Case 1:08-cv-02930-TWT Document 1 Filed 09/18/08 Page 1 of 27
E) ORIGINAL

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

MARKETRIC HUNTER, a minor child,

FLED IN CLERKS OFFICE

by and through his mother and legal guardian, THELMA LYNAH,

SEP 1 82008

Plaintiff,

JAMES N . HATEEN , Clerk

8y: ~

e puty Clerk

vs .

CIVIL ACTION FILE NO .

RHONDA MEDOWS, in her Official Capacity as Commissioner of the GEORGIA DEPARTMENT OF COMMUNITY HEALTH, and GEORGIA MEDICAL CARE FOUNDATION, INC., a Georgia corporation,

V93 0

Defendants .

VERIFIED COMPLAINT F OR INJUNCTIVE AN D DECLARATORY RELIEF Comes now Plaintiff Marketric Hunter, a minor child, by and through his mother and legal guardian Thelma Lynah, and brings this action pursuant to 42 U.S .C . § 1983 for injunctive and declaratory relief against Defendant Rhonda Medows, in her official capacity as the Commissioner of Georgia's Department of Community Health, and Defendant Georgia Medical Care Foundation, Inc ., a

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Georgia corporation, to redress defendants' violations of the plaintiff's rights under the Medicaid Act, 42 U .S .C. § 1396 et seq., and shows as follows :
JURISDICTION AND VENUE 1.
This civil action is authorized by 42 U .S.C . § 1983 to redress the deprivation under color of law of rights guaranteed by the Medicaid Act and the United States Constitution . This Court has jurisdiction over this action pursuant to 28 U.S .C . §§ 1 33 1 and 1 3 43 .
2. This Court has authority to grant the plaintiff's claims for declaratory and injunctive relief pursuant to 28 U .S.C . §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure .
3. Venue lies in the Atlanta Division of the Northern District of Georgia pursuant to 28 U . S .C . § 1391(b).
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PARTIES 4.
Plaintiff Marketric Hunter (Marketric) is seven (7) years old and a resident of Savannah, Georgia . He brings this action by and through Thelma Lynah, his adoptive mother and legal guardian .
5. Marketric is eligible to receive Medicaid benefits .
6. Defendant Rhonda Medows (Defendant Medows) is the Commissioner of Georgia's Department of Community Health (DCH) . This action is brought against Defendant Medows in her official capacity as the Commissioner of DCH . The Department of Community Health (DCH) is the state agency that administers the Medicaid program in Georgia . (Throughout this complaint, Defendant Medows and DCH occasionally will be referred to collectively as "DCH ."}
7. Defendant Georgia Medical Care Foundation, Inc . (GMCF) is a domestic, non-profit corporation, currently authorized to do business in this state .
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FACTUAL ALLEGATIONS 8.
When he was a toddler, Marketric nearly drowned . By the time the paramedics resuscitated him, Marketric's brain was catastrophically and irreparably injured .
9. Following Marketric's devastating neurologic injury, he developed many severe health conditions which are difficult to control and can quickly become lifethreatening .
10 .
Marketric's doctors have diagnosed him with many serious, incurable conditions including -- but not limited to -- static encephalopathy, cerebral palsy, spastic quadriplegia with sustained clonus in all four extremities, intractable seizure disorder, chronic lung disease, chronic upper airway obstruction, gastro esophageal reflex, scoliosis with curvatures, and severe mental retardation .
11 . Marketric is medically fragile with multiple systems diagnoses .
12. Most of Marketric's diagnoses are complications of extensive brain damage .
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13. Marketric's medical conditions are challenging to manage effectively. Marketric experiences frequent and serious infections, respiratory distress, and hospitalizations .
14 . Marketric needs to be administered many medications and treatments on a strict schedule around the clock . He requires frequent deep suctioning to remove secretions from his airways . He often needs oxygen .
1 5. Marketric's conditions require constant assessment for signs indicating the need for more or other medications and interventions to prevent further complications, and to keep him as healthy as possible .
16 . When he is most healthy, Marketric is alert and attempts to communicate . Marketric is too medica lly fragile to attend school outside of his home, so he receives services and therapies at home to, among other things, help him communicate better.
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17 .
Marketric's physicians have determined that Marketric requires private duty nursing to keep him as healthy as possible, to compensate for health conditions, to improve or prevent conditions from worsening, and to keep him from developing new problems .
18 . Marketric's physicians have repeatedly documented Marketric's medical conditions and health care needs and have prescribed private duty nursing services for Marketric for at least five (5) years .
19 . On September 5, 2008, Marketric was admitted to Children's Medical Center in Augusta to have surgery to place a rod next to his spine to correct severe scoliosis .
20 . For the rod to be placed in Marketric's back, an incision was made from the back of his neck down the full length of his back .
21 . Marketric is sedated on pain medication in an effort to control his pain . Although a body cast was applied during surgery, it has been removed because of
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Marketric's particular medical and physical conditions . The surgical incision running the length of Marketric's back prevents Marketric from receiving respiratory treatments with medication, use of a CPT vest, and suctioning as he ordinarily would .
22 . During his recuperation, Marketric requires pain medication and he is at greater risk of complications . Marketric requires even more medication, treatment, assessment, and modified positioning than he requires regularly in an effort to prevent a myriad of problems, including respiratory distress, respiratory infection, skin breakdown, increased seizure activity, and aspiration with g-tube feedings . Because of his incision, Marketric cannot tolerate his normal respiratory treatment regimen. He must be turned every hour 24 hours per day to keep his airway clear .
23 . Marketric's primary treating physician, a Board certified pediatrician licensed to practice in the State of Georgia, determined that Marketric would require 168 hours per week of private duty nursing services after his surgery and requested Medicaid's approval for an increase in the number of nursing hours for Marketric upon his discharge from the hospital in Augusta and return to his residence in Savannah, Georgia .
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24 . Marketric's physician and the nursing agency providing services to Marketric submitted the physician's request for approval of the increase to 168 hours per week on August 18, 2008 in anticipation of his surgery on September 5, 2008 .
25 . The request has not been approved or denied .
26 . The State of Georgia participates in the Medicaid program, a voluntary federal - state partnership for payment of certain healthcare services of persons eligible to receive Medicaid .
27 . The Medicaid Act requires states participating in Medicaid to provide certain services to Medicaid-eligible beneficiaries under age 21 .
28 .
The provisions of the Medicaid Act specific to beneficiaries under age 21 years are known as Early and Periodic Screening, Diagnostic and Treatment, or EPSDT, set forth at 42 U .S .C . § 1396d(r).
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29 . The EPSDT provisions of the Medicaid Act include 42 U .S .C . § 1396d(r)(5), which requires that states provide to children
"{s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the state plan ."
30 . The reference to "subsection (a)" above refers to 42 U .S .C . § 1396d(a) of the Medicaid Act which lists categories of services that states must provide to Medicaid-eligible children .
31 . Private duty nursing is one of the enumerated categories of service under subsection (a) . See 42 U.S .C . § 1396d(a)(8) .
32 . "Private duty nursing" is defined in the Code of Federal Regulations, 42 C .F .R. §440 .80, as "nursing services for recipients who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility . . . ." Under 42 C .F.R.
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§440 .80, private duty nursing services must be provided by a registered nurse or a licensed practical nurse under the direction of the recipient's treating physician .
33 . Under the EPSDT provisions of the Medicaid Act, Georgia's Medicaid Agency must provide private duty nursing services to Medicaid eligible children under 21 when such nursing services are found by a child's treating physician to be necessary to correct or ameliorate a child's condition or illness .
34 . Marketric's treating physician has determined that Marketric requires 168 hours per week of private duty nursing services post-surgery to correct or ameliorate his illnesses and conditions .
35 . Under the EPSDT provision of the Medicaid Act, Marketric is entitled to receive all private duty nursing services necessary to correct or ameliorate his physical and mental illnesses and conditions as prescribed by his treating physician, whether or not such services are covered under Georgia's state Medicaid plan .
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36 . In Georgia, the phrase "correct or ameliorate" means to "improve or maintain a child's health in the best condition possible, compensate for a health problem, prevent it from worsening, prevent the development of additional health problems, or improve or maintain a child's overall health, even if treatment or services will not cure the recipient's overall health ." O.C .G .A. § 49-4-169 .1(1).
37 . The Georgia Pediatric Program or GAPP is a subprogram of the Georgia Medicaid program by which medically fragile children receive in-home nursing services . DCH has written policies and procedures for GAPP (the GAPP Manual) . The GAPP Manual governs the provision of Medicaid funded in-home nursing services to medically fragile children in Georgia .
38 . Although the GAPP Manual suggests that GAPP provides "private duty nursing," DCH has acknowledged that GAPP does not actually provide "private duty nursing ." Instead, GAPP provides "skilled nursing in shifts ."
39 . Marketric has been receiving nursing services in his home through GAPP for many years . Notwithstanding his treating physicians' determination that greater
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numbers of private duty nursing hours are medically necessary for Marketric, Defendants, through the application of GAPP policies, have capped Marketric's hours of nursing services to 70 hours per week .
40 . Defendant GMCF is a subcontractor of Affiliated Computer Services, Inc., (ACS) . ACS is the prime contractor for a healthcare administration project comprising Georgia's Medicaid and PeachCare programs and known as the Georgia Health Partnership or GHP .
41 . Under the auspices of GHP, DCH has delegated many of the tasks involved in the administration and operation of Georgia's Medicaid program to Defendant GMCF .
42 . Defendant GMCF reviews requests submitted by Medicaid providers to obtain prior authorization of payment for certain medical services .
43 . Defendant GMCF reviews and determines whether to approve or deny all requests for prior approval for nursing services under GAPP for Medicaid-eligible individuals under the age of 21 years in Georgia .
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44 . All decisions made by Defendant GMCF for the prior approval of nursing services under GAPP are made pursuant to the policies and procedures of DCH .
45 . The staff at GMCF who review these prior approval requests meet with DCH staff and lawyers to discuss how GMCF applies DCH policies and procedures when reviewing the requests for nursing services under GAPP .
46 . GMCF's responsibilities under its subcontract include providing testimony at appeals hearings for DCH when GMCF's decision results in an adverse action being taken to deny Medicaid coverage for private duty nursing requested for an eligible child .
47. DCH trained GMCF staff about how to conduct themselves as witnesses at appeals hearings .
48 . GMCF applies the policies and procedures of the GAPP program to deny requests for prior approval for nursing services, either by denying approval for any services or by approving less of the service than was requested .
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49 . Defendant GMCF makes all decisions about the "medical necessity of the child" for any nursing services that will be provided to Medicaid-eligible children in Georgia .
50 . Defendants make their decisions about weaning and reducing the number of approved hours for children in the GAPP program based upon whether the condition of the child has worsened enough during the previous review period .
51 . GMCF applies GAPP policies and procedures to limit the number of Medicaid-funded private duty nursing hours that any child can receive, regardless of what the child's treating physicians have determined the child needs . GMCF makes its decision about the reduction of the number of approved hours for children in the GAPP program based upon whether the condition of the child has worsened enough during the previous review period .
52 . GAPP policy states that it will not cover nursing services for individuals requiring sixteen ( 16) to twenty-four (24) hours of nursing care for an extended period of time in excess of one (1) week or for an indefinite period of time .
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53 . Defendants applied the policies and procedures of the LAPP program when deciding to approve or deny prior approval requests for Medicaid-funded nursing services for Marketric over the five years his physician has prescribed private duty nursing services for him .
54. Prior to Defendant GMCF's failure to approve the current request for an increase in nursing hours, Defendant GMCF had been engaged in a consistent reduction in the number of approved nursing hours for Marketric .
55 . Notwithstanding his treating physicians' determination that greater numbers of private duty nursing hours are medically necessary for Marketric, Defendant GMCF first capped Marketric's hours at 84 hours per week and subsequently reduced his hours to 70 hours per week .
56 . On May 7, 2008, Ms . Lynah received a notice from Defendant GMCF that Marketric's nursing hours were being reduced from 70 to 63 hours per week, because he had not been in the hospital in the previous three month period and
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because he had not had any exacerbation in his "disease process ." Ms . Lynah promptly filed an administrative appeal of this reduction .
57 . GMCF applies GAPP policies and procedures to limit the number of Medicaid-funded provide duty nursing hours that Marketric can receive, regardless of what his treating physicians have determined that he needs .
58 . Defendants did not apply the EPSDT "correct or ameliorate" standard to the request for nursing services for Marketric .
59 . Defendant GMCF's employees have been instructed by DCH to return to nursing providers any application that does not fully comply with the policies and procedures of the GAPP program .
60 . Defendant GMCF's employees have been instructed by DCH to take all requests in the order in which they are received and to not expedite requests for nursing services .
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61 . On August 18, 2008, Defendant GMCF's employees received the request submitted by Marketric's physician and nursing agency under GAPP to increase his approved hours of nursing services to 168 hours after his surgery on September 5, 2008, during his period of recuperation .
62 . Ms. Lynah, Marketric's adoptive mother, has never received any written notice from Defendant GMCF or Defendant Medows that the August 18th request has been approved or denied .
63 . GMCF has failed to timely consider Marketric's physician's request that Marketric receive 168 hours per week of nursing services until his physician determines that he has sufficiently recovered from his surgery to allow a reduction in this level of service .
64 . Marketric was discharged home from Children's Medical Center on September 16, 2008, without the necessary nursing services that his physician has prescribed .
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65 . As a result of Defendants' acts and omissions, Marketric has been and is being denied services essential to his health and is suffering irreparable injury .
COUNT ONE 66 .
The allegations contained in the numbered paragraphs above are incorporated by reference as if set forth herein verbatim .
67 . Under the EPSDT provisions of the Medicaid Act, 42 U .S .C . § 1396d(r), Marketric has a right to receive Medicaid-funded private duty nursing services that his treating physician has determined are necessary to improve his health or maintain his health in the best condition possible, to compensate for a health problem, to prevent a health problem from worsening, to prevent the development of additional health problems, or to improve or maintain his overall health, even if treatment or services will not cure his overall health .
68 . Defendants' failure to timely provide private duty nursing services as prescribed by Marketric's treating physician increases the risk to Marketric that
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one or more of his health problems will worsen, develop additional complications, hospitalization, and even death .
69 . Marketric has suffered, continues to suffer, and will suffer irreparable injury as a result of, inter alia, Defendants' refusal to approve the request submitted by Marketric's physicians as medically necessary to correct or ameliorate Marketric's multiple and complex conditions .
70. The potential for harm to the Defendants is negligible if Defendant Medows is required to provide private duty nursing hours as prescribed by Marketric's physician .
71 . Marketric has a substantial likelihood of success on the merits of his claims based upon Defendants' violation of the Medicaid Act, 42 U .S .C . §§ 1396a et seq.
72 . It is in the public interest that Marketric receive healthcare services covered by the Medicaid Act in the manner that his physician determines are necessary to provide medically necessary care at home and to avoid the increased risk of illness,
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hospitalization, and death that is created by limiting or reducing the medical care he receives .
73 . This is a proper case for the entry of a temporary restraining order to limit further and greater irreparable harm to Marketric under Fed.R.Civ.P. 65(b) .
COUNT TWO 74 .
The allegations contained in the numbered paragraphs above are incorporated by reference as if set forth herein verbatim .
75 . Defendants have, by the actions and inactions set forth above, violated the Medicaid Act, 42 U .S .C . §§ 1396 et seq., and its implementing regulations by : (a) denying Marketric all services to which he is entitled under EPSDT, in violation of 42 U.S .C. § 1396d(r)(5) ; (b) failing to inform Marketric of the scope of services available under the EPSDT benefit of the Medicaid program, in violation of 42 U .S.C . § 1396a(a)(43)(A) ;
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(c) denying and reducing EPSDT services in amount, duration and scope because of Marketric's diagnosis, type of illness or condition, in violation of 42 C .F .R. §§440.230(6) and (c) ;
(d) denying services to Marketric on the basis of cost, in clear violation of the Medicaid Act ;
(e) failing to provide adequate written notice of its decisions to deny or reduce benefits ;
(f) ignoring requests for Medicaid-funded services ; (g) failing to provide access to Medicaid-funded services with reasonable promptness ; (h) making arbitrary and capricious decisions to deny or reduce Medicaidfunded services to Marketric and/or creating justifications for those decisions after Marketric has sought to challenge them ; (i) failing to provide Marketric with a meaningful opportunity to be heard and the means by which he might challenge any reduction or denial of Medicaidfunded services to him; 0) refusing to allow nurses to travel with Marketric to the doctor's office despite repeated requests from the primary pediatrician ;
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(k) refusing to consider the requests of Marketric's primary pediatrician for nurses to travel with Marketric and then refusing to provide notice of the denial of services to Marketric;
(1) refusing to apply the proper legal standard for medical necessity to the approval of nursing services ;
(m) denying services to Marketric because his "disease process" has not deteriorated enough ;
(n) refusing to actually provide Medicaid-funded "private duty nursing" to Marketric, as that service is defined in 42 C .F .R. §440 .80.
76 . Marketric's right to receive the EPSDT benefits to which he is entitled is a right secured by the laws of the United States, including, but not limited to, the Medicaid Act . In violation of 42 U .S .C . § 1983, Defendants have subjected Marketric to the deprivation of his rights under color of a statute, ordinance, regulation, custom, or usage of the State of Georgia .
COUNT THREE 77 .
The allegations contained in the numbered paragraphs above are incorporated by reference verbatim .
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78 . Defendant Medows has, by the actions and inactions set forth above, violated Marketric's right to due process which is protected by the 5'h and 14th Amendments to the United States Constitution by : (a) failing to provide adequate written notice of her decisions to deny or reduce services to which Marketric is entitled in accordance with the Medicaid Act and a meaningful opportunity to challenge these decisions ; (b) by ignoring his requests for services, Defendant Medows is denying to him essential Medicaid-funded services, to which he is entitled to receive in accordance with the Medicaid Act, without providing any notice, however inadequate, of the reasons for her decisions to deny benefits to him and a meaningful opportunity to challenge these decisions ; (c) making decisions about Medicaid coverage that are arbitrary and capricious ; (d) misleading Marketric and his providers about the nursing service actually being provided to Marketric under the GAPP program .
79 . Marketric has a protected property interest in receiving Medicaid-funded services to which he is entitled under the Medicaid Act . Marketric's right to due
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process when being denied or suffering the loss of protected property rights is a right secured by the 5`' ' and 14'h Amendments to the Const itution of United States . In violation of 42 U .S .C . § 1983, Defendant Medows has subjected Marketric to the deprivation of his right to due process under color of a statute, ordinance, regulation, custom, or usage of the State of Georgia .
COUNT FOUR 80 .
The allegations set forth in the numbered paragraphs above are incorporated herein as fully as if set forth verbatim .
81 . Pursuant to 42 U .S.C. § 1988, Marketric should recover a reasonable attorney's fee as part of its costs for taking action to enforce Section 1983 . WHEREFORE, Marketric respectfully requests that the Court : (a) issue a temporary restraining order and preliminary injunction to prohibit Defendants from denying nursing services to Marketric that have been prescribed by his physician as necessary for him ; (b) enter a preliminary and permanent injunction against Defendants to
prohibit them from denying necessary healthcare services as ordered for him by his primary care physician ;
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(c) issue preliminary and permanent injunctive relief enjoining Defendants from violating Plaintiff's rights to have all approvals required by Defendants issue promptly, without delay caused by Defendants' prior approval process and requiring Defendants to immediately provide all medically necessary services to which Marketric is entitled under the Medicaid program ;
(d) issue preliminary and permanent injunctive relief enjoining Defendants from violating Plaintiff s right to due process and requiring Defendants to provide written notice of the specific factual reasons and specific regulations and/or policies which it has applied when threatening to reduce or when denying Medicaid-funded services to which Marketric is entitled under the Medicaid program ;
(e) declare that Defendants' actions and inactions violate the Medicaid Act ; (f) declare that Defendants' actions and inactions violate his right to due process of law under the 5`h and 14t" Amendments to the United States Constitution ; (g) award Marketric his litigation expenses, including reasonable attorney's fees; and (h) award such other relief as may be just, equitable and appropriate .
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Respectfully submitted this 18th day of September, 2008 .
s/Paula Raffert Miller GeQ a r. l1 9175b S; hua o ~ s Georgia Bar No . 545854 Attorneys for Plaintiff
Georgia Advocacy Office 150 E. Ponce de Leon Avenue, Suite 430 Decatur, Georgia 30030 Telephone : (404) 885-1234 Facsimile: (404) 378-0031 E-mail : pmillerkthegao.org
jnorris @,the ao.or
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SEP-16-20C0as$e 11:058=-2cv9-02A9U3G0-CTHWAMTBERDCoOcMuMment 1 Filed 09/18/08 Page 2770o6f8227113 10 P .01i01

VERiFICA'TXON

STATE OF GEORGIA §

COUNTY . OF RICHMOND

On thus day, Thelma Lynch appeared before me, the undersigned notary public . After I acimiiiistered an oath to her, upun her oath, she said that she read the Verified Complaint for

lnjunctive and Declaratory Relief and that the facts stated in it are within her personal knowledge

and are true and correct .

'' f

LMA LYNAH

~ SWORN TO and SUBSCRIBED before me on J t ( , 24p$, ;
F i
NOTARY PLI9 LIC RICEfIy10ND CO. GA. Mr CQMMIUI QN EXP1AEi 0lW,i " 9
N loo in an or the State of Georgia

i
r r
TOTAL P .0 1

 
 Case 1:08-cv-02930-TWT Document 81 Filed 09/27/11 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER, a minor child, by and through his mother and legal guardian, THELMA LYNAH, ZACHARY ROYAL, S.R., a minor child, by and through her father and natural guardian CHARLES REGNA, J.M., a minor child, by and through his grandmother and next friend MINNIE MANUAL, R.E., a minor child, by and through her mother and natural guardian MICHELLE EAVES,

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

Plaintiffs, vs.

DAVID A. COOK, in his Official Capacity as Commissioner of the GEORGIA DEPARTMENT OF COMMUNITY HEALTH, and GEORGIA MEDICAL CARE FOUNDATION, INC., a Georgia corporation,

Defendants.

