Case 1:10-cv-23048-UU Document 1 Entered on FLSD Docket 08/18/2010 Page 1 of 16
riLED

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

2010 AUG 18 PM I: 38

LUIS CRUZ and NIGEL DE LA TORRE

Plaintiffs,

V.

Case No.

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

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

Defendants.

COMPLAINT INTRODUCTION l. Plaintiffs Luis Cruz and Nigel De La Torre are Florida residents who are Medicaid
recipients with spinal cord injuries. They both have quadriplegia and applied for Defendants' waiver services but have not received them and are on a "wait list" for these services. 2. Messrs. Cruz and De La Torre are proposed class plaintiffs in Jones v. Arnold and Ross, C. A, #3 :09-cv-ll70-J-34JRK. In light of this Court May 7, 20 l 0 with regards to Michele Haddad and given Mr. Cruz and Del La Torre's changed circumstances since they filed a motion to amend on January 27, 2010, they are filing this separate Complaint and action and motions for preliminary injunction and memorandum of law in support.

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3. Mr. Cruz and De La Torre are Medicaid recipients who reside in the community and desire to continue to reside in the community instead of a nursing facility. They could reside in the community, with appropriate Medicaid-funded services and are at risk of being forced to enter a nursing home because Defendants do not provide adequate community-based services.
4. Since July 1, 2007, Defendants have limited community-based Medicaid services to 375 people with spinal cord injuries. Defendants will continue to limit those services to 375 people through June 30, 2012 despite the data from the following reports: A. The Office of Program Policy Analysis and Government Accountability and Office of the Florida Legislature reported that as of December 2009 there were 605 people on the wait list for TBIISCI Waiver. B. The recently released Kaiser Commission "Medicaid Home and Community-Based Service Programs: Data Update," at Table 11, there were 434 people in Florida with spinal cord injuries on a "wait list" in FY 2008 for Medicaid community-based services. C. AHCA report issued in December 2008 stating that the waiting list for persons with spinal cord injuries had increased to 554 people.
5. Despite the number of people with spinal cord injuries on a "wait list" home and community-based Medicaid Waiver services, These people, who include Mr. Cruz and De La Torre, could reside in the community with appropriate Medicaid-funded services and not be forced to enter a nursing home Defendants have not increased the
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number of people with spinal cord InJUries who will receive community-based servtces. 6. Defendants violate the Americans with Disabilities Act (ADA), Title II, 42 U.S.C. § 12132, and its implementing regulations, and Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulations. Among other things, these laws require the Department to administer its services and programs, including Medicaid, '·in the most integrated setting appropriate" to the needs of the individual with disabilities. 7. Plaintiffs Luis Cruz and Nigel De La Torre seek declaratory and injunctive relief to receive Medicaid services which will allow them to continue to reside in the community and not require their institutionalization. JURISDICTION AND VENUE 8. The Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiffs' causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794(a). 9. Venue is proper because a substantial part of the actions and omissions of which Plaintiffs alleges occurred in this District and because a class action motion has been filed in this District. 28 U.S.C. § l391(b). DEFENDANTS 10. Thomas Arnold, ts the Secretary of the Florida Agency for Health Care Administration (AHCA), and is sued in his official capacity. AHCA is the chief health policy and planning entity for the state and is responsible for administering
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Florida's Medicaid Program. Fla. Stat. § 20.42(3) (2006). AHCA is the "'single state agency" that operates Florida' Medicaid program, see 42 U.S.C. § 1396a(a)(5), and is the state agency responsible for administering Florida's nursing home and community-based long-term care system for people with disabilities. Secretary Arnold is responsible for the oversight, supervision and control of AHCA and its divisions, and is ultimately responsible for ensuring that AHCA's services for people with disabilities are provided in conformance with federa11aw. 11. Defendant Dr. Ana Viamonte Ros is the Surgeon General of Florida's Department of Health (DOH) and is sued in her official capacity. DOH is the primary state agency responsible for administering the Medicaid Traumatic Brain Injury/Spinal Cord Injury Waiver program for persons who require long-term care in the community. It recommends legislative budget requests for programs and services for the state's population who have spinal cord injuries. The Traumatic Brain Injury/Spinal Cord Injury Waiver is supposed to prevent unnecessary institutionalization of persons like the Plaintiffs who have quadriplegia. PLAINTIFF LUIS CRUZ 12. Luis Cruz is 53 years old. On March 6, 1992, when he was 34 years old, he was in a car accident and required hospitalization for about a year. As a result of the car accident, he became a quadriplegic, paralyzed from the neck down. 13. For nearly five years after he became paralyzed, he lived in both Adult Congregate Living Facilities and mental hospitals for severe clinical depression. In the Adult Congregate Living Facilities, he was forced to share a room with four or five persons
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and had no privacy whatsoever. In the mental hospitals, he also was forced to share rooms and his mental health deteriorated. 14. Mr. Cruz received his BA degree in Business in 1981. Prior to his paralysis, he was a professional and elite amateur athlete, including cyclist, triathlons, and swimming. He also worked as a water safety instructor and a lifeguard. 15. Luis Cruz lives alone in an accessible apartment. 16. He requires assistance with his activities of daily living, including help transferring from and to his bed and from and to a toilet. He also requires assistance bathing, cooking, and shopping for food. He wears a special condom catheter which connects to a urinary bag. 17. Presently, Defendants' Medicaid program pays for some assistance with his daily living for a few hours a day and has agreed to increase it by a minimal amount. However, this assistance very limited in time and does not provide for sufficient services to meet many of Mr. Cruz's living activities. 18. Mr. Cruz applied for the Spinal Cord Injury waiver in January, 2006 but has not received any Waiver services. Because Defendants have put Mr. Cruz on a waiting list for the Spinal Cord Injury Waiver, he does not receive assistance with a number of activities of daily living, including cooking, cleaning, laundry or transferring to bed at night. 19. Mr. Cruz has been on the waiting list for Medicaid services under the Spinal Cord Injury waiting list for nearly four years. 20. Luis Cruz has no family or other informal support to provide assistance with his activities of daily living.
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21. Because he does not receive an adequate number of hours of assistance, in 201 0 Mr. Cruz has had numerous hospitalizations for conditions related to the lack of personal assistance care, including decubitus ulcers. Florida's Medicaid program pays for these hospitalizations at a significant cost.
22. On occasion, Mr. Cruz has fallen from his wheelchair and has had to stay on the floor until the next day when someone arrived to assist him. Similarly, he has on one occasion slept on the bathroom tile floor for about 36 hours when the person who was scheduled to provide assistance did not show up.
23. He has also slept in his wheelchair and has urinated on himself when on occasion his leg bag was not emptied, and it overflowed because no one was available to assist him.
24. In the community, Mr. Cruz enjoys many activities, including volunteering for the local park and recreation program and also with children who have mental illnesses, for an aquatic program for people with physical disabilities, and has volunteered with the medical and physical therapy departments at the University of Miami and Florida International University doing seminars in their fertility programs.
25. He interacts and socializes with neighbors and friends, and he enjoys going out for meals and movies. Mr. Cruz visits friends and watches sports on television with them.
PLAINTIFF NIGEL DE LA TORRE 26. Plaintiff Nigel De La Torre is 27 years old. Before he was paralyzed, he graduated
from high school in 2003 and worked as a car salesman and attended college for one year.
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27. In July 2007, he was shot and robbed, and was paralyzed from the chest down. He has quadriplegia and cannot use his arms or his fingers.
28. During his five month hospitalization, Nigel De La Torre's mother applied for the Spinal Cord Injury Waiver services in October, 2007. He is still on the wait list for services in that program.
29. Defendants' Medicaid program provides assistance for an hour in the morning and one in the evening. The two hours a day are not adequate and appropriate to meet his needs and address his activities of daily living. For example, he needs assistance with preparing his meals, homemaking, and other activities of daily living.
30. Since his injury, his mother was his primary caregiver even though she (and his stepfather) worked full-time. His mother is a therapist and step-father is an air condition repatrman.
31. In the past, his mother provided significant assistance to supplement the two hours a day of paid Medicaid assistance he receives.
32. His mother plans to move to Spain in the very near future to join Nigel De La Torre's step-father who moved there four months ago. His brother has enrolled in the Marines and will be called to service imminently, at which time Nigel De La Torre will have no family support or assistance.
33. He resides in an apartment with an accessible bathroom and uses a motorized wheelchair for ambulation.
34. Nigel De La Torre needs help with his activities of daily living, including showering, transferring to and from his bed and assistance with a bowel program and urinary catheter.
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35. Nigel De La Torre is a 200 pound, six foot one inch person. Although his mother has helped with transferring him and other activities until she moves to Spain, she has had great difficulty assisting him because her she injured her back as a result of her assisting him.
36. At times during the day when his mother is at work and no one is available to provide assistance, his catheter has filled and he has not been able to empty it. Because he does not have adequate in-home assistance, his mother has been responsible for his catheter and suppositories.
37. During the day, he requires assistance transferring to the toilet so he can have a bowel movement. When no one is available to assist Mr. De La Torre during the day, he is unable to prepare lunch, take medication in the order that is prescribed, go to medical appointments, as well as other activities of daily living, including using the toilet if no one is available to assist transferring him.
38. Nigel De La Torre enjoys going to the movies, malls, and numerous other activities, including fishing with a friend. Friends visit him, and they play dominoes and watch movies on the television.
39. Nigel De La Torre does not want to live in a nursing home, where he will not have the freedom he presently enjoys living in the community. However, as his mother is now unavailable to assist him during the day and he receives inadequate in-home assistance, he is at risk of requiring to go into a nursing facility to receive the same services he could receive through the Spinal Cord Injury Waiver in the community.
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THE AMERICANS \VITH DISABILITIES ACT 40. Title II of the Americans with Disabilities Act (ADA) provides that "no qualified
individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by such entity." 42 U.S.C. § 12132. 41. Regulations implementing Title II of the ADA require that a public entity administer its services, programs and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.P.R. § 35.130(d). 42. Regulations implementing Title II provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity's program with respect to individuals with disabilities...." 28 C.F.R. § 35.130(b)(3). 43. Defendants AHCA and DOH are public entities under Title II of the ADA and its implementing regulations. SECTION 504 OF THE REHABILITATION ACT 44. Section 504 of the Rehabilitation Act of 1973 provides:
"No otherwise qualified individual with a disability in the United States..., shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a).
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45. Regulations implementing Section 504 require a recipient of federal financial assistance to administer its services, programs, and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51 (d).
46. Regulations implementing Section 504 prohibit recipients of Federal financial assistance from: "[u]tiliz[ing] criteria or methods of administration... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the...effect of substantially impairing accomplishment of the recipients' program with respect to handicapped persons." 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.5l(b)(3)(i).
47. Defendants' Medicaid program receives Federal financial assistance under Section 504 and its implementing regulations. Federal Medicaid funds pay for approximately 55% of the cost of the Florida's Medicaid program.
48. In 1965, Congress enacted Title XIX of the Social Security Act, 42 U.S.C. § 13961396v, establishing Medicaid, a medical assistance program cooperatively funded by the federal and state governments. The purpose of Medicaid is to furnish, as far as practicable, "'medical assistance on behalf of...aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services" and "to help such families and individuals to a/lain or retain capability for independence or self-care...." 42 U.S.C. § 1396 (emphasis added).
49. The Secretary of Health and Human Services administers the Medicaid program at the federal level through the Centers for Medicare & Medicaid Services (CMS),
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which has urged states pursuant to the ADA to avoid unnecessary institutionalization of person with disabilities in nursing facilities. 50. State participation in Medicaid is voluntary. Once a state elects to participate, it must adhere to the federal legal requirements, as provided by the Medicaid Act, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973 (Section 504). 51. The Medicaid Act allows states to provide coverage of home health nursing and personal attendant services, for persons who are otherwise entitled to receive nursing home services, if they meet the state's nursing home "level of care" requirements, e.g., need assistance with a certain number of activities of daily living. See 42 U.S.C. §§ 1396a(a)(IO)(A), 1396d(a)(7), (8), (22). Based on information and belief, the Plaintiffs meet Defendants' "level of care" for a nursing facility. 52. The Medicaid Act also authorizes states to obtain Home and Community-Based Service (HCBS) waivers from CMS to provide for alternatives to nursing home care and services. Waiver programs cover a range of home-based services for Medicaid recipients. See 42 U.S.C. § 1396n(c). 53. Defendants have applied to CMS tor a Medicaid Waiver entitled the "Traumatic Brain Injury/Spinal Cord Waiver" for only 375 people. Defendants will limit Traumatic Brain Injury/Spinal Cord Waiver" services to 375 people through June 30, 20 12despite knowing that the Office of Program Policy Analysis and Government Accountability and Office of the Florida Legislature reported that as of December 2009 there were 605 people on the waiting list for this Waiver.
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54. Defendants will limit their waiver despite the November 24, 2009 Kaiser Commission's findings in its report entitled "Medicaid Home and Community-Based Service Programs: Data Update"that there were 434 people with spinal cord injuries on a "wait list" in FY 2008 for these community-based services. (See Table 11) and AHCA's own December 2008 data showing the SCI Waiver waiting list had increased to 554 people. Despite this waiting list, Defendants have not increased the number of people with spinal cord injuries who will receive community-based waiver services. The people with SCI on the waiting list could reside in the community with appropriate Medicaid-funded services and not be forced to enter a nursing home.
55. Defendant AHCA is designated as the "single state agency" responsible for the administration and supervision of Florida's Medicaid Program under Title XIX of the Social Security Act.
56. Under the Medical Assistance Act, the Defendants are required to administer the Florida's Medicaid program in conformity with federal law, including the ADA and Section 504. FIRST CLAIM FOR RELIEF Title II of the Americans with Disabilities Act
57. Plaintiffs Cruz and De La Torre are individuals with disabilities in that they have physical and other impairments that substantially limit one or more of their major life activities, including but not limited to walking, bathing, toileting, eating and standing.
58. Plaintiffs Cruz and De La Torre are qualified persons with disabilities in that they are capable of safely living at home with necessary services and they meet the essential
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eligibility requirements for the receipt of services from and participation in the State Medicaid program with reasonable modification to the rules, policies, and practices of that program, 42 U.S.C. §12131 (2). 59. Without reasonable modification of the rules, policies, and procedures governing the Florida's Medicaid program, Plaintiffs Cruz and De La Torre are at a risk of being isolated and segregated into an institutional setting. This is against their will, and they do not want to be placed into a nursing home. 60. Defendants' denial of Medicaid funding for the in-home health services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that is appropriate to their needs, constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 130.51 (d). 61. Defendants have utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community and (2) failing to ensure that Plaintiffs have access to Medicaid-covered services that will meet their needs in the community, in violation of Title II of the ADA and implementing regulations. 62. Providing community-based services to Plaintiffs is not a fundamental alteration of Defendants' programs.
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SECOND CLAIM FOR RELIEF Section 504 of the Rehabilitation Act 63. Plaintiffs Cruz and De La Torre are "qualified person with disabilities" within the meaning of Section 504. They have physical and/or mental impairments that substantially limit one or more major life activities, and they meet the essential eligibility requirements for long term care under Florida's Medicaid program. 64. Defendants' denial ofMedicaid funding for the in-home health services that Plaintiffs require to avoid segregation in an institution and remain in the integrated home settings that is appropriate to their needs constitutes unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulation, 28 C.F.R. §41.51 (d). 65. Defendants have also utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including risk of unnecessary institutionalization, by (1) failing to assess properly the services and supports that would enable Plaintiffs to remain in the community and (2) failing to ensure that Plaintiffs has access to Medicaid-covered services that will meet their needs in the community, thereby violating Section 504 and its implementing regulations. 66. Providing community-based services to Plaintiffs is not a fundamental alteration of Defendants' programs.
RELIEF REQUESTED WHEREFORE, Plaintiffs and the class respectfully request that the Court grant the following relief:
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A. Declare that the Defendants' denial of funding for Plaintiffs' necessary and appropriate Medicaid in-home nursing services constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
B. Grant preliminary and permanent injunctions enjoining the Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them from denying Plaintiffs Cruz and De La Torre Medicaid in-home nursing services "in the most integrated setting," their home, including to the extent to which Plaintiffs' service needs can and will be met by enrolling them in the existing Home and Community-Based Services waiver.
C. Waive the requirement for the posting of a bond as security for the entry of preliminary relief.
D. Award the Plaintiffs the costs of this action and reasonable attorney's fees pursuant to 29 U.S.C. § 794a and 42 U.S.C. § 12133 and any other applicable provision oflaw.
E. All such other and further relief as the Court deems to be just and
equitable. Dated: August 17, 2010
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Respectfully submitted,
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com SPOHRER & DODD, P.L.
Howanitz, Esq. a Bar No. 0020967 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counsel for the Plaintiff
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 Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 1 of 22
FILED

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

LUIS CRUZ and NIGEL DE LA TORRE,

Plaintiffs,

v.

Case No.

2010 AUG 18 PM 1:38

CLEt~: ·. ~:

-.

MIDDLE DiS i ~il:l ~,~ Fi_'oRiD,\

JACKSOHI/ILLL FLORIDA

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and
DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health,
Defendants.

PLAINTIFFS LUIS CRUZ AND NIGEL DE LA TORRE'S MOTION FOR PRELIMINARY INJUNCTION AND
EXPEDITED HEARING AND ATTACHED MEMORANDUM OF LAW Pursuant to Fed. R. Civ. P. 65, individual Plaintiffs Luis Cruz and Nigel De La Torre, through their counsel, move for a preliminary injunction to enjoin Defendants from denying them Medicaid home and community-based services ("HCBS"), in order to prevent Plaintiffs Cruz and De La Torre's unnecessary institutionalization in a nursing home. Due to the emergency nature of their situations, Plaintiffs Cruz and De La Torre further move for an expedited hearing. As grounds therefore, Plaintiffs Cruz and De La Torre state the following in support of their motion.

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LUIS CRUZ 1. Mr. Cruz filed a motion to be a named plaintiff in this action on January 27, 20 I0. He was born in 1957. He was in a car accident on March 6, 1992, when he was 34 years old and required hospitalization for about a year for a spinal cord injury. 2. He is a qualified person with a disability in that he has quadriplegia (C-2/C-7), is paralyzed from the neck down, cannot use his hands or fingers, and uses a wheelchair to get around. 3. Mr. Cruz lives alone in an accessible apartment in Miami, Florida with a shower that has a bench attached to the wall for him to sit on. He requires assistance with all of his activities of daily living, including help transferring from and to bed and from and to a toilet. He also requires assistance bathing, cooking, and shopping for food. He wears a special condom catheter which connects to a urinary bag. 4. He has lived in the community since the accident on March 6, 1992. He was married on January 17, 1992 and divorced five years later. For nearly five years after he became paralyzed, Mr. Cruz lived in institutions. He was in Florida's Adult Congregate Living Facilities and was in a mental hospital for severe clinical depression. In the Adult Congregate Living Facilities, he was forced to share a room with four or five persons and had no privacy whatsoever. He knows what it is like to live in an institution 5. He desires to continue to reside in his own apartment and community instead of having to enter a nursing facility. If he went into a nursing facility, he will not be able afford to
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pay rent and will lose this apartment. There are very few accessible apartments that he can afford, and he does not want to lose this apartment in which he has resided for the past 12 years.
6. Mr. Cruz is eligible for, and receives, Medical Assistance, and he applied to Defendants for Spinal Cord Waiver services in January, 2006, and has been on a waiting list since then.
7. Since February, 2010, Mr. Cruz has been hospitalized about five times and Florida's Medical Assistance paid for these hospitalizations. On two hospitalizations, he was a patient for about 40 days and again for 30 days, because he developed a decubitus ulcer, a/k/a a bedsore. He is presently hospitalized because his leg got caught in his wheelchair and he fell out of the wheelchair, fracturing his tibia. All of his hospitalizations were either a direct or indirect result of not receiving adequate in-home health care services.
8. While he was hospitalized in March, 2010, he telephoned Defendants' Spinal Cord Injury Waiver program and requested services. He spoke to Beth Herra. She told him that there were no funds available in the Waiver, but if he went into a nursing home for 90 days, he would receive Waiver services. During another hospitalization he telephoned Defendants' Medicaid Waiver office regarding the availability of waiver services, but no one could tell him when Waiver services would be provided in the community if he did not enter a nursing home. He will not enter a nursing home and wants to continue to reside in the community and could with appropriate waiver services provided with Medicaid funds.
9. Presently, Defendants' Medicaid program pays HealthMed, a private home-health agency, for some assistance with his daily living. Specifically, he receives one hour per day of skilled nursing care and two hours per day of home health aide services. However, these are not
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sufficient to meet many of his living activities. He has been informed that after his current hospitalization, he will receive an increase of one hour per day of home health services. While this increase will help, it will still not be sufficient.
10. Mr. Cruz needs help with the following activities with the approximate time each requires: transferring from bed to wheelchair (about 5 -10 minutes); transferring from wheelchair to toilet (another 5 - 10 minutes); his toileting needs take about 30 to 50 minutes; shaving (10 minutes); feeding (each meal is between 30- 45 minutes); condom catherization and urinary bag (several times a day for between 20 -30 minutes); dressing (AM about 45 minutes and PM about 20 minutes); and range of motion exercising (l Y2 hours a day). He also needs help with housekeeping, including sweeping, mopping, washing dishes (1 hour); meal preparation (three times a day); shopping for groceries; laundry (because his urinary catheter leaks, his clothes need to be washed frequently).
11. Mr. Cruz does not have any family or other informal support to assist with any of these activities of daily living. Because he does not receive an adequate number of hours of assistance, he has, on occasion, fallen from his wheelchair and has had to stay on the floor until the next day when someone arrived to assist him. On one occasion, he slept on the bathroom tile floor for about 36 hours when the person who was scheduled to provide assistance did not show up. He has also slept in his wheelchair and has urinated on himself when, on occasion, his leg bag was not emptied, and it overflowed because no one was available to assist him.
12 He desperately does not want to go into a nursing home but wants to continue residing in the community where he has an active life. Without community-based Spinal Cord Waiver services, he is at significant risk of being institutionalized.
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13. Mr. Cruz thrives in the community and has volunteered with Park and Recreation officials from several counties to train their employees about how to interact with people with spinal cord injuries and also with children who have mental illnesses. He has volunteered with an aquatic program for people with disabilities by showing them how they could swim and to overcome their fears of swimming. He has also given seminars for medical and physical therapy students at the University of Miami and Florida International University for their fertility programs.
14. He socializes with neighbors and friends and enjoys going out for meals and movies. He visits friends and watches sports with them on television.
15. Despite Defendants knowing that he is at significant risk of institutionalization, he has not been offered Spinal Cord Injury waiver services with sufficient hours of personal care assistance so he could remain safely in the community.
16. He has been eligible for both Florida's Medicaid nursing home services and Waiver services since he broke his spine, and he still meets Florida's level of care for nursing home eligibility.
NIGEL DE LA TORRE 17. Nigel De La Torre filed a motion to be a named plaintiff in this action on January 27,2010. He was born in Cuba in 1983, and is twenty-seven years old. Mr. De La Torre came to the United States in 1991 with his mother and brother, and they live in Miami, Florida. 18. In July, 2007, Mr. De La Torre was shot and robbed. As a result of the shooting Mr. De La Torre is paralyzed. He is a qualified person with a disability, because he has quadriplegia, is paralyzed from the chest down, and cannot use his arms or his fingers. He uses a
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motorized wheelchair for ambulation and lives in an apartment with an accessible bathroom. 19. During his five month hospitalization in Jackson Memorial Hospital in Miami, his
mother applied for the Spinal Cord Injury Waiver services in October, 2007. He has been on Defendants' "wait list" for in-home Spinal Cord Waiver services for nearly two and a half years.
20. On a number of occasions, he has telephoned and contacted the Florida Spinal Cord Injury Waiver, because he desperately needs Waiver services. On May 12, 2010, he telephoned the Spinal Cord Waiver program and was told that they have no funds to provide him with Waiver services. They told him they would send something in writing to him but they did not, and he has not heard from them since this telephone conversation.
21. He receives personal care assistance for one hour in the morning and one at night from Nurse Care, a private home health agency under contract with and reimbursed by Florida's Medical Assistance state agency. Mr. De La Torre's Nurse Care coordinator is Ms. Rosie Nieves, with whom he has regularly discussed his need for more personal care assistance. Ms. Nieves has told him that he needs "much more help" than Medical Assistance's Nurse Care can provide, including homemaker and respite services, and skilled care to change his catheter and suppository.
22. Besides the two hours per day of paid personal care assistance he receives from Nurse Care, his mother has in the past provided many more hours of such care, including changing his catheter three times per day and administers the suppository every other day.
23. His mother plans to move to Spain imminently, where his step-father has lived for four months. His brother, who is 21 years old, has enlisted in the Marines and is waiting to be called up. Mr. De La Torre will have no one to provide the care he needs and will be at
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imminent risk of going into a nursing facility, even though he does not want to. 24. Mr. De La Torre needs help with all of his activities of daily living. He is 200
pounds and six foot one inch tall. Based on his size, he is not easy to lift or transfer. Although his mother has often helped with transferring him to and from his wheelchair to his bed, when no one else is available to help, she has injured her back and elbow as a result of her assisting me. Also, it has been very difficult for his mother to turn him at night, so Mr. De La Torre does not develop bed sores.
25. He requires assistance with: transfering from bed to shower chair and then back to bed (20 minutes); showering and being washed (30-45 minutes); shaving (10-15 minutes); brushing teeth and other oral hygiene (15 minutes); skin maintenance (5 minutes); feeding (each meal about 30-45 minutes); bowel program (1 !12 hour); catheter (several times per day); dressing in AM (30-45 minutes) and in PM (20 minutes); transferring in PM and after shower in AM (20 minutes); and range of motion exercises (45 minutes). He wants to stand in a "Standing Frame" machine for an hour per day and this requires assistance transferring (about 20 minutes).
26. When his mother has moved, he will need help with housekeeping, meal preparation, laundry, and grocery shopping. These activities will take a few hours.
27. Even though he has a Medicaid reimbursed personal attendant for one hour in the morning and one hour in the evening from Nurse Care, two hours a day is not adequate to meet his needs and to assist him.
28. At times during the day, when his mother was at work and no one was available to provide assistance, Mr. De La Torre's bladder filled and he was not able to have it catheterized. He has had one urinary tract infection and is very afraid of contracting it again.
7

Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 8 of 22
29. During the day, he needs assistance transferring from his wheel chair to the toilet so he can have a bowel movement. If no one is available and he has a bowel movement, he has sat in soiled clothing until his mother returned home from work.
30. When no one is available to assist him during the day, Mr. De La Torre is unable to prepare lunch, take medication in the order that is prescribed, or go to medical appointments, as well as other activities of daily living.
34. Mr. De La Torre very much enjoys living in the community. With friends, he goes to the movies, malls, and numerous other activities, including fishing. Friends visit him, and they play dominoes and watch movies on the television.
35. Mr. De La Torre does not want to live in a nursing home. He is very young and very much enjoys the freedom he has living in the community.
36. When his mother moves to Spain, he is very afraid that he will have to go into a nursing facility to receive the same services he could receive through the Spinal Cord Injury Waiver in the community. Without community-based Spinal Cord Waiver services, he fears he is at significant risk of being institutionalized, even though he desperately does not want to reside in a nursing facility. Despite the Waiver officials knowing that he is at imminent risk of institutionalization, they have not offered him any increased services so he could remain in the community.
37. Unfortunately, Spinal Cord Injury Waiver services have not been made available, even though he applied for these services and has been on a waiting list. On May 12, 201 0, he telephoned the Spinal Cord Medicaid Waiver office regarding waiver services, but no Waiver services have been provided and no one could tell them when services would be provided for
8

Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 9 of 22
him in the community. Defendants' Medicaid program will only provide the services he requires by paying for his institutionalization in a nursing facility.
38. Defendants' refusal to offer Mr. Cruz and Mr. De La Torre adequate services in the community and, instead, requiring them to enter a nursing facility to receive those services, is a violation of both the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 794a ("Section 504"), and their implementing regulations, in particular the "integration mandate," which requires that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R.§ 35.130(d).
WHEREFORE Plaintiffs Cruz and De La Torre seek a preliminary injunction to enjoin Defendants from denying them Waiver services in the community to assist them with their daily living activities.
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 10 of 22
PLAINTIFFS LUIS CRUZ AND NIGEL DE LA TORRE'S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION
I. Plaintiffs Meet the Standards for Prcliminarv Injunctive Relief The criteria for granting a preliminary injunction are "( 1) it has a substantial likelihood of
success on the merits, (2) the movant will suffer irreparable injury unless the injunction is issued, (3) the threatened injury to the movant outweighs the possible injury that the injunction may cause the opposing party, and (4) if issued, the injunction would not disserve the public interest" before the district court may grant such relief. Horton v. St. Augustine, 272 F. 3d 1318, 1326 (11th Cir. 2001) (citing Siegel v. LePore, 234 F. 3d 1163, 1176 (lith Cir. 2002), see also Int'l Cosmetics Exch. v. Gapardin Health & Beauty, Inc. 303 F. 3d 1242, 1246 (11th Cir. 2002) (citing Levi Strauss & Co. Sunrise lnt 'I Trading Inc., 51 F3d 982,985 (11th Cir. 1995)).
While a typical preliminary injunction seeks to maintain the status quo, injunctions to enjoin violations of civil rights statutes are treated differently. The Eleventh Circuit, quoting Marable v. Walker, 704 F. 2d 1219, 1221 ( llth Cir. l983)(race discrimination under Civil Rights Act of 1964), stated that "injunctive relief should be structured to achieve the twin goals of insuring that the [civil rights] Act is not violated in the future and removing any lingering effects of past discrimination." Sec 'y, U.S. Dept. of Housing and Urban Dev. v. Blackwell, 908 F.2d 864, 874 (11th Cir. 1990)(emphasis added). The Fifth Circuit, before the establishment of the Eleventh Circuit, 1 had set out the standard for "affirmative" relief. In United States v. West Peachtree Corp., 437 F. 2d 221,229 (5th Cir. 1971) (Federal Fair Housing Act), the Court set out the general parameters of appropriate injunctive relief in a Florida housing civil rights action.
In Bonner v. City of Prichard, 661 F. 2d 1206, 1209 (11th Cir. l981)(en bane), the Eleventh Circuit adopted as binding precedent all decisions from the former Fifth Circuit which were issued prior to October 1, 1981.
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 11 of 22

West Peachtree was then followed as a "model" in United States v. Jamestown Center-in-the

Grove Apts, 557 F. 2d 1079, 1080 (5th Cir. 1977) (Federal Fair Housing Act) and United States

v. Reddoch, 467 F. 2d 897,899 (5th Cir.l972) (Federal Fair Housing Act).

In such cases, the plaintiff bears the heightened burden of establishing her/his right to

preliminary injunction relief to affirmatively insure the rights are not violated in the future. Cf

Mercedes-Benz US. Int'l Inc. v Cobasys, LLC, 605 F.Supp. 2d 1189, 1196 (N.D. Ala.2009),

Verizon Wireless Pers. Commc 'n LP v. City ofJacksonville, Fla., 670 F. Supp 1330, 1346 (M.D.

Fla. 2009) and OM Group, Inc. v. Mooney, 2006 WL 68791, at *8-9 (M.D. Fla. Jan. 11, 2006).

II. Substantial Likehood of Success on the Merits

Because the "a strong likelihood of success on the merits" criterion in the instant action

raises the same legal issues analyzed in this Court's July 9, 2010 Opinion in Haddad v. Arnold

and Ros, 2010 WL

(M.D. Fla. July 9, 2010)(issued in support of its June 23,2010 Order

granting a preliminary injunction), Plaintiffs Cruz and De La Torre rely on both the July 9, 2010

Opinion and incorporate by reference the legal arguments made by Ms. Haddad in her

memorandum of law in support of her motion for a preliminary injunction. Plaintiffs Cruz and

Torre raise the same very strong likelihood of ultimate success on the merits under the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Rehabilitation Act

of 1973, 29 U.S.C. § 794(a) ("Section 504"), as Miss Haddad.

Preliminarily, there cannot be a dispute that both Mr. Cruz and Mr. De La Torre are

persons who have disabilities protected by both the ADA and Section 504, in that they both have

impairments in activities of daily living, including walking, toileting, transferring, feeding,

bathing, and require assistance in shopping, laundry, cleaning, and food preparations. Second,

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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 12 of 22
they are also "qualified" persons for community-based services, in that they can "handle or benefit from community settings," have lived with their disabilities for years, and obviously do not oppose community placement. Olmstead v. L.C. ex rei Zimring, 527 U.S. 581, 601-603 (1999). Indeed, the Supreme Court noted that states "are required" to provide community-based treatment for qualified persons who do not oppose it unless the State can establish an affirmative defense. !d. at 607.
Both the ADA and Section 504, as well as the Supreme Court's Olmstead decision, prohibit unnecessary institutionalization as a form of unjustified discrimination that Congress intended to end. Both Messrs. Cruz and De La Torre are, for different reasons, at imminent risk of such institutionalization. Since February, 2010, Mr. Cruz has had numerous hospitalizations associated with his receiving inadequate hours of personal attendant services (e.g., decubitus ulcer Stage IV, and related wound care). Without adequate care in the community, he runs a significant risk of developing more decubitus ulcers which are potentially life-threatening. He cannot physically continue running such risks. Without adequate personal attendant care services, he will have no option than going into a nursing home. Similarly, Mr. De La Torre is at imminent risk of requiring such institutionalization. Because his mother has provided extraordinary care and services, including emptying his catheter several times a day, doing his suppositories, shopping, laundry, turning him at night, Mr. De La Torre has patched together enough care to stay out of a nursing home. However, his mother plans imminently to move to Spain and to join her husband. When this occurs, Mr. De La Torre will not have anyone available to provide many of the unpaid services his mother has provided. He will not have an option other than to go into a nursing facility.
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 13 of 22
It is the mere risk of institutionalization of an individual with a disability which supports a claim that both Title II of the ADA and Section 504 have been violated. In the present case, Mr. Cruz was told he would have to enter a nursing facility for 90 days before he would be eligible to receive Waiver services, and Mr. De La Torre was told there were no funds for community-based services. Obviously, Defendants' policy forces Plaintiffs to physically enter the nursing facility as a condition of receiving the same services they could receive in the community.
The Tenth Circuit, in Fisher v. Oklahoma Health Care Authority, 334 F.3d 1175 (lOth Cir. 2003), rejected the defendants' challenge that plaintiffs could not make an integration mandate challenge until they were placed in the institution. That rejected claim was very similar to what counsel for the Defendants in Haddad made at oral argument. However, the Tenth Circuit reasoned that the protection of the integration mandate:
would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation .... [N]other in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement ofthe ADA's integratiton requirements. ld. at 1181. There is no question that Messrs. Cruz and De La Torre are at significant imminent risk of requiring such institutionalization. Another fall or decubitus ulcer and Mr. Cruz's risk increases, and when Mr. De La Torre's mother moves to Spain, he too will have no option but to be institutionalized. Clearly, Congress did not intend that a person must wheel into the nursing facility in order to demonstrate to the State they want community-based services instead of institutional services. In Fisher, the Court concluded that "Olmstead does not imply that disabled persons ...
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 14 of 22

stand imperiled with segregation, may not bring a challenge to the state policy under the ADA's

integration regulation without first submitting to institutionalization." !d. at 1182. See also,

MA.C. v. Betit, 284 F.Supp. 2d 1298, 1309 (D.Ut. 2003)(adopting Fisher's position that a

plaintiff need not currently be institutionalized to bring an integration claim); Brantly v.

Maxwe/1-Jol/y, 2009 WL 2941519, *7 (N.D. Cal. Sep. 10, 2009)(allowing plaintiffs to bring title

II claim that reduction in services would put individuals currently residing in community at risk

of institutionalization).

Both Mr. Cruz and Mr. De La Torre request increased services in the community,

whether Defendants increase the number of hours they presently receive as Home Health Aide

services, authorize Spinal Cord Injury Waiver services, or provide services under Defendants'

Personal Care Option program. All three are federally-funded Medicaid services, and personal

attendant care services are provided under each of them: Home Health Services are pursuant to 42 U.S.C. § 1396a(a)(l0) and 42 CFR 440.70(b)(2),2 the Medicaid Spinal Cord Injury Waiver is

pursuant to 42 U.S.C., § 1396n, and the Personal Care Option is at 42 U.S.C. § 1396d(24), 42

CFR § 440.167. Defendants provide personal attendant care services under all three of them.

Providing Messrs. Cruz and De La Torre community-based services under any of the

federal programs would be a reasonable modification. Under Home Health, Defendants have set

an arbitrary cap of four visits a day by a combination of nurse and home health aide, alk/a

personal attendant. AHCA Home Health Handbook, 2-13 (July 2008). Under the federal

standards, no such cap exists. Therefore, modifying this number is not prohibited by any federal

bar. Similarly, increasing the number of people in the Spinal Cord Injury Waiver to include

2

Miss Haddad had not been receiving any personal attendant care services, and

Defendants never offered her Home Health services.

