Case 0:13-cv-61576-WPD Document 1 Entered on FLSD Docket 07/22/2013 Page 1 of 23
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. - - - -

UNITED STATES OF AMERICA, Plaintiff,
v. THE STATE OF FLORIDA,
Defendant.

COMPLAINT

INTRODUCTION 1. Nearly two hundred children with disabilities in Florida are segregated unnecessarily in nursing facilities. Many young adults, who entered nursing facilities as children and grew up in these institutions, remain unnecessarily segregated from their communities.1 As a result of limitations on community-based services and deficient assessment and transition planning processes, the Institutionalized Children have spent their formative years separated from their families and apart from their communities, often very far from home. 2. Unnecessary institutionalization denies children the full opportunity to develop and maintain bonds with family and friends; impairs their ability to interact with peers without disabilities; and prevents them from experiencing many of the social and recreational activities that contribute to child development. 3. Other children with significant medical needs who reside in the community and receive
1 These institutionalized children and young adults are collectively referred to hereinafter as the "Institutionalized Children."

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private duty nursing or personal care services have also been harmed by policies and practices limiting community-based services.2 Many have faced repeated service reductions and lengthy and unduly burdensome recertification processes that place them at serious risk of unnecessary institutionalization. 4. . The United States brings this action against the State to enforce the rights of children with significant medical needs to receive services in the most integrated setting appropriate to their needs. The State discriminates against children and young adults with disabilities by administering and funding its programs and services for these individuals in a manner that has resulted in their prolonged and unnecessary institutionalization in nursing facilities or placed them at risk of such institutionalization in violation of title II of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12131-12134. Such unjustified isolation and segregation of persons with disabilities violates the ADA's mandate that public entities "administer services programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d); see also 42 U.S.C. § 12132; Olmstead v. L.G., 527 U.S. 581, 597 (1999). 5. The United States Department of Justice (the "Department") provided notice to the State in September 2012 that, after a six-month investigation, it had found the State in violation oftitle II of the ADA based on the unjustified segregation of the Institutionalized Children and on having and enforcing policies and practices that place other children with disabilities at serious risk of institutionalization. While the State, since the issuance of the Department's Findings Letter, altered some policies that have contributed to the segregation of children with significant medical needs, violations ofthe ADA remain ongoing. Nearly two hundred children remain
2 These children are collectively referred to hereinafter as the "At-Risk Children." 2

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unnecessarily segregated in nursing facilities. The State's transition planning processes are deficient, and barriers to community placement persist. For several months, the United States has engaged in good faith negotiations with the State to resolve the violations identified in its Findings Letter. The United States has determined that compliance cannot be achieved through voluntary means.
JURISDICTION 6. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 1345, because it involves claims arising under federal law. See 42 U.S.C. § 12133. The Court may grant the relief sought in this action pursuant to 28 U.S.C. §§ 2201-02. 7. Venue is proper in this district pursuant to 28 U.S.C. § 1391 because a substantial part of the acts and omissions giving rise to this action occurred in the Southern District of Florida. 28 U.S.C. § 1391(b).
PARTIES 8. Plaintiff is the United States of America and brings this action to protect the rights of the Institutionalized and At-Risk Children, who are persons with disabilities under the ADA. 9; Defendant, the State of Florida, is a "public entity" within the meaning of the ADA, 42 U.S.C. § 12131(1), and is therefore subject to title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35. 10. The State administers and funds services for children with significant medical needs through various agencies and departments. 11. Florida's Agency for Health Care Administration ("AHCA") is responsible for administering the State's Medicaid Program under Title XIX of the Social Security Act. See Fla. Stat. §§ 20.42, 409.902. Pursuant to the Early and Periodic Screening, Diagnostic and Treatment
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("EPSDT") requirements ofthe Medicaid Act, AHCA is responsible for ensuring the availability of all medically necessary services coverable under a Medicaid State Plan for categorically Medicaid-eligible individuals under the age of twenty-one, including home health services such as private duty nursing or personal care services, therapies such as physical or occupational therapies, and other medically necessary services. See 42 U.S.C. §§ 1396a(a)(43), 1396d(a), 1396d(r)(5). 12. The Florida Agency for Persons with Disabilities ("APD") administers the State's Home and Community-Based Services ("HCBS") waiver programs3 for individuals with developmental disabilities. See Fla. Stat. § 20.197. 13. The State's Department of Health ("DOH") and AHCA administer a number of other HCBS waiver programs for individuals with traumatic brain injuries or other specific diagnoses. See generally Fla. Admin. Code R. 59G-13. 14. The State's Children's Medical Services Program ("FLCMS't within DOH, has lead responsibility for facilitating collaboration with AHCA and APD to arrange for long-term care services for children with certain special health care needs,4 including those with medically complex and/or medically fragile conditions. 5 See Fla. Stat. §§ 20.43, 391.016,391.021(2),
3 Section 1915(c) of the Medicaid Act pennits states to request waiver of certain requirements of the Medicaid Act to offer a variety Qf community-based services and supports to individuals with disabilities. See 42 U.S.C. § 1396n(c). 4 A child with "special health care needs" is any child "younger than 21 years of age who [has] chronic and serious physical, developmental, behavioral, or emotional conditions and who require[s] health care and related services of a type or amount beyond that which is generally required by children." Fla. Stat. § 391.021(2). 5 According to Florida law, "medically fragile" means a person who is "medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependant, or is dependent on a heightened level of medical supervision to sustain life,
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391.026. 15. Florida's Department of Children and Families ("DCF") administers the State's foster care system, including determining the placement of children with significant medical needs in the custody of the State. Fla. Stat. §§ 20.19, 39.811, 409.145. 16. DCF, in coordination with ARCA and FLCMS, also funds and administers Medical Foster Care, a statewide program to provide family-based care for medically complex and medically fragile children under the age of twenty-one who have been determined to be unable to safely receive care in their own homes.
STATUTORY AND REGULATORY BACKGROUND . 17. Congress enacted the ADA in 1990 "to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). It found that "historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." Id. § 12101(a)(2). 18. For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities: "[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." Id. § 12132.
and without such services is likely to expire without warning. Fla. Admin. Code R. 59G-l.010 (165). "'Medically complex' means that a person has chronic debilitating diseases or conditions of one (1) or more physiological or organ systems that generally make the person dependent upon twenty-four (24) hour-per-day medical, nursing, or health supervision or intervention." Fla. Admin. Code R. 59G-1.0I0(164).
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19. Title II of the ADA prohibits discrimination on the basis of disability by public entities. This encompasses the State of Florida, its agencies, and its system of services for children with disabilities, because a "public entity" includes any state or local government, as well as any department, agency, or other instrumentality of a state or local government, and it applies to all services, programs, and activities provided or made available by public entities, such as through contractual, licensing, or other arrangements. ld. § 12131(1); 28 C.F.R. § 35.130(b)(3)(i). 20. Congress directed the Attorney General to issue regulations implementing title II ofthe ADA. ld. § 12134. The title II regulations require public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). 21. The preamble discussion of the ADA's "integration regulation" explains that "the most integrated setting" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible ...." 28 C.F.R. § 35.130(d), App. B., at 673 (2011). 22. Regulations implementing title II ofthe ADA further prohibit public entities from utilizing "criteria or methods of administration" that have the effect of subjecting qualified individuals with disabilities to discrimination or "[t]hat have the purpo.se or effect of defeating or substantially impairing accomplishment ofthe objectives of the entity's program with respect to individuals with disabilities ...." 28 C.F. R. § 35. 130(b)(3). 23.· In Olmstead, the Supreme Court held that title II prohibits the u,njustified segregation of individuals with disabilities. 527 U.S. at 597. The Court explained that its holding "reflects.two evident judgments." ld. at 600. "First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." ld. "Second, confinement in an
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institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." ld. at 601. 24. Under Olmstead, public entities are required to provide community-based services when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. ld. at 607.
FACTUAL ALLEGATIONS A. Nearly Two Hundred Children with Disabilities Reside in Segregated Nursing
Facilities in Florida 25. Nearly two hundred Institutionalized Children reside in segregated, institutional nursing facilities. 26. The Institutionalized Children spend most of their days residing in shared rooms with other individuals with disabilities, participating in meals and activities with other individuals with disabilities, and having only limited interaction with individuals without disabilities. Many of the residents' families live in other areas of the State, leaving the children hundreds of miles from family and loved ones. 27. Educational services for many ofthese children consist of classes in an activity room within the nursing facility. Others are transported from their facilities to programs in their local school districts, but because they are institutionalized, they are unable to fully enjoy the benefits of education in the community. 28. The interiors of these facilities resemble hospitals-housing children in rooms with at least one, and sometimes up to three, other individuals. Some facilities house upwards of three
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hundred residents, including children, young adults, and elderly individuals. 29. Institutionalization does not provide the stimulation and variety of interactions that occur in the community-the kind of interactions that contribute to the full development of a child or young adult. Indeed, residents' choices regarding how they spend their day appear severely limited. A March 2013 report by ARCA, for example, found during an unannounced visit to one facility that several pediatric residents were not provided "meaningful, chronological age and developmentally appropriate structured activities," the lack of which "could result in extended .periods oftime without stimulation and learning opportunities." The report noted an instance in which a teenage resident had asked staff to assist him in leaving his room in his wheelchair. The staff escorted him to an activity area where he was placed next to three infants and toddlers listening to nursery rhymes. No staff member was observed providing meaningful activities to these residents. 30. A July 2012 report by ARCA after an unannounced site visit to another facility found seventeen children collected in one activity area with only one staff member overseeing their .care. A subsequent State report in December 2012 regarding the same facility found that the facility had failed to arrange for face-to-face physician visits (as required by State law) for a significant number of children for a period of several months, placing the children in ongoing and immediate jeopardy. Most of the facility's pediatric residents were subsequently transferred to another nursing facility in early 2013, even though they would have benefitted from movement to a more integrated, community-based setting.