SECOND AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Come now Plaintiffs Marketric Hunter, S.R., J.M. and R.E., all minor children, by and through theirlegal guardians, and Zachary Royal and bring this
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action on behalf of themselves and all similarly situated individuals pursuant to 42 U.S.C. §1983 for injunctive and declaratory relief against Defendant David A. Cook, in his official capacity as the Commissioner of Georgia’s Department of Community Health, and Defendant Georgia Medical Care Foundation, Inc., a Georgia corporation, to redress Defendants’ violations of the Plaintiff’s rights under, inter alia, the Medicaid Act, 42 U.S.C. §1396 et seq., and the United States Constitution, and pursuant to Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 et seq. (ADA) and shows as follows:
1. This civil rights class action is authorized by 42 U.S.C. § 1983 to redress the deprivation under color of law of rights guaranteed by the Medicaid Act and the Supremacy Clause, U.S. Const., Art. IV, cl.2, and by 42 U.S.C. §12133. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343.
2. This Court has authority to grant the plaintiff’s claims for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure.
3. Venue lies in the Atlanta Division of the Northern District of Georgia
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pursuant to 28 U.S.C. § 1391(b). 4.
At all times relevant to this action, Defendants have acted under color of state law.
5. Plaintiff Marketric Hunter (Marketric) is ten (10) years old and a resident of Savannah, Georgia. He brings this action by and through Thelma Lynah, his adoptive mother and legal guardian. Marketric is a medically fragile child with multiple system medical diagnoses. He is eligible to receive Medicaid and he has obtained some nursing services under the Georgia Pediatric Program (GAPP). He has been subjected to the application of policies of the GAPP program that are intended to and do have the effect of limiting, denying or reducing the amount of Medicaid-funded nursing services that he can or will receive in this state. In addition, Marketric is subjected to the application of GAPP policies to prevent him from accessing other Medicaid services including available home and community based Medicaid waiver programs in Georgia for which he is eligible.
6. Plaintiff Zachary Royal is an 18 year old young man who lives with his father near Vienna, Georgia, in rural Dooley County. Zachary’s mother Laura
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passed away in 2007. Zachary is considered to be medically fragile and has Spinal Muscular Atrophy type 1, which puts him at very high risk for respiratory infections and associated adverse outcomes. He is eligible to receive Medicaid and he has obtained some nursing services under the Georgia Pediatric Program (GAPP). While his disease process is progressing and he is becoming more vulnerable, Defendants are applying GAPP “weaning” policies to Zachary’s receipt of nursing services that are intended to and effectively limit, deny and reduce the number of nursing hours available to Zachary in Georgia.
7. Plaintiff S.R. is currently 4 years old and brings this action through her father and natural guardian Charles Regna. S.R. is eligible to receive Medicaid. She is considered medically fragile with multiple system medical diagnoses and has received some nursing services through GAPP. Defendants are applying GAPP policies to S.R.’s receipt of nursing services that are intended to and effectively deny, reduce and limit the amount of nursing services that she can receive through GAPP. Defendants have used GAPP “weaning” policies to impose a weaning schedule to reduce S.R.’s nursing hours and limit their availability to her in the future.
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8. Plaintiff J.M., a 15 year old Medicaid-eligible child, brings this action through his grandmother and next friend Minnie Manual. J.M. lives with his grandmother in Atlanta, Georgia. He is considered medically fragile with multisystem medical diagnoses. As a result of a brain tumor diagnosed in 2003 and complications from treatment, he was devastated neurologically. He requires 24 hour a day ventilator support, he has intractable seizures, and his gastrointestinal system and endocrine systems are completely dysfunctional. He requires skilled nursing interventions around the clock. He has received some nursing services through GAPP. Defendants are applying GAPP policies to J.M.’s receipt of nursing services that deny, reduce and limit the amount of nursing services that he can receive through GAPP. Defendants have used the GAPP “weaning” policy to reduce J.M.’s nursing hours in the past and have taken steps to impose further weaning through GAPP policies which will reduce J.M.’s nursing hours and limit their availability to him in the future.
9. Plaintiff R.E. is 14 year old, Medicaid–eligible child residing with her parents and younger siblings in Atlanta, Georgia. R.E. brings this by and through her mother and natural guardian Michelle Eaves. R.E. is presumed to have
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sustained damage to her brain at birth. In addition to diagnoses of cerebral palsy and mental retardation, R.E. also has, among other things, an intractable seizure disorder, chronic aspiration, asthma, dysphagia, obstructive sleep apnea, hypothyroidism and brittle bones. Defendants are applying GAPP policies to R.E.’s receipt of nursing services that deny, reduce and limits the amount of nursing services she can receive through GAPP. As a result of Defendants’ application of GAPP “weaning” policies, R.E.’s nursing hours were reduced from 60 to 52 hours. R.E.’s doctors have been are requesting that she receive 84 hours of nursing care, but once “weaned,” GAPP policies severely curtail R.E.’s ability to obtain an increase in nursing hours when determined to be necessary for her.
10. At all times relevant to the allegations in this Second Amended Complaint, all Plaintiffs have been and continue to be eligible to receive Medicaid benefits and receive nursing services through GAPP.
11. Defendant David A. Cook (Defendant Cook) is the Commissioner of Georgia’s Department of Community Health (DCH). This action is brought against
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Defendant Cook in his official capacity as the Commissioner of the Department of Community Health (DCH).
12. The State of Georgia participates in the Medicaid program, a voluntary federal – state partnership for payment of certain healthcare for persons eligible to receive Medicaid.
13. DCH is the state agency that administers the Medicaid program in Georgia. (Throughout this Complaint, Defendant Cook and DCH will at times be referred to collectively as “DCH.”)
14. Defendant Georgia Medical Care Foundation, Inc. (GMCF) is a domestic, non-profit corporation, currently authorized to do business in this state.
15. DCH has delegated tasks involved in the administration and operation of Georgia’s Medicaid program to Defendant GMCF.
16. Among other things, DCH delegated to Defendant GMCF review of requests submitted by Medicaid providers to obtain prior authorization of Medicaid
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payment for certain medical services for Medicaid recipients, including children under the age of 21 years.
17. Upon information and belief, DCH delegated to Defendant GMCF other matters of administration and policy dissemination through communication with and training of Medicaid providers.
18. The Medicaid Act requires states participating in Medicaid to provide certain services to Medicaid-eligible beneficiaries under age 21 years.
19. The provisions of the Medicaid Act specific to beneficiaries under age 21 years are known as Early and Periodic Screening, Diagnostic and Treatment, or EPSDT, set forth at 42 U.S.C. §1396d(r). EPSDT is an enumerated category of service under
the Medicaid Act, 42 U.S.C. §1396d(a)(4)(B).20. The EPSDT provisions of the Medicaid Act include 42 U.S.C. §1396d(r)(5), which requires that states provide to children
“[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and
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conditions discovered by the screening services, whether or not such services are covered under the state plan.”
21. Georgia law defines “medically necessary services” to mean “services or treatments that are prescribed by a physician or other licensed practitioner and which, pursuant to the EPSDT Program, diagnose or correct or ameliorate defects, physical and mental illnesses, and health conditions, whether or not such services are in the state plan.” O.C.G.A. § 49-4-169.1(4)
22. In Georgia, the phrase “correct or ameliorate” has been defined by state statute to mean to “improve or maintain a child’s health in the best condition possible, compensate for a health problem, prevent it from worsening, prevent the development of additional health problems, or improve or maintain a child’s overall health, even if treatment or services will not cure the recipient’s overall health.” O.C.G.A. § 49-4-169.1(1).
23. The phrase “conditions discovered by the screening services” in section 1396d(r)(5) refers to the unclothed physical examination described at 42 U.S.C. § 1396d(r)(1).
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24.
The reference to “subsection (a)” referred to in 42 U.S.C. §1396d(r)(5) refers to 42 U.S.C. §1396d(a) of the Medicaid Act which lists broad categories of healthcare services that are covered by the Medicaid Act.
25. Private duty nursing is one of the enumerated categories of service under subsection (a), i.e., 42 U.S.C. §1396d(a)(8).
26. “Private duty nursing” is defined in the Code of Federal Regulations, 42 C.F.R. §440.80. In pertinent part, private duty nursing is defined as “nursing services for recipients who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility….”
27. Under 42 C.F.R. §440.80, private duty nursing must be provided by a registered nurse or a licensed practical nurse under the direction of the recipient’s treating physician.
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28. As a state participating in the Medicaid program, Georgia must provide private duty nursing as defined at 42 C.F.R. §440.80 to Medicaid eligible children under age 21 years when this service is found by a child’s treating physician to be necessary to correct or ameliorate a child’s condition or illness.
29. The Georgia Pediatric Program (or GAPP) was created by DCH for administrative convenience to bundle together the administration of in-home private duty nursing for Medicaid-eligible children under 21 years old with a special waiver program for a medically fragile daycare service for Medicaideligible children under age 5 years.
30. Until recently, DCH and GMCF referred to the in-home nursing component of its GAPP program as “private duty nursing.”
31. Once DCH acknowledged that its GAPP program does not actually provide “private duty nursing” as that service is defined at 42 C.F.R. §440.80, DCH, GMCF, and the GAPP Manual all refer to all in-home nursing services for children as “skilled nursing in shifts.”
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32. At all times relevant to the allegations of this Complaint, DCH has had policies and procedures for its administration of the GAPP program. The published policies and procedures are to be found in the GAPP Manual. The most current manual is located at the following webportal:
https://www.mmis.georgia.gov/portal/Portals/0/StaticContent/Public/ALL/HANDBOOKS/Georg ia%20Pediatric%20Program-GAPP%2023-06-2011%20114124.pdf
33. DCH requires all providers and service recipients of GAPP nursing services and their families to adhere to the policies and procedures set forth in the GAPP manual for the provision of any Medicaid-funded nursing services for children in Georgia.
34. DCH has delegated to GMCF the task of reviewing and deciding whether to approve or deny all requests for nursing services that are made on behalf of Medicaid-eligible children seeking nursing services in Georgia.
35. On behalf of DCH, Defendant GMCF reviews all of the requests submitted by physicians and nursing agencies seeking prior approval for private duty nursing
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or any other form of nursing service sought by Medicaid-eligible individuals under the age of 21 years in Georgia.
36. Defendant GMCF applies the policies and procedures set forth in the GAPP Manual in determining whether to approve any in-home nursing services under GAPP.
37. Defendant GMCF has been involved in the development of the policies and procedures to be applied by its staff in making prior approval decisions for nursing services for children.
38. Staff at GMCF who review these prior approval requests meet as needed and quarterly with DCH staff and DCH lawyers to discuss how GMCF is to apply DCH policies and procedures when reviewing requests for in-home nursing services made under GAPP.
39. Whenever GMCF’s decision to deny Medicaid coverage for private duty nursing requested for an eligible child is appealed, GMCF’s staff is required to provide testimony for DCH at appeals hearings.
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40. The staff at GMCF who review these prior approval requests and DCH staff conference or meet as needed and quarterly with nursing agency providers to train agency staff and answer questions about the policies that GMCF will apply when reviewing requests for in-home nursing services made under GAPP.
41. DCH has provided training to GMCF staff about how to conduct themselves as witnesses at appeals hearings.
42. GMCF applies the policies and procedures of the GAPP program to deny requests for prior approval for nursing services, either by denying approval for any services or by approving less of the service than was requested.
43. GMCF implements the policies and procedures of the GAPP program by imposing weaning schedules upon GAPP members whose own physicians and nurses have not recommended that the member’s services should be reduced over time.
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44. GMCF applies GAPP policies and procedures to limit the number of Medicaid-funded private duty nursing hours that any child can receive, regardless of what the child’s treating physicians have determined the child needs.
45. GMCF makes its decisions about requested increases in hours or requests to maintain hours based upon whether the condition of the child has worsened enough during the previous review period.
46. Defendant GMCF makes all decisions about the “medical necessity of the child” [sic] for any nursing services that will be provided to Medicaid-eligible children in Georgia in the manner that DCH has directed GMCF to make such determinations.
47. Some of the DCH policies applied by GMCF in its determination of the “medical necessity of the child” [sic] and prior approval decisions are not reflected in the published GAPP Manual.
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48. GAPP policy that it will not cover nursing services for “individuals requiring excessive hours of skilled nursing care for an extended period or for an indefinite period of time” is not based upon what is medically necessary for the child.
49. Among the policies and practices of GAPP is its limitation on the types of Medicaid-funded services that can be received when receiving any services under the GAPP program.
Plaintiff Marketric Hunter 50.
Marketric, now age 10, was a Medicaid beneficiary when he nearly drowned as a toddler. The near drowning caused a prolonged loss of oxygen to Marketric’s brain and caused devastating and irreparable neurologic injury.
51. As a result of this catastrophic brain damage, Marketric has developed many serious and incurable conditions including -- but not limited to -- static encephalopathy, cerebral palsy, spastic quadriplegia with sustained clonus in all four extremities, intractable seizure disorder, chronic lung disease, chronic upper
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airway obstruction, gastro esophageal reflux, scoliosis with curvatures, and severe mental retardation.
52. Even though Marketric has severe health conditions that cannot be cured, these conditions and related conditions must be medically managed.
53. Marketric’s health conditions are difficult to control and can quickly become life-threatening. Marketric’s physicians, DCH and GMCF all agree that Marketric is a child who is “medically fragile.”
54. Because his health conditions are difficult to control and can quickly become life-threatening, Marketric’s physicians have determined that Marketric needs to receive the healthcare service “private duty nursing” in his home so that he can stay as healthy as possible, to compensate for the multiple health conditions he has, to improve or prevent these conditions from worsening, and to keep him from developing new problems.
55. When he is most healthy, Marketric is alert and attempts to communicate. Marketric is too medically fragile and prone to infection to attend school outside of
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his home, so he receives services and therapies at home to, among other things, help him communicate better.
56. Marketric’s physicians have determined that Marketric can and should live at home and receive his healthcare there as opposed to keeping him in a hospital.
57. Marketric’s treating physicians have been prescribing in-home private duty nursing services for Marketric for at least five (5) years.
58. With each application for prior approval for private duty nursing services submitted on behalf of Marketric during the past five years, the nurses and physician making the applications have provided Defendants with extensive documentation of Marketric’s medical conditions and health care needs.
59. At all times relevant to the allegations in this Complaint, DCH has made or has administered payments for any Medicaid-funded healthcare that Marketric has received, and DCH has had available to it detail concerning the providers, types of healthcare service, the dates, and costs, including all such costs and services associated with periods of hospitalization, emergency room visits, medication
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changes, physician services, and similar services throughout the at least the past five years.
60. Prior to Defendants’ failure to approve the request for an increase in nursing hours giving rise to this case, Defendant GMCF had been engaged in a consistent reduction in the number of approved nursing hours for Marketric.
61. Defendants have been weaning and reducing the number of approved hours based upon their determination that Marketric is “chronically stable” and not ever going to get better.
62. Previously, and notwithstanding his treating physicians’ determination that greater numbers of private duty nursing hours are medically necessary for Marketric, Defendant GMCF had first capped Marketric’s hours at 84 hours per week and had then reduced his hours to 70 hours per week.
63. On May 7, 2008, Ms. Lynah received a notice from Defendant GMCF that Marketric’s nursing hours were being reduced from 70 to 63 hours per week,
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because he had not been in the hospital in the previous three month period and because he had not had any exacerbation in his “disease process.”
64. Ms. Lynah appealed the reduction from 70 hours to 63 hours. This appeal was pending when, on September 5, 2008, Marketric was admitted to Children’s Medical Center in Augusta to have surgery to place a rod next to his spine to correct severe scoliosis.
65. For the rod to be placed in Marketric’s back, an incision was made from the back of his neck down the full length of his back.
66. As expected, after his surgery Marketric was sedated on pain medication in an effort to control his pain. Although a body cast was applied during surgery, it had to be removed because of Marketric’s particular medical and physical conditions. The surgical incision running the length of Marketric’s back prevented Marketric from receiving some respiratory treatments with medication, use of a CPT vest, and suctioning as he ordinarily would.
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67. As expected, during his recuperation, Marketric required pain medication and was at greater risk of complications. Marketric required even more intense medication, treatment, assessment, and modified positioning than he would required regularly in an effort to prevent a myriad of problems, including respiratory distress, respiratory infection, skin breakdown, increased seizure activity, and aspiration with g-tube feedings. Because of his incision, Marketric could not tolerate his normal respiratory treatment regimen. He is to be turned every hour, 24 hours per day, to keep his airway clear, while receiving all other medical interventions and skilled assessments.
68. Marketric’s primary treating physician, a Board certified pediatrician licensed to practice in the State of Georgia, determined that Marketric would require 168 hours per week of private duty nursing services after his surgery and requested Medicaid’s approval for an increase in the number of nursing hours for Marketric upon his discharge from the hospital in Augusta and return to his residence in Savannah, Georgia.
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69. Marketric’s physician and the nursing agency providing services to Marketric submitted to GMCF the physician’s request for approval of the increase to 168 hours per week on August 18, 2008 in anticipation of his surgery on September 5, 2008.
70. The request for an increase in hours had not been approved or denied when this action was filed. It is the policy and practice of Defendants to ignore or delay consideration of time-sensitive requests for increases in hours until after the critical time has passed in order to avoid giving any notice, reason or right to appeal.
71. After Marketric’s nursing hours were decreased in accordance with GMCF’s plan adopted by the Court, Marketric was hospitalized two more times for respiratory infections and post-surgical complications.
72. During this post-surgical period, DCH denied approval for payment for one of the medications prescribed for Marketric by his treating physician to treat an infection. The only way that Marketric could get the medication determined to be medically necessary for him was for him to be admitted to the hospital.
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73. GMCF applies GAPP policies and procedures to limit the number of Medicaid-funded provide duty nursing hours that Marketric can receive, regardless of what his treating physicians have determined that he needs.
74. Defendants did not apply the EPSDT “correct or ameliorate” standard to any of the requests for nursing services for Marketric.
75. On August 18, 2008, Defendant GMCF’s employees received the request submitted by Marketric’s physician and nursing agency under GAPP to increase his approved hours of nursing services to 168 hours after his surgery on September 5, 2008, during his period of recuperation.
76. Ms. Lynah, Marketric’s adoptive mother, has never received any written notice from Defendant GMCF or Defendant Cook that the August 18th request has been approved or denied.
77. GMCF has failed to timely consider Marketric’s physician’s request that Marketric receive 168 hours per week of nursing services until his physician
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determines that he has sufficiently recovered from his surgery to allow a reduction in this level of service.
78. Marketric was discharged home from Children’s Medical Center on September 16, 2008, without the necessary nursing services that his physician has prescribed.
79. Because Marketric receives some nursing services under the GAPP program, he has been denied access to other Medicaid funded services.
80. As a result of Defendants’ acts and omissions, Marketric has been and is being denied services essential to his health and is suffering irreparable injury.
Plaintiff S.R. 81.
Plaintiff S.R. is currently 4 years old and is Medicaid-eligible. 82.
She was born prematurely at 26 weeks gestation. Her twin died shortly after birth.
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83. S.R.’s medical diagnoses include of Reactive Airway Disease, chronic rhinitis, dysphagia, gastroesophageal reflux, cerebral palsy and seizure disorder.
84. S.R. needs administration of multiple inhaled respiratory treatments, daily skilled health assessments, G-J-tube care, G-J tube-feedings, oxygen administration, monitoring of oxygen saturation, monitoring vital signs, aspiration precautions, suctioning, and the administration of multiple seizure and other medications through the G-J tube. In addition, S.R. has a shunt which must be monitored for proper function. S.R. is completely dependent upon others for all of her medical and other care.
85. During the six months immediately preceding the filing of this Second Amended Complaint, S.R. has had multiple emergency room visits for respiratory illnesses and one for an increase in seizures for which she was transported by ambulance.
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86. S.R.’s mother, S.R.’s primary caregiver, feels that she would be unable to respond appropriately in the event of an emergency involving S.R. at home. She is now in early pregnancy and is unable to assist in lifting S.R.
87. Although S.R.’s physician has opined that in his medical judgment, his patient needs 60 hours per week of nursing, S.R. had only been approved for 40 hours per week of nursing through the GAPP program.
88. S.R.’s physicians have maintained that S.R. needs 60 hours of skilled nursing per week and that 40 hours is not appropriate or sufficient to meet S.R.’s medical needs.
89. S.R.’s underlying diagnoses are life-long conditions that will not be cured. At the same time, S.R. is a “medically fragile” child and she requires skilled nursing care and other health care to ameliorate her multiple conditions, i.e. “to improve or maintain [her] health in the best condition possible, compensate for a health problem, prevent it from worsening, prevent the development of additional
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health problems, or improve or maintain [her] overall health, even if treatment or services will not cure [her] overall health.” O.C.G.A.§ 49-4-169.1(1)
90. S.R., through her parents, was notified by Defendants that the number of skilled hours that she would be allowed to receive through the GAPP program would be reduced in accordance with the weaning schedule outlined by Defendants in the notice.
91. By this notice, Defendants advised that S.R.’s skilled nursing hours were being reduced from 40 hours per week to 36 hours per week to 32 hours per week.
92. Defendants applied GAPP policy to S.R. and imposed a weaning schedule to reduce, deny or limit the amount of skilled nursing services that are available to S.R.
93. In providing notice of the implementation of its weaning policy, Defendants advised that S.R. had “received the same amount of nursing hours since 1/20/08.”
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94. In 2010, Defendants threatened to reduce S.R.’s approved nursing hours but withdrew the adverse action after S.R. appealed.
Plaintiff J.M. 95.
J.M., a 15 year old Medicaid-eligible child, lives with his grandmother in Atlanta, Georgia. His grandmother is aging and experiences health problems. J.M. already receives 98 hours of the intense, skilled care that he needs from his grandmother acting as a substitute for professional nursing care.
96. J.M. was diagnosed with a brain tumor in 2003. He had surgery, radiation and chemotherapy and subsequently experienced numerous brain hemorrhages (bleeding), radiation necrosis (tissue death), spastic quadriparesis (near total paralysis), and a seizure disorder. Subsequently, he suffered from anoxic brain damage (loss of oxygen to the brain) after a cardiopulmonary arrest, fever and status epilepticus (uncontrolled, prolonged seizure). Now, his ability to interact with others is extremely limited and subtle. He suffers from bowel obstructions, dysphasia (inability to swallow), gastrointestinal dysfunction requiring bowel regimen, cathartics, rectal tub and g-tube venting, pancreatitis (inflammation of the
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pancreas) and heptomegaly (enlarged liver). He suffered cardiopulmonary arrest in 2009 and ventricular tachycardia in 2009. He has pulmonary insufficiency and requires 24 hour ventilator support and a tracheostomy. He has a history of pulmonary arrest in 2003 and respiratory failure in 2009. He suffers from endocrine dysfunction requiring hormone replacement therapy and adrenal insufficiency requiring additional medications. He requires ongoing assessment and treatment for edema, sodium wasting, central hypoventilation syndrome, hypernatremia and diabetes mellitus. He requires 24 hour nursing support to meet his medical needs.
97. J.M. was previously approved for 84 hours of skilled nursing through the GAPP program. This amount was reduced pursuant to GAPP’s weaning policy to 70 hours. Recently, J.M. was again notified that his nursing hours were being further reduced to 63 hours per week. While J.M.’s appeal of this reduction was pending, Defendants withdrew its adverse action and approved 70 hours of skilled nursing during the current approval period.
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Plaintiff R.E. 98.
Plaintiff R.E. is 14 year old, Medicaid – eligible child residing with her parents and younger siblings in Atlanta, Georgia.
99. It is presumed that R.E. suffered perinatal asphyxia as a newborn. R.E.’s medical diagnoses include cerebral palsy, mental retardation, intractable seizure disorder, microcephaly, premature Adenarche, gastroesophageal reflux, slow bowel motility, trachiamalasia, chronic aspiration, asthma, chronic rhinitis, dysphagia, obstructive sleep apnea, hypothyroidism and brittle bones.
100. R.E.’s intractable seizure disorder has been linked to deterioration in her airway function. In the context of her seizures, her secretions increase and she requires intensive airway management with suctioning and positioning to maintain her airway. She also requires close monitoring and intervention due to sudden heart rate increase and decrease in oxygen saturation levels during seizures. Independent of her seizures, R.E. has episodes of choking on her own secretions as she cannot successfully clear those secretions on her own. She needs close monitoring and treatment to prevent aspiration pneumonia and oxygen deprivation.
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Treatment involves frequent suctioning related to increased copious oral secretions, administration of up to 3 LPM of oxygen, close observation for respiratory distress, and the administration of nebulizer treatments every four hours and VEST treatments twice daily. She receives medications and nutrition via Jtube which requires close visual monitoring for reflux, aspiration, and proper tube placement and functioning. Her nutrition is delivered by use of a feeding pump on a continuous 18 hours schedule at a low rate.
101. R.E.’s approved hours of nursing through the GAPP program were reduced from 60 hours per week to 52 hours per week as part of the GAPP program’s weaning policy in spite of a general decline in R.E.’s health as indicated by multiple visits to the emergency room.
102. R.E. now needs to be on oxygen at night with more aggressive respiratory therapy, she has had visits to the emergency room, and she was recently hospitalized for 4 days due to increased seizures and respiratory complications. Another previous visit to the emergency room was due to a foot injury during a transfer. X-rays showed her bones to be fragile and prone to easy breakage.
103.
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Three of R.E.’s physicians have rendered opinions that R.E.’s current and deteriorating condition requires that she receive 84 hours of intense nursing care. Each doctor explained the specific reasons why increased nursing was medically necessary for R.E.
104. Defendant GMCF denied the requested increase, restoring only the 8 hours taken away in the “weaning” it had decided to implement.
Plaintiff Zachary Royal 105.
Plaintiff Zachary Royal is an 18 year old young man who lives with his father near Vienna, Georgia, in rural Dooley County. Zachary’s mother Laura passed away in 2007.
106. Zachary has Spinal Muscular Atrophy Type 1 which affects all parts of his neuromuscular system and puts him at high risk for respiratory infections including pneumonia. It is well-documented that most children with SMA die from complications of respiratory infections. Zachary’s disease process results in poor clearance of upper and lower airway secretions, hypoventilation during sleep, and
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chest wall weakness. In addition, Zachary has asthma. He requires use of a Nasal Bipap at night with oxygen and supplemental oxygen as needed during the day. His oxygen saturation levels are trending down now, and he reports symptoms of air hunger. In order to ameliorate the effects of his disease, he must be monitored closely and given scheduled and as needed in-exsufflator, nebulizer and Theravest treatments. Because his cough is too weak to adequately clear his airway, he must be suctioned as needed. As his condition is worsening, his ability to chew and swallow are compromised.
107. Zachary has now received notice that his nursing hours are being reduced through implementation of a weaning schedule. Zachary’s hours are being weaned from 84 hours to 70 hours without agreement from his treating physicians or nursing agency.
Class Allegations 108.
Pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, individual named Plaintiffs Marketric Hunter, Zachary Royal, S.R., R.E., and J.M. bring this action on half of themselves and all other persons similarly situated. Plaintiffs bring this action on behalf of a class consisting of “all present or future
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Medicaid-eligible individuals under age 21 years who receive private duty nursing or skilled nursing services through the GAPP program whose nursing services have been or will be denied, reduced or terminated by application of the policies and practices of the Georgia Pediatric Program (GAPP), and all GAPP recipients who will be denied other Medicaid services for which they are eligible as a result of the application of GAPP policies.
109. The Plaintiff Class is so numerous that joinder of all of it members is impracticable. Upon information and belief, there are 600-800 persons in this Class, almost all of whom have had their nursing hours reduced or denied in the past year.
110. Common questions of law and fact predominate over questions affecting individual Class members. Questions of law and fact common to members of the Class include but are not limited to whether the GAPP program policies and procedures and their implementation and application violate provisions of the Medicaid Act, the ADA and the U.S. Constitution.
111. The claims of the individual named plaintiffs are typical of the claims of the Class as a whole and are typical of the claims of the subclasses in that the
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individual named plaintiffs and members of the Plaintiff Class currently are eligible to receive Medicaid-funded EPSDT services including nursing care and qualified individuals with disabilities who will be affected similarly by the application of the policies and practices of the GAPP program. The claims arise from the same unlawful and discriminatory policies and practices of Defendants. The individual named plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole. The individual named plaintiffs do not have any interests antagonistic to those of other members of the Plaintiff Class. By filing this action, the individual named plaintiffs have displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The relief sought by the individual named plaintiffs will inure to the benefit of members of the Plaintiff Class generally. Plaintiffs are represented by counsel who are experienced, skilled, and knowledgeable about civil rights litigation, disability discrimination, Medicaid law, and practice and procedure in the federal courts.
112. Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(2) because Defendants have acted, refused to act, or will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate with respect to the Plaintiff Class as a whole.
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113. Members of the Plaintiff Class share a common need for nursing services and Defendants’ policies and actions in limiting, reducing or terminating nursing services or other Medicaid funded services.
COUNT ONE 114.
The allegations contained in the numbered paragraphs above are incorporated by reference as if set forth herein verbatim.
115. Under the EPSDT provisions of the Medicaid Act, 42 U.S.C. §1396d(r), the named Plaintiffs and members of the Plaintiff Class have a right to receive Medicaid-funded private duty nursing services that their treating physicians have determined are necessary to improve their health or maintain their health in the best condition possible, to compensate for a health problem, to prevent a health problem from worsening, to prevent the development of additional health problems, or to improve or maintain their overall health, even if treatment or services will not cure their overall health.
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116. Defendants’ failure to timely provide private duty nursing services as prescribed by the treating physicians of the named Plaintiffs and members of the Plaintiff Class increases the risk to them that one or more of their health problems will worsen, develop additional complications, hospitalization, and even death.
117. The named Plaintiffs and members of the Plaintiff Class have suffered, continue to suffer, and will suffer irreparable injury as a result of, inter alia, Defendants’ refusal to approve the requests submitted by the treating physicians of the named Plaintiffs and the Plaintiff Class as medically necessary to correct or ameliorate their multiple and complex conditions.
118. The potential for harm to the Defendants is negligible if Defendant Cook is required to provide private duty nursing hours as prescribed by the treating physicians of the named Plaintiffs and the Plaintiff Class.
119. The named Plaintiffs and the Plaintiff Class has a substantial likelihood of success on the merits of their claims based upon Defendants’ violation of the Medicaid Act, 42 U.S.C. §§1396a et seq.
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120. It is in the public interest that the named Plaintiffs and the Plaintiff Class receive healthcare services covered by the Medicaid Act in the manner that his physician determines are necessary to provide medically necessary care at home and to avoid the increased risk of illness, hospitalization, and death that is created by limiting or reducing the medical care he receives.
121. This is a proper case for the entry of a temporary restraining order to limit further and greater irreparable harm to the named Plaintiffs and the Plaintiff Class under Fed.R.Civ.P. 65(b).
COUNT TWO 122.
The allegations contained in the numbered paragraphs above are incorporated by reference as if set forth herein verbatim.
123. Defendants have, by the actions and inactions set forth above, violated the Medicaid Act, 42 U.S.C. §§1396 et seq., and its implementing regulations by: (a) denying the named Plaintiffs and the Plaintiff Class all services to which they are entitled under EPSDT, in violation of 42 U.S.C. §1396d(r)(5);
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(b) failing to inform the named Plaintiffs and the Plaintiff Class of the scope of services available under the EPSDT benefit of the Medicaid program, in violation of 42 U.S.C. §1396a(a)(43)(A);
(c) denying and reducing EPSDT services in amount, duration and scope because of the diagnosis, type of illness or condition of the named Plaintiffs and the Plaintiff Class, in violation of 42 C.F.R. §§440.230(b) and (c);
(d) denying services to the named Plaintiffs and the Plaintiff Class on the basis of cost, in clear violation of the Medicaid Act;
(e) failing to provide adequate written notice of its decisions to deny or reduce benefits;
(f) ignoring requests for Medicaid-funded services; (g) failing to provide access to Medicaid-funded services with reasonable promptness; (h) making arbitrary and capricious decisions to deny or reduce Medicaidfunded services to the named Plaintiffs and the Plaintiff Class and/or creating justifications for those decisions after the named Plaintiffs and the Plaintiff Class have sought to challenge them;
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(i) failing to provide the named Plaintiffs and the Plaintiff Class with a meaningful opportunity to be heard and the means by which they might challenge any reduction or denial of Medicaid-funded services to them;
(j) refusing to allow nurses to travel with the named Plaintiffs and the Plaintiff Class to the doctor’s office;
(k) refusing to consider the requests of treating physicians for nurses to travel with the named Plaintiffs and the Plaintiff Class and then refusing to provide notice of the denial of services;
(l) refusing to apply the proper legal standard for medical necessity to the approval of nursing services;
(m) denying services to the named Plaintiffs and the Plaintiff Class because their “disease process” has not deteriorated enough;
(n) refusing to actually provide Medicaid-funded “private duty nursing” to the named Plaintiffs and the Plaintiff Class, as that service is defined in 42 C.F.R. §440.80.
124. The right to receive the EPSDT benefits to which the named Plaintiffs and the Plaintiff Class are entitled is a right secured by the laws of the United States, including, but not limited to, the Medicaid Act. In violation of 42 U.S.C. § 1983,
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Defendants have subjected the named Plaintiffs and the Plaintiff Class to the deprivation of their rights under color of a statute, ordinance, regulation, custom, or usage of the State of Georgia.
COUNT THREE 125.
The allegations contained in the numbered paragraphs above are incorporated by reference verbatim.
126. Defendant Cook has, by the actions and inactions set forth above, violated the right to due process of the named Plaintiffs and the Plaintiff Class which is protected by the 5th and 14th Amendments to the United States Constitution by: (a) failing to provide adequate written notice of his decisions to deny or reduce services to which the named Plaintiffs and the Plaintiff Class is entitled in accordance with the Medicaid Act and a meaningful opportunity to challenge these decisions; (b) by ignoring requests for services by the treating physicians of the named Plaintiffs and the Plaintiff Class, Defendant Cook is denying to them essential Medicaid-funded services, to which they are entitled to receive in accordance with the Medicaid Act, without providing any notice, however inadequate, of the
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reasons for his decisions to deny benefits to the named Plaintiffs and the Plaintiff Class and a meaningful opportunity to challenge these decisions;
(c) making decisions about Medicaid coverage that are arbitrary and capricious;
(d) misleading the named Plaintiffs and the Plaintiff Class and their providers about the nursing service actually being provided to them under the GAPP program.
127. The named Plaintiffs and the Plaintiff Class have a protected property interest in receiving Medicaid-funded services to which they are entitled under the Medicaid Act. The right to due process of the named Plaintiffs and the Plaintiff Class when being denied or suffering the loss of protected property rights is a right secured by the 5th and 14th Amendments to the Constitution of United States. In violation of 42 U.S.C. § 1983, Defendant Cook has subjected the named Plaintiffs and the Plaintiff Class to the deprivation of their right to due process under color of a statute, ordinance, regulation, custom, or usage of the State of Georgia.
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COUNT FOUR 128.
Plaintiffs reallege and incorporate by reference herein each and every allegation and paragraph set forth previously.
129. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity or be subjected to discrimination by such entity.” 42 U.S.C. § 12132.
130. In enacting the ADA, Congress found that “[i]ndividuals with disabilities continually encounter various forms of discrimination, including … segregation . . . .” 42 U.S.C. § 12101(a)(5)
131. Regulations implementing Title II of the ADA provide: “A public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.: 28 C.F.R. §35.130(d).
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132. Defendant DCH is a public entity within the meaning of Title II of the ADA.
133. Regulations implementing Title II of the ADA provide: “A public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the entities program with respect to individuals with disabilities. . . .” 28 C.F.R. §35.130(b)(3).
134. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) held that unnecessary institutionalization of individuals with disabilities is a form of discrimination under Title II of the ADA. In doing so, the Supreme Court interpreted the ADA’s “integration mandate” as requiring persons with disabilities to be served in the community when: (1) the state determines that community –based treatment is appropriate; (2) the individual does not oppose community placement; and (3) community placement can be reasonably accommodated. Id. 527 U.S. at 607.
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135. The ADA prohibits discrimination based on type of disability.
136. The ADA’s regulations further provide that “[a] public entity should not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities form fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. §35.130(b)(8).
137. Pursuant to the ADA, public entitles are required to provide meaningful access to their programs, services and activities, and provide any accommodations or modifications necessary for the people with disabilities to access those services.
138. Each individual named Plaintiff and member of the Plaintiff Class is a “qualified individual with a disability” within the meaning of the ADA in that they (1) have physical and/or mental impairments that substantially limit one or more major life activities and meet the essential eligibility requirements in that they (2) are capable of living independently in their own homes and/or in the most
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integrated community setting possible, with assistance, and (3) meet the Georgia Medicaid income eligibility requirements.
139. Defendant’s actions have placed members of the named Plaintiffs and members of the Plaintiff Class at imminent risk of unnecessary confinement in institutions, including nursing facilities, or other out of home placement that are not the most integrated community placements possible, in violation of the ADA’s integration mandate.
140. Defendant’s discriminate against the named Plaintiffs and the Plaintiff Class members in ways that include, but are not limited to, failing to provide reasonable modifications to programs and services.
141. Defendants have utilized eligibility criteria and methods of administration that subject the named Plaintiffs and members of the Plaintiff Class to discrimination on the basis of disability, in violation of 28 C.F.R. §35.130(b)(3) & (8), and otherwise denied meaningful access to their programs, services and activities.
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142. Defendants actions discriminate against individuals whose disabilities require that they receive substantial medical supports and services including skilled nursing services on a long term basis, in that the nursing services needed are made available on a short term basis.
143. Defendants’ actions violate Title II of the ADA.
144. Pursuant to 42 U.S.C. §12133, the named Plaintiffs and members of the Plaintiff Class are entitled to declaratory and injunctive relief as well as reasonable attorney’s fees and costs incurred in bringing this action.
COUNT FIVE 145.
The allegations set forth in the numbered paragraphs above are incorporated herein as fully as if set forth verbatim.
146. Pursuant to 42 U.S.C. § 1988, the Plaintiffs should recover a reasonable attorney’s fee as part of their costs for taking action to enforce Section 1983.
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WHEREFORE, Plaintiffs respectfully requests that the Court: (a) assume jurisdiction over this action and maintain continuing jurisdiction until Defendants are in full compliance with every order of this Court; (b) certify this action as a class action and appoint the individual named Plaintiffs as Class representatives; (c) declare Defendants’ policies, practices, acts and omissions as set forth above violate the Medicaid Act, the right to due process of law under the 5th and 14th Amendments of the United States Constitution, and 42 U.S.C. §1983, and are preempted by the Supremacy Clause; (d) declare Defendants’ policies, practices, acts and omissions as set forth above violate the Americans with Disabilities Act; (e) issue a temporary restraining order and preliminary injunction to prohibit Defendants from denying nursing services to the Plaintiffs that have been prescribed by their physician as necessary for them; (f) enter a preliminary and permanent injunction against Defendants to prohibit them from denying necessary healthcare services as ordered for Plaintiffs by their primary care physicians; (g) issue preliminary and permanent injunctive relief enjoining Defendants from violating Plaintiffs’ rights to have all approvals required by Defendants issue
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promptly, without delay caused by Defendants’ prior approval process and requiring Defendants to immediately provide all medically necessary services to which Plaintiffs are entitled under the Medicaid program;
(h) issue preliminary and permanent injunctive relief enjoining Defendants from violating Plaintiffs’ right to due process and requiring Defendants to provide written notice of the specific factual reasons and specific regulations and/or policies which it has applied when threatening to reduce or when denying Medicaid-funded services to which Plaintiffs are entitled under the Medicaid program;
(i) declare that Defendants’ actions and inactions violate the Medicaid Act; (j) declare that Defendants’ actions and inactions violate his right to due process of law under the 5th and 14th Amendments to the United States Constitution; (k) award Plaintiffs their litigation expenses, including reasonable attorney’s fees; and (h) award such other relief as may be just, equitable and appropriate.
Respectfully submitted this 7th day of July, 2011.
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s/Paula Rafferty Miller Georgia Bar. No. 591756 s/Joshua H. Norris Georgia Bar No. 545854 Attorneys for Plaintiffs
Georgia Advocacy Office 150 E. Ponce de Leon Avenue, Suite 430 Decatur, Georgia 30030 Telephone: (404) 885-1234 Facsimile: (404) 378-0031 E-mail: pmiller@thegao.org
jnorris@thegao.org
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 Case 1:08-cv-02930-TWT Document 121 Filed 08/02/12 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER a minor child, by and through his mother and legal guardian, Thelma Lynah, et al.,
Plaintiffs,
v.
DAVID A. COOK Commissioner of the Georgia Department of Community Health,
Defendant.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

ORDER

This is an action seeking injunctive relief against the Georgia Department of Community Health. It is before the Courton the Plaintiffs’ Motion to Certify a Class [Doc. 93]. For the reasons set forth below, the Court DENIES the Plaintiffs’ motion.
I. Background When the First Amended Complaint was filed, the Plaintiff Marketric Hunter was a seven-year-old Medicaid beneficiary. Marketric now lives with his adoptive mother, Thelma Lynah, in Savannah, Georgi a. He experienced brain damage as a toddler and now suffers from a num ber of neurological conditions including static

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encephalopathy, cerebral palsy,and seizure disorders. Heparticipates in the Georgia Pediatric Program (“GAPP”), a subprogramof the Georgia Medicaid program through which eligible children receive in-home private duty skilled nursing services.
Defendant David Cook is the Commissi oner of Georgia’s Departm ent of Community Health (“DCH”), which administers the Medicaid program in Georgia. Defendant Georgia Medical Care Foundati on, Inc. (“GMCF”) is a non-profit corporation that, through a contractual relationship with DCH, reviews and decides all requests for priva te duty skille d nursing se rvices made on be half of M edicaideligible children under 21 in Georgia.
Hunter’s treating physicians have pr escribed in-hom e private duty skilled nursing hours since 2005. According to the Com plaint, Hunter’s allotted nursing hours have been consistently reduced inaccordance with GAPP policies. Further, in August 2008, Hunter’s physician requested an increase in hours in connection with Hunter’s upcoming spinal surgery. GMCF did not grant the request. On September 18, 2008, Hunter sued Rhonda Medows1 and GMCF under 42 U.S.C. § 1983, alleging that the Defendants had violated his rights under the EPSDT provisions of the Medicaid Act. On October 1, 2008, the Court enjoined Medows from enforcing a

1When Hunter filed his Complaint, Rhonda Medows was the Commissioner of the Georgia Department of Community Health.

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policy to limit medically necessary private duty skilled nursing services for eligible Medicaid beneficiaries under the age of 21 using criteria not based on m edical necessity. The Court also ordered the stat e to provide Hunter with the private duty skilled nursing hours provided for in a schedule set forth by GMCF [Doc. 9].
On February 11, 2010, Hunter f iled a Second Motion for Tem porary Restraining Order and Prelim inary Injuncti on [Doc. 39] . The Court granted the Plaintiff’s Motion on February18, 2010 [Doc. 47]. On July7, 2011, the Plaintiff filed a Second Motion to Am end the Complaint [Doc. 65]. On September 27, 2011, the Court granted this motion [Doc. 77]. The Second Amended Complaint added claims under Title I I of the ADA, 42 U.S.C. § 12132, class claims, and joined four new plaintiffs [see Doc. 66]. On September 12, 2011,Hunter filed a Motion to Voluntarily Dismiss GMCF [Doc. 75] . The Court granted this motion on September 14, 2011 [Doc. 76]. Finally, on April 11, 2012, the Plaintiffs filed a Motion to Certify a Class of:
all persons who now, or at any tim e in the future, are or will be Medicaid-eligible Georgia residents under the age of 21 whose Medicaid services have been or will be denied, delayed, reduced or terminated by application of illegal or unconstituti onal policies and practices of the Georgia Pediatric Program (GAPP). [Doc. 93]. The Defendant argues that the Plaintiffs’ motion is untimely and that the proposed class does not comply with Federal Rule of Civil Procedure 23.

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II. Motion to Certify Class Standard
To maintain a case as a class action, the party seeking class certification must
satisfy each of the prerequisites of Rule 23(a) and at least one of the provisions of
Rule 23(b). Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004). Rule 23(a)
sets forth the four prerequisites to maintain any claim as a class action:
[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the clami s or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
FED. R. CIV. P. 23(a). These prerequisites are com monly referred to as: (1)
numerosity, (2) com monality, (3) typicality, and (4) adequacy o f representation.
Cooper v. Southern Co., 390 F.3d 695, 711 n.6 (11th Cir.2004). Failure to establish
any one of the four factors precludes certification. In addition, under Rule 23(b), the
Plaintiffs must convince the Court that: (1) prosecuting separate actions by or against
individual members of the class would creaet a risk of prejudice to the party opposing
the class or to those members of the class not parties to the subject litigation; (2) the
party opposing the class has refused to act ognrounds that apply generally to the class,
necessitating final injunctive or declaratory relief; o r (3 ) q uestions of law or fact
common to the members of the class predominate over any questions affecting only

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individual members and that a class action is superior to other available methods for fair and efficient adjudication of the controversy. FED. R. CIV. P. 23(b). The party seeking class certification bears the burdenof proving that the requirements of 23(a) and one of the requirements of 23(b) are satisfied. General Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982); Valley Drug Co. v. Geneva Pharsm., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003).
The decision to grant or deny class certifcation lies within the sound discretion of the district court. Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1386 (11th Cir. 1998) (en banc). When considering the propriety of class certification, the Court should not conduct a detailed evaluation of the merits of the suit. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974). Nevertheless, the Court m ust perform a "rigorous analysis" of the particular facts and argum ents asserted in support of class certification. Falcon, 457 U.S. at 161; Gilchrist v. Bolge,r 733 F.2d 1551, 1555 (11th Cir. 1984). In doing so, the Court is perm itted to look beyond the pleadings to determine if certification is appropriate. Falcon, 457 U.S. at 160.

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III. Discussion A. Timeliness The Defendant contends that the Plai ntiffs’ Motion to Certify a Class is untimely under Local Rule 23.1(B). That rule states: The plaintiff shall move within ninety (90) days after the com plaint is filed for a determination under Fed. R.Civ. P. 23(c)(1) as to whether the suit may be maintained as a class action. . . . The court may extend the time upon a showing of good cause. LR 23.1(B) NDGa. Here, the Court granted Hunter’s motionto file the Second Amended Complaint on September 27, 2011 [see Doc. 77]. The Plai ntiffs filed this Motion to Certify a Class on April 11, 2012, m ore than 90 days after filing the Second Amended Complaint [see Doc. 9 3]. The Plaintiffs, howev er, were unaware of the tim e limit imposed by the Court’s Local Rule. Further,the Defendant has notargued that he has been prejudiced in any way by the delay. Nor has the Defendant argued that the Plaintiffs acted im properly to delay the proceedings. The m otion was filed soon enough to allow the Court to comply with the mandate of Rule 23(c)(1)(A). For these reasons, the Court will consider the Plaintiffs’ Motion to Certify a Class.

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B. Rule 23(a)
To warrant class certification, the Plaintiffs must satisfy all four requirements
under Rule 23(a) and at least one of the requirements of Rule 23(b). Rule 23(a)
provides that:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class,(3) the claims or defenses of the representative parties are typical of the claim s or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). These require ments are referred to as “num erosity,”
“commonality,” “typicality,” and “adequacy.”
To satisfy the numerosity requirement, the Plaintiffs must show that joinder of
all members of the p utative class would be “im practical.” Fed. R. Civ. P. 23(a).
“Practicability of joinder depends on many factors, including, for example, the size
of the class, ease of identifying its numbers and determining their addresses, facility
of m aking service on them if joined and their geographic dispersion.” Kilgo v.
Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986).“[W]hile there is no fixed
numerosity rule, generally less than twenty -one is inadequate, m ore than forty
adequate, with numb ers b etween varyi ng according to other factors.” Cox v.
American Cast Iron Pipe Co. , 784 F.2d 1546, 1553 (11th Cir. 1986) (internal

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quotations omitted). Further, “[w]hen the exact number of class members cannot be ascertained, the court may make ‘common sense assumptions’ to support a finding of numerosity.” Susan J. v. Riley, 254 F.R.D. 439, 458 (M.D. Ala. 2008) (quoting Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983)). Nevertheless, “a plaintiff still bears the burden of making some showing, affording the district court the means to make a supported factual finding, that the class actually certified meets the numerosity requirement.” Vega v. T-Mobile USA, Inc. , 564 F.3d 1256, 1267 (11th Cir. 2009).
In Riley, the plaintiffs sought to certify a subclass of those wrongly denied an available waiver slot in Alabama’s Ho me and Community Based Waiver program. The plaintiffs presented evidence that over 1,600 people were on the waiting list for the program. The court, however, found that the plaintiffs had not established the numerosity requirement. Specifically, the court reasoned that there was no evidence showing how many open waiver slots existed, or how many individuals on the waiting list had been denied an open slot.
Similarly, in Vega, the plaintiff sought to certifya class consisting of T-Mobile associates employed in Florida. The plaintiff produced evidence that T-Mobile had employed thousands of associates over therelevant period. Based on this testimony, the district co urt certified a class of Fl orida employees. The Eleventh Circuit

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reversed, finding insufficient evidence of numerosity. The court reasoned that although there was evidence relating to a na tionwide class, “[the plaintiff] has not cited, and we cannot locate in the record,any evidence whatsoever . . . of the number of retail sales associates T-Mobile employed during the class period in Florida who would comprise the membership of the class, as certifiedby the district court.” Vega, 564 F.3d at 1267 (emphasis in original). The court noted that “T-Mobile is a large company, with many retail outlets, and, as such, it might be tempting to assume that the number of retail sales asso ciates the company employed in Florida during the relevant period can overcome the generally low hurdle presented by Rule 23(a)(1).” Id. Nevertheless, “the district court's inference of numerosity for a Florida-only class without the a id of a shre d of Fl orida-only e vidence w as a n e xercise i n she er speculation.” Id.
Here, as in Rileyand Vega, the Plaintiffs have offered testimony that more than 500 individuals receive private-duty nursing services through the GAPP program[see Docs. 93-2 & 93-3] .2 Also as in Riley and Vega , however, the Plaintiffs have not produced any evidence as to the number of individuals who have had their benefits altered u nder GAPP policies. Compare Pashby v. Cansler , 279 F.R.D. 347, 353

2The Plaintiffs also allege that the calss consists of “600-800 persons” [Doc. 66, ¶ 109]. “[M]ere allegations of numerosity, [however], are insufficient to meet” the numerosity requirement. Evans, 696 F.2d at 930.

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(E.D.N.C. 2011) (certifying class of current and future Medicaid recipients who have or will have benefits cut where plaintiffs showed that 2,405 putative class members had benefits cut as a result of defe ndant’s policies); Belton v. Georgia, No. 10-CV0583, 2011 WL 925565, at *3 (N.D. Ga. March 14, 2011) (certifying class of deaf mentally ill individuals who could not receive therapeutic care under Georgia policy where plaintiff presented testimony that there were 3,387 individuals who might need such care).
The proposed class does not consist ofall individuals receiving benefits under GAPP. Rather, the putative cl ass i ncludes only those whose benefits have been reduced, delayed, or denied due to GAPP po licies. The Plaintiffs have offered no evidence indicating how large this class ofnidividuals might be. Indeed, the Plaintiffs have presented no evidence of the number ofindividuals whose benefits have been cut for any reason. Although it is tempting to assume that some percentage of the 500 to 600 individuals in the GAPP program have or will have their benefits reduced or eliminated, “a plaintiff still bears th e burden of establishing every elem ent of Rule 23.” Vega, 564 F.3d at 1267 (finding district court’s “inference of numerosity for a Florida-only class without the aid of a shrde of Florida-only evidence was an exercise in sheer speculation.”). Thus, “[w]hile it is true that the Court could make common sense assumptions to estimate the size of the putative [] class, Plaintiffs have not

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provided even enough information for the Court to guess if the []class members are too numerous to join.”3 Riley, 254 F.R.D. at 458. For thisreason, the Plaintiffs have failed to establish numeros ity under Rule 23. The Court need not address the remaining requisites for certification under Rule 23.
IV. Conclusion For the reasons set forth above, the Court DENIES the Plaintiffs’ Motion to Certify a Class [Doc. 93]. SO ORDERED, this 2 day of August, 2012.
/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

3As discussed above, the Plaintiffs “need not show the precise num ber of members in the class.” Evans, 696 F.2d at 930. Rather,evidence showing how often the Defendant reduced or elim inated benefits, along with the total num ber of individuals in the GAPP program, could aid the Court in making a “common sense” assumption. The Plaintiffs have offered no such evidence here.

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 Case 1:08-cv-02930-TWT Document 9 Filed 10/01/08 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER, a minor child, by and through his mother and legal guardian, THELMA LYNAH,

Plaintiff, vs.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

RHONDA MEDOWS, in her Official Capacity as Commissioner of the DEPARTMENT OF COMMUNITY HEALTH, and GEORGIA MEDICAL CARE FOUNDATION, INC., a Georgia corporation,

Defendants.

ORDER ON PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER This is an action for injunctive and declaratory relief in which the Plaintiff claims that the Defendants are violating his rights under the EPSDT provision of the Medicaid Act, 42 U.S.C. § 1396d(r). Before the Court is the Motion of Plaintiff Marketric Hunter, a minor child, by and through his mother and legal guardian, Thelma Lynah, for a Temporary Restraining Order pursuant to Fed.R.Civ.P. 65(b). Plaintiff’s Motion was filed on September 18, 2008,

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contemporaneously with his original Verified Complaint, Memorandum in Support
of Motion for Temporary Restraining Order and Preliminary Injunction and
Affidavit of Saad Hammid, M.D. The Court scheduled a hearing for September
22, 2008, at 11:00 a.m., at which time the Court heard argument from counsel for
all parties.
The provisions of law which govern this matter are set forth in this Court’s
Order in Moore v. Medows, 563 F.Supp.2d 1354 (N.D.Ga. 2008). That order
provides in pertinent part:
The [Medicaid] Act now mandates that states which participate in the Medicaid program provide “early and periodic screening, diagnostic and treatment services” as needed “to correct or ameliorate defects and physical and mental illnesses.” 42 U.S.C. § 1396d(r)(5). Providing the necessary services for those under the age of 21 is not optional for a state; the appropriate care must be provided “whether or not such services are covered under the State plan.” Id. The Court of Appeals for the Eleventh Circuit has held that: “The language of subsection (r)(5) appears to mandate coverage for all medically necessary treatment for eligible recipients under age twenty-one.” Pittman v. Secretary, Florida Dept. of Health and Rehabilitative Services, 998 F.2d 887, 889 (11th Cir. 1993). The state has no discretion to deny funding of medically necessary treatment. Id. at 892. Private skilled nursing is an enumerated category of treatment under the Medicaid Act. 42 U.S.C. § 1396d(a)(8).
The only pertinent inquiry is the amount of nursing hours “necessary…to correct or ameliorate” the Plaintiff’s condition. 42 U.S.C. § 1396d(r)(5)…. The state must provide for the amount of skilled nursing care which the Plaintiff’s treating physician deems necessary to correct or ameliorate [the Plaintiff’s] condition. Id., 1356-57
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There is no claim by the State that there is any fraud or other suggestion that Plaintiff’s treating physician, Dr. Hammid, is not a competent and professional physician who honestly and in good faith has prescribed 168 hours per week of nursing care for the Plaintiff.
Based upon the pleadings and evidence before the Court, and the arguments of the parties’ counsel, the Court finds that Plaintiff has a substantial likelihood of success on the merits, there is a danger of irreparable injury to Plaintiff, the balancing of equities favors the Plaintiff, and it’s in the public interest that the Plaintiff receive the treatment that his pediatrician has prescribed pending further review of the matter by the Georgia Medical Care Foundation and further consideration by the Court of the Plaintiff’s request for relief. Having so found, the Court GRANTS Plaintiff’s Motion for a Temporary Restraining Order and hereby ORDERS as follows:
1. Defendant Rhonda Medows, in her official capacity as the Commissioner of the Department of Community Health, is hereby enjoined from denying the request of Plaintiff’s treating physician for 168 hours per week of private duty nursing services from 12:00 p.m., September 22, 2008, until the scheduled hearing on Plaintiff’s Motion
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for a Preliminary Injunction which Motion has scheduled for 11:00 a.m., September 29, 2008. 2. Plaintiff is not required to provide any bond or security. SO ORDERED this 22nd day of September, 2008.