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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 15 of 22
Messrs. Cruz and De La Torre is encouraged by the federal agency. The federal Medicaid office has written that "[i]f other laws (e.g., ADA) require the State to serve more people, the State may ... request an increase in the number of people permitted under the HCBS waiver." CMS,
Olmstead Update No. 4. at 4 (Jan. 10, 2001) available at www.cms.hhs.gov/smdl/downleads/ smdOIIOOla.pdf. Similarly, under the Personal Care Option, Defendants limit these services to people in assisted living facilities. Because Messrs. Cruz and De La Torre reside in their own
apartments, they do not fit Defendants' category. However, the federal regulations for this program clearly require that these services be offered to people in their own homes, before they
are provided to people not in their own homes. Such reasonable modifications of programs to avoid an ADA and Section 504 violation
are widely recognized. For example, in Radasqewski v. Maram, 383 F. 3d 599, 611 (7th Cir 2004), the Court reasoned that:
The integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community integrated settings.... If variations in the way services were delivered in different settings [home vs. institution, or assisted living facility vs. an apartment] were enough to defeat a demand for more community integrated care, then the integration mandate of the ADA and the Rehabilitation Act would mean very little. III. Irreparable Injurv Messrs. Cruz and De La Torre will suffer precisely the harms the Supreme Court in Olmsteadv. L.C. ex rei Zimring, 527, U.S. 581,600-01, held violated the ADA: First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.... Second, confinement in an institiution severely dimishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Dissimilar
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 16 of 22
treatment correspondinly exists in this key respect in order to receive medical services, person [with disabilities] must because of thos disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without [these] disabilities can receive the medical services they need without similar sacrifice. Messrs. Cruz and De La Torre have both lived in the community. They have both demonstrated they are capable of residing in and benefiting from residing in the community. Mr. Cruz has demonstrated he can contribute to the community with his volunteering activities. Similarly, institutionalization ofboth will be severely detrimental to both. Mr. Cruz five years of living in institutions and Mr. De La Torre is a very young man who has an active social life with many friends. Mr. Cruz will lose the accessible apartment in which he has resided for 12 years, and they both will suffer isolation and confinement in nursing homes which are comprised only
of disabled people, most of whom are significantly older than Mr. De La Torre. They both will
suffer the "unwarranted assumptions" that they could not reside in the community, despite their having done so for so many years with quadriplegia.
If a preliminary injunction is not issued, Plaintiffs Cruz and De La Torre will suffer irreparable injury. They both will have no option other than to enter to a nursing home and suffer discrimination Olmstead found violated the ADA.. Such discrimination and irreparable injury are unnecessary and can be avoided.
As this Court noted in Haddad v. Arnold and Ross, (M.D. Fla. July 9, 2010) Case No. 3:1 O-cv-414-J-99MMH-TEM), the irreparable injury includes more than the legal violation of civil rights under the ADA and Section 504. The irreparable injury is that the plaintiff(s) will be institutionalized in a setting that demeans them by taking away their independence and dignity. As this Court noted, citing Katie A. v. L.A. County, 481 F.3d 1150, 1156-57 (9th Cir. 2007), "the
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 17 of 22
requirement that Plaintiff first enter a nursing home in order to be transitioned out sometime thereafter presents Plaintiff with exactly the kind of uncertain, indefinite institutionalization that can constitute irreparable harm. See also, Long v. Benson, 2008 WL 4571903 at *2 (irreparable injury caused by forcing plaintiff to re-enter nursing facility) and MCJ'vfillian v. J\1cCimon, 807 F. Supp. 475,479 (C.D. Ill. 1992)("possibility that the plaintiffs would be forced to enter nursing homes constitutes irreparable harm that cannot be prevented or fully rectified by a judgment later").
Messrs. Cruz and De La Torre both currently reside in accessible apartments. Mr. Cruz has been in the same apartment for twelve years. If he is forced to enter a nursing home, even for a short time, he will not be able to afford to pay the rent or be assured that this apartment will be available after he would leave the nursing facility. Mr. De La Torre's housing is also precarious, because before she moved to Spain his mother shared this apartment with him. If he were to be forced to enter a nursing home, the payments for his apartment will be jeopardized.
Accessible, affordable housing is in dire short supply. People with disabilities have great difficulty finding apartments that come close to meeting their accessibility needs. If Messrs. Cruz and De La Torre were to leave their present apartments, it is highly likely that they will not be able to find and afford an accessible unit when they were to leave the nursing facility.
IV. Balance of Hardships The Court must weigh the harm to Plaintiffs Cruz and De La Torre against possible damage to Defendants. Micshel-Trapaga v. City ofGainesville, 907 F. Supp. 1508, 1513 (N.D. Fla. 1995). While Plaintiffs Cruz and De La Torre are threatened with institutionalization, Defendants' only possible damages are monetary. Defendants' Medicaid will pay for either their
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 18 of 22

nursing home residence ($206.09 per day3) or incrementally increase the hours of home-based

personal attendant care services they presently receive. The difference in money between the

nursing home and increased community-based attendant care services is staggering: the going rate that attendants are paid is about $11 an hour.4 If Messrs. Cruz and De La Torre would each

receive an increase in hours so they receive a total of 10 hours per day of assistance, that is still

far below the nursing home reimbursement. Particularly, when Defendants are already paying

for a about 3 hours of personal attendant care for Cruz and 2 hours for De La Torre, to increase

the hours to meet their needs does not rise to a significant hardship.

Presently, Messrs. Cruz and De La Torre receive their hours of personal attendant care

services pursuant to Defendant's Home Health Services. These services are pursuant to 42 U.S.C. § 1396a(a)(l0) and 42 CFR 440.70(b)(2).5 For Messrs. Cruz and De La Torre,

Defendants could authorize to increase their personal attendant services by increasing the

number of hours of home health services that they presently receive in order to meet their needs.

Defendants could also provide adequate personal attendant care services under its Medicaid

Spinal Cord Waiver, 42 U.S.C., § 1396n, or Medicaid personal care services option, 42 U.S.C. §

1396d(24)42 CFR § 440.167

In the accompanying motion and supporting sworn declarations, both Cruz and De La

Torre enumerate on the activities they require assistance with and the inadequate hours of

attendant care services they presently receive. As a result, Mr. Cruz has been hospitalized in

3

Florida's Medicaid Nursing Homes January, 2010 Rate Semester Initial Per

Deims.
4

Plaintiffs believe that Defendants reimburse the Home Health Agency $17.50 anr

hour, but the personal care assistant receives, at the most, only about $11 an hour.

5

Miss Haddad had not been receiving any personal attendant care services, and

Defendants never offered her Home Health services.

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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 19 of 22

20 10 alone for a total of several months. Defendants presumably reimbursed the hospitals significant sums of Medicaid funds for hospitalizations that might have been avoided if Mr. Cruz had been receiving appropriate hours of personal attendant care services. Regardless, the two to four hours per day which he receives personal attendant care services falls far short of the activities he requires assistance with and the amounts of time assistance for these activities

requires. Mr. De La Torre has been receiving two hours a day and has not been institutionalized
solely because his mother has provided untold hours of unpaid assistance. Now, she is moving to Spain and without her, Mr. De La Torre will not imminently have anyone to make up the hours his mother has provided.6
As this Court found with regards to Ms. Haddad, simply in monetary terms, the harm to Plaintiffs here clearly outweighs any harm to Defendants. See, e.g Kansas Hasp. Ass 'n v. Whiteman, 835 F. Supp. 1548, 1552-53 (D.Kan. 1993) (threatened injuries to plaintiffs outweighed any harm to defendant that would result from issuing the temporary restraining order because changing Medicaid coverage "significantly alters the status quo to the detriment of the individual plaintiffs, while its positive budgetary impact on state coffers is negligible in a relative

sense"). The balance of hardships clearly favors Plaintiffs Cruz and De La Torre. All that they are

asking is that Defendants spend less of their Medicaid funds and permit them to continue to

reside in their home with the personal attendants they needs to accomplish her activities of daily living. If Plaintiffs must go to a nursing facility, Defendants will expend more Medicaid funds

6

Currently, Mr. Torre's younger brother has enlisted and is waiting to be called up

to the Marines.

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.. Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 20 of 22
than they would were they to provide Plaintiffs with services in the community. Plainly, the balance of hardships tips in favor of Plaintiffs Cruz and De La Torre to avoid
their unnecessary institutionalization in a nursing home. V. The Public Interest
As this Court noted in its Haddad decision, "the public interest favors preventing the discrimination that faces Plaintffls] so that [they] may avoid unnecessary institutionalization." Supra at 38. As with Ms. Haddad, the public interest favors upholding the mandates of the ADA and Section 504. The public interest will be served by an order granting a preliminary injunction for Plaintiffs given the strong public policy expressed in the ADA and Section 504. Congress found that discrimination against people with disabilities is a serious and pervasive social problem, and that people with disabilities have been subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such persons to participate in and contribute to society. 42 U.S.C. §12101. The purpose of the ADA's passage was to provide a clear and comprehensive national mandate for elimination of discrimination against individuals with disabilities.
Accordingly, it serves the public interest to issue the requested preliminary injunctive relief. VI. Waiving the Bond Requirement
Plaintiffs should be exempted from the bond requirement of Fed. R. Civ. P.65(c). The amount of required security is within the discretion of the trial court. Bell South, 425 F.3d at 971; Caterpillar, Inc. v. Nationwide Equipment, 877 F.Supp. 611, 61 7 (M.D. Fla. 1994); Baldree v.
20

Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 21 of 22
Cargill. Inc., 758 F.Supp. 704 (M.D. Fla. 1990), affd, 925 F.2d 1474 (lith Cir. 1991). The court may also waive all payment.
Courts have used their discretion to waive the bond requirement for indigent plaintiffs. E.g., Bass v. Richardson, 338 F. Supp. 478, 490 (E.D.N.Y. 1971) ("It is clear that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c)"); Denny v. Shealth & Social Serv. Bd. ofState of Wis., 285 F. Supp. 526,527 (E.D. Wis. 1968) ("Poor persons ... are by hypothesis unable to furnish security as contemplated in Rule 65(c), and the court should order no security in connection with the preliminary injunction."). See also !vfaine Ass'n of Interdependent Neighborhoods, 647 F. Supp. at 1319 (court granted waiver of bond, noting impecunious status of plaintiffs, and based on plaintiffs strong case on the merits).
Plaintiffs Cruz and De La Torre are indigent and seek injunctive relief to receive services in the community that Defendants already provide in nursing homes. The case implicates the public interest and the balance of hardships tips sharply in favor of Plaintiffs. This Court should not require Plaintiffs Cruz and De La Torre to give security. VII. Conclusion
For the reasons and on the authority cited above, Plaintiffs Cruz and De La Torre respectfully request that this Honorable Court grant their preliminary injunctive relief. They have demonstrated a substantial likelihood of success on the merits; that they will suffer irreparable injury in the event emergency relief is denied; and that the balance of hardships tips in their favor.
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Case 1:10-cv-23048-UU Document 2 Entered on FLSD Docket 08/18/2010 Page 22 of 22
.
Dated this 17th day of August, 2010. Respectfully submitted, Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 191 03 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com SPOHRER & DODD, P.L.
Howanitz, Esq. a Bar No. 0020967 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counsel for the Plaintiff
22

 
 Case 1:10-cv-23048-UU Document 36 Entered on FLSD Docket 09/09/2010 Page 1 of 30

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
LUIS CRUZ and NIGEL DE LA TORRE,

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

CASE NO. 1:10-cv-23048-UU

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

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

The Defendants, ELIZABETH DUDEK, in her official capacity as the Interim Secretary of the Florida Agency for Health Care Administration (AHCA), and DR. ANA

VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of

Health, by and through the undersigned counsel, hereby submit this response in opposition to Plaintiffs Luis Cruz and Nigel De La Torre‟s Motion for Preliminary Injunction. As grounds

therefore, Defendants submit the following Memorandum of Law, which is attached hereto and is incorporated herein by reference.

1 Pursuant to Rule 25, Fed. R. Civ. P., Elizabeth Dudek is automatically substituted as named Defendant as the successor in office of Thomas W. Arnold.
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Case 1:10-cv-23048-UU Document 36 Entered on FLSD Docket 09/09/2010 Page 2 of 30
MEMORANDUM OF LAW I. Legal Standard for Mandatory Injunctions
To obtain a preliminary injunction, Plaintiffs, Luis Cruz and Nigel De La Torre must demonstrate that: (1) they have a substantial likelihood of prevailing on the merits; (2) they will suffer irreparable harm unless the injunction issues; (3) the threatened injury to Plaintiffs outweighs whatever damage the proposed injunction may cause the Defendants; and (4) the injunction, if issued, would not be adverse to the public interest. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. Ga. 2005). Plaintiffs have the burden of persuasion in all of the four requirements for preliminary injunctive relief, and they must “clearly carry” this burden. United States v. Lambert, 695 F.2d 536, 540 (11th Cir. Fla. 1983) (citing Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir. 1975)); See also Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. Fla. 1974).
In addition, the law distinguishes between preliminary injunctions that seek to maintain the status quo and those that seek some relief beyond the status quo. The instant Motion for Preliminary Injunction falls into the latter category, as it asks the Court to order the Defendants to undertake an activity they are currently not undertaking (i.e., to provide for personal care assistance in Plaintiffs‟ homes). In the Eleventh Circuit, “[w]hen a preliminary injunction goes beyond the status quo and seeks to force one party to act, it becomes a mandatory or affirmative injunction and the burden placed on the moving party is increased.” Mercedes-Benz U.S. Int'l, Inc. v. Cobasys, LLC, 605 F. Supp. 2d 1189, 1196 (N.D. Ala. 2009) (emphasis added). Indeed, “when a plaintiff applies for a
2

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mandatory preliminary injunction, such relief 'should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.‟” Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F.2d 560, 561 (5th Cir. La. 1971) (quoting Miami Beach Federal Sav. & Loan Asso. v. Callander, 256 F.2d 410, 415 (5th Cir. Fla. 1958)) (emphasis added). Mandatory injunctions are “particularly disfavored” by the courts. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. Fla. 1976) (emphasis added).
It is anticipated that Plaintiffs‟ will argue that the requested injunction is prohibitory because Plaintiffs want the Court to “restrain” Defendants from continuing to (allegedly) violate Title II of the Americans with Disabilities Act (“ADA”). But the alleged discrimination lies precisely in the Defendants‟ inaction (i.e., the “failure” of the Defendants to provide in-home personal care assistance services to the Plaintiffs), and such “discrimination” could only be “restrained” by this Court ordering the Defendants to take positive action (i.e., to provide in-home personal care assistance services to the Plaintiff).
The Plaintiffs want the Court to order the Defendants to undertake an affirmative act (i.e., to provide in-home personal care assistance services to the Plaintiffs), which Defendants are not currently doing. The status quo is that the Plaintiffs are not receiving the services they want. The Plaintiffs want to change the status quo by an order of this Court requiring Defendants to undertake a positive act. As held in Schrier v. University of Colorado, 427 F.3d 1253, 1261 (C.A. 10 (Colo.) 2005):
We characterize an injunction as mandatory if the requested relief “affirmatively require[s] the nonmovant to act in a particular way, and as a result ... place[s] the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.”
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Id. at 979 (quoting SCFC ILC, Inc., 936 F.2d at 1099). While merely seeking restoration of the status quo, Dr. Schrier's requested relief nonetheless “affirmatively require[s] the [University] to act in a particular way,” id., that is, to reinstall him as Chair of the Department of Medicine. Moreover, we agree with defendants that “reinstatement would place the court in position where it may have to provide supervision.” Aple. Br. at 48. Thus, the relief sought here is properly characterized as mandatory and, as a result, constitutes a specifically disfavored injunction. As demonstrated below, Plaintiffs cannot clearly carry the heavy burden of persuasion regarding the four requirements for mandatory preliminary injunctions. Neither the facts nor the law “clearly” favor the Plaintiffs. As such, this Court should deny Plaintiffs‟ Motion for Preliminary Injunction. II. Plaintiffs Cannot Demonstrate a Substantial Likelihood of Prevailing on the Merits. Plaintiffs do not have a substantial likelihood of prevailing on the merits in this case. First, Plaintiffs do not and cannot allege any violation of the black letter law of the Medicaid Act, the ADA, or the ADA‟s implementing regulations. Second, Plaintiffs‟ Motion for Preliminary Injunction assumes that the ADA partially amends the federal Medicaid Act, though there is no basis for such an assumption. Third, the implementing regulations of the ADA specifically exclude the services that Plaintiffs request. Fourth, the Patient Protection and Affordable Care Act of 2010, together with the federal Money Follows the Person program, clearly show that a sixty day period in the nursing home prior to transition to a community-based program does not constitute a violation of the ADA. Fifth, under standards set forth by the U.S. Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999), immediate relief is not appropriate in Plaintiffs‟ cases.
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A. Plaintiffs Do Not Allege a Clear Violation of the Medicaid Act or the ADA.
This Court must first note that Plaintiffs do not and cannot point to any violation of the black letter of the Medicaid Act or of the ADA in bringing their claim. As the Defendants will discuss further herein, the federal Medicaid statute specifically makes the type of service Plaintiffs seek here, personal care assistance, an optional Medicaid service. The federal Medicaid Act also makes home and community-based waiver services (which can include personal care assistance) optional, and allows states that opt to provide these services to cap the number of persons served. Thus, Florida has inarguably followed federal Medicaid law in choosing not to provide personal care assistance through its Medicaid program, and has followed the law in providing home and community-based services to a limited number of persons.
In addition, Plaintiffs do not point to any statutory provision of the ADA that supports their cause. Title II of the ADA, which pertains to public programs and services, generally states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The regulations to the ADA, moreover, state that the ADA “does not require a public entity to provide to individuals with disabilities … services of a personal nature including assistance in eating, toileting, or dressing.” 28 C.F.R. § 35.135. Accordingly, the Defendants‟ decision to generally exclude personal care services from Medicaid coverage complies with the black letter of the ADA and its implementing regulations.
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B. The ADA Neither Abrogates nor Amends the Black Letter Provisions of the Medicaid Act.
The fundamental question that lies at the heart of this lawsuit relates to the relationship between the ADA and the Medicaid Act. To resolve this case, this Court will have to examine how these two statutes relate to one another. To do this, this Court will need an understanding of both laws.
1. Medicaid Medicaid is a joint federal-state venture created by federal statute, Title XIX of the Social Security Act of 1965, as amended. 42 U.S.C. § 1396 et seq. In order to participate in Medicaid, a state must submit a plan to the federal government outlining its program to fund medical services for the poor and needy in accordance with the federal Medicaid Act. If the federal government approves the plan, it “then subsidizes a certain portion of the financial obligations which the state has agreed to bear.” Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997) (citing Silver v. Baggiano, 804 F.2d 1211 (11th Cir. 1986)). Currently, with the addition of stimulus funds pursuant to the American Recovery and Reinvestment Act of 2009, federal funds constitute approximately 68% of the funding for Florida‟s Medicaid Program. When the stimulus period ends, the federal contribution will likely return to approximately 55%. The federal Medicaid Act defines “medical assistance” to mean payment for all or part of the services listed in 42 U.S.C. § 1396d(a)(1) through (28). 42 U.S.C. § 1396d(a). Only seven of the twenty-eight services listed are mandatory, meaning that a state must include these seven services in its state plan to participate in Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services for adults over the age of 21 include inpatient
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hospital services, outpatient hospital services, laboratory and x-ray services, nursing facility services, nurse-midwife services, and certified nurse practitioner services. See 42 U.S.C. § 1396a(a)(10)(A) (requiring state plans to provide at least the services listed in § 1396d(a)(1) through (5), (17) and (21)). Thus, Florida is required by federal law to make nursing facility services available and, if these services are medically necessary for Plaintiffs, they are entitled to them as a matter of federal law. See e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).
Florida may include any of the other twenty-one services listed in 42 U.S.C. § 1396d(a), including personal care services. However, it is essential to note that Florida is not required to provide such services to comply with the Medicaid Act, and, to the extent that Florida opts not to provide any of these twenty-one other services, Florida‟s Medicaid recipients to do not have an entitlement to those services.
In addition to the Medicaid services offered under a state‟s Medicaid State Plan, a state may also enter into an agreement with the federal government to offer services under a waiver program, such as the Home and Community-Based (HCBS) waivers. See 42 U.S.C. § 1396n(c). Under waiver programs such as the Traumatic Brain Injury / Spinal Cord Injury Waiver (TBI/SCI Waiver), the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation. 42 U.S.C. § 1396n(c)(3). Most importantly for the purposes of this case, the Medicaid Act permits waiver of the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B). Id. This provision requires state plans to offer the services in 42 U.S.C. § 1396d(a) to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396a(a)(10)(B). By
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providing for a waiver of the comparability requirement, the Medicaid Act permits states to discriminate on the basis of disability. Indeed, as a result of the various waivers, the Florida Medicaid Program currently provides increased services to persons with disabilities like HIV/AIDS, Austism, and mental retardation, while simultaneously offering no enhanced services to persons with other types of disabling conditions.
The Medicaid Act also permits waiver of Medicaid requirements with respect to limiting the number of persons receiving waiver services and eliminating the statewideness requirement. While a state must provide services under its State Plan to everyone who meets the state‟s Medicaid eligibility requirements, the waiver law specifically allows states to “cap” the number of persons receiving waiver services. 42 U.S.C. § 1396n(c)(9)-(10). Waiver of statewideness means that states may limit the provision of HCBS services to certain parts of the state as opposed to persons living throughout the state. 42 U.S.C. § 1396n(c)(3).
It is important to note that while the federal Medicaid Act permits states to create HCBS waiver programs, it does not require states to do so. As the Medicaid Act states, “a State plan approved under this subchapter may include as „medical assistance‟ under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by” the federal government. 42 U.S.C. § 1396n(c)(1) (emphasis added). Neither does the Medicaid Act require the federal government to approve states‟ HCBS waiver programs. The Secretary of the Department of Health and Human Services “may by waiver” allow states to create HCBS programs. Id. (emphasis added).
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It is not disputed that the Florida Medicaid program does not provide in-home personal care assistance for adults like the Plaintiffs. While Florida does provide in-home personal care assistance through its TBI/SCI Waiver, Florida has opted to place a cap on the number of persons enrolled in this program. The TBI/SCI Waiver program had no available opening at the time Plaintiffs applied and they were thus placed on a waiting list. In the Complaint and Motion for Preliminary Injunction, Plaintiffs do not allege that Florida has violated the Medicaid Act by failing to provide them with in-home personal care assistance. However, in both the Complaint and Motion for Preliminary Injunction they are requesting the Court to order Defendants to provide them with such services. Such an order would effectively nullify one or more provisions of the Medicaid Act.
2. Americans with Disabilities Act The ADA became law in 1990. 42 U.S.C. § 12101, et seq. Title II applies to public entities, the definition of which includes the Defendants. 42 U.S.C. § 12131(1). The Title II provision most relevant to this lawsuit, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The regulations implementing Title II of the ADA require a public entity to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Thus, where a modification
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would constitute a fundamental alteration to the service, program, or activity at issue, it is not required under the ADA.
The Supreme Court‟s authoritative interpretation of Title II‟s prohibition of discrimination, as it relates to the institutionalization of persons with disabilities, is found in Olmstead. In Olmstead, the Court was faced with the question of whether the proscription of discrimination found in Title II of the ADA may require placement of persons with (mental) disabilities in community settings rather than institutions. See Olmstead, at 587. The Court held that the answer is “a qualified yes.” Id. According to the Olmstead Court, the ADA requires the placement of a person with a disability in community settings rather than institutions when (1) the State‟s treatment professionals have determined that community placement is appropriate, (2) the transfer from the institution to the community is not opposed by the individual, and (3) the placement can be reasonably accommodated, taking into account (a) the resources available to the State, and (b) the needs of others with disabilities. Id. Reading Olmstead together with Title II‟s implementing regulations, it becomes clear that the question of whether a modification constitutes a fundamental alteration must necessarily take into account the resources available (e.g., funding) and the needs of others with disabilities (e.g., the number of persons who must be served with those resources).
Justice Ginsburg‟s opinion in Olmstead suggests that a fundamental alteration would lie were a Court is asked to disrupt a State‟s “comprehensive, effectively working” plan of deinstitutionalization. “If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental
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disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonablemodifications standard would be met.” Id., at 605-606. A few points about this passage should be noted. First, it is not part of the Court‟s opinion. Only three other justices joined Justice Ginsburg in Part III-B, so this passage is not part of the Court‟s holding. Nor has the Eleventh Circuit Court of Appeals adopted the substance of this provision in any case. As such, while this provision may be instructive, it does not constitute binding law that this Court must follow. Second, even if Part III-B were part of the Supreme Court‟s opinion, it still remains that this passage does not require a showing of a comprehensive, effectively working plan in order to demonstrate that a requested modification would constitute a fundamental alteration. Rather, a comprehensive, effectively working plan is one example of a showing of fundamental alteration2.
3. Analysis of Interplay Between the ADA and the Medicaid Act To grant Plaintiffs‟ Motion for Preliminary Injunction, the Court will have to find that the ADA has invalidated one or more provisions of the Medicaid Act. For example, the Court would have to invalidate the Medicaid Act‟s explicit statement that the only mandatory services are those found at 42 U.S.C. § 1396d(a)(1) through (5), (17), and (21) by converting personal care assistance from an optional service to a mandatory service. 42 U.S.C. § 1396a(a)(10)(A). In the alternative, an injunction order would invalidate the provision in 42 U.S.C. § 1396n(c)(1) declaring that HCBS waiver programs are optional for states and that states can cap enrollment in such programs.
2 It should also be noted that the “comprehensive, effectively working plan” described in Olmstead is one of
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As such, the only way that Plaintiffs‟ claims could be sustained is if the ADA were interpreted to amend (or partially repeal) the Medicaid Act by implication, by either amending/repealing 42 U.S.C. § 1396a(a)(10)(A), which makes personal care services optional for states, or by converting “may” in 42 U.S.C. § 1396n(c)(1) to “shall” . It is clear that an inherent assumption of Plaintiff‟s claim is that the Medicaid Act has been impliedly amended by the ADA. However, the criteria for statutory amendment by implication are not met here. The Supreme Court has held that “[a]mendments by implication, like repeals by implication, are not favored.” United States v. Welden, 377 U.S. 95, 103 (U.S. 1964). In a case where “two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (U.S. 1974). The Medicaid Act and the ADA are clearly capable of co-existence, and the ADA contains no clear congressional intent to amend the Medicaid Act.
Moreover, as to the administration of the Medicaid program, the Medicaid Act is a more specific statute than the ADA. Indeed, the ADA generally prohibits discrimination, while the Medicaid Act ordinarily prohibits discrimination but waives this prohibition in a specific, public health policy context. According to the U.S. Supreme Court, “it is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (U.S. 1976). The more specific statute controls “regardless of the priority of enactment.” Morton, at 551. See also
deinstitutionalization, not a plan for ensuring that no individual with a disability ever has to enter an institution.
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Ardestani v. United States Dep't of Justice, INS, 904 F.2d 1505, 1513 (11th Cir. 1990) (“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one”).
The ADA does not amend the Medicaid Act. In fact, however, the Plaintiffs are not even alleging that the ADA has amended the Medicaid Act, but rather that a DOJ regulation has amended the Medicaid Act. Essentially Plaintiffs are arguing that the “integration mandate” changes the entire structure of the Medicaid Act. But as noted above, § 12132 does not go nearly as far as the “integration mandate.” Lacking this regulatory provision, no court would find that a state providing nursing facility services to individuals with disabilities through its Medicaid program, as the Medicaid Act requires states to do, constitutes exclusion from participation in or a denial of the benefits of the Medicaid program. Of course, no regulation can amend a statute.
Even if it were found that the ADA, or more specifically, the “integration mandate” in the ADA regulations, does in fact amend the Medicaid Act by implication, there is no basis in law or logic to support Plaintiffs‟ position as to the character and effect of that amendment. The Plaintiffs want the ADA‟s prohibition of discrimination to slice into the Medicaid Act and, with surgical precision, add, change, or remove a word or two here and there, leaving the overall structure of the Medicaid Act and the HCBS waiver programs intact. The Plaintiffs, however, fail to provide a rational basis for why the TBI/SCI Waiver program itself would withstand the wrath of the ADA, as the TBI/SCI Waiver program is a service that blatantly discriminates on the basis of disability. The TBI/SCI Waiver program is only available to persons with a traumatic brain injury or a spinal cord injury. It
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is not available to persons with any other sort of disability, such as autism or cerebral palsy, nor is it available to individuals who have no disabilities at all.
In fact, all HCBS waiver programs discriminate in the class of persons they serve. The Medicaid Act permits and contemplates such discrimination. 42 U.S.C. § 1396n(c)(1), (2), (3), (4), and (7). What is more, regulations of the Centers for Medicare and Medicaid Services (CMS) implementing the Medicaid Act require discrimination on the basis of diagnosis (or disability) in the provision of HCBS services. CMS requires that if a State “furnishes home and community-based services… under a waiver granted under this subpart, the waiver request must…[b]e limited to one of the following target groups or any subgroup thereof that the State may define: (i) Aged or disabled, or both. (ii) Mentally retarded or developmentally disabled, or both. (iii) Mentally ill.” 42 C.F.R. § 441.301(b)(6) (emphasis added).
The HCBS waiver programs discriminate based on disability in order to provide persons with disabilities services that would not otherwise be available to them. But they still discriminate on the basis of disability. As a result, there are persons with disabilities who are “excluded from participation in or [ ] denied the benefits of” HCBS waiver programs that are targeted to persons with other disabilities. See 42 U.S.C. § 12132. If the ADA‟s prohibition of discrimination “by reason of…disability” amends the Medicaid Act, then surely the HCBS waiver programs would not survive.
A grant of Plaintiffs‟ Motion for Preliminary Injunction will essentially require a finding that the ADA amends the Medicaid Act by prohibiting a certain kind of discrimination (i.e., institutionalization of persons with disabilities) while permitting another
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kind of discrimination (i.e., creating an HCBS waiver program exclusively for persons with a spinal cord injury). But this is nonsensical. If the ADA trumps Medicaid, it must do so in a comprehensive and coherent way. If the ADA indeed prohibits Florida from denying personal care services in the community, then it must necessarily also prohibit Florida from offering an inherently discriminatory program like the TBI/SCI Waiver program.
C. The ADA Regulations Do Not Require a Public Entity to Provide Personal Care Services.
Here, Plaintiffs seek assistance transferring to and from their beds, toileting, and with other activities of daily life. Complaint, ¶ 16, 34. Plaintiffs contend that the ADA requires the provision of such personal care services. This is not the case. To the contrary, the ADA regulations specifically exclude personal care services from the ADA‟s purview.
Section 35.135 of the ADA‟s implementing regulations states that the ADA “does not require a public entity to provide to individuals with disabilities…services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). It is anticipated Plaintiffs will argue that 28 C.F.R. § 35.135 affords no defense here because § 35.135 only clarifies that Title II does not require a State to provide personal services in programs that do not already provide personal care.
Simply stated, such an interpretation of 28 C.F.R. § 35.135 is not an interpretation at all. It is an attempt to carve out an exception to this regulation that is not present in the text. The Plaintiffs want this Court to say that the regulation contains an exception for public entities that provide personal care services.
However, 28 C.F.R. § 35.135 could not be clearer: “This part does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs;
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individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). There is no ambiguity or need for interpretation, and there is no exception for public entities that provide personal care services.
The regulations implementing Title II of the ADA are clear. Florida is required to administer its services “in the most integrated setting appropriate,” but this cannot be read to require the Florida Medicaid Program to provide “services of a personal nature,” which is precisely the kind of services Plaintiffs are requesting here, because the “integration mandate” is itself from 28 C.F.R. Part 35, and § 35.135 states that “[t]his part does not require a public entity to provide…services of a personal nature such as eating, toileting, or dressing .” The ADA does not require the provision of these services.
D. A Period of 60 Days in a Nursing Home Does Not Violate the ADA. If the Plaintiffs were to enter a nursing home, they would be eligible for the Nursing Home Transition Program after a period of 60 days. The Motion for Preliminary Injunction and Plaintiff Cruz‟s Declaration both indicate that Plaintiff Cruz was informed that he could be transitioned after a period of 90 days. Motion for Preliminary Injunction, ¶ 8; Plaintiff Luis J. Cruz Declaration In Support of His Motion for Preliminary Injunction, ¶ 15. Whatever Plaintiff Cruz was told, this is not accurate.3 As indicated in the Affidavit of Elizabeth Y. Kidder, dated September 9, 2010, the Nursing Home Transition Program becomes available to an individual in a nursing home after 60 days, not 90 days.
3 Perhaps Plaintiff Cruz confused Florida Medicaid‟s Nursing Home Transition Program with the federal Money Follows the Person program, discussed below, which requires 90 days in a nursing home.
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Plaintiffs cite Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003), to support their argument that a 60 day period in a nursing home would violate the ADA. However, in the passage cited by Plaintiffs, the Fisher court was rejecting an assertion from the defendant in that case that the plaintiffs were required to enter a nursing home in order to have standing. Defendants make no such argument here. In addition, the plaintiffs in the Fisher case were faced with having to enter a nursing home indefinitely. That is not the case here, as the Nursing Home Transition Program would provide a funded mechanism for transition after 60 days.
What is more, Congress has definitively shown that requiring a minimum of 60 days in a nursing home before providing community-based services does not violate the ADA. In the Deficit Reduction Act of 2005 (DRA), Congress established the Money Follows the Person Rebalancing Demonstration project (MFP), which authorized the Department of Health and Human Services to authorize grants to States for demonstration programs designed to, among other things, increase the use of HCBS programs over institutional programs, and eliminate barriers to the flexible spending of Medicaid funds. Public Law 109-171; 120 Stat. 102. The MFP program essentially permits an increased federal share of Medicaid funding for nursing home transition programs. Under the DRA, the MFP funds were only available for “eligible individuals”, which was defined as individuals who had resided in an inpatient facility for a period of not less than six months. 120 Stat. 103. In Section 2403 of the Patient Protection and Affordable Care Act of 2010 (PPACA), Congress reduced this minimum time period to “a period of not less than 90 consecutive days.” Public Law 111-148; 124 Stat. 304.
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The implications of this cannot be overstated. Through the DRA and PPACA, Congress has created a program whereby states are paid more to transition individuals to the community after spending 90 days in a nursing home than the states would receive if they transitioned such individuals before they reached 90 days. Congress is thus financially inducing states to keep individuals in nursing homes for at least 90 days before transitioning them to the community. If the 90 day period itself constitutes a violation of the ADA and Olmstead, that means that Congress is paying states to violate its own law. If even one day in a nursing home constitutes a violation of the ADA and Olmstead, as Plaintiffs seem to suggest, then the provision in the PPACA establishing a minimum time period in a nursing home before an individual can be eligible for transition simply makes no sense. Congress would be incentivizing an infraction of the ADA. A more sensible interpretation is to read the ADA, Olmstead, the DRA, and the PPACA together, and conclude that requiring a minimum amount of time in a nursing home (e.g., not less than 90 days) before transitioning an individual to a HCBS program does not violate the ADA.
It is important to note that the Department of Health and Human Services, Centers for Medicare and Medicaid Services, explicitly connect the MFP program to the implementation of Olmstead. See MFP Initial Announcement and Invitation to Apply for FY2011, dated July 26, 2010, and attached as Exhibit A to the Affidavit of Elizabeth Y. Kidder (“The passage of the Affordable Care Act (ACA) provides new and expanded opportunities to serve more individuals in home and community-based settings and adds to the tools already available so States can implement the integration mandate of the ADA as required by the Olmstead decision”).
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These provisions must also be read in light of Florida‟s Nursing Home Transition Program. Under Florida‟s program, an individual need only reside in a nursing home for 60 days before becoming eligible for transition to a HCBS waiver. So the Plaintiffs are arguing that Florida‟s Nursing Home Transition Program, which as it currently exists would not be eligible for MFP funding (which funding is intended to assist states in complying with Olmstead) because it is too lenient, is in violation of Olmstead because it is not lenient enough.
E. The Requested Relief Would Constitute a Fundamental Alteration of Florida’s Medicaid Program.
The regulations implementing Title II of the ADA provide that a “public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Here, any interpretation that allows the ADA (or its regulations) to trump the Medicaid Act would involve a fundamental alteration of the Medicaid Program. If, contrary to the Medicaid Act, this Court uses the ADA to convert personal care assistance into a mandatory Medicaid service, it will create federal entitlement to personal care assistance in all 2.7 million Medicaid recipients in Florida. If, contrary to the Medicaid Act, this Court uses the ADA to make waiver services mandatory and removes states‟ ability to cap the waivers, it will destroy the states‟ reasonably delegated responsibility to ensure the adequacy of its provider networks and to create other safeguards prior to providing community-based services. As far as Defendants are aware, no other court has required a state Medicaid program to expand a waiver based
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on the ADA or Rehab Act. Finally, if this Court strikes down waivers entirely, it will functionally obliterate Medicaid.
While it does not make sense to interpret the ADA to uphold the HCBS waiver programs but prohibit institutionalization of disabled individuals, if the Court were to find that this is what the ADA requires, such would still constitute a fundamental alteration of the Florida Medicaid Program, because the State of Florida would be required by the federal Medicaid Act to provide assurances to CMS that it will provide “necessary safeguards” for a greatly increased number of recipients and “financial accountability for funds expended” for a greatly increased amount of services. 42 U.S.C. § 1396n(c)(2)(A).
1. The Resources of the State and Needs of Others with Disabilities
As noted above, the Olmstead decision would only require the placement of an individual in a community setting as opposed to an institutional one where “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with [ ] disabilities.” Olmstead, at 587. The Plaintiffs have failed to show that immediately placing them in the TBI/SCI Waiver program can be reasonably accommodated.
The Plaintiffs argue that it would cost less to provide services in the community than in a nursing home. They provide no evidence of this. Regardless, it is irrelevant, because the costs of institutional services and community services are not comparable, because they are independently funded and the Defendants have no authority to transfer funds from one
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source to the other.4 While institutional services may cost less from an absolute perspective, the Defendants do not have the authority or ability to appropriate funds as they see fit. That authority belongs to the Florida Legislature, which is not and cannot be a party to this case. The Defendants can only utilize the funds appropriated by the Legislature as directed by the Legislature.
When this Court takes into account the available resources, it must look not at all the resources of the State, but those resources of the State which are available to the Defendants for the purposes at hand. The TBI/SCI Waiver is funded both from General Revenue appropriations and from the Brain and Spinal Cord Injury Rehabilitation Trust Fund. 2010 General Appropriations Act, Specific Appropriation 563, Chapter 2010-152, Laws of Florida. For Fiscal Year 2010-2011, the Florida Legislature has authorized a total budget of $12,880,214. Of this, $1,168,470 comes from General Revenue and $11,711,744 from the Brain and Spinal Cord Injury Rehabilitation Trust Fund. See Affidavit of Kristen Russell, dated September 9, 2010. In fact, the TBI/SCI Waiver only has $8,469,066 available for Fiscal Year 2010-2011. Id. As of September 9, 2010, there are currently 341 individuals enrolled in the TBI/SCI Waiver. Id. Of these, 28 are funded through the Nursing Home Transition Program. Id. For the remaining 313, it is estimated that their services for FY 2010-2011 will require the full $8,469,066, and, indeed, may run over budget. Id. There would thus be no additional funds to enroll the Plaintiffs (not to mention those individuals above the Plaintiffs on the waiting list) into the TBI/SCI Waiver. Id.
4 The exception to this is the Nursing Home Transition Program, addressed below, which permits AHCA to transfer funds from the nursing home line item to Medicaid HCBS waiver programs. However, such transfers can only be made for individuals who have been in a nursing facility for at least 60 days.
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Consistent with the rules and policies governing the TBI/SCI Waiver and the Florida Medicaid Program, Defendants have assessed both Plaintiffs. TBI/SCI Waiver personnel conducted an assessment of Plaintiff Luis Cruz on April 28, 2010. At that time, Plaintiff Cruz received a prioritization score of 86. Id. As of August 19, 2010, there were eight other individuals on the waiting list for the TBI/SCI Waiver Program with the same score as Mr. Cruz. Id. Of these, seven have been on the waiting list longer than Mr. Cruz and are thus considered to have a higher priority. Id. As of August 19 2010, there were 44 individuals on the waiting list for the TBI/SCI Waiver Program with scores greater than 86. Id. TBI/SCI Waiver personnel conducted an assessment of Plaintiff Nigel De La Torre on May 4, 2010. Id. At that time, Plaintiff De La Torre received a prioritization score of 70. Id. As of August 19, 2010, there were 17 other individuals on the waiting list for the TBI/SCI Waiver Program with the same score as Mr. De La Torre. Id. Of these, 16 have been on the waiting list longer than Mr. De La Torre and are thus considered to have a higher priority. Id. As of August 19, 2010, there were 189 individuals on the waiting list for the TBI/SCI Waiver Program with scores greater than 70. Id.
Whatever the needs of Plaintiffs may be, an analysis of the resources available to the Defendants together with the needs of other individuals with disabilities demonstrates that the relief requested by Plaintiffs cannot be reasonably accommodated. Rather, granting immediate relief to the Plaintiffs would be grossly inequitable given the many individuals on the TBI/SCI Waiver waiting list with greater needs than the Plaintiffs.
2. Florida’s Comprehensive and Effective Plan
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As shown above, the relief requested by Plaintiffs cannot be reasonably accommodated given the resources of the Defendants and the needs of others with disabilities. For this reason, the requested preliminary injunction would constitute a “fundamental alteration” to the Florida Medicaid Program. In addition, the requested relief would constitute a fundamental alteration because it would disrupt Florida‟s comprehensive, effectively working plan to place qualified persons with disabilities in less restrictive settings. See Olmstead, at 605-606. As noted above, a comprehensive, effectively working plan is not necessary for a showing of fundamental alteration5, because (1) the portion of the Olmstead opinion describing such plans is not part of the majority‟s opinion and has not been adopted by the Eleventh Circuit; and (2) the portion of the Olmstead opinion describing such plans does not purport to require them, but only offers such plans as an “example” of how “the reasonable-modifications standard would be met.” Id.
However, Florida does in fact have a comprehensive and effectively working plan of deinstitutionalization. This plan has included systematic expansion of Florida‟s HCBS waiver programs over the past 30 years, as well as implementation of the Nursing Home Transition Program, which is specifically tailored to implement the ADA as set forth in the Olmstead decision.
The Florida Medicaid Program has consistently expanded its HCBS waiver programs. As shown in the Affidavit of Elizabeth Y. Kidder, dated September 9, 2010, the Florida Medicaid Program administers 14 HCBS waiver programs. These programs began in the 1980s, and have consistently expanded since that time. Florida added new HCBS
5 All that is necessary is a showing that the community placement cannot be reasonably accommodated,
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waiver programs in 1982, 1985, 1989, 1991, 1995, 1998, 1999, 2004, 2006, and 2008. As shown in the Affidavit of S. Michele Morgan, dated September 8, 2010, the following HCBS waivers have all expanded over the past four years: the Adult Cystic Fibrosis Waiver, the Alzheimer‟s Disease Waiver, the Developmental Disabilities Waiver (Tier 1), the Family Dysautonomia Waiver, the Family Supported Living Waiver, the Nursing Home Diversion Waiver, and the TBI/SCI Waiver. Indeed, the Florida Medicaid Program now serves more nursing home-eligible persons outside of nursing homes than within them in any given month. See Affidavit of S. Michele Morgan, dated September 8, 2010. The TBI/SCI Waiver program in particular has grown. Implemented in 1999, the TBI/SCI Waiver program expanded from an average monthly caseload of 245 persons (Fiscal Year 20052006) to 309 persons (Fiscal Year 2008-2009). Id. In addition, TBI/SCI Waiver program expenditures have increased from $5,874,815 (Fiscal Year 2005-2006) to $10,066,381 (Fiscal Year 2008-2009). Id. As shown in the September 9, 2010, Affidavit of Kristen Russell, the TBI/SCI Waiver program is operating at full capacity. In addition, the TBI/SCI Waiver program is available to all Medicaid eligible individuals with a traumatic brain injury or spinal cord injury based only on their health needs and position on the waiting list. What is more, the vast majority of the Supplemental Security Income eligible (SSI) population in the Florida Medicaid Program is currently in the community and not in institutions. In Fiscal Year 2008-2009, the Florida Medicaid Program had an average monthly caseload of about 311,000 SSI persons. Affidavit of S. Michele Morgan, dated
taking into account the resources available to the State and the needs of others with disabilities. See Olmstead, at 587.
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September 8, 2010. Of those, only about 45,000, or 14%, were residing in nursing facilities in any given month. Id.
In addition to HCBS waiver expansion, the Florida Medicaid Program has instituted the Nursing Home Transition Program, which directly implements the policy behind the Olmstead decision. The Nursing Home Transition Program is based upon an appropriation by the Florida Legislature which permits AHCA to transfer funds from the nursing home line item to the various HCBS waiver programs for the purpose of transitioning the greatest number of appropriate eligible beneficiaries from skilled nursing facilities to community based alternatives. Chapter 2010-152, Laws of Florida; Specific Appropriation 219. AHCA has created a Draft Nursing Home Transition Plan (attached to the Affidavit of Elizabeth Y. Kidder as Exhibit B) to maximize the use of these funds by establishing a process to increase awareness of the Nursing Home Transition Program, identify individuals who wish to transition, assess such individuals for eligibility, and determine whether the Florida Medicaid Program has a HCBS waiver program sufficient to meet their needs. A report outlining the status of the implementation of the Nursing Home Transition Plan is attached to the Affidavit of Elizabeth Y. Kidder, dated September 9, 2010, as Exhibit C.
The Nursing Home Transition Program has been a success so far. For the period from January 1, 2009, to June 30, 2010, a total of 933 individuals were transitioned from nursing facilities to HCBS waiver programs through the Nursing Home Transition Program. See Affidavit of Elizabeth Y. Kidder, dated September 9, 2010. A total of $9,794,744.78 was spent during this period for the transition and HCBS waiver services of these 933 individuals. Id.
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AHCA is continuing to expand the Nursing Home Transition Program. This expansion includes the additions of transition case management and increased home modifications. The Florida Medicaid Program submitted amendments to add transition case management to certain HCBS waivers to certain HCBS waivers and increased funding for environmental home modifications in the TBI/SCI waiver to facilitate successful community transitions. The Centers for Medicare and Medicaid Services approved those amendments and we are in the process of amending the program handbooks and contracts to account for this additional service when necessary to assist in transitioning a recipient. Id. III. Plaintiffs Will Not Incur Any Irreparable Harm.
In order to qualify for a preliminary injunction, Plaintiffs would have to show that they will suffer irreparable harm. Mony Secs. Corp. v. Vasquez, 238 F. Supp. 2d 1304 (M.D. Fla. 2002). Plaintiffs fails to show that any harm they would incur by entering a nursing facility would be irreparable.
Even if Plaintiffs did enter a nursing home, this harm would not be “irreparable” as they would be eligible after 60 days for the Nursing Home Transition program, which is funded and which would allow Plaintiffs to be transferred to the TBI/SCI Waiver. This fact distinguishes the Plaintiffs‟ situation from those of the individuals in the cases Plaintiffs cite. In Long v. Benson, 4:08CV26-RH/WCS, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008) aff'd, 08-16261, 2010 WL 2500349 (11th Cir. June 22, 2010) , the plaintiff was faced with indefinite institutionalization. That is not the case here. See Affidavit of Kristen Russell, dated September 9, 2010.
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Plaintiffs claim that they will lose their housing if they enter a nursing facility and will thus face irreparable harm as they will not have a home to transition back to. However, given the short amount of time that Plaintiffs would have to spend in a nursing facility before they would be eligible for the Nursing Home Transition Program, this does not seem a likely result. The Plaintiffs expect the Court to believe that they have absolutely no money in savings and that they have no social supports that could assist them in paying two months‟ worth of rent. Plaintiff Cruz “socializes with neighbors and friends,” but wants the Court to believe that no one will be able to assist him with his apartment. Motion for Preliminary Injunction, ¶ 14. Indeed, if Plaintiff Cruz has been hospitalized for 30 and 40 day periods over the past year, he must have had some assistance at least in ensuring that his rent was paid. Plaintiff De La Torre lives with his mother, who is currently staying in the United States to care for him though her husband has moved to Spain (the Motion for Preliminary Injunction is somewhat confused on whether she has moved already, See ¶ 23, 36, p. 17), but expects the Court to believe that his mother will not ensure that his rent is paid during the short period of time he would spend in a nursing home.
As noted above, the federal MFP program only applies to individuals who have resided in a nursing facility for at least 90 consecutive days. If Congress is incentivizing such a program, it would be absurd to conclude that a more lenient program, such as Defendants‟, could constitute irreparable harm in violation of Olmstead.
The sad reality is that the Plaintiffs have already suffered irreparable harm, and will continue to suffer such harm, as a result of their tragic injuries. The issuance of the requested relief will not change this. Indeed, nothing the Defendants can do will change this.
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What the Defendants can do is utilize their resources in the most efficient way, taking into account the needs of other individuals with disabilities (who also suffer irreparable harm as a result of their injuries), to minimize the experience of this irreparable harm by the Plaintiffs and others with disabilities. This is precisely what the Defendants are doing. IV. The Balance of Hardships Weighs in Favor of the Defendants.
The Court must balance the harms in determining whether a preliminary injunction should be issued. Plaintiffs contend that the threatened harm to them outweighs any harm to Defendant. Contrary to Plaintiffs‟ assertions, they are not asking the Defendants to simply spend less of their Medicaid funds and permit them to continue to reside in the community. To the extent that the Plaintiffs are asking the Court to make personal care assistance services mandatory for Florida or to “uncap” the TBI/SCI Waiver, the state would be forced to assemble a massive personal care assistance provider network.
In addition, it should be noted that, in granting the requested injunctions, all the Court will be doing is shifting the harm (of having to wait for enrollment in the TBI/SCI Waiver) to those individuals who are higher than Plaintiffs on the waiting list. The Court would thus be shifting the harm to individuals (51 individuals in the case of Mr. Cruz and 205 individuals in the case of Mr. De La Torre) who the Defendants have determined have a greater need for the TBI/SCI Waiver services that Defendants would be forced to provide to Plaintiffs. Every dollar spent on services for the Plaintiffs would be a dollar that cannot be spent on individuals with greater needs. V. The Public Interest Will Be Harmed if Plaintiffs are Granted Preliminary
Injunctions.
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A grant of Plaintiffs Motion for Preliminary Injunction would be contrary to the public interest. The difference in the cost of institutional versus community placement is irrelevant to the question of public interest, because, as explained above, the Defendants do not have the authority to draw from one source to pay for the other. The Legislature has determined that the current funding structure is in the public interest, and the Legislature is the body charged with making such determinations.
Furthermore, it would certainly be contrary to the public interest to “jump” Plaintiffs to the front of the line – ahead of others who have greater needs – simply because they filed a lawsuit. See Olmstead, at 606. The public has a strong interest in the fair and equitable distribution of scarce resources, an interest that would be thwarted by a grant of the requested injunctions.
CONCLUSION For the reasons stated above, this Court should deny Plaintiffs‟ Motion for Preliminary Injunction. Respectfully submitted this 9th day of September, 2010.
AGENCY FOR HEALTH CARE ADMINISTRATION BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
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DEPARTMENT OF HEALTH
BY: /s/ Morris Shelkofsky Morris Shelkofsky Fla. Bar No. 165186 Assistant General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1703 (850) 245-4005 Email: Morris_Shelkofsky@doh.state.fl.us
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Steven R. Browning and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 9th day of September, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
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 Case 1:10-cv-23048-UU Document 37 Entered on FLSD Docket 09/09/2010 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

