecklgo away.''
D efs.'Corrected Proposed Findings ofFactand ConclusionsofLaw at88. Thatthepain could be treated w ith a heating pad does not negate the fact thatthe scan w as urgentto determ ine whetherJ.W .'Scancerhad retunw d. ltind thatthefiveweekperiod ittook to authorizetheCT scan constituted an unreasonable delay. A child with private insurance w hose physician ordered an imaging testbecause he suspected the child had atumorwould likely be able to obtain an im aging study w ithin a day or tw o,and in no eventw ould have to w ait m ore than a w eek.
56

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 57 of 153
The study revealed that the tum or had spread to E .W .'S neck and caused ççsignificantbony disruption and tum orinfiltration to the spinalcanal.'' PX 634 atN em ours 000143. tt-l-he site ofthis new lesion w as highly concerning for cervicalinstability asw ellasrisk ofspinalcord depression ifthem assw asallow ed to spread.'' PX 634 atN em ours 000145. J.W .w as Stem ergently adm itted''for evaluation by both oncology and pediatrics. 1d. The doctors began treating J.W . w ith chem otherapy and placed him in a Philadelphia collarto stabilize his neck. 1d.at000149.
H is oncologist w anted to adm inister the chem otherapeutic agents through an infusaportbecause the agents are caustic and could burn his skin,but
dueto delay in receiving approval,thisw asnotdone. 1d.at000146 (fdtherapeutic agentswhich canifextravasated intoperipheralskin causesignificantburns''l;id. at000150 (11Thechemotherapy wasgiven through aperipheralvein,aswehave
not yet received approval from H ea1th Ease to have a surgical consultation for
Port-A-cath placement.'') The doctors began adm inistering the chemotherapy
intravenously,through a syringe in late A ugust,so there w ould notbe a delay. 1d. at000149;E.W .6/16/2010 D epo.D esig.at57:5-15;58:2 - 59:15;149:8-19. The infusaport w as subsequently approved by the M edicaid l-IM O , and installed on Septem ber 15,2005,m ore than tw o w eeksafterthe chem otherapy began. PX 631 atSacred H eart000117.
J.W .w as latersw itched for a second tim e,thistim e from H ea1th Ease to distraightM edicaid''in aboutM arch of2007. E.W .6/16/2010 Depo.D esig.at 64:23 - 66:2;67:22 - 69:3. E.W .did notrequestthe sw itch and had to pay for J.W .'S psychologist herself because the psychologist w ould not accept ttstraight M edicaid.''1d.
Having to waittivew eeksforastudy w asbelow the standard ofcarc. M iddlem ason 1/31/2012 Rough Tr.at5-6.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 58 of 153

74. E .W .later had trouble obtaining dentalcare for J.W .and there w as a period ofseveralm onthsw hen hedid nothavedentalcare untilE.W .heard abouta new dentalclinic atSacred H eartH ospital. 1d.at74:2-24.
75. Stilllater,E .W .had trouble renew ing J.W .'SM edicaid and had to call the 800 num ber to try to fix the problem . Every tim e she called the 800 num ber she had to spend tw o hourson hold.1d.at76:16 - 77:15. J.W .w asnotenrolled in M edicaid foraboutsix w eeks before E .W .w as able to negotiate the bureaucracy and gethis M edicaid renew ed. 1d.at 79:2-9. She had to pay out ofpocket for J.W .'SA D ID m edicine becausehe could notgo w ithoutthe m ediation. Since she did nothavethe m oney herdaughterpaid forthe m edication forher. 1d.at80:24 81:25. E.W .has had repeated problem s w ith the M edicaid application. 1d.at 199:11-19.

B. FloridaM edicaidReimbursementRates(FeeforService)
76. A H CA is responsible for setting the reim bursem ent rates paid to

physicianswhoprovideM edicaidservices.SeeFla.Stat.j409.902.

A H CA sets M edicaid rates for physicians' services as a fraction of

M edicare rates,w hich are determ ined by the federalgovernm ent. See PX 128A ,

1/3/08 M em orandum from B .K idder to C .Snipes;PX 685,l1B 329 A H CA Bill

A nalysis at A H CA 00755762;PX 495,D r.Sam uelFlint Reportat 13-14. The

içM edicare fee schedule isderived and updated through a com plex processdone in

collaboration w ith

m edical provider groups as w ell as health policy

researchers.'' PX 495,FlintR eportat 13. That process results in the R esource

Based RelativeValue System (t(ItBRVS''),by which al1health careservicesare
assigned a code and a total relative value based on physician w ork, practice expense,and m alpractice expense. See PX 128A ;PX 685 at A H CA 00755762.

The federalgovemmentadjusts the M edicare rates foreach procedure code to
accountforgeographicalpractice costvariations. See PX 495,FlintR eportat 13.

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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 59 of 153
Even though the resulting M edicare rates Sihistorically have been below private
marketratesl,l''they areintended toçdprovidecurrent,fairrelativereimbursement ratesthrough ga1quasi-publicutility modeldriven by production costtheory and
tem pered by realw orld dataand clinician review .''1d.at13. 78. A H CA determ ines Florida M edicaid rates for physician services,
exceptforcertain codesthatare held apartfrom the norm albudgetary process,by applying aconversion factorto theM edicareratesso thattotalexpected outlaysfor M edicaid services fit w ithin the program 's appropriations from the Florida Legislature. See PX 128A ;PX 685. ln otherw ords,to achieve budget-neutrality, A H CA uses a conversion factor to convertM edicare's reim bursem ent rates into low er rates for use in the Florida M edicaid program . A s an internal State m em orandum explains:
The A gency determ ines physician fees using the M edicare R esource B ased Relative V alue System ....The relative value is m ultiplied by a conversion factorto determ inethe fee. The A gency forH ealth Care A dm inistration calculates a conversion factor to m aintain budget neutrality,unless the legislature provides additionalfunding for the physician services budget.
PX 128A .Seealso PX 685. 79. ln 2008,the conversion factorw as 34.0682 for M edicare,com pared
with just19.6332 forM edicaid. See PX 128A atAHCA 00981413;Snipeson
12/9/2009 FinalTr.at 357:7-23. G enerally speaking,this m eans thatM edicaid rates for children'sprim ary care servicesare about40% lessthan M edicare rates forcom parableservices,both in thefee-for-service and them anaged carecontexts.
SeePX 128A;PX 495,FlintReportat14 (comparing FloridaM edicaid ratesfor primarycareandspecialtycareservicestoM edicarerates).
80. ln discharging its responsibility to setphysician reim bursem entrates, A H CA doesnotconsiderw hetherthe reim bursem entrates are sufticientto ensure
59

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 60 of 153
thatchildren on M edicaid have accessto health care servicesequalto thatofother children in the generalpopulation. See Snipeson 12/9/2009 FinalTr.at360:9-20; K idderon 5/19/2010 FinalTr.at2492:14 - 2494:19. NordoesAHCA consider w hethertheratesare sufficientto ensure thatEPSDT servicesare m ade available w ith reasonable prom ptness. 1d. Throughout this litigation, defendants have disavow ed any legalresponsibility forensuring thathealth care servicesarem ade available to children on M edicaid,arguing that their duty is to provide paym ent w ith reasonableprom ptnessw hen such servicesarerendered. See,e.g.,D .E.548-3
(Def.M ot.forSumm .J.at5).
81. A H C A has not conducted studies as to w hether physicians' fees are sufGcientto com ply w ith the law . See, e.g., Snipes on 12/9/2009 Final Tr.at
360:21- 362:23.See also Kidderon 5/19/10 FinalTr.at2649:2-18 (AHCA has
notconducted any studiessincethatreferenced in a 2003 LBR stating thatA H CA
hadççfoundcriticalshortagesofM edicaidparticipatingphysiciansinthestate.'').
82.Although certain codes for office-based and preventative health care visits are held outside the ççbudgetneutrality''and conversion factor analysis,an overw helm ing num berofcodesare not. See W illiam son 10/17/201lR ough Tr.at 133-134;Kidderon 5/19/2010 FinalTr.at2502:5-14;DX 470. Even forthose codes,trialtestim ony show s that current Florida reim bursem ent for M edicaid is substantially below the levelprovided for M edicare reim bursem ent for the sam e offce-based services that are the m ostcom m only billed codes. See K idder on 5/19/2010 FinalTr.at2497:16- 2499:1.221.Plaintiffspresentedcredibleevidence thatforareasin Florida outside ofM iam iand Ft.Lauderdale,office-based services underM edicaid forprim ary care physicians serving children are compensated at ratesthatform ostcodesarelessthanhalfoftheM edicaid rate.SeePX 781,Louis
St.PeteryDemonstrativeExhibitA.223.Thecostofliving adjustmentstoM iami
and Ft.Lauderdale M edicare rates are higher in those areas,w hereas M edicaid
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reim bursem entisthesam estatew ide.Thus,thedifferentialbetweenM edicaid and

M edicare reimbursem entis greater in the M iam iand Ft.Lauderdale areas,w ith

M edicaid paying an even lowerpercentage ofM edicarereim bursem ent. See PX

780(M edicareRatesl;PX 781(M edicaidRates).
83.M edicaid reim bursem ent in Florida is even less than levels of private

reim bursem ent program s. A ndrew A gw unobi, form er Secretary of A H C A ,

acknowledgedthatttonethingisveryclear:(pjrovidersareingeneralundep aidin
contrast to com m ercial insurance and M edicaid.'' PX 126a at 6. A num ber of

prim ary care providers testified that M edicaid reim bursem ent is substantially

below private insurer reim bursem ent for the sam e procedures in the sam e

geographicalareas.

84. The difference betw een M edicaid reim bursem ent and private

reim bursem entisalso true forspecialists. 85.Prim ary carefeeswereincreased in 2000by atotalof$1.8 m illion for3

office visitcodes;in 2002,the Florida legislature authorized a 4% increase foral1

providers treating children. N o other increases for prim ary care providers for

children have occurred since 2000.24

PX

128A

.

Rather ,

in

O

ctoberof2008,the

legislature cutby one-third from $3 to $2,the monthly perchild feepaid prim ary

care providers participating in the M edipass system for m anaging the care

provided to children on M edicaid. St.Petery on 12/10/2009 FinalTr.at625:11-

15;W illiam son 10/17/2011Rough Tr.at141.

86. Certain specialists received an increase in 2004 of 24% for treating

children on M edicaid. SeePX 128A. Thisistheonly adjustmentin nearly 10

24

M

inor

budget neutral changes

have

been

m ade ,

both

increases

and

decreases, in

reim bursem entrates for individualcodesbased on the alm ualResources Based Relative V alue

System adjustments.

6 1

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 62 of 153
years, and it leaves specialist reim bursem ent substantially below the current M edicarelevelsforoffce-basedservices.
87.The difference betw een M edicaid reimbursem entlevels and those for M edicare w illlikely increase in com ing yearsasM edicare reim bursem entaccounts for cost-of-living changes, while Florida's M edicaid program does not. See W illiam son 10/17/2011R ough Tr.at131.
88.Florida's M edicaid reim bursem entlevelwas in the lowestquintile of states in the U nited States as of2003 and ithas continued to decline relative to otherstates. Flinton 8/5/2010 FinalTr.at3521:2-20.
89.In LBR S over a num ber of years,A H CA has requested increases in M edicaid reim bursem ent rates. These LB RS included an increase in the com pensation paid for healthy kid check-ups as w ellas for specialist care. A s explained by Carlton Snipes,form erDeputy Secretary ofM edicaid and M edicaid
Director for AHCA,the agency singled out4 specialty areas (dermatologists, neurologists, neurosurgeons, and orthopedists) for modest fee increases, not
because these w ere the only areas in w hich an increase w asneeded,butin hopes that a m odest request w ould be m ore politically acceptable. N one of these proposed increasesw ere enacted. The LBRS from A H C A m ade in each legislative year from the 2005-2006 legislative session through the 2009-2010 legislative session called foran increase in child-health check-up fees. PX 92-96;PX 702703;PX 734. ln addition,A H CA proposed increasesin the 2008-2009 and 2009-
2010budgetsof40% forfourspecialtyareas.Those,too,wererejectedeachyear.
PX 89-90;PX 727;Snipes on 12/9/2009 FinalTr.at405:21 - 406:14. Finally,a $2 feeproposalmadeto incentivizephysiciansto collectleadbloodspecimenswas also m ade butfailed to pass each year for each legislative year from 2005-2006 through 2009-2010. PX 97-98;PX 704-705.
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90.Defendants,and certain oftheirwitnesses,claim thatthese LBRSw ere predicated on unsupported information.SeeW illiam son 10/17/2011Rough Tr.at 163-164;K idder on 10/3/2011 R ough Tr.at 77. 1 find defendants'explanations unpersuasive. The LBR S w ere prepared by officials w ho recognized their obligation to beaccurateand honestin presenting the viewsoftheiragency to the govem orand the legislature. M oreover,these very w itnesses adm itted underoath asagency representativesduring theirdepositionsthattheLBRSweretruthfuland correct. A t trial,A H CA adm itted thatthey never told the legislature that their LBR S w ere w rong. In addition,the agency itself repeatedly acknow ledged the im portance ofreim bursem entincreases in subm issionsto the legislature. A s M r. Snipesacknow ledged,these requestsw ere indicative notofsim ply w anting to pay doctorsm orebutofa substantialproblem in currentreim bursem entlevels. Snipes on 12/9/2009 FinalTr.at380:4 - 381:10;Snipes on 1/8/2010 FinalTr.at 1243:623. See also PX 70l; PX 727. I tind the agency's ow n testim ony during depositionsregarding theirreasons forrequesting budgetincreasesisevidence that M edicaid reim bursem ent rates for prim ary and specialist care w ere inadequate.
See also Cockrum v.Calfano,475 F.Supp.1222,1227 n.1 (D.D.C.1979) (Secretary ofHea1th,Education and W elfare estopped from asserting claimants
responsibility for delays in administrative hearings by his adm issions elsewhere
thatthedelayproblem wasnationwideinscope.)
91.Experttestim ony attrialcom petently supported the proposition thatthe Florida M edicaid reim bursem entlevels are notsufficientforFlorida M edicaid to be a com petitive purchaser for m edicalservices. D r.Sam uelFlint,an A ssistant Professor of Public A ffairs at Indiana U niversity N orthw est w ho has published extensively on health econom ics,studied the health care m arket in Florida and concluded that éçthe Florida M edicaid program is nota com petitive purchaser for pediatric careatthistim e.'' PX 495,FlintReportat20.See also id.at2.
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92.D r.Flintm easured the difference in 2008 rates betw een M edicaid and M edicare for com m on office based procedure codes and concluded: tsFlorida M edicaid reim burses prim ary care physicians at slightly m ore than one-half of w hat M edicare pays,and specialists receive abouttw o-thirds ofM edicare rates.'' 1d.at2.See also PX 782.
93.D r.Flint also com pared Florida M edicaid rates against cost m easures, ûnding thatçta prim ary care practice com prised of 75% M edicaid patients could notrem ain solvent,even ifthe physician w orked forfree.'' PX 495,FlintR eportat 19.
94.D efendants' expertw itness,Catherine Sreckovich,adm ittedly did not conductany analysis ofthe adequacy ofFlorida reim bursem entrates. Sreckovich on 1/10/2012 Rough Tr.at140-141.
C . N ew borns,C ontinuous Eligibility,and Sw itching 1. C ontinuousE ligibility
95.Florida m ustprovide children under the age offive w ith 12 m onths of continuouseligibility and children betw een the agesof5 and 18 w ith six m onthsof continuous eligibility. PX 712 at FL-M ED 08336. Children should not lose eligibility w ithin thatperiod unless they m ove outofthe state or die. Lew is on 10/20/2010 FinalTr.at4654:10 - 4655:4. Every tim e a child is determ ined orredetenuined to be eligible for M edicaid,a new period of continuous eligibility begins.1d.at4661:11- 4662:1.
96.Thousands ofchildren lose theireligibility during theirtirstyear oflife w hen they should havecontinuouseligibility.
97.M s.Sreckovich's initialreportexam ined the period betw een 2004 and 2008 and focused on children under five years of age. The num bers in M s. Sreckovich's reportretlected only children w hose eligibility w as term inated and subsequently reinstated during a single fiscal year. Sreckovich on 1/12/2012
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R ough Tr. at 96-97. Those sgures are an underestim ate since,am ong other reasons, they exclude children w ho never regained eligibility. St. Petery on 2/2/2012 R ough Tr.at75-76.
98. A ccording to M s. Sreckovich's report, the M edicaid eligibility of children underone year ofage forM edicaid w asterm inated 2.1% to 2.9% ofthe
time. DX 607at!22.Becausethosechildrenhadtheireligibilityreinstated,they
could nothave died orm oved outofthe state. Sreckovich on 1/12/2012 Rough Tr. at 97. M s. Sreckovich acknow ledged that for children under one al1 those term inations w ere im proper. 1d. at 98. That m eans, based on the range of
improper terminations (2.1 to 2.9% ) and the number of children enrolled in
M edicaid,from 3,234 to 4,466 children w ere im properly term inated in one tiscal yearin violation oftheirrightto continuouseligibility.1d.at98-99.
99.Forchildren oneto fiveyearsofage,theireligibility w asterm inated 6.8
% to 7.0% ofthetime.DX 607at!22. M s.Sreckovich acknowledgedthatfor
these olderchildren,som e ofthose term inationsw ere im proper. 1d.97-98. In the case ofchildren ages one to tsve,this w ould be approxim ately 65,000 children in thecourse ofayear.1d.at93-96.
100.D CF acknow ledged thatforeach federalfiscalyearfrom 2003 to 2007,
atleast25,000(and sometimesmorethan31,000)childrenunderfiveyearsofage
had theireligibility tenuinated beforethey had received 12 m onthsofcontinuous eligibility. PX 737 atansw erto Interrogatory N o. B y D CF'S ow n adm ission, the percentage of children under five enrolled in M edicaid w hose M edicaid eligibility w as term inated ranged each year from approxim ately 3.5% to 5% . 1d. B ecause those figures do notinclude children w hose eligibility w as retroactively restored m aking itseem asifthey had notlosteligibility,they underestim atethe num berofim properterm inations. St.Petery on 12/10/2009 FinalTr.at593:19 594:19;PX 688.
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10l.M r.N athan Lew is,D CF bureau chief,acknow ledged a éitrem endous problem w ith the issue ofm aintaining continuous eligibility.'' H e stated thatttthe
problem wasthat(DCF'Sqeligibility system (didjnotautomatically know what
period ofcontinuous eligibility a child''w as entitled to so thatçtitis dependenton
staff'torecognizettthatthere'sachild ...whomaybeentitled to (aqcontinuous
period ofeligibility and should notbeterm inated.'' Lew ison 10/20/2010 FinalTr. at4656:2-4;4657:18 - 4658:22. M r.Lew is acknow ledged attrial:çç-l-hatproblem continuesto thisday.''1d.at4658:23-24.
102.D CF conducted a M edicaid eligibility quality controlanalysis in 2010 for federalC M S,and reported,in a Sept.20,2010 letter to the acting regional adm inistrator ofCM S,thatbased on a review of 1200 cases,7% ofcases existed tçin w hich the M edicaid coverage w as not provided through the entitlem ent period.'' D X 169a at2;Lew is on 10/20/2010 FinalTr.at4660:24 -4664:8. M r. Lew isconceded thatisnotan ççacceptable''errorrate. Lew ison 11/29/2011Rough Tr.at 16-17. Som e of these w rongful term inations resulted from a M edicaid category being closed w ithouta new one being sim ultaneously opened. Lew ison 10/20/2010 FinalTr.at4666:14-25.
103.D CF in the sam e analysisalso looked m ore generally atw hetherornot therehad been w rongfuldenialsofcoverage ortenuinationsand found that29% of the term inations for both children and adults w ere erroneous. D X 169a at 3-4; Lew ison 10/20/2010 FinalTr.at4667:16-25,4671:1-12. M r.Lew isknew ofno reason w hy adults or children w ould have different tenuination rates. 1d. at 4671:13-18.
104.D CF states ithasbeen trying since 2002 to fix the problem sthatcause som e children to be term inated in violation oftheirrightsto continuouseligibility. Poirier on 10/5/2011 Rough Tr.at 71-72. Foryears,D CF has been considering im plem enting a com puterized system for m onitoring continuous eligibility of
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M edicaid C hildren, but has not done so- even though there is no technical problem thatw ould preventD CF from instituting an autom atic system forensuring continuouseligibility.Lew ison 10/21/2010 FinalTr.at4800:10 - 4801:15.
105.D CF ofticials have repeatedly acknow ledged that young infants are som etim es im properly term inated. A D CF em ployee acknow ledged receiving iça string ofinquiries''from C arolM cc orm ick,the adm inistratorand nursing director of the Tallahassee Pediatric Foundation, concerning ççnew borns being cut from theirM edicaid coveragetoo soon.'' PX 345 atL-STP-R 000496. TheD C F w orker
toldhercolleagues,ttEachonethatlhavelookedintowasjustthat.''1d.Shesaid
she had received about 32 such inquiries in the last tw o m onths. 1d. See also M ccorm ick on 8/12/2010 FinalTr.at4123:13 - 4125:19. A notherD CF ofscial adm itted to D r.St.Petery thatitw asnotuncom m on thatD CF case w orkersw ould inadvertently term inate a child'seligibility when them other'spregnancy M edicaid term inated. St.Petery on 12/10/2009 FinalTr.at572:18 -573:10.
106.Prim ary care providers regularly see children w ho lose theirM edicaid eligibility in their firstyear oflife. Cosgrove on 5/19/2010 FinalTr.at2586:16 2587:10;Silva on 5/20/2010 FinalTr.at2804:10 - 2805:9;St.Petery D epo.D esig. on 11/11/2008 at 194:6-13;R itrosky,D epo.D esig.on 11/10/2008 at97:4 - 98:2, 98:15 - 99:25.
107. W hen a child's M edicaid eligibility is incorrectly term inated, the
child'sdoctorhasthechoiceoftreatingthechildandlikelynotgettingpaid(unless
eligibility is retroactively restored,the physician's offce finds out about it,and
incurstheexpenseofresubmittingitspriorbill)orrefusingtotreatthechild. St.
Petery on 12/10/2010 FinalTr.at594:20 - 596:6.
108.Asthe executive directorofTallahasseePediatric Foundation (TPF),
D r. St. Petery has access to FM M IS print screens w hich provide certain inform ation regarding a child's eligibility and assignm ent to a prim ary care
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provider. St.Petery on 12/10/2009 FinalTr.at554:19 - 555:10.D r.St.Petery has personally seen cases of im proper term ination of continuous eligibility w ith patientsofTPF by studying those patients'FM M IS printscreens from which he could tell their eligibility had been incorrectly tenuinated and then restored retroactively.1d.at555:1-21,575:18 - 576:11.
2. Sw itching 109. ççsw itching'' occurs w hen a child has been sw itched to a different M edicaid plan. O ften tim es this is discovered w hen the child goes to their pediatrician's office forcare,and the pediatrician queriestheM edicaid system and determ ines that the child,w ithout the parent's know ledge or consent,has been sw itched to a different M edicaid plan for w hich thatphysician is not a provider. St. Petery on 12/10/2009 Final Tr. at 548:13-19. lm proper term ination is a com m on cause ofsw itching. Children w hose eligibility has been term inated and then reinstated w ithin a 60 day period are required to be reassigned back to the plan they originally chose. This requirem ent,how ever,is not alw ays follow ed, leading to m ore ççsw itching.'' M ccorm ick on 8/12/2010 FinalTr.at 4148:3 4149:14. 110.G etting a child sw itched back to the originalprim ary care providercan be a tim e-consum ing process because the system only allow s a change once a m onth. 1d.at562:14 - 563:15.ttM any tim es the provider's staff spends a lotof tim e trying to fix the problem so thatthe child can com e back to theirpractice.'' 1d.at558:1-4. A primary care doctorfrom whom a child hasbeen switched no longer can authorize a referralfor furthercare,even for an x-ray. 1d.at 559:6 560:9. G enerally,ifa child hasbeen sw itched to an 1-IM O ,the 11M 0 w illnotpay the physician to w hom thechild w aspreviously assigned.1d.at558:5-19. 111.Switching isan obstacle to M edicaid children's accessto care. 1d.at 560:18-20. Because sw itching m oveschildren from one m edicalhom e to another,
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 69 of 153
it interferes w ith continuity of care,m ay delay care,and can lead to children not receiving care at all. 1d. at 560:23 - 561:10. Privately-insured patients do not experience sw itching. 1d.at561:1-6.
112.Sw itching is nota new problem . D r.St.Petely has been com plaining to A H CA and D CF about sw itching for 20-25 years, but the problem still continues.1d.at572:7-19.
113.RobertSham e w asA H CA M edicaid D irector from 2000 to 2004 and assistantM edicaid D irector from 1998 to 2000. Sham e on 11/16/10 FinalTr.at 4926:19 - 4927:2;4929:24 - 4930:8. M r.Sham e testifed thatduring histim e as A H CA M edicaid D irector he received a low num ber of com plaints about sw itching. D r.St.Petery,how ever,m etw ith him on m ultiple occasionsto discuss sw itching. 1d.at 4932:22 - 4933:2. M r.Sham e had his staff investigate cases broughtto him by D r.St.Petery,and they determ ined thatthe children w ere indeed sw itched w ithoutthe parent requesting a change of provider. 1d. at 4933:2:2 4933:12.
114.PhyllisSloyer,then A ssistantD irectorofCM S,also com plained to M r. Sharpe about sw itching and how it affected continuity of care forchildren in the CM S program . 1d.at 4933:13 - 4935:9. M r.Sharpe w as notable to elim inate sw itching, w hich rem ained a problem during his tenure. 1d. at 4935:10-15; 4936:13-15.
3. R easonsforSw itching 115.O ne w ay sw itching occursis w hen D CF,w hich determ ines eligibility, incorrectly term inates a child's eligibility and then, realizing the error, reestablishes the child's eligibility. Since eligibility inform ation is transported nightly from D CF'S com puterto A H CA 'SFM M IS com putersystem ,these actions cause A H CA 'SFM M IS system to send a letterto the child'sparent,as itdoesto
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any new M edicaid beneficiary,telling the parentthathe orshe m ustchoose a plan forthechild.
116.Som etim esthe parents do notreceive the letters because as many as 40% ofthe letters directing M edicaid benesciaries to choose a m anaged care plan com e back asundeliverable. B rown-W oofteron 11/8/2011 Rough Tr.at 149-151. A tleastin som e instancesw hen A H CA investigated exam ples ofsw itching,itw as notable to confrm thata choice letter w as indeed sentto the benefciary. D epo. D esig.ofH am ilton on 11/6/2008 at184:9 - 186:12. Som etim esthe parentsdo not understand the letter,perhapsbecause the parentdoesnoteven know the child w as term inated and reinstated. St.Petery on 12/10/2009 FinalTr.at565210- 566:6. In eitherevent,theparentdoesnotrespond.
117.W hen A H CA doesnothearback from the child's parentw ith a plan choice w ithin the allotted tim e,itauto-assignsthe child to aplan. B row n-W oofter on 11/8/2011 R ough Tr. at 148. B y statute, 65% of the assignm ents are to M edicaid 11M O s,w hich m ay not be a plan in w hich the child's pediatrician is enrolled. St.Petery on 12/10/2009 FinalTr.at570:1-25;Plaintiffs'Demonstrative ExhibitC on SwitchingusedwithDr.St.Petery.
118.There are m ultiple eligibility categories for children on M edicaid. Lew is on 10/20/2010 Final Tr.at 4649:8-10.W hen a parent m akes a change, ddsuch as applying for food stamps or cash assistance, this can also cause sw itching''. St.Petery on FinalTr.at 571:3-18. This occursbecause w hen D CF m akes such a change,even though the child does notlose M edicaid eligibility in D CF'S com puter system , the child som etim es loses eligibility in A H CA 'S FEM M IS system .
119.Duringthecourseofthislitigation,DCF discoveredthatwhenitdeletes the M edicaid eligibility category code fora child and places the child in a new eligibility category,A H CA som etim esinterpreted thatchange as a term ination of
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the child's M edicaid eligibility,even though the second M edicaid category began im m ediately after the firstcategory w as term inated. Lew is on 10/20/2010 Final Tr.at 4645:15 - 4646:22. D CF learned this not only during the course ofthis
litigation,butbecauseo/thislitigation.Lewison 11/29/2011RoughTr.at12-13.
120.To avoid thatsituation,D CF case w orkers w ere instructed to close the old category and open a new category sim ultaneously so thatA H C A w ould not confuse a category change w ith an eligibility term ination. Lew is on 10/20/2010 FinalTr.at4646:23 - 4647:6.
12l.D CF has nottaken any steps to m easure w hat im pacttheir change in practicehashad on tçsw itching.'' Lew ison 10/20/2010 FinalTr.at4654:7-9.
4. Evidenceofsw itching 122.Several ofthe nam ed plaintiffs in this case- s.B ,K .K .J.W .- w ere sw itched,som e m ultiple tim es,and their sw itching led to delayed or interrupted care. S.B .'S l8-m onth check-up w asdelayed. B ecauseK .K .w as sw itched,hehad to change from V yvance,an A D HD drug thatw orked for him ,to A dderall,one thatdid not. In J.W .'Scase,on one occasion sw itching contributed to a fve-w eek delay in perform ing an im aging studyto seeifatum orhadreappeared onhisneck, and in another,itcaused his fam ily to have to pay out ofpocket for his A D HD m edication. Seesupra at55-58. 123.Testim ony at trialalso show ed thatsw itching is a regular occurrence for prim ary care providers. D r.Lisa C osgrove is a prim ary care physician who practices in M errittIsland,Florida,in Brevard County. Cosgrove on 05/19/2010 FinalTr.at2550:8-9,2552:15-25. D r.C osgrove'sM edicaid patients are sw itched to otherplans on a Ssregularbasis'';itoccurson a daily basis. 1d.at2575:16 2577:19. Som e of D r. Cosgrove's patients w ho get sw itched end up in the em ergency room . 1d. at 2579:1-4,2580:14-20. Sw itching interferes w ith her patients'continuity ofcare. f#.at2581:15 - 2582:13. Sw itching also consum es

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 72 of 153
the tim e ofoffce staff w ho try to assistpatients in getting sw itched back to her practice,forw hich there isno com pensation.1d.at2583:13 - 2584:5.
124.D r.N ancy Silva is a pediatrician w ho practices in Brandon,Florida. Silva on 5/20/2010 Final Tr. at 2767:19-21., 2768:1-2. D r. Silva's M edicaid patients are sw itched ttallthe tim e''from one prim ary care providerto anotherand one insurer to another. 16L at2796:11-21. Seldom does the child's new doctor authorize D r.Silva's oftice to see the child unless there is an acute signiticant illness. W ithoutauthorization from the new doctor,D r.Silva cannotgetpaid for any care provided. 1d.at2798:16 - 2799:3. Thus,sw itching interferesw ith her patients'continuity ofcare. 1d.at2799:4-20. Sw itching also results in loststaff tim e forpediatriciansand isa deterrentto participating in M edicaid. f#.at2799:21 - 2800:11. lttakesapproxim ately six w eeksto getaM edicaid child w ho hasbeen sw itched to anotherproviderreassigned to herpractice. Silva on 1/19/2012 Rough T r.at147-48.
125. D r. Jerom e lsaac is a pediatrician who practices in Sarasota and Bradenton. Isaac on 8/11/2010 FinalTr.at3852:13-1493853:20-21. D r.Isaac's M edicaid patients are som etim es sw itched aw ay from hispractice. 1d.at3894:1220. G enerally,after a couple of m onths they return to his practice after getting sw itched back.1d.at3895:8-25. Switchinggenerally leadsto delayed careforhis patients.1d.at3896:15-24.
126.D r.D elores Falcone Tam eris a pediatric cardiologistatthe University ofM iam iM edicalSchool. Tam er on 10/19/2010 FinalTr.at4494:13-23. Dr. Tam er currently has a CM S clinic,a private clinic,and a clinic for the Jackson M em orialH ospital.1d.at4496:8 - 4497:5. D r.Tam erencounterssw itching w hen achild isreferred to herby aprim ary caredoctorwho lacksauthorization tom ake the referral. 1d.at4531:9-18;4532:21- 4533:13. W hen such sw itching occurs,it usually meanstheproceduresarepostponedam onth. 1d.at4533:14-17. Com m on
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 73 of 153
diagnosticteststhatare delayed fora m onth by sw itching are: echocardiogram s and electrocardiogram s,which testthe com petency,anatom y,and function ofthe heart. 1d.at4533:25- 4434:12.
127.D r.Tom m y Schechtm an isa pediatrician w ho practicesatthree offices in Palm B each County: Palm Beach G ardens,Jupiter,and Boca. Schechtm an on 5/20/2010 Final Tr.at 2832:8-13; 2833:7-14; 2833:18-22. D r. Schechtm an's M edicaid patients are frequently,and w ithouttheirknow ledge,sw itched from one prim ary care provider to another or from one M edicaid productto another. 1d.at 2847:6-20. D r.Schechtm an encounterssw itching severaltim esa day and hehasa içperson in hisbusiness offce w ho spends50% ofhertim e dealing w ith M edicaid eligibility,M edicaid sw itching and issues along those lines.'' 16l at 2847:21 2848:4. A ccording to D r. Schechtm an, sw itching causes a num ber of adverse consequences on the health and w ell-being of the sw itched child including: interrupting continuity of care and delaying check-ups and vaccinations. Id. at 2848:5 - 2849:8. A lthough D r. Schechtm an's figures have som e reliability problem s,they are consistentw ith the testim ony of other doctors w ith respectto sw itching.
128.O therdoctorsregularly encountersw itching asw ell. D onaldson D epo. D esig. on 10/15/2008 at 140:9 - 141:4; K nappenberger D epo. D esignation on 11/20/2008 at93:8 -94:12,95:4-6;R itrosky,D epo.D esignation on 11/10/2008 at 97:4 - 98:2,98:15 - 99:25;W eber D epo.D esig.on 11/6/2008 at24:22 - 25:2;J. St. Petery D epo. Desig. on 11/11/2008 at 81:19 82:1; 84:22 85:7; W . Knappenberger D epo.Desig.on 11/20/2008 at 95:23 - 96:7, 116:15 - 117:1; Ritrosky, D epo. D esig. on 11/10/2008 at 105:5 106:22, 107:7-11; K nappenberger D epo.D esig.on 11/20/2008 at 115:20 - 16:9;J.St.Petery D epo. D esig. on ll/11/2008 at 104:9 105:21; K nappenberger D epo. D esig. on
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 74 of 153
11/20/2008 at 117:5-21; R itrosky, D epo. D esig. on 11/10/2008 at 103:12-14, 107:16-18.
129.ln the practice D r.St.Petery sharesw ith hisw ife,sw itching isççalm ost an everyday occurrence.'' St.Petery on 12/10/2009 FinalTr.at 561:1l - 562:5; D r.Julia St. Petery D epo. D esig. on 11/11/2008 at 108:2-12. A s executive directorofTPF,D r.St.Petery seesa higherrate ofsw itching am ong the m orethan 7,000 TPS patients. St.Petery on 12/10/2009 FinalTr.at56l:24 - 562:5.
5. éiBaby 0 r'Process 130. A ttpresum ptively eligible'' new born is a child w hose M edicaid eligibility is presum ed by D CF based on the pregnant m other's M edicaid eligibility. Lew is on 10/20/2010 Final Tr. at 4650:12-21. The purpose of ççpresum ptive eligibility,''also know n asthe tçbaby of'process,isto m ake a child eligible for M edicaid as soon as possible. St.Petery on 12/10/2009 FinalTr.at 602:3-15. ltis called the ttbaby of'processbecause itdescribesthe practice ofa pregnantm otherapplying to D CF foraM edicaid num berforherunborn child. 1d. at 601:1-11. W hen the child is born,the M edicaid num ber is supposed to be activated.1d.at602:16 - 603:1. 131.D r.St.Petery hasobserved three problem sw ith the çlbaby of'process;
(l)themotherisnotprovided with theopportunitytopre-register;(2)even ifthe
m other pre-registers,there are delays in activating the child's M edicaid num ber;
and (3)children are sometimes issued two M edicaid numbers. This becomes
problem atic because w hen D C F realizes there are tw o num bers itcancels one;if the physician has been using the cancelled num ber, all the services billed are denied even though thechild isactually eligible.1d.at603:2-25.
132.U nder the applicable periodicity schedule,children are supposed to visita physician w hen they are five daysold. D CF'S failure to activatethe child's M edicaid eligibility can cause a delay in the child obtaining care orthe provider
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 75 of 153
receiving paym ent. 1d.at604:1-14;605:19-22. Prim ary care providers find that the activation process forpresum ptively eligible new borns is often delayed. lsaac on 8/11/2010 FinalTr.at3892:16 - 3893:24;Schechtm an on 5/20/2010 FinalTr. at2849:9 - 2850:7. C osgrove on FinalTr.on 5/19/2010 at2584:6 - 2586:15.
133. Carol M ccorm ick is the adm inistrator and nursing director of TPF. M ccorm ick on 8/12/2010 FinalTr.at 4110:9-19. A tthe tim e of hertestim ony, TPF had about7,400 children enrolled,7,300 ofw hom w ere enrolled in M edicaid. 1d. at 4114:22-25. N urse case m anagers at TPF frequently encounter presum ptively eligible new borns whose M edicaid is not activated or w hose eligibility hasbeen term inated in lessthan a year's tim e. 1d.at4118:8-24. In the fallof2008,w hen a subpoena fordocum entsw asserved on TPF,M s.M ccorm ick instructed herstaffto provide herw ith al1thechartsofchildren w ho w ere currently experiencing eligibility problem s. In response, she received 90 charts. 1d. at 4120:8 - 4121:20. Tw enty-four ofthose charts involved an issue of continuous eligibility, 15 concerned presum ptive eligibility,and 47 w ere cases in w hich the parent's choice of health care plan had not been im plem ented or had been sw itched. 1d.at4121:21 - 4122:25. Som e ofthese filesretlected m ore than one problem .1d.at4123:1-5.
134.Priorto 2008,am otherw asassigned a differentpersonalidentification num ber and case num ber than her baby. U nder this system , babies w ere som etim es given tw o personalidentifcation num bers because itw as difûcultto m atch the tçbaby of'application w ith the subsequentnewborn child. Poirieron 10/5/2011 Rough Tr.at39;43.See also PX 738. A s soon asD CF found outthere w ere tw o num bersfora child,itw ould cancelone. St.Petery on 12/10/2009 Final Tr.at603:18-25. 1f,how ever,a num berthata providerw asbilling underw asthe num ber that w as cancelled,A H CA w ould deny paym ent for the services billed underthatnum ber.1d.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 76 of 153
135.In 2008,D CF reprogram m ed itscom putersto allow apregnantw om an applying for M edicaid for herself and her unborn child to be assigned the sam e case num ber, even though the m other and eventually the child w ould each be assigned a separate M edicaid personalidentification num ber. The new policy w as set forth in a July 2008 m em orandum to D CF w orkers. PX 738. U nder that policy, w orkers m ust m anually input data at 12 different steps. Poirier on 10/5/2011 R ough Tr. at 43-45. lf a w orker m akes a m istake in that m anual process,achild m ay be im properly term inated.f#.at45-47,68-69.
136.D CF'Snew procedurehasnotresolved theproblem sw ith the ççbaby of' process. St.Petery on 12/10/2009 Final Tr.at 607:2 - 607:9. M oreover,the change ofplacing new borns into the m other's ççcase''hasthe potentialto increase the am ount of sw itching because it increases the chances that a change in the m other'seligibility category atD CF w illtriggerA H CA 'SFM M IS system to deem the child'seligibility cancelled. St.Petery on 2/2/2012 Rough Tr.at82-83.
137.D espite the issuance in 2009 by D CF ofa m em o directing thatbabies be keptin theiroriginalM edicaid category for 13 m onths regardless ofhousehold circum stances,interruptions ofeligibility for such children continue to occur. 1d. at 136.
138.Prim ary care providers continue to see problem s w ith sw itching,and term inations in violation of the right to continuous eligibility. C osgrove on 1/31/2012 Rough Tr.at154-155;Silvaon 1/19/2012 Rough Tr.at149-150.
D. ProvisionY tilizationofPrim ary Care(e.g.,EPSDT)
139.The purpose ofEPSD T isto identify and correctm edicalconditionsin children and young people before the conditionsbecom e serious and disabling;to provide entry into the health care system and access to a m edicalhom e for each child;and to provide preventative/w ell-child care on a regularly scheduled basis. PX 31atA H C A 00963753;St.Petery on 12/10/2009 FinalTr.at518:1l- 519:8.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 77 of 153
140.M edicaid eligiblechildren areentitled to check-upsfrom birth through age 20 in accordance w ith Florida's periodicity schedule. They should receive check-ups at2 to 4 days, 1 m onth,2 m onths,4 m onths,6 m onths,9 m onths,12 m onths,15 m onths,18 m onths,and then once peryearfrom 2 to 6,one at8,one at 10,and oneperyearfrom 1lto 20.A check-up includesa com prehensive m edical history, a dental screening, vision screening, hearing screening, appropriate im m unizations, and other services. PX at A H CA 00963754 A H CA 00963757;St.Petery on 12/10/2009 FinalTr.at519:9 - 522:6.
141.Children w ho do notreceive check-upsare m ore than tw ice aslikely to require em ergency room care. PX at A H CA 00963773; St. Petery on 12/10/2009 Final Tr. at 522:11-23. A s defendants have stated in one of their LBR S,m ore child check-ups ftm ay increase the early identification of m edical conditionsbefore they becom e seriousand disabling.'' PX 95.
T heC M S 416 R eports 142.M ore than 380,000 children on M edicaid in Florida w ho should have received at least one screening exam ination according to Florida's periodicity schedule did notreceiveany preventative carein the federalfiscalyearending on
Sept.30,2007. SeePX 8atAHCA 0000087(compareLine9,thetotaleligibles
who should have received atleastone initialorperiodic,with Line 10,thetotal
eligibles receiving at least one initial or periodic screen); Snipes on 12/9/2009
FinalTr.at369:4 - 370:8. The 380,000 figure represents,notsim ply the num ber ofchildren enrolled in M edicaid who didnotreceiveaw ell-child check-up during the year,butratherthe num berofchildren w ho w ere expected to receive a checkup- given the length oftheir enrollm entin M edicaid and the periodicity schedule for children their age- butdid notreceive one. Snipes on 1/8/2010 FinalTr.at
1261:7- 1264:19;PX 8atAHCA 0000087;PX 25(seeinstnlctionsforline4and line 8).
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 78 of 153
143.These figures come from a form alreport,the CM S 416 reporq w hich Florida and a1l other states m ust subm it alm ually to the federal Centers for
M edicare and M edicaid Services. See42 U.S.C.l396a(a)(43)(D)and Snipeson
1/7/2010 FinalTr.at 1146:25 - 1147:7. The report for the federal fiscal year ending Sept.30,2007 isthem ostrecentCM S 416 reportin therecord.
144.The fgures expressed in the CM S 416 reportare tçparticipation ratios'' - the totaleligible children receiving atleastone initialorperiodic screen divided by the total eligible children w ho should receive at least one initialor periodic
screen.PX 25(seeinstructionsforline 10).Forthefederaltiscalyearending on
Septem ber 30,2007,Florida had a participation ratio of 68% . PX 8 at A H CA 0000087;Snipes on 12/09/2009 FinalTr.at 370:10-14. Thatm eans 32% ofthe children enrolled in M edicaid w ho w ere expected to receive at least one preventative screen did notreceive any. The federalgovernm enthasa goalofan 80% participation ratio. Snipeson 12/09/2009 FinalTr.at370:15-17.
145.The percentage of children in M edicaid l-1M o s w ho received a w ellchild check-up w as even low er. For the fiscalyear ending Sept.30,2007,the combined participation ratioforallFloridaM edicaid llM o sw as55.10% .PX 16.
146.W hile there issom e criticism ofthe m ethodology underlying the CM S 416 report, and som e evidence that the data underlying the reports are not com plete,the CM S 416 reportisw idely considered the bestdata source available regarding the num ber of children on M edicaid who receive preventative care as wellasthenum berofchildren eligible forpreventativecarethrough M edicaid but w ho do notreceive such care.The CM S 416 reportsare considered reliable by the federal govem m ent and by the health services research com munity, and defendants'attackson thereportsarenotgenerallyconvincing.Flinton 1/24/2012 Rough Tr.at154.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 79 of 153
147.M s.Sreckovich and otherdefensewitnessescontend thattheCM S 416 reportsunderreportthe care delivered to children in Florida. They claim the CM S
416reportsdonotincludesomewell-childcheck-upsbecause: (1)thereisatime lagin reporting someclaim sdata;(2)somedoctorsprovidechildhealthcheck-up servicesbutthenbillforthoseservicesunderanotherCPT code;and(3)encounter
data from l-1M o s is not com plete. These contentions are speculative and not supported by the record. See id.at154-155.
148.A sto potentialdelay w ith reporting claim s,the federalfiscalyearends on Septem ber30,and the CM S 416 reportis notdue untilA prilofthe follow ing year,providing atleastfive m onths forsubm ission ofclaim s orencounterdata for servicesprovided on Septem ber30,and proportionally m ore,forservicesprovided earlierin theyear. Flinton 1/24/2012 R ough Tr.at162.
149.W hilephysicianscom pensated on a fee forservice basishaveup to one yearfrom the date ofservice to subm ita claim forreim bursem entto A H CA ,there is no evidence that physicians w ait to subm it their claim s, and it w ould be econom ically irrational for them to do so. 1d. at 161. Tellingly,w hile A H CA could subm it an am ended CM S 416 reportto account for any claim s om itted during the initialsubm ission because ofa so-called ççclaim s lag,''A H CA hasnever done so,though itisin itsclearinterest,especially during thislitigation,to do so if thatw ould im prove itsperform ance on the CM S 416 report. Snipes on 12/9/2009 FinalTr.at 368:15-21; Snipes on 1/8/2010 Final Tr.at 1275:23-25, 1276:7-15; Flinton 1/24/2012 R ough Tr.at161.
150.Forphysiciansto provide w ell-child screenings and then billunderan altem ative CPT code w ould be econom ically irrational because alm ost all the alternative codespay lessthan the CH CU P codes. Flinton 1/24/2012 R ough Tr.at
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 80 of 153

155-5825 .

O ften

the com pensation

for the physician

is twice as high underthe

EPSDT codethan underthe alternative codesM s.Sreckovich claim sthe doctors

actually billed. 1d.at 158. ln any event,defendantshaveprovided no evidence

thatsuch m iscoding issystem ic orw idespread.M s.Sreckovich adm itted she could

notquantify any such alleged coding errors. Sreckovich on 1/10/2012 R ough Tr.

at43-44. 151.D efendants also claim thatthe CM S 416 reports underreportthe w ell-
child check-up services provided because the encounter data thatFlorida 1-1M o s provide to A H CA is incom plete and does notcapture a11the w ell-child check-ups perform ed by I4M O s. There is no quantification, how ever, of any significant problem sw ith the reporting of encounterdata in Florida orthatany such alleged problem s led to underreporting on the CM S 416 reportforthe federalfiscalyear

ending on Septem ber30,2007. 152.Defendantsdo notrely upon any Floridaspecisc studiesoranalysesto
support the assertions that Florida l4M O s' encounter data suffers from underreporting or that such underreporting has 1ed to failure to reportw ell-child check-ups on the CM S 416 report. The 2007 G A O report,C oncerns R em ain R egarding Sufficiency ofD ata for OversightofChildren'sD entalServices,noted that the quality and com pleteness of encounter data had im proved since 2001.

Flinton 1/30/2012 Rough Tr.at103-104. 153.Florida 11M O s,as partoftheir contractualrequirem ents w ith A H CA ,
arerequired to provide a m iniCM S 416 report. Brown-W oofter10/26/11Rough Tr. at 43. They are also required to have that report audited and to provide a certification thatthe inform ation on thatreportistrue and correct. Brow n-W oofter

25w hileonenew childcode,99205,paysmorethanwell-child codes,anew child code can only beused onceperproviderperchild.
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on 10/18/2011 Rough Tr.at 121-122; Boone on 10/22/2008 Depo.Desig.at 153:10-18. D efendantshave notprovided any basis for calling into question the accuracy ofthe audited results,which are incorporated into the finalCM S 416 reports. ln fact, they tout the accuracy of other reporting perform ed by the M edicaid l'IM o s and do not provide any basis for singling out the l1M O s'416 reportsasinaccurate orunreliable. Flinton 1/24/2012 R ough Tr.at154-155.
154.lfanything,as explained by Dr.Tom D arling,the results in the CM S 416 reports overstate the num ber ofchildren w ho getcare,especially w ith respect to the screening ratiosthatcom pare the totalnum ber ofhealthy kid check-upsto thenum ber ofexpected exam inations. D r.D arling isan associate professoratthe U niversity of B altim ore's School of Public A dm inistration and a director of govem m ent technology for the Schaefer C enter for Public Policy. D arling on 1/6/2010 FinalTr.at813:24 - 814:9. H ehasa PIZ.D .in public adm inistration and policy from the U niversity ofA lbany. 1d.at815:21to 816:6. D r.D arling hasalso served as an expertw itness in other cases involving children's M edicaid and has consulted fortheStateofM aryland'sstateagencies.1d.at817:3to 819:24.He is qualified and wasaccepted asan expert,id at819:25- 82l:10,and 1again accept him asan expertand find histestim ony to be credible 26
.
l55.First,Floridadoesnothaveseparateencounterdatathatw ould allow it to ensure thatchildren are notdouble-counted ifthey m ove betw een tw o l-lM o sin a year or betw een fee-for-service and an 1-IM O . That m eans Florida's reported participation rateislikely inflated asaresultofdoublecounting som echildren.f#. at852:13- 854:5;873:14 - 876:16.
26 I recognize thatD r. D arling w as not able to conductan analysis based on services actually provided as he did in M em isovskiex rel.M em isovskiv.M aram ,N o.92 C 1982,2004
W L 1878332 (N.D.111.Aug.23,2004),which isthe betterapproach,because he wasnot
provided w ith the necessary claim s data. I also recognize that D r.D arling w as notable to com parehow children in theprivatem arketaretreated.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 82 of 153
156. Second,the federal instructions for com piling the CM S 416 report resultsin over-reporting ofscreening ratiosforthe çtlessthan one''and dtoneto tw o year'' age groups because the periodicity schedule does not require screenings at setintervals,butthe CM S reporting requirem entsassume thatthe schedule does. D arling on 1/6/2010 FinalTr.at850:5-17,857:25 - 859:10. The screening ratio thatFlorida reports is 28.92% higher than w hatitshould be because the errorin reporting resultsin theexpected num berofscreeningsbeing too low .1d.at859:11 - 865:21;PX 461at32-33.
157.Third,because screeningsçttlow w ith the child,''i.e.,are reported in the agecategory thatcorrespondsto thechild'sage atthe end ofthe federalfiscalyear, there is a45% over-reporting forthe 1-2 yearcategory. D arling on 1/6/2010 Final Tr.at866:12 - 868:15.
l58.Oncethedataare adjustedto accountforDr.Darling'srecommended
corrections,the screening ratios go dow n to .62,.61,.62,.66,and .68 for2003 to
2007 insteadof.67,.66,.73.,.78,and .81. 1d.at869:5-20*,PX 461(Table2-8).
These results reflect that Florida children on M edicaid consistently receive substantially few erscreensthan they should underthestateperiodicity schedule.
159.D efendants contest these statistics. ln her analysis,M s. Sreckovich purported to analyze the well-child care that M edicaid beneficiaries in Florida received by com bining the totalnum ber of w ell-child exam inations provided to children on M edicaid w ith certain sick child orççproblem -oriented''exam inations. Sreckovich on 1/10/012 R ough Tr.at35.
160.There are serious problem s w ith this analysis. First,the credibility of M s.Sreckovich and her reportw ere underm ined by the factthather initialreport w rongly confused ççvisits''w ith çtservices.'' Sreckovich 1/10/2012 Rough Tr.at2324. Shem adethe identicalerrorin heranalysisofdentalcareprovided to children on M edicaid. 1d. B ecause, as M s. Sreckovich adm itted, it is custom ary for
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 83 of 153
m ultiple servicesto be perform ed during achild'svisitto adoctorordentists,id.at 23,the result significantly overstate how m uch care children in M edicaid w ere receiving. 1d.30-35. She did notlearn ofthis error untilshe read D r.D arling's rebuttalreport. 1d.at23-24. She did notknow how she m ade such a significant errorthatw asrepeated throughoutthe report. 1d.at26-27. She also adm itted that she did notrealize thatheranalysis,w hich purported to include only claim s data, also im properly included som e encounterdata,untilsheread D r.D arling'srebuttal report. 1d.at22-23. Repeated errors such as these underm ine M s.Sreckovich's credibility.
161. Second, even in her revised tables, M s. Sreckovich continued to com bine the total num ber of w ell-child exam inations w ith certain sick child exam inations. She calls the com bined services tlpreventative assessm ent and evaluation services,''a category she created,w hich lacksa basisin the CPT codes.
Flinton 1/24/2012RoughTr.at163.Shejustifiedthatapproachbysayingthatfor
those sick child visits,the children received at leastsom e com ponents ofa w ellchild exam ,even though they did notreceive allcom ponentsofa w ell-child exam . Sreckovich on 1/17/2012 R ough Tr.at 109. She acknow ledged that she is not aw are ofany peerreview study thathasendorsed such an approach. Sreckovich on 1/10/2012 R ough Tr.at38-40. D r.D arling,w ho w orksextensively w ith CM S 416 reports,hasnotseen anyone com bine w elland sick child visits asM s.Sreckovich did.D arling on 01/23/2012 R ough Tr.at40-42.
162.Plaintiffs' experts, D rs. Flint and D arling, criticized that approach, stating that sick visit w as usually focused around a particular presenting condition, and there w as no evidence that during such visits children receive preventative care. They further stated that such visits w ere not a substitute or proxy for w ell-child visits. D arling on 1/23/2012 Rough Tr.at 35-38;Flint on 1/24/2012 R ough Tr.at163-67.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 84 of 153

163.Iagreew ith plaintiffsthatsick child visitsarenotaproxy orsubstitute

forw ell-child visits and do notplace any w eighton thispartofM s.Sreckovich's

analysis.

164.M s.Sreckovich,in heranalysis,also looked atthe average num ber of

visits per M edicaid child. N ot only did she include both w ell-child visits and

certain sick child visits,she did notcap the m axim um num berofvisitsperchild at

the num ber setby Florida'speriodicity schedule;rather she included allvisits,no

m atterhow m any there w ere. D arling on 1/23/2012 Rough Tr.at37;Sreckovich

on 1/10/2012 R ough Tr.at46-47.

165. B ecause of M s. Sreckovich's m ethodology, sick or il1 child care

provided to certain children can m ake it seem as if other children obtained care,

w hen in actuality they did not. Sreckovich on 1/12/212 R ough Tr.at46-47. Both

D r.D arling and D r. Flint are strongly critical of M s. Sreckovich's averaging

approach, w hich they claim presents a m isleading picture of how m uch care

children on M edicaid are receiving. D arling on 1/23/2012 R ough Tr.at 36-38;

Flinton 1/24/2012 Rough Tr.at163-65. lagree thatw hen itcom esto determ ining

the scope ofpreventative care provided to children in Florida,an average approach

is m

isleading ,

and

I do

notplace

w

eight on

it.27

166.The consensus view am ong health care researchers and othersin the

tield is thatthe CM S 4l6 reports are reliable. Flint on 1/30/2012 Rough Tr.at

27 A

s

partofher

analysis ,

M

s. Sreckovich

focused

on

the

care

provided

to

the

nam

ed

plaintiffs. W hile som e of the nam ed plaintiffs w ith chronic m edical conditions received a

signifk antam ountofspecialty care,they did notalw ays receive alltheirw ell-child check-ups.

Forinstance,J.W .did notreceive num erouswell-child check-ups,according to M s.Sreckovich's

ow n analysis. H er analysis show s he should have received 5 well-child visits during certain

yearsw hen he w asem olled in M edicaid,butonly received one such visit. D X 410 atTable 2B.

Sim ilarly,J.S.should have received 6 well-child visitsbutonly received three. D X 418 atTable

2B . A nd S.M .did notreceive his l8-m onth well-child check-up on tim e because he had been

switched.Seesupra!! 1-1l.

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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 85 of 153
105-06. The CM S 416 reportis the ççbestyardstick w e have now ''and is ttw hat CM S relies on.'' Crall on 1/26/2012 R ough Tr.at 155. 1 agree that CM S 416 reportsare reliable and an im portantindicatorofaccessto care. In addition,lfind D r.D arling's testim ony persuasive and conclude thatthe CM S 416 reports m ore likely than not overstate the am ount of EPSD T screening services actually received.
2. H E D IS R eports 167.The CM S 416 reportisnotthe only reportthatshow schildren enrolled in Florida M edicaid do not receive the prim ary care to w hich they are entitled under federal law . A H CA requires its M edicaid 1-1M O s,in accordance w ith 42
C.F.R.j 438.358,to collectand reporton certain performance measures on an
annualbasis. PX 733 at 1-1. A H C A chose to use H ealthcare Effectiveness D ata
andInformationSet(t1I-lEDIS'')measures,asetofperformancedatathatisbroadly
accepted in the m anaged care environm entasthe industry standard to com pare and m easure health plan perform ances. 1d. SCA H CA expects its contracted l'IM o s to support health care claim s system s, m em bership data, provider Gles, and hardware/softw are m anagem ent tools, which facilitate accurate and reliable reporting ofI-IED IS m easures.'' 1d. The agency contracts w ith H ealth Services A dvisory G roup,its externalquality review organization,to evaluate how Florida M edicaid'sl'IM o s perform againstcertain HE D IS m easures. B row n-W oofter on 11/8/2011Rough Tr.at12;PX 733 at1-1.
168.A llFlorida 1-lM o s are required to have their results confirm ed by a HED IS com pliance audit. PX 733 at 2-4. The results are w ithin a 5 point sam pling error atthe 95% confidence level. 1d. HE D IS m easurestrack the care provided to beneficiaries w ho are continuously enrolled in M edicaid for a certain period oftim e- typically eleven m onths in a year. Crallon 2/7/2011 FinalTr.at 5213:2-6.
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169.For a1lthe I-IED IS m easures at issue in this action,A H CA allow ed I4M o sto determ inetheirresultsusing the hybrid m ethod w here claim srecordsand adm inistrative data issupplem ented by a chartreview forbenefciariesforwhom encounter data is m issing. Brow n-W oofter on 11/8/2001 R ough Tr.at 24-26. Thus,the hybrid m ethod does not depend on the com pleteness ofthe encounter data. 1d.
170. A ll the HED IS m easures involve an apples-to-apples com parison because Florida M edicaid l'IM o s are com pared to M edicaid 1-IM o s nationally. Brow n-W oofteron 11/8/2001Rough Tr.at20-21. O neI-IED IS m easure tracksthe num berofchildren w ho do notreceive any w ell-child screeningsin the firsttifteen m onthsoftheirlives.
171.O fthe 12 Florida I'1M o s operating in non-reform counties, 11 14M o s scored below the nationalm edian,and six scored below the low perform ing level. B rown-W oofteron 11/8/2011 Rough Tr.at 19. ForH ealthy Palm B eaches,5.9% ofthe infantsreceived no w ell-child screeningsin the tirst 15 m onthsoftheirlives; for Preferred M edical Plan,Inc.6.0% ; for H um ana Fam ily c/o H um an M edical Plan,Inc.6.7% ;forVista H ealth Plan lnc.-v ista South Florida 7.6% ;forVista H ealth Plan,lnc.-B uena V ista M edicaid 7.7% ;and for Jackson M em orialH ea1th Plan 9.2% . PX 733 at3-4. For2007,six ofthe 1-lM oshad 5% orm ore ofthe infantsreceiving no w ell-child check-upsin the firsttsfteen m onths oflife. DX 361 atD efendants 022774. These Ggures indicate thatm any infants received no preventative care atall.
172.W hilewell-childcheck-upsareimportantforchildrenofa1lages,tlltqhe
need for appropriate im m unizations and health check-ups has ever greater importance and significance younger ages. lf undetected in toddlers, abnorm alities in grow th,hearing,and vision im pactfuture learning opportunities and experiences. Early detection of developm ental difticulties provides the
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greatest opportunity for intervention and resolution so that children continue to grow and learn freefrom any health-related lim itations.'' PX 733 at3-1.
173.O therFIED IS m easures also show thatin both reform and non-reform counties children on M edicaid 1-lM o s receive less prim ary care than children enrolled in the average14M 0 nationally.A ll13 M edicaid I-IM o soperating in nonreform counties fellbelow that nationalm ean in 2007. D X 361 atD efendants 022775. Five ofthe I-1M o s had results thatclustered around the 25th percentile, and eightofthem had resultsaround the 10th percentile. ln reform counties, for the sam e year,seven ofnine Florida M edicaid l'IM o s fellbelow the national m ean.D X 334 atD efendants021293.
174.A s for adolescent preventative care, Florida M edicaid I4M o s again generally ranked below the nationalm ean w ith only 43.6% ofenrolled m em bers 12 to 21yearsofage w ith atleastone w ell-child visitw ith aprim ary care provideror an O B/G Y N practitioner during the m easurem ent year. D X 361 at D efendants 022757. Five ofthe 13 1-1M o sin Florida operating in non-reform countiesw ere at orabove the m ean,eightw ere below it,w ith six clustered nearthe 25th percentile and tw o nearthe tenth percentile. 1d. ln reform counties,the resultsw ere sim ilar. Six M edicaid 11M o sscored above the nationalm ean;nine w ere below it. D X 334 atD efendants021277.
175.A nother IIED IS study looked at the w ell care provided to children betw een 11 to 20 years of age and found that only 19.6% received one or m ore w ell-child visitduring the study period;PX 689 atSum m ary ofFindings;Brow nW oofteron 11/9/201lR ough Tr.at14.
176.Florida M edicaid I-1M o salso scored low in term s ofthe percentage of pregnantw om en w ho received prenatalcare. Som e ofthese pregnantw om en on M edicaid are teenage m others. For these m others, prenatal care is a type of
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prim ary care. Seven ofFlorida'sM edicaid l-IM os have m ore than one-third of pregnantw om en failing to receive asingle prenatalvisitduring the study period.
177.The IIED IS data show thatFlorida's 1-lM O s,both in reform and nonreform counties, rank below the national m ean on a num ber of m easures of preventative child care.
E. Prim ary C are ProvidersParticipation in M edicaid 178.There is generally a shortage ofpediatriciansin Florida. See D X 290c atl. The shortage givespediatricianstheability to treathigherpaying patientsand eithernottreatorlim itthenum berofM edicaidpatientstheytreat.Theshortageof pediatricians in ruralareas isespecially acute. There are 10 Florida countiesw ith no pediatricians,and seven m ore countiesw ith only one pediatrician. D X 290c at 2-7,. Sw anson Rivenbark on 11/15/2011 Rough Tr. at 50. This shortage disadvantageschildren on M edicaid w ho m ustcom petew ith higherpaying patients forthe servicesofpediatriciansin othercounties. 179.The num ber ofchildren on the M edicaid rolls has grow n sham ly,but the num berofpediatriciansw illing to treatthem has not. The num berofFlorida children enrolled in M edicaid increased from 713,540 in October of 1998 to approxim ately 1.2 m illion in Octoberof2005.By Decem berof2008,1,272,342of children were enrolled in M edicaid. PX 682 atFL-M ED 07816;DX 262;Snipes on 1/8/2010 FinalTr.at1274:15 - 1275:5. A sof20l1,the enrollm enthad risen to 1.7 m illion children. Lew is on 11/29/2011 Rough Tr. at 48-49. Thus, the
percentageofchildren on M edicaidhasincreasedbymorethan 33% injustunder
three years,from D ecem berof2008 to N ovem berof2011. There isno indication that the num ber of prim ary care providers has increased at all, let alone proportionately,thusplacing an increased dem and on existing providers. See PX 682 at FL-M ED 078164 D X 262. ln fact, Florida has an overall shortage of physicians per 100,000 residents,com pared to the U nited States as a w hole,PX
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742 atD efendants 026980,and a shortage ofpediatricians,D X 290c;PX 742 at D efendants 026979,thereby placing m ore dem and on Florida physicians to treat children on M edicaid,even though M edicaid paysfarlessthan otherpayors.
180. M ore than 20% of pediatricians in Florida w ere accepting no new M edicaid patients,according to a 2009 physician w orkforce survey. PX 742 at D efendants027039;Sw anson Rivenbark on 11/15/2011R ough Tr.at40-41. M ore than 60% offam ily practitionersw erenotaccepting a single new M edicaid patient. 1d. This issignificantbecause fam ily m edicine practitioners provide w ellcare for olderchildren. St.Petery on 2/9/2010 at1514:9-13.28
181.ln addition,num erous pediatricians lim it the num ber of children on M edicaid thatthey w illaccept. See Cosgrove on 5/19/2010 FinalTr.at2553:15 -
2557:12 (limiting practice for tinancial reasons to about 20% children on M edicaid);Silva on 5/20/2010 FinalTr.at2768:23 - 2775:23 (only two ofthe
non-for-profit com pany's seven pediatric sites acceptnew children on M edicaid, and for D r. Silva's site,the com pany has lim ited the num ber of new M edicaid
patientsby (1)notaccepting M edicaid 14M Os;(2)only accepting new patients under5;and (3)furtherlimiting new patientsto newborns,siblingsofexisting
patients,orexistingpatientswhogo on M edicaid;about20% ofherpatientsareon
M edicaidcomparedto 50% in2001)4Isaacon 8/11/2010FinalTr.at3855:13-17; 3856:4-12;3861:5-25(limitsnumberofM edicaidpatientsheaccepts;doesn'ttake
any M edicaid 11M O s; approves new M edipass patients on a case-by-case basis;
aboutone-third ofhispatientsare on M edicaid);Ritrosky on 11/10/2008 Depo. Desig.at8:13 - 9:12,*l1:1-11(toremain economically tfviable''practice,limited
28Thepercentageofphysicianswho acceptno new M edicaid patientsis46% . Thisis significantly largerthan thepercentage thatacceptsno new M edicarepatients,which is22% . Thisdisparity furtherillustratesthe inadequaciesofM edicaid reimbursementrates. PX 742at D efendants027033,D efendants027037.
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number of M edicaid patients by only accepting as new M edicaid patients (1) siblingsofexistingpatients;(2)existingpatientswho loseprivateinsurances;and (3)limitednumberofnewborns);Orellanaon 11/23/2008Depo.Desig.at99:24100:11(hadtostop acceptingM edicaidpatientsinhisGainesvillebutnothisLake City location).
182.The principalreason pediatriciansdo notparticipate in M edicaid (or limit their participation in the program) is because of M edicaid's low reimbursementrates. Flinton 8/3/2010 FinalTr.at2949:21 - 2950:5 (:$The
fundam entalissue thatdrives participation,thatdeterm ines physician,physicians' decisionsto participate in the program atall,or to lim ittheirparticipation,is the
rate ofreimbursement.'');Tameron 10/19/2010 FinalTr.at4512:21- 4518:9 (describingaconsensusexpressedbyCM Sofficemedicaldirectorsthroughoutthe
state that ççM edicaid rates w ere so low that specialists w ere reluctant to take
patientswhoweresponsoredundertheM edicaidprogram .'').
183.D efendants have pointed to the availability of care at county health
departments(C14Ds)and federalqualified health centers(FQHCS). The Cl-m s,
whileproviding som e prim ary care,arenotan alternativeto privatepediatricians. C ollectively,C l-m S only em ployed 27 pediatricians and no pediatric subspecialist as of2009. Sw anson R ivenbark on 11/15/2011 Rough Tr.at 57-58. Sim ilarly,
FQHCShadjust32pediatriciansandonepediatricsubspecialist.f#.M oreover,all well-child visitsprovided by Clo sand FQHCSare included on the CM S 416
report.Crallon 2/8/201lRough Tr.at83-84.Thereisno reasontobelieveClm s w illprovide increased care in the future. Indeed,the Florida Legislature reduced the budget for the Clm s by $30 m illion as of July 2011,leading to 300-400 positionsbeingcutattheClo s. Sentm anon 10/6/201lRough Tr.at11-13.
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F. C hild H eaIth C heck-u p R atelncreases 184. A n increase in the reim bursem ent rate for w ell-child, check-up exam inationsresulted in an increase in the num berofchildren receiving w ell-child check-ups. ln 1995,AHCA increasedthereim bursem entrateforw ell-child check-
upsççfrom $30 to $64.82,and theparticipation ratesincreased from 32 percentto
64 percent.'' PX 734. A H CA hasm ade thatsam e assertion repeatedly in form al budgetsubm issionsto thegovernorand legislature,see PX 734,PX 92,PX 93,PX 95,and in internalLBR S,PX 94,PX 96,PX 702,PX 703.Seealso D X 600.
185. A H CA highlighted the effect of the 1995 w ell-child check-up rate increase on the participation rate w hen it proposed a child health check-up rate increase from $71.59 to $90.97 for the 2007-2008 budget year. W illiam s on 10/13/2011 Rough Tr.at 88-89;PX 734. A H CA then predicted thatsam e pattern w ould hold in the future. içlncreasing the Child H ealth Check-up reim bursem ent rate w illincrease access to service,w hich w illincrease the early identification of m edicalconditions before they becom e serious and disabling,thereby decreasing future costly treatm entservices.'' PX 734. A H CA noted thatsince 1995,provider fees for well-child check-ups ççhave increased only a few dollars due to the
Resource Based Relative Value System''and said,ttgaln increasewillalso more
accurately retlect the cost of providing and docum enting this com prehensive, preventive service and w ill encourage provider participation and retention in the Child H eath Check-up Program .''1d.
186.ln 2007,thatsam e proposalw as one ofA H CA 'S top three priorities. PX 720.See also PX 92;Snipeson 12/9/2009 FinalTr.at387:10 - 388:12;Snipes on 1/7/2010 FinalTr.at 1094:24 - 1095:10. A gain,the agency told the governor and legislature that increasing the Child H ealth Check-u p rate ççw ill increase access to xçcrv/cc,w hich w illincrease theearly identification ofm edicalconditions before they becom e serious and disabling, thereby decreasing future costly
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treatment.'' PX 92 (emphasisadded);Kidderon 5/19/2010 FinalTr.at2512:4-
2514:13;K idderon 10/3/2011Rough Tr.at28. 187.W hile continuing to supportLBR Sto increase the Child H ea1th Check-
Up rate,AHCA changed thelanguageofitsproposalto indicatethatafeeincrease ttm ay,'' not w ill ççincrease access to services, w hich m ay increase the early identification ofm edicalconditions.'' PX 96.See also D X 600. Thatchangew as m adeduring thecourseofthislitigation and w asnotbased on any study orformal analysis. K idderon 5/19/2010 FinalTr.at2519:21 to 2520:5. M r.Snipes,never reached a differentconclusion than that setforth in the ççw illincrease''language. Snipeson 12/9/2009 FinalTr.at351:3-9;382:11-24.
188.Even w ith the m odi/ed language,how ever,the LB R S continued to
state:ttln 1995,therewasafeeincreasefrom $30to $64.82andthe(ChildHealth Check-up)participationrateincreasedfrom 32percentto64percent.''PX 96.See
also D X 600. The A gency used thatsam e language in LBR S forfive consecutive years. K idder on 10/3/2011 Rough Tr. at 33-35. Tw o senior level agency adm inistrators testified in depositions that the statem ents in the 2007 finalLBR regarding the proposed increase in reim bursem entrates forchild health check-ups w ere true and correct. O ne w itness,Beth K idder,w asB ureau ChiefforM edicaid ServicesatAHCA ,andhadheld thatposition since2005.M s.Kiddertestified ata deposition in2008,threeyearsafterthisactionbegan.K idderon 10/3/2011Rough Tr. at 28-30. At trial, she acknowledged her prior testim ony, including her testim ony that the language in the LBR was meant to indicate ttcausation, causative effect here,that if you increase the rates,you w illincrease physician participation and in turn thatw illresultin m ore kids receiving checkups.'' 1d.at 29.
189.Thesecond witness,M elanieBrow n-W oofter,AH CA 'Sdesigneeunder
FED.R.CIV.P.30(b)(6),testifiedthatthefollowingstatementwastrueandcorrect:
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itln 1995,there was a fee increase from $30 to $64.82 and the (Child Health Check-uplparticipation rateincreased from 32 percentto 64 percent.'' Brown-
W oofteron 11/9/2011Rough Tr.at2-3;PX 96. 190.A ttrial,M s.K idder changed hertestim ony w hen she w as called as a
defense w itness,butnotw hen she w as called as an adverse w itness by plaintiff. She testified that the 1995 fee increase from $30 to $64.82 did not cause the increase in the participation rate from 32% to 64% ,because the feeincreasedid not lead to an im m ediate increase in the participation rate and because the increased participation rate m ight have resulted from other factors,such as better reporting by M edicaid 11M O s. K idder on 6/1/2011 Rough Tr.at 118-19. She changed her testim ony based on inform ation she w as provided by defense counsel after testifying in M ay of 2010,as an adverse w itness in plaintiffs'case. K idder on 10/3/2011Rough Tr.at39-43. G enerally,given herchange in testim ony,Idid not find M s.K idder'stestim ony asa defense w itnesscredible.
191. M s. Brow n-W oofter sim ilarly changed her view s and on redirect exam ination provided an am ended answ er sim ilar to M s.K idder's. See B row nW oofteron 11/9/2011 Rough Tr.at 122-26.29 She too,w asnotvery credible asto thism atter.
192.W hileaRule30(b)(6)witnessmaymodifyhisorhertestimonybecause itdoesnotconstituteajudicialadmission,acourtmayconsideranysuchchangein
assessing the credibility ofthetestim ony. D efendants''only explanation to support
admission of(and to credit)M s.Kidder'sand M s.Brown-W oofter'sundisclosed
and untim ely decision to contradicttheirpriortestim ony,is thatthey had further tim e to scrutinize certain LBR S. M s.K idder w as deposed on A ugust27,2008,
29O n crossexam ination shesaid theincreasein theparticipation ratem ay have been due ,
to increased outreach,see Brown-W oofter on 11/9/2011 Rough Tr.at4,a wholly different answ erthan thatelicitedby defensecounselon redirect.
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m ore than tw o and one-half years after this action com m enced. M s.BrownW oofterw asdeposed on N ovem ber24,2008.D efendantshad adequate tim e and a
dutytopreparethesewitnessesonthedesignatedtopicspriortotheirRule30(b)(6)
deposition. 193.I find the statem entsin A H C A 'SLB Rs- repeated overtive yearsw ith
differentsecretaries and staffin place and repeatedly reported to the governor and Florida Legislature- credible and illustrative ofA H CA 'S belief that there w as a cause and effect relationship betw een an increase in the reim bursem entrates for w ell-child check-ups and the percentage of children eligible for M edicaid who received a w ell-child check-up. 1 find M s.K idder's and M s.B row n-W oofter's trialtestim ony doesnotm eaningfully callinto question A H CA 'S belief asto this cause-and-effectrelationship.
G . A H C A 'SR eportsand D efendants'Lay O pinion T estim ony 194. Several of defendants' w itnesses- particularly M s. Sreckovich,M s. K idder,and M s.B row n-W oofter- testified regarding the variousprocessesAH CA
has in place to monitorand evaluate primary care providers (PCP) enrolled in M edipassandmanagedcareorganizations(M CO).
195.A H CA devotesconsiderable resourcesto m onitoring. Thism onitoring, how ever,does notdem onstrate thatchildren are receiving the care to w hich they are entitled underfederallaw .
196.First,though there w as extensive testim ony regarding the m onitoring processes, there is little in the record about the substantive results of those processes. lndeed,m uch ofthe m onitoring took place during the very tim e that A H CA 'Sow n docum entsdem onstratethatchildren w erenotreceiving care.
197.Second,there is little evidence in the record thatany PCPS orM CO s w ere fined, sanctioned, or expelled from the M edicaid program for failure to
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provide care to children on M edicaid orm eetany contractualrequirem entsrelating to the provision ofcare.
198. Third, process-oriented m onitoring does not establish that children receive care. For instance,the factthata PCP does not have m ore than 1,500 children on M edicaid as patients and does not w ork m ore than 30 m iles from w here hisorherpatientslive,does notdem onstrate thatthose children are able to see thatPCP on a tim ely basis. A H CA 'Sm onitoring show sthe system could w ork on paper,butitdoesnotprovethatitw orksin practice.
199.There isnothing persuasive in M s.Sreckovich'stestim ony to establish that tim ely care and access to the appropriate array of pediatric doctors w as actually provided ratherthan theoretically available.Thisisespecially true ifPCPS affiliated w ith M edipassor an 1-1M 0 chose to treata large num berofchildren on M edicaid, despite the low M edicaid reim bursem ent rates. Flint on 1/24/2012 R ough Tr.at153. Further,M s.Sreckovich'sgeneralopinion thatshe hasnotseen evidence ofa system atic problem ,Sreckovich on 1/12/2012 R ough Tr.at54-55,is contradicted by statem entsm ade by A H CA in LBR Sand CM S 416 reports,asw ell asby thetestimony ofplaintiffs'experts. ldo notfind M s.Sreckovich'sopinions persuasive.
200.A num berofA H CA w itnesses,including M s.B row n-W oofterand M s. K idder,offered lay opinionsregarding access.
201.M s.Brow n-W oofter offered a lay opinion thatthere are enough PCPS enrolled in M edipassto com ply w ith thecontractualrequirem entthatno provider have m ore than 1,500 children on M edipass. Brow n-W oofter on 10/24/2011 Rough Tr.at67-69. H ertestim ony doesnotindicate w hetherchildren are actually receiving care from PCPS, w ho are not obligated to accept any children on M edicaid m erely because they enrolled as a M edipass provider. N or does her testim ony indicate w hetherthatcare istim ely and com parable to care provided to
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children on private insurance. M oreover,defendants failed to show thatthe 1,500to-l ratio w as actually m et in practice. M s.B row n-W oofter did not know the average num ber of M edicaid patients that a typical PCP enrolled in M edipass accepts.B row n-W oofter on 11/8/2011 R ough Tr.at 81. Thus,if the num ber is substantially sm aller than 1,500, then the 1,500-to-1 ratio is effectively m eaningless. In sum ,1am notpersuaded by M s.Brow n-W oofter'slay opinions.
202.A ccording to M s.K idder's lay opinion,A H CA is able to deliver the care children on M edicaid need,w hen they need it,and close to w here they need it
(with limited exceptions),forboth primary care and specialty care. She also
opined that the increased num ber of children enrolled in M edicaid has not im pacted A H C A 'S ability provide such care. K idder on 10/3/2011 R ough Tr.at 122-123, 150. H er opinion,how ever,is based largely on w hat she w as told by others. ltisalso contradicted by A H C A 'Sow n statem entsin num erousLBR S,her ow n testim ony ather deposition,the testim ony ofvarious other A H CA w itnesses
(including formerSecretary,Dr.Agm mobi,and formerM edicaid DirectorsM r. Snipes and M r.Sham e),the testimony ofpediatricians,and numerous AHCA
docum ents. A ccordingly, 1 do not find M s. K idder's lay opinion credible or persuasive.
H . Children'sM edicalServices(CM S)
203.CM S isa branch ofthe D O H dedicated to helping children w ith special health care needs. C onsistent w ith the problem s experienced by children on M edicaid in accessing prim ary care,CM S has experienced problem s in finding prim ary care providersto treatCM S children on M edicaid.
204.In 2004,D O H conducted a ProviderA ccessSurvey,w hich show ed that
itlelvery CM S area office or regionaloffice reported thatsome CM s-enrolled
private prim ary care practices w ere closed to new C M S patients during calendar
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year2003.'' PX 319 atD O H 00077968;St.Petery on 12/8/2009 FinalTr.at228:5 - 229:12.
205.Thatsamesurvey showedthattçlljow reimbursementratesand lack of
capacity w ere the top tw o reasons cited forthe closure ofprim ary carepracticesto new CM S patients,follow ed by CM S patients'health conditionsbeing considered too com plex forprim ary carepracticeand adm inistrative burdelz/paperwork.''1d.
206.ThesurveyalsoshowedthattEleqvery CM Sproviderrecruitmentoffice
attem pted to recruitprim ary care practitionersto becom e CM s-enrolled providers
during calendaryear2003. Almostthree-fourths(72% )ofthecontacted private
prim ary care providers declined to enrollas CM S providers. Low reim bursem ent ratesand lack ofcapacity w erethem ain reasonscited fordeclining to participate.'' 1d. There is no indication in the record thatthese problem s have disappeared or havebeen substantially am eliorated.
1. B lood Lead Screening 207.A spartofan EPSD T exam ,children on M edicaid m ustbe screened for blood lead poisoning at 12 and 24 m onths,and ifthey did nothave a testearlier, they m ustbe screened forblood lead poisoning betw een 36 and 72 m onths. PX 71 at AH CA 00148486. D octors can com ply w ith the blood lead screening requirem entsby eitherdoing the testing them selves or referring theirpatientsto a laboratory fortesting. Snipeson 12/9/2009 FinalTr.at391:12 - 393:2. 208.There isno safe leveloflead in the blood. PX 77 atFL-M ED 07068. The higher the lead level,the m ore severe the consequences. 1d. H igher levels have an even greater im pacton the health and cognitive developm entofchildren,
including lowerlQ,behavioralproblems,hearing loss,neurologicalimpairments,
and death. 1d.
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209. Screening children for blood lead poisoning at an early age is
important. As defendants have stated,itlsjcreening forblood lead can lead to
effective early interventions,decreasing overalltreatm entcostslater.'' PX 98. 210.A ccording to the CD C,Florida ranks 8th in the nation forthe num ber
ofestim ated children w ith elevated blood lead levels. PX 71 atA H CA 00148485; Snipeson 12/9/2009 FinalTr.at399:12-16. Jacksonville and M iam irank 21stand 32nd respectively am ong large citiesin the U nited States,w ith an estim ated 1,900 children w ith lead poisoning. PX 71atA H CA 00148485.
211.A prim ary source of lead exposure in children is lead-based paint, w hich w as used in m any hom es builtprior to 1978. PX 77 atFL-M ED 07070. H om es builtpriorto 1950 pose an even greatestrisk forchildren,asthe am ountof lead in paintfrom thatera is generally greater and the structuralcondition ofthe hom esoften facilities greaterrisk oflead exposure. 1d. The portion ofpre-1950
homesinFloridavariesbycountyfrom 3% tojustover15% .1d.
212.Florida's diverse population ofim m igrants,refugees,and foreign-born children are at further risk for lead poisoning because of specifc high-risk behaviors and custom ary use offoreign productscontaining unsafe levels oflead. PX 71atA H C A 00148485;Snipeson 12/9/2009 FinalTr.at399:8-11.
213.The CM S 416 reportsubm itted in A pril of 2008 show ed that only 60,000 blood lead screeningshad been conducted forthe 250,000 eligible children betw een the agesof l and 2. PX 8 atA H CA 0000087-88. M r.Snipestestified,($1 w ould say personally to m e that'snotacceptable.'' Snipes on 12/9/2009 FinalTr. at372:5-11.
214.ln 2006,the m ostrecentyearforw hich there is figures in the record, there w ere 389 new reported cases ofblood lead poisoning in Florida,w ith 20 or m ore new cases reported in Brow ard,D uval,H illsborough,M iam i-D ade,O range, Pinellas,and Polk counties. PX 77 atFL-M ED 07073.
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215.For fiscal years 2005-06, 2006-07,2007-08, and 2009-10,AHCA requested an increase in reim bursem entratesforblood lead screening forchildren, stating:tçBecause physiciansare notreim bursed forthe collection and handling of lab specim ens during an office visit,M edicaid children are being referred to a laboratory forthe required blood lead testratherthan the physician collecting the specim en and forw arding itto the laboratory foranalysis. Lack ofreim bursem ent has fragm ented care,due to the fact thatm any recipients do not follow through w ith the lab trip '530 px 704;px 705;PX 97;PX 98;Snipeson 12/9/2009 FinalTr.
.
at391:12 - 397:8. 216.M r.Snipes supported the agency's requestfor an increase in fees for
handling blood and believed that it w ould im prove beneficiaries' ability to get blood lead tests. Snipes on 2/9/2009 Final Tr. at 397:2-8. H e consistently proposed increases in reim bursem ent rates for blood lead testing, because he believedthattherewasaproblem thathadtobeaddressed.1d.at399:22- 400:2.
J. ProvisionY tilization/Tim elinessofSpecialistC are Under the EPSDT requirem ents,children on M edicaid should have
accessto preventative care screeningsand treatm entforthe conditionsidentifed.
42U.S.C.j1396a(a)(43)(C).Oftenspecialistcareisrequired.Brown-W oofteron
10/18/2011Rough Tr.at135. 218. D r. A gm m obi, speaking as Secretary of A H CA at the tim e,
acknow ledged the problem of access to specialists for the Florida M edicaid population,including children:
1personally have traveled to allof our different areas - our 11 area offices, and 1 found that by far, the single biggest problem facing AHCA today isaccessto specialty careforM edicaid recipients. The

30 onC Ofthe nam ed plaintiffs S.M . hasnotbeen tested forblood lead exposure,becausethe

,

,

tirsttim ehism othertook him to the lab itw asclosed,and she subsequently w asnotabletotake

him backbecauseofdiffkultiesinsecuringtransportation.Seesupraat!11.