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B. The State's Administration of Its Service System Has Caused Unnecessary Segregation of Children in Nursing Facilities and Placed Others At Risk of Unnecessary Institutionalization
31. Numerous policies, practices, and actions by the State have led to the unnecessary segregation of the Institutionalized Children and placed many other children with significant medical needs at risk of unnecessary institutionalization. Over the course of the .last decade, the State has limited the availability of many community-based services for children with significant medical needs. It has done so by: (1) enacting policies and engaging in practices that have resulted in the denial or reduction of medically necessary services; (2) failing to provide sufficient reimbursement rates for in-home nursing services; (3) failing to ensure sufficient capacity in its HCBS waiver programs; and (4) failing to ensure there is sufficient capacity in non-institutional, out-of-home settings that are able to serve children with significant medical needs. It has also failed to effectively administer programs designed to prevent inappropriate nursing facility admissions, and it has not meaningfully offered Institutionalized Children opportunities to return to the community.
i. Denial or Reduction ofMedically Necessary Services 32. The State has in recent years unduly restricted the availability of many in-home services for children with significant medical needs through the application of a state regulation that requires Medicaid services to "[b]e furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider." See Fla. Admin. Code R. 59G-1.01 0(166). Until recently, the State's service manuals defining private duty nursing instructed that in-home nursing services would be "reduced over time" as parents (or other members of the household, including siblings and grandparents) learned to perfonn skilled medical interventions on their. children.
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33. The State used this requirement to deny services that were prescribed by children's treating physicians and to compel parents and other family members (including siblings and grandparents) to provide care that is medically necessary and which should have been provided through services covered by the State. 34. Additionally, from 2010 until 2013, the State required children with significant medical needs to enroll in Prescribed Pediatric Extended Care ("PPEC") services (a congregate day program) instead of private duty nursing, even though the children were qualified for in-home nursing. The State offered private duty nursing as a supplemental service only. 35. A number of children were placed or remain in nursing facilities as a result of the State's limits on in-home services, or failure to provide such services. Families who have attempted to care for children with significant medical needs at home have not been provided in-home services that would have enabled them to safely care for their children at home. As a result, they have had no meaningful choice but to place their child in a nursing facility to receive necessary care. For example, one mother placed her teenage child in a nursing facility after she had requested private duty nursing services at home but was told that that the care would decrease over time and would eventually stop. Another family admitted their child to a facility after the State reduced the in-home health care it provided the child by fifty percent, from four hours per day to two. The child's family determined they would be unable to safely provide care to make up for the reduction in supports and felt they had no choice but to admit their child to a nursing facility. The mother of another child with significant medical needs attempted to arrange for inhome nursing services through the State's Medicaid program but was offered only three hours per day of care by the State. Because she was unable to safely provide care to supplement the hours offered by the State, she had no choice but to place the child in a nursing facility. Each of
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these children remains in a nursing facility. 36. Families of Institutionalized Children have been told that if they bring their children· home they will face gradual reductions in hours of in-home services, or that their children will not have access to the same types of therapies or other services that their children receive in nursing facilities. 37. Other children with significant medical needs have been placed at serious risk of unnecessary institutionalization as a result of these practices.. For example, one child with significant medical needs currently lives at home with in-home supports provide by the State. In 2012, the State reduced the child's in-home health care by fifty percent to four hours per day. Since the reduction in services, the child's physical and emotional conditions have deteriorated. Her parents do not want to place her in a nursing facility, but fear that they may need to in order to obtain necessary services. 38. As frequently as every six months, families of children whose prescribed services have been denied must proceed through lengthy and unduly burdensome reconsideration and appeals processes to ensure their children.receive the care they need. When services have been reduced without appropriate consideration ofthe child's needs, such processes unnecessarily impinge on caregivers' ability go to work, care for theirchildren, and conduct other family business, such that their children are placed at serious risk of institutionalization. 39. Even after their families have appealed such reductions or denials, children do not always receive a restoration of hours in the amount that is necessary to safely keep them in the community. As a result of prolonged reductions in services, some children's physical and emotional conditions have deteriorated.
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ii. Stagnant Reimbursement Rates for Home Health Services 40. Medicaid home health reimbursement rates, including rates paid for private duty nursing, remain at the same level as those paid by the State in 1987.. 41. In 2007, ARCA reported to the legislature that, due to insufficient reimbursement rates, providers of home health services had indicated they would be unable to continue providing services to Medicaid beneficiaries. Another ARCA report that year stated that "many Medicaid beneficiaries state they are unable to access state plan [home health] services due to low rates." 42. In 2008, a similar request for increased funding noted that ARCA "has documented growing numbers of home health agency providers who have stated ... they will be incapable of continuing to provide services to Medicaid beneficiaries" due to insufficient reimbursement rates. 43. The State reduced funding for private duty nursing services by approximately six million dollars in 2010. 44. Insufficient reimbursement rates have resulted in shortages of nursing services in certain parts of the State and, upon information and belief, have contributed to the unnecessary institutionalization of children with significant medical needs. 45. While it has reduced or limited the availability of community-based services, the State has increased funding for nursing facility care for children with significant medical needs. 46. Since January 2004, the qaily supplemental rate paid to facilities serving medically fragile children has increased by more than 28%. Using State and federal dollars, ARCA pays an enhanced rate of up to approximately $550 per day to nursing facilities for each ofthe Institutionalized Children.
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47. The State's reductions and limitations to in-home care coincide with a rise in the number of children placed in nursing facilities. A 2004 State report, for example, indicated that approximately 136 nursing facility beds were designated to serve children. In September 2012, there were more than two hundred children in nursing facilities, and a substantial number of adults who entered nursing facilities as children and remain institutionalized. Indeed, in 2011, at the request of one nursing facility serving children, the State removed a regulatory ceiling that had previously limited the number of children served at a nursing facility to sixty.
iii. Insufficient Capacity in HCRS Waiver Programs 48. Most of the Institutionalized Children and At-Risk Children are eligible for services in Florida's HCBS waiver programs, including the waiver for persons with developmental disabilities. Services available through these programs include environmental accessibility adaptations to homes or apartments (i.e., home modifications), respite care, and funding to support individuals who live in community-based settings other than their family home. Most of these programs have lengthy waiting lists. Since July 2005, for example, the number of individuals on the waiti~g list for services under the State's HCBS waiver program for individuals with developmental disabilities has grown from 14,629 to nearly 22,000 in September 2012, and more than half ofthe individuals on the list have waited for five years or more. Only individuals deemed to be in "crisis" are given priority for admission to the waiver from the waiting list, but even these individuals are not always able to enroll in the waiver program due to lack of funding. 49. Children who would benefit from receipt of waiver services have entered nursing facilities instead, due to the lengthy waiting list for services. For example, the family of one child with significant medical needs moved to Florida from another state in2010. Although the
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child received community-based services through an HCBS waiver program in the family's former state, the child was unable to enroll in Florida's waiver program because of the significant waiting list for services. The child's family spent thousands of dollars attempting to care for the child in the community; but in 2011 they felt they had no choice but to place the child in a nursing facility to access necessary services. Another child has been on the waiting list for the State's HCBS waiver program since at least 2006, when the child was admitted to a nursing facility. In May 2013, the child's family received a notice that they remained on the waiting list and that there were no funds to enable the child to enroll in the waiver program. 50. In 2013, for the first time in eight years, the State provided additional funding for this waiver program. Although the State has provided additional funding for the 2013-14 fiscal year, according to State reports, the additional funding will only permit fewer than five percent of people on the waiting list to enroll in the program. 51. Despite the growth in demand for services, the number of individuals actually enrolled in these programs has decreased by several thousand in the last several years. 52. In addition to facing lengthy waiting lists, families of children who would benefit from services available under the State's HCBS waiver programs have not been sufficiently informed of their availability. 53. Children have remained in nursing facilities for years while waiting to be enrolled in waiver programs. As recently as May 2013, families ofInstitutionalized Children have received notices that they remain on a waiting list for services through the State's HCBS waiver program for individuals with developmental disabilities, and that there is insufficient funding to enroll them in the waiver. Some of these children have been waiting for five years or more.
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iv. Lack ofSufficient Community-Based Alternatives 54. The State has also failed to offer out-of-home, non-institutional settings inwhich to provide care for children with significant medical needs. 55. There are currently very few providers of care to children with significant medical needs in out-of-home non-institutional settings. 56. The State's Medical Foster Care program offers care in a family-based setting. The purpose ofthe Medical Foster Care program is "[t]o enhance the quality oflife for medically complex and medically fragile foster children, allowing them to develop to their fullest potential ... [and to] provide a family-based, individualized, therapeutic milieu oflicensed medical foster homes to reduce the high cost of long-term institutionalization of medically complex and medically fragile foster children." See DOH, DCF, & AHCA, Medical Foster Care Statewide Operational Plan, at 1-1 (2009). Medical Foster Care is not available, however, unless a parent or guardian has lost custody of their child to DCF. 57. In the past, as many as 20% of children in nursing facilities were in the State's custody. Currently, approximately 10% ofthe Institutionalized Children are in the State's custody and are eligible for Medical Foster Care services. They have nonetheless been institutionalized for years in nursing facilities because oftheState's administration of its Medical Foster Care program. For example, the State placed one child with significant medical needs in a nursing facility in 1997 when the child was one year old. The child remained in a facility until the age of sixteen, when in the fall of2012 the State undertook to place the child in the community. Although the child would have benefitted from placement in the community, the child remained institutionalized for more than a decade and a half.
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v. Deficient Admission and Transition Planning Processes 58. For individuals under the age of twenty-one, admission to a nursing facility and Medicaid reimbursement for services provided in a nursing facility requires the recommendation of a Children's Multidisciplinary Assessment Team ("CMAT"). See Fla. Admin. Code R. 59A4.1295(3)(b ). 59. Collectively, representatives from AHCA, APD, DOH, FLCMS, and DCF participate in the CMAT, which convenes for each eligible child under the age of twenty-one identified as medically fragile or medically complex and needing certain long-term care services. 60. The federal Nursing Home Reform Act requires states to develop and implement a preadmission screening program, known as "PASRR," for all Medicaid-certified nursing facilities. 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100 to 483.138. State regulations task the CMAT with administering a first level screening (known as a "PASRR Level I") prior to the admission of each child to a nursing facility. See Fla. Admin. Code R. 59A-4.1295 (3). 61. For individuals identified through a PASRR Level I as possibly having an intellectual disability or a related condition, APD is required to conduct a second level PASRR review (a "PASRR Level II"). PASRR Level II is supposed to determine whether "the individual's total needs are such that his or her needs can be met in an appropriate community setting" and "if [nursind facility] services are recommended, ... the specific services which are required to meet the evaluated individual's needs ...." See 42 C.F.R. §§ 483.128(i)(3), 483.132(a)(1). The PASRR Level II Review is supposed to occur before the child is admitted to a nursing facility, and within seven days of receiving a referral from a CMAT. 62. The State has failed to take appropriate measures to ensure that children who are entering nursing facilities are considered for alternative placements in a timely manner.
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63. Moreover, a substantial number of the Institutionalized Children were admitted to nursing facilities without having been fully screened through the State's PASRR program. Some Institutionalized Children did not receive a full PASRR screening until years after they had entered the facility, including a number of children in the custody ofthe State. For example, one child was admitted to a nursing facility in early 2010, was not referred to a PASSR Level II until late 2011, and no Level II Review occurred until early 2013. Another child was admitted to a nursing facility in 2006 and, despite receiving a Level I PASSR screen that indicated a history of intellectual disability, he did not receive a Level II Review until 2013. A child in the custody of the State was placed in a nursing facility in 2006 shortly before the child's fourth birthday. A Level I PASRR assessment indicated the possibility of an intellectual disability at the time of admission, but a Level II review was not performed until six years later. Similarly, another child in the State's custody was admitted to a nursing facility in 2005 at the age of six. A Level I PASRR Assessment indicated the possibility of an intellectual disability, but a Level II Review was not performed until 2012. The State admitted another child in its custody to a nursing facility in 2007, and although a Level I PASSR screen indicated the possibility of an intellectual disability, it does not appear that a Level II review was ever performed. 64. State documents indicate that to the extent the State initiated Level II PASRR reviews for Institutionalized Children following the United States' issuance of its Findings Letter, many of these reviews found that the Institutionalized Children could be served in their family home or other community-based settings. Rather than effectively connecting children to these services, however, a substantial number ofthese assessments indicate that the State did no more than leave a packet of infonnation regarding community-based services at the nursing facility, or suggest enrolling the child in a waiting list for services.
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vi. Failure to Offer Meaningful Opportunities to Move to the Community 65. Many children who have been inappropriately admitted to a nursing facility have remained there for years because the State has not presented meaningful opportunities for them to move to the community. 66. After a child has been placed in a nursing facility, his or her continued stay is contingent upon the State's recommendation and approval through the CMAT process. The CMAT must evaluate the need for continued placement in the facility after a child has been in the facility for six months. Thereafter, the State requires the CMAT to conduct a follow-up meeting annually to re-assess the child's status. More frequent meetings are required if there is a significant change in the child's clinical status or if a meeting is requested. 67. Many of the Institutionalized Children remain in facilities for very long periods of time, even when it is apparent that their medical conditions would permit return to the community with appropriate supports. The continued stay of most of these children is the direct result of the State's failure to actively identify more integrated service options for them. 68. Because the State fails to ensure the Institutionalized Children are considered for placement in the community, many have spent much or all of their childhoods in a facility and remain there into adulthood. One young man, for example, remains in a nursing facility at the age of twenty even though a recent State assessment determined that placement in a nursing facility "is not the most appropriate placement" and that other commtmity-based services could effectively meet his needs. Some young adults have been transferred to different wards of the facilities after their twenty-first birthdays and housed among elderly residents. Others have been transferred to other facilities, sometimes in a different part of the State. 69. Without meaningful transition planning and effective access to cOlmnunity-based
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alternatives to institutional care, it is likely that many of the Institutionalized Children will remain in nursing facilities for most or all of their lives.
C. The Institutionalized Children, and Those In the Community At Serious Risk of Institutionalization, are Qualified to Receive' Services in More Integrated Settings and They and Their Families Would Not Oppose Placement in Such Settings
70. The Institutionalized Children could be served in more integrated settings, and their families, if presented a meaningful opportunity to do so, would choose for them to grow up at home or in other settings that foster their full development and that do not segregate them from the community. 71. The State has shown that it is possible. to serve children with significant medical needs in the community through services that already exist within its system. The Institutionalized Children's needs are generally no different than those of children and young adults receiving services in more integrated community-based settings. With reasonable modifications, these services permit the Institutionalized Children to be reunited with their families or live in other community-based settings.
D. Providing Services in Integrated Settings Can be Accommodated Through Reasonable Modifications to the State's Existing Services
72. The actions needed to remedy the State's ADA violations described in this Complaint could be achieved through reasonable modifications of the State's service system. 73. The types of services that already exist in the State's service system would be able, with reasonable modifications, to meet the needs of the Institutionalized and At-Risk Children. These services include private duty nursing; personal care services; home health services; respite services; crisis services; home and environmental modifications; specialized medical equipment and supplies; intensive care coordination; transportation; nutrition counseling; dietary
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supplements; family training; behavioral/psychiatric services; habilitation services; and occupational, physical, speech and respiratory therapies. 74. The State is independently obligated to provide many ofthese services to Medicaideligible children pursuant to the EPSDT requirements ofthe Medicaid Act. 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4), 1396d(r)(1)-(5). The State is also obligated under the PASRR requirements ofthe Medicaid Act to ensure individuals with disabilities are adequately screened before entry to a nursing facility to determine whether and what community-based services would be appropriate, and to provide specialized services appropriate to meet their needs. See 42 U.S.C.§ 1396r(e)(7); 42 C.F.R. §§ 483.100-38. 75. Supporting children with medical needs in the community is a cost-effective alternative to institutionalization. The State has admitted that providing nursing services to children with significant medical needs in the community is less costly than doing so in institutional settings.
UNITED STATES DEPARTMENT OF JUSTICE INVESTIGATION 76. In December 2011 the Department formally opened an investigation regarding the alleged unnecessary segregation of the Institutionalized Children and State policies and practices allegedly causing other children with disabilities to be at risk of nursing facility placement. 77. In a September 2012 Findings Letter, the Department reported that it had found the State in violation of the ADA because it planned, administered, and funded its system of services for children with disabilities in a manner that results in the unnecessary institutionalization of hundreds of children in nursing facilities. The Findings Letter identified numerous remedial measures the State could take to comply with federal law, and further advised the State that, in the event a resolution could not be reached voluntarily, the United States Attorney General may initiate a lawsuit pursuant to the ADA.
20