LUIS CRUZ and NIGEL DE LA TORRE,

Plaintiffs,

vs.

CASE NO. 1:10-cv-23048-UU

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

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

Defendants.
_________________________________________/

DEFENDANTS’ MOTION TO DISMISS COMPLAINT

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

Secretary of the Florida Agency for Health Care Administration, and DR. ANA

VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of

Health, by and through undersigned counsel, hereby move pursuant to Rule 12(b)(1) and

(6), Fed. R. Civ. P., to dismiss this cause for failure to state a claim upon which relief can be

granted. As grounds therefore, Defendants state as follows:

1. On August 18, 2010, Plaintiffs Luis Cruz and Nigel De La Torre filed their

Complaint, which was served on Defendants on August 19, 2010. The Complaint alleges

that Defendants violate Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132

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(ADA), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (Rehab Act) by denying in-home health services to Plaintiffs.
2. This Court should dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P., because Plaintiffs fail to allege any clear violation of the ADA, Rehab Act, or the Medicaid Act, the claim for provision of personal care services exceeds the scope of the ADA, the ADA neither abrogates nor amends the Medicaid Act, and Plaintiff‟s requested relief would constitute a fundamental alteration of the Florida Medicaid Program, which the ADA does not require.
3. As further support for this Motion, the Defendants submit the following Memorandum of Law, which is attached hereto and incorporated herein by reference.
MEMORANDUM OF LAW I. Plaintiffs Fail to State a Claim Upon Which Relief Can be Granted Because
They Fail to Allege Any Clear Violation of the ADA, Rehab Act, or Medicaid Act This Court must first note that Plaintiffs do not and cannot point to any violation of the black letter of the Medicaid Act or of the ADA in bringing their claim. As the Defendants will discuss further herein, the federal Medicaid statute specifically makes the type of service Plaintiffs seek here, personal care assistance, an optional Medicaid service. The federal Medicaid Act also makes home and community-based waiver services (which can include personal care assistance) optional, and allows states that opt to provide these services to cap the number of persons served. Thus, Florida has inarguably followed federal Medicaid law in choosing not to provide personal care assistance through its Medicaid
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program, and has followed the law in providing home and community-based services to a limited number of persons.
In addition, Plaintiffs do not point to any statutory provision of the ADA that supports their cause. Title II of the ADA, which pertains to public programs and services, generally states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The regulations to the ADA, moreover, state that the ADA “does not require a public entity to provide to individuals with disabilities … services of a personal nature including assistance in eating, toileting, or dressing.” 42 C.F.R. § 35.135. Accordingly, the Defendants‟ decision to generally exclude personal care services from Medicaid coverage complies with the black letter of the ADA and its implementing regulations.
Because Plaintiffs do not allege violations of the ADA, Rehab Act, or Medicaid Act, Plaintiffs fail to state a claim upon which relief can be granted and the Complaint should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. II. The ADA Neither Abrogates nor Amends the Black Letter Provisions of the
Medicaid Act. The fundamental question that lies at the heart of this lawsuit relates to the relationship between the ADA and the Medicaid Act. To resolve this case, this Court will have to examine how these two statutes relate to one another. To do this, this Court will need an understanding of both laws. A. Medicaid
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Medicaid is a joint federal-state venture created by federal statute, Title XIX of the Social Security Act of 1965, as amended. 42 U.S.C. § 1396 et seq. In order to participate in Medicaid, a state must submit a plan to the federal government outlining its program to fund medical services for the poor and needy in accordance with the federal Medicaid Act. If the federal government approves the plan, it “then subsidizes a certain portion of the financial obligations which the state has agreed to bear.” Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997) (citing Silver v. Baggiano, 804 F.2d 1211 (11th Cir. 1986)). Currently, with the addition of stimulus funds pursuant to the American Recovery and Reinvestment Act of 2009, federal funds constitute approximately 68% of the funding for Florida‟s Medicaid Program. When the stimulus period ends, the federal contribution will likely return to approximately 55%.
The federal Medicaid Act defines “medical assistance” as payment for all or part of the services listed in 42 U.S.C. § 1396d(a)(1) through (28). 42 U.S.C. § 1396d(a). Only seven of the twenty-eight services listed are mandatory, meaning that a state must include these seven services in its state plan to participate in Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services for adults over the age of 21 include inpatient hospital services, outpatient hospital services, laboratory and x-ray services, nursing facility services, nurse-midwife services, and certified nurse practitioner services. See 42 U.S.C. § 1396a(a)(10)(A) (requiring state plans to provide at least the services listed in § 1396d(a)(1) through (5), (17) and (21)). Thus, Florida is required by federal law to make nursing facility services available and, if these services are medically necessary for Plaintiffs, they
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are entitled to them as a matter of federal law. See e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).
Florida may include any of the other twenty-one services listed in 42 U.S.C. § 1396d(a), including personal care services. However, it is essential to note that Florida is not required to provide such services to comply with the Medicaid Act, and, to the extent that Florida opts not to provide any of these twenty-one other services, Florida‟s Medicaid recipients to do not have an entitlement to those services.
In addition to the Medicaid services offered under a state‟s Medicaid State Plan, a state may also enter into an agreement with the federal government to offer services under a waiver program, such as the home and community-based services (HCBS) waivers. See 42 U.S.C. § 1396n(c). Under waiver programs such as the Traumatic Brain Injury / Spinal Cord Injury Waiver (TBI/SCI Waiver), the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation. 42 U.S.C. § 1396n(c)(3). Most importantly for the purposes of this case, the Medicaid Act permits waiver of the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B). Id. This provision requires state plans to offer the services in 42 U.S.C. § 1396d(a) to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396a(a)(10)(B). By providing for a waiver of the comparability requirement, the Medicaid Act permits states to discriminate on the basis of disability. Indeed, as a result of the various waivers, the Florida Medicaid Program currently provides increased services to persons with disabilities like HIV/AIDS, Autism, and mental retardation, while simultaneously offering no enhanced services to persons with other types of disabling conditions.
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The Medicaid Act also permits waiver of Medicaid requirements with respect to limiting the number of persons receiving waiver services and eliminating the statewideness requirement. While a state must provide services under its State Plan to everyone who meets the state‟s Medicaid eligibility requirements, the waiver law specifically allows states to “cap” the number of persons receiving waiver services. 42 U.S.C. § 1396n(c)(9)-(10). Waiver of statewideness means that states may limit the provision of HCBS services to certain parts of the state as opposed to persons living throughout the state. 42 U.S.C. § 1396n(c)(3).
It is important to note that the federal Medicaid Act does not require states to do create HCBS waivers. As the Medicaid Act states, “a State plan approved under this subchapter may include as „medical assistance‟ under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by” the federal government. 42 U.S.C. § 1396n(c)(1) (emphasis added). Neither does the Medicaid Act require the federal government to approve these programs. The Secretary of the Department of Health and Human Services “may by waiver” allow states to create HCBS programs. Id. (emphasis added).
The Florida Medicaid program does not provide in-home personal care assistance for adults like the Plaintiffs at the level they are seeking. While Florida does provide in-home personal care assistance through its TBI/SCI Waiver, Florida has opted to place a cap on the number of persons enrolled in this program. The TBI/SCI Waiver program had no available opening at the time Plaintiffs applied and they were thus placed on a waiting list. In the Complaint, Plaintiffs do not allege that Florida has violated the Medicaid Act by failing to
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provide them with in-home personal care assistance. However, they are requesting that the Court order Defendants to provide them with such services. Such an order would effectively nullify one or more provisions of the Medicaid Act.
B. Americans with Disabilities Act The ADA became law in 1990. 42 U.S.C. § 12101, et seq. Title II applies to public entities, the definition of which includes the Defendants. 42 U.S.C. § 12131(1). The Title II provision most relevant to this lawsuit, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The regulations implementing Title II of the ADA require a public entity to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 42 C.F.R. § 35.130(b)(7). Thus, where a modification would constitute a fundamental alteration to the service, program, or activity at issue, it is not required under the ADA. In Olmstead, the Supreme Court was faced with the question of whether the proscription of discrimination found in Title II of the ADA may require placement of persons with (mental) disabilities in community settings rather than institutions. See Olmstead, at 587. The Court held that the answer is “a qualified yes.” Id. The Court found that the ADA requires the placement of a person with a disability in community settings
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rather than institutions when (1) the State‟s treatment professionals have determined that community placement is appropriate, (2) the transfer from the institution to the community is not opposed by the individual, and (3) the placement can be reasonably accommodated, taking into account (a) the resources available to the State, and (b) the needs of others with disabilities. Id. Reading Olmstead together with Title II‟s implementing regulations, it is clear that the question of whether a modification constitutes a fundamental alteration must necessarily take into account the resources available (e.g., funding) and the needs of others with disabilities (e.g., the number of persons who must be served with those resources).
Justice Ginsburg‟s opinion in Olmstead suggests that a fundamental alteration would lie where a Court is asked to disrupt a State‟s “comprehensive, effectively working” plan of deinstitutionalization. “If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonablemodifications standard would be met.” Id., at 605-606. Note that this not part of the Court‟s opinion. Only three other justices joined Justice Ginsburg in Part III-B, so this passage is not part of the Court‟s holding. Nor has the Eleventh Circuit Court of Appeals adopted the substance of this provision in any case. As such, while this provision may be instructive, it does not constitute binding law that this Court must follow. Even if Part III-B were part of the Supreme Court‟s opinion, it still remains that this passage does not require a showing of a comprehensive, effectively working plan in order to demonstrate that a
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requested modification would constitute a fundamental alteration. Rather, a comprehensive, effectively working plan is one example of a showing of fundamental alteration1.
C. Analysis of Interplay Between the ADA and the Medicaid Act Plaintiffs‟ claims would require the Court to find that the ADA has invalidated one or more provisions of the Medicaid Act. For example, the Court would have to invalidate the Medicaid Act‟s explicit statement that the only mandatory services are those found at 42 U.S.C. § 1396d(a)(1) through (5), (17), and (21) by converting personal care assistance from an optional service to a mandatory service. 42 U.S.C. § 1396a(a)(10)(A). In the alternative, an injunction order would invalidate the provision in 42 U.S.C. § 1396n(c)(1) declaring that HCBS waiver programs are optional for states and that states can cap enrollment in such programs. It is clear that an inherent assumption of Plaintiffs‟ claim is that the Medicaid Act has been impliedly amended by the ADA. However, the criteria for statutory amendment by implication are not met here. The Supreme Court has held that “[a]mendments by implication, like repeals by implication, are not favored.” United States v. Welden, 377 U.S. 95, 103 (U.S. 1964). In a case where “two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (U.S. 1974). The Medicaid Act and the ADA are capable of co-existence, and the ADA contains no clear congressional intent to amend the Medicaid Act.
1 It should also be noted that the “comprehensive, effectively working plan” described in Olmstead is one of deinstitutionalization, not a plan for ensuring that no individual with a disability ever has to enter an institution.
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Moreover, as to the administration of the Medicaid program, the Medicaid Act is a more specific statute than the ADA. Indeed, the ADA generally prohibits discrimination, while the Medicaid Act ordinarily prohibits discrimination but waives this prohibition in a specific, public health policy context. According to the U.S. Supreme Court, “it is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (U.S. 1976). The more specific statute controls “regardless of the priority of enactment.” Morton, at 551.
The ADA does not amend the Medicaid Act. In fact, however, the Plaintiffs are not even alleging that the ADA has amended the Medicaid Act, but rather that a DOJ regulation has amended the Medicaid Act. Essentially Plaintiffs are arguing that the “integration mandate” changes the entire structure of the Medicaid Act. Of course, no regulation can amend a statute.
Even if it were found that the ADA, or more specifically, the “integration mandate” in its regulations, does in fact amend the Medicaid Act by implication, there is no basis in law or logic to support Plaintiffs‟ position as to the character and effect of that amendment. The Plaintiffs want the ADA‟s prohibition of discrimination to slice into the Medicaid Act and, with surgical precision, add, change, or remove a word or two here and there, leaving the overall structure of the Medicaid Act and the HCBS waiver programs intact. The Plaintiffs, however, fail to provide a rational basis for why the TBI/SCI Waiver program itself would withstand the wrath of the ADA, as the TBI/SCI Waiver program is a service that blatantly discriminates on the basis of disability. The TBI/SCI Waiver program is
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only available to persons with a traumatic brain injury or a spinal cord injury. It is not available to persons with any other sort of disability, such as autism or cerebral palsy, nor is it available to individuals who have no disabilities at all.
In fact, all HCBS waiver programs discriminate in the class of persons they serve. The Medicaid Act permits and contemplates such discrimination. 42 U.S.C. § 1396n(c)(1), (2), (3), (4), and (7). Indeed, regulations of the Centers for Medicare and Medicaid Services (CMS) implementing the Medicaid Act require discrimination on the basis of diagnosis (or disability) in the provision of HCBS services. CMS requires that if a state “furnishes [HCBS] services… under a waiver granted under this subpart, the waiver request must…[b]e limited to one of the following target groups or any subgroup thereof that the State may define: (i) Aged or disabled, or both. (ii) Mentally retarded or developmentally disabled, or both. (iii) Mentally ill.” 42 C.F.R. § 441.301(b)(6) (emphasis added).
The HCBS waiver programs discriminate based on disability in order to provide persons with disabilities services that would not otherwise be available to them. But they still discriminate on the basis of disability. As a result, there are persons with disabilities who are “excluded from participation in or [ ] denied the benefits of” HCBS waiver programs that are targeted to persons with other disabilities. See 42 U.S.C. § 12132. If the ADA‟s prohibition of discrimination “by reason of…disability” amends the Medicaid Act, then the HCBS waiver programs would not survive.
A grant of the relief requested in Plaintiffs‟ Complaint will require a finding that the ADA amends the Medicaid Act by prohibiting a certain kind of discrimination (i.e., institutionalization of persons with disabilities) while permitting another kind of
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discrimination (i.e., creating an HCBS waiver program exclusively for persons with a spinal cord injury). But this is nonsensical. If the ADA trumps Medicaid, it must do so in a comprehensive and coherent way. If the ADA indeed prohibits Florida from denying personal care services in the community, then it must necessarily also prohibit Florida from offering an inherently discriminatory program like the TBI/SCI Waiver program. Because the ADA neither abrogates nor amends the Medicaid Act, the Plaintiffs‟ Complaint fails to state a cause of action upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. III. Plaintiffs’ Claims for Community-Based Personal Care Services under the
ADA and the Rehab Act Fail to State a Claim Upon Which Relief Can Be Granted Because the ADA Does Not Require a Public Entity to Provide Services of a Personal Nature Plaintiffs seek assistance transferring to and from their beds, toileting, and with other activities of daily life. Complaint, ¶ 16, 34. Plaintiffs contend that the ADA requires the provision of such personal care services. This is not the case. Indeed, the ADA regulations specifically exclude personal care services from the ADA‟s purview. Section 35.135 of the ADA‟s implementing regulations states that the ADA “does not require a public entity to provide to individuals with disabilities…services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). It is anticipated Plaintiffs will argue that 28 C.F.R. § 35.135 affords no defense here because § 35.135 only clarifies that Title II does not require a State to provide personal services in programs that do not already provide personal care. Simply stated, such an interpretation of 28 C.F.R. § 35.135 is not an interpretation at all. It is an attempt to carve out an exception to this regulation that is not present in the text.
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The Plaintiffs want this Court to say that the regulation contains an exception for public entities that provide personal care services.
However, 28 C.F.R. § 35.135 could not be clearer: “This part does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). There is no ambiguity or need for interpretation, and there is no exception for public entities that provide personal care services.
Florida is required to administer its services “in the most integrated setting appropriate,” but this cannot be read to require the Florida Medicaid Program to provide “services of a personal nature,” which is precisely the kind of services Plaintiffs are requesting here, because the “integration mandate” is itself from 28 C.F.R. Part 35 (i.e., “[t]his part”), and § 35.135 states that “[t]his part does not require a public entity to provide…services of a personal nature such as eating, toileting, or dressing .” The ADA does not require the provision of these services. Plaintiffs‟ Complaint therefore fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. IV. Plaintiff’s Claim Fails to State a Claim Upon Which Relief Can Be Granted
Because It Would Result in an Impermissible Fundamental Alteration to the Florida Medicaid Program in Violation of the ADA The regulations implementing Title II of the ADA provide that a “public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can
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demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Here, any interpretation that allows the ADA (or its regulations) to trump the Medicaid Act would involve a fundamental alteration of the Medicaid Program. If this Court uses the ADA to convert personal care assistance into a mandatory Medicaid service, it will create federal entitlement to personal care assistance in all 2.7 million Medicaid recipients in Florida. If this Court uses the ADA to make waiver services mandatory and removes states‟ ability to cap the waivers, it will destroy the states‟ reasonably delegated responsibility to ensure the adequacy of its provider networks and to create other safeguards prior to providing community-based services. As far as Defendants are aware, no other court has required a state Medicaid program to expand a waiver based on the ADA or Rehab Act.
While it does not make sense to interpret the ADA to uphold the HCBS waiver programs but prohibit institutionalization of disabled individuals, if the Court were to find that this is what the ADA requires, such would still constitute a fundamental alteration of the Florida Medicaid Program, because the State of Florida would be required by the federal Medicaid Act to provide assurances to CMS that it will provide “necessary safeguards” for a greatly increased number of recipients and “financial accountability for funds expended” for a greatly increased amount of services. 42 U.S.C. § 1396n(c)(2)(A).
A. The Resources of the State and Needs of Others with Disabilities
As noted above, the Olmstead decision would only require the placement of an individual in a community setting as opposed to an institutional one where “the placement can be reasonably accommodated, taking into account the resources available to the State
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and the needs of others with [ ] disabilities.” Olmstead, at 587. Here, the immediate placement of the Plaintiffs in the TBI/SCI Waiver program cannot be reasonably accommodated.
The Plaintiffs argue that it would cost less to provide services in the community than in a nursing home. This is irrelevant. The costs of institutional services and community services are not comparable, because they are independently funded and the Defendants have no authority to transfer funds from one source to the other.2 While institutional services may cost less from an absolute perspective, the Defendants do not have the authority or ability to appropriate funds as they see fit. That authority belongs to the Florida Legislature, which is not and cannot be a party to this case. The Defendants can only utilize the funds appropriated by the Legislature as directed by the Legislature.
When this Court takes into account the available resources, it must look not at all the resources of the State, but those resources of the State which are available to the Defendants for the purposes at hand. The TBI/SCI Waiver is funded both from General Revenue appropriations and from the Brain and Spinal Cord Injury Rehabilitation Trust Fund. 2010 General Appropriations Act, Specific Appropriation 563, Chapter 2010-152, Laws of Florida. For Fiscal Year 2010-2011, the Florida Legislature has authorized a total budget of $12,880,214. Of this, $1,168,470 comes from General Revenue and $11,711,744 from the Brain and Spinal Cord Injury Rehabilitation Trust Fund. See Affidavit of Kristen Russell, dated September 9, 2010. In fact, the TBI/SCI Waiver only has $8,469,066 available for Fiscal Year 2010-2011. Id. As of September 9, 2010, there are currently 341 individuals
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enrolled in the TBI/SCI Waiver. Id. Of these, 28 are funded through the Nursing Home Transition Program. Id. For the remaining 313, it is estimated that their services for FY 2010-2011 will require the full $8,469,066, and, indeed, may run over budget. Id. There would thus be no additional funds to enroll the Plaintiffs (not to mention those individuals above the Plaintiffs on the waiting list) into the TBI/SCI Waiver. Id.
Consistent with the rules and policies governing the TBI/SCI Waiver and the Florida Medicaid Program, Defendants have assessed both Plaintiffs. TBI/SCI Waiver personnel conducted an assessment of Plaintiff Luis Cruz on April 28, 2010. At that time, Plaintiff Cruz received a prioritization score of 86. Id. As of August 19, 2010, there were eight other individuals on the waiting list for the TBI/SCI Waiver Program with the same score as Mr. Cruz. Id. Of these, seven have been on the waiting list longer than Mr. Cruz and are thus considered to have a higher priority. Id. As of August 19 2010, there were 44 individuals on the waiting list for the TBI/SCI Waiver Program with scores greater than 86. Id. TBI/SCI Waiver personnel conducted an assessment of Plaintiff Nigel De La Torre on May 4, 2010. Id. At that time, Plaintiff De La Torre received a prioritization score of 70. Id. As of August 19, 2010, there were 17 other individuals on the waiting list for the TBI/SCI Waiver Program with the same score as Mr. De La Torre. Id. Of these, 16 have been on the waiting list longer than Mr. De La Torre and are thus considered to have a higher priority. Id. As of August 19, 2010, there were 189 individuals on the waiting list for the TBI/SCI Waiver Program with scores greater than 70. Id.
2 The exception to this is the Nursing Home Transition Program, addressed below, which permits AHCA to transfer funds from the nursing home line item to Medicaid HCBS waiver programs. However, such transfers can only be made for individuals who have been in a nursing facility for at least 60 days.
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Whatever the needs of Plaintiffs may be, an analysis of the resources available to the Defendants together with the needs of other individuals with disabilities demonstrates that the relief requested by Plaintiffs cannot be reasonably accommodated. Rather, granting immediate relief to the Plaintiffs would be grossly inequitable given the many individuals on the TBI/SCI Waiver waiting list with greater needs than the Plaintiffs. This would constitute a fundamental alteration to the Florida Medicaid Program.
B. Florida’s Comprehensive and Effective Plan The requested relief would also constitute a fundamental alteration because it would disrupt Florida‟s comprehensive, effectively working plan to place qualified persons with disabilities in less restrictive settings. See Olmstead, at 605-606. As noted, a comprehensive, effectively working plan is not necessary for a showing of fundamental alteration3. However, Florida does in fact have a comprehensive and effectively working plan of deinstitutionalization. This plan has included systematic expansion of Florida‟s HCBS waiver programs over the past 30 years, as well as implementation of the Nursing Home Transition Program, which is specifically tailored to implement the ADA as set forth in the Olmstead decision. The Florida Medicaid Program has consistently expanded its HCBS waiver programs. As shown in the Affidavit of Elizabeth Y. Kidder, dated September 9, 2010, the Florida Medicaid Program administers 14 HCBS waiver programs. These programs began in the 1980s, and have consistently expanded since that time. Florida added new HCBS waiver programs in 1982, 1985, 1989, 1991, 1995, 1998, 1999, 2004, 2006, and 2008. As
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shown in the Affidavit of S. Michele Morgan, dated September 8, 2010, the following HCBS waivers have all expanded over the past four years: the Adult Cystic Fibrosis Waiver, the Alzheimer‟s Disease Waiver, the Developmental Disabilities Waiver (Tier 1), the Family Dysautonomia Waiver, the Family Supported Living Waiver, the Nursing Home Diversion Waiver, and the TBI/SCI Waiver. Indeed, the Florida Medicaid Program now serves more nursing home-eligible persons outside of nursing homes than within them in any given month. See Affidavit of S. Michele Morgan, dated September 8, 2010. The TBI/SCI Waiver program in particular has grown. Implemented in 1999, the TBI/SCI Waiver program expanded from an average monthly caseload of 245 persons (Fiscal Year 20052006) to 309 persons (Fiscal Year 2008-2009). Id. In addition, TBI/SCI Waiver program expenditures have increased from $5,874,815 (Fiscal Year 2005-2006) to $10,066,381 (Fiscal Year 2008-2009). Id. As shown in the September 9, 2010, Affidavit of Kristen Russell, the TBI/SCI Waiver program is operating at full capacity. In addition, the TBI/SCI Waiver program is available to all Medicaid eligible individuals with a traumatic brain injury or spinal cord injury based only on their health needs and position on the waiting list. What is more, the vast majority of the Supplemental Security Income eligible (SSI) population in the Florida Medicaid Program are currently in the community and not in institutions. In Fiscal Year 2008-2009, the Florida Medicaid Program had an average monthly caseload of about 311,000 SSI persons. Affidavit of S. Michele Morgan, dated September 8, 2010. Of those, only about 45,000, or 14%, were residing in nursing facilities in any given month. Id.
3 All that is necessary is a showing that the community placement cannot be reasonably accommodated,
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In addition to this expansion, the Florida Medicaid Program has instituted the Nursing Home Transition Program, which implements the policy of Olmstead. The Nursing Home Transition Program is based upon an appropriation by the Florida Legislature which permits AHCA to transfer funds from the nursing home line item to HCBS waiver programs for the purpose of transitioning appropriate eligible beneficiaries from skilled nursing facilities to community based alternatives. Chapter 2010-152, Laws of Florida; Specific Appropriation 219. AHCA has created a Draft Nursing Home Transition Plan (attached to the Affidavit of Elizabeth Y. Kidder as Exhibit B) to maximize the use of these funds by establishing a process to increase awareness of the Nursing Home Transition Program, identify individuals who wish to transition, assess such individuals for eligibility, and determine whether the Florida Medicaid Program has a HCBS waiver program sufficient to meet their needs. A report outlining the status of the implementation of the Nursing Home Transition Plan is attached to the Affidavit of Elizabeth Y. Kidder, dated September 9, 2010, as Exhibit C.
The Nursing Home Transition Program has been a success so far. For the period from January 1, 2009, to June 30, 2010, a total of 933 individuals were transitioned from nursing facilities to HCBS waiver programs through the Nursing Home Transition Program. See Affidavit of Elizabeth Y. Kidder, dated September 9, 2010. A total of $9,794,744.78 was spent during this period for the transition and HCBS waiver services of these 933 individuals. Id.
taking into account the resources available to the State and the needs of others with disabilities. See Olmstead, at 587.
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AHCA is continuing to expand the Nursing Home Transition Program. This

expansion includes the additions of transition case management and increased home

modifications. The Florida Medicaid Program submitted amendments to add transition case

management and environmental home modifications to certain HCBS waivers to facilitate

successful community transitions. The Centers for Medicare and Medicaid Services

approved those amendments and we are in the process of amending the program handbooks

and contracts to account for this additional service when necessary to assist in transitioning a

recipient. Id.