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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 100 of 153
single biggest problem . W e have m any problem s, but that's the biggest.
PX .126A at5. D r.A gw unobi,in the sam e speech,referred to the problem as (ça crisisin accessto specialty coverage forthispopulation.'' 1d.at6.
219.Defendantsobjecttothesestatementsonthegroundsthattheywerenot
applicableto children. D r.A gw unobi,how ever,expressly stated in his speech that he w asspeaking aboutaccessforspecialty care forchildren asw ellasadults: ttW e have children and people rightnow thatneed accessto specialty care.'' PX 126A . H e illustrated thepointby stating:
So w hatthis m eans isthatwhen a child goes to the em ergency room w ith a broken arm ,they can'tfind an orthopedic surgeon to follow up w ith.A bscess teeth,can'tget care. U sually through m any hours of w ork and basically pleading on bended knee,w e have actually found care forthatpatient. H ow ever,there are unacceptable delays which translate into poor quality and som etim es patients have to travelfor m iles. So all of that is to say yes, the service indicates and our experience confirm s that w e have a serious access to healthcare problem in the stateofFlorida and,w ehaveto addressit.
1d.at5. 220.D r.A gw unobisaid thatwhile thereare m any reasonsfortheproblem of
accesstospecialists,tçonethingisvery clearl,pqrovidersarein generalunderpaid
in contrastto com m ercialinsurance and M edicare.'' I6L at6.See also PX 305 atL-
STP 012841. 221. I tsnd D r. A gw unobi's adm issions regarding insufficient access to
specialty care to be highly probative. D r. A gw unobi w as the highest ranking individual in the agency prim arily responsible for M edicaid, and he w as not testifying in the m idstoflitigation. He could nothavebeen m ore clearasto the seriousnessofthe issue,characterizing itasa ççcrisis.'' Thisadm ission issufficient evidenceofan accessproblem w ith respectto specialists.
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222. Other AH CA secretaries presented sim ilar view s in documents. Secretary Tom A rnold observed thatttw e have a system thatisgrow ing by double digits,w hereprovidersarepaid lessand lesseach year,accessislim ited,outcom es are notm easured,racialdisparitiesin health access continue,and participants are
stigmatized. 1'dsay that'sabadsystem.'' PX 277A. SeealsoPX 195(emailof
M r.A rnold,then D eputy Secretary for M edicaid and later Secretary of A H CA , asking ççcan w e do anything that m ay reduce the reluctance of specialists in
participatinginM edicaid?'').
223.D r.A gm m obi's view s are reinforced by a 2007 survey ofthe A H CA
regionaloffices,which showed amajority ofregionalofficesreporting an ttacute
shortage''ofspecialistsform ostspecialty types:

AREA O FFIC ES - ListofM ostCom m on Specialty Shortages *

* =Acutosbortageofhff?rfzozk/ProvidersAerepz/r)vê/et/ica/,'at/er?ts'

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omo 64o #e'e, 1*4

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* 10

orthopeditt.sxrtlwpè.dk?s-ufg..è-ry7-77: . ..* ., *,',....:...'*.,,rk.,';#.;'*'*7.'*'''**7.7'7*-.7.-.7*77-.-:7.7*7 7- '.* : 570

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.

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.
' *

L.M,. .
*

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'
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Urology

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6 . *.' 6

Otthodorltlt;ts Dentlst1% General .

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tcardtovascularMedtïne

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3

PX 205. 224. The survey responses from a num ber of the A H C A area offices

confnu,and in certain instances,provide m ore detailthan the statew ide sum m ary.

SeePX 200(Area 10;Broward County);PX 201(Area 1shortages- Pensacola);

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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 102 of 153
PX 202 (Area 9 specialistshortages - Palm Beach county);PX 203 (Area 6 specialistshortages- Tampa);PX 204 (Area7;CentralFlorida);PX 722 (Area2; Floridapanhandlecounties);PX 708 (Area 8;SouthwestFlorida). Forexample,
the response form A rea 11,w hich includes M iam i-D ade and M onroe counties, statesthatthere isa shortage ofçspediatric specialistsofevery kind''and that(çthere are no specialists of any kind w illing to treat M edicaid recipients'' in M onroe county. PX 199. A H CA ,through tw o agency representatives,testified thatthere w as no reason to believe thatthe problem s identified in the survey w ere problem s for adults, but not for children. K idder on 5/19/2010 Final Tr. at 2529:20 2530:10;Brow n-W oofteron 10/25/2010 FinalTr.at83-96.
225.A H CA ranked the differentspecialty practices experiencing shortages. PX 710.These çlpriority rankings''ofshortagesw ere applicableto children asw ell asadults. N ieveson 5/17/2010 FinalTr.at2068:9-11.
226.O ther internalA H CA docum ents and com m unications are consistent w ith the existence ofdifsculty in accessing specialistsforthe M edicaid population
throughoutthe state. See e.g.,PX 210 (October 2007 letter from Secretary
Agw unobi inviting providers to a M edicaid Access to Specialty Care Summ it, noting he had traveled the state,speaking aboutFlorida M edicaid w ith providers, comm unity-based organizations, and AHCA staff, and stating: çdW ith rare exception,when asked whatthe m ostcriticalissue facing the program w as,they identifed the increasing lack of access to specialty m edical care for M edicaid
beneficiaries.''); PX 181 (shortage of dermatologists, neurologists and neurosurgeonsforkidsand adultsin Jacksonville);PX 182A (documentingaccess
problem s for children seeking orthopedics gastroenterologists,neurologists,and
cardiology in Area 2);PX 188 (2006 AHCA survey showing lack of readily availablespecialistcare);PX 211at7-11(relativenumberofspecialistsproviding M edicaid services to totalspecialists);PX 221 (2000 survey ofaccessto care
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 103 of 153
show s relative lack of access for M edicaid population and also geographic
differencesin access);PX 187(Area38 Ocalaareaservicesnotreadilyavailable in number of specialty types);PX 319 (no or very limited access to certain specialty care for M edicaid children in CM S);PX 338 (ççsignificant crisis in PanamaCityareawithorthopediccoverage'').
227. The difficulty in access to specialist care found in the 2007 survey corroborates an earlier A H CA study entitled GçA ccess to M edicaid Physician Specialists.'' PX 563. This survey m easured accessby dividing the totalnum ber of M edicaid annual visits in 2003-2004 by the national average of visits per specialistphysician and then com pared thisttestim ated M edicaid access''figure to low est and highest estim ate of needs based on the literature. Each physician specialty w as then given an access score from 1 to 5. The follow ing services
rankedeither(E1(indicating accessunder50% ofthelowestestimateofneed);or tç2''(access underthe 1ow estimate ofneed''): allergy,dentists,dermatology,
endocrinology,hem atology,infectious disease,nephrology,neurology,oncology, orthopedic surgery,pulm onary disease,rheum atology,and urologicalsurgery. PX 563 at Flint 01131, 01135. This survey also show ed the com parative lack of accesspercounty.
228.SeveralA H CA area adm inistratorsnonethelesstestifed thatthey either neverhad orno longerw ere facing difficultiesw ith respectto accessto specialty care forM edicaid recipientsin theirareas. Seee.g.,N ieveson 5/18/2010 FinalTr. at 2260:5-18;A lbury on 11/15/2011 Rough Tr.at 107;K im bley-c am panaro on 10/6/201l Rough Tr.at98-103. Itind theirtestim ony unpersuasive fora num ber of reasons.
229.First,som e of these w itnesses directly contradicted their ow n sw ol'n deposition testim ony or prior w ritten statem ents. For exam ple, M s. K idder testifed attrialthatshe did notbelieve the shortages noted in the A H C A survey
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çfwereassystematicastheyappearonthatchart(PX 2051.'' Kidderon 5/20/2010
Final Tr.at 2751:1-6. A t deposition, how ever, M s.K idder testifying as the Al-lcA -designated agency representative on these issues acknow ledged thatthe agency believed çtthere w as a critical access to care problem in these specialty types''as to w hich a LB R w as m ade,and that rem ained true at the tim e of her deposition. 1d.at2751:7 - 2752:5. Seriouscredibility issuesexistw hen aw itness
significantly changes her testimony from thatgiven as a swol'n Rule 30(b)(6)
w itness. Sim ilarly,testim ony by M s.K im bley-cam panaro,A H CA 'S Tam pa-area program director, directly contradicted her em ail, PX 203, w hich found ttchallenges'' in her area for ten different areas of specialists. çlchallenges'' connotesdifûculty in finding sufficientspecialistproviders.
230.Second,som e ofthistestim ony w asbased on unreasonableassum ptions as to w hat constituted reasonable access to care. For exam ple,M s.Fran N ieves testified that there w ere no difficulties securing access to specialists in area 8, despite the factthat 14 areasofshortage w ere identified in 2007 forherarea. See PX 205. H eropinion assum ed thatifa single specialistw asavailable forM edicaid
recipientsin thatareaoran adjoiningarea,then sufficientaccessexisted. Nieves on 5/18/2010 Final Tr. at 2264:7-15; id. at 2265:1-5 (stating that içif gaj
derm atologistin dow ntow n M iam iw asaccepting som e children on M edicaid,that w ould m ean forpurposesofA rea 8 overin Sarasota you w ould have an available
dermatologisf').
231.Third,A H CA area adm inistrators'testim ony w as based on com plaints they received about diffculties in accessing care. lf they did not receive com plaints,because beneficiaries orproviders did notcontactthe area office,they w ould notknow aboutdifficultiesin accessing care. See,e.g.,G ray on l1/28/2011 atR ough Tr.29;N ieveson 5/18/2010 FinalTr.at2268:6-22;K idderon 5/20/2010 Final Tr.at 2753:2-19. The area offce also does not follow up to determ ine
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 105 of 153
w hether care w as received, or if received, w hether it w as unduly delayed or involved extensive travel. See, e.g., G ray on 11/28/2011 R ough Tr.at 30-32; A lbury on 11/16/2011R ough Tr.at48;Fulleron 11/29/2011Rough Tr.at87,119120. Sim ilarly,the inability ofan A H CA em ployeeto recallany discussionsin the office concerning a child going w ithoutspecialty care isw eak evidence atbestof the lack of a specialty accessproblem . A lbury on l1/15/2011 R ough Tr.at 121. This is especially true given docum entary evidence from the sam e area offce attesting to a shortage ofspecialists. A lbury on 11/15/2011 Rough Tr.at121. See
aslo PX 202 (specialistneeds in Area 9 where M r.Albury works);PX 198 (shortageofpediatricspecialistsofeverykindinArea11whereM s.Grayworks).
A s one A H CA w itness acknow ledged,he could not say w hether or not children
wereactually denied care,justthathewasnotmadeawarethatcarewasdenied.
A lbury on 11/16/20l1Rough Tr.at46. 232. Fourth, w hen pressed, these sam e w itnesses often conceded the
existence of a specialist care problem . For exam ple, Rhea G ray,the A rea 11 adm inistrator,testitied she personally w as nOtaw are Of com plaints about access problem sand thatan adequate num berofspecialistsw ere enrolled in the M edicaid program . But M s.G ray adm itted on cross exam ination that she had correctly w ritten thattherealissuesw erethe w illingnessofthose specialiststo seeM edicaid patients,and thatlow pay and billing diffcultiesw erethe reported reasonsfortheir unw illingness. G ray on 11/28/2011 Rough Tr.at43-44. Further,w hile she had not experienced m ore than a tw o-w eek delay in having patients seen at M iam i Children's H ospital or Jackson M em orialH ospitalin M iam i, she acknow ledged thatfrequently thewaittim eforM edicaidchildrentobe seen by aspecialistatone of those hospitals w as from six to nine m onths. 1d. at 45. Finally,M s.Gray subm itted a report,w hich w as approved by her colleagues, indicating thatthere w ere no specialists ççof any kind''w illing to see M edicaid recipients in M onroe
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County and thatthe Area 11oftice had difsculty in finding specialty care in eleven differentfields,including édpediatric specialistsofevery kind.'' PX 199.
233. Fifth, none of the testim ony provides an explanation to support defendants'argum entthatthe ttacute shortages''in m ostspecialty areas statew ide hassuddenly disappeared. Therehavebeen no changesin reim bursem entratesfor specialists during this tim e period,N ieves on 5/18/2010 Final Tr.at 2262:7-16, although dem and forservicescontinued to increase.
234.Foral1ofthese sam ereasons,1place little w eighton theconclusory lay opinions offered by M s.K idder and other A H CA w itnesses that there w as no difticulty w ith regard to accessto specialistcare forchildren on M edicaid.
235. The existence of a severe problem in access to specialists is also reflected in A H CA 'S LBR S subm itted to the governor and legislature to increase the reim bursem entrates forderm atology,neurology,neurosurgery and orthopedic surgery,each ofw hich are specialists thatchildren utilize. K idder on 5/19/2010 FinalTr.at2528:12-17. The given reason forthe requested increasew asa critical accessto careproblem in those areas. PX 89;PX 90,PX 10;K idderon 5/19/2010 FinalTr.at2527:8- 2528:7.OneAH CA LBR stated:çç-l'heM edicaidareaoffices have identified a physician specialty provider shortage and critical access to care
problem''in these specialty areas. Ex.727(emphasisadded). Theseareaswere
selected because a m odest proposal w as believed to have the best chance politically for passage. Snipes on 12/9/2009 Final Tr. at 405:6-13; Isaac on
8/11/2010FinalTr.at3883:4-24(testifyingtostatementofSec.Agwunobi).
236. M r. Snipes confirm ed that these LBR S retlected the view s of the
agency. Snipes on 12/9/2009 Final Tr.at 403:11-22. He testifed::d(W je
supported theissues;w e feltthe issuesw ereim portant,even critical.'' 1d.at459:110.
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237.The LBR S requested increases in specialistreim bursem entfor several years. A n A H C A w itness testifed thatthey take the statem ents in those requests
Sçextremely seriously'' and ttdo their best to give (the legislaturej accurate
inform ation.'' K idderon 5/20/2010 FinalTr.at2741:4-6. The LBR Sw entthrough a review processby a num berofindividualsand bureausinside A H CA ,including the secretary. They w erethen review ed by the governor'soffice and w ere listed as
one ofthe priorities forlegislative action. PX 719 (for2009-2010 fiscalyear,
physician specialty fee increase w as num ber one A H CA priority in G overnor
Crist's recommendations). ltsnd the agency'sconsistentposition expressed in
these LBR Spersuasive evidence asto the conditionsin M edicaid relating to access to specialty care.
238.Evidence from the D O H dem onstratesthatCM S children on M edicaid also lack accessto specialty care. CM S reported in a 2004 C M S survey ofthe 17 C M S area and regional offices w idespread problem s w ith regard to accessing specialty care.The pediatric specialties for w hich no access w as m ost frequently encountered w ere derm atology,neurologicalsurgery,orthopedics,psychiatry,and urology. PX 319. In O ctober of2008,V ickie Posner,testifying asa designee of D O H , w as asked w hether D O H w as aw are of any difference in the ability of children on M edicaid to access specialty care as com pared to children w ith other types of insurance. She replied: ttA necdotally w e know that som e- if you are going to include a1l of insurances in that question- private paying, private insurance children have access to services that M edicaid children do nothave.l think that'sfairly w idely recognized in the State ofFlorida.'' Posneron 10/28/2008
Depo.Design.at83:20-84:12(lim itedbycourtordertoCM Schildrenonly).
239.A num berofpediatricianstlzroughoutthe state also gave consistentand persuasive testim ony as to the difficulties they faced in referring children on M edicaid to specialist. D r.Cosgrove,w hose practice consists of approxim ately
l07

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 108 of 153

20% M edicaid patients, has difficulty refen-ing children on M edicaid to

derm atologists,allergists,orthopedic surgeons,neurologists,and endocrinologists,

difficulties she does not face w ith privately insured patients. Cosgrove on

5/19/2010 Final Tr. at 2563:12-17, 2566:11-15, 2569:11 - 2571:14, 2573:1-6.

These difficulties have continued w ith regard to referring M edicaid children to

rheum atologists,orthopedics,and derm atologists;Cosgrove on 1/31/2012 Rough

Tr .

at

149-152.31

240.D r.Silva,w ho had approxim ately 20% ofherpractice w ith M edicaid

patients, also testified that she has trouble referring M edicaid patients to

derm atologists, EN TS, ophthalm ologists, orthopedists, endocrinologists, general

surgeons, rheum atologists,and infectiousdisease specialists,am ong others. Silva

on 5/20/2010 FinalTr.at2779:6-15. M edicaid children have to w aitthree to Gve

m onths in B randon and one to three m onths in Tam pa, w hereas com m ercial-

insurance patientscan be seen w ithin one to tw o w eeks. 1d.at2779:17 - 2780:8.

In rebuttal testim ony, D r. Silva confirm ed recent difficulties and travel tim es

experienced by M edicaid patients she refers to specialists, such as allergists,

derm atologists,and endocrinologists,difficulties not experienced by her private

patients. Silvaon 1/19/2010 Rough Tr.at140.

241.D r.Schechtm an,w hose practice consistsof23% children on M edicaid,

sim ilarly testified thatitis içm uch m ore diffcultto find a specialistw ho isw illing

or has an open panelto see M edicaid patients.'' Schechtm an on 5/20/2010 Final

Tr.at2836:1-5. For exam ple,a child w ith a potentially precancerousm ole could

not see a derm atologist for at least six m onths. 1d. at 2838:2-13. O rthopedic

surgeonsw ould only see M edicaid patientsw ith lim ited diagnoses.1d.at2839:3-

l1. By contrast,there w ere (dno barriers''w ith respect to com m ercially-insured

31IrecognizethatD

r .

Cosgroveusuallycalledthefirstthreetofoursgecialistsonherlist,

and havetaken thislim itation into accountin assessingthew eightofhertestlm ony.

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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 109 of 153
patients. 1é There w ere no pediatric neurologists in Palm B each County w illing to acceptM edicaid patients,requiring those patients to travelto M iam ito seek care. 1d.at2840:16 - 2841:12. On one occasion,Dr.Schechtm an hadto adm ita child on M edicaid into the hospitalto receive cardiac care that could have been m anaged in a low -costoutpatientsetting ifthe child'sM edicaid 14M 0 plan had been accepted by pediatric cardiologists. 1d.at2842:25 - 2844:14. A ccess for M edicaid patients to EN T specialists is also ûûextrem ely lim itedy'' although privately insured patientshave tçno problem ''being seen.1d.at2844:15- 2845:17. D r.Schechtm an's rebuttaltestim ony show ed thatthe obstaclesin providing access to specialty care for children on M edicaid continue. Schechtm an on 1/26/2012 R ough Tr.at14-21,30-33.
242.D r.lsaac testified thatorthopedic care is not available to children on M edicaid in the tçreasonable area''around hispractice. Consequently,he has seen children w hose broken lim bsw ere only putin a splintand nota cast,which Dr. Isaac characterized asççm edicalneglect.'' lsaac on 8/11/2010 FinalTr.at3869:1020. O verthe pastfew years,D r.Isaac hasbeen unable to referM edicaid patients to specialists in orthopedics, neurosurgery, derm atology, or psychiatry. 1d. at 3873:3-23.
243. O ther PC PS have also experienced trouble referring children on M edicaid to specialists- an issue that those w ith private insurance do not face. See e.g.,Seay D epo.D esig.on 11/14/2008 at 15:9 - 16:24,20:2-9,57:7-21,103:710;St.Petery D epo.D esig.on 11/11/2008 at 191:1-4,195:7 - 196:11,197:15-25, 198:21- 199:10;R itrosky D epo.D esig.on l1/10/2008 at17:17 - 18:14,27:18-22, 39:9 - 40:3,45:2 - 47:7,50:8-23,50:8 - 51:1;Curran D epo.D esig.on 10/7/2008 at30:4 - 31:8,32:16 - 34:14,37:13 - 38:11,55:8 - 56:49Chiu D epo.D esig.on 11/25/2008at103:19 - 106:1;KnappenbergerD epo.Desig.on 11/20/2008 at32:9 - 33:5,99:12 - 100-8.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 110 of 153
244.Baniersto access to specialistcare w ere confirm ed by testim ony from various m edicalspecialists. D r.D uncan Postm a,w ho isthe supervising partnerat Tallahassee EN T,testified that their practice lim its the geographical area from w hich they acceptM edicaid patients,declining to acceptpatients from outside the
county area and limiting the number of new M edicaid patients to tw o new patientsperw eek,per doctor. Postm a on 8/4/2010 FinalTr.at3152:2-19. A s a result,M edicaid patients requiring non-em ergency EN T care face a tw o-m onth delay,as opposed to the tw o-w eek delay experienced by non-M edicaid patients. 1ti at3153:7-23,3155:7-16. These lim itations are im posed because Tallahassee
ENT ççlosels)money on M edicaidpatientsand can only afford to losesomuch.''
1d. In 2006,theaveragecostofanEN T patientencounterwas$138,butM edicaid paid approxim ately $88 per encounter;in 2007,the average encounter costwas $135,and M edicaidpaid approximately $85.1d.at3187-89.ForaM edicaidchild patient,TallahasseeENT lostan averageof$45-$50 perpatientin 2006 and 2007.
16L at3190:5-17. 245.D r.BrettB aynham is an orthopedic surgeon in Palm B each County,
whosepracticeis95% children. Tw enty-tive percentto 30 percentofhispatients used to be children on M edicaid. In 2004,how ever,he lim ited the num ber of M edicaidpatientshewould seebecauseofthelow reimbursem entrates.Baynham
on 1/24/2012 Rough Tr.at8-9,12.See also PX 770 (M arch 2010 emailfrom
pediatric otolaryngologist,stating he is the only pediatric EN T in the W estPalm Beach area seeing M edicaid patients in an office setting and thathe is presently
schedulingM edicaidpatientsmorethan2-3monthsout.).
246.Dr.A dam Fenichel,an orthopedic surgeon in the O rlando area,testified sim ilarly. W hile 80% ofhis patients are children,only 5% are on M edicaid. D r. Fenichelsees 2,000 new patientsa year,buthe lim itshispractice to only a couple hundred M edicaid patients,because ltthereim bursem entforM edicaid islow erthan
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our costto care for patients.'' Fenichelon 10/18/2010 FinalTr.at 4301:20 4302:4,4306:2-24.See also PhillipsD epo.D esig.on 11/24/2008 at 14:9-17,33:210,34:2-16,83:8-18;.
247.Dr.RicardoAyala,aspecialistinpediatricneurology,testifiedthat:(1)
helim itsthenum berofnew M edicaidpatientshe seesin hisTallahasseepractice;
(2)helosesmoney on treatingthesechildren;and(3)thesechildren faceafourto
tive m onth w ait,as opposed to a tw o-w eek w ait for privately insured children. A yala on 8/9/2010 Final at 3569:21 - 3570:1, 3580:4-16, 3589:2-11. Furtherm ore,w hen heneedsto referchildren on M edicaid to otherspecialists,such as orthopedists,psychiatrists,sleep disorder specialists,and rheum atologists,the referralsarenotaccepted.1d.at3594:1-14;3615:6 - 3620:24.
248.Plaintiffs also presented the testim ony of D r.Rex N orthup,w ho in addition to being a criticalcare pediatrician,served as the CM S regionalm edical directorforN orthw estFlorida. Though he doesnotknow ofany CM A child w ho has been denied access to specialty care,there are a num ber ofareas w ithin that region w here there is içan inability to obtain accessto care w ithoutaugm enting or supplem enting the M edicaid rate.'' N orthup on 2/10/2010 FinalTr.at1598:13-21. CM S has supplem ented the M edicaid rate so as to obtain derm atology care, because no providers routinely see children forthe M edicaid rate. N orthup on 2/10/2010 FinalTr.at 1617:8-25.See also Curran D epo.D esig.on 10/7/2008 at 45:1 - 46:9;K nappenberger D epo.D esig.on 11/20/2008 at 22:17-25; Seay on 11/12/2008 D epo.D esig.at 106:14 - 108:6. There are no orthopedists to treat children onM edicaid in thePanamaCity area,exceptintheem ergencydepartment of the hospital. 1d. at 1620:17-20, 1622:6-22. Children requiring orthopedic specialty care m usttravelto otherareas,such asJacksonville orG ainesville,w hile there are orthopedists w illing see privately-insured patients in the area. 1(L at
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1630:19- 1631:2332 ENTSin thearealim itthenumberofM edicaid childrenthey .
w ill see,requiring these patients to drive three hours or m ore for care. 1d.at 1638:2-12. Forpediatric neurology care,the w aitforM edicaid patients istwo to threemonths,asopposed to acoupleofweeksforotherpatients. Id.at1643:231645:18.
K . ProvisionY tilization/T im elinessofD entalC are 249.D entalcare is especially im portant for children on M edicaid because low -incom e children are atsubstantially higherrisk fordentaldisease,and prim ary t00th decay,and have higherlevelsofuntreated dentaldisease.PX 85,PX 707. 250. States are required to provide eligible children w ith dental services including ççrelief of pain and infections,restoration of teeth,and m aintenance of
dentalhealth.''42U.S.C.j1396d(r)(3)(B).Theyarealsorequiredtoreportonthe
num ber of children receiving dentalservices. The CM S 416 report fulfills that reporting requirem ent.
251.For FY 2007,of the approxim ately 1.6 m illion children eligible for dentalservicesthrough Florida M edicaid,only 343,000 received any dentalcare, according to the CM S 416 reportAHCA subm itted in A prilof2008. See PX 8
(comparelines1and 12a). M r.Snipes,acknowledged,içl-l-jhat'snotacceptable.''
Snipes on 12/9/2009 FinalTr.at373:1-8;see id.at442:17-23. Thatequates to a
dentalutilizationof21% (343,529/1,611,397),PX 440at52-53,whichmeansthat
79% ofthe children on M edicaid in Florida w ere notreceiving any dentalcare.PX 440 at52-53. Thattied Florida forthe low estM edicaid dentalutilization rate in the nation. PX 440 at 52-53. Fiscalyear 2007 w as not an aberration. For FY
32Dr Northup'stestim onyon thesepointsisnotdependenton theresidualexception to .
the hearsay nzle,as to w hich anotheraspects ofDr.N orthup'stestim ony concerning rates was adm itted.Tr.at1636:22 - 1637:9.
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2006,Florida'sM edicaid dentalutilization rate was also 21% ,which tied itfor second low estin the nation.PX 440 at52-53.Seealso PX 418 atp.9.
252.Children on private insurance receive dentalcare at a far higher rate. N ationally,55% ofchildren w ith private insurance visited a dentistw ithin a given year,while only 37% ofthe children on M edicaid visited a dentistoverthe sam e tim e period,according to a 2008 G A O report. PX 452 at Crall01734;Crallon 11/17/2010 atTr.5093:20 - 5094:9;5161:9 - 5162:25. Only 49% ofchildren under 18 from fam ilies w ith incom es above the poverty line had a dentalvisitat leastonce during a lz-m onth period. Thatfigure rose to 26% and perhapsashigh as 73% for fam ilies w ith incom esabove 200% ofthe poverty line,according to a 2001reportby the federalD I-IH S.PX 447 atC ral1000750.
253.A H C A ,in a seriesofLBR Sand otherdocum ents,hasacknow ledged for nearly a decade thataccess to dentalcare for children on M edicaid is inadequate and thatratesm ustbe increased. AHCA ,through itsLBRS,furtheracknowledged that:
* D entalparticipation in the Florida M edicaid program is declining, c.g.,PX 82,PX 83,PX 84,PX 85,PX 88,PX 109,PX 726.See also Sham e on 11/16/2010 FinalTr.at 4947:1-8;C erasolion 8/11/2010 FinalTr.at3934:18-25;
*Florida's M edicaid reim burses dentists at less than 40% oftheir usualand custom ary costs,e.g.,PX 80,PX 81,PX 82,PX 83, PX 109, PX 715, PX 718, PX 726. See also C erasoli on 8/11/2010 FinalTr.at3935:12 - 3939:14;
* Florida's M edicaid reim bursem entrates are very low com pared to otherstates,e.g.,PX 80,PX 85;PX 88,PX 155;PX 718.See also Cerasolion 8/11/2010 FinalTr.at 3957:16 - 3961:18; Shap eon l1/16/2010 FinalTr.at4954:8-21;and
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@ Florida dentists say the state's M edicaid rates do not cover their costs.PX 80,PX 81,PX 82,PX 83,PX 84,PX 88,PX 109.
254.The LB R Srepeatedly called fora rate increase,and state,in alm ostthe exactsam e language,yearafteryear:ççA fee increase forchildren'sdentalservices
isneeded ifservice isto be available.'' PX 78.Seealso PX 80 (same),PX 82 (same),PX 83,PX 109(same).TheLBRSalso statethatttlaln increaseoffeesis
expected to increase provider participation,and subsequently, increase access to dental care.'' PX 80. The testim ony aboutthese LB RS is consistent. See,e.g., Sharpe on 11/16/2010 FinalTr.at4945:18 - 4949:8;4952:16 - 4953:19;4956:16 - 4963:19;at4964:19 - 4966:19;4968:5 - 4970:25;Snipeson 12/9/2009 at411:15 - 414:10;at415:10 - 416:8;K idderon 5/19/2010 FinalTr.at2534:12-24.
255. N one of the above recom m endations to increase dental fees w as adopted by the legislature. Snipes on 12/9/2009 FinalTr.423:20-22. For every tsscalyear since 2005-2006,the K idc are Coordinating C ouncilhasrecognized the inadequacy of Florida's dental rates and recom m ended increases in dental reim bursem entrates. PX 697,698,699,349,350,682. From 1987 through 2010, Florida M edicaid dentalrates w ere increased once,by 13% in 1998. Cerasolion 8/11/10 FinalTr.at3951:10-25. M eanw hile,children'senrollm entin the Florida M edicaid program roseby approxim ately 78% from 1998 to 2008,thuswidening the gap betw een the services needed and the services available. PX 682 at 12; K idderon 5/19/2010 FinalTr.at2485:4 - 2486:4.
256.D efendantsclaim thatsom e sguresin theLBRSshowing a decline in the num ber of dentists participating in M edicaid w ere sim ply copied w ithout verification from one year to the next. Even iftrue,how ever,itis clear thatthe percentage of licensed dentists enrolled in and participating in Florida M edicaid has declined. A H CA 'S ow n interrogatory responses dem onstrate thatthe num ber ofgeneraldentistsw ith 100 orm orepaid claim sfortreating children declined from
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616to 377,adrop ofm orethan 3824,from FY 2003toFY 2007.PX 739atTable D uring the sam e tim e period,the num beroforal surgeons w ith 100 or m ore
paid claim s for children fellm ore than 30% and the catchallcategory ofother dentistsplum m eted from 130 to 42,a decline of67% .1d.
257. The reason for these declines is Florida's inadequate dental reim bursem ent rates. A 2004 study by the A m erican D entalA ssociation,w hich A H CA relied upon w hen drafting itsLBR S,show ed thatFloridaranked 48th in the nation forpreventative services and 49th in the nation for treatm ent services. PX l55 at13-14;Cerasolion 8/10/10 FinalTr.at3960:22 - 3961:18. Thatsam e study show ed that for 15 dental procedures, Florida's M edicaid reim bursem ent rates ranked at or below the 5th percenti1e nationally. For ten procedures, Florida's reim bursem entrates w ere below the firstpercentile nationally. PX 155 at 6;PX
l09atAHCA 00719087to88(showingreimbursementrateswerebelow dentists' costsfor6 of7 proceduresanalyzed);Cerasolion 8/10/11FinalTr.at3957:3-
3959:24. 258.ln 2001,the H ealth C are Financing A gency,the predecessorto federal
CM S,stated:içln general,HCFA believesthatsignificantshortfallsin benesciary receipt of dental services,together w ith evidence that M edicaid reim bursem ent falls below the 50th percenti1e of providers'fees in the m arketplace,create a presum ption of noncom pliance w ith both these statutory requirem ents. Lack of access due to low rates is not consistent w ith m aking services available to the M edicaid population to the sam e extent as they are available to the general population,and w ould be an unreasonable restriction on the availability ofm edical assistance.'' PX 447 atCrall00751. Signifcantly,M s.K idder adm itted thatif
M edicaid reim bursem ents fordentistswerebelow the50thpercenti1e(which they were),then Floridawaspresumptively outofcompliancewith theM edicaidAct.
K idderTestim ony on 5/20/2010 FinalTr.at2733:5-11.
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259.N um erous other agency officials,including the A H CA secretary,have acknow ledged substantial problem s w ith Florida's M edicaid dental program . Form er A H CA Secretary,A lan Levine, sent an em ail lam enting that ççonly 16 percentofourchildren in M edicaid fee-for-servicegotany preventative dentalcare lastyear.'' PX 277A . Form erD eputy Secretary and later Secretary ofA H CA ,M r. A rnold,gave a speech atthe 2007 M edicaid A ccessto Specialty Care Sum m it,in w hich he presented charts show ing thata sm allfraction ofdentistsparticipated in M edicaid and even few er actually billed for M edicaid services. St. Petery on 12/8/2009 FinalTr.at 240:3 - 245:15. D ocum ents show that only 7.8% ofthe 9,021licensed dentistsin Florida w ereenrolled in M edicaid,and only 502 or5.6% , actually billed M edicaid. PX 218 at4.See also PX 211 atp.9.
260.M r.Sham e testifed thathe did notbelieve A H C A w as in com pliance w ith thereasonableprom ptnessstandard asto dentalcare.f#.at4976:15- 4977:9. H e testifed:ççW ell,w e're acknow ledging thatfor a federally required service,at least forthe children's portion of dentalcare,that the state is not even m eeting federalrequirem ents forthe provision ofthatcare.'' 1d.at4970:20-25;PX 108. He said he could nothave m ade a stronger statem entw ithoutbeing tsred. 1d.at 4962:11- 4963:19;4941:8-25.
261.M ore recently, A H CA recognized that even excluding the children enrolled in prepaid dentalplans,M edicaid I-IM O s,and PSN Sthatprovided dental care,834,651 children enrolled in Florida M edicaid had notreceived any dental care in atleastsix m onths,even though the periodicity schedule calls forthem to havea dentalcheck-up every six m onths.PX 150,PX 790.
262.M s.K idderacknow ledged çça signiscantshortfallin beneficiary receipt ofdentalservices.'' K idderon 5/20/2010 FinalTr.at2756:21 - 2757:5;2728:2022;2730:6-9. ln a N ovem ber of2006 em ail,she w rote M edicaid reim bursem ent ratesw ere ttextrem ely low ''and stated'. Ss-l-hisisa seriousbarrierto dentalcare and

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 117 of 153
is causing problem s w ith accessto dentalcare acrossm uch ofthe state ....'' PX 167.See also Cerasolion 8/11/2010 FinalTr.at3966:13-24.M s.M arcy Cerasoli, A H CA 'S agency w itness on dentalissues,acknow ledged thatFlorida's M edicaid reim bursem ent rates Ssare am ong the low est in the U nited States.'' C erasoli on 8/11/2011FinalTr.at3932:13-15. The m ain reason m any Floridadentistsw illnot provide services to M edicaid recipients is because of M edicaid's low reim bursem entrates. 1d.at3933:7-11. Few erand few er dentists are enrolling in Florida M edicaid and treating M edicaid beneticiaries.1d.at3934:18-25.
263.The D O H also acknow ledged that tta com m on banier to access to servicesisalack ofspecialty and dentalproviders,prim arily attributableto the low M edicaid reim bursem entrates.''PX 315 atD OH 00079770.
264.Florida M edicaid I4M o s in R eform and non-Reform counties m ust reporttheirI-IED IS results for annualdentalvisits form em bers age 2 through 21. Florida M edicaid 14M o s in both program s score poorly com pared to M edicaid I'IM o s nationally. The w eighed m easure of the Florida R eform I-IM o s is 15.1955% and the national m easure for I-IM o s is 42.5% , according to a 2007 report,the m ostrecentin the record. D X 334 at2;Brow n-W oofter on l1/8/2011 R ough Tr.at32-33.
265.The firstlarge 14M 0 to provide dentalcare to M edicaid benefciaries
was AtlanticDentalInc.(ççADl''). From FY 2003 through FY 2007,the most
recentyear for w hich there is data in the record,A D 1 neverprovided m ore than 23.12% ofeligiblerecipientswith any dentalservices. PX 14,PX 15,PX l6,PX 22. Reports from individual dental providers,covering 2007 and 2008 in six-
month blocks,show thatforeach period,themajority ofproviderstreated fewer
than 15% of the children assigned to them . Several provided no dental care w hatsoeverforthechildren assigned to them . D X 519.
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266.Testim ony from providersunderscoresthe lack ofaccessto dentalcare. ln the Tallahassee area,dentalcare is readily available to children w ith private insurance,butnotchildren on M edicaid. Patientsw ith cardiac issuesm ustbe sent to theUniversity ofFlorida dentalclinicin Gainesvillewherethereisasix-month w aitfortreatm ent. St.Petery on 12/8/2009 FinalTr.at260:19 - 261:17.,263:5 266:13.
267.D r.Cosgrove testified thatittakessix m onthsto refera M edicaid child enrolled in M edipassorin the W ellcare 11M 0 to a dentist.Cosgrove on 5/19/2010 FinalTr.at2573:7 - 2574:2. She had a patienton M edicaid w ith an abscess that could notgetan appointm entw ith a dentistforthree m onths. 1d.at2574:3-23. ln rebuttal testim ony, she testified that these problem s continued. Cosgrove on 1/31/2012 R ough Tr.at 147-152.
268.D r.Silva testiGed thathe does notknow ofany dentists w ho w illsee M edicaid kids for bottle rot or deep cavities. Silva on 5/20/2010 Final Tr.at 2768:1-2;2794:16 - 2796:9. N ordoes she know of any dentists in H illsborough County accepting new M edicaid patients.1d.at2819:20-24;2820:1-18.
269.D r.Schechtm an testified thatm ostofhisM edicaid patientsdo notsee a dentist.1d.at2845:18 - 2846:5;2846:6-18.
270.D r.N orthup testified that there are w aiting lists of ttseveral m onths' tim e''for CM S children to receive specialized dentalcare atSacred H eart'sdental clinic. 1d. at 1600:9 - 1601:6; 1602:19 - 1603:9. A t the tim e D r.N orthup
testiûed,theclinichadjustbecomeoperableagainafterattseveralmonths'period
of seeing no patients,''because there w as no dentistavailable. 1d. There ishigh dem and for services at the clinic,because it ççis the only dentalclinic or dental providerin the four-county area specifically seeing pediatric patientsthatw illtake
M edicaidg.q'' 1d.at 1603:12-18. Otherdentists in the area acceptchildren on
private insurance.1d.at1603:19-2l.
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271.D r.N orthup som etim es pays dentists ratesabove the M edicaid rates to treatCM S children because thatçsis essentially the only w ay w e've been able to obtain accessto dentalcare forthose children.'' 1d.at 1605:20-22;1606:1-4. D r. N orthup supplem entstheM edicaid ratespaidto dentistswhen achild needsurgent care and cannot w ait the tw o to three m onths it otherw ise w ould take to see dentist. 16l at 1607:18 - 1608:1.
272. Other PCPS also have trouble referring children on M edicaid to dentists. See e.g., St.Petery D epo.D esig.on 11/11/2008 at 197:15-25;Curran D epo.D esig.on 10/7/2008 at39:21- 41:1,41:22 - 42:3,42:16 - 43:5;C hiu D epo. D esig.on l1/25/2008 at 87:21 - 89:1;Ritrosky D epo.D esig.on l1/10/2008 at 49:9 - 50:7.
273.D r.N atalie Carris a pediatric dentistw ho practices outside ofTam pa. Carron 8/10/2010 FinalTr.at3787:10-13. Shepracticed in Texas,where99% of herpatientsw ere on M edicaid. ln Florida,how ever,she did notacceptM edicaid, because Etthe reim bursem entin Florida w asm uch low erthan itw asin Texasatthe tim e.'' 1d.at3789:25 - 3790:2. Som etim es,parentsofM edicaid children com e to heroffering to pay herbecause they cannotfind a M edicaid dentist.1d.at3791:24 - 3792:8. She has difficulty m aking referralsbecause there are so few dentists in the area who accept M edicaid, and m ost of those dentists do not accept new patients. 1d.at3793:3-20;3808:17-24.D r.Carrtestifed thatshe w ould notaccept M edicaid patients in her new practice because even w ith a 48% increase,the gap betw een the fees she charges and the reim bursem entrate is too great. Carr on 1/23/2012 R ough Tr.at7:2-19.
274.D r.R obertPrim osch isa ProfessorofPediatric D entistry and A ssociate D ean ofEducation atthe C ollege of D entistry atthe U niversity of Florida. A s Chairman ofthe Departm entofPediatric Dentistry,D r.Prim osch ran the dental clinic forchildren,80% ofw hom w ere on M edicaid. Prim osch on 8/10/2010 Final
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Tr.at 3721:15-20.,3722:24 - 3723:4;3725:9-16. The clinic saw about 14,000 patients a year, and the dem and for its services exceeded its capacity. 1d. at 3732:25 - 3733:4.,3725:17 - 3726:20. W hen D r.Prim osch ran the clinic,there was a six-m onth w aiting period for children whose dental needs required hospitalization,and thatwaiting periodhasnotshortened since forchildrenw hose carehe hassupervised.1d.at3731:4 - 3732:1.
275.D r.Jam es Crallis a professor ofpediatric dentistry at U CLA ,and a form erchairofUCLA 'Spediatric dentistry section. Crallon 11/17/2010 FinalTr. at5069:21-23,5070:2-3;5071:1-13. From 2000 to 2008,he w as director ofthe N ationalO ralH ea1th Policy C enter,w hich is funded by the H ealth Services and
ResourcesAdministration(l4RSA).1d.at5070:11-21.Overthelast25years,Dr.
Crall has held a variety of positions w ith num erous national and federal govem m entbodies dealing w ith oralhealth policy. 1d.at5072:21 - 5073:20. D r. Crallhas tw ice testified before Congressionalcom m ittees and tw ice before state legislatures. 1d. at 5073:22 - 5074:7. H e has published 60-65 articles in peer
reviewedjoum als,id.at5075:14-19,including many on therelationship between
ratesand participantsby dentistsin M edicaid program s. lacceptDr.Crallasan experton public policy w ith respectto the provision ofdentalcare to low -incom e children.
276.Dr.Cralltestiûedthat: (a)children'saccesstodentalcarein Florida's M edicaid program quite low, declining, and inadequate; (b) dentists' participation inFlorida'sM edicaid program islow,inadequate,and declining;(c)
Florida M edicaid rates are 1ow as com pared to m arket based fees charged by dentistsand farbelow the average overhead costofproviding dentalservices;and
(d)M edicaidratesneedtobeincreasedatleasttothe50thpercentileofprevailing
fees charged by Florida dentists to signifcantly im prove access. Crall on
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11/17/2010 Final Tr.at 5078:15 - 5079:5;5079:12 - 5081:14,.5081:15-23.,PX 418.
277.Dr.Crall's conclusion regarding accesswasbased on Florida'sCM S 416 reportsshow ing thatonly 21-23% ofeligible children received any dentalcare, and even few erchildren receivedpreventativedentalcare ortreatm ent.PX 418at p.9;Crallon 11/17/2010 FinalTr.at5082:8 - 5084:3;PX 447. By contrast,m ore than half of privately insured children receive dentalcare in the course of a year. C rallon 11/17/2010 FinalTr.at5093:20 - 5094:9;5161:9 - 5162:24;PX 452 at 13.
278.D espite defendants'm ultiple attackson the use ofthe CM S 416 report data to m easure access to dentalcare,the reportrem ainsthe m ethod w hich CM S usesto m easure stateperform ance. Crallon 2/7/2011FinalTr.at5208:1-22;PX 440 at3;Crallon 1/26/2012 R ough Tr.at 155. IIED IS data are available only for
managedcarecompanies(Cra1lon2/7/2011FinalTr.at5243:12-14)andarebased
on survey data,w hile the CM S 416 reportrelieson allthe data. Crallon 2/7/2011
FinalTr.at 5243:12-22. Defendants suggested that ClD s and FQHCS were
sufficient to compensate for the lack of dental providers accepting M edicaid patients. B ased on the instructions for the CM S 416,how ever, al1 dentalcare
provided to children by CHDSand FQHCSare counted on the CM S 416 report.
Crallon 2/8/2011 Rough Tr.at 82-83. Thus,1 find thatthe num ber of children
receivingdentalcareateitherClD sorFQHCS,which ranged from about65,000
childrenin FFY 2003to about103,000 children in FFY 2007,asshown onPX739
(lastpage,table 3),areincluded in thetotalnumberofchildren receiving dental
care as show n on the CM S 416 reports for those years. A nd the num bers on the CM S 416 reports dem onstrate that,notw ithstanding the im portantrole played by
Clo sandFQHCS,79% ofthechildrenonM edicaidinFloridadidnotreceiveany
dentalcare in FFY 2007.
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279.D efendants' expert M s.Sreckovich confused dentalprocedures w ith dental visits, despite her ow n back-up m aterials show ing she w as counting procedures. Sreckovich 1/10/2012 Rough Tr.at23-24,26-27. Thissignificantly underm inesheranalysisbecause dentistsoften perform severalproceduresduring onevisit,id.at23,and heranalysism ade itappearasifchildren on M edicaid w ere receiving tw ice asm uch care,ifnotm ore,than they really w ere. 16L at31-34. M s. Sreckovich also com puted an average num berofdentalvisits am ong allpatients
thatobscured thefactthatthevastmajority ofchildren receivednodentalvisits.
2/8/2011Rough Tr.at102-03.
280.1conclude thatDr.Crallisjustified in relying upon the CM S 416
reports,and thatthe Gguresin thosereportsarem ore telling than M s.Sreckovich's average dentalvisitanalysis.
281.D r.Cralldeterm ined thatFlorida M edicaid ratesw ere farbelow m arket ratesand dentists'costs. H e com pared Florida M edicaid paym entrates in each of the 14 procedure codes to the 51st and 70th percentiles of 2008 charge data provided to him by M etLife,a com m ercialdentalinsurer. Crallon 11/17/2010 Final Tr. at 5119:24 - 5120:13, 5122:5-22; 5126:3-4. D r. C rall also obtained charge data from the 112008 N ationalD entalA dvisory Service Com prehensive Fee
Report''(theNDAS report),whichusesasystem likeM edicare'sRBRVS system to make geographicaladjustments. 1tL at5126:9 - 5127:20. FloridaM edicaid
rates equalonly 22% to 41% of the 50th percentile N D A S charges and 22% to 45% ofthe 51stpercentile ofM etLife charges. 1d.at5131:7 - 5132:20;PX 418
(Table5andpageEl1oftheAppendix).
282.D r.Crallconsidered the dental service com ponent of the Consum er Price lndex and determ ined that since 2003, inflation w as about 40% , at a com pound rate,j#.at5138:19 - 5139:15,and thatthe literature show sthat60-68%
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ofdentaloffcerevenues,exclusiveofany com pensation to thedentists,are spent

on overhead.1d.at5139:17 - 5140:6. 283.D r.Crallexam ined notonly the 50th percentile ofdentists'charges,but

also 70t14-75th percentile ofdentists'charges because ofthe use ofthatpercentile

as a benchm ark for M edicaid rates in Indiana,South Carolina,C onnecticut,and

Tennessee and in connection w ith settlem ent of litigation. 1d. at 5140:15 -

5141:20; PX 418 at 11. A sizeable increase in dentists'participation follow ed

M edicaid dental rate increases to at least the 75th percentile of charges. 1d.at

5141:11 - 5144:19;PX 418 at 11. D r.Crallknow s of no state w hich had an

increase of 58% or m ore in dental participation w ithout a contem poraneous

increasein M edicaid ratesto atleastm arketlevels.Id.at5145:6-12.

284. D efendantscriticize D r.Crall'suse ofcharge data ratherthan paym ent

data. D r. Crall used charge data rather than paym ent data because reports, including a G A O report,retlectthatdentists'collection ratesare close to 95% . 1d.

at 5121:2-22;id.on 2/8/2011 Rough Tr.at 75:21 - 76:14. M oreover,m aking

comparisons using paym ent data from commercialinsurers (if itwere readily available)wouldbeproblematicduetovariablessuch asco-paysand deductibles.

Crallon 2/8/2011Rough Tr.at82:7-17. 285.M ichigan had a 300% increasein dentalparticipation within a yearin

the counties w here rates w ere increased. 16L at 5147:1-7. ln those counties,the

num ber of children receiving dentalservices increased about 32.3 % in the Grst

year.1d.at5148:23-25;Crallon 1/26/2012 R ough Tr.at106-107.

286.D r.Crallalso exam ined the effectofthe rate increases from 1998 to

2003

in

A labam a ,

D elaw are, lndiana, South

Carolina, and

Tennessee

on

the

num berofchildren reported asreceiving dentalcare in the respective states'CM S

416 reports. Crallon l1/l7/2010 FinalTr.at 5147:12 - 5148:2;PX 418 at

The num ber of M edicaid children receiving any dental service over the period

l23

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 124 of 153

from 1998 to 2003 forthese five states increased by 168% to 446% ,according to the states'respective CM S 416 reports. Crallon 2/8/2011 R ough Tr.at 70-74. Thoseresultsare illustrated by achartin hisreport:

FY1998 FY2X 1 2:71v:.199 1:Y2003 20 3v*.599:

CMS416 CMS4#6 CMS 416 CMS 416 CMS 416

% with

% wllh

% with

% with

% w1th

DAotalVI*RI D*ntalW lit: Det>talVlllts DentalVl*lts DentalVllltl

AL

4 1.659 1:5,922

253%

551.5*/

3> %

DE

8.423

4 5 43Q

1$3*4

18 269

217%

IN

47.73Q 16Q,627 337%

212.* 9

446%

SC 96.50 38.523 92% 24j,ty.V 254%

TN

148.X 8 141.14:

95%

249.252

168%

PX 418 at12. (The first,second,and fourth columnsshould read tçnumberwith DentalVisits,''nott:% withDentalVisits.'').The2007Connecticutsettlementled
to an increaseto the 70th percentile ofdentists'charges,and thatin tul'n resulted in a tripling of dentist participation in M edicaid and an increase of 38-45% in utilization in the m ostrecenttw o year period. Crallon 11/17/2010 FinalTr.at 5140:15 - 5141:10,5150:12-24.
287.D r.Crallconcluded thatin orderto increase the num berofdentistsw ho participate in the M edicaid program to an am ount com parable to the increases achieved in these states, it w ould be necessary to increase the rates Florida M edicaid paysdentistsatleastto the 50th percentile ofdentists'chargesin Florida. 1d.at5149:15 - 5150:7. CM S has also used the 50th percentile asa benchm ark of theadequacy ofdentalfees. PX 447 atCR ALL00751.
288. M s. Sreckovich's contention that increases in dental rates do not increase dentists'participation isbelied by the num erous exam plesD r.Crallcited in his initialreport. PX 418. Crallon 1/26/2012 Rough Tr.at 104. A s Dr.Crall opined, a significant increase w ould induce m ore dentists to participate in M edicaid.

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289. ççDentists cite as the prim ary reason for their not treating m ore M edicaid patients thatpaym entrates are too low .'' Crallon 2/7/2011FinalTr.at 5341:3-13;5380:15-16)PX 450 atCrall01638. D efendantsargue thatlow dental provider participation is the result of other factors,such as high rates of m issed appointm ents and higherrates ofdentaldisease. W hile this m ay be true,such factors do notdetract from plaintiffs'contention,ratherthey favor dentists being given financialincentivesto seeM edicaid children. Crallon 2/8/2011Rough Tr. at 77-78.
290. D r. Crall also considered the num ber of dentists participating in M edicaid. Crallon 2/8/2011Rough Tr.at81;PX 418 at8-9. H e concluded,based on data from the CD C and from a State ofFlorida w ebsite,thatabout 1,000 active M edicaid dentistsw as insufficientto serve a M edicaid population of 1,600,000. Crallon 11/17/2010 FinalTr.at5089:13 - 5099:18. In a rebuttalreport,D r.Crall am plified hisanalysis,usingthe700M edicaid children peractiveM edicaid dentist benchm ark developed in the Tennessee M edicaid Litigation Settlem ent. Crallon 2/8/2011R ough Tr.at63;PX 439 atpp.7-8;Crallon 1/26/2012 R ough Tr.at188.
291.Inthevastmajority ofthecountiesofFlorida,thereareaconsiderable
num ber of dentists not actively participating in M edicaid. Even if only halfthe dentists in each Florida county participated in M edicaid, there w ould be 35 counties,including those with the largestpopulation ofM edicaid children,with
fewerthan700M edicaidchildrenperparticipatingdentist.PX 439(AppendixA,
farrightcolum n show ing num berofM edicaid kidsperactive dentistislessthan
350).
292.D efendants suggested thatD r.Crallfailed to take into accountthata num ber ofFlorida counties are designated health shortage areas. ButD r.Crall's analysis is consistentw ith the FederalH ealth R esources Services A dm inistration
II'IRSAI,which considersasdentalshortage areasthose areaswherepopulation
l25

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 126 of 153
per dentist ratio exceeds 3,000 to Crall on 2/7/2011 FinalTr.at 5348:21 5349:17.Basedon thedataon HR SA 'Sw ebsite,only 15 % ofFlorida'spopulation livesin an areaconsideredunderserved.Crallon 2/7/2011FinalTr.at5349:10-22.
293.Defense counselalso suggested Dr.Crallshould have included adults seeking dental care in his w orkforce analysis. C rallon 1/31/2012 Rough Tr.at 121-122. 1 agree w ith D r.Crallthatthe appropriate com parison for a w orkforce survey isbetween the accessforchildren on M edicaid and theaccessforchildren in general because he w as analyzing children's access to dental care. C rall on 2/8/2011R ough Tr.at59.
294. Effective July 1, 2011, follow ing an appropriation by the Florida Legislature,A H CA increased the rates paid by Florida's M edicaid Program for dentalservicesby 48% . D .E.962,p.2. Dr.Crallprepared a supplem entalreport datedM ay 24,2011,in which heassessedtheim pactofFlorida's48% increase in rates.PX 786,Crallon 1/26/2012 Rough Tr.at87. Dr.Crallconcluded thatçithe increase of48% stillleavesFlorida dentalM edicaid rates severely below adequate m arket-based rates,''and he continuesto believethese ratesm ustbe increased. f#. at 88. D r.Cralltook the increased rates and com pared them to tw o ofthe three m easuresw hich he used to evaluate the chargesin hisinitialexpertreporti.e.,the 2008 N DAS com prehensive fee survey and the 2008 data he obtained from the comm ercial dental plan. 1d. at 88. The following chart shows that after considering the 48% increase,Florida's dentalreim bursem ent is stillvery low as comparedto norm aldentistry charges,even withoutaccounting forintlation since 2001.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 127 of 153

Prpcedum
Cod.
DQ12O (* 150 :0210 (* 272 17Q33: 13112G 51203 (71351
(7215Q 02331 92751 52930
(73220 93310 D714Q

FLMedicaid

FLMedlçald

Rate:w/

Rate v:. FLMedicaid 48% ln:v%.

20:1 ADA S Rates Based 2:04 ADA S

FLMedlo ld Atla#tlf%- onProposed Atlantit*#-

Rates

II*s

48% Inc

Iles

$15 5th

$22 33rd

$16 <1st

$24 5th

$32 <1st

$47 4th

$9 <1st

$13 2nd

S30 1st

$44 4th

$14 *1st

$21 <1st

S11 4th

$16 20th

$13 <1st

$19 3rd

S41 <1st

$61 4th

$39 <1st

$58 1st

N/A

568 2nd

S101 19th

$50 3rd

$74 18th

$148 1st

$219 3rd

$27 <1st

S4Q 1st

D .E. 964-6. Com paring Florida's increased rates to Southeast A tlantic R egion

percentiles from the A m erican D entalSurvey in 2001 show s all 14 ofthose new

Florida M edicaid enhanced ratesfallbelow the 331-d percentile and 11 ofthe new

ratesare in the 10th percentileorlow er.1d.at92-93.PX 786,ExhibitE.

295.From 2001 to 2010 the dentalcom ponentofthe Consum erPrice lndex

increased 51% . 1d. at 93. PX 786,par. 15. D r. Crall in his supplem ental

declaration concluded that:ttgiven the w oefulinadequacy ofthe currentrates,a

48% increase in Florida's M edicaid dental reim bursem ent rates m ight slow the

exodus ofproviders from Florida's M edicaid program ,but is not sufficientto

induce a significantnum berofprovidersto enterorre-enterthe program ,orto

stim ulate current providers to substantially increase the num ber of children on

M edicaid thatthey are w illing to treat. A s1previously indicated,doing so w ould

require raising reim bursem ent rates to a least the 50th percentile of dentists'

prevailing charges.''1d.at93.PX 786par.16.

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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 128 of 153
296. ln his initial report, D r. Crall also analyzed capitation rates. H e considered threeactuarialstudiesdone in 1998,1999,and 2004 ofperm em ber,per
month (PM PM )amountnecessary to coverdentalcare forchildren on M edicaid.
These studies,w hich on averageare m ore than a decade old,found thatan increase
from about$17 to $26 PM PM w asnecessary. Crallon 11/17/2010 FinalTr.at
5133:7 - 5160:10,PX 418 at 6-8. By contrast,A H CA 'S 2009 contractw ith the
com pany thatacquired AD1called foraPM PM am ountbetw een $5.53 and $7.86,
depending on age and status. D X 355 at 88. Even w ith the 48% dental fee
increase, M CNA 'S blended capitation rate was $11.88, Brown-W oofter on
l1/10/2011 Rough Tr.at66-67,stillfar below the am ountnecessary to provide adequate dentalcare for children on M edicaid. These three studies cited by D r. Crallaretheonly such studiesin the record.
297.M s.Sreckovich has not done any analysis on the effect ofthe 48% increase in dental rates. Sreckovich on 1/17/2012 R ough Tr. at 45-46. M s. Sreckovich's analysis of w hether Florida's M edicaid rates m ay be sufficient to coverthe variable costsoftreating aM edicaid patientisunpersuasive because she did not address the dentists' opportunity costor consider whether actual rates above variable costs but below average costs w ould m otivate dentists to see M edicaid patients. Crallon 2/7/2011FinalTr.at5334:19 - 5337:6;5342:4-6. ln heranalysisofthe Florida dentalrates,M s.Sreckovich reached no conclusion asto w hetherthe ratespaid to dentistsby the Florida M edicaid program w ere adequate to ensure children had access to care. Sreckovich on 1/17/2012 R ough Tr.at3334.
298.The Florida Legislature authorized A H CA to expand M edicaid prepaid dentalplans statew ide. Brow n-W oofteron 10/25/2011 R ough Tr.at 50-52. The prepaid dentalplansw illbe required to passalong to providersthe 48% increasein dentalfees. Brow n-W oofteron 11/8/2011 Rough Tr.at126-127. M s.Sreckovich
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 129 of 153
knows ofno evidence and offered no opinion regarding the likely effects ofthe prepaid dentalplan,w hich Florida is putting into effect in 2012. Sreckovich on 1/17/2012 R ough Tr. at 48. D efendants did not subm it any evidence by M s. Sreckovich or otherwise that the 48% increase in dental rates or the statew ide
prepaiddentalplanwillbesufficient(a)toraiseFlorida'sM edicaiddentalratesto private m arketrates;(b)induce substantialadditionalnum bersofFlorida dentists toofferservicestochildrenenrolledinM edicaid;or(c)increasethepercentageof
children enrolled in M edicaid to the 30% level, w hich CM S has considered a m inim um threshold forcom pliance. SeePX 447 at3. D efendantsdid notcallany dentists to testify.
299.A fter review ing the evidence and w eighing the expertopinions,I tsnd that until the recent 48% increase,Florida's M edicaid reim bursem ent rate w as am ong the low est in the nation,and not sum risingly,Florida's M edicaid dental utilization ratew asalso am ong the very low estifnotthe low estin thecountry.
300.Ifind thatw hile a num berof differentfactors affectdentists'decision as to w hether to participate in M edicaid,the adequacy of reim bursem entrates is the m ostim portantofthose factors. A significantincrease in ratesw illresultin a significant increase in provider participation, which, in tul'n, w ill lead to a substantialim provem entin children'saccessto care.
301.D efendantshaveoffered no evidenceto contestD r.Crall'sopinion that even w ith a 48% increase Florida's M edicaid reim bursem entrates are inadequate. 1find Dr.Crall'sopinion credible,especially given the lack ofany contradictory evidence.
L . ProviderE nrollm ent 302. W hile beneficiaries and not providers hold the rights provided by federal law , any analysis of beneficiaries' ability to access care m ust take into
129

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 130 of 153
accounttherelationship betw eenproviderreim bursem entratesandparticipationby providersin theprogram .
303. Subsection (a)(30)(A) itself retlects an understanding that
reim bursem entis directly related to access to m edicalcare by directing thatrates be set so as to ensure equal access to care for M edicaid children a statutory provision w hich w ould m akeno sense in the absence ofa relationship betw een the
tw o.
304.Plaintiffs' expert,D r.Flint, opined that Etthe fundam ental issue that drives participation,that determ ines physician's decisions to participate in the program , or to lim it their participation is the rate of reim bursem ent.'' Flint on 8/3/2010 Final Tr.at 2949:21 - 2950:5. D r.Flint testified that 27 of 30 peerreview ed studiesthathe review ed supported thisview . 1d. Thisacadem icresearch cam e from different parts of the country, using different research m ethods, different tim e fram es, and different populations. 1d. at 2951:5-7. W hile this academ ic research did notdeny the presence ofother factors,in D r.Flint'sview , the professional literature supports his opinion that doctors w ill ççput up''w ith adm inistrative hassles,patientdiffculties,and other concerns if they are paid a satisfactory fee.1d.at2951:2-4.
305.B oth sides spentconsiderable tim e attrialreview ing specific studiesin thisacadem ic literature. D efendantsquote passagesfrom som e studies,w hich they claim casts doubt on the strength or the universality of the causal relationship between fee levels and provider participation. The consensus of academ ic literature,how ever,reflectsa causalrelationship betw een reim bursem entrates and physician participation. See e.g.,PX 498;PX 501;PX 504;PX 505;PX 512;PX 513;PX 524. M s.Sreckovich adm itted that she had identified no professional literature thatD r.Flinthad notconsidered.Sreckovich on 1/l0/2012 Rough Tr.at
R eliance on peer-review ed studies,especially from m ultiple sources,is the
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 131 of 153
gold standard and far m ore reliable than non-peerreviewed work com m issioned
for litigation. 306.Both sidestreated the w ork by PeterCunningham as authoritative. M r.
Cunningham reported that 84% ofphysicians surveyed identified low M edicaid reim bursem ent as a m oderate or very im portant reason for not accepting new M edicaid patients.PX 512 at Flint 01123,Flint 8/3/2010 Final Tr.at 2960:4 2961:2. M r.C unningham also conducted a regression analysisthat éçshow ed that higher M edicaid fees relative to M edicare w ere associated w ith a higher probability of accepting new M edicaid patients.''PX 513 atFlint00152;Flintat 2961:16-25. A third study by M r.Cunningham considered com m unity norm s, professional attitudes,and other factors,nonetheless identified physician fees as the étdriving force''in physician decision-m aking. PX 514;Flinton 8/3/2010 Final
Tr.at2963:3-21,3514:11- 3515:23. M r.Cunningham studied aprojected20%
increase in M edicaid reim bursem entrelative to M edicare. H e found a signifcant relationship am ong allcom m unities studied,one ofw hich w as M iam i,w here he
projectedan increaseof11.8% in providerparticipation. PX 514 atFlint00155
Flint;Flinton 1/24/2012 Rough Tr.at 173. The Cunningham study of 12,000 physiciansand 60 com m unities also show ed thathigherreim bursem entrates w ere associated w ith a statistically significantreduction in unm etm edicalneedsofthe M edicaid population,increased satisfaction w ith choice ofspecialists,and reduced useofem ergency care.PX 513;Flinton 1/24/12Rough Tr.at174-75.
307.Theseresultsareconsistentwiththe surveysandempiricaldatathatDr. Flint relied upon. A survey of Florida physicians w ho w ere m em bers of the A m erican A cadem y of Pediatrics reported a significant num ber of physicians w ould increase their w illingness to take M edicaid patients w ith higher reim bursem ents. PX 535. W hile this survey is m ethodologically lim ited by a sm all sam ple, it is consistent w ith the other evidence presented. The m ore
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 132 of 153
providerswho participate in M edicaid,them ore accesschildren on M edicaid will have to care. Flint on 8/4/2010 Final Tr. at 3348:17 3350:13; Crall on 11/17/2010 FinalTr.at5106:23 - 5107:15.
308. The relationship betw een fees and provider participation is also illustrated by Defendants'2009 survey ofFlorida's physicians. According to that survey,46% ofFlorida physiciansw ere accepting no new M edicaid patients,w hile only 22% w ere accepting no new M edicare patients.PX 742 at62,66. M edicaid payssignificantly m orethan M edicaid.
309. ln Polk County, Florida, physician reim bursem ent for treating uninsured patients w as increased to M edicare levels during FY 2007-2008. The resultw asa substantialincrease in accessto care. Flinton 1/24/2012 R ough Tr.at 182-184. W hile this occurred am ong a population of uninsured individuals,the exam plerem ainsrelevantforourpurposes. Flint,R ough Tr.1/3012 at113-114.
310. Even M s. Sreckovich did not opine that there w as no relationship betw een rates and provider participation. Instead,she pointed to other factorsincluding physician attitudestow ard M edicaid patientsand adm inistrative issuesasunderm iningthatrelationship.Sreckovichon 1/6/2012 Rough Tr.at83-84.M s. Sreckovich,how ever,could notdeny- indeed,she adm itted- thatfora significant num ber ofphysicians,those obstacles can be overcom e by higherreim bursem ent levels. Sreckovich on 1/9/2012 Rough Tr.at119-120.
311.These studiesare confirm ed by A H CA 'SLB R S,w hich soughtincreased reimbursem ent for physicians and dentists. The LBRS relied upon the causal relationship betw een increased reim bursem ent rates and increased provider participation on the one hand,and increased provider participation and increased
accesson the otherhand. See PX 92 (tçlncreasing the Child Health Check-up reimbursement rate willincrease access to services'');PX 93 (same);PX 94 (same). AHCA repeatedly observed that when reimbursementrates for child
l32

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 133 of 153

health check-ups doubled in 1995,the participation rate doubled asw ell. See PX 734;PX 92;PX 93;PX 94;PX 95;PX 96;PX 702;PX 703 33
.
312.ln addition,A H CA ,in m ultiple LB RS over severalyears,proposed a fee increase for certain specialists as a solution for a ççspecialty provider shortage'' and the ççcriticalaccess to care problem .'' 1d. The LBR S recognize the obvious existence ofarelationship am ong reim bursem entrates,physician participation,and

M edicaid participantaccess. 313.FederalCM S also recognized the relationship betw een reim bursem ent

rates, provider participation, and access. lt declared in a D ear State M edical D irector letter: ççlwack of access due to low rates is not consistentw ith m aking services available to the M edicaid population to the sam e extent as they are

available to the generalpopulation,and w ould be an unreasonable restriction on the availability ofm edicalassistance.'' PX 447 atCrall00751.

M . M anaged C are A s of O ctober of 2009, m ore than m illion children w ere on
M edicaid in Florida. A pproxim ately 650,000 w ere assigned to an 14M 0 in a nonR eform County, and approxim ately 120,000 w ere assigned to an 14M 0 in a R eform county.D X 262a.
314.A H CA rem ains ultim ately responsible as the designated agency that adm inisters Florida's M edicaid program , regardless of w hether it chooses to

provide care for children on M edicaid through a fee-for-service arrangem ent or through a M edicaid 1-IM O .

33Attria1,defendantssoughtto

question

this relationship ,

even

though

it w

as repeatedly

subm itted to the legislature and acknow ledged ascorrectunderoath in depositions. D efendants

claim therewasacertaintime lag beforethehigherrateshadtheobserved effect. Such atime

lag betw een raising rates and an effecton participation and rate ofcheck-ups is notsurprising.

D efendants also claim thatcertain other steps m ay have contributed to increased participation

rates,butno onesuggeststhoseotherfactors,such aseducationalefforts,w ere theprincipalcase.

See PX 524;Flinton 1/24/2012 R ough Tr.at186-93,GA O Reportciting increase asexam pleof

effectofincreased reim blzrsem entrates.

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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 134 of 153
315.A H C A pays l'IM o s on a capitated basis and determ ineshow m uch to pay M edicaid l'IM o son an annualbasis. The am ountofA H CA 'SM edicaid 11M 0 paymentsisdriven in substantialpartbytheam ountpaidtoproviderson afee-forservice basis through the M edipass system and historical rates of utilization. W illiam s on 10/12/2011 Rough Tr. at 101-03; Brown-W oofter on 11/8/201l R ough Tr.at124-26;id.at11/9/2011at25. A H CA discountsaggregatepaym ents to HM os to account for the I4M os' presum ed efficiencies.34 W illiam s on
10/17/2011R ough Tr.at171-73. 316.Florida is one ofthe low estpaying states in term s ofitsm anaged care
com pensation.1d.at2999:20 - 3000:4. 317. ln 2005, A H CA obtained federal and state approval for a M edicaid
Reform pilot project. Brown-W oofter on 10/20/201l Rough Tr. at 96-98.
M edicaid Reform w as instituted in July of2006 in Brow ard and D uvalC ounties and expanded in 2007 to Baker,Clay,and N assau Counties. 1d.at97. M edicaid Reform allow s A H CA to use m anaged care alm ost exclusively for services provided to M edicaid recipients.Brow n-W oofteron 10/18/2011R ough Tr.at9.
318.The M edicaid R eform pilotw asrequired to be budgetneutral,m eaning thatitw ould notcostm ore to operate w ith the w aiverthan itw ould have w ithout. B row n-W oofteron 10/18/2011Rough Tr.at9-10.
319. Florida's O ffice of Program Policy A nalysis & G overnm ental
Accountability(CCOPPAGA'')inJuneof2009reportedontheprogressofM edicaid
Reform through Decemberof2008 and found thedata did notshow thatM edicaid Refonn had im proved access,quality ofcare,orsaved thestatem oney.PX 683:1. OPPA G A recom m ended the legislature notexpand M edicaid R eform untilm ore data w asavailable to evaluate claim s ofits success. 1d. Thatw asthe m ostrecent
34Typicallythediscounthasbeen about8percent.W illiam son 10/7/2008Depo.Desig. at59:13- 61:17.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 135 of 153
OPPAGA reportconcerning M edicaid Refonu. Copa on 4/5/2011 Rough Tr.at 127-29. ln Septem berof2007,AH CA 'SOffce ofthe InspectorGeneralm ade a sim ilar recom m endation,after form er Secretary ofA H CA D r. A gw unobicalled
foran içindependent,objectiveand thorough analysis''to delay the expansion of
M edicaid Reform . AHCA adopted thatrecomm endation.A gwunobi2/13/2009 D epo.D esig.atl83:7 - 187:1.
320.Thethree largestM edicaid 14M o 'soperating through M edicaid Reform in Brow ard County in 2008 had approxim ately 50% oftheM edicaid enrollm entin thatcounty. Buttw o years later,none ofthe three plansrem ained in operation in thecounty.1d.at182-85.
32l.A H CA 'S application to extend the w aiver forM edicaid Reform w ithin the tlve counties in w hich it is currently operating w as granted for three years. Sreckovich on 1/18/2012 Rough Tr.at51-52. ButFlorida'sapplication to expand M edicaid Reform statewide has not at the present time been approved by the federalgovem m ent. Copa on 4/5/2011Rough Tr.at128.
322.Children enrolled in M edicaid l-IM o s suffer from the sam e lack of accessto careaschildren in M edipassorfee forservice M edicaid. Asdiscussed above,FIED IS reports show thatchildren in both reform and non-refonu counties on m anaged care do not receive adequate preventative health care. PX 689;PX 733;D X 361;D X 334.
323.Som em edicalprovidersdo notacceptM edicaid 11M 0 patients. lsaac on 8/11/2010 FinalTr.at3856:4-12;Ayala on 8/9/2010 FinalTr.at 3570:2-17; Fenichelon 10/18/2011 FinalTr.at4301:22 -4302:1. O thers lim itw hich H M o s they w ill accept. Postm a on 8/4/2010 Final Tr. at 3149:1-39 St. Petery on 11/11/2008 D epo.D esig.at 176:8-23;D onaldson on 10/15/2008 D epo.D esig.at 78:18- 80:18;206:21-25.
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324.A HCA 'Sm onitoring processofllM os failsto show thatchildren are receiving the care to w hich they are entitled under federal law for three fundam ental reasons. First, though there is extensive testim ony regarding the monitoring process in the record,there is very little in the record about the substantive results of that m onitoring, and nothing to indicate that children are receiving tim ely oradequate care.Flinton 1/24/2012 R ough Tr.at 153.
325. Second,m ost of the m onitoring focuses on process,and even if the m onitoring results w ere in the record,they w ould not dem onstrate the children w ere getting the requisite care. For instance,the factthat an 14M 0 has no m ore than 1,500 children per PCP,orhas a num berof specialists on itspaneldoesnot dem onstrate thatthe doctorsw illsee the children atall,letaloneprom ptly.
326. Third, there is virtually no evidence and certainly no system atic evidence in the record thatany M CO sw ere hitw ith a substantialfine,orexpelled from the M edicaid program forfailure to provide care to children on M edicaid or m eetany contractualrequirem entsrelating to the provision ofcare. Thus,there is virtually no evidence thatA H CA has used its pow erto sanction I-1M o s to ensure children receiveadequate and prom ptcare.
327.M s.Brow n-W oofter,A cting A ssistantD eputy Secretary forM edicaid operations,did notknow w hetherAH CA had everissued any financialsanctionsto a M edicaid 11M 0 forhaving a low percentage ofenrollees w ho received a blood lead screening exam . B row n-W oofteron 10/18/2011 Rough Tr.at116-18;Brow nW oofteron l1/8/2011 Rough Tr.at 131-32. W hile she testified thatA H CA had issued som e fânesagainstllM o sforfailing to m eeta staterequirem entfora 60 % screening ratio forchildren continuously enrolled in the11M 0 forsix m onths,she had no inform ation regarding the am ountsofthe fines. 1d.at 118. A H CA did not issue any Gnes againstl'IM o s for low child health check-up screening ratesuntil 2008,years afterthis action began. Brow n-W oofter on 10/18/201l R ough Tr.at
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131-32. M s.B row n-W ooftertestifed thata financialsanction w as levied against

Universalin 2011,butw asnoteven sure why the sanction was levied. Brown-

W oofteron 10/20/2011RoughTr.at60. 328.M s.B row n-W oofter offered a lay opinion that children in M edicaid

1-lM os do not have trouble accessing prim ary or specialty care,and that any

trouble w ith specialty care is lim ited to a few individuals. Brow n-W oofter on

10/19/2011 Rough Tr. at 38-40, 74-77. I find her unsupported conclusions

unpersuasive. H eropinions also contlictw ith earliertestim ony thatshe gave as a

30(b)(6)witnessattheend ofthediscoveryperiod,and,in renderingheropinion,
she did not consider num erous A H CA docum ents regarding shortages of

providers35 .