Case 0:13-cv-61576-WPD Document 1 Entered on FLSD Docket 07/22/2013 Page 21 of 23
78. The United States has since November 2012 met multiple times with State officials in a good faith effort to achieve resolution of the violations identified in the Findings Letter. The Department has determined that compliance with the ADA cannot be secured by voluntary means.
VIOLATION OF TITLE II OF THE ADA, 42 U.S.C. §§ 12131 et seq. 79. The allegations of Paragraphs 1 through 78 ofthis Complaint are hereby realleged and incorporated by reference. 80. Defendant, the State of Florida, is a public entity subject to title II ofthe ADA, 42 U.S.C. § 12131(1). 81. The Institutionalized and At-Risk Children are persons with disabilities covered by title II of the ADA, and they are qualified to participate in Defendant's programs, services and activities, including home and community-based services. 42 U.S.C. §§ 12102,12131(2). 82. Defendant violates the ADA by administering its service system for children with disabilities in a manner that fails to ensure the Institutionalized and At-Risk Children receive services in the most integrated setting appropriate to their needs and by failing to reasonably modify policies, practices and procedures to avoid such discrimination and unnecessary segregation. 42 U.S.C. § 12132. 83. Defendant's actions constitute discrimination in violation oftitle II ofthe ADA, 42 U.S.C. § 12132, and its implementing regulations at 28 C.F.R. Part 35 84. Providing services to the Institutionalized and At-Risk Children in more integrated settings can be accomplished with reasonable modifications to the Defendant's programs and sefV1ces. 85. The State has acted with deliberate indifference to the injuries suffered by the
21

Case 0:13-cv-61576-WPD Document 1 Entered on FLSD Docket 07/22/2013 Page 22 of 23
Institutionalized and At-Risk Children. 86. All conditions precedent to the filing of this Complaint have occurred or been performed.
PRAYER FOR RELIEF WHEREFORE, the United States of America prays that the Court: (A) Grant judgment in favor of the United States on its Complaint and declare that the
Defendant has violated title II ofthe ADA, 42 U.S.C. § 12131 et seq. (B) Enjoin Defendant from: 1. failing to provide appropriate, integrated community-based services and supports to
the Institutionalized and At-Risk Children consistent with their individual needs; 2. discriminating against the Institutionalized and At-Risk Children by failing to
provide services and supports in the most integrated setting appropriate to their needs; 3. failing or refusing to take such steps as may be necessary to restore, as nearly as practicable, the Institutionalized Children to the position they would have been in . but for the discriminatory conduct; and 4. failing or refusing to take such steps as may be necessary to prevent the recurrence of any discriminatory conduct in the future and to eliminate the effects of Defendant's unlawful conduct; (C) Issue a declaratory judgment declaring that Defendant has violated title II ofthe ADA by failing to make reasonable modifications to its programs for the Institutionalized and At-Risk Children to enable them to obtain services and supports they require to live in the most integrated setting appropriate to their needs;
22

Case 0:13-cv-61576-WPD Document 1 Entered on FLSD Docket 07/22/2013 Page 23 of 23

(D) Award compensatory damages in an appropdate amount to the Institutionalized

Children for injuries suffered as Ii result of the defendant's failure to ensure

compliance with the requiremetlts oftitle II of the ADA, 42 U.S.C. §§ 12131 et seq.

(E) Order such other appropriate relief as the interests ofjustice may require.

Dated: July 22, 2013

RespectfuUy submitted,

WlFREDO A. FBRRER

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---~-- --_.--.- .-·----Bnited-States-Attorney- ----------------------:Assistant-Attorney-General-----------------.-.------------ !

Southern District of Florida

EVEL.HlLL Deputy Assistant Attorney General

ALISON BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division

REBECCA B. BOND

Chief

SHEILA M. FORAN

Special Legal Counsel

ANNE S. RAISH

Deputy Chief

~x---'Yl.---. ~~ ~~.-1~) /~,t~( =~~I..~........~~--~--

~

RONICA H L -J

TRAVIS W.

AND, Bar ID A5501768

1\ssistant United States·

BETH A. ESPOSITO, Bar ID A5501719

Fla. BarNo. 644791

H. JUSTIN PARK, BarID A5501860

99 N.E. 4th Street

JOY LEVINWELAN, Bar ID A5501767

Miami, FL 33132

Trial Attorneys

Telephone: (305) 961~9327

Disability Rights Section

Facsimile: (305) 530-7139

Civil Rights Division

Veronica.Harrell-James@usdoj.gov

U.S. Department of Justice

950 Pennsylvania Avenue. N.W." NYA

Washington, D.C. 20530

Telephone: (202) 307-0663

Facsimile: (202) 307~1197

Travis.England@Usdoj.gov

Counsel for PlaintiffUnited States ofAmerica

23

 
 The Honorable Pamela Jo Bondi Attorney General for the State of Florida Florida Department of Legal Affairs PL-01 The Capitol Tallahassee, FL 32399-1050
Re: United States’ Investigation of the State of Florida’s Service System for Children with Disabilities Who Have Medically Complex Conditions, D.J. No. 204-18-212
Dear Attorney General Bondi:
We write to report the findings of the Civil Rights Division’s investigation of the State of Florida (the “State”) with respect to its system for delivering services and supports to children with disabilities, including those who have medically complex or medically fragile conditions.1 During our investigation, we assessed the State’s compliance with Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134 (the “ADA”), as interpreted by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999), requiring public entities to ensure that individuals with disabilities receive services in the most integrated setting appropriate to their needs.
Our review of the State’s system reveals that the State fails to meet its obligations under Title II of the ADA and its implementing regulations, 28 C.F.R. Part 35, by unnecessarily institutionalizing hundreds of children with disabilities in nursing facilities. Many children entering nursing facilities in the State are unnecessarily separated from their families and communities for years. With adequate services and supports, these children could live at home with their families or in other more integrated community settings. The State’s policies and practices also place numerous other children who have medically complex or medically fragile conditions at risk of placement in nursing facilities and other institutional settings.
1 For the purposes of this letter, the United States adopts Florida’s definition of “medically complex,” found in Title 59G of the Florida Administrative Code: “‘Medically complex’ means that a person has chronic debilitating diseases or conditions of one (1) or more physiological or organ systems that generally make the person dependent upon twentyfour (24) hour-per-day medical, nursing, or health supervision or intervention.” Fla. Admin. Code R. 59G-1.010(164). Medically fragile individuals are by definition medically complex. See Fla. Admin. Code R. 59G-1.010(165).

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Consistent with the legal requirements set forth in the ADA, 42 U.S.C. § 12133, this letter serves to provide notice of the State’s failure to comply with the ADA and of the minimum steps the State needs to take to meet its obligations under the law.
I. SUMMARY OF FINDINGS AND CONCLUSIONS
We conclude that the State fails to provide services to children who reside in nursing facilities in the most integrated setting appropriate to their needs, and that the State’s policies and practices put many other children with medically complex or medically fragile conditions at risk of placement in such facilities.
Hundreds of children are currently segregated in nursing facilities throughout Florida. They are growing up apart from their families in hospital-like settings, among elderly nursing facility residents and other individuals with disabilities. They live segregated lives—having few opportunities to interact with children and young adults without disabilities or to experience many of the social, educational and recreational activities that are critical to child development.
As part of our investigation, we visited the six large nursing facilities that house the vast majority of children who reside in such facilities in Florida. At each facility, we met with numerous children and received a substantial amount of data. From our review of this data, we found a wide range of diagnoses among the children residing in each facility. Yet we consistently identified children who are qualified to receive services in the community, and who would benefit from moving home with their families or to other community settings if appropriate supports were provided to them. We also spoke with many families who want to have their children living at home but report their frustration with State policies that inhibit their ability to do so.
Indeed, the State has planned, structured, and administered a system of care that has led to the unnecessary segregation and isolation of children, often for many years, in nursing facilities. For example, despite State and federal policies that require the State to evaluate children entering nursing facilities for appropriate placement in community-based settings, we found few examples of concrete efforts by the State to identify services that would enable children entering these facilities to return home to their families. As a result, many children continue to be separated from their families simply because the State has failed to identify or connect them to sufficient communitybased services to meet their needs.
The State has also implemented policies and practices that impair access to medically necessary services and supports that would enable children to transition home or to other community-based settings. For example, we learned of many instances of the State reducing or limiting the availability of in-home services that had been prescribed as medically necessary by a child’s physician, without reasonably considering the child’s actual needs. And in the last several years, the State has made substantial cuts to programs designed to support children and adults with developmental disabilities in the community, leading to a years-long waiting list to access services. While cutting community-based services, the State has simultaneously implemented policies that have expanded facility-based care, including payment of an enhanced per diem rate to nursing facilities serving children who have medically fragile conditions. These policies put children with medically complex or medically fragile conditions who currently live in the community at risk of

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placement in nursing facilities and other segregated institutional environments to receive necessary care.
Many family members of children in the facilities we visited have expressed their desire to bring their children home or see them move to a community-based setting. “I want my baby home,” said the mother of one three-year-old with Down syndrome and other conditions that require intensive assistance with respiratory and nutritional needs. Her daughter has been in a nursing facility since infancy. The mother expressed frustration that, in light of the services authorized by the State, she is only able to care for her child at home on certain weekends. Another mother traveled two hours round trip every day to visit her son, who resided in the children’s wing of a nursing facility for more than three years. Her son has a number of medical complications as a result of a near-drowning incident, and utilizes a ventilator for assistance with breathing. Although her son’s physician prescribed home health services to meet his needs at home, for years the State denied the amount of prescribed hours. Now that he receives the prescribed services, he lives at home with his family.2
Providing appropriate services and supports to these children in more integrated settings can be reasonably accommodated. The State’s service system already makes available in-home care services to Medicaid-eligible children, as required by the Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) provisions of the Medicaid Act, including home health services, private duty nursing, personal care services, and certain day treatment services.3 In addition, the State currently provides other home and community-based services to individuals through its Medicaid program. Rather than ensuring the availability of these services when medically necessary and appropriate, the State’s system of services overly relies on institutional care in nursing facilities.
The State’s reliance on nursing facilities to serve these children violates their civil rights and denies them the full opportunity to develop bonds with family and friends and partake in educational,4 social, and recreational activities in the community. By implementing the remedial measures described below, the State will correct identified ADA violations and other unlawful deficiencies and fulfill its commitment to individuals with disabilities.
2 We learned during our visit that the State recently agreed to provide the prescribed amount of home health services to the family, but this decision came only after the family had filed a lawsuit against the state. See T.H. v. Dudek, No. 1260460 (S.D. Fla., filed Mar. 13, 2012).
3 The EPSDT mandate requires the State to provide services to Medicaid-eligible children under the age of twenty-one for all medically necessary treatment services, even if the State has not otherwise elected to provide such coverage to other populations. See 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4); 42 U.S.C. §§ 1396d(r)(1)-(5). The scope of the treatment to be provided is defined by 42 U.S.C. § 1396d(r) and includes “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in [42 U.S.C. § 1396d(a)] . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are [otherwise] covered under the state plan . . . .” 42 U.S.C. §§ 1396d(r)(1)-(5); see also 42 C.F.R. § 440.130.
4 The Individuals with Disabilities Education Act requires that states receiving federal financial assistance must provide “a free appropriate public education” in the least restrictive environment to all children with disabilities residing in the State. 20 U.S.C. §§ 1412(a)(1), (5). As discussed below, we observed that many children with disabilities residing in Florida nursing facilities receive only limited educational services in settings that are not the least restrictive environment appropriate to their needs. See infra pp. 15.