Because the relief requested under the ADA would fundamentally alter the Florida

Medicaid Program, it is not required by the ADA and Plaintiffs have failed to state a claim

upon which relief can be granted. This Court should dismiss the Complaint pursuant to Rule

12(b)(6), Fed. R. Civ. P.

CONCLUSION

For the reasons stated above, this Court should dismiss Plaintiffs‟ Complaint

pursuant to Rules 12(b)(6), Fed. R. Civ. P. Respectfully submitted this 9th day of September, 2010.

DEPARTMENT OF HEALTH

AGENCY FOR HEALTH CARE ADMINISTRATION

BY: /s/ Morris Shelkofsky Morris Shelkofsky Fla. Bar No. 165186 Assistant General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1703 (850) 245-4005 Email: Morris_Shelkofsky@doh.state.fl.us

BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Steven R. Browning and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 9th day of September, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
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 Case 1:10-cv-23048-UU Document 45 Entered on FLSD Docket 10/01/2010 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

LUIS CRUZ and NIGEL DE LA TORRE,

Plaintiffs,

vs.

CASE NO. 1:10-cv-23048-UU

ELIZABETH DUDEK, in her official Capacity as the Interim Secretary of Florida Agency for Health Care Administration
DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health
Defendants.
_________________________________________/

DEFENDANTS’ REPLY TO PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
The Defendants, ELIZABETH DUDEK, in her official capacity as the Interim

Secretary of the Florida Agency for Health Care Administration (AHCA), and DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of

Health, by and through the undersigned counsel, hereby submit this reply, with incorporated

memorandum of law, to Plaintiffs Luis Cruz and Nigel De La Torre’s response in opposition to the Defendants’ Motion to Dismiss Complaint, and further state as follows:

1. Plaintiffs’ claim that the requested relief would not constitute a fundamental alteration because “Defendants will use Medicaid funds to provide services either in a nursing home or in the community” and “[t]here is nothing in the federal Medicaid statute that prohibits

1

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using [funds from the nursing home line item], if necessary, to provide services to Plaintiffs in the community.”
Plaintiffs imply that Defendants can access the same source(s) of funding whether Plaintiffs are served in a nursing facility or they are immediately placed in the Florida Medicaid Traumatic Brain Injury/Spinal Cord Injury Waiver Program (TBI/SCI Waiver). Defendants have demonstrated that this is not the case. As such, the question is whether it would constitute a fundamental alteration to place Plaintiffs immediately in the TBI/SCI Waiver using the funding specifically allocated to the TBI/SCI Waiver (not the nursing home line item funding, as Defendants do not have the authority to access this funding source for these services). This would require the Defendants to (1) bypass the 51 and 205 individuals, respectively, who are ahead of Plaintiffs on the waiting list; and (2) access a funding source that is already exhausted. This cannot be “reasonably accommodated” and is thus by definition a fundamental alteration.
2. Plaintiffs further indicate that the requested relief would not constitute a fundamental alteration because, “[o]bviously, Defendants have available slots for Plaintiffs.” This fails to take into account the fact that the number of open slots on the waiver is far less than the number of individuals who are above both Plaintiffs on the waiting list. If these “available” slots could be said to be “for” anyone, it would be for those individuals who are highest on the waiting list, not the Plaintiffs.
3. Plaintiffs fail to explain fully the 375 slots and the difference between the cap under the waiver of 375 and the present enrollment of 341. The 375 slots are a number of unduplicated beneficiaries to which the State of Florida intended to provide waiver services on an incrementally increasing basis over each of the five years of the waiver program. The
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current five year program has an inception date of July 1, 2007. As shown by the affidavits of Kristen Russell, the 375 number of unduplicated beneficiaries in the waiver program is projected on the basis of collections in the Brain and Spinal Cord Injury Program (BSCIP) Trust Fund.
The importance of the 375 figure lies in its role in explaining AHCA’s estimate of average per capita expenditures for services over the five year term of the waiver. 42 CFR § 441.303(f). To invoke this number facilely without detailed explanation is problematic. It, 375, is an upper range figure reflecting the State of Florida’s intention based on the BSCIP Trust Fund’s expected collection experience over a five year period. It is fundamentally used as part of the estimated calculation of average per capita expenditure. Plaintiff’s argument fails to deal effectively with the 375 number as part of the calculation of a spending concept dictated by CMS.
The collections experience of the BSCIP Trust Fund on July 1, 2007 is a snapshot in time. At that inception date of the current waiver, the Trust Fund’s collections experience permitted the statement of the State of Florida’s intention of an incremental increase over time at the upper range level of 375. The collections experience permitted expansion of the filled slots from 245 on July 1, 2007, to the present 341 in the second quarter of the fourth year of the five year waiver cycle. See Affidavit of Susan Michele Morgan, ¶ 14. But the projections for the out years (the balance of July 1, 2010-June 11, 2011 and July 1, 2011June 30, 2012) do not support additional placements into the Brain Injury/Spinal Cord Injury Waiver program. See Affidavit of Kristen Russell, ¶12.
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The Plaintiff’s failure to parse the nuances of the 375 cap and its tie to projections of BSCIP Trust Fund collections ignores the fact that average per capita expenditures for services is an estimate. It obscures the clear fact that the 375 figure is a dated figure tied to the July 1, 2007, inception date of the current waiver. This failure overlooks the five year term of the waiver cycle. Finally, it denies the State of Florida the benefit of its expansion of the number of waiver slots in the relatively abundant years of Trust Fund collections and its maintenance of that expanded number of slots into the lean period of such collections in the out years of the five year waiver cycle.
The Court should consider the basic mathematical purpose of the intended number of unduplicated beneficiaries to be served (375) as established in the Code of Federal Regulations. It should recognize the role of this number in explaining AHCA’s estimate of average per capita expenditures for services. Based on this analysis, the Court should reject the baseless assertion that there are available slots for Plaintiffs.
Respectfully submitted this 1st day of October, 2010. AGENCY FOR HEALTH CARE ADMINISTRATION
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
DEPARTMENT OF HEALTH
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BY: /s/ Morris Shelkofsky Morris Shelkofsky Fla. Bar No. 165186 Assistant General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1703 (850) 245-4005 Email: Morris_Shelkofsky@doh.state.fl.us
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Steven R. Browning and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 1st day of October, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
5

 
 Case 1:10-cv-23048-UU Document 47 Entered on FLSD Docket 10/12/2010 Page 1 of 32
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-23048-CIV-UNGARO/SIMONTON
LUIS CRUZ, and NIGEL DE LA TORRE,
Plaintiffs,
v.
ELIZABETH DUDEK, in her official capacity as Secretary, Florida Agency for Health Care Administration,1 and
DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health,
Defendants. /
REPORT AND RECOMMENDATION ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Presently pending before this Court is Plaintiffs’ Motion for Preliminary Injunction
and Expedited Hearing (DE # 2). This motion is referred to the undersigned Magistrate
Judge (DE # 14). The motion has been fully briefed (DE ## 36, 38). On September 14,
2010, the United States of America filed a Statement of Interest (DE # 40). On September 16, 2010, the undersigned held a hearing on the motion.2
In support of their motion, Plaintiffs have submitted: the Declaration of Charlene Harrington, Ph.D., dated September 9, 2010 (DE # 32)3; the Declaration of Luis Cruz,
1 Pursuant to Fed. R. Civ. P. 25, Elizabeth Dudek is automatically substituted as named Defendant as the successor in office to Thomas W. Arnold (DE # 36 at 1 n.1).
2 At a status and scheduling conference held on September 13, 2010, the parties stated that they did not wish to present evidence at the September 16, 2010 hearing because the facts relevant to the motion were not disputed (DE # 41).
3 Charlene Harrington is a Professor Emeritus of Sociology and Nursing at the University of California, San Francisco (DE # 32 at 1, ¶2). She has done extensive research in the areas of nursing care, and home and community services, with an

Case 1:10-cv-23048-UU Document 47 Entered on FLSD Docket 10/12/2010 Page 2 of 32
dated August 5, 2010 (DE # 3); the Supplemental Declaration of Luis Cruz, dated September 9, 2010 (DE # 31); the Declaration of Nigel De La Torre, dated August 5, 2010 (DE # 4); the Declaration of Alejandrina Padro (De La Torre’s mother), dated August 6, 2010, (DE # 5); and the Supplemental Declaration of Nigel De La Torre, dated September 9, 2010 (DE # 30).
In opposition to the motion, Defendants have submitted: the Affidavit of Elizabeth Y. Kidder, dated September 9, 2010 (DE # 33)4; the Affidavit of Kristen Russell, dated September 9, 2010 (DE # 34)5; the Affidavit of Susan Michelle Morgan, dated September 8, 2010 (DE # 35)6 and the Affidavit of Kristen Russell, dated September 16, 2010 (Defendants’ Exhibit 1, admitted into evidence at the 9/16/10 Evidentiary Hearing).
For the reasons stated below and stated on the record at the oral argument, the undersigned Magistrate Judge recommends that Plaintiffs’ motion for preliminary injunction be granted.
I. Introduction 1. Plaintiffs Luis Cruz and Nigel De La Torre are both Florida residents with spinal cord injuries suffering from quadriplegia. Plaintiffs are both Medicaid recipients who reside in the community and wish to continue to do so. Plaintiffs could live in the community with appropriate Medicaid-funded services. Plaintiffs are at risk of being
primary emphasis on Medicaid funded programs and services (DE # 32 at 2, ¶3). 4 Elizabeth Y. Kidder is employed by the Florida Agency for Health Care
Administration (“AHCA”) as the Bureau Chief for Medicaid Services, and oversees all of Florida’s home and community based (“HCBS”) programs, including the Traumatic Brain Injury/Spinal Cord Injury Waiver Program (DE # 33-1 at 1-2, ¶¶1, 2).
5 Kristen Russell is employed by the Florida Department of Health as the Medicaid Waiver Administrator for the Program (DE # 34-1 at 2, ¶1; Deft. Ex. 1 at 1, ¶1).
6 Susan Michelle Morgan is employed by AHCA as the Bureau Chief for Medicaid Program Analysis, and her bureau is responsible, inter alia, for retaining and tracking date relating to HCBS waivers (DE # 35-1 at 1-2, ¶¶1, 2).
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forced to enter a nursing home because Defendants do not provide adequate community-based services. Defendants limit community-based Medicaid services to 375 persons with spinal cord injuries, even though, as of December 2009, there were about 605 other persons with spinal cord injuries on a wait list for community-based Medicaid services under the Traumatic Brain Injury/Spinal Cord Injury waiver program (DE # 1).
2. Defendant Elizabeth Dudek is sued in her official position as Secretary, Florida Health Care Administration (AHCA). Defendant Dr. Ana Viamonte Ros is sued in her official position as Surgeon General, Florida Department of Health.
3. Plaintiffs are proceeding under a two-count Complaint, contending that Defendants have violated Title II of the Americans with Disabilities Act (hereafter ADA), 42 U.S.C. § 12132, et seq. (Count 1), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and 28 C.F.R. § 41.51(d) (Count 2), by failing to administer Medicaid in the most integrated setting appropriate to Plaintiffs and by unlawfully discriminating against Plaintiffs by improperly denying Medicaid funding for the in-home health services that Plaintiffs require to avoid being placed in nursing homes against their will. Plaintiffs also allege that Defendants cannot meet their burden of proving their affirmative defense that providing these community-based services to Plaintiffs is a fundamental alteration of Defendants’ programs. Plaintiffs seek declaratory and injunctive relief ordering Defendants to provide community-based Medicaid services which will allow Plaintiffs to continue to reside in the community rather than enter a nursing facility (DE # 1).7
7 Plaintiffs are proposed class Plaintiffs in Jones v. Arnold, Case No. 3-09-cv1170-J-34JRK, pending in the Middle District of Florida (DE # 1 at 1, ¶2). Specifically, in Jones, the named Plaintiff filed a motion to add Mr. Cruz and Mr. De La Torre as named Plaintiffs. However, that motion was denied without prejudice due to a pending motion to dismiss. Plaintiffs Cruz and De La Torre then filed the present action in the Middle District of Florida, and subsequently the case was transferred to this Court (DE # 10).
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II. Findings of Fact8 Since the facts in this case must be viewed in the context of the regulatory framework of the Medicaid Act and Title II of the Americans With Disabilities Act (“ADA”), it is useful to describe those provisions at the outset. Title II of the ADA, which prohibits discrimination against individuals with disabilities by public entities, specifies that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The regulations promulgated by the Department of Justice (“DOJ”) to implement the ADA contain what is commonly referred to as the “integration mandate.” Those regulations provide that “a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. § 35.150(d). The preamble to the regulations describe “the most integrated setting” as one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A. The Medicaid program is a medical assistance program funded by the federal and state governments. 42 U.S.C. § 1396 et seq. In order to participate in the Medicaid program, a state must submit a plan to the federal government outlining its program. If approved, the federal government then subsidizes a portion of the program. See Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997). The Medicaid Act lists twenty-eight services
8 Any Findings of Fact that are more properly considered to be Conclusions of Law shall be treated as such, and vice versa. Where citations with respect to certain facts are made to the Motion, the pages of the Motion cited are supported by specific references to the applicable paragraphs of the Declarations of Plaintiffs.
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which may be provided by the State as part of its plan, but makes only seven of those services mandatory for inclusion in the State’s plan. 42 U.S.C. § 1396a(a)(10)(A). The mandatory services include inpatient and outpatient hospital care, laboratory and x-ray services, nursing facility services, nurse-midwife services, and certified nurse practitioner services. 42 U.S.C. § 1396a(a)(10(A). Thus, as stated by Defendants, Florida is required by federal law to make nursing facility services available if those services are medically necessary for individuals who are qualified to participate in the Medicaid program (DE # 36 at 7). Moreover, as stated by defense counsel at the hearing, if the money budgeted by the State for nursing facility services is inadequate to meet the needs of all qualified participants, the State must allocate additional money from other sources to meet this need.
In addition to the Medicaid Services offered under a State’s plan, a State may enter into an agreement with the federal government to offer services under a waiver program, such as the Home and Community Based Services (“HCBS”) waiver program. 42 U.S.C. § 1396n(c). Waiver programs allow states to provide home and community based services to individuals with disabilities who would otherwise require the level of care provided in institutions such as nursing homes (DE # 40 at 4 n.5). Under waiver programs, such as the Traumatic Brain Injury/Spinal Cord Injury (“TBI/SCI”) Waiver program at issue in the case at bar, the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation in the State’s plan. 42 U.S.C. § 1396n(c)(3). One of the requirements waived is the “comparability” requirement that requires state plans to offer services of all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396(a)(10)(B). In addition, a State is permitted to “cap” the number of persons receiving waiver services,
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42 U.S.C. § 1396n(c)(9)-(10); and, may elect not to offer such waiver services on a statewide basis. 42 U.S.C. § 1396n(c)(3). However, a state may submit a request to amend its cap if necessary, for example, to comply with the provisions of the ADA (DE # 40 at 15 n.17, and Ex. 6).
A. Facts as to Plaintiff Luis Cruz 4. Plaintiff Cruz was born in 1957. On March 6, 1992, he was in a car accident, and required hospitalization for a year for a spinal cord injury (DE # 2 at 2, ¶1). 5. Plaintiff Cruz is a qualified person with a disability, within the meaning of the ADA, in that he has quadriplegia (C-2/C-7), is paralyzed from the neck down, and cannot use his hands or fingers. He uses a wheelchair for mobility (DE # 2 at 2, ¶2). 6. Plaintiff Cruz lives alone in an accessible apartment in Miami, Florida, with a shower that has a bench attached to the wall for him to sit on. He requires assistance with all activities of daily living, including help transferring to and from bed and to and from a toilet, bathing, cooking and shopping for food. He wears a special condom catheter which connects to a urinary bag (DE # 2 at 2, ¶3). 7. Plaintiff Cruz has lived in the community since the March 6, 1992 car accident. He was married prior to the accident, and was divorced in 1997. For nearly five years after he became paralyzed, Cruz lived in institutions. He was in Florida’s Adult Congregate Living Facilities and was in a mental hospital for severe clinical depression. In the Adult Congregate Living Facilities, he was forced to share a room with four or five persons and had no privacy. (DE # 2 at 2, ¶4). 8. Plaintiff Cruz desires to continue to reside in his own apartment and community instead of entering a nursing facility. If Cruz enters a nursing facility, he will not be able to afford to pay rent and will lose his apartment. There are very few
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accessible apartments that Cruz can afford, and he does not want to lose the apartment in which he has resided for the past 12 years (DE # 2 at 2-3, ¶5).
9. Plaintiff Cruz is eligible for and receives Medicaid assistance. In January 2006, he applied to Defendants for Spinal Cord Waiver services. Since then, he has been on a waiting list (DE # 2 at 3, ¶6; DE # 31 at 2, ¶7).
10. Since January 2010, Plaintiff Cruz has been hospitalized approximately five times. Florida’s Medicaid assistance paid for those hospitalizations. During two of his hospitalizations, he was a patient for 40 days and then 30 days because he had developed a bedsore. At the time the instant motion was filed, Cruz was hospitalized after his leg became caught in his wheelchair and he fell, breaking his tibia. He was discharged from the hospital on August 20, 2010. All of his hospitalizations in 2010 were either directly or indirectly a result of not receiving adequate in-home health care services (DE # 2 at 3, ¶7; DE # 31, at 1, ¶1).
11. While Plaintiff Cruz was hospitalized in March, 2010, he telephoned Defendants’ Spinal Cord Injury Waiver program and again requested services. Cruz spoke to Beth Herra, who told him that there were no funds available in the Waiver program, but if he went into a nursing home for 90 days, he would then receive Waiver services. During another hospitalization, Cruz telephoned Defendants’ Medicaid Waiver office regarding the availability of waiver services, but no one there could tell him what waiver services would be provided in the community if he did not enter a nursing home. Cruz has averred that he will not enter a nursing home. He wants to continue residing in the community and could do so with appropriate waiver services provided with Medicaid funds (DE # 2 at 3, ¶8).
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12. At present, Defendants’ Medicaid program pays HealthMed, a private homehealth agency, for assistance with Plaintiff Cruz’s daily living. Cruz receives one hour per day of skilled nursing care and three hours per day of home health aide services. However, these are not sufficient to meet many of his living activities. During his most recent hospitalization, Cruz was told that on release, he would receive four hours per day of personal care assistance and one hour of registered nurse care. However, when he was released, he was told that the maximum is a total of four hours a day for personal care assistance and registered nurse care combined (DE # 2 at 3-4, ¶9; DE # 31 at 1-2, ¶¶2-3).
13. Plaintiff Cruz needs help with the following daily needs: transferring from bed to wheelchair (5-10 minutes); transferring from wheelchair to toilet (5-10 minutes); toileting (30-50 minutes); shaving (10 minutes); eating (each meal is 30-45 minutes); condom catherization and urinary bag (several times a day, each time is 20-30 minutes); dressing (45 minutes in the morning and 20 minutes in the evening); and range of motion exercising (1.5 hours). Cruz also needs help with: housekeeping, including sweeping, mopping and washing dishes (1 hour); meal preparation (three times a day); grocery shopping and laundry (because Cruz’s urinary catheter leaks, his clothes need to be frequently washed) (DE # 2 at 4, ¶10),
14. Since Plaintiff Cruz has returned home, the three hours of home health care he receives are not adequate to provide for all his needs. For example, there is not sufficient time to perform laundry, meal preparation and house cleaning tasks. In the morning, Cruz has to try to use the bathroom, take a shower and get dressed in less than an hour, which is rushed and often not completed. Sometimes he does not have enough time to take a bowel movement. Furthermore, due to lack of services,
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sometimes Cruz has to stay in his wheelchair while he sleeps at night. Cruz worries that he will develop another pressure sore from sleeping in his wheelchair. However, Cruz would rather develop ulcers and even die than return to a nursing home (DE # 31 at 2-3, ¶¶5, 6, 8) .
15. Plaintiff Cruz has no family or other informal support to assist with any of these activities of daily living. Because he does not receive an adequate number of hours of assistance, he has, on occasion, fallen from his wheelchair and stayed on the floor until the next day, when someone arrived to assist him. On one occasion, he slept on the bathroom tile floor for about 36 hours when the person scheduled to provide assistance did not arrive. Cruz has also slept in his wheelchair and has urinated on himself when his leg bag was not emptied and overflowed because no one was available to assist him (DE # 2 at 4, ¶11).
16. Plaintiff Cruz does not want to go into a nursing home but wants to continue residing in the community where he has an active life. Without community-based Spinal Cord Waiver services, he is at significant risk of being institutionalized (DE # 2 at 4, ¶12).
17. Plaintiff Cruz avers without contradiction that he is thriving in the community. He has volunteered with Park and Recreation officials from several counties to train their employees about how to interact with people with spinal cord injuries and also with children who have mental illness. Cruz has also volunteered with an aquatic program for people with disabilities to overcome their fears of swimming by showing them how they could swim, and has given seminars for medical and physical therapy students at the University of Miami and Florida International University, for their fertility programs (DE # 2 at 5, ¶13).
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18. Plaintiff Cruz socializes with neighbors and friends and goes out for meals and movies. He visits friends and watches sports with them on television (DE # 2 at 5, ¶14).
19. While Defendants do not dispute that Plaintiff Cruz is at significant risk of institutionalization, he has not been offered Spinal Cord Injury waiver services with sufficient hours of personal care assistance so he can remain safely in the community (DE # 2 at 5, ¶15).
20. Plaintiff Cruz has been eligible for both Florida’s Medicaid nursing home services and waiver services since he broke his spine, and Cruz continues to meet Florida’s level of care for nursing home eligibility (DE # 2 at 5, ¶16).
21. Persons in the United States with Plaintiff Cruz’s level of disability receive a mean amount of 85.9 hours of personal assistance per week. Plaintiff Cruz receives 21 hours of paid home health care per week. This is far below what other persons with similar levels of disabilities require to reside safely in the community (DE # 32 at 5, ¶¶15, 16, 18, 20).
B. Facts as to Plaintiff Nigel De La Torre 22. Plaintiff De La Torre was born in Cuba in 1983. He came to the United States in 1991 with his mother and brother, and lives in Miami, Florida. In July 2007, De La Torre was shot and robbed. As a result of the shooting, he is paralyzed (DE # 2 at 5, ¶¶17-18). 23. Plaintiff De La Torre is a qualified person with a disability in that he has quadriplegia, is paralyzed from the chest down, and cannot use his hands or fingers. He uses a motorized wheelchair, and lives in an apartment with an accessible bathroom (DE # 2 at 5-6, ¶18).
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24. In October 2007, during Plaintiff De La Torre’s five-month hospitalization in Jackson Memorial Hospital in Miami, his mother applied for Spinal Cord Injury Waiver services. For almost two and a half years, De La Torre has been on the waiting list for in-home Spinal Cord Injury Waiver services (DE # 2 at 6, ¶19; DE # 5 at 1, ¶2; DE # 30 at 3, ¶11).
25. On a number of occasions, Plaintiff De La Torre has telephoned and contacted the Florida Spinal Cord Injury Waiver program because he needs the services provided under the Waiver program to continue living in the community. For example, on May 10, 2010, he telephoned the Spinal Cord Waiver program and was told that there were no funds to provide him with Waiver services, and that he would be sent something in writing to confirm this. However, De La Torre has not received anything or heard from the Spinal Cord Waiver program since then (DE # 2 at 6, ¶20).
26. Until Plaintiff De La Torre started receiving two hours a day of personal care from Nurse Care early in 2010, his mother was his only care giver. This was in addition to her full time job as a therapist (DE # 5 at 1, ¶3)
27. At present, Defendants’ Medicaid Assistance state agency pays Nurse Care, a private home-health agency, for one hour of personal care assistance in the morning and one hour at night for Plaintiff De La Torre. Nurse Care will provide a maximum of four hours a day of services. De La Torre’s Nurse Care coordinator is Rosie Nieves, with whom De La Torre has regularly discussed his need for more personal care assistance. Nieves has told De La Torre that he needs much more help than Medicaid Assistance can provide, including homemaker and respite services, as well as skilled care to change his catheter and suppository (DE # 2 at 6, ¶21; DE # 30 at 1, ¶1).
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28. Beginning on September 2, 2010, Plaintiff De La Torre started to receive registered nursing care for his catherization (DE # 30 at 2, ¶5).
29. Rosie Nieves recently requested an increase in the amount of personal care for Plaintiff De La Torre, but this request was denied, even though on July 26, 2010, De La Torre’s treating doctor recommended that he receive four hours of home care per day (DE # 30 at 1, ¶¶2-4).
30. In the past, Plaintiff De La Torre’s mother provided many hours of personal care assistance, including changing De La Torre’s catheter and administering a suppository to him every other day. On September 8, 2010, Plaintiff De La Torre’s mother moved to Spain, where De La Torre’s stepfather has lived for months. De La Torre’s 21-year-old brother provides some assistance, but he has enlisted in the Marines and is waiting to be called to active duty. In addition, De La Torre’s brother is often not at home. Thus, De La Torre frequently has no one to provide the care he needs and is at imminent risk of going into a nursing facility, even though he does not want to enter one (DE # 2 at 6-7, ¶¶22, 23; DE # 5 at 1,2, ¶5, ¶8; DE # 30 at 2, ¶¶6-7, 12).
31. Plaintiff De La Torre requires assistance with all activities of daily living. He is over six feet tall and weighs 200 pounds. Due to his size, he is not easy to lift or transfer. Although his mother often helped with transferring him to and from his wheelchair to his bed, when no one else was available to help, she injured her back and elbow doing so. It was also very difficult for his mother to turn him at night so that De La Torre did not develop bedsores (DE # 2 at 7, ¶24; DE # 5 at 1, ¶4).
32. Plaintiff De La Torre requires help with the following daily needs: transferring from bed to shower chair and then back to bed (20 minutes); showering and being washed (30-45 minutes); shaving (10-15 minutes); brushing teeth and other oral hygiene
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(15 minutes); skin maintenance (5 minutes); eating (each meal is 30-45 minutes); bowel program (1.5 hour); catheter (several times a day); dressing (30-45 minutes in the morning and 20 minutes in the evening); transferring in the evening and after shower in the morning (20 minutes); and range of motion exercise (45 minutes). De La Torre also wants to stand in a “Standing Frame” machine for an hour per day, which will require assistance (DE # 2 at 7, ¶25). Now that his mother has moved to Spain, De La Torre needs help with: housekeeping; meal preparation; grocery shopping and laundry (DE # 2 at 7, ¶26; DE # 5 at 1, ¶6).
33. Even though Plaintiff De La Torre has a Medicaid reimbursed personal attendant for one hour in the morning and one hour in the evening from Nurse Care, two hours a day is not adequate to meet his needs and fully assist him (DE # 2 at 7, ¶27).
34. At times during the day, when his mother was at work and no one was available to assist him, Plaintiff De La Torre’s bladder filled and he was not able to have it catheterized. De La Torre has had one urinary tract infection and is afraid of contracting another one (DE # 2 at 7, ¶28).
35. During the day, Plaintiff De La Torre needs assistance transferring from his wheelchair to the toilet so he can have a bowel movement. If no one is available and he has a bowel movement, he will sit in soiled clothing until he gets assistance (DE # 2 at 8, ¶29). Also, when no one is available to assist him during the day, De La Torre is unable to prepare lunch, take medication in the order prescribed or go to medical appointments, and also cannot accomplish other activities of daily living (DE # 2 at 8, ¶30).
36. Nurse Care has told Plaintiff De La Torre that only the Spinal Cord Injury Waiver program can offer the number of hours he needs, including assistance with
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shopping, cleaning and food preparation, and paying for an air mattress pump which will lessen his chance of developing pressure sores (DE # 30 at 3, ¶¶8-10).
37. Crediting his Declaration, Plaintiff De La Torre does not want to reside in a nursing home. He is young, and very much enjoys the freedom he has by living in the community. He goes fishing with friends, as well as to the movies and to malls. He participates in many other activities with friends who visit him, such as playing dominoes and watching movies on television (DE # 2 at 8, ¶¶34-35; DE # 30 at 3, ¶12).9
38. Now that his mother has moved to Spain, Plaintiff De La Torre is afraid he will have to enter a nursing facility to receive the same services he could receive in the community through the Spinal Cord Injury Waiver. Even though De La Torre is at imminent risk of institutionalization, the State of Florida Medicaid program has not offered any increased services so that he can remain in the community (DE # 2 at 8, ¶36).
39. De La Torre has been on the Spinal Cord Injury Waiver waiting list since March, 2007. On May 10, 2010, Plaintiff De La Torre telephoned the Spinal Cord Medicaid Waiver program regarding waiver services, but no Waiver services have been provided to him and no one at the Spinal Cord Waiver office could tell De La Torre when services would be provided for him in the community. Defendants’ Medicaid program will only provide the services De La Torre needs by paying for his institutionalization in a nursing facility (DE # 2 at 8-9, ¶37).
40. Persons in the United States with Plaintiff De La Torre’s level of disability receive a mean amount of 118.5 hours of personal assistance per week. Plaintiff De La Torre receives 14 hours of paid home health care per week. This is far below what other
9 Plaintiffs’ motion is missing paragraphs 31 through 33. See DE # 2 at 8. 14