See

B rown-W

oofter on

10/25/2011 Rough

Tr.at88-97,95-97, 100,

103-07,109-22,126-38;PX 205;PX 188;PX 186;PX 90;PX 101;PX 199.

N . O utreach and M edicaid A pplication Process 329.Undisputed evidence at trial established that an estim ated 268,000

Florida children are eligible forbutnotenrolled in the M edicaid program . 2009

Florida Kidcare Coordinating CouncilReport. PX 682 at2. Tw enty percentof

Florida children areuninsured,com pared to anationalaverageof10% .1d.

330.Betw een 2004 and 2006,Florida m oved to a largely online system of

applications, elim inating m ost of the office locations at w hich individuals can

apply in person for M edicaid coverage. PX 238. Fifty-seven percent of D CF

services centers w ere elim inated betw een 2004 and 2006. N ieves on 5/17/2010

FinalTr.at2098:20 - 2099:1. These changes,accom panied by cutsin persorm el,

35w hileherdepositiontestimonyfocusedonthefee-for-servicecomponentofM edicaid notthe HM O com ponent,there is overlap between the providers enrolled in fee-for-service M edicaid and M edicaid HM Os,testimony ofBrown-W oofteron 10/25/2011Rough Tr.at100, and no testim ony asto w hy M edicaid H M Os,whose per capita com pensation rate is driven by thefee-for-servicerates,wouldbeabletoprovidebettercarethantheM edipassprogram .
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were enacted notbecause they were viewed as im provem ents butratherdue to budgetcuts. Lew ison 10/20/2010 FinalTr.at4602:25- 4603:14.
331. In 2007, an analysis by A H CA of the revised application system
reported:(a)thattheonlinesystem willtimeoutin20minutesleadingto350lost sessionseach day;(b)25% ofapplicantsareunableto completetheirapplication ontheirfirstattem pt;(c)lçoften,fornumerousreasons,applicantsareunawarethat
they have not subm itted the required additional inform ation and their case is
closedi''and (d)that 17 to 20% ofthe applicantpopulation- due to language
barriers and other factors---carm otsuccessfully com plete one ora1lofthe stepsin the new A CCESS M edicaid eligibility process. PX 238;N ieves on 5/17/2010 FinalTr.at2106:9- 2111:20.
332.lfassistance is required,itis difficultto obtain. The Tam pa regional center reported 40% of incom ing calls abandoned or receiving busy signals in 2007. Tw o other regional centers reported: 20% in M iam i and 19% in Jacksonville. PX 238 at3. A tthe tim e ofthe trial,M r.Lew is,D CF bureau chief, testitied thathebelieved that40% ofthe incom ing callsto the Tam pa regionalcall centerw ere stilleitherabandoned orreceiving busy signals.Lew is on 10/20/2010 FinalTr.at4638:3- 4634:8.
333.In addition,D CF data indicated thatbetw een June 1,2004 and M arch 1, 2005,applicationsw ere consistently processed above the designated tim e standard. PX 238 at7.
334.The A ccessM edicaid application haspurportedly been sim plified,but itrem ainsa form idablechallengeto com plete. Theapplication,reprinted aspal4 of
the application guide (DX 160),nms in excess of 50 pages of screens that
M edicaid applicants m ustnavigate. N ieves on 5/17/2010 FinalTr.at 2105:2 2106:4. Because it is a com bined application in w hich fam ilies m ay apply for m ultiple cash and in-kind assistance program s,there are lengthy sectionsrequiring
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answ ers on assets and expenses not needed for the determ ination of a child's M edicaid eligibility. Com plex term s,for exam ple,are found in questions asking about içliquid assets''and ççlife estates.'' A n applicant m ust gather a significant am ountofrecordsto com plete the application. A nd,by virtue ofbeing an online application,basic com puterliteracy isrequired
335.Bycontrast,theFloridaKidcareapplication(DX 181)istwo-pagesfor
children seeking M edicaid or SCH IP assistance. The K idc are application, how ever,provides sufficientinform ation for D CF to m ake a M edicaid eligibility determ ination. Lew is on 11/29/2011 Rough Tr.at31. A lthough A H CA added an online link to the K idcare application during the course ofthe trialin this action, the K idcare application is an alternative to the prim ary A CC ESS application w hich individuals m ust first find online- a feat that even M s. Sreckovich, defendants' expertw itness, had difficulty accom plishing unassisted by counsel. Sreckovich on 1/17/2012 R ough Tr.at4-18. A pplicants m ust then indicate that they w ant to apply solely for their children's M edicaid eligibility and no other potentialprogram s.1d.
336.N o reason w as offered into evidence as to w hy the sim ple K idcare application could not serve as the default application for children seeking M edicaid. St.Petery on 2/2/2012 Rough Tr.at86-87.
337.Even though D CF'S online application isthe prim ary vehicle by w hich applicantsare encouraged to apply forM edicaid,D CF doesnotattem ptto identify individuals w ho start the online application and do not com plete it, collect dem ographic inform ation on them ,or determ ine w hy they fail to com plete the application. Poirier 10/5/2011 Rough Tr.at3-7,6-7 33. D C F doesnotknow how m any people startbutfailto finish theapplication.1d.at12.
338.In addition to thecom plex application and thediffcultiesin obtaining help to com plete the application, Florida has elim inated its prim ary outreach
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program for M edicaid. U ntil 2003, Florida Cthad an aw ard-w inning outreach program ''recognized by federalCM S as am odelforotherstates. PX 700 atD O H
10000478. Before funding wasterminated in 2003,approxim ately $4 m illion was
spent on outreach program s annually,m ore than half of w hich cam e from the federalgovernm ent. 1d. The outreach program included: statew ide m ulti-m edia cam paigns in English, Spanish,and Creole on television,radio,bus cards,and billboards;free distribution ofapplicationsand prom otionalbrochures,posters,and booklets; 17 regional outreach program s responsible for recruiting and training com m unity partners; data driven m arket research, county level enrollm ent data reporting, and tracking; assistance for fam ilies w ith enrollm ent and coverage issues;and statew idetraining and technicalassistance. 1d.atD O H 10000478-479; St.Petery on 12/10/2009 FinalTr.at526:3 - 531:9. Since 2003,directoutreach funding hasbeen lim ited to a one-tim e non-recurring $1 m illion authorization in 2006. PX 700 atD O H 10000479. A s A H CA acknow ledged in its 2007-2008 budgetrequest,this leveloffunding iiw illprobably notprovidethe am ountneeded to m ake an im pact on significantly decreasing the rate of uninsurance for
childreng,j''evenifitwererecurring.PX 711atAHCA 01095027.
339.W hile a variety of outreach efforts continue to exist,A H CA does not assess the effectiveness of its w ritten m aterials. Boone on 10/21/2008 D epo. D esig.at58:21-60:2 A nd there hasbeen no show ing thatthese ad hoc effortsare an adequate substitute for the organized statew ide program that existed before funding w asterm inated.There areatleastfourstrong indicationsthatthey arenot.
340.First,the difference betw een the outreach conducted before the budget cuts and that perfonued now is stark. Statew ide m ulti-m edia cam paigns in
English,Spanish,and Creoleincluding publicservice announcements(PSAs)on
television and radio,asw ellasbuscards and billboards w ere elim inated. PX 700 at D O H 10000478-479. A nne B oone,who w as A H CA 'S child health check-up

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 141 of 153
coordinator w hen she w as deposed in 2008,w as not aw are of any PSA airing recently anyw here in the state on eitherradio ortelevision. Boone on 10/21/2008 D epo.D esig.at65:3-67:8. Rather,allsheknew concerning w hetherany PSA Shad been aired in the lastseveralyearson radio ortelevision isthata single PSA about blood lead poisoning ççm ighthave been on a radio station.'' 1d. Thathypothetical PSA isthe only one in existence in thevolum inousrecord in thisaction. D X 492. R ather than airing on the radio or television, A H CA 'S PSA S are show n on television sets at booths at health fairs. Boone on 8/28/2008 D epo.D esig.at 163:14-164:1;B oone on 10/21/2008 D epo.D esig.at309:21-310:6,311:18-312:2. Sim ilarly,M s.Boone knew of only one instance in recent years in w hich there w ere child health bus billboards,and even then,the billboards only appeared on bussesin one city. B ooneon 10/21/2008D epo.D esig.at67:9-20.
34l.Second,the K idcare Coordinating C ouncil,w hich has representatives draw n from a variety of govem m ental and private organizations interested in m edicalcare forchildren,stated asfollow s:
U nlessfam iliesleal'n aboutFlorida K idcare,how to apply and w here to seek assistance ifthey need it,the program w illnotfully reach the population it is intended to serve. Florida K idc are em -ollm ent significantly declined in 2004 ...Enrollm entstarted to increase again in 2007 as a result of increased em phasis on outreach. H ow ever,
exceptfora non-recurring $1 m illion appropriation to Healthy K ids
for com m unity based outreach and m arketing m atching grants in FiscalYear2007-08,otheractivitieswereundertaken w ithin existing resources and w ith non-recurring funds, m aking a large scale and ongoing initiativeunsustainable w ithoutadditionalresources.
PX 682 at25.The K idc are Coordinating Councilrecom m ended by a vote of22 to zero thatoutreach funding for program s forunenrolled children be restored. PX 682 at20. The C ouncilhasbeen m aking this recom m endation foryears. See PX
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349 atD O H 00078171;PX 350 at19-20;PX 682 at2;PX 697 atl6;PX 699 at18; PX 700 atD O H 10000478.
342.Third,A H C A has also urged thatoutreach funding be restored in its LBR S.PX 711.
343.Fourth,the existence of over a quarter m illion children eligible for M edicaid but not enrolled as of 2008 is com pelling evidence that additional outreach program s are required. lndeed,an A H C A staff analysis indicated that approxim ately 75% of children f'rom fam ilies w ith incom es under 200% of the federal poverty level w ere ideal candidates for outreach efforts to increase enrollm entin existing program s.PX 240.
344.One exam ple of A H CA 'S inadequate com m itm ent to outreach is its dentalrem inderletter. A H CA used to send lettersrem inding parentsw ho had not taken their M edicaid child to a dentist for som e tim e to do so. A H CA stopped doing thisin 2000. Boone on 2/24/2012 D epo.D esignation at31:10-19,PX 441at 6. A H CA discontinued sending the letters because so few dentistsparticipated in the program thatitw as hard forparentsto tind a dentistcloseto w here they lived. Parents becam e upset when they could not find a dentistw illing to see their children. Boone on 8/28/2008 Depo.Desig.at33:3-12. AHCA even told federal CM S thatithad notactively m arketed its dentalprogram to recipients forfourto five years because ofthe few num bers of dentists participating in M edicaid and because itw asoften difficultforthose seeking treatm entto find a providernearby. Sharpeon 2/8/2011Rough Tr.at184.
345.M s.Boone adm itted thatthe lettersdid help increase utilization. B oone on 8/28/2008 D epo.D esignation at32:14-19. Butforyears,A H CA did notsend outdentalrem inderletters,despitethe dentalprogram 'sextrem ely 1ow utilization rate,an intentionalreduction ofoutreach efforts.
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346.In February of2008,federalC M S conducted an on-site visitin Florida as partof its decision to review states w ith dentalutilization rates ator less than 30% on the CM S 416 reportfortheFY 2006. PX 440 at3. In itsreportfrom that visit, federal CM S noted that Florida had sent rem inder letters until 2000 and recomm ended that Florida again send dental rem inder letters to (dparents of beneticiaries w ho have not received periodic dental services.'' PX 441 at 6-7. A H CA stated in its response that M edicaid's new fiscal agent began on July 1, 2008 and in içthe very nearfuture''ittçw illw ork w ith thenew fiscalagent''to send outdentalrem inderletters.1d.at7.
347.Severalyears later,how ever,w hen M s.K idder testified on M ay 31, 2011, she acknow ledged that A H CA had still not begun sending out dental rem inder letters. K idderon 5/31/201l R ough Tr.at 107-108. She said the letters w ould likely go out soon. 1d. M s. C erasoli, w ho had testified as A H CA 'S designated agency representative on dentalissues atdeposition,testised thatthe dental letters w ere not sent because the agency did not view this as a priority. Cerasolion 8/11/2010 FinalTr.at3980:12 - 3981:1.
348.W hen A H CA analyzed itsclaim sdata in M ay of2011 to see how m any children enrolled in M edicaid had notreceived any dentalservices,they found that 834,651children had notreceived dentalservicesin thelastsix m onths. PX 790. Thatfgure did notinclude children enrolled in ADI,Reform l-1M Os,and nonreform I4M o soffering dentalservices.
349.Given defendants'lim ited outreach,itis,perhaps,notsurprising that A .D .did notknow untilshe became a nextfriend in thisaction thatherson was
entitled to dentalcare through M edicaid. Seesupra at! 30. And S.B.did not
know that she w as entitled to free transportation to doctor's appointm ents and
laboratoryvisits.Seesupraat!11.
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V II.C O N C LU SIO N S O F LA W l conclude that Florida's M edicaid program has not com pensated prim ary physicians or specialists at a com petitive rate as com pared w ith either that of M edicare orprivate insurancepayors. 1 further conclude that Florida's structure for setting physician reim bursem ent fails to account for statutorily m andated factors in the M edicaid A ct,including the levelof com pensation needed to assure an adequate supply of physiciansso asto dischargethe m andate to provide EPSD T servicesorsetratesat a levelthatw illprom ote quality ofcare orequalaccessto care as required under
42 U.S.C.j l396a(a)(30)(A). Exceptforcertain codesheld outside thenormal
budgetary process,Florida'sconversion ratio and budget-neutrality m andatesresult in artiticially setrates for m any services w ithout any consideration ofphysician incurred costs orw hatis needed forcom petitive ratesthatare sufficientto attract m edicalproviders.
A system w hich m andatesbudgetneutrality asthe determ ining factorin ratesetting, w ithout consideration of the factors required by federal law , does not
satisfy theEqualAccessrequirementofj 1396a(a)(30)(A).Codessetby statute
outside the norm albudgetary processare also notevaluated to ensure thatthe rates are sufficient to attract prim ary and specialist physicians to treat M edicaid children.
There also isno processto adjustthose rates forincreasesin the costof
living.W hile the m edicalcostofliving index has increased overthe pastdecade, there has been no com m ensurate increase in M edicaid reimbursem ent, and accordingly, the gap betw een M edicaid reim bursem ent and M edicare reim bursem enthasw idened form ostcodesand w illcontinueto do so.
V iolations of continuous eligibility deprive children w ho are im properly term inated from M edicaid oftheirrightsto EPSD T care and any needed follow -up
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care under j 1396a(a)(10)and jj 1396a(a)(43)(B)and (C)and theirrights to
m edicalcare under the Reasonable Prom ptness and EqualA ccess provisions of TitleX IX .
The im proper sw itching of children from one provider to another w ithout their parents'know ledge or consent deprives children of their rights to EPSD T
care and any needed follow-up careunderj1396a(a)(10)and jj 1396a(a)(43)(B) and (C)and theirrightsto medicalcare underthe Reasonable Promptnessand
EqualA ccessprovisionsofTitleX IX . The failure ofA H CA orD CF to prom ptly m ake the M edicaid eligibility of
presumptively eligible newborns (Le. itbabies of') operatively deprives those
babies of their rights to EPSD T care and any needed follow -up care under
j1396a(a)(10)and jj1396a(a)(43)(B)and (C)and theirrights to medicalcare
undertheR easonableProm ptnessand EqualaccessprovisionsofTitleX IX . D efendantsresponsible forFlorida'sM edicaid program have failed to assure
thatplaintiffclassreceived the preventative health care required underthe EPSD T R equirem ents. lconclude,sim ilarto othercourtsfacing such evidence,seeH eaIth
CareforA11,Inc.v.Romney,No.Civ.A.00-10833RW Z,2005W L 1660677,*l01l(D.M ass.July 14,2005)(findingviolationofEPSDT requirementsastodental carel; M emisovskiex.rel.M emisovskiv.Maram,No.92 C 1982,2004 W L 1878332, at *50-56 (N.D.111.Aug.23,2004) (finding violation of EPSDT provisions),thattheEPSDT Requirementsthatchildrenreceivesuchcarehavenot
been m etwhen,as shown above,approximately one-third ofFlorida children on M edicaid are not receiving the preventative m edical care they are supposed to receive. This is true both for children on fee-for-service as w ellas in m anaged care,w here screening rates are potentially low er. In addition,an unacceptable percentage ofinfantsdo notreceive a single w ell-child visitin the frst18 m onths oftheirlives.
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B ecause one-third of the enrolled children are not receiving any of their expected preventative care each year,Ialso conclude thatthey have notreceived care in accordance w ith the R easonable Prom ptness requirem ents ofthe M edicaid
Act. See 0SWWP v.Fogarty,366 F.Supp.zd 1050,1109 (N.D.Okla.2005) (fndingviolation ofreasonablepromptnessprovision asto medicalcare);HeaIth CareForAll,lnc,2005 W L 1660677,at*10-11(finding violation ofreasonable promptnessprovision astodentalcare);Clarkv.Kizer,758F.Supp.572,575-79 (E.D.Cal.1990)(findingviolationofreasonablepromptnessprovisionastodental care),aff'dinrelevantpartsub.nom.Clarkv.Coyle,967F.2d585(9thCir.1992).
IalsoconcludethattherewasaviolationofSection30(a),becauseM edicaid
children lack equalaccessto prim ary care. I also conclude that m any pediatricians and fam ily practitioners refuse to
take any new M edicaid patientsand otherpediatricianssham ly lim itthe num berof new M edicaid patientsthey w illaccept.
1also conclude thatthe percentage ofchildren in Florida w ho receive blood lead screenings is extrem ely low ,notw ithstanding the factthatpartofFlorida has an aging housing stock,which m eans children are m ore likely exposed to lead-
based paint. Iagree w ith A H CA 'S statem entsin repeated LBR SthatifA H CA increased
the M edicaid reim bursem entrates forwell-child check-ups,m ore children would receive well-child check-ups.Iconclude thatthetestim ony ofthesepediatricians and specialists is credible. They are testifying based on their own personal experience and actions. Defendants did notcalla single prim ary physician or specialistto counterthistestim ony. Thetestim ony ofplaintiffs'm edicalw itnesses is consistent with the survey evidence and AHCA 'S admissions thatthere is a seriousproblem faced by M edicaid children in receiving prom ptand equalaccess
to m edicalspecialists.
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1 conclude that children on M edicaid have not been provided the EPSD T guarantee of access to care for treatm ent of conditions identified based on the A H CA surveysshow ing seriousshortagesofspecialistcare forM edicaid,AH CA 'S adm issions,the LBR S,and thetestim ony ofanum berofm edicaldoctorspracticing throughoutthe state. Children on M edicaid have to travelto other areas of the state and/or w ait for several m onths to obtain care. W hile there are certain specialists and certain locations where issues ofaccess- and reasonably prompt access- m ay notbe a problem ,the evidence presented leads m e to tlnd thatthe issue extendsthroughoutthe state and acrossm any specialty types. M oreover,the evidence reflects that w hile a particular specialty problem in a given area m ay im prove w ith the arrival of a new doctor,the situation m ay change or another problem m ay occurbecause of the dependency of the M edicaid population on a relatively sm all num ber of providers. Further, those providers often lim it the num berofpatientsthey are w illing to see. A ccordingly,1concludew ith respectto specialty care that during the tim e covered by this case,Florida has notm etthe
obligations of the EPSDT Requirements in Section (a)(10) or the reasonable promptnessrequirementsin Section (a)(8). See Offa4x4',366 F.supp.zd at1109 (finding violation of reasonable promptness provision as to medical care); M emisovski, 2004 W L 1878332, at *50-56 (Gnding violation of EPSDT provisions);Clarkv.Kizer,758F.Supp.at575-79(findingviolationofreasonable promptnessprovisionastodentalcare),aff'd inrelevantpartsub.nom.Clark,967
F.2d 585. l sim ilarly conclude that children seeking specialist care have notreceived
that care as required under Sections 43(B) and 43(C) of the M edicaid Act. M emisovski,2004 W L 1878332, at *50-56 (finding violation of 42 U.S.C. l396a(a)(43)(C)relatingtotheprovisionofEPSDT correctiveservices).
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I also conclude based on extensive record evidence that children on M edicaid do not receive equal access to specialist care, com pared to insured children in theirgeographicalareas. See,e.g.,PX 583.See also M em isovski,2004
W L 1878332,at*42-47(fndingviolationofequalaccessprovisionastomedical care);OICAAP,366F.supp.zdat1107(findingviolationofequalaccessprovision astomedicalservices);Ark.M ed.Soc#,Inc.v.Reynolds,819F.Supp.816,82526 (E.D.Ark.1993)(finding violation ofequalaccessprovision asto medical care);Clark,758F.Supp.at580(findingviolation ofequalaccessprovisionasto dentalcare). Rates are notsetwith any consideration to the levelrequired to
provide such equal access, consistent w ith the other requirem ents of Section
(30)(A).
Based on the factthat79% ofthe children enrolled in M edicaid are getting no dentalservicesatall,1agreew ith D r.CrallthatM edicaid children in Florida are not receiving dental services w ith reasonable prom ptness. Crall on 1/26/2012
Rough Tr.at96-97. SeeHea1th CareforA11,Inc.,2005W L 1660677,at*10-1l (finding violation of EPSDT requirements and the reasonable promptness provision as to dentalcare);M emisovski,2004 W L 1878332,at *50 (finding violation ofEPSDT provisions);Clark,758F.Supp.at580 (finding violation of reasonablepromptnessprovisionastodentalcare).
l conclude that Florida is also not in com pliance w ith the EPSD T
requirements.SeeHea1th CareforA11,Inc,2005W L 1660677,at*14 (finding a violation of42 U.S.C.j 1396A(A)(43)asto dentalcare);M emisovski,2004 W L 1878332,at*50-56(findingviolationofEPSDT provisions).
Ialso agree w ith D r.Crall's opinion thatFlorida's M edicaid dentalratesare
not sufûcient enough to provide equal access in violation of 42 U.S.C. j 1396a(a)(30)(A)forFlorida'sM edicaid children in each ofAHCA'S 11regional
areas.Ibase m y conclusion on the lack ofdentistparticipating in FloridaM edicaid
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and on the 79% ofchildren who receive no dentalservice. Crallon 1/26/2012 Rough Tr.at98:6-20. SeeH ealth CareForA11,Inc.,2005 W L 1660677,at*10-11
(findingviolation ofequalaccessprovisionastodentalcarel;Clark,758F.Supp. at580(findingviolationofequalaccessprovisionastodentalcare).
B ased on the evidence in this case,I conclude that w hile reim bursem ent ratesare nottheonly factordeterm ining w hetherprovidersparticipate in M edicaid, they are by far the m ost im portant factor, and that a suffcient increase in reim bursem entratesw illlead to a substantialincrease in providerparticipation and acorresponding increase in accessto care.
There w as also substantial support at trial that M edicaid reim bursem ent rates- to have a significant effect- need to be increased som ew here close to the levelpaid underthe M edicare program . D r.Flinttestified to thisopinion,and this w as the increase in the Polk County exam ple. Flint on 1/24/2012 Rough Tr.at 182-186. A n increasing num berofother states have setM edicaid reim bursem ent rates at or very near M edicare reim bursem ent rates 1d. at 191-92. M oreover, C ongress,in recentlegislation,hasrequired foratw o-yearperiod thatprim ary care providers receive com pensation at least at the M edicare rate. Sreckovich on 1/12/2012 R ough Tr.at49. ltisalso logicalthatthe M edicarereim bursem entrates are a good indication ofcom petitive m arketprices. Flinton 1/24/2012 Rough Tr. at 191-92. There w as no evidence presented by defendants of any adequate differentrate level. G iven the record,I conclude thatplaintiffs have show n that achieving adequate provider enrollm entin M edicaid- and for those providersto m eaningfully open theirpracticesto M edicaid children- requires com pensation to be setatleastattheM edicare level.
Based on the applicable statutesand case law ,lconclude thatA H CA ,asthe agency that adm inisters Florida M edicaid, is legally responsible to ensure that
149

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 150 of 153
children who obtain theircarethrough aM edicaid 1-1M 0 (orthrough aProvider ServiceNetwork)receivethecaretowhichtheyareentitledunderfederallaw.
l further conclude thatthe fee-for-service reim bursem entrates A H CA sets forproviders is a key factor in determ ining the capitation rate paid to l4M O s,and fordeterm ining how m uch l-lM oscan,in turn,pay theirproviders. A ccordingly, inadequate fee-for-service reim bursem entrates result in inadequate com pensation by M edicaid l-lM o sto theirproviders.
B ased on the H ED IS reports,the m ini-cM s 416 reports,as w ell as other docum ents and testim ony from providers,1also conclude thatthe sam e problem s that plague fee-for-service M edicaid- failure to provide w ell-child check-ups,a scarcity ofspecialists,excessive w aittim esand traveldistances for specialty care, and a lack of dental care- infect the M edicaid 11M O s. Thus,A H CA 'S 1-1M 0 system fails to m eet the federal requirem ents for providing EPSD T care, in
violation of(a)(10);do notprovidecarewith reasonablepromptness,asrequired by(a)(8);donotprovidecarewithequalaccessunderSection30(A);andhavenot compliedwith theobligation toprovidecareasestablished by sections43(b)and 43(c)oftheM edicaidAct.
There is also extensive record evidence that leads m e to conclude that children onM edicaid1-lM osdo notreceiveequalaccessto specialistcare,andthat capitation ratespaid to M edicaid l'IM o sare notsetw ith consideration ofthe level needed to provide equalaccess,consistentw ith the otherrequirem ents ofSection
(30)(a)asrequiredundertheM edicaidAct.
Federal 1aw requires states to effectively inform a1l EPSD T eligible individuals ortheir fam ilies aboutthe availability ofEPSD T services,how those services m ay be obtained,thatthose services m ay be obtained at no costto the
child,and thattransportation isavailable. See 42 U.S.C.j 1396a(a)(43)(A);42 C.F.R.j441.56(a). FloridahasdelegatedtoDCF,amongotheragencies,certain
150

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 151 of 153
outreachand informationalresponsibilities.SeeFla.Stat.j409.9122(2)(c)(DCF
m ustprovide ttclear and easily understandable inform ation''about M edipass and M edicaid l4M O s,the plans through w hich m ostchildren are supposed to receive
EPSDT servicesin Florida). Ipreviously held and reaffirm herethattCDCF,as
w ell as A H CA and D O H , have outreach responsibilities; they are required to çensure that each M edicaid recipient receives clear and easily understandable inform ation' aboutM edipass or m anaged care options. This requirem ent arises from the M edicaid A ct's outreach provision.'' 9/30/2009 O rder on C lass
Certification,D.E.671at7(citationsomitted). Defendantscontendthat42 U.S.C.j 1396a(a)(43)doesnotrequirethem to
conduct outreach to children w ho are not enrolled but are eligible for M edicaid.
Theplain language oftheregulationsimplementing thissection statethatttltjhe agencymust(pqrovideforacombination ofwritten and oralmethodsdesignedto inform effectively allEPSDT eligible individuals (or their families) aboutthe EPSDT program.''See42C.F.R.j441.56(a)(1);FriendsofEvergladesv.S.Fla. Water Mgmt.Dist,57Q F.3d 1210,1227-28 (11th Cir.2009) (stating thatan
agency'sprom ulgation ofregulations interpreting am biguous statutory language is
entitled to deference as long asthe interpretation is reasonable). tçM edicaid's implementingregulations(inspecific,j441.564$)...obligateparticipatingStates
to teffectively' inform all eligible individuals.'' See W estside M others
Olszewski,454 F.3d 532, 543 (6th Cir.2006). The plain language of the
regulations,com bined w ith the case law supporting this interpretation,com pelthe
conclusionthatj 1396a(a)(43)and42C.F.R.j441.56(a)(1)mandatethatthestate
conductoutreach to alleligible individuals.
Defendantshavefailed to ttlpjrovideforacombination ofwritten and oral methodsdesigned to inform effectively a1lEPSD T eligible individuals (ortheir families) aboutthe EPSDT program,''and to conductoutreach in Sçclear and
151

Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 152 of 153
nontechnical language'' that provides inform ation about the benefts of preventative care,the services available under the EPSD T program , how those servicesm ay be obtained,thatthe servicesare available atno costto children,and
thattransportation servicesareavailable. See42C.F.R.jj441.56(a)(1)& 441.56 (a)(2)(emphasisadded).Seealsoj1396a(a)(43)(A).
Ifurther conclude thatthe use ofthe Florida A ccess application in m any of the circum stances in w hich itcurrently is utilized constitutes an unnecessary and im perm issible barrierto the provision ofthe EPSD T services to children required underthe EPSD T R equirem entsofthe M edicaid A ct.
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Case 1:05-cv-23037-AJ Document 1294 Entered on FLSD Docket 12/31/2014 Page 153 of 153
V IlI.C O N CL U SIO N These constitute m y findings and conclusions follow ing 90-plus days of trial. G iven the m ootness concem s raised by defendants, 1 w ill not enter a
declaratoryjudgmentatthistime,andwillsetahearing inlateJanuary of2015to
discuss w ith the parties further briefng on m ootness and the developm ent of a discovery schedule forthe rem aining rem edy phase ofthiscase.
DONE and ORDERED in cham bers in M iam i,Florida,this z4# day of
D ecem ber,2014.

C opy to: A l1counselofrecord

A dalberto Jordan U nited StatesD istrictJudge

/fz

 
 Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 1 of 32
Exhibit A

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 2 of 32
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: OS-23037-CIV-JORDAN/O'SULLIVAN
FLORIDA PEDIATRIC SOCIETY THE FLORIDA CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS, et al.,
Plaintiffs,
v.
ELIZABETH DUDEK, in her official capacity as the Secretary for the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, et al.,
Defendants.
--------------------------~'
SETTLEMENT AGREEMENT The Individual Plaintiffs,1 as representatives of the certified class, and the Organizational Plaintiffs,2 (collectively, the "Plaintiffs") and Defendants, ELIZABETH DUDEK, in her official
capacity as the Secretary for the State of Florida, Agency for Health Care Administration,
("AHCAn), MIKE CARROLL, in his official capacity as the Secretary for the State of Florida,
Department of Children & Family Services ("DCF"), and CELESTE PHILIP, M.D., in her
official capacity as the Interim Surgeon General of the State of Florida, Depat1ment of Health
("DOH," and collectively, the "Defendants"), have reached an agreement to settle all of the
1 The individual named plaintiffs are A.D., as the next friend of K.K.; R.G. and L.G. as the next friends of N.G.; E.W., as the next friend ofJ.W.; K.V., as the next friend ofN.V.; S.B., as the next friend of S.M.; K.S,, as the next friend of J.S.; and S.C., as the next friend ofL.C. 2 The organizational plaintiffs are the Florida Pediatric Societyri'he Florida Chapter of the American Academy of Pediatrics and Florida Academy of Pediatric Dentistry, Inc.

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 3 of 32
claims pending against the Defendants. The Plaintiffs and the Defendants (collectively, the "Partiesu) hereby enter into this Settlement Agreement ("Agreement"), following which Plaintiffs will promptly file a motion for approval of the Agreement pursuant to Fed. R. Civ. P. 23(e), which approval is a condition precedent to the Agreement's effectiveness. Upon approval of the Agreement by the Court, all further proceedings in this case will be stayed or abated until no later than September 30, 2022, as set forth below.
I. Definitions I. "Actuarially Sound Capitation Rates" is defined by the federal Centers for Medicare and Medicaid Services ("Federal CMS") in 42 C.F.R. § 438.6(c)(l)(i) to mean capitation rates that "(A) Have been developed in accordance with generally accepted actuarial principles and practices; (B) Are appropriate for the populations to be covered, and the services to be furnished under the contract; and (C) Have been certified, as meeting the requirements of this paragraph (c), by actuaries who meet the qualification standards established by the American Academy of Actuaries and follow the practice standards established by the Actuarial Standards Board." Generally speaking, Medicaid capitation rates are "actuarially sound" if, for the business for which the certification is being prepared and for the period covered by the certification, projected capitation rates and other revenue sources provide for all reasonable, appropriate, and attainable costs. The Parties agree that actuarial standards for prospective rate setting must take into consideration any material change to MMA Plan contract deliverables that has a material impact on the cost of contract perfonnance. A change in plan network adequacy standards may result in a material impact in the cost of contract performance. See Actuarial Standards Board, A.S.O.P." No. 49, March 2015 (pgs. 2, 6 & 7).
2

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 4 of 32
2. "AHCA" refers to the State of Florida, Agency for Health Care Administration. However, Defendant, Elizabeth Dudek, is interchangeably referred to herein as "Defendant Dudek" or "AHCA." References to Defendant Dudek, and any obligations of Defendant Dudek Lmder this Agreement, are understood to apply to any successors as Secretary of AHCA in their official capacity.
3. "Assistance in Applying for Medicaid" is defined to mean the assistance available through the ESS call center in applying for Medicaid and in obtaining a redetermination of Medicaid eligibility, as well as assistance made available through ESS centers, on-line or through ESS's community partner network.
4. "Board Certified Pediatricians" is defined to mean primary care physicians that have obtained and continue to maintain board certification in pediatrics and that provide services to Medicaid enrolled children under the age of21, to the extent services are actually provided to Medicaid enrolled children under the age of21.
5. "CMS-416 Report" is defined to mean the annual report generated by AHCA in
accordance with 42 U.S.C. § 1396a(43)(A) via the Fonn CMS-416. Measures contained in the CMS-416 Report are reported on a federal fiscal year (October 1 through September 30) basis.
6. "CMSN Managed Care Plan" is defined to mean the Children's Medical Services Network Managed Care Plan, which is expressly excluded :fi:om the term "MMA Plan" as that te1m is used herein.
7. "Contract Year" is defined to mean the year beginning October 1 and ending September 30.
8. "DCF" refers to the State of Florida, Department of Children and Families. However, Defendant, Mike Carroll, is interchangeably referred to herein as "Defendant Carroll"
3

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 5 of 32
or "DCF." References to Defendant Carroll, and any obligations of Defendant Carroll under this Agreement, are understood to apply to any successors as Secretary of DCF in their official capacity.
9. "Dental Provider" is defined to mean a dental service provider who provides dental services to children under the age of 21 enrolled in Florida's Medicaid program, to the extent services are actually provided to children under the age of 21 enrolled in Florida's Medicaid program.
10. "DOH" refers to the State of Florida, Department of Health. However, Defendant, Celeste Philip, M.D., is interchangeably referred to herein as "Defendant Philip" or "DOH." References to Defendant Philip, and any obligations of Defendant Philip under this Agreement, are understood to apply to any successors as Florida Surgeon General in their official capacity.
11. ''ESS" is defined to mean the DCF Economic Self-Sufficiency (ESS) Program, also known as ACCESS. ESS is a sub-unit of DCF and, accordingly, obligations of ESS outlined in this Agreement are responsibilities ofDCF and Carroll coextensively.
12. As used herein, the term "exemplars" refers to the specific infotmation about Medicaid eligibility process problems and deficiencies which Plaintiffs have identified and will
bring to the responsible Defendant's attention 30 days prior to the regularly scheduled meetings
provided for below. Wherever possible, exemplars shall provide Medicaid enrollee specific information including the Medicaid identification number, full name, date of birth, and social security number for the child at issue (hereafter, all of this identifying information is referred to as "demographic information"), the date of the issue or problem, and a description of the nature of the issue or problem.
4

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 6 of 32
13. "HEDIS Measure" is defined to mean a standardized measure that forms a part of the Heaithcare Effectiveness Data and Information Set ("HEDIS''), which is developed and tracked by the National Committee for Quality Assurance C'NCQA"). HEDIS Measures are tracked on a calendar year basis.
14. "Implementation Date" is defined to mean October 1, 2016. 15. "Medicare Fee~for~Service Rate" or "Medicare FFS Rate" is defined to mean (1) the rate of payment for a particular service specified on the fee schedule used by Medicare to pay doctors or other providers on a fee~for~service ("FFS") basis or (2) the calculated fee~for-service rate for services not covered by Medicare, such as well~child check-ups. The Medicare FFS Rate shall be that applicable for a given year to a particular geographical area within the State where the services are being provided, and should be adjusted by sequestration requirements or other legal requirements. The term permits the use of alternative payment methods, including but not limited to, innovative payment an·angements such as bundled payments or sub-capitation payments, if determined by AHCA to be comparable to the Medicare FFS rate in an aggregate amount. 16. "Medicaid Eligibility Process" is defined to include the application used to apply for Medicaid (whether paper or web-based), the ESS assistance in applying for Medicaid or seeking a redetermination of Medicaid eligibility, the redetermination process for Medicaid eligibility, and the process by which ESS creates unborn baby files for Pregnant Mothers. 17. "MMA Plan" or "SMMC MMA Plan', is defined to mean a Managed Medical Assistance Plan for the provision of managed care services to persons enrolled in the Florida Statewide Medicaid Managed Care ("SMMC") Managed Medical Assistance ("MMA") program. The term MMA Plan expressly excludes the CMSN Managed Care Plan.
5

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 7 of 32
18. "Ongoing" is defined to mean deficiencies or problems which are continuing and still in progress at the time they are raised by Plaintiffs.
19. "Pediatric Specialists and Sub-specialists>' is defined to mean those physician specialty types that are eligible for a 24% increase for services provided to Medicaid enrolled children under the age of 21 according to the Practitioner Fee Schedule, effective January 1, 2016, together with providers providing physical medicine, pediatric surgery> and urological surgery services provided to Medicaid enrolled children under the age of 21.
20. As used herein, the phrase "pregnant mothers" is limited to women who have been determined by ESS to be eligible for Medicaid and for whom ESS is notified of the pregnancy.
21. "Provider" is defined to mean a MMA Plan pediatric service provider who provides medical services to Medicaid enrolled children under the age of 21, to the extent services are actually provided to Medicaid enrolled children under the age of 21.
22. ~'Program Savings" is defined to mean all of the monies saved through increased efficiencies resulting from implementation and operation of the Florida SMMC MMA program as determined by AHCA in conjunction with its actuaries, other than those amounts the health plans are cwTently permitted to retain by statute.
23. "Qualified Protective Order" is defined to mean the agreed qualified protective order entered by the Court in this matter on December 7, 2015.
24. "Systemic Issue" is defined to mean a problem or deficiency which is common or widespread in the processes used to apply for and determine Medicaid eligibility in Florida.
6

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 8 of 32
25. "Triggering Event" is defined as a material breach by AHCA of the requirements of this Agreement or if the Florida Legislature does not approve action that AHCA is obligated to request pursuant to this Agreement.
26. "Unborn Baby File11 is defined to mean a file created by ESS in the case of a Pregnant Mother for her unborn child, so that promptly after birth the "file" can be activated.
27. "Unborn Baby Activation Process" is defined to mean the process administered principally by AHCA of activating newborns after birth. A hospital, pediatrician, or MMA plan may notify AHCA or its designee of the birth of a child for whom an unborn baby file exists, at which point AHCA or its designee is responsible for activating the unborn baby file.
II. Medical Services to Children Under Age 21 A. Implementation of Incentive Program:
1. AHCA will require all MMA Plans to use all Program Savings through at least September 2019 (i.e, for Contract Years 2016,2017, and 2018) to fund rate increases for MMA Plan network Providers that provide medical services to MMA Plan enrollee children under the age of 21 and Obstetricians, in the following order of priority: (I) Obstetricians, and Providers that are Board Certified Pediatricians; (2) Providers that are primary care physicians, including pediatricians that are not Board Certified Pediatricians; (3) Providers that are general practitioners or family practitioners; (4) Pediatric Specialists and Sub-Specialists. The rate increases will be provided, to the extent allowed by Program Savings, to eligible providers in the form of rate incentives earned when the Provider achieves certain objectively measurable patient
7

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 9 of 32
access and patient outcome measures to be established by AHCA pursuant to the Incentive
Proposal process set forth below ("Rate Incentives").3
2. 2016 Contract Year (October 1, 2016 through September 30, 2017):
A. AHCA is presently surveying MMA Plans to determine the pediatric and pediatric specialist rates currently paid by the MMA Plans. The responses to these surveys will allow AHCA's contracted actuaries to determine for the 2016 Contract Year what rate increases, and for which Providers, may be funded solely through Program Savings while ensuring Actuarially Sound Capitation Rates.
B. On or about April 4, 2016, AHCA will send Information Requests to the MMA Plans which will require the MMA Plans to submit incentive proposals for the outcome and access measures that Providers within their respective networks would need to achieve in order to earn the Medicare FFS Rate ("MMA Plan Incentive Proposals"). At a minimum, the MMA Plan Incentive Proposals must provide a reasonable opportunity for all Providers that are Board Certified Pediatricians and Obstetricians to earn the Medicare FFS Rate for the 2016 Contract Year through Rate Incentives while ensuring Actuarially Sound Capitation Rates.
C. On or about April 11, 2016, AHCA will solicit public comments regarding the Information Requests at a public meeting.
D. AHCA will review and notice approval of approved MMA Plan Incentive Proposals in a timely manner that allows the approved MMA Plan Incentive Proposals to be included in the contracts with the MMA Plans for the 2016 Contract Year.
E. As an alternative, or in addition to the MMA Plan Incentive Proposals, AHCA will create incentive proposals for the outcome and access measures that eligible Providers would need to achieve in order to earn the Medicare FFS Rate ("AHCA Incentive Proposals"). At a minimum, the
AHCA Incentive Proposals will provide a reasonable opportunity for (a)
all . Providers that are Board Certified Pediatricians and (b) all Obstetricians to earn the Medicare FFS Rate for the 2016 Contract Year through Rate Incentives while ensuring Actuarially Sound Capitation Rates. MMA Plans may elect to include the AHCA Incentive Proposals in their contracts with AHCA for the 2016 Contract Year; and the AHCA
3 The Rate Incentives offered to MMA Plan network Providers shall not affect existing Medicaid FFS rate schedules promulgated by AHCA.
8

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 10 of 32
Incentive Proposals will be included in all contracts with MMA Plans that
do not submit approved MMA Plan Incentive Proposals.
F. AHCA will meet with Representatives of the Plaintiffs each month :fi:om
April 2016 through September 2016 to discuss the Information Requests,
MMA Plan Incentive Proposals, AHCA Incentive Proposals, and the Rate Incentives to be included in the contracts with the MMA Plans for the
2016 Contract Year. Thereafter, AHCA will meet with Representatives of
the Plaintiffs at least quarterly through September 2021 to discuss the success of the Incentive Program and any recommended revisions, recognizing that any collaboration related to amendments to contracts with the MMA Plans must be completed on or before July 1 preceding the respective Contract Year. The meetings provided for in this Agreement shall not be voting or decision-making meetings. Plaintiffs will bear their own expenses of participation in these meetings, including travel expenses. The meetings will be held in Tallahassee, Florida. Participation may be by electronic means to the extent arrangements can be reasonably made for participation by electronic means.
G. AHCA will take necessary action to increase capitation rates if necessary to allow Board Certified Pediatricians and Obstetricians to have a reasonable opportunity to earn the Medicare FFS Rate through Rate Incentives for the 2016 Contract Year, and subsequent years, while ensuring Actuarially Sound Capitation Rates.
3. 2017 and 2018 Contract Years: AHCA will follow the same process set forth
above for the 2017 and 20 18 Contract Years, and will require all MMA Plans to use all Program
Savings to fund rate increases for MMA Plan network Providers and MMA Plan Obstetricians,
in the following order of priority: (1) Obstetricians and Providers that are Board Certified
Pediatricians; (2) Providers that are primary care physicians, including pediatricians that are not
Board Certified Pediatricians; (3) Providers that are general practitioners or family practitioners;
(4) Pediatric Specialists and Sub-Specialists.
B. Implementation ofIncentive Program:
1. The following metrics shall be used to evaluate the improvements in the Florida
SMMC MMA Program relevant to medical services provided to children under the age of21, to
be attained within thirty (30) months of the Implementation Date:
9

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 11 of 32
A. meeting a statewide Participation Ratio, as measured on Line 10 of the CMS-416 Reports, at least equivalent to the national mean;
B. meeting a statewide Participation Ratio, associated with Line 10 of the CMS-416 Reports, of at least 75 percent for all aggregate age groups on a weighted average basis below the age of 10;
C. achieving a statewide weighted average of all MMA Plans that is equal to or exceeds the national Medicaid mean for at least eight (8) of the following nine (9) HEDIS Measures:
(1) Adolescent Well Care Visits (AWC); (2) Children & Adolescents' Access to Primary Care Practitioners
(PCPs) ~ 12-24 months; (3) Children & Adolescents' Access to Primary Care Practitioners
(PCPs)- 25 months-6 years; (4) Children & Adolescents' Access to Primary Care Practitioners
(PCPs) -7-11 years; (5) Children & Adolescents' Access to Primary Care Practitioners
(PCPs)- 12-19 years; (6) Well Child Visits in the First 15 Months of Life (WlS)- 0 Visits
(INVERSE); (7) Well Child Visits in the First 15 months ofLife (W15)- 6 or more
Visits; (8) Well Child Visits in third, fourth, fifth and sixth years of Life
(W34); and (9) Lead screening in children (LSC).
D. Performance of the above metrics will be measured against the prior year's
results. The CMS-416 Rep01t measures will be evaluated based on the prior federal fiscal year (October 1 through September 30) and the HEDIS Measures
will be evaluated based on the prior calendar year.
E. The Parties may retain consultants, at their own expense, to review and opine on the methodology and data gathering related to these metrics. Each party shall make good faith efforts to consider the analysis of consultants retained by the other party, all toward achieving the shared objective of the Florida Medicaid
program operating as a top"performing program providing quality EPSDT
services to all eligible Florida children.
C. Implementation Measures for All MMA Plans:
For all MMA Plans, AHCA will:
10

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 12 of 32
1. monitor and enforce the time and distance access requirements for MMA Plan networks as required under AHCA's contracts with the MMA Plans; and report on network adequacy compliance to Plaintiffs' Representatives; and
2. enforce the contractual obligation of MMA Plans to achieve an 80 percent Participation Ratio through imposition ofliquidated damages.
D. Implementation Measures for Non-Petforming MMA Plans: 1. AHCA will require all MMA Plans that do not meet the CMS-416 Report measures (as defined in l.A & B. above) and the HEDIS Measures (as defined in l.C. above) set forth above for federal fiscal year 2015-16 (for CMS-416 Report measures) or calendar year 2016 (for HEDIS Measures) to take additional steps in connection with the 2017 Contract Year in order to improve performance. AHCA will require all MMA Plans that do not meet the CMS416 Report measures and HEDIS Measures set forth above for federal fiscal year 2016-17 (for CMS-416 Report measures) or calendar year 2017 (for HEDIS Measures) to take additional steps in connection with the 2018 Contract Year in order to improve performance, and AHCA will continue to require all MMA Plans that do not meet the CMS-416 Report measures and HEDIS Measures set forth above in subsequent years to take additional steps to improve perfonnance in subsequent Contract Years.
E. Additional Statewide Measures If the Florida SMMC MMA Program statewide does not meet the CMS-416 Report measures (as defined in LA. and B. above) and the HEDIS Measures (as defined in 1.C. above) set forth above based on the measures available thirty (30) months after the Implementation Date, AHCA will implement the following, effective as ofthe 2019 Contract Year:
A. AHCA and Plaintiffs' Representatives will collaborate in good faith to devise
a corrective action plan designed to achieve the CMS-416 Report measures
11

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 13 of 32
and HEDIS Measures set forth above consistent with the objectives of the Incentive Program. The corrective action plan shall provide for pediatricians and pediatric specialists and subspecialists that are eligible MMA Plan Providers that provide medical services to MMA Plan enrolled children under the age of 21 to earn the Medicare FFS Rate, subject to modifications to MMA Plan-related incentives and disincentives (e.g., increasing percentages
of shared savings for compliance or, conversely, liquidated damages for
noncompliance, with the CMS-416 Report measures and HEDIS Measures set forth above). AHCA will also amend its contracts with the MMA Plans to
prohibit the MMA Plans from relying on the Medicaid fee-for-service rate schedule as a baseline to determine rates to be paid to Providers.
B. AHCA agrees to seek increases in capitation rates, including by legislative
action if necessary, that are needed to to ensure Actuarially Sowtd Capitation Rates to facilitate the measures described in subsection A above, consistent with the Incentive Program.
III. Dental Services to Children Under Age 21
1. AHCA agrees to increase access to and utilization of pediatric dental services
through a combination of the following: (1) studies of and enhancements to network adequacy
requirements; (2) perpetuation of Florida's state oral health action plan (through which AHCA is
attempting to develop in-depth knowledge of the barriers to the receipt of dental care to help
target interventions); (3) increased development of performance improvement projects, through
which AHCA requires MMA Plans to devote resources to improved utilization of preventive
dental services; (4) intensive participation in oral health coalitions; and (5) increased outreach to
communicate the availability ofdental services to Medicaid children.
2. Within thirty (30) days of execution of this Agreement, AHCA will commence a
study of network adequacy standards for all pediatric Dental Provider types to determine
enhancements that should be incorporated into the MMA Plan contracts for the 2016 Contract
Year. The study of these standards will be robust and broad in scope, and will include, at a
minimum, requirements relating to geographic accessibility, travel time, availability to accept
new patients, and requirements relating to licensure, specializations, prompt payments, reducing
12

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 14 of 32
administrative obstacles and board certification. AHCA will collaborate with the MMA Plans and with Plaintiffs' Representativesi including the Florida Academy of Pediatric Dentists, before finalizing the network adequacy standards for the 2016 Contract Year.
3. AHCA will incorporate the network adequacy enhancements determined appropriate by the study in its MMA Plan contracts for the 2016 Contract Year. AHCA will include in the MMA Plan contracts outcome expectations consistent with the network adequacy enhancements, and consistent with the metrics used to evaluate improvements set forth below, and will impose incentives and contractual penalties {for compliance and noncompliance, respectively) that AHCA deems reasonable and appropriate.
4. AHCA will collaborate in good faith with the MMA Plans and with Plaintiffs' Representatives, including Florida Academy of Pediatric Dentists, to improve outreach for dental services. The outreach efforts will include sending reminder notices to parents and guardians and notification of the availability of transportation.
5. AHCA will continue to review and refine network adequacy standards during the term of this Agreement.
6. The following metrics shall be used to evaluate the improvements in the provision of dental services under the Florida SMMC MMA Program, which shalJ be achieved on or before September 30, 2021:
A Meeting or exceeding a statewide weighted average of all MMA Plans that is equal to or exceeds the 2014 national Medicaid mean for the HEDIS Annual Dental Visit measure (HEDIS ADV);
B. Meeting or exceeding the 2014 national average for the child Core Set PDENT measure (CMS-416 Report Line 12b divided by line lb); and
C. Meeting or exceeding the 2014 national average for the CMS-416 Report Dental Treatment Service measure (CMS-416 Report Line 12c).
13

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 15 of 32

7. The following interim benchmarks shall be used to evaluate the progress of the

improvements in the provision of dental services under the Florida SMMC MMA Program:
Year the Measurement l.SReporte

Preventive Dental (CMS 416, Line 12b divided by line lb; Child Core Set PDENT) Dental Treatment Services (CMS 416, Line 12c)
Annual Dental Visit (HEDIS ADV)

2017
30% 14% 45%

2018
32% 16% 46%

2019
35% 18% 47%

2020
38% 20% 48%

2021
42% 22% 49%

8. AHCA shall measure the performance of individual MMA Plans that provide

dental services to MMA Plan enrolled children under the age of 21 and shall require MMA Plans

that do not meet all of the annual interim benchmarks set forth above for the prior year to take

appropriate corrective measures effective as of the following Contract Year.

9. If the Florida SMMC MMA Program statewide does not meet all of the interim

benchmarks set forth above with respect to the measurements reported in 2017 or 2018,

respectively, AHCA will implement the following, effective as of the 2017 or 2018 Contract

Year, respectively (e.g. if AHCA has not met the benchmark for 2017, as reported in 2017 based

on 2016 data, AHCA will implement the following for the 2017 Contract Year): AHCA and

Plaintiffs' Representatives will collaborate in good faith to devise a corrective action plan

designed to achieve the interim benchmarks set forth above. The corrective action plan will be

consistent with the objectives of the Incentive Program, and may include, but is not limited to,

enhanced provider network standards and/or monitoring, additional targeted research into

barriers to dental care, additional incentives or penalties for plans that fail to meet these

4 Measurements are repmted in the year after the data is collected, so the measurement identified for one year is based on the data collected from the preceding year (e.g., the 2017 measurement is based on 2016 data).
14

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 16 of 32
standards, and additional outreach to inform recipients about the importance of oral health care,
the dental benefit, and how to access care.
10. If the Florida SMMC MMA Program statewide does not meet all of the interim
benchmarks set forth above with respect to the measurements reported in 2019, 2020, or 2021,
respectively, AHCA will implement the following, effective as of the 2019, 2020, or 2021
Contract Year, respectively {e.g. if AHCA has not met the benchmark for 2019, as reported in
2019 based on 2018 data, AHCA will implement the following for the 2019 Contract Year):
A AHCA and Plaintiffs' Representatives will collaborate in good faith to devise a corrective action plan designed to achieve the interim benchmarks set forth above. The corrective action plan will be consistent with the objectives of the Incentive Program, and may include, but is not limited to, enhanced provider network standards and/or monitoring, additional targeted research into baniers to dental care, additional incentives or penalties for plans that fail to meet these standards, and additional outreach to inform recipients about the importance oforal health care, the dental benefit, and how to access care.
B. AHCA will afford all eligible MMA Plan network providers that provide dental services to MMA Plan enrollee children under the age of 21 a reasonable opportunity to earn increased payment rates for dental services sufficient to incentivize them to cause the Florida SMMC MMA Program statewide to meet all of the interim benchmarks set forth above for the year 2019, 2020, or 2021, respectively, while ensuring Actuarially Sound Capitation Rates, which increased payment rates shall be in an amount equal to at least the 50th percentile of commercial dental insurance payments for pediatric dental care services furnished in Florida.
C. AHCA agrees to seek increases in capitation rates, including by legislative
action if necessary, that are needed to to ensure Actuarially Sound Capitation
Rates to facilitate the measures described in subsection B above, consistent with the incentive-based objectives described herein.
IV. Availability of Incentives to CMSN Managed Care Plan Providers
1. AHCA, DOH, and Plaintiffs' Representatives will meet and collaborate in good
faith on the best methods of servicing the needs of CMS children. The parties understand that
DOH may identify one or more third parties to administer the CMSN Managed Care Plan on an
15

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 17 of 32
at-risk capitated basis. If DOH contracts with one or more third party capitated managed care plans to administer the CMSN Plan, the third party plans will be obligated, upon the commencement of the contract with DOH, to comply with the same contractual provisions relating to Rate Incentives for MMA Plan Providers as set forth in the Incentive Program above, including reasonable opportunities to earn the Medicare FFS Rate. AHCA will seek federal approval as necessary to facilitate the changes contemplated by this section.5
V. AHCA's Role With Respect to Reassignments/Enrollment of Newborns I. AHCA and, to the extent needed, DOH, agree to meet with Representatives of the Plaintiffs on at least a quarterly basis and to implement reasonable measures to address the level of MMA Plan changes, or changes in primary care provider assigrunents, without notice or parental or guardian consent, and timely activation and enrollment of newborn babies with Medicaid coverage from birth. 2. AHCA will continue to make all reasonable efforts to minimize reassignment of chiJdren from one MMA Plan to a different MMA Plan without notice or consent of the child's parent or guardian. Additionally, AIICA will continue to make all reasonable efforts to minimize reassignment of children's ' plimary care providers by MMA Plans without notice or consent of the child's parent or guardian. Plaintiffs recognize that there are circumstances which require the reassignment of children from one MMA Plan to another or the reassignment of children's primary care providers by MMA Plans that are not within AHCA's control. Plaintiffs also acknowledge that parents and guardians are obligated to provide current contact information to AHCA and MMA Plans in order to provide notice of any required reassignments, and that the
' Nothing in this agreement shall have any effect on separately pending issues regarding screening of children for eligibility to be admitted into the CMS program.
16

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 18 of 32
provision of notice to the address on fiJe with AHCA or the MMA Plans constitutes notice of the reassignment.
3. AHCA will continue to make all reasonable efforts to ensure that preswnptively eligible newborns have their Medicaid activated expeditiously after being notified by a
pediatrician, hospital, or MMA Plan. Plaintiffs recognize that ESS is responsible for the creation of an Unborn Baby File when a pregnant mother who has been determined eligible for Medicaid notifies ESS of her pregnancy. This Unborn Baby File is then available to be activated by
AHCA or its designee following notification. VI. Outreach 1. AHCA shall either itself or by requirement upon MMA Plans or other contracted
vendors, ensure that communications are made through a variety of media and non-media avenues, including by community partners, so as to both infonn parents and guardians of enrolled Medicaid children of the availability of EPSDT services, and to inform parents and guardians of eligible but unenrolled children of the availability of the Medicaid program, and how to apply for such benefits. If the number of Medicaid and CHIP eligible but unenrolled children has not reached the 2014 national average, as reflected in the Urban Institute's 2016 report on Children's Medicaid/CHIP participation by September 30, 2018, AHCA will take
additional outreach steps either itself or through MMA plans or other contracted vendors and to
seek additional funding if required to implement such action. Vll. DCF's Role and the Medicaid Eligibility and Application Process A. DCF's Goals and Obligations.
17

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 19 of 32
Plaintiffs and ESS agree to the obligations set forth in this Agreement so as to advance the objective of improving the Medicaid eligibility process for children in Florida. Goals consistent with this objective include:
1. ESS will continue to make all reasonable efforts to mmrm1ze wrongful terminations of Medicaid eligibility for children during the continuous eligibility period. In furtherance of this goal, ESS wilJ, among other things, continue to maintain the current level of improvement, and, each month, ESS will review terminations for children under the age of 18 to determine which terminations are inappropriate. Where inappropriate terminations are identified, ESS will take corrective action.
2. ESS will make all reasonable efforts to ensure that there is an Unborn Baby File associated with each Pregnant Mother who meets the criteria set forth in 42 U.S.C. § 1396a(e)(4)
and 42 C.F.R. § 435.117. In furtherance of this goal, ESS will, among other things, conduct a
monthly review utilizing a monthly listing of all Pregnant Mothers, and shall provide appropriate training to ESS staff on the Unborn Baby Process.
3. ESS shall continue to evaluate the application process with the goal of improving the process (subject to Federal CMS requirements) for applicants to submit an application. The Parties acknowledge there can be a variety of reasons why applications are abandoned, some of which are beyond ESS's control. In furtherance of this goal, ESS shall, among other things, evaluate the need for additional training materials for its staff and community partners on the use of the selfwservice portal, and create such additional materials as indicated. ESS also shall evaluate its current internet based information for customers on the use of the self-service portal, and make improvements to the web based information about the self-service portal as indicated.
B. Meetings and Reporting Obligations
18

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 20 of 32
1. In order to achieve the goals set forth in Section VII.A, above, Plaintiffs and ESS have agreed to quarterly meetings with representatives of Plaintiffs and DCF. On agreement of DCF and the Plaintiffs, meetings may be held more frequently than quarterly. The first meeting shall be held within 30 days of the approval of this Agreement by the Court. ESS and Plaintiffs' representatives will bring their expertise to bear on the issues to be addressed at the quarterly meetings. The issues to be addressed in the quarterly meetings are those goals described above and how such goals may be achieved. The meetings provided for in this Agreement shall not be voting or decision-making meetings. These meetings will be held through June 2018.
2. Plaintiffs will bear their own expenses of participation in these meetings, including travel expenses. The quarterly meetings will be held in Tallahassee, Florida, although, where possible, arrangements will be made for participation in the meetings by electronic means.
3. Following the meetings described above, ESS shall consider proposed solutions as well as other measures intended to remedy Systemic Issues, and shall implement appropriate measures to achieve the goals identified above. In the event that DCF determines it lacks the funds needed to implement one or more appropriate measures, DCF will make a good faith effort to secure such funds from other sources, including but not limited to the Legislature, AHCA, and/or grants. ESS shall specifically consider the following measures either before or after the initial meeting, subject to approval if required by Federal CMS:
A. Modifying language on ESS's splash page to better identify the availability of assistance in completing the application on-line or by-phone or in-person;
B. Modifying language on the pop-up warning page that appears when an applicant selects the "finish and submit" option within the online application to better explain that an applicant may finish and submit an application at anytime, and that ESS will follow up with the individual if necessary; and
19

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 21 of 32
C. Modifying language surrounding the electronic signature in the Medicaid application to make it clearer that the applicant must both affix an electronic signature and click next in order to submit the application.
4. To facilitate an efficient meeting process, no later than 30 days before each scheduled quarterly meeting, Plaintiffs will provide in writing to ESS Exemplars of problems or deficiencies and other relevant information which Plaintiffs, in good faith, believe show Systemic Issues. To the extent that Plaintiffs' Exemplars involve actual children, Plaintiffs shall, to the extent possible, provide demographic information for the child at issue, the date(s) corresponding to the particular issue, and a description of the problem the child has experienced. Plaintiffs understand that without sufficient demographic information, DCF may not be able to investigate the information provided by Plaintiffs. The Qualified Protective Order currently in place shall be extended to assure that confidentiality obligations under applicable law wilJ be fully complied with in connection with this process.
5. Upon receipt of the written information provided by Plaintiffs, ESS will conduct an investigation to the extent necessary to determine the facts surrounding the Exemplars and information provided by Plaintiffs, including whether the information provided by Plaintiffs is typical of a Systemic Issue. ESS shall share with Plaintiffs at the regularly scheduled quarterly meeting the results ofESS's investigation, and shall discuss appropriate remedial measures.
6. If, on receipt of the information provided by Plaintiffs, ESS determines that there is inadequate time to investigate Plaintiffs' information within the 30 day period prior to the regularly scheduled quarterly meeting, ESS shall notify Plaintiffs of that determination within 7 days of receipt of the information provided by Plaintiffs. Plaintiffs may either agree to reschedule the quarterly meeting to a mutually acceptable date and time, or the scheduled
20

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 22 of 32
meeting will go forward with the infonnation that ESS is able to gather in time for the quarterly
meeting. 7. Within 30 days after the meeting, ESS will communicate back with Plaintiffs
about any decisions it has made regarding issues and suggested measures addressed at the
meeting. 8. At the quarterly meetings, ESS will provide the following reports to Plaintiffs,
samples of which will be provided to Plaintiffs at time of execution ofthis Agreement: A. Repotting on the most recent three months for which ESS has data available on inappropriate te1minations of Medicaid, and the steps taken by ESS to remediate any inappropriate terminations; B. Point in time reporting on Pregnant Mothers with and without an Unborn Baby File created by ESS staff, using the most recent data available; C. Reporting on the most recent three months for which ESS has data available on ESS call center call volume, abandoned calls, abandonment rate, caJls receiving busy signal. busy rate, and average wait time; and D. Reporting on the most recent three months for which ESS has data available on web applications received and submitted, Medicaid web applications received and submitted, the percentage of Medicaid only applications of all web applications received and submitted, web applications started but not submitted (i.e., no action taken for 60 days), and the percentage of web applications that are started and not submitted within 60 days.
9. Plaintiffs understand that, from time to time, it may be necessary to make changes to ESS's Medicaid eligibility system, policies, and procedures in order to comply with federal constitutional, statutory, regulatory, or legal requirements. This Agreement is not intended to prevent ESS from making changes to its Medicaid eligibility system, policies or procedures, as it
deems appropriate. 10. Plaintiffs also understand that the Medicaid application used by DCF has been
approved by the Secretary of the ahe Department of Health and Human Services Centers for
21

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 23 of 32
Medicare and Medicaid Services (federal CMS), and that further changes to the application may be subject to the approval of Federal CMS and the State's administrative rule-making process.
VIII. Retention of Jurisdiction, Litigation Rights, and Dismissal 1. The Parties have agreed that the Court will retain jurisdiction of this litigation until September 30, 2022, subject to the following litigation rights and other terms:
A. AHCA. AHCA's obligations under this Agreement are specified in Parts II through VI above. The Court will retain jurisdiction of this litigation with respect to AHCA until the earlier of (1) the date on which AHCA attains the Implementation Measures described in Parts II.B (both of the 416 measures and the HEDIS measures) and lll.6 (all three measures) or (2) September 30, 2022. If a motion for breach of the Agreement has been filed, the Court shall continue to retain jurisdiction until such motion is finally adjudicated. If Plaintiffs believe a Triggering Event has occurred, Plaintiffs shall provide AHCA with written notice of a Triggering Event, and an opportunity for cure. The parties shall meet to attempt to resolve such issues. If, after 45 days of providing such notice, Plaintiffs believe that a material breach or other Triggering Event has not been remedied, Plaintiffs' exclusive remedy is to file a motion with the District Court and upon establishing such a material breach or other Triggering Event has occurred, Plaintiffs may seek declaratory and injunctive relief to remedy violations of the Medicaid Act, in a manner consistent with the procedural posture of the case as it existed immediately prior to the entry of this Agreement. The process set forth in this paragraph shall be the exclusive means for enforcement of an alleged breach of this Agreement by AHCA. None of the Parties waive any of their respective rights and defenses through the entry of this Agreement or its subsequent implementation.
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Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 24 of 32
B. DOH. DOH's obligations under this Agreement are specified in Part IV above. The Court will retain jurisdiction of this litigation with respect to DOH until the date on which the Plaintiffs' claims against AHCA are dismissed. The process set forth above with respect to AHCA shall apply in the event that Plaintiffs believe that a Triggering Event has occurred with respect to the obligations of DOH under this Agreement and shall be, with respect to the obligations of DOtJ, the exclusive means by which Plaintiffs may seek to enforce an alleged breach of the obligations of this Agreement by DOH.
C. DCF. DCF's obligations under this Agreement are specified in Part VII above. The Court will retain jurisdiction of this litigation with respect to DCF until June 30, 2018. If, prior to June 30, 2018, Plaintiffs establish that DCF has substantially failed, without reasonable justification, to meet the goals identified in Part VILA, above, by failing to implement available measures to achieve those objectives, the Court will lift the stay and Plaintiffs may proceed to seek declaratory and injunctive relief to remedy violations of the Medicaid Act, in a manner consistent with the procedural posture of the case as it existed immediately prior to the entry ofthis agreement. The process set forth in this paragraph shall be the exclusive means for enforcement of an alleged breach ofthis Agreement by DCF.
(1) At least 45 days prior to filing a motion to lift the stay, Plaintiffs agree to give counsel for DCF written notice of their intent to file the motion. The notice shall provide specific reasons why Plaintiffs believe that DCF has breached its duties under the terms of this Agreement, and why declaratory and injunctive relief is warranted. (2) DCF shall provide a written response to Plaintiffs' notification
within 30 days of its receipt. The parties shall then meet and, if the parties
are unable to reach agreement on curing the issues identified, Plaintiffs may proceed to seek declaratory and injunctive relief to remedy violations of the Medicaid Act, in a manner consistent with the procedural posture of
the case as it existed immediately prior to the entry of this Agreement. If
such motion is denied, the obligations of this Agreement are not affected.
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Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 25 of 32
(3) The Parties recognize that the Plaintiffs' exclusive remedy in the event of an alleged breach or other triggering event described in this paragraph is to seek declaratory and injunctive relief to remedy violations of the Medicaid Act in a manner consistent with the procedural posture of this case as it existed immediately prior to the entry of this Agreement. None of the Parties waive any of their respective rights and defenses through the entry of this Agreement or its subsequent implementation. IX. Additional Terms and Conditions 1. This Agreement is the product of lengthy negotiations and compromise among the Parties through a confidential mediation. 2. The parties have entered into this Agreement in order to settle all claims against Defendants, to avoid the uncertain outcome of continued litigation, and to provide improvements in the delivery of Medicaid to all eligible Florida children. Defendants expressly deny that any of the claims brought by the Plaintiffs have any merit and nothing in this Agreement is or shall be construed as an admission of liability by the Defendants. This Agreement cannot be used as an admission by any party in this or any other proceeding; nor should this Agreement be construed as a waiver of any claims that may arise after dismissal of this action. The terms and conditions of this Agreement are not admissions by any party as to a violation of or compliance with any federal or state law; and are not admissible, except for the purpose of establishing a breach of this Agreement. However, nothing in this paragraph restricts the Parties' ability to introduce any standards. metrics, or benchmarks, or data concerning the performance of the Florida Medicaid program in any further proceedings in this case. The Parties agree not to use this Agreement or any of its terms or provisions in any other case or matter to argue that any party has conceded that any particular action must be taken or not taken. 3. The obligations set forth above are independent and specific to AHCA, DOH, and DCF, respectively, as delineated under the above headings. Any alleged failure by one of the
24

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 26 of 32
Defendants to satisfy its respective obligations under this Agreement shalJ not constitute a failure under this Agreement by the other Defendants or entitle the Plaintiffs to exercise any rights or remedies with respect to the Defendants who have satisfied their obligations under this Agreement.
4. The Defendants agree to pay and the Plaintiffs agree to accept $12,000,000 in full settlement of any entitlement to attorneys' fees and costs incurred by the Plaintiffs and their counsel in relation to this lawsuit from its inception through the date that the last party executes this Agreement ("Settlement Amount"). The Plaintiffs acknowledge that payment of the Settlement Amount is subject to and contingent upon the review and approval of the Florida's Chief Financial Officer, or his authorized delegate (the "CFO"), pursuant to his authority as set forth in the Florida Constitution and section 17.03, Florida Statutes, which provides in pertinent part: ''The Chief Financial Officer of this state, using generally accepted auditing procedures for testing or sampling, shall examine, audit, and settle all accounts, claims, and demands, whatsoever, against the state, arising under any Jaw or resolution of the Legislature, and issue a warrant directing the payment out of the State Treasury of such amount as he or she allows thereon." The Plaintiffs further acknowledge that the Defendants' consent to pay the Settlement Amount does not constitute an admission that the Plaintiffs are prevailing parties for purposes of 42 U.S.C. § 1988 and that any entitlement to attorneys' fees and costs incurred subsequent to this Agreement must be proven without reference to this Agreement or any earlier agreements or understandings between the parties relevant to this action. The Defendants acknowledge (1) the parties' intent that payment of the Settlement Amount will be due within 30 days of the latter of (a) approval of this Agreement by the Court or (b) the CFO's determination that the Plaintiffs' counsel have submitted sufficient documentation establishing the incurring of fees and expenses
25

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 27 of 32
by the Plaintiffs and their counsel to support the payment of the Settlement Amount to Plaintiffs' counsel, which determination shall occur not later than 30 days after submission of documentation is complete. The Defendants will endeavor in good faith to obtain approval from the CFO and acknowledge that the purpose of CFO review is to confirm that the Plaintiffs' counsel have documented the incurring of fees and expenses to support the payment of the Settlement Amount to Plaintiffs' counsel and is not a process by which the State will seek to reduce that amount by challenging the reasonableness of timekeeper rates or services as might occur in a fee hearing. In the unlikely event the State does not pay the Settlement Amount when due, the Plaintiffs would be entitled to a judgment under Section 1988 for the Settlement Amount. Costs for notice by publication of the hewing on Plaintiffs motion to approve the settlement and any incentive payments to class representatives approved by the Court shall be paid or reimbursed from the Settlement Amount. Payment of the Settlement Amount shall be made by check or wire transfer to the trust account of Boies, Schiller & Flexner, LLP.
5. All Parties and their counsel will use their best efforts to obtain Court approval of this Agreement pursuant to Rule 23(e).
6. Each of the signatories to this Agreement on behalf of Defendants represents that he or she will take all necessary steps to comply with the requirements of Section 45.062, Florida Statutes {20 15).
7. The parties agree and acknowledge that: (a) this Agreement constitutes a total and complete integration of the entire understanding and agreement between the Parties with respect to the subject matter of this Agreement; (b) there are no representations, warranties, understandings or agreements between the Parties other than those specifically set forth in writing in this Agreement; (c) in entering into this Agreement, none of the parties has relied on
26

Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 28 of 32
any representation, warranty, understanding, agreement, promise or condition not specifically set forth in writing in this Agreement; (d) except as expressly provided in this Agreement, all prior and/or contemporaneous discussions, negotiations, agreements and writings have been and are terminated and superseded by this Agreement; and (e) no changes and/or additions to this Agreement shall be valid, enforceable or recognized unless made in a writing and signed by all of the Parties.
8. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Execution of this Agreement by the parties hereto may be evidenced by the transmission of facsimile or electronic pdf copies.
9. This Agreement shall be binding upon the Parties, their predecessors, successors, parents, subsidiaries, affiliates, assigns, agents, directors, officers, employees, and attorneys. Each of the signatories to this Agreement represents and warrants that he or she is authorized to execute this Agreement and to bind the party on whose behalfhe or she is signing.
10. This Agreement shall not grant any rights to any third parties other than the successors and assigns ofthe Parties.
11. This Agreement shall not create a partnership or joint venture between the Parties. 12. If any part or any provision of this Agreement shall be finally determined to be invalid or unenforceable under applicable law by a court of competent jurisdiction, that part or provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or the remaining provisions of this Agreement.
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Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 29 of 32
13. The section and paragraph headings in this Agreement are for convenience and reference only, and shall not be deemed to alter or affect the provisions thereof.
14. Where necessary or appropriate to the meaning thereof, the singular and the plural shall be interchangeable and the words of any gender shall include all genders.
15. The Parties cooperated in the drafting of this Agreement, and in the event that it is determined that any provision of the Agreement is ambiguous, that provision shall not be presumptively construed against any party.
16. The Parties acknowledge and represent that they have reviewed and fully
understand this Agreement, and that they have entered into this Agreement freely and voluntarily.
17. The Parties further acknowledge and represent that they: (i) have been given an opportunity to retain, and have retained, attorneys of their choice in connection with the execution of this Agreement; (ii) are fully satisfied with the professional services rendered by their respective attorneys; and (iii) have relied on the advice of their respective attorneys and their own informed judgment in executing this Agreement.
18. Each of the Parties agrees to do, execute, acknowledge and deliver, or cause to be
done, executed, acknowledged and delivered, all such further acts and assurances as shall be reasonably requested by the other Party in order to carry out the intent of this Agreement. Without in any manner limiting the specific rights and obligations set forth in this Agreement, the parties hereby declare their intention to cooperate with each other in effecting the terms of this Agreement, and to coordinate the performance of their respective obligations under the terms ofthis Agreement.
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Case 1:05-cv-23037-AJ Document 1399-1 Entered on FLSD Docket 06/17/2016 Page 30 of 32

IN WITNESS WHEREOF, the Parties, through their duly authorized representatives, ..-.b
have executed this Settl~ment Agreement as of the J__ day of April,

TH DUDEK, as ecretary r Healthcare Administration 2727 M an Drive Tallahassee, FL 32308 Tel. (850) 412-3630
Fax (850) 413-7712
For Plaintiffs:
Boies, Schiller & Flexner LLP 401 E. Las Olas Blvd. Ft. Lauderdale, FL 33301-2211 Tel. (954) 356-0011 Fax (954) 356-0022

CELES

, M.D., as Interim State

Surgeon General and Secretary

The Florida Department of Health

4052 Bald Cypress Way

Tallahassee, FL 32399

Tel. (850) 245-4005

Fax (850) 410-1448

For Mike Carroll, as Secretary of Florida Department ofChildren & Families:
-

Ausley McMu len 123 South Calhoun Street Tallahassee, FL 32301 Tel. (850) 224-9115 Fax (850) 222-7560

29

CCaassee11:0:055--ccvv--2233003377--AAJJ DDooccuummeenntt11339997-1 EEntnetreerdedononFFLSLSDDDDocokcekte0t 60/60/1/72/0210616 PPagaege73o1f 8of 32
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO. 05-23037-CIV-JORDAN/O’SULLIVAN
FLORIDA PEDIATRIC SOCIETY/THE FLORIDA CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS; FLORIDA ACADEMY OF PEDIATRIC DENTISTRY, INC., et al.,
Plaintiffs, vs. ELIZABETH DUDEK, in her official capacity as the Secretary for the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, et al.,
Defendants. ___________________________________________/
ERRATA SHEET/ADDENDUM TO MEDICAID SETTLEMENT AGREEMENT 1. Part II.A.2.B (page 8) of the Settlement Agreement is amended to insert commas to clarify that Obstetricians are not “Providers”:
2. The header to part II.B (page 9) of the Settlement Agreement is amended to delete the erroneous header and replace it with the correct header:
3. The Dental metrics identified in Part III.6-7 (pages 13-14) of the Settlement Agreement are amended as follows:

CCaassee11:0:055--ccvv--2233003377--AAJJ DDooccuummeenntt11339997-1 EEntnetreerdedononFFLSLSDDDDocokcekte0t 60/60/1/72/0210616 PPagaege83o2f 8of 32
CASE NO. 05-23037-CIV-JORDAN/O’SULLIVAN

6. The followingmetrics shall be used to evaluate the improvements in the provision
of dental services under the Florida SMMC MMA Program, which shall be achieved on or
before September 30, 2021:
A. Meeting or exceeding a statewide weighted average of all MMA Plans that is equal to or exceeds the 2014 national Medicaid mean for the HEDIS Annual Dental Visit measure (HEDIS ADV);
B. Meeting or exceeding the 2014 national average for the child Core Set PDENT measure (CMS-4 16 Report Line 12b divided by line 1b, excluding children less than 1 year); and

C. Meeting or exceeding the 2014 national average for the Agency' s CMS-416 Report Dental Treatmept Service measure (CMS-416 Report Line 12c divided by Line 1b. excluding children less than 1 year).
7. The following interim benchmarks shall be used to evaluate the progress of the
improvements in the provision of dental services under the Florida SMMC MMA Program:

Year the Measurement is Reported4

Preventive Dental (CMS 416, Line 12b divided by line 1b , excluding children less than 1 vear; Ghile Gafs Sst PI;>eN+) Dental Treatment Services (/.!~@B6!( Elefiese, CMS 416, Line 12c divided by Line 1b. excluding children less than 1 year)
Annual Dental Visit (HEDIS ADV)

2017 W 35%
-1415 % 45%

2018
~3 7 %
+&1 7% 46%

2019
~39%
-l-820% 47%

2020 ;l.&4 1%
~21 %
48%

2021 <P-44 %
2 3 ~%
49%

 
 Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 1 of 108
CLOSED,CMM,JJO,REF_DISCOV
U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:05−cv−23037−AJ

Florida Pediatric, et al v. Secretary − AHCA, et al Assigned to: Judge Adalberto Jordan Referred to: Ch. Magistrate Judge John J. O'Sullivan
Magistrate Judge Chris M. McAliley (Settlement) Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/21/2005 Date Terminated: 06/28/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Florida Pediatric Society/The FLorida Chapter of the American Academy of Pediatrics

represented by Carl Edward Goldfarb Boies Schiller & Flexner 401 E Las Olas Boulevard Suite 1200 Fort Lauderdale, FL 33301 954−356−0011 Fax: 356−0022 Email: cgoldfarb@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien J. Marshall Boies Schiller & Flexner 401 E Las Olas Boulevard Suite 1200 Fort Lauderdale, FL 33301 954−356−0011 Fax: 356−0022 Email: dmarshall@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Eiseman , Jr. Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Parkway 2nd Floor Philadelphia, PA 19103 215−627−7100 Fax: 627−3183 TERMINATED: 03/12/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashi C. Bach Boies Schiller Flexner LLP 401 East Las Olas Boulevard Suite 1200 Fort Lauderdale, FL 33301 954−356−0011 Fax: 954−356−0022 Email: sbach@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Harold Singer Boies Schiller & Flexner 401 E Las Olas Boulevard Suite 1200 Fort Lauderdale, FL 33301 954−356−0011

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Fax: 356−0022 Email: ssinger@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas K. Gilhool Public Interest Law Center of Philadelphia 1709 Benjamin Franklin Parkway 2nd Floor Philadelphia, PA 19103 215−627−7100 TERMINATED: 03/12/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua P. Riley Boies Schiller & Flexner 5301 Wisconsin Avenu, NW Washington, DC 20015 202 274−1146 Email: jriley@bsfllp.com PRO HAC VICE

Louis W. Bullock Miller Keffer Bullock & Pedigo 110 W. 7th Street Suite 707 Tulsa, OK 74119 918−584−2001 Fax: 918−779−4383

Mauricio Gonzalez Boies Schiller & Flexner 401 E Las Olas Boulevard Suite 1200 Fort Lauderdale, FL 33301 954−356−0011 Email: magonzalez@bsfllp.com PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Bernard Kunz Boies Schiller & Flexner 401 E Las Olas Boulevard Suite 1200 Fort Lauderdale, FL 33301 954−356−0011 Fax: 356−0022 Email: pkunz@bsfllp.com TERMINATED: 03/06/2009

Paul R. Verkuil Boies Schiller & Flexner 575 Lexington Avenue 7th Floor New York, NY 10022 212−446−2300 Email: pverkuil@bsfllp.com TERMINATED: 03/05/2010 PRO HAC VICE

Plaintiff
Florida Academy of Pediatric Dentistry, Inc.

represented by Carl Edward Goldfarb (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien J. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua P. Riley (See above for address) PRO HAC VICE

Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009

Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010 PRO HAC VICE

Plaintiff
Ashley Dove as the next friend of Kaleb Kelley, a minor child

represented by Benjamin D. Geffen Public Interest Law Center of Philadelphi 1709 Benjamin Franklin Parkway, 2nd Floor Philadelphia, PA 19103 267−546−1308 Email: BGeffen@pilcop.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carl Edward Goldfarb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien J. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Harold Singer (See above for address)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 4 of 108

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua P. Riley (See above for address) PRO HAC VICE

Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009

Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010 PRO HAC VICE

Plaintiff
Blanche Spell as the next friend of Khalillah Spell, a minor child TERMINATED: 03/17/2008

represented by Benjamin D. Geffen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carl Edward Goldfarb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien J. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua P. Riley (See above for address) PRO HAC VICE

Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009

Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010

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PRO HAC VICE

Plaintiff
Eva Carmona as the next friend of Vanessa and Jennifer Patino, minor children TERMINATED: 03/17/2008

represented by Benjamin D. Geffen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carl Edward Goldfarb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien J. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua P. Riley (See above for address) PRO HAC VICE

Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009

Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010 PRO HAC VICE

Plaintiff
Amy Torchin as the next friend of Theodore Torchin, a minor child

represented by Benjamin D. Geffen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carl Edward Goldfarb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien J. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff
Rita Gorenflo as next friend of Thomas and Nathanial Gorenflo, minor children

Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua P. Riley (See above for address) PRO HAC VICE
Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009
Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010 PRO HAC VICE
represented by Benjamin D. Geffen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Carl Edward Goldfarb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damien J. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua P. Riley (See above for address)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 7 of 108

PRO HAC VICE ATTORNEY TO BE NOTICED

Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010 PRO HAC VICE

Plaintiff
Les Gorenflo as the next friend of Thomas and Nathanial Gorenflo, minor children

represented by Benjamin D. Geffen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Carl Edward Goldfarb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien J. Marshall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua P. Riley (See above for address) PRO HAC VICE

Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009

Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff N. A.

represented by Damien J. Marshall (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED
Sashi C. Bach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Harold Singer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl Edward Goldfarb (See above for address) ATTORNEY TO BE NOTICED
Joshua P. Riley (See above for address) PRO HAC VICE
Mauricio Gonzalez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Paul Bernard Kunz (See above for address) TERMINATED: 03/06/2009
Paul R. Verkuil (See above for address) TERMINATED: 03/05/2010 PRO HAC VICE

V.
Defendant
Secretary of the Florida Agency for Health Care Administration (AHCA)

represented by Chesterfield H. Smith , Jr. Attorney General's Office Florida Department of Legal Affairs PL−01 The Capitol Tallahassee, FL 32399−1050 850−414−3665 Fax: 850−488−4872 Email: Chesterfield.Smith@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie A. Daniel Attorney General Office Department of Legal Affairs The Capitol PL−01 Tallahassee, FL 32399−1050 850−414−3300 Fax: 488−4872 Email: Stephanie.Daniel@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik Matthew Figlio Ausley McMullen, PA 123 S. Calhoun Street Tallahassee, FL 32309 (850) 224−9115

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Fax: (850) 222−7560 Email: rfiglio@ausley.com ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez Marcos D. Jimenez, P.A. 255 Alhambra Circle Suite 800 Coral Gables, FL 33134 305−570−3249 Email: mdj@mdjlegal.com TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Defendant
Secretary of Florida Department of Children & Family Services

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert J. Bowden , III Attorney General Office Department of Legal Affairs The Capitol PL−01 Tallahassee, FL 32399−1050 904−488−9935 Email: al.bowden@myfloridalegal.com ATTORNEY TO BE NOTICED

Erik Matthew Figlio (See above for address) ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez (See above for address) TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Paul Jeffrey Martin Florida Department of Transportation Office of the General Counsel 605 Suwannee Street, MS−58 Tallahassee, FL 32399−0458 850−414−5286 Fax: 850−414−5264 Email: paul.martin@dot.state.fl.us TERMINATED: 04/02/2009

Defendant
Secretary of the Florida Department of Health

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chesterfield H. Smith , Jr. Attorney General's Office PL−01 The Capitol Tallahassee, FL 32399−1050

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 10 of 108

850−414−3665 Fax: 850−488−4872 Email: Chesterfield.Smith@myfloridalegal.com ATTORNEY TO BE NOTICED

Erik Matthew Figlio (See above for address) ATTORNEY TO BE NOTICED

Gerald Anthony Giurato Kenny Nachwalter Seymour Arnold Critchlow & Spector 201 S Biscayne Boulevard Suite 1100 Miami, FL 33131−4327 Email: ggiurato@kennynachwalter.com TERMINATED: 12/16/2015 ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez (See above for address) TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Defendant AHCA Secretary Holly Benson

represented by Stephanie A. Daniel Attorney General Office The Capitol PL−01 Tallahassee, FL 32399−1050 850−414−3300 Fax: 488−4872 Email: Stephanie.Daniel@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chesterfield H. Smith , Jr. (See above for address) ATTORNEY TO BE NOTICED

Gerald Anthony Giurato (See above for address) TERMINATED: 12/16/2015 ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez (See above for address) TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Robert Donald Wike Landon , III. Kenny Nachwalter, P.A. Miami Center 201 S Biscayne Boulevard 1100 Miami Center Miami, FL 33131−4327 305−373−1000 Fax: 372−1861 Email: rlandon@knpa.com TERMINATED: 12/14/2015 ATTORNEY TO BE NOTICED

Defendant Robert A. Butterworth

represented by

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Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chesterfield H. Smith , Jr. (See above for address) ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez (See above for address) TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Defendant Alan Levine

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez (See above for address) TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Defendant Andrew Agwunobi

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez (See above for address) TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Defendant Ana Viamonte−Ros

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chesterfield H. Smith , Jr. (See above for address) ATTORNEY TO BE NOTICED

Marcos Daniel Jimenez (See above for address) TERMINATED: 10/15/2012 ATTORNEY TO BE NOTICED

Defendant
Secretary AHCA Elizabeth Dudek Agency for Health Care Administration, Fl

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik Matthew Figlio (See above for address) ATTORNEY TO BE NOTICED

Intervenor

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 12 of 108

C. G.

represented by Paul Bernard Kunz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor M. B.

represented by Paul Bernard Kunz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor K. V.

represented by Paul Bernard Kunz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor S. C.

represented by Paul Bernard Kunz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor K. S.

represented by Paul Bernard Kunz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor S. B.

represented by Paul Bernard Kunz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/21/2005
11/21/2005 11/21/2005 11/21/2005 12/15/2005
01/13/2006
01/13/2006
01/13/2006

# Docket Text
1 COMPLAINT filed; FILING FEE $250.00 RECEIPT # 930783 ; Magistrate Judge Andrea M. Simonton (vp, Deputy Clerk) Modified on 6/29/2016 (mr1). (Entered: 11/28/2005)
2 SUMMONS(ES) issued for Secretary − FDH (vp, Deputy Clerk) (Entered: 11/28/2005)
3 SUMMONS(ES) issued for Seretary − AHCA (vp, Deputy Clerk) (Entered: 11/28/2005)
4 SUMMONS(ES) issued for Secretary (vp, Deputy Clerk) (Entered: 11/28/2005)
5 MOTION by Secretary, Seretary − AHCA (Attorney Chesterfield H. Smith Jr.) to extend time to file initial response to class action complaint (nt, Deputy Clerk) (Entered: 12/16/2005)
6 ORDER granting [5−1] motion to extend time to file initial response to class action complaint setting answer due for 1/13/06 for Secretary − FDH, for Secretary, for Seretary − AHCA ( Signed by Judge Paul C. Huck on 01/13/06) [EOD Date: 1/17/06] (nt, Deputy Clerk) (Entered: 01/17/2006)
7 UNOPPOSED MOTION by Seretary − AHCA, Secretary, Secretary − FDH (Attorney Stephanie A. Daniel) to exceed page limitation on attached motion to dismiss (nt, Deputy Clerk) (Entered: 01/17/2006)
9 MOTION with memorandum in support by Seretary − AHCA, Secretary, Secretary − FDH to dismiss complaint (nt, Deputy Clerk) (Entered: 01/18/2006)

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01/18/2006 01/18/2006 01/19/2006 01/20/2006
01/26/2006 02/03/2006 02/03/2006 02/15/2006 02/15/2006 02/16/2006 02/22/2006 02/27/2006
02/27/2006 02/27/2006 02/27/2006 02/27/2006 02/27/2006 02/27/2006 03/02/2006 03/02/2006

8 ORDER granting [7−1] motion to exceed page limitation on attached motion to dismiss ( Signed by Judge Paul C. Huck on 01/18/06) [EOD Date: 1/18/06] (nt, Deputy Clerk) (Entered: 01/18/2006)
10 NOTICE of Telephonic Status Conference: setting status conference for 9:15 1/23/06 before Judge Paul C. Huck (nt, Deputy Clerk) (Entered: 01/19/2006)
11 UNOPPOSED MOTION by Florida Pediatric, Florida Academy, Ashley Dove, Blanche Spell, Eva Carmona, Amy Torchin, Rita Gorenflo, Les Gorenflo to extend time to respond to defendants' motion to dismiss (tb, Deputy Clerk) (Entered: 01/25/2006)
12 ORDER granting [11−1] motion to extend time to respond to defendants' motion to dismiss Response to motion reset to 2/15/06 for [9−1] motion to dismiss complaint ( Signed by Judge Paul C. Huck on 1/20/06) [EOD Date: 1/26/06] (tb, Deputy Clerk) (Entered: 01/26/2006)
13 MOTION by Florida Pediatric, Florida Academy, Ashley Dove, Blanche Spell, Eva Carmona, Amy Torchin, Rita Gorenflo, Les Gorenflo for recusal (bb, Deputy Clerk) (Entered: 01/30/2006)
14 ORDER OF RECUSAL granting [13−1] motion for recusal ( Signed by Judge Paul C. Huck on 1/27/06) [EOD Date: 2/6/06] (nt, Deputy Clerk) (Entered: 02/06/2006)
CASE reassigned to Judge Adalberto Jordan (nt, Deputy Clerk) (Entered: 02/06/2006)
15 RESPONSE by All Plaintiffs to [9−1] motion to dismiss complaint (sk, Deputy Clerk) (Entered: 02/16/2006)
16 MOTION by All Plaintiffs (Attorney ) for leave to file /exceed page limitation of opposition to motion to dismiss (See DE# 15 opposition) (sk, Deputy Clerk) (Entered: 02/16/2006)
17 ORDER granting [16−1] motion for leave to file /exceed page limitation of opposition to motion to dismiss ( Signed by Judge Adalberto Jordan on 02/16/06) [EOD Date: 2/17/06] (sk, Deputy Clerk) (Entered: 02/17/2006)
18 MOTION with memorandum in support by All Defendants to extend time to file reply to response to motion to dismiss complaint (dg, Deputy Clerk) (Entered: 02/23/2006)
19 ORDER granting [18−1] motion to extend time to file reply to response to motion to dismiss complaint Reply to Response to Motion reset to 3/7/06 for [9−1] motion to dismiss complaint ( Signed by Judge Adalberto Jordan on 2/24/06) [EOD Date: 2/28/06] (bb, Deputy Clerk) (Entered: 02/28/2006)
20 MOTION by Florida Pediatric (Attorney James Eiseman Jr.) for James Eiseman Jr to appear pro hac vice (bs, Deputy Clerk) (Entered: 02/28/2006)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 935783 (bs, Deputy Clerk) (Entered: 02/28/2006)
21 MOTION by Florida Pediatric (Attorney Thomas K. Gilhool) for Thomas K. Gilhool to appear pro hac vice (bs, Deputy Clerk) (Entered: 02/28/2006)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 935780 (bs, Deputy Clerk) (Entered: 02/28/2006)
22 MOTION by Florida Pediatric (Attorney Louis W. Bullock) for Louis W. Bullock to appear pro hac vice (bs, Deputy Clerk) (Entered: 02/28/2006)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 935781 (bs, Deputy Clerk) (Entered: 02/28/2006)
23 ORDER granting [20−1] motion for James Eiseman Jr to appear pro hac vice ( Signed by Judge Adalberto Jordan on 3/1/06) [EOD Date: 3/3/06] (bb, Deputy Clerk) (Entered: 03/03/2006)
24 ORDER granting [21−1] motion for Thomas K. Gilhool to appear pro hac vice ( Signed by Judge Adalberto Jordan on 3/1/06) [EOD Date: 3/3/06] (bb, Deputy Clerk) (Entered: 03/03/2006)

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03/02/2006
03/07/2006 03/16/2006 03/29/2006 03/30/2006
03/30/2006 04/17/2006
05/02/2006
05/10/2006
05/11/2006 05/15/2006 05/24/2006 06/07/2006 06/08/2006
07/21/2006
07/21/2006 01/05/2007 01/11/2007 01/12/2007 01/29/2007

25 ORDER granting [22−1] motion for Louis W. Bullock to appear pro hac vice ( Signed by Judge Adalberto Jordan on 3/1/06) [EOD Date: 3/3/06] (bb, Deputy Clerk) (Entered: 03/03/2006)
26 REPLY by All Defendants to response to [9−1] motion to dismiss complaint (nt, Deputy Clerk) (Entered: 03/09/2006)
27 NOTICE OF FILING SUPPLEMENTAL AUTHORITY by Secretary − FDH, Secretary, Seretary − AHCA re: (nt, Deputy Clerk) (Entered: 03/16/2006)
28 MOTION by All Plaintiffs (Attorney ) for Hearing on [9−1] mo (sk, Deputy Clerk) (Entered: 03/30/2006)
29 Certification for transferring case to new magistrate judge Klein ( Signed by Magistrate Judge Andrea M. Simonton on 03/29/06) [EOD Date: 3/31/06] (sk, Deputy Clerk) (Entered: 03/31/2006)
Magistrate identification: Magistrate Judge Theodore Klein (sk, Deputy Clerk) (Entered: 03/31/2006)
30 ORDER granting [28−1] motion for Hearing on [9−1] motion; setting motion hearing on [9−1] motion to dismiss complaint by Seretary − AHCA, Secretary, Secretary − FDH for 2:00 5/12/06 ( Signed by Judge Adalberto Jordan on 04/17/06) [EOD Date: 4/18/06] (sk, Deputy Clerk) (Entered: 04/18/2006)
31 NOTICE OF FILING SUPPLEMENTAL AUTHORITY by All Plaintiffs re: [15−1] RESPONSE by All Plaintiffs to [9−1] motion to dismiss complaint (sk, Deputy Clerk) (Entered: 05/03/2006)
32 NOTICE OF FILING INTENTION TO REPLY ON ADDITIONAL CASES/ SUPPLEMENTAL AUTHORITY by All Defendants re: [6−2] order (sk, Deputy Clerk) (Entered: 05/11/2006)
33 NOTICE of ntent to rely on additional cases by All Plaintiffs (sk, Deputy Clerk) (Entered: 05/11/2006)
34 NOTICE OF FILING SUPPLEMENTAL AUTHORITY by Seretary − AHCA (nt, Deputy Clerk) (Entered: 05/17/2006)
35 Transcript filed re: Hearing on Motion to Dismiss held 5/12/06 before Judge Adalberto Jordan Pages: 1−49 (hh, Deputy Clerk) (Entered: 05/24/2006)
36 NOTICE of voluntary dismissal without prejudice of Amy Torchin only by All Plaintiffs (hd, Deputy Clerk) (Entered: 06/08/2006)
37 ORDER dismissing without prejudice all claims against all defendants ( Signed by Judge Adalberto Jordan on 6/8/06) [EOD Date: 6/9/06] (hd, Deputy Clerk) (Entered: 06/09/2006)
38 PURSUANT to Administrative Order 2006−18, this case is temporarily reassigned to Magistrate Judge Edwin G. Torres (Signed by Judge William J. Zloch on 7/21/06) [EOD Date: 7/27/06] (dg, Deputy Clerk) (Entered: 07/27/2006)
Magistrate identification: Magistrate Judge Torres (dg, Deputy Clerk) (Entered: 07/27/2006)
39 Notice of Supplemental Authority re 9 Motion to Dismiss by All Defendants (Attachments: # 1)(Daniel, Stephanie) (Entered: 01/05/2007)
40 ORDER granting in part to count 3 and denying in all other respects 9 Motion to Dismiss . Signed by Judge Adalberto Jordan on 1/11/07. (lk) (Entered: 01/12/2007)
Set/Reset Answer Due Deadline: All Defendants answer due 2/12/2007. (lk) (Entered: 01/12/2007)
41 First MOTION for Reconsideration re 40 Order on Motion to Dismiss AND, FOR ORDER CERTIFYING ISSUES by All Defendants. (Attachments: # 1 DE #42# 2 DE #475# 3 DE # 478)(Daniel, Stephanie) (Entered: 01/29/2007)

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01/30/2007
01/30/2007
02/08/2007 02/09/2007 02/16/2007
02/16/2007
02/20/2007 02/26/2007 02/27/2007 02/28/2007
03/05/2007
03/07/2007 03/07/2007 03/08/2007 03/08/2007 04/12/2007 04/24/2007 04/24/2007
04/24/2007 04/27/2007 05/04/2007

42 NOTICE by All Defendants re 41 First MOTION for Reconsideration re 40 Order on Motion to Dismiss AND, FOR ORDER CERTIFYING ISSUES of Conferring with Opposing Counsel (Daniel, Stephanie) (Entered: 01/30/2007)
43 NOTICE by All Defendants re 41 First MOTION for Reconsideration re 40 Order on Motion to Dismiss AND, FOR ORDER CERTIFYING ISSUES, 42 Notice (Other) of conferring with opposing counsel (Daniel, Stephanie) (Entered: 01/30/2007)
44 First MOTION for Extension of Time to File Answer and Joint Scheduling Report by All Defendants. (Daniel, Stephanie) (Entered: 02/08/2007)
45 RESPONSE in Opposition re 44 First MOTION for Extension of Time to File Answer and Joint Scheduling Report filed by All Plaintiffs. (Kunz, Paul) (Entered: 02/09/2007)
46 REPLY to Response to Motion re 44 First MOTION for Extension of Time to File Answer and Joint Scheduling Report filed by All Defendants. (Daniel, Stephanie) (Entered: 02/16/2007)
47 MEMORANDUM in Opposition re 41 First MOTION for Reconsideration re 40 Order on Motion to Dismiss AND, FOR ORDER CERTIFYING ISSUES filed by All Plaintiffs. (Attachments: # 1 Exhibit)(Marshall, Damien) (Entered: 02/16/2007)
48 ORDER granting 44 Motion for Extension of Time ; Signed by Judge Adalberto Jordan on 02/20/2007 (bs) (Entered: 02/20/2007)
49 ANSWER to Complaint by All Defendants.(Daniel, Stephanie) (Entered: 02/26/2007)
50 ORDER granting 44 first motion for extension of time to file answer and joint scheduling report; Signed by Judge Adalberto Jordan on 02/26/2007 (bs) (Entered: 02/27/2007)
51 REPLY to Response to Motion re 41 First MOTION for Reconsideration re 40 Order on Motion to Dismiss AND, FOR ORDER CERTIFYING ISSUES filed by All Defendants. (Smith, Chesterfield) (Entered: 02/28/2007)
52 Joint MOTION for Extension of Time to File TWO DAY ENLARGEMENT OF TIME TO FILE JOINT SCHEDULING REPORT by All Plaintiffs. (Goldfarb, Carl) (Entered: 03/05/2007)
53 STATUS REPORT Joint Scheduling Report by All Plaintiffs, All Defendants. (Goldfarb, Carl) (Entered: 03/07/2007)
54 Proposed Pretrial Order Plaintiffs Proposed Scheduling Order by All Plaintiffs. (Goldfarb, Carl) (Entered: 03/07/2007)
55 PRETRIAL STIPULATION CORRECTED JOINT SCHEDULING REPORT by All Plaintiffs, All Defendants. (Goldfarb, Carl) (Entered: 03/08/2007)
56 NOTICE by All Defendants of filing Proposed Scheduling Order (Attachments: # 1)(Daniel, Stephanie) (Entered: 03/08/2007)
57 MOTION for Judgment on the Pleadings by Secretary of Florida Department of Children & Family Services. (Daniel, Stephanie) (Entered: 04/12/2007)
58 ORDER denying 41 motion for reconsideration and to certify issues as immediately appealable;Signed by Judge Adalberto Jordan on 04/24/2007. (bs) (Entered: 04/24/2007)
59 SCHEDULING ORDER:, ORDER REFERRING CASE to Magistrate Judge Edwin G. Torres for discovery, ORDER REFERRING CASE to Mediation. Jury Trial set for 6/23/2008 before Judge Adalberto Jordan. Calendar Call set for 6/17/2008 09:00 AM before Judge Adalberto Jordan.Signed by Judge Adalberto Jordan on 04/24/2007.(bs) (Entered: 04/24/2007)
60 DISCOVERY PROCEDURE for Magistrate Judge Edwin Torres;Signed by Judge Adalberto Jordan on 04/24/2007.(bs) (Entered: 04/24/2007)
61 MOTION for Extension of Time to File Response/Reply as to 57 MOTION for Judgment on the Pleadings by All Plaintiffs. (Goldfarb, Carl) (Entered: 04/27/2007)
62 NOTICE by All Plaintiffs re 59 Scheduling Order, Order Referring Case to Magistrate Judge, Order Referring Case to Mediation,,, Notice Regarding Issue of Consent to Trial

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05/04/2007 05/04/2007 05/07/2007 05/07/2007 05/15/2007 05/15/2007 05/16/2007
05/16/2007
05/17/2007
05/21/2007 05/21/2007 05/22/2007 05/24/2007 05/30/2007
06/05/2007 06/05/2007 06/08/2007

by Magistrate Judge (Goldfarb, Carl) (Entered: 05/04/2007)
63 NOTICE by All Defendants re 62 Notice (Other), 59 Scheduling Order, Order Referring Case to Magistrate Judge, Order Referring Case to Mediation,,, (Daniel, Stephanie) (Entered: 05/04/2007)
64 Rule 26 Disclosures by All Defendants.. (lh) (Entered: 05/07/2007)
65 ORDER granting 61 Motion for Extension of Time to File; Signed by Judge Adalberto Jordan on 05/07/2007. (bs) (Entered: 05/07/2007)
66 MEMORANDUM in Opposition re 57 MOTION for Judgment on the Pleadings filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 05/07/2007)
67 NOTICE by All Defendants re 59 Scheduling Order, Order Referring Case to Magistrate Judge, Order Referring Case to Mediation,,, of Scrivener's Errors (Daniel, Stephanie) (Entered: 05/15/2007)
68 MOTION for Extension of Time to File Reply as to 66 Memorandum in Opposition, 57 MOTION for Judgment on the Pleadings by Secretary of Florida Department of Children & Family Services. (Daniel, Stephanie) (Entered: 05/15/2007)
69 CERTIFICATE of Counsel re 68 MOTION for Extension of Time to File Reply as to 66 Memorandum in Opposition, 57 MOTION for Judgment on the Pleadings by Stephanie A. Daniel on behalf of Secretary of Florida Department of Children & Family Services (Attachments: # 1 Text of Proposed Order Proposed Order)(Daniel, Stephanie) (Entered: 05/16/2007)
70 CERTIFICATE of Counsel re 68 MOTION for Extension of Time to File Reply as to 66 Memorandum in Opposition, 57 MOTION for Judgment on the Pleadings, 69 Certificate of Counsel, (Amended) by Stephanie A. Daniel on behalf of Secretary of Florida Department of Children & Family Services (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 05/16/2007)
71 NOTICE by All Plaintiffs JOINDER IN NOTICE OF SCRIVENER?S ERROR IN APRIL 24, 2007 ORDER SETTING SCHEDULE, REGARDING MEDIATION, AND REFERRING CERTAIN MOTIONS TO MAGISTRATE JUDGE (Goldfarb, Carl) (Entered: 05/17/2007)
72 ORDER granting 68 Motion for Extension of Time to Reply ; Signed by Judge Adalberto Jordan on 05/21/2007. (bs) (Entered: 05/21/2007)
73 Unopposed MOTION for Leave to File Amended Complaint by All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Goldfarb, Carl) (Entered: 05/21/2007)
74 Second MOTION for Extension of Time to File Reply as to 57 MOTION for Judgment on the Pleadings by Secretary of Florida Department of Children & Family Services. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 05/22/2007)
75 RESPONSE to 59 Scheduling Order, Order Referring Case to Magistrate Judge, Order Referring Case to Mediation,,, filed by All Plaintiffs, All Defendants. (Daniel, Stephanie) (Entered: 05/24/2007)
76 ORDER Granting Unopposed 73 Motion for Leave to Amend the Complaint; Denying as moot 66 and 57 Motion for Judgment on the Pleadings; Denying as moot 74 Motion for Extension of Time to Reply. Signed by Judge Adalberto Jordan on 5/29/07. (de) (Entered: 05/30/2007)
77 AMENDED COMPLAINT −CLASS ACTION, filed by All Plaintiffs.(Goldfarb, Carl) (Entered: 06/05/2007)
78 Unopposed MOTION for Leave to Appear Pseudonymously by N. A.. Responses due by 6/19/2007 (Goldfarb, Carl) (Entered: 06/05/2007)
79 ORDER Granting 73 MOTION for Leave to File Amended Complaint.Signed by Judge Adalberto Jordan on 6/8/07.(de) (Entered: 06/08/2007)

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06/08/2007
06/12/2007
06/13/2007
06/13/2007
06/14/2007
06/14/2007 06/14/2007 07/05/2007 07/05/2007 07/06/2007 07/16/2007 07/16/2007 07/17/2007 09/21/2007 10/03/2007

80 SCHEDULING ORDER: Jury Trial set for 6/23/2008 before Judge Adalberto Jordan. Calendar Call set for 6/17/2008 09:00 AM before Judge Adalberto Jordan. ORDER REFERRING CASE to Magistrate Judge Edwin G. Torres for Discovery. ORDER REFERRING CASE to Mediation. Signed by Judge Adalberto Jordan on 6/8/07.(de) (Entered: 06/08/2007)
81 AMENDED SCHEDULING ORDER: Jury Trial set for 6/23/2009 before Judge Adalberto Jordan. Calendar Call set for 6/17/2009 09:00 AM before Judge Adalberto Jordan. ORDER Requiring Mediation. ORDER REFERRING Certain Motions to Magistrate Judge Edwin G. Torres. Signed by Judge Adalberto Jordan on 6/12/07.(de) (Entered: 06/12/2007)
82 Agreed MOTION for Extension of Time to File Response to Amended Complaint by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA). (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 06/13/2007)
83 AMENDED ORDER SETTING SCHEDULE: Jury Trial set for 6/29/2009 before Judge Adalberto Jordan. Calendar Call set for 6/23/2009 09:00 AM before Judge Adalberto Jordan.ORDER REFERRING CASE to Mediation. ORDER REFERRING CERTAIN MOTIONS TO Magistrate Judge Edwin G. Torres. Signed by Judge Adalberto Jordan on 6/13/07.(de) (Entered: 06/14/2007)
84 SECOND AMENDED ORDER SETTING SCHEDULE: Jury Trial set for 6/22/2009 before Judge Adalberto Jordan. Calendar Call set for 6/16/2009 09:00 AM before Judge Adalberto Jordan.ORDER REQUIRING MEDIATION. ORDER REFERRING CCERTAIN MOTIONS to Magistrate Judge Edwin G. Torres. Signed by Judge Adalberto Jordan on 6/14/07.(de) (Entered: 06/14/2007)
85 ORDER Granting 78 Motion for Leave to Proceed Anonymously.Signed by Judge Adalberto Jordan on 6/14/07. (de) (Entered: 06/14/2007)
86 ORDER granting 78 Unopposed MOTION for Leave to Appear Pseudonymously filed by N. A., Signed by Judge Adalberto Jordan on 6/14/07.(hd) (Entered: 06/15/2007)
87 Partial ANSWER to Amended Complaint by All Defendants.(Daniel, Stephanie) (Entered: 07/05/2007)
88 Defendant's MOTION to Dismiss 77 Amended Complaint as to Count III Only by All Defendants. Responses due by 7/19/2007 (Daniel, Stephanie) (Entered: 07/05/2007)
89 RESPONSE to Motion re 88 Defendant's MOTION to Dismiss 77 Amended Complaint as to Count III Only filed by All Plaintiffs. Replies due by 7/13/2007. (Attachments: # 1 Text of Proposed Order Proposed Order on Partial Motion to Dismiss Count III of the Amended Complaint)(Goldfarb, Carl) (Entered: 07/06/2007)
90 REPORT REGARDING JOINT REPORT REGARDING MEDIATION by All Plaintiffs. (Attachments: # 1 Text of Proposed Order [PROP] ORDER SCHEDULING MEDIATION)(Goldfarb, Carl) (Entered: 07/16/2007)
91 Notice of Mediation Hearing: Mediation Hearing set for 1/11/2008 10:00 AM, Edward B. Davis added as Mediator. (originally filed as 90 )(de) (Entered: 07/17/2007)
92 Notice of Docket Correction: Incorrect event selected; originally filed as 90 Report Regarding; redocketed correctly as 91 Notice of Mediation Hearing. Notice of Instruction to Filer: In the future select Notice of Mediation Hearing found under Mediation Documents and add Mediator as party to case. (de) (Entered: 07/17/2007)
93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof by All Plaintiffs. Responses due by 10/5/2007 (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Goldfarb, Carl) (Entered: 09/21/2007)
94 MOTION for Extension of Time to File Response as to 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof by All Defendants. (Daniel, Stephanie) (Entered: 10/03/2007)

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10/05/2007 10/12/2007 10/17/2007 10/22/2007 10/29/2007 10/31/2007 11/06/2007
11/07/2007 11/08/2007 11/09/2007
11/09/2007
11/09/2007 11/09/2007 12/04/2007 12/05/2007 12/10/2007

95 ORDER granting 94 Motion for Extension of Time to Response re 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof. Responses due by 10/22/2007.Signed by Judge Adalberto Jordan on 10/5/07. (lk) (Entered: 10/05/2007)
96 Unopposed MOTION for Extension of Time to File Response as to 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof by All Defendants. (Martin, Paul) (Entered: 10/12/2007)
97 ORDER granting 52 Motion for Extension of Time to File, granting 82 Motion for Extension of Time to file response.Signed by Judge Adalberto Jordan on 10/17/07. (lk) (Entered: 10/17/2007)
98 ORDER granting 96 Motion for Extension of Time to Response re 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof. Responses due by 10/29/2007.Signed by Judge Adalberto Jordan on 10/22/07. (lk) (Entered: 10/22/2007)
99 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Response to Motion for Class Certification# 2 Index of Exhibits# 3 Exhibit Exhibit B# 4 Exhibit Exhibit C# 5 Exhibit Exhibit H# 6 Exhibit Exhibit I)(Daniel, Stephanie) (Entered: 10/29/2007)
100 Sealed Document. (ra) (Entered: 10/31/2007)
101 Plaintiff's MOTION for Extension of Time to File Reply as to 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof by Florida Pediatric Society/The FLorida Chapter of the American Academy of Pediatrics, Florida Academy of Pediatric Dentistry, Inc., Ashley Dove, Blanche Spell, Eva Carmona, Rita Gorenflo, Les Gorenflo. (Attachments: # 1 Text of Proposed Order Proposed Order on Motion for Enlargement of Time)(Marshall, Damien) (Entered: 11/06/2007)
102 ORDER granting 99 Motion for Leave to File Excess of 20 Pages.Signed by Judge Adalberto Jordan on 11/7/07. (lk) (Entered: 11/07/2007)
103 ORDER on Sealed Documents and Exhibits Containing Protected Information re 100 Sealed Document. Redacted copies due 11/16/07.Signed by Judge Adalberto Jordan on 11/8/07.(nt) (Entered: 11/08/2007)
104 RESPONSE in Opposition re 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof filed by All Defendants. (Attachments: # 1 Affidavit Exhibit B: Affidavit of Vicki Posner# 2 Affidavit Exhibit C: Affidavit of Robert Dillenschneider# 3 Exhibit Exhibit H: FPS Webpages# 4 Exhibit Exhibit I: New England Journal of Medicine Study)(Daniel, Stephanie) (Entered: 11/09/2007)
105 NOTICE by All Defendants re 104 Response in Opposition to Motion,, 103 Order of Filing Redacted Exhibits in Support of Response to Plaintiffs' Motion for Class Certification (Attachments: # 1 Affidavit Exhibit A: Affidavit of Alan Strowd# 2 Affidavit Exhibit D: Redacted Affidavit of Brenda Tune# 3 Exhibit Exhibit E# 4 Affidavit Exhibit F: Declaration of Connie Evans# 5 Affidavit Exhibit G: Affidavit of Connie Evans)(Daniel, Stephanie) (Entered: 11/09/2007)
106 NOTICE by All Defendants re 103 Order of Service of Sealed Exhibits in Support of Defendants' Response to Plaintiffs' Motion for Class Certification (Daniel, Stephanie) (Entered: 11/09/2007)
107 NOTICE by All Plaintiffs, All Defendants of Hearing on Discovery Issues (Daniel, Stephanie) (Entered: 11/09/2007)
108 Unopposed MOTION for Extension of Time to File Reply by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Marshall, Damien) (Entered: 12/04/2007)
109 NOTICE by All Defendants re 107 Notice (Other) of Hearing (Attachments: # 1 Exhibit Exhibit A − Class Certification Discovery Plan)(Daniel, Stephanie) (Entered: 12/05/2007)
110 MEMORANDUM OF LAW In Support of Their HIPAA Order by All Defendants. (Attachments: # 1 Exhibit Exhibit A, Defendants' Proposed HIPAA Order# 2 Exhibit Exhibit B, Proposed Redline Comparison Version)(Daniel, Stephanie) (Entered: 12/10/2007)

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12/10/2007
12/10/2007 12/10/2007 12/10/2007 12/11/2007 12/13/2007 12/14/2007
12/14/2007
12/14/2007 12/18/2007 12/20/2007 12/21/2007 12/24/2007 12/24/2007 12/26/2007 12/26/2007 12/26/2007

111 NOTICE by All Defendants re 107 Notice (Other), 109 Notice (Other) of Filing (Attachments: # 1 Exhibit Exhibit 1, Declaration of John Clarkson# 2 Exhibit Declaration of Scott Higgins# 3 Exhibit Exhibit 3, Declaration of David Taylor# 4 Exhibit Exhibit 4, Defendants' First Request for Production of Documents# 5 Exhibit Exhibit 5, Plaintiffs' Response to Defendants' First Request for Production of Documents# 6 Exhibit Exhibit 6, September 24, 2007 letter to Carl Goldfarb# 7 Exhibit October 10, 2007 letter to Stephanie Daniel)(Daniel, Stephanie) (Entered: 12/10/2007)
112 ORDER granting 108 Motion for Extension of Time to Reply re 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof Replies due by 12/24/2007.Signed by Judge Adalberto Jordan on 12/10/07. (lk) (Entered: 12/10/2007)
113 ORDER granting 101 Motion for Extension of Time to Reply re 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof Replies due by 12/24/2007.Signed by Judge Adalberto Jordan on 12/10/07. (lk) (Entered: 12/10/2007)
114 RESPONSE to 109 Notice (Other) RESPONSE TO DEFENDANTS SUPPLMENTAL NOTICE OF HEARING filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 12/10/2007)
115 RESPONSE to 114 Response (Other), 109 Notice (Other) Regarding Defendants' Supplemental Notice of Hearing filed by All Defendants. (Daniel, Stephanie) (Entered: 12/11/2007)
116 RESPONSE to 110 Memorandum of Law re: DEFENDANTS' PROPOSED HIPPA PROTECTIVE ORDER filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 12/13/2007)
117 NOTICE of Attorney Appearance by Marcos Daniel Jimenez on behalf of Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA) (Jimenez, Marcos) (Entered: 12/14/2007)
118 PRETRIAL ORDER. The Court's Discovery Procedures Order 60 is hereby amended. The parties may continue, by agreement, to utilize the Court's Discovery Calendar process where appropriate. Either party may, however, proceed to adjudicate a discovery issue by filing a motion with the Court upon certification of conferral, as per Fed.R.Civ.P. 37 and S.D. Fla. Local R. 7.1.A.1.3, in which the case the normal filing and time requirements found in Local R. 7.1.C will apply. Docket Order Signed by Magistrate Judge Edwin G. Torres on 12/14/2007.(EGT) (Entered: 12/14/2007)
119 Minute Entry for proceedings held before Judge Edwin G. Torres : Discovery Hearing held on 12/14/2007. (Tape #07E−120−1644/121−309.) (mdc) (Entered: 12/17/2007)
120 NOTICE by All Defendants of Filing Declaration of Scott Higgins, with Attachment (Attachments: # 1 Affidavit Declaration of Scott Higgins)(Daniel, Stephanie) (Entered: 12/18/2007)
121 ORDER OF RECUSAL. Magistrate Judge Edwin G. Torres recused. Magistrate Judge Andrea M. Simonton added.Signed by Magistrate Judge Edwin G. Torres on 12/19/2007.(jc) (Entered: 12/20/2007)
122 NOTICE by All Defendants of Taking Depositions Duces Tecum (Daniel, Stephanie) (Entered: 12/21/2007)
123 MOTION for Class Certification Briefing Schedule by All Defendants. (Daniel, Stephanie) (Entered: 12/24/2007)
124 Plaintiff's MOTION for Leave to File Excess Pages In Support of Plaintiffs' Reply Memorandum in Support of Class Certification by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Marshall, Damien) (Entered: 12/24/2007)
125 NOTICE of Instruction to Filer: Error: Wrong Event Selected; originally filed as 122 Notice (Other); in the future please select Notice to Take Deposition found under Discovery Documents. (de) (Entered: 12/26/2007)
126 Sealed Document. (ra) (Entered: 12/26/2007)
127 Sealed Document. (ra) (Entered: 12/26/2007)

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12/27/2007 12/28/2007 12/28/2007 12/31/2007 12/31/2007 01/04/2008
01/07/2008 01/08/2008
01/08/2008
01/09/2008 01/10/2008 01/10/2008
01/10/2008
01/14/2008 01/14/2008 01/17/2008 01/22/2008

128 ORDER granting 93 Motion to Certify Class certification briefing schedule.Signed by Judge Adalberto Jordan on 12/26/07. (lk) (Entered: 12/27/2007)
129 RESPONSE to Plaintiffs' Motion for Leave to File Memorandum in Support of Class Certification and Exhibits Thereto Under Seal filed by All Defendants. (Attachments: # 1 Exhibit Exhibits A, B and C)(Daniel, Stephanie) (Entered: 12/28/2007)
132 TRANSCRIPT of Discovery Conference Hearing held on 12/14/07 before Judge Edwin J. Torres. Court Reporter: Jerry Meyers− phone number 305−523−5635 1−63 pages.. (hh) (Entered: 01/02/2008)
130 RESPONSE to 109 Notice (Other) Defendants' Proposed Class Certification Discovery Plan filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 12/31/2007)
131 NOTICE to Take Deposition of C.R. and Edna Watley by All Defendants.(Daniel, Stephanie) (Entered: 12/31/2007)
133 Agreed MOTION Enlargement of Time to Provide Expert Disclosures re 81 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge, by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order)(Daniel, Stephanie) (Entered: 01/04/2008)
134 NOTICE by All Plaintiffs Notice of Filing Declaration of James Eiseman, Jr. (Goldfarb, Carl) (Entered: 01/07/2008)
135 REPLY to Response to Motion re 124 Plaintiff's MOTION for Leave to File Excess Pages In Support of Plaintiffs' Reply Memorandum in Support of Class Certification PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE REPLY MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION AND EXHIBITS THERETO UNDER SEAL filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 01/08/2008)
136 MOTION to Expedite Entry of HIPAA Order by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA). (Attachments: # 1 Exhibit A)(Jimenez, Marcos) (Entered: 01/08/2008)
137 RESPONSE to Motion re 136 MOTION to Expedite Entry of HIPAA Order filed by All Plaintiffs. Replies due by 1/16/2008. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Marshall, Damien) (Entered: 01/09/2008)
138 ORDER granting 133 Motion to provide expert disclosures by 7/31/08.Signed by Judge Adalberto Jordan on 1/9/08. (lk) (Entered: 01/10/2008)
139 REPLY to Response to Motion re 136 MOTION to Expedite Entry of HIPAA Order filed by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA). (Jimenez, Marcos) (Entered: 01/10/2008)
140 RESPONSE to 109 Notice (Other) Defendants' Reply in Further Support of Class Certification Discovery Plan filed by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA). (Attachments: # 1 Exhibit A)(Jimenez, Marcos) (Entered: 01/10/2008)
141 NOTICE to Take Deposition of Blanche Spell, Eva Carmona, Rita and Les Gorenflo, Heidi Christakis, Yiset Espino, Olga Serafin, Mario Rodriguez, and Ashley Dove by All Defendants.(Daniel, Stephanie) (Entered: 01/14/2008)
142 REPORT of Mediation: Mediation was Recessed to Allow Parties to Continue to Negotiate. (ls) (Entered: 01/15/2008)
143 RESPONSE to 134 Notice (Other) Reply to the Affidavit of James Eiseman filed by All Defendants. (Martin, Paul) (Entered: 01/17/2008)
144 NOTICE to Take Deposition of Rita and Les Gorenflo and Heidi Christakis by All Defendants.(Daniel, Stephanie) (Entered: 01/22/2008)

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01/23/2008 01/28/2008 01/30/2008 02/14/2008 02/21/2008 02/21/2008
02/21/2008 02/21/2008 02/21/2008 02/21/2008 02/21/2008
02/22/2008
02/25/2008 02/26/2008 02/26/2008 02/27/2008
02/27/2008
03/05/2008
03/07/2008 03/07/2008 03/13/2008

145 NOTICE to Take Deposition of Rita and Les Gorenflo and Heidi Christakis by All Defendants.(Daniel, Stephanie) (Entered: 01/23/2008)
146 NOTICE to Take Deposition of Ashley Dove by All Defendants.(Daniel, Stephanie) (Entered: 01/28/2008)
147 NOTICE to Take Deposition of Yiset Espino by All Defendants.(Daniel, Stephanie) (Entered: 01/30/2008)
148 ORDER granting 88 Motion to Dismiss count 3 of the amended complaint. Signed by Judge Adalberto Jordan on 2/14/08. (lk) (Entered: 02/14/2008)
149 ORDER granting 124 Motion for Leave to File reply memorandum in Excess of ten Pages.Signed by Judge Adalberto Jordan on 2/20/08. (lk) (Entered: 02/21/2008)
150 NOTICE to Take Deposition of Florida Pediatric Society/The Florida Chapter of the American Academy of Pediatrics by All Defendants.(Daniel, Stephanie) (Entered: 02/21/2008)
151 NOTICE to Take Deposition of Florida Academy of Pediatric Dentistry by All Defendants.(Daniel, Stephanie) (Entered: 02/21/2008)
152 NOTICE to Take Deposition of Heidi Christakis by All Defendants.(Daniel, Stephanie) (Entered: 02/21/2008)
153 Sealed Document. (ra) (Entered: 02/21/2008)
154 NOTICE to Take Deposition of Florida Academy of Pediatric Dentistry by All Defendants.(Martin, Paul) (Entered: 02/21/2008)
155 NOTICE to Take Deposition of Florida Pediatric Society/The Florida Chapter of the American Academy of Pediatrics by All Defendants.(Martin, Paul) (Entered: 02/21/2008)
156 MOTION for Hearing re 136 MOTION to Expedite Entry of HIPAA Order, 110 Memorandum of Law, 109 Notice (Other) Defendants' Discovery Plan by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA). (Jimenez, Marcos) (Entered: 02/22/2008)
157 ORDER on agreed motion to file stipulated protective order under seal re 153 Sealed Document.Signed by Judge Adalberto Jordan on 2/22/08.(lk) (Entered: 02/25/2008)
158 Sealed Document. (jc) (Entered: 02/26/2008)
159 Sealed Document. (jc) (Entered: 02/26/2008)
160 MOTION to Compel Email Discovery by All Plaintiffs. Responses due by 3/12/2008 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Kunz, Paul) (Entered: 02/27/2008)
161 MOTION for Hearing re 156 MOTION for Hearing re 136 MOTION to Expedite Entry of HIPAA Order, 110 Memorandum of Law, 109 Notice (Other) Defendants' Discovery Plan, 160 MOTION to Compel Email Discovery by All Plaintiffs. (Kunz, Paul) (Entered: 02/27/2008)
162 REDACTION to 157 Order Sealed Stipulated Protective Order by Holly Benson, Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health. (Daniel, Stephanie) (Entered: 03/05/2008)
163 ORDER granting Defendants' 136 Motion to Expedite Entry of HIPAA Order.Signed by Magistrate Judge Andrea M. Simonton on 3/7/08. (js) (Entered: 03/07/2008)
164 ORDER on Discovery Procedures.Signed by Magistrate Judge Andrea M. Simonton on 3/7/08.(js) (Entered: 03/07/2008)
165 Unopposed MOTION to Drop Certain Named Plaintiffs by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Kunz, Paul) (Entered: 03/13/2008)

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03/17/2008
03/17/2008 03/17/2008 03/17/2008 03/17/2008 03/18/2008 03/19/2008 03/19/2008 03/19/2008 03/20/2008 03/20/2008 03/21/2008 03/27/2008 03/27/2008 03/27/2008
03/27/2008

166 MOTION for Leave to File Excess Pages Limits in Response to Plaintiffs' Motion to Compel by All Defendants. (Attachments: # 1 Exhibit Text of Proposed Order # 2 Exhibit Response to Motion to Compel# 3 Exhibit A # 4 Exhibit B # 5 Exhibit B Part 2 # 6 Exhibit C # 7 Exhibit D # 8 Exhibit E # 9 Exhibit F # 10 Exhibit G # 11 Exhibit H # 12 Exhibit I # 13 Exhibit J # 14 Exhibit K # 15 Exhibit L # 16 Exhibit M # 17 Exhibit N # 18 Exhibit O # 19 Exhibit P # 20 Exhibit Q # 21 Exhibit R # 22 Exhibit S # 23 Exhibit T # 24 Exhibit U # 25 Exhibit V # 26 Exhibit W # 27 Exhibit X # 28 Exhibit Y # 29 Exhibit Z # 30 Exhibit AA # 31 Exhibit BB # 32 Exhibit CC # 33 Exhibit DD)(Martin, Paul) Modified on 3/18/2008 (ls). (Entered: 03/17/2008)
167 AFFIDAVIT in Support re 93 Plaintiff's MOTION to Certify Class and Memorandum in Support Thereof filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1−10 (Filed Under Seal)# 2 Exhibit 11# 3 Exhibit 12# 4 Exhibit 13# 5 Exhibit 14# 6 Exhibit 15)(Kunz, Paul) (Entered: 03/17/2008)
168 MOTION to Intervene for the Purpose of Serving as Class Representatives by C.G., M.B., K.V., S.C., K.S., S.B.. (Kunz, Paul) Modified on 3/19/2008 (ls). [Filers modified by Clerk] (Entered: 03/17/2008)
169 ORDER granting 165 Unopposed Motion to Drop Certain Named Plaintiffs. Signed by Judge Adalberto Jordan on 3/17/2008. (ls) (Entered: 03/18/2008)
173 Sealed Document. (ra) (Entered: 03/19/2008)
172 Sealed Document. (ra) (Entered: 03/19/2008)
170 NOTICE of Docket Correction: re 168 MOTION to Intervene for the Purpose of Serving as Class Representatives filed by C. G.,, M. B.,, K. V.,, S. C.,, K. S.,, S. B., Error: Parties Not Added; (ls) (Entered: 03/19/2008)
Notice of Undeliverable Mail re 166 MOTION for Leave to File Excess Pages Limits in Response to Plaintiffs' Motion to Compel Email returned for: Chesterfield H. Smith, Jr. Resolved by: Called attorneys' office, Darlene provided the correct email address. NEF was resent. (mc) (Entered: 03/19/2008)
171 RESPONSE in Opposition re 166 MOTION for Leave to File Excess Pages Limits in Response to Plaintiffs' Motion to Compel filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Kunz, Paul) (Entered: 03/19/2008)
174 ORDER Granting Motion to Seal Certain Documents being submitted in conjunction with Motion to Intervene for the purpose of serving as Class Representatives re 172 Sealed Document.Signed by Judge Adalberto Jordan on 3/20/2008.(ls) (Entered: 03/21/2008)
175 ORDER Granting Motion to Seal Documents being submitted as Exhibits to Declaration of Counsel in support of Motion for Class Certification re 173 Sealed Document.Signed by Judge Adalberto Jordan on 3/20/2008.(ls) (Entered: 03/21/2008)
176 MOTION for Reconsideration re 163 Order on Motion to Expedite by All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kunz, Paul) (Entered: 03/21/2008)
177 Sealed Document. (ra) (Entered: 03/27/2008)
178 NOTICE by All Plaintiffs re 167 Affidavit in Support of Motion,, 173 Sealed Document, 175 Order Filing Redacted Exhibits (Goldfarb, Carl) Modified on 3/28/2008 (ls). (Entered: 03/27/2008)
179 NOTICE by All Plaintiffs re 178 Notice (Other), 167 Affidavit in Support of Motion,, 173 Sealed Document, 175 Order of Filing Redacted Exhibits (Attachments: # 1 Duplicate of Main Document # 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10)(Goldfarb, Carl) Modified on 3/28/2008 (ls). [Missing description on attachment #1−corrected by Clerk] (Entered: 03/27/2008)
180 NOTICE by All Plaintiffs re 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 174 Order, 172 Sealed Document of Filing Redacted Exhibits (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Goldfarb, Carl) Modified on 3/28/2008 (ls). (Entered: 03/27/2008)

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03/27/2008 03/27/2008 03/27/2008
03/28/2008 03/31/2008 04/01/2008 04/01/2008 04/03/2008 04/03/2008 04/03/2008 04/04/2008 04/07/2008 04/08/2008
04/08/2008 04/09/2008

181 MOTION to Strike 167 Affidavit in Support of Motion, For Class Certification by All Defendants. Responses due by 4/10/2008 (Martin, Paul) (Entered: 03/27/2008)
182 Unopposed MOTION for Leave to File Final Response in Opposition to Plaintiffs' Motion for Class Certification in Excess of Page Limitation by All Defendants. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Landon, Robert) (Entered: 03/27/2008)
183 NOTICE by All Defendants re 182 Unopposed MOTION for Leave to File Final Response in Opposition to Plaintiffs' Motion for Class Certification in Excess of Page Limitation (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16)(Landon, Robert) (Entered: 03/27/2008)
184 NOTICE of Instruction to Filer: re 182 Unopposed MOTION for Leave to File Final Response in Opposition to Plaintiffs' Motion for Class Certification in Excess of Page Limitation Error: Wrong Event Selected; Instruction to Filer=In the future please select the proper Event, i.e. Motion to File Excess Pages; (ls) (Entered: 03/28/2008)
185 REPLY to Response to Motion re 166 MOTION for Leave to File Excess Pages Limits in Response to Plaintiffs' Motion to Compel filed by All Defendants. (Daniel, Stephanie) (Entered: 03/31/2008)
186 ORDER granting 182 Motion for Leave to File Response in Excess of 20 Pages.Signed by Judge Adalberto Jordan on 4/1/2008. (ls) (Entered: 04/01/2008)
187 ORDER granting Agreed Motion to File Deposition Transcripts and Declarations under Seal re 177 Sealed Document.Signed by Judge Adalberto Jordan on 4/1/2008.(ls) (Entered: 04/01/2008)
188 RESPONSE in Opposition re 168 MOTION to Intervene for the Purpose of Serving as Class Representatives filed by All Defendants. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C part 1# 4 Exhibit C part 2# 5 Exhibit C part 3)(Daniel, Stephanie) Modified on 4/4/2008 (ls). (Entered: 04/03/2008)
189 MOTION for Hearing re 168 MOTION to Intervene for the Purpose of Serving as Class Representatives by All Defendants. (Daniel, Stephanie) Modified on 4/4/2008 (ls). (Entered: 04/03/2008)
190 Plaintiff's MOTION for Extension of Time to File Reply In Support of Class Certification by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Kunz, Paul) (Entered: 04/03/2008)
191 Sealed Document. (jc) (Entered: 04/04/2008)
192 Agreed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order # 2 Proposed Response)(Daniel, Stephanie) Modified on 4/8/2008 (ls). (Entered: 04/07/2008)
193 TEXT ORDER denying Defendants' 166 Motion for Leave to File a Combined Response and Motion for Protective Order in Excess of 20 Pages. On or before April 14, 2008, Defendants shall file a Response to Plaintiffs' Motion to Compel Email Discovery (DE # 160). If Defendants seek additional relief, in the form of a protective order or for leave to exceed the page limitations imposed by the Local Rules, they shall file a separate motion requesting the appropriate relief. This is a paperless Order. Signed by Magistrate Judge Andrea M. Simonton on 4/8/08. (js) (Entered: 04/08/2008)
194 TEXT ORDER granting Defendants' 192 Unopposed Motion for Leave to File Excess Pages Re: Defendants' Response in Opposition to Plaintiffs' Motion for Reconsideration. This is a paperless Order. Signed by Magistrate Judge Andrea M. Simonton on 4/8/08. (js) (Entered: 04/08/2008)
195 NOTICE by All Defendants re 183 Notice (Other), Notice (Other), 187 Order of filing redacted exhibits (Attachments: # 1 Exhibit 1: Declaration of Linda Husbands# 2 Exhibit 2: Declaration of Karen Kinser# 3 Exhibit 4: Declaration of Paula Dorhout# 4 Exhibit 6: Deposition of A.D. part 1# 5 Exhibit 6: Deposition of A.D. part 2# 6 Exhibit 7: Deposition of R.G. part 1# 7 Exhibit 7: Deposition of R.G. part 2# 8 Exhibit 8: Deposition of C.R. part 1# 9 Exhibit 8: Deposition of C.R. part 2# 10 Exhibit 9:

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04/14/2008 04/14/2008
04/14/2008 04/14/2008 04/14/2008 04/15/2008 04/15/2008 04/15/2008 04/18/2008 04/21/2008 04/21/2008 04/21/2008 04/21/2008 04/22/2008 04/22/2008

Deposition of E.W. part 1# 11 Exhibit 9: Deposition of E.W. part 2)(Daniel, Stephanie) (Entered: 04/09/2008)
196 RESPONSE in Opposition re 181 MOTION to Strike 167 Affidavit in Support of Motion, For Class Certification filed by All Plaintiffs. (Kunz, Paul) (Entered: 04/14/2008)
197 NOTICE by All Defendants of Filing Documents In Support of Defendants' Response in Opposition to Plaintiffs' Motion to Compel Email Discovery and Incorporated Memorandum of Law (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit B part 2# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P# 18 Exhibit Q# 19 Exhibit R# 20 Exhibit S# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X# 26 Exhibit Y# 27 Exhibit Z# 28 Exhibit AA# 29 Exhibit BB# 30 Exhibit CC# 31 Exhibit DD)(Daniel, Stephanie) (Entered: 04/14/2008)
198 RESPONSE in Opposition re 160 MOTION to Compel Email Discovery filed by All Defendants. (Daniel, Stephanie) (Entered: 04/14/2008)
199 RESPONSE to 189 MOTION for Hearing re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives filed by All Plaintiffs. (Kunz, Paul) (Entered: 04/14/2008)
200 RESPONSE in Support re 168 MOTION to Intervene for the Purpose of Serving as Class Representatives , included with Unopposed Motion for Leave to File Excess Pages filed by All Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit A# 3 Exhibit B)(Kunz, Paul) (Entered: 04/14/2008)
201 NOTICE of Instruction to Filer: re 200 Response in Support of Motion, Error: Document Title Does Not Match Event Selected; Instruction to Filer=File a Notice of Striking Docket Entry and Refile the Document correctly; (ls) (Entered: 04/15/2008)
202 NOTICE of Striking 200 Response in Support of Motion, by All Plaintiffs (Kunz, Paul) (Entered: 04/15/2008)
203 Plaintiff's MOTION for Leave to File Excess Pages in Reply in Further Support of Motion to Intervene for the Purpose of Serving as Class Representatives by All Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit A# 3 Exhibit B)(Kunz, Paul) (Entered: 04/15/2008)
204 REPLY to Response to Motion re 176 MOTION for Reconsideration re 163 Order on Motion to Expedite filed by All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Kunz, Paul) (Entered: 04/18/2008)
205 ORDER denying 176 Motion for Reconsideration of Order Granting Defendants' Motion for Entry of HIPAA Order (DE # 176), and Clarifying the Order. Signed by Magistrate Judge Andrea M. Simonton on 4/21/08. (AMS) (Entered: 04/21/2008)
206 TEXT ORDER denying as moot 156 Motion for Hearing, denying as moot 161 Motion for Hearing re: Motions for entry of HIPAA Order. This is a paperless order. Signed by Magistrate Judge Andrea M. Simonton on 4/21/08. (AMS) (Entered: 04/21/2008)
207 Case Reassignment of Paired Magistrate Judge pursuant to Administrative Order 2008−09 to Judge Chris M. McAliley. Judge Andrea M. Simonton no longer assigned to the case. (AMS) (Entered: 04/21/2008)
208 RESPONSE in Opposition re 190 Plaintiff's MOTION for Extension of Time to File Reply In Support of Class Certification filed by All Defendants. (Landon, Robert) (Entered: 04/21/2008)
209 Notice of Court Practice: Discovery Procedure for Magistrate Judge Chris McAliley.Signed by Magistrate Judge Chris M. McAliley on 4/22/2008.(lc2) (Entered: 04/22/2008)
210 MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 203 Plaintiff's MOTION for Leave to File Excess Pages in Reply in

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04/22/2008 04/23/2008 04/23/2008 04/23/2008 04/23/2008 04/24/2008 04/25/2008 04/25/2008
04/29/2008 04/30/2008 05/05/2008

Further Support of Motion to Intervene for the Purpose of Serving as Class Representatives by All Defendants. (Daniel, Stephanie) (Entered: 04/22/2008)
211 Corrected MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 210 MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 203 Plaintiff's MOTION for Leave to File Excess Pages in by All Defendants. (Daniel, Stephanie) (Entered: 04/22/2008)
212 ORDER Setting Discovery Hearing for April 29, 2008 at 3:00 p.m. before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 4/22/2008.(lc2) (Entered: 04/23/2008)
213 NOTICE of Instruction to Filer: re 210 MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 203 Plaintiff's MOTION for Leave to File Excess Pages in Error: Wrong Event Selected; Instruction to Filer=In the future please select the proper Event, i.e. Motion for Leave to File Document; (ls) (Entered: 04/23/2008)
214 NOTICE of Instruction to Filer: re 211 Corrected MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 210 MOTION to File Further Response to Motion to Interve Error: Wrong Event Selected; Instruction to Filer=In the future please select the proper Event; (ls) (Entered: 04/23/2008)
215 RESPONSE in Opposition re 211 Corrected MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 210 MOTION to File Further Response to Motion to Interve filed by All Plaintiffs. (Kunz, Paul) (Entered: 04/23/2008)
216 REPLY to Response to Motion re 160 MOTION to Compel Email Discovery filed by All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kunz, Paul) (Entered: 04/24/2008)
217 NOTICE by All Defendants re 198 Response in Opposition to Motion of Filing Documents in further support (Attachments: # 1 Exhibit 1. AHCA Proposed Key Player List# 2 Exhibit 1. Email dated 4/21/08# 3 Exhibit 3. 4/21/08 letter)(Daniel, Stephanie) Modified on 4/28/2008 (ls). (Entered: 04/25/2008)
218 ORDER REFERRING MOTION to Magistrate Judge Chris M. McAliley 190 Plaintiff's MOTION for Extension of Time to File Reply In Support of Class Certification, 211 Corrected MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 210 MOTION to File Further Response to Motion to Interve, 189 MOTION for Hearing re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 210 MOTION to File Further Response to Motion to Intervene re 188 Response in Opposition to Motion,, 168 MOTION to Intervene for the Purpose of Serving as Class Representatives, 203 Plaintiff's MOTION for Leave to File Excess Pages in, 181 MOTION to Strike 167 Affidavit in Support of Motion, For Class Certification, 160 MOTION to Compel Email Discovery, 203 Plaintiff's MOTION for Leave to File Excess Pages in Reply in Further Support of Motion to Intervene for the Purpose of Serving as Class RepresentativesSigned by Judge Adalberto Jordan on 4/25/2008.(ls) (Entered: 04/28/2008)
219 Minute Entry for proceedings held before Judge Chris M. McAliley : Discovery Hearing held on 4/29/2008. (Tape #08H−45−1411,46−1 & 47−1.) (nf) (Entered: 04/30/2008)
220 REPLY to Response to Motion re 168 MOTION to Intervene for the Purpose of Serving as Class Representatives filed by All Plaintiffs, C. G., M. B., K. V., S. C., K. S., S. B.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Kunz, Paul) (Entered: 04/30/2008)
221 ORDER following April 29, 2008 Discovery Conference.Signed by Magistrate Judge Chris M. McAliley on 5/5/2008.(lc2) (Entered: 05/05/2008)

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05/05/2008
05/08/2008
05/09/2008 05/09/2008
05/10/2008 05/12/2008 05/12/2008 05/13/2008
05/13/2008
05/13/2008 05/13/2008 05/16/2008
05/19/2008 05/19/2008
05/19/2008 05/20/2008
05/28/2008 05/30/2008 06/05/2008
06/05/2008 06/05/2008

222 OMNIBUS ORDER granting 189 Motion for Hearing, granting 190 Motion for Extension of Time to Reply, granting 203 Motion for Leave to File Excess Pages, granting 211 Motion for Leave to File Further Response. Signed by Magistrate Judge Chris M. McAliley on 5/5/2008. (lc2) (Entered: 05/05/2008)
223 REPORT REGARDING DISCOVERY CONFERRAL PROCESS by All Plaintiffs, All Defendants. (Attachments: # 1 Exhibit A: Key Player List# 2 Exhibit B: Search Terms)(Daniel, Stephanie) (Entered: 05/08/2008)
224 NOTICE by All Defendants Notice of Hearing on Discovery Matter (Attachments: # 1 Exhibit A# 2 Exhibit B)(Landon, Robert) (Entered: 05/09/2008)
225 SURREPLY to Reply to Motion re 168 MOTION to Intervene for the Purpose of Serving as Class Representatives filed by All Defendants. (Jimenez, Marcos) Modified on 5/12/2008 (ls). [Added relationship to DE #168] (Entered: 05/09/2008)
226 RESPONSE to 224 Notice (Other) of Hearing on Discovery Matter filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 05/10/2008)
227 Sealed Document. (ra) (Entered: 05/12/2008)
228 Minute Entry for proceedings held before Judge Chris M. McAliley : Discovery Hearing held on 5/12/2008. (Tape #08h−56−427,57−1 & 58−1.) (nf) (Entered: 05/13/2008)
229 Defendants' ORE TENUS MOTION to Compel the production of documents sought by Defendants' First Request for Production of Documents, numbers One and Two. (lc2) (Entered: 05/13/2008)
230 ORDER denying 229 Defendants' Ore Tenus Motion to Compel Documents in Response to Requests for Production One and Two. Signed by Magistrate Judge Chris M. McAliley on 5/13/2008. (lc2) (Entered: 05/13/2008)
231 ORDER granting in part 160 Plaintiffs' Motion to Compel Email Discovery. Signed by Magistrate Judge Chris M. McAliley on 5/13/2008. (lc2) (Entered: 05/13/2008)
232 ORDER Granting Motion to File a Qualified Protective Order under Seal re 227 Sealed Document.Signed by Judge Adalberto Jordan on 5/13/2008.(ls) (Entered: 05/14/2008)
233 TRANSCRIPT of Proceedings held on DISCOVERY CONFERENCE HEARING held on 04/29/2008 before Judge CHRIS M. MCALILEY. Court Reporter: Jerry Meyers− phone number 305−523−5635 1−117 pages. (amb) (Entered: 05/16/2008)
234 Redacted QUALIFIED PROTECTIVE ORDER.Signed by Magistrate Judge Chris M. McAliley on 5/19/2008.(lc2) (Entered: 05/19/2008)
235 TRANSCRIPT of Discovery Conference Hearing held on 5/12/08 before Judge Chris M. McAliley. Court Reporter: Jerry Meyers− phone number 305−523−5635 1−146 pages.. (hh) (Entered: 05/19/2008)
236 Sealed Document. (nf) (Entered: 05/20/2008)
237 Minute Entry for proceedings held before Judge Chris M. McAliley : ORAL ARGUMENT Hearing held on 5/20/2008. (Tape #08H−61−132.) (nf) (Entered: 05/20/2008)
238 ORDER on Discovery Pertaining to Intervening Plaintiffs. Signed by Magistrate Judge Chris M. McAliley on 5/28/2008. (lc2) (Entered: 05/28/2008)
239 SEALED MOTION. (nt) (Entered: 06/02/2008)
240 ORDER granting 239 Defendants' Second Motion to File an Additional Qualified Protective Order Under Seal. Signed by Magistrate Judge Chris M. McAliley on 6/5/2008. (lc2) (Entered: 06/05/2008)
241 Redacted Stipulated Qualified PROTECTIVE ORDER. Signed by Magistrate Judge Chris M. McAliley on 6/5/2008. (lc2) (Entered: 06/05/2008)
243 Sealed Document. (nf) (Entered: 06/06/2008)

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06/06/2008 06/10/2008 06/16/2008 06/18/2008 06/24/2008 06/27/2008
06/30/2008
07/07/2008 07/07/2008 07/10/2008
07/30/2008
08/07/2008 08/13/2008 08/15/2008 08/18/2008 08/19/2008

242 ORDER Granting Second Motion to File an additional Qualified Protective Order under Seal re 239 SEALED MOTION. Signed by Judge Adalberto Jordan on 6/5/2008. (ls) (Entered: 06/06/2008)
244 Agreed ORDER on Production of Email Discovery. Signed by Magistrate Judge Chris M. McAliley on 6/10/2008. (lc2) (Entered: 06/10/2008)
245 Sealed Document. (jc) (Entered: 06/16/2008)
246 ORDER Granting Agreed Motion to File Stipulated Protective Order under Seal re 245 Sealed Document. Signed by Judge Adalberto Jordan on 6/17/2008. (ls) (Entered: 06/19/2008)
247 Sealed Document. (nf) (Entered: 06/24/2008)
248 Joint MOTION to Amend/Correct re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge, by All Plaintiffs, All Defendants. (Daniel, Stephanie) Modified on 6/30/2008 (ls). (Entered: 06/27/2008)
249 NOTICE of Docket Correction and Instruction to Filer: re 248 Joint MOTION TO MODIFY SCHEDULING ORDER re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge, filed by All Plaintiffs, All Defendants Error: Wrong Event Selected; Correction=Redocketed as Motion to Amend/Correct. Instruction to Filer=In the future please select the proper Event; (ls) (Entered: 06/30/2008)
250 NOTICE by All Defendants re 246 Order, 247 Sealed Document of Filing Redacted Sealed Stipulated Protective Order (Attachments: # 1 Redacted Sealed Stipulated Protective Order)(Daniel, Stephanie) (Entered: 07/07/2008)
251 Agreed Qualified PROTECTIVE ORDER. Signed by Magistrate Judge Chris M. McAliley on 7/7/2008. (lc2) (Entered: 07/07/2008)
252 ORDER Setting Hearing on Motion 248 JOINT MOTION to Amend/Correct re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge,JOINT MOTION to Amend/Correct re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge, : Motion Hearing set for 8/22/2008 02:00 PM in Miami Division before Judge Adalberto Jordan.. Signed by Judge Adalberto Jordan on 7/10/08. (tp) (Entered: 07/10/2008)
253 REPORT AND RECOMMENDATION On Motion To Intervene For The Purpose Of Serving As Class Representative. Objections to R&R due by 8/13/2008. Responses to objections due by 8/20/2008. Signed by Magistrate Judge Chris M. McAliley on 7/30/2008. (lc1) (Entered: 07/30/2008)
254 TRANSCRIPT of Plaintiff's Motion to Intervene Hearing held on 5/20/08 before Judge Chris M. McAliley. Court Reporter: Jerry Meyers− phone number 305−523−5635 1−63 pages.. (hh) (Entered: 08/07/2008)
255 OBJECTION to 253 Report and Recommendations by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Daniel, Stephanie) (Entered: 08/13/2008)
256 NOTICE by All Defendants of Hearing Pursuant to D.E. 209 (Landon, Robert) (Entered: 08/15/2008)
257 NOTICE of Filing Revised Scheduling Proposal by All Plaintiffs (Goldfarb, Carl) Modified on 8/27/2008 (ls). [Modified to read as displayed above, by Clerk] (Entered: 08/18/2008)
258 Defendant's MOTION to Amend/Correct 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge, 248 JOINT MOTION to Amend/Correct re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge,JOINT MOTION to Amend/Correct re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge, by All Defendants. Responses due by 9/8/2008 (Daniel, Stephanie)

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08/20/2008 08/20/2008 08/20/2008 08/21/2008 08/22/2008
08/25/2008 08/25/2008 08/26/2008 08/26/2008
08/27/2008 08/28/2008 08/28/2008

(Entered: 08/19/2008)
259 NOTICE by All Defendants of Filing Correspondence to Hon. Chris McAliley re 08/20/08 hrg. on Defendants' Request for Modification re Discovery (Landon, Robert) (Entered: 08/20/2008)
260 RESPONSE/REPLY to 255 Objection to Report and Recommendations filed by All Plaintiffs, C. G., M. B., K. V., S. C., K. S., S. B.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Goldfarb, Carl) (Entered: 08/20/2008)
262 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Discovery Hearing held on 8/20/2008. (Tape #08H−91−1400 & 08H−92−1.) (nf) (Entered: 08/21/2008)
261 NOTICE of Instruction to Filer: re 260 Response/Reply (Other), Response/Reply (Other) filed by K. V., M. B., All Plaintiffs, S. C., S. B., C. G., K. S. Error: Wrong Event Selected; Instruction to filer − In the future please select the proper event, i.e. Response to Objection to Report and Recommendations, under "Other Answers". (ls) (Entered: 08/21/2008)
263 Minute Entry for proceedings held before Judge Adalberto Jordan: Motion Hearing held on 8/22/2008 re 248 JOINT MOTION to Amend/Correct re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge,JOINT MOTION to Amend/Correct re 138 Order on Motion for Miscellaneous Relief, 84 Scheduling Order,, Order Referring Case to Mediation,, Order Referring Case to Magistrate Judge, filed by All Plaintiffs, All Defendants. Order to follow. Court Reporter: Francine Salopek − phone number 305−523−5568 (mc1) (Entered: 08/25/2008)
264 Defendants' ORE TENUS MOTION to Modify the Court's prior rulings on the scope and timing of the production of classwide email of personnel at the Agency for Health Care Administration (AHCA), made at the August 20, 2008 discovery conference. (lc2) (Entered: 08/25/2008)
265 ORDER Following August 20, 2008 Discovery Conference. Signed by Magistrate Judge Chris M. McAliley on 8/25/2008. (lc2) (Entered: 08/25/2008)
266 MOTION to Compel Documents from Members of the Organizational Plaintiffs by All Defendants. Responses due by 9/15/2008 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) (Entered: 08/26/2008)
267 THIRD AMENDED SCHEDULING ORDER: (Fact Discovery due by 11/27/2008., Expert Discovery due by 2/27/2009., Motions due by 3/20/2009., Pretrial Stipulation due by 4/30/2009., Calendar Call set for 7/28/2009 09:00 AM in Miami Division before Judge Adalberto Jordan., Jury Trial set for 8/3/2009 in Miami Division before Judge Adalberto Jordan.), ORDER REFERRING CASE to Mediation. 15 days to appoint mediator. ( Mediation Deadline 3/13/2009.), ORDER REFERRING CASE to Magistrate Judge Edwin G. Torres for Discovery Proceedings. Denying as Moot 248 Joint Motion to Modify Scheduling Order; Granting in Part Motion to Modify the Second Amended Order. Signed by Judge Adalberto Jordan on 8/26/2008. (ls) (Entered: 08/27/2008)
268 ORDER granting in part and denying in part 168 Motion to Intervene ; adopting in part Report and Recommendations re 253 Report and Recommendations.. Signed by Judge Adalberto Jordan on 8/27/2008. (ls) (Entered: 08/28/2008)
269 RESPONSE in Opposition re 266 MOTION to Compel Documents from Members of the Organizational Plaintiffs filed by Lisa Cosgrove, Edward Zissman. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Goldfarb, Carl) Modified on 8/28/2008 (ls). [Filers modified by Clerk] (Entered: 08/28/2008)
Clerks Notice of Docket Correction and Instruction to Filer re 269 Response in Opposition to Motion filed by All Plaintiffs. Error − Filer not selected/added; Correction − Filer corrected by the Clerk. Instructions to filer − In the future, please select the proper filer. It is not necessary to refile this document. (ls) (Entered: 08/28/2008)

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08/29/2008 09/02/2008
09/02/2008 09/03/2008 09/03/2008 09/03/2008 09/03/2008 09/05/2008 09/05/2008 09/05/2008
09/09/2008 09/09/2008 09/09/2008

270 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Discovery Hearing held on 8/29/2008. (Tape #7 95 595 − 3948; 8 96 0 − 2766.) (jgn) (Entered: 08/29/2008)
271 THIRD AMENDED SCHEDULING ORDER: ( Jury Trial set for 8/3/2009 in Miami Division before Judge Adalberto Jordan., Calendar Call set for 7/28/2009 09:00 AM in Miami Division before Judge Adalberto Jordan., Expert Discovery due by 2/27/2009., Fact Discovery due by 11/27/2008., Motions due by 3/20/2009., Pretrial Stipulation due by 4/30/2009.), ORDER REFERRING CASE to Mediation. 15 days to appoint mediator. ( Mediation Deadline 3/13/2009.), ORDER REFERRING CASE to Magistrate Judge Chris M. McAliley for Discovery Proceedings. Magistrate Judge Edwin G. Torres no longer assigned as presider/referral judge(s) in case, Denying as Moot 248 Motion to Modify Scheduling Order; Granting in Part 258 Motion to Modify the Second Amended Order. Signed by Judge Adalberto Jordan on 8/27/2008. (ls) Modified on 9/2/2008 (ls). (Entered: 09/02/2008)
272 ORDER granting 264 Defendants' Ore Tenus Motion to Modify Prior Orders Regarding the Production of Email Discovery. Signed by Magistrate Judge Chris M. McAliley on 9/2/08. (lc2) (Entered: 09/02/2008)
273 ORDER denying 266 Defendants' Motion to Compel. Signed by Magistrate Judge Chris M. McAliley on 9/3/08. (lc2) (Entered: 09/03/2008)
274 ORDER Requiring Submission of Discovery Plan. Signed by Magistrate Judge Chris M. McAliley on 9/3/08. (lc2) (Entered: 09/03/2008)
275 ORDER Setting Hearing on Plaintiff's MOTION to Certify Class. Motion Hearing set for 10/28/2008 09:00 AM before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 9/3/08. (lc2) (Entered: 09/03/2008)
Set Deadline: Discovery due by 9/11/2008. (dm) (Entered: 09/04/2008)
276 Sealed Document. (igo) (Entered: 09/05/2008)
277 Sealed Document. (igo) (Entered: 09/05/2008)
278 Unopposed MOTION for Leave to File Excess Pages in Motion for Class Certification by All Plaintiffs. (Attachments: # 1 Exhibit A: Motion for Class Certification, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44)(Goldfarb, Carl) (Entered: 09/05/2008)
279 ORDER Granting 276 Plaintiffs' Motion to Seal Certain Exhibits Referenced in its Motion for Class Certification. Signed by Magistrate Judge Chris M. McAliley on 9/9/08. (lc2) (Entered: 09/09/2008)
280 ORDER granting 278 Motion for Leave to File Class Certification Motion in Excess of Twenty Pages. Signed by Magistrate Judge Chris M. McAliley on 9/9/08. (lc2) (Entered: 09/09/2008)
281 MOTION to Certify Class by All Plaintiffs. Responses due by 9/26/2008 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44)(Goldfarb, Carl) (Entered: 09/09/2008)

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09/10/2008 09/11/2008
09/11/2008 09/12/2008 09/12/2008 09/15/2008 09/18/2008 09/22/2008 09/24/2008 09/26/2008 09/26/2008 09/26/2008 09/27/2008 09/29/2008
09/29/2008 09/30/2008

282 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by All Defendants re 273 Order on Motion to Compel (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Landon, Robert) (Entered: 09/10/2008)
283 TRANSCRIPT re Discovery Hearing, held on 8/29/08, Hearing held before Magistrate Judge Chris M. McAliley, Court Reporter: Jerry Meyers − phone number 954−431−4757. 1−116 pages. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 10/2/2008. Redacted Transcript Deadline set for 10/14/2008. Release of Transcript Restriction set for 12/10/2008. (hh) (Entered: 09/11/2008)
284 NOTICE by All Plaintiffs, All Defendants of Filing of Joint Discovery Plan (Attachments: # 1 Exhibit A: Plaintiffs' List, # 2 Exhibit B: Defendant List)(Goldfarb, Carl) (Entered: 09/11/2008)
285 MOTION to Dismiss 220 Reply to Response to Motion, 268 Order on Motion to Intervene, Order Adopting Report and Recommendations Count III of the Second Amended Complaint by All Defendants. Responses due by 9/29/2008 (Martin, Paul) (Entered: 09/12/2008)
286 ANSWER to Second Amended Complaint by All Defendants.(Landon, Robert) Modified on 9/15/2008 (ls). (Entered: 09/12/2008)
287 ORDER denying as moot 93 Motion to Certify Class; denying as moot 181 Motion to Strike Declaration.. Signed by Judge Adalberto Jordan on 9/15/2008. (ls) (Entered: 09/15/2008)
288 RESPONSE/REPLY to 282 Appeal of Magistrate Judge Decision to District Court filed by Lisa Cosgrove, Edward Zissman. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Goldfarb, Carl) (Entered: 09/18/2008)
289 ORDER Affirming re 273 Order on Motion to Compel. Signed by Judge Adalberto Jordan on 9/22/2008. (ls) (Entered: 09/22/2008)
290 ORDER Setting Deadline to Notice Depositions. Signed by Magistrate Judge Chris M. McAliley on 9/24/08. (lc2) (Entered: 09/24/2008)
291 MOTION to Strike Exhibits filed in support of plaintiffs' Motion for Class Certification by All Defendants. Responses due by 10/14/2008 (Daniel, Stephanie) Modified on 9/29/2008 (ls). (Entered: 09/26/2008)
292 NOTICE by All Defendants re 281 MOTION to Certify Class Notice of Filing (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Landon, Robert) (Entered: 09/26/2008)
293 Agreed MOTION for Leave to File Transcripts and Declarations Under Seal, and for Order Authorizing Defendants to Furnish Unredacted Declarations to Plaintiffs' Counsel by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 09/26/2008)
294 Unopposed MOTION for Leave to File Excess Pages Regarding Defendants' Memorandum in Oppositin to Plaintiffs' Motion for Class Certification by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) (Entered: 09/27/2008)
Clerks Notice of Docket Correction and Instruction to Filer re 293 Agreed MOTION for Leave to File Transcripts and Declarations Under Seal, and for Order Authorizing Defendants to Furnish Unredacted Declarations to Plaintiffs' Counsel filed by All Defendants. Error − Proposed Order Docketed as Main Document; Instruction to filer − Proposed Order must be submitted in accordance with CM/ECF Administrative Procedures. It is not necessary to refile this document. (ls) (Entered: 09/29/2008)
295 Sealed Document. (igo) (Entered: 09/29/2008)
296 RESPONSE to Motion re 285 MOTION to Dismiss 220 Reply to Response to Motion, 268 Order on Motion to Intervene, Order Adopting Report and Recommendations Count III of the Second Amended Complaint filed by All Plaintiffs. Replies due by 10/10/2008.