THOMAS UNITED

/s/Thomas W. Thrash W. THRASH, JR., JUDGE
STATES DISTRICT COURT

Prepared and presented by:
s/ Joshua H. Norris Joshua H. Norris Georgia Bar No. 545854 Attorney for Plaintiff
Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue Suite 430 Decatur, Georgia 30030 Telephone: (404) 885-1234 Facsimile: (404) 378-0031 E-mail: jnorris@thegao.org

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 Case 1:08-cv-02930-TWT Document 15 Filed 11/03/08 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER, a minor child, by and through his mother and legal guardian, THELMA LYNAH,
Plaintiff, vs. RHONDA MEDOWS, in her Official Capacity as Commissioner of the DEPARTMENT OF COMMUNITY HEALTH, and GEORGIA MEDICAL CARE FOUNDATION, INC., a Georgia corporation, Defendants.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

This is an action for injunctive and declaratory relief in which the Plaintiff

claims that the Defendants are violating his rights under the Early Periodic

Screening Diagnosis & Treatment (“EPSDT”) provisions of the Medicaid Act, 42

U.S.C. §§ 1396a(a)(43) and 1396d(r). Before the Court is the Motion of Plaintiff

Marketric Hunter, a minor child, by and through his mother and legal guardian,

Thelma Lynah, for a Preliminary Injunction. For the reasons set forth below, the

Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.

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FINDINGS OF FACT Plaintiff Marketric Hunter is seven years old and lives with his adoptive mother, Thelma Lynah, in Savannah, Georgia. He has multiple, complex medical conditions and physical impairments including static encephalopathy and cerebral palsy due to a catastrophic brain injury he experienced as a result of nearly drowning when he was two. He is eligible for Medicaid and participates in the Georgia Pediatric Program (“GAPP”), which is a subprogram of the Georgia Medicaid program, through which medically fragile children receive in-home private duty skilled nursing services. Defendant Rhonda Medows is the Commissioner of Georgia’s Department of Community Health. The Department of Community Health (“DCH”) is the state agency that administers the Medicaid program in Georgia. Defendant Georgia Medical Care Foundation, Inc. (“GMCF”) is a non-profit corporation. GMCF, through a contractual relationship with DCH, reviews and decides all requests for private duty skilled nursing services under the GAPP program made on behalf of Medicaid-eligible children under 21 in Georgia. During the summer of 2008, Marketric was receiving seventy (70) hours a week of skilled nursing care under the GAPP program. During this time, Marketric’s doctors determined that he needed surgery on his spine to correct
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severe scoliosis. On or about August 6, 2008, Marketric’s treating physician, Dr. Saad Hammid, wrote a letter requesting an increase in the number of skilled nursing hours that Marketric was receiving. The request was for Marketric to have 112 hours per week of private duty skilled nursing services leading up to the surgery and an open-ended request for 168 hours per week (i.e., full time, 24 hour coverage) upon discharge from the hospital following the surgery. On or about August 18, 2008, Maxim- Savannah, the company providing Marketric’s nursing services, submitted Dr. Hammid’s letter to GMCF along with a packet of materials, and communicated by e-mail to GMCF that Marketric’s surgery was scheduled for September 5, 2008.
Dr. Joseph Rosenfeld, GMCF’s Medical Director of the GAPP program, testified through affidavit1 that he spoke with Dr. Hammid about Marketric’s condition on August 20, 2008. According to Dr. Rosenfeld’s testimony, Dr. Hammid told him that Marketric’s surgery was going to take place in October or November. He also told Dr. Rosenfeld that the request for increased hours prior to surgery was because Marketric’s caregiver had been having back trouble and wanted additional assistance caring for Marketric. Dr. Hammid explained that he expected Marketric to remain in the hospital for ten days after the surgery was 1 Dr. Rosenfeld’s affidavit was filed on Sept 26, 2008, in support of GMCF’s response to Plaintiff’s motion for preliminary injunction.
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performed. Dr. Rosenfeld further testified that, following this conversation, GMCF had internal communications about the number of hours that were medically necessary and a post-operation weaning schedule.
On September 11, GMCF received additional materials from MaximSavannah, including a letter from Dr. Hammid. In this letter, Dr. Hammid stated that Marketric’s surgery had been performed on September 5, 2008. Dr. Hammid’s letter did not contain details about the surgery or Marketric’s current condition. At the request of GMCF, Dr. Hammid wrote another letter on September 11, 2008, containing additional information about Marketric’s surgery and condition.
On September 17, 2008, less than a week after receiving Dr. Hammid’s September 11, 2008, letters, GMCF conducted its medical review and prepared a schedule providing for increased hours after surgery, followed by a gradual reduction in skilled nursing hours.
On September 18, 2008, Marketric filed suit pursuant to 42 U.S.C. § 1983 and the Medicaid Act, 42 U.S.C. § 1396 et seq., against Defendants Medows and GMCF requesting a temporary restraining order and preliminary injunction enjoining Defendants from denying the provision of 168 hours per week of private
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duty skilled nursing services as had been requested on Marketric’s behalf. This suit was filed before GMCF had communicated its schedule to Plaintiff.
On September 22, 2008, after hearing from the parties’ counsel and considering the evidence before the Court at that time, the Court entered a Temporary Restraining Order enjoining Defendant Medows from denying Marketric’s treating physician’s request for 168 hours per week of private duty skilled nursing services until the hearing on Plaintiff’s Motion for a Preliminary Injunction, which the Court scheduled for September 29, 2008.
On September 24, 2008, GMCF issued a letter to Ms. Lynah denying the request made by Dr. Hammid on August 18, 2008, for 168 hours per week of skilled nursing hours for an indefinite period of time. Taking into account the fact that Marketric was receiving a week of twenty-four (24) hour per day skilled nursing care per the terms of this Court’s Order of September 22, 2008, the letter set forth an approved schedule of increased skilled nursing hours to provide the medically necessary level of care to ameliorate Marketric’s condition. The schedule provided for an additional three (3) days of twenty (20) hours per day of skilled nursing care, eight (8) days of sixteen (16) hours per day skilled nursing care, and three (3) months of twelve (12) hours per day of skilled nursing care. The letter also noted that Plaintiff’s open-ended request for twenty-four (24) hours
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per day of private duty skilled nursing services fell outside the current GAPP policy which states that “services for individuals requiring sixteen (16) to twentyfour (24) hours of nursing care for an extended period of time in excess of one (1) week or for an indefinite period of time” are not covered by GAPP (Manual § 905.d). The letter stated further that notwithstanding the GAPP policy, the medically necessary number of private duty skilled nursing services, as determined by the independent medical review performed by GMCF, was going to be provided to Marketric.
When this matter came before the Court on September 29, 2008, no evidence as to Marketric’s current condition was offered by Plaintiff. GMCF relied on Dr. Rosenfeld’s affidavit which stated, inter alia, that the plan communicated by GMCF to Ms. Lynah on September 24, 2008, provided the medically necessary level of skilled nursing hours required by Marketric’s condition. Dr. Rosenfeld further stated that he did not believe that the hospital would have discharged Marketric if he still required twenty-four (24) hours a day of skilled nursing care.
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CONCLUSIONS OF LAW
The provisions of law which govern this matter are set forth in the Court’s
opinion in Moore v. Medows, 563 F.Supp.2d 1354 (N.D.Ga. 2008). Moore
provides in pertinent part:
The [Medicaid] Act now mandates that states which participate in th e Medicaid program provide “early and periodic screening, diagnost ic and treatment services” as needed “to correct or ameliorate defects and physi cal and mental illnesse s.” 42 U.S.C. § 1396d(r)(5). Providing the necessary services for those under the age of 21 is not optional for a state; the appropriate care must be provided “whether or not such services are cove red under the state plan.” Id. The Court of Appeals for the Eleventh Circuit has held that: “The language of subsection (r)(5) appears to manda te coverage fo r all m edically necessary treat ment for eligible recipients unde r age twenty-one.” Pittman v. Secretary, Florida Dept. of Health and Rehabilitative Services, 998 F.2d 887, 889 (11th Cir. 1993). The state has no discretion to deny funding of medicall y necessar y treat ment. Id. at 892. Private skilled nursi ng is an enumerated category of treatment under t he Medicaid Act. 42 U.S.C. § 1396d(a)(8). . . . The only pertinent inquiry is the am ount of nursing hours “necessary . . . to correct or ameliorate” the Plai ntiff’s condition. 42 U.S.C. § 1396d(r)(5). The Plaintiff’s treating physician prescribed 94 hours per week of skilled nursing care. (Moore Aff., Ex. A-1) The state must provide for the am ount of skil led nursing care wh ich the Plaintiff’s treating physician deem s necessary to correct or ameliorate her condition. The Defendant may not deny or reduce the hours of skilled nursing care that is medically necessary based upon cost or the lack of a secondary caregiver.
Id. at 1356-57
Based upon the pleadings and evidence before the Court, and the arguments
of counsel, Plaintiff’s Motion for Preliminary Injunction is granted to the extent
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that the Department of Community Health applies a policy of not providing services for individuals requiring 16 to 24 hours of nursing care for more than one week because this criteria is not one of medical necessity. Such a policy of not providing services where it is medically necessary is inconsistent with the Medicaid Act, 42 U.S.C. § 1396a et seq.
With respect to this policy, the Court finds that the Plaintiff has demonstrated a likelihood of success on the merits as to that policy. Also with respect to this policy, Plaintiff has shown irreparable injury, that the balancing of the equities is in favor of the Plaintiff, and that the limited injunction is in the public interest.
Plaintiff’s Motion is denied with respect to the Plaintiff’s request for 24hour-a-day private duty nursing services for an open-ended or indefinite period of time. The state has limited discretion in denying a provider’s request for services under the EPSDT provision of the Medicaid Act. The state’s discretion is limited to a review of the request for fraud, abuse of the Medicaid system, and whether the service is within the reasonable standards of medical care. With respect to Dr. Hammid’s prescription of 24-hour-a-day care for an open-ended or indefinite period, the Court believes that is an abuse of the Medicaid system and is without any basis in fact.
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The Court accepts Dr. Rosenfeld’s conclusion that the medically necessary level of skilled nursing care in this case is twenty-four (24) hours per day for one week beginning last week until 12:00 p.m. today, twenty (20) hours a day for the following three days, sixteen (16) hours a day for the following eight days, and twelve (12) hours a day for the following three months.
The Court finds that the state, in reaching that conclusion, or specifically Dr. Rosenfeld, has applied the medical necessity standard and has reached a reasonable conclusion as to the level of care that is required by that standard under the particular facts and circumstances of the case as they exist today.
The Court GRANTS IN PART and DENIES IN PART Plaintiff’s Motion for a Preliminary Injunction and hereby ORDERS as follows:
1. Defendant Rhonda Medows, in her official capacity as the Commissioner of the Department of Community Health, is hereby enjoined from enforcing a policy to limit medically necessary private duty skilled nursing services for eligible Medicaid beneficiaries under the age of 21 using criteria not based on medical necessity.
2. The State is further ordered to provide Plaintiff with the private duty skilled nursing hours in the manner approved by Dr. Joseph Rosenfeld in his letter to Thelma Lynah dated September 24, 2008.
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/s/Thomas W. Thrash THOMAS W. THRASH, JR. JUDGE UNITED STATES DISTRICT COURT
Prepared and presented by:
/s/ Joshua H. Norris Joshua H. Norris Georgia Bar No. 545854 Attorney for Plaintiff
Georgia Advocacy Office 150 E. Ponce de Leon Avenue, Suite 430 Decatur, Georgia 30030 Telephone: (404) 885-1234 Facsimile: (404) 378-0031 E-mail: jnorris@thegao.org
Approved as to form by:
/s/ Michelle Townes Michelle Townes Georgia State Bar No. 714924 Attorney for Rhonda Medows State Law Department 40 Capital Square Atlanta, GA 30303 Telephone: (404) 656-3446 Facsimile: (404) 463-1062 mtownes@law.ga.gov
/s/ Adam S. Katz Adam S. Katz
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Georgia State Bar No. 408661 Attorney for Georgia Medical Care Foundation, Inc. Womble Carlyle Sandridge & Rice, PLLC One Atlantic Center 1201 West Peachtree Street Suite 3500 Atlanta, Georgia 30309 Telephone: (404) 962-7510 Facsimile: (404) 870-8183 akatz@wcsr.com
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER a minor child, by and through his mother and legal guardian, Thelma Lynah,
Plaintiff,
v.
RHONDA MEDOWS in her Official Capacity as Commissioner of the Georgia Department of Community Health, et al.,
Defendants.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

OPINION AND ORDER

This is an action for injunctive and declaratory relief in which the Plaintiff claims that the Defendants are violatinghis rights under the Early Periodic Screening Diagnosis and Treatment (“EPSDT”) provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(43) and 1396d(r). It isbefore the Court on the Plaintiff’s Second Motion for a Tem porary Restraining Order and Pre liminary Injunction [Doc. 39] , which is GRANTED.

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I. Background Plaintiff Marketric Hunter is an eight -year-old Medicaid beneficiary. (First Am. Compl. ¶ 5.) He lives with his a doptive mother, Thelma Lynah, in Savannah, Georgia. (First Am. Compl. ¶ 4.) He experienced brain damage as a toddler and now suffers from a number of neurological conditions including static encephalopathy, cerebral palsy, and seizure disorders. (FirstAm. Compl. ¶ 37.) He participates in the Georgia Pediatric Program (“GAPP”), a subprogram of the Georgia Medicaid program through which eligible children receive in-home private duty skilled nursing services. Defendant Rhonda Medows is the Commissioner of Georgia’s Department of Community Health (“DCH”), which administers the Medicaid program in Georgia. (First Am. Compl. ¶ 6.) Defendant Geogria Medical Care Foundation, Inc. (“GMCF”) is a non-profit corporation that, through a ocntractual relationship with DCH, reviews and decides all requests for private duty skilled nursing services made on behalf of Medicaid-eligible children under twenty-onein Georgia. (First Am. Compl. ¶¶ 9-11.) In July 2008, Dr. Styles Bertrand, andorthopaedic surgeon, diagnosed Hunter with hip dysplasia. (Bertrand Aff. ¶ 3.)On January 28, 2010, Dr. Bertrand performed surgery on Hunter’s hips to correct the dyspal sia. (Bertrand Aff. ¶ 4.) Hunter will be in a body cast for six to eight weeks while recovering from the surgery. (Bertrand Aff. ¶ 5.) Dr. Bertrand requested twen ty-four hours a day of skilled nursing care

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during this period and eighteen hours a day of skilled nursing care after the cast is removed to prevent skin breakdown, respiratory infection, and other complications. (Bertrand Aff., Ex. 3.) GMCF denied Dr. Bertrand’s request and instead approved twenty-four hours a day of skilled nursing care for three days, eighteen hours a day of skilled nursing care for four days, eighty-four hours a week of skilled nursing care for five weeks, and seventy hours a weekof skilled nursing care for the remainder of the certification period. (Bertrand Aff., Exs. 5, 7, and 9.) The Plaintiff now moves for a temporary restraining order and a preliminary injunction pursuant to Fed. R. Civ. P. 65(b) to enjoin the Defendants from denying the am ount of private duty skilled nursing hours ordered by Dr. Bertrand.
II. Standard for Preliminary Injunctive Relief The Plaintiff’s motion for a preliminary injunction is governed by a four-factor test. The Plaintiff must show (1) a likelihood of success on the merits, (2) that he will suffer irreparable injury unless the injuncti on issues, (3) that the threatened injury outweighs whatever damage the proposed injunction may cause the defendants, and (4) that the injunction would not be adverseto the public interest. McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998).
III. Discussion

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The issue here is what role the statemay play in deciding the amount of nursing hours necessary to correct orameliorate the Plaintiff’s condition. The Court addressed this issue in Moore v. Medows, 1:07-cv-631, 2009 WL 4884029 (N.D. Ga. Dec. 9, 2009), and held:
[T]he state m ay determine whet her the physician’s diagnosis or prescribed treatment was without any basis in fact. Thus, the state may review an order of a treating physician for fraud, abuse of the Medicaid system, and whether the service is within the reasonable standards of medical care. Id. at *4 (internal citations om itted). Ot herwise, the state m ay not second guess a physician’s prescribed treatment for his patient. Here, the Defendants have not shown that there is an issue of fraud or abuse of the Medicaid system or that Dr. Bertrand’s request for increased hours is not based infact. The denial of care is not based upon criteria of medical necessity. Therefore, I conclude that the Plaintiff has established a likelihood of success on the merits. The other three factors also support issuance of a preliminary injunction. First, denying Hunter private duty nursing services after complex surgery creates a heightened risk of respiratory infections, skin breakdown, and other complications. Second, these injuries outweigh the m onetary dam ages to the state caused by providing additional nursing hours. Third, providing additional hours for Hunter is

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consistent with the legislative goal of the EPSDT program and not adverse to the public interest.
IV. Conclusion For these reasons and those set forth on the record of the hearing on February 16, 2010, the Pla intiff’s Sec ond Motion for a T emporary R estraining O rder a nd Preliminary Injunction [Doc. 39] is GRANTED, and it is hereby ORDERED that the Defendants are enjoined from denying the Plaintiff’s request for twenty-four hours a day of private duty skilled nursing services frosix to eight weeks while he is in a body cast, and eighteen hours a day of private duyt skilled nursing services after the cast is removed until March 31, 2010. SO ORDERED, this 17 day of February, 2010.
/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

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 Case 1:08-cv-02930-TWT Document 199 Filed 09/27/13 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER a minor child, by and through his mother and legal guardian, Thelma Lynah, et al.,
Plaintiffs,
v.
DAVID A. COOK Commissioner of the Georgia Department of Community Health,
Defendant.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

OPINION AND ORDER

This is an action in which severely disabled children are seeking injunctive relief against the Georgia Department of Community Health. This Opinion and Order constitutes the findings of fact and conclusions of law following a bench trial held in this m atter from Septem ber 3, 2013, th rough Septem ber 5, 2013. Becaus e t he Defendant’s determinations with respect to the Plaintiffs Hunter and Eaves were not based upon medical necessity, the Plaintiffs are entitled to injunctive relief.

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Case 1:08-cv-02930-TWT Document 199 Filed 09/27/13 Page 2 of 34
I. Findings of Fact A. Plaintiff R.E. 1. Plaintiff R.E. is a 16 year old gi rl residing with her parents and two siblings in Atlanta, Georgia. (T. Tx. p. 51).1 2. R.E. has been receiving Medicaid-funded n ursing services from Georgia’s Department of Community Health (“the Department”). Under the Medicaid Act, a participating state is required to pr ovide certain categories of care to eligible children, including early and periodic scr eening, diagnostic and treatm ent services (“EPSDT”). In Georgia, a child who is enrolled as a member of the Georgia Pediatric Program2 is eligible to receive private duty nursing services.3 While the Plaintiff has been enrolled in the Georgia Pediatric Program, the Department has approved her to receive private duty nursing services in her home.

1 Citations to the trial transcript will be indicated as “(T. Tx. p. ).” 2 This is a Georgia Medicaid program that provides continuous skilled nursing care to medically fragile children. It is referred to as “GAPP.” 3 Private duty nursing services is definedas “nursing services for beneficiaries who require m ore individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility.” 42 C.F.R. § 440.80. These serv ices are provided by a registered nurse or nurse practitioner under the direction of th e recipient’s physician at either the recipient’s home, a hospital, or a skilled nursing facility. Id.

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3. Dr. Elizabeth LeDuc is R.E.’s treatnig pediatrician. She has been treating R.E. since November 2011 and has been practicing medicine since 1990. (T. Tx. pp. 12-13).
4. According to Dr. LeDuc, R.E. suffers from cerebral palsy and spastic quadriplegia due to severe prenatal brain damage. R.E. is confined to a wheelchair for most of each day and her arms and legs need to be locked into position i n the wheelchair. (T. Tx. pp. 15-16).
5. R.E.’s quadriplegia lim its the functioning of her respiratory system . Because she cannot handle her own respiratoyr secretions, she requires suctioning and oxygen throughout the day and night. She also suffers from chronic aspiration, meaning that secretions from her respiratory system back up into her respiratory tree and cause pneum onia and other infections. R.E. additionally suffers from chronic rhinitis and hypothyroidism , which cause inflammation and prevent her from controlling her own body temperature. (T. Tx. pp. 15-16).
6. R.E. has gastroesophageal reflux disease (GERD), obstructive sleep apnea, and dysphagia, which prevents her from swallowing. Because of her conditions, she is fed through a jejunostomy tube, or J-tube, which is installed in the middle part of her small intestine. (T. Tx. pp. 16-17).

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7. Dr. LeDuc stated that R.E.’s most severe health problem is her seizure disorder. R.E. is constantly seizing, has been hospitalized on multiple occasions for seizures, and has severe aspirations from seizures, which can lead to pneumonia. (T. Tx. p. 17).
8. R.E. has limited vision,is severely developmentally delayed, and cannot speak. (T. Tx. pp. 17-18).
9. According to Dr. LeDuc, R.E.’s conditions are permanent. They will not improve and may become more complicated asR.E. continues to grow. (T. Tx. p. 19).

10. R.E. has been hospitalized five times since January 2013. She was in the hospital on January 7-12, 2013, for se izures, pneum onia, hypotherm ia, and hypotension. She was hospitalized on February 19, 2013, at Children’s Hospital of Atlanta due to status epilepticus – a seizuer that lasts over five minutes. She remained in the hospital until Ma rch 4, 2013. She returned to the hospital from March 10 through March 13 for shock andrespiratory failure following a pattern of seizures and aspirations. Likewise, she was in the hos pital on April 23 when her seizures and breathing problems led to life-threatening septic shock. She wasnot discharged until May. R.E. was hospitalized again in June soshe could receive denat l care. Dr. LeDuc testified th at R.E. often goes to the em ergency room when Dr. LeDuc’s office is

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closed for medication adjustments and evaluations of urinary or swelling problems or minor seizures. (T. Tx. pp. 25-32). These recent hospitalizations are evidence that R.E. is not receiving all of the skilled nursing care that she needs.
11. Dr. LeDuc testified that every trip to the hospital is potentially dangerous for R.E. She stated that “every trip youtake to the hospital you increase your risk of infection because hospitals are in genera l not the place you wan t t o be to avoid infection.” (T. Tx. p. 32).
12. Dr. LeDuc stated that her “biggest goal and hope for [R.E.]is to keep her out of the h ospital whether it’s the emerge ncy room or the ICU or just a regular hospital bed, keep her at home with her family with skilled nursing care around the clock.” (T. Tx. p. 32).
13. Dr. LeDuc’s opinion is that R.Er.equires 24 hours of skilled nursing care every day. (T. Tx. p. 34). Dr. LeDuc staetd that anything less than 24 hours of skilled nursing care “would be like wearing your seatblet for part of your trip and then taking it off for an hour … and hoping everything went well.” (Id. at 37).
14. R.E. is currentl y receiving 60 hours per week of skilled nursing care through GAPP. (T. Tx. p. 36).
15. Dr. LeDuc opines that R.E.’s mother is unable to adequately provide all the care that R.E. needs outside the GAPP provided hours. Although R.E.’s mother

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has learned how to do many of the nursing tasks that R.E. needs, she is not a nurse. Dr. LeDuc does not believe that R.E’s m other is able to provi de adequate nursing assessments or exercise proper nursing judgment. Dr. LeDuc opines that at all times R.E. is in need of such nursing assessments and judgment. (T. Tx. pp. 35-37).
16. Dr. LeDuc further opined that even if R.E.’s mother was a skilled nurse, she could not personally provide the 108 hours of care per week that she is now required to provide to R.E. (T. Tx. pp. 37-38).
17. If the Department continues to only provide 60 hours of skilled nursing care, and R.E.’s mother continues to shoulder the rest of the burden of caring for R.E., it is only a matter of time before R.E. returns to the hospital and possibly dies. (T. Tx. pp. 39-40).
18. Dr. LeDuc’s assessment that R.E. requires 24 hours of skilled nursing care every day is based on herassessment of what is medically necessary for R.E. (T. Tx. p. 49).
19. Dr. LeDuc requested 84 hours of skilled nursing care per week for R.E. in a November 2011 letter. She also signde a formacknowledgingthe letter generated by the nursing agency stating that R.E. would be provided with 60 hours of nursing per week. (T. Tx. pp. 42, 46.) However, Dr. LeDuc onlyagreed with the 60 hours per week form because she was “concerned [R.E.] wouldn’t get any care if I didn’t sign

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the form.” (Id. at p. 46). Although she signed the nursing form for 60 hours per week, and only requested 84 hours per week, she “couldn’t believe what the amount of work that [R.E.’s mother] was being required to do. I thought it was ludicrous. I thought [R.E.] needed 24 hours a day of skilled nursing care.” (Id.at 47). Dr. LeDuc stated she only submitted the request for 84 hours “[b]ecause I was hoping she’d get at least 84.” (Id. at 49).
20. Michelle Eaves is R.E.’s m other. She is em ployed full tim e as a schoolteacher and provides the primary incomefor her family. She has three children, the oldest of whom is the Plaintiff R.E. Michelle Eaves weighs 97 pounds and R.E. weighs 86 pounds. (T. Tx. p. 51). R.E.’scondition requires that Ms. Eaves pick up and move R.E. frequently, which is difficult given her weight and stiff limbs. (Id. at 38-39).
21. Ms. Eaves has at tim es become overwhelmed with her responsibilities taking care of R.E. Ms. Eaves has been forced to remove R.E.’s oxygen alarm, which beeps loudly when R.E.’s oxygen levels fall below a certain threshold because she-Ms. Eaves--needed sleep. She has likewise given up holding a CPAP machine mask, which treats obstructive sleep apnea, over R.E.’s face during the night in order to get some sleep. (T. Tx. pp. 51-52).

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22. Ms. Eaves has considered seeking institutional care for R.E. She stated that she considered seeking an institution because “it was getting to be too much. I was exhausted. I was--even though I learned the tec hniques of how to take care of her, I felt like my skills weren’t adequate enough and it was too many skills to do all at one time. I’m a teacher, and I’m a mother, but I’m not a nurse.” (T. Tx. p. 54).
23. After R.E. started getting skin breakdown in the intensive care unit at the hospital, Ms. Eaves stopped seeking an institutoin for R.E. She stated that “if that was going to happen under that type of care theer’s no way that she would get that kind of care at an institution, not that quality. I just felt like that she would not be better off, she would start getting skin breakdown. And not only that, she would be away from her mom and her brother and sister.” (T. Tx. p. 55).
24. Ms. Eaves has signed papers acknowledging GAPP’s weaning policy. Ms. Eaves signed a Letter of Understanding stating that the “GAPP program is designed to teach me on the care of my child’s medical condition. I also understand that services will be reduced over time based on the medical needs of my child (the member).” (Def.’s Ex. 26, at 1). The letter stated that “[s] killed nursing hours will be reduced over time based on the medical needs of my childthe member.” (Id.) Ms. Eaves testified that she believed she would not receive GAPP services if she did not sign the Letter of Understanding. (T. Tx. pp. 67-68).

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25. Ms. Eaves has been taught many of the skilled nursing tasks performed

by R.E.’s skilled nurses. Ms. Eaves does not feel that she does them well. She was

only taught the skills in isolation. (T. Tx. pp. 63-64).

26. The Department denied R.E.’s request for 84 hours of skilled nursing

care per week. On June 28,2011, the Department sent Ms. Eaves a letter stating that

“Your child has been denied additional services. Your child’s hours have been

temporarily increased due to her recent hospitalization. Your approved hours are 60

hours per week until the end of your curre nt certification which ends on 10-13-11.

Your request for an increase to 84 hours perweek has been denied.” (Pl.’s Ex. 38, at

1). R.E. had only received 40 hours of skilled nursing care per week before this. (T.

Tx. p. 70).

27. The denial letter in cluded furthe r justification for lim iting the skilled

nursing care hours R.E. received:

There is no evidence from the documentation submitted that the current hours are m edically necessary to correct or am eliorate the child’s medical condition (See 42 USCS § 1382h(b), O.C.G.A. § 49-4-169.1) and GAPP Manual § 702.2(A)). • Although, [sic] your child is having seizures having skilled
nursing will not prevent their duration or intensity nor will it prevent them from occurring. Other reason(s): • J-tubes are not so inherently co mplex to require a professional licensed person on a daily basis. This does not require GAPP nursing hours whic h require continuous skilled nursing c are or skilled nursing care in shifts G( APP Manual § 601) and it does not

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meet medical necessity and require the level or care provided in a nursing facility or hospital (See 42 CFR § 409-31-409.34 and 42 CFR § 440.10). • While your child was hospitalized for increased seizures and hypoxia from 5-7-11 to 5-11-11, there are no additional/new skilled nursing needs required for this condition. Although she requires suctioning and 02 administration PRN, these are not new skilled needs and can be perform ed by the caregivers wh en the nurse is absent. • Although Rachel is requiring continuous JT feeds rthaer than BID, both caregivers are documented as “competent” in tube feedings on the caregiver skills checklistsubmitted with the GAPP packet. Rachel’s J-tube is not a new skilled need. • Skilled nursing hours cannot be granted for projected potential problems. It is to provide for the current skilled need of the child.
(Pl.’s Ex. 38, at 2). The Defendant presented no expert physician testimony at trial
that this denial was based upon medical necessity.
B. Plaintiff Marketric Hunter
28. Plaintiff Marketric Hunter (“Marketric”) is a 12 year old Medicaid
beneficiary who receives skilled nursing carethrough the Department. (T. Tx. pp. 78-
79). Like Plaintiff R.E., Marketric is en rolled as a member of GAPP, and the state
provides nursing services to Marketric under EPSDT.
29. Marketric suffered a near drowning at 18 m onths of age which caused
severe brain damage. As a result, he has spastic quadraplegia. (T. Tx. p. 79).
30. Marketric has a severe seizure disord er that is difficult to control even
with multiple medications. (T. Tx. p. 79).

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31. Dr. Francisco Javier Herran was Marketric’s treating physician from 2009 through 2012. (T. Tx. p. 77).
32. Dr. Herran testified that Marketric’s near drowning had further negative effects: “He also had some dam age to his lungs during this event and had som e restrictive lung disease and reactive airway disease. Not only that, but he becom es very fragile in his bones because he doesn’t move; so the calcium doesn’t get to the bones.” (T. Tx. p. 79). When he fractures a bone, he may have a fat embolism and can suddenly die. (T. Tx. p. 93). While the reactive disease causes inflammation, it is less severe and may be reversible. Marketric’s restrictive lung disease is peramnent. (T. Tx. pp. 79-81).
33. Because of his lung ailm ents, Marketric requires secreti on suctioning every one to two hours. He also needs toperiodically wear a chest vest that mobilizes secretions by vibrating him slightly. This treatment can cause a collapsed lung if not applied and observed pr operly. He has to be m oved frequently to ensure proper secretion and to avoid ulcers on his skin,even during the nighttime. He additionally needs to use oxygen at night. Because o f the lack of muscle tone in his lungs and because of these conditions, Marketric is porne to infections, recurring bronchitis, and recurring pneumonias. (T. Tx. pp. 81, 84; 124-26).

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34. Marketric is unable to swallow properly and is fed through a G-tube. He accumulates secretions because he is una ble t o swallow. He has a high risk of bronchoaspiration. He also has GERD, but that has been somewhat reduced in severity by two surgical procedures. (T. Tx. p. 82).
35. Developmentally, Marketric is only about six months old. According to Dr. Herran, Marketric “can recognize the mother’s smile, can interact with her, … can perceive certain things, and [] will benefit from interaction with [his] mother but [is] really dependent completely on other people for survival.” (T. Tx. pp. 87-88).
36. Dr. Herran believes that due to Ma rketric’s multiple complex systems problems, he is in need of constant skilled nursing care. Dr. Herran is concerned that Marketric’s m other cannot fully take care of him due to her age and due to her emotional attachment to him as his mother. (T. Tx. pp. 78-91).
37. Dr. Herran opines that, based on medical necessity, Marketric needs at least 18 hours of skilled nursing care per da y. However, Dr. Herran believes this amount will rise as Marketric grows. (T. Tx. p. 93).
38. Dr. Herran stated that Marketric’s ocnditions will not improve: “the brain damage he sustained I don’t think that’s goingto change. The seizure disorder he has is not going to change. The fact that he’sunable to care for himself and growing and becoming more difficult to move, that’s not going to change.” (T. Tx. p. 93).

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39. Michelle McQueen is a licensed practcial nurse. She has been a nurse for Marketric for roughly eight years. She cu rrently has Marketric as a patient from Monday through Thursday each week. (T. Tx. pp. 123-24).
40. During her typical ten-hour shift taking care of Marketric, Ms. McQueen performs many duties. She begins with a total assessment of Marketric. She checks his respiratory system and m akes sure it is clear . S he then checks his cardiac functions, and then checks his skin for ulcers, breakdowns, and edem a. She also ensures he is not experiencing any pain. Mraketric usually needs the congestion in his chest treated at the start of McQueen’s shift. (T. Tx. pp. 124-26).
41. Ms. McQueen al so o versees appl ying braces to Marketric’s legs. Because his bones are so brittle, Marketric n eeds to wear special braces on his l egs and stay still for five hours a day in th e hopes of strengthening his bones. Ms. McQueen applies the braces every day, and Marketric will need them for the rest of his life. If the braces are applied incorrectly, they can cause sores and even injuries. (T. Tx. pp. 127-28).
42. Ms. McQueen feeds Marketric through his G-tube which requires verifying the tube is inserted into his abdomen properly, checking for any residual buildup, and then using a syringe to pour formula into the tube. She also gives him

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medication through the G-tube. Marketric receives regular medications at 8:00 a.m., noon, 2:00 p.m., 4:00 p.m., 8:00 p.m., 9:00 p.m., and midnight. (T. Tx. pp. 129-30).
43. Ms. McQueen also has to provide Marketric with breakthrough medication when he has a seizure between regular medication doses. It can be hard to tell whether Marketric is having a seizure because he has difficulty controlling his muscles and is often shaking anyway. According to Ms. McQueen, “someone [who] is not trained to know what a seizure looks like [] would think he is having a seizure 24 hours a day.” (T. Tx. p. 131). Ms. McQueen is trained to recognize Marketric’s seizures. When “he is having a seizure isusually he will clamp down, his mouth will clamp, his eyes will roll intothe back of his head, and youwould really see restrictive movements that he is really into a se izure. And it usually takes him anywhere between 18 seconds, sometimes to a minute to come out of it.” (Id.p. 131). Marketric sometimes has four seizures a day, and they can be triggered by something on the TV or even a personal interaction. (Id. p. 132).
44. Based on the type of seizure Marketric is having--he has grand mal and petite mal seizures of varying lengths--Ma rketric needs specific m edications. Ms. McQueen keeps a seizure log of Marketric’ s seizure activity and will give him the appropriate m edication. Additionally, his seizures often cau se a lot of secretion buildup in his throat area andhe will have to be suctioned. Ms. McQueen stated it is

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difficult to tell whether he has had fluid buildup in his throat after a seizure because he breathes inconsistently anyway. (T. Tx. pp. 133-34).
45. Ms. McQueen understands why Marketric’s m other prefers not to perform suctioning on him. “[Marketric] really puts a fright on his face when you do that to him, and I can only imagine a mom thinking she might be hurting her child when you are trying to really help him. And he really--sometimes you have to be very careful because he can gag real bad when you do that. So you have to know how far to go down his throat and not cause, you know, him to even just vomit while you are trying to suction him.” (T. Tx. p. 134). Improper suctioning can also cause bleeding and even a heart attack. (Id). Ms. McQueen performs suctioning on Marketric at least two times a day, when he is healthy, and more frequently when Marketric is sick. (Id. pp. 147-48).
46. Ms. McQueen keeps extensive logs on the medication Marketric takes, his behavior, his symptoms, his food and water intake, and his secretions. (T. Tx. pp. 134-35).
47. Thelma Lynah is Marketric’s 73 year-old adoptive mother. She adopted him after he had been abandoned to hospice care. She takes care of him when there is no skilled nurse. Although she has acknowledged that she can performmany if not most of the tasks that a skilled nurse perfo rms to take care of Marketric, she is not

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comfortable performing suctioning. (T. Tx. pp. 149, 159-62). As noted, Dr. Herran

thinks that Ms. Lynah’s aversion to performing suctioning on Marketric is reasonable,

and Dr. Herran believes that Marketri c’s m other is not equipped physically or

emotionally to tend to Marketric’s ongoing care needs. (T. Tx. pp. 88, 91).

48. On April 16, 2009, Ms. Lynah recei ved a lett er from the Departm ent

notifying her of a reduction inskilled nursing hours provided to Marketric. The letter

stated that:

The need for services is bas ed o n m edical necessity, taking into

consideration the overall m edical condition of the m ember, the

equipment and the level of frequency of care required for the member,

and whether the services will correct or am

eliorate the child’s

condition… the number of hours for which approval will be granted is

based on specific medical treatment needs of the member confirmed by

available medical information and the documented training needs of the

primary caregiver confirmed by an etsablished teaching plan. Hours may

be reduced on an evaluation of the current medical plan of treatment

(physician orders); updated physician sum maries; provider agency

documented current assessments and nursing care… the GAPP Manual

states it is “ the expectation that the prim ary caregiver(s) will becom e

competent to assume some responsibility for the care of the child.”

