Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 1 of 18

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

WOLF PRADO-STEIMAN, by and through his mother
8 and next friend, LAURA PRADO, and M. C. , by anl}
through his mother and next friend, O.M., o
- 6 4 9 6 behalf of themselves and all other person

similarly situated, and the ADVOCACY CENTER

FOR PERSONS WITH DISABILITIES, INC.,

CIV-DAVIS

PLAINTIFFS,
-VB-
LAWTON CHILES in his official capacity as Governor and Chief Executive of the State of Florida, EDWARD FEAVER, in his official capacity as Secretary, Department of Children and Families, CHARLES KIMBER, in his official capacity as Deputy Secretary of the Department of Children and Families, DONNA ALLEN, in her official capacity as Assistant Deputy Secretary of the Department of Children and Families, JOHN BROWN, in his official capacity as Department of Children and Families District Administrator, District 10, DOUG COOK, Department of Children and Families, in his official capacity as Director of the Agency for Health Care Administration for the State of Florida, RICHARD T. LUTZ, in his official capacity as Director of Florida Medicaid for the Agency for Health Care Administration

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DEFENDANTS .

PLAINTIFFS' CLASS ACTION COMPLAINT PRELIMINARY STATEMENT
1. This is a statewide class action brought on behalf of the more than 20,000 individuals with developmental disabilities eligible for services under Florida's Medicaid Home and Community Based Services Waiver Program ("Home and Community Based Waiver"), who have been denied procedural due process and adequate services.
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 2 of 18
As a result of the lack of services in the community, individuals are institutionalized.
2. Plaintiffs seek a declaration that denial of procedural due process and adequate services with reasonable promptness violates Title XIX of the Social Security Act, 42 U.S.C. § 1396a, 42 C.F.R § 431.200, et seq., the Americans with Disabilities Act, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and 42 U.S.C. § 1983. Plaintiffs also seek injunctive relief to require defendants to comply with federal statutory and constitutional law.
JURISDICTION 3. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1343(3) and (4), and 42 U.S.C. § 1983. This Court is authorized to order the requested relief by these statutes and by 28 U.S.C. §§ 2201 and 2202. 4. This action arises under 42 U.S.C. § 12131, et seq., 29 U.S.C. § 794, and 42 U.S.C. § 1983.
VENUE
5. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391 (b) (1) and (b) (2) because (i) all defendants reside in districts in Florida and defendant John Brown reside in the Southern District of Florida and (ii) the cause of action arises within the Southern District of Florida as to Plaintiffs Wolf Prada-Steiman and M.C.
PLAINTIFFS 6. WOLF PRADO-STEIMAN is a seven year old boy with autism
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 3 of 18
who presently lives at home with his parents and older sister. His mother applied for Medicaid Waiver Services on his behalf and was provided with respite in Martin County. When she moved to Broward County, she was provided with behavioral services to address his behavioral issues. In or about April 1997, his mother was informed that his behavioral services were going to be terminated. SEWE not provided with any notice of appeal rights and rights to continued benefits. WOLF needs behavioral services urgently because school will be closed for one month this summer, and his behavioral problems, including running away, have increased. His mother has been told that he will be put on a waiting list for services.
7. M.C. is an 18 year old man with cerebral palsy. He uses a wheelchair and an augmentative communication device. His mother, O.M. has applied for Medicaid Waiver services on his behalf. She has requested and been denied personal care and respite services. Because he has grown, it is very difficult for her to continue to provide him personal care without assistance. M.C. wants companion services so that he can socialize like other teen-age boys.
8. THE ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. (ADVOCACY CENTER) provides protection and advocacy services to people with developmental disabilities pursuant to the Developmental Disabilities Act, 42 U.S. C. § 6042. In order to fulfill its responsibility to protect and advocate for persons with developmental and mental disabilities, the ADVOCACY CENTER has the authority to pursue legal remedies.
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 4 of 18
DEFENDANTS 9. LAWTON CHILES is Governor of the State of Florida and is sued here in his official capacity. CHILES has the responsibility to ensure that the agencies of the Executive Branch of the State, including the Department for Children and Families (DCF) and the Agency for Health Care Administration (AHCA), act in full compliance with the Constitution and the laws of the United States. 10. EDWARD FEAVER is Secretary of DCF and has responsibility for the control and the administration of human services, including the Developmental Services Program and its related Medicaid Program in the State of Florida. He is sued here in his official capacity. 11. CHARLES KIMBER is a Deputy Secretary for DCF and has responsibility for the control and the administration of human services, including the Developmental Services Program and its related Medicaid Program in the State of Florida. He is sued here in his official capacity. 12. JOHN BROWN is the District Administrator for DCF District 10, which includes Broward County. He is sued here in official capacity. 13. Defendant DOUG COOK is the Director of the Agency for Health Care Administration. He is sued here in his official capacity. He is responsible for administering the Florida Medicaid program so that it complies with federal law. 14. Defendant RICHARDT. LUTZ is the Director of the Division of Medicaid of AHCA. He is sued here in his official capacity. He is responsible for the overall operation of Medicaid and is
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 5 of 18
required to ensure that it complies with federal law. 15. All defendants have at all relevant times acted under
color of state law and knew of or should have known of the policies, practices, acts and conditions alleged.
CLASS ACTION ALLEGATIONS 16. The named plaintiffs bring this action on their own behalf and on behalf of all other similarly situated persons pursuant to Fed. R. Civ. P. 23(a), and (b) (2). 17. The proposed class consists of all current and future individuals with developmental disabilities who are receiving Home and Community Based Waiver Services or who are eligible to receive Home and Community Based Waiver Services. 18. The requirements of Fed.R.Civ.P. Rule 23(a) are satisfied in this case as follows: a. Numerosity: The class is so numerous that joinder of all members is impracticable. Upon information and belief, the class consists of more than 20,000 individuals. b. Commonality: There are questions of law or fact common to all named plaintiffs as well as to all members of the class, to wit: whether the defendants' have violated the Medicaid Act, 42 U.S.C. § 1983, and the Due Process and Equal Protection Clauses of the Constitution of the United States. c. Typicality: The claims of the named plaintiffs are typical of the claims of the class as a whole. d. Adequate representation: By filing this action, the named plaintiffs, individually and through their guardians and next
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 6 of 18

friends, have displayed an interest in vindicating their rights, as

well as the claims of others who are similarly situated. The named

plaintiffs will fairly and adequately protect and represent the

interests of the class. Furthermore, the named plaintiffs are

represented by legal counsel who are skilled and knowledgeable

about the Medicaid Program, civil rights litigation, practice and

procedure in the federal courts, and the prosecution and management

of class action litigation. The relief sought by the named

plaintiffs will inure to the benefit of members of the class

generally.

19. The requirement of Fed.R.Civ.P. 23(b) (2) is also

satisfied in this case. The defendants have acted or refused to

act on grounds generally applicable to the class, thereby making

appropriate declaratory relief, with respect to the class as a

whole. Although the disabilities of the class members vary, they

share in common a need for services provided by the Home and

Community Based Waiver Program.

STATUTORY AND CONSTITUTIONAL FRAMEWORK

20.

The Medicaid program, established by Title XIX of the

Social Security Act, 42 U.S.C. § 1396, et ~., is a cooperative

federal-state program to enable the states to furnish medical

assistance to families and individuals who are unable to meet the

costs of necessary medical services. 42 U.S.C. § 1396. Costs of

the program are shared by the federal and state governments, with

the federal government contributing approximately 55 per cent of

the cost of services in Florida.

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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 7 of 18
21. A state is not obligated to participate in the Medicaid Program. If a state elects to participate, however, it must operate its program in compliance with federal statutory and regulatory requirements. 42 U.S.C. § 1396a. Florida has chosen to participate in the Medicaid program.
22. Medicaid is permitted to control the utilization of covered services through the application of a medical necessity test. When applying a medical necessity standard, the Florida Medicaid Program must ensure that recipients with the most severe disabilities or conditions are served before recipients with less severe disabilities. 42 C.F.R. § 440.230(d).
23. State plans must also provide an opportunity for a fair hearing to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness. 42 U.S.C. § 1396a(3) and 42 C.F.R. § 431.200, et seq.
24. Defendants must mail and give advance notice at least ten (10) days before the date of termination of or reduction in Medicaid benefits. 45 C.F.R. § 431.211. 1 The purpose of the advance notice is to afford the recipient of the service an opportunity for a pre-termination hearing. 42 C.F.R. § 431.231(c).
VIII. THE HOME AND COMMUNITY-BASED WAIVER 25. Congress adopted the Home and Community-Based Waiver in order to allow individuals who would otherwise require care in a nursing home or ICF/DD to receive services in their own homes and
1 There are limited exceptions to the advance notice requirement at 45 C.F.R §§431.213 and 431.214, which are not applicable here.
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 8 of 18
in home-like settings. See Senate Report No. 97-139 and House Conference Report No. 97-208, 1981 U.S. Code Cong. & Admin. News., at 396.
26. The regulations state that "Section 1915(c) of the Act
permits states to offer, under a waiver of statutory requirements,
an array of home and community-based services that an individual needs to avoid institutionalization." 42 C.F.R. § 441.300 (emphasis added)
2 7. Under the waiver provisions of the Act, states may
include as "medical assistance" the cost of home or community based
services which, if not provided, would require care to be provided
in a nursing home or an Intermediate Care Facility for Persons with
Mental Retardation (Developmental Disabilities) ( ICF /DD) . 42
U.S.C. §1396n(c) i 42 C.F.R. § 435.217. 42 U.S.C. § 1396n(c) (1)
states: The Secretary may by waiver provide that 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 Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.
28. Federal law sets a ceiling for funds used under the Home
and Community Based Waiver. 42 U.S.C. § 1396n(c) (2) (D) requires
that "the average per capita expenditure estimated by the State in
any fiscal year for medical assistance provided with respect to
such individual does not exceed 100 percent of the average per
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 9 of 18

capita expenditure that the State reasonably estimates would have

been made in that fiscal year

if the waiver had not been

granted. " Thus, federal law permits states to fund Home and

Community-Based Waiver up to the same average rate as ICF/DDs.

29. Congress provided that a Home and Community-Based Waiver

shall not be granted unless the State provides assurances that

"necessary safeguards (including adequate standards for provider

participation) have been taken to protect the health and welfare of

individuals provided services under the waiver .

II 42 u.s.c.

§ 1396n(2) (A); 42 C.F.R. § 441.302 (a) Those safeguards must

include " [a] adequate standards for all types of providers that

provide services under the waiver." 42 C.F.R. § 441.302 (a) (1).

30. Congress also requires that individuals with

developmental disabilities have the freedom of choice as to whether

to receive services in an ICF/DD or under the Home and Community-

Based Waiver. 42 U.S.C. § 1396n(2) (C) provides that individuals

"who are determined to be likely to require the level of care

provided in a hospital, nursing facility, or intermediate care

facility for the mentally retarded are informed of the feasible

alternatives, if available under the waiver, at the choice of such

individuals, to the provision of inpatient hospital services,

nursing facility services, or services in an intermediate care

facility for the mentally retarded (developmentally disabled)."

31. Florida first obtained approval for a Home and Community-

Based Waiver in 1982 for day treatment services. A subsequent

request for a comprehensive amendment to Florida's Home and

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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 10 of 18
Community-Based waiver was approved in 1992 that adopts the philosophy of avoiding institutional care and provides supports and services to individuals with developmental disabilities in their own homes or home-like settings.
VIII. DEFENDANTS' UNLAWFUL ACTIONS 32. Defendants have consistently denied individuals with developmental disabilities their rights to HCBW services and to due process. 33. As a matter of practice, defendants do not provide plaintiffs with procedural due process protections. Typically, defendants deny individuals services, stating that funds are not available. Defendants do not provide notice that the Medicaid statute provides for procedural protections, including the right to appeal adverse determinations. 34. Defendants routinely terminate individuals like Wolf Prada-Steiman and M.C. from services and never provide any notice of procedural protections, including the right to appeal adverse determinations and the right to continued benefits pending appeal. 35. Defendants fail to provide individuals with services in the most integrated setting, their homes and community. Instead, defendants make services available only in institutional setting. Families that care for their children at home do not even receive the most basic services. For example, individuals in institutions who are not continent receive diapers whereas individuals who live at home with their families are routinely denied diapers. 36. Defendants routinely deny individuals physical therapy,
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 11 of 18

occupational therapy, speech therapy, and assistive technology

devices and services.

37. For many families, respite, personal care, and companion

services are vital to keep their family members home. Without

these services, many parents are forced to institutionalize their

children.

38. Despite defendants' claims of lack of funds, the federal

match (55%) is available for HCBW services.

Nonetheless,

defendants continue to serve many individuals eligible for HCBW

services with general revenue dollars, failing to take advantage of

the federal match.

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION

AMERICANS WITH DISABILITIES ACT

39. On July 12, 1990, Congress enacted the Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq., (ADA), establishing

the most important civil rights for persons with disabilities in

our nation's history.

40. Congress stated in its findings 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).

41. Congress found that "discrimination against individuals

with disabilities persists in

. institutionalization

. and

access to public services." 42 U.S. C. § 12101 (a) (3) .

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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 12 of 18

42. Congress found that "individuals with disabilities

continually encounter various forms of discrimination, including

outright intentional exclusion

, segregation, and relegation

to lesser services, programs, activities, benefits, jobs, or other

opportunities." 42 U.S.C. § 12101(a) (5)

43. Congress further found that:

individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.

42 U.S.C. § 12101(a) (7)

44. A major purpose of the ADA is to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities, and to

provide clear, strong, consistent and enforceable standards

addressing discrimination against individuals with disabilities.

42 u.s.c. § 12101(b)1&2.

45. Each plaintiff and each class member is a11 qualified

individual with a disability" within the meaning of 42 U.S.C. §

12131(2).

46. The Home and Community-Based Waiver program are public

services subject to Title II of the ADA, 42 U.S.C. §§ 12161-12165.

47. Defendants routinely deny individuals who live in their

own homes or with their families or in community settings services

such as physical therapy, occupational therapy, speech therapy, and

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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 13 of 18
dental services that are available to individuals who are in ICF/DDs.
48. Defendants' denial of necessary services, while offering the option of more expensive, institutional services violates the ADA, and specifically the "Integration Mandate" implementing the ADA as found in 28 C.F.R. § 35.130{d) 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."
49. The ADA also prohibits discrimination in access to covered services that are based on either severity of disability, or diagnosis.
50. DCF has engaged in diagnosis based decision making with their actions to deny or limit access to benefits, services and opportunities because the person has a particular disability, impairment or diagnosis.
SECOND CAUSE OF ACTION SECTION 504 OF THE REHABILITATION ACT OF 1973 51. Defendants receive federal funds and are therefore subject to the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794. 52. Plaintiffs meet the definition of having a "handicap" within the meaning of 29 U.S.C. § 706(7) and are otherwise qualified individuals under Section 504. 53. Defendants' practices, policies and procedures described above, violate the rights of plaintiffs and class members that are
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 14 of 18
secured by Section 504 by discriminating against these individuals solely on the basis of disability.
THIRD CAUSE OF ACTION PROCEDURAL DUE PROCESS AND SECTION 1983 54. Plaintiffs' eligibility for and receipt of Medicaid services creates a property right subject to due process protection under the Fourteenth Amendment to the Constitution of the United States. 55. Florida's Home and Community-Based Waiver specifically provides for a fair hearing, as required by 42 C.F.R. Part 431, subpart E, to Medicaid recipients who are denied the services(s) of their choice or the provider(s) of their choice. 56. Defendants have not provided any procedural protections for plaintiffs and class members. 57. By denying plaintiffs and class members the opportunity for a fair hearing to challenge the termination of Home and Community Based Waiver and for continued benefits, defendants have violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, federal Medicaid law and regulations, and the terms of Florida's Home and Community-Based Waiver.
FOURTH CAUSE OF ACTION 42 U.S. C. § 1396a(8) and 42 U.S.C. § 1983 58. Defendants fail to provide HCBW services with reasonable promptness in violation of 42 U.S.C. § 1936a(8) and 42 U.S.C. § 1983.
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 15 of 18
FIFTH CAUSE OF ACTION
42 U.S.C. § 1396n and 42 u.s.c. § 1983.
59. Serving individuals in institutions is contrary to the letter and intent of 42 U.S.C. § 1396n.
60. Defendants fund institutional placements using the Home and Community-Based Waiver. Such a use of HCBW funds violates the exclusion of institutional programs from the Home and CommunityBased Waiver program and therefore violates 42 U.S.C. § 1396n and
42 u.s.c. § 1983.
SIXTH CAUSE OF ACTION 4 2 U. S . C. § 13 9 6n (2 ) (a) and 4 2 U. S . C. § 19 83 61. Defendants are violating 42 U.S.C. § 1396n(2) (a) and 42 U.S. C. § 1983 by providing inadequate funds for the Home and Community-Based Waiver. Defendants do not provide sufficient resources to protect the health and welfare of individuals provide services under the waiver. 42 U.S.C. § 1396n(2) (A)
SEVENTH CAUSE OF ACTION 42 U.S.C. § 1396n(c) (2) and 42 U.S.C. § 1983 62. Defendants have violated 42 U.S.C. § 1396n(c) (2) by denying plaintiffs their freedom of choice of an appropriate Home and Community-Based Waiver program that meets their health and welfare needs. 63. Defendants provide only limited services to individuals to remain in their own homes, family homes or community homes. 64. By giving individuals a choice between the kinds of services at the same amount of funding, individuals have a true
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 16 of 18

choice.

65. Defendants are therefore in violation of 42 U.S. C. §

1396n(c) (2) and 42 U.S.C. § 1983.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that this Court:

A. Assume jurisdiction of this action.

B. Order that plaintiffs may maintain this action as a

class action pursuant to Rule 23, Fed.R.Civ.P.

C. Declare defendant's threatened termination of Home

and Community Based Waiver Services under the Medicaid program

without advance notice and an opportunity for a pre-termination

hearing and continued benefits unlawful.

D.

Award plaintiffs their costs and reasonable

attorneys' fees.

E. Grant such other and further relief as the Court

deems just and proper.

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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 17 of 18
Respectfully submitted,
(\X t<-~,.f'__-/ ~' ~t~'
~GuL~ETTE E. LIPPMAN Sen1or Attorney Fla. Bar No. 983292
ELLEN M. SAIDE Senior Attorney Fla. Bar No. 038751 ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. 2901 Stirling Road Suite 206 Fort Lauderdale, 33312 (954) 967-1493 (Facsimile) (954) 967-1496 Attorney for Plaintiffs PETER NIMKOFF Litigation Director Fla. Bar. No. 58840 ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. 2671 Executive Center, Circle W., Suite 100 Tallahassee, Florida 32301 (904)-488-9071 (Facsimile) (904) 488-8640
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Case 0:98-cv-06496-PAS Document 1 Entered on FLSD Docket 05/14/1998 Page 18 of 18
CIVIL COVER SHEET

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I (a) PLAINTIFFS WOLF PRADO-STEIMAN, by and DEFENDANTS through his mother and next friend,

EDWARD

LAURA PRADO, MC., OM., on behalh of

themselves and the ADVOCACY CENTER FOR

g:E.QL~ ~ PERSONS WITH ~~ILIT~S, I~.
(b) COUNTY OF RESLDEN,il

(EXCEj;l.l" IN U.S PLAINTIFF CASES)

r~!Jt-11 c:'l!e /

6

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

TRACT OF LAND INVOLVED

-'

(c) AITORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE N BER)

AITGI NEYS (IF KNOWN)

\..0

Ellen Saideaan1 Esq./Advocacy center 290l Stirling Rd./Suite 206

Chesterfield Smith Jr.a Esq>. Office of Attorney G~~~1s;

Ft.Lauderdale,FL 33312/954-967-1493 The Capitol-PL01/Tall·.~ L ~3

(DdA) DCEIR, CMLOENCROOUEN,TmY~W~wHPE~R.EAALC.TMIO~IN;AAR_OCSHE.:

-·---- -----------MARTIN, ST. LUCIE, INDIAN RIVE_B, OKEECHOBEE,

H-I-n~c A\ ND-~

.

II. BASIS OF JURIS

Ill. CITIZENSHIP OF PRINCIPAL PARTIES

~o{."- ~

(PLACE AN X ONE BOX ONLY)

(For D1.vers1.ty Case Only)

PTF

DEF

z;:- :Jil'f. (PLACE AN X IN ONE BO>f;f.~ PI:IUNTIF
BOX FOR DEFENDANT)l

lJ 1 U.S. Government
Pla•nliff

XI 3. Federal Question
(US. Government Not a Par1y)

Ctllzen of This State

D 1

D

"j7! N lnc.orporated of Principal Place of ~. a~- 4 ••

Business •n This Stale

~rn

Citizen of Another State

D 2

D 2

Incorporated and Pnncipal Place of

.. D 5

5

D 2. U.S. Government

D 4. Diversity

Business 1n Another State

Defendant

(lnclcate Citizenship r:l Parties i11tem Ill) Cilizen or Subject o1 a Foreign Country 0 3

0 3

Foreign Nation

0 6

0 6

IV. CAUSE OF ACTION

(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.

42 U.S. C. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.) § 1396 1 42USC § 12101 1 e t seq. 1 29 USC

§794, 42 USC § 1983, Forteenth Amendment, plaintiffs seek declaratory and

injunctive relief to require defendants to ~rovide them w!th ad~quate home &

IVa. 10 days estimated (for both sides) to try entire case commun1 ty based serv1ces W1 th due process

V. NATURE OF SUIT

(PLACE AN X IN ONE BOX ONLY)

and procedural protection.

A CONTACT

A TORTS

-O--t-10-1-~-urn-~-e

·-------+--------------P-E-R~S~O-N~A~L~IN~J~U=R~Y

[] 120 Manne
lJ i30 Miller Act
D 140 Negotiable lnslrUinent
0 150 ~~l:rc~~~:~~~~~nt

D 310 Airplane D 315 Airplane Product Liability 0 320 AssauH. Libel & Slander
D 330 Federal Efll>loyers' Liability

0 362 PersonallnJury-Med Malpracttce D 365 Personallnjury-Product Uabil~y 0 368 Asbestos Personnel
Injury P roducl L•abihty
PERSON ALPROPERTY

B FORFEITURE PENALTY
[] 610 Agriculture
0 620 Olher Food & Drug 0 625 Drug Related SeiZure
of Property 21 USC 881
[j 630 Liquor Laws
[] 640 R R. & Truck

0 151 Medicare Act

D 340 Marine

0 370 Other Fraud

[] 650 Au1ine Regs

A BANKRUPTCY 0 422 Appeal 28 USC 158 0 423 W~hdrawal 28 USC 157
A PROPERTY RIGHTS 0 820 Copyrights
D 830 Patent
D 840 Trademark

A OTHER STATUS D 400 States Reappointment 0 41 0 An1~rust D 430 Banks and Banking
0 450 Commerce/ICC Rates/etc. B
0 460 Deportation 0 470 Racketeer lnHuenced and
Corrupt Organizations

0 i52S~;~;:~e~~~sD(~~~It~terans) 8 D 345 Manne Product Liabili1y

D 153 ~f~:rZn?~ ~~~~r::":nt

0 350 Motor VehiCle

[] 160 Stockholder's Sui1s
~ 190 Other Contract
0 195 Contract Product Liabili1
A REAL PROPERTY

0 355 Motor Vehicle Product Uabilrty 0 360 Other Personal injury
A CIVIL RIGHTS

0 210 Land Condemnation
0 220 Foreclosure B 0 230 Renl Lease & Ejectment
0 240 Torts lo Land :J 245 Tort Product Uabili1y 0 290 All Other Real Propeny

0 441 Voling 0 442 ErTilloyment 0 443 Housing/Accommodations
0 444 Welfare
440 Other Civil Righl,s

0 371 Truth 1n Lending B 0 380 Other Personnel
Property Damage
0 385Property Damage
Product Uabil1ty
B PAIS ONER PETITIONS
0 510Motions to Vacate Sentence
Habeas Corpus
0 530 GeneraI' 0 535 Dealh PenaHy 0 540Mendamus & Other· 0 550 Civil Righls
• A orB

[] 660 Occupahonat Safety/Health

B SOCIAL SECURITY

0 810 Selective Ser~

0 69001her

- - 0 861 HIA (13951!)