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persons with similar levels of disabilities require to reside safely in the community (DE # 32 at 5, ¶¶15, 17, 18, 20).
C. Facts Relating to Defendants’ Spinal Cord Injury Waiver Program 41. The State of Florida’s Traumatic Brain Injury/Spinal Cord Injury Waiver Program (hereafter “the Program”), is funded both from General Revenue Appropriations and from the Brain and Spinal Cord Injury Rehabilitation Trust Fund. For the current fiscal year, the Program has a total budget of $12,880,214, with $1,168,470 coming from General Revenue and $11,711,744 from the Brain and Spinal Cord Injury Rehabilitation Trust Fund (DE # 36 at 21). However, the Program is projected to have only $8,469,066 available for the current fiscal year (DE # 34-1, at 3, ¶10; DE # 36 at 21). 42. The Program was implemented in 1999 and has expanded from an average monthly caseload of 245 persons in Fiscal Year 2005-06 to an average monthly caseload of 309 persons in Fiscal Year 2008-09. Program expenditures have increased from $5,874,815 in Fiscal Year 2005-06 to $10,066,381 in Fiscal Year 2008-09 (DE # 36 at 24). 43. The Program is presently operating at full capacity, at least in terms of its funding (DE # 36 at 24). 44. As of September 9, 2010, there are 341 individuals enrolled in the Program. Twenty-seven of these individuals are funded through the Nursing Home Transition
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Program.10 It is estimated that costs relating to the remaining 313 individuals will require the full $8,469,066 and may run over budget (DE # 36 at 21; Deft. Ex. 1 at 2, ¶2).
45. On April 28, 2010, the Program assessed Plaintiff Cruz, giving him a prioritization score of 86. As of August 19, 2010, there were eight other individuals on the waiting list for the Program with the same score, seven of whom have been on the waiting list longer than Cruz and, thus, have a higher priority. As of August 19, 2010, there were 44 individuals on the waiting list with scores greater than 86 (DE # 36 at 22).
46. On May 4, 2010, the Program assessed Plaintiff De La Torre, giving him a prioritization score of 70. As of August 19, 2010, there were 17 other individuals on the waiting list for the Program with the same score, 16 of whom have been on the waiting list longer than De La Torre and, thus, have a higher priority. As of August 19, 2010, there were 189 individuals on the waiting list with scores greater than 70 (DE # 36 at 22).
47. There are 602 persons currently on the waiting list for the Program. Fifty-two of them are currently in a nursing facility (Deft. Ex. 1 at 2, ¶3).
48. In most cases, when a Medicaid recipient is diverted or transitioned from a nursing facility to a HCBS waiver program, costs to Medicaid for providing care to that individual are reduced (DE # 35-1 at 3, ¶15).
10 As described infra., the Nursing Home Transition Program is funded by the Florida Legislature through a nursing home line item, and permits the State to transfer persons who have been in a nursing home for at least 60 consecutive days into a HCBS waiver program, such as the TBI/SCI waiver program at issue in the case at bar (DE # 33, Ex. 1 at ¶7-10). It provides a separate source of funding, and thus individuals such as Plaintiffs in the case at bar, can enter the TBI/SCI waiver program after spending 60-days in a nursing home, although they would otherwise be barred from the TBI/SCI waiver program due to funding constraints.
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D. Facts Relating to Defendants’ Nursing Home Transition Program 49. The Nursing Home Transition Program is based upon an appropriation by the Florida Legislature which permits AHCA to transfer funds from the nursing home line item to the various Home and Community Based (HCBS) waiver programs for the purpose of transitioning the greatest number of appropriate eligible beneficiaries from skilled nursing facilities to community based alternatives (DE # 36 at 25). 50. The Nursing Home Transition Program becomes available after an individual has spent 60 days in a nursing home (DE # 36 at 16). 51. For the period from January 1, 2009 to June 30, 2010, 933 individuals were transitioned from nursing facilities to all HCBS waiver programs through the Nursing Home Transition Program. A total of $9,794,744.78 was spent during this period for the transition and waiver services relating to the 933 individuals (DE # 36 at 25). For budgeting purposes, AHCA assumes that it costs the same to have two persons diverted from a nursing home into a HCBS waiver program, as it does to have one person remain in a nursing home (DE # 35-1, at 3-4, ¶16). The average per capita rate at which Medicaid reimburses nursing homes for Medicaid services is $6,276.00 per month; whereas the average monthly cost of services in the TBI/SCI waiver program during 2008-2009 was $2,361.47 (DE # 40 at 5-6). 52. AHCA has created a Draft Nursing Home Transition Plan to maximize the use of these funds, to increase awareness of the Nursing Home Transition Program, to identify individuals who wish to transition, assess such individuals for eligibility, and determine whether Florida Medicaid has a HCBS waiver program sufficient to meet their needs (DE # 36 at 25).
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III. Conclusions of Law A party seeking a preliminary injunction must establish four elements: 1) a substantial likelihood that it will prevail on the merits of its claim; 2) a substantial threat that it will suffer irreparable harm; 3) that the threatened injury to movant outweighs any threatened harm to the alleged respondent; and 4) that granting the preliminary injunction would serve the public interest. Horton v. St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001) (citing Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)). When a motion for preliminary injunction goes beyond seeking to maintain the status quo, and seeks some relief beyond the status quo, it becomes an affirmative or mandatory injunction, and the burden placed on the moving party is increased. See Mercedes-Benz U.S. Int’l, Inc. v. Cobasys, LLC, 605 F.Supp.2d 1189, 1196 (N. D. Ala. 2009). Mandatory preliminary injunctions are disfavored. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).11 A mandatory preliminary injunction should not be granted unless the facts and law are clearly in favor of the moving party. Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F.2d 560, 561 (5th Cir. 1971). The parties disagree as to the nature of the relief sought. Plaintiffs contend that because they seek to prohibit unlawful discrimination, the injunctive relief they seek is prohibitive in nature and does not seek to change the status quo. Defendants contend that because Plaintiffs do not presently qualify for the Program, and ask this Court to order Defendants to provide them with the services provided to individuals in the Program, Plaintiffs seek to change the status quo by requiring Defendants to act. The
11 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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undersigned has determined that Plaintiffs have satisfied the heightened burden of demonstrating their entitlement to mandatory preliminary injunction relief, relying on the District Court’s ruling in Haddad v. Arnold, Case No. 3:10-cv-414-J-99MMH-TEM, at DE # 49 (M.D. Fla. Jul. 9, 2010) (hereafter Haddad). Therefore, the undersigned need not resolve the parties’ dispute as to the applicable standard.
A. Plaintiffs Have Shown a Clear Likelihood of Success on the Merits To establish a violation of Title II of the ADA, Plaintiffs must prove that they, are 1) both qualified individuals with a disability; 2) who were either excluded from participation or denied the benefits of the public entity Defendants’ services, programs or activities or were otherwise discriminated against by Defendants; and 3) such exclusion, denial of benefits or discrimination was by reason of Plaintiffs’ disabilities. See Raines v. Florida, 983 F.Supp. 1362, 1371 (N.D. Fla. 1997). It is undisputed that both Plaintiffs are qualified individuals with disabilities. In Olmstead v. Zimring, 527 U.S. 581 (1999), the United States Supreme Court expressly held that the anti-discrimination provisions of the Americans with Disabilities Act may, in some circumstances, require the placement of persons with disabilities in community settings rather than in institutions. Specifically, the Court stated: “Such action is in order when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”12 527 U.S. at 587.
12 The disability at issue in Olmstead was a mental disability; however, the nature of the disability is not material to the analysis.
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In reaching this result, the Court first reviewed the Congressional findings and
definitions contained within the ADA, emphasizing the express Congressional purpose
in eliminating all forms of discrimination against persons with disabilities, including
“discrimination against individuals . . . in such critical areas as . . . institutionalization.”
527 U.S. at 588-89, quoting 42 U.S.C. § 12101(a)(3). The Court then noted that Congress
had instructed the Attorney General to issue regulations implementing the ADA, and that
pursuant to this statutory authority, the Attorney General had promulgated 28 C.F.R. §
35.130(d), which requires recipients of federal funds to “administer programs and
activities in the most integrated setting appropriate to the needs of qualified
handicapped persons.” 527 U.S. at 592. In this context, the Court noted:
The preamble to the Attorney General’s Title II regulations defines “the most integrated setting appropriate to the needs of qualified individuals with disabilities” to mean “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p. 450 (1998). Another regulation requires public entities to “make reasonable modifications” to avoid “discrimination on the basis of disability,” unless those modifications would entail a “fundamenta[l] alter[ation]; called here the “reasonable-modifications regulation,” it provides:
“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7) (1998).
With these provisions in mind, the Court turned to their application in the context
of the case at hand.13 The plaintiffs in Olmstead were institutionalized due to their
13 The Court noted, however, that although the parties had disputed the proper construction of these regulations, they had not challenged their validity, and therefore
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mental disabilities. They claimed that the State’s failure to place them in a community based program, with the ultimate goal of integrating them into the mainstream of society, violated Title II of the ADA. The District Court granted partial summary judgment in favor of the mentally disabled plaintiffs, holding that the State had violated the ADA, and rejected the State’s defense that inadequate funding, rather than discrimination, was the reason for retaining the plaintiffs in an institution. The District Court also rejected the State’s defense that, since the State was already using all available funds to provide services to other persons with disabilities, requiring immediate transfers would “fundamentally alter” the State’s activities. On appeal, the Eleventh Circuit affirmed the judgment of the District Court, but remanded for a reassessment of the State’s cost based defense. The Eleventh Circuit held that the District Court erred in absolutely ruling out lack of funding as a defense, stating that the State could prevail on this theory if it could prove that requiring it to provide community based integrated services to the plaintiffs would cost so much that, given the demands of the State’s mental health budget, it would fundamentally alter the services provided by the State.
On review, the Supreme Court affirmed the Eleventh Circuit in substantial part, stating:
Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States’ need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States’ obligation to administer services with an even hand. Accordingly, we further hold that the Court of Appeals’ remand instruction was unduly restrictive. In evaluating a State’s fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides
the Court did not expressly determine their validity. 527 U.S. at 592. 21

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others with mental disabilities, and the State’s obligation to mete out those services equitably. 527 U.S. at 597. Justice Stevens joined the opinion of the Court up to this point, but would have simply affirmed the decision of the Eleventh Circuit to remand the case to the District Court for consideration of the fundamental-alteration defense. A plurality of four justices then explained how a state could meet its burden of establishing this defense. Specifically, the plurality recognized: To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. 527 U.S. at 606. Although Olmstead involved plaintiffs who were seeking to be removed from institutions, the holding applies equally to plaintiffs who are seeking to avoid institutionalization. See Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003). In Fisher, the plaintiffs, in a community-based Medicaid program, objected to their limit of five prescriptions per month, regardless of medical necessity, while individuals in nursing homes had no limit on their prescriptions. The plaintiffs contended that imposition of this limit would force them into nursing homes to obtain medically necessary care. Id. at 1177-78. The appellate court rejected the defendants’ argument that the plaintiffs could not make an integration mandate challenge until they were placed into the nursing homes, reasoning that the protections of the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or
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policy that threatens to force them into segregated isolation.” Id. at 1181. Accord Haddad, at 20 (granting a preliminary injunction to a plaintiff who was at risk of institutionalization); Mario M. v. Cansler, 679 F.Supp.2d 635, 637 (E.D.N.C. 2010) (granting preliminary injunction where the plaintiffs were at risk of institutionalization).
Following Olmstead, District Courts in both the Middle District of Florida and the Northern District of Florida have granted preliminary injunctive relief in circumstances almost identical to those presented here. In Haddad, supra., the Court in the Middle District of Florida entered a preliminary injunction which required Florida to provide the quadraplegic plaintiff with services under the TBI/SCI waiver program. Plaintiff Haddad, like Plaintiffs in the case at bar, was a quadriplegic who had applied to receive Medicaid services under Florida’s TBI/SCI Waiver program, and was placed on a waiting list. Defendants in Haddad, as in the case at bar, took the position that there were no funds for in-home services under the Waiver program, but that if she resided in a nursing home for at least 60 days, she would be eligible to receive in-home services through Florida’s Nursing Home Transition Plan. Plaintiff Haddad, like Plaintiffs in the case at bar, claimed that Defendants were discriminating against her on the basis of her disability, in violation of the ADA. In a lengthy and thorough opinion, relying primarily on Olmstead, the District Court agreed and granted Plaintiff Haddad’s motion for a preliminary injunctive relief. Specifically, the Court found that the ADA requires states to provide community based treatment for persons with disabilities when: 1) the state’s treatment professionals have determined that community based services are appropriate for an individual; 2) the individual does not oppose such services, and 3) the services can be reasonably accommodated, taking into account a) the resources available to the state and b) the needs of others with disabilities. Haddad op. at 21, citing Olmstead, 527 U.S.
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581, 602-04; Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 379-80 (3d Cir. 2005); Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pa., 364 F.3d 487, 493 (3d Cir. 2004); Fisher, 335 F.3d at 1181.
The United States District Court for the Northern District of Florida reached the same result in Long v. Benson, No. 4:08cv26-RH/WCJ, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008), and entered a preliminary inunction which required Florida to provide the paralyzed plaintiff, who was on a waiting list for an unspecified Medicaid waiver program, with four hours of personal attendant care per day, isolated emergency personal attendant care, and the same outside medical care that would be covered if Plaintiff was in a nursing home. Moreover, the Eleventh Circuit Court of Appeals summarily affirmed the preliminary injunction entered by the District Court in Long, finding no abuse of discretion. Long v. Benson, No. 08-16261, 2010 WL 2500349 (11th Cir. Jun. 22, 2010).
In the case at bar, it is clear that Plaintiffs are at risk of institutionalization if they do not receive the services available under the TBI/SCI Waiver Program. Both Plaintiffs in the case at bar are individuals with disabilities who are eligible to and do receive services from Florida’s Medicaid program. Each Plaintiff desires to and is able to live in their own home with adequate support services. However, because of the way Florida administers its Medicaid program, they are at risk of institutionalization. Plaintiff De La Torre has recently lost his caregiver, and without additional community-based services from Florida’s Medicaid plan, he will have to enter a nursing home to receive the services he needs to survive. Plaintiff Cruz is also at risk of institutionalization, as demonstrated by his repeated hospitalizations in recent months due to the fact that he does not receive adequate services from Florida’s Medicaid plan. At the hearing,
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Defendants conceded that Plaintiffs are qualified persons with disabilities who want to and are able to receive community-based services from Florida’s Medicaid plan. Defendants, however, contend that Plaintiffs are required to enter a nursing home for at least 60 days before they are eligible to receive these services because they are too far down on the waiting list to receive the services through the TBI/SCI waiver program, and the only other avenue is through the nursing home transition program.
This is precisely the type of discrimination prohibited by the Supreme Court in Olmstead, by the Middle and Northern District Courts of Florida in Haddad, and Long, and by other lower courts following Olmstead. See Makin v. Hawaii, 114 F.Supp. 2d 1017, 1034 (D. Haw. 1999) (individuals in the community on the waiting list for community based services offered through Hawaii’s Medicaid program could challenge administration of program for violating Title II integration mandate because the program could potentially force the plaintiffs into institutions); M.A.C. v. Betit, 284 F.Supp.2d 1298, 1309 (D. Utah 2003) (ADA integration mandate applies equally to individuals at risk of institutionalization and to individuals already institutionalized); Crabtree v. Goetz, 2008 WL 5330506 at *30 (M.D. Tenn. Dec. 19, 2008) (the plaintiffs have demonstrated a strong likelihood of success on their ADA claims because the defendants’ drastic cuts of the plaintiffs’ home health care services will force the plaintiffs into nursing homes); accord Brantley v. Maxwell-Jolly, 656 F.Supp. 2d 1161, 1164 (N.D. Cal. 2009); Cota v. Maxwell-Jolly, 688 F.Supp. 2d 980, 985 (N.D. Cal. 2010) and V.L. v. Wagner, 669 F.Supp. 2d 1106, 1109 (N.D. Cal. 2009)(all granting preliminary injunctions where the plaintiffs were at risk of institutionalization due to cuts in community-based services). Defendants have not cited any cases which support their contrary position.
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Morever, Defendants also have not shown that the requested relief would fundamentally alter the Florida Medicaid program or affect the Florida Medicaid program’s ability to provide services to others with disabilities. Defendants agreed at the hearing that they have the burden of proof as to a fundamental-alteration defense.
Defendants have produced no evidence that placing Plaintiffs in the TBI/SCI Waiver program would reduce the availability of services to individuals ahead of Plaintiffs on the waiting list or already in the program. It is undisputed that the Florida Medicaid program saves money when a Medicaid recipient is served in a home and community based program rather than in a nursing home. Defendants conceded that it would cost at least twice as much for Medicaid to place an Plaintiffs in a nursing home instead of placing Plaintiffs in the TBI/SCI Waiver program. Accord Haddad op at 12.
Defendants’ argument that the costs of institutional services and community based services are not comparable because they are independently funded by the Florida legislature must fail. The relevant resources for evaluating a fundamental alteration defense here consists of all money which Florida receives, allots or spends to provide services to persons, like Plaintiffs, who have spinal cord injuries. See Disability Advocates, Inc. v. Patterson, 598 F.Supp.2d 350 (E.D.N.Y. 2009) (the Court rejected the State’s argument that the relevant budget was the budget of one state agency, when other state agencies and programs also spent money on services to disabled individuals). Similarly, Defendants’ argument about the details of the state budgetary process does not allow them to avoid compliance with the ADA. Haddad op. at 32-33 (the Court noted that budgetary constraints, standing alone, were insufficient to establish a fundamental alteration defense) (quoting Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d at 381).
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In addition, Defendants have not demonstrated that they have a comprehensive, effectively working plan in effect to address unnecessary institutionalization. Olmstead, 527 U.S. at 605-06;14 Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d at 381-82. Defendants have not shown that the TBI/SCI Waiver program has been expanded or adjusted to reduce the lengthy waiting list, or that there is a basis for not seeking such an expansion. As stated in the facts, there is express guidance from the federal government which permits a State to submit a request to amend its cap to comply with provisions of the ADA (DE # 40 at 15 n.17 and Ex. 6). Defendants have only provided evidence that they are expanding or seeking to expand other waiver programs which have removal of persons from institutions as their goal. In Haddad, the Court found that evidence of expansion of other waiver programs did not address the effectiveness of the TBI/SCI Waiver program, and the same applies here. Haddad op. at 34. Requiring institutionalization of persons before they can receive assistance which will enable them to reside in the community runs counter to the express provisions of the integration mandate promulgated pursuant to the ADA, and does not constitute an effective working plan to address unnecessary institutionalization.
Moreover, Defendants have not filled the number of slots available in the TBI/SCI Waiver program. Defendants have also not provided any information concerning the average amount of time on the waiting list, the rate of turnover, or when, if ever Plaintiffs can expect to move off the waiting list. Indeed, the TBI/SCI Waiver program appears
14 The undersigned recognizes that this is the test established only in the plurality opinion; however, the plurality opinion is persuasive in this regard. In any event, the State has not otherwise established a fundamental alteration of its Medicaid program since it agrees that Plaintiffs would be entitled to such services after spending 60 days in a nursing home, provided that Plaintiffs were still able to maintain themselves in the community with assistance provided by the TBI/SCI program.
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stagnant. Defendants appear to concede that no one presently on the waiting list will be moved off the waiting list unless they agree to submit to at least 60 days of institutionalization. Therefore, Defendants have shown that they have no plan or commitment to avoid unnecessary hospitalization of persons, like Plaintiffs, who qualify for the TBI/SCI Waiver program.
To conclude, Defendants have not supported their assertion that providing community-based services to Plaintiffs instead of services in a nursing home would establish a fundamental alteration.
B. Plaintiffs Have Made A Showing of Irreparable Injury The undersigned finds that requiring Plaintiffs to enter a nursing home, even for 60 days, to receive adequate and necessary services will result in irreparable injury. As summarized by the United States in its Statement of Interest (DE # 40), many courts, including the United States Supreme Court, have recognized the irreparable harm suffered by individuals who are required to submit to unnecessary institutionalization in order to receive state services. See, e.g., Marlo M. v. Cansler, 679 F. Supp. 2d at 638 (finding irreparable harm from even temporary institutionalization, recognizing the regressive consequences of such placements); Crabtree v. Goetz, No. 08-0939, 2008 WL 5330506 at *25 (M.D. Tenn. Dec. 19, 2008) (same); Long v. Benson, No. 08-26, 2008 WL 4571903 at *2 (N.D. Fla. Oct. 14, 2008) (finding irreparable harm if individual was forced to leave community placement and enter nursing home due to adverse psychological consequences). As stated by the Supreme Court in Olmstead, 527 U.S. at 600-01, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. . . . Second, confinement in an institution
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severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.”
Plaintiffs have established that they would suffer irreparable injury by having to enter a nursing home, in that they would be severed from their communities, and lose their independence and freedom. Plaintiffs have also shown a likelihood that they each would lose their residence if they had to reside in a nursing home, even for 60 days.15 It is undisputed that when an individual goes into a nursing home, the individual must sign over to Medicaid his assets and government benefits, and that Medicaid will then pay the difference to the nursing home. Moreover, because Plaintiff Cruz has previously been in nursing homes and suffered depression therefrom, the undersigned finds that Plaintiff Cruz would become depressed if he was forced to enter a nursing home to receive adequate and necessary services.
C. Balancing of the Harms In the case at bar, at set forth above and in the Statement of Facts, both Plaintiffs have demonstrated the serious adverse consequences they would suffer if institutionalized. In addition to the psychological harm, both Plaintiffs have demonstrated that their institutionalization will at a minimum seriously jeopardize their ability to maintain their present living quarters since they will have no funds to pay rent while they are institutionalized, and there is an extreme shortage of alternative
15 While Defendants speculate that Plaintiffs could keep their current residences if they had to reside in a nursing home for 60 days, they provide no evidence to support this assertion. Moreover, Defendants have conceded that it is not certain that Plaintiffs would be released into the community with adequate community-based services after 60 days in a nursing home, since their ability to live independently would be re-assessed at that time.
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accessible housing. In contrast, the harm to the State in granting the preliminary relief sought here is minimal. It is clear that with respect to these two Plaintiffs, it will cost the State less to provide community-based care rather than institutional care in a nursing home, and this relief will not fundamentally alter any of the State’s programs. If it turns out that, considering the needs of the State as a whole, this does result in fundamental alteration of the Medicaid program, and the Defendants prevail, the services not otherwise available can be terminated.
D. The Public Interest As described by the Court in Olmstead, there is a strong public interest in allowing persons such as Plaintiffs to remain in their homes and eliminating the discriminatory effects that arise from segregating persons with disabilities into institutions. In addition, there is a strong public interest in providing care at the least cost possible. Both of these considerations lead the undersigned to conclude that granting the preliminary injunction in the case at bar serves the public interest. E. The Bond Amount In their motion, Plaintiffs request that the Court waive the requirement that Plaintiffs post a bond, pursuant to Fed.R.Civ.P. 65(c) (DE # 2 at 20-21). Defendants do not appear to oppose this relief as they did not address the issue either in their Response or at oral argument. "The amount of an injunction bond is within the sound discretion of the district court." Carillion Importers, LTD v. Frank Pesce International Group, 112 F.3d 1125, 1127 (11th Cir. 1997); Corrigan Dispatch Co. v. Casa Guzman, 569 F.2d 300, 302-03 (5th Cir. 1978) ("The amount of security required [in support of an injunction] is a matter for the discretion of the trial court; it may elect to require no security at all"). The Record here indicates that Plaintiffs are indigent. Because of these
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representations, and in the absence of any opposition by Defendants, it is recommended that the requirement that Plaintiffs post a bond be waived.
IV. Conclusion In consideration of the foregoing, the undersigned has determined that: Plaintiffs have made a significant and substantial likelihood of succeeding on the merits of their claims; Defendants’ refusal to provide Plaintiffs with in-home based health care services for which they are financially and medically eligible, and which Defendants provide to others through the Traumatic Brain Injury/Spinal Cord Injury Medicaid Waiver Program violates the ADA; that Plaintiffs will suffer irreparable injury unless the preliminary injunction is granted in that Plaintiffs are at imminent risk of being institutionalized to obtain the necessary services which Defendants refuse to provide Plaintiffs outside of the institutional setting; that the threatened injury to Plaintiffs outweighs the possible injury that the preliminary injunction may cause Defendants; and entering the requested preliminary injunction would not disserve the public interest. Therefore, for the reasons stated above, it is hereby RECOMMENDED that Plaintiffs’ Motion for Preliminary Injunction (DE # 2), be GRANTED such that Defendants are enjoined from denying Plaintiffs the Medicaid home and community-based services that are received by persons who receive such services under the Traumatic Brain Injury/Spinal Cord Injury Medicaid Waiver Program; and, that no security bond be required pursuant to Rule 65(c). Pursuant to S. D. Fla. Magistrate Judge Rule 4(b), the parties shall have seven days from the service of this Report and Recommendation to file written objections to this Report and Recommendation. Failure to file objections timely shall bar the parties from attacking on appeal any factual findings contained herein. RTC v. Hallmark
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Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988).
DONE AND SUBMITTED in chambers at Miami, Florida, on October 12, 2010.

Copies furnished to: The Honorable Ursula Ungaro,
United States District Judge All counsel of record

THE HONORABLE ANDREA M. SIMONTON UNITED STATES MAGISTRATE JUDGE

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 Case 1:10-cv-23048-UU Document 58 Entered on FLSD Docket 01/18/2011 Page 1 of 10
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23048-CIV-UNGARO LUIS CRUZ and NIGEL DE LA TORRE,
Plaintiffs, v. THOMAS ARNOLD et al.,
Defendants. /
ORDER ON MOTION TO DISMISS THIS CAUSE came before the Court upon Defendants’ Motion to Dismiss (D.E. 37) The motion has been fully briefed (D.E. 44 & 45.) THE COURT has reviewed the Motion and the pertinent portions of the record and is otherwise fully advised in the premises. I. Background A. Facts Plaintiffs Luis Cruz and Nigel De La Torre seek declaratory and injunctive relief under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.(ADA) and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504 ”), ordering Defendants to provide them home and community-based Medicaid services as part of the Traumatic Brain Injury/Spinal Cord Injury waiver program (hereinafter “TBI/SCI Waiver Program” or “waiver program”). Plaintiffs are Medicaid recipients with spinal cord injuries suffering from quadriplegia (Complaint, D.E. 1, hereinafter “Compl.” ¶ 1.) Luis Cruz alleges that he lives alone and requires assistance with daily activities, including help transferring from his bed to the toilet, bathing, cooking, and shopping for food (Compl. ¶¶ 15-16.) Mr. Cruz applied for the TBI/SCI Waiver

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Program in January 2006 and has been on the waiting list since (Compl. ¶18.) The current home and community-based assistance that Mr. Cruz receives does not provide sufficient services to meet his daily needs (Compl. ¶ 17.) He alleges that he has been hospitalized numerous times for conditions related to lack of personal assistance care (Compl. ¶ 21.)
Nigel Del La Torre, like Mr. Cruz, alleges that he requires assistance with daily living activities, including showering, transferring to and from his bed, and assistance with a bowel program and urinary catheter (Compl. ¶ 34.) Mr. De La Torre applied for the TBI/SCI Waiver Program in January 2006 but still remains on the waiting list (Compl. ¶ 28.) He alleges that he presently receives only two hours of Medicaid home and community-based assistance a day, which is insufficient to meet his needs (Compl. ¶ 29.) B. The Americans with Disabilities Act and the Medicaid Program
Title II of the Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability shall by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by such entity.” 42 U.S.C. §12132. The regulation implementing Title II of the ADA, 28 C.F.R. § 35.101 et seq., mandates that a public entity administer its services, programs and activities in “in the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d) (hereinafter “integration mandate”). “The most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. 35.130(d), App. A.
State governments receiving Medicaid funding are obligated to comply with the ADA. See 42 C.F.R. § 35.135(a). Medicaid is a medical assistance program established by the Medicaid Act, 42 U.S.C. § 1396 et seq, and funded by federal and state governments. The federal
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government must approve a state’s Medicaid program plan for the state to receive federal funds subsidizing its program. See Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997). A state may also enter into an agreement with the federal government to offer services under a waiver program, including the TBI/SCI Waiver Program in this case. 42 U.S.C. § 1396. C. The parties’ arguments
In their two-count Complaint, Plaintiffs contend that Defendants have violated Title II of the ADA, 42 U.S.C. §1232, et seq. (Count I), and Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a) (Count 2), by failing to administer Medicaid in the most integrated setting appropriate to Plaintiffs, by unlawfully discriminating against Plaintiffs by improperly denying Medicaid funding for home and community-based services, and by requiring Plaintiffs to be unlawfully institutionalized in nursing homes against their will as a condition precedent to receiving home and community-based services.
Defendants have moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim under the ADA for the following reasons: (I) Plaintiffs have failed to specify a black letter provision of the ADA that Defendants allegedly violated, (ii) Plaintiffs’ claim for personal care services exceeds the scope of what Defendants are required to provide, (iii) the relief requested by Plaintiffs assumes that the ADA invalidates provisions of the Medicaid Act, and (iv) the relief requested by Plaintiffs would fundamentally alter Defendants’ Medicaid Program. II. Legal Standard
In order to state a claim, Fed. R. Civ. P. 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” While a court, at this stage of the litigation, must consider the allegations contained in the plaintiff’s complaint as true, this rule “is
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inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In addition, the complaint’s allegations must include “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
In practice, to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. (citation omitted). The plausibility standard requires more than a sheer possibility that a defendant has acted unlawfully. Id. (citation omitted). Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. (internal quotations and citation omitted). Determining whether a complaint states a plausible claim for relief is a contextspecific undertaking that requires the court to draw on its judicial experience and common sense. Id. (citation omitted). III. Analysis A. Plaintiffs have adequately alleged that Defendants violated the black letter of the ADA.
Defendants argue that Plaintiffs have failed to specify the black letter provisions of the ADA that Defendants violated, thus Plaintiffs have failed to state a claim. In their response brief, Plaintiffs contend that they specified in their Complaint that Defendants violated Title II of the ADA, 42 U.S.C. § 12132, as interpreted by the Supreme Court in Olmstead v. Zimring, 527 U.S. 581 (1999).
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The Court agrees with Plaintiffs. To receive Medicaid funding for waiver programs, such as the TBI/SCI Waiver Program, a public entity is obligated to comply with Title II of the ADA and the integration mandate that states that a public entity must administer services, programs, and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d); see Olmstead, 527 U.S. at 599 (noting that the ADA both requires all public entities to refrain from discrimination and specifically identifies unjustified “segregation” of persons with disabilities as a “for[m] of discrimination”). To allege a violation of Title II of the ADA, Plaintiffs must demonstrate that they are qualified individuals with disabilities, who were either excluded from participation or denied the benefits of the public entity’s services, or were otherwise discriminated against such exclusion, and that the denial of benefits or discrimination was by reason of Plaintiffs’ disabilities. See Raines v. Florida, 983 F.Supp. 1362, 1371 (N.D. Fl. 1997).
Plaintiffs have adequately alleged that Defendants receive Medicaid funds to operate the TBI/SCI Waiver Program. They have also adequately alleged that they are qualified individuals with disabilities and that Defendants’ denial of Medicaid funding for HCBS and requirement that Plaintiffs are institutionalized in nursing homes against their will before receiving HCBS through the TBI/SCI Waiver Program violates Title II of the ADA and the integration mandate. Accordingly, Plaintiffs adequately allege that Defendants have violated the black letter of the ADA, i.e. Title II, and thus have stated a claim upon which relief can be granted. B. Plaintiffs have stated a claim for home and community-based personal care services.
Defendants argue that because subsection 135 of the ADA’s implementing regulation states that the ADA “does not require a public entity to provide individuals with disabilities...services of a personal nature including assistance in eating, toileting, or dressing,”
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the ADA does not require Defendants to provide home and community-based personal care services; thus Plaintiffs have failed to state a claim for personal care services. See 42 C.F.R. §35.135. Plaintiffs correctly contend that subsection 135 is inapplicable to this case.
Subsection 135 states that public entities that are not already providing personal services are not required to do so. However, when entities already provide personal services funded by Medicaid, subsection 130 of the implementing regulation applies, because subsection 130 is directed at “the [existing] services, programs, or activities of a public entity”and requires entities that provide personal services to provide them in the “most integrated setting.” 42 C.F.R. §35.135(a) &(d). Since Defendants already provide home and community-based personal services to individuals participating in the TBI/SCI Waiver Program, subsection 130, not subsection 135, applies. Thus, Defendants’ reliance on subsection 135 is misguided and subsection 135 is irrelevant to the the issue of whether Plaintiffs have stated a claim for community-based personal services under the ADA. C. Plaintiffs’ claims do not assume that the ADA invalidates the Medicaid Act.
Defendants argue that granting the relief requested in Plaintiffs’ Complaint will require a finding that the ADA invalidates one or more provisions of the Medicaid Act, and since the ADA neither abrogates nor amends the Medicaid Act, Plaintiffs have failed to state a claim upon which relief can be granted. However, Defendants fail to explain exactly how the relief requested in Plaintiffs’ Complaint would force such a finding, particularly in light of Olmstead. In holding that the mentally disabled respondents in Olmstead were qualified for community-based personal care, essentially the same type of relief requested by Plaintiffs in this case, the Supreme Court treated Title II of the ADA and the integration mandate as applicable to public entity programs created by the Medicaid Act, i.e. Medicaid funded programs, like the TBI/SCI Waiver Program,
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without invalidating any provisions of the Medicaid Act. See Olmstead v. Zimring, 527 U.S. 581 (1999). In light of Olmstead, the Court rejects Defendants’ contention that Plaintiffs construction of the ADA, if adopted by the Court, would invalidate the Medicaid Act. D. Relief requested by Plaintiffs would not fundamentally alter Defendants’ Medicaid Program.
Defendants contend that Plaintiffs have failed to state a claim under the ADA, because the relief Plaintiffs request would fundamentally alter Defendants’ Medicaid program for the following reasons: (a) the waiver program does not have the necessary funds to accommodate Plaintiffs, (b) allowing Plaintiffs to participate in the waiver program before others higher on the waiting list would be inequitable, and (c) Plaintiffs’ participation in the waiver program would disrupt Defendants’ “comprehensive and effective working plan,” the Nursing Home Transition Program, which Defendants have tailored to implement the ADA, as provided in Olmstead. Plaintiffs contend that relief can be granted without fundamentally altering Defendants’ Medicare Program, because (a) Defendants can pay for accommodating Plaintiffs using Defendants’ Medicaid budget, (b) placing Plaintiffs into the waiver program would not be inequitable because there are still available slots in the program, and (c) Plaintiffs cannot disrupt Defendants working plan, because the plan is unlawful. These arguments arguably raise factual issues outside the pleadings and, therefore, are premature. Nonetheless the Court notes the following:
Subsection 130(b)(7) of the ADA’s implementing regulation provides that “ a public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. 35.130(b)(7); see Olmstead 527 U.S. at 603 (“The
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State’s responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless.”). In both their Motion and at the preliminary injunction hearing, Defendants failed to demonstrate that Plaintiffs’ participation in the waiver program would fundamentally alter the nature of Defendants Medicaid Program.
First, Defendants’ have yet to offer a persuasive explanation of the TBI/SCI waiver program’s budgetary mechanism and funding sources. For example, Defendants’ assertion that they cannot fund HCBS using money from Medicaid not specifically allocated to the waiver program is incorrect. See Disability Advocates, Inc.v. Patterson, 598 F.Supp.2d 350 (E.D.N.Y. 2009)(holding that the relevant budget for funding integration programs pursuant to ADA Title II includes the state’s Department of Health budget which included Medicaid programs). Moreover, arguments about budgetary constraints do not appear to relieve defendants from compliance with the ADA. See Pa. Prot. & Advocacy, Inc.v. Pa. Dep’t of Public Welfare, 402 F.3d 374, 381 (3d Cir. 2005).
Second, Defendants have not persuaded the Court that Plaintiffs’ participation in the waiver program would prevent others higher on the waiting list from accessing the program. Defendants do not refute Plaintiffs’ contention that it costs less to provide Plaintiffs with home and community-based services than it does to institutionalize them. Therefore, the Court infers that Plaintiffs’ participation in the program would not necessarily prevent those ahead on the waiting list from accessing the services. Moreover, Defendants admit that they have not filled all the slots available in the TBI/SCI program, and as indicated by Defendants’ explanation of the Nursing Home Transition Program, Defendants will not move individuals into the waiver program unless they submit to sixty days of institutionalization in a nursing home. Accordingly, an individual’s likelihood of gaining access to the waiver program appears to be more dependent
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on whether he participates in the Nursing Home Transition Program than on whether individuals lower on the waiting list are accepted into the program before him.
Third, Defendants’ argument that Plaintiffs’ participation in the waiver program would disrupt their comprehensive working plan fails, because as Plaintiffs correctly point out, Defendants do not appear to have a lawful working plan. Olmstead, 527 U.S. at 605-606. The Nursing Home Transition Program that Defendants describe as their “comprehensive and effective working plan” apparently subjects an individual to at least sixty days in a nursing home before he can be eligible for the waiver program. This is precisely the form of institutionalization held illegal in Olmstead. Morever, even if Defendants’ working plan is somehow lawful, they have not adequately demonstrated how Plaintiffs’ participation in the waiver program would disrupt the working plan. In sum, Defendants have failed to persuade the Court that dismissal is warranted pursuant to Rule 12(b)(6) because Plaintiffs’ participation in the waiver program would fundamentally alter Florida’s Medicaid Program .
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss (D.E. 37) is DENIED. DONE AND ORDERED in Chambers at Miami, Florida this 14th day of January, 2011.

copies provided to: Counsel of Record

URSULA UNGARO UNITED STATES DISTRICT JUDGE

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 Case 1:10-cv-23048-UU Document 38 Entered on FLSD Docket 09/13/2010 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

LUIS CRUZ and NIGEL DE LA TORRE,

Plaintiffs,

v.