(Pl’s. Ex. 18). The letter noted that thisCourt had required theDepartment to provide

skilled nursing care at specific levels for a three month period following a surgical

procedure. The letter stated that:

based on the GHP evaluation, your child’s skilled nursing hours are going to be reduced from 84 to 77 hours a week for one month and then from 77 hours a week to 70 hours a week for two m onths effective 30

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days from the date of this letter. The reason(s) for this decision is as follows:

Skilled nursing hours m ay be reduced over tim e based on the medical need of the m ember and the stability of the child’s condition … as evidenced by: • The physician’s letter submitted in the last pre-certification
packet stated, “Marketric has had no hospitalization this certification period. He continues to do well.” • Marketric’s prim ary and s econdary caregiver are both competent to perform all skilled needs per the documentation submitted by the nursing agency. Your child’s condition has remained stable with no exacerbations in disease process or hospitalizations since the last precertification period as evid enced by physician and agency documentation submitted. The si xty (60) day sum mary by the nursing agency stated the following: • “During our last supervisory visit, Marketric was doing well at home. He has rec overed nicely from his rod placement. He did have a hospitalization in November and December but seems to be ge tting back to baseline now. He is onc e a gain a ble to tole rate sitting up in his wheelchair. He will be using the stander once he receives his new one. While we visitedhis vital signs were stable.” … There is no evidence from the documentation submitted that the current hours are medically necessary to correct or ameliorate the child’s medical condition.

(Pl.’s Ex. 18).

C. GAPP Policies

49. Dr. Joseph Rosenfeld was the medical director at GMCF for the GAPP

program. During his six years at GMCF, Dr. Rosenfeld met with the medical review

team approximately once a week. The medi cal review team would meet for two to

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two-and-a-half hours each week and discuss 20 to 30 m edical requests. (T. Tx. p. 171).
50. Dr. Rosenfeld stated during his tenure the GMCF began requiring “that the parents or caregivers would be taught skilled nursing care for their child so that the number of hours awarded to a child would slowly decrease based on upon the ability of the parents and the stability of the child.” (T. Tx. p. 172).
51. Sandy Choate was the manager of medical review for the GMCF. She testified tha t skille d nursing involves the ove rall m anagement of the pa tient, assessments of the patients, planning ofcare for the patient, emergency management, medication illustration, and extensive charting. (T. Tx. pp. 184-86).
52. Ms. Choate testified that constantnursing care for 12 or more hours a day would eventually fatigue the caretaker andimpair attentiveness and decision-making. The fatigue would worsen if the caretaker does not have days off in between long shifts. (T. Tx. pp. 210-12).
53. Catherine Ivy was the Deputy Director of Medicaid in Georgia until the start of 2013. She began m anaging the GAPP program in 2010. According to her, GAPP is primarily a teachin g p rogram for parents and the assumption is that the parents of GAPP participants will become more adept at managing the care needs of their children. (T. Tx. pp. 229-35). She satted that “the GAPP programwas designed

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really with two things in mind. The first was to maximize the child’s capacity, and the second was to maximize the parent’s understanding and capacity to provide for the child’s needs… it is primarily a teaching por gram for the parentand caregivers.” (Id. pp. 231-32).
54. Dr. Gary Miller is the Medical Di rector at the Ge orgia Medical Care Foundation (“GMC F”). Dr. Mille r pra cticed m edicine for 25 ye ars a nd is boa rd certified in pediatrics and pediatric neurology. GMCF has m anaged the GAPP program since 2003. Dr. Miller oversees th e interactions between GMCF and the Department. According to Dr. Miller, twopediatricians perform most of the reviews of requests for nursing care under the GAPP program. (T. Tx. pp. 240-41).
55. GMCF considers the competency of the parent when determ ining the amount of skilled nursing hours due to a GAPPparticipant. GAPP expects parents to assume some of the child’scare. GMCF does not consider family or social schedules when determining the number of skilled nursing hours due to a child in GAPP care. However, the com petency and ability of pa rents to provide care is factored into determining what is medically necessary for the GAPP participants. Dr. Miller acknowledges that trained and experienced professionals need to perform the assessment of children with complex medical conditions. (T. Tx. pp. 270-78).
56. GAPP reviews the nursing notes provided by the nurses when

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determining whether to increase, decrease, or maintain skilled nursing hours. These notes do not necessarily incorporate the child’s conditions when only a parent/caregiver is taking care of the child. (T. Tx. pp. 276-77).
57. Karis Morneau is the pediatric teamlead at GMCF. She has worked for GMCF for almost five years and previouslyworked as a GAPP review nurse. (T. Tx. pp. 283-86). Ms. Morneau described the GAPP review process. The decisions about GAPP nursing hours are made as a teamand the physician on the teammakes the final decision. The team reviews the nursin g notes, the current level of skilled nursing hours, physician’s letters, andhospital records when making its decision. (T. Tx. pp. 288-90).
58. Ms. Morneau participated in the reviews of both R.E.’s and Marketric’s requests for skilled nursing care. Although Ms. Morneau testified that lay people cannot practice nursing and that the practice of nursing involves an understanding of its theoretical underpinnings and applying them to real-world situation, she testified that the only skilled nursing need for both Marketric and R.E. is a nurse’s full body assessment. (T. Tx. pp. 290, 300, 302, 305, 307-10). This assertion is not credible because it leads to the implausible conclusoi n that R.E. and Marketric each need only seven to eight hours of skilled nursing careper week during which nurses can perform assessments.

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59. The following three findings were established at the permanent injunction hearing for the Plaintiff Zachary Royal. On or about April 1, 2003, DCH contracted with the Georgia Medical Care Foundatio n (“GMCF”) to perform reviews and determine, am ong other things, the elig ibility and m edical necessity of GAP P members. GMCF’s medical review team is composed of the medical directo r, a licensed pediatric neurologist, and nurses. Karis Morneau i s a r egistered nurse employed by GMCF to review the documentation provided in the GAPP packets to determine the number of hours of skilled nusring would be approved for a child under the GAPP program. Ms. Morneau has been a nurse for 18 years and has worked in pediatric home care, in a pediatric physician’s practice, and in hospital environments.
60. When GMCF began assuming responsibility for GAPP, there were meetings between the Department and the medical director and nurses from GMCF. The meeting minutes reflect what was discussed at the meetings and identify follow up issues. The “Revi ew Guidelines” for the program include tapering schedules. Nursing hours were to be reduced followi ng the suggested schedule. Dr. Rosenfeld indicated that weaning education is need ed for physicians, providers and hospital discharge planners as it appears that ther e is a conflict of in terest since physicians want to make money for business reasons, therefore, children are not weaned when

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they possibly could be. Dr. Ro senfeld believed this to be the case because he had bowed to pressure to keep a patient’s family happy.
61. The Plaintiff introduced GAPP m eeting m inutes from 2003 through 2006. At the GAPP meeting in April 2003,DCH discussed the transition of the GAPP program from DCH to GMCF. The weekly GAPP Medical Review Team meetings were discussed. The nurses on the team complete a case document review and then make recommendations to the m edical director. F inal decisions of the team are a group process. Also discussed was the importance of m aintaining the weaning schedule. (Plaintiff Royal’s Exhibit 15). In the June 2003 GAPP meeting, DCH and GMCF discussed “Review Guidelines” for the program. These Guidelines included tapering schedules. Nursing hours were to be reduced following the suggested schedule. The Guidelines directed that a ll cases will eventually be tapered . The Guidelines state the goal of the tapering schedules is that all cases will eventually be weaned off the program if possible. For children seeking renewals of nursing hours where there was no change in condition, GMCF was to either decrease skilled nursing hours or keep skilled nursing hours at the same level. The Guidelines provided that GMCF could assign 50 hours of skilled nursing per week for 6 months if one parent is working and one parent ishome. If both parents workor one parent works and the secondary back-up caregiver is not in the home, GMCF can assign 56 hours of skilled

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nursing per week for 6 months. According to the renewal guidelines, the goal is to decrease skilled nursing to 40 hours per week or less and eventually wean the child off of the program if possible. (Plaintiff Royal’s Exhibit 16). In the August 2005 GAPP meeting, the med ical directors of DCH and GMCF discussed the need to contact physicians to retrain themon theGAPP program goal of weaning the children off of the program once the parents are trained caregivers. (Plaintiff Royal’s Exhibit 17). In the April 2006 GAPP m eeting, GMCF’s m edical director, Dr. Rosenfeld, requested information on the weaning goals of the program. DCH stated the goal of the program is to wean down to only neededhours but not to wean off programunless no skilled needs “due to EPSDT requirements.” Also discussed was the requirement that each child m ust have a secondary car egiver, and if no secondary caregiver is available, GMCF was to notify the legal satff at DCH. (Plaintiff Royal’s Exhibit 18). In the June 2006 GAPP meeting, DCH clar ified the overall program goal “to wean down the needed hours but not wean off the program unless no skilled needs are identified.” (Plaintiff Royal’s Exhibit 19).
62. GAPP has a policy m anual. The re levant manual, published April 1, 2011, is entitled “PART II, POLICIES AND PROCEDURES FOR THE GEORGIA PEDIATRIC PROGRAM (GAPP).” (Pl.’s Ex. 78). GAPP policy requires that a cost analysis should be made to determine that the cost of caring forthe child in the home

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and community is below the cost of providing the same care in an institution. (Id. § 701). GAPP policies require the primary caregiver to assist with the child’s care in the home. (Id. §702.1(B)). T he child must have available primary and secondary caregivers to actively participate in her care. (Id. §702.1(C)). The child must need a specified tim e-limited period of daily continued nursing care, supervision and monitoring. Hours of nursing may be reduced based upon an evaluation of the current medical plan of treatment, updated physician summaries, provider agency documented current assessments and nursing care. (Id. §702.1(D)). GAPP provides that skilled nursing care services will be reduced wh en the medical c ondition of the child stabilizes to give more of the responsibility of the care of the child to the parents or caregivers. One of the goals of the GA PP program is to te ach the parents and caregivers how to care for the member in the absence of a n urse. GAPP is not intended to be a permanent solution to skilled care. It is a teaching program. (Id. § 803A(c)).
63. Dr. LeDuc’s testimony on the number of skilled nursing hours that R.E. requires deserves m ore weight than the assessm ent of GA PP. GAPP reviews documentation subm itted by nursing agencies in an adm inistrative setting, and GAPP’s determ ination was not m ade by a treating physicia n. The Defendant presented no medical testimony at trial to dispute the testimony of Dr. LeDuc. The

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Defendant pre sented no m edical te stimony a t tria l tha t the proposed re duction in skilled nursing hours was based upon medical necessity.
64. Likewise, Dr. Herran’s testimony on the number of skilled nursing hours that Marketric needs deserves more wei ght tha n the assessm ent of G APP. T he Defendant presented no m edical testimony at trial to dispute the testim ony of Dr. Herran. The Defendant presented no m edical testimony at trial that the proposed reduction in skilled nursing hours was based upon medical necessity.
II. Conclusion of Law Congress enacted the Medicaid Act in1965 with the aim of providing medical care for the nation’s poorest and most vulnerable people. Medicaid is a cooperative venture of the state and federal governm ents through which states that elect to participate receive federal fni ancial assistance to furnishmedical assistance to eligible people with low incomes. The Eleventh Circuit summarized the guiding principles to be applied in a case like thisin Moore ex rel. Moore v. Reese, 637 F.3d 1220 (11th Cir. 2011) (“Moore II”). Those principles are as follows: (1) Georgia is required to provide private duty nursing services to teh Plaintiffs, who meet the EPSDT eligibility requirements, when such services are medi cally necessary to co rrect or ameliorate their illnesses and conditions. (2) A state Medicaid plan m ust include reasonable standards for determining eligibility for and the extent omf edical assistance--here, the

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extent of private duty nursing services forthe Plaintiffs--and such standards must be consistent with the objectives of the Medicaid Act, specifically its EPSDT program. (3) A state m ay adopt a definition of m edical necessity that places lim its on a physician's discretion. A state may also limit required Medicaid services based upon its judgm ent of degree of m edical necessity so long as such lim itations do not discriminate on the basis of the kind of medical condition. Furthermore, a state may establish standards for individual physicians to use in determining what services are appropriate in a particular case and a treating physician is required to operate within such reasonable lim itations as the state may im pose. (4) The treating physician assumes the primary responsibility of dete rmining what treatm ent should be m ade available to his patients. Both the treating physician and the state have roles to play, however, and a private physician's word on medical necessity is not dispositive. (5) A state may establish the amount, duration, and scope of private duty nursing services provided under the required EPSDT benefit. The state is not required to provide medically unnecessary, albeit desirable, EPSDT services. However, a states' provision of a required EPSDT benefit,such as private duty nursing services, must be sufficient in amount, duration, and scope to reasona bly achieve its purpose. (6) A state m ay place appropriate limits on a service based on such criteriaas medical necessity. In so doing, a state can review the medical necessity of treatment prescribed by a doctor on

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a case-by-case basis, and may present its own evidence of medical necessity in

disputes between the state and Medicaid patients. Id. at 1255. The Court of Appeals

concluded:

So, the pivotal issue is only whether 84 hours are sufficient in amount to reasonably achieve the purposes of private duty nursing services to correct or am eliorate [the Plaintiff’s] condition. In this regard, the inquiry hinges on whether [the Department] -- in exercising its ability to “place appropriate limits on a service based on such criteria as medical necessity,” --fulfilled or breached its ocncomitant duty to ensure that [the Plaintiff’s] private duty nursing care is “sufficient in amount, duration, and scope to reasonably achieve its purpose.”

Id. at 1257-58. Applying these principles to this case, the Court concludes that

Plaintiff R.E. has met her burden to establish by a preponderance of the evidence that

18 hours per day of private duty nursing care earmedically necessary. It is undisputed

that R.E. is a medically fragile child. The testimony of Dr. LeDuc establishes that

R.E. is constantly at risk of hospitalization. The testim ony further establishes that

R.E. is in need of skilled nursing care. Although R.E.’s mother can perform many of

the custodial tasks that a skilled nurse normally performs, her mother does not have

expertise in nursing care and cannot be relied upon in emergency situations. Given

the testim ony of R.E.’s treating physicia n and treating nurse, the Court is not

convinced that the attempted reductions in R.E’s skilled nursing hours is based on a

determination of her medical necessity. Rather, the reductions are due to the policy

and practice of the GAPP program to wean nursing care and to arbitrarily shift more

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of the burden of R.E.’s skilled care to her parent caregiver. Dr. LeDuc stated that the current level of care provided--60 hours perweek--will eventually lead to R.E. being hospitalized more frequently and eventuallydying. (T. Tx. pp. 39-40). R.E.’s mother cannot be expected to provide more than 6 hours per day of skilled care to the child. Application of GAPP policy to R.E. to reduce her skilled nursing hours below 18 hours per day was unreasonable because her condition is not improving. She is not stable--she is chronically unstable. Further, the reasons litsed in the Defendant’s letter denying R.E.’s request for additional services were insufficient to support denying her requested level of skilled nursing care. Although Ms. Eaves has acknowledged her ability to use the J-tube and her ability toercognize when R.E. is having a seizure, this does not preclude the need for skilled nursing. As Dr. LeDuc stated, a skilled nurse is needed becaus e Ms. Eaves cannot be relied upon to exercise proper nursing judgment, especially not for 108 hours per week. The Defendant’s refusal to provide even 84 hours per week of skilled nursing caer was therefore arbitrary and capricious and not based on m edical necessity. The De fendant’s failure to provide sufficient skilled nursing hours to R.E. breached the De fendant’s duty to ensure that R.E.’s private duty nursing care is sufficient in am ount, duration, and scope to reasonably achieve its purpose.
Similarly, the Plaintiffs have established by a preponderance of the evidence

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that, based on medical necessity, PlaintiffMarketric Hunter requires 18 hours per day of private duty skilled nursing hours. It isnot disputed that Marketric is a medically fragile child. He is chronically unstable. The testimony of Dr. H erran shows that Marketric is in need of consistent car e from a nursing professional. Although Ms. Lynah, Marketric’s mother, can performsome custodial duties inMarketric’s care, she cannot perform deep suctioning, which Ma rketric often requires, and Dr. Herran is concerned about Ms. Lynah’s ability to care for Marketric in an emergency. Further, Dr. Herran testified that Ms. Ly nah, w ho is 73 years old, has difficulty m oving Marketric given his weight and his lack of control of his m uscles. Additionally, Marketric needs professional care for suctioning as well as to constantly monitor his seizure activity to ensure he is receiving the proper mediation. Mark etric’s current skilled nurse provides treatm ents to Marketric, such as ap plying a vest to m obilize secretions, attaching his leg braces, and performing deep suctioning, that are complicated and potentially dangerous if mishandled. Further, the Departm ent’s reasons for weaning Marketric from his current level of skilled nursing care--that he had been relatively stable and had not been hospitalizedrecently--do not establish that the l ower number of hours m eets the m edically necessary num ber of hours. The Defendant’s failure to provide sufficient skilled nursing hours to Marketric breached the Defendant’s duty to ensure that Markertic’s private duty nursing care is sufficient

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in amount, duration, and scope to reasonably achieve its purpose. The testimony of Dr. Miller does not alter the above conclusions. Dr. Miller
had not treated either of the Plaintiffs and had not even reviewed their m edical records. Likewise, Karis Morneau’s testimony does not alter the above conclusions because she has not treated the Plaintif fs an d because her assertion that the only skilled nursing needs the Plaintiffs have are their need for a nurse to provide skilled nursing assessments was not credible. Tanya Hill’s testimony that Michelle Eaves could simultaneously sleep and provide the care R.E. needs at night indefinitely was not credible.
Accordingly, the Plaintiffs have m et their burden in showing that the application to the Plaintiffs of GAPP’sstated policy of reducing skilled nursing hours without a change in the child’s conditi on was unreasonable and violative of the Medicaid Act. The Dep artment has not shown that the reductions in the skilled nursing hours provided to the Plaintiffs were based on medical necessity rather than an arbitrary and capricious reduction of hours.
The Plaintiffs have also met their bur den to show that the Defendant has discriminated against them in violation of the Am ericans with Disabilities Act (“ADA”). Under th e ADA, a public entity m ay not discrim inate against qualified individuals based on a disability. 42 U.S.C. § 12132. “A public entity shall

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administer services, programs, and activitiesin the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The Supreme Court has construed the ADA's integration mandate and concluded that the discrimination forbidden under Title II of the ADA includes “unjustified institutional isolation” of the disabled. Olm stead v. L.C. ex rel. Zimring , 527 U.S. 581, 600 (1999). “Thus, underOlmstead and the applicable ADA regulations, when treatment professionals have determined that community placement is appropriate for disabled individuals, those individual s d o n ot oppose the placem ent, and the provision of services would not constitute a ‘fundamental alteration,’ states are required to place those individuals in community settings rather than institutions.” Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1181 (10 th Cir. 2003); Pashby v. Delia , 709 F.3d 307, 322 (4th Cir. 2013) (“individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II [of the ADA] claims becausethey face a risk of institutionalziation.”). The Plaintiffs may succeed on their ADA claim if the Defendant’saction places them at a “high risk” of premature entry into institutional isolation. Id.at 1185. Here, because the Defendant was not providing the medically necessary level of care, or was attempting to reduce the level of care below the medically necessary level, the Plaintiffs were at a high risk of entering an institution to receive the medical services for which they qualify.

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Because t hey have m et their burden with respect to their claim s under the Medicaid Act and the ADA, the Plaintiffs are entitled to relief. The Plaintiffs seek a permanent injunction against the Departm ent preventing them from reducing their hours of skilled nursing care. A plaintiff seeking a perm anent injunction m ust demonstrate: (1) that he has suffered an irreparable injury; (2) remedies available at law, such as monetary damages, are inade quate to com pensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a rem edy in equity is warranted; and (4 ) th e public interest would not be disserved by a permanent injunction. Angel Flight of Geogria, Inc. v. Angel Flight America, Inc, .522 F.3d 1200, 1208 (11th Cir. 2008). Both Plain tiffs would be irreparably harm ed by reductions in skilled nursing hours below the medically necessary level of care. The testimony showed that both Plaintiffs coulddie from inadequate suctioning, seizures, or frequent hospital visits leading to infec tions. R.E. is currently being irreparably harmed due to the limited nursing hours she is now receiving. Neither Plaintiff can earn relief under the Medicaid Act in the form of monetary damages. The balance of harms analysis favors the Plaintiffs as the testimony showed it is in the best interest of the children to be treated at home wi th their families rather than face repeated hospitalization or even institutionalization. The public interest is also better served by having these children live at home rather than having the public shoulder the costs

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Case 1:08-cv-02930-TWT Document 199 Filed 09/27/13 Page 33 of 34
of repeated hospital visits or institutionalization. Therefore, the Plaintiffs are entitled to permanent injunctive relief.
III. Conclusion For the reasons set forth above, the Plaintiffs are GRANTED declaratory permanent injunctive. Accordingly, the Court ORDERS as follows: 1. The Defendant is enjoined from reducing the skilled nursing care hours provided to Plaintiff R.E. below 18 hoursof skilled nursing care per day for 180 days from the date of this Order or until further Order of this Court. 2. The Defendant is enjoined from reducing the skilled nursing care hours provided to Plaintiff Marketric Hunterbelow 18 hours of skilled nursing care per day for 180 days from the date of this Order or until further Order of this Court. The Defendant’s Motion to Strike [Doc. 196] is DENIED. The Court directs the Clerk to enter judgment for Marketric Hunter and R.E. consistent with this Order. The Court directs the Clerk to enter judgment in favor of Zachary Royal based on the permanent injunction granted in his favor. [Doc. 113]. The Court directs the Clerk to close the case with respect to Pl aintiffs J.M. and S.R. as they accepted the Defendant’s offers of judgment. [Doc. 185].

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Case 1:08-cv-02930-TWT Document 199 Filed 09/27/13 Page 34 of 34
SO ORDERED, this 27 day of September, 2013.
/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ZACHARY ROYAL a minor child, by and through his father and legal guardian, RAYMOND ROYAL et al.,
Plaintiffs,
v.
DAVID A. COOK Commissioner of the Georgia Department of Community Health,
Defendant.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

ORDER

This is an action seeking injunctive relief against the Georgia Department of Community Health. It is before the Courton the Plaintiff Zachary Royal’s Motion for a Preliminary Injunction [Doc. 86] which is GRANTED. At the evidentiary hearing on May 3, 2012, the parties agreed that the record on the motion would constitute the record for a determination on the merits of the case. This Order constitutes my ruling on the motion and my findings of fact and conclusions of law on the m erits of the case.

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I. Findings of Fact 1. Since P laintiff Zachary Royal wa s 2 years old, he has received Medicaid-funded nursing services fromGeorgia’s Department of Community Health (the “Department”) and its predecessor agencies. Un der the Medicaid Act, a participating state is requiredto provide certain categoriesof care to eligible children, including early and periodic screening, diganostic and treatment services (“EPSDT”). In Georgia, a child who is enrolled asa member of the Georgia Pediatric Program1 is eligible to receive private duty nursing services2. While the Plaintiff has been enrolled in the Georgia Pediatric Progar m, the Department has approved him to receive private duty nursing services in his hom e. Since 2003, he has been receiving 84 hours of nursing care a week in his home. 2. On June 23, 2011, the Department notified the Plaintiff that his hours of approved skilled nursing services were being reduced from 84 to 77 hours effective July 23, 2011. Four weeks later, another reduction wouldgo into effect, from77 hours

1This is a Georgia Medicaid program that provides continuous skilled nursing care to medically fragile children. It is referred to as “GAPP.”

2Private duty nursing services is defined as“nursing services for recipients who require more individual and continuous carethan is available froma visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility.” 42 C.F.R. § 440.80. These services are provided by a registered nurse or nurse practitioner under the direction of the recipi ent’s physician at either the recipient’s home, a hospital, or a skilled nursing facility. Id.

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to 70 hours. The Notice reflected checked boxes and additional information, quoted

below:

Rationale for this decision is as follows:

 Skilled nursing hours m ay be reduced over tim e based on the

medical need of the m ember and the stability of the child’s

condition (see GAPP Manual § 803, Letter of Understanding,

Appendix L).

 Your child has received the same amount of nursing hours since

6/2/03.

 The nurses notes reviewed for the past three m onths docum ent the

stability of your child’s condition.

 Your child’s condition has remained stable with no exacerbation s in

disease process or hospitalizations since last pre-certification period.

 There is no evidence fromthe documentation submitted that the current

hours are m edically necessary to co rrect or am eliorate the chi ld’s

medical conditio n ( see 42 USCS § 1382h)(b) [sic] , O.C.G.A. §

49-4-169.1) and GAPP Manual § 702.2(A)).

 Other reason(s):

• Zachary’s skilled c are ne eds a re ide ntified a s: tota l a ssistance

with ADL’s including positioning, oxygen adm inistration when

needed, Bi-Pap use at night and when ill, CPT with vest treatment,

in-exsufflator use with nebulizer treatm

ents, m edication

administration, and suctioning as needed. These do not require a

skilled nurse.

• Skilled nursing care services will be reduced when the m edical

condition of the m ember stabili zes to give m ore of the

responsibility of the care of the member to the parent(s) and or

caregiver(s). One of the goals ofthe Georgia Pediatric Program is

to teach the parents and caregivers how to care for the member in

the absence of a nurse. The Georgia Pediatric Program (GAPP)

is not intended to be a perm anent solution to skilled care. It is a

teaching program. (See GAPP Manual, Section 803(A)c).

• Non-Covered Services GAPP Services include services for

individuals requiring excessive hours of nursing care for an

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• • • • (P. Ex. 10).

extended period or for an indefinite period of time (See Manual §

905(d)).

Members served by the GAPP program are required to meet the

same level of care as for admission to a hospital or nursing facility

and must be Medicaid eligible. (GAPP Manual § 601(See 42 CFR

§ 409.31-409.34 and 42 CFR § 440.10).

Please refer to the GAPP Policy and procedure manual for more

information about the GAPP Program

at:

https://www.ghp.georgia.gov/wps/output/en US

/public/Provider/MedicaidManuals/2010-1 GAPP v.9 pdf

Non-Covered Services include services for back up support or

respite purposes for the prim ary or secondary caregiver (GAPP

Manual § 905 (g).

If Zachary’s health status changes, requires hospitalization, or new

skilled needs are identified please have h is agency contact the

GAPP Nurse and update her on these changes.

3. The Plaintiff’s primary treating physician is Dr. Daniel Torrez, a pediatric

lung specialist. Dr. Torrezhas treated Zachary for his underlying condition since the

fall of 2010. Previously, Zachary was a patient of Dr. Teague, a professor at Emory

University. Dr. Torrez impressed me as a very competent and caring physician. At the

evidentiary hearing, he testified that the underlying condition Zachary has is called

Werdnig-Hoffman Disease, or SMA type 1. SMA is spinal m uscular atrophy, a

genetic disorder that affects a part of the nervous system controlling voluntary

muscles and muscle function. (T. Tx. p. 49). It is a progressive disease. Commonly,

patients with SMA type 1 die in early childhood, by age 2 years. (T. Tx p. 51).

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4. SMA affects the respiratory musclesvery significantly. (T. Tx. p. 49). It is difficult to breathe normally, to be able toget the air in and out of the lungs. (T. Tx. p. 50). When Dr. Torrez first began seeing him, Zachary had been using for years non-invasive ventilation through BiPAP, a bi-level pressure support. (T. Tx. p. 54). He has a hard time being able to keep hislungs inflated, leading to problems with his oxygen and carbon dioxide levels. (T. Tx. p.50, 53). The settings on the BiPAP have been increased because of the results of his sleep studies showed that he was having “obstructive events where he was trying to breathe but not being able to breathe adequately.” (T. Tx. p. 54). The settings now used provide a “significant” level of support. His need for support in breathing is expected to incr ease as his condition worsens.
5. Zachary has had issues fighting infections and when he was m uch younger he required frequent hospitalizations. (T. Tx. p. 50). Dr. Torrez testified that, with technology and knowing more about the disease, “we are able to intervene and help them out with a variety of modalities to help them fight infections, hopefully to be able to stay at home and not come into the hospital as often as sometimes they do.” (T. Tx. p. 50). It is unusual for a patient with Zachary’s disease not to have needed to come into the hospital more frequently. (T.Tx. p. 52). Dr. Torrez attributes Zachary’s ability to stay out of the hospital in part o the good care that he has received at home.

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(T. Tx. p. 52). Patients who do not have good care at hom e come into the hospital more frequently with respiratory complications. (T. Tx. p. 52).
6. Dr. T orrez opi ned t hat pa tients l ike Z achary ne ed 24-hour, seven-day-a-week care from a licensed nurse, based upon “what we know about his medical condition and the care that’s involvedin taking care of these patients.” (T. Tx. p. 53, 58-59). His letter of medical necessity states that Zachary needs “at least” 84 hours per week of skilled nursing care. (Plaitniff’s Exhibit 2). If hospitalized, Zachary would be admitted to the intensive care unit or technology dependent intensive care unit, where the staffing ratio is 1 nurse for 2patients, because that is the level of care required of patients such as Zachary. (T.Tx. p. 55). Zachary’s condition has recently deteriorated. (T. Tx. p. 53-54). Dr. Torrez testified that Zachary will not get better and will just get worse. (T. Tx. p. 55).
7. Zachary’s mother died five years ago. Until her death, she was Zachary’s primary caregiver. (T. Tx. p. 5). Kath leen Tondee, Zachary’s primary licensed practical nurse, has been providing care to him for more than 16 years. She testified by Declaration and at trial. Ms. Tondee testified that Zachary’s nurses work 12 hours each day, 7 days a week, typically from 7 am to 7 pm. The nurses perform head – to – toe assessments of Zachary’s body systems at the beginning and end of each 12 hour shift. Zachary is also assessed throughout the day as the nurses are providing care,

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observing, and interacting with him . Ms . Tondee testified th at th ese assessm ents

require the use of nursing judgment followed up with appropriate intervention. The

nurses practice “aspiration precautions” while caring for Zachary, especially during

mealtimes when the risk of sapiration is greatest. The point of “aspiration precautions”

is to prevent aspiration. (T. Tx. p. 45). The fact that Zachary did not aspirate while

aspiration precautions were being implemen ted means that they were successful.

Signs of a spiration w ould be bre ath sounds that w ere a dverse, rhonc hi or ra les,

difficulty breathing, desaturation, and fever. (T.Tx. p. 35). Ms. Tondee testified that

she did not think that Mr. Royal is com petent to recognize the breath sounds. She

believes that he could potentially learn the mechanics, the technique, but not making

the judgment that this is som ething that needs to be addressed now. (T. Tx. p. 35).

Mr. Royal testified that he is unable to do deep suctioning on Zachary because it

causes Zachary pain and he might injure Zachary’s lungs. (T. Tx. p. 8-9).

8. Ms. Tondee provides total nursing care to Zachary, including care

management, to access resources for

him, obtain supplies, m ake doctor’s

appointments, am ong other things. (T. Tx. p. 25). Zachary does not have a case

manager and Ms. Tondee is not aware of anycase management that he could have. (T.

Tx. p. 26). Zachary travels to doctor’sappointments in a handicap-accessible van in

which Zachary’s wheelchair canbe secured. His father dirves, and Ms. Tondee travels

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with Zachary to provide him with care during the trip. She does so without any compensation, signing out of work when sh e goes with them. (T. Tx. p. 26). Ms. Tondee attends appointments to obtain information so that she can explain what the doctor is saying to Zachary’s father, who doesn’t understand everything that the doctor is saying. (T. Tx. p. 27).
9. Previously, the Departm ent and GMCF required nursing providers to complete a 13 page nursing assessment by the nursing agency provider on a document identified as “Appendix K” a nd also provide a separate letter of m edical necessity from the child’s physician to explain the medical necessity of the nursing care ordered by the physician. In Spring 2011, the Department and GMCF replaced Appendix K and the physician’s letter of medical necessity with a one page document identified as “Appendix I, Medical Necessity/Levelof Care Statement Admission or Continued Stay.” Ms. Collins testified that a lthough it was no longer required by GMCF, nothing actually prevents a physician fromsending a letter of medical necessity along with the Appendix I. (T. Tx. p. 83-84).The physician, primary caregiver and nursing agency provider sign to “attest that the baove information is accurate and this member meets Pediatric Level of Care Criteria and req uires skilled nursing care that is ordinarily provided in a nursing facility or other institutional setting.” (Plaintiff’s

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Exhibit 11 at I-1). Dr. Torrez’s letter ofmedical necessity was provided to GMCF as part of the administrative review of the reduction in hours. (Plaintiff’s Exhibit 2).
10. On or about April 1, 2003, DCH contracted with the Georgia Medical Care Foundation (“GMCF”) to perform reviews and determine, among other things, the eligibility and med ical necessity of GAPP members. GMCF’s medical review team is composed of the medical director, a licensed pediatric neurologist, and nurses. Karis Morneau is a registered nurse employed by GMCF to review the documentation provided in the GAPP packets to determ ine the number of hours of skilled nursing would be approved for a child under the GAPP program. Ms. Morneau has been a nurse for 18 years and has worked in pediatric home care, in a pediatric physician‘s practice, and in hospital environments. Ms. Morneau testified that there was no set number that GMCF was looking to reduce Zachary’s hours to . It depends on each review period. “We were looking to go just anhour a day to start off to see if he does well with that.” If he doesn’t then the agency sends in another packet through a change request. If he’shad a hospitalization, if they seethat he is not tolerating being weaned down to 10 hours a day, an exacerbation that’s requiring new skilled nursing needs, more teaching for the father, then, ofcourse, we would review him again. (T. Tx. p. 100-109). Ms. Morneau’s opinions concerning the care needed by Zachary are

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entitled to little weight compared to that of Dr. Torrez and the Defendant’s reliance upon her to show that Zachary is “stable” is unreasonable.
11. Dr. Gary Miller is employed by GMCF as the medical director of medical management services. He practiced neurology and pediatric neurology for 25 years before closing his practice to work full time for GMCF. He has oversight of all Medicaid review activities in all areas, including the GAPP program. He does some of the GAPP reviews, primarily the reconsiderations or appeals that come in. (T. Tx. p. 123). In perform ing GAPP r eviews, Dr. Miller has access to all of the m edical history and inform ation that is in GMCF’s system , including all previous GAPP submissions, any request for an inpatient hospital stay, certain radiology procedures that might have been done, if it has requirde peer review fromGMCF. (T. Tx. p. 125).

12. Dr. Rosenfeld, who did not testify, was the physician reviewer for the initial determination of reduction in hours. (T. Tx. p. 128). Dr. Miller did not have any form al orientation to the GAPP program when he assum ed responsibility as medical director in 2007. He learned about the program from being with the nurses and Dr. Rosenfeld. There have always been periodic meetings between Department staff and GMCF staff and a monthly jo int m eeting with staff from GMCF, the Department, and the private GAPP provider agencies. (T. Tx. p. 129).

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13. Dr. Miller testified that “obviously the care that he has gotten has prevented many of the complications that you often see with spinal muscular atrophy.” (T. Tx. p. 138). Dr. Miller further testifie d that “nursing care doesn’t influence the progression of the neurological disease. Th ere is no treatment for spi nal muscular atrophy and skilled nursing services are not going to affect the underlying progression of his neuromuscular disease.” (T. Tx. p. 138-9). Dr. Miller has never met Zachary Royal. He does not recall looking at anythni g other than Dr. Torrez’s letter and some nursing notes on his review of the previousdecision to reduce hours. (T. Tx. p. 139). The length of time that the child has been in the programmatters because they would have the expectation that his caregiver woudl have been taught and be able to assume some of his care at home. (T. Tx. p. 140).
14. Miriam Henderson was em ployed as a program specialist at the Department of Com munity Health fro m 1998 until 2010. (T. Tx. p. 60). She was responsible for policy under the GAPP progarm after GMCF took over responsibility for case management in 2003. (T. Tx. p.60-61). The GAPP programprovided skilled nursing services to m edically fragile ch ildren on a continuous basis. GAPP was a teaching program to train parents how to take care of their children in the absence of a nurse. (T. Tx. p. 72). One thing that GAPP required was that a child could not leave the hospital without training the parent how to care for the child in the absence of a

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nurse. Children in the GAPP program were supposed to have two caregivers. Many parents did not have a secondary car egiver. When GMCF began assum ing responsibility for GAPP, there were mee tings between the Departm ent and the medical director and nurses from GMCF. The meeting mi nutes reflect what was discussed at the m eetings and identify follow up issues. Plaintiff’s Exhibit 16 discussed “Review Guidelines” for the program. These Guidelines include tapering schedules. Nursing hours were to be reduced following the suggested schedule. The Guidelines directed that all cases will eventually be tapered. The Guidelines state that the goal of the tapering schedules is that all cases will eventually be weaned off the program if possible. For children seeki ng renewals where there was no change in condition, GMCF was to either decrease skilled nursing hours or keep them at the same level. The Guidelin es provided that GMCF could assign 50 hours of skilled nursing hours per week for 6 months if one parent works and the secondary back-up caregiver is home. If both parents work orif one parent works and the secondary back up caregiver is not in the home, GMCF can assign 56 hours of skilled nursing for 6 months. According to the renewal guidelines, the goal is to decrease skilled nursing to 40 hours per week or less nad eventually wean the childoff the programif possible. In the August 2005 GAPP m eeting, the medical directors of DCH and GMCF discussed the need to contact physicians to retrain them on the GAPP program goal

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of weaning the children off the program once the parents are trained caregivers. (Plaintiff’s Exhibit 17). In the April2006 GAPP meeting, GMCF’s medical director Dr. Rosenfeld requested inform ation on the weaning goals of the program . DCH stated that the goal of the programwas to wean down to only needed hours but not to wean off the program unless no skilled needs “due to EPSDT requirem ents.” Dr. Rosenfeld indicated that weaning education is needed for physicians, providers and hospital discharge planners as it appears that there is a conflict of interest since physicians want to m ake money for business reasons, therefore, children are not weaned when they possibly coul d b e. Dr . Rosenfeld believed this to be the case because he had bowed to pressure to keep a patient’s family happy. Also discussed was the requirem ent that each child m ust have a secondary caregiver, and if no secondary caregiver is available, then GM CF was to notify the legal staff at DCH. (Plaintiff’s Exhibit 18). In the June 2006 GAPP m eeting, DCH clarified that the overall program goal is “to wean down to the needed hours but not wean off the program unless no skilled needs are identified.” (Plaintiff’s Exhibit 19).
15. The Plaintiff introduced GAPP m eeting m inutes from 2003 through 2006. At the GAPP meeting in April 2003, DC H discussed the transition of the GAPP program from DCH to GMCF. The weekly GAPP Medical Review Team meetings were discussed. The nurses on the team complete a case document review

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and then make recommendations to the medical director. Final decisions of the team are a group process. Also discussed was the importance of maintaining the weaning schedule. (Plaintiff’s Exhibit 15). In the June, 2003 GAPP meeting, DCH and GMCF discussed “Review Guidelines” for the program. These Guidelines included tapering schedules. Nursing hours were to be reduced following the suggested schedule. The Guidelines dir ected that all cases will eventually be tapered. The Guidelines state the goal of the tapering schedules is that all cases will eventually be weaned off the program if possible. For children seeking renewals of nursing hours where there was no change in condition, GMCF was to either decrease skilled nursing hours or keep skilled nursing hours at the same level. The Guidelines provided that GMCF could assign 50 hours of skilled nursing per week for 6 months if one parent is working and one parent is home. If boht parents work or one parent works and the secondary back-up caregiver is not in the home, GMCF can assign 56 hours of skilled nursing per week for 6 months. According to the renewal guidelines, the goal is to decrease skilled nursing to 40 hours per week or less and eventually wean the child off of the program if possible. (Plaintiff’s Exhibit 16). In the August, 2005 GAPP meeting, the m edical directors of DCH and GMCF discussed the need to contact physicians to retrain them on the GAPP program goal of weaning the children off of the program once the parents are trained caregivers. (Plaintiff’s Exhibit 17). In the

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April, 2006 GAPP m eeting, GMCF’s m edical director, Dr. Rosenfeld, requested information on the weaning goals of the porgram. DCH stated the goal of the program is to wean down to only needed hours but not to wean off program unless no skilled needs “due to EPSDT requirements.” Dr. Rosenfeld indicated that weaning education is needed for physicians, providers, and hospital discharge planners as it appears that there is a conflict of interest since physicinas want to maintain good relationships with the parents and the providers want to m ake money for business reasons, therefore, children are not weaned whenthey possibly could be. Dr. Rosenfeld believed this to be the case because he had bowed to pressureto keep a patient’s family happy. Also discussed was the requirement that each child must have a secondary caregiver, and if no secondary caregiver is available, GMCF was to notify the legal staff at DCH. (Plaintiff’s Exhibit 18). In the June, 2006 GAPP meeting, DCH clarified the overall program goal “to wean down the needed hours but not wean off the program unless no skilled needs are identified.” (Plaintiff’s Exhibit 19).
16. GAPP has a policy m anual. The GAPP manual is updated every four months. The version of the GAPP manual in effect at time of the decision to reduce Zachary’s nursing hours was entitled “PART II, POLICIES AND PROCEDURES FOR THE GEORGIA PEDIATRIC PROGRAM (GAPP),” and dated July 1, 2011. (Plaintiff’s Exhibit 11). GAPP policy requiresthat a cost analysis should be made to

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determine that the cost ofcaring for the child in the home and community is below the cost of providing the same care in an institution. (Plaintiff’s Exhibit 11, § 701). GAPP policies require the prim ary caregiver to assist with th e child’s care in the hom e. (Plaintiff’s Exhibit 11, §702.2(B)). The child m ust have available prim ary and secondary caregivers to actively participat e in her care. (Plaintiff’s Exhibit 11, §702.2(C)). The child must need a specified time-limited period of daily continued nursing care, supervision and m onitoring. Hours of nursing m ay be reduced based upon an evaluation of the current medical plan of treatm ent, updated physician summaries, provider agency docum ented current assessm ents and nursing care. (Plaintiff’s Exhibit 11, §702.2(D)). GAPPprovides that skilled nursing care services will be reduced when the medical condition of the child stabilizes to give more of the responsibility of the care of the child to theparents or caregivers. One of the goals of the GAPP program is to teach the parentsand caregivers how to care for the member in the absence of a nurse. GAPP is not intended to be a permanent solution to skilled care. It is a teaching program. (Plaintiff’s Exhibit 11, § 803A(c)).
17. Dr. Torrez’s opinion as to medically necessary hours of skilled nursing care is entitled to much greater weight than that of Dr. Miller or Dr. Rosenfeld. Dr. Miller reviewed his case on one occasion and based his decision upon summaries of his records. He did not review Zachary’s actual medical records.