A LABOR ~[] 710 Fa1r Labor Standards Act

- - 0 862 Black Lung (923)
0 863 DIWC!DIWW (405(g))

1 0 720 Labor Management Relations B 0 864 SSID T~le XVI

IJ 730 Labor Managernent
Reporting & Disclosure Acl

0 865 RSI (405(g))

[] 740 Ratlway Labor Act

A FEDERAL TAX SUITS

0 850Seclri~
0 875 Customer Challenge 12USC3410 0 891 Agricukural Ac1s D 892 Economic Stabilization Ac1 0 893 En'Vironmental Matters 0 894 Energy Allocation Act

D 790 Other Labor Li1igation

0 870 Taxes (U.S. Plantif1 Of Oefeo:lanl) D 895 Freedom of Information Ac1

0 791 Erfl)loyee Ret Inc Security Act 8 0 871 IRS-Third Party 26 USC 7609

0 900 Appeal of Fee Oetermnatlon
Under Equal AcceBs to Justice

0 950 ConstHltionaiKy of Stale Statutes

D 890 Other Statutory Actions •

* AorB

VI. ORIGIN
XX i Original
Proceeding
VII. REQUESTED

D 2. Removed From
State Court
CHECK IF THIS IS A

(PLACE AN X IN ONE BOX ONLY)

0 3. Remanded from
ADPellate Court
CLASS ACTION

0 4. Refiled

D 6. Multidistrict Litigation

0 5. Transferred from another district (Specify)

DEMAND$

0 Check YES only if demanded in
C0!11>laint:

0 7. Appeal to Olstricl Judge from
Magistrate Judgment
0 YES

IN COMPLAINT Xl[JNOER F.R.C.P. 23

JURY DEMAND:

0 NO

VIII. RELATED CASE(S) IF ANY
DATE.s-·
UNITED

(See Instructions):

DOCKET NUMBER
, ~ Amo,JD~D .rr_,

SIF 1·2

REV. 9/94

 
 Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Broward Division
WOLF PRADO-STEIMAN, by and through his mother and next friend, LAURA PRADO, and M.C., by and through his mother and next friend, O.M., LUCY ADAWI, by and through her mother and next friend, VICKY ADAWI, JENNIFER BASTIDAS, DANIEL LAVIN, by and through his father and next friend, JOSE LAVIN, DANIEL SHELL, by and through his parents and next friends CAROLYN and DONALD SHELL, on behalf of themselves and all other persons similarly situated, and the ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. I
PLAINTIFFS,
-vs-
LAWTON CHILES in his official capacity as Governor and Chief Executive of the State of Florida, EDWARD FEAVER, in his official capacity as Secretary, Department of Children and Families, CHARLES KIMBER, in his official capacity as Deputy Secretary of the Department of Children and Families, DONNA ALLEN, in her official capacity as Assistant Deputy Secretary of the Department of Children and Families, JOHN BROWN, in h~Ls official capacity as Department of Children and Families District Administrator, District 10, DOUG COOK, Department of Children and Families, in his official capacity as Director of the Agency for Health Care Administration for the State of Florida, RICHARD T. LUTZ, in his official capacity as Director of Florida Medicaid for the Agency for Health Care Administration
DEFENDANTS .

NIGFHITLE-BDO/~t~~
.IJ~ S I 199,-'
CARLOS JUENKE
CLERK, USDC I SDFL I FT~
Case No. 98-6496CIV-Ferguson

FIRST AMENDED CLASS ACTION COMPLAINT PRELIMINARY STATEMENT
1. This is a statewide class action brought on behalf of the more than 20,000 individuals with developmental disabilities
1

.)J

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 2 of 21

eligible for services under Florida's Medicaid Home and Community

Based Services Waiver Program ("Home and Community Based Waiver"),

who have been denied procedural due process and adequate services.

As a result of the lack of services in the community, many

individuals

are

institutionalized or

at

risk

of

institutionalization. Many individuals regress, losing skills that

they gained from education programs and therapy services available

to children.

2. Plaintiffs seek a declaration that denial of procedural

due process and adequate services with reasonable promptness

violates Title XIX of the Social Security Act, 42 U.S.C. § 1396a,

42 C.F.R § 431.200, et seq., the Americans with Disabilities Act,

the Due Process Clause of the Fourteenth Amendment to the United

States Constitution, and 42 U.S.C. § 1983. Plaintiffs also seek

injunctive relief to require defendants to comply with federal

statutory and constitutional law.

JURISDICTION

3. This Court has jurisdiction over this action pursuant to

28 U.S.C. §§ 1331 & 1343(3) and (4), and 42 U.S.C. § 1983. This

Court is authorized to order the requested relief by these statutes

and by 28 U.S.C. §§ 2201 and 2202.

4. This action arises under 42 U.S.C. § 12131, et seq., 29

U.S.C. § 794, and 42 U.S.C. § 1983.

VENUE

5. Venue is proper in this Court pursuant to 28 U.S.C. §§

1391(b) because (1) all defendants reside in districts in Florida,

2

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 3 of 21

and defendant John Brown reside in the Southern District of Florida

and (2) the cause of action arises within the Southern District of

Florida as tc Plaintiffs Wolf Prada-Steiman and M.C.

PLAINTIFFS

6. WOLF PRADO-STEIMAN is a seven year old boy with autism

who presently lives at home with his parents and older sister in

Broward County. His mother applied for Medicaid Waiver Services on

his behalf and was provided with respite in Martin County. When

his family moved to Broward County, he was provided with behavioral

services to address his behavioral issues. In April 1997, his

mother was informed that his behavioral services were going to be

terminated.

She was not provided with any notice of appeal

rights or rights to continued benefits. WOLF needs behavioral

services urgently because school will be closed for one month this

summer, and his behavioral problems, including running away, have

increased. His mother has been told that he will be put on a

waiting list for services.

7. M.C. is an 18 year old man with cerebral palsy who lives

ln Broward County. He uses a wheelchair and an augmentative

communication device. His mother, O.M. has applied for Medicaid

Waiver services on his behalf. She has requested and been denied

personal care and respite services. Because he has grown, it is

very difficult for her to continue to provide him personal care

without assistance. M.C. wants companion services so that he can

socialize like other teen-age boys. He brings this action by his

mother, O.M. He does presently not have a legal guardian.

3

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 4 of 21

8. LUCY ADAWI is a 50 year old woman with mild mental

retardation, mobility impairment, and a psychiatric disability

(schizoaffective disorder) . She presently lives in Dade County

with her mother, Vicky Adawi, who is in her 80s and has health

problems. Over the past few years, she has resided at several

Assisted Living Facilities and has been hospitalized at Jackson

Memorial Hospital. She needs physical and occupational therapy.

She also needs intensive support for her daily living skills (such

as bathing, toileting, dressing) . Lucy and her mother want to

continue to live together but defendants have refused to provide

Lucy with adequate supports to enable her to live with her mother.

Following her hospitalization at Jackson, a petition was filed to

involuntarily place Lucy Adawi. General Master Lewis S. Kimler

found that "Respondent's mother would like for her to live at home,

but the mother is elderly and not physically capable of meeting her

daughter's needs without in-home supports and services." He

recommended that she be involuntarily admitted to residential

services provided by defendants.

On June 1, 1998, the court

confirmed the recommendation. As a result of defendants' failure

to support LUCY ADAWI with adequate supports, the court has ordered

her to be institutionalized. Every day without services, she is at

risk of harm. She brings this case by her mother and next friend,

VICKY ADAWI .

9. JENNIFER BATSIDAS is a 22 year old woman with cerebral

palsy who lives in Broward County. She has quadriplegia and needs

to use a motorized wheelchair for mobility. She lives with her 64

4

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 5 of 21

year old mother. She presently has nothing to do all day.

BATSIDAS has requested assistance from defendants in obtaining

appropriate vocational services and supports to assist her. She

wants to be a poet.

She needs assistance with bathroom

modifications, including installation of a grab bar and purchase of

a shower chair. Defendants have refused to provide her with any

services. Without necessary modifications, her bathroom is unsafe

and she is at risk of injury.

10. DANIEL LAVIN is a 22 year old man with profound mental

retardation and cerebral palsy. He lives in Dade County with his

parents, who both work. He has had nothing to do since he

graduated from high school in 1997. Defendants did not provide any

assistance in developing a transitional plan for Daniel as he aged

out of the educational system. Daniel now receives no services

from Developmental Services. Because his parents work, he is often

left alone with his 71 year old grandmother. He needs bathroom

modifications to make his bathroom accessible for him. He has been

denied services under the Home and Community Based Waiver, and has

never been provided with any written notice. He brings this action

by his father and next friend, JOSE LAVIN. He does not presently

have a legal guardian.

11. DANIEL SHELL is a 32 year old man with moderate mental

retardation and cerebral palsy, who lives in Brevard County with

his parents. His right side has dystonia and is weak. He has a

balance problem. He is on the Medicaid Home and Community-Based

Waiver. His physical therapist recommended, and his physician has

5

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 6 of 21

prescribed, physical therapy equipment to increase his endurance,

to control his movement disorder, to strengthen and increase

mobility in his right arm, and to improve his balance problem. His

parents Donald and Carolyn Shell are co-guardian advocates. They

have requested that the Medicaid Home and Community-Based Waiver

provide him with the therapy equipment prescribed by his treating

physician. Defendants have refused to provide the equipment and

have not provided any notice of due process rights. His mother

wrote a letter requesting an appeal on March 19, 1998, and has not

received any response to date. As a result of the lack of this

equipment, Daniel Shell has lost skills that he had previously

gained from physical therapy. He brings this case by his parents

and next friends, Carolyn and Donald Shell.

12. Plaintiffs Wolf Prada-Steiman, M. C., Lucy Adawi, Jennifer

Bastidas, DAniel Lavin and Daniel Shell are eligible for ICF/DD

services and for Home and Community-Based Waiver services.

13. THE ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC.

(ADVOCACY CENTER) provides protection and advocacy services to

people with developmental disabilities pursuant to the

DevelopmentaJ Disabilities Act, 42 U.S. C. § 6042. In order to

fulfill its responsibility to protect and advocate for persons with

developmentaJ and mental disabilities, the ADVOCACY CENTER has the

authority to pursue legal remedies.

DEFENDANTS

14.

LAWTON CHILES is Governor of the State of Florida and

is sued here in his official capacity.

CHILES has the

6

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 7 of 21
responsibility to ensure that the agencies of the Executive Branch of the State, including the Department for Children and Families (DCF) and the Agency for Health Care Administration (AHCA) , act in full compliance with the Constitution and the laws of the United States.
15. EDWARD FEAVER is Secretary of DCF and has responsibility for the control and the administration of human services, including the Developmental Services Program and its related Medicaid Program in the State of Florida. He is sued here in his official capacity.
16. CHARLES KIMBER is a Deputy Secretary for DCF and has responsibility for the control and the administration of human services, including the Developmental Services Program and its related Medicaid Program in the State of Florida. He is sued here in his official capacity.
17. JOHN BROWN is the District Administrator for DCF District 10, which includes Broward County. He is sued here in official capacity.
18. Defendant DOUG COOK is the Director of the Agency for Health Care Administration. He is sued here in his official capacity. He is responsible for administering the Florida Medicaid program so that it complies with federal law.
19. Defendant RICHARD T. LUTZ is the Director of the Division of Medicaid of AHCA. He is sued here in his official capacity. He 1s responsible for the overall operation of Medicaid and is required to ensure that it complies with federal law.
7

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 8 of 21
20. All defendants have at all relevant times acted under color of state law and knew of or should have known of the policies, practices, acts and conditions alleged.
CLASS ACTION ALLEGATIONS 21. The named plaintiffs bring this action on their own behalf and on behalf of all other similarly situated persons pursuant to Fed. R. Civ. P. 23(a), and (b) (2). 22. The proposed class consists of all current and future individuals with developmental disabilities who are receiving Home and Community Based Waiver Services or who are eligible to receive Home and Community Based Waiver Services. 23. The requirements of Fed.R.Civ.P. Rule 23(a) are satisfied in this case as follows: a. Numerosity: The class is so numerous that joinder of all members is impracticable. Upon information and belief, the class consists of more than 20,000 individuals. b. Commonality: There are questions of law or fact common to all named plaintiffs as well as to all members of the class, to wit: whether the defendants' have violated the Medicaid Act, 42 U.S.C. § 1983, and the Due Process and Equal Protection Clauses of the Constitution of the United States. c. Typicality: The claims of the named plaintiffs are typical of the claims of the class as a whole. d. Adequate representation: By filing this action, the named plaintiffs, individually and through their guardians and next friends, have displayed an interest in vindicating their rights, as
8

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 9 of 21

well as the claims of others who are similarly situated. The named

plaintiffs will fairly and adequately protect and represent the

interests of the class. Furthermore, the named plaintiffs are

represented by legal counsel who are skilled and knowledgeable

about the Medicaid Program, civil rights litigation, practice and

procedure in the federal courts, and the prosecution and management

of class action litigation. The relief sought by the named

plaintiffs will inure to the benefit of members of the class

generally.

24. The requirement of Fed. R. Civ. P. 23(b) (2) is also

satisfied. The defendants have acted or refused to act on grounds

generally applicable to the class, thereby making appropriate

declaratory and injunctive relief with respect to the class as a

whole. Although the disabilities of the class members vary, they

share in common a need for services provided by the Home and

Community Based Waiver Program.

STATUTORY AND CONSTITUTIONAL FRAMEWORK

25.

The Medicaid program, established by Title XIX of the

Social Security Act, 42 U.S.C. § 1396, et ggg., is a cooperative

federal-state program to enable the states to furnish medical

assistance to families and individuals who are unable to meet the

costs of necessary medical services. 42 U.S.C. § 1396. Costs of

the program are shared by the federal and state governments, with

the federal government contributing approximately 55 per cent of

the cost of services in Florida.

9

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 10 of 21
26. A state is not obligated to participate in the Medicaid Program. If a state elects to participate, however, it must operate its program in compliance with federal statutory and regulatory requirements. 42 U.S.C. § 1396a. Florida has chosen to participate in the Medicaid program.
27. Medicaid is permitted to control the utilization of covered services through the application of a medical necessity test. When applying a medical necessity standard, the Florida Medicaid Program must ensure that recipients with the most severe disabilities or conditions are served before recipients with less severe disabilities. 42 C.F.R. § 440.230(d).
28. State plans must also provide an opportunity for a fair hearing to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness. 42 U.S.C. § 1396a(3) and 42 C.F.R. § 431.200, et seq.
29. Defendants must mail and give advance notice at least ten (10) days before the date of termination of or reduction in Medicaid benefits. 45 C.F.R. § 431.211. 1 The purpose of the advance notice is to afford the recipient of the service an opportunity for a pre-termination hearing. 42 C.F.R. § 431.231(c).
THE HOME AND COMMUNITY-BASED WAIVER 30. Congress adopted the Home and Community-Based Waiver in order to allow individuals who would otherwise require care in a nursing home or ICF/DD to receive services in their own homes and
1 There are limited exceptions to the advance notice requirement at 45 C.F.R §§431.213 and 431.214, which are not applicable here.
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Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 11 of 21

in home-like settings. See Senate Report No. 97-139 and House

Conference Report No. 97-208, 1981 U.S. Code Cong. & Admin. News.,

at 396.

31. The regulations state that 11 Section 1915(c) of the Act

permits states to offer, under a waiver of statutory requirements,

an array of home and community-based services that an individual

needs to avoid insti tut.ionaliza tion. 11 (emphasis added)

42 C.F.R. § 441.300

32. Under the waiver provisions of the Act, states may

include as 11 medical assistance" the cost of home or community based

services which, if not provided, would require care to be provided

in a nursing home or an Intermediate Care Facility for Persons with

Mental Retardation (Developmental Disabilities) (ICF/DD) . 42

U.S.C. §1396n(c); 42 C.F.R. § 435.217. 42 U.S.C. § 1396n(c) (1)

states:

The Secretary may by waiver provide that a State plan approved under this subchapter may include as 11 medical assistance 11 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 Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.

33. Federal law sets a ceiling for funds used under the Home

and Community Based Waiver. 42 U.S.C. § 1396n(c) (2) (D) requires

that 11 the average per capita expenditure estimated by the State in

any fiscal year for medical assistance provided with respect to

such individual does not exceed 100 percent of the average per

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Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 12 of 21

capita expenditure that the State reasonably estimates would have

been made in that fiscal year

if the waiver had not been

granted. " Thus, federal law permits states to fund Home and

Community-Based Waiver up to the same average rate as ICF/DDs.

34. Congress provided that a Home and Community-Based Waiver

shall not be granted unless the State provides assurances that

"necessary safeguards (including adequate standards for provider

participation) have been taken to protect the health and welfare of

individuals provided services under the waiver .

" 42 U.S.C.

§ 1396n(2) (A); 42 C.F.R. § 441.302 (a) Those safeguards must

include " [a] adequate standards for all types of providers that

provide services under the waiver." 42 C.F.R. § 441.302 (a) (1).

35. Congress also requires that individuals with

developmental disabilities have the freedom of choice as to whether

to receive services in an ICF/DD or under the Home and Community-

Based Waiver. 42 U.S.C. § 1396n(2) (C) provides that individuals

"who are determined to be likely to require the level of care

provided in a hospital, nursing facility, or intermediate care

facility for the mentally retarded are informed of the feasible

alternatives, if available under the waiver, at the choice of such

individuals, to the provision of inpatient hospital services,

nursing facility services, or services in an intermediate care

facility for the mentally retarded (developmentally disabled)."

36. Florida first obtained approval for a Home and Community-

Based Waiver in 1982 for day treatment services. A subsequent

comprehensive amendment Co Florida's Home and Community-Based

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Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 13 of 21
Waiver, approved in 1992, adopts the philosophy of avoiding institutional care and provides supports and services to individuals with developmental disabilities in their own homes or home-like settings.
DEFENDANTS' UNLAWFUL ACTIONS 37. Defendants have consistently denied individuals with developmental disabilities their rights to HCBW services and to due process. 38. As a matter of practice, defendants do not provide plaintiffs with procedural due process protections. Typically, defendants deny individuals services, stating that funds are not available. Defendants do not provide notice that the Medicaid statute provides for procedural protections, including the right to appeal adverse determinations. 39. Defendants routinely terminate individuals like Wolf Prado-Steiman and M.C. from services and never provide any notice of proceduraJ protections, including the right to appeal adverse determinations and the right to continued benefits pending appeal. 40. Defendants fail to provide individuals with services in the most integrated setting, their homes and community. Instead, defendants make services available only in institutional setting. Families that care for their children at home do not even receive the most basic services. For example, individuals in institutions who are not continent receive diapers whereas individuals who live at home with their families are routinely denied diapers.
13

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 14 of 21

41. Defendants routinely deny individuals physical therapy,

occupational therapy, speech therapy, and assistive technology

devices and services.

42. For many families, respite, personal care, and companion

services are vi tal to keep their family members home. Yet,

defendants routinely deny these services. Without these services,

many parents are forced to institutionalize their children.

43. Despite defendants' claims of lack of funds, the federal

match (55%) is available for HCBW services.

Nonetheless,

defendants continue to serve many individuals eligible for HCBW

services with general revenue dollars, failing to take advantage of

the federal match.

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION

AMERICANS WITH DISABILITIES ACT

44. On July 12, 1990, Congress enacted the Americans with

Disabilities Act, 42 U.S. C. § 12101, et seq., (ADA) , establishing

the most important civil rights for persons with disabilities in

our nation's history.

45. Congress stated in its findings 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).

14

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 15 of 21

46. Congress found that "discrimination against individuals

with disabilities persists in

. institutionalization

. and

access to public services." 42 U.S.C. § 12101(a) (3)

47. Congress found that "individuals with disabilities

continually encounter various forms of discrimination, including

outright intentional exclusion

, segregation, and relegation

to lesser services, programs, activities, benefits, jobs, or other

opportunities." 42 U.S.C. § 12101 (a) (5)

48. Congress further found that:

individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.
42 u.s.c. § 12101(a) (7)

49. A major purpose of the ADA is to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities, and to

provide clear, strong, consistent and enforceable standards

addressing discrimination against individuals with disabilities.

42 u.s.c. § 12101(b)l&2.

50. Each plaintiff and each class member is "a qualified

individual with a disability" within the meaning of 42 U.S.C. §

12131(2).

51. The Home and Community-Based Waiver program are public

services subject to Title II of the ADA, 42 U.S.C. §§ 12131-12134.

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Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 16 of 21
52. Defendants routinely deny individuals who live in their own homes or with their families or in community settings services such as physical therapy, occupational therapy, speech therapy, and dental services that are available to individuals who are in ICF/DDs.
53. Defendants' denial of necessary services, while offering the option of more expensive, institutional services violates the ADA, and specifically the "Integration Mandate" implementing the ADA as found in 28 C.F.R. § 35.130(d) 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."
54. The ADA also prohibits discrimination in access to covered services that are based on either severity of disability, or diagnosis.
55. Defendants have engaged in diagnosis-based decision making by denying or limiting access to benefits, services and opportunities because a person has a particular disability, impairment or diagnosis.
SECOND CAUSE OF ACTION SECTION 504 OF THE REHABILITATION ACT OF 1973 56. Defendants receive federal funds and are therefore subject to the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794.
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Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 17 of 21
57. Plaintiffs meet the definition of having a "handicap" within the meaning of 29 U.S.C. § 706(7) and are otherwise qualified individuals under Section 504.
58. Defendants' practices, policies and procedures described above, violate the rights of plaintiffs and class members that are secured by Section 504 by discriminating against these individuals solely on the basis of disability.
THIRD CAUSE OF ACTION PROCEDURAL DUE PROCESS AND SECTION 1983 59. Plaintiffs' eligibility for and receipt of Medicaid services creates a property right subject to due process protection under the Fourteenth Amendment to the Constitution of the United States. 60. Florida's Home and Community-Based Waiver specifically provides for a fair hearing, as required by 42 C.F.R. Part 431, subpart E, to Medicaid recipients who are denied the services(s) of their choice or the provider(s) of their choice. 61. Defendants have not provided any procedural protections for plaintiffs and class members. 62. By denying plaintiffs and class members the opportunity for a fair hearing to challenge the termination of Home and Community Based Waiver and for continued benefits, defendants have violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, federal Medicaid law and regulations, and the terms of Florida's Home and Community-Based Waiver.
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Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 18 of 21
FOURTH CAUSE OF ACTION 42 U.S. C. § 1396a(8) and 42 U.S.C. § 1983 63. Defendants fail to provide HCBW services with reasonable promptness in violation of 42 U.S.C. § 1936a(8) and 42 U.S.C. § 1983.
FIFTH CAUSE OF ACTION 42 U.S.C. § 1396n and 42 U.S.C. § 1983. 64. Serving individuals in institutions is contrary to the letter and intent of 42 U.S.C. § 1396n. 65. Defendants fund institutional placements using the Home and Community-Based Waiver. Such a use of HCBW funds violates the exclusion of institutional programs from the Home and CommunityBased Waiver program and therefore violates 42 U.S.C. § 1396n and
42 u.s.c. § 1983.
SIXTH CAUSE OF ACTION 42 U.S.C. § 1396n(2) (a) and 42 U.S.C. § 1983 66. Defendants are violating 42 U.S.C. § 1396n(2) (a) and 42
u.s.c. § 1983 by providing inadequate services to individuals
eligible for Home and Community-Based services for the Home and Community-Based Waiver. Defendants do not provide sufficient resources to protect the health and welfare of individuals provide services under the waiver. 42 U.S.C. § 1396n(2) (A). As a result of defendants' failure to provide necessary services, individuals experience pain, emotional harm, and regress, losing skills that they had previously gained from school and from therapeutic services.
18

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 19 of 21

SEVENTH CAUSE OF ACTION

42 U.S.C. § 1396n(c) (2) and 42 U.S.C. § 1983

67. Defendants have violated 42 U.S.C. § 1396n(c) (2) by

denying plaintiffs their freedom of choice of an appropriate Home

and Community-Based Waiver program that meets their health and

welfare needs.

68. Defendants provide only limited services to individuals

to remain in their own homes, family homes or community homes.

69. Without adequate services available in the community,

individuals are unnecessarily institutionalized.

70. Defendants are therefore in violation of 42 U.S. C. §

1396n(c) (2) and 42 U.S.C. § 1983.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that this Court:

A. Assume jurisdiction of this action.

B. Order that plaintiffs may maintain this action as a

class action pursuant to Rule 23, Fed.R.Civ.P.
c. Declare defendants' denial,

reduction and

termination of Home and Community Based Waiver Services under the

Medicaid program without writ ten notice unlawful, and declare

defendants' reduction and termination of Home and Community-Based

Waiver services without an opportunity for a pre-termination

hearing and continued benefits unlawful.