Case No. 1:10CV-23048-UU

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

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

Defendants.
______________________________________________
PLAINTIFFS CRUZ AND DE LA TORRE’S REPLY TO DEFENDANTS’ MEMORANDUM IN OPPOSITION TO THE PRELIMINARY INJUNCTION

I. Facts

1. In FY 2009, Florida spent 79.5% of all of its aged and disabled Medicaid long-

term care expenditures on institutionalized nursing homes as compared to the national average of

66.2%. See Pl. Ex. A (“Medicaid Long-Term Expenditures in FY 2009,” Table V, Distribution of Medicaid LTC Expenditures, Aging/Physical Disabilities), ranking Florida the 28th highest State

for its Medicaid spending for older people and adults with physical disabilities in expenditures to

nursing facilities. In FY 2009 in dollars, Florida expended $2.4 billion on nursing home

Medicaid expenditures. In contrast to its institutional Medicaid expenditures on nursing homes,

Florida expended 20.5% of its entire long-term care expenditures for community-based services

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for all its Medicaid’s community-based services, i.e., Home Health, Personal Care Option and its Waivers targeted for older adults and people with disabilities, or $620 million.1 Id.
2. Defendants’ Spinal Cord Injury waiver is capped at 375 pe ople, the number of available slots has not been increased since 2007, and will not increase through June 30, 2011. See Pl. Ex. B (CMS 10/23/2007 letter approving SCI waiver).2
3. On December 3, 2008, Defendant AHCA prepared a document entitled Home and Community Based Services Waivers and Long Term Care in which AHCA acknowledged that there was a waiting list for SCI Waiver services of 544 people. See Pl. Ex. C (AHCA HCBS Waivers and Long Term Care, 12/4/2008) at 2.
4. The Florida Office of Program Policy Analysis & Government Accountability, an office of the Florida Legislature, prepared a report entitled “Profile of Florida’s Medicaid Home and Community-Based Services Waivers,” Report No. 10-10, January, 2010, at 11 and 6, stating that the Traumatic Brain and Spinal Cord Injury Waiver had a waiting list of 605 people, where the Nursing Home Diversion Waiver had no waiting list. See Pl. Ex. D.
5. On February 8, 2010, the Florida Department of Health Brain and Spinal Cord Injury Program issued “A Needs and Resources Assessment” in which it stated that the “Biggest Issues for SCI in Florida” were, inter alia, “access to services that promote independence e.g., personal care and transportation,” and the report stated that the SCI Incidence in Florida in 2009 was 761 “New SCI.” See Pl. Ex. E (“Spinal Cord Injury in Florida: A Needs and Resources Assessment”) at 2 and 3.
1 These figures exclude people with mental retardation and other developmental disabilities, because those people are not institutionalized in nursing homes. Defendants’ affidavits erroneously include these people. 2 According to Defendant’s Affidavit of Kristen Russell Declaration, as of September 9, 2010, there were only 341 pe ople in this waiver. (Doc. No. 34 ¶ 12). T he unfilled 34 s lots are apparently still available.
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6. D efendants mailed a form letter on January 8, 2010, to persons on t he Spinal Cord Injury waiting list informing persons, like Plaintiffs Cruz and De La Torre, on the waiting list for SCI waiver that:
[p]resently, the Department of Children and Families does not have funds available (or available openings) to serve additional individuals through these programs…. Placement on the waiting list does not ensure future eligibility. Funding is very limited in these programs, and the amount of funding allocated to these programs has not been increased in many years. U nfortunately, moving individuals off the waiting list into these programs does not occur frequently, therefore we encourage you to continue seeking services from other programs. See Pl. Ex. F, (Jan. 8, 2010 letter)(emphasis added). II. Plaintiffs Cruz and De La Torre’s Motion for a Preliminary Injunction Falls Within the Legal Standards for Its Issuance Defendants ignore that preventing Plaintiffs Cruz and De La Torre’s unnecessary segregation and institutionalization is critical and basic protection under the Americans with Disabilities Act, 42 USC § 12101, e t seq. (hereinafter “ADA”) and the Rehabilitation Act of 1973, 29 U .S.C. § 794(a) (hereinafter “Section 504”). The relief Plaintiffs request is precisely to prevent the discrimination of unnecessary institutionalization in a nursing home, a fundamental form of discrimination under the ADA and Section 504, from occurring in the future. Defendants mischaracterize the relief Plaintiffs Cruz and De La Torre request by stating that the Preliminary Injunction “asks the Court to order the Defendants to undertake an activities they are not currently undertaking (i.e., to provide for personal care assistance in Plaintiffs’ homes).” (Doc. No. 36 at 2). Defendants currently provide personal care assistance as part of its Medicaid Home Health program to Messrs. Cruz and De La Torre in their homes, but the number of hours of these services is inadequate. It is the amount of care that the injunction seeks; an amount that will permit them to reside safely in their homes instead of being forced to go into a nursing facility for the same quantity of services they seek in the community. While Defendants’ Home
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Health care program is limited to four hours a day, its Waiver program provides significantly
more services, an amount that will enable Messrs. Cruz and De La Torre to remain in their homes and communities.3
Defendants’ preliminary injunction arguments misunderstand the importance of enforcing
the ADA and Section 504, the civil rights statutes for persons with disabilities. The Supreme
Court has recognized the duty to enjoin civil rights violations and the prospective enforcement of
such Congressional mandates, holding that:
the purpose of Congress in vesting broad equitable powers in Title VII courts was to “make possible the ‘fashion[ing of] the most complete relief possible,’” and that the district courts have “‘not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.’”
International Brotherhood of Teamsters v. United States, 431 U .S. 324, 364 ( 1977)(emphases
added)(Title VII of Civil Rights Act of 1964); quoting Albermale Paper Co. v. Moody, 422 U.S.
405, 421, 418 (1975)(Title VII); see also, Louisiana V. U.S., 380 U.S. 145, 154 (1965)(affirming
the propriety of an injunction against existing discriminatory voting practices and quoting
International Brotherhood); see also, U.S. v. City and County of San Francisco, 310 U.S. 16, 30
(1940)(holding that, where an injunction is needed to ensure that states do not act contrary to
restrictions provided by Congress, injunctive relief may be granted without the traditional
“balancing of equities”).
The Eleventh Circuit has also recognized the necessity to enjoin violations of civil rights
violations and prospective affirmative enforcement of such Congressional mandates, following 3 Under the Spinal Cord Injury Waiver, people can receive 3 hou rs per day of attendant care services, 6 hour s per day of companion services, and 4 hours per day of personal care. S ee Florida Medicaid, Brain and Spinal Cord Injury Waiver Provider Handbook, 4.1.2006. U nder Florida’s Aged and Disabled Adult Waiver, a person can receive10 hours per day of attendant care services, 8 hours per day of homemaker, 12 hours per day of personal care and 8 hours per day of companion services. See Florida Medicaid, Aged and Disabled Adult Waiver, Provider Handbook, 5.1.2009.
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the International Brotherhood, supra, principle. In Sec’y, U.S. Dept. of Housing and Urban Dev. v. Blackwell, 908 F.2d 864, 874 (11th Cir. 1990)(Fair Housing Act), the Eleventh Circuit, quoting Marable v. Walker, 704 F. 2d 1219, 12 21 (11th Cir. 1983)(race discrimination under Civil Rights Act of 1964), stated that “injunctive relief should be structured to achieve the twin goals of insuring that the [civil rights] Act is not violated in the future ....”(Emphasis added).
Defendants raised the same issue in Haddad v. Arnold and R oss, #3:10-cv-414-J99MMH, Middle District of Florida, July 9, 2010 . T he Honorable Marcia Morales Howard’s opinion, supporting the preliminary injunction she had issued on June 22, 2010, s tate that “[b]ecause the Court determined that Plaintiff satisfied the heightened burden of demonstrating her entitlement to mandatory preliminary injunctive relief, the Court did not resolve the parities’ dispute as to the applicable standard.” (Doc. No. 29, Ex. B at 17-18). III. Plaintiffs Cruz and De La Torre Have a Substantial Likelihood of Prevailing on the
Merits A. Unnecessarily Institutionalization and Segregation is a Clear Violation of the
ADA and Constitutes Discrimination Under the ADA Title II of the ADA bars unnecessary institutionalization and segregation of people with disabilities and prohibits such discrimination by public entities. 42 U.S.C. § 12132. The ADA’s congressional findings specifically listed “institutionalization” as a “cr itical area” where discrimination persisted. 42 U.S.C. § 12101(a)(3). Congress explicitly noted that discriminatory practices continued through both “outright intentional exclusion” and “segregation.” 42 U.S.C. § 12101(a)(5).4 Congress directed the Department of Justice (DOJ) to promulgate regulations to implement Title II. 42 U.S.C. § 12134. A dhering to the congressional mandate, DOJ adopted regulations to implement Title II including “the most integrated” regulation. 28 C .F.R. § 4 Plaintiffs have not argued a violation of the Medicaid statute, see supra.
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35.130(d). In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court faced the question of whether a state has an obligation under the ADA to provide community services to people with disabilities who were segregated and unnecessarily institutionalized. The Supreme Court, in Olmstead, concluded that “unjustified isolation ... is properly regarded as discrimination on the basis of disability.” Id. at 597. Explaining that “unjustified institutional isolation of persons with disabilities is a form of discrimination,” the Court wrote that “[c]onfinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement and cultural enrichment.” Id. at 600.5
Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1180-81 (10th Cir. 2003) is on point with the facts in the instant case. In Fisher, Oklahoma would limit the prescriptions Plaintiffs could receive in the community to five per month. The state would provide needed Medicaid services, i.e., the requisite number of prescriptions a disabled person needed to survive, but only if the plaintiffs went into nursing homes. The plaintiffs wanted to remain integrated in the community
The Fisher plaintiffs, similar to Messrs. Cruz and De La Torre, challenged the state policy that put them at risk of being institutionalized. Like Messrs. Cruz and De La Torre, the plaintiffs in Fisher were receiving Medicaid-funded medical care. Fisher sought a preliminary injunction arguing that the change in state policy violated the integration mandate of Title II,
5 Olmstead has been applied by a number of federal appellate courts in cases involving individuals with disabilities who are at risk of unnecessary institutionalization. See, e.g., Radaszewski, 383 F.3d at 602 (7th Cir. 2004); Townsend v. Qasim, 328 F.3d 511, 523 ( 9th Cir. 2003); Pennsylvania Protection & Advocacy, Inc. v. Pennsylvania Dep’t of Public Welfare, 402 F.3d 374, 379 (3d Cir. 2005).
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because it would force them out of their communities and into nursing homes to obtain the care they needed. See id. at 1177-78. Plaintiffs Cruz and De La Torre seek a preliminary injunction, because Defendants violate the integration mandate of Title II because the failure to provide adequate personal care services in the community will force them out of their homes and into nursing homes to obtain the same services they could receive in the community. The Tenth Circuit noted that the ADA’s integration “protections would meaningless if plaintiffs were required to segregate themselves by entering an institution….[N]othing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements. Id. at 1181.
Institutionalization before assistance with independent living is precisely what Defendants’ policy requires. Namely, Defendants propose that Cruz and De La Torre enter an institution for 60 days before they will receive the same services Plaintiffs seek to obtain today in the community without first being institutionalized.
Many district courts have similarly concluded that Olmstead/Fisher applies to situations where the plaintiffs are not institutionalized and do not wish to enter an institution in order to receive the services. In Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1170 (N.D.Cal. 2009), the court pointed out that “the risk of institutionalization is sufficient to demonstrate a violation of Title II.” Also, in Makin v. Hawaii, 114 F . Supp. 2d 1017, 1034 ( D Haw.1999), the court concluded that plaintiffs, who resided at home while on t he 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 force Plaintiffs into institutions.” Further, in Ball v. Rodgers, No. 00-cv-67, 2009 WL 1395423, at *5 (D.Ariz. April 24, 2009), the court concluded that state defendants violated Title II’s integration mandate,
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because their “failure to provide Plaintiffs with the necessary services threatened Plaintiffs with institutionalization.” See also, Marlo M. v. Cansler, No 5:09-cv-535-BO, 2010 WL 148849, at *2 (E.D.N.C. Jan. 17, 2010) (termination of funding “will force Plaintiffs from their present living situations, in which they are well integrated into the community, into group homes or institutional settings”); Mental Disability Law Clinic v. Hogan, No. 06-cv-6320, 2008 W L 4104460, at *15 ( E.D.N.Y. Aug. 28, 2008( “[E]ven the risk of unjustified segregation may be sufficient under Olmstead”); Crabtree v. Goetz, 2008 WL 5330506, *30 (M.D. Tenn. 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.”)
B. Defendants’ Reliance on 28 C.F.R. § 35.135 Is Misplaced. Defendants argue that 28 C.F.R. § 35.135 e xempts them from providing personal attendant care services to keep Plaintiffs Cruz and De La Torre out of an institution. (Doc. No. 36 at 15-16).6 Defendants’ argument reflects a profound misunderstanding of the ADA. Section 35.135 was simply and plainly designed to assure that public entities that do not otherwise provide personal services are not required to provide those services. For example, the ADA would not require a public library to assist a patron with toileting when she uses the library because that is not the function of the library. On the other hand, DOJ made clear that the regulation does not prohibit a public entity from providing personal care and devices to people with disabilities when that is a function of the public entity already provides. See 28 C.F.R. Pt. 35, App., § 35.135. In the instant case, Defendants plainly have chosen to provide personal care services to people with disabilities -- both in nursing homes, as well as in the community through, inter alia, 6 The Haddad court rejected this argument. See supra at 26-27.
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its Medicaid Spinal Cord Injury Waiver and other waivers, Home Health Care, and nursing homes. Since personal care services are the precise services that Defendants already provide in both an institutional and community-based setting, they cannot rely on 28 C.F.R. § 35.135 t o relieve themselves of their obligation to provide those services to people with disabilities, including Plaintiffs Cruz and De La Torre, in the most integrated setting appropriate to their needs – as required by the ADA and Section 504. This interpretation, unlike Defendants’, is consistent with the fundamental tenet of statutory and regulatory construction, which requires courts to construe statutes and regulations to give effect to all provisions so that none is rendered inoperative, superfluous, insignificant, or void. See Calzadilla v. Banco Latino Internacional, 413 F.3d 1285, 1287 (11th Cir. 2005).
If the Court accepts Defendants’ argument that 28 C.F.R. § 35.135 precludes courts from requiring states to provide the type of personal services at issue in this case, and similar ADA integration cases, then it will eviscerate the ADA’s integration mandate and render 28 C.F.R. § 35.130(d) superfluous. Instead, the Court can readily give meaning to both 28 C.F.R. § 35.135 and 28 C.F.R. § 35.130(d) by following DOJ’s direction that the former only protects states from providing personal services with respect to programs, services, and activities that do not involve such services, while the latter requires states to provide such personal services in an integrated setting when they otherwise provide such services. Where, as here, the state “services” at issue are personal care services, they must be provided such services in the most integrated setting.
C. Compliance with the Medicaid Statute does not Relieve a State from Compliance with the ADA
Despite Defendants’ lengthy arguments, Plaintiffs do not argue a violation of the Medicaid statute. (see Doc. No. 36 a t 5-9 and 11-15).7 Plaintiffs do not “want the ADA’s
7 Defendants’ Medicaid argument was rejected in Haddad. See supra at 27-28.
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prohibition of discrimination to slice into the Medicaid Act and, with surgical precision, add, change, or remove a word or two here and there, leaving the overall structure of the Medicaid Act and the HCBS waiver programs intact.” Id. at 13.
Defendants misunderstand the interplay between the ADA and the Medicaid statute. If Defendants did not participate in the Medicaid program, they would have no legal duty to implement it in conformity with the ADA. However, as long as Defendants participate in Medicaid, they cannot structure the Florida Medicaid program or deny the benefits of Medicaid services in the most integrated setting – that is prohibited discrimination under the ADA. 42 U.S.C. § 12132.
Defendants similarly misunderstand Plaintiffs’ arguments regarding how the implementation of the Spinal Cord Injury waiver discriminates on the basis of disability. (Doc. No. 36 at 14). While it is accurate that waivers are targeted to specific disabilities, that is not the discrimination Plaintiffs allege. The discrimination under the ADA at issue in the instant action is a combination of Defendants’ apparent unwillingness to use all 375 s lots under the Spinal Cord Injury Waiver, which Defendants notified CMS they would provide, 8 while at the same time require people to enter nursing homes to receive the services that are provided in the community in the Spinal Cord Injury Waiver. Defendants effectively require Plaintiffs Cruz and De La Torre to enter a nursing home to both receive the personal attendant care services they require and also to then become eligible to receive those services in the community. T he discrimination is Defendants’ requirement that Plaintiffs submit to unnecessary
8 Given both Defendants’ knowledge of the extremely large waiting list for Spinal Cord Waiver services and the ease that CMS has provided for amendments to increase the number of people served in a Waiver, assuming arguendo the Spinal Cord Injury Waiver was full at 375 people, Defendants could readily amend it to provide more slots and therefore avoid unnecessary institutionalization.
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institutionalization to receive services, precisely the harm the Supreme Court in Olmstead found violated the ADA.
Plaintiffs Cruz and De La Torre have never contended that Defendants are violating the Medicaid Act. Their claims are based on Defendants violating the ADA and Section 504 of the Rehabilitation Act. T he Center for Medicare and Medicaid, the federal funding agency, recognizes that Medicaid is only one statute that must be complied with. CMS made clear to state Medicaid officials that compliance with Medicaid will not relieve them of liability under the ADA’s integration mandate:
May a St ate establish a l imit on t he total number of people who may receive services under an HCBS waiver? Yes. Under 42 U.S.C. § 441.303(f)(6), States are required to specify the number of unduplicated recipients to be served under the HCBS waivers. ... The State does not have an obligation under Medicaid law to serve more people in the HCBS waiver than the number requested by the State and approved by the Secretary. If other laws (e.g., ADA) require the State to serve more people, the State may … request an i ncrease in the number of people permitted under the HCBS waiver ... Failure to seek or secure Federal Medicaid funding does not generally relieve the State of an obligation that might be derived from other legislative sources (beyond Medicaid), such as the ADA). CMS, Olmstead Update No. 4, at 4 (Jan. 10, 2001) (emphasis in original and added), available at http://www.cms.hhs.gov/smdl/downloads/smd011001a.pdf. Thus, under Medicaid, a state can set a cap on the number of people who will receive Waiver services. That cap does not violate the ADA or Section 504, as long as it does not require people with disabilities who, but for the cap, could reside in the community with the Waiver services. The ADA and Section 504 are triggered only when the Medicaid cap forces unnecessary institutionalization. Since Defendants have chosen to provide personal care services -- both in nursing homes and in the community -- they cannot evade their obligations under the ADA’s integration mandate to provide those services in the most integrated setting appropriate to their needs. Defendants miss the point when they argue that nursing home services are “mandatory”
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Medicaid services while personal care services and HCBS Waiver services are not. Once a state has decided to provide services, whether mandatory or optional, it must provide those services in the most integrated setting appropriate to the needs of the individual -- even if it requires the state to change its Medicaid program by expanding its “optional” community waiver programs. In other words, the state’s Medicaid program is not exempt from compliance with the ADA any more than it is exempt from other civil rights laws. Defendants cannot avoid liability under the ADA integration mandate in this case simply because compliance might require it to make changes to its Medicaid program.
D. Defendants 60 Day Nursing Requirement is Not Similar to the Money Follows the Person Requirement
Defendants’ argument that 60 da ys of unnecessary institutionalization is permissible because Congress, in the Deficit Reduction Act of 2005 and the recently enacted Affordable Care Act of 2010, authorize a 60 day requirement that eligible persons for the Money Follows the Person’s increased federal match. It is important to understand that under these two statutes Congress has significantly increased the federal Medicaid match to States that transition people out of nursing homes. Defendants correctly state that “Congress has created a program whereby states are paid more to transition individuals to the community after spending 90 da ys in a nursing homes than the states would receive if they transitioned such individuals before they reached 90 days.” (Doc. No. 36 at 18)(emphasis in original). However, Defendants’ next sentence is both incorrect and directly contradicts what their affiant writes. D efendants’ state that “Congress is thus financially inducing states to keep individuals in nursing homes for at least 90 days before transitioning them to the community.” Id.(emphasis added). T hat is not why Congress established a 90 day minimum. Instead, as Defendants’ Affidavit of Elizabeth Y. Kidder states, “The 60 day time period was selected because it ensures that transition services are
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provided only to those individuals who are not likely to transition to the community on t heir own. In our experience, individuals who reside in a nursing facility for more than 60 days are significantly less likely to leave on their own.” (Doc. No. 33 at ¶8)(emphasis added). Ms. Kidder is correct. The increased federal match is to be used for the most difficult persons to transition – those who have been in nursing homes for at least 90 (or 60) days. Congress’ intent is to award states that go the extra yard and transition out of nursing homes the most difficult residents.
That purpose is totally flipped upside-down with what Defendants propose for Messrs. Cruz and De La Torre. The Plaintiffs do not want to enter a nursing home for any time, let alone 60 or 90 da ys. They are not “less likely to leave [the nursing home] on their own,” but to the contrary do not want to go into a nursing home whatsoever. To require them to go into a nursing home so that they will stay 60 da ys and therefore be put into the category, as Ms. Kidder suggests, “less likely to transition into the community,” is directly contrary to the purpose of the two recently enacted statutes. T here simply is no c onnection between, on one hand, the increased federal match to transition the most difficult people out of a nursing home and, on the other, requiring people to go into a nursing home so that the State can then receive an increased federal match.
E. Modification of a State’s Medicaid Plan Is Not a Fundamental Alteration. The mere fact that Defendants would increase the number of hours Plaintiffs receive in the community, even assuming arguendo that this would require Defendants to amend their Medicaid SCI Waiver to expand the number of persons eligible in order to serve Messrs. Cruz and Mr. De La Torre, is simply not a fundamental alteration.9 Keeping Messrs. Cruz and De La Torre in the community setting instead of segregating and institutionalizing them in a nursing
9 Defendants provide the number of hours Mr. Cruz and De La Torre require as part of the Spinal Cord Injury Waiver. See supra at n. 3.
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facility setting is only a “reasonable modification” of Florida’s program. Olmstead, 527 U.S. at 603. Furthermore, per Olmstead, it is a reasonable modification to expand existing community programs to keep people from being unnecessarily segregated. See, Disability Advocates, Inc. v. Paterson, 653 F . Supp. 2d 184, 269 (E.D.N.Y. 2009)(“[w]here individuals seek to receive services in a m ore integrated setting – and the state already provides services to others with disabilities in that setting – assessing and moving the particular plaintiffs to that setting, in and of itself, is not a ‘fundamental alteration.’”); Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 345 (D. Conn.2008)(holding that where community placement can be accommodated through existing programs, it would not be a fundamental alteration to require the state to determine whether plaintiffs were appropriate for those programs).
Modification of the Medicaid waiver would not be difficult, costly, or otherwise a fundamental alteration.10 States have discretion in designing their Medicaid HCBS waivers and have authority to seek amendments from CMS, and such amendments have been held not to be a “fundamental alteration.” See Grooms v. Maram, 563 F . Supp. 2d 850, 857 (N.D. Ill. 2008); accord Radaszewski, 2008 WL 2097382 at *10, *15 (noting that federal government has always approved state’s waiver amendments, court held that state “could modify or alter the waiver ... to meet the community integration contemplated by Olmstead”).
Defendants’ “resource” argument is not sound when they state that “Plaintiffs argue that it would cost less to provide services in the community than in a nursing home. They provide no evidence of this.” (Doc. No. 36 at 20). D efendants apparently ignore or forget that there is a federal Medicaid statutory requirement that Waivers be “cost neutral”, i.e., that the “medical assistance [reimbursement] provided with respect to the individual under such waiver will not exceed the amount of such medical assistance [reimbursement] provided for such individual if 10 The Haddad court rejected Defendants’ fundamental alteration argument. See supra at 31-33.
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the waiver did not apply.” 42 U.S.C. § 1396n ( c)(4)(emphasis added). In simpler language, the Waiver must cost less than what Medicaid would pay in the nursing home.
Defendant’s Spinal Cord Injury Waiver application at “Appendix J: Cost Neutrality Demonstration,” shows that in year 4 (July 2010-June 2011), the total cost in the community, Column 4, is about $31,000 whereas the cost in a nursing home would be about $52,200, f or a saving of about $20,700 a year. See Pl. Ex. B. There is absolutely no question that, if Messrs. Cruz and De La Torre went into a nursing home, Defendants would find the funds to pay for their institutionalization and would pay more than if they stayed in the community. Conversely, by statutory mandate, Defendants will pay less for Messrs. Cruz and De La Torre under the Spinal Cord Injury Waiver in the community – about $20,700 less.
Defendants’ argument that there are other people on the Spinal Cord Injury waiting list, some allegedly longer than Cruz and De La Torre, and even assuming arguendo some may have an assessment score higher (Doc. No. 36 at 22),11 only suggests that Defendants’ ADA and Section 504 violations may extend much further than only to Messrs. Cruz and De La Torre. It does not suggest that their ADA/Section 504 rights are not being violated, that they are not being discriminated against, or that a preliminary injunction for them is not appropriate.
F. Defendants Lack A Comprehensive, Effectively Working Plan Defendants argue that providing Plaintiffs Cruz and De La Torre with relief constitutes a fundamental alteration because it would “disrupt Florida’s ‘comprehensive, effectively working plan’” to provide services. In support, Defendants list all the waivers that they currently have, and the funds they expend per program. With all due respect, such a list is not a plan, let alone an “effectively working” one. D efendants’ only reference to a “Plan” is with regards to the 11 Mr. Cruz was assessed on April 28, 2010, nearly five months and at least three hospitalizations ago. Mr. De La Torre was assessed on May 4, 2010, when he still had his mother at home and available to shop, clean, prepare meals, and turn him at night.
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“draft” Nursing Home Transition Plan in Defendants’ Kidder affidavit. However, by its express terms, this refers only to the “transfer of an eligible Medicaid beneficiary already residing in a nursing home for a minimum of 60 days, to a community setting….” (Emphasis added). It is not a “comprehensive … plan,” because it does not deal with people like Plaintiffs Cruz and De La Torre who are at risk of being institutionalized. To prevent unnecessary institutionalization and segregation of Plaintiffs Cruz and De La Torre, who are in the community and at risk of being forced to go into a nursing facility to receive services, an “effectively working” plan would have to address the at risk disabled population.
In Frederick L. v. Dep’t of Public Welfare, 364 F.3d 487 (3d Cir. 2004) (Frederick L. I), the Court of Appeals vacated the district court’s ruling that the state had established its fundamental alteration defense. The court rejected the defendants’ argument that the state’s history of deinstitutionalization and expansion of community mental health services was sufficient per se to establish a fundamental alteration defense. The court wrote: “One of our principal concerns is the absence of anything that can fairly be considered a plan for the future… [The State] must be prepared to make a commitment to action in a manner for which it can be held accountable.” Id. at 499-500 (emphasis added). On the second appeal, the court wrote: “Although we are aware of [the State’]s strong commitment in the past to deinstitutionalization ..., [the State’s] post-remand submission amounts to a vague assurance of the individual patient’s future deinstitutionalization rather than some measurable goals for community integration for which [the State] may be held accountable.” Frederick L v. Dep’t of Public Welfare, 422 F.3d 15,156 (3d Cir. 2005) (Frederick L. II) (emphasis added). The court reasoned:
a comprehensive working plan is a n ecessary component of a successful “fundamental alteration” defense in these proceedings.... DPW may not avail itself of the “fundamental alteration” defense to relieve its obligation to deinstitutionalize eligible patients without establishing a plan that adequately
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demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which DPW may be held accountable. Id. at 157. (Emphasis added). Nothing in Defendants’ supporting affidavits demonstrate any commitment in the future. Defendants’ Spinal Cord Injury Waiver expires in June 2012. N owhere do Defendants suggest that even then they will increase the available slots in that waiver for the 605 people whom the Legislative Committee recognized in January, 2010, were on a waiting list for such services. Defendants know there is a need for expanded SCI services but have not increased the number of people to be serviced. Accordingly, notwithstanding Florida’s existing waivers or even its Transition Plan for people in nursing homes, it has failed to articulate this commitment in the form of an adequately specific comprehensive plan for preventing unnecessary institutionalization and segregation of people like Plaintiffs Cruz and De La Torre.12 Until such a comprehensive plan is established, Defendants’ failure to commit to “community-based programs by a target date places the ‘fundamental alteration’ defense beyond its reach.” Id. at 158. IV. Plaintiff Cruz and De La Torre Will Suffer Irreparable Injury Requiring Plaintiffs Cruz and De La Torre to be institutionalized, even for “only” 60 days, will cause them irreparable injury.13 Plaintiffs Cruz and De La Torre are both young people. Mr. Cruz previously experienced the injuries that institutions cause. Mr. De La Torre
12 Though clearly relevant, budgetary constraints alone are insufficient to establish a fundamental alteration defense. See Fisher, supra at 1182-83 (“the fact that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion that [the provision of integrated treatment] will result in a fundamental alteration…. If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed”). 13 In Haddad, the Court noted that “[t]he requirement that Plaintiff first enter a nursing home in order to be transitioned out sometime thereafter presents Plaintiff with exactly the kind of uncertain, indefinite institutionalization that can constitute irreparable harm.” Supra at 36.
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would probably be the youngest person in a nursing home. Given their extremely active community lives and their vehemence against institutionalization, it is not unreasonable that they will quickly become depressed, and their health will most likely deteriorate. That is exactly the type of injury which was found irreparable in Long v. Benson, 2008 WL 4571904 *2 (N.D. Fla., Oct. 14, 2008)(such placement “will inflict an enormous psychological blow”). In Marlo M. v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010), the Court recognized that “even temporally” moving to a nursing home would cause “regressive consequences.” See also Crabtree, 2008 WL 5330506 at *30 (irreparable injury of mental depression and shorter life expectancy if plaintiffs institutionalized in nursing facility.)
With regards to Mr. Cruz’s statement that he will lose his apartment, Defendants apparently do not appreciate what happens when a person is institutionalized in a Medicaid nursing home. (Doc. No. 36 at 27). For everyone who enters a nursing home which is paid for by Medicaid, their entire Supplemental Security and/or Social Security Disability checks are transferred automatically to the nursing home. Mr. Cruz in a nursing home, for even 60 d ays, will receive only about $35 a month for all his incidentals, including paying for his apartment.14 Even though he “socializes with neighbors,” id., does not mean these neighbors will pay for his rent.
Mr. De La Torre’s mother moved to Spain on September 8, 2010, and he has no one to provide the assistance she did, including shopping, laundry, cleaning, meal preparation, as well as other activities of daily living. IV. The Public Interest Will Be Served With a Preliminary Injunction
14 No such requirement exists for hospitalization, including hospitalizations paid for by Medicaid. Thus, when Mr. Cruz has been hospitalized in 2010, he continued to receive his full SSI/SSDI payments from which he could pay his rent on the apartment to which he returned after each hospitalization.
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Preventing unnecessary segregation is in the public interest. Olmstead, 537 U.S. at 600.
Enforcing the ADA, the civil rights statute for people with disabilities, is as much in the public
interest as the enforcement of all civil rights’ statutes. Long, 2008 WL 4571904 at *3.
V. Conclusion
For the above reasons, this Court should grant a preliminary injunction and waive costs.
Respectfully submitted,
s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway, Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 stevegoldada@cs.com
SPOHRER & DODD, P.L.
s/ Steven R. Browning Steven R. Browning, Esquire Fla. Bar No.: 599638 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: sbrowning@sdlitigation.com Counsel for the Plaintiff
CERTIFCATE OF SERVICE I certify that a t rue and correct copy of the foregoing has been served this 13th day of September, 2010, by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Andres T. Sheeran, Agency for Health Care Administration, 2727 M ahan Drive, Building MS#3, Tallahassee, Florida, 32308, Morris Shelkofsky, Assistant General Counsel, Florida Department of Health, 4052 Bald Cypress Way, Bin A-02, Tallahassee, FL, 32399.
/s/ Steven R. Browning
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 Case 1:10-cv-23048-UU Document 45 Entered on FLSD Docket 10/01/2010 Page 1 of 5

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

LUIS CRUZ and NIGEL DE LA TORRE,

Plaintiffs,

vs.

CASE NO. 1:10-cv-23048-UU

ELIZABETH DUDEK, in her official Capacity as the Interim Secretary of Florida Agency for Health Care Administration
DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health
Defendants.
_________________________________________/

DEFENDANTS’ REPLY TO PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
The Defendants, ELIZABETH DUDEK, in her official capacity as the Interim

Secretary of the Florida Agency for Health Care Administration (AHCA), and DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of

Health, by and through the undersigned counsel, hereby submit this reply, with incorporated

memorandum of law, to Plaintiffs Luis Cruz and Nigel De La Torre’s response in opposition to the Defendants’ Motion to Dismiss Complaint, and further state as follows:

1. Plaintiffs’ claim that the requested relief would not constitute a fundamental alteration because “Defendants will use Medicaid funds to provide services either in a nursing home or in the community” and “[t]here is nothing in the federal Medicaid statute that prohibits