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18. Reducing his skilled nursing care by 10 hours a week would deprive Zachary of essential services necessary to maintain his life and health. Raym ond Royal cannot assume another 1.4 hours per day of unassist ed care for Zachary. In June 2011, he was doing all that she could do to care for Zachary. If the nursing hours were reduced, Raymond Royal would have to retire or quit his job. (T. Tx. p. 6). If Raymond Royal quits his job and cannot support Zachary, the child would be institutionalized. (T. Tx. p. 6).
II. Conclusions of Law Congress enacted the Medicaid Act in1965 with the aim of providing medical care for the nation’s poorest and most vulnerable people. Medicaid is a cooperative venture of the state and federal governm ents through which states that elect to participate receive federal fni ancial assistance to furnishmedical assistance to eligible people with low incom es. The law that I will ap ply in th is case is set out in the opinion of the Court of Appeals for the Elev enth Circuit in Moore ex rel. Moore v. Reese, 637 F.3d 1220 (11 th Cir. 2011) (“Moore II ”). I will not repeat the lengthy discussion of the Medicaid Act and Regul ations and the history of the EPSDT program. And I will not repeat the discussion of the court precedents. Near the end of the opinion, the Court of Appeals sum marized the guiding principles to be applied to a case such this. They are as follows: (1) Georgia is

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required to provide private duty nursing services to [Zachary Royal], who meets the EPSDT eligibility requirements, when such services are medically necessary to correct or am eliorate his illness a nd condition. (2) A state Medicaid plan m ust include reasonable standards for determ ining elig ibility for and the extent of m edical assistance—here, the extent of private duyt nursing services for [Zachary Royal]—and such standards must be consistent with the objectives of the Medicaid Act, specifically its EPSDT program . (3) A state m ay adopt a d efinition of m edical necessity that places limits on a physician's discret ion. A state may also lim it required Medicaid services based upon i ts j udgment of degr ee of m edical necessity so long as such limitations do not discrim inate on the ba sis of the kind of m edical condition. Furthermore, a st ate m ay e stablish st andards for i ndividual physicians t o use i n determining what services are appropriatein a particular caseand a treating physician is required to operate withinsuch reasonable limitations asthe state may impose. (4) The treating physician assum es the prim ary responsibility of determining what treatment should be made available to his patients. Both the treating physician and the state have roles to play, however, and a private physician's word on m edical necessity is not dispositive. (5) A statemay establish the amount, duration, and scope of private duty nursing services provided undrethe required EPSDT benefit. The state is not required to provide medically unnecessary, albeit desirable, EPSDT services.

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However, a states' provision of a required EPSDT benefit, such as private duty nursing

services, must be sufficient in amount, duration, and scope to reasonably achieve its

purpose. (6) A state may place appropriate limits on a service based on such criteria

as medical necessity. In sodoing, a state can review themedical necessity of treatment

prescribed by a doctor on a case-by-case basis, and may present its own evidence of

medical necessity in disputes between the state and Medicaid patients. Id. at 1255.

The Court of Appeals concluded:

So, the pivotal issue is only whether 84 hours are sufficient in amount to reasonably achieve the purposes of private duty nursing services to correct or ameliorate Moore's condition. In this regard, the inquiry hingse on whether DCH -- in exercising its ability to “place appropriate limits on a service based on such criteria as medical necessity,” --fulfilled or breached its concom itant duty to ensure that Moore' s private duty nursing care is “sufficient in amount, duration, and scope to reasonably achieve its purpose.”

Id. at 1257-58.

Under the Americans with Disabilities Act, a public entity may not discriminate

against qualified individuals based on a disability. 42 U. S. C. § 12132. “A public

entity shall administer services, programs, and activities in the most integrated setting

appropriate to the needs of qualified i ndividuals with disabilities.” 28 C.F.R. §

35.130(d). The Suprem e Court has constr ued the ADA's integration m andate and

concluded that the discrim ination forb idden under Title II of the ADA includes

“unjustified institutional isolation” of the disabled. Olmstead v. L.C. ex rel. Zimring,

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527 U.S. 581, 600 (1999). “Thus, under Olmstead and the applicab le ADA regulations, when treatment professionals have determined that community placement is appropriate for disabled individuals, those individuals do not oppose the placeemnt, and the provision of services would not constitute a ‘fundamental alteration,’ states are required to place those individuals in community settings rather than institutions. Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1181 (10th Cir. 2003). The Plaintiff may succeed on his ADA claim if the Defendant’s action places him at a “high risk” of premature entry into institutional isolation. Id. at 1185.
The Plaintiff has met his burden to establish by a preponderance of the evidence that 84 private duty nursing hours are m edically necessary. First, the evidence is undisputed that Zachary is a medically fragile child who requires skilled care 24 hours a day 7 days a week. Zachary has a degenerative condition that significantly impairs him and has gotten worse in the last year. The testimony of Dr. Torrez and the other evidence presented at trial establish that Zachary is chronically unstable, and that is why he needs the degree of skilled nursingcare that Dr. Torrez has recommended. I do not find credible the testim ony of Ms. Morneau and Dr. Miller that Zachary’s condition is stable. Second, Dr. Torrez’s opinion as to m edical necessity is m ore persuasive and is entitled to mu ch g reater weight than that of Dr. Miller or Ms. Morneau. Dr. Torrez is Zachary’s treating physician. He has based his opinion as to

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medical necessity for skilled nursing for Zachary upon his examination of Zachary, his knowledge of Zachary and his medical history and condition, and the progression of Zachary’s condition. Neither Ms. Morneau nor Dr. Miller has ever met Zachary. Neither witness provided any evidence that Zachary’s condition had improved nor any evidence about any increase in the ability of Zachary’s father to provide skilled care that would justify re ducing his hours. In m aking the decision to reduce Zachary’s nursing hours, the Defendant completely ignored Dr. Torrez’s letter of July 8, 2011. Third, I am convinced that the real reason for reducing Zachary’s nursing care hours was not due to an individuali zed determination of medical necessity but due to the policy and practice of Defendant’s GAPP program to wean nursing care and to shift more of the burden of skilled care to his parent caregiver over time. Application of that policy to Zachary was unreasonable ebcause his condition was not improving and his father’s competency to provide skilled care had not increased. The reduction in hours was arbitrary and capricious and wasnot based upon medical necessity. Fourth, the reduction in nursing hours places Zachary at high risk of prem ature entry into institutional isolation. In conclusion, Defendant’s reduction of Zachary ‘s nursing hours from 84 hours to 77 hours and finally to70 hours per week are not sufficient in amount to reasonably achieve the purposes of correcting or ameliorating Zachary’s condition. Georgia has breached its duty toensure that Zachary’s private duty nursing

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care is sufficient in am ount, duration, and scope to reasonably achieve its purpose. Therefore, the Plaintiff is entitled to relief on his claim for violation of the Medicaid Act. He has also shown that the Defendanthas discriminated against him in violation of the Americans with Disabilities Act.
A plaintiff seeking a perm anent injunction m ust demonstrate (1) that he has suffered an irreparable injury; (2) rem edies av ailable at law, such as monetary damages, are inadequate to compensate forthat injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest wouldnot be disserved by a permanent injunction. Angel Flight of Georgia, Inc. v. Angel Flight America, Inc., 522 F.3d 1200, 1208 (11th Cir. 2008). A significant reduction in nursing hours for Zachary Royal would put his health and life at risk. If Defendant Cook were pe rmitted to proceed with his decision to significantly reduce Zachary’s nursing hours, Zachary would be irreparably harmed. The balance of the harms favors the Plainti ff; and it is in the p ublic interest for Zachary to continue to live at home with his father rather than be institutionalized at public expense. Therefore, the Plain tiff is entitled to a perm anent injunction prohibiting the Defendant fromreducing his hours of skilled nursing care until further Order of this Court.
III. Conclusion

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For the reasons set forth above, the Plaintiff Royal’s Motion for a Preliminary Injunction [Doc. 86] is GRANTED. On the merits of his Medicaid Act and ADA claims, the Plaintiff is entitled to perm anent injunctive relief and a declaratory judgment prohibiting the Defendant fromreducing his nursing hours according to the terms of the Final Determination dated August 3, 2011.
SO ORDERED, this 15 day of June, 2012.
/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

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 Case 1:08-cv-02930-TWT Document 185 Filed 08/05/13 Page 1 of 6

IN TITE LINITED STATES DISTRICT COURT NORT}IERN DISTzuCT OF GEORGIA ATLANTA DIVISION

MARKETRIC HLTNTER, u roirrl, child, *

by and through his mothel and legal

1.

guardian, TI{ELMA LYNAH,

ú

ZACIIARY ROYAL, S.R., a minor child, by and through her father and

*
*

* natural guardian CIIARLES REGNA, +
J.M., a minor child, by and through his

grandmother and next fi'iend MINNIE *

MANUAL, R.8., a minor child, by and +

through her mother and natural guardian *

MICHELLE EAVES,

*

*

Piaintiffs,

+

*

ú V.
*

DAVID A. COOK, in his Official

.t¡

Capacity as Commissioner of the DEPARTMENT OF COMMI-INITY

+
*

HEALTH

*

+

Defenclant.

*

CIVIL ACTION
1:08-CV-2930-TWT

OFFER OF JUDGMENT PURSUANT TO F.R.C.P. 68

Pursuant to Rule 68 of the Federal Rules of Civil Proceclure, Defendant

makes this Offer of Judgment. This offer is being made on behalf of and with

the consent of Defendant in the above action. In the event that Plaintiffs accept

this offer, Defendant shall be notified in writing within 14 days of receipt of this

offer.

Case 1:08-cv-02930-TWT Document 185 Filed 08/05/13 Page 2 of 6
Plaintiffs shall be on notice that in the event this offer is not accepted and Plaintifß receive a judgrnent which is equal to or less then the relief offered,
they will be responsible for the costs and attorneys' fees incumed subsequent to the receipt of this offer. Plaintifß are further notified that their attorneys' fees will be cut off frorn the date of this offer.
TLis Offer of Judgment inciudes:
r
(2)Defendant shall approve and Plaintiff S.R. shall receive sixty (60) hours of skilled nursing services per week for the next twelve (12) months through GAPP or any successor program thereto. At the conclusion of the twelve (12) month period, Defendant will conduct
an assessment of S.R.'s medical condition as required by CMS. All future assessments of S.R. will be conducted on an annual basis;

Case 1:08-cv-02930-TWT Document 185 Filed 08/05/13 Page 3 of 6
(3)Defendant shall approve and Plaintiff J.M. shali receive seventy (70) hours of skilled nursing selvices per week for the next twelve (12) months through GAPP oI any successor progmm thereto. At the conclusion of the twelve (12) month pedod, Defendant rvill conduct an assessment of J.M.'s medical condition as lequired by CMS. All future assessments of J.M. will be conducted on an annual basis;
(4)

(5)If, during the cunent twelve (12) month period or a future twelve (12)

I., orf month period, Plaintifß

S.R., J.M.,

experience a change

in medical condition which necessitates additional skilled nursing

hours, the review of a request for additional hours will be expedited

through GAPP. The request for additional hours must be made

through the web portal in order to be acted upon. The request will be

acted upon and a response given within five (5) business days of

receipt of a proPer request;

Case 1:08-cv-02930-TWT Document 185 Filed 08/05/13 Page 4 of 6
(6)Whenever there should be an increase in skillecl nursing hours in response to a particular event, such as a surgical procedure, which necessitates a temporaly increase in nursing hours, such increase shall not be considered Permanent;
(7)The number of skilted nursing hours will not be reduced below that specified for each Plaintiff per week unless there is a significant
improvement in the medical condition and the parents consent to the proposed reduction upon the conclusion of the Defendant's annual
assessment;
(8)The foregoing shall apply so long as each individual Plaintiff is' Medicaid-eligible, i s medi cally fragile with multi-system diagno ses requiring skilled nursing care, culïently provided by GAPP, (as outlined in the Pediatric Nursing Facitity Level of Care Criteria), and is under the age of twenty years, eleven months; and,
Defendant states that this Offer of Judgment does not admit any wrongdoing, guilt or responsibitity on the part of Defendant, and the parties do not consent to its use in any fuither or other proceedings.

Case 1:08-cv-02930-TWT Document 185 Filed 08/05/13 Page 5 of 6

Respectfully submitted thís /day of July, 2013,

SAMUEL S. OLENS
Attorney General

551540

DENNIS R. DLINN
Deputy AttorneY General

234098

/s/SHALEN SIIALEN S.

S. NELSON
NELSON

636575

Senior Assistant Attorney General

/s/IvIICFIELLE TOÏVNES
Georgia Bar No.
Assistant AttorneY General

714924

/s/JASON S. NAUNAS
Georgia Bar No.
Assistant AttorneY General Attorneys for Defendant

I4205I

PLEASE SEND ALL
COMMUNICATIONS TO: MICFTELLE TOWNES
JASON S. NALTNAS Assistant AttorneY General
40 Capitol Square, S.V/. Atlanta, Georgia 3 03 34- 1 3 00 Telephone : 404-65 6-33 57
Facsimile : 404-463-1062 E-mail : mtownes @larv. ga. eov E-mail : jnaunas@law. sa. gov

Case 1:08-cv-02930-TWT Document 185 Filed 08/05/13 Page 6 of 6

CERTTFICATE OF SERVICE
I hereby certifi' that I have this day serr¿ed the foregoing OFFER OF
fUDGMENT by United States Postal Service, first-class, postage prepaid, to the
following:
Paula Rafferfy, Esq. Joshua H. Norris, Esq. Georgia Advocacy Office 150 E. Ponce De Leon Ave. Suite 430 Decatur, Georgia 30030

p/ fnis

day of July, 2013.

s/IvIICHELLE TOWNES Georgia Bar No. 7t4924 Assistant Attorney General Counsel for Defendant Cook

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER a minor child, by and through his mother and legal guardian, Thelma Lynah, et al.,
Plaintiffs,
v.
DAVID A. COOK Commissioner of the Georgia Department of Community Health,
Defendant.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

OPINION AND ORDER

This is an action seeking injunctive and declaratory relief against the Georgia Department of Community Health. It is before the Court on the Defendant’s Motion for Partial Sum mary Judgm ent [Doc. 158] . For the reasons set forth below, the Defendant’s motion [Doc. 158] is GRANTED in PART and DENIED in PART.
I. Background The Plaintiffs in this case receive Medicai d-funded private duty nursing services from Georgia’s Departm ent of Community Health (“DCH”). Un der the Medicaid Act, Georgia is required to provi de certain categories of care to elig ible

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children, including early and periodic scr eening, diagnostic and treatment services (“EPSDT”). In Georgia, a child who is ernolled as a member ofthe Georgia Pediatric Program (“GAPP”), which provi des EPSDT services, is eligible to receive pr ivate duty nursing services. Private duty nursing services are defined as “nursing services for beneficiaries who require more individual and continuous care than is available from a visiting nurse or routinely provide d by the nursing staff of the hospital or skilled nursing facility.” 42 C.F.R. § 440. 80. These services are provided by a registered nurse or nurse practitioner under the direction of the recipient’s physician at either the recipient’s home, a hospital, or a skilled nursing facility. Id.
The Plaintiffs ar e children who have received private duty nursing services through GAPP. Each Plaintiff suffers from multiple system medical diagnoses and requires ongoing care. The Plaintiffs contendthat they have been denied sufficient hours of private duty nursing services because the Defendant has not approved their requests for private duty nursing servi ces based on physician recom mendations. Plaintiff Hunter’s private duty nursing hours were reduced from 84, then to 70, and then to 63, and the Defendant denied hi s request for constant private nursing duty following a painful operation. S.R. c ontends that her physician recom mended 60 hours of skilled nursing care per week but hat the Defendant only approved 40 hours

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and has since reduced that to 36 hours and again to 32 hours.1 J.M. contends that the private nursing hours provided to him were reduced from his personal physicianrecommended 84 hours a week to 70 hours a week. R.E. contends that the Defendant reduced his hours from 60 to 52 but then returned to 60 hours a week after his physician recommended 84 hours a week. (Sec. Am. Compl. ¶¶ 50-104).
The Plaintiffs’ second amended complaint alleges claims for violations of the Medicaid Act and its EPSDT provisions, violations of Title II of the Americans with Disabilities Act (the “ADA”), and violations of theFifthand Fourteenth Amendments. On June 19, 2012, the Court granted perm anent injunctive relief and a declaratory judgment preventing the Defendant from reducing the private nursing services provided to former plaintiff Zachary Royal. On August 2, 2012,the Court denied the Plaintiffs’ motion to certify a class. On January 30, 2013, the Defendant filed the instant m otion for partial sum mary judgm ent. The Defendant moves for partial summary judgment arguing that all of the Pal intiffs’ claims should be dismissed with the exception of those claims related tothe number of skilled nursing hours which are medically necessary for thePlaintiffs to correct or ameliorate their medical conditions.
II. Motion for Summary Judgment Standard

1 Plaintiff S.R. filed a Motion for a Tem porary Restraining Order and Preliminary Injunction on May 6, 2013, con cerning new facts not at issue in this Order. (See [Doc. 175]).

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Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co,.398 U.S. 144, 158-59 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidenceto show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. Discussion The Defendant moves for summary judgment on a variety of grounds. With respect to the Plaintiffs’ allegations undetrhe Medicaid Act, the Defendant argues that (1) the Plaintiffs have not identified the services they have been deprived of under the Georgia Medicaid Program ; (2) the Plainti ffs have not dem onstrated that the Defendant fails to inform them of the scope of services available under the EPSDT; (3) the Plaintiffs have not shown that theDefendant denies or reduces services based on a Plaintiff’s specific illness or condition; (4) the Plaintiffs have not shown that the Defendant applies the wrong standard to requests for nursing services; (5) the

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Plaintiffs have not shown that the Defe ndant violated the law by reducing services based on a Plaintiff’s relative stability; (6) the Plaintiffs have not shown they have been denied medically necessary services;2 (7) the Plaintiffs have not shown that the Defendant denies private duty skilled nursing srevices on the basis of cost; and (8) the Plaintiffs have not shown that they have been denied transport with a nurse to doctor appointments.
The Defendant also contends that it has not violated the Plaintiffs’ rights under the Fifth and Fourteenth Am endments because it does provide adequate notice of decisions on coverage and pr ovides a meaningful opport unity to challenge those decisions. Likewise, the Defendant argues that the Plaintiffs h ave not shown the Defendant has made arbitrary and capricious decisions with respect to the Plaintiffs’ coverage. Finally, the Defendant argues th at the Plaintiffs’ ADA claims mus t fail because the threat of institutio nalization itself is not a cognizable injury under the ADA.
A. The Plaintiffs’ Claims Under the Medicaid Act

2 The Defendant does not move for summary judgment on the issue of whether the Plaintiffs are provided with the m edically necessary am ount of private duty nursing hours, acknowledging that there is aquestion of fact on that issue. SeeMoore v. Reese, 637 F.3d 1220, 1258 (11th Cir. 2011) (concluding that a factfinder should resolve the issue of the am ount of pr ivate duty nursing hours that are m edically necessary).

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1. Whether the Defendant Provi des All Medically Necessary Services

The Defendant contends that the Plai ntiffs have not shown what m edically

necessary services they have been denied under the Georgia Medicaid Program. The

Plaintiffs argue they have provided evidence that case management services, personal

care services, and incontinen ce supplies are covered by the Medicaid Act, see 42

U.S.C. §§ 1396d(a)(19), (24), (25), but not provided by GAPP. (SeeIvy Dep. at 38-

39, 46-47; Kelly Dep. at 84). However, as the Defendant points out, the Plaintiffs did

not list deprivations of these services in their com plaint. Further, the Defendant

argues that these services are available trhough GAPP and Medicaid, and that Plaintiff

Hunter received personal care services via a Medicaid waiver. (See Ivy Dep. at 27,

49; Dubberly Dep. at 140; Lynah Dep. at 21-22). Moreover, the Plaintiffs’ evidence

does not indicate that any Plaintiff was personally deprived of case m anagement

services, personal care ser vices, or inc ontinence supplies. Accordingly, the

Defendant’s motion for partial summary judgment should be granted with respect to

the provision of case management services, personal care services, and incontinence

supplies. However, to the extent the Plaintiffs argue they are not receiving the

medically necessary number of private duty nursing hours from the Defendant, that

is a question for a factfinder and summary judgment should be denied in that respect.

See Moore v. Reese , 637 F.3d 1220, 1258 (11th Cir. 2011) (concluding that a

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factfinder should resolve the issue of theamount of private duty nursing hours that are medically necessary).3
2. Whether the Defendant Inform s the Plaintiffs of the Scope of Services Available Under EPSDT
The Defendant contends that the Plaintiffs have not shown that they were not effectively informed of the scope of se rvices under the EPSDT. The Defendant is required to effectively informall eligible individualsunder 21 and their families about EPSDT. Se e 42 U.S.C. § 1396a(a)(43); 42 C.F.R. § 441.56(a); see also Westside Mothers v. Olszewski , 454 F.3d 532, 543 (6th Cir. 2006). According to the Defendant, healthcare providers are informed of the services available under EPSDT and those services are also listed on the Defendant’s websites. The Plaintiffs argue that the provider manuals carrying the information are difficult to access through the DCH websites. However, the Plaintiffsprovide no case law to support their argument that confusion within the DCH websites is vaiolation of the requirement to effectively inform EPSDT participants. Further, thePlaintiffs offer no evidence suggesting that the Plaintiffs themselves were not effec tively informed of the scope of the EPSDT program. Accordingly, the Defendant’smotion for partial summary judgment should be granted in this respect.

3 The Defendant agrees there is a question of fact in this respect.

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3. Whether the Defendant Denies or Reduces Services Based on the Plaintiffs’ Illnesses or Conditions

The Defendant argues that the Plainti ffs have not shown that the Defendant

reduces or denies services based on the Planitiffs’ specific illnesses or conditions. The

Plaintiffs have provided evidence sugges ting that the Defendant reduces services

based on whether a child needs to be fed and hydrated through a G-tube or a J-tube

and whether a child has seizures. (See Def.’s Mot. for Partial Summ. J., Ex. N; Pls.’

Resp. in Opp’n t o Def.’s Mot. for Partial Summ. J., Exs. A, B, C). However, this

evidence only demonstrates that the Defendnat makes coverage decisions based on the

type of treatments prescribed, not on the type of illnesses or conditions themselves.

For example, the Plaintiffs’ Exhibit A is aninitial notification of denial of additional

private duty nursing hours sent by the Defendantto Plaintiff Hunter. According to the

Plaintiffs, this document shows that the Defendant discrim inates against Plaintiff

Hunter because he has seizures. The letter states that “[a]lthough [Plaintiff Hunter]

is having seizures, having skilled nursing will not prevent their duration or intensity.”

(Pls.’ Resp. in Opp’n to Def.’s Mot. for Patrial Summ. J., Ex. A, at3). This statement

does not demonstrate discrimination againstHunter because he suffers from seizures,

but rather a determination by GAPP concerning its preferred and effective treatment

methods for seizures. Indeed, the letter furt her notes that Hunter’s seizures for the

three preceding months “have been brief without respiratory compromise or the need

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for sk illed nursing intervention.” (Id. ) In short, the Plaintiffs’ evidence only

establishes that the Defendant may restrict coverage based on the available treatments

for the symptoms from which the Plaintiffs suffer, not that the Defendant is reducing

or denying services based on specific illnesses or conditions. See Moore, 637 F.3d

at 1255 (citing Rush v. Parham, 625 F.2d 1150, 1152-55 (5th Cir. 1980)) (noting that

a state may place appropriate limits on serivce on a case-by-case basis). Accordingly,

the Defendant’s m otion for partial sum mary judgm ent should be granted in this

respect.

4. Whether the Defendant Applies the Proper Standard to Requests for Nursing Services

The Defendant contends that the Plaintiffs have not shown that the Defendant

applies an im proper standard to request s for private duty nursing services. The

Plaintiffs cite letters sentto Hunter, R.E., and J.M. asevidence of the Defendant’s use

of the wrong standard. (SeePls.’ Resp. in Opp’n to Def.’s Mot. for Partial Summ. J.,

Exs. A, B, C). However, there is nothing inthese letters to indicate that the Defendant

has not adhered to the “medically necessary” standard required by the Medicaid Act.

See Moore , 637 F.3d at 1255 (requiring Georgia to provide nursing services to

EPSDT members when “medically necessaryto correct or ameliorate” the member’s

condition). Likewise, the Plaintiffs’ assertion that the standard language GAPP uses

to deny coverage is itself the wrongstandard is without merit. (See id. Ex. H). There

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is nothing in the standard form letter promulgated by GAPP to suggest that the

Defendant is not adhering tothe standard required by theMedicaid Act. Accordingly,

the Plaintiffs have not dem onstrated that the Defendant uses the wrong standard in

evaluating requests for private duty nursing, and the Defendant’s motion for partial

summary judgm ent should be granted in th at respect. However, there rem ains a

question of fact concerning whether the Defendant’s decisions to limit the Plaintiffs’

private duty nursing services hours were inaccordance with the “medically necessary”

standard.

5. Whether th e Defendant Denies Services Because a Plaintiff’s Condition has not Deteriorated Enough

The Defendant contends it is entitled to reduce or deny services to a Plaintiff

whose condition has stabilized. The Plaintiffs provide evidence demonstrating that

Plaintiff Hunter was provided wi th fewer private duty nursing hours because his

condition had stabilized. (See Pls.’ Resp. in Opp’n to Def.’s Mot. for Partial Summ.

J., Ex. D, at 1). The Plaintiffs have notshown that the Defendant’s determination in

this respect violated the Medicaid Act. SeeMoore, 637 F.3d at 1255 (citing Rush, 625

F.2d at 1152, 1155) (noting that a state may place appropriate limits on service on a

case-by-case basis); id. at 1258 (noting that the State “may permissibly conclude that

persons whose conditions are worsening owr ho require frequenthospitalizations have

a higher degree of m edical necessity than those who are chronically stable.”).

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Accordingly, to the extent the Plaintiffs’ claims are based on whether the Defendant

reduces services based on the relative stability of a patient’s conditions, those claims

should be di smissed. H owever, t here re mains a que stion of fa ct w ith re spect to

whether the Defendant is providing the Plaintiffs with the medically necessary level

of private duty nursing services.

6. Whether the Plaintiffs are Provided With Medically Necessary Services

The Plaintiffs argue they are not receiving medically necessary services because

the Defendant refuses to approve the re quests submitted by th e Plaintiffs’ treating

physicians. However, “[a] state m ay ad opt a definition of m edical necessity that

places limits on a physician’s discretion.” Moore, 637 F.3d at 1255 (citing Rush, 625

F.2d at 1154). Further, “[b]oth the treating physician and the state have roles to play

... and ‘a private physician’s word on m edical necessity is not dispositive.’” Id.

(quoting Moore v. Medows, 324 Fed. App’x. 773, 774 (11th Cir. 2009)). Here, the

Plaintiffs argue their provisions of pr ivate duty nursing hours are less than the

medically necessary amount because their treating physicians recommend additional

hours. Because the Defendant “‘can revi ew the m edical necessity of treatm ent

prescribed by a doctor on a case-by-case basis,’ and may present its own evidence of

medical necessity in disputes between the state and Medicaid patients,” the fact that

the hours of private duty nursing services provided by the Defendant is less than the

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hours of services recom mended by the Plaintiffs’ treating physicians does not necessarily indicate the Defendant has nopt rovided all medically necessary treatment. See id. at 1258. Accordingly, there is a questoin of fact with respect to the number of private duty nursing hours that are medically necessary for the Plaintiffs’ care, and the Defendant’s motion for partial summary judgment should be denied in this respect.
7. Whether the Defendant Denies Services Based on Cost The Defendant argues the Plaintiffs havefailed to provide evidence to show that the Defendant denies services based on co st. The Defendant argues that the new GAPP manual does not list cost as a factor indetermining whether to provide private nursing duty and that the provisions in theold manuals addressing cost referred to by the Plaintiffs were asso ciated with the medically fragile daycare program , not the private duty nursing services program. The Defendant’s evidence indicates that cost is not a factor in the private duty nursing program. (See Def.’s Mot. for Partial Summ. J., Ex. A. Dubberly Dep. at 119). The only provision in the current manuals that the Plaintiffs refer to as demonstrating that the Defendant impermissibly uses cost as a factor is the provision stating that “Servcies for individuals requiring excessive hours of skilled nursing care for an extended period ofror an indefinite period of time where skilled needs may be best served in a nursing facility” are “Non-Covered” services. (See Pls.’ Resp. in Opp’n to Def.’s Mot. for Partial Summ. J., Ex. P, GAPP Manual

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January 1, 2013, Part II Policies and Procedures of the Georgia Pediatric Program, §

906). This provision only appears to discu ss where a child can be st be served and

makes no mention of cost. Although the Plaintiffs argue this provision may allow the

Defendant to withhold services based on cost, the Plaintiffs provide no evidence to

suggest the Defendant has actually done so. The Plaintiffsalso point to a DCH release

showing a table of Georgia Medicaid expenditures in fiscal year 2011. According to

the Plaintiffs, this demonstrates that the “Defendant is also clearly acutely aware of

the cost of nursing services provided under GAPP.” (Pls.’ Resp. in Opp’n to Def.’s

Mot. for Partial Summ. J., at 8). Even assuming this release does indicate the

Defendant is aware of the costs of nursing services, there is nothing in the release to

suggest any denial or reduction of services based on cost. Therefore, the Plaintiffs’

evidence is insufficient to create an issue of fact with respect to whether the Plaintiffs

are denied services based on cost. Accordingly, the Defendant’s motion for partial

summary judgment should be granted in this respect.

8. Whether the Defendant Provides for a Nurse to Travel to Doctor Appointments

The Defendant argues that the Plainti ffs have not dem onstrated that the

Defendant fails to provide a nurse to travelwith the Plaintiffs to doctor appointments.

The Defendant contends GAPP policy allows for a request for a nurse to accompany

a GAPP member to a medical visit using non-emergency transportation. (See Def.’s

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Mot. for Partial Summ. J., Ex. E, Collins Dep. at 65-66). The Plaintiffs contend that GAPP does not allow for non-emergency transportation of nurses unless the Plaintiffs have shown they have no other form of transportation. However, the Plaintiffs have not provided evidence to suggest they ha ve been denied any requests for nonemergency transportation with their nurses.Indeed, Plaintiff Hunter has traveled with a nurse to doctor appointm ents through the non-em ergency travel program . (See Def.’s Mot. for Partial Summ. J., Ex. L, Lynah Dep. at 63-64). Accordingly, the Defendant’s motion for partial summary judgment should be granted in this respect.
B. The Plaintiffs’ Claims Under the Americans With Disabilities Act The Defendant claims that the Plaintiffs do not have a cognizable injury under the Americans With Disabilities Act (“ADA”). The Plaintiffs argue that the threat of institutionalization is cognizable under th e ADA. The United States has filed a statement of interest agreeing with the Planitiffs that their claims are cognizable under the ADA. Under the Americans with Disabilities Act, a public entity may not discriminate against qualified individuals based on a disability. 42 U. S. C. § 12132. “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified i ndividuals with disabilities.” 28 C.F.R. § 35.130(d). The Suprem e Court has constr ued the ADA's integration m andate and

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concluded that the discrim ination forb idden un der Title II of the ADA includes “unjustified institutional isolation” of the disabled. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600 (1999). “Thus, under Olmstead and the applicable ADA regulations, when treatment profesionals have determined that community placement is appropriate for disabled individuals, those individuals do not oppose the placeemnt, and the provision of services would not constitute a ‘fundamental alteration,’ states are required to place those individuals in cmo munity settings rather than institutions.” Fisher v. Oklahoma Health Car e Authority, 335 F.3d 1175, 1181 (10 th Cir. 2003); Pashby v. Delia , 709 F.3d 307, 322 (4th Cir. 2013) (“individuals who m ust enter institutions to obtain Medicaid services fo r which they qualify may be able to raise successful Title II [o f t he ADA] cl aims because they face a risk of institutionalization.”). Th e P laintiffs may succeed on their ADA claim if the Defendant’s action places him at a “high ri sk” of premature entry into insti tutional isolation. Id. at 1185.
Here, each Plaintiff has been subjectedto reductions or potential reductions in Medicaid-funded private duty nursing services. (See Pls.’ Resp. in Opp’n to Def.’s Mot. for Partial Sum m. J., Exs. A, B, C; Am. Compl. ¶¶ 85-94). As noted above, there is an issue of fact with respect to whether the reductio ns an d limits of the Plaintiffs’ private duty nursing services hours were reduced in violation of the

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“medically necessary” requirement. See Moore, 637 F.3d at 1258 (concluding that a factfinder should resolve the issue ofthe amount of private duty nursing hours that are medically necessary). These reductionsin hours may place the Plaintiffs at a high risk of premature institutionalization. (See [Doc. 113], at 21 (noting that reductions in hours of private duty nursing services provided to form er plaintiff placed him at risk of being institutionalized)). Because th ere is a question of fact with respect to whether the reductions in private duty nur sing hours were in accordance with the Defendant’s duty to provide medically necessary treatment, there is an issue of fact with respect to whether the Plaintiffs face a threat of premature institutionalization, and summary judgment should be denied on the Plaintiffs’ ADA claims.
C. The Plaintiffs’ Claims Under the Fifth and Fourteenth Amendments The Defendant argues that the Plaintiffs have not shown violations of their rights under the Fifth and Fourteenth Am endments. The Plaintiffs claim that the Defendant’s use of boilerp late language in written no tices denying or reducing services violates their due process right s. The Plaintiffs provide no case law explaining how the boilerplate language violaet s their due process rights. Further, the Defendant has shown that GAPP determinations include the ability to appeal, and that some Plaintiffs have even taken advantage of the appeal process. (SeeDef.’s Mot. for Partial Summ. J., Ex . C, at § 803.A; Ex. I, Manuel Dep. at 22). Accordingly, the

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Plaintiffs have not shown tha t the boilerplate language in the Defendant’s written notices violated their rights under the Fifth and Fourteenth Amendments.
The Plaintiffs also argue that th e Defendant makes arbitrary and capricious decisions about the Plaintiffs’ Medicaid c overage because it uses crit eria s uch as stability and the confidence of a caregiver wehn determining whether to extend private duty nursing hours. (SeePls.’ Resp. in Opp’n to Def.’sMot. for Partial Summ. J., Ex. D). However, the Plaintiffs do not descri be how these criteria are unrelated to the “medically necessary” standard. The Plaintfifs separately suggest that the boilerplate language in denial of coverage letters indicates arbitrary and capricious decisionmaking. The written notice is required tocontain the reasons supporting the decision, 42 C.F.R. § 431.210(b), but the letters of denial or reduction sent to the Plaintiffs do include such reasons. (See Pls.’ Resp. in Opp’n to Def.’s Mot. for Partial Summ. J., Exs. A, B, & C). Finally, the Plaintiffs contend that the Defendant ignores the recommendations of treating physicians in an arbitrary and capricious m atter. As noted above, the recommendation of the treating physician is not the final word on what treatment is “medically necessary.” SeeMoore, 637 F.3d at 1255. Accordingly, the Plaintiffs have not s hown that the Defendant has m ade arbitrary and capricious decisions concerning the Plaintiffs’ coverage. Therefore, the Defendant’s motion for

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partial summary judgment should be granted with respect to the Plaintiffs’ Fifth and Fourteenth Amendment claims.
IV. Conclusion For the reasons set forth above, the Defendant’s Motion for Partial Summary Judgment [Doc. 158] is GRANTED in PART and DENIED in PART. SO ORDERED, this 21 day of May, 2013.
/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER a minor child, by and through his mother and legal guardian, Thelma Lynah,
Plaintiff,
v.
RHONDA MEDOWS in her Official Capacity as Commissioner of the Georgia Department of Community Health, et al.,
Defendants.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

ORDER This is an action fo r injunctive and declaratory relief in which the Plaintiff claims that the Defendants are violatinghis rights under the Early Periodic Screening Diagnosis and Treatment (“EPSDT”) provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(43) and 1396d(r). It is before the Court on the Defendants’ Motions to Dismiss [Docs. 22, 26], which are DENIED.
I. Background Plaintiff Marketric Hunter is a seven-year-old Medicaid beneficiary. (First Am. Compl. ¶ 5.) He lives with his adop tive m other, Thelm a Lynah, in Savannah,
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Georgia. (First Am. Compl. ¶ 4.) He experienced brain damage as a toddler and now suffers from a num ber of neurological c onditions including static encephalopathy, cerebral palsy, and seizure disorders. (First Am. Compl. ¶ 37.) He participates in the Georgia Pediatric Program(“GAPP”), a subprogram of the Georgia Medicaid program through which eligible children receive in-home private duty skilled nursing services.