D. Order defendants to provide plaintiffs and members

of the class with necessary services to enable them to live in the

community.

19

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 20 of 21
E Award plaintiffs their costs and reasonable attorneys'
fees.
F Grant such other and further relief as the Court
deems just and proper. Respectfully submitted,
ELLEN M. SAILJ=r·U">..L• Senior Attorney Fla. Bar No. 038751
JULIETTE E. LIPPMAN Senior Attorney Fla. Bar No. 983292
ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. 2901 Stirling Road Suite 206 Fort Lauderdale, 33312 (954) 967-1493 (Facsimile) (954) 967-1496 Attorney for Plaintiffs
/)
~1~~'- r~
ETER NIMKOFF Litigation Director Fla. Bar. No. 58840
ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. 2671 Executive Center, Circle W., Suite 100 Tallahassee, Florida 32301 (850) 488-9071 (Facsimile) (850) 488-8640
20

Case 0:98-cv-06496-PAS Document 16 Entered on FLSD Docket 08/03/1998 Page 21 of 21
CERTIFICATE OF SERVICE The foregoing papers were served via U.S. Mail on July 31, 1998 to the counsel listed below:
Stephanie Daniels, Esq. Chesterfield Smith, Jr., Esquire Assistant Attorney General Office of the Attorney General The Capital- PL01 Tallahassee, Florida 32399-1050
Attorneys for Defendants

 
 Case 0:98-cv-06496-PAS Document 117 Entered on FLSD Docket 03/11/1999 Page 1 of 2

WOLF PRADO-STEIMAN, by and through his mother and next friend, LAURA PRADO, and M.C., by and through his mother and next friend, O.M., on behalf of themselves an all other persons similarly situated, and the ADVOCACY CENTER FOR PERSONS WlTH DISABILITIES, INC.,
Plaintiffs.
vs.
LAWTON CHILES, et ai.,
Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -I

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 98-6496-CIV-FERGUSON
MEMORANDUM ON MOTION FOR CLASS
CERTIFICATION

THIS CAUSE is before the Court on Plaintiffs Motion for Class Certification [D.E. 19]. Having considered the motion, response, arguments ofcounsel, and pertinent portions ofthe record, it is
ORDERED AND ADJUDGED that the Motion will be GRANTED. The plaintiffs are to prepare a proposed order certifying the class in this case as "all persons with developmental disabilities who are presently receiving Home and Community-Based Waiver Services or who are eligible to receive Home and Community-Based Waiver Services, or who would receive or be eligible for Home and Community-Based Waiver Services in the future." This proposed order, including findings of fact and conclusions of law, shall be submitted by March 17, 1999. The
" I II 1
I . I _!/ ' /

Case 0:98-cv-06496-PAS Document 117 Entered on FLSD Docket 03/11/1999 Page 2 of 2
defendants are to submit any objections to the proposed order by :March 22, 1999.
ENTERED in Chambers at Ft. Lauderdale, Florida, this /(JP.J:day of March, 1999.
(
\
if}_~.
N,JR. RICT JUDGE
copies provided: Peter Nimkoff, Esq. Chesterfield Smith, Jr., Esq.

 
 Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 1 of 31

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Broward Division
WOLF PRADO-STEIMAN, by and through his mother and next friend, LAURA PRADO, and MARLON CHRISTIE, by and through his mother and next friend, OPAL MILLWOOD, LUCY ADAWI, by and through her mother and next friend, VICKY ADAWI, JENNIFER BASTIDAS, DANIEL LAVIN, by and through his father and next friend, JOSE LAVIN, DANIEL SHELL, by and through his parents and next friends CAROLYN and DONALD SHELL, DARRYL AUSTIN, by and through his mother and next friend, VIRGINIA AUSTIN, SHAUNA BOONE, by and through her mother and next friend DELAUNA BOONE, AIMEE CARTAYA, JENNIFER DANIELS, by and through her mother and next friend, MARY DANIELS, ALBERTO DOMINGUEZ III, by and through his parents and next friend ALBERTO DOMINGUEZ II and EDELMIRA DOMINGUEZ, TONITA KNIGHTS, by and through her mother and next friend MAGGIE KNIGHTS, by his mother and next friend, MILLIE REDMOND, MARCOS SALAS-GUEVERA, by and through his mother and next friend, ELEANOR GIBSON, KENNETH SAPP, by and through his mother and next friend, KELLIEANN WALLEN, by and through her mother and next friend, KAREN WALLEN, MICHAEL WARGIN, by and through his mother and next friend MARIE WARGIN, WILLARD WEBSTER, by and through his mother and next friend, JOAN WEBSTER, on behalf of themselves and all other persons similarly situated, and the ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC.,
PLAINTIFFS,
-vs-
JEB BUSH in his official capacity as Governor and Chief Executive of the State of Florida, KATHLEEN KEARNEY, in her official capacity as Secretary, Department of Children and Families, CHARLES KIMBER, in his official capacity as Deputy Secretary of the Department of Children and Families, DONNA ALLEN, in her official capacity as Assistant Deputy Secretary of the Department of Children and

_.....

,......

o.c.\

f\LEO by- - - -

'J\)t2 7 '"-'

- n. c.•~L.-v.-.:, c~l ..,.. u.-,.

,uDEtS.''"T".t. c T . l-AUD·

\ s.o. oF fLA-

Case No. 98-6496CIV-Ferguson
J)
r6J

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 2 of 31

Families, ROBERT S. COHEN, in his official capacity as Department of Children and Families District Administrator, District 10, DOUG COOK, Department of Children and Families, in his official capacity as Director of the Agency for Health Care Administration for the State of Florida, RICHARD T. LUTZ, in his official capacity as Director of Florida Medicaid for the Agency for Health Care Administration
DEFENDANTS .

SECOND AMENDED CLASS ACTION COMPLAINT

PRELIMINARY STATEMENT

1. This is a statewide class action brought on behalf of the

more than 20,000 individuals with developmental disabilities

eligible for services under Florida's Medicaid Home and Community

Based Services Waiver Program ("Home and Community Based Waiver" or

"Medicaid Waiver 11 ), who have been denied due process and adequate services. As a result of the lack of services in the community,

many individuals are institutionalized or at risk of

institutionalization. Many individuals regress, losing skills that

they gained from education programs and therapy services available

to children.

2. Plaintiffs seek a declaration that denial of due process

and adequate services with reasonable promptness violates Title XIX

of the Social Security Act, 42 U.S.C. § 1396a, 42 C.F.R § 431.200,

et seq., the Americans with Disabilities Act, the Due Process

Clause of the Fourteenth Amendment to the United States

Constitution, and 42 U.S.C. § 1983.

Plaintiffs also seek

injunctive relief to require defendants to comply with federal

statutory and constitutional law.

2

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 3 of 31

JURISDICTION

3. This Court has jurisdiction over this action pursuant to

28 U.S.C. §§ 1331 & 1343(3) and (4), and 42 U.S.C. § 1983. This

Court is authorlzed to order the requested relief by these statutes

and by 28 U.S.C. §§ 2201 and 2202.

4. This action arises under 42 U.S.C. § 12131, et seq., 29

U.S.C. § 794, and 42 U.S.C. § 1983.

VENUE

5. Venue lS proper in this Court pursuant to 28 U.S.C. §§

1391(b) because (1) all defendants reside in districts in Florida,

and defendant Robert S. Cohen reside in the Southern District of

Florida and (2) the cause of action arises within the Southern

District of Florida as to Plaintiffs Wolf Prada-Steiman and Marlon

Christie.

PLAINTIFFS

6. WOLF PRADO-STEIMAN is a seven year old boy with autism

who presently lives at home with his parents and older sister in

Broward County. His mother applied for Medicaid Waiver Services on

his behalf and was provided with respite in Martin County. She

never received any determination regarding her application for the

Medicaid Waiver program. When his family moved to Broward County,

his mother again applied for Medicaid Waiver service to address

Wolf's behavioral issues.

Again, she received no written

determination regarding her application. Wolf was provided with

behavioral supports until April 1997 when the behavioral services

3

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 4 of 31
vvere termi natPd without. any notice of appeal rights or rights to continued benefits.
7. MARLON CHRISTIE is an 18 year old man with cerebral palsy who lives in Broward County. He uses a wheelchair and an augmentative communication device. His mother, Opal Millwood contacted Developmental Services for Medicaid Waiver services on his behalf. She was told that there was a waiting list for services and that no services would be available for her son. Because Marlon has grown, it is very difficult for her to continue to provide him personal care without assistance. Marlon wants companion services so that he can socialize like other teen-age boys. He brings this action by his mother, Opal Millwood. He presently does not have a legal guardian.
8. LUCY ADAWI 1s a 50 year old woman with mild mental retardation, a mobility impairment, and a psychiatric disability (schizoaffective disorder) . She presently lives in Dade County with her mother, Vicky Adawi, who is in her 80s and has health problems. Over the past few years, she has resided at several Assisted Living Facilities and has been hospitalized at Jackson Memorial Hospital. She needs physical and occupational therapy. She also needs intensive support for her daily living skills (such as bathing, toileting, dressing) . Lucy and her mother want to continue to live together but defendants have refused to provide Lucy with adequate supports to enable her to live with her mother. Following her hospitalization at Jackson, a petition was filed to involuntarily place Lucy Adawi. General Master Lewis S. Kimler
4

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 5 of 31

found chat "Respondent's mother would like for her ro Jive at home,

but the mother is elderly and not physically capable of meeting her

daughter's needs without in-home supports and services." He

recommended that she be involuntarily admitted to residential

services provided by defendants.

On June 1, 1998, the court

confirmed the recommendation. As a result of defendants' failure

to support LUCY ADAWI with adequate supports, the court has ordered

her to be institutionalized. Every day without services, she is at

risk of harm. She brings Lhis case by her mothe:t- and next friend,

VICKY ADAWI .

9. JENNIFER BATSIDAS is a 22 year old woman with cerebral

palsy who lives in Broward County. She has quadriplegia and needs

to use a motorized wheelchair for mobility. She lives with her 64

year old mother.

Defendants refused to provide her with any

services until after she was named as a plaintiff in the First

Amended Complaint. She is presently receiving services on a "funds

available basis." She is concerned that her benefits may be

reduced or terminated without advance written notice and without an

opportunity for continued benefits.

10. DANIEL LAVIN is a 22 year old man with profound mental

retardation and cerebral palsy. He lives in Dade County with his

parents, who both work. He has had nothing to do since he

graduated from high school in 1997. Defendants did not provide any

assistance in developing a transitional plan for Daniel as he aged

out of the educational system. Daniel now receives no services

from Developmental Services. Because his parents work, he is often

5

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 6 of 31

left alone with his 71

He needs bathroom

modifications to make his bathroom accessible for him. He has been

denied services under the Medicaid Waiver, and has never been

provided with any written notice. He brings this action by his

father and next friend, JOSE LAVIN. He does not presently have a

legal guardian.

11. DANIEL SHELL is a 32 year old man with moderate mental

retardation and cerebral palsy, who lives in Brevard County with

his parents. His right side has dystonia and is weak. He has a

balance problem. He is on the Medicaid Waiver. His physical

therapist recommended, and his physician has prescribed, physical

therapy equipment to increase his endurance, to control his

movement disorder, to strengthen and increase mobility in his right

arm, and to improve his balance problem. His parents requested

that the Medicaid Waiver provide him with the therapy equipment

prescribed by his treating physician. Defendants have refused to

provide the equipment and have not provided any notice of due

process rights. His mother wrote a letter requesting an appeal on

March 19, 1998, and did not receive a date for the hearing until

January 1999.

He brings this case by his parents, guardian

advocates and next friends, Carolyn and Donald Shell.

12. DARRYL AUSTIN is a 26 year old man with cerebral palsy.

He desperately needs an augmentative communication device. He

lives with his parents and usually stays with his mother during the

day. His mother's back hurts constantly because she has to lift

her son several times a day. Darryl Austin needs personal care and

6

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 7 of 31

respite ser'..rlces.

to li,_re g; q
----

rrn~l ::::J---

lS

He has

obtained a GED and wants to enroll ln college to learn about

computers. His mother applied for independent living services and

Medicaid Waiver services eight years ago. Darryl and his parents

have been told that he is on a waiting list, but have not been

given any written notice of his status or of his right to appeal.

13. SHAUNA BOONE is a 6 year old girl with Rett Syndrome.

She has a severe seizure disorder, breathing disorder, sleeping

disorder, and eating disorder. She cannot walk or talk. She

receives SSI and Medicaid. Medicaid does not cover diapers and

nutritional supplements (enzymes) . Medicaid also does not meet all

her needs for supplies and equipment. She also needs respite care

and specialized equipment. She has been denied Medicaid Waiver

services. Developmental Services funded diapers in 1997 for about

six months. That funding was terminated without any notice of

appeal rights or rights to continued benefits. She brings this

action by her mother, Delauna Boone.

14. AIMEE CARTAYA is a 21 year old woman with mental

retardation and psychiatric disabilities. She lives in Dade

County. She is presently confined to a crisis stabilization unit

and has no place to go. Defendants have refused to provide her

with appropriate Medicaid Waiver services that would enable her to

avoid institutionalization. She brings this action on her own

behalf.

15. JENNIFER DANIELS is an 11 year old girl with spastic

quadriplegia due to cerebral palsy. She lives with her parents in

7

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 8 of 31

Port Orange, Florida. She receives SSI and Medicaid. She is on

the Medicaid Waiver. Her support plan provides for 27 days of

respite, but there are no available providers.

She needs

environmental modifications to make her home, including her

bathroom, accessible to her. Defendants have advised her that no

funding is available for environmental modifications or a medical

stroller. She needs a folding therapy mat, but both Medicaid and

Medicaid Waiver have refused to fund an appropriate therapy mat.

JEN""I'HFER DANIELS b.r.ings this action by her mother and next friend

Mary Daniels.

16. ALBERTO DOMINGUEZ III is a 22 year old man with

Rubinstein-Taybi Syndrome. He has moderate mental retardation.

His parents requested Medicaid Waiver services in October 1995 in

their effort to prepare for his transition from school. He

graduated from Dade County Public Schools 1n June 1998, but

remained on the waiting list for Medicaid Waiver. He has nothing

to do all day. His behaviors have gotten worse since he has had

nothing to do. He brings this action by his parents and next

friends, Alberto Dominguez II and Edelmira Dominguez.

17. TONITA KNIGHTS has severe developmental disabilities.

She resided at Landmark Learning Center until November 25, 1998,

when she was discharged to her mother's home. Her mother had

retired to provide a home for her daughter. Her discharge plan

provided that she would receive Medicaid Waiver services, including

a day program at BARC and transportation, which were to start

January 4, 1999. Despite the determination by the state's treating

8

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 9 of 31

professionals that thPRP sPrvlrPs wPrP neress~ry, rlPfenrl~nts failerl

to provide the services which were specified in the discharge plan.

She brings

3.Ct~ -'lOn by her mother and next friend, Maggie

Knights.

18. MILDRED REDMOND has mild mental retardation and a serious

heart condition. She has been waiting for supported living

services from Developmental Services for 8 or 9 years. She lives

on her own, but desperately needs help to live in the community

safely. She has been evicted frequently and needs assistance in

budgeting and paying bills. When she is stressed or aggravated,

her heart condition is adversely affected. She would like to work.

She lives in fear of being homeless because she does not have the

supports she needs to live independently.

19. MARCOS SALAS-GUEVERA has been diagnosed with mental

retardation, schizophrenia and major depression disorder. He has

been hospitalized for depression three times in the last three

years. He is 32 years old and lives with his mother. He moved to

Florida in January 1996. Before moving to Florida, his mother had

contacted the Department of Children and Families and was told that

there would be supports available for him. When Marcos and his

mother arrived in Florida, they received no services; they were

told that the Department was out of money and he would be put on a

waiting list for services. They were not given any information

about the right to appeal the denial of services. His mother feels

that the only way she can get services is by abandoning her son.

He brings this action by his mother and next friend Eleanor Gibson.

9

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 10 of 31

20. KE!'-TNETH SAPP, 1·•·7--h-n -i -c::: r-1•·7<·=->l-v.<=-> V.1<=.>-;;;-lr.-c:-:: n-l--r1, has been diagnosed with cerebral palsy and profound mental retardation. He presently

receives SSI and Medicaid. His eligibility for SSI fluctuates

based on his father's child support payments. Kenneth is on the

Medicaid Waiver. Presently the only services he gets are a support

coordinator and one case of diapers per month. Medicaid funds

assistance in bathing three times a week.

His

mother

has

requested a Lecky shower chair to safely access the shower, a frame

for his car seat, a ceiling mounted lift with a track to enable him

to move 1n his home, and therapeutic feeding spoons, but has been

told that Medicaid Waiver funds for one-time expenditures are

frozen because of a lawsuit. These items are not available from

Medicaid.

21. KELLIEANN WALLEN is 15 years old and has cerebral palsy.

She lives in Orange County with her parents and brother. Kellieann

is nonverbal and has many medical needs. She is totally dependent

on her family for all of her daily needs, including, but not

limited, to getting her 1n and out of bed, transferring from her

wheelchair, toileting, and eating. Her mother, KAREN WALLEN has

requested supports for her daughter, including a high top, modified

van, modifications to her wheelchair, respite services and

assistive technology. Defendants have refused to provide her with

adequate services. Defendants have not notified KAREN WALLEN of

her right to appeal the denial of services. KELLIEANN brings this

case by her mother and next friend, KAREN WALLEN.

10

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 11 of 31

??. MTrHAF.T, WARGTN, who is six yP.~rR olrl, h~R aut:ism and

severe behavioral problems. He lives at home in Broward county,

District 10, with his parents and sister. Although he knows how

to use the toilet, he frequently urinates all over the house. He

constantly spits. He is on the Medicaid Waiver. His mother

requested 12 sessions of a certified behavior analyst and 120 hours

of personal care/behavior trainer, with a note explaining that she

thinks his true need is 1837 hours of personal care/behavior

trainer. Developmental Services approved 12 hours of certified

behavior analyst services but did not approve any time for a

personal care/behavior trainer. His parents want him to live at

home with them, as long as possible, but need supports to keep him

at home.

Without supports, their only choice would be

institutionalization. He brings this action by his mother Marie

Wargin.

23. WILLARD WEBSTER is a 20 year old man with cerebral palsy,

severe mental retardation, Attention Deficit Hyperactivity

Disorder, speech and language impairment, alternative amblyopia,

and central auditory processing disorder. He is scheduled to

graduate from high school this spring. He lives with his aging

parents. Now over 60 years old, his mother is unable to play

basketball with him, assist him in riding his bike or take him to

school activities. He is very unhappy and paces when he has

nothing to do.

He is on the Medicaid Waiver, and has only

received a support coordinator. He needs supported employment when

he graduates from school this spring as well as respite, and

11

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 12 of 31
u,...., .....,,,....,...... "V"'\,....,,....,....::;J,.... 1--...:,.... --~~~"'"'or~..-.. ......... +-- ...................... __ _..._ .... .,......;--.+--.--
.L.L\..- t.A....J...OV ..l..l.~C\....&.0 .1..1....1.....:> c.A.I....L'='III\.-J..J..\.,...GlL...J.. V C \....\.JlllllLUJ..J....L\....ClL-..LU.l..L
device to be repaired and needs Lareat software and a touchwindow (adaptive keyboard) . He brings this action by his mother and next friend, Joan Webster.
24. Plaintiffs are eligible for ICF/DD services and for Home and Community-Based Waiver services.
25. THE ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. (ADVOCACY CENTER) provides protection and advocacy services to people with developmental disabilities pursuant to the Developmental Disabilities Act, 42 U.S.C. § 6042. In order to fulfill its responsibility to protect and advocate for persons with developmental and mental disabilities, the ADVOCACY CENTER has the authority to pursue legal remedies.
DEFENDANTS 26. JOHN ELLIS BUSH is Governor of the State of Florida and 1s sued here in his official capacity. BUSH has the responsibility to ensure that the agencies of the Executive Branch of the State, including the Department for Children and Families (DCF) and the Agency for Health Care Administration (AHCA) I act in full compliance with the Constitution and the laws of the United States. 27. KATHLEEN KEARNEY is Secretary of DCF and has responsibility for the control and the administration of human services, including the Developmental Services Program and its related Medicaid Program in the State of Florida. He is sued here in his official capacity.
12

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 13 of 31

28. CP.,.l\.u.qLES KIMBER lS 3.

has

responsibility for the control and the administration of human

services, ir:cluding the Developmental Services Program and its

related Medicaid Program ln the State of Florida. He is sued here

in his official capacity.

29. ROBERT S. COHEN lS the District Administrator for DCF

District 10, which includes Broward County. He is sued here in

official capacity.

3U. Defendant DOUG COOK is the Director of the Agency for

Health Care Administration. He is sued here in his official

capacity. He is responsible for administering the Florida Medicaid

program so that it complies with federal law.

31. Defendant RICHARDT. LUTZ is the Director of the Division

of Medicaid of AHCA. He is sued here in his official capacity. He

is responsible for the overall operation of Medicaid and is

required to ensure that it complies with federal law.

32. All defendants have at all relevant times acted under

color of state law and knew of or should have known of the

policies, practices, acts and conditions alleged.

CLASS ACTION ALLEGATIONS

33. The named plaintiffs bring this action on their own

behalf and on behalf of all other similarly situated persons

pursuant to Fed. R. Civ. P. 23(a), and (b) (2).

34. The proposed class consists of all current and future

individuals with developmental disabilities who are receiving Home

and Community Based Waiver Services or who are eligible to receive

13

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 14 of 31
Bo!!l.e ~.nd Co!!l.rrn_mity Based w~_iver Services or whc· h-3ve 2tpplied for
Home and Community Based Waiver Services. 35. The requirements ~f Fed.R.Civ.P. Rule 23 (a) are satisfied
in this case as follows: a. Numerosity: The class lS so numerous that joinder of all
members is impracticable. Upon information and belief, the class consists of more than 20,000 individuals.
b. Commonality: There are questions of law or fact common to all named plaintiffs as well as to all members of the class, to wit: whether the defendants' have violated the Medicaid Act, 42 U.S.C. § 1983, and the Due Process and Equal Protection Clauses of the Constitution of the United States.
c. Typicality: The claims of the named plaintiffs are typical of the claims of the class as a whole.
d. Adequate representation: By filing this action, the named plaintiffs, individually and through their guardians and next friends, have displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The named plaintiffs will fairly and adequately protect and represent the interests of the class. Furthermore, the named plaintiffs are represented by legal counsel who are skilled and knowledgeable about the Medicaid Program, civil rights litigation, practice and procedure in the federal courts, and the prosecution and management of class action litigation. The relief sought by the named plaintiffs will inure to the benefit of members of the class generally.
14

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 15 of 31

36

The Fed. Civ. also l t- YPmPn YP<Tll -

_ - : 1 _ _ _ _ ~···~---

of

R.

P. 23 (b) (2) lS

satisfied. The defendants have acted or refused to act on grounds

generally applicable to the class, thereby making appropriate

declaratory and injunctive relief with respect to the class as a

whole. Although the disabilities of the class members vary, they

share in common a need for services provided by the Home and

Community Based Waiver Program.

STATUTORY AND CONSTITUTIONAL FRAMEWORK

37.

The Medicaid program, established by Title XIX of the

Social Security Act, 42 U.S.C. § 1396, et ~., is a cooperative

federal-state program to enable the states to furnish medical

assistance to families and individuals who are unable to meet the

costs of necessary medical services. 42 u.s.c. § 1396. Costs of

the program are shared by the federal and state governments, with

the federal government contributing approximately 55 per cent of

the cost of services in Florida.

38. A state is not obligated to participate in the Medicaid

Program. If a state elects to participate, however, it must

operate its program 1n compliance with federal statutory and

regulatory requirements. 42 U.S.C. § 1396a. Florida has chosen to

participate in the Medicaid program.

39. Medicaid is permitted to control the utilization of

covered services through the application of a medical necessity

test. When applying a medical necessity standard, the Florida

Medicaid Program must ensure that recipients with the most severe

15

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 16 of 31

disabilities or conditions are served before recipients with less

severe disabilities. 42 C.P.R. § 440.230(d).