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using [funds from the nursing home line item], if necessary, to provide services to Plaintiffs in the community.”
Plaintiffs imply that Defendants can access the same source(s) of funding whether Plaintiffs are served in a nursing facility or they are immediately placed in the Florida Medicaid Traumatic Brain Injury/Spinal Cord Injury Waiver Program (TBI/SCI Waiver). Defendants have demonstrated that this is not the case. As such, the question is whether it would constitute a fundamental alteration to place Plaintiffs immediately in the TBI/SCI Waiver using the funding specifically allocated to the TBI/SCI Waiver (not the nursing home line item funding, as Defendants do not have the authority to access this funding source for these services). This would require the Defendants to (1) bypass the 51 and 205 individuals, respectively, who are ahead of Plaintiffs on the waiting list; and (2) access a funding source that is already exhausted. This cannot be “reasonably accommodated” and is thus by definition a fundamental alteration.
2. Plaintiffs further indicate that the requested relief would not constitute a fundamental alteration because, “[o]bviously, Defendants have available slots for Plaintiffs.” This fails to take into account the fact that the number of open slots on the waiver is far less than the number of individuals who are above both Plaintiffs on the waiting list. If these “available” slots could be said to be “for” anyone, it would be for those individuals who are highest on the waiting list, not the Plaintiffs.
3. Plaintiffs fail to explain fully the 375 slots and the difference between the cap under the waiver of 375 and the present enrollment of 341. The 375 slots are a number of unduplicated beneficiaries to which the State of Florida intended to provide waiver services on an incrementally increasing basis over each of the five years of the waiver program. The
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current five year program has an inception date of July 1, 2007. As shown by the affidavits of Kristen Russell, the 375 number of unduplicated beneficiaries in the waiver program is projected on the basis of collections in the Brain and Spinal Cord Injury Program (BSCIP) Trust Fund.
The importance of the 375 figure lies in its role in explaining AHCA’s estimate of average per capita expenditures for services over the five year term of the waiver. 42 CFR § 441.303(f). To invoke this number facilely without detailed explanation is problematic. It, 375, is an upper range figure reflecting the State of Florida’s intention based on the BSCIP Trust Fund’s expected collection experience over a five year period. It is fundamentally used as part of the estimated calculation of average per capita expenditure. Plaintiff’s argument fails to deal effectively with the 375 number as part of the calculation of a spending concept dictated by CMS.
The collections experience of the BSCIP Trust Fund on July 1, 2007 is a snapshot in time. At that inception date of the current waiver, the Trust Fund’s collections experience permitted the statement of the State of Florida’s intention of an incremental increase over time at the upper range level of 375. The collections experience permitted expansion of the filled slots from 245 on July 1, 2007, to the present 341 in the second quarter of the fourth year of the five year waiver cycle. See Affidavit of Susan Michele Morgan, ¶ 14. But the projections for the out years (the balance of July 1, 2010-June 11, 2011 and July 1, 2011June 30, 2012) do not support additional placements into the Brain Injury/Spinal Cord Injury Waiver program. See Affidavit of Kristen Russell, ¶12.
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The Plaintiff’s failure to parse the nuances of the 375 cap and its tie to projections of BSCIP Trust Fund collections ignores the fact that average per capita expenditures for services is an estimate. It obscures the clear fact that the 375 figure is a dated figure tied to the July 1, 2007, inception date of the current waiver. This failure overlooks the five year term of the waiver cycle. Finally, it denies the State of Florida the benefit of its expansion of the number of waiver slots in the relatively abundant years of Trust Fund collections and its maintenance of that expanded number of slots into the lean period of such collections in the out years of the five year waiver cycle.
The Court should consider the basic mathematical purpose of the intended number of unduplicated beneficiaries to be served (375) as established in the Code of Federal Regulations. It should recognize the role of this number in explaining AHCA’s estimate of average per capita expenditures for services. Based on this analysis, the Court should reject the baseless assertion that there are available slots for Plaintiffs.
Respectfully submitted this 1st day of October, 2010. AGENCY FOR HEALTH CARE ADMINISTRATION
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
DEPARTMENT OF HEALTH
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BY: /s/ Morris Shelkofsky Morris Shelkofsky Fla. Bar No. 165186 Assistant General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1703 (850) 245-4005 Email: Morris_Shelkofsky@doh.state.fl.us
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Steven R. Browning and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 1st day of October, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
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 Case 1:10-cv-23048-UU Document 57 Entered on FLSD Docket 11/24/2010 Page 1 of 8
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23048-CIV-UNGARO LUIS CRUZ and NIGEL DE LA TORRE,
Plaintiffs, v. THOMAS ARNOLD et al.,
Defendants. /
ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATIONS THIS CAUSE came before the Court upon Plaintiffs’ Motion for Preliminary Injunction
and Expedited Hearing (D.E. 2.) THE MATTER was referred to the Honorable Andrea Simonton, United States
Magistrate Judge (D.E. 14.) Magistrate Judge Simonton issued a Report and Recommendation on October 12, 2010, recommending that Plaintiffs’ Motion be granted (D.E. 47.) Defendants filed objections to the Report and Recommendation on October 19, 2010 (D.E. 50.) Plaintiffs filed their response to Defendants’ objections on October 26, 2010 (D.E. 52.) The matter is ripe for disposition.
THIS COURT has made a de novo review of the entire file and record herein and is otherwise fully advised in the premises.
By way of background, Plaintiffs Luis Cruz and Nigel De La Torre are Medicaid recipients with spinal cord injuries suffering from quadriplegia. Plaintiffs argue that Defendants’ refusal to provide them home and community-based services (HCBS) is a violation of both the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.(ADA), and the Rehabilitation Act of
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1973, 29 U.S.C. § 794a (“Section 504 ”), and the ADA and Section 504's “integration mandate,” which requires that “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). Plaintiffs seek declaratory and injunctive relief ordering Defendants to provide home and community-based Medicaid services that will allow Plaintiffs to continue to reside in their community rather than a nursing facility. Plaintiffs argue that they could live in the community with appropriate Medicaid-funded services, however, Defendants have denied them the HCBS services for which they are eligible under the Traumatic Brain Injury/Spinal Cord Injury waiver program (hereinafter “TBI/SCI Waiver Program”).
In her exceedingly thoughtful and well-reasoned Report and Recommendations, Magistrate Judge Simonton recommended that Plaintiffs’ Motion be granted such that Defendants are enjoined from denying them Medicaid HCBS under the Traumatic Brain Injury/Spinal Cord Injury Medicaid Waiver Program; and that no security bond be required pursuant to Rule 65(c).
The Magistrate Judge concluded the following: (1)Plaintiffs’ ADA claims have a strong likelihood of success because Plaintiffs are at risk of institutionalization if they do not receive services available under the TBI/SCI Waiver Program; (2) Plaintiffs have established that they would suffer irreparable injury if institutionalized in a nursing home, such that they would be severed from the communities in which they live and participate, lose their independence, and lose their homes; (3) community-based care rather than institutionalized nursing home care; (4) there is a strong public interest in allowing Plaintiffs to remain in their homes, eliminating the discriminatory effects that arise from segregating persons with disabilities into institutions, and providing care at the least possible cost; (5) Defendants have not demonstrated that the requested
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relief would fundamentally alter the Florida Medicaid Program , and the waiver program in particular, or affect the program’s ability to provide for others with disabilities; (6) the Court should waive the requirement that Plaintiff post a bond, pursuant to Fed. R. Civ. P. 65(a).
Defendants object to her findings. First, Defendants object to the Magistrate Judge’s use of Olmstead v. Zimring to support its analysis that Plaintiffs have a strong likelihood of success of their ADA claims. See 527 U.S.581 (1999). Defendants argue that the Supreme Court’s analysis of the ADA in Olmstead was limited to mental disability. Second, Defendants object to the Magistrate Judge’s finding that Plaintiffs would suffer irreparable injury, contending that Plaintiffs have not offered any evidence that they would lose their homes. Third, Defendants argue that the Magistrate Judge failed to take into account that it is against the public interest to “jump two recipients” to the top of the waiting list (See D.E. 50 at 12.) Fourth, Defendants contend that the requested relief would fundamentally alter the Florida Medicaid Program because: (a) there are insufficient funds specifically allocated under the TBI/SCI waiver program to pay for Plaintiffs’ participation, and Defendants are not permitted to access state Medicaid funds not allocated to the waiver program; and (b) Plaintiffs’ participation in the waiver program would prevent individuals higher on the waiting list from accessing the program. Fifth, Defendants argue that the settlement under Dubois, et al. v. Calamas & Francois (“Dubois Settlement”), which resolved claims of a class defined as “all individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligible to receive services from Florida’s Medicaid Waiver Program for persons with traumatic brain and spinal injuries and have not yet received such services,” precludes Plaintiff Cruz from obtaining injunctive relief. See 4:03-cv-001107-SPM-AK, at DE 212 (N.D. Fla. Jan.
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4, 2007). After carefully reviewing the parties’ objections, the Court agrees that Plaintiffs’ Motion
for Preliminary Injunction should be granted. Plaintiffs have shown a clear likelihood of success on the merits. Plaintiffs are qualified persons with disabilities eligible to receive communitybased services from the TBI/SCI waiver program. Without these services Plaintiffs are at risk of undue institutionalization prohibited by the ADA. See Olmstead v. Zimring, 527 U.S. 581 (1999); see also Haddad v. Arnold, Case No. 3:10-cv-414-J-99MMH-TEM, at DE 49 (M.D. Fla. Jul. 9, 2010); Long v. Benson, 2008 WL 4571903 (N.D. Fla. Oct. 14, 2008). Moreover, as Magistrate Simonton noted, Defendants have not demonstrated that they have a comprehensive working plan to address unnecessary institutionalization. Olmstead, 527 U.S. at 605-606.1 In fact, it appears that to be eligible currently for the TBI/SCI waiver program, an individual has to first enter a nursing home for sixty days. This means that to receive the protections afforded to him under the ADA and Olmstead, an individual would have to be subjected to the very form of instutionalization that the Supreme Court in Olmstead held illegal under the ADA. Accordingly, not only have Defendants failed to demonstrate that they have a plan to address unnecessary institutionalization, but also they have brought to light the State’s flagrant disregard for Supreme Court precedent and utter failure to comply with the ADA.
Plaintiffs have established that they would suffer irreparable psychological harm if placed
1 The Court disagrees with Defendants’ contention that the Olmstead analysis is limited only to individuals with mental disabilities. Olmstead applies broadly to those “qualified individuals with disabilities” under Title II of the ADA. See Olmstead, 527 U.S. at 600 (holding that “unjustified institutional isolation of persons with disabilities” is a form of discrimination proscribed by the ADA)(emphasis added); see also Haddad op at 30.
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in a nursing home. See Olmstead, 527 U.S. at 600-01; see also Long, 2008 WL 4571903 at * 2. Plaintiffs have also established that they would suffer irreparable harm because they likely would lose their homes during the sixty-day period they would have to spend institutionalized. Defendants fixate on the possibility that Plaintiffs could keep their homes, yet present no evidence to support their hypothesis. Regardless of whether or not Plaintiffs could keep their homes, there is no doubt that institutionalization would cause them irreparable psychological harm, and Defendants have not argued to the contrary.
The harms that Plaintiffs would suffer if institutionalized outweighs any hardship the State would incur in providing them with HCBS. In fact, as Magistrate Judge Simonton’s factual findings indicate, the State would incur less expense providing Plaintiffs home and communitybased care than it would in institutionalizing them. Furthermore, there is a strong public interest in eliminating the discriminatory effects of institutionalization, as well as providing care at the lowest cost possible. See Olmstead, 527 U.S. at 599-01; see also Long 208 WL 4571903, at *3 . This public interest outweighs any public interest arguments against “jump[ing] two recipients” to which Defendants allude but fail to support with facts and case law.
Defendants have also failed to satisfy their burden of demonstrating that Plaintiffs’ requested relief would constitute a fundamental alteration of the Florida Medicaid Program. First, Defendants’ explanation of the TBI/SCI waiver program’s budgetary mechanism is woefully inadequate, as are their arguments for how the budget cannot accommodate the inclusion of otherwise eligible Plaintiffs. Defendants’ argument that they cannot fund HCBS using money from state Medicaid funds not specifically allocated to the TBI/SCI waiver program is misguided. See Disability Advocates, Inc.v. Patterson, 598 F.Supp.2d 350 (E.D.N.Y.
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2009)(holding that the relevant budget for funding integration programs pursuant to ADA Title II included the state’s Department of Health budget which included the Medicaid program). Moreover, as Magistrate Judge Simonton points out, arguments about budgetary constraints cannot relieve Defendants from compliance with the ADA. See Pa. Prot. & Advocacy, Inc.v. Pa. Dep’t of Public Welfare, 402 F.3d 374, 381 (3d Cir. 2005); see also Haddad op.at 32-33.
Second, Defendants have not established that Plaintiffs’ participation in the waiver program would prevent individuals higher on the waiting list from accessing the program. In light of the fact that it costs less to provide Plaintiffs with community-based services than it does to institutionalize them, Plaintiffs’ participation would not reduce the availability of services for those individuals currently in the program, nor necessarily prevent those who are ahead on the waiting list from accessing the services. In fact, Defendants have not even filled all the slots available in the TBI/SCI program, and they concede that no one on the waiting list will be moved into the waiver program unless they submit to at least sixty days of institutionalization, a requirement that may be unlawful in light of Olmstead. Therefore, the likelihood of moving from the waiting list to the waiver program is actually more dependent on whether he submits to sixty days of institutionalized care and the State’s eligibility determination thereafter, rather than on these Plaintiffs’ acceptance into the TBI/SCI waiver program. Accordingly, Defendants have not demonstrated that these Plaintiffs’ participation in the waiver program would constitute a fundamental alteration Florida Medicaid Program.
The Court also finds that Defendants have failed to provide sufficient proof that the Dubois Settlement applies to Plaintiff Cruz. Defendants did not introduce the settlement into evidence. A mere reference to the Dubois Settlement in the Haddad case, which appears in
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Plaintiffs’ Notice of Filing Cited Authority is not appropriate evidence that the Court will consider. Even if the Court were to consider the Dubois Settlement, Defendants have not defined the class to which the settlement applies, nor have they sufficiently demonstrated how Plaintiff Cruz is part of the class. They have not provided details on whether the defined class is an opt-in class that Mr. Cruz opted into or whether the defined class is an opt-out class from which Mr. Cruz failed to opt out of. Therefore, Defendants have not demonstrated that the DuBois Settlement precludes Plaintiff Cruz from injunctive relief.
Finally, the Court agrees with Magistrate Judge Simonton that Plaintiffs, due to their indigent status, need not post bond. Defendants do not oppose this relief.
For the foregoing reasons, it is hereby ORDERED and ADJUDGED that United States Magistrate Judge Simonton’s Report and Recommendation of October 12, 2010 (D.E. 47) is RATIFIED, AFFIRMED and ADOPTED and Plaintiffs’ Motion for Preliminary Injunction (D.E. 2) is GRANTED. It is further ORDERED AND ADJUDGED that Defendants are enjoined from denying Plaintiffs the Medicaid home and community-based services that are received by persons who receive such services under the Traumatic Brain Injury/Spinal Cord Injury Medicaid Waiver Program; and that Plaintiff not be required a security bond pursuant to Rule 65 (c). DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of November, 2010.
URSULA UNGARO 7

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copies provided: U.S. Magistrate Judge Simonton Counsel of Record

UNITED STATES DISTRICT JUDGE

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 Case 1:10-cv-23048-UU Document 40 Entered on FLSD Docket 09/14/2010 Page 1 of 22
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 10-23048-CIV-UNGARO/Simonton LUIS CRUZ and NIGEL DE LA TORRE,
Plaintiffs, vs. ELIZABETH DUDEK, in her official capacity as Secretary, Florida Agency for Health Care Administration, and DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health ,
Defendants. /
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517, because this litigation implicates the proper interpretation and 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).1 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. 42 U.S.C § 12134. Accordingly, the United States has a strong interest in the resolution of this matter.
1 28 U.S.C. § 517 states that “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” .
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INTRODUCTION This lawsuit alleges that defendants, the Secretary of the Florida Agency for Health Care Administration (AHCA) and the State Surgeon General (collectively, “defendants” or “the State”) fail to provide sufficient community-based services so that Medicaid-eligible individuals with spinal cord injuries who are at risk of institutionalization may be served in the “most integrated setting appropriate to their needs.”2 Plaintiffs Luis Cruz and Nigel De La Torre are Medicaid-eligible individuals with quadriplegia resulting from spinal cord injuries. As a result of their disabilities, they require assistance with many activities of daily living. Both men are able to—and desire to continue to—live in their own homes with adequate support services, but the services they currently receive through the State’s Medicaid program are far from adequate to meet their needs. As a result, Mr. Cruz and Mr. De La Torre are at risk of being needlessly institutionalized. Providing services to the plaintiffs in the community is a reasonable modification of the State’s Medicaid program. Defendants acknowledge that it is generally less costly to provide services to individuals with spinal cord injuries in the community rather than in a nursing home. Nonetheless, the State refuses to provide community-based, Medicaid-funded services to the plaintiffs, unless they first enter an institution. The State’s failure to provide adequate community-based services to qualified individuals
2 This lawsuit is related to Jones v. Arnold, No. 09-cv-1170, a proposed class action pending in the Jacksonville Division of the U.S. District Court for the Middle District of Florida. On January 27, 2010, plaintiff filed a motion to add Mr. Cruz and Mr. De La Torre as named plaintiffs in the Jones action. On August 13, 2010, the motion to amend was denied without prejudice because of a pending motion to dismiss. In light of an order in the Jones action, holding that an unnamed class member in an uncertified class does not have standing to seek preliminary injunctive relief, a motion for preliminary injunctive relief was filed in a separate action in the Middle District on August 18, 2010 on behalf of Mr. Cruz and Mr. De La Torre. Cruz, et al. v. Arnold, et al., No. 10-725 (M.D. Fla.). On August 23, that action was transferred to this Court.
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who are at risk of institutionalization and its practice of conditioning such services on entrance into a nursing home violates the ADA and the Rehabilitation Act. The facts alleged in plaintiffs’ complaint, as well as in their declarations in support of their motion for preliminary injunction, demonstrate a likelihood of success on the merits of their claims. Furthermore, their allegations meet the additional requirements for a preliminary injunction: plaintiffs’ placements in an institutional setting will cause irreparable harm, the balance of equities weighs in their favor, and granting this injunction is in the public interest.
Statutory and Regulatory Background Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). It found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.3 One form of discrimination prohibited by the ADA is a violation of the “integration mandate.” The integration mandate arises out of Congress’s explicit findings in the ADA, the
3 Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination. 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).
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regulations of the Attorney General implementing title II,4 and the Supreme Court decision Olmstead v. L.C., 527 U.S. 581, 586 (1999). 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 others who are receiving disability services from the entity. Id. at 607.
FACTUAL BACKGROUND The Medicaid program is a medical assistance program cooperatively funded by the federal and state governments. State participation in Medicaid is voluntary, but once a state elects to participate in the Medicaid program, it is required to administer the Medicaid program in accordance with all federal laws, including the ADA and the Rehabilitation Act. Pursuant to provisions of the Medicaid Act, Florida administers the Traumatic Brain Injury/Spinal Cord Injury (“TBI/SCI”) waiver program, which reimburses participants’ costs for a range of home-based services provided to Medicaid recipients. See 42 U.S.C. § 1396(c).5 The TBI/SCI waiver, which was approved by the federal government’s Centers for Medicare and Medicaid Services (“CMS”) in 2002, caps the number of persons eligible to receive communitybased services at 375 people through 2012. See Brain and Spinal Cord Injury Program, http://www.doh.state.fl.us/demo/BrainSC/Medicaid/providers.html (last visited 9/9/2010)
4 The regulations provide that “a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. §§ 35.150(d), 41.51(d). The preamble discussion of the ADA “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d), App. A. 5 Waiver programs allow states to provide home and community based services to individuals with disabilities who would otherwise require the level of care provided in institutions such as nursing homes.
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(attached hereto as Exhibit 1). Despite the substantial waiting list for these services,6 defendants
have not sought to expand the program.7 They have, however, recently submitted an amendment
to CMS to set aside 45 slots in the program exclusively for persons in nursing homes. (See Letter
from Florida Deputy Secretary for Medicaid to CMS, dated Feb. 23, 2010 (attached hereto as
Exhibit 3).) If the amendment were approved, the waiver program would be capped at 330 slots
for persons who, like plaintiffs, are at risk of institutionalization. Nonetheless, at the end of
fiscal year 2008-2009, 66 slots in the waiver program were vacant.8 (Affidavit of Susan Michele
Morgan, dated Sept. 8, 2010, ECF No. 35-1 (“Morgan Aff.”) ¶ 14.)
The State acknowledges that it is generally less costly to provide community-based
services than it is to provide services in a nursing home. (Morgan Aff. ¶ 15 (“In most cases,
when a Medicaid recipient is diverted or transitioned from a nursing facility to an HCBS waiver
program, costs to Medicaid for providing care to that individual are reduced.”).) The average per
capita rate at which Medicaid reimburses nursing homes for Medicaid services is $209.20 per
day, or roughly $6,276.00 per month. (See AHCA Nursing Home Rates,
http://ahca.myflorida.com/medicaid/cost_reim/nh_rates.shtml (attached hereto as Exhibit 5).) In
6 A January 2010 report reflected that, as of December 2009, 605 individuals were on the wait list for the TBI/SCI Waiver Program. See “Profile of Florida’s Medicaid Home and CommunityBased Services Waivers, Florida Legislature Office of Program Policy Analysis & Government Accountability,” Report No. 10-10, January 2010, at 11 (attached hereto as Exhibit 2). 7 States can submit requests for approval to CMS to increase the number of individuals to be served under a particular waiver. 42 C.F.R. § 441.355. Such requests are regularly granted by CMS. See Knowles v. Horn, No. 08-CV-1492, 2010 WL 517591 at*4 (N.D. Tex., Feb. 10, 2010) (citing Grooms v. Maram, 563 F. Supp. 2d 840, 857 (N.D. Ill. 2008). 8 Defendants also deliver personal care assistance services to Florida residents through the Assistive Care Services (“ACS”) program, an optional service funded through Medicaid. Defendants, however, restrict eligibility for these services to Medicaid-eligible individuals who live in assisted living facilities, qualified residential treatment facilities, or adult family-care homes. (See AHCA, Assisted Care Services, available at: http://ahca.myflorida.com/medicaid/asc/index.shtml.) (attached hereto as Exhibit 4). This restriction in the ACS program effectively eliminates the personal care option as a service option for individuals like Mr. Cruz and Mr. De La Torre, who currently reside in the community.
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contrast, the State reported that the average monthly per capita cost of services in the TBI/SCI waiver program during fiscal year 2008-2009 was $2,361.47. (See Profile of Florida’s HCBS Waivers, Report No. 10-10, supra n. 6, at 11.)
Mr. Cruz, a 52 year-old man, has quadriplegia as a result of a car accident in 1992. (Declaration of Luis J. Cruz, ECF No. 3, (“Cruz Decl.”) ¶¶ 2, 5.) For nearly five years after the accident, he lived in institutions, where he experienced severe clinical depression. (Id. ¶ 9.) However, for the past twelve years, Mr. Cruz has lived alone in an accessible apartment. (Id. ¶ 4.) He requires assistance with all of his activities of daily living, (id. ¶ 6), and defendants currently provide limited Medicaid-funded support services. (Id. ¶¶ 19-20.) Those services are, however, insufficient to meet his daily needs. (Id.)
Mr. Cruz applied for services in the TBI/SCI waiver program in January 2006, but was placed on a waiting list, and has not yet received any services through the program. (Id. ¶¶ 8, 30.) Without adequate services, Mr. Cruz has fallen out of his wheelchair and has had to lie on the floor for hours at a time. (Id. ¶¶ 22-23.) He has also urinated on himself, slept on the bathroom floor, and slept upright in his wheelchair when no one was available to assist him. (Id. ¶¶ 23-24.) If Mr. Cruz’s needs continue to go unmet, he will have to enter a nursing home in order to receive necessary services. Indeed, he has been hospitalized several times since January 2010. (Id. ¶¶ 12-14.)
Despite his physical limitations, Mr. Cruz is active in his community, including volunteering for the local park and recreation program and socializing with friends. (Id. ¶ 25-29.) He wants to remain living in his community so that he can continue participating in these activities. (Id. ¶ 25.) If forced to enter a nursing home to receive necessary services, he will have to relinquish the benefits that accompany community living.
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Mr. De La Torre is a 27 year-old man with quadriplegia resulting from a gunshot wound he incurred in 2007 while he was being robbed. (Declaration of Nigel De La Torre, ECF No. 4 (“De La Torre Decl.”) ¶¶ 2, 3.) As a result of his disability, Mr. De La Torre requires help with his activities of daily living. (Id. ¶ 20.) He currently receives limited support services for one hour in the morning and one hour in the evening from a personal assistant provided through the State Medicaid plan. (Id. ¶ 26.) These limited services, however, are inadequate to meet his needs, and he has suffered toileting accidents or missed meals because no one is available to assist him. (Id. ¶¶ 27-29.) Mr. De La Torre applied for services in the TBI/SCI waiver program in October 2007, but he remains on the waiting list and has not yet received any services under the waiver. (Id. ¶¶ 5-6, 36-37.)
Since his injury, Mr. De La Torre’s mother, who has a full-time job outside the home, has assisted with activities of daily living such as transferring Mr. De La Torre to and from his bed and wheelchair, turning him during the night, and catheterization. (Id. ¶ 13-5.) She has injured her back and elbow as a result of doing so, however, and she plans to move permanently to Spain in the near future.9 (Id. ¶¶ 15, 17; Declaration of Alejandrina Padro, ECF No. 5 ¶ 7.) Because the services provided through the State’s Medicaid program are insufficient to meet his needs, Mr. De La Torre will be forced to enter a nursing home upon the changes in his caregiver circumstances.
Mr. De La Torre enjoys the benefits of living in the community, such as going to the movies, mall, and visiting with friends. (De La Torre Decl. ¶¶ 30-31.) He wants to remain living in his community so that he can continue participating in these activities. (Id. ¶ 32.) If
9 Mr. De La Torre’s brother may be able to provide assistance temporarily, but he has enlisted in the U.S. Marine Corps and plans to leave the Miami area in the near future. (Padro Decl. ¶ 8.)
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forced to enter a nursing home to receive necessary services, he will be forced to relinquish the benefits that accompany community living. (Id. ¶¶ 32-33, 35, 39.)
ARGUMENT Plaintiffs satisfy the requirements for a preliminary injunction. To obtain a preliminary injunction, the moving party must show (1) substantial likelihood of success on the merits, (2) substantial likelihood of irreparable harm, (3) that the balance of equities favors granting the injunction and (4) that the public interest would not be harmed by the injunction. Horton v. St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001) (citing Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). The decision whether or not to issue a preliminary injunction lies within the sound discretion of the trial court. Charles H. Wesley Educ. Foundation, Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005). The determination of whether preliminary injunctive relief is necessary hinges not on the specific nature of the relief, but on whether such relief is necessary to prevent irreparable harm so as to preserve the court’s ability to render a meaningful decision. Canal Authority v. Callaway, 489 F. 2d 567, 573, 576 (5th Cir. (Fla.) 1974); Cox, 408 F.3d at 1351 (affirming preliminary injunction in a voting rights acts case requiring defendants to process voter registration applications).10 Here, preliminary injunctive relief is necessary to prevent the
10 See also Haddad v. Arnold, No. 3:10-cv-00414-MMH-TEM (M.D. Fla. June 23, 2010) (issuing preliminary injunction requiring defendants to provide community-based services to plaintiff); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1425 (11th Cir. 1984) (issuing preliminary injunction requiring defendants to display notices and instruct employees and agents of nondiscrimination policies and finding that “when housing discrimination is shown it is reasonable to presume that irreparable injury flows from the discrimination”); Rogers v. Windmill Point Vill. Club Assoc., Inc., 967 F.2d 525, 528 (11th Cir. 1992); Long v. Benson, No. 08cv26, 2008 WL 4571903 *2 (N.D. Fla. Oct. 14, 2008) (granting preliminary injunction requiring Florida to provide Medicaid coverage for nursing services because irreparable injury would result if plaintiff were forced to enter a nursing home); Katie A. v. Bonta, 433 F. Supp. 2d 1065 (C.D. Cal. 2006) (granting a mandatory preliminary injunction requiring the state to
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irreparable harm of needless institutionalization caused by defendants’ failure to provide services in the most integrated setting appropriate to the plaintiffs’ needs.
A. Plaintiffs Are Likely to Succeed on the Merits of Their Claims To establish a violation of Title II of the ADA, a plaintiff must prove that he or she (1) is
a “qualified individual with a disability;” (2) was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. See Raines v. Florida, 983 F. Supp. 1362, 1371 (N.D. Fla. 1997).11
A plaintiff need not wait until he is institutionalized to pursue a claim for violation of the integration mandate. The risk of institutionalization itself is sufficient to demonstrate a violation of Title II. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003). In Fisher, the Tenth Circuit rejected defendants’ argument that plaintiffs could not make an integration mandate challenge until they were placed in the institutions. The Court reasoned that the protections of the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Id. at 1181. See also Haddad v. Arnold, No. 3:10-cv-00414-MMH-TEM (M.D. Fla. July 9, 2010), ECF No. 46 (attached as Exhibit B to Pls.’ Notice of Filing Cited Authority, dated Sept. 9, 2010, ECF. No
provide support services to class of children with mental health needs who faced irreparable injury due to unnecessary institutionalization) (rev’d and remanded, 481 F. 3d 1150 (9th Cir. 2007) (finding proper standard for a mandatory preliminary injunction was applied, but reversing and remanding on other grounds). Community Services, Inc. v. Heidelberg, 439 F. Supp. 2d 380, 400-401 (M.D. Pa. 2006) (entering preliminary injunction ordering defendants to issue permits for plaintiff to utilize property as long term structured residence for individuals with mental illness). 11 Claims under the ADA and the Rehabilitation Act are treated identically unless one of the differences in the two statutes is pertinent to a claim. Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
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29-2) (hereinafter “Haddad Op.”) (granting preliminary injunction to plaintiff at risk of
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).12
1. Plaintiffs Are Qualified Individuals with Disabilities Who Meet the Essential Eligibility Criteria of the State’s Medicaid Program
Mr. Cruz and Mr. De La Torre are individuals with disabilities who are eligible to receive
services in Florida’s Medicaid program. They desire to and are able to live in their own homes
with adequate support services, but because of the way the State administers its Medicaid
program, they are at risk of institutionalization. Mr. De La Torre will soon lose the assistance of
his caregiver, and without additional community-based services in the State’s Medicaid program,
he will have to enter a nursing home to receive the services he needs to survive. Similarly, Mr.
Cruz is also at risk of institutionalization. Without adequate services in the State’s Medicaid
program, he has undergone repeated hospitalizations in recent months.
Defendants do not dispute that the plaintiffs are qualified persons with disabilities who
want to and are able to receive community-based services through the State’s Medicaid program.
Nor do they dispute that plaintiffs are at risk of institutionalization. Indeed, defendants are
12 See also Ball v. Rogers, No. 00-67 (D. Ariz. April 24, 2009) (holding that defendants’ failure to provide adequate services to avoid unnecessary institutionalization was discriminatory); 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 force Plaintiffs into institutions”); 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); Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008) (unpublished decision) (“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.”); see also Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161,1164 (N.D. Cal. 2009); Cota v. Maxwell-Jolly, 688 F. Supp. 2d 980, 985 (N.D. Cal. 2010); and V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009) (all granting preliminary injunctions where plaintiffs were at risk of institutionalization due to cuts in community-based services).
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requiring plaintiffs to submit to institutionalization to receive the same services they are qualified
to receive in the community. Thus, plaintiffs are likely to succeed on the merits of their prima
facie claim of discrimination.
2. Defendants Cannot Establish a Fundamental Alteration Defense
A state’s obligation to provide services in the most integrated setting may be excused
only where it can prove that the relief sought would result in a “fundamental alteration” of its
service system. Olmstead, 527 U.S. at 601-03. Further, to invoke the fundamental alteration
defense, a public entity must demonstrate that it has a “comprehensive, effectively working plan” in place to address unnecessary institutionalization.13 Olmstead, 527 U.S. at 605-06; Pa. Prot. &
Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d 374, 381-82 (3d Cir. 2005).
Defendants cannot show that providing community-based services to the plaintiffs would
be a fundamental alteration of their Medicaid program. First, they do not have a comprehensive,
effectively working plan in place to address unnecessary institutionalization. Defendants’ cite to
the expansion of other waiver programs, (Defs.’ Opp. at 24-25), but they fail to demonstrate any
expansion or effectiveness of the TBI/SCI waiver program. See Haddad Op. at 34 (finding that
evidence of expansion of other waiver programs does not address the effectiveness of the
13 Defendants’ argument that they need not have a plan to address unnecessary institutionalization because the “portion of the Olmstead opinion describing such plans is not part of the majority’s opinion” is without merit. Defs.’ Opp. to Pls.’ Mot. for Prelim. Injun., ECF No. 36 (“Defs.’ Opp.”), at 23. While the portion of Justice Ginsburg’s opinion addressing the state’s fundamental alteration defense garnered only four votes, it controls because it relied on narrower grounds than did the concurrences of Justices Stevens and Kennedy. Arc of Washington State, Inc. v. Braddock, 427 F.3d 615, 617 (9th Cir. 2005) (quoting Sanchez v. Johnson, 416 F.3d 1051, 1064 n.7 (9th Cir. 2005). Indeed, defendants’ argument was rejected by the U.S. District Court for the Middle District of Florida in the related case, Haddad v. Arnold. See Haddad Op. at 19 n.12 and 33 (finding that Justice Ginsburg’s opinion controls and that defendants did not establish a fundamental alteration defense because they “failed to show that they have a comprehensive, effectively working plan in place to address unnecessary institutionalization.”); see also Frederick L. v. Dept. of Public Welfare, 422 F.3d 151, 157 (3d Cir. 2005) (a comprehensive, effectively working plan is a necessary component of a successful fundamental alteration defense).
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TBI/SCI Waiver program). Indeed, with respect to the TBI/SCI waiver program, defendants have sought to limit the number of slots available to persons at risk of institutionalization, and only 309 of the 375 approved slots are occupied. See Exhibit 1 hereto; Morgan Aff. ¶ 14. While defendants identify plaintiffs’ “prioritization scores,” they fail to provide any information concerning the average length of time on the waiting list, the rate of turnover, or when, if ever, plaintiffs and the many others on the wait list at risk of institutionalization can expect to move off the wait list. Instead, defendants’ opposition papers confirm that no one else will be moved off the waiting list unless they first submit to institutionalization. Thus, the information provided by defendants only serves to underscore that they have no plan or commitment to avoid unnecessary institutionalization.
Second, defendants fail to show that the requested relief would fundamentally alter their program or affect their ability to provide services to others with disabilities. They provide no support for their argument that placing plaintiffs in the TBI/SCI waiver program would reduce the availability of services to others on the wait list with higher “prioritization scores” or others in the waiver program. Indeed, the evidence shows otherwise. As the State acknowledges, it generally saves money when a Medicaid recipient is served in a home and community-based services waiver program rather than a nursing home. See Morgan Aff. ¶ 15. While the average per capita rate at which Medicaid reimburses Florida nursing homes for Medicaid services is roughly $6,276.00 per month, the average monthly per capita cost of services in the TBI/SCI waiver program during fiscal year 2008-2009 was $2,361.47. See p. 6, supra. As the court noted in Haddad, “for budgeting purposes, Defendants assume a two-to-one savings for those diverted from nursing homes.” Haddad Op. at 12; see also Morgan Aff. ¶ 16.
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Defendants do not dispute that it costs less to provide community-based services. Instead, they argue that the costs of institutional and community-based services cannot be compared because they are independently funded by the legislature, and defendants have no authority themselves to transfer funds from one funding source to another. This argument is without merit. Defendants cannot carve out from the fundamental alteration analysis particular monies the State spends on services for persons with spinal cord injuries. The relevant resources for purposes of evaluating a fundamental alteration defense in this context consist of all money the State receives, allots or spends to provide services to persons with spinal cord injuries. See Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 350 (E.D.N.Y. 2009) (rejecting state’s argument that relevant budget was solely the budget of one state agency, when other agencies and programs also spent money on services to persons with disabilities).
Nor can defendants hide behind state budgetary processes to avoid compliance with federal anti-discrimination law. See, e.g., Assoc’n of Surrogates and Supreme Court Rep’trs v. State of New York, 966 F.2d 75, 79 (2d Cir. 1992) (“[S]tate budgetary processes may not trump court-ordered measures necessary to undo a federal constitutional violation….”); Haddad Op. at 32-33 (“[T]o the extent Defendants’ refusal to provide services is based on its financial structure, the Court notes that budgetary constraints, taken alone, are not enough to establish a fundamental alteration defense.”) (quoting Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Public Welfare, 402 F.3d 374, 381 (3d Cir. 2005)).14 In sum, defendants have provided no support for their assertion that providing services to the plaintiffs in the community instead of an institution would work a fundamental alteration.
14 Cf. Biggs v. Wilson, 1 F.3d 1537, 1543 (9th Cir. 1993) (rejecting state’s argument that Tenth Amendment preempts Fair Labor Standards Act (“FLSA”) and finding that non-compliance with FLSA is not excused by state budgetary processes).
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3. Defendants’ Interpretation of Federal Law is Unfounded Defendants argue that the relief requested pursuant to the ADA and the Rehabilitation Act is inconsistent with other federal laws. First, they assert that the ADA’s Personal Devices and Services Regulation, 28 C.F.R. § 35.135, exempts Florida from having to provide “services of a personal nature.” (Defs.’ Opp. at 15-16.) This argument was explicitly rejected by the court in the Haddad action. Haddad Op. at 27 (“Defendants’ argument misses the mark. The ADA does not require states to provide a level of care or specific services, but once states choose to provide certain services, they must do so in a nondiscriminatory fashion.”). The regulation merely establishes that Title II does not require a state to provide personal services where such services are not “customarily provided.” See U.S. Dept. of Justice, ADA Title II Technical Assistance Manual § II-3.6200. Indeed, courts that have held that §35.135 imposes any limits on a state’s duty to provide reasonable accommodations have only done so, as the Department’s interpretation contemplates, where such devices or services are not “customarily provided.” See, e.g., McCauley v. Winegarden, 60 F.3d 766, 767 (11th Cir. 1995) (“environmental filtering” device in a courtroom); Kerry M. v. Manhattan School Dist. #114, 2006 WL 2862118, at *10 (N.D. Ill. 2006) (collapsible wheelchair in school district’s bus service); Blatch ex rel. Clay v. Hernandez, 360 F. Supp. 2d 595, 630 (S.D.N.Y. 2005) (expert representatives in tenancy termination proceedings); Rivera v. Delta Air Lines, Inc., 1997 WL 634500, at *1-2 (E.D. Pa. 1997) (wheelchair to board airplane); Adelman v. Dunmire, 1996 WL 107853, *3 (E.D. Pa. 1996) (wheelchair in courtroom).15 Thus, where, as here, the services
15 Other courts have interpreted § 35.135 narrowly. For example, in A.P. ex rel. Peterson v. Anoka-Hennepin Indep. School Dist. No. 11, 538 F. Supp. 2d 1125, 1152-53 (D. Minn. 2008), the court held that § 35.135 does not bar a diabetic child’s parents from requesting that school district staff be trained and authorized to provide glucagon injections to the child. Similarly, in Purcell v. Pennsylvania Department of Corrections, 1998 WL 10236, at *9 (E.D. Pa. 1998), the court rejected the state’s argument that it was not required under the ADA to provide a plastic
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sought by plaintiffs are customarily provided in the institutional setting into which they will be
relegated absent a reasonable modification of the defendants’ waiver admission policies, the
limitation expressed by 28 C.F.R. § 35.135 has no bearing.
Second, defendants argue that providing community-based services to the plaintiffs
would require this Court “invalidate,” “amend” or “repeal” the Medicaid Act. This argument
was also explicitly rejected by the court in Haddad as “unavailing.” Haddad Op. at 28. A
determination that plaintiffs should be provided services to avoid institutionalization does not
require a finding that states cannot cap enrollment in waiver programs or that they must provide
personal care services as a mandatory (as opposed to optional) Medicaid service.16 Instead, it
entails a finding that because defendants have elected to provide personal care services, they
must administer those services in accordance with the ADA.17 As the court in Haddad correctly
held:
A state that chooses to provide optional services cannot defend against the discriminatory administration of those services simply because the state was not initially required to provide them. Indeed, Defendants have provided no authority for the proposition that a state that chooses to provide Medicaid services, even if otherwise optional, would not be required to comply with the ADA in the provision of those services, just as it would have to comply with the ADA for any other ‘services, programs, or activities’ provided by a public entity.
Haddad Op. at 28.
chair for support in shower to accommodate plaintiff’s joint disease. 16 Defendants’ argument is particularly nonsensical given that the TBI/SCI program is not operating at full capacity. Thus, they would not need to “uncap” the program to provide services to the plaintiffs. 17 As CMS has indicated in technical assistance to the states, the mere fact that a state is permitted to “cap” the number of individuals it serves on a particular waiver under the Medicaid Act does not by itself determine whether a requested modification would result in a fundamental alteration under the ADA. See CMS, Olmstead Update No. 4, at 4 (Jan. 10, 2001), available at http://www.cms.hhs.gov/smdl/downloads/smd011001a.pdf (“If other laws (e.g., ADA) require the State to serve more people, the State may…request an increase in the number of people permitted under the HCBS Waiver.”) (Attached hereto as Exhibit 6).
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Finally, defendants argue that their practice of requiring individuals to undergo institutionalization prior to receiving community-based services for which they are qualified has been sanctioned by Congress, because Congress has authorized grants to states for programs designed to transition into the community individuals who have been institutionalized for more than 90 days. Defendants’ argument mischaracterizes the purpose of the grant program. The program, called the Money Follows the Person Rebalancing Demonstration, was “designed to provide assistance to States to balance their long-term care systems and help Medicaid enrollees transition from institutions to the community” and “reflects a growing consensus that long-term supports must be transformed from being institutionally-based and provider-driven to ‘personcentered’ consumer directed and community-based.” See Money Follows the Person Rebalancing Grant Demonstration Program, Initial Announcement and Invitation to Apply, July 26, 2010 at 5 (attached as Exhibit A to Affidavit of Elizabeth Y. Kidder, dated Sept. 9, 2010, ECF No. 33-1). It simply does not follow, as defendants argue, that Congress intended the program to be used to drive individuals into institutional settings. Defendants’ interpretation of the program as “incentivizing” states to redirect individuals who already reside in the community to institutions for the purposes of increasing available community-based funds is contrary to Congress’s express purpose in authorizing the program.18 B. Plaintiffs Will Suffer Irreparable Harm if an Injunction is not Issued
As many courts have held, requiring an individual to submit to unnecessary institutionalization in order to receive state services—even temporarily—results in irreparable
18 Deficit Reduction Act Section 6071, Pub. L. No. 109-171 (purpose of the program is to “increase the use of home-and-community-based [services]” and “eliminate barriers or mechanisms that prevent or restrict the flexible use of Medicaid funds to enable Medicaideligible individuals” to receive HCBS Services).)
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harm. See Marlo M., 679 F. Supp. 2d at 638 (finding irreparable harm even if institutionalization were only temporary and recognizing the “regressive consequences” that such placements would have on the individuals); Crabtree v. Goetz, No. 08-0939, 2008 WL 5330506 *25 (M.D. Tenn. Dec. 19, 2008) (finding that unnecessary institutionalization “would be detrimental to [plaintiffs’] care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or death”); Long v. Benson, No. 08cv26, 2008 WL 4571903 *2 (N.D. Fla. Oct. 14, 2008) (finding irreparable harm where individual would be forced to leave his community placement and enter a nursing home and specifically recognizing the “enormous psychological blow” that such placements would cause due to the “ very substantial difference in [plaintiff’s] perceived quality of life in the apartment as compared to the nursing home, each day he is required to live in the nursing home”).
The Olmstead Court itself recognized the harm that results from unnecessary institutionalization. Specifically, the Court recognized that needless institutionalization perpetuates “unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and that severing individuals from their communities “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Olmstead, 527 U.S. at 600-01. Should plaintiffs be required to enter a nursing home to receive services, they will sacrifice these exact benefits of community integration. They will be forced to sever ties to their communities and lose the independence and freedom they now enjoy in their daily lives.19
19 Additionally, given Mr. Cruz’s prior experiences in institutions, it is certain that he would become depressed if he was forced out of the community placement he has been living in for 12 years. (Cruz Decl. ¶9.). In addition to the physical and emotional harms of institutional
17

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C. The Balance of Hardships Tips in Plaintiffs’ Favor The hardship to defendants of providing services to plaintiffs in a community setting
under the waiver program is negligible and is clearly outweighed by the benefit of allowing plaintiffs to remain in their homes. Long, 2008 WL 4571903 at *3 (N.D. Fla. Oct. 14, 2008) (“If, as it ultimately turns out, treating individuals like [the plaintiff] in the community would require a fundamental alteration of the Medicaid program, so that the Secretary prevails in this litigation, little harm will have been done. To the contrary, [plaintiff’s] life will have been better, at least for a time.”). Allowing Messrs. Cruz and De La Torre to receive community-based services without first entering a nursing home will save defendants and its Medicaid program money because it will cost less than placing them in a nursing home. See pp. 12-14 supra. The lack of hardship to defendant stands in stark contrast to the significant hardship the plaintiffs face if no injunction is granted. D. Granting a Preliminary Injunction is in the Public Interest
There is a strong public interest allowing plaintiffs to remain in their homes and in eliminating the discriminatory effects that arise from segregating persons with disabilities into institutions when they can be appropriately placed in community settings. As the Olmstead Court explained, the unjustified segregation of persons with disabilities stigmatizes them as incapable or unworthy of participating in community life. Olmstead, 527 U.S. at 600.
placements, it is likely that Mr. Cruz would lose his current housing if he was forced to move into the nursing home. Affordable, accessible housing is scarce, and it is very likely that if he loses his apartment, he would have significant challenges in finding another apartment after the nursing home. Marlo M., 679 F.Supp. 2d at 638 (recognizing that if plaintiff were “removed during the pendency of the lawsuit and prevail, there is no indication the [accessible] apartment or a similar one will be available for her.”).
18

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See also Haddad Opinion at 38(“[T]he public interest favors preventing the discrimination that faces Plaintiff so that she may avoid unnecessary institutionalization … [and] upholding the law and having the mandates of the ADA and Rehabilitation Act enforced….”).
The public also has an interest “in protecting its pocketbook.” Florida Wildlife Fed’n v. Goldschmidt, 506 F.Supp. 350, 373 (C.D. Fla. 1981). As noted above, it is less costly to provide community-based services than it is to provide services in a nursing home. The public interest favors a preliminary injunction where such a fiscal loss would otherwise result.
Conclusion The Court should grant Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs have demonstrated that the Complaint satisfies all the requirements for this Court to grant a preliminary injunction, and as such, the Court has authority to grant plaintiffs the relief that they seek in this matter.