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09/30/2008 09/30/2008 09/30/2008 10/01/2008
10/01/2008
10/01/2008
10/02/2008 10/03/2008 10/03/2008 10/03/2008 10/03/2008 10/03/2008 10/06/2008 10/06/2008 10/06/2008
10/07/2008 10/07/2008 10/07/2008 10/07/2008 10/07/2008 10/07/2008

(Kunz, Paul) (Entered: 09/30/2008)
297 ORDER granting 293 Motion for Leave to File. Signed by Magistrate Judge Chris M. McAliley on 9/29/08. (lc2) (Entered: 09/30/2008)
298 ORDER granting 294 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 9/29/08. (lc2) (Entered: 09/30/2008)
299 MEMORANDUM in Opposition re 281 MOTION to Certify Class Corrected filed by All Defendants. (Landon, Robert) Modified on 10/1/2008 (ls). (Entered: 09/30/2008)
300 ORDER Granting Agreed Motion to File Deposition Transcripts and Declarations under Seal re 295 Sealed Document; Defendants to file Redacted Versions by 10/14/2008.. Signed by Judge Adalberto Jordan on 9/30/2008. (ls) (Entered: 10/01/2008)
301 Unopposed MOTION for Leave to File Excess Pages Pertaining to Motion for Partial Summary Judgment by Secretary of the Florida Department of Health. (Attachments: # 1 Text of Proposed Order, # 2 Motion for Partial Summary Judgment, # 3 Statement of Undisputed Material Facts, # 4 Exhibit 1)(Daniel, Stephanie) (Entered: 10/01/2008)
302 Defendant's MOTION for Partial Summary Judgment by Secretary of Florida Department of Children & Family Services. (Attachments: # 1 Statement of Material Undisputed Facts)(Martin, Paul) (Entered: 10/01/2008)
303 Sealed Document. (tas) (Entered: 10/02/2008)
304 NOTICE to Take Deposition of John Grant by All Defendants.(Landon, Robert) (Entered: 10/03/2008)
305 NOTICE to Take Deposition of John Donaldson, M.D. by All Defendants.(Landon, Robert) (Entered: 10/03/2008)
306 NOTICE to Take Deposition of Thresia Gambon, M.D. by All Defendants.(Landon, Robert) (Entered: 10/03/2008)
307 NOTICE to Take Deposition of Jorge Del Toro, M.D. by All Defendants.(Landon, Robert) (Entered: 10/03/2008)
308 ACKNOWLEDGMENT OF SERVICE Executed Edward Zissman, M.D. Acknowledgement filed by All Defendants. (Jimenez, Marcos) (Entered: 10/03/2008)
309 NOTICE to Take Deposition of Lisa Cosgrove, M.D. by All Defendants.(Landon, Robert) (Entered: 10/06/2008)
310 NOTICE to Take Deposition of Edward Zissman, M.D. by All Defendants.(Landon, Robert) (Entered: 10/06/2008)
311 ACKNOWLEDGMENT OF SERVICE Executed Subpoena for Deposition of Lisa Cosgrove, M.D. Acknowledgment filed by All Defendants. (Jimenez, Marcos) (Entered: 10/06/2008)
312 NOTICE to Take Deposition of John Donaldson, M.D. (Re−Notice) by All Defendants.(Landon, Robert) (Entered: 10/07/2008)
313 NOTICE to Take Deposition of Lisa Cosgrove, M.D. (Re−Notice) by All Defendants.(Landon, Robert) (Entered: 10/07/2008)
314 ORDER granting defendants' motion to file records under seal re 303 Sealed Document. Signed by Judge Adalberto Jordan on 10/06/2008. (tb) (Entered: 10/07/2008)
315 NOTICE to Take Deposition of Nancy Silva, M.D. by All Defendants.(Landon, Robert) (Entered: 10/07/2008)
316 NOTICE to Take Deposition of Paul Werner, D.D.S. by All Defendants.(Landon, Robert) (Entered: 10/07/2008)
317 NOTICE to Take Deposition of Thomas Floyd, D.D.S. by All Defendants.(Landon, Robert) (Entered: 10/07/2008)

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10/07/2008 10/07/2008 10/07/2008 10/07/2008 10/07/2008 10/07/2008
10/08/2008
10/08/2008 10/08/2008 10/09/2008 10/09/2008 10/10/2008
10/10/2008
10/10/2008
10/10/2008
10/13/2008 10/13/2008
10/13/2008 10/13/2008 10/14/2008 10/14/2008

318 NOTICE to Take Deposition of David Marcus, M.D. by All Defendants.(Landon, Robert) (Entered: 10/07/2008)
319 NOTICE to Take Deposition of James McIwain, D.D.S. by All Defendants.(Landon, Robert) (Entered: 10/07/2008)
320 NOTICE to Take Deposition of Thresia Gambon, M.D. (Corrected Notice) by All Defendants.(Landon, Robert) (Entered: 10/07/2008)
321 SUPPLEMENT to 64 Exhibit and Witness List Supplement to Defendants' Rule 26 Disclosures by All Defendants. (Landon, Robert) (Entered: 10/07/2008)
322 Defendant's MOTION for Protective Order by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Daniel, Stephanie) (Entered: 10/07/2008)
323 MOTION for Protective Order by Robert A. Butterworth, Alan Levine, Andrew Agwunobi. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Daniel, Stephanie) (Entered: 10/07/2008)
324 ORDER Granting Without Prejudice Motion for Protective Order and Setting Discovery Conference. Signed by Magistrate Judge Chris M. McAliley on 10/8/08. (lc2) (Entered: 10/08/2008)
325 ORDER Setting Discovery Conference and Requiring Expedited Response. Signed by Magistrate Judge Chris M. McAliley on 10/8/08. (lc2) (Entered: 10/08/2008)
Reset Deadline as to 323 MOTION for Protective Order. Response due by 10/20/2008 (dm) (Entered: 10/10/2008)
326 NOTICE to Take Deposition of Jerry Isaac, M.D. by All Defendants.(Landon, Robert) (Entered: 10/09/2008)
327 NOTICE to Take Deposition of Robert Primosch, D.D.S. by All Defendants.(Landon, Robert) (Entered: 10/09/2008)
328 RESPONSE in Opposition re 291 MOTION to Strike Exhibits filed in support of plaintiffs' Motion for Class Certification filed by All Plaintiffs. (Kunz, Paul) (Entered: 10/10/2008)
329 Plaintiff's MOTION for Leave to File Excess Pages in Reply in Support of Motion for Class Certification by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Kunz, Paul) (Entered: 10/10/2008)
348 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings for Joshua P. Riley, Filing Fee $75.00, Receipt #988723. (cw) (Entered: 10/16/2008)
349 MOTION for Limited Appearance of Joshua P. Riley, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings, Filing Fee $75.00, Receipt #988723. (cw) (Entered: 10/16/2008)
330 SUPPLEMENT to Rule 26 Disclosures by All Plaintiffs. (Goldfarb, Carl) (Entered: 10/13/2008)
331 RE−NOTICE to Take Deposition of George Sheldon, acting in his official capacity as Interim Secretary of the Department of Children and Families and/or his designee by All Plaintiffs.(Goldfarb, Carl) Modified on 10/14/2008 (ls). (Entered: 10/13/2008)
332 NOTICE to Take Deposition of Paul Werner, D.D.S. (Re−Notice) by All Defendants.(Landon, Robert) (Entered: 10/13/2008)
333 NOTICE to Take Deposition of John Grant by All Defendants.(Landon, Robert) (Entered: 10/13/2008)
334 NOTICE to Take Deposition of Dr. John Ritrowski by All Plaintiffs.(Goldfarb, Carl) (Entered: 10/14/2008)
335 ORDER granting 301 Motion for Leave to File Excess Pages regarding Motion for Partial Summary Judgment. Signed by Judge Adalberto Jordan on 10/10/2008. (ls) (Entered: 10/14/2008)

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10/14/2008 10/14/2008
10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/14/2008 10/17/2008 10/17/2008 10/20/2008 10/20/2008
10/21/2008
10/21/2008
10/21/2008

336 MOTION for Partial Summary Judgment by Secretary of the Florida Department of Health. (docketed per DE #335) (ls) (Entered: 10/14/2008)
337 Statement of: Undisputed Material Fact by Secretary of the Florida Department of Health re 336 MOTION for Partial Summary Judgment. [docketed per DE #335] (ls) (Additional attachment(s) added on 10/14/2008: # 1 Exhibit 1) (ls). (Entered: 10/14/2008)
338 ORDER granting 329 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 10/14/08. (lc2) (Entered: 10/14/2008)
339 NOTICE to Take Deposition of Judy Schachter, M.D. by All Defendants.(Landon, Robert) (Entered: 10/14/2008)
340 NOTICE to Take Deposition of Richard Bucciarelli, M.D. by All Defendants.(Landon, Robert) (Entered: 10/14/2008)
341 NOTICE to Take Deposition of Tom Weber, M.D. by All Defendants.(Landon, Robert) (Entered: 10/14/2008)
342 NOTICE to Take Deposition of Howard Schneider, D.D.S. by All Defendants.(Landon, Robert) (Entered: 10/14/2008)
343 NOTICE to Take Deposition of Louis St. Petery, M.D. by All Defendants.(Landon, Robert) (Entered: 10/14/2008)
344 NOTICE to Take Deposition of Julia St. Petery, M.D. by All Defendants.(Landon, Robert) (Entered: 10/14/2008)
345 NOTICE to Take Deposition of Caroll Bennett, D.D.S. by All Defendants.(Landon, Robert) (Entered: 10/14/2008)
346 REPLY to Response to Motion re 281 MOTION to Certify Class filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Singer, Stuart) (Entered: 10/14/2008)
347 NOTICE by All Defendants Filing of Redacted Exhibits (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D − Part 1, # 5 Exhibit D − Part 2, # 6 Exhibit D − Part 3, # 7 Exhibit E through L)(Landon, Robert) (Entered: 10/14/2008)
350 RESPONSE/REPLY to 307 Notice to Take Deposition and Subpoena to Jorge Del Toro, M.D. filed by Jorge Del Toro. (Lipton, Paul) (Entered: 10/17/2008)
351 NOTICE by All Defendants of Filing Exhibits (Attachments: # 1 Exhibit Declaration of Dr. Chiaro, # 2 Exhibit Declaration of Mark Thomas, # 3 Exhibit Emails)(Landon, Robert) (Entered: 10/17/2008)
352 Notice of Undeliverable Mail re 314 Order. * US Mail returned for: Forward time exp. Return to Sender. For: Louis W. Bullock. (jdo) (Entered: 10/20/2008)
353 MOTION for Extension of Time to File Response as to 336 MOTION for Partial Summary Judgment by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Goldfarb, Carl) Modified on 10/21/2008 (ls). (Entered: 10/20/2008)
354 RESPONSE to Motion re 322 Defendant's MOTION for Protective Order Regarding Depositions of the Defendants filed by All Plaintiffs. Replies due by 10/31/2008. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7A, # 8 Exhibit 7B, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Goldfarb, Carl) (Entered: 10/21/2008)
355 RESPONSE to Motion re 323 MOTION for Protective Order filed by All Plaintiffs. Replies due by 10/31/2008. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6A, # 7 Exhibit 6B, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10)(Goldfarb, Carl) (Entered: 10/21/2008)
Clerks Notice of Docket Correction and Instruction to Filer re 353 Plaintiff's MOTION for Extension of Time to File Response to Surgeon General's Motion for Partial Summary Judgment filed by All Plaintiffs. Error − Wrong Event Selected; Correction −

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10/22/2008
10/22/2008 10/23/2008 10/23/2008 10/23/2008
10/23/2008 10/23/2008
10/24/2008 10/27/2008 10/27/2008 10/27/2008 10/27/2008
10/28/2008 10/31/2008 11/02/2008

Redocketed by Clerk as Motion for Extension of Time to File Response/Reply/Answer. Instruction to Filer − In the future, please select the proper event. It is not necessary to refile this document. (ls) (Entered: 10/21/2008)
356 Unopposed MOTION for Leave to File Excess Pages in Response to Secretary George Sheldon's Motion for Partial Summary Judgment by All Plaintiffs. (Attachments: # 1 Appendix A: Proposed Response, # 2 Appendix A: Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14)(Goldfarb, Carl) (Entered: 10/22/2008)
357 Sealed Document. (igo) (Entered: 10/23/2008)
358 ORDER granting 353 Motion for Extension of Time to File Response as to 336 MOTION for Partial Summary Judgment. Signed by Judge Adalberto Jordan on 10/22/2008. (ls) (Entered: 10/23/2008)
Set/Reset Deadlines as to 336 MOTION for Partial Summary Judgment. Responses due by 11/6/2008 (ls) (Entered: 10/23/2008)
359 ORDER denying without prejudice 348 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings of Attorney Joshua P. Riley ; denying without prejudice 349 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings of Attorney Joshua P. Riley. Signed by Judge Adalberto Jordan on 10/23/2008. (ls) (Entered: 10/23/2008)
360 NOTICE of filing Magistrate Judge Chris M. McAliley's REVISED discovery procedures. (vp) (Entered: 10/23/2008)
361 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Motion Hearing held on 10/23/2008 re 322 Defendant's MOTION for Protective Order filed by All Defendants, 323 MOTION for Protective Order filed by Andrew Agwunobi, Robert A. Butterworth, Alan Levine. (Tape #08H−118−1037, 119−1 & 120−1.) (br) (Entered: 10/24/2008)
362 ORDER granting in part and denying in part 322 and 323 Motions for Protective Order. Signed by Magistrate Judge Chris M. McAliley on 10/24/2008. (lc2) (Entered: 10/24/2008)
363 ORDER granting 356 Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 10/27/2008. (tp) (Entered: 10/27/2008)
364 ORDER Granting Motion to Seal the Declaration of Carol McCormick re 357 Sealed Document. Signed by Judge Adalberto Jordan on 10/27/2008. (ls) (Entered: 10/27/2008)
365 Amended MOTION for Limited Appearance of Joshua P. Riley, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings, Filing Fee $75.00, Receipt #988723. (cw) (Entered: 10/28/2008)
375 RESPONSE to Motion re 302 Defendant's MOTION for Partial Summary Judgment filed by All Plaintiffs. Replies due by 11/6/2008. (tp) (Additional attachment(s) added on 11/7/2008: # 1 Appendix Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14) (tp). (Entered: 11/06/2008)
366 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings for Mauricio Gonzalez, Filing Fee $75.00, Receipt #989477. (cw) (Entered: 10/28/2008)
369 ORDER granting 365 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings. Signed by Judge Adalberto Jordan on 10/31/2008. (ls) (Entered: 11/03/2008)
367 Unopposed MOTION for Extension of Time to File Reply TO Response to Motion for Partial Summary Judgment by Secretary of Florida Department of Children & Family Services. (Daniel, Stephanie) (Entered: 11/02/2008)

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11/02/2008 11/04/2008 11/05/2008 11/05/2008
11/05/2008 11/06/2008 11/06/2008 11/06/2008
11/06/2008 11/07/2008 11/07/2008 11/10/2008
11/10/2008 11/12/2008 11/12/2008

368 RESPONSE to Motion re 366 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings for Mauricio Gonzalez, Filing Fee $75.00, Receipt #989477 filed by All Defendants. Replies due by 11/10/2008. (Daniel, Stephanie) (Entered: 11/02/2008)
370 SUPPLEMENT to 330 Supplement to Plaintiffs' Rule 26 Disclosures by All Plaintiffs. (Goldfarb, Carl) (Entered: 11/04/2008)
371 ORDER Setting Hearing on 281 MOTION to Certify Class : Motion Hearing set for 11/19/2008 09:00 AM before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 11/5/08. (lc2) (Entered: 11/05/2008)
372 Plaintiff's MOTION to Compel Timely Production of Supporting Documents for Ten Specified Budget Requests by All Plaintiffs. Responses due by 11/24/2008 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Goldfarb, Carl) (Entered: 11/05/2008)
373 Plaintiff's MOTION to Compel Timely Production of Provider Recruitment and Retention Plans by All Plaintiffs. Responses due by 11/24/2008 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Goldfarb, Carl) (Entered: 11/05/2008)
374 ORDER granting 367 Motion for Extension of Time to Reply re 302 Defendant's MOTION for Partial Summary Judgment; Replies due by 11/10/2008.. Signed by Judge Adalberto Jordan on 11/6/2008. (ls) (Entered: 11/06/2008)
376 ORDER Setting Telephone Status Conference: Status Conference set for 11/7/2008 04:00 PM before Magistrate Judge Chris M. McAliley. Please see Order for additional details. Signed by Magistrate Judge Chris M. McAliley on 11/6/08. (lc2) (Entered: 11/06/2008)
377 Unopposed MOTION for Leave to File Excess Pages in Response to Surgeon General's Motion for Partial Summary Judgment by All Plaintiffs. (Attachments: # 1 Exhibit A: Proposed Response, # 2 Appendix A: Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18)(Goldfarb, Carl) (Entered: 11/06/2008)
383 NOTICE of Inability to Produce Transcript (tas) (Entered: 11/12/2008)
378 ORDER Following November 7, 2008 Telephone Status Conference, granting in part 372 Motion to Compel; granting in part 373 Motion to Compel. Signed by Magistrate Judge Chris M. McAliley on 11/7/08. (lc2) (Entered: 11/07/2008)
379 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Discovery Hearing held on 11/7/2008. (Tape #08H−125−3596 & 126−1.) (nf) (Entered: 11/10/2008)
380 Unopposed MOTION for Leave to File Excess Pages Re: Reply to plaintiffs' Response to Secretary George Sheldon's Motion for Summary Judgment by Secretary of Florida Department of Children & Family Services. (Attachments: # 1 Reply to Plaintiffs' Response to Partial Summary Judgment Motion, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Daniel, Stephanie) Modified on 11/12/2008 (ls). (Entered: 11/10/2008)
381 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Andrew Agwunobi re 362 Order on Motion for Protective Order (Daniel, Stephanie) (Entered: 11/10/2008)
382 MOTION for Protective Order by All Defendants. (Attachments: # 1 Exhibit A − Part 1, # 2 Exhibit Exhibit A Part 2 & Exhibit B)(Landon, Robert) (Entered: 11/12/2008)
384 ORDER Setting Telephone Status Conference: Status Conference set for 11/13/2008 01:15 PM before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 11/12/08. (lc2) (Entered: 11/12/2008)

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11/12/2008 11/12/2008 11/13/2008 11/13/2008
11/13/2008 11/14/2008 11/14/2008 11/14/2008 11/17/2008 11/17/2008 11/17/2008 11/17/2008 11/17/2008 11/17/2008
11/17/2008 11/18/2008

385 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Ana Viamonte−Ros, Holly Benson re 378 Order on Motion to Compel, (Attachments: # 1 Exhibit Letter from Carl Goldfarb 10−31−08, # 2 Exhibit List of CMS Offices, # 3 Exhibit Selected emails sent to Plaintiffs' counsel)(Martin, Paul) (Entered: 11/12/2008)
386 Plaintiff's MOTION to Compel Adequate and Timely Privilege Logs by All Plaintiffs. Responses due by 12/1/2008 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Goldfarb, Carl) (Entered: 11/12/2008)
387 ORDER granting 377 Unopposed Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 11/13/2008. (ls) (Entered: 11/13/2008)
388 RESPONSE to Motion re 336 MOTION for Partial Summary Judgment filed by All Plaintiffs. Replies due by 11/24/2008. (Attachments: # 1 Appendix A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18)(ls) (Entered: 11/13/2008)
389 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Status Conference held on 11/13/2008. (Tape #08H−127−2012 & 128−1.) (nf) (Entered: 11/13/2008)
390 MOTION for Extension of Time to File Reply to Plaintiffs' Response to Surgeon General's Motion for Partial Summary Judgment by Ana Viamonte−Ros. (Daniel, Stephanie) (Entered: 11/14/2008)
391 Corrected MOTION for Extension of Time to File Reply to Plaintiffs' Response to Surgeon General's Motion for Partial Summary Judgment by Ana Viamonte−Ros. (Daniel, Stephanie) (Entered: 11/14/2008)
395 MOTION for Reconsideration 394 Order on Motion for Protective Order ( Responses due by 12/4/2008), MOTION for clarification, MOTION to Intervene and Motion For Amicus Curie Brief Friend of the Court.. (cqs) (Entered: 11/17/2008)
392 ORDER granting 380 Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 11/17/2008. (ls) (Entered: 11/17/2008)
393 REPLY to Response to Motion re 302 Defendant's MOTION for Partial Summary Judgment filed by Secretary of Florida Department of Children & Family Services. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(ls) (Entered: 11/17/2008)
394 ORDER granting in part and denying in part 382 Defendants' Motion for Protective Order. Signed by Magistrate Judge Chris M. McAliley on 11/17/08. (lc2) (Entered: 11/17/2008)
396 ORDER ReSetting Oral Argument on 281 MOTION to Certify Class. Oral Argument set for 12/2/2008 09:00 AM before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 11/17/08. (lc2) (Entered: 11/17/2008)
397 Joint MOTION for Extension of Time to Complete Discovery as to Authenticity and Admissibility by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) Modified on 11/19/2008 (ls). (Entered: 11/17/2008)
398 Plaintiff's MOTION to Compel Timely Production of Attachments and Parent Emails and For Leave to Conduct Limited Discovery on Such Documents After the Close of Fact Discovery and Memorandum of Law in Support Thereof by All Plaintiffs. Responses due by 12/5/2008 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Text of Proposed Order)(Goldfarb, Carl) Modified on 11/19/2008 (ls). (Entered: 11/17/2008)
399 RESPONSE/REPLY to 385 Appeal of Magistrate Judge Decision to District Court, and Request for Expedited Determination Pursuant to Local Rule 7.1.E filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Goldfarb, Carl) (Entered: 11/17/2008)
400 ORDER Setting Telephonic Discovery Conference on 398 Plaintiff's MOTION to Compel Timely Production of Attachments and Parent Emails and For Leave to Conduct Limited Discovery on Such Documents After the Close of Fact Discovery. Conference

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11/18/2008 11/19/2008 11/19/2008 11/19/2008 11/19/2008
11/19/2008
11/20/2008 11/21/2008 11/21/2008 11/24/2008
11/24/2008 11/24/2008 11/26/2008 11/26/2008 11/26/2008 11/28/2008

set on 11/20/2008 03:30 PM before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 11/18/2008. (lc1) (Entered: 11/18/2008)
401 ORDER granting 366 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings. Signed by Judge Adalberto Jordan on 11/18/2008. (tb) (Entered: 11/18/2008)
402 ORDER granting 397 Joint Motion Regarding Limited Discovery As To Authenticity and Admissibility. Signed by Magistrate Judge Chris M. McAliley on 11/18/08. (lc2) (Entered: 11/19/2008)
403 NOTICE by Secretary of Florida Department of Children & Family Services re 393 Reply to Response to Motion of Filing Corrected Declaration of Frank Platt (Attachments: # 1 Affidavit of Frank Platt)(Daniel, Stephanie) (Entered: 11/19/2008)
404 NOTICE by All Defendants Notice of Filing Amended Privilege Log (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 11/19/2008)
405 RESPONSE to Motion re 398 Plaintiff's MOTION to Compel Timely Production of Attachments and Parent Emails and For Leave to Conduct Limited Discovery on Such Documents After the Close of Fact Discovery and Memorandum of Law in Support Thereof and Cross−Motion for an Enlargement of Time and Limited Discovery for Plaintiffs filed by All Defendants. Replies due by 12/1/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Landon, Robert) (Entered: 11/19/2008)
406 REPLY to 399 RESPONSE to 385 Appeal of Magistrate Judge Decision to District Court, and Request for Expedited Determination Pursuant to Local Rule 7.1.E filed by All Plaintiffs.filed by Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA). (Daniel, Stephanie) text Modified on 11/20/2008 (ail). (Entered: 11/19/2008)
407 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Discovery Hearing held on 11/20/2008. (Tape #08H−131−1534.) (nf) (Entered: 11/21/2008)
408 NOTICE of Inability to Produce Transcript filed by Jerald M. Meyers (ail) (Entered: 11/21/2008)
409 ORDER denying as moot 390 Motion for Extension of Time to Respond ; granting 391 Motion for Extension of Time to Respond Replies due by 12/2/2008.. Signed by Judge Adalberto Jordan on 11/20/2008. (ail) (Entered: 11/21/2008)
410 I>Joint Stipulation and Incorporated [proposed] Order on Privilege Log, Email and Attachment Issues398 Plaintiff's MOTION to Compel Timely Production of Attachments and Parent Emails and For Leave to Conduct Limited Discovery on Such Documents After the Close of Fact Discovery and Memorandum of Law in Support Thereof, 386 Plaintiff's MOTION to Compel Adequate and Timely Privilege Logs by All Plaintiffs, All Defendants. (Landon, Robert)text Modified on 11/25/2008 (ail). (Entered: 11/24/2008)
411 Notice of Undeliverable Mail re 274 Order, 271 Scheduling Order. * US Mail returned for: Forward time expired. Return to sender, for: Louis W. Bullock. Notice not delivered by other means for this event. (jmd) (Entered: 11/24/2008)
412 ORDER on Joint Stipulation on Privilege Log, Email and Attachment Issues. Signed by Magistrate Judge Chris M. McAliley on 11/24/08. (lc2) (Entered: 11/24/2008)
413 ORDER SUSTAINING in Part the 385 Appeal of Magistrate Judge Decision to District Court and Remanding in part to Magistrate Judge McAliley. Signed by Judge Adalberto Jordan on 11/21/2008. (vp) (Entered: 11/26/2008)
414 Unopposed MOTION for Extension of Time to File Response as to 413 Order by Holly Benson, Ana Viamonte−Ros. (Daniel, Stephanie) (Entered: 11/26/2008)
415 Defendant's MOTION for Extension of Time to Serve Written Discovery Responses and Objections by All Defendants. (Daniel, Stephanie) (Entered: 11/26/2008)
416 RESPONSE/REPLY to Defendants' Objections to Magistrate Judge McAliley's Order Granting in Part Defendants' and Former Agency Heads' Motions for Protective Orders

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12/01/2008 12/01/2008
12/01/2008 12/02/2008 12/02/2008 12/02/2008
12/03/2008 12/03/2008 12/05/2008 12/05/2008 12/08/2008 12/08/2008 12/09/2008 12/10/2008 12/11/2008

filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 11/28/2008)
417 ORDER granting 414 Motion for Extension of Time to Respond. Responses due by 12/5/2008. Signed by Magistrate Judge Chris M. McAliley on 12/1/2008. (lc2) (Entered: 12/01/2008)
418 Clerks Notice of Docket Correction and Instruction to Filer re 414 Unopposed MOTION for Extension of Time to File Response as to 413 Order filed by Holly Benson, Ana Viamonte−Ros. Error − Incorrect Document Link/No Link;. Instruction to filer − In the future, please link the document to the proper entry. It is not necessary to refile this document. (ls) (Entered: 12/01/2008)
419 Joint MOTION for Extension of Time to File Initial and Rebuttal Expert Disclosures by All Plaintiffs, All Defendants. (Attachments: # 1 Text of Proposed Order)(Landon, Robert) (Entered: 12/01/2008)
420 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Motion Hearing held on 12/2/2008 re 281 MOTION to Certify Class filed by All Plaintiffs. Court Reporter: Official Reporting Service, Phone: 954−467−8204 x1020 (nf) (Entered: 12/02/2008)
421 Unopposed MOTION for Leave to File Excess Pages re: Reply To Plaintiffs' Response To Surgeon Generals Motion For Partial Summary Judgement by Ana Viamonte−Ros. (Attachments: # 1 proposed reply, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Daniel, Stephanie) (Entered: 12/02/2008)
422 NOTICE >of filing documents in support of reply by Ana Viamonte−Ros re 421 Unopposed MOTION for Leave to File Excess Pages re: Reply To Plaintiffs' Response To Surgeon Generals Motion For Partial Summary Judgement (Attachments: # 1 Exhibit 1, # 2 Exhibit 2a, # 3 Exhibit 2b, # 4 Exhibit 3, # 5 Exhibit 4a, # 6 Exhibit 4b)(Daniel, Stephanie)text Modified on 12/3/2008 (ail). (Entered: 12/02/2008)
423 ORDER granting 415 Defendants' Motion for Enlargement of Time to Serve Responses to Discovery. Signed by Magistrate Judge Chris M. McAliley on 12/3/2008. (lc2) (Entered: 12/03/2008)
424 ORDER granting 419 Motion for Extension of Time to File Expert Disclosures. Signed by Magistrate Judge Chris M. McAliley on 12/3/08. (lc2) (Entered: 12/03/2008)
425 RESPONSE in Opposition re 372 Plaintiff's MOTION to Compel Timely Production of Supporting Documents for Ten Specified Budget Requests filed by Holly Benson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Daniel, Stephanie) (Entered: 12/05/2008)
426 RESPONSE in Opposition re 373 Plaintiff's MOTION to Compel Timely Production of Provider Recruitment and Retention Plans filed by Ana Viamonte−Ros. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Daniel, Stephanie) (Entered: 12/05/2008)
427 ORDER Denying Motion To Intrvene 395 Motion for Clarification; denying 395 Motion for Reconsideration ; denying 395 Motion to Intervene. Signed by Judge Adalberto Jordan on 12/8/2008. (cqs) (Entered: 12/08/2008)
428 RESPONSE/REPLY to 416 Response/Reply (Other) By Plaintiffs to Objections to Order Granting in Part Defendants' and Former Agency Heads' Motions for Protective Order filed by Andrew Agwunobi. (Martin, Paul) (Entered: 12/08/2008)
429 Plaintiff's MOTION for Hearing re 302 Defendant's MOTION for Partial Summary Judgment, 336 MOTION for Partial Summary Judgment by All Plaintiffs. (Goldfarb, Carl) (Entered: 12/09/2008)
430 ORDER OVERRULING Defendant's Objections to Judge McAliley's Order re 381 Appeal of Magistrate Judge Decision to District Court filed by Andrew Agwunobi. Signed by Judge Adalberto Jordan on 12/10/2008. (cqs) (Entered: 12/10/2008)
431 ORDER Requiring Reply to 425 Response in Opposition to Motion, filed by Holly Benson, 426 Response in Opposition to Motion filed by Ana Viamonte−Ros. Signed by Magistrate Judge Chris M. McAliley on 12/11/08. (lc2) (Entered: 12/11/2008)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 39 of 108

12/15/2008 12/15/2008 12/16/2008 12/16/2008 12/17/2008 12/18/2008 12/19/2008 12/19/2008 12/23/2008 12/23/2008 12/23/2008 12/23/2008
12/23/2008 12/29/2008

432 ORDER granting 421 Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 12/12/2008. (tb) (Entered: 12/15/2008)
437 REPLY to plaintiffs' response to Surgeon General Viamonte Ros' motion for partial summary judgment per order 432 filed by Ana Viamonte−Ros. (tb) (Entered: 12/19/2008)
433 REPLY to Response to Motion re 373 Plaintiff's MOTION to Compel Timely Production of Provider Recruitment and Retention Plans Filed Pursuant to Court's Order Requiring Reply 431 filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 12/16/2008)
434 REPLY to Response to Motion re 372 Plaintiff's MOTION to Compel Timely Production of Supporting Documents for Ten Specified Budget Requests Filed Pursuant to Court's Order Requiring Reply 431 filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Goldfarb, Carl) (Entered: 12/16/2008)
435 Defendant's MOTION for Leave to File Surreply by Holly Benson, Ana Viamonte−Ros. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 12/17/2008)
436 ORDER on [372, 373] Plaintiffs' Motions to Compel; 435 Defendants' Motion to File Surreply. Signed by Magistrate Judge Chris M. McAliley on 12/18/08. (lc2) (Entered: 12/18/2008)
438 ORDER granting 429 Motion for Hearing, Set for 1/30/20009 at 11:00am in Miami, Florida.. Signed by Judge Adalberto Jordan on 12/19/2008. (cqs) Modified on 12/19/2008 to correct date (cqs). (Entered: 12/19/2008)
Set: Motion Hearing set for 1/30/2009 11:00 AM in Miami Division before Judge Adalberto Jordan. (cqs) (Entered: 12/19/2008)
439 Defendant's MOTION RECONSIDERATION OF ORDER ON PLAINTIFFS MOTIONS TO COMPEL re 436 Order on Motion for Leave to File by Holly Benson, Ana Viamonte−Ros. (Attachments: # 1 Exhibit A, part 1, # 2 Exhibit A, part 2, # 3 Exhibit B)(Daniel, Stephanie) (Entered: 12/23/2008)
440 Plaintiff's MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 12/23/2008)
441 Plaintiff's MOTION to Compel Defendant to Produce Documents from the DCF Privilege Log by All Plaintiffs. Responses due by 1/12/2009 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Goldfarb, Carl) (Entered: 12/23/2008)
442 MOTION to Stay re 430 Order, 362 Order on Motion for Protective Order by Andrew Agwunobi. Responses due by 1/12/2009 (Attachments: # 1 Deposition Excerpts − L. Keen, # 2 Deposition Excerpts − M. Brown vol. 1, # 3 Deposition Excerpts − M. Brown Vol. 2, # 4 Cover Sheet − depositions of Area Office, # 5 Deposition Excerpts − F. Nieves, # 6 Deposition excerpts − V. Hamilton, # 7 Deposition Excerpts − L. Kimbley, # 8 Deposition Excerpts − M. Pickering, # 9 Deposition excerpts − N. Hemmen, # 10 Deposition of R. Grey − Part 1, # 11 Deposition of R. Grey part 2, # 12 Deposition Excerpts − R. Copa)(Daniel, Stephanie) (Entered: 12/23/2008)
443 Defendant's MOTION for Extension of Time to File Response as to 441 Plaintiff's MOTION to Compel Defendant to Produce Documents from the DCF Privilege Log by Secretary of Florida Department of Children & Family Services. (Daniel, Stephanie) (Entered: 12/23/2008)
444 Notice of Undeliverable Mail re 335 Order on Motion for Leave to File Excess Pages, 275 Order Setting Hearing on Motion, 273 Order on Motion to Compel, 298 Order on Motion for Leave to File Excess Pages, 324 Order, 290 Order, 338 Order on Motion for Leave to File Excess Pages, 297 Order on Motion for Leave to File, 325 Order Setting Hearing on Motion, 409 Order on Motion for Extension of Time to File Response/Reply/Answer, 300 Order, 268 Order on Motion to Intervene, Order Adopting Report and Recommendations US Mail returned for: forward time expired. Atty needs to update address with the court. unable to forward for: Louis W. Bullock (rb) (Entered: 12/29/2008)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 40 of 108

12/30/2008 12/30/2008 12/31/2008
01/02/2009 01/05/2009 01/06/2009 01/06/2009
01/06/2009 01/07/2009
01/07/2009 01/08/2009 01/12/2009 01/12/2009 01/13/2009 01/14/2009

445 ORDER granting 440 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 12/30/08. (lc2) (Entered: 12/30/2008)
446 ORDER; granting 443 Motion for Extension of Time to Respond to MOTION to Compel. Responses due by 1/12/2009. Signed by Magistrate Judge Chris M. McAliley on 12/30/2008. (tas) (Entered: 12/30/2008)
447 TRANSCRIPT of Hearing held on 12/2/08 before Magistrate Judge Chris M. McAliley. Court Reporter: Darien Fremont, Phone: 954−467−8204 x1020. 1−134 pages. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 1/21/2009. Redacted Transcript Deadline set for 2/2/2009. Release of Transcript Restriction set for 3/31/2009. (Attachments: # 1 Designation Access Form)(hh) (Entered: 01/02/2009)
448 RESPONSE to Motion re 442 MOTION to Stay re 430 Order, 362 Order on Motion for Protective Order MOTION to Stay re 430 Order, 362 Order on Motion for Protective Order MOTION to Stay re 430 Order, 362 Order on Motion for Protective Order filed by All Plaintiffs. Replies due by 1/12/2009. (Goldfarb, Carl) (Entered: 01/02/2009)
449 Plaintiff's MOTION for Extension of Time to File Motion to Compel Documents from AHCA's Revised Privilege Log by All Plaintiffs. (Goldfarb, Carl) (Entered: 01/05/2009)
450 ORDER granting 449 Motion for Extension of Time to File a Motion to Compel Documents from AHCA's Revised Privileged Log. Signed by Magistrate Judge Chris M. McAliley on 1/6/2009. (lc2) (Entered: 01/06/2009)
451 RESPONSE to Motion re 439 Defendant's MOTION RECONSIDERATION OF ORDER ON PLAINTIFFS MOTIONS TO COMPEL re 436 Order on Motion for Leave to FileDefendant's MOTION RECONSIDERATION OF ORDER ON PLAINTIFFS MOTIONS TO COMPEL re 436 Order on Motion for Leave to File filed by All Plaintiffs. Replies due by 1/16/2009. (Goldfarb, Carl) (Entered: 01/06/2009)
452 REPLY to Response to Motion re 442 MOTION to Stay re 430 Order, 362 Order on Motion for Protective Order MOTION to Stay re 430 Order, 362 Order on Motion for Protective Order MOTION to Stay re 430 Order, 362 Order on Motion for Protective Order filed by Andrew Agwunobi. (Martin, Paul) (Entered: 01/06/2009)
453 TRANSCRIPT of Deposition of Linda Merrell held on 11/22/08. Court Reporter: Joseph Altimari, Phone: 954−467−8204 x1020. 1−134 pages. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 1/28/2009. Redacted Transcript Deadline set for 2/9/2009. Release of Transcript Restriction set for 4/7/2009. (Attachments: # 1 Designation Access Form)(hh) (Entered: 01/07/2009)
454 ORDER denying 439 Motion for Reconsideration. Signed by Magistrate Judge Chris M. McAliley on 1/7/09. (lc2) (Entered: 01/07/2009)
455 ORDER denying 442 Motion to Stay pending appeal and Dr. Agwunobi's request for a protedtive order is similarly DENIED.. Signed by Judge Adalberto Jordan on 1/8/2009. (cqs) (Entered: 01/08/2009)
456 Defendant's MOTION for Leave to File Excess Pages in Response to Motion to Compel by Secretary of Florida Department of Children & Family Services. (Martin, Paul) (Entered: 01/12/2009)
457 RESPONSE to Motion re 441 Plaintiff's MOTION to Compel Defendant to Produce Documents from the DCF Privilege Log filed by Secretary of Florida Department of Children & Family Services. Replies due by 1/23/2009. (Attachments: # 1 Exhibit Composite Including Affidavit of Paul J. Martin)(Martin, Paul) (Entered: 01/12/2009)
458 ORDER granting 456 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 1/13/2009. (lc2) (Entered: 01/13/2009)
459 MOTION for Extension of Time to Complete Discovery Related to Emails and Attachments Produced by Defendants After November 1, 2008 by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Goldfarb, Carl)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 41 of 108

01/14/2009
01/14/2009
01/15/2009 01/15/2009 01/20/2009 01/20/2009
01/20/2009 01/20/2009
01/21/2009 01/23/2009 01/27/2009 01/28/2009 01/29/2009 01/29/2009 01/30/2009
01/30/2009

(Entered: 01/14/2009)
460 Plaintiff's MOTION for Leave to File Excess Pages in Plaintiffs' Motion to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 01/14/2009)
461 Plaintiff's MOTION to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log by All Plaintiffs. Responses due by 2/2/2009 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Goldfarb, Carl) (Entered: 01/14/2009)
462 Joint MOTION for Extension of Time to File Expert Rebuttal Disclosures and Complete Expert Discovery by All Plaintiffs. (Goldfarb, Carl) (Entered: 01/15/2009)
463 ORDER granting 460 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 1/15/09. (lc2) (Entered: 01/15/2009)
464 ORDER granting 462 Joint Motion for Enlargement of Time. Signed by Judge Adalberto Jordan on 1/20/2009. (tas) (Entered: 01/20/2009)
465 Plaintiff's MOTION for Leave to File Excess Pages in Plaintiffs' Motion to Compel Defendant to Produce Documents from the DOH Privilege Log by All Plaintiffs. (Attachments: # 1 Plaintiffs' Motion to Compel Defendant to Produce Documents from the DOH Privilege Log, # 2 Exhibit 1 − Part 1, # 3 Exhibit 1 − Part 2, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Text of Proposed Order)(Goldfarb, Carl) (Entered: 01/20/2009)
466 REPLY to Response to Motion re 456 Defendant's MOTION for Leave to File Excess Pages in Response to Motion to Compel Defendant to Produce Documents from the DCF Privilege Log filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 01/20/2009)
467 ORDER Requiring Expedited Response re 459 MOTION for Extension of Time to Complete Discovery Related to Emails and Attachments Produced by Defendants After November 1, 2008 filed by All Plaintiffs, ( Response Deadline 1/27/2009.). Signed by Magistrate Judge Chris M. McAliley on 1/20/2009. (cqs) (Entered: 01/21/2009)
468 ORDER from USCA the petition for writ of mandamus is DENIED, as Petitioner has not demonstrated a clear and indisputable right to mandamus relief as to Andrew Agwunobi USCA #08−17117−E. Signed by USCA on 1/14/2009. (hh) (Entered: 01/21/2009)
469 PAPERLESS ORDER granting 465 Plaintiff's Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 1/23/09. (lc2) (Entered: 01/23/2009)
470 RESPONSE in Opposition re 459 MOTION for Extension of Time to Complete Discovery Related to Emails and Attachments Produced by Defendants After November 1, 2008 filed by All Defendants. (Landon, Robert) (Entered: 01/27/2009)
471 Unopposed MOTION for Extension of Time to File a Motion to Compel Documents from AHCA's Revised Privilege Log of December 29, 2008 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 01/28/2009)
472 NOTICE by All Plaintiffs re 375 Response to Motion, Notice of Filing Corrected Exhibit (Attachments: # 1 Exhibit Corrected Exhibit Six)(Goldfarb, Carl) (Entered: 01/29/2009)
473 ORDER granting 471 Motion for Extension of Time to File a Motion to Compel Documents from AHCA's Revised Privilege Log of December 29, 2008. Signed by Magistrate Judge Chris M. McAliley on 1/29/09. (lc2) (Entered: 01/29/2009)
474 Minute Entry for proceedings held before Judge Adalberto Jordan: Motion Hearing held on 1/30/2009 re 302 Defendant's MOTION for Partial Summary Judgment filed by Secretary of Florida Department of Children & Family Services. Court Reporter: Dawn Whitmarsh, Phone: 305−523−5598 (mc1) (Entered: 01/30/2009)
475 Unopposed MOTION for Leave to File Excess Pages in Plaintiffs' Motion to Compel Defendant to Produce Documents from the December 29, 2008 Supplemental AHCA Privilege Log by All Plaintiffs. (Attachments: # 1 Plaintiffs' Motion to Compel Defendant to Produce Documents from the December 29, 2008 Supplemental AHCA

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 42 of 108

02/02/2009 02/02/2009
02/02/2009 02/02/2009
02/02/2009 02/02/2009
02/03/2009 02/04/2009 02/05/2009 02/06/2009 02/06/2009
02/09/2009 02/10/2009 02/10/2009 02/10/2009
02/11/2009

Privilege Log, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Text of Proposed Order)(Goldfarb, Carl) (Entered: 01/30/2009)
476 ORDER granting 285 Motion to Dismiss count III. Signed by Judge Adalberto Jordan on 1/30/2009. (tb) (Entered: 02/02/2009)
477 NOTICE by All Plaintiffs, All Defendants re 281 MOTION to Certify Class of Filing Deposition Excerpts (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Daniel, Stephanie) (Entered: 02/02/2009)
478 ORDER granting 475 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 2/2/2009. (tb) (Entered: 02/02/2009)
479 REPLY to Response to Motion re 459 MOTION for Extension of Time to Complete Discovery Related to Emails and Attachments Produced by Defendants After November 1, 2008 filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 02/02/2009)
480 Defendant's MOTION for Leave to File Excess Pages to File a Response to Plaintiffs' Motion to Compel Defendant to Produce Documents from the AHCA Privilege Log by Holly Benson. (Landon, Robert) (Entered: 02/02/2009)
481 RESPONSE to Motion re 461 Plaintiff's MOTION to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log filed by Holly Benson. Replies due by 2/12/2009. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) (Entered: 02/02/2009)
482 ORDER granting 480 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 2/3/09. (lc2) (Entered: 02/03/2009)
483 Plaintiff's MOTION for Leave to File Two Reply Briefs Related to Discovery Disputes by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Goldfarb, Carl) (Entered: 02/04/2009)
484 RESPONSE to Motion re 483 Plaintiff's MOTION for Leave to File Two Reply Briefs Related to Discovery Disputes filed by All Defendants. Replies due by 2/17/2009. (Giurato, Gerald) (Entered: 02/05/2009)
485 Unopposed MOTION for Leave to File Excess Pages to File a Response to Plaintiffs' Motion to Compel Defendant to Produce Documents from the DOH Privilege Log by Secretary of the Florida Department of Health. (Giurato, Gerald) (Entered: 02/06/2009)
486 RESPONSE to Motion re 465 Plaintiff's MOTION for Leave to File Excess Pages in Plaintiffs' Motion to Compel Defendant to Produce Documents from the DOH Privilege Log filed by Secretary of the Florida Department of Health. Replies due by 2/17/2009. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giurato, Gerald) (Entered: 02/06/2009)
487 ORDER granting 485 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 2/9/09. (lc2) (Entered: 02/09/2009)
488 ORDER granting 483 Motion for Leave to File Two Reply Briefs Related to Discovery Disputes. Signed by Magistrate Judge Chris M. McAliley on 2/10/09. (lc2) (Entered: 02/10/2009)
489 ORDER granting in part and denying in part 459 Motion for Extension of Time to Complete Discovery, the three depositions must be completed by 2/27/2009. Signed by Judge Adalberto Jordan on 2/10/2009. (cqs) (Entered: 02/10/2009)
490 MOTION to Compel Plaintiffs' Payment of Copying Costs by All Defendants. Responses due by 3/2/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Landon, Robert) (Entered: 02/10/2009)
491 MOTION to Expedite Response and Compel Production of Documents Responsive to Defendants' Subpoena to Dr. Louis St. Petery by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6 part 1, #

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02/12/2009 02/12/2009
02/12/2009 02/13/2009 02/13/2009
02/13/2009 02/15/2009 02/17/2009 02/17/2009
02/17/2009
02/17/2009 02/18/2009 02/18/2009 02/18/2009

7 Exhibit 6 part 2, # 8 Exhibit 6 part 3, # 9 Exhibit 6 part 4, # 10 Exhibit 6 part 5, # 11 Exhibit 6 part 6, # 12 Exhibit 7)(Giurato, Gerald) (Entered: 02/11/2009)
492 ORDER requiring response to discovery motion no later than Wednesday, February 25, 2009 re 490 MOTION to Compel Plaintiffs' Payment of Copying Costs filed by All Defendants. Signed by Magistrate Judge Chris M. McAliley on 2/11/2009. (tb) (Entered: 02/12/2009)
493 REPLY to Response to Motion re 461 Plaintiff's MOTION to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − Plaintiffs' Reply in Support of Motion to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log, # 3 Exhibit 8, # 4 Exhibit B)(Goldfarb, Carl) (Entered: 02/12/2009)
497 ORDER re 491 Motion to Expedite and Compel. Signed by Magistrate Judge Chris M. McAliley on 2/12/2009. (ail) (Entered: 02/13/2009)
494 NOTICE of Striking 493 Reply to Response to Motion, filed by All Plaintiffs by All Plaintiffs (Goldfarb, Carl) (Entered: 02/13/2009)
495 Plaintiff's MOTION for Leave to File Reply Brief in Support of Motion to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log by All Plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Exhibit A − Plaintiffs' Reply in Support of Motion to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log, # 3 Exhibit 8, # 4 Exhibit B)(Goldfarb, Carl) (Entered: 02/13/2009)
496 PAPERLESS ORDER granting 495 Motion for Leave to File Reply Brief in Support of Motion to Compel (DE 461). Signed by Magistrate Judge Chris M. McAliley on 2/13/09. (lc2) (Entered: 02/13/2009)
498 Plaintiff's MOTION for clarification 489 Order on Motion for Extension of Time to Complete Discovery by All Plaintiffs. Responses due by 3/5/2009 (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 02/15/2009)
499 Defendant's MOTION for Leave to File Excess Pages to File a Response to Plaintiffs' Motion to Compel Defendant to Produce Documents from the December 29, 2008 AHCA Privilege Log by Holly Benson. (Giurato, Gerald) (Entered: 02/17/2009)
500 RESPONSE to Motion re 475 Unopposed MOTION for Leave to File Excess Pages in Plaintiffs' Motion to Compel Defendant to Produce Documents from the December 29, 2008 Supplemental AHCA Privilege Log Defendant's Response to Plaintiffs' Motion to Compel Defendant to Produce Documents from the December 29, 2008 Supplemental AHCA Privilege Log filed by Holly Benson. Replies due by 2/27/2009. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Giurato, Gerald) (Entered: 02/17/2009)
501 Plaintiff's MOTION for Leave to File Reply Brief in Support of Motion to Compel Defendant to Produce Documents from the DOH Privilege Log by All Plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − Plaintiffs' Reply in Support of Motion to Compel Defendant to Produce Documents from the DOH Privilege Log, # 3 Exhibit B)(Goldfarb, Carl) (Entered: 02/17/2009)
502 RESPONSE in Opposition re 498 Plaintiff's MOTION for clarification 489 Order on Motion for Extension of Time to Complete Discovery filed by All Defendants. (Landon, Robert) (Entered: 02/17/2009)
503 PAPERLESS ORDER granting 499 Motion to Exceed Page Limitation To File A Response to Plaintiffs' Motion to Compel Defendant to Produce Documents From the December 29, 2009 AHCA Privilege Log. The Response may exceed 3 pages in length. Signed by Magistrate Judge Chris M. McAliley on 2/18/09. (lc2) (Entered: 02/18/2009)
504 NOTICE by All Defendants of Filing Response to Expert Witness Document Subpoena and Continuation of Dr. Louis St. Petery Expert Witness Deposition (Giurato, Gerald) (Entered: 02/18/2009)
505 NOTICE by All Defendants re 502 Response in Opposition to Motion Notice of Re−Filing Corrected Defendants' Response in Opposition to Motion for Clarification (Landon, Robert) (Entered: 02/18/2009)

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02/19/2009 02/19/2009 02/20/2009 02/20/2009
02/20/2009 02/20/2009
02/20/2009 02/23/2009 02/23/2009 02/25/2009 02/27/2009 02/27/2009
02/28/2009 03/02/2009 03/02/2009 03/02/2009 03/02/2009

506 REPLY to Response to Motion re 498 Plaintiff's MOTION for clarification 489 Order on Motion for Extension of Time to Complete Discovery filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 02/19/2009)
507 Defendant's EMERGENCY MOTION for Protective Order Barring The Depositions of Rule 30(b)(6) Witness, Fran Nieves, and Julie Kurlfink by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) text Modified on 2/20/2009 (jc). (Entered: 02/19/2009)
508 ORDER granting 501 Motion for Leave to File Reply Brief in Support of Motion to Compel Defendant to Produce Documents from the DOH Privilege Log. Signed by Magistrate Judge Chris M. McAliley on 2/20/09. (lc2) (Entered: 02/20/2009)
509 ORDER Setting Hearing on Motion 507 Defendant's MOTION for Protective Order Barring The Depositions of Rule 30(b)(6) Witness, Fran Nieves, and Julie Kurlfink : Motion Hearing set for 2/23/2009 11:30 AM before Magistrate Judge Chris M. McAliley. Please see Order for details. Signed by Magistrate Judge Chris M. McAliley on 2/20/2009. (lc2) (Entered: 02/20/2009)
510 ORDER Cancelling Discovery Conference. Signed by Magistrate Judge Chris M. McAliley on 2/20/09. (lc2) (Entered: 02/20/2009)
511 Clerks Notice of Docket Correction and Instruction to Filer re 507 Defendant's EMERGENCY MOTION for Protective Order filed by All Defendants. Error − Emergency document filed electronically; Correction − Docket text modified by Clerk. Instruction to filer − In the future, please file Emergency matters conventionally in accordance with CM/ECF Administrative Procedures. (jc) (Entered: 02/20/2009)
512 RESPONSE in Opposition re 507 Defendant's MOTION for Protective Order Barring The Depositions of Rule 30(b)(6) Witness, Fran Nieves, and Julie Kurlfink filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 02/20/2009)
513 RESPONSE in Support re 507 Defendant's MOTION for Protective Order Barring The Depositions of Rule 30(b)(6) Witness, Fran Nieves, and Julie Kurlfink filed by All Defendants. (Frohock, Christina) (Entered: 02/23/2009)
514 ORDER denying 498 Motion for Clarification; granting in part 507 Motion for Protective Order. Signed by Judge Adalberto Jordan on 2/23/2009. (ail) (Entered: 02/24/2009)
515 RESPONSE in Opposition re 490 MOTION to Compel Plaintiffs' Payment of Copying Costs filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 02/25/2009)
516 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Telephone Conference held on 2/27/2009. (Tape #09H−14−622.) (nf) (Entered: 02/27/2009)
517 Plaintiff's MOTION for Leave to File Reply Brief in Support of Motion to Compel Defendant to Produce Documents from the December 29, 2008 Supplemental AHCA Privilege Log by All Plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A− Plaintiffs' Reply in Support of Motion to Compel Defendant to Produce Documents from the December 29, 2008 Supplemental AHCA Privilege Log)(Goldfarb, Carl) (Entered: 02/27/2009)
518 MOTION for Extension of Time to Mediate by All Defendants. (Daniel, Stephanie) (Entered: 02/28/2009)
519 RESPONSE in Support re 461 Plaintiff's MOTION to Compel Defendant to Produce Documents from the Revised AHCA Privilege Log filed by All Plaintiffs. (Attachments: # 1 Exhibit 8)(Goldfarb, Carl) (Entered: 03/02/2009)
520 RESPONSE in Support re 465 Plaintiff's MOTION for Leave to File Excess Pages in Plaintiffs' Motion to Compel Defendant to Produce Documents from the DOH Privilege Log filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 03/02/2009)
521 ORDER granting 517 Motion for Leave to File Reply Brief In Support of Motion to Compel. Signed by Magistrate Judge Chris M. McAliley on 3/2/2009. ** Exhibit A of Docket Entry 517 REPLY Brief Deemed Filed(ail) (Entered: 03/02/2009)
522 RESPONSE in Opposition re 491 MOTION to Expedite Response and Compel Production of Documents Responsive to Defendants' Subpoena to Dr. Louis St. Petery

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03/04/2009 03/04/2009 03/04/2009 03/05/2009 03/06/2009 03/06/2009
03/06/2009 03/10/2009 03/10/2009
03/10/2009 03/11/2009
03/12/2009 03/12/2009

filed by All Plaintiffs. (Attachments: # 1 Exhibit St. Petery Declaration)(Goldfarb, Carl) (Entered: 03/02/2009)
523 UNOPPOSED Motion For Leave To File Reply Brief in Support of Motion to Compel Plaintiffs' Payment of Copying Costs filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) Event & Text Modified on 3/6/2009 (ail). (Entered: 03/04/2009)
524 RESPONSE to Motion re 518 MOTION for Extension of Time to Mediate filed by All Plaintiffs. Replies due by 3/16/2009. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 03/04/2009)
525 ORDER granting 518 Motion for Extension of Time to Mediate; Mediation Deadline 5/12/2009.. Signed by Judge Adalberto Jordan on 3/3/2009. (ail) (Entered: 03/05/2009)
528 ORDER granting 523 Motion for Leave to File Reply Brief in Support of Motion to Compel Plaintiffs' Payment of Copying Costs. Signed by Magistrate Judge Chris M. McAliley on 3/5/2009. (ail) (Entered: 03/06/2009)
526 NOTICE by All Plaintiffs of Substitution of Counsel (Boruchow, Sashi) (Entered: 03/06/2009)
527 Clerks Notice of Docket Correction and Instruction to Filer re 523 Reply to Response to Motion, filed by All Defendants. Error − Wrong Event Selected − Document is a Motion; Correction − Converted by Clerk. Instruction to Filer − In the future, please select the proper event. It is not necessary to refile this document. (ail) (Entered: 03/06/2009)
529 REPLY Brief In Support of 490 MOTION to Compel Plaintiffs' Payment of Copying Costs **Deemed Filed pursuant to DE 528 Order**. (ail) (Entered: 03/06/2009)
530 Unopposed MOTION for Leave to File Excess Pages for Defendants' Motion to Compel Discovery by All Defendants. (Whitney, Enoch) (Entered: 03/10/2009)
531 Defendant's MOTION to Compel Discovery of Documents In Support of Expert Opinion of Joan C. Alker or, in the alternative, Motion in Limine, Defendant's MOTION for Discovery by All Defendants. Responses due by 3/27/2009 (Attachments: # 1 Exhibit Expert Witness Report of Joan C. Alker, # 2 Exhibit Emails between Defendants' Counsel and Plaintiffs' Counsel, # 3 Exhibit Emails between Plaintiffs' Counsel and Defendants' Counsel, # 4 Exhibit Emails between Plaintiffs' Counsel and Defendants' Counsel, # 5 Exhibit Emails between Plaintiffs' Counsel and Defendants' Counsel, # 6 Exhibit Emails between Plaintiffs' Counsel and Defendants' Counsel, # 7 Exhibit Expert Witness Joan Alker's Response to Defendants' Requests for Production of Documents, # 8 Exhibit Excerpts from Deposition of Expert Witness Joan C. Alker, # 9 Text of Proposed Order Proposed Order Granting Motion to Compel Discovery)(Whitney, Enoch) (Entered: 03/10/2009)
532 MOTION in Limine by All Defendants. (see docket entry 531 for image) (tas) (Entered: 03/11/2009)
533 Clerks Notice of Docket Correction and Instruction to Filer re 531 Defendant's MOTION to Compel Discovery of Documents In Support of Expert Opinion of Joan C. Alker or, in the alternative, Motion in LimineDefendant's MOTION for Discovery filed by All Defendants, Error − Motion with Multiple Reliefs Filed as One Relief; Correction − Additional relief(s) 532 MOTION in Limine filed by All Defendants docketed by Clerk. Instruction to filer − In the future, please select all applicable reliefs. It is not necessary to refile this document. (tas) (Entered: 03/11/2009)
534 Corrected MOTION for Leave to File Excess Pages FOR DEFENDANTS MOTION TO COMPEL, OR IN THE ALTERNATIVE, MOTION IN LIMINE by All Defendants. (Daniel, Stephanie) (Entered: 03/12/2009)
535 Unopposed MOTION for Leave to File Reply in Support of Motion to Compel Production of Documents Responsive to Defendants' Subpoena to Dr. Louis St. Petery by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giurato, Gerald) (Entered: 03/12/2009)

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03/12/2009 03/13/2009 03/13/2009 03/16/2009 03/18/2009 03/19/2009 03/20/2009 03/20/2009 03/24/2009 03/27/2009
04/02/2009 04/03/2009
04/03/2009 04/03/2009 04/03/2009 04/06/2009

537 ORDER Requiring Response to 531 Defendant's MOTION to Compel Discovery of Documents In Support of Expert Opinion of Joan C. Alker or, in the alternative, Motion in LimineDefendant's MOTION for Discovery filed by All Defendants. Signed by Magistrate Judge Chris M. McAliley on 3/12/2009. (ail) (Entered: 03/13/2009)
536 ORDER granting 534 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Chris M. McAliley on 3/12/09. (lc2) (Entered: 03/13/2009)
539 ORDER granting 535 MOTION for Leave to File Reply in Support of Motion to Compel Production of Documents Responsive to Defendants' Subpoena to Dr. Louis St. Petery. Signed by Judge Adalberto Jordan on 3/13/2009. (ail) (Entered: 03/16/2009)
538 Unopposed MOTION for Extension of Time to File Unopposed First Motion for Extension of Time on Summary Judgment Motions and Related Briefing by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) (Entered: 03/16/2009)
540 ORDER granting 538 Motion for Extension of Time to File. Signed by Judge Adalberto Jordan on 3/18/2009. (ail) (Entered: 03/19/2009)
541 ORDER granting in part and denying in part 302 Motion for Partial Summary Judgment; granting in part and denying in part 336 Motion for Partial Summary Judgment *SEE ORDER FOR DETAILS*. Signed by Judge Adalberto Jordan on 3/19/2009. (ail) (Entered: 03/20/2009)
542 Notice of Supplemental Authority Additional by All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giurato, Gerald) (Entered: 03/20/2009)
543 Plaintiff's MOTION to Strike Part of Catherine Sreckovich's Expert Analysis by All Plaintiffs. Responses due by 4/6/2009 (Attachments: # 1 Exhibit A: Deposition, # 2 Exhibit B: New Tables)(Goldfarb, Carl) (Entered: 03/20/2009)
544 MOTION to Withdraw as Attorney by Paul J. Martin. by All Defendants. Responses due by 4/10/2009 (Daniel, Stephanie) (Entered: 03/24/2009)
545 RESPONSE to Motion re 531 Defendant's MOTION to Compel Discovery of Documents In Support of Expert Opinion of Joan C. Alker or, in the alternative, Motion in LimineDefendant's MOTION for Discovery filed by All Plaintiffs. Replies due by 4/6/2009. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Goldfarb, Carl) (Entered: 03/27/2009)
546 ORDER granting 544 Motion to Withdraw as Attorney. Attorney Paul Jeffrey Martin terminated. Signed by Judge Adalberto Jordan on 4/2/2009. (tas) (Entered: 04/03/2009)
547 APPENDIX to Defendants' Motion for Final Summary Judgment by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB)(Landon, Robert) (Entered: 04/03/2009)
548 Unopposed MOTION for Leave to File Excess Pages Limitation Regarding Defendants' Motion for Final Summary Judgment and Statement of Undisputed Facts by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Landon, Robert) (Entered: 04/03/2009)
549 Defendant's MOTION for Hearing re 548 Unopposed MOTION for Leave to File Excess Pages Limitation Regarding Defendants' Motion for Final Summary Judgment and Statement of Undisputed Facts by All Defendants. (Landon, Robert) (Entered: 04/03/2009)
550 Agreed MOTION for Leave to File Confidential Documents Under Seal by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 04/03/2009)
551 RESPONSE in Opposition re 543 Plaintiff's MOTION to Strike Part of Catherine Sreckovich's Expert Analysis filed by All Defendants. (Attachments: # 1 Exhibit A − Declaration of C. Sreckovich)(Daniel, Stephanie) (Entered: 04/06/2009)

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04/06/2009
04/06/2009 04/06/2009 04/07/2009 04/08/2009 04/13/2009 04/13/2009 04/13/2009 04/13/2009 04/13/2009 04/13/2009 04/13/2009 04/13/2009 04/14/2009 04/14/2009 04/16/2009 04/17/2009 04/21/2009
04/23/2009

552 MOTION for Reconsideration re 541 Order on Motion for Partial Summary Judgment, by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health. (Attachments: # 1 Appendix, # 2 Exhibit A, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Daniel, Stephanie) (Entered: 04/06/2009)
553 NOTICE by All Defendants Notice of Service of Executed Updated Declaration of Linda Husbands (Landon, Robert) (Entered: 04/06/2009)
554 Sealed Document. (asl) (Entered: 04/06/2009)
555 Sealed Document. (asl) (Entered: 04/07/2009)
556 Unopposed MOTION for Extension of Time to File Joint Pretrial Stipulation by All Defendants. (Attachments: # 1 Text of Proposed Order)(Giurato, Gerald) (Entered: 04/08/2009)
557 MOTION for Protective Order and Enlargement of Time to Complete Depositions on Trial Exhibit Authentication/Admissibility by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) (Entered: 04/13/2009)
559 ORDER granting 548 Unopposed Motion to Exceed Page Limitations Regarding their Motion for Final Summary Judgment and Statement of Undisputed Facts. Signed by Judge Adalberto Jordan on 4/13/2009. (tas) (Entered: 04/14/2009)
560 MOTION for Final Summary Judgment and Incorporated Memorandum of Law by All Defendants. Responses due by 4/30/2009 (see docket entry 548 , Exhibit 2 for image)(tas) (Entered: 04/14/2009)
561 STATEMENT of Undisputed Facts in Support of 560 MOTION for Summary Judgment by All Defendants. (see docket entry 548 , exhibit 3 for image) (tas) (Entered: 04/14/2009)
562 ORDER granting 550 Agreed Motion to File Confidential Documents Under Seal. Signed by Judge Adalberto Jordan on 4/13/2009. (tas) (Entered: 04/14/2009)
563 ORDER granting 556 Motion for Extension of Time. Signed by Judge Adalberto Jordan on 4/13/2009. (tas) (Entered: 04/14/2009)
565 MOTION for Limited Appearance of Paul R. Verkuil, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings, Filing Fee $75.00, Receipt #999031. (cw) (Entered: 04/14/2009)
566 ORDER Granting Defendant's Motion to file Excerpts of the Plaintiffs' Medical Records under seal de 55 is GRANTED. This Order shall be filed in the public record. Signed by Judge Adalberto Jordan on 4/13/2009. (nc) (Entered: 04/15/2009)
558 RESPONSE to Motion re 557 MOTION for Protective Order and Enlargement of Time to Complete Depositions on Trial Exhibit Authentication/Admissibility filed by All Plaintiffs. Replies due by 4/24/2009. (Goldfarb, Carl) (Entered: 04/14/2009)
564 ORDER granting 557 Motion for Protective Order. Please see order for details. Signed by Magistrate Judge Chris M. McAliley on 4/14/09. (lc2) (Entered: 04/14/2009)
567 RESPONSE in Support re 543 Plaintiff's MOTION to Strike Part of Catherine Sreckovich's Expert Analysis filed by All Plaintiffs. (Attachments: # 1 Exhibit A: Flint Report, # 2 Exhibit B: Sreckovich Deposition)(Goldfarb, Carl) (Entered: 04/16/2009)
568 ORDER granting 565 Amended Motion for Limited Appearance of Paul R. Verkuil, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings. Signed by Judge Adalberto Jordan on 4/16/2009. (tas) (Entered: 04/17/2009)
569 Plaintiff's MOTION for Extension of Time to File Response as to 552 MOTION for Reconsideration re 541 Order on Motion for Partial Summary Judgment, MOTION for Reconsideration re 541 Order on Motion for Partial Summary Judgment, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 04/21/2009)
570 NOTICE by All Defendants of Filing Redacted Exhibits (Attachments: # 1 Exhibit E, # 2 Exhibit H, # 3 Exhibit I Part 1, # 4 Exhibit I Part 2a, # 5 Exhibit I Part 2b, # 6 Errata I

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04/24/2009 04/24/2009
04/27/2009 04/27/2009 04/27/2009 04/28/2009 04/29/2009

Part 3, # 7 Exhibit I Part 4, # 8 Exhibit I Part 5, # 9 Exhibit I Part 6, # 10 Exhibit I Part 7, # 11 Errata I Part 8, # 12 Exhibit I Part 9, # 13 Exhibit I Part 10, # 14 Exhibit I Part 11, # 15 Exhibit J, # 16 Exhibit K, # 17 Exhibit L, # 18 Exhibit M, # 19 Exhibit N, # 20 Exhibit O Part 1, # 21 Exhibit O Part 2, # 22 Exhibit O Part 3, # 23 Exhibit O Part 4, # 24 Exhibit O Part 5, # 25 Exhibit O Part 6, # 26 Exhibit O Part 7, # 27 Exhibit O Part 8, # 28 Errata O Part 9, # 29 Exhibit O Part 10, # 30 Exhibit O Part 11, # 31 Exhibit O Part 12, # 32 Exhibit O Part 13, # 33 Exhibit P Part 1, # 34 Exhibit P Part 2, # 35 Exhibit P Part 3, # 36 Exhibit P Part 4, # 37 Exhibit Q, # 38 Exhibit R, # 39 Exhibit S, # 40 Exhibit T, # 41 Exhibit U Part 1, # 42 Exhibit U Part 2, # 43 Exhibit V Part 1, # 44 Exhibit V Part 2, # 45 Exhibit V Part 3, # 46 Exhibit W Part 1, # 47 Exhibit W Part 2, # 48 Exhibit W Part 3, # 49 Exhibit X, # 50 Exhibit Y, # 51 Errata Z Part 1, # 52 Exhibit Z Part 2, # 53 Exhibit AA)(Giurato, Gerald) (Entered: 04/23/2009)
571 NOTICE by All Defendants Defendants' Notice to Clerk to Restrict Access to Electronically Filed Document (Giurato, Gerald) (Entered: 04/24/2009)
572 RESPONSE in Opposition re 548 Unopposed MOTION for Leave to File Excess Pages Limitation Regarding Defendants' Motion for Final Summary Judgment and Statement of Undisputed Facts filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A: Plaintiffs' Response in Opposition to Defendants' Motion for Final Summary Judgment, # 3 Appendix A: Plaintiffs' Response to Defendants' Statement of Undisputed Facts, # 4 Appendix B: Declaration of Carl E. Goldfarb in Connection with Plaintiffs' Opposition to Defendants' Motion for Summary Judgment, # 5 Exhibit 1, # 6 Exhibit 2, # 7 Exhibit 3, # 8 Exhibit 3A, # 9 Exhibit 3B, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7, # 14 Exhibit 8, # 15 Exhibit 9, # 16 Exhibit 10, # 17 Exhibit 11, # 18 Exhibit 12, # 19 Exhibit 13, # 20 Exhibit 14, # 21 Exhibit 15, # 22 Exhibit 16, # 23 Exhibit 17, # 24 Exhibit 18, # 25 Exhibit 19, # 26 Exhibit 20, # 27 Exhibit 21, # 28 Exhibit 22, # 29 Exhibit 23, # 30 Exhibit 24, # 31 Exhibit 25, # 32 Exhibit 26, # 33 Exhibit 27, # 34 Exhibit 28, # 35 Exhibit 29−30, # 36 Exhibit 31, # 37 Exhibit 32, # 38 Exhibit 33, # 39 Exhibit 34, # 40 Exhibit 35, # 41 Exhibit 36, # 42 Exhibit 37, # 43 Exhibit 38, # 44 Exhibit 39, # 45 Exhibit 40, # 46 Exhibit 41−42, # 47 Exhibit 43, # 48 Exhibit 44, # 49 Exhibit 45, # 50 Exhibit 46−58, # 51 Exhibit 59, # 52 Exhibit 60, # 53 Exhibit 61, # 54 Exhibit 62, # 55 Exhibit 63−66, # 56 Exhibit 67, # 57 Exhibit 68, # 58 Exhibit 69−71, # 59 Exhibit 72, # 60 Exhibit 73, # 61 Exhibit 74, # 62 Exhibit 75, # 63 Exhibit 76, # 64 Exhibit 77, # 65 Exhibit 78, # 66 Exhibit 79, # 67 Exhibit 80, # 68 Exhibit 81, # 69 Exhibit 82, # 70 Exhibit 83, # 71 Exhibit 84, # 72 Exhibit 85, # 73 Exhibit 86, # 74 Exhibit 87, # 75 Exhibit 88, # 76 Exhibit 89, # 77 Exhibit 90, # 78 Exhibit 91, # 79 Exhibit 92, # 80 Exhibit 93, # 81 Exhibit 94, # 82 Exhibit 95, # 83 Exhibit 96, # 84 Exhibit 97, # 85 Exhibit 98, # 86 Exhibit 99, # 87 Exhibit 100, # 88 Exhibit 101, # 89 Exhibit 102, # 90 Exhibit 103, # 91 Exhibit 104, # 92 Exhibit 105, # 93 Exhibit 106, # 94 Exhibit 107, # 95 Exhibit 108−117, # 96 Exhibit 118, # 97 Exhibit 119, # 98 Exhibit 120, # 99 Exhibit 121, # 100 Exhibit 122, # 101 Exhibit 123, # 102 Exhibit 124, # 103 Exhibit 125, # 104 Exhibit 126, # 105 Exhibit 127, # 106 Exhibit 128, # 107 Exhibit 129, # 108 Exhibit 130, # 109 Exhibit 131, # 110 Exhibit 132, # 111 Exhibit 133, # 112 Exhibit 134)(Goldfarb, Carl) (Entered: 04/24/2009)
573 Sealed Document. (igo) UNSEALED see DE 583 Modified on 5/6/2009 (ra1). (Entered: 04/28/2009)
574 ORDER on Plaintiffs 569 Unopposed Motion for Extension of Time to Respond to Defendant's Motion for Reconsideration of Order on Motions for Partial Summary Judgment. Signed by Judge Adalberto Jordan on 4/27/2009. (tas) (Entered: 04/28/2009)
583 UNSEALED MOTION to Seal Documents Being Submitted as Evidence in Support of Plaintiffs' Opposition to Defendants' Motion For Final Summary Judgment by All Plaintiffs. (previously filed as 573 sealed document) (ra1) (Entered: 05/06/2009)
575 ORDER Granting Plaintiff's Motion for Leave to Exceed Page Limitations for Response in Opposition to Defendant's Motion for Final Summary Judgment. Signed by Judge Adalberto Jordan on 4/28/2009. (tas) (Entered: 04/29/2009)
576 Notification of Ninety Days Expiring by All Plaintiffs re 281 MOTION to Certify Class filed by All Plaintiffs (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 04/29/2009)