40. State plans must 3lso provide an opportunity for a fair

hearing to any individual whose claim for medical assistance under

the plan is denied or is not acted upon with reasonable promptness.

42 U.S.C. § 1396a(3) and 42 C.P.R. § 431.200, et seq.

41. Defendants must mail and give advance notice at least ten

(10) days before the date of termination of or reduction in

iviedicaid benefits.

45 C.F.R.

§

A -,. ...,

....... _.., ...,

1

LJ:_jj_. ~j_j_.-

The purpose of the

advance notice 1s to afford the recipient of the service an

opportunity for a pre-termination hearing. 42 C.P.R. § 431.231{c).

THE HOME AND COMMUNITY-BASED WAIVER

42. Congress adopted the Home and Community-Based Waiver in

order to allow individuals who would otherwise require care in a

nursing home or ICP/DD to receive services in their own homes and

in home-like settings. See Senate Report No. 97-139 and House

Conference Report No. 97-208, 1981 U.S. Code Cong. & Admin. News.,

at 396.

43. The regulations state that "Section 1915(c) of the Act

permits states to offer, under a waiver of statutory requirements,

an array of home and community-based services that an individual

needs to avoid institutionalization." 42 C.F.R. § 441.300

(emphasis added) .

1 There are limited exceptions to the advance notice requirement at 45 C.P.R §§431.213 and 431.214, which are not applicable here.
16

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 17 of 31

14. Under the

----··- c, l"""'',...-""r,

r-".l""l C'

~~-.

of

the , .n......r..o....t..-..

states

include as "medical assistance" the cost of home or community based

services which, if not provided, would require care to be provided

in a nursing home or an Intermediate Care Facility for Persons with

Mental Retardation (Developmental Disabilities) (ICF/DD). 42

U.S.C. §1396n(c); 42 C.P.R. § 435.217. 42 U.S.C. § 1396n(c) (1)

states:

The Secretary may by waiver provide that 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 Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.

45. Federal law sets a ceiling for funds used under the Home

and Community Based Waiver. 42 U.S.C. § 1396n(c) (2) (D) requires

that "the average per capita expenditure estimated by the State in

any fiscal year for medical assistance provided with respect to

such individual does not exceed 100 percent of the average per

capita expenditure that the State reasonably estimates would have

been made in that fiscal year

if the waiver had not been

granted." Thus, federal law permits states to fund Home and

Community-Based Waiver up to the same average rate as ICF/DDs.

46. Congress provided that a Home and Community-Based Waiver

shall not be granted unless the State provides assurances that

"necessary safeguards (including adequate standards for provider

participation) have been taken to protect the health and welfare of

17

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 18 of 31

individuals provided servicec under the walver

II

11
-::1:

.'c1...

TuT • .C...., .. f.".".'_.

§ 1396n(2) (A); 42 C.F.R. § 441.302 (a) Those safeguards must

include 11 [a] adequate standards for all types of providers that

provide services under the wa1ver. 11 42 C.F.R. § 441.302 (a) (1).

47. Congress also requires that individuals with

developmental disabilities have the freedom of choice as to whether

to receive services in an ICF/DD or under the Home and Community-

Based Waiver. 42 U.S.C. § 1396n(2) (C) provides that individuals

"who are determined to be likely to require the level of care

provided in a hospital, nursing facility, or intermediate care

facility for the mentally retarded are informed of the feasible

alternatives, if available under the waiver, at the choice of such

indivictuals, to the provision of inpatient hospital services,

nursing facility services, or serv1ces in an intermediate care

facility for the mentally retarded (developmentally disabled)."

48. Florida first obtained approval for a Home and Community-

Based Waiver in 1982 for day treatment services. A subsequent

comprehensive amendment to Florida's Home and Community-Based

Waiver, approved 1n 1992, adopts the philosophy of avoiding

institutional care and provides supports and services to

individuals with developmental disabilities in their own homes or

home-like settings.

DEFENDANTS' UNLAWFUL ACTIONS

49. Defendants have consistently denied individuals with

developmental disabilities their rights to HCBW services and to due

process.

18

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 19 of 31

50.

a matter of

defendants do not

plaintiffs with due process protections. Typically, defendants

deny individuals services, stating that funds are not available.

Defendants do not provide notice that the Medicaid statute provides

for procedural protections, including the right to appeal adverse

determinations.

51. Defendants routinely take applications for the Home and

Community-Based Waiver program but fail to issue determinations on

the applications.

Individuals are not notified that their

applications have been denied. Individuals are not given adequate

notice, or any notice, of the reasons why the application has been

denied.

52. Defendants routinely discourage individuals from seeking

HCBW services, by telling them of lengthy waits for services.

53. Defendants routinely reduce HCBW services or terminate

HCBW services and never provide any notice of procedural

protections, including the right to appeal adverse determinations

and the right to continued benefits pending appeal.

54. Defendants fail to provide individuals with services 1n

the most integrated setting, their homes and community. Instead,

defendants make services available only in institutional setting.

Families that care for their children at home do not even receive

the most basic services. For example, individuals in institutions

who are incontinent receive diapers whereas individuals who live at

home with their families are routinely denied diapers.

19

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 20 of 31

55.

n<=>f<=>nn::lnt-c::o
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occupational therapy, speech therapy, assistive technology devices

and services, and vocational and day training programs.

56. For many families, respite, personal care, and companion

services are vital to keep their family members home. Yet,

defendants routinely deny these services. Without these services,

many parents are forced to institutionalize their children.

57. Defendants fail to ensure that there are adequate

providers fo:r HCBW services. For example, although dental services

are available under the Medicaid Waiver, there are no dentists who

are approved waiver providers in Dade County. As a result,

individuals in Dade County are routinely denied waiver services.

58. Despite defendants' claims of lack of funds, the federal

match (55%) is available for HCBW services. Defendants provide

services to individuals with developmental disabilities funded 100%

by general revenue services. Many individuals currently receiving

general revenue-funded services are eligible for the Medicaid

Waiver. By using the Medicaid Waiver for funding, defendants would

generate federal matching funds and increase the funds available to

individuals with developmental disabilities. Nonetheless,

defendants continue to serve many individuals eligible for HCBW

services with general revenue dollars, failing to take advantage of

the federal match.

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION

AMERICANS WITH DISABILITIES ACT

20

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 21 of 31

59.

n 1 !ln - --

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.J.

- l

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-

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I

CJ CJ

Conaress enacted the Americans with

Disabilities Act, 42 u.s.c. § 12101, et seq., (ADA), establishing

the most important civil rights for persons with disabilities in

our nation's history.

60. Congress stated 1n its findings 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 serlous and pervasive social problem." 42 U.S.C. § 1210l(a) (2).

61. Congress found that "discrimination against individuals

with disabilities persists in

. institutionalization

. and

access to public services." 42 U.S.C. § 12101 (a) (3)

62. Congress found that "individuals with disabilities

continually encounter various forms of discrimination, including

outright intentional exclusion

, segregation, and relegation

to lesser services, programs, activities, benefits, jobs, or other

opportunities." 42 U.S.C. § 12101 (a) (5)

63. Congress further found that:

individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.

42 U.S.C. § 12101(a) (7)

64. A major purpose of the ADA is to provide a clear and

comprehensive national mandate for the elimination of

21

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 22 of 31
discriminritinn rigriinst inrlivirl11rilR with disabilities, and to
provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities.
42 u.s.c. § 12101(b)l&2.
65. Each plaintiff and each class member is "a qualified individual with a dlsability" within the meanlng of 42 U.S. C. § 12131(2)
66. The Department of Children and Families, the Developmental Services Program, the Medicaid program, and the Home and Community-Based Waiver program are all public services subject to Title II of the ADA, 42 U.S.C. §§ 12131-12134.
67. Defendants routinely deny individuals who live in their own homes or with their families or in community settings services such as physical therapy, occupational therapy, speech therapy, consumable medical supplies, vocational and day training programs, and dental services that are available to individuals who are in ICF/Dds.
68. Defendants' denial of necessary services, while offering the option of more expensive, institutional services violates the ADA, and specifically the "Integration Mandate" implementing the ADA as found in 28 C.F.R. § 35.130(d) 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."
22

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 23 of 31
69. The ADA also prohibits discrimination in access to covered services that are based on either severity of disability, or diagnosis.
70. Defendants have engaged in diagnosis-based decision making by denying or limiting access to benefits, services and opportunities because a person has a particular disabillty, impairment or diagnosis.
SECOND CAUSE OF ACTION SECTION 504 OF THE REHABILITATION ACT OF 1973 71. Plaintiffs repeat and reallege paragraphs 1-59 above herein. 72. Defendants recelve federal funds and are therefore subject to the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794. 73. Plaintiffs meet the definition of having a 11 handicap 11 within the meaning of 29 U.S.C. § 706(7) and are otherwise qualified individuals under Section 504. 74. Defendants' practices, policies and procedures described above, violate the rights of plaintiffs and class members that are secured by Section 504 by discriminating against these individuals solely on the basis of disability.
THIRD CAUSE OF ACTION DUE PROCESS AND SECTION 1983 75. Plaintiffs repeat and reallege paragraphs 1-59 above herein.
23

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 24 of 31

7F.

Plriintiffs' Pligihility fnr rinrl rPrPin..._ t- of Medic.=lid

services creates a property right subject to due process protection

under the Fe>urteenth Amendment to the Constitution of the United

States.

77. Florida's Home and Community-Based Waiver specifically

provides for a fair hearing, as required by 42 C.F.R. Part 431,

subpart E, to Medicaid recipients who are denied the services(s) of

their choice or the provider(s) of their choice.

78. Defendants have not provided any procedural protections

for plaintiffs and class members.

79. By denying plaintiffs and class members the opportunity

for a fair hearing to challenge the termination of Home and

Community Based Waiver and for continued benefits, defendants have

violated the Due Process Clause of the Fourteenth Amendment to the

Constitution of the United States, federal Medicaid law and

regulations, and the terms of Florida's Home and Community-Based

Waiver.

FOURTH CAUSE OF ACTION

42 U.S. C. § 1396a(8) and 42 U.S.C. § 1983

80. Plaintiffs repeat and reallege paragraphs 1-59 above

herein.

81. Defendants fail to provide HCBW serv1ces with reasonable

promptness in violation of 42 U.S.C. § 1936a(8) and 42 U.S.C. §

1983.

FIFTH CAUSE OF ACTION

42 U.S.C. § 1396n and 42 U.S.C. § 1983.

24

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 25 of 31

uO'"L'>. •

and real. l.ege

herein.

83. Serving individuals in institutions is contrary to the

letter and intent of 42 U.S.C. § 1396n.

84. Defendants fund institutional placements using the Home

and Community-Based Waiver. Such a use of HCBW funds violates the

exclusion of institutional programs from the Home and Community-

Based Waiver program and therefore violates 42 U.S.C. § 1396n and
42 u.s.c. § 1983.

SIXTH CAUSE OF ACTION

42 U.S.C. § 1396n(2) (a) and 42 U.S.C. § 1983

85. Plaintiffs repeat and reallege paragraphs 1-59 above

herein.

86. Defendants are violating 42 U.S.C. § 1396n(2) (a) and 42
u.s.c. § 1983 by providing inadequate services to individuals

eligible for Home and Community-Based services for the Home and

Community-Based Waiver. Defendants do not provide sufficient

resources tc protect the health and welfare of individuals provide

services under the waiver. 42 U.S.C. § 1396n(2) (A). As a result

of defendants' failure to provide necessary services, individuals

experience pain, emotional harm, and regress, losing skills that

they had previously gained from school and from therapeutic

services.

SEVENTH CAUSE OF ACTION

42 U.S.C. § 1396n(c) (2) and 42 U.S.C. § 1983

25

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 26 of 31
R7. Plaintiffs repeat and reallege paragraphs 1 -c:;q <'lhovP herein.
88. Defendants have violated 42 U.S.C. § 1396nlc) (2) by denying plaintiffs their freedom of choice of an appropriate Home and Community-Based Waiver program that meets their health and welfare needs.
89. Defendants provide only limited services to individuals to remain in their own homes, family homes or community homes.
90. Without adequate services available ln the community, individuals are unnecessarily institutionalized.
91. Defendants are therefore in violation of 42 U.S. C. § 13 96n (c) (2 ) and 4 2 U. S . C. § 19 8 3 .
EIGHTH CAUSE OF ACTION STATEWIDENESS AND 42 U.S.C. § 1983 92. Plaintiffs repeat and reallege paragraphs 1-59 above herein. 93. Federal law requires that a state Medicaid plan shall be in effect and in operation in all political subdivisions of the state. 42 U.S.C. § 1396a(a) (1); 42 C.F.R. § 431.50 (b) (1). 94. As a result of defendants' administration of the Medicaid Home and Community-Based Waiver, individuals in some parts of Florida, such as Dade County, do not have access to the complete range of services under the Home and Community-Based Waiver, provided to individuals who reside in other counties. 95. For example, there are 341 individuals presently on a list to receive services under the Home and Community-Based Waiver
26

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 27 of 31

in Di'lriP ~onntv: ~·

ROmP. hi'JVP. hRP.n on

rhP

l-i-s- -t

f n-r- -f n-n-r- -n- r -f--i-v- P v.iP-r-ir-c-:-: -

Yet, in other counties, there are few, if any, individuals on a

waiting list, and individuals are served in much less time.

96. Defendants' failure to provide adequate Home and

Community-Based Waiver services to individuals throughout the State

of Florida violates the requirement that the state Medicaid plan

and the Home and Community-Based Waiver be in effect and operation

in all political jurisdictions of the state, pursuant to 42 U.S.C.

§ 13 9 6 a (a) ( 1) ; 4 2 C. F. R. § 4 31 . 50 (b) ( 1) ; and 4 2 U.S . C. § 19 8 3 .

NINTH CAUSE OF ACTION

VIOLATION OF MEDICAID EPSDT PROGRAM

97. Plaintiffs repeat and reallege paragraphs 1-59 above.

98. Plaintiffs SHAUNA BOONE, JENNIFER DANIELS, KENNETH SAPP,

AND KELLIEANN WALLEN are recipients of Medicaid and SSI. They are

under 21 years of age.

99. Federal law requires states to cover certain "mandatory"

services and allows states to cover "optional" services listed at

42 U.S.C. § 1396d(a) One mandatory servlce lS Early and Periodic

Screening, Diagnosis, and Treatment (EPSDT) for Medicaid-eligible

children under age 21. 42 U.S.C. § 1396a(a) (10) (A); 42 U.S.C. §

1396d(a) (4) (B).

100. State EPSDT programs are required to provide screening

services to identify defects, conditions, and illnesses. 42 U.S.C.

§ 1396d(r)(1), 42 C.F.R. § 441.56(b).

101. Defendants have failed to either provide needed EPSDT

services directly or ensure that there are providers who are

27

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 28 of 31

'111rilifiPrl rinrl willing t-n nrnviriP

.1.

-

---

services for children with

developmental disabilities in violation of 42 u.s.c. §

13 96a (a) (4 3) (C) , 4 2 C. F. R. § 4 41 . 61 (a, b) , and 4 2 C. F. R. § 4 41 . 57

and 42 U.S.C. § 1983.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs pray that this Court:

A. Assume jurisdiction of this action.

B. Order that plaintiffs may maintain this action as a

class action pursuant to Rule 23, Fed.R.Civ.P.
c. Declare defendants' denial,

reduction and

termination of Home and Community Based Waiver Services under the

Medicaid program without written notice unlawful, and declare

defendants' reduction and termination of Home and Community-Based

Waiver services without an opportunity for a pre-termination

hearing and continued benefits unlawful.

D. Order defendants to provide plaintiffs and members

of the class with necessary services to enable them to live in the

community and to assure their health and safety with reasonable

promptness.

E. Order defendants to provide plaintiffs age 21 and

younger with the full range of EPSDT services covered by Medicaid,

including individualized home and community based developmental

services.

28

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 29 of 31

F.

Order defendants to inform class members and their

families of the range of individualized, home and community-based

services available to them.

G.

Order defendants to remove arbitrary administrative

barriers which prevent class members from accessing individualized

Home and Community-Based Waiver services.

H.

Award plaintiffs their costs and reasonable

attorneys' fees.

F Grant such other and further relief as the Court

deems just and proper.

Respectfully submitted,

S~MAN C{JJJ~/0 r f}__
ELLEN M. Senior Attorney Fla. Bar No. 038751
JULIETTE E. LIPPMAN Senior Attorney Fla. Bar No. 983292
ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. 2901 Stirling Road Suite 206 Fort Lauderdale, FL 33312 (954) 967-1493 (Facsimile) (954) 967-1496 Attorney for Plaintiffs

ADVOCACY CENTER FOR PERSONS WITH DISABILITIES, INC. 2671 Executive Center,
29

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 30 of 31 Circle W., Suite 100
Tallahassee, Florida 32301 (850) 488-9071 (Facsimile) (850) 488-8640
30

Case 0:98-cv-06496-PAS Document 180 Entered on FLSD Docket 08/17/1999 Page 31 of 31

CERTIFICATE OF SERVICE

I HEREBY CERTIFY That a true and correct copy of the foregoing

was sent, by mail, on January 19, 1999 to:

Chesterfield Smith Jr., Esq Stephanie Daniel, Esq. Assistant Attorneys General The Capitol - PL01 Tallahassee, FL. 3~399-10~0 (850 ) - 488 - 4 872 (fax) Counsel for Defendants in: Murray v. Bock Brown v. Chiles Prada-Steiman v. Chiles

Ms. J.C. Miller, Esq. Office General Counsel Hartman Building Suite # 307 2012 Capital Circle SE Tallahassee, FL. 32399 (850 ) - 922 - 7270 (fax)
Counsel for Allen/DOL, Brown v. Chiles

Doug Mcinnes, Esq. Skip Wallberg, Esq. Assistant Attorneys General The Capitol - PL01 2020 Capital Circle SE Tallahassee, FL. 32301 (850 ) - 488 - 4 872 (fax) Counsel for Defendants in: MCPRS v. Bock

Andrew J. Meyers, Esq. Special Counsel 14600 S. Military Trail Delray Beach, Florida 33445 (5 61 ) - 63 7 - 7 057 (fax)
Counsel for Allen/DOL Brown v. Chiles

Louisa Smith, Esq.

Jeanine Worden, Esq.

Steven Weinger, Esq.

Mark Dubin, Esq.

Helena Tetzeli, Esq.

Trial Attorney

Kurzban, Kurzban, Weinger & Tetzeli

Civil Rights Division

2600 S.W. 27th Avenue I 2nd Floor

U.S. Department of Justice

Miami. Florida 33133
(3 o5 ) - 4 4 4 - 3 5 o3 ( fax)

1425 New York Ave. NW Room 4042

Counsel for Plaintiff in:

Washington, DC 20005

Murray v. Miami CP

(2 02 ) - 3 07 - 11 98 (fax)

Counsel for Intervenor/US

Prada-Steiman,

Brown,

Murray

Thomas E. Scott, U.S. Attorney

Veronica Harrel-James, Esq. (Prado)

Office of the U.S. Attorney

99 NE 4th Street

Miami, Florida 33132

(3 05 ) - 53 0 - 616 8 (fax)

Counsel for Intervenor/US, Prado-Steiman,

Brown, Murray

Ellen M.

deman

 
 8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION

, . ~ r. ,-; .·. J.U. ,: ,'L-'<.-F1L

WOLF PRADO-STEIMAN, et al., Plaintiffs,
vs. JEB BUSH, et al.,
Defendants.

Case No.: 98-6496-CIV-FERGUSON

JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT
Plaintiffs, as representatives of the certified class, 1 and Defendants, all sued in their official capacities only, move this Honorable Court to approve the Settlement Agreement which was filed with this Court on June 30, 2000. As grounds therefor. the parties would state:
Preliminar:y Statement Plaintiffs filed a civil rights class action lawsuit pursuant to Title 42 U.S.C. § 1983 in order to challenge the administration of the Florida Developmental Services Home and Community-Based Services Waiver (Waiver), a Medicaid program which provides funding for community-based services for individuals with developmental disabilities. Among other things, the Second Amended Complaint alleges that Defendants denied some individuals enrolled on
1 I In this Court's Order dated March 29, 1999, the class was certified as "All persons with developmental disabilities who are presently receiving Home and Community-Based Waiver services or who are eligible to receive Home and Community-Based Waiver Services, or who would receive or be eligible for Home and Community-Based Waiver Services in the future."

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
the Waiver needed Waiver services, denied other individuals enrollment on the Waiver, and failed to provide these individuals with any notice of their due process rights.
On March 29, 2000, the Court certified a class in this case. The class definition has been described above in footnote I. Defendants have appealed the Order Certifying Class. Although oral argument in the appeal was held in December 1999, no opinion has been issued to date.
A non-jury trial was scheduled to commence on July 10, 2000, on the Second Amended Complaint. Upon being apprised that the parties had executed a Settlement Agreement, the Court removed the case from the trial docket, pending a proceeding to consider whether the Settlement Agreement should be approved.
On June 30, 2000, the Court issued an Order dismissing this case without prejudice. The Order further provided that the Court would retain jurisdiction of the case for sixty (60) days to review and approve the Agreement.
In 1999 and again in 2000, the Florida Legislature appropriated additional funding for community-based services provided through the Waiver. As a result of the funding, Defendants have been able to enroll more than 6,000 persons on the Waiver, and have been able to provide additional Waiver services to more than 8,000 persons already enrolled on the Waiver.
The parties have now reached a settlement which is a fair resolution of this case. Further, the Settlement avoids unnecessary utilization of scarce judicial resources that would be required to resolve the many complicated questions regarding the adequacy of Florida's Waiver under both federal statutory mandates and the federal constitution.
2

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag

I.

SUMMARY OF SETTLEMENT

The terms of the Settlement Agreement are designed to guide an orderly and safe

expansion of the Waiver, and to ensure the health and safety of those enrolled on the Waiver.

Additionally, the Settlement Agreement assures that individuals seeking Waiver services will

be provided notice of their due process rights if an adverse action is taken regarding a request

for Waiver services.

The following describes the terms of the Settlement Agreement:

A. By August 31, 2000, the Department of Children and Family Services

(Department) will complete an assessment of the need for additional Waiver providers by

District. Upon completion of the assessment of need for providers, each District shall establish

a plan for recruiting new providers and expanding existing providers, where indicated. The

District plans must be completed by September 15, 2000. Those plans are subject to approval

by the Department. Each district will be accountable for following their respective approved

plan.

Also. the Department will create a statewide registry of Waiver providers by September

15, 2000.

B. Effective July I, 2000, the Department shall certify all Waiver providers on a

statewide basis, without the necessity of certification by district.

C. The Settlement Agreement provides for provider training. A workgroup will be

established to make recommendations as to an appropriate curriculum for provider training. The

parties anticipate that they will be able to utilize existing curriculum for training purposes.