Dated: September 14, 2010
WIFREDO A. FERRER United States Attorney Southern District of Florida
VERONICA HARRELL-JAMES Assistant United States Attorney 99 N.E. 4th Street Miami, FL 33132 Telephone: (305) 961-9327 Veronica.Harrell-James@usdoj.gov

Respectfully submitted,
ERIC H. HOLDER, JR. Attorney General of the United States
THOMAS E. PEREZ Assistant Attorney General
SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
/s/ Anne S. Raish JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief ANNE S. RAISH, Trial Attorney Special Bar No. A5501524
19

Case 1:10-cv-23048-UU Document 40 Entered on FLSD Docket 09/14/2010 Page 20 of 22 Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 305-1321 Facsimile: (202) 307-1197 Anne.Raish@usdoj.gov Counsel for United States of America
20

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Certificate of Service I hereby certify that on September 14, 2010, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.
/s/ Veronica Harrell-James Veronica Harrell-James Assistant United States Attorney Florida Bar No. 644791 99 N. E. 4th Street, 3rd Floor Miami, Florida 33132 Tel No.: (305) 961-9327 Fax No.:(305) 530-7139 Veronica.Harrell-James@usdoj.gov Counsel for United States
21

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SERVICE LIST
LUIS CRUZ and NIGEL DE LA TORRE versus ELIZABETH DUDEK, in her official capacity as Secretary, Florida Agency for Health Care Administration, and DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health
Case No. 10-23048-Civ—Ungaro/Simonton United States District Court, Southern District of Florida

Steven Randolph Browning Spohrer & Dodd, P.L. 701 W Adams Street Suite 2 Jacksonville , FL 32204 Phone: (904)309-6500 Fax: (904)309-6501 sbrowning@sdlitigation.com Counsel for Plaintiffs Served via ECF
Jay M. Howanitz Spohrer & Dodd, PL 701 W Adams STreet Suite 2 Jacksonville , FL 32204 Phone: (904)309-6500 Fax: (904)309-6501 Counsel for Plaintiffs Served via ECF

Andrew T. Sheeran Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive Building 3, MS #3 Tallahassee, FL 32308 Phone: (850) 412-3630 Fax: (850) 921-0158 andrew.sheeran@ahca.myflorida.com Counsel for Defendants Served via ECF
Morris Shelkofsky Assistant General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32308 Phone: (850) 245-4005 Morris_Shelkofsky@doh.state.fl.us Served by ECF

Stephen F. Gold Law Office of Stephen F. Gold 1709 Benjamin Franklin Pkwy Suite 2 Philadelphia , PA 19103 Phone: (215)627-7100 Fax: (215)627-3183 stevegoldada@cs.com Counsel for Plaintiffs Served by ECF
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 Case: 1:10-cv-23048 As of: 10/12/2012 02:19 PM EDT 1 of 9
CLOSED,EGT,MEDIATION
U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:10−cv−23048−UU

Cruz et al v. Arnold et al Assigned to: Judge Ursula Ungaro Referred to: Magistrate Judge Edwin G. Torres Case in other court: Florida Middle, 3:10−cv−00725 Cause: 42:12182 Americans with Disabilities Act
Plaintiff

Date Filed: 08/25/2010 Date Terminated: 04/18/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Luis Cruz

represented by Steven Randolph Browning Spohrer &Dodd, P.L. 701 W Adams Street Suite 2 Jacksonville, FL 32204 904−309−6500 Fax: 904−309−6501 Email: sbrowning@sdlitigation.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Michael Howanitz Spohrer &Dodd, PL 701 W Adams STreet Suite 2 Jacksonville, FL 32204 904−309−6500 Fax: 904−309−6501 Email: jhowanitz@sdlitigation.com ATTORNEY TO BE NOTICED

Stephen F. Gold Law Office of Stephen F. Gold 1709 Benjamin Franklin Pkwy Suite 2 Philadelphia, PA 19103 215−627−7100 Fax: 215−627−3183 Email: stevegoldada@cs.com ATTORNEY TO BE NOTICED

Plaintiff Nigel De La Torre

represented by Steven Randolph Browning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Michael Howanitz (See above for address) ATTORNEY TO BE NOTICED

Stephen F. Gold (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:10-cv-23048 As of: 10/12/2012 02:19 PM EDT 2 of 9

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

represented by Andrew T. Sheeran Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive Building 3, MS #3 Tallahassee, FL 32308 850−412−3630 Fax: 850−921−0158 Email: Andrew.Sheeran@ahca.myflorida.com ATTORNEY TO BE NOTICED

Enoch Jonathan Whitney Office of Attorney General PL−01 The Capitol Tallahassee, FL 32399−1050 850−414−3300 Fax: 850−488−4872 Email: jon.whitney@myfloridalegal.com ATTORNEY TO BE NOTICED

Defendant
Ana Viamonte Ros Doctor, in her official capacity as Surgeon General, Florida Department of Health

represented by Morris Eugene Shelkofsky , Jr. Fla. Dept. of Health Office of General Counsel 4052 Bald Cypress Way Bin # C−65 Tallahassee, FL 32399−3265 850−245−4640 Fax: 850−245−4662 Email: Morris_Shelkofsky@doh.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew T. Sheeran Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive Building 3, MS #3 Tallahassee, FL 32308 850−412−3630 Fax: 850−921−0158 Email: andrew.sheeran@ahca.myflorida.com TERMINATED: 08/25/2010 ATTORNEY TO BE NOTICED

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

Defendant Secretary AHCA Elizabeth Dudek, Fl

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

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

Defendant
Surgeon General Harry Frank Farmer, Jr., M.D.

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

Case: 1:10-cv-23048 As of: 10/12/2012 02:19 PM EDT 3 of 9

Date Filed 08/18/2010
08/18/2010 08/18/2010 08/18/2010 08/18/2010 08/18/2010 08/18/2010
08/18/2010 08/18/2010
08/20/2010 08/20/2010 08/23/2010
08/25/2010
08/25/2010 08/25/2010
08/25/2010 08/26/2010
08/31/2010
08/31/2010 09/02/2010

# Docket Text
1 COMPLAINT against Thomas Arnold, Ana Viamonte Ros (Filing fee $ 350 receipt number J35779) filed by Nigel De La Torre, Luis Cruz.(TL) (Entered: 08/18/2010)
2 MOTION for preliminary injunction, MOTION to expedite hearing and memorandum of law by Luis Cruz, Nigel De La Torre. (TL) (Entered: 08/18/2010)
3 DECLARATION of Luis J. Cruz re 2 MOTION for preliminary injunction MOTION to expedite hearing by Luis Cruz. (TL) (Entered: 08/18/2010)
4 DECLARATION of Nigel De La Torre re 2 MOTION for preliminary injunction MOTION to expedite hearing by Nigel De La Torre. (TL) (Entered: 08/18/2010)
5 DECLARATION of Alejandrina Padro re 2 MOTION for preliminary injunction MOTION to expedite hearing. (TL) (Entered: 08/18/2010)
Summons issued as to Thomas Arnold. (TL) (Entered: 08/18/2010)
6 AMENDED STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Jacksonville Divisional Judges on 5/25/05. (TL) (Entered: 08/18/2010)
Summons issued as to Ana Viamonte Ros. (TL) (Entered: 08/18/2010)
7 ORDER re 1 Complaint &2 Motion; directing plaintiffs to advise Court regarding venue by noon on 8/20/2010. Signed by Judge Timothy J. Corrigan on 8/18/2010.(SRW) (Entered: 08/18/2010)
8 RESPONSE re 7 Order of August 18, 2010 filed by Luis Cruz. (Gold, Stephen) (Entered: 08/20/2010)
9 RESPONSE re 8 Response Corrected Fax Number filed by Luis Cruz. (Gold, Stephen) (Entered: 08/20/2010)
10 ORDER directing Clerk to transfer case to the Southern District of Florida, Miami Division for reassignment. Signed by Judge Timothy J. Corrigan on 8/23/2010. (SRW) (Entered: 08/23/2010)
11 Case transferred in from Florida Middle; Case Number 3:10−cv−00725. Electronic file including transfer order and docket sheet received. .(gme). (Entered: 08/25/2010)
12 Judge Assignment RE: Electronic Complaint to Judge Ursula Ungaro and Magistrate Judge Andrea M. Simonton (gme) (Entered: 08/25/2010)
Attorney Andrew T. Sheeran terminated as to Defendant Ana Viamonte Ros. Clerk mistakenly added attorney to this Defendant when case was transferred. Notice of Termination delivered by US Mail to Andrew Sheeran. (ksa) (Entered: 09/03/2010)
42 Bar Letter re: Admissions sent to attorney Jay M. Howanitz, mailing date September 15, 2010, (ksa) (Entered: 09/15/2010)
13 ORDER Setting Initial Planning and Scheduling Conference, ( Scheduling Conference set for 10/15/2010 10:30 AM before Judge Ursula Ungaro.). Signed by Judge Ursula Ungaro on 8/26/2010. (tb) (Entered: 08/27/2010)
14 ORDER OF REFERENCE to Magistrate Judge Andrea M. Simonton re 2 MOTION for preliminary injunction MOTION to expedite hearing filed by Luis Cruz, Nigel De La Torre. Signed by Judge Ursula Ungaro on 8/31/2010. (ls) (Entered: 08/31/2010)
20 MOTION for Appearance Pro Hac Vice for Andrew T. Sheeran. Filing Fee $ 75.00. Receipt # 6003. (ksa) (Entered: 09/03/2010)
15 NOTICE of Attorney Appearance by Steven Randolph Browning on behalf of Luis Cruz, Nigel De La Torre (Browning, Steven) (Entered: 09/02/2010)

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09/02/2010 09/02/2010 09/02/2010 09/02/2010 09/03/2010 09/03/2010 09/03/2010 09/03/2010 09/07/2010 09/07/2010
09/07/2010 09/09/2010 09/09/2010

16 NOTICE by Luis Cruz, Nigel De La Torre Filing Returns of Service (Browning, Steven) (Entered: 09/02/2010)
17 ORDER Setting Telephonic Status and Scheduling Conference regarding 2 Plaintiffs' Motion for Preliminary Injunction and Expedited Hearing for 9/7/2010 at 10:00 AM before Magistrate Judge Andrea M. Simonton. Signed by Magistrate Judge Andrea M. Simonton on 9/2/2010. (dlt) (Entered: 09/02/2010)
18 EMERGENCY MOTION for Leave to Exceed Page Limit by Thomas Arnold. (lh) (Entered: 09/03/2010)
24 SUMMONS (Affidavit) Returned Executed by Nigel De La Torre, Luis Cruz. Thomas Arnold served on 8/19/2010, answer due 9/9/2010; Ana Viamonte Ros served on 8/19/2010, answer due 9/9/2010. See DE 16 for image (tp) (Entered: 09/07/2010)
19 ORDER granting 18 Defendants' Emergency Motion for Leave to Exceed Page Limit. Defendants may file a response to Plaintiffs' Motion for Preliminary Injunction and Expedited Hearing that exceeds 20 pages but does not exceed 30 pages. Signed by Magistrate Judge Andrea M. Simonton on 9/3/2010. (dlt) (Entered: 09/03/2010)
21 CERTIFICATE of Counsel re 17 Order Setting Status Conference, Certificate of Consultation by Steven Randolph Browning on behalf of Luis Cruz, Nigel De La Torre (Browning, Steven) (Entered: 09/03/2010)
22 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Stephen F. Gold. Filing Fee $ 75.00. Receipt # 6170. (ksa) (Entered: 09/07/2010)
23 Clerks Receipt for PHV Motion for Stephen F Gold received on 9/3/2010 in the amount of $ 75.00, receipt number 6170 (lh) (Entered: 09/07/2010)
25 Clerks Notice to Filer re 16 Notice (Other). Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de# 24]. It is not necessary to refile this document. (tp) (Entered: 09/07/2010)
26 TEXT Minute Entry for proceedings held before Magistrate Judge Andrea M. Simonton: Telephonic Status and Scheduling Conference Re: 2 MOTION for preliminary injunction, MOTION to expedite hearing and memorandum of law by Luis Cruz, Nigel De La Torre, held on 9/7/2010 (10:00 AM − 10:45 AM). Attorneys Steven Browning, Jay Howanitz and Stephen Gold telephonically appeared on behalf of the Plaintiffs. Attorneys Andrew Sheeran and Morris Shelkofsky telephonically appeared on behalf of the Defendants. Defense counsel to file a notice with the Court advising that Elizabeth Dudek is presently the Interim Secretary, of Florida Agency for Health Care Administration. Plaintiffs to have declarations by 9/9/2010. Defendants to file their response to Plaintiffs' motion by COB 9/9/2010. Parties to advise the Court at the further telephone conference set, as to whether affiants' presence is required for cross examination. (Evidentiary Hearing set for 9/16/2010 02:00 PM in Miami Division before Magistrate Judge Andrea M. Simonton, A Further Status Conference set for 9/13/2010 04:00 PM in Miami Division before Magistrate Judge Andrea M. Simonton). (Digital 10:08:29.) (Tape #10−FX−87−96.) (aw) (Entered: 09/07/2010)
27 ORDER granting 20 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing ; granting 22 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing. Signed by Judge Ursula Ungaro on 9/7/2010. (tb) (Entered: 09/08/2010)
28 NOTICE by Ana Viamonte Ros Filing of Notice of Appearance on behalf of Morris Shelkofsky for Dr. Ana Viamonte Ros (Senior, Justin) (Entered: 09/09/2010)
29 NOTICE by Luis Cruz, Nigel De La Torre of Filing Cited Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Browning, Steven) (Entered: 09/09/2010)

Case: 1:10-cv-23048 As of: 10/12/2012 02:19 PM EDT 5 of 9

09/09/2010 09/09/2010 09/09/2010 09/09/2010 09/09/2010 09/09/2010 09/09/2010 09/09/2010 09/13/2010
09/13/2010
09/14/2010 09/14/2010 09/16/2010

30 AFFIDAVIT signed by : Nigel De La Torre. Supplemental Declaration by Nigel De La Torre (Attachments: # 1 Exhibit A − C)(Browning, Steven) (Entered: 09/09/2010)
31 AFFIDAVIT signed by : Luis J. Cruz. Supplemental Declaration by Luis Cruz (Browning, Steven) (Entered: 09/09/2010)
32 AFFIDAVIT signed by : Charlene A. Harrington, Ph.D.. Declaration of Charlene A. Harrington in Support of Plaintiffs' Motion for Preliminary Injunction by Luis Cruz, Nigel De La Torre (Attachments: # 1 Exhibit A, # 2 Exhibit A−1)(Browning, Steven) (Entered: 09/09/2010)
33 NOTICE by Thomas Arnold Notice of Filing Affidavit of Elizabeth Y. Kidder (Attachments: # 1 Affidavit Elizabeth Y. Kidder, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Senior, Justin) (Entered: 09/09/2010)
34 NOTICE by Thomas Arnold Notice of Filing Affidavit of Kristen Russell (Attachments: # 1 Affidavit Kristen Russell)(Senior, Justin) (Entered: 09/09/2010)
35 NOTICE by Thomas Arnold Notice of Filing Affidavit of S. Michele Morgan (Attachments: # 1 Affidavit S. Michele Morgan)(Senior, Justin) (Entered: 09/09/2010)
36 RESPONSE in Opposition re 2 MOTION for preliminary injunction MOTION to expedite hearing Response and Memorandum of Law in Opposition to Motion for Preliminary Injunction filed by Thomas Arnold. (Senior, Justin) (Entered: 09/09/2010)
37 MOTION to Dismiss 1 Complaint by Thomas Arnold. Responses due by 9/27/2010 (Senior, Justin) (Entered: 09/09/2010)
38 REPLY to Response to Motion re 2 MOTION for preliminary injunction MOTION to expedite hearing Plaintiffs Cruz and De La Torre's Reply to Defendants' Memorandum in Opposition to the Preliminary Injunction filed by Luis Cruz, Nigel De La Torre. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Browning, Steven) (Entered: 09/13/2010)
41 TEXT Minute Entry for proceedings held before Magistrate Judge Andrea M. Simonton: Telephonic Status and Scheduling Conference held on 9/13/2010 (4:00 PM − 4:20 PM). Attorneys Steven Browning, Jay Howanitz, Stephen Gold telephonically appeared on behalf of the Plaintiffs. Attorney Anne Raish telephonically appeared on behalf of the Government. Attorney Andrew Sheeran telephonically appeared on behalf of Defendant Thomas Arnold. Attorney Morris Shelkovsky appeared in person on behalf of Defendant Dr. Ana Viamonte Ros. Counsel for the Government advised that she will be filing a statement of interest, as well as, a notice of appearance in the case. Plaintiff's ore tenus motion to file a twenty−page reply brief is granted. The parties advised that the preliminary injunction hearing set 9/16/10, will be proceeding with oral argument, in lieu of live testimony. (Digital 16:07:15.) (Tape #10−FX−89−440.) (aw) (Entered: 09/14/2010)
39 NOTICE of Attorney Appearance by Veronica Vanessa Harrell−James on behalf of United States of America (Harrell−James, Veronica) (Entered: 09/14/2010)
40 Statement of: Interest by United States of America (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Harrell−James, Veronica) (Entered: 09/14/2010)
43 TEXT Minute Entry for proceedings held before Magistrate Judge Andrea M. Simonton: Motion Hearing held on 9/16/2010 (2:00 PM − 4:45 PM) re 2 MOTION for preliminary injunction MOTION to expedite hearing filed by Luis Cruz, Nigel De La Torre. Attorneys Stephen Gold and Jay Howanitz appeared on behalf of the Plaintiffs. Attorneys Anne Raish and Laura Crane appeared on behalf of the Government. Attorneys Andrew Sheeran and Justin Senior appeared on behalf of Defendant Agency for Health Care Administration. Attorney Morris Shelkovsky appeared on behalf of Defendant Dr. Ana Viamonte Ros. Plaintiffs Luis Cruz and Nigel De La Torre were also present at this hearing. Oral arguments heard. Defendants submitted to the Court, Exhibit #1, an additional Affidavit of Kristen

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09/23/2010
10/01/2010 10/01/2010 10/12/2010
10/15/2010 10/15/2010
10/19/2010 10/21/2010
10/26/2010
11/05/2010 11/09/2010 11/18/2010 11/23/2010 11/24/2010 01/14/2011 02/01/2011

Russell for purposes of this hearing. Report and Recommendation to follow. Court Reporter: Carly Horenkamp, 305−523−5138 / Carleen_Horenkamp@flsd.uscourts.gov (aw) Modified on 9/16/2010 (aw). (Entered: 09/16/2010)
44 RESPONSE in Opposition re 37 MOTION to Dismiss 1 Complaint Plaintiffs Memorandum of Law in Opposition to Defendants' Motion to Dismiss the Complaint filed by Luis Cruz, Nigel De La Torre. (Browning, Steven) (Entered: 09/23/2010)
45 REPLY to Response to Motion re 37 MOTION to Dismiss 1 Complaint filed by Thomas Arnold. (Sheeran, Andrew) (Entered: 10/01/2010)
46 SCHEDULING REPORT − Rule 16.1 by Ana Viamonte Ros (Shelkofsky, Morris) (Entered: 10/01/2010)
47 REPORT AND RECOMMENDATIONS re 2 MOTION for preliminary injunction filed by Luis Cruz, Nigel De La Torre Recommending that the preliminary injunction be granted. Expedited Objections to RRdue by 10/19/2010. Signed by Magistrate Judge Andrea M. Simonton on 10/12/2010. (AMS) (Entered: 10/12/2010)
48 ORDER REFERRING CASE to Mediation.. Signed by Judge Ursula Ungaro on 10/15/2010. (lk) (Entered: 10/18/2010)
49 SCHEDULING ORDER: ( Pretrial Conference set for 5/27/2011 09:30 AM in Miami Division before Judge Ursula Ungaro., Jury Trial set for 6/20/2011 09:00 AM in Miami Division before Judge Ursula Ungaro., Calendar Call set for 6/15/2011 01:00 PM in Miami Division before Judge Ursula Ungaro., Amended Pleadings due by 11/19/2010., Discovery due by 2/25/2011., Joinder of Parties due by 11/19/2010., In Limine Motions due by 4/8/2011., Motions due by 3/25/2011., Pretrial Stipulation due by 4/15/2011.). Signed by Judge Ursula Ungaro on 10/15/2010. (lk) (Entered: 10/18/2010)
50 OBJECTIONS to 47 Report and Recommendations by Thomas Arnold. (Attachments: # 1 Exhibit)(Sheeran, Andrew) (Entered: 10/19/2010)
51 ORDER REQUIRING RESPONSE to 50 Objections to Report and Recommendations filed by Thomas Arnold. Plaintiffs Responses due by 10/26/2010). Signed by Judge Ursula Ungaro on 10/21/10. (tp) (Entered: 10/22/2010)
52 RESPONSE/REPLY to 51 Order, Set/Reset Deadlines Status Update Regarding Plaintiffs Luis Cruz and Nigel De La Torre and Plaintiffs' Response to Defendants' Objections to Magistrate's Report by Luis Cruz, Nigel De La Torre. (Attachments: # 1 Exhibit)(Browning, Steven) (Entered: 10/26/2010)
53 Order Requiring Response Show Cause Response due by 11/10/2010. Signed by Judge Ursula Ungaro on 11/5/2010. (jcy) (Entered: 11/05/2010)
54 NOTICE of Mediator Selection: Rodney Max selected.(Howanitz, Jay) (Entered: 11/09/2010)
55 STATUS REPORT by Luis Cruz, Nigel De La Torre (Attachments: # 1 Exhibit)(Howanitz, Jay) (Entered: 11/18/2010)
56 Order Setting Oral Argument ( Hearing set for 12/1/2010 10:30 AM in Miami Division before Judge Ursula Ungaro.). Signed by Judge Ursula Ungaro on 11/23/2010. (jcy) (Entered: 11/23/2010)
57 ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATIONS. Signed by Judge Ursula Ungaro on 11/24/2010. (jcy) (Entered: 11/24/2010)
58 Order on Motion to Dismiss. Signed by Judge Ursula Ungaro on 1/14/2011. (jcy) (Entered: 01/18/2011)
59 ANSWER and Affirmative Defenses to Complaint by Thomas Arnold and by Ana Viamonte Ros. by Ana Viamonte Ros.(Shelkofsky, Morris) (Entered: 02/01/2011)

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03/25/2011 03/25/2011 04/01/2011 04/08/2011 04/13/2011 04/15/2011 04/18/2011 04/18/2011 06/20/2011 06/22/2011 07/05/2011
07/06/2011 07/19/2011 07/19/2011

60 AFFIDAVIT signed by : Kristen Russell. Notice of Filing by Elizabeth Dudek (Attachments: # 1 Affidavit Kristen Russell)(Sheeran, Andrew) (Entered: 03/25/2011)
61 MOTION to Dismiss 1 Complaint as Moot by Elizabeth Dudek. Responses due by 4/11/2011 (Sheeran, Andrew) (Entered: 03/25/2011)
62 Case Reassignment of Paired Magistrate Judge pursuant to Administrative Orders 2010−145 and 2011−18 to Magistrate Judge Torres. Magistrate Judge Andrea M. Simonton no longer assigned to case. (vp) (Entered: 04/05/2011)
63 Agreed MOTION for Extension of Time to respond to Defendants' Motion to Dismiss by Luis Cruz, Nigel De La Torre. Responses due by 4/25/2011 (Howanitz, Jay) (Entered: 04/08/2011)
64 Order on Motion for Extension of Time ( Responses due by 4/15/2011). Signed by Judge Ursula Ungaro on 4/13/2011. (jcy) (Entered: 04/14/2011)
65 STIPULATION of Dismissal with Prejudice by Thomas Arnold, Luis Cruz, Nigel De La Torre, Elizabeth Dudek, Ana Viamonte Ros (Howanitz, Jay) (Entered: 04/15/2011)
66 Order of Voluntary Dismissal. Signed by Judge Ursula Ungaro on 4/18/2011. (jcy) (Entered: 04/19/2011)
67 Administrative Order Closing Case. Signed by Judge Ursula Ungaro on 4/18/2011. (jcy) (Entered: 04/19/2011)
68 Unopposed MOTION to Reopen Case by Luis Cruz, Nigel De La Torre. (Howanitz, Jay) (Entered: 06/20/2011)
69 Order on Motion to Reopen Case. Signed by Judge Ursula Ungaro on 6/22/2011. (jcy) (Entered: 06/23/2011)
70 MOTION for Attorney Fees and Expenses by Luis Cruz, Nigel De La Torre. Responses due by 7/22/2011 (Attachments: # 1 Exhibit Gold declaration, # 2 Exhibit Browning declaration, # 3 Exhibit Howanitz declaration, # 4 Exhibit Gold resume, # 5 Exhibit Browning resume, # 6 Exhibit Howanitz resume, # 7 Exhibit Gold timesheet, # 8 Exhibit Browning and Howanitz timesheets, # 9 Exhibit Expert Gary Fox declaration)(Howanitz, Jay) (Entered: 07/05/2011)
71 ORDER REFERRING MOTION: 70 MOTION for Attorney Fees and Expenses filed by Luis Cruz, Nigel De La Torre Motions referred to Edwin G. Torres. Signed by Judge Ursula Ungaro on 7/6/2011. (ls) (Entered: 07/06/2011)
72 NOTICE of Attorney Appearance by Enoch Jonathan Whitney on behalf of Thomas Arnold, Elizabeth Dudek, Ana Viamonte Ros, Harry Frank Farmer, Jr., M.D. (Whitney, Enoch) (Entered: 07/19/2011)
73 RESPONSE in Opposition re 70 MOTION for Attorney Fees and Expenses (Defendants' Response and Memorandum of Law in Opposition to Plaintiffs' Motion for Attorneys' Fees and Litigation Expenses), filed by Thomas Arnold, Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Ana Viamonte Ros. (Attachments: # 1 Exhibit "A" (Order Denying Plaintiff Jones' Motion to Amend First Amended Complaint), # 2 Exhibit "B" (Stipulation of Dismissal of Class Action Claims filed in Jones case), # 3 Exhibit "C" (attorney Gold's disallowed hours related to Jones case), # 4 Exhibit "D" (attorney Howanitz disallowed hours related to Jones case), # 5 Exhibit "E" (Complaint filed in Haddad v. Arnold), # 6 Exhibit "F" (Motion for Leave to Amend First Amended Complaint filed in Jones case), # 7 Exhibit "G" (Amended Complaint filed in Robledo v. Dudek), # 8 Exhibit "H" (Examples of excessive hours or no showing of necessity for attorney Gold), # 9 Exhibit "I" (Examples of excessive hours or no showing of necessity for attorney Howanitz), # 10 Exhibit "J" (Examples of excessive hours or no showing of necessity for attorney Browning), # 11 Exhibit "K" (Hours claimed by attorney Gold with objections), # 12 Exhibit "L" (Hours claimed by attorney Howanitz with objections), # 13 Exhibit "M" (Hours claimed by attorney Browning with objections))(Whitney, Enoch) (Entered: 07/19/2011)

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07/25/2011
07/26/2011 08/02/2011 08/02/2011 08/05/2011 08/19/2011
08/26/2011 09/02/2011 09/08/2011
09/19/2011 09/20/2011 10/21/2011 11/03/2011

74 NOTICE of Compliance (Defendants' Notice of Filing Affidavit Pursuant to Local Rule 7.3(a)(8)) by Thomas Arnold, Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Ana Viamonte Ros re 73 Response in Opposition to Motion,,,,,, filed by Harry Frank Farmer, Jr., M.D., Elizabeth Dudek, Ana Viamonte Ros, Thomas Arnold (Attachments: # 1 Exhibit "A" (Affidavit of Enoch J. Whitney, Setting Forth Office of the Attorney General's Hourly Rates))(Whitney, Enoch) (Entered: 07/25/2011)
75 Unopposed MOTION for Extension of Time to file reply brief re 73 Response in Opposition to Motion,,,,,, by Luis Cruz, Nigel De La Torre. Responses due by 8/12/2011 (Howanitz, Jay) (Entered: 07/26/2011)
76 ORDER granting 75 Motion for Extension of Time to serve reply in support of Motion 70 for fees and costs, for the time period requested in the motion − through and including August 5, 2011. Docket Order Signed by Magistrate Judge Edwin G. Torres on 8/2/2011. (EGT) (Entered: 08/02/2011)
Reset Deadlines as to 70 MOTION for Attorney Fees and Expenses. Replies due by 8/5/2011. (tp) (Entered: 08/03/2011)
77 REPLY to Response to Motion re 70 MOTION for Attorney Fees and Expenses filed by Luis Cruz, Nigel De La Torre. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Howanitz, Jay) (Entered: 08/05/2011)
78 MOTION for Hearing re 70 MOTION for Attorney Fees and Expenses, 77 Reply to Response to Motion, 73 Response in Opposition to Motion,,,,,, (Defendants' Request for Oral Argument upon Plaintiffs' Motion for Attorney's Fees and Litigation Costs and Defendants' Response in Oppostion), MOTION for Extension of Time to enlarge the time in which to request oral argument ( Responses due by 9/6/2011) by Thomas Arnold, Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Ana Viamonte Ros. (Whitney, Enoch) (Entered: 08/19/2011)
79 RESPONSE in Opposition to Defendant's Belated Request for Oral Argument on Pending Motion for Attorneys' Fees filed by Luis Cruz, Nigel De La Torre. (Howanitz, Jay) (Entered: 08/26/2011)
80 REPLY to Response to Motion REQUESTING ORAL ARGUMENT AND MOTION FOR ENLARGMENT OF TIME TO REQUEST ORAL ARGUMENT, filed by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D.. (Whitney, Enoch) (Entered: 09/02/2011)
81 ORDER denying 78 Motion for Hearing; denying 78 Motion for Extension of Time to file Motion for Hearing. The request for hearing is untimely, but in any event the request for oral argument is Denied. If the Court determines upon final review of the issues raised in the underlying moion that a hearing is necessary, it shall be Ordered at that time. Docket Order Signed by Magistrate Judge Edwin G. Torres on 9/8/2011. (EGT) (Entered: 09/08/2011)
82 Notice of Supplemental Authority re 73 Response in Opposition to Motion,,,,,, by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit A, Dionne v. Floormasters Enterprises, Inc., 647 F. 3d 1109 (C.A. 11, July 28, 2011))(Whitney, Enoch) (Entered: 09/19/2011)
83 Notice of Supplemental Authority re 70 MOTION for Attorney Fees and Expenses by Luis Cruz, Nigel De La Torre, Rodney A. Max (Attachments: # 1 Exhibit)(Howanitz, Jay) (Entered: 09/20/2011)
84 Notice of Supplemental Authority by Luis Cruz, Nigel De La Torre (Attachments: # 1 Exhibit Report and Recommendation)(Howanitz, Jay) (Entered: 10/21/2011)
85 Notice of Supplemental Authority re 73 Response in Opposition to Motion,,,,,, (Defendants Response and Memorandum of Law in Opposition to Plaintiffs Motion for Attorneys Fees and Litigation Expenses) by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit A, Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 573−74 (1992),)(Whitney, Enoch) (Entered: 11/03/2011)

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02/02/2012 02/13/2012
03/01/2012 03/02/2012 03/09/2012 03/16/2012

86 Notice of Supplemental Authority by Luis Cruz, Nigel De La Torre (Attachments: # 1 Exhibit)(Howanitz, Jay) (Entered: 02/02/2012)
87 REPORT AND RECOMMENDATION re 70 Plaintiffs' Motion for Attorney Fees and Costs; Recommending Motion be Granted in Part, Denied in Part − Objections to RRdue by 3/1/2012. Signed by Magistrate Judge Edwin G. Torres on 2/13/2012. (dgm) (Entered: 02/13/2012)
88 NOTICE of Settlement by Luis Cruz, Nigel De La Torre (Howanitz, Jay) (Entered: 03/01/2012)
89 Notice of Court Practice Upon Notice of Settlement. Signed by Judge Ursula Ungaro on 3/2/2012. (jcy) (Entered: 03/05/2012)
90 STIPULATION of Dismissal With Prejudice by Luis Cruz, Nigel De La Torre (Howanitz, Jay) (Entered: 03/09/2012)
91 Order of Dismissal with Prejudice. Signed by Judge Ursula Ungaro on 3/16/2012. (jcy) (Entered: 03/16/2012)