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04/30/2009
04/30/2009 05/04/2009
05/04/2009
05/05/2009
05/06/2009
05/07/2009 05/07/2009 05/08/2009 05/08/2009 05/08/2009 05/08/2009 05/08/2009 05/13/2009 05/13/2009

577 RESPONSE in Opposition re 552 MOTION for Reconsideration re 541 Order on Motion for Partial Summary Judgment, MOTION for Reconsideration re 541 Order on Motion for Partial Summary Judgment, filed by All Plaintiffs. (Attachments: # 1 Exhibit 1: Eiseman Dec., # 2 Exhibit 2: Strowd Depo, # 3 Exhibit 3: Production Letter, # 4 Exhibit 4: Hamilton Depo, # 5 Exhibit 5: Bucciareli Depo)(Goldfarb, Carl) (Entered: 04/30/2009)
578 Sealed Document. (asl) (Entered: 04/30/2009)
581 ORDER Granting Unopposed Motion to Seal Documents Being Submitted in Support of Plaintiffs' opposition to Defendants' Motion for Reconsideration of Order on Motions for Summary Judgment. Signed by Judge Adalberto Jordan on 5/4/2009. (ra1) (Entered: 05/06/2009)
582 ORDER Granting Motion to Seal Certain Documents Being Submitted as Evidence in Support of Plaintiffs' Opposition to Defendants' Motion For Final Summary Judgment and Directing Clerk to Unseal 573 Sealed Document. Signed by Judge Adalberto Jordan on 5/4/2009. (ra1) (Entered: 05/06/2009)
579 Unopposed MOTION for Extension of Time to File Reply in Further Support of Defendants' 560 Motion for Final Summary Judgment by All Defendants. (Attachments: # 1 Text of Proposed Order)(Giurato, Gerald) Modified link on 5/6/2009 (tas). (Entered: 05/05/2009)
580 Clerks Notice of Docket Correction and Instruction to Filer re 579 Unopposed MOTION for Extension of Time to File Reply in Further Support of Defendants' 560 Motion for Final Summary Judgment filed by All Defendants. Error − Incorrect Document Link/No Link; Correction − Document relinked properly by Clerk. Instruction to filer − In the future, please link the document to the proper entry. It is not necessary to refile this document. (tas) (Entered: 05/06/2009)
584 Joint MOTION for Extension of Time to File Pre−Trial Stipulation by All Plaintiffs. (Goldfarb, Carl) (Entered: 05/07/2009)
585 Unopposed MOTION for Extension of Time to File Reply as to 577 Response in Opposition to Motion, by All Defendants. (Daniel, Stephanie) (Entered: 05/07/2009)
586 Unopposed MOTION to Strike Docket Entry 570−47 by All Defendants. Responses due by 5/26/2009 (Attachments: # 1 Text of Proposed Order)(Giurato, Gerald) (Entered: 05/08/2009)
587 NOTICE by All Defendants of Filing Redacted Version of Docket Entry 570−47 (Attachments: # 1 Exhibit Redacted Version of Docket Entry 570−47)(Giurato, Gerald) (Entered: 05/08/2009)
588 ORDER granting 584 Motion for Extension of Time to File parties joint pre−trial stipulation. Signed by Judge Adalberto Jordan on 5/8/2009. (tb) (Entered: 05/08/2009)
589 ORDER granting 585 Motion for Extension of Time to Respond. Signed by Judge Adalberto Jordan on 5/8/2009. (tb) (Entered: 05/08/2009)
590 ORDER granting 579 Motion for Extension of Time to Respond re 560 MOTION for Summary Judgment. Responses due by 5/15/2009. Signed by Judge Adalberto Jordan on 5/8/2009. (tas) (Entered: 05/11/2009)
591 ORDER granting 586 Motion to Strike. Signed by Judge Adalberto Jordan on 5/12/2009. (tas) (Entered: 05/13/2009)
592 NOTICE by All Plaintiffs of Filing Redacted Exhibits (Attachments: # 1 Exhibit 2, # 2 Exhibit 4, # 3 Exhibit 8, # 4 Exhibit 12, # 5 Exhibit 16, # 6 Exhibit 21, # 7 Exhibit 29, # 8 Exhibit 30, # 9 Exhibit 35, # 10 Exhibit 39, # 11 Exhibit 41, # 12 Exhibit 42, # 13 Exhibit 46, # 14 Exhibit 47, # 15 Exhibit 48, # 16 Exhibit 49, # 17 Exhibit 50, # 18 Exhibit 51, # 19 Exhibit 52, # 20 Exhibit 53, # 21 Exhibit 54, # 22 Exhibit 55, # 23 Exhibit 56, # 24 Exhibit 57, # 25 Exhibit 58, # 26 Exhibit 63, # 27 Exhibit 64, # 28 Exhibit 65, # 29 Exhibit 66, # 30 Exhibit 69, # 31 Exhibit 70, # 32 Exhibit 71, # 33 Exhibit 108, # 34 Exhibit 109, # 35 Exhibit 110, # 36 Exhibit 111, # 37 Exhibit 112, # 38 Exhibit 113, # 39 Exhibit 114, # 40 Exhibit 115, # 41 Exhibit 116, # 42 Exhibit 117)(Goldfarb, Carl) (Entered: 05/13/2009)

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05/15/2009
05/18/2009
05/19/2009 05/19/2009 05/21/2009 05/26/2009 05/29/2009 05/29/2009 05/29/2009 05/29/2009 06/01/2009 06/04/2009 06/04/2009 06/04/2009 06/05/2009
06/08/2009 06/09/2009 06/09/2009

593 Defendant's MOTION for Leave to File Excess Pages Regarding Defendants' Reply In Further Support Of Their Motion For Final Summary Judgment by All Defendants. (Attachments: # 1 Exhibit A − Proposed Order, # 2 Exhibit B − Reply in Further Support of Defendants' Motion for Final Summary Judgment)(Giurato, Gerald) (Entered: 05/15/2009)
594 REPLY to Response in Opposition to 552 MOTION for Reconsideration re 541 Order on Motion for Partial Summary Judgment, MOTION for Reconsideration re 541 Order on Motion for Partial Summary Judgment, filed by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health. (Attachments: # 1 Exhibit A)(Daniel, Stephanie) Modified text on 5/19/2009 (tas). (Entered: 05/18/2009)
595 Unopposed MOTION for Entry of Confidentiality Order by Secretary of the Florida Department of Health. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 05/19/2009)
596 REPORT of Mediation: Parties decided to recess the mediation to consider possible avenues to partial settlement of the case (ls) (Entered: 05/19/2009)
597 Second MOTION for Extension of Time to File Joint Pre−Trial Stipulation by All Defendants. (Attachments: # 1 Text of Proposed Order)(Giurato, Gerald) (Entered: 05/21/2009)
598 ORDER granting 595 Motion for Entry of Confidentiality Order. Signed by Magistrate Judge Chris M. McAliley on 5/26/09. (lc2) (Entered: 05/26/2009)
599 ORDER granting 597 Second Unopposed Motion for Enlargement of Time in Which to File the Joint Pretrial Stipulation. Signed by Judge Adalberto Jordan on 5/29/2009. (tas) (Entered: 05/29/2009)
Set/Reset Deadlines per docket entry 599 : Pretrial Stipulation due by 6/4/2009. (tas) (Entered: 05/29/2009)
600 ORDER granting 593 Unopposed Motion to Exceed Page Limitations Regarding Their Reply in Further Support of Their Motion for Final Summary Judgment. Signed by Judge Adalberto Jordan on 5/28/2009. (tas) (Entered: 06/01/2009)
601 JOINT Reply in Furhter Support of Their 560 Summary Judgment Motion by All Defendants. (filed per docket entry 600 order) (tas) (Entered: 06/01/2009)
602 Unopposed MOTION Entry of Confidentiality Order by Secretary of Florida Department of Children & Family Services. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 06/01/2009)
603 STIPULATION Filed Jointly by All Parties by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 06/04/2009)
604 JOINT PRETRIAL STIPULATION by All Plaintiffs. (Attachments: # 1 Schedule A, # 2 Schedule B, # 3 Schedule C, # 4 Schedule D)(Goldfarb, Carl) Modified on 6/8/2009 (ls). (Entered: 06/04/2009)
605 CONFIDENTIALITY ORDER granting 602 Motion. Signed by Judge Adalberto Jordan on 6/4/2009. (tb) (Entered: 06/05/2009)
606 Defendant's MOTION for a Specifically Set Trial Date re 271 Scheduling Order,,,, Order Referring Case to Mediation,,,, Order Referring Case to Magistrate Judge,,,, Terminate Motions,,, by All Defendants. (Daniel, Stephanie) Modified text on 6/8/2009 (tas). (Entered: 06/05/2009)
607 ORDER on 603 Joint Stipulation. Signed by Judge Adalberto Jordan on 6/8/2009. (tas) (Entered: 06/09/2009)
608 MOTION for Hearing Defendants' Request for Status Conference by All Defendants. (Giurato, Gerald) (Entered: 06/09/2009)
609 FINAL REPORT of Mediation Disposition: Impasse(mg) (Entered: 06/10/2009)

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06/10/2009
06/10/2009 06/12/2009 06/25/2009
06/25/2009 06/26/2009 06/29/2009 06/30/2009 07/02/2009 07/02/2009 07/06/2009 07/14/2009 07/16/2009 07/21/2009
07/22/2009
07/23/2009
07/24/2009

610 RESPONSE to Motion re 606 Defendant's MOTION re 271 Scheduling Order,,,, Order Referring Case to Mediation,,,, Order Referring Case to Magistrate Judge,,,, Terminate Motions,,,Defendant's MOTION re 271 Scheduling Order,,,, Order Referring Case to Mediation,,,, Order Referring Case to Magistrate Judge,,,, Terminate Motions,,,, 608 MOTION for Hearing Defendants' Request for Status Conference filed by All Plaintiffs. Replies due by 6/22/2009. (Goldfarb, Carl) (Entered: 06/10/2009)
611 Joint MOTION for Extension of Time to Complete Discovery to Depose Dr. Louis St. Petery by All Plaintiffs, All Defendants. (Attachments: # 1 Text of Proposed Order)(Landon, Robert) (Entered: 06/10/2009)
612 ORDER granting 611 Joint Motion for Extension of Time to Depose Dr. Louis Petery. Signed by Judge Adalberto Jordan on 6/11/2009. (tas) (Entered: 06/12/2009)
613 REPORT AND RECOMMENDATION re 281 MOTION to Certify Class. Recommending motion for class certification be granted. Objections to R&R due by 7/16/2009. Signed by Magistrate Judge Chris M. McAliley on 6/25/09. (jjz) (Entered: 06/25/2009)
614 ORDER denying as moot 291 Motion to Strike. Signed by Magistrate Judge Chris M. McAliley on 6/25/09. (jjz) (Entered: 06/25/2009)
615 MOTION Joint Stipulation on Time Frames for Deposition Designations by All Plaintiffs, All Defendants. (Daniel, Stephanie) (Entered: 06/26/2009)
616 ORDER granting 615 Joint Stipulation Regarding Designations of Deposition Testimony. Signed by Judge Adalberto Jordan on 6/29/2009. (tas) (Entered: 06/30/2009)
617 Plaintiff's MOTION to Amend/Correct Clerical Error by All Plaintiffs. Responses due by 7/20/2009 (Goldfarb, Carl) (Entered: 06/30/2009)
618 Plaintiff's MOTION for clarification Concerning Pretrial Order by All Plaintiffs. Responses due by 7/20/2009 (Goldfarb, Carl) (Entered: 07/02/2009)
619 ORDER granting 617 Motion to Amend/Correct. Signed by Magistrate Judge Chris M. McAliley on 7/2/09. (jjz) (Entered: 07/02/2009)
620 NOTICE by All Plaintiffs of Clarification Concerning Plaintiffs' Witness List (Goldfarb, Carl) (Entered: 07/06/2009)
621 ORDER granting 618 Motion for Clarification. Signed by Judge Adalberto Jordan on 7/14/2009. (vjk) (Entered: 07/15/2009)
622 OBJECTION to 613 Report and Recommendations on Plaintiffs' Motion for Class Certification by All Defendants. (Landon, Robert) (Entered: 07/16/2009)
623 RESPONSE to 613 REPORT AND RECOMMENDATIONS re 281 MOTION to Certify Class filed by All Plaintiffs Recommending motion for class certification be granted. PLAINTIFFS RESPONSE TO DEFENDANTS OBJECTIONS TO REPORT AND RECOMMENDATION REGARDING CLASS CERTIFICATION filed by All Plaintiffs. Replies due by 7/31/2009. (Goldfarb, Carl) Modified text on 7/22/2009 (tas). (Entered: 07/21/2009)
624 MOTION for Extension of Time to File /Submit Objections & Counter−Designations to Deposition Testimony Designated by Plaintiffs by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Department of Health, Holly Benson, Robert A. Butterworth, Ana Viamonte−Ros, Secretary of the Florida Agency for Health Care Administration (AHCA). (Smith, Chesterfield) (Entered: 07/22/2009)
625 MOTION for Leave to File Reply and Incorporated Reply Relating to the 613 Report and Recommendation on Plaintiffs' Motion for Class Certification by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) Modified link on 7/24/2009 (tas). (Entered: 07/23/2009)
626 Clerks Notice to Filer re 625 MOTION for Leave to File Reply and Incorporated Reply Relating to the Report and Recommendation on Plaintiffs' Motion for Class Certification. Document Not Linked; ERROR − The Filed document was not linked to the related docket entry. The correction was made by the Clerk. It is not necessary to refile this document. (tas) (Entered: 07/24/2009)

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07/27/2009 07/27/2009 07/28/2009 07/28/2009
07/28/2009 07/29/2009 07/31/2009 07/31/2009
08/04/2009 08/04/2009 08/04/2009 08/04/2009 08/10/2009 08/12/2009 08/12/2009 08/12/2009 08/14/2009 08/14/2009
08/17/2009

627 ORDER Re−Setting Calendar Call, ( Calendar Call set for 7/29/2009 10:00 AM before Judge Adalberto Jordan.). Signed by Judge Adalberto Jordan on 7/27/2009. (tas) (Entered: 07/28/2009)
628 ORDER granting 624 Motion for Extension of Time to File Objections (deadline 7/24/2009). Signed by Judge Adalberto Jordan on 7/27/2009. (cqs) (Entered: 07/28/2009)
629 ORDER granting 625 Motion for Leave to File Reply. Signed by Judge Adalberto Jordan on 7/24/2009. (cqs) (Entered: 07/28/2009)
630 First MOTION Defendants' Motion for Order Authorizing Use of Laptop Computers (Including Internet Access) at Trial, and To Allow Witnesses To Bring PDAs and Cellular Phones in the Courthouse by All Defendants. (Smith, Chesterfield) (Entered: 07/28/2009)
631 First MOTION Add Witnesses to Defendants' Trial List by All Defendants. (Smith, Chesterfield) (Entered: 07/28/2009)
632 Joint MOTION for Extension of Time to File Response to Counter−Designations and Final Objections by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 07/29/2009)
633 Notice of Supplemental Authority re 572 Response in Opposition to Motion,,,,,,,,,, by All Plaintiffs (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 07/31/2009)
634 Joint MOTION to Bring Electronic Equipment into the courtroom and to Possess and Use Trial Technology and Laptop Computers by All Plaintiffs. Responses due by 8/17/2009 (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 07/31/2009)
635 Notice of Supplemental Authority re 622 Objection to Report and Recommendations, 560 MOTION for Summary Judgment by All Defendants (Daniel, Stephanie) (Entered: 08/04/2009)
636 ORDER granting 632 Motion for Extension of Time to Respond (deadline 8/12/2009) Responses due by 8/12/2009. Signed by Judge Adalberto Jordan on 8/4/2009. (cqs) (Entered: 08/04/2009)
637 ORDER denying 552 Motion for Reconsideration. Signed by Judge Adalberto Jordan on 8/4/2009. (cqs) (Entered: 08/04/2009)
638 ORDER granting 634 Motion to Bring Electronic Equipment into the courtroom. Signed by Judge Adalberto Jordan on 8/4/2009. (cqs) (Entered: 08/05/2009)
639 ORDER granting 630 Motion Use of Laptop Computers at Trial. Signed by Judge Adalberto Jordan on 8/10/2009. (cqs) (Entered: 08/10/2009)
640 Joint MOTION for Extension of Time to File Response to Counter−Designations and Final Objections by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 08/12/2009)
641 Unopposed MOTION for Entry of Confidentiality Order by Secretary of the Florida Department of Health. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 08/12/2009)
642 ORDER Setting Status Conference: Status Conference set for 8/18/2009 03:00 PM before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 8/12/09. (jjz) (Entered: 08/12/2009)
643 ORDER granting 641 Motion for Entry of a Confidentiality Order. Signed by Magistrate Judge Chris M. McAliley on 8/14/09. (jjz) (Entered: 08/14/2009)
644 RESPONSE to Motion re 631 First MOTION Add Witnesses to Defendants' Trial List filed by All Plaintiffs. Replies due by 8/24/2009. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Goldfarb, Carl) (Entered: 08/14/2009)
645 Plaintiff's MOTION to Bring Electronic Equipment into the courtroom and to Possess and Use Trial Technology, Laptop Computers, Internet Access, and Permission to Bring

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08/17/2009
08/17/2009 08/17/2009 08/18/2009 08/19/2009 08/19/2009 08/21/2009 08/21/2009 08/21/2009 08/24/2009 08/24/2009 08/25/2009 09/01/2009 09/02/2009 09/03/2009 09/11/2009 09/11/2009

Cellular Phones and PDAs into the Courtroom by All Plaintiffs. Responses due by 9/3/2009 (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 08/17/2009)
646 NOTICE of Withdrawl by All Defendants re 531 Defendant's MOTION to Compel Discovery of Documents In Support of Expert Opinion of Joan C. Alker or, in the alternative, Motion in LimineDefendant's MOTION for Discovery, 642 Order Setting Status Conference of Withdrawal of Motion to Compel, etc. (Daniel, Stephanie) Modified text on 8/18/2009 (tas). (Entered: 08/17/2009)
647 AMENDED DOCUMENT by All Plaintiffs. Amendment to 603 Stipulation Filed Jointly by All Parties. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 08/17/2009)
648 ORDER granting 640 Motion for Extension of Time to Respond Responses due by 8/17/2009. Signed by Judge Adalberto Jordan on 8/17/2009. (cqs) (Entered: 08/18/2009)
649 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Status Conference held on 8/18/2009. (Digital NO DAR.) (Tape #09H−77−3575 78−1.) (nf) (Entered: 08/19/2009)
650 AMENDED DOCUMENT by All Plaintiffs. Amendment to 647 Amended Document Joint Stipulation. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 08/19/2009)
651 ORDER granting 645 Motion for Leave to Posses and Use Trial Technology, Laptop Computers, Internet Access, and Permission to Bring Cellular Phones and PDAS into the Courtroom. Signed by Judge Adalberto Jordan on 8/19/2009. (tas) (Entered: 08/20/2009)
653 ORDER granting 543 Motion to Strike. Signed by Judge Adalberto Jordan on 8/22/2009. (tb) (Entered: 08/24/2009)
654 ORDER denying without prejudice 490 Motion to Compel. Signed by Judge Adalberto Jordan on 8/22/2009. (tb) (Entered: 08/24/2009)
655 ORDER granting revised amended joint stipulation re 650 Amended Document filed by All Plaintiffs. Signed by Judge Adalberto Jordan on 8/21/2009. (tb) (Entered: 08/24/2009)
652 Unopposed MOTION Enlargement of Time to Serve Final Objections re 648 Order on Motion for Extension of Time to File Response/Reply/Answer by All Defendants. (Daniel, Stephanie) (Entered: 08/24/2009)
656 REPLY to Response to Motion re 631 First MOTION Add Witnesses to Defendants' Trial List filed by All Defendants. (Daniel, Stephanie) (Entered: 08/24/2009)
657 ORDER granting 652 Defendants Unopposed Motion for Enlargement of Time to File Final Objections; Final Objections due by 8/27/09. Signed by Judge Adalberto Jordan on 8/24/2009. (tas) (Entered: 08/26/2009)
658 NOTICE OF UNAVAILABILITY by All Defendants for dates of 10/8−15/09; 12/14−18/09 Notice of Vacations (Landon, Robert) (Entered: 09/01/2009)
659 ORDER; granting 631 Motion for Leave to Add Witnesses to Defendants' Trial List. Signed by Judge Adalberto Jordan on 9/2/2009. (asl) (Entered: 09/02/2009)
660 Defendant's MOTION to Serve Final Objections Out of Time by All Defendants. (Daniel, Stephanie) (Entered: 09/03/2009)
661 Defendant's MOTION for Entry of Confidentiality Order by Secretary of the Florida Department of Health. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 09/11/2009)
662 ORDER re 661 Defendant's MOTION for Entry of Confidentiality Order filed by Secretary of the Florida Department of Health, Set/Reset Deadlines as to 661 Defendant's MOTION for Entry of Confidentiality Order.( Responses due by 9/17/2009). Signed by Magistrate Judge Chris M. McAliley on 9/11/09. (jjz) (Entered: 09/11/2009)

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09/14/2009 09/15/2009 09/15/2009 09/16/2009 09/22/2009 09/23/2009
09/24/2009 09/24/2009
09/30/2009 09/30/2009
09/30/2009 10/01/2009
10/06/2009 10/07/2009
10/19/2009 10/23/2009 10/26/2009

663 RESPONSE to Motion re 661 Defendant's MOTION for Entry of Confidentiality Order filed by All Plaintiffs. Replies due by 9/24/2009. (Goldfarb, Carl) (Entered: 09/14/2009)
664 Unopposed MOTION for Entry of Confidentiality Order by Secretary of the Florida Department of Health. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 09/15/2009)
665 PROTECTIVE ORDER; granting 661 Motion for Entry of Confidentiality Order. Signed by Magistrate Judge Chris M. McAliley on 9/15/09. (jjz) (Entered: 09/15/2009)
666 PROTECTIVE ORDER, granting 664 Unopposed Motion for Entry of Confidentiality Order. Signed by Magistrate Judge Chris M. McAliley on 9/16/09. (jjz) (Entered: 09/16/2009)
667 NOTICE OF UNAVAILABILITY by All Defendants for dates of November 9, 2009 (Daniel, Stephanie) (Entered: 09/22/2009)
668 Plaintiff's MOTION to Compel Discovery Regarding Florida's Latest CMS 416 Report, Or To Exclude The Report by All Plaintiffs. Responses due by 10/13/2009 (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Goldfarb, Carl) (Entered: 09/23/2009)
669 NOTICE OF UNAVAILABILITY by All Plaintiffs for dates of October 6, 2009 and October 20, 2009 (Singer, Stuart) (Entered: 09/24/2009)
670 RESPONSE in Opposition re 668 Plaintiff's MOTION to Compel Discovery Regarding Florida's Latest CMS 416 Report, Or To Exclude The Report filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Daniel, Stephanie) (Entered: 09/24/2009)
671 ORDER granting in part for 281 Motion to Certify Class,Adopting REPORT AND RECOMMENDATIONS 613 Report and Recommendations. Signed by Judge Adalberto Jordan on 9/30/09. (mr1) (Entered: 09/30/2009)
672 ORDER denying 560 Motion for Summary Judgment; 549 Defendant's MOTION for Hearing re 548 Unopposed MOTION for Leave to File Excess Pages Limitation Regarding Defendants' Motion for Final Summary Judgment and Statement of Undisputed Facts. Signed by Judge Adalberto Jordan on 9/30/2009. (mr1) (Entered: 09/30/2009)
673 REPLY to Response to Motion re 668 Plaintiff's MOTION to Compel Discovery Regarding Florida's Latest CMS 416 Report, Or To Exclude The Report filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 09/30/2009)
674 ORDER Setting Trial Date, ( Pretrial Stipulation due by 11/20/2009., Calendar Call set for 12/1/2009 09:00 AM before Judge Adalberto Jordan., Jury Trial set for 12/7/2009 09:00 AM before Judge Adalberto Jordan.) Proposed Findings of fact and conclusions of law are due at calendar call on 12/1/09. Signed by Judge Adalberto Jordan on 10/1/2009. (mg) (Entered: 10/01/2009)
675 Unopposed MOTION to Amend/Correct Clerical Error by All Plaintiffs. Responses due by 10/26/2009 (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 10/06/2009)
676 ORDER On Unopposed Motion to Correct Clerical Error: granting 675 Motion to appoint James Eiseman Jr. of the Public Interest Law Center of Philadelphia as additional counsel to the class. Signed by Judge Adalberto Jordan on 10/7/2009. (mg) (Entered: 10/08/2009)
677 MOTION to Stay re 674 Order, Set/Reset Deadlines/Hearings,, by All Defendants. Responses due by 11/5/2009 (Attachments: # 1)(Daniel, Stephanie) (Entered: 10/19/2009)
678 ORDER denying as moot 668 Motion to Compel. Signed by Judge Adalberto Jordan on 10/23/2009. (mg) (Entered: 10/23/2009)
679 Sealed Document (asl) (Entered: 10/26/2009)

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10/26/2009 10/27/2009 10/28/2009 10/28/2009 10/29/2009 10/30/2009 11/04/2009 11/05/2009 11/12/2009 11/16/2009 11/17/2009 11/18/2009 11/20/2009 11/23/2009 11/23/2009 11/23/2009 11/23/2009 11/23/2009
11/23/2009

680 Sealed Document (asl) (Entered: 10/26/2009)
681 ORDER granting nunc pro tunc 660 Motion to serve final objections to plaintiff's deposition counter−designations out of time. Signed by Judge Adalberto Jordan on 10/27/2009. (mg) (Entered: 10/27/2009)
682 ORDER denying as moot 606 Motion to specifically set trial date; denying as moot 608 Motion for Status Conference. Signed by Judge Adalberto Jordan on 10/28/2009. (mg) (Entered: 10/28/2009)
683 ORDER denying as moot 531 Motion to compel discovery of documents in support of the expert opinion of Joan Alker or in the alternative 532 Motion in Limine. Signed by Judge Adalberto Jordan on 10/28/2009. (mg) (Entered: 10/28/2009)
684 Sealed Document (ra1) (Entered: 10/29/2009)
685 NOTICE of Change of Address by Carl Edward Goldfarb (Goldfarb, Carl) (Entered: 10/30/2009)
686 RESPONSE in Opposition re 677 MOTION to Stay re 674 Order, Set/Reset Deadlines/Hearings,, filed by All Plaintiffs. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 11/04/2009)
687 REPLY to Response to Motion re 677 MOTION to Stay re 674 Order, Set/Reset Deadlines/Hearings,, filed by All Defendants. (Daniel, Stephanie) (Entered: 11/05/2009)
688 ORDER denying 677 Motion to Stay without Prejudice. Signed by Judge Adalberto Jordan on 11/12/2009. (mg) (Entered: 11/12/2009)
689 MOTION TO REVALIDATE SUBPOENAS by All Defendants, All Plaintiffs. (Daniel, Stephanie) (Entered: 11/16/2009)
690 ORDER Directing Parties to Adhere to the Trial Schedule re 674 Order, Set/Reset Deadlines/Hearings,,. Signed by Judge Adalberto Jordan on 11/17/2009. (ls) (Entered: 11/18/2009)
691 ORDER granting 689 Motion to Revalidate Subpoenas. Signed by Judge Adalberto Jordan on 11/18/2009. (ls) (Entered: 11/18/2009)
692 AMENDED Joint PRETRIAL STIPULATION Filed Jointly by All Parties by All Plaintiffs. (Attachments: # 1 Schedule A, # 2 Schedule B, # 3 Schedule C, # 4 Schedule D)(Singer, Stuart) Modified text on 11/23/2009 (tas). (Entered: 11/20/2009)
693 Defendant's MOTION in Limine to Preclude Plaintiffs' Use of Newspaper Articles by All Defendants. (Giurato, Gerald) (Entered: 11/23/2009)
694 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Marie Becker, M.D. by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Giurato, Gerald) (Entered: 11/23/2009)
695 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Robert Middlemas, III, M.D. by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Giurato, Gerald) (Entered: 11/23/2009)
696 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Louis St. Petery, M.D. by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 Part 1, # 3 Exhibit 2 Part 2, # 4 Exhibit 2 Part 3)(Giurato, Gerald) (Entered: 11/23/2009)
697 MOTION Judicial Notice by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, Part 1, # 12 Exhibit K, Part 2, # 13 Exhibit K, Part 3, # 14 Exhibit K, Part 4, # 15 Exhibit K, Part 5, # 16 Exhibit K, Part 6, # 17 Exhibit L, Part 1, # 18 Exhibit L, Part 2, # 19 Exhibit L, Part 3, # 20 Exhibit L, Part 4)(Daniel, Stephanie) (Entered: 11/23/2009)
698 MOTION in Limine REGARDING CMS 416 REPORTS by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, Part 1, # 7 Exhibit F, Part 2)(Daniel, Stephanie) (Entered: 11/23/2009)

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11/23/2009 11/23/2009 11/23/2009 11/23/2009 11/23/2009
11/23/2009 11/24/2009 12/01/2009 12/01/2009 12/01/2009
12/01/2009 12/01/2009 12/02/2009 12/04/2009 12/04/2009

699 MOTION in Limine TO EXCLUDE PLAINTIFFS EXHIBIT NUMBER 128 by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Daniel, Stephanie) (Entered: 11/23/2009)
700 MOTION in Limine TO EXCLUDE PROPOSED EXPERT TESTIMONY OF SAMUEL FLINT, PH.D. by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Daniel, Stephanie) (Entered: 11/23/2009)
701 MOTION in Limine to Preclude Evidence Relating to Medicaid HMOS by All Defendants. (Landon, Robert) (Entered: 11/23/2009)
702 MOTION in Limine to Exclude Evidence of Injuries Allegedly Suffered By Unnamed Class Members by All Defendants. (Landon, Robert) (Entered: 11/23/2009)
703 MOTION for Leave to file Excess Pages for Motion To Exclude Proposed Expert Testimony of Joan Alker by All Defendants. (Attachments: # 1 Proposed Motion In Limine, # 2 Exhibit A, Part 1, # 3 Exhibit A, Part 2, # 4 Exhibit A, Part 3, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, Part 1, # 8 Exhibit E, Part 2, # 9 Exhibit E, Part 3, # 10 Exhibit E, Part 4, # 11 Exhibit E, Part 5, # 12 Exhibit E, Part 6, # 13 Exhibit E, Part 7, # 14 Exhibit E, Part 8, # 15 Exhibit E, Part 9, # 16 Exhibit E, Part 10, # 17 Exhibit F, # 18 Exhibit G, Part 1, # 19 Exhibit G, Part 2, # 20 Exhibit H)(Daniel, Stephanie) Modified on 2/11/2010 (mg). (Entered: 11/23/2009)
704 MOTION in Limine TO EXCLUDE DRAFTS OF AGENCY REPORTS by All Defendants. (Daniel, Stephanie) (Entered: 11/23/2009)
705 NOTICE by All Defendants re 703 MOTION in Limine To Exclude Proposed Expert Testimony of Joan Alker (Attachments: # 1 Exhibit B, Part 1, # 2 Exhibit B, Part 2, # 3 Exhibit B, Part 3)(Daniel, Stephanie) (Entered: 11/24/2009)
706 Proposed Findings of Fact and Proposed Conclusions of Law by All Defendants. (Daniel, Stephanie) (Entered: 12/01/2009)
707 Proposed Findings of Fact and Proposed Conclusions of Law by All Defendants. (Daniel, Stephanie) (Entered: 12/01/2009)
708 Plaintiff's MOTION for Extension of Time to File Response as to 694 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Marie Becker, M.D., 700 MOTION in Limine TO EXCLUDE PROPOSED EXPERT TESTIMONY OF SAMUEL FLINT, PH.D., 695 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Robert Middlemas, III, M.D., 704 MOTION in Limine TO EXCLUDE DRAFTS OF AGENCY REPORTS, 703 MOTION in Limine To Exclude Proposed Expert Testimony of Joan Alker, 696 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Louis St. Petery, M.D., 699 MOTION in Limine TO EXCLUDE PLAINTIFFS EXHIBIT NUMBER 128, 701 MOTION in Limine to Preclude Evidence Relating to Medicaid HMOS, 693 Defendant's MOTION in Limine to Preclude Plaintiffs' Use of Newspaper Articles, 702 MOTION in Limine to Exclude Evidence of Injuries Allegedly Suffered By Unnamed Class Members, 698 MOTION in Limine REGARDING CMS 416 REPORTS , or in the Alternative, Motion for Denial Without Prejudice of Defendants' Motions in Limine by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Singer, Stuart) (Entered: 12/01/2009)
709 NOTICE OF UNAVAILABILITY by All Defendants for dates of January 18−20, 2010 (Jimenez, Marcos) (Entered: 12/01/2009)
710 Proposed Findings of Fact and Proposed Conclusions of Law by All Plaintiffs. (Singer, Stuart) (Entered: 12/01/2009)
711 Unopposed MOTION for Extension of Time to File Response as to 697 MOTION Judicial Notice by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 12/02/2009)
712 NOTICE by All Defendants of Filing Glossary of Commonly Used Terms and Acronyms (Attachments: # 1 Glossary of Terms)(Daniel, Stephanie) (Entered: 12/04/2009)
713 NOTICE of Attorney Appearance by Phillip Peter Quaschnick on behalf of All Defendants (Quaschnick, Phillip) (Entered: 12/04/2009)

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12/07/2009 12/07/2009 12/07/2009 12/07/2009 12/08/2009 12/08/2009 12/08/2009 12/09/2009 12/10/2009 12/11/2009 12/15/2009 12/17/2009
12/21/2009
12/21/2009 12/23/2009 12/29/2009
12/29/2009 12/29/2009 01/04/2010

714 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/7/2009. Trial continued to 12/8/09 at 9:30 a.m. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 12/07/2009)
715 NOTICE OF UNAVAILABILITY by All Defendants for dates of 12/24/2009−1/4/2010 (Daniel, Stephanie) (Entered: 12/07/2009)
716 TRIAL BRIEF PLAINTIFFS MEMORANDUM IN SUPPORT OF PLAINTIFFS EXHIBIT 319 by All Plaintiffs. (Goldfarb, Carl) (Entered: 12/07/2009)
718 ORDER of USCA pursuant to Petition for Permission to Appeal an Order from the United States District Court, MOTION DENIED. Signed by USCA on 12/1/2009. (amb)Text Modified on 12/8/2009 (amb). (Entered: 12/08/2009)
717 Defendant's MOTION memorandum to exlucde plaintiffs' exhibit 319 by All Defendants. (Quaschnick, Phillip) (Entered: 12/08/2009)
719 NOTICE OF UNAVAILABILITY by All Plaintiffs for dates of March 8−26, 2010 (Singer, Stuart) (Entered: 12/08/2009)
720 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/8/2009. Trial continued to 12/9/09 at 9:30 a.m. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 12/08/2009)
721 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/9/2009. Trial continued to 12/10/09 at 9:30 a.m. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 12/10/2009)
722 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/10/2009. Trial continued to January 5, 2010. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 12/10/2009)
723 CORRECTED ORDER of USCA pursuant to Petition for Permission to Appeal an Order from the United States District Court, petition DENIED. USCA # 09−90029−J. Signed by USCA ON 12/7/09 on 12/7/2009. (hh) (Entered: 12/11/2009)
724 NOTICE of Attorney Appearance by Brian Lee Hayden on behalf of All Defendants (Hayden, Brian) (Entered: 12/15/2009)
725 MOTION Joint Motion For Order Allowing Additional Counsel For The Parties And Their Staff To Use Laptop Computers, The Internet, And LiveNotes at Trial, And To Bring Cellular Phones and PDAs into the Courthouse by All Defendants, All Plaintiffs. (Hayden, Brian) (Entered: 12/17/2009)
726 ORDER granting 725 Motion for Order Allowing Additional Counsel for the Parties and Their Staff to Use Laptop Computers, The Internet, and Livenotes at Trial, and to Bring Cellular Phones and PDAS into the Courthouse. Signed by Judge Adalberto Jordan on 12/18/2009. (mg) (Entered: 12/21/2009)
727 ORDER Establishing Trial Schedule. Signed by Judge Adalberto Jordan on 12/21/2009. (mg) (Entered: 12/22/2009)
728 Amended Scheduling ORDER; amended trial schedule. Signed by Judge Adalberto Jordan on 12/23/2009. (mg) (Entered: 12/28/2009)
729 RESPONSE to Motion re 696 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Louis St. Petery, M.D. filed by All Plaintiffs. Replies due by 1/8/2010. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C−Filed Under Seal, # 4 Exhibit D)(Singer, Stuart) (Entered: 12/29/2009)
730 Sealed Document (ral) (Entered: 12/29/2009)
731 Sealed Document (ral) (Entered: 12/29/2009)
732 ORDER Granting Plaintiffs' Unopposed Motion to Certain Exhibits Referenced in their response to defendants Motion to exclude expert testimony of Dr. Louis St. Petery. The Plaintiff shall file a redacted version in the public record within 14 days. Signed by Judge Adalberto Jordan on 1/4/2010. (mg) (Entered: 01/05/2010)

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01/05/2010 01/05/2010 01/06/2010 01/06/2010 01/06/2010 01/07/2010 01/07/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010
01/08/2010 01/11/2010 01/11/2010

733 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/5/2010. Bench trial continued to 1/6/10 at 9:00 a.m. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 01/05/2010)
734 RESPONSE to Motion re 704 MOTION in Limine TO EXCLUDE DRAFTS OF AGENCY REPORTS filed by All Plaintiffs. Replies due by 1/15/2010. (Singer, Stuart) (Entered: 01/05/2010)
735 RESPONSE to Motion re 699 MOTION in Limine TO EXCLUDE PLAINTIFFS EXHIBIT NUMBER 128 filed by All Plaintiffs. Replies due by 1/19/2010. (Singer, Stuart) (Entered: 01/06/2010)
736 RESPONSE to Motion re 698 MOTION in Limine REGARDING CMS 416 REPORTS filed by All Plaintiffs. Replies due by 1/19/2010. (Singer, Stuart) (Entered: 01/06/2010)
738 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/6/2010. Bench trial continued to 1/7/10 at 9:00 a.m. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 01/07/2010)
737 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/7/2010. Trial continued to 1/8/10. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 01/07/2010)
739 RESPONSE to Motion re 702 MOTION in Limine to Exclude Evidence of Injuries Allegedly Suffered By Unnamed Class Members filed by All Plaintiffs. Replies due by 1/19/2010. (Singer, Stuart) (Entered: 01/07/2010)
740 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/8/2010. Trial continued to 1/11/10, at 10:00 a.m. Court Reporter: Francine Salopek, Phone: 305−523−5568 (mc1) (Entered: 01/08/2010)
741 RESPONSE to Motion re 693 Defendant's MOTION in Limine to Preclude Plaintiffs' Use of Newspaper Articles filed by All Plaintiffs. Replies due by 1/19/2010. (Goldfarb, Carl) (Entered: 01/08/2010)
742 Agreed MOTION for Extension of Time to File Reply to Plaintiff's Response to Defendants' Motion in Limine and Proposed Order by All Defendants. (Quaschnick, Phillip) (Entered: 01/08/2010)
743 RESPONSE to Motion re 695 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Robert Middlemas, III, M.D. filed by All Plaintiffs. Replies due by 1/19/2010. (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 01/08/2010)
744 RESPONSE to Motion re 697 MOTION Judicial Notice filed by All Plaintiffs. Replies due by 1/19/2010. (Singer, Stuart) (Entered: 01/08/2010)
745 RESPONSE to Motion re 703 MOTION in Limine To Exclude Proposed Expert Testimony of Joan Alker filed by All Plaintiffs. Replies due by 1/19/2010. (Singer, Stuart) (Entered: 01/08/2010)
746 RESPONSE to Motion re 701 MOTION in Limine to Preclude Evidence Relating to Medicaid HMOS filed by All Plaintiffs. Replies due by 1/19/2010. (Singer, Stuart) (Entered: 01/08/2010)
747 RESPONSE to Motion re 694 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Marie Becker, M.D. filed by All Plaintiffs. Replies due by 1/19/2010. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Singer, Stuart) (Entered: 01/08/2010)
748 RESPONSE to Motion re 700 MOTION in Limine TO EXCLUDE PROPOSED EXPERT TESTIMONY OF SAMUEL FLINT, PH.D. filed by All Plaintiffs. Replies due by 1/19/2010. (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 01/08/2010)
749 Sealed Document (ebs) (Entered: 01/11/2010)
750 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/11/2010. Bench trial will continued at a later date. Court Reporter: Francine Salopek, 305−523−5568 (mc1) (Entered: 01/11/2010)

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01/12/2010 01/13/2010 01/14/2010 01/14/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/19/2010 01/19/2010 01/19/2010 01/20/2010
01/20/2010
01/22/2010

751 ORDER granting 742 Motion for Extension of Time to File Reply to Plaintiffs' Response to Defendants' Motion to Exclude Drafts of Agency Reports. Defendants' shall file their reply on or before 1/19/10. Signed by Judge Adalberto Jordan on 1/11/10. (mg) (Entered: 01/12/2010)
752 Sealed Document (ebs) (Entered: 01/13/2010)
753 NOTICE by All Plaintiffs re 729 Response to Motion, NOTICE OF FILING REDACTED EXHIBIT IN SUPPORT OF THEIR RESPONSE TO DEFENDANTS MOTION TO EXCLUDE EXPERT TESTIMONY OF DR. LOUIS ST. PETERY (Attachments: # 1 Exhibit C−Redacted)(Singer, Stuart) (Entered: 01/14/2010)
754 NOTICE OF UNAVAILABILITY by All Plaintiffs for dates of 3/8−3/26/2010 & 7/14−7/30/2010 (Singer, Stuart) (Entered: 01/14/2010)
755 NOTICE by All Plaintiffs re 734 Response to Motion of Filing Exhibits (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Singer, Stuart) Modified on 1/20/2010 (ls). (Entered: 01/15/2010)
756 REPLY to Response to Motion re 696 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Louis St. Petery, M.D. filed by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 01/15/2010)
757 NOTICE OF UNAVAILABILITY by All Defendants for dates of January 25, 2010, February 2−3, 8, 12, 15−19, 22−26, March 1−5, March 12, April 8−9, 22−23, and May 12, 2010 (Daniel, Stephanie) Modified on 1/20/2010 (ls). [First Portion Re−docketed at DE #762] (Entered: 01/15/2010)
758 MOTION for Extension of Time to File Reply as to 746 Response to Motion, 748 Response to Motion, 739 Response to Motion, 743 Response to Motion, 747 Response to Motion, 745 Response to Motion, 736 Response to Motion by All Defendants. (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 01/15/2010)
762 RESPONSE to Ore Tenus Order of Court by All Defendants. (ls)[See Image at DE #757] (Entered: 01/20/2010)
759 ORDER Granting Motion to Seal Certain Exhibits Referenced in their Response to Defendants Motion to Exclude Expert Testimony of Dr. Marie Becker. Signed by Judge Adalberto Jordan on 1/15/2010. (mg) (Entered: 01/19/2010)
760 REPLY to Response to Motion re 704 MOTION in Limine TO EXCLUDE DRAFTS OF AGENCY REPORTS filed by All Defendants. (Quaschnick, Phillip) (Entered: 01/19/2010)
761 REPLY to Response to Motion re 697 MOTION Judicial Notice filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Daniel, Stephanie) (Entered: 01/19/2010)
763 Clerks Notice to Filer re 757 Notice of Unavailability. Two or More Document Events Filed as One; ERROR − Only one event was selected by the Filer but more than one event was applicable to the document filed. The docket entry was corrected by the Clerk. It is not necessary to refile this document but in the future, the Filer must select all applicable events. (ls) (Entered: 01/20/2010)
764 ORDER granting 758 Motion for Extension of Time to Reply re 703 MOTION in Limine To Exclude Proposed Expert Testimony of Joan Alker, 700 MOTION in Limine TO EXCLUDE PROPOSED EXPERT TESTIMONY OF SAMUEL FLINT, PH.D., 701 MOTION in Limine to Preclude Evidence Relating to Medicaid HMOS, 695 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Robert Middlemas, III, M.D., 698 MOTION in Limine REGARDING CMS 416 REPORTS, 694 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Marie Becker, M.D., 702 MOTION in Limine to Exclude Evidence of Injuries Allegedly Suffered By Unnamed Class Members Replies due by 1/26/2010.. Signed by Judge Adalberto Jordan on 1/20/2010. (mg) (Entered: 01/20/2010)
765 REPLY to Response to Motion re 694 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Marie Becker, M.D. filed by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 01/22/2010)

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01/22/2010 01/25/2010 01/26/2010 01/26/2010 01/26/2010 01/26/2010 01/26/2010
01/28/2010 01/28/2010 02/05/2010 02/08/2010
02/08/2010
02/08/2010 02/09/2010 02/10/2010

766 REPLY to Response to Motion re 695 Defendant's MOTION in Limine to Exclude Proposed Expert Testimony of Robert Middlemas, III, M.D. filed by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 01/22/2010)
767 REPLY to Response to Motion re 698 MOTION in Limine REGARDING CMS 416 REPORTS filed by All Defendants. (Daniel, Stephanie) (Entered: 01/25/2010)
768 REPLY to Response to Motion re 703 MOTION in Limine To Exclude Proposed Expert Testimony of Joan Alker filed by All Defendants. (Hayden, Brian) (Entered: 01/26/2010)
769 ORDER Resetting Trial. Signed by Judge Adalberto Jordan on 1/26/10. (mg) (Entered: 01/26/2010)
770 RESPONSE in Support re 701 MOTION in Limine to Preclude Evidence Relating to Medicaid HMOS filed by All Defendants. (Giurato, Gerald) (Entered: 01/26/2010)
771 RESPONSE in Support re 702 MOTION in Limine to Exclude Evidence of Injuries Allegedly Suffered By Unnamed Class Members filed by All Defendants. (Giurato, Gerald) (Entered: 01/26/2010)
772 REPLY to Response to Motion re 700 MOTION in Limine TO EXCLUDE PROPOSED EXPERT TESTIMONY OF SAMUEL FLINT, PH.D. filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Daniel, Stephanie) (Entered: 01/26/2010)
773 AMENDED DOCUMENT by All Defendants. Amendment to Defendants' Response to Ore Tenus Order of Court and Notice of Unavailability. (Giurato, Gerald) (Entered: 01/28/2010)
774 NOTICE by All Plaintiffs re 747 Response to Motion, Notice of Filing Redacted Exhibits Referenced in Their Response to Defendants' Motion to Exclude Expert Testimony of Marie Becker, M.D. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit E)(Goldfarb, Carl) (Entered: 01/28/2010)
775 EMERGENCY MOTION for Order Granting Expedited Consideration And Leave to Take Videotaped Deposition of Suzanne Poirier to Preserve Her Testimony for Use at Trial by All Defendants. (Hayden, Brian) Modified text on 2/8/2010 (tas). Added MOTION for Leave to Take Video Deposition on 2/8/2010 (tas). (Entered: 02/05/2010)
776 Clerks Notice to Filer re 775 MOTION Emergency Motion for Expedited Consideration And Leave to Take Videotaped Deposition of Suzanne Poirier to Preserve Testimony for Trial. Emergency Document Filed Electronically; ERROR − Emergency matters may not be filed electronically, they must be filed in the conventional paper format in the division where the judge is chambered. The Clerk contacted Chambers and corrected the docket text to indicate the document is an emergency matter. It is not necessary to refile this document but future filings must comply with the CM/ECF Administrative Procedures and Local Rules. (tas) (Entered: 02/08/2010)
777 Clerks Notice to Filer re 775 MOTION to Take Deposition MOTION Emergency Motion for Expedited Consideration And Leave to Take Videotaped Deposition of Suzanne Poirier to Preserve Testimony for Trial. Motion with Multiple Reliefs Filed as One Relief; ERROR − The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (tas) (Entered: 02/08/2010)
778 ORDER granting 775 Emergency Motion for Expedited Consideration and Leave to Take the Videotaped Deposition of Suzanne Poirier to Preserve Her Testimony for Use at trial. Signed by Judge Adalberto Jordan on 2/8/10. (mg) (Entered: 02/08/2010)
779 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/9/2010. Bench trial continued to 2/10/10, at 10:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 (mc1) (Entered: 02/10/2010)
780 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/10/2010. Bench trial continued to 1/11/10 at 9:30 a.m. Court Reporter: Francine

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02/11/2010 02/11/2010 02/15/2010 02/15/2010 02/15/2010
02/16/2010 02/16/2010
02/18/2010
02/22/2010 02/23/2010 02/24/2010 03/02/2010 03/05/2010 03/05/2010 03/16/2010
03/18/2010 03/18/2010 03/22/2010

Salopek, 305−523−5568 (mc1) (Entered: 02/11/2010)
781 ORDER granting 703 Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 2/11/10. (mg) (Entered: 02/11/2010)
782 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/11/2010. Will be continued at a later date. Court Reporter: Francine Salopek, 305−523−5568 (mc1) (Entered: 02/11/2010)
783 RESPONSE/REPLY to Ore Tenus Order, and Notice of Unavailability by All Defendants. (Daniel, Stephanie) (Entered: 02/15/2010)
784 NOTICE by All Plaintiffs of Availability (Singer, Stuart) (Entered: 02/15/2010)
785 STIPULATION Filed Jointly by Both Parties RE Defendants Emergency Motion For Order Granting Expedited Consideration And Leave To Take Videotaped Deposition Of Suzanne Poirier To Preserve Her Testimony For Use At Trial, D.E. 775 by All Plaintiffs (Attachments: # 1 Text of Proposed Order)(Singer, Stuart) (Entered: 02/15/2010)
786 NOTICE of Attorney Appearance by Marcos Daniel Jimenez on behalf of All Defendants (Jimenez, Marcos) (Entered: 02/16/2010)
787 ORDER Granting 775 MOTION to Take Deposition MOTION Emergency Motion for Expedited Consideration And Leave to Take Videotaped Deposition of Suzanne Poirier to Preserve Testimony for Trial filed by All Defendants subject to the Parties' stipulation. Signed by Judge Adalberto Jordan on 2/16/10. (mg) (Entered: 02/17/2010)
788 Clerks Notice to Filer re 786 Notice of Attorney Appearance. Attorney Did Not Associate Themselves; ERROR − Filing attorney neglected to associate themselves to the case/parties. The Clerk has added the attorney to the individual defendants. It is not necessary to refile this document future filings must comply with the CM/ECF Administrative Procedures and Local Rules by filing a Notice of Attorney Appearance and linking themselves to the case/parties. (ls) (Entered: 02/18/2010)
789 NOTICE by All Plaintiffs Notice of Filing Transcription of Plaintiffs Trial Ex. #126 (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 02/22/2010)
790 Unopposed MOTION for Discovery to Authorize Defendants to Issue a Subpoena for Medical Records of L.C. by All Defendants. Responses due by 3/12/2010 (Wakefield, Reid) (Entered: 02/23/2010)
791 ORDER granting 790 Motion to Authorize Defendants to Issue a Subpoena to Produce Medical Records of Plaintiff L.C. Signed by Judge Adalberto Jordan on 2/24/10. (mg) (Entered: 02/24/2010)
792 ORDER granting in part, Denying in Part 704 Motion in Limine Regarding Drafts of Agency Reports. Signed by Judge Adalberto Jordan on 3/1/10. (mg) (Entered: 03/02/2010)
793 NOTICE by All Plaintiffs Notice of Withdrawal of Paul R. Verkuil (Goldfarb, Carl) (Entered: 03/05/2010)
Attorney Paul R. Verkuil terminated. Notice of Termination delivered by US Mail to Paul Verkuil. (ls)(per DE #793) (Entered: 03/18/2010)
794 Unopposed MOTION for Court Order Authorizing Modification of "Litigation Hold," to Permit Destruction of DCF Access Paper Files which meet State's Records Retention Schedule for Destruction by Secretary of Florida Department of Children & Family Services. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Daniel, Stephanie) Modified on 3/18/2010 (ls). (Entered: 03/16/2010)
795 NOTICE OF UNAVAILABILITY by All Defendants for dates of March 25, 29−31, April 1, 2, 5−9, 13, 15, 21−23, 2010 (Daniel, Stephanie) (Entered: 03/18/2010)
796 NOTICE OF UNAVAILABILITY by All Defendants for dates of March 25, 29−31, April 1, 2, 5−9, 13, 15, 21−23, 2010 (Daniel, Stephanie) (Entered: 03/18/2010)
797 ORDER re 794 Unopposed MOTION for Court Order Authorizing Modification of "Litigation Hold," to Permit Destruction of DCF Access Paper Files which meet State's

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04/16/2010 04/16/2010 04/21/2010 04/26/2010 04/26/2010 04/29/2010 05/05/2010 05/17/2010
05/18/2010
05/19/2010
05/20/2010 06/25/2010 06/30/2010 07/07/2010 07/15/2010 07/27/2010 07/28/2010 07/29/2010

Records Retention Schedule for Destruction filed by Secretary of Florida Department of Children & Family Services.. Signed by Judge Adalberto Jordan on 3/19/2010. (lh) (Entered: 03/23/2010)
798 UPDATED NOTICE OF UNAVAILABILITY by All Defendants for dates of 3−7 & 10−28 (Daniel, Stephanie) Modified text on 4/19/2010 (tb). (Entered: 04/16/2010)
799 First MOTION To Add Exhibit to Amended Joint Pretrial Stipulation re 692 Pretrial Stipulation by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Quaschnick, Phillip) (Entered: 04/16/2010)
800 NOTICE OF UNAVAILABILITY by All Plaintiffs for dates of May 5−7, 10, 18−20, 2010 (Singer, Stuart) (Entered: 04/21/2010)
801 RESPONSE to Motion re 799 First MOTION To Add Exhibit to Amended Joint Pretrial Stipulation re 692 Pretrial Stipulation filed by All Plaintiffs. Replies due by 5/6/2010. (Goldfarb, Carl) (Entered: 04/26/2010)
802 NOTICE OF UNAVAILABILITY by All Defendants for dates of 06/11, 06/28−07/09, 07/19−07/30, 08/02−08/16 (Wakefield, Reid) (Entered: 04/26/2010)
803 ORDER granting 799 Motion to add an exhibit to the amended joint pre−trial stipulation. Signed by Judge Adalberto Jordan on 4/29/2010. (lh) (Entered: 04/29/2010)
804 ORDER SETTING TRIAL: Trial set for 5/17/2010 10:00 AM before Judge Adalberto Jordan. Signed by Judge Adalberto Jordan on 5/5/2010. (lh) (Entered: 05/05/2010)
805 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 5/17/2010. Bench trial continued to 5/18/10, at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 05/18/2010)
806 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 5/18/201. Bench trial continued to 5/19/10, at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 05/19/2010)
807 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 5/19/2010. Bench trial continued to 5/20/91 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 05/19/2010)
808 TEXT Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 5/20/2010. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (lcs) (Entered: 05/20/2010)
809 Defendant's MOTION to Take Deposition from Thomas Warring & Exceed Seven−Hour One−Day Time Limit by All Defendants. (Wakefield, Reid) (Entered: 06/25/2010)
810 RESPONSE to Motion re 809 Defendant's MOTION to Take Deposition from Thomas Warring & Exceed Seven−Hour One−Day Time Limit filed by All Plaintiffs. Replies due by 7/12/2010. (Goldfarb, Carl) (Entered: 06/30/2010)
811 ORDER granting 809 Unopposed Motion to Take Videotapped Deposition from Thomas Warring prior to August 13, 2010. Signed by Judge Adalberto Jordan on 7/7/2010. (ebs) (Entered: 07/07/2010)
812 Unopposed MOTION to Amend/Correct Amended Joint Pretrial Stipulation by Substituting Witness by All Defendants. Responses due by 8/2/2010 (Wakefield, Reid) (Entered: 07/15/2010)
813 SCHEDULING ORDER: Trial set for 8/3/2010 10:00 AM before Judge Adalberto Jordan. Signed by Judge Adalberto Jordan on 7/27/2010. (ebs) (Entered: 07/28/2010)
814 NOTICE OF UNAVAILABILITY by All Defendants for dates of 08/06/10 (Landon, Robert) (Entered: 07/28/2010)
815 Unopposed MOTION Extend Time Within Which to Take The Videotaped Deposition of Thomas Warring by All Defendants. (Attachments: # 1 Exhibit Notice of Taking

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07/29/2010 07/29/2010 07/29/2010 07/29/2010 07/30/2010 07/30/2010
07/30/2010
07/30/2010
07/30/2010 07/30/2010 07/30/2010 08/03/2010 08/04/2010 08/04/2010

Deposition for Thomas Warring)(Wakefield, Reid) (Entered: 07/29/2010)
816 Defendant's EMERGENCY MOTION to Expedite − Designate Other Witnesses During Second Week of the Next Trial Session by All Defendants. (Hayden, Brian) Modified on 7/30/2010 (ls). (Entered: 07/29/2010)
817 MOTION for Leave to File/Add Witnesses To Defendants' Witness List by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Hayden, Brian) Modified on 7/30/2010 (ls). Modified on 7/30/2010 (ls). (Entered: 07/29/2010)
818 MOTION for Hearing/Oral Argument re 817 MOTION for Leave to File/Add Witnesses to Defendants' Witness List by All Defendants. (Hayden, Brian) Modified on 7/30/2010 (ls). (Entered: 07/29/2010)
819 RESPONSE to Motion re 816 Defendant's MOTION to Expedite − Designate Other Witnesses During Second Week of the Next Trial Session filed by All Plaintiffs. Replies due by 8/9/2010. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Goldfarb, Carl) (Entered: 07/29/2010)
820 EMERGENCY MOTION to Require Plaintiffs to Designate Other Witnesses During the Second Week of the Next Trial Session Due to the Unavailability of Defendants' Trial Counsel by All Defendants. (asl) (Entered: 07/30/2010)
821 Clerks Notice to Filer re 816 Defendant's MOTION to Expedite − Designate Other Witnesses During Second Week of the Next Trial Session. Emergency Document Filed Electronically; ERROR − Emergency matters may not be filed electronically, they must be filed in the conventional paper format in the division where the judge is chambered. The Clerk contacted Chambers and corrected the docket text to indicate the document is an emergency matter. It is not necessary to refile this document but future filings must comply with the CM/ECF Administrative Procedures and Local Rules. (ls) (Entered: 07/30/2010)
822 Clerks Notice to Filer re 817 MOTION for Leave To Add Witnesses To Defendants' Witness List. Filer Selected the Wrong Motion Relief(s); ERROR − The Filer selected the wrong motion relief(s) when docketing the motion. The correction was made by the Clerk. It is not necessary to refile this document but future motions filed must include applicable reliefs. (ls) (Entered: 07/30/2010)
823 Clerks Notice to Filer re 818 MOTION Defendants' Request For Oral Argument On Defendants' Motion To Add Witnesses To Defendants' Witness List re 817 MOTION Defendants' Motion For Leave To Add Witnesses To Defendants' Witness List. Filer Selected the Wrong Motion Relief(s); ERROR − The Filer selected the wrong motion relief(s) when docketing the motion. The correction was made by the Clerk. It is not necessary to refile this document but future motions filed must include applicable reliefs. (ls) (Entered: 07/30/2010)
824 REPLY to Response to Motion re 816 Defendant's EMERGENCY MOTION to Expedite − Designate Other Witnesses During Second Week of the Next Trial Session filed by All Defendants. (Attachments: # 1 Exhibit)(Bowden, Albert) (Entered: 07/30/2010)
825 MOTION Substitute Witness by All Defendants. (Bowden, Albert) (Entered: 07/30/2010)
826 MOTION Request for Oral Argument by All Defendants. (Bowden, Albert) (Entered: 07/30/2010)
830 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 8/3/2010. Bench trial continue to 8/4/10 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 08/05/2010)
827 TRIAL BRIEF Defendants' Bench Memorandum Regarding Federal Rule of Evidence 803(18): Learned Treatises May Not Be Received As Exhibits by All Defendants. (Hayden, Brian) (Entered: 08/04/2010)
828 ORDER granting Defendants' 812 Unopposed Motion for Leave to Amend the Amended Joint Pretrial Stipulation by Substituting a Witness. Signed by Judge Adalberto Jordan on 8/4/2010. (ebs) (Entered: 08/04/2010)

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08/04/2010 08/04/2010 08/05/2010 08/09/2010 08/09/2010 08/09/2010 08/10/2010 08/12/2010 08/13/2010
08/16/2010 08/16/2010 08/17/2010 08/17/2010
08/17/2010

829 ORDER granting Defendants' 815 Unopposed MOTION Extend Time Within Which to Take The Videotaped Deposition of Thomas Warring. Signed by Judge Adalberto Jordan on 8/4/2010. (ebs) (Entered: 08/04/2010)
831 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 8/4/2010. Bench trial continued to 8/5/10 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 08/05/2010)
832 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 8/5/2010. Bench trial continued to 8/9/10, at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 08/05/2010)
833 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 8/9/2010. Bench trial continued to 8/10/10 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 08/09/2010)
834 RESPONSE in Opposition re 817 Motion for Leave to File/Add Witnesses to Defendants' Witness List filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 08/09/2010)
835 SUPPLEMENT Defendants' Supplemental Counter−Designations and Objections to Plaintiffs' Designations by All Defendants (Landon, Robert) (Entered: 08/09/2010)
836 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 8/10/2010. Bench trial continued to 8/11/10, at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 08/10/2010)
837 NOTICE by All Defendants REGARDING UNAVAILABILITY OF NATHAN LEWIS FOR TRIAL DURING THE WEEK OF SEPTEMBER 13, 2010 AND OCTOBER 4, 2010 (Daniel, Stephanie) (Entered: 08/12/2010)
838 FILED IN WRONG CASE − PAPRERLESS Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 8/13/2010. Bench trial continues 08/23/2010 at 10:00 AM before Judge Jordan. (See transcript for appearances of counsel) Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (ag) Modified text and restricted document on 8/16/2010 (bb). (Entered: 08/13/2010)
839 Clerks Notice of Docket Correction. Document Filed in Wrong Case; Document restricted and docket text modified. Document refiled in correct case # 09−21028−CR−AJ. (bb) (Entered: 08/16/2010)
840 RESPONSE to Motion re 825 MOTION Substitute Witness filed by All Plaintiffs. Replies due by 8/26/2010. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Goldfarb, Carl) (Entered: 08/16/2010)
841 MOTION for Judicial Notice by All Defendants (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Landon, Robert) Modified on 8/19/2010 (ls). (Entered: 08/17/2010)
842 TRANSCRIPT of Trial Proceedings held on 12−7−09 before Judge Adalberto Jordan, Volume Number 1, 1−168 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) Modified page number text on 8/17/2010 (mf). (Entered: 08/17/2010)
843 TRANSCRIPT of Trial Proceedings held on 12−8−09 before Judge Adalberto Jordan, Volume Number 2, 269−341 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)

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08/17/2010 08/17/2010
08/17/2010 08/17/2010 08/17/2010 08/17/2010 08/17/2010 08/19/2010 08/19/2010 08/19/2010

844 TRANSCRIPT of Trial Proceedings held on 12−9−09 before Judge Adalberto Jordan, Volume Number 3, 342−512 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)
845 TRANSCRIPT of Trial Proceedings held on 12−10−09 before Judge Adalberto Jordan, Volume Number 4, 513−669 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)
846 TRANSCRIPT of Trial Proceedings held on 1−5−10 before Judge Adalberto Jordan, Volume Number 5, 670−808 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)
847 TRANSCRIPT of Trial Proceedings held on 1−6−10 before Judge Adalberto Jordan, Volume Number 6, 809−1003 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)
848 TRANSCRIPT of Trial Proceedings held on 1−7−10 before Judge Adalberto Jordan, Volume Number 7, 1004−1179 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)
849 TRANSCRIPT of Trial Proceedings held on 1−8−10 before Judge Adalberto Jordan, Volume Number 8, 1180−1303 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)
850 TRANSCRIPT of Trial Proceedings held on 1−11−19 before Judge Adalberto Jordan, Volume Number 9, 1304−1473 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/10/2010. Redacted Transcript Deadline set for 9/20/2010. Release of Transcript Restriction set for 11/18/2010. (fs) (Entered: 08/17/2010)
851 Clerks Notice to Filer re 841 Notice (Other). Wrong Event Selected − Document is a Motion; ERROR − The Filer selected the wrong event. A motion event must always be selected when filing a motion. The correction was made by the Clerk. It is not necessary to refile this document. (ls) (Entered: 08/19/2010)
SYSTEM ENTRY − Docket Entry 852 restricted/sealed until further notice. (nc) (Entered: 08/19/2010)
853 ORDER denying 817 Motion for Leave to add Witnesses. Signed by Judge Adalberto Jordan on 8/19/2010. (ebs) (Entered: 08/20/2010)

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08/24/2010
08/26/2010 08/26/2010 08/30/2010
09/03/2010 09/07/2010 09/07/2010 09/08/2010
09/09/2010 09/13/2010 09/15/2010 09/24/2010 10/05/2010 10/07/2010 10/12/2010 10/14/2010 10/15/2010

854 ORDER Granting Defendant's Unopposed Motion to File Under Seal [DE 852]. The defendants, however, shall file a readacted version of the materical in the public record by August 30, 2010. Signed by Judge Adalberto Jordan on 8/24/2010. (nc) (Entered: 08/24/2010)
855 NOTICE of Filing Discovery: Supplemental Rule 26 Disclosures by All Defendants.(Wakefield, Reid) (Entered: 08/26/2010)
856 REPLY to Response to Motion re 825 MOTION Substitute Witness filed by All Defendants. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Wakefield, Reid) (Entered: 08/26/2010)
857 ORDER denying as moot 693 Motion in Limine; denying as moot 694 Motion in Limine; denying as moot 695 Motion in Limine; denying as moot 696 Motion in Limine; denying as moot 698 Motion in Limine; denying as moot 699 Motion in Limine; denying as moot 701 Motion in Limine; denying as moot 702 Motion in Limine. Signed by Judge Adalberto Jordan on 8/30/2010. (tb) (Entered: 08/31/2010)
858 RESPONSE to Motion re 841 Motion for Judicial Notice filed by All Plaintiffs. Replies due by 9/13/2010. (Goldfarb, Carl) (Entered: 09/03/2010)
859 Transcript Redaction Request re 842 Transcript,, by attorney Reid Michael Wakefield (Wakefield, Reid) (Entered: 09/07/2010)
860 ORDER granting in part and denying in part 697 Motion request to take judicial notice. Signed by Judge Adalberto Jordan on 9/7/2010. (tb) (Entered: 09/08/2010)
861 NOTICE of Filing Discovery: Third Supplemental Disclosures by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43)(Wakefield, Reid) (Entered: 09/08/2010)
862 ORDER denying 825 Motion to Substitute Witness. Signed by Judge Adalberto Jordan on 9/9/2010. (ls) (Entered: 09/10/2010)
863 RESPONSE in Support re 841 Motion for Judicial Notice Defendants' Reply in Support of their Request for Judicial Notice (D.E. 841) filed by All Defendants. (Landon, Robert) (Entered: 09/13/2010)
864 ORDER Granting Redaction re 859 Transcript Redaction Request filed by All Defendants. Signed by Judge Adalberto Jordan on 9/15/2010. (ail) (Entered: 09/16/2010)
865 ORDER denying without prejudice 700 Motion in Limine. Signed by Judge Adalberto Jordan on 9/24/2010. (tb) (Entered: 09/27/2010)
866 RESPONSE/REPLY to 861 Notice of Filing Discovery,,, Defendants' Third Supplemental Fed.R.Civ.P. 26 Disclosures by All Plaintiffs. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 10/05/2010)
867 MOTION to Withdraw as Attorney for Defendants by Reid M. Wakefield, Brian L. Hayden, & Phillip P. Quaschnick. by All Defendants. Responses due by 10/25/2010 (Wakefield, Reid) (Entered: 10/07/2010)
868 ORDER granting 867 Motion to Withdraw as Attorney. Attorney Reid Michael Wakefield; Brian Lee Hayden and Phillip Peter Quaschnick terminated. Signed by Judge Adalberto Jordan on 10/12/2010. (ls) (Entered: 10/12/2010)
869 MOTION to Amend/Correct 692 Pretrial Stipulation to Substitute Witness by All Defendants. Responses due by 11/1/2010 (Attachments: # 1 Exhibit, # 2 Deposition Excerpts)(Daniel, Stephanie) (Entered: 10/14/2010)
870 Redacted Transcript of Trial Proceedings held on 12−7−09 before Judge Adalberto Jordan, Volume Number 1, 1−168 pages, re: 842 Transcript, Court Reporter: Francine

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10/18/2010 10/19/2010 10/20/2010 10/21/2010 11/01/2010 11/04/2010 11/10/2010 11/15/2010 11/16/2010 11/16/2010
11/17/2010 11/18/2010 11/30/2010 11/30/2010 12/03/2010

Salopek, 305−523−5568/ Francine_Salopek@flsd.uscourts.gov. (fs) (Entered: 10/15/2010)
871 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/18/2010. Bench trial continued to 10/19/10 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/18/2010)
872 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/19/2010. Bench trial continued to10/20/10 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/20/2010)
873 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/20/2010. Bench trial continued to 10/21/10 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/20/2010)
874 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/21/2010. Bench trial to be continued Bench trial to be continued at a later date. Court will notify counsel. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/21/2010)
875 RESPONSE in Opposition re 869 MOTION to Amend/Correct 692 Pretrial Stipulation to Substitute Witness filed by All Plaintiffs. (Goldfarb, Carl) (Entered: 11/01/2010)
876 REPLY to Response to Motion re 869 MOTION to Amend/Correct 692 Pretrial Stipulation to Substitute Witness filed by All Defendants. (Bowden, Albert) (Entered: 11/04/2010)
877 NOTICE OF UNAVAILABILITY by All Defendants for dates of November 26, 29−30, December 16−17, 20−31, 2010, and January 3, 2011 (Daniel, Stephanie) (Entered: 11/10/2010)
878 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/15/2010. Bench trial continued to 11/16/10 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 11/15/2010)
879 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/16/2010. Bench trial continued to 11/17/10 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 /Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 11/16/2010)
880 MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. by All Defendants. Responses due by 12/3/2010 (Attachments: # 1 Attachment "A", # 2 Attachment "B", # 3 Attachment "C", # 4 Attachment "D")(Daniel, Stephanie) (Entered: 11/16/2010)
881 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/17/2010. Bench trial will be reset at a later date. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 11/17/2010)
882 ORDER granting in part and denying in part 869 Motion to Amend/Correct. Signed by Judge Adalberto Jordan on 11/18/2010. (lh) (Entered: 11/18/2010)
883 NOTICE OF UNAVAILABILITY by All Defendants for dates of December 16 and 17, 2010 (Bowden, Albert) (Entered: 11/30/2010)
884 NOTICE by All Plaintiffs of Filing Deposition Designations (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Goldfarb, Carl) (Entered: 11/30/2010)
885 RESPONSE to Motion re 880 MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. MOTION to Amend/Correct 692 Pretrial Stipulation TO

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12/06/2010 12/07/2010 12/07/2010
12/09/2010 12/10/2010 12/10/2010
12/10/2010
01/18/2011 01/19/2011 01/20/2011 01/24/2011 01/25/2011 01/25/2011

ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. filed by All Plaintiffs. Replies due by 12/13/2010. (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 12/03/2010)
886 NOTICE OF UNAVAILABILITY by All Defendants for dates of 12/13/2010 thru 12/17/2010 (Bowden, Albert) (Entered: 12/06/2010)
887 NOTICE by All Defendants re 884 Notice (Other), Notice (Other) Defendants' Objections to Plaintiffs' Deposition Designations (Landon, Robert) (Entered: 12/07/2010)
888 REPLY to Response to Motion re 880 MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. filed by All Defendants. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(Daniel, Stephanie) (Entered: 12/07/2010)
889 NOTICE OF UNAVAILABILITY by All Defendants for dates of January 3−6, 12, February 23, and March 7−11, 2011 (Daniel, Stephanie) (Entered: 12/09/2010)
890 NOTICE by All Defendants re 880 MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. (Daniel, Stephanie) (Entered: 12/10/2010)
891 Original EXHIBITS by All Defendants re: 880 MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. filed by All Defendants. (lk) (Entered: 12/13/2010)
892 Proposed EXHIBITS by All Defendants re: 880 MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. MOTION to Amend/Correct 692 Pretrial Stipulation TO ADD AS SEPARATELY LISTED EXHIBITS MORE CURRENT VERSIONS OF EXISTING EXHIBITS, ETC. filed by All Defendants. (lk) (Entered: 12/13/2010)
893 Unopposed MOTION Enlargement of Time to Serve Responses and Objection to Rule 34 Requests in Connection with the Depositions of William Albury and Don Fuller by All Defendants. (Daniel, Stephanie) (Entered: 01/18/2011)
894 Corrected MOTION Enlargement of Time to Respond to Requests for Production in Connection with the Depositions of Albury and Fuller by All Defendants. (Daniel, Stephanie) (Entered: 01/19/2011)
895 ORDER granting 893 Motion for enlargement of time to respond to requests for production of documents; Response due 2/14/11. Signed by Judge Adalberto Jordan on 1/20/2011. (lh) (Entered: 01/20/2011)
896 MOTION for Protective Order REGARDING PLAINTIFFS FED. R. CIV. P. 34 REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE DEPOSITION OF WILLIAM ALBURY by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Daniel, Stephanie) (Entered: 01/24/2011)
897 ORDER requiring response to 896 MOTION for Protective Order REGARDING PLAINTIFFS FED. R. CIV. P. 34 REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE DEPOSITION OF WILLIAM ALBURY.( Responses due by 2/1/2011). Signed by Magistrate Judge Chris M. McAliley on 1/25/2011. (tmi) (Entered: 01/25/2011)
898 NOTICE by All Defendants re 896 MOTION for Protective Order of Filing Declarations (Attachments: # 1 Affidavit John Edwards, # 2 Affidavit Chris Rorison)(Daniel, Stephanie) Modified on 1/25/2011 (ls). (Entered: 01/25/2011)

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01/27/2011 02/01/2011
02/04/2011
02/04/2011 02/07/2011 02/09/2011 02/10/2011 02/10/2011 02/17/2011 02/18/2011
02/22/2011 02/23/2011
02/23/2011
02/23/2011

899 ORDER Trial will resume at 9:00 AM on 2/7/2011 through 2/10/2011. Signed by Judge Adalberto Jordan on 1/27/2011. (ls) (Entered: 01/27/2011)
900 RESPONSE in Opposition re 896 MOTION for Protective Order REGARDING PLAINTIFFS FED. R. CIV. P. 34 REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE DEPOSITION OF WILLIAM ALBURY filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Goldfarb, Carl) (Entered: 02/01/2011)
901 INITIAL ORDER on 896 MOTION for Protective Order REGARDING PLAINTIFFS FED. R. CIV. P. 34 REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE DEPOSITION OF WILLIAM ALBURY. See Order for details. Signed by Magistrate Judge Chris M. McAliley on 2/4/2011. (tmi) (Entered: 02/04/2011)
902 NOTICE by All Plaintiffs re 887 Notice (Other) of Plaintiffs' Reply to Defendants' Objections to Plaintiffs' Deposition Designations (Goldfarb, Carl) (Entered: 02/04/2011)
903 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/7/2011. Bench trial continued to 2/8/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 02/08/2011)
904 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/9/2011. Bench trial continued to 2/10/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) Modified on 2/11/2011 (mc1). (Entered: 02/09/2011)
905 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/9/2011. Bench trial continued to 2/10/11 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) Modified on 2/11/2011 (mc1). (Entered: 02/10/2011)
906 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/10/2011. Bench trial to be continued at a later date. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 02/10/2011)
907 NOTICE by All Defendants re 692 Pretrial Stipulation of Filing Amended Witness List (Attachments: # 1 Amended Witness List)(Daniel, Stephanie) (Entered: 02/17/2011)
908 Joint MOTION for Extension of Time TO COMPLETE CONFERRAL PROCESS REQUIRED BY INITIAL ORDER ON DEFENDANTS' MOTION FOR PROTECTIVE ORDER (RE DEPOSITION OF WILLIAM ALBURY), D.E. 901 re 901 Order, Set Motion and R&R Deadlines/Hearings,, by All Defendants. Responses due by 3/7/2011 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Daniel, Stephanie) (Entered: 02/18/2011)
909 ORDER granting 908 Motion for Extension of Time. Signed by Magistrate Judge Chris M. McAliley on 2/22/2011. (tmi) (Entered: 02/22/2011)
910 TRANSCRIPT of Trial Proceedings held on 2−9−10 before Judge Adalberto Jordan, Volume Number 10, 1474−1579 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2011. Redacted Transcript Deadline set for 3/29/2011. Release of Transcript Restriction set for 5/27/2011. (fs) (Entered: 02/23/2011)
911 TRANSCRIPT of Trial Proceedings held on 2−10−10 before Judge Adalberto Jordan, Volume Number 11, 1580−1774 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2011. Redacted Transcript Deadline set for 3/29/2011. Release of Transcript Restriction set for 5/27/2011. (fs) (Entered: 02/23/2011)
912 TRANSCRIPT of Trial Proceedings held on 2−11−10 before Judge Adalberto Jordan, Volume Number 12, 1775−1938 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the