3

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
Ultimately, the Settlement Agreement contemplates mandatory training. Short term, the training will be made available on a voluntary basis (effective July I, 2001).
The workgroup will make recommendations for "phasing in" mandatory training. The Department and the Agency shall then consider the recommendations, and determine how best to structure a mandatory training program. By September 2, 200 I, the Department will submit a request to the Florida Legislature to fund competency-based training of providers. In the event that funding is not appropriated for competency-based training, beginning fiscal year 2002-2003, the Department will make available $200.000 per year for use in developing curriculum and implementing a mandatory training program.
The Department and the Agency also agree to develop a protocol for medication administration and handling consistent with state law. This protocol will be available for implementation by October I, 2000. Effective December I, 2000, the Department will begin to modifY provider assurances for appropriate direct care workers and the providers who employ them to require training on the protocol as a condition of emollment as a Waiver provider or continued emollment on the Waiver.
D. By March I, 2001, the Department and the Agency will revise and strengthen training requirements for Waiver Support Coordinators, to ensure that they have appropriate training on a number of topics.
The Department will seck funding from the 2001 Legislature for funding for a competency-based training program for Waiver Support Coordinators.
4

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
By November I, 2000, the Department and the Agency, with input from the Advocacy Center, will develop a proposal to eliminate unnecessary paper work by Waiver Support Coordinators.
By October I, 2000, the Department will establish and implement a policy for handling complaints against Waiver Support Coordinators.
Also, the Department and the Agency will study the issue of caseloads for Waiver Support Coordinators, to determine what an appropriate caseload for Waiver Support Coordinators might be, and to determine an appropriate "mix of cases" for a Waiver Support Coordinator. The term "mix of cases" refers to the number of clients for which a Waiver Support Coordinator provides more intensive case management services, in comparison to the number of clients for which a Waiver Support Coordinator provides more routine case management services.
The Department and the Agency will also study support coordination rates, and determine whether an enhanced support coordination rate is appropriate where more intensive case management services are required. If feasible, in the sole discretion ofthe Defendants, the Department and the Agency will submit a request to the Governor and the Florida Legislature, by September I, 200 I, for funding to support the enhanced rate. Also, by September I, 200 I, the Department and the Agency will submit a recommendation to the Florida Legislature regarding an appropriate "mix of cases."
E. The Settlement Agreement requires the creation of a Quality Assurance System. The Legislature has directed the Agency for Health Care Administration to contract with an
5

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
outside entity to perform quality assurance monitoring of Waiver services. The Request For Proposal for the quality assurance will be issued by December 31, 2000.
In the absence of a bid protest or administrative challenge to the award of the contract, the Department and the Agency agree that they will begin implementation of the Quality Assurance system within sixty (60) days after execution of the contract.
By September 30, 2000, a contractor retained by the Department will conduct an evaluation to determine how the Department can best provide medical quality assurance services in all of the Districts. As a result of that evaluation, the Department will develop a uniform plan of medical case management. The Department will implement medical case management in the districts by December 31, 2000.
The parties also agree that citizen monitors will be used to assist in monitoring Waiver services.
F. By December I. 2001, the Department will substantially complete choice counseling for all individuals who live and receive Waiver services at the residential habilitation centers (large group homes with more than 15 beds). The focus of the choice counseling will be alternative residential placement options. In order to ensure that individuals have a meaningful choice ofresidential placement options, the Department will work toward developing alternative residential placements.
If a vacancy occurs in the residential habilitation centers, the vacancy will not be filled with an individual enrolled on the Waiver. Two residential habilitation centers are exempted from this requirement. Carlton Palms and F.I.N.R.S. However. beginning six (6) months after the approval of the Settlement Agreement by the Court (and every six months thereafter), the
6

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
Department agrees to review each Waiver placement in Carlton Palms and F.I.N.R.S. to determine whether the placement continues to be medically necessary.
G. The Settlement Agreement establishes service delivery time lines. During the course of this fiscal year (2000-2001), the Department agrees that. subject to availability of a slot and funding for the slot, it will incrementally enroll 3,889 persons on the Waiver, consistent with the Spending Plan previously submitted to the Legislature.
Effective the date that this Settlement Agreement is approved by the Court and continuing until June 30, 2001. the Department will make reasonable efforts to provide those requested Waiver services for which a determination of medical necessity has been made within ninety (90) days of the date of the individual's enrollment on the Waiver, to the extent that sufficient provider capacity exists.
The Department is in the process of completing an applications policy for the Waiver. The expected date for completion of the policy is September 1, 2000.
Effective July I, 2001. the Department will enroll eligible individuals on the Waiver with reasonable promptness, to the extent that a Waiver slot and funding for that slot exist. The Department will also provide medically necessary Waiver services to enrolled individuals with reasonable promptness.
The Settlement Agreement establishes time frames for processing an application for Waiver services, notifying the client of action on the application. requesting a Waiver Support Coordinator, completion of a support plan and cost plan, and initiation of services, with which the Department agrees to substantially comply. For individuals who are both Medicaid recipients and Developmental Services (DS) clients, medically necessary services should be
7

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
provided within ninety (90) days after receipt of the application for Waiver services - to the extent that the individual is eligible for the Waiver, and a slot and funding exist to enroll the individual on the Waiver.
Additional time frames are provided for a determination of Medicaid eligibility (90 days) and DS eligibility (consistent with state law)- however, if a person is neither Medicaid eligible nor DS eligible at the time of application for Wavier services, the time frames run concurrently.
For individuals in crisis, the Department will make reasonable efforts to provide necessary services as quickly as possible.
H. By December 31, 2001, the Waiver Support Coordinators will be required to provide service counseling to all Waiver clients currently in sheltered workshops or segregated work environments to apprise them of the options available to them for meaningful work activities.
The Department will enhance adult day training standards to assure or reemphasize that meaningful day activities relate to the person achieving his or her life goals. The Advocacy Center will have input into the proposed modification of provider assurances. The Department will implement modification of provider assurances with the provider enrollment cycles beginning on or after July I, 200 I.
I. The Department agrees that, by November 30, 2000, it will conduct and complete a rate and standardization study (rate study) relating to provider rates. The purpose of this study will be to determine the methodologies currently being used to set rates. and to develop
8

8-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
appropriate rate setting methodologies for different provider types. The rate study will include consideration of the cost of provider training.
After completion of the rate study, but no earlier than January I, 200 I, based upon the findings of the rate study, the Department agrees to provide a rate adjustment increase of up to 3% to equitably increase rates to providers, to the extent that funds are available in Specific Appropriation 344. To the extent that the rate study reflects a need for rate adjustment increases, the direct care workers shall be paid a 3% raise first.
By November 30, 2000, the Agency and the Department will submit the results of the rate study to the Florida Legislature for consideration during the 2001 Session. Further, the Agency and the Department agree to use their best efforts to obtain any additional funding from the Legislature for the rate study, and to implement the recommendations of the rate study, including equitable changes to minimize disparities in provider rates among the same provider types.
If additional funding is required to implement the results of the rate study, over and above what has been authorized for the 2000-200 I fiscal year, the parties understand that full implementation of the rate study is subject to Legislative funding.
J. The Department agrees to substantially comply with the most current version of its Due Process Policy as it relates to both individuals requesting enrollment on the Waiver and individuals on the Waiver requesting Waiver services.
K. By June 30. 2001, the Department and the Agency will publish a Waiver handbook which will establish statewide policies regarding administration of the Waiver.
9

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
In the interim, as a need is identified to create and implement statewide policies on particular issues, the Department, in conjunction with the Agency, agrees that it will issue written interim policies to address these needs.
L. The Department agrees that it will translate the Florida Status Tracking Survey (FSTS) into both Spanish and Creole, as quickly as possible, but no later than November I, 2000. Upon completion of the translation, the Department intends to allow Spanish and Creole speaking consumers, and their families, to provide input regarding the accuracy of the translations. This may necessitate further revisions, so that the translated versions of the FSTS accurately communicate the necessary information. The Department anticipates that it will be able to fully implement the translated versions of the FSTS (with any necessary revisions). by no later than January 31. 2001.
Further. the Department will exercise its best efforts to ensure that interviewers who meet with clients (and families), who do not speak English, but rather speak Spanish or Creole. be able to competently communicate in Spanish or Creole as indicated.
M. The court will retain jurisdiction in this lawsuit until December 31. 2001, at which time the matter will be dismissed with prejudice, unless plaintiffs can show a material breach as evidenced by systemic deficiencies in the Defendants' implementation of the plan of compliance. Prior to filing a motion asserting material breach, plaintiffs must comply with the notice and cure provisions contained in the agreement.
10

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
II. STANPARD FOR APPROVAL OF SETTLEMENT FOR CLASS ACTION LITIGATION
The standards to be applied in determining whether to approve a class action settlement are well-established. "Compromises of disputed claims are favored by the Courts." Williams v. First National Bank, 216 U.S. 582, 595 (1910). Nowhere is this policy more appropriate than in class actions.
In the class action context in particular, "there is an overriding public interest in favor of settlement." Cotton v. Hinton, 559 F.2d 1326. 1331 (5th Cir. 1977). Settlement of complex disputes often involved in class actions minimizes the litigation expenses of both parties and also reduces the strain such litigation imposes upon already scarce judicial resources. Arrnstron~ v. Board of School Directors. 616 F.2d 305. 313, (7th Cir. 1980); accord Franks v. roger Co., 649 F.2d 1216. 1224 (6th Cir. 1981).
Under the Federal Rules of Civil Procedure, a court should approve a class action settlement if it is "fair, adequate and reasonable." Fed. R. Civ. P. 23(e); accord. Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir. 1985), cert. denied, 476 U.S. 1169 (1986); Protective Committee v. Anderson, 390 U.S. 414,434 (1968). In assessing a proposed settlement, "[c]ourts judge the fairness of a proposed compromise by weighing the plaintiffs likelihood of success on the merits against the amounts and form of the relief offered in the settlement." Carson v American Brands Inc., 450 U.S. 79, 88 n. 14 (1981).
The Eleventh Circuit has enumerated a number of elements which a district court may consider in evaluating the fairness of a class settlement, including the following:
(I) the likelihood of success at trial; (2) the range of possible recovery;
11

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
(3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration oflitigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved. Bennett v. Behring, 737 F.2d 982, 986 (lith Cir. 1984). Despite the multitude of factors identified above, courts should "not decide the merits of the case or resolve unsettled legal questions." Carson v. American Brands Inc., 450 U.S. 79,88 n. 14 (1981) In appraising the fairness of a proposed settlement, the view of experienced counsel favoring a settlement is entitled to significant weight. See Ressler v. Jacobson, 822 F. Supp. 1551, 1552 (M.D. Fla. 1992) citing Cotton v. Hinton, 559 F.2d 1326, 1330-1332 (5th Cir. 1977). In reviewing a settlement, the court should be "hesitant to substitute his or her own judgment forthat of counsel.'' In re Smith, 926 F.2d 1027, 1028 (lith Cir. 1991). A judge must "'guard against the temptation to become an advocate"' and should favor neither party nor "'those who are opposed or absent.'" !d., at 1029. Nor should the court disapprove a settlement because of "generalized notions of unfairness or unacceptability." !d. The Settlement in this case was the result of non-collusive, intensive negotiations by counsel who are seasoned litigators with many years of experience in comparable litigation. A. Class Counsel are Experienced Plaintiffs were represented by an experienced tean1 of attorneys from the Advocacy Center for Persons with Disabilities, Inc. Peter L. Nimkoffhas practiced law extensively in this Court and served as a United States Magistrate from 1982-1986. Since September 1996, Mr. Nimkoffhas been the Litigation Director or Chief Counsel at the Advocacy Center. Ellen M.
12

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
Saideman is an experienced lawyer in the field of class action litigation and litigation involving individuals with developmental disabilities. B. Class Counsel Support Approval of the Settlement
After full review and analysis of the evidence and legal issues, Plaintiffs' counsel are satisfied that this Settlement confers significant, concrete benefits upon the class members and is fair, reasonable and adequate in light of the complexity, delay and possible risks attendant to continued litigation. There is strong judicial policy favoring settlement as well as the realization that compromise is the essence of settlement. Bennett v. Behring Corp, 737 F.2d 982, 986(11 th Cir. 1984); U.S v. City of Miami, 614 F.2d 1322 (5th Cir. 1980); Florida Trailer and Equipment Co. v. Deal, 284 F.2d 567, 571 (5th Cir. 1960).
Further, this Settlement is a deviation from the long held policy of the State of Florida not to permit continued federal court jurisdiction. This Court is well aware that the Governor and the Attorney General have taken the position that the State of Florida will not enter into any stipulated settlements or consent decrees where any court retains jurisdiction.
lL EVALUATION OF THE SETTLEMENT
Examining the Settlement in light of the criteria outlined above, it must be concluded that it is fair, adequate, reasonable and in the best interest of the class. A. Likelihood of Success on the Merits
The State has made a number of changes in the administration of the Waiver since this lawsuit was filed. Further, significant new funding appropriated by the Florida Legislature for fiscal years 1999-2000 and 2000-200 I has enabled the Defendants to provide needed services to individuals already enrolled on the Waiver. and to enroll over 6,000 new persons on the
13

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
Waiver already. This is an action for injunctive and declaratory relief only. and includes no action for damages. Such relief is prospective in nature. In light of increased funding for the Waiver, the ongoing expansion of the Waiver, and increases in the delivery of Waiver services, the Court must, in evaluating Plaintiffs' claims determine, among other things, whether there exists a likelihood that plaintiffs will suffer future harm at the hands of defendants. Cone Corp. v. Florida Dept. ofTransp., 921 F.2d 1190,1204 (lith Cir. 1991).
The order certifying class is on appeal. In order to appeal that order, the Defendants had to obtain permission from the Eleventh Circuit Court of Appeals to file the appeal. That permission was given, suggesting that the appeal was not fiivolous in nature. An adverse decision on appeal might have significantly narrowed the class and the issues which remained for class resolution.
Similarly. Defendants believe that Plaintiffs' claims are barred by the Eleventh Amendment to the United States Constitution, and would have challenged Plaintiffs' statutory claims under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134. and particularly the use of those statutes to suggest that the state is affirmatively obligated to provide services to individuals for their disabilities in order to avoid institutionalization. Although Plaintiffs believe
14

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
that they would prevail on these issues,' there is the attendant risk that the Eleventh Circuit might hold the Eleventh Amendment bars the requested relief. B. Range of Possible Recovery
The parties believe that the Settlement Agreement provides a broader range of recovery than might otherwise be available in this case. The central issues in the Second Amended Complaint were the lack of funding to provide needed Waiver services, the failure to provide due process notice when Waiver services were denied, delays which class members experienced in receiving Waiver services, and the scope of Waiver services provided. Thus, any injunctive and declaratory relief would be directed to those issues. However, the Settlement Agreement goes beyond the issues pleaded in the Second Amended Complaint, including matters such as provider training, quality assurance, the training of Waiver Support Coordinators, provider rates, the nature of adult day training programs and supported employment programs (as distinct from the availability of such programs), and other miscellaneous issues.
C. Fairness. Adequacy and Reasonableness of the Settlement The determination of "reasonable" settlement is not susceptible to a mathematical
equation yielding a particularized sum. As the court explained: "[T]here is a range of
'!See Olmstead v. L. C. by Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999); Helen L. v. DiDario. 46 F.3d 325 (3d Cir. 1995), cert denied, 116 S.Ct. 64 (1995)(holding that the ADA required DPW to place plaintiff in an attendant care program in the community as it was the most integrated setting to meet her needs); Martin v. Voinovich, 840 F. Supp. 1175, 1192 (S.D. Ohio 1993) (refusing to dismiss claims that state violated Section 504 and ADA by excluding people with severe disabilities from community programs); and Jackson v. Fort Stanton School & Hospital, 757 F.Supp. 1243, 1299 (D. N.M. 1990) (holding that defendants violated Section 504 by failing to integrate persons with severe disabilities into community programs).
15

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
reasonableness with respect to a settlement ... " Newman v. Stein, 464 F.2d 689, 693 (2d Cir.), cert. denied, 409 U.S. I039 (1972).
In the instant case, the Settlement Agreement is imminently reasonable because it ensures that the expansion of the Waiver occurs in a safe and effective manner, and that the individuals served through the Waiver are provided with medically necessary services with reasonable promptness. The Settlement Agreement ensures that there are quality assurance mechanisms to oversee the operation of the Waiver. Also, the Settlement Agreement ensures that the Due Process policy now in place will be followed. D. Complexity. Expense and Duration of Litigation
The complexity of the factual and legal issues involved in this litigation cannot be underestimated. The case deals with a variety of services to persons on the Waiver, and persons who wish to be enrolled on the Waiver. There are over 18,000 persons on the Waiver alone.
The expense of continuing to litigate would be substantial. Plaintiffs' litigation costs are anticipated to be extensive.
The parties emphatically prefer to devote these resources to productively meeting the human needs of the class of individuals who need to be served.
Even if the class obtained a favorable decision and it was upheld on appeal, the class would not be assured of a judgment more favorable than the present settlement, particularly in view of the likelihood of extensive appeals. In addition to the complexity and expense of continued litigation regarding remedy, the Court must also consider the potential impact on scarce judicial resources. In the absence of this Settlement, the class might receive fewer benefits, even assuming a favorable decision, for years. Cf Ressler v. Jacobson, 822 F. Supp.
16

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
1551, 1553-55 (noting that litigation of these types of cases often consumes extensive judicial resources).
The Parties agree that the time and expense of continued litigation is to be avoided, if at all possible. E. Stage of Proceedings at which the Settlement was Achieved
The purpose of considering the stage of the proceedings is to ensure that Plaintiffs have had access to sufficient information to evaluate the case and to assess the adequacy of a settlement proposal with an informed judgement of the strengths and weaknesses of their position. ~ In re General Motors Corp., 846 F. Supp. 330, 334-35 (E. D. Pa. I993). In the instant case, there has been extensive discovery over the past two years. Plaintiffs have had the opportunity to depose Defendants· fact and expen witnesses, to the extent that they chose to do so. Plaintiffs have had an opportunity to review thousands of pages of documents relating to Defendants' case. The Settlement Agreement was executed only eleven (II) days prior to the trial.
Additionally, the settlement discussions have included numerous discussions relating to the viability of the different claims brought by plaintiffs.
CONCLUSION The Parties respectfully request that the Court enter an order approving the Stipulation of Settlement for all of the foregoing reasons, after a fairness hearing.
17

-cv-06496-PAS Document 255 Entered on FLSD Docket 08/01/2000 Pag
Respectfully submitted,

STEPHANIE A. DANIEL Assistant Attorney General Fla. Bar No. 332305 CHESTERFIELD SMITH, JR., Esq. Assistant Attorney General Fla. Bar No. 852820 Office of the Attorney General State of Florida PL 01 The Capitol Tallahassee, FL 32399-0700 Tel.: (850) 414-3300 Fax: (850)488-4872
Attorney for Defendants

\1~y-,N~~~
PETRL~NIMKOFF, Esq.
Fla. Bar No. 058840 Advocacy Center for Persons with Disabilities, Inc. Circle West, Suite 100 Tallahassee, FL 32301 Tel.: 1850) 488-9071 Fax: (850) 488-8640
ELLEN M. SAIDEMAN, Esq. Advocacy Center for Persons With Disabilities, Inc. 2901 Stirling Road Suite 206 Ft. Lauderdale, Florida 33312 Attorneys for Class

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent, by

United States Mail to: Mark Dubin, Esquire, Civil Rights Division, United States Department

ofJustice, 1425 New York Avenue N.W.. Room 4042, Washington, D.C. 20005, Veronica

Harre1-James, Esquire, Assistant U.S. Attorney, and Thomas E. Scott, Esquire, United

States Attorney, Southern District of Florida, 99 N.E. 4th Street, Miami, Florida 33132, on this
:S_!s_1d-ay of July, 2000.

STEPHANIE A. DANIEL Assistant Attorney General
18

 
 8-cv-06496-PAS Document 339 Entered on FLSD Docket 08/09/2001 Pa

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

WOLF PRADO-STEINMAN, et al., Plaintiffs,
V.
JEB BUSH, et al., Defendants.

Case No. 98-6496-CIV-FERGUSON

ORDER APPROVING SETTLEMENT AGREEMENT

On reconsideration the parties' Amended Joint Motion for Approval of the Settlement

Agreement [D.E. 267] dated June 30, 2000 is GRANTED and the agreement is APPROVED.

The objections are overruled for the reasons that the objectors have no standing in this litigation

or the grounds for the objections, as they pertain to individual historical deprivations, are

adequately addressed in the broad and forward-looking provisions of the covenant

this~ DONE AND ORDERED in Chambers at Ft. Lauderdale, Florida,
August, 2001
\>~\ uf)__

day of

ON, JR. TRICT nJDGE

Copies provided: Peter Nimkoft~ Esq. Stephanie Daniels, Esq. Chesterfield Smith, Esq. Hubert Grissom, Esq. Mary Jeanne Daniels Karen Wallen

 
 Case 0:98-cv-06496-PAS

Document 543 Entered on FLSD Docket 11/01/2004 Page 1 of 5
- ~ UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION

C'·. 0~12.3 r\.:' ~·--· ·..~. J

' .
-L...'

' .

WOLF PRADO-STEIMAN, et al.,

.,.1.-.1

Plaintiffs,

vs.

Case No.: 98-6496-CIV-SEITZIBANDSTRA

JEB BUSH, et al.,

Defendants.
------------------------~'

SETTLEMENT AGREEMENT ON ATTORNEYS FEES AND LITIGATION EXPENSES The purpose of this agreement is to settle all claims by plaintiffs against defendants for attorneys' fees and litigation expenses incurred by plaintiffs during the pendency of this litigation from its inception to the present and which may be incurred or claimed in the future. The parties enter into this agreement with benefit of counsel and aver that it was the result of an arms' length negotiation and that it is fair and reasonable. Michelle Brantley, in her official capacity as the Director of the Agency for Persons with Disabilities'

1/0n October 1, 2004, the Agency for Persons with Disabilities was created to provide services to persons with developmental disabilities. The authority and responsibilities once vested in the Department of Children and Family Services (DCF), with respect to individuals with developmental disabilities, will now exist in that new agency. Chap. 2004-267, §70, Laws of Florida.
Pursuant to §87(1) of Chapter 2004-267, Laws ofFlorida, the DCF Developmental Disabilities Program was transferred from DCF to the Agency for Persons with Disabilities in a "type two" transfer. Section 20.06(2), Florida Statutes (2003), describes the legal requirements for a type two transfer. Among other things, the program at issue "has all its

- - Case 0:98-cv-06496-PAS Document 543 Entered on FLSD Docket 11/01/2004 Page 2 of 5
statutory powers, duties, and functions, and its records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, except those transferred elsewhere or abolished, transferred to the agency or department to which it is transferred, unless otherwise provided by law." §20.06(2)(a), Fla. Stat. (2003).

- - Case 0:98-cv-06496-PAS Document 543 Entered on FLSD Docket 11/01/2004 Page 3 of 5
, and Alan Levine, in his official capacity as Acting Secretary of the Agency for Health Care Administration for the State of Florida, agree to pay to the plaintiffs $1,150,000 in full settlement of all claims for attorneys' fees and litigation expenses claimed in this litigation (the settlement amount). The defendants will use good faith efforts to pay the amount as expeditiously as possible, but no later than November 8, 2004. The settlement check shall be made payable to James K. Green, P.A., trust account.
In addition, Defendants will pay the charges for the mediator in this case, in full. The plaintiffs agree to accept the settlement amount in satisfaction of all attorneys' fees and costs incurred in this litigation accruing or claimed at any time, including appellate fees and costs, all unclaimed amounts for time or costs not yet raised in any motion or petition, and any attorneys' fees which might have been claimed in the future, in the abovereferenced case. Upon receipt of the settlement amount, the plaintiffs will immediately notify the United States District Court for the Southern District of Florida, and dismiss any pending petitions for attorneys' fees and litigation expenses pending in this or any related matter, including appeals. In consideration thereof, the named Plaintiffs hereby jointly and severally release and forever discharge each and every one of the Defendants, their heirs, predecessors, successors, assigns, personal representatives, executors, administrators, directors, officers, employees, representatives, agents, parents, subsidiaries or affiliates, persons employed or engaged by Defendants and anyone claiming by, through, or under them, whether past or present (collectively referred to as "Defendants"), of and from all claims for attorneys' fees and
3

- Case 0:98-cv-06496-PAS Document 543

Entered on FLSD Docket 11/01/2004 Page 4 of 5

litigation costs which Plaintiffs, their heirs, successors, assigns, personal representatives, executors, administrators, directors, officers, employees, representatives, agents, parents, subsidiaries or affiliates, persons employed or engaged by Plaintiffs and anyone claiming by, through, or under them (collectively referred to as "Plaintiffs"), have had, now have, or may have against the Defendants or any one or more of them, in the litigation styled, Wolf PradaSteiman, by and through his mother and next friend, Laura Prado; Marlon Christie, by and through his mother and next friend, Opal Millwood; Lucy Adawi, by and through her mother and next friend, Vicky Adawi; Jennifer Bastidas; Daniel Lavin, by and through his father and next friend, Jose Lavin; Daniel Shell, by and through his parents and next friends, Carolyn and Donald Shell; Darryl Austin, by and through his mother and next friend, Virginia Austin; Shauna Boone, by and through her mother and next friend, Delauna Boone; Aimee Cartaya; Jennifer Daniels, by and through her mother and next friend Mary Daniels; Alberto Dominguez III, by and through his parents and next friend, Alberto Donimguez II and Edelmira Dominguez; Tonita Knights, by and through her mother and next friend Maggie Knights; Millie Redmond; Marcos Salas-Guevera, by and through his mother and next friend, Eleanor Gibson; Kenneth Sapp, by and through his mother and next friend Carol Johnson; Kellieann Wallen. by and through her mother and next friend Karen Wallen; Michael Wargin. by and through his mother and next friend, Marie Wargin; Willard Webster, by and through his mother and next friend. Joan Webster, on behalf of themselves and all other persons similarly situated, and the Advocacy Center for Persons with Disabilities, Inc. v. Jeb Bush in his official capacity as Governor and Chief Executive of the State of Florida, Jerry Regier, in his official capacity as Secretary, Department of Children and Family Services, Michelle

4

Case 0:98-cv-06496-PAS Document 543 Entered on FLSD Docket 11/01/2004 Page 5 of 5

Brantley, in her official capacity as the Director of the Department of Children and Family

Services Developmental Disabilities Program, Jack L. Moss, in his official capacity as

Department of Children and Family Services District Administrator, District 10, Alan Levine,

in his official capacity as Acting Secretary of the Agency for Health Care Administration for

the State of Florida, Steve Grigas, in his official capacity as acting Director of Florida

Medicaid for the Agency for Health Care Administration, Case Number 98-6496-CIV-SEITZ,

pending in the United States District Court for the Southern District of Florida.