Defendant Rhonda Medows is the Commissioner of Georgia’s Department of Community Health (“DCH”), which administers the Medicaid program in Georgia. (First Am. Compl. ¶ 6.) Defendant Geogria Medical Care Foundation, Inc. (“GMCF”) is a non-profit corporation that, through a ocntractual relationship with DCH, reviews and decides all requests for private duty skilled nursing services made on behalf of Medicaid-eligible children under 21 in Georgia. (First Am. Compl. ¶¶ 9-11.)
Hunter’s treating physicians have pr escribed in-hom e private duty skilled nursing hours for the past five years. (First Am . Compl. ¶ 43.) According to the complaint, Hunter’s allotted nursing hour s have been consistently reduced in accordance with GAPP policies. (First Am. Cmo pl. ¶ 47.) Hunter alleges that GMCF first capped his hours at 84 hours per weekand then reduced his hours to 70 hours per week. (First Am. Compl. ¶ 48.) In May2008, GMCF notified Lynah that it planned to further reduce Hunter’s nursing hours to 63 hours per week. (First Am. Compl. ¶

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49.) Hunter also alleges that GMCF refused to approve his physician’s request for a nurse to travel in his family’s vehicle. (First Am. Compl. ¶ 61.)
In August 2008, Hunter’s physician requested an increase in hours in connection with Hunter’s upcoming spinal surgery. (First Am. Compl. ¶ 50.) GMCF did not grant the request. On September 18, Hunter sued Medows and GMCF under 42 U.S.C. § 1983 alleging that the Defenda nts had violated his rights under the EPSDT provisions of the Medicaid Act. OnSeptember 29, this Court held a hearing on Hunter’s Motion for a Preliminary Injunction. The Court enjoined Medows from enforcing a policy to limit medically necessary private duty skilled nursing services for eligible Medicaid beneficiaries under the age of 21 using criteria not based on medical necessity, and ordered the state toprovide Hunter with the private duty skilled nursing hours provided for in a schedule set forth by GMCF. (Order on Pl.’s Mot. for Prelim. Inj. at 9.) Medowsand GMCF now seek to dismiss Hunter’s remaining §1983 claim for injunctive relief, declaratory relief, and litigation expenses.
II. Motion to Dismiss Standard A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a “plausibel” claim for relief. Ashcroft v. Iqba,l129 S.Ct. 1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim, however,even if it is “improbable” that a plaintiff

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would be able to prove those f acts. Bell Atlantic v. Twom bly, 550 U.S. 544, 556 (2007). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro Am erica, S.A. v. Latin Am erican Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see alsoSanjuan v. American Bd. of Psychiatry and Neurology, Inc,. 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the benefit of imagination”).
III. Discussion A. Rights Enforceable Under 42 U.S.C. § 1983 Section 1983 creates liability for any personwho violates the “rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. It m ay only be used to enforce federal statutes that create rights. Golden State Transit Corp. v. City of Los Angeles , 493 U.S. 103, 106 (1989). A statute creates a rig ht if (1) it is intended to be nefit the plaintiff, (2) it im poses a binding obligation on the state, and (3) it creates an interest that is sufficiently specific as to be judicially enforceable. Id. Medows contends that 42 U.S.C. §§ 1396a(a)(43) and 1396d(r) (collectively “EPSDT provisions”) do not create an enforceable right. She r elies on Blessing v. Freestone, 520 U.S. 329 (1997), and Gonzaga University v. Do, e536 U.S. 273 (2002),

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the Supreme Court’s two most recent decisions considering whether a statute creates a right enforceable under § 1983. In Blessin,gthe Supreme Court held that Title IV-D of the Social Secur ity Act, which creates a duty for states to provide child support services, does not create a blanket federal rightto force state agencies to comply with its provisions. Blessing, 520 U.S. at 343. In Gonzaga, the Court held that a federal law m ay be enforced under § 1983 only if Congress clearly intended to create a private right of action. Gonzaga, 536 U.S. at 285. In that case, the Court ruled that the Family Educational Rights and Privacy Act, which prohibits federal funding of “any educational agency or institution which has a policy or practice of permitting the release of education records,” did notcreate an enforceable right. Id. at 288. In both cases, the Court emphasized that the relevant statutory language had “an aggregate focus” that was “not concerned with whehter the needs on any particular person [had] been satisfied.” Gonzaga, 536 U.S. at 288; Blessing, 520 U.S. at 344.
Although Blessing and Gonzaga narrow the availability of § 1983, it remains an appropriate rem edy here. The EPSDT provisions satisfy the three-factor test articulated in Golden State Transit and modified in Blessing and Gonzaga. First, the EPSDT provisions are intended to benefit Hunter, who is eligible for the screening and treatment services described in the statute. See Kenny A. v. Perdue, 218 F.R.D. 277, 293-94 (N.D. Ga. 2003) (finding that EPSDT statutory provisions are clearly

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intended to benefit children under the age of 21). Unlike the statutory language in Blessing and Gonzaga, the EPSDT provisions mandate the provision of screening and treatment services “in all cases where they are requested.” 42 U.S.C. § 1396a(a)(43)(B) (emphasis added). Second, the EPSDT provisions create a binding obligation on the state. As recognized by the United States Court of Appeals for the Eleventh Circuit, “The language of § 1396d(r)(5) expressly requires Medicaid participating states to provide necessary treamt ent to correct or ameliorate defects and physical illnesses and conditionsdiscovered by the screening services, whether or not such services are covered under the State plan.” Pittman v. Secretary, Florida Dept. of Health and Rehabilitative Services , 998 F. 2d 887, 891-892 (11 th Cir. 1993) (emphasis added). Finally, the interest created by the EPSDT provisions is sufficiently specific as to bejudicially enforceable. SeeKenny A., 218 F.R.D. at 294. The provisions’ mandate is clearly defined in 42 U.S.C. § 1396d(r), which describes in detail the required screening and treatment services.
This interpretation is consistent with the prior holdings of this Court and the position adopted by the majority of Circuits. Moore v. Medow,s1:07-CV-0631-TWT, Order on Pl.’s Second Em ergency Mot. for a Temp. Restraining Order and Prelim . Inj., March 28, 2008 at 4. Since Gonzaga, the Third, Fifth, and Ninth Circuits have found an enforceable § 1983 right in § 1396a(a)(10), a sim ilarly worded Medicaid

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provision. See Watson v. Weeks, 436 F.3d 1152, 1159 (9th Cir. 2006); Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 189 (3d Cir. 2004); S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 603-04 (5th Cir. 2004); see also Westside Mothers v. Haveman, 289 F.3d 852, 86 3 ( 6th Cir. 2002) (finding enforceable right pre-Gonzaga ); Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993) (finding enforcealeb right pre-Gonzaga). Similarly, s ince Gonzaga , the Sixth and Tenth Circuits have assum ed that § 1396a(a)(10) creates an enforceable right without expressly deciding the issue. See Oklahoma Chapter of American Acad emy of Pediatrics v. Fogarty , 472 F.3d 1208, 1212 n.1 (10th Cir. 2007); Westside Mothers v. Olszewski , 454 F.3d 532, 543 (6th Cir. 2006). Moreover, the Fi rst, Second, Sixth, and Eighth Circuits have found enforceable rights in other similarly wor ded provisions of the Medicaid Act since Gonzaga. See Pediatric Specialty Care, Inc. v. Arkansas Dept. of Human Services, 443 F.3d 1005, 1016 (8th Cir. 2006) (vacated in part on othe r grounds, Selig v. Pediatric Specialty Care, Inc., 551 U.S. 1142 (2007)); Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir. 2004); Gean v. Hattaway, 330 F.3d 758, 772-73 (6th Cir. 2003); Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir. 2002).
Medows also contends that Hunter must show that the Medicaid statute intends to create a private remedy. However, “[p]laintiffs suing under § 1983 do not have the burden of showing an intent to creat e a private rem edy because § 1983 generally

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supplies a remedy for the vindication of righst secured by federal statutes.” Gonzaga, 536 U.S. at 284. Accordingly, “[o]nce a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983.” Id.
B. Under Color of Law To state a claim under § 1983, a plaintiff must show that the defendant acted under color of state law. “[U]nder color of law has consistently been treated as the same thing as the state action required under the Fourteenth Am endment.” United States v. Price, 383 U.S. 787, 794 n.7 (1966). The Eleventh Circuit has applied three tests to determine whether state action exists: (1) the nexus/joint action test; (2) the state compulsion test; and (3) the p ublic function test. Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993). The nexus/joint action test asks whether “the state has so far insinuated itself into a position of interdependence with the [private actor] that it was a joint participant in the enterprise.” Id. The public function test asks whether the private actoris performing a function “traditionally the exclusive prerogative of the state.” Id. Finally, the state compulsion test asks whether the government “has coerced orat least significantly encouraged the action alleged to violate the Constitution.” Id. GMCF contends it is not a state actor. The Court begins by considering whether there is a sufficient connection bteween the state and GMCF to render GMCF

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a state actor under the nexus/joint action test . GMCF asserts that there is not a sufficient nexus because its physicians exercised independent professional judgment to determine whether to allot the requested number of private skilled nursing hours. It relies on Fridm an v. City of New York , 183 F. Supp. 2d 642 (S.D.N.Y. 2002). There, the plaintiff, an applicant for city public assistance benefits, enrolled in New York City’s Work Experience Program (WEP). Shortly thereafter, he requested a medical exemption from his WEP assignment. Defendant HS System s, a private corporation that performed medical evalua tions of applicants seeking exem ptions, assigned a physician to exam ine the plaintiff. The physician determ ined that the plaintiff was “em ployable subject to lim itations.” The plaintiff challenged the physician’s assessm ent under § 1983. The United States District Court for the Southern District of N ew York held that the physician and HSS did not a ct under color of state law. Id. at 651.
Other courts have reached the opposite conclusion in factually similar cases. For example, in Cat anzano by Catanzano v. Dowling , 60 F.3d 113 (2d Cir. 1995), Medicaid recipients challenged the systemby which New York provided home health care benefits under the Medicaid program. Under state law, home health care benefits were provided by certif ied home health agencies. Th e agencies were private organizations licensed and regulated by the state that, “pursuant to state law, [made]

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their own determ inations as to the m edical necessity and appropriateness of hom e health services.” Id. at 115. The United States Court of Appeals for the Second Circuit concluded that the certified home helath agencies were sat te actors because the state exercised coercive power and becausethe state and the homehealth agencies had a “close collaborative relationship.” Id. at 119.
Here, the alleged role of GMCF is similar to that of the organizations in Fridman and Catanzano . However, the Court finds the reasoning of the Second Circuit more persuas ive. Like the CHHAs in Catanzano , GMCF is a private organization that independently reviews cal imants’ requests for a federally-mandated category of medically necessary services.According to the complaint, DCH delegated to GMCF the task of reviewing and deciding whether to approve or deny all requests for nursing services that are made on behalfof Medicaid-eligible children. (First Am. Compl. ¶ 26.) Hunter also alleges that GMCF participates in developing the policies and procedures governing approval and denial decisions. (First Am. Compl. ¶ 29.) According to the com plaint, GMCF a nd DCH regularly m eet to discuss GAPP policies, and GMCF employees routinely testify at benefits-denial appeal hearings. (First Am. Compl. ¶¶ 30-31.) Hunter alleges that DCH officials train GMCF employees prior to such h earings. (First Am. Compl. ¶ 32.) Based on the facts alleged in th e complaint, and in light of Catanzano , the Court finds that GMCF’s

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conduct may be fairly attributed to the state under the nexus/joint action test. C. Justiciability An actual controversy must exist at all satges of federal court proceedings. Any
change in facts that ends the controve rsy renders the case m oot. The Defendants assert that the Court’s Prelim inary Injunction Order renders Hunt er’s claims moot. However, in addition to tem porary inj unctive relief in conn ection with Hunter’s private duty skilled nursing hours, Hunter also seeks perm anent injunctive relief, declaratory relief, and litigation expenses.The Defendants assertthat Hunter does not have standing to assert these remaining claims because he does not allege an actual or imminent injury. However, Hunter’s allegations that he is subject to continuous reductions in his allotted car e and that he does not receive proper notice and opportunity to respond to such reductions aresufficiently concrete to confer standing for the remaining claims.
IV. Conclusion For the reasons stated above, the Defendnats’ Motions to Dismiss [Doc. 22, 26] are DENIED.

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SO ORDERED, this 15 day of December, 2009.
/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

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 Case 1:08-cv-02930-TWT Document 171 Filed 03/14/13 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER, a minor child, )

by and through his mother and legal

)

guardian THELMA LYNAH,

)

ZACHARY ROYAL, S.R., a minor

)

child, by and through her father and

)

natural guardian CHARLES REGNA,

)

J.M., a minor child, by and through his )

grandmother and next friend MINNIE

)

MANUAL, R.E., a minor child, by and )

through her mother and natural guardian )

MICHELLE EAVES,

)

)

Plaintiffs,

)

)

v.

)

)

DAVID A. COOK, in his Official

)

Capacity as Commissioner of the

)

DEPARTMENT OF COMMUNITY

)

HEALTH,

)

)

Defendant.

)

CIVIL ACTION 1:08-CV-2930-TWT

STATEMENT OF INTEREST OF THE UNITED STATES The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517,1 because this litigation implicates the proper interpretation and

1 28 U.S.C. § 517 permits the Attorney General to send an officer of the Department of Justice to any district in the United States “to attend to the interests

Case 1:08-cv-02930-TWT Document 171 Filed 03/14/13 Page 2 of 20
application of the integration mandate of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et. seq. See Olmstead v. L.C., 527 U.S. 581 (1999). The Attorney General has authority to enforce Title II of the ADA, and pursuant to Congressional mandate, to issue regulations setting forth the forms of discrimination prohibited by Title II. See 42 U.S.C. § 12134. Accordingly, the United States has a strong interest in the resolution of this matter. The United States files this memorandum to assist the Court in addressing Defendant’s pending Motion for Partial Summary Judgment (“Def.’s Mot.”) and in support of Plaintiffs’ claim under Title II of the ADA.
INTRODUCTION Plaintiffs Marketric Hunter, S.R, J.M, and R.E.,2 by and through their parents and guardians (collectively, “Plaintiffs”), bring this proposed class action for declaratory and injunctive relief under Title II of the ADA, the Medicaid Act, 42 U.S.C.§ 1396a et seq., and the United States Constitution. See Second
of the United States in a suit pending in a court of the United States.” 2 Plaintiff Zachary Royal was 18 years old and a named plaintiff at the time of the filing of the second amended class action complaint. Compl., ECF No. 81, ¶ 6. On June 19, 2012, this Court ruled that the Defendant had discriminated against Mr. Royal in violation of the ADA and that Royal was entitled to permanent injunctive relief and declaratory judgment. Order, ECF No. 113, at 22. For the purposes of this Statement of Interest, “Plaintiffs” refers to Marketric, S.R., J.M., and R.E.
2

Case 1:08-cv-02930-TWT Document 171 Filed 03/14/13 Page 3 of 20
Amended Class Action Complaint (“Compl.”), ECF No. 81, ¶¶ 114-146. Plaintiffs are Medicaid-eligible children with significant medical needs who live at home with their families and receive home and community-based services, including nursing services, through the State of Georgia’s Medicaid program. Compl., ¶¶ 59. The Defendant is David Cook, in his official capacity as Commissioner of the Georgia Department of Community Health (“DCH”). Compl. ¶ 11. Plaintiffs allege that the Defendant’s administration of DCH and the Medicaid program denies, limits, and reduces their nursing services in a manner that puts Plaintiffs at imminent risk of unnecessary confinement or out of home care in violation of the ADA. Compl., ¶¶ 5-9, 13, 139.
STATUTORY AND REGULATORY BACKGROUND A. The Integration Mandate and Olmstead
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
3

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these 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. One form of discrimination prohibited by Title II of the ADA is violation of the “integration mandate.” The integration mandate arises out of Congress’s explicit findings in the ADA, the Attorney General’s regulations implementing Title II,3 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. 3 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). 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. Part 35, App. B at 673 (2010).
4

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B. The Early and Periodic Screening, Diagnosis and Treatment Requirements of the Medicaid Act4
Under the Early and Periodic Screening, Diagnosis and Treatment
(“EPSDT”) requirements of the Medicaid Act, states must provide coverage to
categorically Medicaid-eligible individuals under the age of twenty-one for all
medically necessary treatment services described in the Medicaid Act at 42 U.S.C.
§ 1396d(a), which sets forth a number of services that may be made available
under a State Medicaid Plan. 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4);
42 U.S.C. § 1396d(r)(1)-(5). The treatment to be provided for is defined by 42
U.S.C. § 1396d(r) and includes dental, hearing and vision services and “[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 4 Although this Statement of Interest does not address the Parties’ disputed issues of fact regarding the Defendant’s administration of Georgia’s EPSDT program, a brief description of the EPSDT requirements of the Medicaid Act is provided here, as it is relevant to the Defendant’s argument that provision of community-based nursing services would fundamentally alter the Defendant’s services. See Def.’s Mot., n. 6, at 13. To the contrary, federal law requires Defendant’s program to make available medically necessary private duty nursing services to all EPSDTeligible children, see 42 U.S.C. § 1396d(a)(8), and, under the ADA, these services must be provided in the most integrated setting appropriate to their needs, 42 U.S.C. §12132, 28 C.F.R. §35.130(d).
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U.S.C. § 1396d(r)(5); 42 C.F.R. § 440.40. Under § 1396d(r)(5), states must “cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a),” S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 590 (5th Cir. 2004), including private duty nursing services. See 42 U.S.C. § 1396d(a)(8).
A state has discretion to develop a reasonable definition of “medical necessity,” but the services provided must be sufficient in amount, duration, and scope to reasonably achieve their desired purpose, including providing treatment “to correct or ameliorate defects and chronic conditions” of EPSDT-eligible children. 42 C.F.R. § 441.50 (describing purpose of EPSDT services); see Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1255, 1261 (11th Cir. 2011). Imposing restrictions on the number of hours of skilled nursing care available to a child that are not based on the needs of that child is inconsistent with the EPSDT provisions of the Medicaid Act. See Moore ex rel. Moore v. Cook, No. 1:07-CV-631-TWT, 2012 WL 1380220, at *10 (N.D. Ga. Apr. 20, 2012) (finding that reduction in nursing care hours provided to a child violated the EPSDT provisions of the Medicaid Act where his condition was not improving, and the reduction was based on a policy and practice to wean care and shift the burden of skilled care to the
6

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child’s parent). States must ensure that each child receives all the covered services he is identified as needing, consistent with the EPSDT definition of medical necessity in §1396d(r)(5). See Katie A. v. Los Angeles County, 481 F.3d 1150, 1154 (9th Cir. 2007; Rosie D. v. Swift, 310 F.3d 230, 232 (1st Cir. 2002).
FACTUAL BACKGROUND Plaintiffs are four Medicaid eligible children who have significant medical needs. Compl., ¶¶ 5-9. All four plaintiffs receive nursing services through the Georgia Pediatric Program (“GAPP”), a Medicaid program administered by the Defendant that provides nursing care to children who require nursing services in order to remain in their homes. Order, ECF No. 113, at 2; Compl., ¶¶ 5-9. Private duty nursing services are defined as “nursing services for recipients who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility.” 42 C.F.R. § 440.80. These services are provided by a registered nurse or nurse practitioner under the direction of the recipient’s physician at the Plaintiffs’ homes. Order, ECF No. 113, at n. 2; Compl., ¶¶ 5-9. The Plaintiffs have all obtained some nursing services under the GAPP program and allege that they have been subjected to the application of GAPP policies that have the effect of limiting, denying, or
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reducing the amount of Medicaid-funded nursing services that Plaintiffs will receive. Compl., ¶¶ 5-9.
Plaintiff Marketric Hunter (Marketric) is an eleven year old resident of Savannah, Georgia who receives in-home private duty nursing services. Compl., ¶ 5, 57. Marketric sustained long-term, neurologic injuries as a toddler. Id., ¶ 50. Marketric’s physicians have determined that he can and should live at home and should receive nursing services at home. Id., ¶ 56. Despite physician recommendations for increased nursing services and repeated hospitalizations, Marketric’s nursing services have been consistently reduced in accordance with GAPP policies. Id., ¶¶ 47, 61-64, 68-71, 75-78. This Court has on two occasions ordered the Defendant to provide Marketric with the private duty nursing hours he requires, ECF Nos. 9, 47, and also enjoined Defendant from using criteria for determining nursing services not based on medical necessity. Order, ECF No. 77, at 3-4.
Plaintiff S.R. is currently five years old and lives at home with her mother. Compl., ¶¶ 7, 86. S.R.’s medical diagnoses include Reactive Airway Disease, chronic rhinitis, dysphagia, gastroesophageal reflux, cerebral palsy and seizure disorder. Id., ¶ 83. Contrary to the recommendation of S.R.’s treating physician
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and despite multiple hospitalizations, S.R.’s nursing services have been repeatedly reduced. Id., ¶¶ 85, 87, 88, 90-94.
Plaintiff J.M. is a sixteen year old child who lives with his grandmother in Atlanta, Georgia. Compl., ¶ 8. His grandmother is aging and experiences health problems. Id., ¶ 95. As a result of a brain tumor diagnosed in 2003 and complications from treatment, he requires continuous ventilator support, has intractable seizures, and his gastrointestinal system and endocrine systems are nonfunctional. Id. Although he requires 24-hour nursing support to meet his medical needs, his nursing services have been repeatedly reduced. Id., ¶¶ 96-97.
Plaintiff R.E. is a fifteen year old residing with her parents and younger siblings in Atlanta, Georgia. Compl., ¶ 9. In addition to cerebral palsy, R.E. has a seizure disorder, chronic aspiration, asthma, dysphagia, obstructive sleep apnea, hypothyroidism and brittle bones. Id. As a result of Defendant’s policies, R.E.’s nursing hours were reduced from 60 to 52 hours per week. Id. R.E.’s doctors have requested that she receive 84 hours of nursing care, but Defendant’s policies severely curtail R.E.’s ability to obtain an increase in nursing hours when determined to be necessary for her. Id.
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The Defendant’s denial and/or reduction of medically necessary nursing services places the Plaintiffs at serious risk of unnecessary confinement in institutions, including nursing facilities, or other out of home placements, that are not the most integrated setting appropriate to their needs, in violation of the ADA’s integration mandate. Compl., ¶ 139. See Olmstead, 527 U.S. at 596-97.
ARGUMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant is entitled to summary judgment only if, after construing the evidence in the light most favorable to the nonmoving party and drawing all justifiable inferences in favor of the nonmoving party, no genuine issues of material fact remain to be tried. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Defendant’s Motion for Partial Summary Judgment fails to demonstrate that he is entitled to judgment as a matter of law because the Plaintiffs have a viable claim under title II of the ADA and genuine issues of material fact remain to be tried.
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A. Policies and Practices That Place Individuals With Disabilities At Serious Risk of Institutionalization Violate Title II of the ADA
Defendant’s sole ADA argument — that “the threat of institutionalization is not a cognizable injury under the ADA” — is overwhelmed by the tide of ADA case law stating the very opposite. Def.’s Mot., ECF No. 158-1, at 19. As noted in Plaintiffs’ Response to Defendant’s Motion for Partial Summary Judgment (“Pls.’ Resp.”), ECF No. 169, at 14, the Defendant also ignores this Court’s previous rulings that a reduction in services creating a risk of institutionalization can be a violation of the ADA. Order, ECF No. 77, at 10-12; Order ECF No. 113, at 20.
The integration mandate of the ADA, as described above, prohibits public entities from implementing policies or practices that place individuals at serious risk of unnecessary institutionalization. See Pashby v. Delia, No. 11-2363, 2013 WL 7911829, at *10 (4th Cir. March 5, 2013); M.R. v. Dreyfus, 663 F.3d 1100, 1116 (9th Cir. 2011); 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”); Haddad v. Dudek, 784 F. Supp. 2d 1308, 1326 (M.D. Fla. 2011) (denying defendants’ motion to dismiss where plaintiff in community sued to prevent unnecessary institutionalization).
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Thus, the ADA’s protections are not limited to those individuals who are currently institutionalized. See also Order, ECF No. 77; Order ECF No. 113. As the Tenth Circuit Court of Appeals reasoned in Fisher v. Oklahoma Health Care Auth., the protections of the ADA would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an alleged discriminatory policy that threatens to force them into segregated isolation. 335 F.3d at 1181.
Instead it is sufficient for a plaintiff to show that the challenged state action creates a serious risk of institutionalization. M.R., 663 F.3d at 1116; Pashby v. 2013 WL 7911829, at *10 (“individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II and Rehabilitation Act claims because they face a risk of institutionalization.”)5
Indeed, since the goal of the integration mandate is to avoid unjustified segregation, almost every court to issue an opinion deciding whether recipients of community-based services — individuals not living in institutions — may bring an integration claim when faced with the threat of unnecessary institutionalization,
5 In reaching this conclusion the Fourth Circuit cited U.S. Dept. of Justice, Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C., http://www.ada.gov/olmstead/q&a_olmstead.htm (last visited March 13, 2013).
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has agreed that they may do so. See Fisher, 335 F.3d at 1181; Pitts v. Greenstein, No. 10-635-CIV, 2011 WL 1897552, at *4 (M.D. La. May 18, 2011) (finding that the state’s plan for providing services violates the ADA by creating a greater risk for institutionalization); Haddad v. Arnold, 784 F. Supp. 2d 1284, 1308 (M.D. Fla. 2011) (issuing preliminary injunction requiring defendants to provide communitybased services to plaintiff to prevent unnecessary placement in a nursing home); Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571903, at *2 (N.D. Fla. Oct. 14, 2008), aff’d, 383 Fed. Appx. 930 (11th Cir. 2010) (granting preliminary injunction requiring Medicaid coverage to prevent plaintiff from entering a nursing home); Cruz v. Dudek, No. 10-23048-CIV, 2010 WL 4284955, at *13 (S.D. Fla. Oct. 12, 2010) (granting preliminary injunction that required the state agency to provide Medicaid recipients home-based services to prevent their institutionalization); Marlo M. v. Cansler, 679 F. Supp. 2d 635, 637 (E.D.N.C. 2010) (granting preliminary injunction in case where plaintiffs were at risk of institutionalization); Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 985 (N.D. Cal. 2010) (granting preliminary injunction where cuts to community-based services placed plaintiffs at risk of institutionalization); see also Ball v. Rogers, No. 00-67, 2009 WL 1395423, at *6 (D. Ariz. April 24, 2009) (holding that defendants’
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failure to provide adequate services to avoid unnecessary institutionalization was discriminatory); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161,1164 (N.D. Cal. 2009) (granting preliminary injunction where plaintiffs were at risk of institutionalization due to cuts in community-based services); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009) (preliminarily enjoining cuts to community-based services where plaintiffs demonstrated risk of institutionalization), dismissed as moot, Oster v. Wagner, No. 09-17581, Dkt. No. 106-1 (9th Cir. Jan. 7, 2013); Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008) (“Plaintiffs have demonstrated a strong likelihood of success on the merits of their [ADA] claims that the Defendants’ drastic cuts of their home health care services will force their institutionalization in nursing homes.”); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (ADA’s integration mandate applies equally to those individuals already institutionalized and to those at risk of institutionalization); Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034 (D. Haw. 1999) (holding that individuals in the community on the waiting list for community-based services offered through the State’s Medicaid program, could challenge administration of the program as violating Title II’s integration mandate because it “could potentially
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force Plaintiffs into institutions”). Defendant fails to cite any cases regarding the risk of institutionalization in which a court has denied the viability of a Title II claim under the ADA and, as a result, Defendant’s motion be denied.6
Federal courts have acknowledged and recognized that Congress instructed the Department of Justice to promulgate the regulations for Title II of the ADA and, as a result, the Department has a special role in interpreting those regulations. Olmstead, 527 U.S. at 597–98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” )(citation omitted); Pashby, 2013 WL 7911829, at *10 (“Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's determination that ‘the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings’”) (citation omitted); M.R., 663 F.3d at 1117 (“An agency’s interpretation of its own regulation 6 Defendant’s citation to Buchanan v. Maine is inapposite. 469 F.3d 158, 173 (1st Cir. 2006). In Buchanan, the brother of a man with a mental illness who was shot and killed by the police brought several claims, including an ADA claim, against the state. Id. at 161. The individual in question was not in an institution, nor at risk of entering an institution. Id. at 162-66, 173. Instead, as specifically noted by the First Circuit, the case was about the adequacy of mental health treatment and thus is not relevant to the Plaintiffs’ ADA claims regarding a risk of institutionalization. Id. at 173-75.
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is ‘controlling unless plainly erroneous or inconsistent with the regulation.’”) (citations omitted). See also Zhou Hua Zhu v. U.S. Atty. Gen., 703 F.3d 1303, 1307 (11th Cir. 2013) (noting that an agency’s interpretation of its own regulations warrants deference).
B. This Court Has Already Ruled That the Serious Risk of Institutionalization is a Viable Claim Under the Title II ADA
As Plaintiffs correctly note, this Court has previously ruled in this case that the Defendant’s actions that create a serious risk of institutionalization can and do violate Title II of the ADA. Pls.’ Resp., at 14. On September 27, 2011 the Court, citing the Tenth Circuit holding in Fisher, ruled that Plaintff’s ADA claim under Title II “is not futile.” Order, ECF No. 77, at 10-12; see Fisher, 335 F.3d at 1181. Similarly, in ruling on the matter of Zachary Royal, this Court found that “the Plaintiff may succeed on his ADA claim if the Defendant’s action places him at ‘high risk’ of premature entry into institutional isolation.” Order, ECF No. 113, at 20; see Fisher, 335 F.3d at 1185.7 There is no compelling reason, and there is no argument presented in Defendant’s motion, that the Court should reach a different conclusion at this stage of the case. As a result, the Court should deny Defendant’s
7 The Court concluded that Defendant’s actions violated the ADA. Order, ECF No. 113, at 21-22.
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Motion for Partial Summary Judgment as it relates to Plaintiffs’ claims under Title II of the ADA.
CONCLUSION For all the foregoing reasons, the Court should deny Defendant’s Motion for Partial Summary Judgment.

Dated: March 14, 2013

SALLY QUILLIAN YATES United States Attorney Northern District of Georgia
/s/ Sharon D. Stokes SHARON D. STOKES Assistant United States Attorney GA Bar No. 227475 Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Telephone: (404) 581-6302 Fax: (404) 581-6163

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General
EVE HILL Senior Counselor to the Assistant Attorney General
ALISON BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division
/s/ Vincent Herman REBECCA BOND Chief SHEILA S. FORAN Special Legal Counsel ANNE S. RAISH Deputy Chief Disability Rights Section VINCENT HERMAN Trial Attorney
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Counsel for the United States

Special Litigation Section Civil Rights Division
U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - PHB Washington, D.C. 20530 Telephone: (202) 305-3318 Facsimile: (202) 514-0212 Vincent.Herman@usdoj.gov

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CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that the foregoing has been prepared in Times New Roman 14 point font, in compliance with L.R. 5.1.B. /s/ Sharon D. Stokes SHARON D. STOKES Assistant United States Attorney GA Bar No. 227475
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CERTIFICATE OF SERVICE
This is to certify that I have on this day electronically filed the foregoing STATEMENT OF INTEREST OF THE UNITED STATES with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification or otherwise:
Michelle Townes Jason S. Naunas Assistant Attorney General 40 Capitol Square, S,W. Atlanta, Georgia 30334-1300 Telephone: (404) 656-3357 Fax: (404) 463 -1062 mtownes@law.ga.gov jnaunas@law. ga. Gov
Counsel for the Defendants
Joshua Norris Paula Rafferty 150 E. Ponce De Leon Ave., Ste. 430 Decatur, Georgia 30030 Telephone: (404) 885-1234 Fax: (404) 378-0031 jnorris@thegao.org prafferty@thegao.org
Counsel for the Plaintiffs
/s/ Sharon D. Stokes SHARON D. STOKES Assistant United States Attorney GA Bar No. 227475
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 Case 1:08-cv-02930-TWT Document 217 Filed 09/30/14 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER a minor child, by and through his mother and legal guardian, Thelma Lynah, et al.,
Plaintiffs, v.
DAVID A. COOK Commissioner of the Georgia Department of Community Health,
Defendant.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

ORDER

This is an action seeking injunctive relief against the Georgia Department of Community Health. It is before the Court on the Plaintiffs’ First Motion for Attorney Fees [Doc. 208] which is DENIED without prejudice. The motion may be renewed if the Plaintiffs are the prevailing parties upon the conclusion of the pending appeal to the Court of Appeals.
SO ORDERED, this 30 day of September, 2014.

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/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARKETRIC HUNTER a minor child, by and through his mother and legal guardian, Thelma Lynah, et al.,
Plaintiffs, v.
DAVID A. COOK Commissioner of the Georgia Department of Community Health,
Defendant.

CIVIL ACTION FILE NO. 1:08-CV-2930-TWT

ORDER

This is an action seeking injunctive relief against the Georgia Department of Community Health. It is before the Court on the Plaintiffs’ Motion for Attorneys’ Fees and Expenses [Doc. 219]. For the reasons set forth below, the motion is GRANTED in the amount of $851,056.15.
I. Background The Plaintiffs brought this action for injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 and the Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) provision of the Medicaid Act, 42 U.S.C. §1396d(r), and pursuant to Title

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II of the Americans with Disabilities Act (ADA) to redress the Georgia Department of Community Health’s (“DCH”) practice of using criteria other than medical necessity to deny and reduce medically necessary in-home private duty nursing services to the Plaintiffs through the Georgia Pediatric Program (“GAPP”). DCH’s reduction in the amount of medically necessary nursing hours provided to the Plaintiffs put them at significant risk of harm through the deterioration of their health and at significant risk of hospitalization. The Court granted the Plaintiffs M.H. and R.E. injunctive relief and the Plaintiff Zachary Royal declaratory and injunctive relief on their claims. The Plaintiffs S.R. and J.M. accepted offers of judgment from Defendant DCH in August 2013. The lengthy course of litigation is set forth in detail in the Plaintiffs’ Brief in Support of Motion for Attorneys’ Fees and Expenses [Doc. 223]. This litigation history is not disputed by the Defendant.
II. Discussion Prevailing parties in civil rights actions are entitled to an award of attorneys fees.1 There is no question that the Plaintiffs are the prevailing parties in this case. They obtained all of the main relief that they sought. “Where a plaintiff has obtained

1 42 U.S.C. § 1988; see also Hensley v. Eckerhart, 461 U.S. 424 (1983). “This statute is interpreted broadly since it is remedial in nature and facilitates private enforcement of civil rights.” Webster Greenthumb Co. v. Fulton Cty., 112 F. Supp. 2d 1339, 1346 (N.D. Ga. 2000); Lambert v. Fulton Cty., 151 F. Supp. 2d 1364 (11th Cir. 2000).

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excellent results, his attorney should recover a fully compensatory fee.”2 In determining an objective estimate of the value of a lawyer’s services, the court must multiply those hours reasonably expended by a reasonable hourly rate, or compute the “lodestar.”3 Moreover, “[t]he Supreme Court has emphasized that the resulting figure is more than a mere rough guess of the final award.”4 Rather, it is “presumed to be the reasonable fee to which counsel is entitled.”5 Where “plaintiff’s claims for relief ... involve a common core of facts or [are] based on related legal theories” the district court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”6 The hours claimed or

2 Hensley, 461 U.S. at 435; Villano v. City of Boynton Beach, 254 F. 3d 1302, 1308 (11th Cir. 2001) (“If the court determines that the result obtained was an excellent result, then the award of fees ‘will encompass all hours reasonably expended on the litigation and indeed in some case of exceptional success an enhanced award may be justified.’”); Association of Disabled Americans v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006).

3 Hensley, 461 U.S. at 433; see also Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). “[T]he lodestar figure represents a presumptively reasonable fee.” Military Circle Pet Ctr. v. Cobb County, 734 F. Supp. 502, 504 (N.D. Ga. 1990); Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996).

4 Halderman v. Pennhurst State School and Hosp., 725 F. Supp. 861, 863 (E.D. Pa. 1989) (citing Delaware Valley I, 478 U.S. at 564) (internal quotation marks omitted).

5 Id. (quoting Blum, 465 U.S. at 897) (internal quotation marks omitted).

6 Hensley, 461 U.S. at 434.

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spent on a case are “[t]he most useful starting point for determining the amount of a reasonable fee.”7 Counsel must exercise “billing judgment” in determining the hours reasonably expended on the merits, id. at 437, and attorneys should be compensated for the time reasonably expended in seeking an award of fees from the court.8 In making a fee request, “[c]ounsel ... should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.”9 Counsel should provide in the fee request the hours spent “with sufficient particularity.”10
The Plaintiffs initially sought fees in the amount of $994,018.00 representing 2,391.65 hours multiplied by the hourly rates of the attorneys. After the Defendant objected to the number of hours, the Plaintiffs reduced the hours requested to 2,241.125. The Court concludes that Ms. Miller’s hours and Mr. Norris’ hours should be reduced by an additional ten percent to account for the claims that were dismissed early in the case. This results in a further reduction of $89,897.50. Beyond that, the Defendant’s objections to the hours expended have no merit. Indeed, it was the

7 Hensley, 461 U.S. at 433.

8 Johnson v. University Coll. of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1207 (11th Cir. 1983); Johnson v. Mississippi, 606 F.2d 635, 638 (5th Cir. 1979).

9

Hensley, 461 U.S. at 434; Norman, 836 F.2d at 1301.