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02/23/2011
02/23/2011
02/23/2011
02/23/2011
02/24/2011 02/24/2011 02/25/2011 02/28/2011
03/08/2011

court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2011. Redacted Transcript Deadline set for 3/29/2011. Release of Transcript Restriction set for 5/27/2011. (fs) (Entered: 02/23/2011)
913 TRANSCRIPT of Trial Proceedings held on 5−17−10 before Judge Adalberto Jordan, Volume Number 13, 1939−2200 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2011. Redacted Transcript Deadline set for 3/29/2011. Release of Transcript Restriction set for 5/27/2011. (fs) (Entered: 02/23/2011)
914 TRANSCRIPT of Trial Proceedings held on 5−18−10 before Judge Adalberto Jordan, Volume Number 14, 2201−2471 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2011. Redacted Transcript Deadline set for 3/29/2011. Release of Transcript Restriction set for 5/27/2011. (fs) (Entered: 02/23/2011)
915 TRANSCRIPT of Trial Proceedings held on 5−19−10 before Judge Adalberto Jordan, Volume Number 15, 2472−2714 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2011. Redacted Transcript Deadline set for 3/29/2011. Release of Transcript Restriction set for 5/27/2011. (fs) (Entered: 02/23/2011)
916 TRANSCRIPT of Trial Proceedings held on 5−20−10 before Judge Adalberto Jordan, Volume Number 16, 2715−2919 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/21/2011. Redacted Transcript Deadline set for 3/29/2011. Release of Transcript Restriction set for 5/27/2011. (fs) (Entered: 02/23/2011)
917 RESPONSE/REPLY To Court's Ore Tenus Order by All Defendants. (Daniel, Stephanie) (Entered: 02/24/2011)
918 RESPONSE/REPLY To February 10, 2011 Ore Tenus Order And Notice To Court Regarding Availability of Beth Kidder For Trial by All Defendants. (Daniel, Stephanie) (Entered: 02/24/2011)
919 NOTICE by All Defendants re 918 Response/Reply (Other) Regarding Availability of Parties for Presentation of Testimony of Beth Kidder at Trial (Daniel, Stephanie) (Entered: 02/25/2011)
920 TRANSCRIPT of Trial Proceedings held on 8−3−10 before Judge Adalberto Jordan, Volume Number 17, 2920−3136 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/24/2011. Redacted Transcript Deadline set for 4/4/2011. Release of Transcript Restriction set for 6/3/2011. (fs) (Entered: 02/28/2011)
921 Unopposed MOTION for Leave to File A PRELIMINARY INJUNCTION MOTION EXCEEDING TWENTY PAGES by All Plaintiffs. (Attachments: # 1 Exhibit A − Preliminary Injunction, # 2 Appendix Proposed Order, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36, # 39 Exhibit 37, # 40 Exhibit 38, # 41 Exhibit 39, # 42 Exhibit 40, # 43 Exhibit 41, # 44 Exhibit 42, # 45 Exhibit 43, # 46

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03/10/2011 03/14/2011 03/14/2011
03/15/2011 03/17/2011 03/21/2011 03/22/2011 03/23/2011 03/24/2011 03/24/2011
03/25/2011 03/28/2011

Errata 44, # 47 Exhibit 45, # 48 Exhibit 46, # 49 Exhibit 47, # 50 Exhibit 48, # 51 Exhibit 49, # 52 Exhibit 50, # 53 Exhibit 51, # 54 Exhibit 52, # 55 Exhibit 53, # 56 Exhibit 54, # 57 Exhibit 55, # 58 Exhibit 56, # 59 Exhibit 57, # 60 Exhibit 58)(Singer, Stuart) (Entered: 03/08/2011)
922 NOTICE by All Defendants re 918 Response/Reply (Other) of Withdrawal of D.E. 918 (Daniel, Stephanie) (Entered: 03/10/2011)
923 ORDER granting 921 Motion for Leave to File. Clerks Notice: Filer must separately re−file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. Signed by Judge Adalberto Jordan on 3/14/2011. (ls) (Entered: 03/14/2011)
924 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58)(Singer, Stuart) (Entered: 03/14/2011)
925 ORDER denying 841 Motion for Judicial Notice. Signed by Judge Adalberto Jordan on 3/15/2011. (ls) (Entered: 03/15/2011)
926 ORDER scheduling Trial: ( Bench Trial set for 4/4/2011 09:30 AM in Miami Division before Judge Adalberto Jordan.). Signed by Judge Adalberto Jordan on 3/17/2011. (lk) (Entered: 03/17/2011)
927 REPORT REGARDING Conferral Process on Plaintiffs' Request for Production of Documents in Connection with the Deposition of Willilam Albury by All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Giurato, Gerald) (Entered: 03/21/2011)
928 NOTICE by All Plaintiffs of Filing Deposition Designations (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Goldfarb, Carl) (Entered: 03/22/2011)
929 ORDER setting hearing on 896 MOTION for Protective Order REGARDING PLAINTIFFS FED. R. CIV. P. 34 REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE DEPOSITION OF WILLIAM ALBURY.( Motion Hearing set for 4/7/2011 11:00 AM before Magistrate Judge Chris M. McAliley.). Signed by Magistrate Judge Chris M. McAliley on 3/23/2011. (tmi) (Entered: 03/23/2011)
930 RESPONSE/REPLY to 927 Report Regarding Conferral Process by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Goldfarb, Carl) (Entered: 03/24/2011)
931 ORDER Re−setting Hearing on Motion 896 MOTION for Protective Order REGARDING PLAINTIFFS FED. R. CIV. P. 34 REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE DEPOSITION OF WILLIAM ALBURY. Motion Hearing set for 4/6/2011 09:30 AM before Magistrate Judge Chris M. McAliley.. Signed by Magistrate Judge Chris M. McAliley on 3/24/2011. (tmi) (Entered: 03/24/2011)
932 NOTICE by All Defendants re 928 Notice (Other), Notice (Other) of filing Amended Objections and Cross Designations (Attachments: # 1 Deposition Designations)(Daniel, Stephanie) (Entered: 03/25/2011)
933 ORDER Granting 725 MOTION Joint Motion For Order Allowing Additional Counsel For The Parties And Their Staff To Use Laptop Computers, The Internet, And LiveNotes at Trial, And To Bring Cellular Phones and PDAs into the Courthouse filed by All Plaintiffs, All Defendants. Signed by Judge Adalberto Jordan on 3/28/2011. (lh)

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03/31/2011 03/31/2011
03/31/2011
04/04/2011 04/04/2011 04/05/2011 04/06/2011 04/06/2011 04/06/2011 04/06/2011 04/12/2011
04/18/2011

(Entered: 03/28/2011)
934 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order, # 2 Proposed Response to Motion for Preliminary Injunction, # 3 Exhibit A, # 4 Exhibit B)(Daniel, Stephanie) (Entered: 03/31/2011)
935 NOTICE by All Defendants re 934 MOTION for Leave to File Excess Pages (Attachments: # 1 Deposition Kidder depo. excerpts, # 2 Transcripts S.C. Trial Transcript excerpt, # 3 Deposition S.C. Depo. Transcript excerpts, # 4 Transcripts R.G. Trial Transcript excerpts, # 5 Deposition E.W. Depo. excerpts, # 6 Transcripts K.S. Trial Transcript excerpts, # 7 Transcripts Schechtman Trial Transcript excerpts, # 8 Transcripts K.V. Trial Transcript excerpts, # 9 Transcripts St. Petery Trial Transcript excerpts, # 10 Transcripts Northup Trial Transcript excerpts, # 11 Transcripts Cosgrove Trial Transcript excerpts, # 12 Transcripts Silva Trial Transcript excerpts, # 13 Transcripts Postma Rough Transcript excerpts, # 14 Transcripts Ayala Rough Transcript excerpts, # 15 Transcripts Isaac Rough Transcript exceprts, # 16 Transcripts Fenichel Rough Transcript excerpts)(Daniel, Stephanie) (Entered: 03/31/2011)
936 NOTICE by All Defendants re 934 MOTION for Leave to File Excess Pages of Filing Exhibits Relating to Defendants' Response to Plaintiffs' Motion for Preliminary Injunction (Attachments: # 1 Excerpts of DX 16, # 2 Excerpts of DX 43, # 3 Excerpts of DX 39, # 4 Excerpts of DX 27 Part I, # 5 Excerpts of DX 27 Part II, # 6 Excerpts of DX 37, # 7 Excerpts of DX 2, # 8 Excerpts of DX 120, # 9 Excerpts of DX 130, # 10 Excerpts of DX 111, # 11 Excerpts of DX 110, # 12 Excerpts of DX 124, # 13 DX 131, # 14 Excerpts of DX 136, # 15 Excerpts of DX 83, # 16 Excerpts of DX 79, # 17 Excerpts of DX 82, # 18 DX 89, # 19 DX 92, # 20 Excerpts of DX 94, # 21 PX 686, # 22 Excerpts of PX 572)(Daniel, Stephanie) (Entered: 03/31/2011)
937 NOTICE by All Defendants of Filing (Attachments: # 1 Amended Objections to Deposition Designations for Phil Williams)(Daniel, Stephanie) (Entered: 04/04/2011)
938 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 4/4/2011. Bench trial continued to 4/5/11 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 04/05/2011)
939 Notice of Supplemental Authority Regarding Defendants' Response to Plaintiffs' Motion for Preliminary Injunction by All Defendants (Daniel, Stephanie) (Entered: 04/05/2011)
940 Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Motion Hearing held on 4/6/2011 re 896 MOTION for Protective Order REGARDING PLAINTIFFS FED. R. CIV. P. 34 REQUEST FOR PRODUCTION OF DOCUMENTS IN CONNECTION WITH THE DEPOSITION OF WILLIAM ALBURY filed by All Defendants. (Digital 9:37:40.) (nf) (Entered: 04/06/2011)
941 ORDER granting in part and denying in part 896 Motion for Protective Order. Signed by Magistrate Judge Chris M. McAliley on 4/6/2011. (tmi) (Entered: 04/06/2011)
942 NOTICE by All Plaintiffs of Filing Letter re Albury's Anticipated Testimony (Attachments: # 1 Exhibit A)(Goldfarb, Carl) (Entered: 04/06/2011)
943 ORDER OF CERTIFICATION FOR REASSIGNMENT to Magistrate Judge John J. O'Sullivan for all further proceedings, Magistrate Judge Chris M. McAliley no longer assigned to case. Signed by Magistrate Judge Chris M. McAliley on 4/6/2011. (lh) (Entered: 04/07/2011)
944 Plaintiff's MOTION for Leave to File Excess Pages in Reply in Support of Motion for a Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Proposed Order, # 2 Exhibit A: Reply Brief, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17)(Singer, Stuart) Modified by sealing de# 944−14 and 944−15 per 958 Order on 5/6/2011 (nc). (Entered: 04/12/2011)
945 ORDER granting 944 Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 4/18/2011. (lh) (Entered: 04/18/2011)

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04/20/2011 04/21/2011 04/22/2011 04/22/2011 04/23/2011
04/25/2011 04/25/2011
05/02/2011
05/05/2011 05/05/2011 05/05/2011 05/06/2011 05/06/2011 05/13/2011 05/13/2011 05/13/2011

946 APPEAL OF MAGISTRATE JUDGE ORDER to District Court by Elizabeth Dudek re 941 Order on Motion for Protective Order (Daniel, Stephanie) (Entered: 04/20/2011)
947 Plaintiff's MOTION to Remove from the Public Docket Two Inadvertently Filed Exhibits that Contain Confidential Information by All Plaintiffs. (Goldfarb, Carl) (Entered: 04/22/2011)
948 RESPONSE in Support re 947 Plaintiff's MOTION to Remove from the Public Docket Two Inadvertently Filed Exhibits that Contain Confidential Information filed by All Defendants. (Daniel, Stephanie) (Entered: 04/22/2011)
949 CLERK'S NOTICE of Filing Judge O'Sullivan's Discovery Procedures (wc) (Entered: 04/22/2011)
950 REPLY to Response to Motion re 924 MOTION for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Singer, Stuart) (Entered: 04/23/2011)
951 Unopposed MOTION for Leave to File Proposed Surreply by Elizabeth Dudek. (Attachments: # 1 Text of Proposed Order, # 2 Proposed Surreply)(Daniel, Stephanie) (Entered: 04/25/2011)
952 NOTICE by Elizabeth Dudek re 951 Unopposed MOTION for Leave to File Proposed Surreply of Filing Documents in Connection with Surreply (Attachments: # 1 Excerpts from Trial Transcript, Volume 15, # 2 Excerpts from Trial Transcript, Volume IX, # 3 Excerpts of deposition transcript of S.C., # 4 Excerpt from Defendants Exhibit 101, # 5 Excerpt from Defendants Exhibit 97, # 6 Excerpt from Defendants Exhibit 94, # 7 Excerpt from Defendants Exhibit 102, # 8 Excerpts of deposition transcript of Dr. Sarkis, # 9 Excerpt from Defendants Exhibit 3, # 10 Excerpt from Defendants Exhibit 2, # 11 Excerpt from Defendants Exhibit 1)(Daniel, Stephanie) (Entered: 04/25/2011)
953 TRANSCRIPT of Hearing Transcript on Defendants' Motion for Protective Order held on 4/6/11 before Magistrate Judge Chris M. McAliley, 1−86 pages, Court Reporter: Jerald M. Meyers, 954−431−4757 / crjm@aol.com. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/26/2011. Redacted Transcript Deadline set for 6/6/2011. Release of Transcript Restriction set for 8/4/2011. (Attachments: # 1 Designation Access Form)(hh) (Entered: 05/02/2011)
954 NOTICE OF UNAVAILABILITY by All Defendants for dates of May 30 − August 26, 2011 (Bowden, Albert) (Entered: 05/05/2011)
955 NOTICE by All Defendants re 946 Appeal of Magistrate Judge Order to District Court (Bowden, Albert) (Entered: 05/05/2011)
956 RESPONSE/REPLY to 954 Notice of Unavailability by All Plaintiffs. (Goldfarb, Carl) (Entered: 05/05/2011)
957 ORDER granting 951 Motion for Leave to File Surreply. Clerks Notice: Filer must separately re−file the pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. Signed by Judge Adalberto Jordan on 5/5/2011. (lh) (Entered: 05/06/2011)
958 ORDER Granting 947 Motion to Remove from the Public Docket Two Inadvertently Filed Exhibits Containing Confidential Information. The Clerk shall seal docket entries 944−14 and 944−15 from the docket. Signed by Judge Adalberto Jordan on 5/6/2011. (Entered: 05/06/2011)
959 RESPONSE to Motion re 951 Unopposed MOTION for Leave to File Proposed Surreply filed by All Plaintiffs. Replies due by 5/23/2011. (Singer, Stuart) (Entered: 05/13/2011)
960 RESPONSE in Opposition re 924 MOTION for Preliminary Injunction Surreply regarding Motion filed by Elizabeth Dudek. (Daniel, Stephanie) (Entered: 05/13/2011)
961 RESPONSE in Support re 924 MOTION for Preliminary Injunction / Plaintiffs' Response to Defendants' Sur−Reply filed by All Plaintiffs. (Singer, Stuart) (Entered: 05/13/2011)

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05/16/2011 05/18/2011 05/24/2011
05/25/2011 05/26/2011
05/31/2011 05/31/2011
06/01/2011 06/02/2011 06/03/2011
06/03/2011 06/05/2011 06/05/2011 06/06/2011 06/06/2011 06/07/2011

962 NOTICE by Elizabeth Dudek re 924 MOTION for Preliminary Injunction of Filing Excerpt from 2011 GAA (Attachments: # 1 Excerpts from 2011 GAA)(Daniel, Stephanie) (Entered: 05/16/2011)
963 NOTICE OF UNAVAILABILITY by All Defendants for dates of June 1−3, 2011 (Landon, Robert) (Entered: 05/18/2011)
964 NOTICE by All Plaintiffs re 962 Notice (Other) / Plaintiffs' Notice of Filing Declaration of James Crall in Response to Defendants' Notice of Filing Excerpts of Florida 2011 General Appropriations Act (Attachments: # 1 Exhibit 1: Declaration of Dr. James Crall, # 2 Exhibit A to Crall Declaration, # 3 Exhibit B to Crall Declaration, # 4 Exhibit C to Crall Declaration, # 5 Exhibit D to Crall Declaration, # 6 Exhibit E to Crall Declaration)(Singer, Stuart) (Entered: 05/24/2011)
965 MEMORANDUM in Support of Admissibility of the Institute for Child Health Policies' Reports by All Defendants. (Attachments: # 1 Exhibit)(Bowden, Albert) (Entered: 05/25/2011)
966 Minute Entry for proceedings held before Judge Adalberto Jordan: Motion Hearing held on 5/26/2011 re 924 MOTION for Preliminary Injunction filed by All Plaintiffs. Order to follow. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 05/26/2011)
967 NOTICE by Elizabeth Dudek re 924 MOTION for Preliminary Injunction of Filing 2011 Veto List (Attachments: # 1 2011 Veto List)(Daniel, Stephanie) (Entered: 05/31/2011)
968 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 5/31/2011. Bench trial continued to 6/1/11 at 9:45 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 05/31/2011)
969 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 6/1/2011. Bench trial continued to 6/2/11 at 9:45 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 06/01/2011)
970 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 6/2/2011. Bench trial continued to 6/6/11 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 06/02/2011)
971 EMERGENCY MOTION for Extension of Time to File Response to Ore Tenus Order by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of the Florida Department of Health. (lh) (Entered: 06/03/2011)
972 ORDER granting 971 Emergency Motion for Extension of Time to File Response; Responses due by 6/10/2011. Signed by Judge Adalberto Jordan on 6/3/2011. (lh) (Entered: 06/03/2011)
973 MEMORANDUM of Law Concerning Trial Testimony Contrary to Prior 30(b)(6) Deposition Testimony by All Plaintiffs. (Singer, Stuart) (Entered: 06/05/2011)
974 RESPONSE/REPLY to 965 Memorandum re Inadmissibility of ICHP Reports by All Plaintiffs. (Singer, Stuart) (Entered: 06/05/2011)
SYSTEM ENTRY − Docket Entry 975 restricted/sealed until further notice. (nc) (Entered: 06/06/2011)
976 Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 6/6/2011. Case continued to 6/29/11 at 2:30 p.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 06/07/2011)
977 MOTION for Reconsideration of Ore Tenus Ruling that Defendants are Required to Turn Over to Plaintiffs all but Four Pages of the Pediatric Society Trial Preparation Folder for Elizabeth Kidder by All Defendants. (Attachments: # 1 Transcripts May 31, 2011 Rough Trial Transcript, # 2 Transcripts June 1, 2011 Rough Trial Transcript, # 3 Transcripts June 2, 2011 Rough Trial Transcript, # 4 Transcripts June 2, 2011 supplemental rough trial transcript)(Daniel, Stephanie) (Entered: 06/07/2011)

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06/10/2011 06/10/2011 06/10/2011 06/13/2011 06/15/2011 06/16/2011 06/17/2011
06/17/2011
06/17/2011
06/17/2011 06/17/2011 06/20/2011
06/20/2011

978 Plaintiff's MOTION to Exclude DX 477, DX 477A, and DX 477B by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Singer, Stuart) (Entered: 06/10/2011)
979 RESPONSE/REPLY to Court's June 2, 2011 Ore Tenus Order by All Defendants. (Attachments: # 1 Exhibit A (Florida Facts))(Daniel, Stephanie) (Entered: 06/10/2011)
980 RESPONSE in Opposition re 977 MOTION for Reconsideration of Ore Tenus Ruling that Defendants are Required to Turn Over to Plaintiffs all but Four Pages of the Pediatric Society Trial Preparation Folder for Elizabeth Kidder filed by All Plaintiffs. (Attachments: # 1 Exhibit 1)(Singer, Stuart) (Entered: 06/10/2011)
981 MOTION to Amend/Correct 692 Pretrial Stipulation and DE 880 by All Defendants. Responses due by 6/30/2011 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Bowden, Albert) Modified by sealing Exhibits 1−5 same as (A−D) per 1058 Order on 11/16/2011 (nc). (Entered: 06/13/2011)
982 MOTION for Extension of Time to File Response/Reply by All Defendants. (Bowden, Albert) (Entered: 06/15/2011)
983 RESPONSE/REPLY Amended Response/Reply to Court's June 2, 2011 Ore Tenus Order by All Defendants. (Attachments: # 1 Exhibit Exhibit A (Florida Facts))(Bowden, Albert) (Entered: 06/16/2011)
984 TRANSCRIPT of Trial Proceedings held on 8−4−10 before Judge Adalberto Jordan, Volume Number 18, 3137−3381 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/11/2011. Redacted Transcript Deadline set for 7/21/2011. Release of Transcript Restriction set for 9/19/2011. (fs) (Entered: 06/17/2011)
985 TRANSCRIPT of Trial Proceedings held on 8−5−10 before Judge Adalberto Jordan, Volume Number 19, 3382−3561 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/11/2011. Redacted Transcript Deadline set for 7/21/2011. Release of Transcript Restriction set for 9/19/2011. (fs) (Entered: 06/17/2011)
986 NOTICE of filing Excerpted portion of the Rough Trial Transcript by All Defendants re 977 MOTION for Reconsideration of Ore Tenus Ruling that Defendants are Required to Turn Over to Plaintiffs all but Four Pages of the Pediatric Society Trial Preparation Folder for Elizabeth Kidder (Attachments: # 1 Transcripts Rough − May 31, 2011, # 2 Transcripts Rough − June 1, 2011, # 3 Transcripts Rough − June 2, 2011)(Daniel, Stephanie) Modified text on 6/20/2011 (lk). (Entered: 06/17/2011)
987 NOTICE by All Defendants re 967 Notice (Other) of Filing Excerpts from 2011 General Appropriations Act (Attachments: # 1 Excerpts from 2011 General Appropriations Act)(Daniel, Stephanie) (Entered: 06/17/2011)
988 RESPONSE/REPLY to 979 Response/Reply (Other), 983 Response/Reply (Other) PLAINTIFFS OPPOSITION TO DEFENDANTS RESPONSE TO COURTS JUNE 2, 2011 ORE TENUS ORDER by All Plaintiffs. (Singer, Stuart) (Entered: 06/17/2011)
989 NOTICE by All Defendants re 983 Response/Reply (Other) of Filing Excerpts of Transcripts (Attachments: # 1 Transcripts 12/8/2009, # 2 Transcripts 2/9/2010, # 3 Transcripts 2/10/2010, # 4 Transcripts 5/19/2010, # 5 Transcripts 5/20/2010, # 6 Transcripts 8/4/2010, # 7 Transcripts 8/9/2010, # 8 Transcripts 8/10/2010, # 9 Transcripts 8/11/2010, # 10 Transcripts 10/18/2010, # 11 Transcripts 10/19/2010, # 12 Transcripts 11/15.2010, # 13 Transcripts 2/9/2011)(Daniel, Stephanie) (Entered: 06/20/2011)
990 REPLY to Response to Motion re 977 MOTION for Reconsideration of Ore Tenus Ruling that Defendants are Required to Turn Over to Plaintiffs all but Four Pages of the Pediatric Society Trial Preparation Folder for Elizabeth Kidder filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Daniel, Stephanie) (Entered: 06/20/2011)

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06/20/2011 06/24/2011 06/24/2011 06/24/2011 06/26/2011
06/26/2011
06/26/2011
06/26/2011
06/27/2011 06/28/2011
06/30/2011 07/01/2011 07/06/2011

991 992 994 995
996
997
998
999 1000
1001 1002 1003

RESPONSE/REPLY to 974 Response/Reply (Other) Regarding Admissibility of ICHP reports by All Defendants. (Bowden, Albert) (Entered: 06/20/2011)
RESPONSE in Opposition re 978 Plaintiff's MOTION to Exclude DX 477, DX 477A, and DX 477B filed by All Defendants. (Bowden, Albert) (Entered: 06/24/2011)
SYSTEM ENTRY − Docket Entry 993 restricted/sealed until further notice. (vp) (Entered: 06/24/2011)
RESPONSE in Opposition re 981 MOTION to Amend/Correct 692 Pretrial Stipulation and DE 880 MOTION to Amend/Correct 692 Pretrial Stipulation and DE 880 filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Singer, Stuart) (Entered: 06/24/2011)
TRANSCRIPT of Trial Proceedings held on 8−9−10 before Judge Adalberto Jordan, Volume Number 20, 3562−3715 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2011. Redacted Transcript Deadline set for 8/1/2011. Release of Transcript Restriction set for 9/29/2011. (fs) (Entered: 06/26/2011)
TRANSCRIPT of Trial Proceedings held on 8−10−10 before Judge Adalberto Jordan, Volume Number 21, 3716−3846 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2011. Redacted Transcript Deadline set for 8/1/2011. Release of Transcript Restriction set for 9/29/2011. (fs) (Entered: 06/26/2011)
TRANSCRIPT of Trial Proceedings held on 8−11−10 before Judge Adalberto Jordan, Volume Number 22, 3847−4039 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2011. Redacted Transcript Deadline set for 8/1/2011. Release of Transcript Restriction set for 9/29/2011. (fs) (Entered: 06/26/2011)
TRANSCRIPT of Trial Proceedings held on 8−12−10 before Judge Adalberto Jordan, Volume Number 23, 4040−4221 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2011. Redacted Transcript Deadline set for 8/1/2011. Release of Transcript Restriction set for 9/29/2011. (fs) (Entered: 06/26/2011)
RESPONSE/REPLY to 988 Response/Reply (Other) by All Defendants. (Bowden, Albert) (Entered: 06/27/2011)
Unopposed MOTION Leave to Serve Non−Party Production by All Defendants. (Attachments: # 1 Notice of Non−Party Production (J.S.), # 2 Notice of Non−Party Production (J.W.), # 3 Notice of Non−Party Production (K.K.), # 4 Notice of Non−Party Production (L.C.), # 5 Notice of Non−Party Production (N.G.), # 6 Notice of Non−Party Production (N.R.), # 7 Notice of Non−Party Production (N.V.), # 8 Notice of Non−Party Production (S.M.), # 9 Notice of Non−Party Production (T.G.))(Daniel, Stephanie) (Entered: 06/28/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 6/30/2011. Bench trial continued to 7/1/11 at 9:15 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 07/01/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 7/1/2011. Bench trial will continue at a later date. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 07/01/2011)
MOTION PLAINTIFFS MEMORANDUM REGARDING ADMISSIBILITY OF LAY OPINION TESTIMONY FROM BETH KIDDER by All Plaintiffs. (Attachments: # 1

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07/06/2011 07/07/2011
07/08/2011 07/11/2011 07/11/2011 07/11/2011 07/12/2011
07/14/2011
07/19/2011 07/21/2011 07/26/2011 07/26/2011 08/01/2011 08/10/2011 08/16/2011 08/17/2011 08/19/2011

1004 1005
1006 1007 1008 1009 1010
1011
1012 1013 1014 1015 1016 1017 1018 1019 1020

Exhibit A)(Singer, Stuart) (Entered: 07/06/2011)
MEMORANDUM of Law in Support of COURTS EVIDENTIARY RULING THAT ELIZABETH Y. KIDDER MAY OFFER LAY OPINIONS REGARDING ACCESS TO CARE by All Defendants. (Daniel, Stephanie) (Entered: 07/06/2011)
NOTICE by Elizabeth Dudek re 981 MOTION to Amend/Correct 692 Pretrial Stipulation and DE 880 MOTION to Amend/Correct 692 Pretrial Stipulation and DE 880 (Attachments: # 1 Defendant's Response to Plaintiffs' Request for Production of Documents in Connection with the Deposition of William Albury, # 2 Defendant's Response to Plaintiffs' Request for Production of Documents in Connection with the Deposition of Don Fuller)(Daniel, Stephanie) (Entered: 07/07/2011)
Notice of Supplemental Authority re 924 MOTION for Preliminary Injunction by All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B (Part 1), # 3 Exhibit B (Part 2))(Landon, Robert) (Entered: 07/08/2011)
ORDER on Pending Motions & Matters re 924 Motion for Preliminary Injunction. Signed by Judge Adalberto Jordan on 7/11/2011. (lh) (Entered: 07/11/2011)
MOTION re 1006 Notice of Supplemental Authority PLAINTIFFS RESPONSE TO DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITIES by All Plaintiffs. (Singer, Stuart) (Entered: 07/11/2011)
RESPONSE to 1006 Notice of Supplemental Authority by All Plaintiffs. (lh)see DE# 1008 for image (Entered: 07/12/2011)
Clerks Notice to Filer re 1008 MOTION re 1006 Notice of Supplemental Authority PLAINTIFFS RESPONSE TO DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITIES. Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de#1009]. It is not necessary to refile this document. (lh) (Entered: 07/12/2011)
Unopposed MOTION for Judicial Notice of Medicaid Dental Fee Schedules by All Defendants. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − 2010 Dental Fee Schedule, # 3 Exhibit B − 2011 Dental Fee Schedule, # 4 Exhibit C − website for Medicaid fee schedules)(Daniel, Stephanie) (Entered: 07/14/2011)
ORDER on 1011 Defendants' Unopposed Motion for Judicial Notice. Signed by Judge Adalberto Jordan on 7/18/2011. (lh) (Entered: 07/19/2011)
NOTICE OF UNAVAILABILITY by All Plaintiffs for dates of 08/29/2011 − 09/09/2011 (Singer, Stuart) (Entered: 07/21/2011)
NOTICE by All Defendants re 1000 Unopposed MOTION Leave to Serve Non−Party Production of Filing Updated Proposed Order on Unopposed Discovery Motion (Landon, Robert) (Entered: 07/26/2011)
NOTICE by All Defendants Request for Oral Argument to Resolve Their Motion to Exclude Dr. St. Petery's Proposed Expert Testimony (Landon, Robert) (Entered: 07/26/2011)
ORDER granting 1000 Motion for Leave to Serve Notice of Production to Non−Parties. Signed by Judge Adalberto Jordan on 8/1/2011. (lh) (Entered: 08/01/2011)
STIPULATION Joint Stipulation by All Defendants (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Landon, Robert) (Entered: 08/10/2011)
NOTICE by All Defendants of Filing Revised Objections to Exhibits Offered by Plaintiffs on February 10, 2011, without Witnesses (Attachments: # 1 Revised Objections to Exhibits)(Daniel, Stephanie) (Entered: 08/16/2011)
Notice of Supplemental Authority re 924 MOTION for Preliminary Injunction by All Plaintiffs (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Singer, Stuart) (Entered: 08/17/2011)
Notice of Supplemental Authority in Opposition to Plaintiffs' Motion for Preliminary Injunction by Elizabeth Dudek (Attachments: # 1 Amicus Brief)(Daniel, Stephanie) (Entered: 08/19/2011)

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08/19/2011 08/23/2011 08/29/2011 09/08/2011 09/09/2011 09/19/2011 10/01/2011
10/01/2011
10/01/2011
10/04/2011 10/04/2011 10/05/2011 10/06/2011 10/11/2011

1021 1022 1023 1024 1025 1026 1027
1028
1029
1030 1031 1032 1033 1034

SUGGESTION OF DEATH as to Plaintiff T.G. by All Defendants (Daniel, Stephanie) (Entered: 08/19/2011)
NOTICE OF UNAVAILABILITY by All Plaintiffs for dates of Sept. 8−13, 2011 (Singer, Stuart) (Entered: 08/23/2011)
Unopposed MOTION to Withdraw as Attorney by Joshua Riley. by All Plaintiffs. Responses due by 9/15/2011 (Attachments: # 1 Proposed Order)(Singer, Stuart) (Entered: 08/29/2011)
ORDER granting 1017 Stipulation filed by All Defendants. Signed by Judge Adalberto Jordan on 9/7/2011. (lh) (Entered: 09/08/2011)
ORDER re 1021 Suggestion of Death filed by All Defendants, ( Responses due by 9/19/2011). Signed by Judge Adalberto Jordan on 9/9/2011. (lh) (Entered: 09/09/2011)
RESPONSE/REPLY to 1021 Suggestion of Death by All Plaintiffs. (Singer, Stuart) (Entered: 09/19/2011)
TRANSCRIPT of Trial Proceedings held on 8−13−10 before Judge Adalberto Jordan, Volume Number 24, 4222−4292 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/27/2011. Redacted Transcript Deadline set for 11/4/2011. Release of Transcript Restriction set for 1/3/2012. (fs) (Entered: 10/01/2011)
TRANSCRIPT of Trial Proceedings held on 10−18−10 before Judge Adalberto Jordan, Volume Number 25, 4293−4433 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/27/2011. Redacted Transcript Deadline set for 11/4/2011. Release of Transcript Restriction set for 1/3/2012. (fs) (Entered: 10/01/2011)
TRANSCRIPT of Trial Proceedings held on 10−19−10 before Judge Adalberto Jordan, Volume Number 26, 4434−4595 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/27/2011. Redacted Transcript Deadline set for 11/4/2011. Release of Transcript Restriction set for 1/3/2012. (fs) (Entered: 10/01/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/3/2011. Bench trial continued to 10/4/11 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) Modified on 10/4/2011 (mc1). (Entered: 10/04/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/4/2011. Bench trial continued to 10/5/11 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/04/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/5/2011. Bench trial continued to 10/6/11 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/05/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/6/2011. Bench trial continued to 10/11/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/07/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/11/2011. Bench trial continued to 10/12/11 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/11/2011)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 79 of 108

10/12/2011 10/13/2011 10/15/2011 10/17/2011 10/18/2011 10/19/2011 10/20/2011 10/24/2011 10/25/2011 10/26/2011 10/27/2011 10/27/2011 11/01/2011 11/07/2011 11/08/2011

1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049

Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/12/2011. Jury trial continued to 10/13/11. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/13/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/13/2011. Case continued to 10/17/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/13/2011)
MEMORANDUM of Law IN OPPOSITION TO COURTS LIMITATIONS ON TRIAL TESTIMONY OF PHIL WILLIAMS by All Defendants. (Daniel, Stephanie) (Entered: 10/15/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/17/2011. Bench trial continued to 10/18/11 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/18/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/18/2011. Bench trial continued to 10/19/11 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/18/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/19/2011. Bench trial continued to 10/20/11 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/19/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/20/2011. Bench trial continued to 10/24/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/20/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/24/2011. Bench trial continued to 10/25/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/24/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/25/2011. Bench trial continued to 10/26/11 at 10:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/25/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/26/2011. Bench trial continued to 10/27/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/26/2011)
NOTICE by All Defendants of Filing Excerpt of Transcript of October 25, 2011 Proceedings (Attachments: # 1 Transcript Excerpt 10/25/2011)(Daniel, Stephanie) (Entered: 10/27/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 10/27/2011. Bench trial continued to 11/7/11 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 10/27/2011)
Case Reassignment of Paired Magistrate Judge pursuant to Administrative Order to Magistrate Judge Ted E. Bandstra. Magistrate Judge John J. O'Sullivan no longer assigned to case. (vp) (Entered: 11/03/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/7/2011. Bench trial continued to 11/8/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 11/07/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/8/2011. Bench trial continued to 11/9/11 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered:

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 80 of 108

11/09/2011
11/10/2011
11/14/2011
11/15/2011
11/16/2011 11/16/2011 11/16/2011 11/16/2011
11/16/2011
11/16/2011 11/17/2011 11/18/2011 11/21/2011 11/22/2011 11/22/2011 11/28/2011

1050
1051
1052
1053
1054 1055 1056 1057
1058
1059 1060 1061 1062 1063 1064 1065

11/08/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/9/2011. Bench trial continued to 11/10/11 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 11/14/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/10/2011 − bench trial continued to 11/14/11 at 9:30am. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mr1) (Entered: 11/14/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/14/2011. Bench trial continued to 11/15/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 11/14/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/15/2011. Bench trial continued to 11/16/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mno) (Entered: 11/16/2011)
ORDER granting 1023 Motion to Withdraw as Attorney. Attorney Joshua P. Riley terminated. Signed by Judge Adalberto Jordan on 11/16/11. (tp) (Entered: 11/16/2011)
ORDER granting 934 Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 11/16/11. (tp) (Entered: 11/16/2011)
ORDER granting 982 Motion for Extension of Time to File Response/Reply. Signed by Judge Adalberto Jordan on 11/16/11. (tp) (Entered: 11/16/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/16/2011. Bench Trial continued to a future date − to be set by the Court. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mno) (Entered: 11/16/2011)
ORDER Granting 993 AGREED MOTION to remove documents from public docket and file under seal. The clerk shall remove Exhibits A,B,C and D of D.E. 981 from the public docket, and file those exhibits under seal. The defendants shall file redacted version of these exhibits in the public record within 14 days. Signed by Judge Adalberto Jordan on 11/16/2011. (nc) (Entered: 11/16/2011)
CLERK'S NOTICE of Compliance pursuant to 1058 Order (nc) (Entered: 11/16/2011)
NOTICE OF UNAVAILABILITY by All Defendants for dates of November 3 − December 2, December 13−14 & 20−22, 2011 (Daniel, Stephanie) (Entered: 11/17/2011)
NOTICE by Elizabeth Dudek re 1058 Order on Sealed Motion, of Filing Redacted Exhibits (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, part 1, # 5 Exhibit D, part 2)(Daniel, Stephanie) (Entered: 11/18/2011)
MOTION to Dismiss for Lack of Jurisdiction 77 Amended Complaint on Mootness Grounds, claims of J.W. by All Defendants. Responses due by 12/8/2011 (Attachments: # 1 Exhibit A)(Daniel, Stephanie) (Entered: 11/21/2011)
MEMORANDUM in Opposition Plaintiffs' Memorandum in Support of Admission of GAO Report as Impeachment Evidence by All Defendants. (Daniel, Stephanie) (Entered: 11/22/2011)
NOTICE by All Defendants of Filing Responsive Bench Memo Regarding Lay Opinions (Attachments: # 1 Bench Memo regarding Lay Opinions)(Daniel, Stephanie) (Entered: 11/22/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/28/2011. Bench trial continued to 11/29/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 11/28/2011)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 81 of 108

11/29/2011 11/30/2011 12/01/2011 12/05/2011 12/06/2011 12/07/2011 12/07/2011 12/08/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011 12/12/2011 12/13/2011 12/13/2011

1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081

Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/29/2011. Trial continued to 11/30/2011 at 10:00 am Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mno) (Entered: 11/29/2011)
Paperless Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 11/30/2011. Bench Trial continued to 12/1/2011 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mno) (Entered: 11/30/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/1/2011. Bench Trial to resume on Monday, 12/5/2011 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mno) (Entered: 12/01/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/5/2011. Bench trial continued to 12/6/12 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 12/05/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/6/2011. Bench trial continued to 12/7/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 12/06/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/7/2011. Bench trial continued to 12/8/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 12/07/2011)
RESPONSE in Opposition re 1062 MOTION to Dismiss for Lack of Jurisdiction 77 Amended Complaint on Mootness Grounds, claims of J.W. filed by All Plaintiffs. (Attachments: # 1 Exhibit A (Declaration of E.W.))(Singer, Stuart) (Entered: 12/07/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/8/2011. Bench trial continued to 12/12/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 12/09/2011)
NOTICE by All Defendants Memorandum on Defense Trial Exhibit 611 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Landon, Robert) (Entered: 12/12/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/12/2011. Bench trial continued to 12/13/11 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 12/12/2011)
MEMORANDUM of Law on Defense Trial Exhibit 611 by All Defendants. See image at DE 1074 (lk) (Entered: 12/12/2011)
Clerks Notice to Filer re 1074 Notice (Other). Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de#1076]. It is not necessary to refile this document. (lk) (Entered: 12/12/2011)
NOTICE by All Plaintiffs of Filing Memorandum Regarding Florida Statute 39.202 Background (Singer, Stuart) (Entered: 12/12/2011)
MEMORANDUM of Law regarding Florida Statute 39.202 Background by All Plaintiffs. See image at DE 1078 (lk) (Entered: 12/13/2011)
Clerks Notice to Filer re 1078 Notice (Other). Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de#1079]. It is not necessary to refile this document. (lk) (Entered: 12/13/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/13/2011. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (ail) (Entered: 12/13/2011)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 82 of 108

12/13/2011
12/13/2011
12/13/2011
12/14/2011 12/15/2011 12/19/2011 12/19/2011 12/20/2011 12/20/2011 12/23/2011 12/30/2011 01/03/2012

1082
1083
1084
1085 1086 1087 1088 1089 1090 1091 1092 1093

TRANSCRIPT of Trial Proceedings held on 10−20−10 before Judge Adalberto Jordan, Volume Number 27, 4596−5732 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 1/6/2012. Redacted Transcript Deadline set for 1/17/2012. Release of Transcript Restriction set for 3/15/2012. (fs) (Entered: 12/13/2011)
TRANSCRIPT of Trial Proceedings held on 10−21−10 before Judge Adalberto Jordan, Volume Number 28, 4733−4824 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Francine Salopek or PACER. Redaction Request due 1/6/2012. Redacted Transcript Deadline set for 1/17/2012. Release of Transcript Restriction set for 3/15/2012. (fs) (Entered: 12/13/2011)
TRANSCRIPT of Trial Proceedings held on 11−15−10 before Judge Adalberto Jordan, Volume Number 29, 4825−4921 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Francine Salopek or PACER. Redaction Request due 1/6/2012. Redacted Transcript Deadline set for 1/17/2012. Release of Transcript Restriction set for 3/15/2012. (fs) (Entered: 12/13/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/14/2011. Bench trial continued to 12/15/11 at 9:45 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 12/15/2011)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 12/15/2011. Bench trial continued to January 2012. Counsel to contact chambers as to start date. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 12/15/2011)
REPLY to Response to Motion re 1062 MOTION to Dismiss for Lack of Jurisdiction 77 Amended Complaint on Mootness Grounds, claims of J.W. filed by All Defendants. (Daniel, Stephanie) (Entered: 12/19/2011)
NOTICE by All Defendants Defendants' Notice of Filing Declarations (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 − Part 1, # 4 Exhibit 3 − Part 2, # 5 Exhibit 3 − Part 3, # 6 Exhibit 3 − Part 4, # 7 Exhibit 3 − Part 5)(Landon, Robert) (Entered: 12/19/2011)
NOTICE by All Plaintiffs of Filing Proposed Outline for Findings of Fact and Conclusions of Law (Singer, Stuart) (Entered: 12/20/2011)
NOTICE by All Defendants of Filing Proposed Outline for Proposed Findings of Fact and Conclusions of Law (Attachments: # 1 Proposed Outline)(Daniel, Stephanie) (Entered: 12/20/2011)
Defendant's MOTION to Require Plaintiffs to Clarify Plaintiffs' Rebuttal Witness List by All Defendants. (Attachments: # 1 Exhibit Witness List, # 2 Exhibit Rough Trial Transcript, # 3 Exhibit Email)(Jimenez, Marcos) (Entered: 12/23/2011)
RESPONSE in Opposition re 1091 Defendant's MOTION to Require Plaintiffs to Clarify Plaintiffs' Rebuttal Witness List filed by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Singer, Stuart) (Entered: 12/30/2011)
NOTICE by All Defendants Request for Judicial Notice (Attachments: # 1 Exhibit Florida Medicaid Reform Application for 1115 Research and Demonstration Waiver, # 2 Exhibit Letter to Elizabeth Dudek from Cindy Mann dated December 15, 2011, # 3 Exhibit Waiver Authorities for Florida's Medicaid Reform Section 1115 Demonstration, # 4 Exhibit Centers for Medicare and Medicaid Services Special Terms and Conditions)(Bowden, Albert) (Entered: 01/03/2012)

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01/06/2012 01/06/2012 01/09/2012 01/09/2012
01/09/2012
01/10/2012
01/11/2012 01/12/2012 01/12/2012 01/12/2012 01/12/2012 01/12/2012
01/17/2012 01/17/2012
01/18/2012
01/19/2012 01/19/2012

1094 1095 1096 1097
1098
1099
1100 1101 1102 1103 1104 1105
1106 1107
1108
1109 1110

MEMORANDUM of Law on Extent to Which an Expert's Testimony is Limited by his Report by All Defendants. (Bowden, Albert) (Entered: 01/06/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/6/2012. Bench trial continued to 1/9/12 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/06/2012)
RESPONSE/REPLY to 1094 Memorandum of Law on the Extent to Which an Expert's Testimony Is Limited by his Report by All Plaintiffs. (Singer, Stuart) (Entered: 01/09/2012)
MOTION for Reconsideration and to Allow Deposed Witnesses' Testimony on Post−Deposition Events by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Landon, Robert) (Entered: 01/09/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/9/2012. Bench trial continued to 1/10/12 at 9:15 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (ail) (Entered: 01/09/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/10/2012. Bench trial continued to 1/12/12 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/10/2012)
MEMORANDUM of Law Regarding Plaintiffs' Use of Demonstratives by All Defendants. (Daniel, Stephanie) (Entered: 01/11/2012)
RESPONSE/REPLY to 1093 Notice (Other), Defendants' Request for Judicial Notice by All Plaintiffs. (Singer, Stuart) (Entered: 01/12/2012)
MEMORANDUM of Law Regarding Plaintiffs' Bench Memo on Rebuttal Testimony by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 01/12/2012)
MEMORANDUM of Law Regarding Plaintiffs' Bench Memorandum on Rebuttal Testimony by All Defendants. (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 01/12/2012)
NOTICE by All Defendants Notice of Inadvertent Filing (Landon, Robert) (Entered: 01/12/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/12/2012. Bench trial continued to 1/17/12 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/13/2012)
MOTION to Strike Hearsay Testimony Elicited By Plaintiffs from Provider Witnesses During Their Case−in−Chief by All Defendants. Responses due by 2/3/2012 (Bowden, Albert) (Entered: 01/17/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/17/2012. Bench trial continued to 1/18/12 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/17/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/18/2012. Bench trial continued to 1/19/12 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/18/2012)
ORDER denying 1106 Motion to Strike testimony. Signed by Judge Adalberto Jordan on 1/19/2012. (lk) (Entered: 01/19/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/19/2012. Bench trial continued to 1/23/12 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/19/2012)

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01/20/2012 01/20/2012 01/23/2012 01/23/2012
01/24/2012
01/25/2012
01/25/2012 01/26/2012
01/30/2012 01/30/2012
01/31/2012 01/31/2012
02/01/2012 02/02/2012 02/02/2012
02/08/2012 02/10/2012

1111 1112 1113 1114
1115
1116
1117 1118
1119 1120
1121 1122
1123 1124 1125
1126 1127

NOTICE by All Defendants Notice of Filing Declaration (Attachments: # 1 Attachment)(Landon, Robert) (Entered: 01/20/2012)
ORDER re 1093 Motion for Judicial Notice, filed by All Defendants. Signed by Judge Adalberto Jordan on 1/20/2012. (lh) (Entered: 01/20/2012)
NOTICE by All Plaintiffs Motion for Judicial Notice of Medicaid Fees (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 01/23/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/23/2012. Bench trial continued to 1/24/12 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/24/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/24/2012. Bench trial continued to 1/25/12 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/25/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/25/2012. Bench trial continued to 1/26/12 at 9:30 a.m. Proposed findings of fact and conclusions of law due on 3/9/12. Disk and hard copy to follow, due on 3/13/12. No extensions will be granted. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/25/2012)
ORDER Concerning Format of Proposed Findings & Conclusions. Signed by Judge Adalberto Jordan on 1/25/2012. (lh) (Entered: 01/25/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/26/2012. Bench trial continued to 1/30/12 at 1:00 p.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/27/2012)
NOTICE by All Defendants OF FILING LOG OF EMAILS BETWEEN (Attachments: # 1 Log of Emails)(Daniel, Stephanie) (Entered: 01/30/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/30/2012. Bench trial continued to 1/31/12 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 01/31/2012)
NOTICE by All Plaintiffs of Filing Declaration (Attachments: # 1 Declaration of T.M.)(Singer, Stuart) (Entered: 01/31/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 1/31/2012. Bench trial continued to 2/1/12 at 10:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 02/01/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/1/2012. Bench trial continued to 2/2/12 at 9:30 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 02/01/2012)
MOTION for Judicial Notice by All Defendants. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E)(Daniel, Stephanie) (Entered: 02/02/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 2/2/2012. Testimony completed. Closing arguments set for 3/26/12 and 3/27/12 at 9:00 a.m. Court Reporter: Francine Salopek, 305−523−5568 / Francine_Salopek@flsd.uscourts.gov (mc1) (Entered: 02/02/2012)
MEMORANDUM of Law Defense Memorandum on Survey Exhibits by All Defendants. (Landon, Robert) (Entered: 02/08/2012)
MOTION for Judicial Notice by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19

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02/13/2012 02/16/2012 02/21/2012 02/23/2012
02/24/2012
02/24/2012 02/24/2012 02/24/2012
02/27/2012 02/28/2012 02/29/2012 03/01/2012 03/01/2012

1128 1129 1130 1131
1132
1133 1134 1135
1136 1137 1138 1139 1140

Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Daniel, Stephanie) (Entered: 02/10/2012)
RESPONSE/REPLY to 1126 Memorandum on Survey Exhibits by All Plaintiffs. (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 02/13/2012)
RESPONSE/REPLY to 1126 Memorandum Defense Reply in Further Support of Memorandum on Survey Exhibits by All Defendants. (Landon, Robert) (Entered: 02/16/2012)
RESPONSE in Opposition re 1124 MOTION for Judicial Notice filed by All Plaintiffs. (Singer, Stuart) (Entered: 02/21/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff J.W. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1, # 4 Exhibit C Part 2, # 5 Exhibit C Part 3, # 6 Exhibit C Part 4, # 7 Exhibit C Part 5, # 8 Exhibit D Part 1, # 9 Exhibit D Part 2, # 10 Exhibit D Part 3, # 11 Exhibit D Part 4, # 12 Exhibit E Part 1, # 13 Exhibit E Part 2, # 14 Exhibit E Part 3, # 15 Exhibit E Part 4, # 16 Exhibit E Part 5, # 17 Exhibit E Part 6, # 18 Exhibit F, # 19 Exhibit G, # 20 Exhibit H Part 1, # 21 Exhibit H Part 2, # 22 Exhibit H Part 3, # 23 Exhibit H Part 4, # 24 Exhibit I, # 25 Exhibit J, # 26 Exhibit K, # 27 Exhibit L, # 28 Exhibit M, # 29 Exhibit N, # 30 Exhibit O, # 31 Exhibit P Part 1, # 32 Exhibit P Part 2, # 33 Exhibit Q, # 34 Exhibit R)(Landon, Robert) (Entered: 02/23/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff N.A. (Attachments: # 1 Exhibit A Part 1, # 2 Exhibit A Part 2, # 3 Exhibit A Part 3, # 4 Exhibit B Part 1, # 5 Exhibit B Part 2, # 6 Exhibit B Part 3, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H, # 13 Exhibit I, # 14 Exhibit J, # 15 Exhibit K, # 16 Exhibit L, # 17 Exhibit M, # 18 Exhibit N, # 19 Exhibit O)(Landon, Robert) (Entered: 02/24/2012)
ORDER denying as moot 977 Motion for Reconsideration. Signed by Judge Adalberto Jordan on 2/24/2012. (lh) (Entered: 02/24/2012)
NOTICE by All Defendants Notice of Filing Deposition Designations (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1, # 4 Exhibit C Part 2)(Landon, Robert) (Entered: 02/24/2012)
NOTICE by All Plaintiffs of Filing Deposition Designations (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30)(Singer, Stuart) (Entered: 02/24/2012)
RESPONSE to Motion re 1127 MOTION for Judicial Notice filed by All Plaintiffs. Replies due by 3/8/2012. (Singer, Stuart) (Entered: 02/27/2012)
REPLY to Response to Motion re 1127 MOTION for Judicial Notice filed by All Defendants. (Daniel, Stephanie) (Entered: 02/28/2012)
NOTICE by All Defendants re 1135 Notice (Other),, (Bowden, Albert) (Entered: 02/29/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 1) (Attachments: # 1 Exhibit A Part 1, # 2 Exhibit A Part 2, # 3 Exhibit A Part 3, # 4 Exhibit B Part 1, # 5 Exhibit B Part 2, # 6 Exhibit C Part 1, # 7 Exhibit C Part 2)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 2) (Attachments: # 1 Exhibit D Part 1, # 2 Exhibit D Part 2, # 3 Exhibit D Part 3, # 4 Exhibit D Part 4, # 5 Exhibit D Part 5, # 6 Exhibit D Part 6, # 7 Exhibit D Part 7, # 8 Exhibit D Part 8, # 9 Exhibit D Part 9, # 10 Exhibit D Part 10, # 11 Exhibit D Part 11)(Landon, Robert) (Entered: 03/01/2012)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 86 of 108

03/01/2012 03/01/2012 03/01/2012 03/01/2012 03/01/2012 03/01/2012 03/01/2012 03/02/2012
03/02/2012 03/02/2012 03/03/2012 03/03/2012

1141 1142 1143 1144 1145 1146 1147 1148
1149 1150 1151 1152

NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 3) (Attachments: # 1 Exhibit D Part 12, # 2 Exhibit D Part 13, # 3 Exhibit D Part 14, # 4 Exhibit D Part 15, # 5 Exhibit D Part 16, # 6 Exhibit D Part 17, # 7 Exhibit D Part 18, # 8 Exhibit D Part 19, # 9 Exhibit D Part 20, # 10 Exhibit D Part 21)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 4) (Attachments: # 1 Exhibit E, # 2 Exhibit F Part 1, # 3 Exhibit F Part 2, # 4 Exhibit F Part 3, # 5 Exhibit F Part 4, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 5) (Attachments: # 1 Exhibit K Part 1, # 2 Exhibit K Part 2, # 3 Exhibit K Part 3, # 4 Exhibit K Part 4, # 5 Exhibit K Part 5, # 6 Exhibit L, # 7 Exhibit M)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 6) (Attachments: # 1 Exhibit N Part 1, # 2 Exhibit N Part 2, # 3 Exhibit N Part 3, # 4 Exhibit N Part 4, # 5 Exhibit N Part 5, # 6 Exhibit N Part 6, # 7 Exhibit N Part 7, # 8 Exhibit N Part 8, # 9 Exhibit N Part 9)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 7) (Attachments: # 1 Exhibit N Part 10, # 2 Exhibit N Part 11, # 3 Exhibit N Part 12, # 4 Exhibit N Part 13, # 5 Exhibit N Part 14, # 6 Exhibit N Part 15, # 7 Exhibit N Part 16, # 8 Exhibit N Part 17, # 9 Exhibit N Part 18)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 8) (Attachments: # 1 Exhibit N Part 19, # 2 Exhibit N Part 20, # 3 Exhibit N Part 21, # 4 Exhibit N Part 22, # 5 Exhibit N Part 23, # 6 Exhibit N Part 24, # 7 Exhibit N Part 25, # 8 Exhibit N Part 26, # 9 Exhibit N Part 27)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Thomas Gorenflo (PART 9) (Attachments: # 1 Exhibit O, # 2 Exhibit P Part 1, # 3 Exhibit P Part 2, # 4 Exhibit P Part 3, # 5 Exhibit P Part 4, # 6 Exhibit P Part 5)(Landon, Robert) (Entered: 03/01/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff K.K. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F Part 1, # 7 Exhibit F Part 2, # 8 Exhibit G Part 1, # 9 Exhibit G Part 2, # 10 Exhibit G Part 3, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J Part 1, # 14 Exhibit J Part 2, # 15 Exhibit J Part 3, # 16 Exhibit J Part 4, # 17 Exhibit J Part 5, # 18 Exhibit J Part 6, # 19 Exhibit J Part 7, # 20 Exhibit J Part 8, # 21 Exhibit K, # 22 Exhibit L, # 23 Exhibit M, # 24 Exhibit N, # 25 Exhibit O, # 26 Exhibit P, # 27 Exhibit Q)(Landon, Robert) (Entered: 03/02/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff S.M. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Landon, Robert) (Entered: 03/02/2012)
REPLY to Response to Motion re 1124 MOTION for Judicial Notice filed by All Defendants. (Attachments: # 1 Exhibit A)(Daniel, Stephanie) (Entered: 03/02/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff N.V. (Attachments: # 1 Exhibit A Part 1, # 2 Exhibit A Part 2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L)(Landon, Robert) (Entered: 03/03/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff Nathaniel Gorenflo (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C Part 1, # 4 Exhibit C Part 2, # 5 Exhibit C Part 3, # 6 Exhibit C Part 4, # 7 Exhibit C Part 5, # 8 Exhibit C Part 6, # 9 Exhibit C Part 7, # 10 Exhibit C Part 8, # 11 Exhibit C Part 9, # 12 Exhibit D, # 13 Exhibit E Part 1, # 14 Exhibit E Part 2, # 15 Exhibit E Part 3, # 16 Exhibit E Part 4, # 17 Exhibit E Part 5, # 18 Exhibit E Part 6, # 19 Exhibit E Part 7, # 20 Exhibit F Part 1, # 21 Exhibit F Part 2, # 22 Exhibit F Part 3, # 23 Exhibit F Part 4, # 24 Exhibit G, # 25 Exhibit H, # 26 Exhibit I Part 1, # 27 Exhibit I Part 2, # 28 Exhibit I Part

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03/03/2012
03/06/2012
03/06/2012
03/06/2012 03/06/2012 03/07/2012 03/07/2012 03/12/2012 03/12/2012 03/14/2012

1153
1154
1155
1156 1157 1158 1159 1160 1161 1162

3, # 29 Exhibit I Part 4, # 30 Exhibit I Part 5, # 31 Exhibit I Part 6, # 32 Exhibit I Part 7, # 33 Exhibit I Part 8, # 34 Exhibit I Part 9, # 35 Exhibit I Part 10, # 36 Exhibit I Part 11, # 37 Exhibit J, # 38 Exhibit K, # 39 Exhibit L, # 40 Exhibit M, # 41 Exhibit N, # 42 Exhibit O)(Landon, Robert) (Entered: 03/03/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff L.C. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F Part 1, # 7 Exhibit F Part 2, # 8 Exhibit F Part 3, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J Part 1, # 13 Exhibit J Part 2, # 14 Exhibit K Part 1, # 15 Exhibit K Part 2, # 16 Exhibit K Part 3, # 17 Exhibit L, # 18 Exhibit M, # 19 Exhibit N Part 1, # 20 Exhibit N Part 2, # 21 Exhibit N Part 3, # 22 Exhibit N Part 4, # 23 Exhibit O Part 1, # 24 Exhibit O Part 2, # 25 Exhibit O Part 3, # 26 Exhibit O Part 4, # 27 Exhibit P, # 28 Exhibit Q, # 29 Exhibit R, # 30 Exhibit S Part 1, # 31 Exhibit S Part 2, # 32 Exhibit T, # 33 Exhibit U)(Landon, Robert) (Entered: 03/03/2012)
NOTICE by All Defendants Notice of Filing Medical Record Exhibits of Plaintiff J.S. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G Part 1, # 8 Exhibit G Part 2, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit AA, # 29 Exhibit BB, # 30 Exhibit CC, # 31 Exhibit DD, # 32 Exhibit EE, # 33 Exhibit FF, # 34 Exhibit GG)(Landon, Robert) (Entered: 03/06/2012)
NOTICE by All Plaintiffs OF FILING AMENDED DEPOSITION DESIGNATIONS AND DEPOSITION DESIGNATIONS FOR DR. ANDREW AGWUNOBI (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V)(Singer, Stuart) (Entered: 03/06/2012)
MOTION for Extension of Time Defendants' Motion for Five−Day Enlargement to Submit Proposed Findings and Conclusions by All Defendants. Responses due by 3/23/2012 (Attachments: # 1 Attachment)(Landon, Robert) (Entered: 03/06/2012)
NOTICE OF CONVENTIONAL FILING Of Videotaped Designations From Depositions Of Andrew Agwunobi and of Filing CD With a Speech Given By Dr. Agwunobi, PX126 by All Plaintiffs (cqs) (Entered: 03/07/2012)
ORDER SCHEDULING CLOSING ARGUMENTS, ( Closing Arguments set for 3/26/2012 09:00 AM in Miami Division before Judge Adalberto Jordan.). Signed by Judge Adalberto Jordan on 3/7/2012. (lh) (Entered: 03/07/2012)
ORDER granting 1156 Motion for Extension of Time to file proposed findings and conclusions by March 12, 2012. Signed by Judge Adalberto Jordan on 3/7/2012. (lh) (Entered: 03/07/2012)
Proposed Findings of Fact and Proposed Conclusions of Law by All Plaintiffs. (Singer, Stuart) (Entered: 03/12/2012)
Proposed Findings of Fact and Proposed Conclusions of Law by All Defendants. (Attachments: # 1 Exhibit A)(Daniel, Stephanie) (Entered: 03/12/2012)
NOTICE by All Plaintiffs of Filing First Notice of Admitted Trial Exhibits (Attachments: # 1 Exhibit 4, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13, # 10 Exhibit 14, # 11 Exhibit 15, # 12 Exhibit 16, # 13 Exhibit 22, # 14 Exhibit 25, # 15 Exhibit 26, # 16 Exhibit 31, # 17 Exhibit 35, # 18 Exhibit 38, # 19 Exhibit 41, # 20 Exhibit 46, # 21 Exhibit 52, # 22 Exhibit 53, # 23 Exhibit 54, # 24 Exhibit 62, # 25 Exhibit 66, # 26 Exhibit 67, # 27 Exhibit 71, # 28 Exhibit 77, # 29 Exhibit 78, # 30 Exhibit 80, # 31 Exhibit 81, # 32 Exhibit 82, # 33 Exhibit 83, # 34 Exhibit 84, # 35 Exhibit 85, # 36 Exhibit 89, # 37 Exhibit 90, # 38 Exhibit 91, # 39 Exhibit 92, # 40 Exhibit 93, # 41 Exhibit 94, # 42 Exhibit 95, # 43 Exhibit 96, # 44 Exhibit 97, # 45 Exhibit 98, # 46 Exhibit 100, # 47 Exhibit 101, # 48 Exhibit 102 Part 1, # 49 Exhibit 102 Part 2, # 50 Exhibit 104, # 51 Exhibit 107)(Singer, Stuart) (Entered: 03/14/2012)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 88 of 108

03/14/2012 03/15/2012 03/15/2012 03/15/2012

1163 1164 1165 1166

NOTICE by All Plaintiffs of Filing Second Notice of Admitted Trial Exhibits (Attachments: # 1 Exhibit 108, # 2 Exhibit 109, # 3 Exhibit 111, # 4 Exhibit 112, # 5 Exhibit 115, # 6 Exhibit 116, # 7 Exhibit 116 A, # 8 Exhibit 125, # 9 Exhibit 126, # 10 Exhibit 126 A, # 11 Exhibit 127, # 12 Exhibit 128 A, # 13 Exhibit 129, # 14 Exhibit 143, # 15 Exhibit 144, # 16 Exhibit 145 A, # 17 Exhibit 148, # 18 Exhibit 149, # 19 Exhibit 150, # 20 Exhibit 154, # 21 Exhibit 154 A Part 1, # 22 Exhibit 154 A Part 2, # 23 Exhibit 155, # 24 Exhibit 157, # 25 Exhibit 165, # 26 Exhibit 166, # 27 Exhibit 167, # 28 Exhibit 170, # 29 Exhibit 172, # 30 Exhibit 172 B, # 31 Exhibit 175, # 32 Exhibit 176, # 33 Exhibit 181, # 34 Exhibit 182, # 35 Exhibit 182 A, # 36 Exhibit 184, # 37 Exhibit 186, # 38 Exhibit 187, # 39 Exhibit 188, # 40 Exhibit 189, # 41 Exhibit 192, # 42 Exhibit 195, # 43 Exhibit 198, # 44 Exhibit 199, # 45 Exhibit 200, # 46 Exhibit 201, # 47 Exhibit 202, # 48 Exhibit 203, # 49 Exhibit 204, # 50 Exhibit 205, # 51 Exhibit 210)(Singer, Stuart) (Entered: 03/14/2012)
NOTICE by All Plaintiffs of Filing Third Notice of Admitted Trial Exhibits (Attachments: # 1 Exhibit 211, # 2 Exhibit 214, # 3 Exhibit 218, # 4 Exhibit 221, # 5 Exhibit 228, # 6 Exhibit 238, # 7 Exhibit 239, # 8 Exhibit 240, # 9 Exhibit 241, # 10 Exhibit 243, # 11 Exhibit 244, # 12 Exhibit 245, # 13 Exhibit 246, # 14 Exhibit 250, # 15 Exhibit 273, # 16 Exhibit 274, # 17 Exhibit 277 A, # 18 Exhibit 278, # 19 Exhibit 282, # 20 Exhibit 284, # 21 Exhibit 285, # 22 Exhibit 288, # 23 Exhibit 291, # 24 Exhibit 292, # 25 Exhibit 293, # 26 Exhibit 294, # 27 Exhibit 295, # 28 Exhibit 296 Part 1, # 29 Exhibit 296 Part 2, # 30 Exhibit 297 Part 1, # 31 Exhibit 297 Part 2, # 32 Exhibit 298 Part 1, # 33 Exhibit 298 Part 2, # 34 Exhibit 299 Part 1, # 35 Exhibit 299 Part 2, # 36 Exhibit 305, # 37 Exhibit 306, # 38 Exhibit 307, # 39 Exhibit 309, # 40 Exhibit 315, # 41 Exhibit 318, # 42 Exhibit 319, # 43 Exhibit 320, # 44 Exhibit 321, # 45 Exhibit 322, # 46 Exhibit 335, # 47 Exhibit 336, # 48 Exhibit 337, # 49 Exhibit 338, # 50 Exhibit 339, # 51 Exhibit 345, # 52 Exhibit 347, # 53 Exhibit 349, # 54 Exhibit 350)(Singer, Stuart) (Entered: 03/15/2012)
NOTICE by All Plaintiffs of Filing Fourth Notice of Admitted Trial Exhibits (Attachments: # 1 Exhibit 360, # 2 Exhibit 418, # 3 Exhibit 425, # 4 Exhibit 439, # 5 Exhibit 440, # 6 Exhibit 441, # 7 Exhibit 447, # 8 Exhibit 450, # 9 Exhibit 452, # 10 Exhibit 461, # 11 Exhibit 475, # 12 Exhibit 488, # 13 Exhibit 494, # 14 Exhibit 495, # 15 Exhibit 498, # 16 Exhibit 501, # 17 Exhibit 504, # 18 Exhibit 505, # 19 Exhibit 512, # 20 Exhibit 513, # 21 Exhibit 517, # 22 Exhibit 519, # 23 Exhibit 520 Part 1, # 24 Exhibit 520 Part 2, # 25 Exhibit 520 Part 3, # 26 Exhibit 520 Part 4, # 27 Exhibit 520 Part 5, # 28 Exhibit 522, # 29 Exhibit 524, # 30 Exhibit 531, # 31 Exhibit 534 Part 1, # 32 Exhibit 534 Part 2, # 33 Exhibit 534 Part 3, # 34 Exhibit 534 Part 4, # 35 Exhibit 534 Part 5, # 36 Exhibit 534 Part 6, # 37 Exhibit 535, # 38 Exhibit 536 Part 1, # 39 Exhibit 536 Part 2, # 40 Exhibit 539, # 41 Exhibit 542, # 42 Exhibit 543, # 43 Exhibit 552, # 44 Exhibit 553, # 45 Exhibit 559, # 46 Exhibit 560, # 47 Exhibit 561, # 48 Exhibit 563, # 49 Exhibit 565, # 50 Exhibit 572, # 51 Exhibit 580, # 52 Exhibit 582, # 53 Exhibit 583−2 Part 1, # 54 Exhibit 583−2 Part 2, # 55 Exhibit 597, # 56 Exhibit 604, # 57 Exhibit 612 Part 1, # 58 Exhibit 612 Part 2, # 59 Exhibit 615, # 60 Exhibit 617 Part 1, # 61 Exhibit 617 Part 2, # 62 Exhibit 617 Part 3, # 63 Exhibit 617 Part 4, # 64 Exhibit 617 Part 5, # 65 Exhibit 617 Part 6, # 66 Exhibit 620, # 67 Exhibit 625 A)(Singer, Stuart) (Entered: 03/15/2012)
NOTICE by All Plaintiffs of Filing Fifth Notice of Admitted Trial Exhibits (Attachments: # 1 Exhibit 629 Part 1, # 2 Exhibit 629 Part 2, # 3 Exhibit 630 Part 1, # 4 Exhibit 630 Part 2, # 5 Exhibit 630 Part 3, # 6 Exhibit 631 Part 1, # 7 Exhibit 631 Part 2, # 8 Exhibit 631 Part 3, # 9 Exhibit 631 Part 4, # 10 Exhibit 631 Part 5, # 11 Exhibit 631 Part 6, # 12 Exhibit 631 Part 7, # 13 Exhibit 631 Part 8, # 14 Exhibit 631 Part 9, # 15 Exhibit 631 Part 10, # 16 Exhibit 631 Part 11, # 17 Exhibit 631 Part 12, # 18 Exhibit 631 Part 13, # 19 Exhibit 632, # 20 Exhibit 634 Part 1, # 21 Exhibit 634 Part 2, # 22 Exhibit 634 Part 3, # 23 Exhibit 634 Part 4, # 24 Exhibit 634 Part 5, # 25 Exhibit 634 Part 6, # 26 Exhibit 634 Part 7, # 27 Exhibit 634 Part 8, # 28 Exhibit 644 Part 1, # 29 Exhibit 644 Part 2, # 30 Exhibit 646 A, # 31 Exhibit 647, # 32 Exhibit 650, # 33 Exhibit 651 Part 1, # 34 Exhibit 651 Part 2, # 35 Exhibit 651 Part 3, # 36 Exhibit 651 Part 4, # 37 Exhibit 651 Part 5, # 38 Exhibit 651 Part 6, # 39 Exhibit 652, # 40 Exhibit 653, # 41 Exhibit 655, # 42 Exhibit 656, # 43 Exhibit 660, # 44 Exhibit 661 Part 1, # 45 Exhibit 661 Part 2, # 46 Exhibit 662 Part 1, # 47 Exhibit 662 Part 2, # 48 Exhibit 662 A, # 49 Exhibit 672, # 50 Exhibit 673, # 51 Exhibit 674, # 52 Exhibit 675, # 53 Exhibit 676, # 54 Exhibit 677, # 55 Exhibit 682, # 56 Exhibit 683, # 57 Exhibit 685, # 58 Exhibit 686, # 59 Exhibit 688, # 60 Exhibit 689, # 61 Exhibit 690, # 62 Exhibit 697, # 63 Exhibit 698, # 64 Exhibit 699, # 65 Exhibit 700, # 66 Exhibit 701, # 67 Exhibit 702, # 68 Exhibit 703, # 69 Exhibit 704, # 70 Exhibit 705, #

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 89 of 108

03/15/2012
03/20/2012 03/20/2012 03/22/2012 03/22/2012 03/23/2012 03/26/2012 03/28/2012 04/06/2012 04/13/2012
04/16/2012

1167
1168 1169 1170 1171 1172 1173 1174 1175 1176
1177

71 Exhibit 706, # 72 Exhibit 707, # 73 Exhibit 708, # 74 Exhibit 709, # 75 Exhibit 710, # 76 Exhibit 711, # 77 Exhibit 712 Part 1, # 78 Exhibit 712 Part 2, # 79 Exhibit 712 Part 3, # 80 Exhibit 712 Part 4, # 81 Exhibit 712 Part 5, # 82 Exhibit 715, # 83 Exhibit 716, # 84 Exhibit 718)(Singer, Stuart) (Entered: 03/15/2012)
NOTICE by All Plaintiffs of Filing Sixth Notice of Admitted Trial Exhibits (Attachments: # 1 Exhibit 719, # 2 Exhibit 720, # 3 Exhibit 722, # 4 Exhibit 723, # 5 Exhibit 724, # 6 Exhibit 726, # 7 Exhibit 727, # 8 Exhibit 730, # 9 Exhibit 732 Part 1, # 10 Exhibit 732 Part 2, # 11 Exhibit 733 Part 1, # 12 Exhibit 733 Part 2, # 13 Exhibit 734, # 14 Exhibit 735, # 15 Exhibit 736, # 16 Exhibit 737, # 17 Exhibit 738, # 18 Exhibit 739, # 19 Exhibit 740, # 20 Exhibit 741, # 21 Exhibit 742, # 22 Exhibit 743, # 23 Exhibit 744, # 24 Exhibit 745, # 25 Exhibit 746, # 26 Exhibit 747, # 27 Exhibit 748, # 28 Exhibit 749, # 29 Exhibit 750, # 30 Exhibit 752, # 31 Exhibit 753, # 32 Exhibit 755, # 33 Exhibit 756, # 34 Exhibit 757, # 35 Exhibit 770, # 36 Exhibit 772, # 37 Exhibit 777, # 38 Exhibit 780, # 39 Exhibit 781, # 40 Exhibit 782, # 41 Exhibit 783, # 42 Exhibit 786, # 43 Exhibit 789, # 44 Exhibit 790)(Singer, Stuart) (Entered: 03/15/2012)
NOTICE by All Plaintiffs re 1160 Proposed Findings of Fact of Filing Errata Sheet (Attachments: # 1 Errata)(Singer, Stuart) (Entered: 03/20/2012)
AMENDED ORDER SCHEDULING CLOSING ARGUMENTS. The parties shall present their closing arguments on 3/26/2012 08:30 AM to 3:00 PM in Miami Division before Judge Adalberto Jordan and 3/27/2012 09:00 AM to 5:00 PM in Miami Division before Judge Adalberto Jordan.. Signed by Judge Adalberto Jordan on 3/20/2012. (jc) (Entered: 03/20/2012)
ORDER REGARDING CLOSING ARGUMENTS. Setting schedule for parties' presentation of closing arguments. See order for full details.. Signed by Judge Adalberto Jordan on 3/22/2012. (aan) (Entered: 03/22/2012)
Proposed Findings of Fact and Proposed Conclusions of Law (Corrected) by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Daniel, Stephanie) (Entered: 03/22/2012)
Proposed Findings of Fact and Proposed Conclusions of Law (Corrected) by All Plaintiffs. (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 03/23/2012)
Paperless Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 3/26/2012. Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov (ep) (Entered: 03/27/2012)
Paperless Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial held on 3/27/2012. Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov (ep) (Entered: 03/28/2012)
NOTICE by All Defendants Defendants' List of Pending Motions and Evidentiary Issues (Landon, Robert) (Entered: 04/06/2012)
NOTICE by All Defendants First Notice of Filing Admitted Trial Exhibits (Attachments: # 1 Exhibit DX 139, # 2 Exhibit DX 140, # 3 Exhibit DX 141, # 4 Exhibit DX 142, # 5 Exhibit DX 144, # 6 Exhibit DX 145, # 7 Exhibit DX 146, # 8 Exhibit DX 147, # 9 Exhibit DX 147b, # 10 Exhibit DX 151, # 11 Exhibit DX 152, # 12 Exhibit DX 153, # 13 Exhibit DX 154, # 14 Exhibit DX 157, # 15 Exhibit DX 158, # 16 Exhibit DX 159, # 17 Exhibit DX 160, # 18 Exhibit DX 162, # 19 Exhibit DX 163, # 20 Exhibit DX 164, # 21 Exhibit DX 165, # 22 Exhibit DX 166, # 23 Exhibit DX 168, # 24 Exhibit DX 169a, # 25 Exhibit DX 171, # 26 Exhibit DX 173, # 27 Exhibit DX 174, # 28 Exhibit DX 175, # 29 Exhibit DX 176, # 30 Exhibit DX 178, # 31 Exhibit DX 179, # 32 Exhibit DX 180, # 33 Exhibit DX 181, # 34 Exhibit DX 185, # 35 Exhibit DX 186, # 36 Exhibit DX 187, # 37 Exhibit DX 188, # 38 Exhibit DX 189, # 39 Exhibit DX 191, # 40 Exhibit DX 193, # 41 Exhibit DX 193a, # 42 Exhibit DX 193b, # 43 Exhibit DX 194, # 44 Exhibit DX 198, # 45 Exhibit DX 199, # 46 Exhibit DX 200, # 47 Exhibit DX 201, # 48 Exhibit DX 202, # 49 Exhibit DX 203)(Bowden, Albert) (Entered: 04/13/2012)
NOTICE by All Defendants Second Notice of Filing Admitted Trial Exhibits (Attachments: # 1 Exhibit DX 204, part 1, # 2 Exhibit DX 204, part 2, # 3 Exhibit DX 204, part 3, # 4 Exhibit DX 204, part 4, # 5 Exhibit DX 205, # 6 Exhibit DX 206, # 7 Exhibit DX 207, # 8 Exhibit DX 208, # 9 Exhibit DX 209, # 10 Exhibit DX 210, # 11