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II. INVESTIGATION
On December 20, 2011, we sent your office a letter providing notice that the Department of Justice (the “Department”) had opened an investigation of the State with respect to the services it provides to children with disabilities under the age of twenty-one, including children who have medically fragile or medically complex conditions. We stated that the focus of our investigation was whether the State’s policies and practices regarding the services it provides these individuals violate federal law, including Title II of the ADA, 42 U.S.C. §12132, and its implementing regulations, as interpreted by the United States Supreme Court’s holding in Olmstead v. L.C., 527 U.S. 581 (1999). We further explained that the investigation was opened in response to information we received alleging that the State relies inappropriately and unnecessarily on nursing facilities, including those serving elderly individuals, as settings in which to provide services to children. In the same letter, we requested certain documents and other information related to our investigation. To date, and despite a number of requests, counsel from your office has declined to produce any information to the Department voluntarily.5
We have conducted a thorough investigation of the State’s system of services for children with disabilities—and particularly those who have developmental disabilities or who have medically complex or medically fragile conditions. We retained the services of an expert consultant with extensive experience arranging community-based services for children and youth in this population. With our expert, we visited a number of large nursing facilities that collectively serve more than two hundred children in Miami, Fort Lauderdale, Orlando, Tampa, and St. Petersburg.
We toured each facility and met extensively with administrators and staff. Children, ranging in age from infancy to early adulthood, are housed in rooms located along long hallways resembling hospital corridors. Children at some facilities wear identification bands at all times and are restricted to certain areas of the facility. For many, daily life occurs entirely within the facility. Upon arriving at one facility, we observed a significant number of elderly residents sitting in the facility’s entry hall and portico; children are housed on the second floor, and many only leave that floor for transportation to medical appointments or the occasional outing in the community. At another facility, the entryway to a primary outdoor space served as a smoking area for the adult and elderly residents. Nearby, an indoor central common area contained a number of children’s toys and a sitting area for elderly residents. At each facility, we observed children engaging in various activities scheduled by facility staff, watching television in a common area, or sitting unattended in their beds.
5 In late January 2012, counsel for the State’s Agency for Health Care Administration (“AHCA”) contacted the Department and requested additional time to gather the requested data. We agreed to provide additional time, and said that we would speak again in two weeks to inquire as to the status of our request. On February 6, 2012, counsel for AHCA informed us that the matter had been referred to the State Attorney General’s office for coordination among the several State agencies having custody of data responsive to the Department’s request. On the same day, we contacted counsel from your office, who informed us that a meeting among these agencies had been scheduled for later in the week, and that he would have further information regarding the State’s response on February 13, 2012. Subsequently, counsel from your office communicated that the State would not provide any information responsive to the Department’s request without a subpoena. At his request, we wrote counsel on March 23, 2012 to explain the Department’s investigative authority under the ADA and to reiterate the Department’s request that the State cooperate with this investigation. We requested a response by April 6, 2012, but to date we have not received a response.

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During our visits we also collected certain information related to the children residing in these facilities. Based on this data and other data routinely submitted to the federal government by these facilities, we have reviewed a substantial amount of information regarding these children, including each child’s length of stay in the facility. We and our consultant have also reviewed hundreds of pages of records, including a large number of care plans written by the facilities and periodic assessments conducted by the State.
We also spoke with family members of many of these children. They shared their stories with us, and many expressed their desire to raise their children in an environment that fosters involvement and participation in the community, close to the child’s family and loved ones. They also shared their frustration with the State’s administration of services and expressed the general perception that the State does not arrange for services in a manner that would allow their children to remain safely at home.
Families who care for children with medically complex conditions in their homes expressed similar concerns. Although their children currently access community services that allow them to remain at home, the families have faced recent efforts by the State to reduce the availability of these services. For example, a number of families told us of their tireless efforts to ensure their children receive the amount of in-home nursing hours that their children’s physicians have prescribed. Repeatedly, however, the State has denied or reduced these medically necessary services. These families told us that the stress added by frequent reductions has impinged on their ability to care for their children.
During our examination of the range of services available within the State’s system, we met or held telephone conferences with numerous providers of community-based services for children with disabilities, including those that serve children who have medically complex or medically fragile conditions. We also interviewed stakeholders within the system and a number of advocates for families of children and youth with disabilities. Many within these groups articulated frustrations similar to those of the families with whom we spoke. Specifically, they informed us that the State’s administration of its service system is driven by considerations other than the health, safety, wellbeing, and development of the children being served, and as a result, families that are able, with appropriate supports, to care for their children at home may be stretched to the point of admitting their child to a nursing facility or other institutional setting.
III. BACKGROUND
The State provides services to children with developmental disabilities and those who have medically complex or medically fragile conditions through a number of State agencies, including the Department of Health (“DOH”), the Agency for Health Care Administration (“AHCA”), the Department of Children and Families (“DCF”), and the Agency for Persons with Disabilities (“APD”). Within DOH, the Children’s Medical Services (“CMS”) program has lead responsibility for facilitating collaboration among these agencies to arrange for long-term care services for children with certain special health care needs, including medically complex and/or medically fragile conditions.6 Collectively, representatives from each agency participate in a Children’s
6 See Fla. Stat. § 20.43, § 391.016, § 391.026; See also DOH, CMS, DCF & AHCA, CMAT Statewide Operational Plan 1 (2010), available at http://www.cms-kids.com/home/resources/documents/cmat_plan.pdf.

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Multidisciplinary Assessment Team (“CMAT”), which convenes for each eligible child under the age of twenty-one identified as medically fragile or medically complex and needing certain longterm care services.7 For children who receive services from several different agencies, CMAT staff is directed to work collaboratively with care coordinators from each agency to ensure that the child’s needs are met.8
A. Placement of Florida Children in Nursing Facilities
During our investigation we learned that through the CMAT process, the State has overseen the placement of hundreds of children into nursing facilities.9 For a majority of the children referred to these facilities, the State pays an enhanced rate of over $500 per day per child, which is more than double what the facility receives from the State to serve elderly individuals and other adults.10
Through our visits to multiple facilities, reviews of resident records, and conversations with family members, we found that a significant number of children are referred to a CMAT while hospitalized and placed in nursing facilities directly from the hospital.11 For example, one ten-yearold child sustained a near-drowning accident at the age of six and was discharged from the hospital to a nursing facility, where she has remained ever since. Her mother lives hundreds of miles away from the facility, but tries to visit her daughter as often as she can. She told us, “if I had the resources to take care of my [child], you can be … sure [my child] would be living with me right now.” Another five-year-old child who has quadriplegia and respiratory complications resulting from a car accident has lived in a facility for three years since the accident. His mother wants to bring him home but reports that she has been told that the waiting time for community-based services is five to ten years. She told us, “I cry all the time thinking of [my child]….There should be something out there to help children come home.”
Other children were placed in a nursing facility from home after their families were unable to obtain necessary services and supports through the State Medicaid program. One eighteen-yearold who was born with cerebral palsy moved with her mother to Florida to be closer to other family members in 2007. Upon arriving in Florida, the family discovered that the State would not provide community-based services that the child had previously relied upon to live in the community. As a result, her mother had to place her in a nursing facility to meet her medical needs. The grandmother of another nineteen-year-old young man diagnosed with traumatic brain injury told us that her
7 See CMAT Statewide Operational Plan, at 1-2.
8 See id. at 27.
9 See Fla. Admin. Code R. 59A-4.1295(3) (requiring recommendation from CMAT prior to a child’s admission to a nursing facility).
10 See AHCA Website, Nursing Home Supplemental Payments, http://ahca.myflorida.com/medicaid/cost_reim/nhsp.shtml (last visited July 11, 2012); AHCA Website, Nursing Home Rates, http://ahca.myflorida.com/medicaid/cost_reim/nh_rates.shtml (last visited July 11, 2012).
11 We also learned that some children in the custody of the State had been admitted to a facility through DCF.

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family had no choice but to place their child in a nursing facility because of the State’s waiting list for community-based services. “If we took him home, we wouldn’t have gotten any help,” she told us. The young man still resides at the nursing facility, but is working towards obtaining a degree from a local high school.
Prior to each child’s admission to a nursing facility, the State is responsible for assessing whether placement in a community-based setting would be appropriate. The Pre-Admission Screening and Resident Review (“PASRR”) 12 is a two-step evaluation process, required by federal law, that is designed among other things to screen individuals entering nursing facilities for intellectual disabilities or related conditions (a “Level I” screening), determine whether the individual needs nursing facility services, assess whether placement in a community setting would be an appropriate alternative, and identify specialized services required to meet the individual’s needs (a “Level II” assessment).13 If, after a Level I PASRR screening, it is suspected that a child has an intellectual disability or a related condition, the CMAT is tasked with referring the child to APD for a Level II assessment.14 According to guidance from the State, the child may be admitted to the facility only after APD has completed a Level II assessment of the child.15
The PASRR assessment is supposed to determine whether “the individual’s total needs are such that his or her needs can be met in an appropriate community setting” and “identifies the specific services which are required to meet the evaluated individual’s needs . . . .”16 The Medicaid Act further requires that an individual must be promptly re-evaluated to determine whether her needs can be met in the community when there has been a significant change in physical or mental condition.17 On paper, State policies are similar—the CMAT must evaluate the need for continued facility placement six months after a child has been placed in a nursing facility.18 Thereafter, the CMAT must conduct a follow-up meeting at least annually to re-assess the child’s status.19 A more
12 The federal Nursing Home Reform Act requires that states develop and implement a Preadmission Screening and Resident Review (“PASRR”) program for all Medicaid-certified nursing facilities. 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100 to 483.138.
13 See 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100 to 483.138.
14 See CMAT Statewide Operational Plan, at 67-68.
15 See id. at 68.
16 42 C.F.R. §§ 483.128(i)(3), 483.132(a)(1). According to the PASRR Technical Assistance Center, established by contract with the Centers for Medicare and Medicaid Services, “The Level II [assessment] must . . . determine whether the individual’s needs would be better met by living in the community whether or not those services are currently available. Even if [nursing facility] placement is ultimately the most practical option, the Level II should identify the services the individual would need to live in the community, even if those services do not exist or are inaccessible . . . .” PASRR Technical Assistance Center, PASRR in Plain English, http://www.pasrrassist.org/resources/pasrr-plain-english (updated May 10, 2011).
17 42 U.S.C. § 1396r(e)(7)(B)(iii).
18 See CMAT Statewide Operational Plan at 70.
19 See id.