10 ACLU v. Barnes, 168 F.3d 423 (11th Cir. 1999).

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Defendant’s intransigence that made the litigation so lengthy and time consuming. “The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.”11 In relation to the enormous amount of the Court’s time that was consumed by this case, the reduced hours are perfectly reasonable.
The Defendant’s argument that the fee award should be reduced because the Plaintiffs did not obtain excellent results is ludicrous. Throughout the course of the litigation, the Plaintiffs obtained three temporary restraining orders, two preliminary injunctions, three permanent injunctions, and a declaratory judgment. In addition to the permanent injunctive relief and declaratory relief awarded, the Plaintiff M.H. obtained several preliminary orders for relief that required the Defendant to provide him with substantial amounts of nursing care (24-hour nursing, gradually stepped down to 12 hours per day), and enjoined the Defendant from enforcing a policy to limit medically necessary skilled nursing services using criteria not based on medical necessity. Later in the litigation, the Plaintiff M.H. obtained another preliminary order requiring the Defendant to provide him with 24-hour nursing for six to eight weeks while he was in a body cast, and 18 hours per day of nursing after the cast was removed for a delineated period of time. The Plaintiff Royal was also awarded

11 City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986).

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preliminary relief that enjoined the Defendant from reducing his nursing services below 84 hours of skilled nursing per week. Each of these orders ensured that the Plaintiffs were provided medically necessary skilled nursing care to treat their complex conditions, maintain their health, and prevent unnecessary hospitalization or institutionalization.
The number of hours is applied to the reasonable hourly rate to obtain the lodestar. As to reasonable hourly rates, the Plaintiffs supported their fee application with affidavits, including an expert affidavit. The Defendant responded only by pointing to prior applications in which the same attorneys claimed lessor rates. The Defendant misses the point completely. The law is clear that the attorneys for the prevailing parties are entitled to be paid their current hourly rate to compensate for the delay in being paid.12 The hourly rates are reasonable. This results in an attorneys fee award of $837,847.50.

12 See Norman v. Housing Auth., 836 F.2d 1292, 1306 (11th Cir. 1988) (directing district court on remand to give “every consideration” to application of current rates “because of the delay experienced by the attorneys in receiving payment”); Johnson v. University Coll. of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1210-11 (11th Cir. 1983); Gates v. Collier, 616 F.2d 1268, 1276 (5th Cir. 1980) (current rates).

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III. Conclusion For the reasons set forth above, the Plaintiffs’ Motion for Attorneys’ Fees and Expenses [Doc. 219] is GRANTED in the amount of $837,847.50 in attorneys fees and $13,208.65 in expenses for a total award of $851,056.15. SO ORDERED, this 18 day of August, 2015.
/s/Thomas W. Thrash THOMAS W. THRASH, JR. United States District Judge

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 Case 1:08-cv-02930-TWT Document 218 Filed 01/05/15 Page 1 of 8 Case: 13-14950 Date Filed: 01/05/2015 Page: 1 of 1

John Ley Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
January 05, 2015

James N. Hatten Richard B. Russell Bldg & US Courthouse 75 SPRING ST SW STE 2211 ATLANTA, GA 30303-3309

Appeal Number: 13-14950-BB Case Style: M.H., et al v. David A. Cook, et al District Court Docket No: 1:08-cv-02930-TWT

For rules and forms visit www.ca11.uscourts.gov

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing."
Taxation of Costs: Dismissed- Costs against Appellant(s) under F.R.A.P. 39

Sincerely,
JOHN LEY, Clerk of Court
Reply to: Carol R. Lewis, BB Phone #: (404) 335-6179
Enclosure(s)

DIS-4 Multi-purpose dismissal letter

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 Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 1 of 20
4months,CLOSED,SUBMDJ,TRO
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:08−cv−02930−TWT

Hunter et al v. Medows Assigned to: Judge Thomas W. Thrash, Jr Case in other court: USCA−11th Circuit, 12−13875−FF
USCA − 11th Circuit., 13−14950−BB
USCA − 11th Circuit., 15−14227−EE Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/18/2008 Date Terminated: 09/27/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Marketric Hunter a minor child, by and through his mother and legal guardian, Thelma Lynah

represented by Joshua H. Norris Joshua H. Norris, LLC Suite 125 1801 Peachtree St., NE Atlanta, GA 30309 404−867−6188 Fax: 404−393−9680 Email: josh.norris@childrenshealthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paula Marie Rafferty Fulton County Attorney's Office Suite 4038 141 Pryor St., S.W. Atlanta, GA 30303 404−612−0260 Fax: 404−378−0031. Email: raffertysq2@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerald R. Weber Law Offices of Gerry Weber P.O. Box 5391 Atlanta, GA 31107 404−522−0507 Email: wgerryweber@gmail.com ATTORNEY TO BE NOTICED

Katherine Leigh D'Ambrosio Georgia Advocacy Office 150 E. Ponce de Leon Ave. Suite 430 Decatur, GA 30030 404−885−1234 Email: kdambrosio@thegao.org TERMINATED: 02/18/2016

Plaintiff
J.M. a minor child, by and through his grandmother and next friend Minnie Manual TERMINATED: 09/27/2013

represented by Joshua H. Norris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula Marie Rafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 2 of 20

Plaintiff R.E. a minor child, by and through her mother and natural guardian Michelle Eaves
Plaintiff Zachary Royal
Plaintiff S.R. a minor child, by and through her father and natural guardian Charles Regna TERMINATED: 09/27/2013

Gerald R. Weber (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua H. Norris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula Marie Rafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerald R. Weber (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua H. Norris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula Marie Rafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerald R. Weber (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua H. Norris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paula Marie Rafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerald R. Weber (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Rhonda Medows in her Official Capacity as Commissioner of the Georgia Department of Community Health TERMINATED: 09/14/2010

represented by Michelle W. LeGrande State of Georgia Law Department 40 Capitol Square, S.W. Atlanta, GA 30334 404−656−3446 Email: mlegrande@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 3 of 20

Defendant Georgia Medical Care Foundation, Inc. a Georgia corporation TERMINATED: 09/14/2011
Defendant Clyde L. Reese, III TERMINATED: 05/03/2011
Defendant David A. Cook Commissioner of the Georgia Department of Community Health
Movant The United States of America

represented by Adam Scott Katz Katz Litigation Group, LLC Suite 1805 200 Galleria Parkway, SE Atlanta, GA 30339 404−567−4601 Email: adam@katzlitigation.com ATTORNEY TO BE NOTICED
Jennifer Saffold Collins Womble Bond Dickinson (US) LLP−Atl Suite 2400 271 17th Street, NW Atlanta, GA 30363−1017 404−888−7135 Fax: 404−870−4831 Email: jennifer.collins@wbd−us.com ATTORNEY TO BE NOTICED
represented by Michelle W. LeGrande (See above for address) ATTORNEY TO BE NOTICED
Penny Hannah State of Georgia Law Department 40 Capitol Square, S.W. Atlanta, GA 30334−1300 404−656−3387 Email: phannah@law.ga.gov ATTORNEY TO BE NOTICED
represented by Michelle W. LeGrande (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason S. Naunas Attorney General's Office−Atl 40 Capitol Square, SW Atlanta, GA 30334 404−656−3357 Email: jnaunas@law.ga.gov ATTORNEY TO BE NOTICED
Penny Hannah (See above for address) TERMINATED: 06/22/2012
represented by Sharon Douglas Stokes Law Office of Sharon D. Stokes 41 Berkeley Road Avondale Estates, GA 30002 678−571−4723 Email: sharon_stokes955@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 4 of 20

Date Filed 09/18/2008 09/18/2008 09/22/2008 09/22/2008
09/23/2008
09/25/2008 09/26/2008 09/26/2008 09/29/2008 10/01/2008 10/08/2008 10/22/2008 10/28/2008
10/30/2008 11/03/2008

# Docket Text
1 VERIFIED COMPLAINT for Injunctive and Declaratory Relief filed by Marketric Hunter. (Filing fee $ 350 receipt number 4661.) (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(dr) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 09/19/2008)
2 MOTION for Temporary Restraining Order, and MOTION for Preliminary Injunction by Marketric Hunter. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Certificate of Service)(dr) (Entered: 09/19/2008)
3 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Rhonda Medows. (Townes, Michelle) (Entered: 09/22/2008)
4 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Motion Hearing held on 9/22/2008;granting 2 Motion for TRO; deferring ruling on 2 Motion for Preliminary Injunction. Attorney Michelle Townes for Rhonda Medows added; Motion Hearing set for 9/29/2008 11:00 AM on 2 MOTION for Preliminary Injunction. Mr. Norris to prepare order for signature. (Court Reporter Susan Baker)(dr) (Entered: 09/23/2008)
5 TRANSCRIPT of Proceedings held on September 22, 2008 before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Susan C. Baker, Telephone number 404−215−1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/14/2008. Redacted Transcript Deadline set for 10/24/2008. Release of Transcript Restriction set for 12/22/2008. (Attachments: # 1 Notice of Filing Transcript) (kac) (Entered: 09/23/2008)
6 PROPOSED ORDER Proposed Order on Plaintiff's Motion for Temporary Restraining Order re: 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction. (Norris, Joshua) (Entered: 09/25/2008)
7 RESPONSE in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Georgia Medical Care Foundation, Inc.. (Katz, Adam) (Entered: 09/26/2008)
8 AFFIDAVIT in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Georgia Medical Care Foundation, Inc.. (Katz, Adam) (Entered: 09/26/2008)
10 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Motion Hearing held on 9/29/2008;granting in part and denying in part 2 Motion for Preliminary Injunction filed by Marketric Hunter; Mr. Norris to prepare and present order. (Court Reporter Susan Baker)(dr) (Entered: 10/01/2008)
9 ORDER granting 2 MOTION for Temporary Restraining Order. Signed by Judge Thomas W. Thrash, Jr on 9/22/08. (dr) (Entered: 10/01/2008)
11 NOTICE of Appearance by Adam Scott Katz on behalf of Georgia Medical Care Foundation, Inc. (Katz, Adam) (Entered: 10/08/2008)
12 Joint MOTION to Stay Proceedings and Discovery with Brief In Support by Rhonda Medows. (Attachments: # 1 Brief Memorandum of Law in Support, # 2 Text of Proposed Order Proposed Order)(Townes, Michelle) (Entered: 10/22/2008)
13 TRANSCRIPT of Proceedings held on September 29, 2008 before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Susan C. Baker, Telephone number 404−215−1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/18/2008. Redacted Transcript Deadline set for 11/28/2008. Release of Transcript Restriction set for 1/26/2009. (Attachments: # 1 Notice of Filing Transcript) (kac) (Entered: 10/29/2008)
14 PROPOSED ORDER Proposed Order on Plaintiff's Motion for Preliminary Injunction. (Norris, Joshua) (Entered: 10/30/2008)
15 ORDER granting in part, denying in part 2 MOTION for Preliminary Injunction filed by Marketric Hunter. Signed by Judge Thomas W. Thrash, Jr on 11/3/08. (dr) (Entered: 11/03/2008)

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 5 of 20

11/10/2008 11/24/2008 12/04/2008 01/27/2009 02/17/2009 02/19/2009
02/28/2009 03/19/2009
03/19/2009
03/19/2009 03/19/2009 03/19/2009 03/20/2009 04/01/2009 04/02/2009 04/06/2009 04/09/2009 04/20/2009 04/23/2009 04/23/2009

16 RESPONSE in Opposition re 12 Joint MOTION to Stay Proceedings and Discovery filed by Marketric Hunter. (Miller, Paula) (Entered: 11/10/2008)
17 REPLY to Response to Motion re 12 Joint MOTION to Stay Proceedings and Discovery filed by Rhonda Medows. (Townes, Michelle) (Entered: 11/24/2008)
Submission of 12 Joint MOTION to Stay Proceedings and Discovery, submitted to District Judge Thomas W. Thrash. (dr) (Entered: 12/04/2008)
18 ORDER denying 12 Motion to Stay Proceedings. Signed by Judge Thomas W. Thrash, Jr on 1/27/09. (dr) (Entered: 01/28/2009)
19 Joint MOTION for Entry of Consent Scheduling Order by Georgia Medical Care Foundation, Inc.. (Attachments: # 1 Exhibit Exhibit A − Proposed Consent Scheduling Order)(Katz, Adam) Modified caps on 2/18/2009 (dr). (Entered: 02/17/2009)
20 CONSENT SCHEDULING ORDER granting 19 Motion for Entry of Consent Scheduling Order; Amended Complaint due 2/27/09, Defendants response to Amended Complaint due 3/19/09, Joint Certificate of Interested Persons and Corporate Disclosures Statement due 3/19/09. Signed by Judge Thomas W. Thrash, Jr on 2/19/09. (dr) (Entered: 02/20/2009)
21 First AMENDED COMPLAINT against all defendants, filed by Marketric Hunter.(Miller, Paula) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 02/28/2009)
22 MOTION to Dismiss or in the Alternative for More Definite Statement with Brief In Support by Georgia Medical Care Foundation, Inc.. (Attachments: # 1 Text of Proposed Order, # 2 Brief Memorandum of Law in Support of Motion to Dismiss, # 3 Exhibit Subcontractor Agreement and Addenda)(Katz, Adam) (Entered: 03/19/2009)
23 Joint Certificate of Interested Persons by Marketric Hunter, Rhonda Medows, Georgia Medical Care Foundation, Inc. identifying Corporate Parent Georgia Department of Community Health, Corporate Parent Alliant Health Solutions, Inc. for Georgia Medical Care Foundation, Inc., Marketric Hunter, Rhonda Medows. (Katz, Adam) (Entered: 03/19/2009)
24 Corporate Disclosure Statement by Georgia Medical Care Foundation, Inc. identifying Corporate Parent Alliant Health Solutions, Inc. for Georgia Medical Care Foundation, Inc. by Georgia Medical Care Foundation, Inc..(Katz, Adam) (Entered: 03/19/2009)
25 NOTICE of Appearance by Jennifer Saffold Collins on behalf of Georgia Medical Care Foundation, Inc. (Collins, Jennifer) (Entered: 03/19/2009)
26 MOTION to Dismiss with Brief In Support by Rhonda Medows. (Attachments: # 1 Brief Memorandum of Law in Support)(Townes, Michelle) (Entered: 03/19/2009)
Clerks Notation re 23 Certificate of Interested Persons, OK, per TWT. (ss) (Entered: 03/20/2009)
27 RESPONSE in Opposition re 22 MOTION to Dismiss or in the Alternative for More Definite Statement filed by Marketric Hunter. (Miller, Paula) (Entered: 04/02/2009)
28 RESPONSE in Opposition re 26 MOTION to Dismiss filed by Marketric Hunter. (Miller, Paula) (Entered: 04/02/2009)
29 RESPONSE in Opposition re 22 MOTION to Dismiss or in the Alternative for More Definite Statement filed by Marketric Hunter. (Miller, Paula) (Entered: 04/06/2009)
30 NOTICE of Change of Address for Adam Scott Katz, counsel for Georgia Medical Care Foundation, Inc. (Katz, Adam) (Entered: 04/09/2009)
31 PRELIMINARY REPORT AND DISCOVERY PLAN filed by Rhonda Medows. (Attachments: # 1 Text of Proposed Order Scheduling Order)(Townes, Michelle) (Entered: 04/20/2009)
32 REPLY to Response to Motion re 22 MOTION to Dismiss or in the Alternative for More Definite Statement filed by Georgia Medical Care Foundation, Inc.. (Katz, Adam) (Entered: 04/23/2009)
Submission of 22 MOTION to Dismiss or in the Alternative for More Definite Statement, 26 MOTION to Dismiss, submitted to District Judge Thomas W. Thrash. (dr) (Entered:

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 6 of 20

07/08/2009 07/09/2009 12/16/2009 12/23/2009 12/23/2009 01/15/2010 01/15/2010 02/11/2010 02/12/2010 02/15/2010 02/15/2010 02/15/2010 02/15/2010 02/16/2010 02/17/2010 02/17/2010

04/23/2009)
33 Notice for Leave of Absence for the following date(s): 08/20/2009, 08/21/2009, 08/22/2009, 08/23/2009, 08/24/2009, 08/25/2009, 08/26/2009, 08/27/2009, 08/28/2009, 08/29/2009, 08/30/2009, 08/31/2009, by Michelle Townes. (Attachments: # 1 Exhibit A: List of Cases, Clerks and Opposing Counsel)(Townes, Michelle) (Entered: 07/08/2009)
Clerks Notation re 33 Leave of Absence, 08/20−31/2009, by Michelle Townes. The Court will not require an appearance by M. Townes on these dates. (ss) (Entered: 07/09/2009)
34 ORDER denying Defendants' 22 , 26 Motions to Dismiss. Signed by Judge Thomas W. Thrash, Jr. on 12/15/09. (dfb) (Entered: 12/16/2009)
35 Consent MOTION for Extension of Time In Which To Respond To Plaintiff's Amended Complaint by Rhonda Medows and Georgia Medical Care Foundation, Inc. (Attachments: # 1 Exhibit A)(Townes, Michelle) Modified on 12/28/2009 to add filer. (dfb) (Entered: 12/23/2009)
36 ORDER granting the 35 Consent Motion for Extension of Time until January 15, 2010 for Defendants to Respond to Plaintiff's Amended Complaint. Signed by Judge Thomas W. Thrash, Jr. on 12/23/09. (dfb) (Entered: 12/23/2009)
37 ANSWER to 21 Amended Complaint and Affirmative Defenses by Georgia Medical Care Foundation, Inc.. Discovery ends on 6/14/2010.(Katz, Adam) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 01/15/2010)
38 ANSWER to 21 Amended Complaint for Injunctive and Declaratory Relief by Rhonda Medows.(Townes, Michelle) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. Modified on 1/19/2010 (dr). (Entered: 01/15/2010)
39 Second MOTION for Temporary Restraining Order, Second MOTION for Preliminary Injunction with Brief In Support by Marketric Hunter. (Attachments: # 1 Brief Memorandum of Law in Support of Motion, # 2 Affidavit Affidavit of Styles L. Bertrand, M.D., # 3 Text of Proposed Order)(Norris, Joshua) (Entered: 02/11/2010)
NOTICE of Hearing on Motion re: 39 Second MOTION for Temporary Restraining Order Second MOTION for Preliminary Injunction Motion Hearing set for 2/16/2010 at 10:00 AM in ATLA Courtroom 2108 before Judge Thomas W. Thrash Jr.. (ss) (Entered: 02/12/2010)
40 RESPONSE re 39 Second MOTION for Temporary Restraining OrderSecond MOTION for Preliminary Injunction filed by Rhonda Medows, Georgia Medical Care Foundation, Inc.. (Attachments: # 1 Affidavit Affidavit of Gary Miller MD)(Katz, Adam) (Entered: 02/15/2010)
41 AFFIDAVIT re 39 Second MOTION for Temporary Restraining OrderSecond MOTION for Preliminary Injunction Affidavit of Thelma Lynah by Marketric Hunter. (Norris, Joshua) (Entered: 02/15/2010)
42 AFFIDAVIT re 39 Second MOTION for Temporary Restraining OrderSecond MOTION for Preliminary Injunction Affidavit of Michelle R. McQueen by Marketric Hunter. (Norris, Joshua) (Entered: 02/15/2010)
43 DOCUMENT FILED IN ERROR − AFFIDAVIT re 39 Second MOTION for Temporary Restraining OrderSecond MOTION for Preliminary Injunction Exhibit 1 (CV of Styles Bertrand, M.D.) of Affidavit of Styles Bertrand, M.D. by Marketric Hunter. (Norris, Joshua) Modified on 2/16/2010 (dr). (Entered: 02/15/2010)
44 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Motion Hearing held on 2/16/2010 granting 39 Second MOTION for Temporary Restraining Order, Second MOTION for Preliminary Injunction filed by Marketric Hunter. (Court Reporter Susan Baker)(dr) (Entered: 02/17/2010)
45 Application for Leave of Absence for the following date(s): 03/05/10, 03/06/10, 03/07/10, 03/08/10, 03/09/10, 03/10/10, 03/11/10, 03/12/10, 03/13/10, 03/14/10, 03/15/10, by Adam Scott Katz. (Katz, Adam) (Entered: 02/17/2010)
46 Application for Leave of Absence for the following date(s): 04/01/10, 04/02/10, 04/03/10, 04/04/10, 04/05/10, 04/06/10, 04/07/10, 04/08/10, 04/09/10, 04/10/10, 04/11/10, 04/12/10, 04/13/10, by Adam Scott Katz. (Katz, Adam) (Entered: 02/17/2010)

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 7 of 20

02/18/2010
02/18/2010 02/19/2010 02/22/2010
03/01/2010 03/01/2010 03/02/2010 03/08/2010
03/30/2010 04/02/2010 04/27/2010 04/27/2010
06/04/2010 06/07/2010 08/18/2010 09/08/2010 09/14/2010

47 ORDER AND ORDER granting 39 Second MOTION for Temporary Restraining Order and Preliminary Injunction filed by Marketric Hunter. Defendants are enjoined from denying Plaintiff's request for 24 hour a day private duty skilled nursing services for 6 to 8 weeks while he is in a body cast, and 18 hours a day of private duty skilled nursing services after the cast is removed until 3/31/10. Signed by Judge Thomas W. Thrash, Jr on 2/17/10. (dr) (Entered: 02/18/2010)
Clerks Notation re 45 Leave of Absence for 3/5−15/10, 46 Leave of Absence 4/1−13/10 by Adam Scott Katz. The Court will not require an appearance by A. Katz on these dates. (ss) (Entered: 02/18/2010)
48 ORDER that counsel file the Certificate of Interested Persons and the Joint Preliminary Report and Discovery Plan within 10 days, or show cause why this case should not be dismissed. Signed by Judge Thomas W. Thrash, Jr on 2/19/10. (dr) (Entered: 02/19/2010)
49 TRANSCRIPT of Motions Proceedings held on February 16, 2010, before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Susan C. Baker, Telephone number 404−215−1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/15/2010. Redacted Transcript Deadline set for 3/25/2010. Release of Transcript Restriction set for 5/24/2010. (Attachments: # 1 Notice of Filing Transcript) (kac) (Entered: 02/23/2010)
50 CERTIFICATE OF SERVICE of Discovery by Rhonda Medows.(Townes, Michelle) (Entered: 03/01/2010)
51 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by Marketric Hunter. (Miller, Paula) (Entered: 03/01/2010)
52 CERTIFICATE OF SERVICE of Initial Disclosures by Georgia Medical Care Foundation, Inc..(Collins, Jennifer) (Entered: 03/02/2010)
53 SCHEDULING ORDER approving 51 Preliminary Report and Discovery Plan; Discovery ends on 6/14/2010, Summary Judgment Motions due by 7/14/2010, Proposed Pretrial Order due by 7/14/2010. Signed by Judge Thomas W. Thrash, Jr on 3/8/10. (dr) (Entered: 03/09/2010)
54 Initial Disclosures by Marketric Hunter.(Miller, Paula) (Entered: 03/30/2010)
NOTICE of Hearing: Status Conference set for 4/27/2010 at 03:30 PM before Judge Thomas W. Thrash Jr., Chambers 2188. (ss) (Entered: 04/02/2010)
NOTICE OF CANCELLATION of Hearing re: NOTICE of Hearing: Status Conference set for 4/27/2010 at 03:30 PM before Judge Thomas W. Thrash Jr., Chambers 2188. (ss) (ss) (Entered: 04/27/2010)
55 CONSENT SCHEDULING ORDER: Discovery in this case is hereby stayed until thirty (30) days after the Eleventh Circuit issues its opinion in the Moore Appeal (Appeal No. 10−10148−BB); Once the discovery period commences, the parties shall have four(4) months to conduct discovery. Signed by Judge Thomas W. Thrash, Jr on 4/27/2010. (pdw) (Entered: 04/27/2010)
56 Notice for Leave of Absence for the following date(s): July 5, 6, 7, 8, 9, 10, 11, 12, 2010, by Michelle Townes. (Townes, Michelle) (Entered: 06/04/2010)
Clerks Notation re 56 Leave of Absence July 5−12, 2010, by Michelle Townes. The Court will not require an appearance by M. Townes on these dates. (ss) (Entered: 06/07/2010)
57 MOTION to Substitute Party Clyde Reese, III, Defendant with Brief In Support by Rhonda Medows. (Attachments: # 1 Memorandum of Law in Support of Defendant's Motion to Substitute Party)(Townes, Michelle) (Entered: 08/18/2010)
Submission of 57 MOTION to Substitute Party Clyde Reese, III, Defendant, submitted to District Judge Thomas W. Thrash. (dr) (Entered: 09/08/2010)
ORDER granting 57 Motion to Substitute Party. Rhonda Medows terminated. Signed by Judge Thomas W. Thrash, Jr on 9/14/10. (TWT) (Entered: 09/14/2010)

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 8 of 20

04/27/2011 05/03/2011 05/05/2011 05/05/2011 05/06/2011 05/11/2011 05/11/2011 05/16/2011 05/17/2011 07/07/2011 07/08/2011 08/08/2011
08/08/2011 08/08/2011
08/08/2011 08/25/2011 08/26/2011
08/30/2011 08/31/2011

58 MOTION to Substitute Party Clyde Reese with Brief In Support by Clyde L. Reese, III. (Attachments: # 1 Brief Memorandum of Law in Support of Motion to Substitute Party)(Townes, Michelle) (Entered: 04/27/2011)
59 ORDER granting 58 Motion to Substitute Party. David A. Cook added. Clyde L. Reese, III terminated. Signed by Judge Thomas W. Thrash, Jr on 5/2/11. (dr) (Entered: 05/04/2011)
60 Joint MOTION for Order (Scheduling Order) by David A. Cook, Georgia Medical Care Foundation, Inc., Marketric Hunter. (Attachments: # 1 Text of Proposed Order proposed Consent Scheduling Order)(Collins, Jennifer) (Entered: 05/05/2011)
61 Notice for Leave of Absence for the following date(s): 05/30/11, 05/31/11, 06/01/11, 06/02/11, 06/03/11, 06/06/11, 06/07/11, by Michelle Townes. (Attachments: # 1 Exhibit A)(Townes, Michelle) (Entered: 05/05/2011)
62 CONSENT SCHEDULING ORDER granting 60 Motion for Order. Signed by Judge Thomas W. Thrash, Jr on 5/6/11. (dr) (Entered: 05/09/2011)
63 Notice for Leave of Absence for the following date(s): 5/30/11−6/7/11, by Michelle Townes. (ss) (Entered: 05/11/2011)
Clerks Notation re 63 Leave of Absence 5/30/11−6/7/11, by Michelle Townes. The Court will not require an appearance by M. Townes on these dates. (ss) (Entered: 05/11/2011)
64 Notice for Leave of Absence for the following date(s): June 20−24, July 7−15, by Adam Scott Katz. (Katz, Adam) (Entered: 05/16/2011)
Clerks Notation re 64 Leave of Absence June 20−24, July 7−15, by Adam Scott Katz. The Court will not require an appearance by A. Katz on these dates. (ss) (Entered: 05/17/2011)
65 Second MOTION to Amend Complaint with Brief In Support by Marketric Hunter. (Attachments: # 1 Brief)(Miller, Paula) (Entered: 07/07/2011)
66 PROPOSED Second Amended Complaint by Marketric Hunter re 65 Second MOTION to Amend Complaint (Miller, Paula) Modified on 7/11/2011 (dr). (Entered: 07/08/2011)
67 MOTION for Judgment on the Pleadings, MOTION for More Definite Statement by Georgia Medical Care Foundation, Inc.. (Attachments: # 1 Brief Combined Response in Opposition to Plaintiff's Motion for Leave to Amend Complaint and Memorandum of Law in Support of Motion for Judgment on Pleadings or in the Alternative Motion for More Definite Statement)(Collins, Jennifer) . Added MOTION for More Definite Statement on 9/8/2011 (dr). (Entered: 08/08/2011)
68 DOCUMENT FILED IN ERROR − MOTION for More Definite Statement with Brief In Support by Georgia Medical Care Foundation, Inc.. (Attachments: # 1 Brief)(Collins, Jennifer) Modified on 9/8/2011 (dr). (Entered: 08/08/2011)
69 MOTION for Judgment on the Pleadings or, in the alternative, MOTION to Dismiss with Brief In Support by David A. Cook. (Attachments: # 1 Defendant David A. Cook's Memorandum of Law (Townes, Michelle) . Added MOTION for Judgment on the Pleadings on 8/9/2011 (rej). (Entered: 08/08/2011)
74 RESPONSE in Opposition to 65 Second MOTION to Amend Complaint filed by Georgia Medical Care Foundation, Inc. (dr) (Entered: 09/08/2011)
70 Unopposed MOTION for Extension of Time to File Responses by Marketric Hunter. (Attachments: # 1 Text of Proposed Order)(Miller, Paula) (Entered: 08/25/2011)
71 ORDER granting 70 Motion for Extension of Time until 9/1/11 to respond to 67 MOTION for Judgment on the Pleadings, 68 MOTION for More Definite Statement, 69 MOTION to Dismiss, MOTION for Judgment on the Pleadings. Signed by Judge Thomas W. Thrash, Jr on 8/26/11. (dr) (Entered: 08/26/2011)
72 Notice for Leave of Absence for the following date(s): 9−6−11, 9−7−11, 9−8−11,9−9−11,10−21−11,11−28−11,11−29−11,12−27−11,12−28−11,12−29−11,12−30−11, by Paula Rafferty Miller. (Miller, Paula) (Entered: 08/30/2011)
Clerks Notation re 72 Leave of Absence 9/6−9/11,10/21/11, 11/28−29/11, 12/27−30/11, by Paula Rafferty Miller. The Court will not require an appearance by P. Miller on these dates. (ss) (Entered: 08/31/2011)

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 9 of 20

09/01/2011 09/08/2011
09/08/2011 09/12/2011 09/14/2011 09/27/2011 09/27/2011 09/27/2011
09/27/2011
10/21/2011 10/27/2011 10/28/2011 11/22/2011 11/23/2011 11/23/2011 11/28/2011 12/01/2011
12/21/2011

73 RESPONSE in Opposition re 69 MOTION to Dismiss MOTION for Judgment on the Pleadings filed by Marketric Hunter. (Norris, Joshua) (Entered: 09/01/2011)
Notification of Docket Correction re 74 Response which was incorrectly combined in a previous filing ( 67 Motions). Document 68 MOTION for More Definite Statement was incorrectly filed as a separate document, see 67 Motions for correct entry. (dr) (Entered: 09/08/2011)
Submission of 67 MOTION for Judgment on the Pleadings, MOTION for More Definite Statement, 65 Second MOTION to Amend Complaint, submitted to District Judge Thomas W. Thrash. (dr) (Entered: 09/08/2011)
75 MOTION to Dismiss Voluntary Dismissal as to GMCF only with Brief In Support by Marketric Hunter. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Miller, Paula) (Entered: 09/12/2011)
76 ORDER granting 75 Motion to Dismiss Georgia Medical Care Foundation, Inc. without prejudice. Signed by Judge Thomas W. Thrash, Jr on 9/13/11. (dr) (Entered: 09/14/2011)
77 ORDER granting 65 Motion to Amend, denying as moot 67 Motion for Judgment on the Pleadings, denying 69 Motion for Judgment on the Pleadings. Signed by Judge Thomas W. Thrash, Jr on 9/27/11. (dr) (Entered: 09/27/2011)
78 MOTION for Reconsideration re 76 Order on Motion to Dismiss with Brief In Support by David A. Cook. (Attachments: # 1 Brief Memorandum of Law in Support of its Motion for Reconsideration)(Townes, Michelle) (Entered: 09/27/2011)
81 SECOND AMENDED COMPLAINT against David A. Cook, Georgia Medical Care Foundation, Inc., filed by Marketric Hunter, J.M., R.E., Zachary Royal, S.R.(dr) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 11/10/2011)
Set/Reset Scheduling Order Deadlines: Answer to 2nd Amended Complaint having been filed 10/27/11, discovery will restart on 11/27/11. Discovery ends on 3/27/2012. Motions for Summary Judgment due by 4/27/2012. If no motions for Summary Judgment filed, the Consolidated Proposed Pretrial Order due by 4/27/2012. Clerk to submit to the Court 4/30/12 if the parties fail to file either a Motion for Summary Judgment or Proposed Pretrial Order. (ss) (Entered: 11/10/2011)
Submission of 78 MOTION for Reconsideration re 76 Order, submitted to District Judge Thomas W. Thrash. (dr) (Entered: 10/21/2011)
79 ANSWER to 81 Second Amended Complaint by David A. Cook.(Townes, Michelle) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. Modified related document on 11/10/2011 (dr). (Entered: 10/27/2011)
80 ORDER denying 78 Motion for Reconsideration. Signed by Judge Thomas W. Thrash, Jr on 10/28/11. (dr) (Entered: 10/31/2011)
82 Joint Certificate of Interested Persons by David A. Cook, Marketric Hunter, J.M., R.E., Zachary Royal, S.R.. (Miller, Paula) (Entered: 11/22/2011)
83 Amended Initial Disclosures by David A. Cook. (Attachments: # 1 Attachment A, # 2 Attachment C)(Townes, Michelle) (Entered: 11/23/2011)
84 Joint PRELIMINARY REPORT AND DISCOVERY PLAN filed by David A. Cook. (Townes, Michelle) (Entered: 11/23/2011)
Clerks Notation re 82 Certificate of Interested Persons, OK per TWT. (ss) (Entered: 11/28/2011)
85 SCHEDULING ORDER approving 84 Preliminary Report and Discovery Plan; Discovery ends on 3/27/2012, Summary Judgment Motions due by 4/27/2012, Proposed Pretrial Order due by 4/27/2012. Signed by Judge Thomas W. Thrash, Jr on 12/1/11. (dr) (Entered: 12/01/2011)
86 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction with Brief In Support by Zachary Royal. (Attachments: # 1 Brief Memorandum of Law, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3 − Declaration of Zachary Royal, # 5 Exhibit Exhibit 4 − Declaration of Kathleen Tondee, # 6 Exhibit Exhibit 5 − Declaration of

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12/22/2011 12/22/2011
12/30/2011
02/15/2012 03/06/2012 03/07/2012 03/29/2012 03/30/2012 03/30/2012 04/05/2012 04/06/2012 04/11/2012 04/30/2012 05/02/2012

Carolyn Smith, # 7 Exhibit Exhibit 6 − Declaration of Daniel Torrez, M.D., # 8 Exhibit Exhibit 7)(Norris, Joshua) (Entered: 12/21/2011)
NOTICE of Hearing on Motion re: 86 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction. Motion Hearing set for 12/22/2011 at 03:00 PM in ATLA Courtroom 2108 before Judge Thomas W. Thrash Jr.. (ss) (Entered: 12/22/2011)
87 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Motion Hearing held on 12/22/2011; granting 86 MOTION for Temporary Restraining Order, deferring ruling on MOTION for Preliminary Injunction filed by Zachary Royal. The Court granted the Motion for TRO and enjoins David Cook in his official capacity from reducing services to plaintiff Royal below 84 hours per week and this to remain in affect until ordered otherwise by this Court. The Court is deferring ruling on the Motion for Preliminary Injunction and at anytime after 30 days the defendant may request a full evidentiary hearing. Mr. Norris to prepare an order stating the Court's ruling and reasons, have approved as to form by Ms. Townes and submit to the Court for signature. (Court Reporter Susan Baker)(dr) (Entered: 12/22/2011)
88 TRANSCRIPT of Proceedings held on December 22, 2011, before Judge Thomas W. Thrash, Jr.. Court Reporter/Transcriber Susan C. Baker, Telephone number (404) 215−1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/20/2012. Redacted Transcript Deadline set for 1/30/2012. Release of Transcript Restriction set for 3/29/2012. (Attachments: # 1 Notice of Filing Transcript) (fem) (Entered: 01/03/2012)
Submission of 86 MOTION for Preliminary Injunction, submitted to District Judge Thomas W. Thrash. (dr) (Entered: 02/15/2012)
89 PROPOSED ORDER Proposed Order on Plaintiff Zachary Royal's Motion for Temporary Restraining Order and Preliminary Injunction re: 86 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction. (Norris, Joshua) (Entered: 03/06/2012)
90 ORDER granting 2 MOTION for Temporary Restraining Order, deferring ruling on MOTION for Preliminary Injunction. Signed by Judge Thomas W. Thrash, Jr on 3/7/12, nunc pro tunc 12/22/11. (dr) (Entered: 03/07/2012)
91 Joint MOTION to Amend 85 Scheduling Order, Set Submission Deadline by Marketric Hunter. (Attachments: # 1 Text of Proposed Order)(Miller, Paula) (Entered: 03/29/2012)
92 ORDER granting 91 Motion to Amend Scheduling Order to add an additional 90 days to conduct discovery. Signed by Judge Thomas W. Thrash, Jr on 3/30/12. (dr) (Entered: 03/30/2012)
Set/Reset Scheduling Order Deadlines: Discovery ends on 6/27/2012. Summary Judgment Motions due by 7/27/2012. If no summary judgment motions filed the Joint Proposed Pretrial Order due by 7/27/2012. (ss) (Entered: 03/30/2012)
NOTICE of Hearing on Motion re: 86 MOTION for Preliminary Injunction. Motion Hearing set for 5/1/2012 at 02:00 PM in ATLA Courtroom 2108 before Judge Thomas W. Thrash Jr.. (ss) (Entered: 04/05/2012)
NOTICE of Hearing on Motion re: 86 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction. RESETING HEARING from 5/1/2012 to − Motion Hearing set for 5/3/2012 at 10:00 AM in ATLA Courtroom 2108 before Judge Thomas W. Thrash Jr.. (ss) (Entered: 04/06/2012)
93 MOTION to Certify Class with Brief In Support by Marketric Hunter. (Attachments: # 1 Brief Plaintiffs' Memorandum of Law in Support of Motion for Class Certification, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2)(Norris, Joshua) (Entered: 04/11/2012)
94 RESPONSE to 93 MOTION to Certify Class filed by David A. Cook. (Townes, Michelle) Modified duplicative text on 5/1/2012 (dr). (Entered: 04/30/2012)
95 DOCUMENT FILED IN ERROR − NOTICE by Zachary Royal Notice of Request for Judicial Notice (Attachments: # 1 Exhibit Exhibit 7, # 2 Exhibit Exhibit 8, # 3 Exhibit Exhibit 9)(Norris, Joshua) Modified on 5/3/2012 (dr). (Entered: 05/02/2012)

Case: 1:08-cv-2930 As of: 11/27/2018 04:52 PM EST 11 of 20

05/02/2012 96 DOCUMENT FILED IN ERROR − NOTICE by David A. Cook re 95 Notice (Other) Objection To Plaintiffs' Notice Of Request For Judicial Notice (Townes, Michelle) Modified on 5/3/2012 (dr). (Entered: 05/02/2012)

05/02/2012 97 REQUEST for Judicial Notice by Zachary Royal. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9)(dr) (Entered: 05/03/2012)

05/02/2012 98 OBJECTION to 97 MOTION for Judicial Notice filed by David A. Cook. (dr) (Entered: 05/03/2012)