Nothing in this Settlement Agreement should be construed as an admission of liability

by Defendants, and cannot be used as an admission by either party in this or any other

proceeding.

IN WITNESS WHEREOF, the Parties to this Settlement Agreement have executed

[~of the same as ofthe

October, 2004.

For Plaintiffs:

For Defendants:

CHARLES J. CRIST, JR. Attorney General

W st Palm Beach, Florida 33401 (5 )659-2009 FA : 561-655-1357
Counsel for Plaintiffs

Stephanie A. Daniel Senior Assistant Attorney General Florida Office of the Attorney General The Capitol, Suite PL01 Tallahassee, Florida 32399-1050 (850)414-3300 FAX: (850)488-4827
Counsel for Defendants
5

 
 Case 0:98-cv-06496-PAS Document 544 Entered on FLSD Docket 09/09/2005 Page 1 of 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 98-6496-CIV-SEITZ/BANDSTRA WOLF PRADO-STEIMAN, eta!., Plaintiffs,
v.
JEB BUSH, Governor of the State of Florida, in his official capacity, eta!.,
______D_e_f_en_d_a_n_ts_. __________________/
ORDER CLOSING CASE THIS CAUSE is before the Court based on this Court's March 30, 2004 Order Denying Plaintiffs' Motion to Continue Jurisdiction Based on Material Breach of the Settlement Agreement and Denying Without Prejudice Plaintiffs' Motions for Attorneys' Fees [DE-491] (the "March 30th Order) and the Joint Notice to the Court [DE-543], filed on October 29, 2004, advising the Court that Plaintiffs acknowledged receipt of a check in full satisfaction oftheir claims for attorneys' fees and costs in this matter. Based on the March 30th Order, which stated that the Court would close this case once the parties resolved the attorneys' fees issues since no basis exists for the Court's continued jurisdiction over the merits of this litigation, it is hereby ORDERED that this case is CLOSED. All pending motions are DENIED as moot. DONE and ORDERED in Miami, Florida, this ~~ fl-.day of September, 2005.
cc: All Counsel of Record

 
 Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 1 of 41
U.S. District Court Southern District of Florida (Ft. Lauderdale) CIVIL DOCKET FOR CASE #: 0:98−cv−06496−PAS

CLOSED

Prado−Steiman, et al v. Chiles, et al Assigned to: Judge Patricia A. Seitz Demand: $0 Case in other court: 01−13589−F
01−13589−F 01−13589−F Cause: 42:1983 Civil Rights Act Plaintiff Wolf Prado−Steiman
Plaintiff M. C.
Plaintiff

Date Filed: 05/13/1998 Date Terminated: 06/30/2000 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Ellen Marjorie Saideman Advocacy Center for Persons with Disabilities 4411 Sheridan Street Hollywood, FL 33021 954−967−1493 Fax: 967−1496 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman Advocacy Center for Persons with Disabilities 4411 Sheridan Street Hollywood, FL 33021 954−967−1493 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff Advocacy Center for Persons with Disabilities Inc. Webster Building 2671 Executive Center Circle West Suite 100 Tallahassee, FL 32301−5092 850−488−9071 Fax: 488−8640 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 2 of 41

Advocacy Center for Persons With Disabilities, Inc.

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hubert Aubrey Grissom , Jr. Advocacy Center for Persons with Disabilities 1000 N Ashley Drive Suite 513 Tampa, FL 33602 813−233−2920 Fax: 233−2917 Email: h.grissom@advocacycenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura L. Whiteside Laura L. Whiteside, Esquire 18919 Bellflower Road Tampa, FL 33647 813−979−2868 Fax: 813−225−1921 Email: lwhiteside@tampabay.rr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Governor Lawton Chiles in his official capacity as Governor and Chief executive of the State of Florida

represented by Chesterfield H. Smith , Jr. Attorney General's Office Florida Department of Legal Affairs PL−01 The Capitol Tallahassee, FL 32399−1050 850−414−3665 Fax: 850−488−4872 Email: Chesterfield.Smith@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie A. Daniel Attorney General Office Department of Legal Affairs The Capitol PL−01 Tallahassee, FL 32399−1050 850−414−3300 Fax: 488−4872 Email: Stephanie.Daniel@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York Dilworth Paxson

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 3 of 41

112 Market Street 8th Floor Harrisburg, PA 17101 717−236−4812 Fax: 236−7811 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Edward Feaver in his official capacity as Secretary, Department of Childredn and Families

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles Kimber in his official capacity as Deputy Secretary of the Department of Childern and Families

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Donna Allen in her official capacity as Assistant Deputy Secretary of Department of Childern and Families

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Brown in his capacity as Department of Childredn and Families District Administrator, District 10

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 4 of 41

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Doug Cook in his offical capacity as Director of the Agency for Heath Care Administration for State of Florida

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard T. Lutz in his official capacity as Director of Florida Medicaid for the Agency for Health Care Administration

represented by Chesterfield H. Smith , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Marlon Christie by and through his mother and next fried, Opal Millwood

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman William N. Charouhis &Associates Alfred I. Dupont Building 169 E Flagler Street Suite 1200 Miami, FL 33131 305−372−1212 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 5 of 41

Plaintiff Lucy Adawi by and through her mother and next friend, Vicky Adawi
Plaintiff Jennifer Bastidas
Plaintiff Daniel Lavin by and through his father and next friend, Jose Lavin
Plaintiff Daniel Shell by and through his parents and next friends, Carolyn and Donald Shell

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 6 of 41

ATTORNEY TO BE NOTICED

Plaintiff
Darryl Austin by and through his mother and next friend, Virginia Austin

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Shauna Boone by and through her mother and next friend, Delauna Boone

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Aimee Cartaya

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jennifer Daniels by and through her mother and next friend, Mary Daniels

represented by Ellen Marjorie Saideman (See above for address) TERMINATED: 10/02/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) TERMINATED: 10/02/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 7 of 41

Plaintiff Alberto Dominguez, III by and through his parents and next friend, Alberto Dominguez II and Edelmira Dominguez
Plaintiff Tonita Knights by and through her mother and next friend Maggie Knights
Plaintiff Millie Redmond
Plaintiff Marcos Salas−Guevera by and through his mother and next friend Eleanor Gibson

Peter Nimkoff (See above for address) TERMINATED: 10/02/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juliette Ellen Lippman

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 8 of 41

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kenneth Sapp by and through his mother and next friend

represented by Ellen Marjorie Saideman (See above for address) TERMINATED: 02/28/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) TERMINATED: 02/28/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kellieann Wallen by and through her mother and next friend Karen Wallen

represented by Ellen Marjorie Saideman (See above for address) TERMINATED: 10/11/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) TERMINATED: 10/11/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Michael Wargin by and through his mother and next friend Marie Wargin

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 9 of 41

Willard Webster by and through his mother and next friend, Joan Webster

represented by Ellen Marjorie Saideman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Juliette Ellen Lippman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Nimkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Governor Jeb Bush in his official capacity as Governor
Defendant Secretary of the Department of Children and Families (formerly H.R.S.) in her official capacity as Secretary Defendant Robert S. Cohen in his official capacity as Administrator

represented by Stephanie A. Daniel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas B. York (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/13/1998 05/13/1998 05/13/1998 05/13/1998 05/13/1998 05/13/1998 05/13/1998

# Docket Text
1 COMPLAINT filed; Cat A−7 Magistrate Johnson FILING FEE $150.00 RECEIPT # 513648 (Former Deputy Clerk) (Entered: 05/14/1998)
2 SUMMONS(ES) issued for Lawton Chiles (Former Deputy Clerk) (Entered: 05/14/1998)
3 SUMMONS(ES) issued for Edward Feaver (Former Deputy Clerk) (Entered: 05/14/1998)
4 SUMMONS(ES) issued for Charles Kimber (Former Deputy Clerk) (Entered: 05/14/1998)
5 SUMMONS(ES) issued for John Brown (Former Deputy Clerk) (Entered: 05/14/1998)
6 SUMMONS(ES) issued for Doug Cook (Former Deputy Clerk) (Entered: 05/14/1998)
7 SUMMONS(ES) issued for Richard T. Lutz (Former Deputy Clerk) (Entered: 05/14/1998)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 10 of 41

05/13/1998 05/13/1998 06/18/1998
06/22/1998 07/01/1998 07/01/1998 07/06/1998 07/07/1998 07/17/1998 07/31/1998 07/31/1998
07/31/1998 08/04/1998 08/06/1998 08/06/1998 08/13/1998 08/17/1998
08/24/1998

Magistrate identification: Magistrate Judge Johnson (Former Deputy Clerk) (Entered: 05/14/1998)
8 NOTICE of Pendency of Other Action. by Wolf Prado−Steiman, M. C., Advocacy Center (Former Deputy Clerk) (Entered: 05/14/1998)
9 MOTION with memorandum in support by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz to consolidate case with 98−1066−CV−Moreno (Former Deputy Clerk) (Entered: 06/22/1998)
10 MOTION with memorandum in support by M. C. to proceed anonymously (gz, Deputy Clerk) (Entered: 06/29/1998)
11 ORDER transferring case to the calendar of Judge Wilkie D. Ferguson, Jr. ( signed by Judge Edward B. Davis on 6/1/98) CCAP (Former Deputy Clerk) (Entered: 07/07/1998)
CASE reassigned to Judge Wilkie D. Ferguson Jr. (Former Deputy Clerk) (Entered: 07/07/1998)
12 MOTION by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz to extend time to file a response to the complaint (Former Deputy Clerk) (Entered: 07/09/1998)
13 RESPONSE by Wolf Prado−Steiman, M. C., Advocacy Center to [9−1] motion to consolidate case with 98−1066−CV−Moreno (dp, Deputy Clerk) (Entered: 07/10/1998)
14 MOTION by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz to file motion to dismiss with memorandum of law in excess of 20 pages (dp, Deputy Clerk) (Entered: 07/20/1998)
15 RESPONSE by Advocacy Center, M. C., Wolf Prado−Steiman to [14−1] motion to file motion to dismiss with memorandum of law in excess of 20 pages (dp, Deputy Clerk) (Entered: 08/03/1998)
16 AMENDED COMPLAINT by Advocacy Center, M. C., Wolf Prado−Steiman , (Answer due 8/10/98 for Lawton Chiles, for Edward Feaver, for Charles Kimber, for Donna Allen, for John Brown, for Doug Cook, for Richard T. Lutz ) amending [1−1] complaint (dp, Deputy Clerk) (Entered: 08/03/1998)
18 NOTICE of filing documents in support of response memoranda in opposition to motion to dismiss by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 08/06/1998)
17 NOTICE of plaintiffs in regard to defendants' motion to consolidate and Wolf−Prado plaintiffs' response by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 08/04/1998)
19 MOTION with memorandum in support by Wolf Prado−Steiman to certify class action (lh, Deputy Clerk) (Entered: 08/10/1998)
20 NOTICE of filing documents in support of motion for class certification by Wolf Prado−Steiman (lh, Deputy Clerk) (Entered: 08/10/1998)
21 ORDER granting [14−1] motion to file motion to dismiss with memorandum of law in excess of 20 pages ( signed by Judge Wilkie D. Ferguson Jr. on 8/6/98) CCAP (dp, Deputy Clerk) (Entered: 08/13/1998)
22 ORDER granting [9−1] motion to consolidate case with 98−1066−CV−Moreno for purposes of discovery only. Parties shall continue to file pleadings in each case ( signed by Judge Wilkie D. Ferguson Jr. on 8/15/98) CCAP (dp, Deputy Clerk) (Entered: 08/20/1998)
23 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to serve response to motion for class certification (dp, Deputy Clerk) (Entered: 08/24/1998)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 11 of 41

08/24/1998 08/24/1998 08/25/1998 08/26/1998 08/31/1998 08/31/1998 08/31/1998 08/31/1998
09/02/1998 09/02/1998 09/02/1998 09/02/1998 09/02/1998 09/02/1998 09/09/1998 09/11/1998 09/11/1998 09/11/1998 09/11/1998

32 RESPONSE by Doug Cook, Charles Kimber, Edward Feaver, Lawton Chiles to plaintiffs' motion for preliminary injunction (dp, Deputy Clerk) (Entered: 09/02/1998)
33 NOTICE of filing declarations in opposition to motion for preliminary injunction by Doug Cook, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 09/02/1998)
29 ORDER granting [26−1] motion to accept attached motion to dismiss as timely filed ( signed by Judge Wilkie D. Ferguson Jr. on 8/25/98) CCAP (dp, Deputy Clerk) (Entered: 09/02/1998)
24 ORDER granting [23−1] motion to extend time to serve response to motion for class certification ( signed by Judge Wilkie D. Ferguson Jr. on 8/26/98) CCAP (dp, Deputy Clerk) (Entered: 08/27/1998)
25 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to dismiss 1st amended complaint (dp, Deputy Clerk) (Entered: 09/01/1998)
26 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to accept attached motion to dismiss as timely filed (dp, Deputy Clerk) (Entered: 09/01/1998)
27 RESPONSE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to [19−1] motion to certify class action (dp, Deputy Clerk) (Entered: 09/01/1998)
28 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to accept attached response in opposition to motion for class certification as timely filed (dp, Deputy Clerk) (Entered: 09/01/1998)
30 ORDER granting [26−1] motion to accept attached motion to dismiss as timely filed ( signed by Judge Wilkie D. Ferguson Jr. on 9/1/98) CCAP (dp, Deputy Clerk) (Entered: 09/02/1998)
31 ORDER granting [28−1] motion to accept attached response in opposition to motion for class certification as timely filed ( signed by Judge Wilkie D. Ferguson Jr. on 9/1/98) CCAP (dp, Deputy Clerk) (Entered: 09/02/1998)
34 REPLY by Advocacy Center, M. C., Wolf Prado−Steiman to response to [19−1] motion to certify class action (dp, Deputy Clerk) (Entered: 09/04/1998)
35 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman to exceed page limitations (dp, Deputy Clerk) (Entered: 09/04/1998)
36 REPLY by Advocacy Center, M. C., Wolf Prado−Steiman to response to motion for preliminary injunction (dp, Deputy Clerk) (Entered: 09/04/1998)
37 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman to exceed page limitation to reply to response to motion for preliminary injunction (dp, Deputy Clerk) (Entered: 09/04/1998)
38 NOTICE of filing unilateral filing of joint scheduling and status report by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 09/10/1998)
39 MOTION to intervene by United States (dp, Deputy Clerk) (Entered: 09/11/1998)
40 MOTION by United States for permission to file 29 page brief in support of motion to intervene (dp, Deputy Clerk) (Entered: 09/11/1998)
41 SUPPLEMENT by United States to: notice of service (dp, Deputy Clerk) (Entered: 09/11/1998)
42 RESPONSE by United States to [25−1] motion to dismiss 1st amended complaint (dp, Deputy Clerk) (Entered: 09/11/1998)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 12 of 41

09/11/1998 09/11/1998 09/17/1998 09/18/1998 10/01/1998 10/01/1998 10/02/1998 10/05/1998 10/20/1998
10/20/1998
10/27/1998 10/27/1998 10/27/1998 10/28/1998 10/28/1998 10/28/1998 10/29/1998

43 SCHEDULING REPORT AND MOTION by Doug Cook, Charles Kimber, Edward Feaver for order reqiring meeting of parties (dp, Deputy Clerk) (Entered: 09/11/1998)
44 RESPONSE by Advocacy Center, M. C., Wolf Prado−Steiman to [25−1] motion to dismiss 1st amended complaint (dp, Deputy Clerk) (Entered: 09/14/1998)
45 RESPONSE by Doug Cook, Charles Kimber, Edward Feaver to [39−1] motion to intervene by United States (dp, Deputy Clerk) (Entered: 09/18/1998)
46 Witness list by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 09/21/1998)
47 REPLY by Advocacy Center, M. C., Wolf Prado−Steiman to response to [19−1] motion to certify class action (dp, Deputy Clerk) (Entered: 10/05/1998)
48 MOTION with memorandum in support by Advocacy Center, M. C., Wolf Prado−Steiman to extend time to file reply in support of class certification motion (dp, Deputy Clerk) (Entered: 10/05/1998)
50 NOTICE of filing exhibit A in support of motion for class certification by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 10/06/1998)
49 Scheduling Report of Scheduling Meeting by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles, Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 10/05/1998)
51 ORDER REFERRING CASE (PRE−TRIAL) to Magistrate Judge Lurana S. Snow [48−1] motion to extend time to file reply in support of class certification motion, [43−1] motion for order reqiring meeting of parties, [40−1] motion for permission to file 29 page brief in support of motion to intervene, [39−1] motion to intervene by United States, [37−1] motion to exceed page limitation to reply to response to motion for preliminary injunction, [35−1] motion to exceed page limitations, [25−1] motion to dismiss 1st amended complaint, [19−1] motion to certify class action, [12−1] motion to extend time to file a response to the complaint, [10−1] motion to proceed anonymously ( Signed by Judge Wilkie D. Ferguson Jr. on 10/21/98) CCAP (dp, Deputy Clerk) (Entered: 10/23/1998)
52 SCHEDULING ORDER setting Calendar call set for 4:15 6/1/99 Pretrial Stipulation due on or before 4/26/99 Jury trial set for 6/7/99 Deadline for filing of all motions by 4/12/99 Discovery cutoff 3/29/99 ; Pretrial conference for 4:15 5/3/99 ; ( signed by Judge Wilkie D. Ferguson Jr. on 10/20/98) CCAP (dp, Deputy Clerk) (Entered: 10/23/1998)
Consolidated Member Case. Lead Case Number: 1:98cv673 (cp, Deputy Clerk) (Entered: 11/02/1998)
DOCKET ALL pleadings in ALL consolidated cases (cp, Deputy Clerk) (Entered: 11/02/1998)
53 ORDER consolidating cases 98−673−Civ−Ferguson, 98−1066−Civ−Ferguson and 98−6496−Civ−Ferguson for discovery purposes (signed by Judge Wilkie D. Ferguson Jr. on 10/26/98) CCAP (cp, Deputy Clerk) (Entered: 11/02/1998)
54 PRETRIAL ORDER filed (signed by Judge Wilkie D. Ferguson Jr. on 10/28/98) CCAP (cp, Deputy Clerk) (Entered: 11/02/1998)
55 NOTICE OF STATUS CONFERENCE set for 4:15 12/28/98; Status report due by 12/16/98 before Judge Wilkie D. Ferguson Jr. (Signed by Judge Wilkie D. Ferguson Jr. on 10/28/98) CCAP (cp, Deputy Clerk) (Entered: 11/02/1998)
56 REPLY by Richard T. Lutz, Doug Cook, John Brown to response to [19−1] motion to certify class action (cp, Deputy Clerk) (Entered: 11/02/1998)
57 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman for leave to file memo in excess of 20 pages, nunc pro tunc, in support of preliminary injunction (cp, Deputy Clerk) (Entered: 11/03/1998)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 13 of 41

10/29/1998 10/29/1998 11/03/1998 11/09/1998 11/11/1998 11/11/1998 11/12/1998 11/19/1998 11/19/1998 11/23/1998 11/23/1998 11/23/1998 12/04/1998 12/10/1998 12/10/1998
12/17/1998 12/18/1998

58 MOTION with memorandum in support by Advocacy Center, M. C., Wolf Prado−Steiman for preliminary injunction (cp, Deputy Clerk) (Entered: 11/03/1998)
59 NOTICE of filing exhibits 1−14 in support of motion for preliminary injunction by Advocacy Center, M. C., Wolf Prado−Steiman (cp, Deputy Clerk) (Entered: 11/03/1998)
60 ORDER granting [48−1] motion to extend time to file reply in support of class certification motion ( signed by Ch. Magistrate Judge Lurana S. Snow on 11/3/98) CCAP (dp, Deputy Clerk) (Entered: 11/05/1998)
61 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to respond to motion for preliminary injunction (dp, Deputy Clerk) (Entered: 11/09/1998)
62 ORDER granting [57−1] motion for leave to file memo in excess of 20 pages, nunc pro tunc, in support of preliminary injunction ( signed by Judge Wilkie D. Ferguson Jr. on 11/10/98) CCAP (dp, Deputy Clerk) (Entered: 11/12/1998)
63 ORDER granting [61−1] motion to extend time to respond to motion for preliminary injunction ( signed by Judge Wilkie D. Ferguson Jr. on 11/10/98) CCAP (dp, Deputy Clerk) (Entered: 11/12/1998)
64 RESPONSE by Advocacy Center, M. C., Wolf Prado−Steiman to [61−1] motion to extend time to respond to motion for preliminary injunction (dp, Deputy Clerk) (Entered: 11/16/1998)
68 ORDER set status conference for 3:00 12/18/98 before Judge Wilkie D. Ferguson Jr. ( signed by Judge Wilkie D. Ferguson Jr. on 11/19/98) CCAP (dp, Deputy Clerk) (Entered: 11/24/1998)
69 ORDER consolidating cases for purposes of discovery only ( signed by Judge Wilkie D. Ferguson Jr. on 11/19/98) CCAP (dp, Deputy Clerk) (Entered: 11/24/1998)
65 SUPPLEMENTAL MEMORANDUM by Advocacy Center, M. C., Wolf Prado−Steiman to: [58−1] motion for preliminary injunction (dp, Deputy Clerk) (Entered: 11/24/1998)
66 NOTICE of filing exhibits in support of motion for preliminary injunction by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 11/24/1998)
67 NOTICE of filing exhibits in support of motion for preliminary injunction by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 11/24/1998)
72 ORDER reset status conference for 3:00 1/22/99 before Judge Wilkie D. Ferguson Jr. ( signed by Judge Wilkie D. Ferguson Jr. on 12/9/98) CCAP (dp, Deputy Clerk) (Entered: 12/14/1998)
70 RESPONSE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to [58−1] motion for preliminary injunction (dp, Deputy Clerk) (Entered: 12/11/1998)
71 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to strike certain declarations and/or portions thereof filed in support of motion for preliminary injunction (dp, Deputy Clerk) (Entered: 12/11/1998)
73 NOTICE of filing declarations in opposition to motion for preliminary injunction by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 12/18/1998)
74 MOTION with memorandum in support by Advocacy Center, M. C., Wolf Prado−Steiman to extend time to reply in further support of preliminary injunction motion (dp, Deputy Clerk) (Entered: 12/21/1998)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 14 of 41

12/22/1998 12/22/1998 12/22/1998 12/22/1998 12/22/1998 12/22/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/24/1998 12/28/1998 01/06/1999
01/07/1999
01/07/1999 01/07/1999
01/11/1999 01/11/1999 01/13/1999
01/13/1999
01/19/1999
01/19/1999