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frequent meeting is required if there is a significant change in the child’s clinical status or a meeting is requested.20
Despite these pre-admission and ongoing review requirements, in our review of data we noted a large number of children who had indications of an intellectual or developmental disability but for whom PASRR evaluations had apparently not been performed, either initially or after there had been an apparent change in the child’s condition.21 We learned that CMAT meetings are often done remotely, and that a CMS representative visits the facility only periodically. From our review, we observed that for many children the State has little, if any, active involvement in identifying more integrated service options for the child. Instead, the State largely relies on social workers employed by the nursing facilities to make recommendations for alternative services in the community.22 Yet a number of the social workers we spoke with showed a lack of familiarity with many of the State’s home and community-based services that would allow children to live at home with their families.
When a child in a nursing facility turns eighteen years of age, the CMAT is to begin transition planning for the transfer of responsibility to the local Department of Elder Affairs, which gains responsibility for the individual upon his or her twenty-first birthday.23 At a number of facilities, we learned that after their twenty-first birthday, some young adults are simply transferred down the hall to a different ward of the facility and housed among elderly residents. We also received information that individuals have been discharged from one nursing facility to another at their twenty-first birthday.
Many children and young adults who have been placed in these facilities remain there for a very long time, even when it is apparent that their medical conditions would permit return to the community with appropriate supports. Among the facilities we visited, the average length of stay for children is over three years. More than fifty children had resided in a facility for over five years. And a number of children had been in a facility for a decade or longer, including some who entered a facility as toddlers or young children and who remain in the facility as adolescents.
20 Id. For children who receive additional Medicaid services that are not included in the nursing facility’s per diem rate, a CMS nurse care coordinator must visit the child once every six months to “review the child’s plan of care and progress notes, collaborate with the nursing facility care coordinator to ensure appropriateness of care and maintain contact with the family.” Id. at 71.
21 Further, children who were admitted to a nursing facility before the age of three have allegedly not been screened through the PASRR process because of a State policy that children under three may not, by definition, be diagnosed with mental illness or an intellectual or developmental disability. See CMAT Statewide Operational Plan at 68; Children’s Medical Services, Weekly Update, March 7, 2008, available at www.cmskids.com/providers/early_steps/memos/memo_03_07-08.pdf.
22 See generally, CMAT Statewide Operational Plan at 72; see also Fla. Admin. Code R. 59A-4.1295(5)(c) (delegating certain responsibilities to facility staff “to facilitate a smooth transition from the nursing facility to the home or other placement”).
23 See CMAT Statewide Operational Plan, at 71-72.

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B. Home-Based and Community-Based Services
The children in nursing facilities in Florida have a range of diagnoses, but with appropriate services and supports, these children could have their care needs met at home or in other community-based settings. It is apparent, however, that families of many of these children have been told without sufficient basis that their children are not capable of living at home, or have been given very little information, if any, about alternative services that could help support their child in the community.
The specific services that any child will need to address their care needs must be prescribed by the child’s treating professionals after an individual assessment, and targeted to meet the child’s specific needs. Though their care needs vary, most children who have medically complex conditions are totally dependent on assistance from others to perform activities of daily living, such as eating, bathing, or dressing, and require periodic monitoring and regular therapies. These children will generally require services in the form of a personal care attendant for at least some portion of each day to assist with these needs. In addition, many children with medically complex conditions require frequent skilled nursing services for a set number of hours per day to assist with nutritional and respiratory needs, including care associated with a feeding tube or a ventilator. Other children have high variability in their care needs, including regulation of body temperature or assistance with respiratory technology that requires continuous observation and intervention and which may require ongoing exercise of medical judgment.
The State offers a number of home-based services capable of serving children just like those who reside in nursing facilities in Florida. The State also offers placement in homelike settings other than the child’s family home when the child’s family is unable to care for the child at home.24 If authorized by the State, these services permit children and young adults to remain at home with their families or in other community-based settings. We found, however, that the State administers these services in a manner that restricts their availability, resulting in limited or no possibility for children in nursing facilities to transition to these services, and placing other children in the community at risk of entry to a nursing facility because they are unable to access the communitybased services that they need.
1. Medicaid State Plan Services
Some community-based services are available through the Medicaid State Plan, including home health services such as private duty nursing and personal care services, and medically
24 Medical Foster Care (“MFC”), for example, is a service coordinated between AHCA, CMS, and DCF to provide family-based care for medically complex children under the age of twenty-one who have been determined unable to safely receive care in their own homes. See DOH, DCF, & AHCA, MFC Statewide Operational Plan, at 1-1 (2009), available at http://www.cms-kids.com/home/resources/documents/mfc_state.pdf. The purpose of the MFC program is “[t]o enhance the quality of life for medically complex and medically fragile foster children, allowing them to develop to their fullest potential . . . [and to] provide a family-based, individualized, therapeutic milieu of licensed medical foster homes to reduce the high cost of long-term institutionalization of medically complex and medically fragile foster children.” Id. To be eligible for the MFC Program, an individual must be in the custody of DCF through a court order or a voluntary placement agreement. See Fla. Admin. Code R. 65C-28.007 (establishing procedures for voluntary outof-home care).

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necessary therapies.25 In recent years, however, the State has implemented restrictions on the availability of these services. The State has implemented utilization review processes, for example, that authorize reviewers employed by a State contractor to reduce or alter the in-home nursing services prescribed by a child’s physician.26 These processes are designed to achieve cost savings and to avoid unnecessary or duplicative services. Families, providers, and advocates informed us, however, that these processes are being administered in a way that may lead to increasing the State’s costs for the care of children with disabilities—as reduced availability of community-based care results in more frequent hospitalizations and emergency room visits, and long-term institutionalization in nursing facilities.
Additionally, during our investigation we learned of instances of the State’s utilization review process being applied irrationally or without appropriate consideration of the child’s needs, resulting in service authorizations below the level required to safely meet a child’s care needs. For example, one ten-year-old girl with traumatic brain injury who lives at home with her mother and two siblings has had her requests for prescribed in-home care services denied, and her services thereby reduced, during at least four reviews since 2010. These reductions have occurred without any change in her medical condition. Her mother fears that without sufficient medically necessary in-home care services their family will no longer be able to care for their daughter at home, and they will be forced to place the child in a nursing facility.27 She informed us that she will continue to push for the services her daughter needs saying, “I love her and I want her to be home with her family . . . I don’t think it’s fair to put her in an institution.”
Every six months, the families of children with prescribed in-home nursing services must recertify that those services are necessary. We learned of many instances of the State repeatedly denying or reducing prescribed hours of in-home nursing at each six-month recertification period, even when there had been no change in the parent’s availability or ability to provide care, or the child’s medical condition. The parents of one eight-year-old child with a medically fragile condition, for example, both work full time jobs, but want to make sure that their child has safe and appropriate medical care while at home. The child’s mother informed us that the services prescribed by her child’s physician as medically necessary have been denied or reduced thirteen times since 2006, even though her child’s condition has not changed. She told us, “[i]t’s a fight and a battle all the time… [b]y the time one [recertification period] finishes it’s time to start all over again.” The mother of another eighteen-year-old with cerebral palsy told us that she was “so overwhelmed” with the existing care she provided to her son that she was unable to even attend a hearing contesting further service reductions.
25 See generally, AHCA, Home Health Services Coverage and Limitations Handbook, available at http://portal.flmmis.com/FLPublic/Portals/0/StaticContent/Public/HANDBOOKS/CL_08_080701_Home_Health_ver1. 2.pdf.
26 Fla. Stat. § 409.905(4)(b); see also AHCA Contract No. MED128; EQ Health Solutions, Florida Division Website: http://fl.eqhs.org/ (last visited July 2, 2012).
27 See also discussion infra, pp. 18-20.

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2. Home and Community-Based Waiver Programs
In addition to in-home nursing and other services available through the Medicaid State Plan, other services are available only to individuals who are enrolled in one of the State’s size-limited waiver programs for individuals with developmental disabilities. Since July 2005, the number of individuals on the waiting list for services under these programs has grown from 14,629 to more than 21,000 in March 2012, and more than half of the individuals on the list have waited for five years or more.28 Pursuant to current state policies, a child in a nursing facility would not qualify for prioritization on this waiting list.29 Children with medically complex conditions who currently live at home and who may qualify for these waiver services face the barrier of a years-long waiting list for services.
Despite the growth of demand for waiver services, the number of individuals actually enrolled in these programs has decreased by several thousand in the last several years.30 The State’s payments to providers of services under these programs have also shrunk. In 2011, for example, APD announced that payment rates to all providers of community-based services under the State’s waiver programs for individuals with developmental disabilities would be reduced by 15% to respond to a legislative decrease in funding.31
28 See Dykes v. Dudek, No. 11-00116 (N.D. Fla.), Exhibit I to Pls.’ Mot. for Sum. J. (Defs.’ Resp. to Interrog.), ECF No. 125-9, at 4; APD Quarterly Report, May 2012, at 10.
29 See Fla. Admin. Code R. 65G-11.002 (3) (incorporating the crisis criteria specified in Fla. Admin. Code R. 65G1.047); Ex. I to Pls.’ Statement of Facts, Defs’ Answer to Interrog., Dykes v. Dudek, No. 11-00116 (N.D. Fla. May 2, 2012), ECF No. 125-9 (“since 2006 enrollment has been limited to individuals who are in crisis.”). Pursuant to a budgetary proviso established by the State legislature, AHCA is permitted to transfer funding from nursing facilities to enroll additional individuals onto a number of the State’s waivers serving persons with physical disabilities. But this program would not permit children in nursing facilities with developmental disabilities to access waiver services sufficient to meet their needs, because the services provided in these waivers are not targeted to individuals with developmental disabilities. See Ch. 2011-69, Laws of Florida, Specific Appropriation 208. In addition, by definition the Aged and Disabled Adult Waiver is open only to individuals aged 18 and over, rendering it out of reach for a large number of younger individuals currently in nursing facilities, regardless of their disability. See AHCA, Alternatives to Nursing Homes, http://apps.ahca.myflorida.com/nhcguide/alternatives.shtml#AgedandDisabledAdultWaiverProgram (last visited July 13, 2012). A similar budgetary proviso permits transfer of funds for individuals residing in Intermediate Care Facilities, but not nursing facilities, to waiver programs for individuals with developmental disabilities. See Laws of Florida 2011-69, Specific Appropriation 206; Laws of Florida 2012-118, Specific Appropriation 222.
30 See APD Quarterly Report, Nov. 2007, at 2; APD Quarterly Report, May 2012, at 2. The State is also transitioning all individuals currently on these waivers to a single new waiver that we learned may result in a reduction in the amount of waiver-funded services available to an individual. See ,Fla. Stat. § 393.0662; APD Quarterly Report, May 2012, at 2; APD Cost Containment Plan FY 2011-12, at C-2, available at: http://apdcares.org/publications/legislative/docs/apdcost-containment-plan-2011-2012.pdf (noting that implementing new waiver may lead to service decreases).
31See APD, Plan Pursuant to Section 393.0661(7), F.S. For Adjustments Necessary to Comply With the Availability of Monies Provided to the Agency for Persons with Disabilities in the General Appropriations Act, available at http://apd.myflorida.com/news/news/2011/emergency-plan.pdf.

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IV. FINDINGS
We conclude that the State fails to provide services to children who reside in nursing facilities in the most integrated setting appropriate to their needs as required by the ADA. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(d). Instead, the State administers its system of services in a manner that unnecessarily segregates hundreds of children in nursing facilities and fails to make available sufficient services in integrated, community-based settings. See 28 C.F.R. §§ 35.130(b), (d). As a result, children who could be served in the community with the types of services and supports that exist in the State’s service system are needlessly institutionalized, often for very long periods of time, rather than having the opportunity to live at home with their families or in other community-based settings. The State’s policies also place many other children who have medically complex or medically fragile conditions at risk of placement in nursing facilities or other segregated settings. The State must take action to remedy these violations.
A. The ADA Requires States to Serve Individuals with Disabilities in the Most Integrated Setting Appropriate to their Needs.
The segregation and isolation of children in nursing facilities and the failure to ensure that these individuals have opportunities to move to more integrated settings violates their civil rights. Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with disabilities by public entities:32
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
Id. § 12132.33
One form of discrimination prohibited by Title II of the ADA is a violation of the “integration mandate.” The integration mandate arises out of Congress’s explicit findings in the
32 A “public entity” includes any State or local government, as well as any department, agency, or other instrumentality of a State or local government. Title II applies to all services, programs, and activities provided or made available by public entities, including through contractual, licensing, or other arrangements. 42 U.S.C. § 12131(1); 28 C.F.R. § 35.102(a); 28 C.F.R. § 35.130(b).
33 Nearly 20 years before enacting the ADA, Congress recognized that society historically had discriminated against people with disabilities by unnecessarily segregating them from their families and communities, and in response, enacted Section 504 of the Rehabilitation Act of 1973, which forbids any program receiving federal aid from discriminating against an individual by reason of a handicap. See 28 C.F.R. § 41.51(d) (“[r]ecipients [of federal financial assistance] shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons”). Our findings and conclusions in this letter also implicate the State’s compliance with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.