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 90 of 108

04/17/2012 04/17/2012 04/17/2012 04/17/2012

1178 1179 1180 1181

Exhibit DX 211, # 12 Exhibit DX 212, # 13 Exhibit DX 213, # 14 Exhibit DX 215, # 15 Exhibit DX 217, # 16 Exhibit DX 218, # 17 Exhibit DX 220, # 18 Exhibit DX 222, # 19 Exhibit DX 223, # 20 Exhibit DX 226, # 21 Exhibit DX 229, # 22 Exhibit DX 235, # 23 Exhibit DX 236, # 24 Exhibit DX 238, # 25 Exhibit DX 239, # 26 Exhibit DX 242, # 27 Exhibit DX 249, # 28 Exhibit DX 253, # 29 Exhibit DX 258, # 30 Exhibit DX 261, # 31 Exhibit DX 262, # 32 Exhibit DX 262a, # 33 Exhibit DX 263, # 34 Exhibit DX 264, # 35 Exhibit DX 266, # 36 Exhibit DX 267, # 37 Exhibit DX 268, # 38 Exhibit DX 269, # 39 Exhibit DX 270, # 40 Exhibit DX 271, # 41 Exhibit DX 272, # 42 Exhibit DX 273, part 1, # 43 Exhibit DX 273, part 2, # 44 Exhibit DX 275, # 45 Exhibit DX 276, # 46 Exhibit DX 281, # 47 Exhibit DX 286, # 48 Exhibit DX 289, # 49 Exhibit DX 290c, # 50 Exhibit DX 291, # 51 Exhibit DX 296, part 1, # 52 Exhibit DX 296, part 2, # 53 Exhibit DX 296, part 3, # 54 Exhibit DX 300)(Bowden, Albert) (Entered: 04/16/2012)
NOTICE by All Defendants Third Notice of Filing Admitted Trial Exhibits (Attachments: # 1 Exhibit DX 301, # 2 Exhibit DX 304, # 3 Exhibit DX 305, # 4 Exhibit DX 306, # 5 Exhibit DX 307, # 6 Exhibit DX 308, # 7 Exhibit DX 309c, # 8 Exhibit DX 310, # 9 Exhibit DX 312, # 10 Exhibit DX 314, # 11 Exhibit DX 316, # 12 Exhibit DX 319, # 13 Exhibit DX 320, # 14 Exhibit DX 321, # 15 Exhibit DX 323, # 16 Exhibit DX 324, # 17 Exhibit DX 324a, # 18 Exhibit DX 324c, # 19 Exhibit DX 325, # 20 Exhibit DX 326, # 21 Exhibit DX 327, # 22 Exhibit DX 327a, # 23 Exhibit DX 329, # 24 Exhibit DX 330, # 25 Exhibit DX 333, # 26 Exhibit DX 334, # 27 Exhibit DX 337, # 28 Exhibit DX 338, # 29 Exhibit DX 343, # 30 Exhibit DX 344, # 31 Exhibit DX 347, # 32 Exhibit DX 348, # 33 Exhibit DX 349, # 34 Exhibit DX 350, # 35 Exhibit DX 351, # 36 Exhibit DX 352, # 37 Exhibit DX 353, # 38 Exhibit DX 354a, # 39 Exhibit DX 355, part 1, # 40 Exhibit DX 355, part 2, # 41 Exhibit DX 355, part 3, # 42 Exhibit DX 355, part 4, # 43 Exhibit DX 355, part 5, # 44 Exhibit DX 355, part 6, # 45 Exhibit DX 355, part 7, # 46 Exhibit DX 355, part 8, # 47 Exhibit DX 356, # 48 Exhibit DX 358, # 49 Exhibit DX 359, # 50 Exhibit DX 360, # 51 Exhibit DX 361, # 52 Exhibit DX 364a, # 53 Exhibit DX 364b, # 54 Exhibit DX 364c, # 55 Exhibit DX 364d)(Bowden, Albert) (Entered: 04/17/2012)
NOTICE by All Defendants Fourth Notice of Filing Admitted Trial Exhibits (Attachments: # 1 Exhibit DX 364e, # 2 Exhibit DX 364f, # 3 Exhibit DX 364g, # 4 Exhibit DX 364h, # 5 Exhibit DX 364i, # 6 Exhibit DX 364j, # 7 Exhibit DX 364k, # 8 Exhibit DX 364l, # 9 Exhibit DX 364m, # 10 Exhibit DX 364n, # 11 Exhibit DX 364o, # 12 Exhibit DX 364p, # 13 Exhibit DX 364q, # 14 Exhibit DX 364r, # 15 Exhibit DX 379, # 16 Exhibit DX 380, # 17 Exhibit DX 381, # 18 Exhibit DX 385, # 19 Exhibit DX 389, # 20 Exhibit DX 390, # 21 Exhibit DX 391, # 22 Exhibit DX 391a, # 23 Exhibit DX 394, # 24 Exhibit DX 396, # 25 Exhibit DX 397, # 26 Exhibit DX 409, # 27 Exhibit DX 410, # 28 Exhibit DX 411, # 29 Exhibit DX 412, # 30 Exhibit DX 413, # 31 Exhibit DX 414, # 32 Exhibit DX 415, # 33 Exhibit DX 416, # 34 Exhibit DX 417, # 35 Exhibit DX 418, # 36 Exhibit DX 419, # 37 Exhibit DX 420, # 38 Exhibit DX 421, # 39 Exhibit DX 422, # 40 Exhibit DX 423, # 41 Exhibit DX 424, # 42 Exhibit DX 425, # 43 Exhibit DX 426, # 44 Exhibit DX 427, # 45 Exhibit DX 428, # 46 Exhibit DX 429, # 47 Exhibit DX 430, # 48 Exhibit DX 431, # 49 Exhibit DX 432, # 50 Exhibit DX 434)(Bowden, Albert) (Entered: 04/17/2012)
NOTICE by All Defendants Fifth Notice of Filing Admitted Trial Exhibits (Attachments: # 1 Exhibit DX 435, # 2 Exhibit DX 436, # 3 Exhibit DX 437, # 4 Exhibit DX 439, # 5 Exhibit DX 470, # 6 Exhibit DX 471, # 7 Exhibit DX 474, # 8 Exhibit DX 477, # 9 Exhibit DX 478, # 10 Exhibit DX 480, # 11 Exhibit DX 483, # 12 Exhibit DX 484, # 13 Exhibit DX 490, # 14 Exhibit DX 491, # 15 Exhibit DX 492, # 16 Exhibit DX 494, # 17 Exhibit DX 498, # 18 Exhibit DX 499, # 19 Exhibit DX 501, # 20 Exhibit DX 519, # 21 Exhibit DX 521, # 22 Exhibit DX 522, # 23 Exhibit DX 527, # 24 Exhibit DX 529, # 25 Exhibit DX 530, # 26 Exhibit DX 535, # 27 Exhibit DX 548, # 28 Exhibit DX 549, # 29 Exhibit DX 550, # 30 Exhibit DX 551, # 31 Exhibit DX 552, # 32 Exhibit DX 553, # 33 Exhibit DX 554, # 34 Exhibit DX 559, # 35 Exhibit DX 560, # 36 Exhibit DX 562, # 37 Exhibit DX 563, # 38 Exhibit DX 573, # 39 Exhibit DX 573−2, # 40 Exhibit DX 574, # 41 Exhibit DX 575, # 42 Exhibit DX 582, # 43 Exhibit DX 583, # 44 Exhibit DX 584, # 45 Exhibit DX 585, # 46 Exhibit DX 587, # 47 Exhibit DX 588, # 48 Exhibit DX 590)(Bowden, Albert) (Entered: 04/17/2012)
NOTICE by All Defendants Sixth Notice of Filing Admitted Trial Exhibits (Attachments: # 1 Exhibit DX 591, # 2 Exhibit DX 592, # 3 Exhibit DX 594, # 4 Exhibit DX 595, part 1, # 5 Exhibit DX 595, part 2, # 6 Exhibit DX 595, part 3, # 7 Exhibit DX 595, part 4, # 8 Exhibit DX 595, part 5, # 9 Exhibit DX 596, # 10 Exhibit DX 598, part 1, # 11 Exhibit

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 91 of 108

04/18/2012 04/19/2012 04/19/2012 04/20/2012 05/07/2012 05/14/2012 05/14/2012 05/31/2012 06/01/2012 06/15/2012
06/15/2012
06/15/2012
06/15/2012

1182 1183 1184 1185 1186 1187 1188 1189 1190 1191
1192
1193
1194

DX 598, part 2, # 12 Exhibit DX 598, part 3, # 13 Exhibit DX 600, # 14 Exhibit DX 601, # 15 Exhibit DX 602, # 16 Exhibit DX 603, # 17 Exhibit DX 604, # 18 Exhibit DX 605, # 19 Exhibit DX 607, # 20 Exhibit DX 607a, # 21 Exhibit DX 607b, # 22 Exhibit DX 612, # 23 Exhibit DX 613, # 24 Exhibit DX 615, # 25 Exhibit DX 618, # 26 Exhibit DX 619)(Bowden, Albert) (Entered: 04/17/2012)
NOTICE by All Defendants OF SUBSTITUTION OF INTERIM SURGEON GENERAL AS OFFICIAL CAPACITY DEFENDANT (Daniel, Stephanie) (Entered: 04/18/2012)
Notice of Supplemental Authority re 1171 Proposed Findings of Fact by All Defendants (Attachments: # 1 Exhibit A)(Daniel, Stephanie) (Entered: 04/19/2012)
Notice of Supplemental Authority re 1172 Proposed Findings of Fact by All Plaintiffs (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 04/19/2012)
Minute Entry for proceedings held before Judge Adalberto Jordan: Bench Trial completed on 4/20/2012. Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov (ep) (Entered: 04/25/2012)
NOTICE by All Defendants Seventh Notice of Filing Admitted Trial Exhibits (Attachments: # 1 Exhibit DX 188a, # 2 Exhibit DX 205a, # 3 Exhibit DX 287, part 1, # 4 Exhibit DX 287, part 2, # 5 Exhibit DX 586)(Daniel, Stephanie) (Entered: 05/07/2012)
NOTICE by All Defendants OF FILING DEFENDANTS EXHIBIT 331 WITH PLAINTIFFS REDACTIONS, EXCLUDING ONE OF PLAINTIFFS REDACTION WITH WHICH DEFENDANTS DO NOT AGREE (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Daniel, Stephanie) (Entered: 05/14/2012)
NOTICE by All Defendants FILING EXCERPT OF DEFENDANTS EXHIBIT 328 (Attachments: # 1 Defendants' Exhibit 328 (excerpt))(Daniel, Stephanie) (Entered: 05/14/2012)
NOTICE to parties that judicial law clerk has submitted an application for employment with Boies, Shiller & Flexner LLP. (aan) (Entered: 05/31/2012)
STIPULATION REGARDING STATUS OF PLAINTIFF J.W.'S MEDICAID by All Defendants, All Plaintiffs (Daniel, Stephanie) (Entered: 06/01/2012)
TRANSCRIPT of Trial Proceedings held on 11−16−10 before Judge Adalberto Jordan, Volume Number 30, 4922−5064 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine or PACER. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (fs) (Entered: 06/15/2012)
TRANSCRIPT of Trial Proceedings held on 11−17−10 before Judge Adalberto Jordan, Volume Number 31, 5065−5185 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (fs) (Entered: 06/15/2012)
TRANSCRIPT of Trial Proceedings held on 2−7−2011 before Judge Adalberto Jordan, Volume Number 32, 5186−5462 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (fs) (Entered: 06/15/2012)
TRANSCRIPT of Trial Proceedings held on 2−8−11 before Judge Adalberto Jordan, Volume Number 33, 5463−5730 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 92 of 108

06/15/2012
06/15/2012
06/18/2012 06/20/2012 06/22/2012 06/22/2012 09/28/2012 09/30/2012
09/30/2012
10/02/2012

1195
1196
1197 1198 1199 1200 1203 1201
1202
1204

court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (fs) (Entered: 06/15/2012)
TRANSCRIPT of Trial Proceedings held on 2−9−11 before Judge Adalberto Jordan, Volume Number 34, 5731−5947 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (fs) (Entered: 06/15/2012)
TRANSCRIPT of Trial Proceedings held on 2−10−11 before Judge Adalberto Jordan, Volume Number 35, 5948−6124 pages, Court Reporter: Francine Salopek, 305−523−5568/Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 7/9/2012. Redacted Transcript Deadline set for 7/19/2012. Release of Transcript Restriction set for 9/17/2012. (fs) (Entered: 06/15/2012)
Notice of Supplemental Authority re 1171 Proposed Findings of Fact by All Defendants (Daniel, Stephanie) (Entered: 06/18/2012)
NOTICE by All Defendants OF SUBSTITUTION OF JOHN H. ARMSTRONG, M.D., SURGEON GENERAL, AS OFFICIAL CAPACITY DEFENDANT (Daniel, Stephanie) (Entered: 06/20/2012)
RESPONSE/REPLY to 1197 Notice of Supplemental Authority by All Plaintiffs. (Singer, Stuart) (Entered: 06/22/2012)
RESPONSE/REPLY to 1199 Response/Reply (Other) TO NOTICE OF SUPPLEMENTAL AUTHORITY by All Defendants. (Daniel, Stephanie) (Entered: 06/22/2012)
ORDER denying 1062 Motion to Dismiss for Lack of Jurisdiction; denying 1091 Motion ; denying 1097 Motion for Reconsideration ; denying 1124 Motion ; granting 1127 Motion; see order for further details Signed by Judge Adalberto Jordan on 9/28/2012. (mr1) (Entered: 10/01/2012)
TRANSCRIPT of Trial Proceedings held on 04−04−11 before Judge Adalberto Jordan, Volume Number Vol. 36 of 96, 6125−6329 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 10/25/2012. Redacted Transcript Deadline set for 11/5/2012. Release of Transcript Restriction set for 1/3/2013. (fs) (Entered: 09/30/2012)
TRANSCRIPT of Trial Proceedings held on 04−05−11 before Judge Adalberto Jordan, Volume Number 37 of 96, 6330−6547 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 10/25/2012. Redacted Transcript Deadline set for 11/5/2012. Release of Transcript Restriction set for 1/3/2013. (fs) (Entered: 09/30/2012)
MOTION to Withdraw as Attorney by Marcos Daniel Jimenez and Kasowitz Benson Torres & Friedman LLP. by Secretary of Florida Department of Children & Family Services, Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of the Florida Department of Health. Responses due by 10/19/2012 (Attachments: # 1 Exhibit A − Emails showing client consent to withdrawal, # 2 Text of Proposed Order Granting Motion for Withdrawal of Counsel)(Jimenez, Marcos)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 93 of 108

10/15/2012 10/18/2012
10/18/2012 10/24/2012 11/07/2012 11/21/2012 01/10/2013 01/16/2013 01/22/2013 01/22/2013
02/05/2013 02/05/2013 02/06/2013

1205 1206
1207 1208 1209 1210 1211 1212 1213 1214
1215 1216 1217

(Entered: 10/02/2012)
ORDER granting 1204 Motion to Withdraw as Attorney. Attorney Marcos Daniel Jimenez terminated, Signed by Magistrate Judge Ted E. Bandstra on 10/15/2012. (lh) (Entered: 10/15/2012)
Unopposed MOTION to Modify Litigation Hold by Secretary of the Florida Department of Health. (Attachments: # 1 Affidavit Declarations of Records custodians, # 2 Exhibit GS4 Records Retention Schedule, # 3 Exhibit Individual Records Retention Schedule, # 4 Exhibit Summary of storage costs and volume)(Daniel, Stephanie) (Entered: 10/18/2012)
NOTICE by Secretary of the Florida Department of Health re 1206 Unopposed MOTION to Modify Litigation Hold (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 10/18/2012)
ORDER on 1206 Unopposed Motion for a Court Order Authorizing Modification of DOH's existing "Litigation Hold". Signed by Magistrate Judge Ted E. Bandstra on 10/24/2012. (ls) (Entered: 10/24/2012)
NOTICE by All Plaintiffs of Filing Supplemental Exhibit (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 11/07/2012)
ORDER, ( Memorandum of Law Deadline 1/14/2013., Responses due by 1/28/2013) Signed by Judge Adalberto Jordan on 11/21/2012. (lh) (Entered: 11/26/2012)
Unopposed MOTION for Extension of Time to file Memorandum of Law Regarding Impact of Affordable Care Act on Plaintiffs' Claims re 1210 Order, Set/Reset Deadlines by All Defendants. Responses due by 1/28/2013 (Attachments: # 1 Text of Proposed Order)(Daniel, Stephanie) (Entered: 01/10/2013)
Case Reassignment of Paired Magistrate Judge pursuant to Administrative Order(s) 2012−98 to Magistrate Judge John J. O'Sullivan. Magistrate Judge Ted E. Bandstra no longer assigned to case. Motions referred to John J. O'Sullivan. (asl) Modified on 1/18/2013 (asl). (Entered: 01/16/2013)
Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum Memorandum of Law in Response to Court's 11/26/2012 Order)(Daniel, Stephanie) (Entered: 01/22/2013)
NOTICE by All Defendants re 1213 Unopposed MOTION for Leave to File Excess Pages (Attachments: # 1 Affidavit of Mary McCullough, # 2 Affidavit of Melanie Brown−Woofter, # 3 Affidavit of Stacey Lampkin, # 4 Affidavit of April Cook, # 5 Affidavit of David Powers, # 6 Exhibit A − Q & A Document, # 7 Exhibit B − 11/8/2012 email, # 8 Exhibit C − 11/26/2012 email, # 9 Exhibit D − 1/2/2013 SPA submission, # 10 Exhibit E − 12/14/2012 emails, # 11 Exhibit F − 12/18/2012 email, # 12 Exhibit G − 11/2/2012 informational bulletin, # 13 Exhibit H − 12/19/2012 email, # 14 Exhibit I − 12/26/2012 email, # 15 Exhibit J − Attestation form, # 16 Exhibit K − 1/17/2013 email & 1/14/2013 email, # 17 Exhibit L − CSR 2502, # 18 Exhibit M − CSR 2464, # 19 Exhibit N − 11/7/2012 email, # 20 Exhibit O − 1/2/2103 SPA email, # 21 Exhibit P − 1/3/2013 email from CMS, # 22 Exhibit Q − 1/7/2013 email with rate tool, # 23 Exhibit R − 1/9/2013 email from D. Noonan re problems with rate tool, # 24 Exhibit S − Technical Guidance, # 25 Exhibit T − 12/28/2012 Provider alert, # 26 Exhibit U − 1/14/2012 Provider alert, # 27 Exhibit V − Managed Care Qs & As)(Daniel, Stephanie) (Entered: 01/22/2013)
ORDER granting 1213 Motion for Leave to File Excess Pages, Signed by Judge Adalberto Jordan on 2/5/2013. (lh) (Entered: 02/05/2013)
ORDER granting 1211 Motion for Extension of Time, Responses due by 2/11/2013 Signed by Judge Adalberto Jordan on 2/5/2013. (lh) (Entered: 02/05/2013)
NOTICE by All Defendants of filing MEDICAID MANAGED CARE POLICY TRANSMITTAL 13−02 IN SUPPORT OF DEFENDANTS' MEMORANDUM OF LAW IN RESPONSE TO COURT'S NOVEMBER 26, 2012 ORDER (Attachments: # 1 Exhibit Policy Transmittal 13−02)(Daniel, Stephanie) (Entered: 02/06/2013)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 94 of 108

02/11/2013 02/11/2013 02/11/2013
02/11/2013
02/11/2013
02/20/2013 02/20/2013 03/06/2013 03/06/2013 03/11/2013
03/11/2013

1218 1219 1220
1221
1222
1223 1224 1225 1226 1227
1228

RESPONSE/REPLY to 1210 Order, Set/Reset Deadlines Issued November 26, 2012 by All Plaintiffs. (Singer, Stuart) (Entered: 02/11/2013)
NOTICE by All Plaintiffs re 1218 Response/Reply (Other) of Filing in Support of Plaintiffs' Memorandum of Law in Response to Court's November 26, 2012 Order (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 02/11/2013)
TRANSCRIPT of Trial Proceedings held on 5−26−11 before Judge Adalberto Jordan, Volume Number Vol. 38 of 96, 6548−6671 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Francine Salopek or PACER. Redaction Request due 3/7/2013. Redacted Transcript Deadline set for 3/18/2013. Release of Transcript Restriction set for 5/16/2013. (fs) (Entered: 02/11/2013)
TRANSCRIPT of Trial Proceedings held on 5−31−11 before Judge Adalberto Jordan, Volume Number Vol. 39 of 96, 6672−6836 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Francine Salopek or PACER. Redaction Request due 3/7/2013. Redacted Transcript Deadline set for 3/18/2013. Release of Transcript Restriction set for 5/16/2013. (fs) (Entered: 02/11/2013)
TRANSCRIPT of Trial Proceedings held on 6−1−11 before Judge Adalberto Jordan, Volume Number Vol. 40 of 96, 6837−6998 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Francine Salopek or PACER. Redaction Request due 3/7/2013. Redacted Transcript Deadline set for 3/18/2013. Release of Transcript Restriction set for 5/16/2013. (fs) (Entered: 02/11/2013)
MOTION to File Reply re 1218 Response/Reply (Other) to Plaintiffs Memorandum of Law by All Defendants. (Attachments: # 1 Memorandum Proposed Reply)(Daniel, Stephanie) (Entered: 02/20/2013)
RESPONSE in Opposition re 1223 MOTION to File Reply re 1218 Response/Reply (Other) to Plaintiffs Memorandum of Law Concerning This Court's November 26, 2012 Order filed by All Plaintiffs. (Singer, Stuart) (Entered: 02/20/2013)
ORDER denying 1223 Motion to File Reply, Signed by Judge Adalberto Jordan on 3/6/2013. (lh) (Entered: 03/06/2013)
ORDER SETTING HEARING re 1210 Order, Set/Reset Deadlines, as to 1210 Order, Set/Reset Deadlines. ( Relevant provisions of the Affordable Care Act Hearing set for 3/15/2013 10:00 AM in Miami Division before Judge Adalberto Jordan.) Signed by Judge Adalberto Jordan on 3/6/2013. (lh) (Entered: 03/06/2013)
TRANSCRIPT of Trial Proceedings held on 6−2−11 before Judge Adalberto Jordan, Volume Number 41 of 96, 6999−7192 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 4/4/2013. Redacted Transcript Deadline set for 4/15/2013. Release of Transcript Restriction set for 6/13/2013. (fs) (Entered: 03/11/2013)
TRANSCRIPT of Trial Proceedings held on 6−6−11 before Judge Adalberto Jordan, Volume Number 42 of 96, 7193−7395 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 4/4/2013. Redacted Transcript Deadline set for 4/15/2013. Release of Transcript Restriction set for 6/13/2013. (fs) (Entered: 03/11/2013)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 95 of 108

03/11/2013
03/12/2013 03/12/2013 03/12/2013
03/12/2013 03/12/2013 03/13/2013 03/18/2013 04/17/2013
06/25/2013
07/03/2013 08/06/2013 08/12/2013 10/21/2013

1229
1230 1231 1232
1233 1234 1235 1236 1237
1238
1239 1240 1241 1242

TRANSCRIPT of Trial Proceedings held on 6−30−11 before Judge Adalberto Jordan, Volume Number 42 of 96, 7395−7520 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 4/4/2013. Redacted Transcript Deadline set for 4/15/2013. Release of Transcript Restriction set for 6/13/2013. (fs) (Entered: 03/11/2013)
MEMORANDUM of Law re 1215 Order on Motion for Leave to File Excess Pages In Response to Court's November 26, 2012 Order by All Defendants. (Daniel, Stephanie) (Entered: 03/12/2013)
Notice of Supplemental Authority re 1230 Memorandum by All Defendants (Daniel, Stephanie) (Entered: 03/12/2013)
NOTICE by All Defendants re 1230 Memorandum of Filing Documents Regarding Status of Implementation of Primary Care Rate Increases (Attachments: # 1 Exhibit 2/13/2013 Email from CMS, # 2 Exhibit 3/12/2013 Email from AHCA, # 3 Exhibit CMS Qs & As regarding Managed Care Set II, # 4 Exhibit CMS Qs & As on Primary Care Rates Set II, # 5 Exhibit CMS Qs & As on Primary Care Rates Set III, # 6 Exhibit CMS Qs & As on Primary Care Rates Set IV, # 7 Exhibit Web Portal Alert)(Daniel, Stephanie) (Entered: 03/12/2013)
Notice of Supplemental Authority re 1230 Memorandum of Law In Response to Court's November 26, 2012 Order by All Defendants (Daniel, Stephanie) (Entered: 03/12/2013)
NOTICE by All Defendants re 1230 Memorandum of Filing Additional Documents Regarding the Status of Implementation of Primary Care Rate Increases (Attachments: # 1 Exhibit Email from CMS regarding self−attestation)(Daniel, Stephanie) (Entered: 03/12/2013)
Notice of Supplemental Authority re 1219 Notice (Other) by All Plaintiffs (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 03/13/2013)
ORDER DENYING MOTION TO DISMISS re 1230 Memorandum filed by All Defendants, Signed by Judge Adalberto Jordan on 3/18/2013. (lh) (Entered: 03/18/2013)
TRANSCRIPT of hearing held on 03−15−2013 before Judge Adalberto Jordan, Volume Number 1 of 1, 1−71 pages, Court Reporter: Dawn Whitmarsh, 305−523−5598 / Dawn_Whitmarsh@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/13/2013. Redacted Transcript Deadline set for 5/23/2013. Release of Transcript Restriction set for 7/19/2013. (dwh) (Entered: 04/17/2013)
STATUS REPORT Regarding Implementation of Primary Care Rate Increases, etc. by Elizabeth Dudek (Attachments: # 1 Exhibit A − SPA approval letter, # 2 Exhibit B − Press Release, # 3 Exhibit C − Provider Alert (4/2013), # 4 Exhibit D− Provider Alert (5/2013), # 5 Exhibit E − AHCA Methodology email, # 6 Exhibit F − CMS Questions Re Methodology, # 7 Exhibit G − AHCA methodology responses, # 8 Exhibit H − 1115 approval letter, # 9 Exhibit I − Long Range Financial Outlook)(Daniel, Stephanie) (Entered: 06/25/2013)
RESPONSE/REPLY to 1238 Status Report,, Regarding Implementation of Primary Care Rate Increases, etc. by All Plaintiffs. (Singer, Stuart) (Entered: 07/03/2013)
STATUS REPORT Regarding Implementation of Primary Care Rate Increases by Elizabeth Dudek (Attachments: # 1 Exhibit 6/25/2013 Letter from CMS, # 2 Exhibit MCP Transmittal 13−02, # 3 Exhibit 6/6/2013 letter to MCPs, # 4 Exhibit MCP Transmittal 13−07, # 5 Exhibit Vaccine Provider Alerts)(Daniel, Stephanie) (Entered: 08/06/2013)
MEMORANDUM IN RESPONSE re 1240 Status Report, by All Plaintiffs. (Singer, Stuart) Modified text on 8/12/2013 (bb). (Entered: 08/12/2013)
MOTION REQUESTING FURTHER MEDIATION by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Singer, Stuart) (Entered: 10/21/2013)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 96 of 108

10/22/2013 10/24/2013 12/16/2013
12/16/2013 12/23/2013
12/23/2013 12/23/2013 12/27/2013
12/27/2013 01/03/2014 01/06/2014 01/14/2014 01/15/2014 01/16/2014

1243 1244 1245
1246 1247
1248 1249 1250
1251 1252 1253 1254 1255 1256

RESPONSE in Opposition re 1242 MOTION REQUESTING FURTHER MEDIATION filed by All Defendants. (Attachments: # 1 Exhibit A − Singer Email, # 2 Exhibit B − Daniel Email, # 3 Exhibit C− Johnson Order)(Daniel, Stephanie) (Entered: 10/22/2013)
REPLY to Response to Motion re 1242 MOTION REQUESTING FURTHER MEDIATION filed by All Plaintiffs. (Singer, Stuart) (Entered: 10/24/2013)
ORDER INSTRUCTING DEFENDANTS TO SUBMIT ENHANCED PAYMENT INFORMATION re 1239 Response/Reply (Other) filed by All Plaintiffs, 1241 Memorandum filed by All Plaintiffs, 1238 Status Report,, filed by Elizabeth Dudek, 1240 Status Report, filed by Elizabeth Dudek. Signed by Judge Adalberto Jordan on 12/16/2013. (lh) (Entered: 12/16/2013)
ORDER denying 1242 Motion Requesting Further Mediation. Signed by Judge Adalberto Jordan on 12/16/2013. (lh) (Entered: 12/16/2013)
NOTICE by Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA) of Filing Documents In Support of Suggestion of Mootness (Attachments: # 1 Exhibit 1 − PCP Fee Schedule, # 2 Exhibit 2 − Medicare Fee 99212, # 3 Exhibit 3 − FMA Web Alert, # 4 Exhibit 4 − Supplemental Declaration of D. Powers, # 5 Exhibit 5 − 4/15/2013 Provider Alert, # 6 Exhibit 6 − 4/24/2013 Provider Alert, # 7 Exhibit 7 − 5/20/2013 Provider Alert, # 8 Exhibit 8 − 7/5/2013 Provider Alert, # 9 Exhibit 9 − Supplemental Declaration of M. Brown−Woofter, # 10 Exhibit 10 − Declaration of K. Chang, # 11 Exhibit 11 − 6/6/2013 Dear Medicaid Plan, # 12 Exhibit 12 − Excerpts of Managed Care Contract, # 13 Exhibit 13− MCP Policy Transmittal 13−07, # 14 Exhibit 14 − MCP Policy Transmittal 13−14, # 15 Exhibit Communications between FPS and AHCA, # 16 Exhibit 16 − 11/6/2013 Committee Meeting Notice)(Daniel, Stephanie) (Entered: 12/23/2013)
Unopposed MOTION for Leave to File Excess Pages for Suggestion of Mootness by Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of the Florida Department of Health. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Exhibit Suggestion of Mootness)(Daniel, Stephanie) (Entered: 12/23/2013)
ORDER granting 1248 Motion for Leave to File Excess Pages. Signed by Judge Adalberto Jordan on 12/23/2013. (ots) (Entered: 12/26/2013)
NOTICE of Defendat's Suggestion of Mootness Directed to "Primary Care" Reimbursement Rates For Eligible Services by Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of Florida Department of Children & Family Services. Per Order DE 149 (ots) (Entered: 12/27/2013)
Unopposed MOTION for Extension of Time to File Response/Reply as to 1249 Order on Motion for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Goldfarb, Carl) (Entered: 12/27/2013)
ORDER granting 1251 Motion for Extension of Time to File Response/Reply. Responses due by 1/14/2014 Signed by Judge Adalberto Jordan on 1/3/2014. (tp) (Entered: 01/03/2014)
MOTION for Appear Pro Hac Vice of Benjamin D. Geffen, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filings. Filing Fee $ 75.00. Receipt # 71537. (pt) (Entered: 01/06/2014)
RESPONSE/REPLY to 1250 Notice (Other), of Suggestion of Mootness Directed to "Primary Care" Reimbursement Rates for Eligible Services by All Plaintiffs. (Attachments: # 1 Exhibit A)(Singer, Stuart) (Entered: 01/14/2014)
NOTICE by All Plaintiffs re 1254 Response/Reply (Other) of Filing Legislative Budget Requests to the Declaration of Louis B. St. Petery, J.R., M.D. (Attachments: # 1 LBRs 2014−2015)(Singer, Stuart) (Entered: 01/15/2014)
TRANSCRIPT of Trial Proceedings held on 10−05−11 before Judge Adalberto Jordan, Volume Number 47, 7950−8122 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 97 of 108

01/16/2014
01/16/2014
01/21/2014 01/29/2014 02/05/2014 02/07/2014 03/12/2014 06/23/2014 06/27/2014
07/01/2014

1257
1258
1259 1260 1261 1262 1263 1264 1265
1266

obtained through the Court Reporter Francine Salopek and PACER. Redaction Request due 2/10/2014. Redacted Transcript Deadline set for 2/21/2014. Release of Transcript Restriction set for 4/21/2014. (fs) (Entered: 01/16/2014)
TRANSCRIPT of Trial Proceedings held on 10−06−11 before Judge Adalberto Jordan, Volume Number 48 of 96, 8123−8297 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 2/10/2014. Redacted Transcript Deadline set for 2/21/2014. Release of Transcript Restriction set for 4/21/2014. (fs) (Entered: 01/16/2014)
TRANSCRIPT of Trial Proceedings held on 10−11−11 before Judge Adalberto Jordan, Volume Number 49 of 96, 8298−8489 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 2/10/2014. Redacted Transcript Deadline set for 2/21/2014. Release of Transcript Restriction set for 4/21/2014. (fs) (Entered: 01/16/2014)
ORDER granting 1253 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing. Signed by Judge Adalberto Jordan on 1/17/2014. (lh) (Entered: 01/21/2014)
RESPONSE/REPLY to 1254 Response/Reply (Other), 1250 Notice (Other), Reply Regarding Suggestion of Mootness by Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of the Florida Department of Health. (Attachments: # 1 Exhibit AHCA's Subcommittee Presentation)(Daniel, Stephanie) (Entered: 01/29/2014)
MOTION to Withdraw as Attorney for Plaintiffs by James Eiseman, Jr. and Thomas K. Gilhool. by All Plaintiffs. Responses due by 2/24/2014 (Attachments: # 1 Text of Proposed Order)(Goldfarb, Carl) (Entered: 02/05/2014)
Amended MOTION to Withdraw as Attorney of Record for Plaintiffs by James Eiseman, Jr. and Thomas K. Gilhool. by All Plaintiffs. Responses due by 2/24/2014 (Goldfarb, Carl) (Entered: 02/07/2014)
ORDER granting 1262 Motion to Withdraw as Attorney. Attorney James Eiseman, Jr and Thomas K. Gilhool terminated Notice of Termination delivered by US Mail to James Eiseman, Thomas Gilhool.. Signed by Judge Adalberto Jordan on 3/10/2014. (lh) (Entered: 03/12/2014)
NOTICE by All Plaintiffs NOTICE OF RECENT DEVELOPMENTS REGARDING DEFENDANTS SUGGESTION OF MOOTNESS (Singer, Stuart) (Entered: 06/23/2014)
MOTION for Judicial Notice by Elizabeth Dudek. (Attachments: # 1 Exhibit 1.a June 14, 2013 approval letter, # 2 Exhibit 1b − Special Terms and Conditions, # 3 Exhibit 1c − Waiver and Authorities, # 4 Exhibit 2a − August 1, 2011 letter, # 5 Exhibit 2b − Attachment I to Amendment Request, # 6 Exhibit 2c − Attachment II to Amendment Request, # 7 Exhibit 3 − February 20, 2013 letter from CMS, # 8 Exhibit 4a − December 23, 2013 approval letter, # 9 Exhibit 4b − Implementation Plan, # 10 Exhibit 5a − April 4 2014 letter, # 11 Exhibit 5b − Quality Strategy, # 12 Exhibit 6a − November 26, 2013 letter, # 13 Exhibit 6b − Extension Request, # 14 Exhibit 7 − Quarterly Report, # 15 Exhibit 8a − Attachment I to MMA contract, # 16 Exhibit 8b − Attachment II to MMA contract, # 17 Exhibit 8c − Attachment II−A to MMA contract, # 18 Exhibit 9 −Sunshine Contract, # 19 Exhibit 10a − Standard contract, # 20 Exhibit 10b − Attachment I Standard contract, # 21 Exhibit 10c − Attachment II Standard contract, # 22 Exhibit Attachment II Exhibits Standard Contract, # 23 Exhibit 11 − ITN for Region 2)(Daniel, Stephanie) (Entered: 06/27/2014)
NOTICE OF HEARING as to 1265 MOTION for suggestion of mootness .( Motion Hearing set for 7/8/2014 10:00 AM in Miami Division before Judge Adalberto Jordan.) Signed by Judge Adalberto Jordan on 6/30/2014. (lh) (Entered: 07/01/2014)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 98 of 108

07/01/2014 07/03/2014 07/03/2014 07/10/2014 07/11/2014 07/14/2014 07/14/2014 07/18/2014 08/01/2014
08/15/2014
08/15/2014
08/15/2014

1267 1268 1269 1270 1271 1272 1273 1274 1275
1276
1277
1278

MOTION Suggestion of Mootness re 1250 Notice (Other), by Elizabeth Dudek. (Attachments: # 1 Affidavit Justin M. Senior, # 2 Affidavit Abby Riddle, # 3 Affidavit Karen Chang, # 4 Affidavit Stacey Lampkin)(Daniel, Stephanie) (Entered: 07/01/2014)
NOTICE by Elizabeth Dudek re 1267 MOTION Suggestion of Mootness re 1250 Notice (Other), of Filing (Attachments: # 1 Affidavit Justin Senior, # 2 Exhibit Exhibit A − Milliman Report)(Daniel, Stephanie) (Entered: 07/03/2014)
Notice of Supplemental Authority re 1250 Notice (Other), Suggestion of Mootness by Elizabeth Dudek (Daniel, Stephanie) (Entered: 07/03/2014)
ORDER re 1267 MOTION Suggestion of Mootness re 1250 Notice (Other), filed by Elizabeth Dudek, 1250 Notice (Other), filed by Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of Florida Department of Children & Family Services. Signed by Judge Adalberto Jordan on 7/10/2014. (lh) (Entered: 07/10/2014)
Plaintiff's MOTION for Extension of Time to File Response/Reply as to 1265 MOTION for Judicial Notice by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Singer, Stuart) (Entered: 07/11/2014)
Amended MOTION for Extension of Time to File Response/Reply as to 1265 MOTION for Judicial Notice by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Singer, Stuart) (Entered: 07/14/2014)
ORDER granting 1272 Motion for Extension of Time to File Response. Signed by Judge Adalberto Jordan on 7/14/2014. (lh) (Entered: 07/15/2014)
RESPONSE to Motion re 1265 MOTION for Judicial Notice filed by All Plaintiffs. Replies due by 7/28/2014. (Singer, Stuart) (Entered: 07/18/2014)
TRANSCRIPT of Hearing on Defendants' Suggestion of Mootness held on 7−8−14 at 10:03 a.m. before Judge Adalberto Jordan, 1−93 pages, Court Reporter: Carly Horenkamp, 305−523−5138 / Carleen_Horenkamp@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/25/2014. Redacted Transcript Deadline set for 9/5/2014. Release of Transcript Restriction set for 11/3/2014. (ch) (Entered: 08/01/2014)
TRANSCRIPT of Trial Proceedings held on 10−12−11 before Judge Adalberto Jordan, Volume Number 50 of 96, 9490−8697 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014. (fs) (Entered: 08/15/2014)
TRANSCRIPT of Trial Proceedings held on 10−13−11 before Judge Adalberto Jordan, Volume Number 51 of 96, 8698−8852 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014. (fs) (Entered: 08/15/2014)
TRANSCRIPT of Trial Proceedings held on 10−17−11 before Judge Adalberto Jordan, Volume Number 52 or 96, 8853−9072 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 9/8/2014. Redacted Transcript Deadline set for 9/18/2014. Release of Transcript Restriction set for 11/17/2014. (fs) (Entered: 08/15/2014)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 99 of 108

10/23/2014 10/23/2014 10/23/2014 10/23/2014
10/28/2014 10/31/2014 10/31/2014 11/17/2014 11/18/2014 11/24/2014 11/24/2014
11/24/2014 11/24/2014 11/24/2014 11/25/2014

1279 1280 1281 1282
1283 1284 1285 1286
1287 1288
1289 1290 1292 1291

MOTION Suggestion of Mootness or, in the Alternative, to Reopen Record by Secretary of Florida Department of Children & Family Services. (Daniel, Stephanie) (Entered: 10/23/2014)
NOTICE by Secretary of Florida Department of Children & Family Services re 1279 MOTION Suggestion of Mootness or, in the Alternative, to Reopen Record (Attachments: # 1 Affidavit Nathan Lewis, # 2 Affidavit Suzanne Poirier, # 3 Affidavit Dianna Laffey, # 4 Affidavit Judy Glisson) (Daniel, Stephanie) (Entered: 10/23/2014)
MOTION to Reopen Record for Trial on Liability by Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of the Florida Department of Health. (Daniel, Stephanie) (Entered: 10/23/2014)
NOTICE by Secretary of the Florida Department of Health, Secretary of the Florida Agency for Health Care Administration (AHCA) re 1281 MOTION to Reopen Record for Trial on Liability (Attachments: # 1 Affidavit Abby Riddle, # 2 Affidavit Damon Rich, # 3 Affidavit Linda Macdonald, # 4 Affidavit David Rogers, # 5 Affidavit Elizabeth Kidder, # 6 Affidavit Karen Chang, # 7 Affidavit Joni Hollis, # 8 Affidavit Judith Ryan, # 9 Affidavit Paula Dorhout, # 10 Affidavit Melissa Vergeson) (Daniel, Stephanie) (Entered: 10/23/2014)
RESPONSE in Opposition re 1279 MOTION Suggestion of Mootness or, in the Alternative, to Reopen Record, 1281 MOTION to Reopen Record for Trial on Liability filed by All Plaintiffs. (Singer, Stuart) (Entered: 10/28/2014)
REPLY to Response to Motion re 1279 MOTION Suggestion of Mootness or, in the Alternative, to Reopen Record, 1281 MOTION to Reopen Record for Trial on Liability filed by All Defendants. (Daniel, Stephanie) (Entered: 10/31/2014)
REPLY to Response to Motion re 1279 MOTION Suggestion of Mootness or, in the Alternative, to Reopen Record, 1281 MOTION to Reopen Record for Trial on Liability (Corrected) filed by All Defendants. (Daniel, Stephanie) (Entered: 10/31/2014)
MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Joshua Riley. Filing Fee $ 75.00. Receipt # 6021. (ksa) (Entered: 11/21/2014)
Attorney Joshua P. Riley representing Florida Pediatric Society/The FLorida Chapter of the American Academy of Pediatrics (Plaintiff) Activated. (ksa) (Entered: 11/21/2014)
CLERKS NOTICE REASSIGNING CLOSED CASE. Document(s) have been submitted to this Court which pertain to a case in which the assigned judge is no longer with this Court. Case reassigned to Judge James I. Cohn for all further proceedings. Judge Adalberto Jordan no longer assigned to case (jmd) (Entered: 11/24/2014)
NOTICE by Secretary of Florida Department of Children & Family Services re 1279 MOTION Suggestion of Mootness or, in the Alternative, to Reopen Record Defendant Carroll's Notice Of Filing Supplemental Documents In Support Of Mootness, Or, In The Alternative, Motion To Reopen Record For Trial On Liability. Attorney Albert J. Bowden, III added to party Secretary of Florida Department of Children & Family Services(pty:dft). (Attachments: # 1 Exhibit Declaration Of Suzanne S. Poirier, # 2 Exhibit Modified Medical Application) (Bowden, Albert) (Entered: 11/24/2014)
ORDER REASSIGNING CASE to Ch. Magistrate Judge Barry S. Seltzer for all further proceedings, Magistrate Judge John J. O'Sullivan no longer assigned to case. Signed by Magistrate Judge John J. O'Sullivan on 11/24/2014. (mkr) (Entered: 11/24/2014)
AMENDED CLERKS NOTICE REASSIGNING CLOSED CASE re: DE #1287. (Reassigned in Error). Case reassigned back to Judge Adalberto Jordan for all further proceedings. Judge James I. Cohn no longer assigned to case. (jmd) (Entered: 11/24/2014)
Order to Vacate re 1289 Order Reassigning/Transferring Case. Signed by Magistrate Judge John J. O'Sullivan on 11/24/2014. (lk) (Entered: 11/25/2014)
Order to Vacate re 1289 Order Reassigning/Transferring Case. Signed by Magistrate Judge John J. O'Sullivan on 11/24/2014. (mkr) (Entered: 11/25/2014)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 100 of 108

11/25/2014 12/30/2014 01/07/2015 01/08/2015 01/20/2015 01/23/2015 01/26/2015 01/27/2015 01/29/2015
01/29/2015 01/29/2015 02/13/2015 02/20/2015
02/20/2015
02/20/2015

1293 1294 1295 1296 1297 1298 1299 1300 1301
1302 1303 1304 1305
1306
1307

ORDER denying 1279 Motion Suggestion of MootnessReopen Record for Trial on Liability; denying 1281 Motion Suggestion of MootnessReopen Record for Trial on Liability. Signed by Judge Adalberto Jordan on 11/25/2014. (tp) (Entered: 11/25/2014)
FINDINGS OF FACT AND CONCLUSIONS OF LAW Signed by Judge Adalberto Jordan on 12/29/2014. (yha) (Entered: 12/31/2014)
Order Requiring Joint Scheduling Report( −Joint Scheduling Report due by 1/23/2015), ( Status Conference Re: Scheduling/Deadlines/Procedural Matters set for 1/30/2015 02:00 PM.) Signed by Judge Adalberto Jordan on 1/7/2015. (lh) (Entered: 01/08/2015)
AMENDED ORDER re 1295 Order Requiring Joint Scheduling Report. ( Status Conference Re: Scheduling/Deadlines/Procedural Matters set for 1/30/2015 02:00 PM in Miami Division.) Signed by Judge Adalberto Jordan on 1/8/2015. (lh) (Entered: 01/08/2015)
Notice of ReScheduled Status Conference: Status Conference Re: Scheduling/Deadlines/Procedural Matters reset for 1/30/2015 01:00 PM in Miami Division before Judge Adalberto Jordan. Signed by Judge Adalberto Jordan on 1/16/2015. (lh) (Entered: 01/20/2015)
NOTICE by All Defendants, All Plaintiffs re 1296 Amended Order, Set/Reset Hearings JOINT SCHEDULING REPORT (Singer, Stuart) (Entered: 01/23/2015)
NOTICE by All Defendants, All Plaintiffs re 1296 Amended Order, Set/Reset Hearings CORRECTED JOINT SCHEDULING REPORT (Singer, Stuart) (Entered: 01/26/2015)
MOTION to Amend/Correct 1294 Findings of Fact & Conclusions of Law by All Defendants. Responses due by 2/13/2015 (Daniel, Stephanie) (Entered: 01/27/2015)
EMERGENCY MOTION for Continuance of Status Conference by Andrew Agwunobi, Holly Benson, Robert A. Butterworth, Elizabeth Dudek, Alan Levine, Secretary of Florida Department of Children & Family Services, Secretary of the Florida Agency for Health Care Administration (AHCA), Secretary of the Florida Department of Health, Ana Viamonte−Ros. Responses due by 2/17/2015 (jua) (Entered: 01/29/2015)
RESPONSE in Opposition re 1301 MOTION to Continue Status Conference filed by All Plaintiffs. Replies due by 2/9/2015. (Singer, Stuart) (Entered: 01/29/2015)
ORDER denying 1301 Motion to Continue. Signed by Judge Adalberto Jordan on 1/29/2015. (lh) (Entered: 01/29/2015)
RESPONSE in Opposition re 1300 MOTION to Amend/Correct 1294 Findings of Fact & Conclusions of Law filed by All Plaintiffs. Replies due by 2/23/2015. (Singer, Stuart) (Entered: 02/13/2015)
TRANSCRIPT of Trial Proceedings held on 10−18−11 before Judge Adalberto Jordan, Volume Number 53 of 96, 9073−9238 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 3/16/2015. Redacted Transcript Deadline set for 3/26/2015. Release of Transcript Restriction set for 5/26/2015. (fs) (Entered: 02/20/2015)
TRANSCRIPT of Trial Proceedings held on 10−19−11 before Judge Adalberto Jordan, Volume Number 54 of 96, 9239−9426 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 3/16/2015. Redacted Transcript Deadline set for 3/26/2015. Release of Transcript Restriction set for 5/26/2015. (fs) (Entered: 02/20/2015)
TRANSCRIPT of Trial Proceedings held on 10−20−11 before Judge Adalberto Jordan, Volume Number 55 of 96, 9427−9610 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 101 of 108

02/23/2015 02/25/2015
03/24/2015 03/24/2015 03/31/2015 03/31/2015 04/01/2015 04/02/2015 04/03/2015 04/07/2015 04/08/2015
04/09/2015
04/09/2015 04/10/2015 04/10/2015

1308 1309
1310 1311 1312 1313 1314 1315 1316 1317 1318
1319
1320
1322

before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 3/16/2015. Redacted Transcript Deadline set for 3/26/2015. Release of Transcript Restriction set for 5/26/2015. (fs) Modified on 2/20/2015 the hearing date on the docket(mc). (Entered: 02/20/2015)
RESPONSE/REPLY to 1304 Response in Opposition to Motion by All Defendants. (Daniel, Stephanie) (Entered: 02/23/2015)
TRANSCRIPT of Status Conference held on 01−30−2015 before Judge Adalberto Jordan, 1−43 pages, Court Reporter: Glenda Powers, 305−523−5022 / Glenda_Powers@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/23/2015. Redacted Transcript Deadline set for 4/2/2015. Release of Transcript Restriction set for 5/29/2015. (gps) (Entered: 02/25/2015)
ORDER granting in part and denying in part 1300 Motion to Amend/Correct. Signed by Judge Adalberto Jordan on 3/23/2015. (tp) (Entered: 03/25/2015)
ORDER FOLLOWING STATUS CONFERENCE. Hearing set for 4/24/2015 11:00 AM in Miami Division before Judge Adalberto Jordan. Signed by Judge Adalberto Jordan on 3/23/2015. (tp) (Entered: 03/25/2015)
Notice of Supplemental Authority by All Defendants (Daniel, Stephanie) (Entered: 03/31/2015)
ORDER requiring the filing of memorandum of law to not exceed 20 pages. Signed by Judge Adalberto Jordan on 3/31/2015. (lk) (Entered: 04/01/2015)
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Adalberto Jordan on 3/31/2015. (lk) (Entered: 04/01/2015)
MOTION for Extension of Time to File Response/Reply/Answer as to 1311 Order, Set/Reset Deadlines/Hearings by All Defendants. (Bowden, Albert) (Entered: 04/02/2015)
RESPONSE to Motion re 1315 MOTION for Extension of Time to File Response/Reply/Answer as to 1311 Order, Set/Reset Deadlines/Hearings filed by All Plaintiffs. Replies due by 4/13/2015. (Singer, Stuart) (Entered: 04/03/2015)
RESPONSE/REPLY to 1316 Response to Motion For Extension by All Defendants. (Daniel, Stephanie) (Entered: 04/07/2015)
NOTICE by All Plaintiffs re 1311 Order, Set/Reset Deadlines/Hearings PLAINTIFFS OFFER OF PROOF IN SUPPORT OF DECLARATORY AND INJUNCTIVE RELIEF (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25 − Part 1 of 2, # 26 Exhibit 25 − Part 2 of 2, # 27 Exhibit 26) (Singer, Stuart) (Entered: 04/08/2015)
NOTICE by All Plaintiffs re 1318 Notice (Other),, of Filing Executed Declarations in Support of Plaintiffs' Offer of Proof Regarding Declaratory and Injunctive Relief (Attachments: # 1 Exhibit 3, # 2 Exhibit 5, # 3 Exhibit 8, # 4 Exhibit 12, # 5 Exhibit 19, # 6 Exhibit 22, # 7 Exhibit 26, # 8 Exhibit 20 attaching Exhibit A) (Singer, Stuart) (Entered: 04/09/2015)
MOTION to Seal Document Being Submitted with Plaintiffs' Offer of Proof in Support of Declaratory and Injunctive Relief (Attachments: # 1 Text of Proposed Order)(tpl) (Entered: 04/10/2015)
SYSTEM ENTRY − Docket Entry 1321 [misc] restricted/sealed until further notice. (tpl) (Entered: 04/10/2015)
Amended MOTION to Seal Documents Being Submitted with Plaintiffs' Offer of Proof in Support of Declaratory and Injunctive Relief (Attachments: # 1 Text of Proposed

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 102 of 108

04/13/2015 04/13/2015 04/17/2015 04/17/2015 04/22/2015
04/22/2015 04/23/2015 04/24/2015
05/01/2015 05/01/2015

1323 1324 1325 1326 1327
1328 1329 1330
1331 1332

Order)(tpl) (Entered: 04/10/2015)
ORDER granting 1320 Motion to Seal. Signed by Judge Adalberto Jordan on 4/13/2015. (lh) (Entered: 04/14/2015)
ORDER denying in part and deferring in part 1315 Motion for Extension of Time to File and for Continuance. Signed by Judge Adalberto Jordan on 4/13/2015. (lh) (Entered: 04/14/2015)
NOTICE by All Plaintiffs re 1313 Order Plaintiffs Memorandum On The Effect Of Armstrong v. Exceptional Child Care Center (Singer, Stuart) (Entered: 04/17/2015)
MEMORANDUM of Law re 1313 Order Directing Briefing on the Impact of Armstrong v. Exceptional Learning Center, Inc. by All Defendants. (Daniel, Stephanie) (Entered: 04/17/2015)
NOTICE by All Defendants re 1311 Order, Set/Reset Deadlines/Hearings Declarations in Support of Defendants' Offer of Proof (Attachments: # 1 Affidavit Justin Senior, # 2 Affidavit Elizabeth Y. Kidder, # 3 Affidavit David Rogers, # 4 Affidavit Stacy Lampkin, # 5 Affidavit Abbey Riddle, # 6 Affidavit Shevaun Harris, # 7 Affidavit Karen Chang, # 8 Affidavit Rachel LaCroix, # 9 Affidavit Damon Rich, # 10 Affidavit David Powers, # 11 Affidavit Tracy Hurd−Alvarez, # 12 Affidavit Erica Floyd−Thomas, # 13 Affidavit Don Fuller, # 14 Affidavit Dietra Cole, # 15 Affidavit Brian Meyer, # 16 Affidavit Rhea Gray, # 17 Affidavit Melissa Vergeson, # 18 Affidavit Aliece Rockwell, # 19 Affidavit Joni Hollis, # 20 Affidavit Sharon Surrency, # 21 Affidavit Joanne Angel, # 22 Affidavit Barbara Ray, # 23 Affidavit Cheri Andrews, # 24 Affidavit Paula Dorhout, # 25 Affidavit Betty Mayo, # 26 Affidavit Nathan Lewis, # 27 Affidavit Tonyaleah Veltkamp, # 28 Affidavit Liesta Sykes, # 29 Affidavit Robin Ingram, # 30 Affidavit Barbara Roglieri, # 31 Affidavit Dianna Laffey, # 32 Affidavit Susan Thomas, # 33 Affidavit William Martinez, # 34 Affidavit Reginald Altazan, # 35 Affidavit Pataricia Gottshall, # 36 Affidavit Terrance Field, # 37 Affidavit Pearlie Turner, # 38 Affidavit Violet Ryland, # 39 Affidavit Dan−Itus Briggs, # 40 Affidavit John Benz, # 41 Affidavit Ragnier Stein, # 42 Affidavit Rufus Joseph, # 43 Affidavit Deb Ault, # 44 Affidavit Eina Fishman, # 45 Affidavit Carlos LaCasa, # 46 Affidavit Douglas Manning, # 47 Affidavit Dave Meadows, # 48 Affidavit Duenna Dorsett, # 49 Affidavit Elizabeth Miller, # 50 Affidavit Katrina Knight−Vera, # 51 Affidavit Tomas Orozco, # 52 Affidavit Tomas Orozco, # 53 Affidavit Tomas Orozco, # 54 Affidavit Jeffrey King, # 55 Affidavit Gus Keriazesa, # 56 Affidavit Deborah Bond, # 57 Affidavit Michael Lawton, # 58 Affidavit William Kruegel, # 59 Affidavit Tara Price, # 60 Affidavit Joseph Rogers, # 61 Affidavit Andrew Behrman, # 62 Affidavit Laura Culbreth) (Daniel, Stephanie) (Entered: 04/22/2015)
RESPONSE/REPLY to 1311 Order, Set/Reset Deadlines/Hearings With Offer of Proof by All Defendants. (Daniel, Stephanie) (Entered: 04/22/2015)
ORDER Denying Defendants' Motion for Continuance of Hearing re 1315 MOTION for Extension of Time to File Response/Reply/Answer as to 1311 Order, Set/Reset Deadlines/Hearings filed by All Defendants Signed by Judge Adalberto Jordan on 4/23/2015. (asl) (Entered: 04/23/2015)
NOTICE by All Defendants re 1328 Response/Reply (Other) (Attachments: # 1 Exhibit 40− Declaration of John A. Benz, # 2 Exhibit 41− Declaration of Ragnier Stein, # 3 Exhibit 43− Declaration of Deb S. Ault, # 4 Exhibit 44− Declaration of Eina G. Fishman, # 5 Exhibit 45− Declaration of Carlos A. LaCasa, # 6 Exhibit 46− Declaration of Douglas Manning, # 7 Exhibit 47− Declaration of Dave Meadows, # 8 Exhibit 48− Declaration of Duenna Dorsett, # 9 Exhibit 49− Declaration of Elizabeth Miller, # 10 Exhibit 54− Declaration of Jeffrey King, # 11 Exhibit 55− Declaration of Gus Keriazes, # 12 Exhibit 56− Declaration of Deborah Bond, # 13 Exhibit 57− Declaration of Michael Lawton, # 14 Exhibit 59− Declaration of Tara F. Price, # 15 Exhibit 60− Declaration of Joseph Rogers, # 16 Exhibit 62− Declaration of Laura Culbreth) (Bowden, Albert) (Entered: 04/24/2015)
ORDER DISMISSING COUNT II WITH PREJUDICE, Signed by Judge Adalberto Jordan on 4/30/2015. (lh) (Entered: 05/01/2015)
NOTICE by All Plaintiffs OF FILING [PROPOSED] DECLARATORY JUDGMENT (Attachments: # 1 Text of Proposed Order) (Singer, Stuart) (Entered: 05/01/2015)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 103 of 108

05/05/2015 05/06/2015 05/07/2015
05/07/2015 05/07/2015 05/08/2015 05/18/2015 06/11/2015 06/19/2015 07/22/2015
07/22/2015
07/22/2015

1333 1334 1335
1336 1337 1338 1339 1340 1341 1342
1343
1344

MOTION To Seal and for Protective Order re 1327 Notice (Other),,,,,,,, by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bowden, Albert) (Additional attachment(s) added on 5/8/2015: # 3 Exhibit 50, # 4 Exhibit 51, # 5 Exhibit 52, # 6 Exhibit 53, # 7 Exhibit 58) (nc). (Entered: 05/05/2015)
NOTICE by All Plaintiffs of Filing Transcript of April 24, 2015 Hearing (Attachments: # 1 Exhibit A) (Singer, Stuart) (Entered: 05/06/2015)
TRANSCRIPT of hearing held on 4−24−2015 before Judge Adalberto Jordan, 1−70 pages, Court Reporter: Dawn Whitmarsh, 305−523−5598 / Dawn_Whitmarsh@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/1/2015. Redacted Transcript Deadline set for 6/11/2015. Release of Transcript Restriction set for 8/10/2015. (dwh) (Entered: 05/07/2015)
ORDER re 1332 Plaintiff's Proposed Declaratory Judgment/Notice (Other) filed by All Plaintiffs, Set/Reset Deadlines as to 1332 Notice (Other).( Responses due by 5/18/2015) Signed by Judge Adalberto Jordan on 5/6/2015. (lh) (Entered: 05/07/2015)
Clerks Notice to Filer re 1333 MOTION To Seal and for Protective Order re 1327 Notice (Other),,,,,,,, . Sealed Document Filed Electronically; ERROR − The Filer failed to file a sealed document in the conventional paper format. It is not necessary to refile the document but future sealed filings must be filed in the conventional paper format in accordance with the CM/ECF Administrative Procedures. (nc) (Entered: 05/07/2015)
ORDER granting 1333 Motion to file under seal. Clerk will accept for filing under seal Defendants' declarations. Signed by Judge Adalberto Jordan on 5/8/2015. (jmd) (Entered: 05/08/2015)
RESPONSE/REPLY to 1332 Notice (Other) of Filing Proposed Declaratory Judgment by All Defendants. (Daniel, Stephanie) (Entered: 05/18/2015)
ORDER re 1332 Notice (Other) filed by All Plaintiffs, 1339 Response/Reply (Other) filed by All Defendants, ( Replies due by 6/19/2015.) Signed by Judge Adalberto Jordan on 6/10/2015. (lh) (Entered: 06/11/2015)
RESPONSE/REPLY to 1332 Notice (Other) PLAINTIFFS REPLY IN SUPPORT OF PROPOSED DECLARATORY JUDGMENT by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Singer, Stuart) (Entered: 06/19/2015)
TRANSCRIPT of Trial Proceedings held on 10−24−11 before Judge Adalberto Jordan, Volume Number 56 of 96, 9611−9761 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 8/17/2015. Redacted Transcript Deadline set for 8/27/2015. Release of Transcript Restriction set for 10/23/2015. (fs) (Entered: 07/22/2015)
TRANSCRIPT of Trial Proceedings held on 10−25−11 before Judge Adalberto Jordan, Volume Number 57 of 96, 9762−9930 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 8/17/2015. Redacted Transcript Deadline set for 8/27/2015. Release of Transcript Restriction set for 10/23/2015. (fs) (Entered: 07/22/2015)
TRANSCRIPT of Trial Proceedings held on 10−26−11 before Judge Adalberto Jordan, Volume Number 58 of 96, 9931−10056 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 8/17/2015. Redacted Transcript Deadline set for 8/27/2015. Release of Transcript Restriction set for 10/23/2015. (fs) (Entered: 07/22/2015)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 104 of 108

07/22/2015
07/22/2015 07/24/2015 08/03/2015 09/30/2015 11/12/2015 11/12/2015 11/13/2015
11/13/2015 11/13/2015 11/13/2015
11/13/2015
11/13/2015

1345
1346 1347 1348 1349 1350 1351 1352 1353 1354
1355
1356

TRANSCRIPT of Trial Proceedings held on 10−27−11 before Judge Adalberto Jordan, Volume Number 59 of 96, 10057−10155 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 8/17/2015. Redacted Transcript Deadline set for 8/27/2015. Release of Transcript Restriction set for 10/23/2015. (fs) (Entered: 07/22/2015)
Plaintiff's MOTION for Discovery IN SUPPORT OF REQUEST FOR INJUNCTIVE RELIEF by All Plaintiffs. Responses due by 8/10/2015 (Attachments: # 1 Text of Proposed Order)(Singer, Stuart) (Entered: 07/22/2015)
RESPONSE in Opposition re 1346 Plaintiff's MOTION for Discovery IN SUPPORT OF REQUEST FOR INJUNCTIVE RELIEF filed by All Defendants. Replies due by 8/3/2015. (Daniel, Stephanie) (Entered: 07/24/2015)
RESPONSE in Support re 1346 Plaintiff's MOTION for Discovery IN SUPPORT OF REQUEST FOR INJUNCTIVE RELIEF filed by All Plaintiffs. (Singer, Stuart) (Entered: 08/03/2015)
ORDER granting 1286 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing. Signed by Judge Adalberto Jordan on 9/30/2015. (lh) (Entered: 09/30/2015)
MEDIATION ORDER REFERRING CASE to Magistrate Judge Chris M. McAliley for Mediation with receipt of notices for all filings in case. Signed by Judge Adalberto Jordan on 11/12/2015. (ls) (Entered: 11/12/2015)
ORDER REFERRING 1322 MOTION to Seal, 1346 Plaintiff's MOTION for Discovery filed by All Plaintiffs; Motions referred to Judge John J. O'Sullivan. Signed by Judge Adalberto Jordan on 11/12/2015. (ls) (Entered: 11/12/2015)
ORDER Setting Hearing on Motion 1346 Plaintiff's MOTION for Discovery IN SUPPORT OF REQUEST FOR INJUNCTIVE RELIEF. The parties shall also be prepared to discuss the parameters of an evidentiary hearing on the matters referred by Judge Jordan. Motion Hearing set for 12/1/2015 09:30 AM in Miami Division before Magistrate Judge John J. O'Sullivan. Signed by Magistrate Judge John J. O'Sullivan on 11/13/2015. (mkr) (Entered: 11/13/2015)
ORDER Scheduling Planning Conference for Settlement Conference, for 12/1/2015 at 1:30 PM, in Miami Division before Magistrate Judge Chris M. McAliley. Signed by Magistrate Judge Chris M. McAliley on 11/13/2015. (rms) (Entered: 11/13/2015)
Magistrate Judge Chris M. McAliley added to receive notices per her Settlement Conference role indicated DE 1353 Order. (mf) (Entered: 11/13/2015)
TRANSCRIPT of Trial Proceedings held on 11−14−11 before Judge Adalberto Jordan, Volume Number 64 of 96, 10757−10900 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 12/7/2015. Redacted Transcript Deadline set for 12/17/2015. Release of Transcript Restriction set for 2/16/2016. (fs) (Entered: 11/13/2015)
TRANSCRIPT of Trial Proceedings held on 11−15−11 before Judge Adalberto Jordan, Volume Number 65 of 96, 10901−11059 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 12/7/2015. Redacted Transcript Deadline set for 12/17/2015. Release of Transcript Restriction set for 2/16/2016. (fs) (Entered: 11/13/2015)
TRANSCRIPT of Trial Proceedings held on 11−16−11 before Judge Adalberto Jordan, Volume Number 66 of 96, 11060−11192 pages, Court Reporter: Francine Salopek, 954−769−5657 / Francine_Salopek@flsd.uscourts.gov. Transcript may be viewed at the

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 105 of 108

11/20/2015 11/24/2015 11/30/2015 12/01/2015 12/01/2015 12/01/2015
12/01/2015 12/01/2015
12/02/2015
12/02/2015 12/03/2015 12/03/2015 12/07/2015 12/14/2015

1357 1358 1359 1360 1361 1362
1363
1366
1364 1365 1367 1368

court public terminal or purchased by contacting the Court Reporter Francine Salopek before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter Francine Salopek or PACER. Redaction Request due 12/7/2015. Redacted Transcript Deadline set for 12/17/2015. Release of Transcript Restriction set for 2/16/2016. (fs) (Entered: 11/13/2015)
MOTION for Discovery by All Defendants. Responses due by 12/7/2015 (Daniel, Stephanie) (Entered: 11/20/2015)
Statement of: Outstanding Issues of Fact and Law by All Defendants (Attachments: # 1 Exhibit A − Medicaid Snapshot)(Daniel, Stephanie) (Entered: 11/24/2015)
ORDER Permitting Counsel to Possess and Use Trial Technology, Laptop Computers, Internet Access, and Permission to Bring Cellular Phones and PDAs into the Courthouse. Signed by Magistrate Judge John J. O'Sullivan on 11/30/2015. (mms) (Entered: 11/30/2015)
NOTICE of Attorney Appearance by Carol Ann Licko on behalf of All Defendants. Attorney Carol Ann Licko added to party All Defendants(pty:d). (Licko, Carol) (Entered: 12/01/2015)
NOTICE of Attorney Appearance by Craig Hamilton Smith on behalf of All Defendants. Attorney Craig Hamilton Smith added to party All Defendants(pty:d). (Smith, Craig) (Entered: 12/01/2015)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O'Sullivan: Motion Hearing held on 12/1/2015 re 1346 Plaintiff's MOTION for Discovery IN SUPPORT OF REQUEST FOR INJUNCTIVE RELIEF filed by All Plaintiffs. Stuart Singer, Carl Goldfarb, Lauren Louis, Benjamin Geffen and Pascual Oliu for plaintiffs; Leslie Street and Andrew Sheeran, by telephone, for defendants; Stephanie Daniel, Albert Bowden, Carol Licko and Craig Smith/defendants. (Digital 09:34:19.) (cg1) (Entered: 12/01/2015)
ORDER granting in part and denying in part 1346 Motion for Discovery; granting in part and denying in part 1357 Motion for Discovery. Signed by Magistrate Judge John J. O'Sullivan on 12/1/2015. (mkr) (Entered: 12/01/2015)
Set/Reset Deadlines/Hearings. See 1363 Order for additional deadlines. Discovery due by 3/31/2016. Exhibit List due by 4/7/2016. Evidentiary Hearing set for 4/18/2016 09:00 AM in Miami Division before Magistrate Judge John J. O'Sullivan. Status Conference set for 4/11/2016 10:00 AM in Miami Division before Magistrate Judge John J. O'Sullivan. (mkr) (Entered: 12/01/2015)
Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 12/2/2015. Please see attachment for the list of all pty's., at Settlement Conference. Settlement Cont., to 12/18/15 at 9:30 am before Magistrate Judge Chris M. McAliley. Start Time: 1:00PM. End Time:5:00pm (nf) Modified on 12/22/2015 (nf). (Entered: 12/04/2015)
Set/Reset Hearings Settlement Conference set for 12/18/2015 09:30 AM in Miami Division before Magistrate Judge Chris M. McAliley. (nf) (Entered: 12/04/2015)
NOTICE of Attorney Appearance by Erik Matthew Figlio on behalf of All Defendants. Attorney Erik Matthew Figlio added to party All Defendants(pty:d). (Figlio, Erik) (Entered: 12/03/2015)
NOTICE of Attorney Appearance by Kevin A Forsthoefel on behalf of All Defendants. Attorney Kevin A Forsthoefel added to party All Defendants(pty:d). (Forsthoefel, Kevin) (Entered: 12/03/2015)
PROTECTIVE ORDER. Signed by Magistrate Judge John J. O'Sullivan on 12/7/2015. (mkr) (Entered: 12/07/2015)
MOTION to Withdraw as Attorney for all Defendants by Robert D. W. Landon, III. by All Defendants. Responses due by 12/31/2015 (Attachments: # 1 Exhibit A)(Landon, Robert) (Entered: 12/14/2015)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 106 of 108

12/14/2015 12/15/2015 12/16/2015 12/16/2015 12/18/2015
01/04/2016 01/07/2016
01/08/2016
01/08/2016 01/08/2016 01/12/2016 01/12/2016 01/13/2016 01/14/2016

1369 1370 1371 1372 1373
1374 1375
1376
1377 1378 1379 1380 1381 1382

ORDER granting 1368 Motion to Withdraw as Attorney. Attorney Robert Donald Wike Landon, III terminated. Signed by Magistrate Judge John J. O'Sullivan on 12/14/2015. (mkr) (Entered: 12/14/2015)
APPEAL of Magistrate Judge 1363 Order on Motion for Discovery, to District Court (Licko, Carol) (Entered: 12/15/2015)
MOTION to Withdraw as Attorney /Remove from Service List by Gerry Giurato. by All Defendants. Responses due by 1/4/2016 (Attachments: # 1 Exhibit Proposed Order)(Giurato, Gerald) (Entered: 12/16/2015)
ORDER granting 1371 Motion to Withdraw as Attorney. Attorney Gerald Anthony Giurato terminated. Signed by Magistrate Judge John J. O'Sullivan on 12/16/2015. (mkr) (Entered: 12/16/2015)
Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 12/18/2015. Please see attachment for a list of all pty's., at the Settlement Conference. Start Time:9:30 am End Time:5:30 pm.Cont., of Settlement Conference. Next Sessions scheduled for Jan., 19, 20,21, 28 and 29. (nf) Modified on 12/22/2015 (nf). (Entered: 12/21/2015)
RESPONSE in Opposition re 1370 APPEAL of Magistrate Judge 1363 Order on Motion for Discovery, to District Court filed by All Plaintiffs. Replies due by 1/14/2016. (Singer, Stuart) (Entered: 01/04/2016)
TRANSCRIPT of Motion Hearing held on 12/1/15 before Magistrate Judge John J. O'Sullivan, 1−71 pages, Court Reporter: Bonnie J. Lewis, 305−523−5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/1/2016. Redacted Transcript Deadline set for 2/11/2016. Release of Transcript Restriction set for 4/11/2016. (Attachments: # 1 Designation Access Form)(hh) (Entered: 01/07/2016)
NOTICE of Hearing by ATTORNEY:. Attorney Erik Matthew Figlio added to party Elizabeth Dudek(pty:dft), Attorney Erik Matthew Figlio added to party Secretary of Florida Department of Children & Family Services(pty:dft), Attorney Erik Matthew Figlio added to party Secretary of the Florida Agency for Health Care Administration (AHCA)(pty:dft), Attorney Erik Matthew Figlio added to party Secretary of the Florida Department of Health(pty:dft). Discovery Hearing set for 1/12/2016 03:00 PM in Miami Division before Magistrate Judge John J. O'Sullivan. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Figlio, Erik) (Entered: 01/08/2016)
ORDER PERMITTING PARTY REPRESENTATIVES TO POSSESS, USE AND BRING INTO THE COURTHOUSE LAPTOP COMPUTERS, TABLETS, CELLULAR TELEPHONES, AND PDAS DURING MEDIATION. Signed by Magistrate Judge Chris M. McAliley on 1/6/2016. (lh) (Entered: 01/08/2016)
NOTICE of Hearing by ATTORNEY: Discovery Hearing set for 1/12/2016 03:00 PM in Miami Division before Magistrate Judge John J. O'Sullivan. Motion Hearing set for 1/12/2016 03:00 PM in Miami Division before Magistrate Judge John J. O'Sullivan. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Singer, Stuart) (Entered: 01/08/2016)
ORDER following informal discovery conference. Signed by Magistrate Judge John J. O'Sullivan on 1/12/2016. (mkr) (Entered: 01/12/2016)
Minute Entry for proceedings held before Magistrate Judge John J. O'Sullivan: Discovery Hearing held on 1/12/2016. Benjamin Geffen and Carl Goldfarb/plaintiffs; Erik Figlio, David Weiss, Stephanie Daniel, Leslie Street, Andrew Sheeran, Albert Bowden and Carol Licko/defendants. (Digital 15:00:13.) (cg1) (Entered: 01/13/2016)
NOTICE of Attorney Appearance by David J Weiss on behalf of All Defendants. Attorney David J Weiss added to party All Defendants(pty:d). (Weiss, David) (Entered: 01/13/2016)
REPLY to Response to Motion re 1370 APPEAL of Magistrate Judge 1363 Order on Motion for Discovery, to District Court filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Licko, Carol) (Entered: 01/14/2016)

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 107 of 108

01/19/2016 01/19/2016 01/20/2016 01/20/2016 01/21/2016 01/29/2016 01/29/2016 02/08/2016
02/09/2016
02/09/2016 02/10/2016 02/17/2016 02/18/2016

1383 1384 1385 1386 1387 1388
1389 1390 1391

Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 1/19/2016. Settlement Conference cont., to 1/20/16 at 9:00 am. Please see attachment for the list of pty's., at the Settlement Conference. Start time:9:30 am End time:4:30 pm. (nf) (Entered: 01/20/2016)
Set/Reset Hearings Settlement Conference set for 1/20/2016 09:00 AM in Miami Division before Magistrate Judge Chris M. McAliley. (nf) (Entered: 01/20/2016)
Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 1/20/2016. Please see attachment for the list of pty's., at Settlement Conference. Time start: 9:00 am. Time End:5:30 pm. Settlement Conf., cont., to 1/21/16 at 9:30 am before Magistate Judge Chris M. Mcaliley. (nf) (Entered: 01/21/2016)
Set/Reset Hearings Settlement Conference set for 1/21/2016 09:30 AM in Miami Division before Magistrate Judge Chris M. McAliley. (nf) (Entered: 01/21/2016)
Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 1/21/2016. Please see attachment for the list of pty's., at Settlement Conference. Settlement Conf., cont., to either 1/29/16 or 2/8/16, date to be confirmed next week. Start Time:9:30 am End Time:5:15 pm. (nf) (Entered: 01/22/2016)
Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 1/29/2016. Settlement Conference cont., to 2/8/16 at 10 am before Magistrate Judge Chris M. Mcaliley. Please See attachment for the list of parties at Settlement Conference. Time Start:10am Time End:3:30 am. (nf) (Entered: 02/01/2016)
Set/Reset Hearings Settlement Conference set for 2/8/2016 10:00 AM in Miami Division before Magistrate Judge Chris M. McAliley. (nf) (Entered: 02/01/2016)
Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 2/8/2016. Stuart Singer Esq., Carl Goldfarb Esq., appeared in person on behalf of the pltf. Alicia Adams Esq., appeared in person on behalf of FCAAP, Carl A. Licko Esq., appeared in person on behalf of defts. Stu Williams Esq., Rick Figlio Esq., and David Rogers Esq., on the telephonic on behalf of AHCA. Settlement Conference cont., to 2/9/16 at 10:00 am before the Honorable Magistrate Judge Chris M. McAliley. Time Start: 10:00 am, End Time: 4:30 pm. (nf) (Entered: 02/09/2016)
Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 2/9/2016. Stuart Singer Esq., appeared on behalf of the pltf's. Tommy Schechtonan President FCAAP Louis St. Petery FCAAP, Caro Licko Esq., on behalf of the deft's. Appeared by Phone: Rick Figilo Esq.,AHCA, Stuart Williams Esq.Genie AHCA, and David Rogers AHCA. Settlement Conf., cont., to 2/17/16 at 9:30 am before the Honorable Magistrate Judge Chris M. Mcaliley. Time start:10 am. Time End:7 pm. (nf) (Entered: 02/10/2016)
Set/Reset Hearings Settlement Conference set for 2/17/2016 09:30 AM in Miami Division before Magistrate Judge Chris M. Mcaliley. (nf) Modified on 2/10/2016 (nf). (Entered: 02/10/2016)
ORDER Granting 1322 Amended Motion to Seal Documents Being Submitted with Plaintiffs' Offer of Proof in Support of Declaratory and Injunctive Relief. Signed by Magistrate Judge John J. O'Sullivan on 2/9/2016. (nc) (Entered: 02/10/2016)
Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 2/17/2016. Stewart Singer Esq., Carol Litko Esq., Tommy Schechtman and Louis St. Petery appeared in person. Appeared by telephone Rick Figlio Esq., Beth Kidder Stuart Williams Esq., David Rogers. Time start :9:30 am Time End:5:00 pm. (nf) (Entered: 02/18/2016)
Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 2/18/2016. Appeared in person, Craig Smith Esq., Carol Licko Esq., for the deft's. Lauren Lewis Esq., Stuart Singer Esq., for the pltf's. Tommy Schechtman Fcaap. Appeared by telephone, Rick Figlio Esq., on behalf of deft. Stuart Williams Esq., David Rogers and Beth Kidder. Time Start:11am. End

Case: 1:05-cv-23037 As of: 01/06/2019 03:38 PM EST 108 of 108

02/19/2016
04/15/2016 04/15/2016 04/22/2016 04/29/2016
06/01/2016 06/13/2016 06/17/2016 06/22/2016 06/28/2016
06/28/2016

1392
1393 1394 1395 1396
1397 1398 1399 1400 1401
1402

Time:7pm. (nf) Modified on 2/19/2016 (nf). (Entered: 02/19/2016)
Paperless Minute Entry for proceedings held before Magistrate Judge Chris M. McAliley: Settlement Conference held on 2/19/2016. Appeared in person, Carlo Licko Esq., on behalf of deft. Lauren Lewis Esq., Carl Godfarb Esq., Stewart Singer Esq., on behalf of pltf. Appeared by phone, Rick Figlio Esq., Craig Smith Esq., Nicole Geary Esq., General Counsel, Celeste Philip, Deputy Secretary, Jennifer T. Schetter, CEO, Stuart Williams Esq., on behalf of deft. Time Start:9:30 am. Time End: 6:30 pm. (nf) (Entered: 02/22/2016)
Plaintiff's MOTION for Settlement & PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT by All Plaintiffs. Responses due by 5/2/2016 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Singer, Stuart) (Entered: 04/15/2016)
Order Cancelling Evidentiary Hearing. Signed by Magistrate Judge John J. O'Sullivan on 4/15/2016. (mkr) (Entered: 04/15/2016)
NOTICE by All Plaintiffs re 1393 Plaintiff's MOTION for Settlement & PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT (Attachments: # 1 Text of Proposed Order) (Singer, Stuart) (Entered: 04/22/2016)
ORDER Granting 1393 Plaintiffs' Motion for Preliminary Approval of Settlement Agreement. The Court set the hearing for Final Approval of the Proposed Settlement for 6/28/2016 at 10:00 AM in Courtroom 11−1 of the James Lawrence King Justice Building, 99 N.E. 4th Street, Miami, Florida 33132. Signed by Judge Adalberto Jordan on 4/28/2016. (mno) (Entered: 04/29/2016)
NOTICE by All Plaintiffs re 1393 Plaintiff's MOTION for Settlement & PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT Notice of Filing Errata Sheet (Singer, Stuart) (Entered: 06/01/2016)
NOTICE by Jeremy Harris re 1397 Notice (Other) (lrz) (Entered: 06/13/2016)
Final MOTION for Settlement Approval by All Plaintiffs. Responses due by 7/5/2016 (Attachments: # 1 Exhibit A − Settlement Agreement with Errata, # 2 Exhibit B − Declaration of Stuart Singer, # 3 Exhibit C − Declaration of Jennifer R. Clarke, # 4 Exhibit D − Declaration of Louis W. Bullock)(Singer, Stuart) (Entered: 06/17/2016)
NOTICE by All Plaintiffs re 1399 Final MOTION for Settlement Approval AND FILING OF PROPOSED ORDER (Attachments: # 1 Text of Proposed Order) (Singer, Stuart) (Entered: 06/22/2016)
PAPERLESS Minute Entry for proceedings held before Judge Adalberto Jordan: Motion Hearing held on 6/28/2016 re 1399 Final MOTION for Settlement Approval filed by All Plaintiffs. Ruling Reserved. All parties present. (Hearing time: 40 minutes) Court Reporter: Gizella Baan−Proulx, 305−523−5294 / Gizella_Baan−Proulx@flsd.uscourts.gov (tas) (Entered: 06/28/2016)
ORDER Approving 1399 Settlement, and staying proceedings. This case is administratively closed. Signed by Judge Adalberto Jordan on 6/28/2016. (mr1)

07/20/2016

1403

NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014−69. (Entered: 06/28/2016)
TRANSCRIPT of settlement conference held on 6−28−2016 before Judge Adalberto Jordan, 1−26 pages, Court Reporter: Gizella Baan−Proulx, 305−523−5294 / Gizella_Baan−Proulx@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/15/2016. Redacted Transcript Deadline set for 8/25/2016. Release of Transcript Restriction set for 10/21/2016. (gbx) (Entered: 07/20/2016)