75 NOTICE to take deposition of David Raymond 2/8/99 at 10:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
76 NOTICE to take deposition of Charles Kimber etal 2/11/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
77 NOTICE to take deposition of Clark Brownell 2/12/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
78 NOTICE to take deposition of Cary Dashiff etal 2/8/99 at 2:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
79 NOTICE to take deposition of K. Joseph Krieger 2/10/99 at 4:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
80 NOTICE to take deposition of James Freyvogel 2/10/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/23/1998)
81 AMENDED NOTICE to take deposition of James Freyvogel 2/10/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
82 AMENDED NOTICE to take deposition of David Raymond 2/8/99 at 10:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
83 AMENDED NOTICE to take deposition of Clark Brownell 2/12/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
84 AMENDED NOTICE to take deposition of Cary Dashiff etal 2/8/99 at 2:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
85 AMENDED NOTICE to take deposition of Charles Kimber 2/11/99 at 11:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
86 AMENDED NOTICE to take deposition of Joseph Krieger 2/10/99 at 4:00 (dp, Deputy Clerk) (Entered: 12/28/1998)
87 NOTICE of filing original declaration in opposition to motion for preliminary injunction by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 01/07/1999)
88 RESPONSE by Advocacy Center, M. C., Wolf Prado−Steiman to [71−1] motion to strike certain declarations and/or portions thereof filed in support of motion for preliminary injunction (dp, Deputy Clerk) (Entered: 01/11/1999)
89 REPLY by Advocacy Center, M. C., Wolf Prado−Steiman to response to [58−1] motion for preliminary injunction (dp, Deputy Clerk) (Entered: 01/11/1999)
90 NOTICE of filing exhibits in support of motion for preliminary injunction by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 01/11/1999)
91 NOTICE of filing declaration of Rebecca Cox by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 01/13/1999)
92 Declaration of Rebecca Cox regarding Aimee Cartaya : by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 01/13/1999)
93 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Laura Prado etal 1/25/99 at 1:00 (dp, Deputy Clerk) (Entered: 01/14/1999)
94 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Jennifer Bastidas etal 1/25/99 at 9:00 (dp, Deputy Clerk) (Entered: 01/14/1999)
95 MOTION with memorandum in support by Advocacy Center, M. C., Wolf Prado−Steiman to amend [1−1] complaint (dp, Deputy Clerk) (Entered: 01/22/1999)
96 MOTION by Advocacy Center for protective order and authority therefor (dp, Deputy Clerk) (Entered: 01/22/1999)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 15 of 41

01/21/1999 01/22/1999 01/25/1999 01/28/1999 01/28/1999 01/28/1999 01/28/1999 01/28/1999 02/10/1999 02/16/1999
02/17/1999 02/17/1999 02/18/1999 02/24/1999 02/25/1999 02/26/1999
03/01/1999 03/03/1999

97 MOTION by Advocacy Center to quash subpoenas duces tecum , and for protective order (dp, Deputy Clerk) (Entered: 01/25/1999)
98 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of David Steinman 1/24/99 at 2:00 (dp, Deputy Clerk) (Entered: 01/25/1999)
99 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Opal Millwood etal 1/25/99 at 10:00 (dp, Deputy Clerk) (Entered: 01/26/1999)
100 RESPONSE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to plaintiff's motion for protective order (dp, Deputy Clerk) (Entered: 01/29/1999)
101 JOINT STATUS REPORT by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles, Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 01/29/1999)
102 ORDER Motion hearing before Judge Wilkie D. Ferguson Jr. set for 10:00 2/19/99 for [19−1] motion to certify class action ( signed by Judge Wilkie D. Ferguson Jr. on 1/27/99) CCAP (dp, Deputy Clerk) (Entered: 02/01/1999)
103 ORDER granting [10−1] motion to proceed anonymously ( signed by Judge Wilkie D. Ferguson Jr. on 1/27/99) CCAP (dp, Deputy Clerk) (Entered: 02/01/1999)
104 ORDER granting [12−1] motion to extend time to file a response to the complaint ( signed by Judge Wilkie D. Ferguson Jr. on 1/27/99) CCAP (dp, Deputy Clerk) (Entered: 02/01/1999)
105 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to respond to motion to amend (dp, Deputy Clerk) (Entered: 02/11/1999)
107 AMENDED Certificate of conferring with opposing counsel regarding motion for enlargement of time to serve their response in opposition to motion to amend complaint by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (ss, Deputy Clerk) (Entered: 02/19/1999)
106 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to disclose expert witnesses (dp, Deputy Clerk) (Entered: 02/18/1999)
108 ORDER to reconsider and deconsolidate this matter for discovery purposes ( signed by Judge Wilkie D. Ferguson Jr. on 2/16/99) CCAP (dp, Deputy Clerk) (Entered: 02/22/1999)
109 RESPONSE by Charles Kimber etal to [95−1] motion to amend [1−1] complaint (dp, Deputy Clerk) (Entered: 02/22/1999)
110 NOTICE of supplemental authority by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 02/25/1999)
111 NOTICE of unavailability of counsel from 3/29/99 to 4/2/99 by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 02/26/1999)
112 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles for clarification of , or alternative to extend time , and to continue pretrial conference (dp, Deputy Clerk) (Entered: 03/01/1999)
113 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Michael Brady 3/5/99 at 1:00 (dp, Deputy Clerk) (Entered: 03/01/1999)
114 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to disclose expert witnesses (dp, Deputy Clerk) (Entered: 03/03/1999)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 16 of 41

03/03/1999 03/03/1999 03/10/1999 03/17/1999 03/18/1999 03/22/1999 03/30/1999 03/30/1999
03/31/1999 03/31/1999 03/31/1999 03/31/1999 04/01/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999 04/05/1999

115 Witness list by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 03/04/1999)
116 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Rebecca Cox 3/2/99 at 10:30 (dp, Deputy Clerk) (Entered: 03/04/1999)
117 ORDER granting [19−1] motion to certify class action ( signed by Judge Wilkie D. Ferguson Jr. on 3/10/99) CCAP (dp, Deputy Clerk) (Entered: 03/11/1999)
120 NOTICE of filing proposed order by Hon. Jeb Bush, Kathleen Kearney, Robert Cohen, Ruben King−Shaw and Gary Crayton (dp, Deputy Clerk) (Entered: 03/26/1999)
118 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to compel responses to request for production of documents (dp, Deputy Clerk) (Entered: 03/19/1999)
119 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to file objections to order certifying class (dp, Deputy Clerk) (Entered: 03/23/1999)
121 ORDER Certifying Class Action; Peter Nimkoff, Ellen Saideman and Juliette Lippman is Appointed Counsel for the class (signed by Judge Wilkie D. Ferguson Jr. on 3/29/99) CCAP (ss, Deputy Clerk) (Entered: 04/01/1999)
122 ORDER Granting [119−1] motion to extend time to file objections to order certifying class; defendants have until 3/24/99 to file objections (signed by Judge Wilkie D. Ferguson Jr. on 3/26/99 nunc pro tunc 3/24/99) CCAP (ss, Deputy Clerk) (Entered: 04/01/1999)
123 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles for leave to file response to proposed class certification out of time (dp, Deputy Clerk) (Entered: 04/02/1999)
124 RESPONSE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles in opposition to [117−1] order (dp, Deputy Clerk) (Entered: 04/02/1999)
125 MOTION by Advocacy Center, Wolf Prado−Steiman to extend time to respond to motion to compel (dp, Deputy Clerk) (Entered: 04/02/1999)
126 ORDER dismissing [96−1] motion for protective order and authority therefor ( signed by Judge Wilkie D. Ferguson Jr. on 3/31/99) CCAP (dp, Deputy Clerk) (Entered: 04/02/1999)
127 Expert Witness list by Jeb Bush, Kathleen Kearney, Donna Allen, Robert Cohen, Reuben King−Shaw, Richard T. Lutz, Charles Kimber (dp, Deputy Clerk) (Entered: 04/02/1999)
128 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Darryl Austin 4/14/99 at 10:30 (dp, Deputy Clerk) (Entered: 04/06/1999)
129 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Janice Shelton 4/14/99 at 2:00 (dp, Deputy Clerk) (Entered: 04/06/1999)
130 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Mary Daniels 4/15/99 at 9:00 (dp, Deputy Clerk) (Entered: 04/06/1999)
131 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Vicki Adawi 4/21/99 at 9:00 (dp, Deputy Clerk) (Entered: 04/06/1999)
132 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Florentine Descarte 4/22/99 at 11:30 (dp, Deputy Clerk) (Entered: 04/06/1999)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 17 of 41

04/12/1999 04/12/1999 04/12/1999 04/19/1999 04/21/1999 04/22/1999
04/22/1999 04/22/1999 04/22/1999 04/23/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/03/1999 05/05/1999 05/05/1999

133 AMENDED NOTICE by Lawton Chiles to take deposition of Mary Daniels 4/15/99 at 1:30 (dp, Deputy Clerk) (Entered: 04/12/1999)
134 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Jose Wenger 4/22/99 at 8:00 (dp, Deputy Clerk) (Entered: 04/12/1999)
135 SECOND AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Carol Johnson 4/15/99 at 1:30 (dp, Deputy Clerk) (Entered: 04/12/1999)
136 SCHEDULING ORDER setting Jury trial set for 8/30/99 ( signed by Judge Wilkie D. Ferguson Jr. on 4/19/99) CCAP (dp, Deputy Clerk) (Entered: 04/20/1999)
137 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to respond to request for production (dp, Deputy Clerk) (Entered: 04/22/1999)
138 AMENDED SCHEDULING ORDER setting Deadline for filing of all motions by 7/5/99 Jury trial set for 8/30/99 Pretrial Stipulation due on or before 7/19/99 Calendar call set for 4:15 8/30/99 Discovery cutoff 6/21/99 ; Pretrial conference for 4:15 7/26/99 ; ( signed by Judge Wilkie D. Ferguson Jr. on 4/22/99) CCAP (dp, Deputy Clerk) (Entered: 04/23/1999)
139 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Marlon Christie 4/22/99 at 1:30 (dp, Deputy Clerk) (Entered: 04/23/1999)
140 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Alena Dominguez 4/21/99 at 9:00 (dp, Deputy Clerk) (Entered: 04/23/1999)
141 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Dr. Judith Sweetbaum 4/22/99 at 4:30 (dp, Deputy Clerk) (Entered: 04/23/1999)
142 MEMORANDUM by Advocacy Center, M. C., Wolf Prado−Steiman in support of objections to defendants' demands for documents (dp, Deputy Clerk) (Entered: 04/23/1999)
143 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Thomas Buddington 5/12/99 at 9:00 (dp, Deputy Clerk) (Entered: 05/05/1999)
144 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Deborah Kahn 5/10/99 at 9:00 (dp, Deputy Clerk) (Entered: 05/05/1999)
145 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Jose Fordada 5/13/99 at 1:30 (dp, Deputy Clerk) (Entered: 05/05/1999)
146 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Delauna Boone 5/13/99 at 9:00 (dp, Deputy Clerk) (Entered: 05/05/1999)
147 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Janice Hays 5/11/99 at 4:00 (dp, Deputy Clerk) (Entered: 05/05/1999)
148 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to strike [142−1] support memorandum (dp, Deputy Clerk) (Entered: 05/07/1999)
149 RESPONSE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to Discovery Re: requests for production (dp, Deputy Clerk) (Entered: 05/07/1999)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 18 of 41

05/11/1999 05/12/1999 05/24/1999
05/25/1999
05/25/1999
05/25/1999 06/04/1999
06/09/1999 06/09/1999 06/09/1999 06/09/1999 06/11/1999 06/11/1999 06/11/1999 06/11/1999

150 ORDER continuing pre−trial conference , reset pretrial conference for 4:15 7/23/99 before Judge Wilkie D. Ferguson Jr. ( signed by Judge Wilkie D. Ferguson Jr. on 5/10/99) CCAP (dp, Deputy Clerk) (Entered: 05/12/1999)
151 NOTICE OF INTERLOCUTORY APPEAL by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles of [121−1] order . EOD Date: 4/1/99; Filing Fee: $ 105.00; Receipt #: 516323; Copies to USCA and Counsel of Record. (Former Deputy Clerk) (Entered: 05/24/1999)
Certified copies of Notice of Appeal, Docket, and Order under appeal to USCA: [151−1] appeal by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz as to Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (Former Deputy Clerk) (Entered: 05/24/1999)
152 TRANSCRIPT INFORMATION FORM by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles re: [151−1] appeal by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz received. (Forwarded to Court Reporter Coordinater) (Former Deputy Clerk) (Entered: 05/25/1999)
Appeal Information Sheet re: as to Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles [151−1] appeal by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz . No transcript requested. (Former Deputy Clerk) (Entered: 05/25/1999)
153 NOTICE of filing transcript of hearing in 92−589−CV by Jeb Bush, Kathleen Kearney, Robert Coehn, Ruben King−Shaw and Gary Crayton (dp, Deputy Clerk) (Entered: 05/25/1999)
NOTICE of Receipt of Transmittal Letter from USCA as to Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles Re: [151−1] appeal by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz USCA NUMBER: 99−11034−E (Former Deputy Clerk) (Entered: 07/07/1999)
154 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Deborah Kahn 6/21/99 at 10:00 (dp, Deputy Clerk) (Entered: 06/10/1999)
155 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Karen Wallen 6/17/99 at 3:00 (dp, Deputy Clerk) (Entered: 06/10/1999)
156 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Delauna Boone 6/17/99 at 9:00 (dp, Deputy Clerk) (Entered: 06/10/1999)
157 NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Thomas Buddington 6/18/99 at 9:00 (dp, Deputy Clerk) (Entered: 06/10/1999)
158 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to complete discovery (dp, Deputy Clerk) (Entered: 06/15/1999)
159 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Deborah Kahn 6/30/99 at 9:30 (dp, Deputy Clerk) (Entered: 06/15/1999)
160 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Delauna Boone 7/1/99 at 9:00 (dp, Deputy Clerk) (Entered: 06/15/1999)
161 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Dr. Jose Fordada 7/1/99 at 12:00 (dp, Deputy Clerk) (Entered: 06/15/1999)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 19 of 41

06/11/1999 06/11/1999 06/18/1999 06/22/1999 07/07/1999 07/12/1999
07/13/1999
07/14/1999
07/16/1999 07/19/1999 07/22/1999 07/23/1999 07/23/1999

162 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Karen Wallen 7/1/99 at 3:00 (dp, Deputy Clerk) (Entered: 06/15/1999)
163 AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Thomas Buddington 7/2/99 at 9:00 (dp, Deputy Clerk) (Entered: 06/15/1999)
164 SECOND AMENDED NOTICE by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to take deposition of Thomas Buddington 7/2/99 at 9:00 (dp, Deputy Clerk) (Entered: 06/21/1999)
165 MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to respond to second set of interrogatories (dp, Deputy Clerk) (Entered: 06/23/1999)
166 ORDER granting [165−1] motion to extend time to respond to second set of interrogatories ( Signed by Judge Wilkie D. Ferguson Jr. on 7/6/99) CCAP [EOD Date: 7/7/99] (dp, Deputy Clerk) (Entered: 07/07/1999)
167 SECOND MOTION by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles to extend time to respond to second set of interrogatories to Kearney and King−Shaw (dp, Deputy Clerk) (Entered: 07/14/1999)
168 ORDER granting [167−1] motion to extend time to respond to second set of interrogatories to Kearney and King−Shaw ( Signed by Judge Wilkie D. Ferguson Jr. on 7/13/99) CCAP [EOD Date: 7/15/99] (dp, Deputy Clerk) (Entered: 07/15/1999)
169 Certification re conferring with counsel regarding second motion for enlargment of time to serve reponses or objections to second set of interrogatories: by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 07/16/1999)
170 Certification re conferring with opposing counsel regarding status conference: by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 07/20/1999)
171 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman for status conference and authority therefor (dp, Deputy Clerk) (Entered: 07/20/1999)
173 ORDER granting [39−1] motion to intervene by United States ( Signed by Judge Wilkie D. Ferguson Jr. on 7/22/99) CCAP [EOD Date: 7/26/99] (dp, Deputy Clerk) (Entered: 07/26/1999)
172 Amended Expert Witness list by Richard T. Lutz, Doug Cook, John Brown, Donna Allen, Charles Kimber, Edward Feaver, Lawton Chiles (dp, Deputy Clerk) (Entered: 07/26/1999)
174 (ORDER VACATED BY DE 177) ORDER denying [158−1] motion to extend time to complete discovery, denying [148−1] motion to strike [142−1] support memorandum, denying [137−1] motion to extend time to respond to request for production, denying [125−1] motion to extend time to respond to motion to compel, denying [123−1] motion for leave to file response to proposed class certification out of time, denying [118−1] motion to compel responses to request for production of documents, denying [114−1] motion to extend time to disclose expert witnesses, denying [112−1] motion for clarification of, denying [112−2] motion to extend time, denying [112−3] motion to continue pretrial conference, denying [106−1] motion to extend time to disclose expert witnesses, denying [105−1] motion to extend time to respond to motion to amend, denying [97−1] motion to quash subpoenas duces tecum, denying [97−2] motion for protective order, denying [95−1] motion to amend [1−1] complaint, denying [74−1] motion to extend time to reply in further support of preliminary injunction motion, denying [71−1] motion to strike certain declarations and/or portions thereof filed in support of motion for preliminary injunction, denying [58−1] motion for preliminary injunction, denying [43−1] motion for order reqiring meeting of parties, denying [40−1] motion for permission to file 29 page brief in support of motion to

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 20 of 41

07/23/1999
07/23/1999 07/23/1999 07/23/1999 07/27/1999 07/27/1999 07/27/1999
08/10/1999 08/11/1999 08/13/1999 08/18/1999 08/18/1999 09/03/1999 09/22/1999

intervene, denying [37−1] motion to exceed page limitation to reply to response to motion for preliminary injunction, denying [35−1] motion to exceed page limitations, denying [25−1] motion to dismiss 1st amended complaint denying [39−1] motion to intervene by United States ( Signed by Judge Wilkie D. Ferguson Jr. on 7/23/99) CCAP [EOD Date: 7/26/99] (dp, Deputy Clerk) Modified on 07/29/1999 (Entered: 07/26/1999)
175 SCHEDULING ORDER setting Deadline for filing of all motions by 10/30/99 Jury trial set for 2/14/00 Pretrial Stipulation due on or before 1/3/00 Calendar call set for 4:15 2/7/00 Discovery cutoff 9/30/99 ; Pretrial conference for 4:15 1/10/00 ; ( Signed by Judge Wilkie D. Ferguson Jr. on 7/23/99) CCAP [EOD Date: 7/26/99] CCAP (dp, Deputy Clerk) (Entered: 07/26/1999)
176 ORDER granting [171−1] motion for status conference set status conference for 4:15 7/23/99 before Judge Wilkie D. Ferguson Jr. ( Signed by Judge Wilkie D. Ferguson Jr. on 7/22/99) CCAP [EOD Date: 7/26/99] (dp, Deputy Clerk) (Entered: 07/26/1999)
179 Minutes of pretrial conference held before Judge Wilkie D. Ferguson Jr. on 7/23/99; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk) (Entered: 07/29/1999)
Pre−trial conference held (dp, Deputy Clerk) (Entered: 07/29/1999)
177 ORDER vacating [174−1] order ( Signed by Judge Wilkie D. Ferguson Jr. on 7/23/99) CCAP [EOD Date: 7/29/99] (dp, Deputy Clerk) (Entered: 07/29/1999)
178 ORDER granting [95−1] motion to amend [1−1] complaint ( Signed by Judge Wilkie D. Ferguson Jr. on 7/27/99) CCAP [EOD Date: 7/29/99] (dp, Deputy Clerk) (Entered: 07/29/1999)
180 SECOND AMENDED COMPLAINT by Advocacy Center, Wolf Prado−Steiman , (Answer due 8/6/99 for Charles Kimber, for Donna Allen, for Doug Cook, for Richard T. Lutz ) amending [16−1] amended complaint adding Jeb Bush, Kathleen A. Kearney, Robert S. Cohen, Marlon Christie, Lucy Adawi, Jennifer Bastidas, Daniel Lavin, Daniel Shell, Darryl Austin, Shauna Boone, Aimee Cartaya, Jennifer Daniels, Alberto Dominguez III, Tonita Knights, Millie Redmond, Marcos Salas−Guevera, Kenneth Sapp, Kellieann Wallen, Michael Wargin, Willard Webster (dp, Deputy Clerk) (Entered: 08/17/1999)
Certificate of readiness transmitted to USCA Re: [151−1] appeal by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz USCA NUMBER: 99−11034−EE (Former Deputy Clerk) (Entered: 08/10/1999)
181 MOTION by All Defendants to extend time to respond to second amended complaint (dp, Deputy Clerk) (Entered: 08/17/1999)
Transmitted record on appeal to U.S. Court of Appeals: [151−1] appeal by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz (Former Deputy Clerk) (Entered: 08/13/1999)
182 MOTION by Lawton Chiles, Kathleen A. Kearney, Donna Allen, Robert S. Cohen, Ruben King−Shaw, Gary Crayton and Carl Littlefield to dismiss second amended complaint (ss, Deputy Clerk) (Entered: 08/19/1999)
183 MEMORANDUM by Lawton Chiles, Kathleen A. Kearney, Donna Allen, Robert S. Cohen, Ruben King−Shaw, Gary Crayton and Carl Littlefield in support of [182−1] motion to dismiss second amended complaint (ss, Deputy Clerk) (Entered: 08/19/1999)
184 MOTION with memorandum in support by All Plaintiffs to extend time to respond to motion to dismiss second amended complaint (dp, Deputy Clerk) (Entered: 09/07/1999)
202 AMENDED CERTIFICATE OF SERVICE as to motion to dismiss second amended complaint and motion to dismiss amended complaint by All Defendants (dp, Deputy Clerk) (Entered: 01/19/2000)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 21 of 41

09/23/1999 09/23/1999 09/23/1999 09/23/1999 09/23/1999 10/01/1999 10/07/1999 10/13/1999 10/14/1999 10/14/1999 10/15/1999 10/15/1999 10/18/1999 10/28/1999
10/28/1999 11/08/1999
11/08/1999 11/19/1999
11/19/1999
01/10/2000 01/11/2000
01/31/2000

185 NOTICE by All Defendants to take deposition of Barbara Kornblau 10/29/99 at 10:00 (dp, Deputy Clerk) (Entered: 09/24/1999)
186 NOTICE by All Defendants to take deposition of Sue Gant 10/14/99 at 11:00 (dp, Deputy Clerk) (Entered: 09/24/1999)
187 NOTICE by All Defendants to take deposition of Dottie Rowe 10/20/99 at 9:30 (dp, Deputy Clerk) (Entered: 09/24/1999)
188 NOTICE by All Defendants to take deposition of Dale DiLeo 10/19/99 at 11:00 (dp, Deputy Clerk) (Entered: 09/24/1999)
189 RESPONSE by All Plaintiffs to [182−1] motion to dismiss second amended complaint (dp, Deputy Clerk) (Entered: 09/27/1999)
190 MOTION by All Defendants to extend time to complete discovery of expert witnesses , and to compel discovery (dp, Deputy Clerk) (Entered: 10/04/1999)
191 MOTION by All Defendants to extend time to respond to motion to dismiss second amended complaint (dp, Deputy Clerk) (Entered: 10/08/1999)
192 REPLY by All Defendants to response to [182−1] motion to dismiss second amended complaint (dp, Deputy Clerk) (Entered: 10/18/1999)
193 AMENDED NOTICE by All Defendants to take deposition of Wade Hitzing 11/11/99 at 10:00 (dp, Deputy Clerk) (Entered: 10/18/1999)
194 AMENDED NOTICE by All Defendants to take deposition of Sue Gant 10/14/99 at 9:00 (dp, Deputy Clerk) (Entered: 10/18/1999)
195 RESPONSE by United States to [182−1] motion to dismiss second amended complaint (dp, Deputy Clerk) (Entered: 10/18/1999)
ACKNOWLEDGMENT of receipt by U.S.C.A. of: COR on 8/17/99 U.S.C.A. # 99−11034−EE (Former Deputy Clerk) (Entered: 10/19/1999)
196 CERTIFICATE OF SERVICE by United States (dp, Deputy Clerk) (Entered: 10/18/1999)
197 MOTION with memorandum in support by Advocacy Center, M. C., Wolf Prado−Steiman to extend time for expert discovery &to reschedule trial (dp, Deputy Clerk) (Entered: 11/04/1999)
197 RESPONSE by Advocacy Center, M. C., Wolf Prado−Steiman to [190−2] motion to compel discovery (dp, Deputy Clerk) (Entered: 11/04/1999)
198 RESPONSE by All Defendants to [197−1] motion to extend time for expert discovery &to reschedule trial and reply memorandum to motion to compel (dp, Deputy Clerk) (Entered: 11/10/1999)
198 REPLY by All Defendants to response to [190−2] motion to compel discovery (dp, Deputy Clerk) (Entered: 11/10/1999)
199 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman to extend time to file reply memorandum in support of motion for extension of time for expert discovery (dp, Deputy Clerk) (Entered: 11/23/1999)
200 REPLY by Advocacy Center, M. C., Wolf Prado−Steiman to response to [197−1] motion to extend time for expert discovery &to reschedule trial (dp, Deputy Clerk) (Entered: 11/23/1999)
Pre−trial conference held before Judge Wilkie D. Ferguson Jr. (dp, Deputy Clerk) (Entered: 01/13/2000)
201 Minutes of pretrial conference held before Judge Wilkie D. Ferguson Jr. on 1/10/00; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk) (Entered: 01/13/2000)
203 NOTICE by All Defendants to take deposition of Dr. Diane Edwards 2/18/00 at 9:00 (dp, Deputy Clerk) (Entered: 02/01/2000)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 22 of 41