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ADA, the Attorney General’s regulations implementing Title II,34 and the Supreme Court’s decision in Olmstead, 527 U.S. at 587. In Olmstead, the Supreme Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607.
In so holding, the Court explained that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600. It also recognized the harm caused by unnecessary institutionalization: “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.
The ADA’s protections are not limited to those individuals who are currently institutionalized. The integration mandate also prohibits public entities from pursuing policies that place individuals at risk of unnecessary institutionalization. See M.R. v. Dreyfus, 663 F.3d 1100, 1116-17 (9th Cir. 2011); see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (noting that “nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements”).
Our investigation has produced substantial evidence that the State fails to provide services to hundreds of children currently in nursing facilities in the most integrated setting appropriate to their needs, and places many others at risk of institutionalization, in violation of its obligations under the ADA and Olmstead.
B. Nursing Facilities Are Segregated, Institutional Settings
The nursing facilities in which hundreds of Florida’s children and young adults currently reside are segregated, institutional settings. Cf., e.g., Day v. District of Columbia, No. 10-cv-2250ESH, 2012 WL 456491, at *22 (D.D.C. 2012) (denying motion to dismiss ADA claim regarding institutionalization in nursing facilities); Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Conn., 706 F. Supp. 2d 266 (D. Conn. 2010) (same); Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) (same); Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571904, at *3 (N.D. Fla. Oct. 14, 2008) (certifying class of individuals who were institutionalized in nursing homes); Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 4442597, at *10 (N.D. Ill. Sept. 29, 2008) (same); Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999) (denying motion to dismiss ADA claim regarding institutionalization in nursing facilities). As the Supreme Court has recognized, undue segregation causes harm to individuals with disabilities who are unnecessarily institutionalized. See Olmstead, 527 U.S. at 601.
34 The regulations provide that “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). See also 28 C.F.R. § 41.51(d). The preamble discussion of the “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible[.]” 28 C.F.R. § 35.130(d), App. B. at 673 (2011).

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The children and young adults in the facilities we visited live segregated lives. They spend most of their days residing in shared rooms with other individuals with disabilities, participating in meals and activities with other individuals with disabilities, and having only limited interaction with individuals without disabilities. Many of the residents’ families live in other areas of the State, leaving the children hundreds of miles from family and loved ones. Among the six facilities we visited, five serve elderly individuals as well as children and young adults. The interiors of these facilities resemble hospitals—housing children in rooms with at least one, and sometimes up to three, other individuals. Some facilities house upwards of three hundred residents, including children, young adults, and elderly individuals. At one large nursing facility housing nearly 250 children and adults, we observed children and young adults with disabilities sitting in the hallways. They waited for staff to come by to usher them to activity sessions while they watched the activities of other residents and staff. Most sat quietly and occasionally reached out to make contact with a passing staff member. Other children remained in their beds.
Institutionalization does not provide the stimulation and variety of interactions that occur in the community—the kind of interactions that contribute to the full development of a child or young adult. Indeed, residents’ choices regarding how they spend their day appear severely limited. Activities offered at a number of the facilities are scheduled by staff and often involve young children, young adults, and elderly individuals intermixing, regardless of the activity being offered. Many of the residents we observed were left in their beds or mobility devices for long periods at a time with limited access to the type of interactions that promote physical, psychological and social development.
The educational opportunities available to children and young adults who are placed in these facilities are also quite limited. A large number of children participate in public school districts’ hospital/homebound programs, which serve children who are deemed ineligible to participate in an integrated classroom environment for medical or other reasons. For these students, the facilities offer a room or area in the facility where children are given classroom instruction in small groups or one-to-one for short periods of time. From our review, it appeared that many children were offered only forty-five minutes of educational activities per day, several days per week.35
A substantial number of children and young adults in these facilities have families who visit often and who offer undeniable levels of care and support. Many families, however, live far from the institutions and for that reason it is difficult to visit regularly. Other children and young adults are in the custody of the State and do not have active familial involvement. For these individuals, their interaction with other individuals without disabilities appears limited to infrequent community outings or in-facility visits from community volunteers.
C. Children and Young Adults Currently Residing in Florida Nursing Facilities Could Be Served In More Integrated Settings
States have an obligation to provide services in community-based settings where such placement is appropriate for, and not opposed by, persons with disabilities. Olmstead, 527 U.S. at 607. The State already offers community-based programs that serve children just like those residing
35 The Individuals with Disabilities Education Act requires states to provide “a free appropriate public education” in the least restrictive environment to all children with disabilities. See 20 U.S.C. §§ 1412(a)(1), (5).

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in nursing facilities, but which permit children to live in their family home or in an integrated, community-based setting. During our investigation we met with or had telephone conversations with a number of providers of these services. In contrast with children residing in nursing facilities, children receiving home or community-based services generally have their own specially modified room, enjoy the presence of their families throughout the day, and are able to engage in more frequent activities in their neighborhoods and communities.
Most, if not all, of the children and young adults currently receiving long-term care services in nursing facilities in Florida could be served in more integrated settings. After meeting and observing a large number of residents and reviewing a substantial number of records, our expert has found that children and young adults currently receiving services in the facilities we visited are not meaningfully different than children and young adults who currently live in more integrated community-based settings. In fact, a number of the children and young adults at certain facilities periodically leave the facility to attend school on a daily basis, or are taken home by their families on weekends. For these individuals particularly, we discerned no apparent reason for their continued stay in the facility.
Indeed, almost all of the nursing facility administrators we met with said that if the resources were in place to support families taking their children home, they could send a substantial number of children home on a permanent basis. One administrator noted that physical support in the form of home health services is “critical” to meet needs at home for many families. The administrator stated that “most of our families would take their kids home if [the families] had some support.” The administrator added that most parents who work “don’t have the kind of support” to care for a medically complex child without assistance.
Within Florida there are providers of community-based services for children and young adults with diagnoses and needs similar to those of many individuals currently receiving services in skilled nursing facilities. Some providers serve children and young adults in the community who have successfully transitioned from nursing facilities. When we met with a number of these providers, they said that with appropriate services and supports most, if not all, children who are receiving services in skilled nursing facilities could be transitioned home or to another communitybased setting.
Additionally, there are numerous children in other states, with needs similar to those of the children institutionalized in Florida nursing homes, who are being served successfully in community-based settings through those states’ Medicaid waiver programs for persons who are medically fragile or technologically dependent. With the supports provided through these waivers and other Medicaid services, hundreds, and in some states thousands, of families are able to stay united and children and young adults are able to participate in educational, social, and recreational activities in their own communities. The children in Florida’s nursing facilities and their families are no different.
D. The State Violates the ADA by Failing to Serve Qualified Individuals with Disabilities in the Most Integrated Setting Appropriate to their Needs
Under the ADA, public entities are required to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28

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C.F.R. § 35.130(d). A state violates the ADA where it administers its programs or services in a manner that unnecessarily segregates persons with disabilities in privately owned facilities. 28 C.F.R. § 35.130(b) (prohibiting public entities from using contractual or other arrangements, or utilizing criteria or methods of administration, that have the effect of subjecting qualified individuals with disabilities to discrimination); see also Disability Advocates v. Paterson, 598 F. Supp. 2d 289, 317 (E.D.N.Y. 2009) (“It is immaterial [for purposes of Title II liability] that DAI’s constituents are receiving mental health services in privately operated facilities.”), overruled on other grounds by Disability Advocates, Inc. v. Cuomo, 675 F.3d 149 (2d Cir. 2012); Rolland v. Celluci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999) (holding that it is immaterial for purposes of Title II ADA claim that plaintiffs lived in private nursing facilities, rather than state-operated facilities).
In addition to those currently harmed by unnecessary institutionalization, many other children in the State are at risk of needless segregation in violation of the ADA. Courts have determined that the ADA’s integration mandate not only applies to individuals who are currently institutionalized, but also to individuals who are at risk of unnecessary institutionalization because of a public entity’s administration of its services. See M.R. v. Dreyfus, 663 F.3d 1100, 1114 (9th Cir. 2011) (finding risk of institutionalization when state reduced hours of in-home personal care services); Radaszewski v. Maram, 383 F.3d 599, 612 (7th Cir. 2004) (ADA applied to individual at risk of entering a nursing home); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003) (same); Pitts v. Greenstein, 2011 WL 2193398, at *2 (M.D. La. 2011) (“The ADA’s and Section 504’s ‘integration mandate’ prohibits a state from increasing an individual’s risk of institutionalization if reasonable accommodations are available.”); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1170 (N.D. Cal. 2009) (stating that the risk of institutionalization is sufficient for a violation of the ADA); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (same). State actions that place individuals with disabilities at serious risk of institutionalization violate the ADA unless a community placement cannot be reasonably accommodated.
The State has enacted legislation declaring that:
the greatest priority shall be given to the development and implementation of community-based services that will en able individuals with developm ental disabilities to achieve their greatest potential for independent and productive living, enable them to live in their own homes or in residences located in their own communities and perm it them to be diverted or rem oved from unnecessary institutional placements.
Fla. Stat. § 393.062; see also Fla. Stat. § 409.145 (policy preventing separation of children from their families and promoting reunification of families who have had children placed in foster homes or institutions). Despite enacting policies prioritizing community-based services and unification of families, the State administers its system of care in a manner that results in the unnecessary and prolonged institutionalization of children with disabilities in nursing facilities, separating them from their families for years.
1. The State Fails to Assess Children Entering Nursing Facilities for Community Placement and Does Not Adequately Arrange for Transition to Community Settings
As noted above, State and federal policies require assessment of individuals with disabilities

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prior to their admission to a nursing facility to determine whether community-based services would be appropriate. Our investigation has revealed evidence that the State fails to take appropriate measures to ensure that children who have been placed in a nursing facility are considered for alternative placements in a timely manner, both before their admission to the facility and during ongoing assessments and reviews.
From our conversations with nursing facility staff, review of residents’ records, and interviews of stakeholders, we observed a number of pathways through which many children and young adults enter a nursing facility: placement in a facility for recovery after a hospital stay; placement after the State, through DCF, has taken custody of the child; and placement by the child’s family after the family has exhausted its resources or has been unable to access necessary services from other sources, including other State-funded Medicaid services. Regardless of the individual’s pathway into the facility, their entrance to the facility, and continued stay, is contingent upon the State’s recommendation and approval through the CMAT process.36
State and federal requirements for pre-admission assessment as to the appropriateness of community-based services do not appear to be consistently followed. As a result, most of the children and young adults who have been placed in facilities remain there for a very long time, even when it is apparent that their medical conditions would permit return to the community with appropriate supports. Our review of the State’s assessments of current residents reveals that a substantial number of children and young adults receive little or no realistic discharge or transition planning from the State. We found a number of instances where the CMAT held its annual review despite being unable to reach the parent or guardian. Individual plans of care, written by the facilities, often contained a discharge planning component that presented few, if any, concrete goals designed to identify the steps necessary to successful discharge. Even more troubling, a number of children and young adults in these facilities are currently in the custody of the State through DCF even though, as noted above, the State has community-based services available to children in the foster care system in the form of medical foster care. We encountered little evidence of efforts on the part of the State to attempt to develop a plan for these children to transition to more integrated settings.
One nursing facility staff member told us, “once we get the children, very few of them go home.” Another reported that while some families of children entering his facility have the impression that their child can be returned home, “then they stay.” Data provided by the facilities we visited confirm these observations. As noted above, the average length of stay for children in these facilities is over three years, and some children have literally “grown up” in the facility.
When individuals in institutions do not oppose, and especially when they affirmatively request, community placement, it is the State’s responsibility to develop and implement prompt and effective steps to transition them to and serve them in integrated community settings. See Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 322-23 (D. Conn. 2008).
36 See CMAT Statewide Operational Plan, at 70.