05/03/2012

99 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Motion Hearing held on 5/3/2012 granting 86 MOTION for Preliminary Injunction filed by Zachary Royal. EXHIBITS ADMITTED. The Court inquired of counsel if there is any reason that this hearing should not be considered as a trial on the merits as to plaintiff Zachry Royal and indicated that would be what he would do. The Court heard closing argument by counsel. Counsel have 14 days to present their proposed filings of fact and conclusions of law and an additional 14 days for additional briefing. (Court Reporter Susan Baker)(dr) (Entered: 05/04/2012)

05/04/2012 215 EXHIBITS from hearing held 5/3/12 received from Courtroom Deputy and placed in Exhibit room. (dr) (Additional attachment(s) added on 11/21/2013: # 1 Pla Exh 002, # 2 Pla Exh 010, # 3 Pla Exh 011, # 4 Pla Exh 012, # 5 Pla Exh 013, # 6 Pla Exh 014, # 7 Pla Exh 015, # 8 Pla Exh 016, # 9 Pla Exh 017, # 10 Pla Exh 018, # 11 Pla Exh 019, # 12 Pla Exh 020, # 13 Dft Exh 001) (kac). (Entered: 05/04/2012)

05/10/2012 100 TRANSCRIPT of Motion for Preliminary Injunction Proceedings held on May 3, 2012, before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Susan C. Baker, Telephone number 404−215−1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/31/2012. Redacted Transcript Deadline set for 6/11/2012. Release of Transcript Restriction set for 8/8/2012. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 05/11/2012)

05/14/2012 101 REPLY to Response to Motion re 93 MOTION to Certify Class filed by Marketric Hunter. (Norris, Joshua) (Entered: 05/14/2012)

05/17/2012 102 Proposed Findings of Fact by David A. Cook. (Townes, Michelle) (Entered: 05/17/2012)

05/18/2012 103 Proposed Findings of Fact by Zachary Royal. (Norris, Joshua) (Entered: 05/18/2012)

05/24/2012

Submission of 93 MOTION to Certify Class, 97 MOTION for Judicial Notice, submitted to District Judge Thomas W. Thrash. (dr) (Entered: 05/24/2012)

05/29/2012 104 CERTIFICATE OF SERVICE Of Discovery For Defendant's First Request For Production Of Documents To Plaintiffs by David A. Cook.(Townes, Michelle) (Entered: 05/29/2012)

05/29/2012 105 CERTIFICATE OF SERVICE Of Discovery For Defendant's First Interrogatories To Plaintiffs by David A. Cook.(Townes, Michelle) (Entered: 05/29/2012)

05/31/2012 106 TRIAL BRIEF Defendant Cook's Post Hearing Brief by David A. Cook. (Townes, Michelle) (Entered: 05/31/2012)

05/31/2012 107 MOTION for Leave to File Excess Pages by Zachary Royal. (Attachments: # 1 Text of Proposed Order)(Norris, Joshua) (Entered: 05/31/2012)

05/31/2012 108 TRIAL BRIEF Plaintiff's Post−Hearing Brief in Support of Entry of Declaratory Judgment and Permanent Injunction by Zachary Royal. (Norris, Joshua) (Entered: 05/31/2012)

06/01/2012 109 ORDER granting 107 Motion for Leave to File Excess Pages. Signed by Judge Thomas W. Thrash, Jr on 6/1/12. (dr) (Entered: 06/01/2012)

06/12/2012 110 Second MOTION to Amend 92 Order on Motion to Amend Scheduling Order by David A. Cook. (Attachments: # 1 Text of Proposed Order)(Townes, Michelle) (Entered: 06/12/2012)

06/13/2012 111 ORDER granting 110 Motion to Amend Scheduling Order; Discovery shall be stayed for 30 days; Discovery shall conclude 90 days from the date of this Order. Signed by Judge Thomas W. Thrash, Jr on 6/13/12. (dr) (Entered: 06/13/2012)

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06/15/2012 112 Notice for Leave of Absence for the following date(s): 7/2/12,7/3/12,7/4/12,7/5/12,7/6/12, by Michelle Townes. (Townes, Michelle) (Entered: 06/15/2012)

06/19/2012 113 ORDER granting 86 MOTION for Preliminary Injunction filed by Zachary Royal. On the merits of his Medicaid Act and ADA claims, the Plaintiff is entitled to permanent injunctive relief and a declaratory judgment prohibiting the Defendant from reducing his nursing hours according to the terms of the Final Determination dated 8/3/11. Signed by Judge Thomas W. Thrash, Jr on 6/15/12. (dr) (Entered: 06/19/2012)

06/19/2012

Clerks Notation re 112 Leave of Absence 7/2−6/12, by Michelle Townes. The Court will not require an appearance by M. Townes on these dates. (ss) (Entered: 06/19/2012)

06/22/2012 114 Certification of Consent to Substitution of Counsel. Jason S. Naunas replacing attorney Penny Hannah. (Naunas, Jason) (Entered: 06/22/2012)

07/12/2012 115 Consent MOTION to Amend 111 Order on Motion to Amend Scheduling Order by Marketric Hunter. (Miller, Paula) (Entered: 07/12/2012)

07/16/2012 116 ORDER granting 115 Motion to Amend Scheduling Order; discovery shall conclude in 105 days, all other deadlines shall be adjusted accordingly. Signed by Judge Thomas W. Thrash, Jr on 7/16/12. (dr) (Entered: 07/16/2012)

07/19/2012 117 NOTICE OF APPEAL as to 113 Order, by David A. Cook. Filing fee $ 455, receipt number 113E−4052964. Transcript Order Form due on 8/2/2012 (Townes, Michelle) (Entered: 07/19/2012)

07/23/2012 118 Transmission of Certified Copy of Notice of Appeal, Order and Docket Sheet to US Court of Appeals re: 117 Notice of Appeal. (kac) (Entered: 07/23/2012)

07/31/2012 119 TRANSCRIPT ORDER FORM for proceedings held on 12/23/2011 before Judge Thomas W. Thrash, re 117 Notice of Appeal. Court Reporter: Susan Baker. (Townes, Michelle) (Entered: 07/31/2012)

07/31/2012

Set Financial Arrangement deadline due date re: 119 Transcript Order Form. Financial Arrangements due on 8/13/2012.(kac) (Entered: 08/01/2012)

08/01/2012 120 USCA Acknowledgment of 117 Notice of Appeal filed by David A. Cook. Case Appealed to USCA − 11th Circuit. USCA Case Number 12−13875−F. (kac) (Entered: 08/02/2012)

08/02/2012 121 ORDER denying 93 Motion to Certify Class. Signed by Judge Thomas W. Thrash, Jr on 8/2/12. (dr) (Entered: 08/03/2012)

08/07/2012 122 NOTICE Of Filing Notification that 88 Transcript Has Been Filed in District Court by David A. Cook. (kac) (Entered: 08/08/2012)

08/29/2012 123 ENTRY OF DISMISSAL of USCA DISMISSING 117 Notice of Appeal filed by David A. Cook pursuant to Appellant Commissioner of Georgia Department of Community Health's motion for voluntary dismissal (joint stipulation of the parties), the appeal was dismissed on 8/29/12. Case Appealed to USCA−11th Circuit. Case Number 12−13875−FF. (pjm) (Entered: 08/29/2012)

10/02/2012 124 NOTICE to Take Deposition of Michelle Eaves filed by David A. Cook (Townes, Michelle) (Entered: 10/02/2012)

10/05/2012 125 NOTICE to Take Deposition of Virginia Bryant filed by David A. Cook (Naunas, Jason) (Entered: 10/05/2012)

10/05/2012 126 NOTICE to Take Deposition of Dr. Anna Janss filed by David A. Cook (Townes, Michelle) (Entered: 10/05/2012)

10/11/2012 127 NOTICE to Take Deposition of Minnie Manuel filed by David A. Cook (Naunas, Jason) (Entered: 10/11/2012)

10/11/2012 128 NOTICE to Take Deposition of Elizabeth LeDuc filed by David A. Cook (Naunas, Jason) (Entered: 10/11/2012)

10/16/2012 129 Amended NOTICE to Take Deposition of Virginia Bryant filed by David A. Cook (Naunas, Jason) (Entered: 10/16/2012)

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10/17/2012 130 NOTICE to Take Deposition of Dr. Francisco Herran filed by David A. Cook (Townes, Michelle) (Entered: 10/17/2012)
10/17/2012 131 NOTICE to Take Deposition of Michelle McQueen filed by David A. Cook (Townes, Michelle) (Entered: 10/17/2012)
10/17/2012 132 NOTICE to Take Deposition of Tonya Hill filed by David A. Cook (Naunas, Jason) (Entered: 10/17/2012)
10/17/2012 133 NOTICE to Take Deposition of Thelma Lynah filed by David A. Cook (Townes, Michelle) (Entered: 10/17/2012)
10/18/2012 134 Amended NOTICE to Take Deposition of Dr. Francisco Herran filed by David A. Cook (Townes, Michelle) (Entered: 10/18/2012)
10/19/2012 135 NOTICE to Take Deposition of Jayme Regna filed by David A. Cook (Naunas, Jason) (Entered: 10/19/2012)
10/23/2012 136 NOTICE to Take Deposition of Darlene Meador filed by Marketric Hunter (Norris, Joshua) (Entered: 10/23/2012)
10/23/2012 137 NOTICE to Take Deposition of Jerry Dubberly filed by Marketric Hunter (Norris, Joshua) (Entered: 10/23/2012)
10/23/2012 138 NOTICE to Take Deposition of Patricia Nobbie filed by Marketric Hunter (Norris, Joshua) (Entered: 10/23/2012)
10/23/2012 139 NOTICE to Take Deposition of Georgia Medical Care Foundation filed by Marketric Hunter (Attachments: # 1 Exhibit A, # 2 Subpoena)(Norris, Joshua) (Entered: 10/23/2012)
10/29/2012 140 MOTION for Extension of Time to Complete Discovery from Georgia Medical Care Foundation by Marketric Hunter. (Miller, Paula) (Entered: 10/29/2012)
10/29/2012 141 MOTION to Compel Plaintiffs to Respond Fully to Interrogatories with Brief In Support by David A. Cook. (Attachments: # 1 Brief Memorandum of Law in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Townes, Michelle) (Entered: 10/29/2012)
10/29/2012 142 First MOTION to Compel production of documents with Brief In Support by David A. Cook. (Attachments: # 1 Brief, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Townes, Michelle) Modified description of exhibits on 10/30/2012 (dr). (Entered: 10/29/2012)
10/29/2012 143 MOTION to Compel Documents and Testimony from Non−Party GMCF by Marketric Hunter. (Miller, Paula) (Entered: 10/29/2012)
10/30/2012 144 ORDER granting 140 Motion for Extension of Time to Complete Discovery from Georgia Medical Care Foundation. Signed by Judge Thomas W. Thrash, Jr on 10/30/12. (TWT) Modified on 11/2/2012 − Discovery ends 11/30/2012. (ss). (Entered: 10/30/2012)
10/30/2012 145 MOTION to Compel Production of Documents with Brief In Support by David A. Cook. (Attachments: # 1 Brief Memorandum of Law In Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Townes, Michelle) (Entered: 10/30/2012)
10/30/2012 146 RESPONSE re 140 MOTION for Extension of Time to Complete Discovery from Georgia Medical Care Foundation filed by David A. Cook. (Attachments: # 1 Brief Memo. of Law in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Naunas, Jason) (Entered: 10/30/2012)
11/07/2012 147 RESPONSE re 143 MOTION to Compel Documents and Testimony from Non−Party GMCF filed by David A. Cook. (Attachments: # 1 Brief Memorandum of Law in Support)(Naunas, Jason) (Entered: 11/07/2012)
11/14/2012 148 Withdrawal of Motion 143 MOTION to Compel Documents and Testimony from Non−Party GMCF filed by Marketric Hunter filed by Marketric Hunter. (Miller, Paula) (Entered: 11/14/2012)
11/15/2012 149 Second MOTION for Extension of Time to Complete Discovery from Georgia Medical Care Foundation by Marketric Hunter. (Miller, Paula) (Entered: 11/15/2012)
11/15/2012 150 CERTIFICATE OF SERVICE of Plaintiff's Supplemental Responses to Interrogatories by Marketric Hunter.(Miller, Paula) (Entered: 11/15/2012)

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11/15/2012 151 RESPONSE in Opposition re 145 MOTION to Compel Production of Documents filed by Marketric Hunter. (Miller, Paula) (Entered: 11/15/2012)

11/15/2012 152 RESPONSE in Opposition re 141 MOTION to Compel Plaintiffs to Respond Fully to Interrogatories filed by Marketric Hunter. (Miller, Paula) (Entered: 11/15/2012)

11/19/2012

ORAL ORDER granting 149 Motion for Extension of Time to Complete Discovery through 12/31/2012 from Georgia Medical Care Foundation. Signed by Judge Thomas W. Thrash, Jr on 11/19/12. (ss) (Entered: 11/19/2012)

12/03/2012 153 REPLY to Response to Motion re 145 MOTION to Compel Production of Documents filed by David A. Cook. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Townes, Michelle) (Entered: 12/03/2012)

12/03/2012 154 REPLY to Response to Motion re 141 MOTION to Compel Plaintiffs to Respond Fully to Interrogatories filed by David A. Cook. (Townes, Michelle) (Entered: 12/03/2012)

12/07/2012

Submission of 142 First MOTION to Compel production of documents , 141 MOTION to Compel Plaintiffs to Respond Fully to Interrogatories , 145 MOTION to Compel Production of Documents , submitted to District Judge Thomas W. Thrash. (dr) (Entered: 12/07/2012)

12/12/2012 155 Amended NOTICE to Take Deposition of Georgia Medical Care Foundation filed by Marketric Hunter (Attachments: # 1 Exhibit A to Notice, # 2 Exhibit A to Subpoena, # 3 Exhibit Subpoena)(Miller, Paula) (Entered: 12/12/2012)

01/02/2013

NOTICE of Hearing on Motion re: 142 First MOTION to Compel production of documents , 141 MOTION to Compel Plaintiffs to Respond Fully to Interrogatories , 145 MOTION to Compel Production of Documents. Motion Hearing set for 1/10/2013 at 10:00 AM before Judge Thomas W. Thrash Jr., in Chambers 2188. (ss) (Entered: 01/02/2013)

01/10/2013 156 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Motion Hearing held on 1/10/2013. The Court heard from counsel and ruled as follows: granting in part and denying in part 141 Motion to Compel ; granting in part and denying in part 142 Motion to Compel ; granting in part and denying in part 145 Motion to Compel, for reasons stated on the record. (Court Reporter Susan Baker)(ss) (Entered: 01/10/2013)

01/24/2013 157 ORDER denying as moot 97 REQUEST for Judicial Notice by Zachary Royal. Signed by Judge Thomas W. Thrash, Jr on 1/24/13. (ss) (Entered: 01/24/2013)

01/30/2013 158 MOTION for Partial Summary Judgment with Brief In Support by David A. Cook. (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Appendix, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N)(Townes, Michelle) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 01/30/2013)

01/31/2013 159 CERTIFICATE OF SERVICE Second Supplemental Interrogatory Responses by Marketric Hunter.(Rafferty, Paula) (Entered: 01/31/2013)

01/31/2013 160 CERTIFICATE OF SERVICE Supplemental Responses to Defendant's Requests for Production of Documents by Marketric Hunter.(Rafferty, Paula) (Entered: 01/31/2013)

02/06/2013 161 NOTICE Of Filing of Depositions by David A. Cook (Townes, Michelle) (Entered: 02/06/2013)

02/06/2013 162 Request to File Original Discovery by David A. Cook.(Townes, Michelle) (Entered: 02/06/2013)

02/07/2013 163 DEPOSITION of Jayme Regna taken on 10/26/12 by David A. Cook. (Attachments: # 1 Exhibits)(dr) (Entered: 02/08/2013)

02/07/2013 164 DEPOSITION of Thelma Lynah taken on 10/23/12 by David A. Cook. (Attachments: # 1 Exhibits)(dr) (Entered: 02/08/2013)

02/07/2013 165 DEPOSITION of Michelle Eaves taken on 10/15/12 by David A. Cook. (Attachments: # 1 Exhibits)(dr) (Entered: 02/08/2013)

02/07/2013 166 DEPOSITION of Minnie Manuel taken on 10/26/12 by David A. Cook. (Attachments: # 1 Exhibits)(dr) (Entered: 02/08/2013)

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02/08/2013 167 NOTICE OF REQUIREMENT TO FILE ELECTRONICALLY pursuant to Standing Order 04−01 as to Michelle Townes re 163 Deposition, 164 Deposition, 165 Deposition, 166 Deposition. (dr) (Entered: 02/08/2013)

02/22/2013 168 CERTIFICATE OF SERVICE of 2nd Supplemental Responses to Defendant's Document Requests by Marketric Hunter.(Rafferty, Paula) (Entered: 02/22/2013)

02/26/2013 169 RESPONSE in Opposition re 158 MOTION for Partial Summary Judgment filed by Marketric Hunter. (Attachments: # 1 Appendix Appendix, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J, # 12 Exhibit Exhibit K, # 13 Exhibit Exhibit L, # 14 Exhibit Exhibit M, # 15 Exhibit Exhibit N, # 16 Exhibit Exhibit O, # 17 Exhibit Exhibit P)(Norris, Joshua) (Entered: 02/26/2013)

02/26/2013 170 Response to Statement of Material Facts re 158 MOTION for Partial Summary Judgment filed by Marketric Hunter. (Norris, Joshua) (Entered: 02/26/2013)

03/14/2013 171 NOTICE of Statement of Interest by United States re 158 Motion for Partial Summary Judgment (Stokes, Sharon) Modified related document on 3/15/2013 (dr). (Entered: 03/14/2013)

03/15/2013 172 REPLY to Response to Motion re 158 MOTION for Partial Summary Judgment filed by David A. Cook. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Townes, Michelle) (Entered: 03/15/2013)

03/18/2013

Submission of 158 MOTION for Partial Summary Judgment , submitted to District Judge Thomas W. Thrash. (mdy) (Entered: 03/18/2013)

03/20/2013 173 Notice for Leave of Absence for the following date(s): 04/16/13, 04/17/13, 04/18/13, 04/19/13, 04/20/13, 04/21/13, 04/22/13, 07/25/13, 07/26/13, 07/27/13, 07/28/13, 07/29/13, 07/30/13, by Michelle Townes. (Attachments: # 1 Exhibit A)(Townes, Michelle) (Entered: 03/20/2013)

03/22/2013

Clerks Notation re 173 Leave of Absence, 04/16−22/13, 07/25−30/13, by Michelle Townes. Judge Thrash will not require an appearance by M. Townes on these dates. (ss) (Entered: 03/22/2013)

04/01/2013 174 RESPONSE re 171 Notice of Statement of Interest of the United States filed by David A. Cook. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Townes, Michelle) Modified on 4/2/2013 (dr). (Entered: 04/01/2013)

05/06/2013 175 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction with Brief In Support by S.R.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Brief, # 6 Exhibit 1)(Rafferty, Paula) . Added MOTION for Preliminary Injunction on 5/7/2013 (dr). (Entered: 05/06/2013)

05/08/2013

NOTICE of Hearing on Motion re: 175 MOTION for Temporary Restraining Order Motion Hearing set for 5/10/2013 at 02:00 PM in ATLA Courtroom 2108 before Judge Thomas W. Thrash Jr. Each side has 20 minutes. (ss) (Entered: 05/08/2013)

05/08/2013 176 NOTICE Of Filing letter of the Georgia Medical Care Foundation in Support of 175 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by S.R. (Attachments: # 1 Exhibit)(Rafferty, Paula) Modified on 5/9/2013 (dr). (Entered: 05/08/2013)

05/10/2013 177 RESPONSE re 175 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by David A. Cook. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Townes, Michelle) (Entered: 05/10/2013)

05/10/2013 178 WITHDRAWAL of 175 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by S.R. (Rafferty, Paula) Modified event/text on 5/13/2013 (dr). (Entered: 05/10/2013)

05/10/2013

NOTICE OF CANCELLATION of Hearing re 175 MOTION for Temporary Restraining Order As plaintiffs have withdrawn the motion.(ss) Modified on 5/10/2013 (ss). (Entered: 05/10/2013)

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05/22/2013 179 ORDER granting in part and denying in part 158 Motion for Partial Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 5/21/2013. (ss) (Entered: 05/22/2013)

07/02/2013 180 ORDER directing parties to file Consolidated Pretrial Order within 14 days. Signed by Judge Thomas W. Thrash, Jr on 7/1/2013. (ss) (Entered: 07/02/2013)

07/17/2013 181 Proposed Pretrial Order by Marketric Hunter. (Rafferty, Paula) (Entered: 07/17/2013)

07/17/2013 182 Proposed Pretrial Order Proposed Consolidated Pretrial Order by Marketric Hunter. (Attachments: # 1 Exhibit C, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F1, # 5 Exhibit G1, # 6 Exhibit F2 G2)(Rafferty, Paula) (Entered: 07/17/2013)

07/18/2013 183 PRETRIAL ORDER Signed by Judge Thomas W. Thrash, Jr on 7/18/2013. (ss) (Entered: 07/18/2013)

07/18/2013

NOTICE of Hearing: Final Pretrial Conference set for 7/30/2013 at 02:00 PM before Judge Thomas W. Thrash Jr.. Any Motions due no later than Monday 7/29/2013 noon.(ss) (Entered: 07/18/2013)

07/18/2013

NOTICE of Hearing: Cancelling the originally scheduled date of 7/30/2013. Final Pretrial Conference set for 8/2/2013 at 10:30 AM before Judge Thomas W. Thrash Jr., in Chambers 2188. Any motions due no later than Thursday 8/1/2013, noon. (ss) (Entered: 07/18/2013)

07/19/2013

NOTICE setting Trial: Bench Trial set for 9/3/2013 at 09:30 AM in ATLA Courtroom 2108 before Judge Thomas W. Thrash Jr.. (ss) (Entered: 07/19/2013)

08/02/2013 184 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Pretrial Conference held on 8/2/2013. (Court Reporter Susan Baker)(ss) (Entered: 08/02/2013)

08/05/2013 185 OFFER OF JUDGMENT filed by David A. Cook. (Attachments: # 1 Exhibit A, Acceptance # 2 Exhibit B, Acceptance(Townes, Michelle) Modified on 9/24/2013 (ss). (Entered: 08/05/2013)

08/09/2013 186 Notice for Leave of Absence for the following date(s): 09/09/2013, 09/10/2013, 09/11/2013, by Michelle Townes. (Attachments: # 1 Exhibit A)(Townes, Michelle) (Entered: 08/09/2013)

08/12/2013

Clerks Notation re 186 Leave of Absence 09/09−11/2013, by Michelle Townes. Judge Thrash will not require an appearance by m. Townes on these dates. (ss) (Entered: 08/12/2013)

08/30/2013 187 OBJECTION re 182 Proposed Pretrial Order (Plaintiffs' Exhibits) by David A. Cook. (Attachments: # 1 Exhibit A)(Townes, Michelle) (Entered: 08/30/2013)

09/03/2013 188 RESPONSE re 187 Objection to Pretrial Order filed by Marketric Hunter. (Rafferty, Paula) (Entered: 09/03/2013)

09/03/2013 189 Proposed Findings of Fact by Marketric Hunter. (Rafferty, Paula) (Entered: 09/03/2013)

09/03/2013 190 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Bench Trial begun on 9/3/2013. Opening statements, Plaintiff called witnesses. Exhibits Admitted. (Court Reporter Susan Baker)(dr) (Entered: 09/04/2013)

09/04/2013 191 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Bench Trial continued on 9/4/2013. Plaintiffs called the following witnesses: Joseoph Rosenfeld, Sandy Choate. Plaintiffs rest. Defense called the following witnesses: Catherine Ivy, Gary Miller, Karis Morneau, Tonya Hill. Defense rests. No rebuttal. Closing arguments to be held Thursday morning 11:00 a.m. (Court Reporter Montrell Vann)(anc) (Entered: 09/05/2013)

09/05/2013 192 Minute Entry for proceedings held before Judge Thomas W. Thrash, Jr: Bench Trial concluded on 9/5/2013. Closing arguments by counsel. Counsel have one week to file any Proposed Findings of Fact and Conclusions of Law or their Amended Proposed Findings of Fact and Conclusions of Law. A written order will be filed as soon as possible after receipt of any Proposed Findings of Fact and Conclusions of Law. (Court Reporter Montrell Vann)(anc) (Entered: 09/05/2013)

09/10/2013 193 TRANSCRIPT of Bench Trial Proceedings (Volume 1) held on September 3, 2013, before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Susan C. Baker, Telephone number 404−215−1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/1/2013. Redacted Transcript Deadline set for 10/11/2013. Release of Transcript Restriction set for

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12/9/2013. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 09/10/2013)

09/12/2013 194 Proposed Findings of Fact by David A. Cook. (Townes, Michelle) (Entered: 09/12/2013)

09/13/2013 195 Proposed Findings of Fact by Marketric Hunter. (Rafferty, Paula) (Entered: 09/13/2013)

09/13/2013 196 MOTION to Strike 195 Proposed Findings of Fact and Conclusions of Law with Brief In Support by David A. Cook. (Attachments: # 1 Brief, # 2 Exhibit A, # 3 Exhibit B)(Townes, Michelle) (Entered: 09/13/2013)

09/13/2013 197 TRANSCRIPT of Bench Trial Proceedings (Volume 2 of 3) held on 9/4/2013, before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Montrell Vann, Telephone number 404−215−1549. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/4/2013. Redacted Transcript Deadline set for 10/15/2013. Release of Transcript Restriction set for 12/12/2013. (Attachments: # 1 Appendix Notice of Transcript Filing) (mv) (Entered: 09/13/2013)

09/13/2013 198 TRANSCRIPT of Bench Trial Proceedings (Volume 3 of 3) held on 9/5/2013, before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Montrell Vann, Telephone number 404−215−1549. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/4/2013. Redacted Transcript Deadline set for 10/15/2013. Release of Transcript Restriction set for 12/12/2013. (Attachments: # 1 Appendix Notice of Transcript Filing) (mv) (Entered: 09/13/2013)

09/27/2013 199 OPINION AND ORDER granting 196 Motion to Strike, directing the Clerk to enter judgment for Marketric Hunter and R.E. consistent with this Order, and enter judgment in favor of Zachary Royal based on the permanent injunction granted in his favor. Directing Clerk to close the case with respect to Plaintiffs J.M. and S.R. as they accepted the Defendant's offers of judgment. Signed by Judge Thomas W. Thrash, Jr on 9/27/13. (dr) (Entered: 09/30/2013)

09/27/2013

Civil Case Terminated. (dr) (Entered: 09/30/2013)

09/30/2013 200 CLERK'S JUDGMENT for Zachary Royal on the merits of his Medicaid Act and ADA claims, and Marketric Hunter and R.E. enjoining the Defendant from reducing the skilled nursing care hours below 180 hours of skilled nursing care per day for 180 days or until further Order of this Court. (dr)−−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−− (Entered: 09/30/2013)

09/30/2013 201 EXHIBITS from hearing held 9/3/13 − 9/5/13 received from Courtroom Deputy and placed in Exhibit room. (Attachments: # 1 Plaintiff's Exhibits, # 2 Plaintiff's Exhibits part 2, # 3 Plaintiff's Exhibits part 3, # 4 Defendant's Exhibits)(dr) (Entered: 10/01/2013)

10/08/2013 202 NOTICE of Appearance by Gerald R. Weber on behalf of Marketric Hunter (Weber, Gerald) (Entered: 10/08/2013)

10/09/2013 203 First MOTION for Extension of Time (Preliminary Application for Fees/Expenses) re: 200 Clerk's Judgment, by Marketric Hunter. (Weber, Gerald) (Entered: 10/09/2013)

10/10/2013 204 ORDER granting 203 Motion for Extension of Time(Preliminary Application for Fees/Expenses). Signed by Judge Thomas W. Thrash, Jr on 10/10/13. (TWT) (Entered: 10/10/2013)

10/25/2013 205 NOTICE OF APPEAL as to 199 Order on Motion to Strike and 200 Clerk's Judgment by David A. Cook. Filing fee $455.00; receipt number 113E−4855427. Transcript Order Form due on 11/8/2013 (Townes, Michelle) Modified on 10/25/2013 to include document relationship (kac). (Entered: 10/25/2013)

10/25/2013 206 NOTICE Of Filing Appeal Transmission Letter by David A. Cook re: 205 Notice of Appeal. (kac) (Entered: 10/25/2013)

10/25/2013 207 Transmission of Certified Copy of Notice of Appeal, Judgment, Order and Docket Sheet to US Court of Appeals re: 205 Notice of Appeal. (kac) (Entered: 10/25/2013)

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10/28/2013 208 First MOTION for Attorney Fees (Preliminary Fee Motion) by Marketric Hunter. (Weber, Gerald) (Entered: 10/28/2013)

10/30/2013 209 BILL OF COSTS with documentation appended by Marketric Hunter. (Attachments: # 1 Appendix Invoices for Transcripts − Bill of Costs, # 2 Appendix Invoices for copies − Bill of Costs, # 3 Appendix Returns of Service − Bill of Costs)(Rafferty, Paula) (Entered: 10/30/2013)

10/31/2013 210 USCA Acknowledgment of 205 Notice of Appeal filed by David A. Cook. Case Appealed to USCA − 11th Circuit. USCA Case Number 13−14950−B. (kac) (Entered: 10/31/2013)

11/04/2013 211 MOTION to Stay Proceedings Pending Appeal with Brief In Support by David A. Cook. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Townes, Michelle) (Entered: 11/04/2013)

11/05/2013 212 TRANSCRIPT ORDER FORM re 205 Notice of Appeal,. (Townes, Michelle) (Entered: 11/05/2013)

11/05/2013 213 RESPONSE re 211 MOTION to Stay Proceedings Pending Appeal filed by Marketric Hunter. (Norris, Joshua) (Entered: 11/05/2013)

11/05/2013

Set Financial Arrangements due date deadline re: 212 Transcript Order Form. Financial Arrangements due on 11/19/2013. (kac) (Entered: 11/06/2013)

11/06/2013 214 ORDER granting 211 Motion to Stay all proceedings relating to attorneys fees and the bill of costs until 30 days after the decision in Appeal No. 13−14950−B is final. Signed by Judge Thomas W. Thrash, Jr on 11/6/13. (dr) (Entered: 11/06/2013)

12/17/2013

Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal re: 205 Notice of Appeal. Case Appealed to USCA − 11th Circuit. USCA Case Number 13−14950−BB. The entire record on appeal is available electronically. (kac) (Entered: 12/17/2013)

03/10/2014

Submission of 208 First MOTION for Attorney Fees (Preliminary Fee Motion), submitted to District Judge Thomas W. Thrash. (dr) (Entered: 03/10/2014)

06/12/2014 216 Certified copy of ORDER of USCA GRANTING Appellee R.E. "Suggestion of Death" construed as a Motion to Dismiss as Moot 205 Notice of Appeal filed by David A. Cook. The Court DISMISSES AS MOOT Appellant's appeal as to Appellee Zachary Royal, as he is no longer eligible for the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit. The Order does not affect Appellant's appeal against Appellee M.H. Case Appealed to USCA − 11th Circuit. USCA Case Number 13−14950−BB. (kac) (Entered: 06/12/2014)

09/30/2014 217 ORDER denying 208 Motion for Attorney Fees without prejudice. Signed by Judge Thomas W. Thrash, Jr on 9/30/2014. (ss) (Entered: 09/30/2014)

01/05/2015 218 Certified copy of ORDER of USCA DISMISSING 205 Notice of Appeal filed by David A. Cook for lack of jurisdiction. Case Appealed to USCA − 11th Circuit. USCA Case Number 13−14950−BB. (kac) (Entered: 01/06/2015)

01/20/2015 219 Second MOTION for Attorney Fees by Marketric Hunter. (Norris, Joshua) (Entered: 01/20/2015)

01/30/2015 220 RESPONSE in Opposition re 219 Second MOTION for Attorney Fees filed by David A. Cook. (Townes, Michelle) (Entered: 01/30/2015)

02/11/2015 221 Joint MOTION for Extension of Time to File Supporting Documentation re: 219 Second MOTION for Attorney Fees by Marketric Hunter. (Attachments: # 1 Text of Proposed Order Proposed Order)(Norris, Joshua) (Entered: 02/11/2015)

02/13/2015 222 ORDER granting 221 Motion for Extension of Time re 219 Second MOTION for Attorney Fees . Plaintiff shall have until 2/27/2015 to file detailed specification & itemization and defendant shall have until 3/24/2015 to file response. Signed by Judge Thomas W. Thrash, Jr on 2/13/2015. (ss) (Entered: 02/13/2015)

02/27/2015 223 BRIEF in Support of 219 Second Motion for Attorney Fees by Marketric Hunter, J.M., R.E., Zachary Royal, S.R.. (Attachments: # 1 Affidavit Fleming(expert), # 2 Affidavit Norris, # 3 Affidavit Rafferty, # 4 Affidavit Weber)(Weber, Gerald) Modified event/text/related document on 3/2/2015 (dr). (Entered: 02/27/2015)

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03/23/2015 224 Certified copy of ORDER of USCA GRANTING Appellee's "Motion to Transfer of Consideration of Attorneys' Fees on Appeal to the District Court re: 205 Notice of Appeal filed by David A. Cook. Case Appealed to USCA − 11th Circuit. USCA Case Number 13−14950−BB. (kac) (Entered: 03/23/2015)

03/24/2015 225 RESPONSE to 223 Brief in Support of 219 Second Motion for Attorneys Fees filed by David A. Cook. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(Townes, Michelle) Modified on 3/25/2015 (dr). (Entered: 03/24/2015)

04/06/2015 226 NOTICE of Appearance by Katherine Leigh D'Ambrosio on behalf of Marketric Hunter (D'Ambrosio, Katherine) (Entered: 04/06/2015)

04/07/2015 227 REPLY BRIEF re 223 MOTION for Attorney Fees (Brief and Supporting Documents) filed by Marketric Hunter, J.M., R.E., Zachary Royal, S.R.. (Attachments: # 1 Exhibit Summary of Fees/Expenses, # 2 Affidavit Norris Declaration, # 3 Affidavit Weber Declaration, # 4 Affidavit DAmbrosio Declaration)(Weber, Gerald) (Entered: 04/07/2015)

04/14/2015

Submission of 219 Second MOTION for Attorney Fees , submitted to District Judge Thomas W. Thrash. (dr) (Entered: 04/14/2015)

07/28/2015 228 Notice for Leave of Absence for the following date(s): 9/4/2015, 9/5/2015, 9/6/2015, 9/7/2015, 9/8/2015, 12/23/15, 12/24/15, 12/25/15, 12/26/15, 12/27/15, 12/28/15, by Michelle Townes. (Attachments: # 1 Exhibit A)(Townes, Michelle) (Entered: 07/28/2015)

07/29/2015

Clerks Notation re 228 Leave of Absence 9/4/−8/2015, 12/23−28/15, by Michelle Townes. Judge Thrash will not require an appearance by M. Townes on these dates. (ss) (Entered: 07/29/2015)

08/19/2015 229 ORDER granting 219 Motion for Attorney Fees in the amount of $837,847.50 in attorneys fees and $13,208.65 in expenses for a total award of $851,056.15. Signed by Judge Thomas W. Thrash, Jr on 8/18/2015. (ss) (Entered: 08/19/2015)

09/16/2015 230 NOTICE OF APPEAL as to 229 Order on Motion for Attorney Fees by David A. Cook, Clyde L. Reese, III. Filing fee $ 505, receipt number 113E−6045908. Transcript Order Form due on 9/30/2015 (Townes, Michelle) (Entered: 09/16/2015)

09/17/2015 231 NOTICE Of Filing Appeal Transmission Letter by David A. Cook, Clyde L. Reese, III, re: 230 Notice of Appeal. (kac) (Entered: 09/17/2015)

09/17/2015 232 Transmission of Certified Copy of Notice of Appeal, Orders and Docket Sheet to US Court of Appeals re: 230 Notice of Appeal. (kac) (Entered: 09/17/2015)

09/25/2015 233 USCA Acknowledgment of 230 Notice of Appeal filed by David A. Cook, Clyde L. Reese, III. Case Appealed to USCA − 11th Circuit. USCA Case Number 15−14227−E. (kac) (Entered: 09/25/2015)

10/07/2015 234 TRANSCRIPT ORDER FORM re 230 Notice of Appeal. (Townes, Michelle) (Entered: 10/07/2015)

10/07/2015

Set Electronic Certification of Record on Appeal due date re: 234 Transcript Order Form. Electronic Certification of Record on Appeal due date on 10/21/2015. (kac) (Entered: 10/07/2015)

10/20/2015

Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal re: 230 Notice of Appeal. Case Appealed to USCA − 11th Circuit. USCA Case Number 15−14227−EE. The entire record on appeal is available electronically. (kac) (Entered: 10/20/2015)

02/18/2016 235 NOTICE by Marketric Hunter OF WITHDRAWAL AS CO−COUNSEL OF RECORD (D'Ambrosio, Katherine) (Entered: 02/18/2016)

07/27/2016 236 USCA Opinion received (AFFIRMING) re: 230 Notice of Appeal filed by David A. Cook, Clyde L. Reese, III. In accordance with FRAP 41(b), the USCA mandate will issue at a later date. Case Appealed to USCA − 11th Circuit. USCA Case Number 15−14227−EE. (kac) (Entered: 07/27/2016)

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08/25/2016 237 Certified copy of JUDGMENT of USCA AFFIRMING the decision of the District Court re: 230 Notice of Appeal filed by David A. Cook, Clyde L. Reese, III Case Appealed to USCA − 11th Circuit. USCA Case Number 15−14227−EE. (kac) (Entered: 08/25/2016)

07/31/2017 238 NOTICE TO COUNSEL OF RECORD regarding RECLAMATION AND DISPOSITION OF UNCLAIMED EXHIBITS from the MOTION HEARING held on May 3, 2012, and the BENCH TRIAL held September 3−5, 2013, pursuant to Local Rule 79.1D(2).(mec) (Additional attachment(s) added on 7/31/2017: # 1 CORRECTED PDF) (mec). (Entered: 07/31/2017)

07/31/2017 239 NOTICE TO COURT regarding RECLAMATION AND DISPOSITION OF UNCLAIMED EXHIBITS pursuant to Local Rule 79.1D(2) filed by Marketric Hunter. Exhibits to be Retrieved.. (Norris, Joshua) (Entered: 07/31/2017)

08/09/2017 240 PLAINTIFFS' Exhibits returned to counsel as directed in 238 Exhibit Return Notification, 239 Exhibit Disposition Notification (mec) (Entered: 08/09/2017)

02/06/2018

DEFENDANT'S EXHIBITS DESTROYED as directed in 238 Exhibit Return Notification, (mec) (Entered: 02/06/2018)