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2. The State Unduly Limits the Availability of Community-Based Services
The State also places undue limits on the availability of community-based resources that could prevent entry into nursing facilities and allow children to remain in or return to the community. The State has implemented measures that have expanded nursing facility capacity, including an enhanced per diem rate for medically fragile children, while simultaneously limiting or reducing the availability of community-based care. Families who care for children with medically complex conditions in their homes reported frustrations with policies regarding home and community-based services, and, in particular, with the constant threat of service reductions.
For example, as described above, the State has established utilization review processes for certain in-home services. These processes require families of children receiving in-home services to recertify every six months that the services are medically necessary. However, on numerous occasions, the State has reduced or denied the availability of prescribed in-home services at these recertification periods, even where the child’s condition and their families’ ability to provide care had not changed. These reductions result in shifting care to the child’s family, even though they may be unavailable or unable to safely provide the care the child needs. These families must then appeal the reductions in services, resulting in lengthy reconsideration and appeals processes that impinge on their ability go to work, care for their children, and conduct other business of the family. A number of families who have been subject to repeated service reductions recently joined a lawsuit against State officials challenging these practices.37 They allege that State policies and practices have led to repeated denials of medically necessary services, in violation of both the ADA and the Medicaid Act resulting in their children having to enter nursing facilities to receive necessary services.38
The United States Court of Appeals for the Eleventh Circuit has recognized that such practices may violate the EPSDT requirements of the Medicaid Act. See Moore ex. rel. Moore v. Reese, 637 F.3d 1220, 1259 (11th Cir. 2011) (“When a state Medicaid agency has exceeded the bounds of its authority by adopting an unreasonable definition of medical necessity or by failing to ensure that a required service is ‘sufficient in amount, duration, and scope to reasonably achieve its purpose,’ aggrieved Medicaid recipients have recourse in the courts.”) On remand, a district court recently found the unreasonable application of policies aimed at shifting in-home skilled care to a child’s caregivers violates the Medicaid Act’s requirements that states must ensure the availability of medically necessary services for Medicaid-eligible children. See Moore ex rel. Moore v. Cook, 2012 WL 1380220, at *10 (N.D. Ga. Apr. 20, 2012) (“I am convinced that the real reason for reducing [plaintiff’s] nursing care hours was an unreasonable application of the [defendant’s] policy to wean nursing care and shift more of the burden to her caregiver”). And in another case, the court found that such practices also violate the ADA. See Royal ex rel. Royal v. Moore, 2012 WL 2326115, at *9 (N.D. Ga. Jun. 19, 2012) (holding State violated the ADA and the Medicaid Act where “the real reason [for the State’s reduction in in-home nursing] was not due to an individualized determination of medical necessity, but due to [defendant’s] policy and practice . . . to wean nursing care and to shift more of the burden of skilled care to [plaintiff’s] parent caregiver over time”).
37 See A.R. v. Dudek, No. 12-60460 (S.D. Fla., filed Mar. 13, 2012).
38 See id.

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Service limitations and reductions in the rates paid to providers of community-based care have also placed strains on families and providers. Families told us they are afraid that, over time, such measures will result in the admission of their children to nursing facilities or other institutional settings. On more than one occasion, we learned of families with one or more children or young adults with disabilities who have had to choose which of their children would live at home and which would live in an institution. Providers of community-based services and other stakeholders expressed similar concerns regarding the State’s administration of these programs and the health and safety of recipients. One provider of community-based services informed us of at least two individuals who had previously been in their care with waiver-funded services and who were placed in a nursing facility because the State denied continued eligibility for the specific waiver-funded service.
These concerns also appear to be rooted in the State’s policies and practices, which in recent years have led to reduced availability of home and community-based waiver programs. In the last several years, the number of individuals served through these programs has decreased, resulting in a growing list of children waiting years for services and having access to a waiver slot only once they have literally deteriorated to the point of “crisis.” The State has also systematically reduced or rejected funding for community-based services—in 2011, for example, the State rejected nearly $40 Million in federal dollars designated specifically to support individuals transitioning from nursing facilities and other institutional settings to the community.39
Although the State has added limitations or imposed restrictions on the availability of community-based care for children with disabilities, it has consistently raised the enhanced per diem rates offered to facilities housing children who have medically fragile conditions.40 It has also ensured that nursing facilities seeking to serve more children can do so—in 2011, at the request of one nursing facility serving children, the State removed a regulatory limit that had previously limited the number of children served at a nursing facility to sixty.41 In the wake of these changes,
39 In early 2011, Florida applied for and received a $37.5 million grant from the federal Centers for Medicare and Medicaid Services through the Money Follows the Person initiative, which funds support for individuals transitioning to the community from nursing facilities and other institutions. See generally, CMS Website, Money Follows the Person, http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Long-Term-Services-andSupport/Balancing/Money-Follows-the-Person.html (last visited July 11, 2012). In June 2011 the Florida Joint Legislative Budget Commission voted to prevent the release of these funds. See Florida Joint Legislative Budget Commission, June 24 Meeting Packet, at 49, available at http://www.leg.state.fl.us/Data/Committees/Joint/JLBC/Meetings/Packets/062411.pdf (describing MFP grant and AHCA request for $2 Million in funds to implement the grant); Florida Joint Legislative Budget Commission Report, at 13, available at http://www.leg.state.fl.us/Data/Committees/Joint/JLBC/Actions/062411.pdf (rejecting AHCA request); see also Linda Shrieves, Florida rejects millions more in federal health-care grants, Orlando Sentinel (Jun. 29, 2011), http://articles.orlandosentinel.com/2011-06-29/health/os-florida-federal-grants-20110629_1_nursing-homes-federalgrant-money-on-nursing-home-care.
40 Since January 2005, the supplemental rate paid to facilities serving medically fragile children has increased by 23%. See AHCA Website, Nursing Home Supplemental Payments, http://ahca.myflorida.com/Medicaid/cost_reim/nhsp.shtml (last visited July 11, 2012).
41 See Fla. Admin. Code. R. 59A-4.1295(7)(e) (2010); Plantation Nursing & Rehab. Ctr. v. Agency for Health Care Administration, No. 10-10313RX, 2010 WL 5135584, at *1 (Fla. Div. of Admin. Hearings, Dec. 14, 2010).

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and in apparent response to increased need for facility services due to the lack of sufficient community alternatives, one facility administrator informed us of plans to open a sister facility to child admissions to expand to a new area of the State. Another facility is undertaking a renovation and expansion in an effort to allow older children and teenagers to “age in place” in a ward with adults and elderly residents.
E. Serving Children Who Have Medically Complex or Medically Fragile Conditions Can Be Reasonably Accommodated In the Community
A state’s obligation to provide services in the most integrated setting may be excused only where a state can prove that the relief sought would result in a “fundamental alteration” of the state’s service system. Olmstead, 527 U.S. at 603-04. To invoke the fundamental alteration defense, a public entity must demonstrate that it has a “comprehensive, effectively working plan” in place to address unnecessary institutionalization. Olmstead, 527 U.S. at 605-06; Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 381-82 (3d Cir. 2005).
Here, providing children in nursing facilities opportunities to move to more integrated settings, and expanding and ensuring the sufficiency of services in the community, would not fundamentally alter the State’s service system and can be reasonably accommodated. As described above, the State is already obligated under the PASRR requirements of federal law to ensure individuals with disabilities are adequately screened before entry to a nursing facility to make a determination of whether community placement would be appropriate, and to identify specialized services that are needed. See 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100 to 483.138. And the State is similarly obligated under the EPSDT requirements of the Medicaid Act to provide certain medically necessary services and currently makes other home and community-based services available through its Medicaid program. See 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4); 42 U.S.C. § 1396d(r)(1)-(5). Indeed, the State already makes available a range of services that enable children and young adults with medically complex conditions to remain at home with their families or in other integrated settings. Hundreds, if not thousands, of children with diagnoses and needs similar to those of currently institutionalized children receive services through these programs. However, as described above, the State limits the availability of or access to these services, often for reasons not based on medical necessity.
Moreover, a state cannot demonstrate a fundamental alteration exists unless it can show that it has developed and is implementing a comprehensive and effective plan to move individuals with disabilities into the community, with any waiting list for services moving at a reasonable pace. Olmstead, 527 U.S. at 584; Frederick L. v. Dept. of Pub. Welfare, 422 F.3d 151, 157 (3d Cir. 2005) (“[A] comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense.”); Pa. Prot. & Advocacy, Inc. v. Dept. of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (“[T]he only sensible reading of the integration mandate consistent with the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA.”)
During our investigation we found no evidence of a comprehensive, effectively working plan designed to reduce the State’s reliance on nursing facilities for individuals in this population. Instead, children and young adults languish for years in nursing facilities without meaningful opportunities to transition to more integrated settings. And for those individuals for whom waiver

-21-
services may be appropriate, a growing waiting list of approximately 20,000 people and the State’s other policies significantly impede their ability to access community-based services.
V. RECOMMENDED REMEDIAL MEASURES
The State should promptly implement a number of measures to remedy the deficiencies discussed above and protect the civil rights of children and young adults with disabilities who receive services in the State. The State must increase community capacity by allotting additional waiver slots, amending existing policies, and expanding other community services to serve children in or at risk of entering nursing facilities. The State must also amend policies that may lead to inappropriate denial of medically necessary services. The State should take all efforts to prevent new admissions of children and young adults to nursing facilities, including expanding or ensuring the sufficiency of community services necessary to support individuals in the community. If an individual is referred to CMAT for a recommendation of the appropriateness of nursing facility placement, the State must ensure that an adequate assessment is done to ensure that children with disabilities receive services in the most integrated setting appropriate to their needs.
The State must also implement a clear plan to ensure that children currently institutionalized in nursing facilities are provided the opportunity to receive services in more integrated settings. The State should take affirmative steps to develop an active transition plan that ensures that appropriate services and supports are in place to successfully serve children in the community, and that involves individuals knowledgeable about community living options and services to ensure that parents and guardians are fully informed of the community-based services available. The State cannot rely, as it currently does, on the staff of nursing facilities to locate and arrange for appropriate alternative services upon an individual’s discharge. For those individuals whose families are unable to provide care for them in their own homes, the State must develop a process to clearly identify existing alternatives, including in medical foster care placements and other appropriate environments, that will meet the needs of the child.
For those individuals who currently live in, and those who have transitioned to, the community, the State must ensure that necessary services are delivered in a coordinated fashion, taking into account the needs and preferences of the child. Such service coordination should ensure that the child’s medical, developmental, educational, and social needs are addressed with sufficient support to allow the child to succeed in a community-based setting.
VI. CONCLUSION
Please note that this findings letter is a public document. It will be posted on the Civil Rights Division’s website and we will provide a copy of this letter to any individual or entity upon request.
Please contact Travis England, the attorney assigned to this matter, at (202) 307-0663 within ten days to inform him whether the State is interested in working cooperatively with the Department of Justice to resolve this matter. In the event we determine that we cannot secure

-22-
compliance voluntarily to correct the deficiencies identified in this letter, the Attorney General may initiate a lawsuit pursuant to the ADA. See 42 U.S.C. § 12133; 42 U.S.C. § 2000d-1. We hope that you will give this letter careful consideration and that it will assist in remedying the State’s failure to provide its services and programs for children and young adults with disabilities in the most integrated setting appropriate to their needs. If you have any questions regarding this letter, please call Gregory Friel, Acting Chief of the Civil Rights Division’s Disability Rights Section, at (202) 307-0663.
Sincerely,
Thomas E. Perez Assistant Attorney General

 
 Case: 0:13-cv-61576-WJZ As of: 11/04/2014 06:45 AM EST 1 of 5
CLOSED,PMH,REF_DISCOV
U.S. District Court Southern District of Florida (Ft Lauderdale) CIVIL DOCKET FOR CASE #: 0:13−cv−61576−WJZ

United States of America v. The State of Florida Assigned to: Judge William J. Zloch Referred to: Magistrate Judge Patrick M. Hunt Lead case: 0:12−cv−60460−WJZ Member case: (View Member Case) Cause: 42:12182 Americans with Disabilities Act
Plaintiff

Date Filed: 07/22/2013 Date Terminated: 06/26/2014 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Beth A. Esposito U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue NW Washington, DC 20005 202−305−1130 Email: beth.esposito@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

H. Justin Park US Department of Justice 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 (202) 305−0178 Email: justin.park@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joy Levin Welan U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 202−305−1894 Email: joy.welan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Veronica Vanessa Harrell−James United States Attorney's Office 99 NE 4 Street Miami, FL 33132 305−961−9327 Fax: 530−7139 Email: Veronica.Harrell−James@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Travis W. England U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 202−307−8987 Email: travis.england@usdoj.gov ATTORNEY TO BE NOTICED

V.

Case: 0:13-cv-61576-WJZ As of: 11/04/2014 06:45 AM EST 2 of 5

Intervenor Plaintiff
Disability Rights Florida TERMINATED: 04/04/2014

represented by Molly Jean Paris 1930 Harrison Street Suite 104 Hollywood, FL 33020 8504889071 Fax: 8504888640 Email: mollyp@disabilityrightsflorida.org ATTORNEY TO BE NOTICED

David Allen Boyer Disability Rights Florida 1930 Harrison St. Suite 104 Hollywood, FL 33020 (850) 488−9071 Fax: (850) 488−8640 Email: davidb@disabilityrightsflorida.org ATTORNEY TO BE NOTICED

V. Defendant The State of Florida

represented by George N. Meros , Jr. Gray Robinson 301 S Bronough Street Suite 600 Post Office Box 11189 (32302) Tallahassee, FL 32301 850−577−9090 Fax: 577−3311 Email: gmeros@gray−robinson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew T. Sheeran Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive Building 3, MS #3 Tallahassee, FL 32308 850−412−3630 Fax: 850−921−0158 Email: Andrew.Sheeran@ahca.myflorida.com ATTORNEY TO BE NOTICED
Leslei Gayle Street Agency for Healthcare Administration Office of the General Counsel 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 850−412−3686 Fax: 850−921−0158 Email: Leslei.Street@ahca.myflorida.com ATTORNEY TO BE NOTICED
Stuart Fraser Williams Agency for Health Care Administration 2727 Mahan Drive Mail Stop 3 Tallahassee, FL 32308 850−412−3630 Fax: 850−921−0158 Email: stuart.williams@ahca.myflorida.com

Case: 0:13-cv-61576-WJZ As of: 11/04/2014 06:45 AM EST 3 of 5 ATTORNEY TO BE NOTICED

Date Filed 07/22/2013
07/22/2013 07/22/2013 07/22/2013 07/22/2013 07/23/2013 08/08/2013
08/13/2013
08/13/2013 08/27/2013
08/30/2013
08/30/2013
09/05/2013 09/05/2013 09/05/2013 09/06/2013
09/06/2013 09/09/2013 09/09/2013

# Docket Text
1 COMPLAINT against State of Florida. Filing fees $ 400.00. USA Filer − No Filing Fee Required, filed by United States of America. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s), # 3 Summon(s), # 4 Certification)(England, Travis) (Entered: 07/22/2013)
2 Judge Assignment to Judge William P. Dimitrouleas and Magistrate Judge Lurana S. Snow (jua) (Entered: 07/22/2013)
3 Civil Action Certification by United States Attorney (jua) (Entered: 07/22/2013)
4 Summons Issued as to The State of Florida. (jua) (Entered: 07/22/2013)
5 Summons Issued as to The State of Florida. (jua) (Entered: 07/22/2013)
6 Order Requiring Joint Scheduling Report. Signed by Judge William P. Dimitrouleas on 7/23/2013. (ls) (Entered: 07/23/2013)
7 SUMMONS (Affidavit) Returned Executed on 1 Complaint, with a 21 day response/answer filing deadline by United States of America. The State of Florida served on 7/25/2013, answer due 8/15/2013. (Welan, Joy) (Entered: 08/08/2013)
8 ANSWER and Affirmative Defenses to Complaint by The State of Florida. Attorney George N. Meros, Jr added to party The State of Florida(pty:dft). (Meros, George) (Entered: 08/13/2013)
9 MOTION to Change Venue and Memorandum of Law in Support by The State of Florida. Responses due by 8/30/2013 (Meros, George) (Entered: 08/13/2013)
10 ORDER TRANSFERRING CASE to Judge Robin S. Rosenbaum for all further proceedings, accepted and signed on 8/27/2013. Judge William P. Dimitrouleas no longer assigned to case. Signed by Judge William P. Dimitrouleas on 8/26/2013. (ls) (Entered: 08/27/2013)
11 RESPONSE in Opposition re 9 MOTION to Change Venue and Memorandum of Law in Support filed by United States of America. (England, Travis) (Entered: 08/30/2013)
12 Certification for Transfer Case No Longer Referred to Magistrate Judge Lurana S. Snow. Signed by Magistrate Judge Lurana S. Snow on 8/30/2013. (tpl) (Entered: 09/04/2013)
13 Motion to Intervene , filed by Disability Rights Florida. (Attachments: # 1 Complaint)(Boyer, David) Modified on 9/6/2013 (mg). (Entered: 09/05/2013)
14 SUPPLEMENT to 13 Intervenor Complaint Civil Cover Sheet by Disability Rights Florida (Boyer, David) (Entered: 09/05/2013)
15 SUPPLEMENT to 13 Intervenor Complaint Summons by Disability Rights Florida (Boyer, David) (Entered: 09/05/2013)
16 Clerks Notice to Filer re 13 Intervenor Complaint. 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. (mg) (Entered: 09/06/2013)
17 Clerks Notice to Filer re: Summons(es) cannot be issued. The motion to intervene has not been granted. (mg) (Entered: 09/06/2013)
18 RESPONSE in Support re 9 MOTION to Change Venue and Memorandum of Law in Support filed by The State of Florida. (Meros, George) (Entered: 09/09/2013)
19 REPLY to Response to Motion re 9 MOTION to Change Venue and Memorandum of Law in Support filed by The State of Florida. (ls)(See Image at DE # 18 ) (Entered: 09/10/2013)

Case: 0:13-cv-61576-WJZ As of: 11/04/2014 06:45 AM EST 4 of 5

09/10/2013
09/10/2013 09/10/2013 09/10/2013 09/11/2013 09/23/2013 09/30/2013 10/01/2013
11/21/2013 11/26/2013 11/27/2013
12/02/2013
12/03/2013 12/03/2013 12/06/2013 12/06/2013
12/06/2013

20 Clerks Notice to Filer re 18 Response in Support of Motion. Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de#19]. It is not necessary to refile this document. (ls) (Entered: 09/10/2013)
21 NOTICE of Attorney Appearance by Andrew T. Sheeran on behalf of The State of Florida. Attorney Andrew T. Sheeran added to party The State of Florida(pty:dft). (Sheeran, Andrew) (Entered: 09/10/2013)
22 NOTICE of Attorney Appearance by Leslei Gayle Street on behalf of The State of Florida. Attorney Leslei Gayle Street added to party The State of Florida(pty:dft). (Street, Leslei) (Entered: 09/10/2013)
23 NOTICE of Attorney Appearance by Stuart Fraser Williams on behalf of The State of Florida. Attorney Stuart Fraser Williams added to party The State of Florida(pty:dft). (Williams, Stuart) (Entered: 09/10/2013)
24 SCHEDULING REPORT − Rule 26(f) by United States of America (England, Travis) (Entered: 09/11/2013)
25 RESPONSE in Opposition re 13 Motion to Intervene filed by The State of Florida. (Meros, George) (Entered: 09/23/2013)
26 REPLY to Response to Motion re 13 Motion to Intervene filed by Disability Rights Florida. Attorney Molly Jean Paris added to party Disability Rights Florida(pty:intvp). (Paris, Molly) (Entered: 09/30/2013)
27 Clerks Notice to Filer re 26 Reply to Response to Motion. This document does not have a signature. In the future, please remember to add the following to your signature lines: s/. Please see our CM/ECF Administrative Procedures for a detailed explanation. It is not necessary to refile this document. If you have any questions with regard to this, or any future filings, please contact 1−888−318−2260. (ls) (Entered: 10/01/2013)
28 MOTION for Judgment on the Pleadings by The State of Florida. (Meros, George) (Entered: 11/21/2013)
29 Unopposed MOTION for Extension of Time to File Response/Reply as to 28 MOTION for Judgment on the Pleadings by United States of America. (Attachments: # 1 Text of Proposed Order)(Welan, Joy) (Entered: 11/26/2013)
30 PAPERLESS ORDER granting 29 Plaintiff's Unopposed Motion for Extension of Time to File Response re 28 Defendant's MOTION for Judgment on the Pleadings. Plaintiff's Response is now due by 12/23/2013. Signed by Judge Robin S. Rosenbaum on 11/27/2013. (kms) (Entered: 11/27/2013)
31 Joint MOTION for Protective Order Governing Confidential Information and Memorandum of Law by United States of America. (Attachments: # 1 Exhibit 1 − Qualified Protective Order Governing Confidential Information)(Welan, Joy) (Entered: 12/02/2013)
32 ORDER REFERRING CASE to Magistrate Judge Patrick M. Hunt for Discovery Matters. Signed by Judge Robin S. Rosenbaum on 12/3/2013. (kms) (Entered: 12/03/2013)
33 Stipulated Protective Order. Signed by Magistrate Judge Patrick M. Hunt on 12/3/2013. (tjs) (Entered: 12/03/2013)
Cases associated. (ar2) (Entered: 12/06/2013)
34 ORDER granting [DE 192] Motion for Consolidation of Related Cases in case number 12−cv−60460−RSR. A.R. et al., v. Dudek, et al., Case No. 12−60460−CV−ROSENBAUM, and United States v. State of Florida, Case No. 13−61576−CV−ROSENBAUM, are hereby consolidated with each other. Signed by Judge Robin S. Rosenbaum on 12/6/2013. (ar2) (Entered: 12/06/2013)
35 PAPERLESS ORDER denying as moot 9 Motion to Change Venue in light of 34 Order granting Motion to Consolidate Cases. Signed by Judge Robin S. Rosenbaum on 12/6/2013. (kms) (Entered: 12/06/2013)

Case: 0:13-cv-61576-WJZ As of: 11/04/2014 06:45 AM EST 5 of 5

12/06/2013
12/17/2013 12/17/2013 04/04/2014 05/30/2014 05/30/2014
06/26/2014 06/26/2014

36 ORDER TO SHOW CAUSE directed to Disability Rights Florida, Inc. Show Cause Response due by 12/24/2013. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 12/6/2013. (kms) (Entered: 12/06/2013)
37 GENERAL ORDER on Discovery Objections and Procedures Signed by Magistrate Judge Patrick M. Hunt on 12/16/2013. (vp) (Entered: 12/17/2013)
38 RESPONSE TO ORDER TO SHOW CAUSE re 36 Order to Show Cause by Disability Rights Florida. (Paris, Molly) (Entered: 12/17/2013)
39 ORDER denying 13 Motion to Intervene. Signed by Judge Robin S. Rosenbaum on 4/4/2014. (ls) (Entered: 04/07/2014)
40 ORDER denying 28 Motion for Judgment on the Pleadings. Signed by Judge Robin S. Rosenbaum on 5/30/2014. (kms) (Entered: 05/30/2014)
41 CLERKS NOTICE REASSIGNING CASE pursuant to Administrative Order 2014−48. Case reassigned to Judge William J. Zloch for all further proceedings. Judge Robin S. Rosenbaum no longer assigned to case. (mb) (Entered: 05/30/2014)
42 ORDER re: Consolidation; Directing Clerk to Close Case for Statistical Purposes. Signed by Judge William J. Zloch on 6/26/2014. (ls) (Entered: 06/26/2014)
Civil Case Terminated. (ls) (Entered: 06/26/2014)