01/31/2000 02/18/2000 02/18/2000 03/01/2000 03/01/2000 03/09/2000 03/13/2000 03/28/2000 03/28/2000 03/28/2000
04/03/2000 04/03/2000 04/03/2000
04/11/2000 04/17/2000 04/24/2000 05/01/2000 05/01/2000 05/01/2000 05/02/2000

204 SCHEDULING ORDER setting Calendar call set for 4:15 6/5/00 Pretrial conference for 4:15 5/1/00 ; ( Signed by Judge Wilkie D. Ferguson Jr. on 1/31/00) CCAP [EOD Date: 2/3/00] CCAP (dp, Deputy Clerk) (Entered: 02/03/2000)
205 MOTION by All Defendants for entry upon land for inspection and other purposes (dp, Deputy Clerk) (Entered: 02/22/2000)
206 MOTION by All Defendants for order permitting defendants' expert witnesses to examine the named plaintiffs (dp, Deputy Clerk) (Entered: 02/22/2000)
207 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman for oral aguments on [206−1] motion for order permitting defendants' expert witnesses to examine the named plaintiffs (dp, Deputy Clerk) (Entered: 03/02/2000)
208 RESPONSE by Advocacy Center, M. C., Wolf Prado−Steiman to [206−1] motion for order permitting defendants' expert witnesses to examine the named plaintiffs (dp, Deputy Clerk) (Entered: 03/02/2000)
209 NOTICE by All Defendants to take deposition of Dottie Rowe 3/29/00 at 9:00 (dp, Deputy Clerk) (Entered: 03/10/2000)
210 REPLY by Jeb Bush, Kathleen A. Kearney, Robert S. Cohen to response to [206−1] motion for order permitting defendants' expert witnesses to examine the named plaintiffs (dp, Deputy Clerk) (Entered: 03/14/2000)
211 MOTION by All Defendants to compel discovery (dp, Deputy Clerk) (Entered: 03/28/2000)
212 MOTION by All Defendants for expedited consideration and hearing on [211−1] motion to compel discovery , and for order permitting defendants' expert witnesses to examine named plaintiffs (dp, Deputy Clerk) (Entered: 03/28/2000)
213 RESPONSE by All Plaintiffs to [212−1] motion for expedited consideration and hearing on [211−1] motion to compel discovery, [212−2] motion for order permitting defendants' expert witnesses to examine named plaintiffs (dp, Deputy Clerk) (Entered: 03/28/2000)
214 SECOND AMENDMENT by All Defendants to: [172−1] witness list (dp, Deputy Clerk) (Entered: 04/04/2000)
215 NOTICE of filing schedule of proposed examinations in support of motion for order permitting expert witnesses to examine plaintiff and motion to compel by All Defendants (dp, Deputy Clerk) (Entered: 04/04/2000)
216 REPLY by All Defendants to response to [212−1] motion for expedited consideration and hearing on [211−1] motion to compel discovery, [212−2] motion for order permitting defendants' expert witnesses to examine named plaintiffs (dp, Deputy Clerk) (Entered: 04/04/2000)
217 ORDER granting [181−1] motion to extend time to respond to second amended complaint ( Signed by Judge Wilkie D. Ferguson Jr. on 4/11/00 nunc pro tunc) CCAP [EOD Date: 4/12/00] (dp, Deputy Clerk) (Entered: 04/12/2000)
218 RESPONSE by Advocacy Center, M. C., Wolf Prado−Steiman to [211−1] motion to compel discovery (dp, Deputy Clerk) (Entered: 04/18/2000)
219 NOTICE by All Defendants to take deposition by videotape of Susan Dickerson 5/18/00 at 9:00 (dp, Deputy Clerk) (Entered: 04/25/2000)
220 Joint Pre−trial Statement by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 05/01/2000)
221 NOTICE of filing copy of motion to supplement record by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 05/02/2000)
Pre−trial conference held before Judge Wilkie D. Ferguson Jr. (dp, Deputy Clerk) (Entered: 05/03/2000)
222 Minutes of pre−trial conference held before Judge Wilkie D. Ferguson Jr. on 5/1/00; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 23 of 41

05/11/2000 05/11/2000 05/17/2000 05/23/2000
06/02/2000 06/02/2000
06/07/2000 06/09/2000 06/09/2000 06/09/2000 06/09/2000 06/09/2000 06/15/2000 06/19/2000 06/19/2000 06/26/2000
06/26/2000 06/26/2000 06/26/2000 06/26/2000 06/26/2000 06/26/2000

(Entered: 05/03/2000)
223 NOTICE of Unavailability from 8/29−11/29 by Jeb Bush, Sec. Dept. Children (dp, Deputy Clerk) (Entered: 05/12/2000)
224 NOTICE of Unavailability from 6/2−6/9 by Jeb Bush, Sec. Dept. Children (dp, Deputy Clerk) (Entered: 05/12/2000)
225 NOTICE OF FILING SUPPLEMENTAL AUTHORITY in support of motion to dismiss by All Defendants (dp, Deputy Clerk) (Entered: 05/18/2000)
226 SCHEDULING ORDER setting Jury trial set for 9:30 7/10/00 ( Signed by Judge Wilkie D. Ferguson Jr. on 5/22/00) CCAP [EOD Date: 5/24/00] CCAP (dp, Deputy Clerk) (Entered: 05/24/2000)
227 NOTICE by All Defendants to take deposition of Advocacy Center 6/16/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/05/2000)
228 MOTION by All Defendants to extend time to respond and/or object to fourth set of interrogatories and third set of production (dp, Deputy Clerk) (Entered: 06/05/2000)
229 MOTION by Advocacy Center for status conference (dp, Deputy Clerk) (Entered: 06/08/2000)
230 NOTICE of Unavailability on 6/23 by All Defendants (dp, Deputy Clerk) (Entered: 06/12/2000)
231 MOTION by All Defendants to compel discovery from Prado−Steinman (dp, Deputy Clerk) (Entered: 06/12/2000)
232 MOTION by All Defendants to compel discovery from Willard Webstr (dp, Deputy Clerk) (Entered: 06/12/2000)
233 MOTION by All Defendants to compel discovery from Jennifer Daniels (dp, Deputy Clerk) (Entered: 06/12/2000)
234 MOTION by All Defendants to compel discovery from Kellieann Wallen (dp, Deputy Clerk) (Entered: 06/12/2000)
235 NOTICE by All Defendants to take deposition of Eric Zaharia 6/30/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/16/2000)
236 MOTION by All Defendants to stay trial (lh, Deputy Clerk) (Entered: 06/19/2000)
237 Witness list by All Defendants (lh, Deputy Clerk) (Entered: 06/19/2000)
238 ORDER SETTING STATUS CONFERENCE Status conference set for 2:30 6/30/00 before Judge Wilkie D. Ferguson Jr. ( Signed by Judge Wilkie D. Ferguson Jr. on 6/26/00) CCAP [EOD Date: 6/27/00] CCAP (dp, Deputy Clerk) (Entered: 06/27/2000)
239 NOTICE by All Defendants to take deposition of Ana Lodeiro etal 6/30/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/27/2000)
240 NOTICE by All Defendants to take deposition of Foledad Guerra 7/3/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/27/2000)
241 NOTICE by All Defendants to take deposition of Christine Parson 6/30/00 at 12:00 (dp, Deputy Clerk) (Entered: 06/27/2000)
242 NOTICE by All Defendants to take deposition of Dr. Geraldi 6/29/00 at 12:00 (dp, Deputy Clerk) (Entered: 06/27/2000)
243 NOTICE by All Defendants to take deposition of Crystal Sein 6/30/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/27/2000)
244 NOTICE by All Defendants to take deposition of Pricilla Bianco 7/5/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/27/2000)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 24 of 41

06/26/2000 06/28/2000 06/28/2000 06/30/2000 06/30/2000 06/30/2000 06/30/2000 06/30/2000 06/30/2000
06/30/2000 06/30/2000 07/11/2000 07/12/2000 08/01/2000 08/01/2000
08/21/2000 09/11/2000
09/15/2000
09/18/2000

245 NOTICE by All Defendants to take deposition of Julianne Freewold 6/29/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/27/2000)
246 NOTICE by All Defendants to take deposition of Barbara Dodge 6/30/00 at 3:00 (dp, Deputy Clerk) (Entered: 06/29/2000)
247 NOTICE by All Defendants to take deposition of Eleanor Gibson 7/5/00 at 9:00 (dp, Deputy Clerk) (Entered: 06/29/2000)
248 RE−NOTICE by All Defendants to take deposition of Pat Wear etal 7/6/00 at 9:00 (dp, Deputy Clerk) (Entered: 07/03/2000)
249 RE−NOTICE by All Defendants to take deposition of Advocacy Center 7/7/00 at 9:00 (dp, Deputy Clerk) (Entered: 07/03/2000)
250 MEMORANDUM by All Plaintiffs in opposition to [236−1] motion to stay trial (dp, Deputy Clerk) (Entered: 07/03/2000)
251 NOTICE OF SETTLEMENT filed by All Plaintiffs, All Defendants (dp, Deputy Clerk) (Entered: 07/03/2000)
CASE CLOSED. Case closed (dp, Deputy Clerk) (Entered: 07/03/2000)
252 ORDER granting [25−1] motion to dismiss 1st amended complaint Cause is hereby dismissed. All pending motions are rendered moot by thi order. Case is closed ( Signed by Judge Wilkie D. Ferguson Jr. on 6/30/00) CCAP [EOD Date: 7/5/00] (Former Deputy Clerk) (Entered: 07/05/2000)
CASE CLOSED. Case and Motions no longer referred to Magistrate. (Former Deputy Clerk) (Entered: 07/05/2000)
CASE CLOSED. Case and Motions no longer referred to Magistrate. (Former Deputy Clerk) (Entered: 07/05/2000)
253 OBJECTION by Jennifer Daniels in opposition to [251−1] settlement notice (dp, Deputy Clerk) (Entered: 07/11/2000)
254 REPLY by All Defendants to response to [236−1] motion to stay trial (dp, Deputy Clerk) (Entered: 07/12/2000)
255 JOINT MOTION by All Plaintiffs, All Defendants for approval of settlement agreement (dp, Deputy Clerk) (Entered: 08/01/2000)
256 JOINT MOTION by All Plaintiffs, All Defendants to approve proposed notice to class members of proposed settlement, establish procedure by which notice will be given and to schedule fairness hearing on settlement agreement (dp, Deputy Clerk) (Entered: 08/01/2000)
257 JOINT MOTION by All Plaintiffs, All Defendants to approve alternate proposed notice to class members of proposed settlement (dp, Deputy Clerk) (Entered: 08/21/2000)
258 ORDER Motion hearing before Judge Wilkie D. Ferguson Jr. set for 2:30 9/22/00 for [256−1] joint motion to approve proposed notice to class members of proposed settlement, establish procedure by which notice will be given and to schedule fairness hearing on settlement agreement, set for 2:30 9/22/00 for [255−1] joint motion for approval of settlement agreement ( Signed by Judge Wilkie D. Ferguson Jr. on 9/11/00) CCAP [EOD Date: 9/12/00] (dp, Deputy Clerk) (Entered: 09/12/2000)
260 MANDATE OF USCA (certified copy) [151−1] appeal vacating [121−1] order , and remanding to district court for further proceedings. Mandate Issued Date: 9/13/00; USCA Appeal #: 99−11034−EE; Copy to Judge. (Former Deputy Clerk) (Entered: 09/21/2000)
259 CORRECTED ORDER amending [258−2] order Motion hearing before Judge Wilkie D. Ferguson Jr. set for 2:30 9/22/00 for [256−1] joint motion to approve proposed notice to class members of proposed settlement, establish procedure by which notice will be given and to schedule fairness hearing on settlement agreement, set for 2:30 9/22/00 for [255−1] joint motion for approval of settlement

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 25 of 41

09/22/2000 09/22/2000 09/25/2000
09/29/2000 10/02/2000
10/10/2000
10/10/2000 10/11/2000 10/17/2000 10/18/2000 10/18/2000 10/20/2000
11/03/2000 11/03/2000

agreement ( Signed by Judge Wilkie D. Ferguson Jr. on 9/15/00) CCAP [EOD Date: 9/18/00] (dp, Deputy Clerk) (Entered: 09/18/2000)
261 MOTION by Kellieann Wallen for Peter Nimkoff to withdraw as attorney (dp, Deputy Clerk) (Entered: 09/25/2000)
263 Minutes of motion hearing on proposed settlement held before Judge Wilkie D. Ferguson Jr. on 9/22/00; Court Reporter Name or Tape #: Anita LaRocca (dp, Deputy Clerk) (Entered: 09/25/2000)
262 ORDER Motion hearing before Judge Wilkie D. Ferguson Jr. set for 9:00 12/4/00 for [256−1] joint motion to approve proposed notice to class members of proposed settlement, establish procedure by which notice will be given and to schedule fairness hearing on settlement agreement ( Signed by Judge Wilkie D. Ferguson Jr. on 9/25/00) CCAP [EOD Date: 9/25/00] (dp, Deputy Clerk) (Entered: 09/25/2000)
264 MOTION by Jennifer Daniels for Peter Nimkoff and Hubert Grissom to withdraw as attorney (dp, Deputy Clerk) (Entered: 10/02/2000)
265 ORDER granting [264−1] motion for Peter Nimkoff and Hubert Grissom to withdraw as attorney (Terminated: attorney Peter Nimkoff for Jennifer Daniels, attorney Juliette Ellen Lippman for Jennifer Daniels, attorney Ellen Marjorie Saideman for Jennifer Daniels ( Signed by Judge Wilkie D. Ferguson Jr. on 10/2/00) CCAP [EOD Date: 10/4/00] (dp, Deputy Clerk) (Entered: 10/04/2000)
266 AMENDED MOTION by All Plaintiffs, All Defendants for approval of proposed notice to class members referring to [256−1] joint motion to approve proposed notice to class members of proposed settlement, establish procedure by which notice will be given and to schedule fairness hearing on settlement agreement (dp, Deputy Clerk) (Entered: 10/10/2000)
267 AMENDED MOTION by All Plaintiffs, All Defendants for approval of settlement agreement referring to [255−1] joint motion for approval of settlement agreement (dp, Deputy Clerk) (Entered: 10/10/2000)
268 ORDER granting [261−1] motion for Peter Nimkoff to withdraw as attorney (Terminated: attorney Peter Nimkoff for Kellieann Wallen, attorney Ellen Marjorie Saideman for Kellieann Wallen ( Signed by Judge Wilkie D. Ferguson Jr. on 10/11/00) CCAP [EOD Date: 10/12/00] (dp, Deputy Clerk) (Entered: 10/12/2000)
269 ORDER Granting [266−1] amended joint motion to approve proposed notice to class members of proposed settlement and establish procedure by which notice will be given (Signed by Judge Wilkie D. Jr. on 10/17/00) CCAP [EOD Date: 10/18/00] (ss, Deputy Clerk) (Entered: 10/18/2000)
270 EMERGENCY JOINT MOTION by All Plaintiffs, All Defendants for permission to remove Jennifer Daniels from the waiver and for an order of mediation and for a hearing on said motions (dp, Deputy Clerk) (Entered: 10/19/2000)
271 MOTION by All Plaintiffs, All Defendants for Hearing on [270−1] joint motion for permission to remove Jennifer Daniels from the waiver and for an order of mediation and for emergency hearing on said motions (dp, Deputy Clerk) (Entered: 10/19/2000)
272 ORDER granting [271−1] motion for Hearing on [270−1] joint motion for permission to remove Jennifer Daniels from the waiver and for an order of mediation and for emergency hearing on said motions Motion hearing before Judge Wilkie D. Ferguson Jr. set for 2:30 11/3/00 for [270−1] joint motion for permission to remove Jennifer Daniels from the waiver and for an order of mediation and for a hearing on said motions ( Signed by Judge Wilkie D. Ferguson Jr. on 10/20/00) CCAP [EOD Date: 10/23/00] (dp, Deputy Clerk) (Entered: 10/23/2000)
273 Minutes of hearing on motion to remove Jennifer Daniels from waiver held before Judge Wilkie D. Ferguson Jr. on 11/3/00; Court Reporter Name or Tape #: Anita LaRocca (dp, Deputy Clerk) (Entered: 11/06/2000)
Motion hearing re: [270−1] joint motion for permission to remove Jennifer Daniels from the waiver and for an order of mediation and for a hearing on said motions

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 26 of 41

11/03/2000 11/06/2000
11/09/2000 11/09/2000 11/16/2000 11/20/2000 11/20/2000 11/28/2000 11/28/2000 12/04/2000
12/05/2000 12/12/2000 12/12/2000 12/18/2000 12/21/2000
12/26/2000
12/27/2000

Motion hearing held (dp, Deputy Clerk) (Entered: 11/06/2000)
274 NOTICE of filing declarations by All Defendants (dp, Deputy Clerk) (Entered: 11/06/2000)
275 ORDER granting [270−1] joint motion for permission to remove Jennifer Daniels from the waiver and for an order of mediation and for a hearing on said motions ( Signed by Judge Wilkie D. Ferguson Jr. on 11/6/00) CCAP [EOD Date: 11/7/00] (dp, Deputy Clerk) (Entered: 11/07/2000)
276 APPLICATION by Advocacy Center for Donna L. Rooney to appear pro hac vice (ss, Deputy Clerk) (Entered: 11/13/2000)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 520912 (ss, Deputy Clerk) (Entered: 11/13/2000)
277 ORDER granting [276−1] motion for Donna L. Rooney to appear pro hac vice ( Signed by Judge Wilkie D. Ferguson Jr. on 11/16/00) CCAP [EOD Date: 11/17/00] (dp, Deputy Clerk) (Entered: 11/17/2000)
278 MOTION by Sunrise, The Haven Center, The Hope Center Inc. for clarification and modification and objections to proposed class action settlement on their own behalf (dp, Deputy Clerk) (Entered: 11/21/2000)
279 MOTION by Maria Camelo, Leonard Berman, Elizabeth Lopez to modify and in the alternative objection to proposed class settlement (dp, Deputy Clerk) (Entered: 11/21/2000)
280 Minutes of status conference held before Judge Wilkie D. Ferguson Jr. on 11/28/00; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk) (Entered: 11/29/2000)
Status conference held before Judge Wilkie D. Ferguson Jr. (dp, Deputy Clerk) (Entered: 11/29/2000)
281 JOINT MOTION by All Plaintiffs, All Defendants for clarification and modification and objections to proposed class action settlement by Sunrise Opportunities, The Haven Center and The Hope Center (dp, Deputy Clerk) (Entered: 12/05/2000)
282 Minutes of Rule 23 fairness hearing held before Judge Wilkie D. Ferguson Jr. on 12/4/00; Court Reporter Name or Tape #: Paul Haferling (dp, Deputy Clerk) (Entered: 12/06/2000)
283 JOINT MOTION by All Plaintiffs, All Defendants to extend time to file posthearing submittals (dp, Deputy Clerk) (Entered: 12/14/2000)
284 NOTICE of filing declaration of Pat Wear by All Plaintiffs (dp, Deputy Clerk) (Entered: 12/14/2000)
285 FINAL report of Mediator. Disposition: settled (dp, Deputy Clerk) (Entered: 12/19/2000)
286 MOTION by Sunrise, The Haven Center, The Hope Center Inc. to extend time to respond to joint motion to strike request for clarification and modification and objections to proposed class action settlement (dp, Deputy Clerk) (Entered: 12/21/2000)
287 RESPONSE by Sunrise, The Haven Center, The Hope Center Inc. to [281−1] joint motion for clarification and modification and objections to proposed class action settlement by Sunrise Opportunities, The Haven Center and The Hope Center (dp, Deputy Clerk) (Entered: 12/26/2000)
288 ORDER denying [286−1] motion to extend time to respond to joint motion to strike request for clarification and modification and objections to proposed class action settlement ( Signed by Judge Wilkie D. Ferguson Jr. on 12/27/00) CCAP [EOD Date: 12/28/00] (dp, Deputy Clerk) (Entered: 12/28/2000)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 27 of 41

12/31/2000 01/05/2001 01/05/2001 01/05/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/08/2001 01/12/2001

289 ORDER granting [283−1] joint motion to extend time to file posthearing submittals ( Signed by Judge Wilkie D. Ferguson Jr. on 12/31/00) CCAP [EOD Date: 1/4/01] (dp, Deputy Clerk) (Entered: 01/04/2001)
290 NOTICE of filing declaration of Alberto Dominguez by Richard T. Lutz (dp, Deputy Clerk) (Entered: 01/08/2001)
291 NOTICE of filing declaration of Laura Prado by Advocacy Center (dp, Deputy Clerk) (Entered: 01/08/2001)
292 NOTICE of filing declaration of Maggie Knights by Advocacy Center (dp, Deputy Clerk) (Entered: 01/08/2001)
293 JOINT MOTION by All Plaintiffs, All Defendants for leave to file post−hearing memorandum in excess of 20 page limit (dp, Deputy Clerk) (Entered: 01/08/2001)
294 MEMORANDUM by All Plaintiffs, All Defendants in support of [293−1] joint motion for leave to file post−hearing memorandum in excess of 20 page limit (dp, Deputy Clerk) (Entered: 01/08/2001)
295 Joint Proposed Findings of Fact and Conclusions of Law by All Plaintiffs, All Defendants (dp, Deputy Clerk) (Entered: 01/08/2001)
296 NOTICE of filing errata sheet for transcript of fairness hearing by All Plaintiffs, All Defendants (dp, Deputy Clerk) (Entered: 01/08/2001)
297 JOINT MOTION by All Plaintiffs, All Defendants for Hearing on amended motion to approve settlement agreement (dp, Deputy Clerk) (Entered: 01/08/2001)
298 NOTICE of filing declarations by All Defendants (dp, Deputy Clerk) (Entered: 01/08/2001)
299 AFFIDAVIT of Linda Adkins by All Defendants Re: [267−1] motion for approval of settlement agreement, [267−2] amended motion (dp, Deputy Clerk) (Entered: 01/08/2001)
300 AFFIDAVIT of Anne Pipines by All Defendants Re: [267−1] motion for approval of settlement agreement, [267−2] amended motion (dp, Deputy Clerk) (Entered: 01/08/2001)
301 AFFIDAVIT of David Raymond by All Defendants Re: [267−1] motion for approval of settlement agreement, [267−2] amended motion (dp, Deputy Clerk) (Entered: 01/08/2001)
302 AFFIDAVIT of Susan Wojtowicz by All Defendants Re: [267−1] motion for approval of settlement agreement, [267−2] amended motion (dp, Deputy Clerk) (Entered: 01/08/2001)
303 AFFIDAVIT of Bertha Serra by All Defendants Re: [267−1] motion for approval of settlement agreement, [267−2] amended motion (dp, Deputy Clerk) (Entered: 01/08/2001)
304 AFFIDAVIT of Edwin Debardeleben by All Defendants Re: [267−1] motion for approval of settlement agreement, [267−2] amended motion (dp, Deputy Clerk) (Entered: 01/08/2001)
305 AFFIDAVIT of Clarence Sundram by All Defendants Re: [267−1] motion for approval of settlement agreement, [267−2] amended motion (dp, Deputy Clerk) (Entered: 01/08/2001)
306 NOTICE of filing affidavits of publication by All Defendants (dp, Deputy Clerk) (Entered: 01/08/2001)
307 NOTICE of filing transcrip of fairness hearing by All Defendants (dp, Deputy Clerk) (Entered: 01/08/2001)
308 NOTICE of filing documents by All Defendants (dp, Deputy Clerk) (Entered: 01/16/2001)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 28 of 41

01/12/2001
01/24/2001
01/26/2001
02/08/2001 02/15/2001 02/20/2001 02/20/2001 02/22/2001 02/22/2001 02/22/2001 02/22/2001 02/22/2001 02/28/2001
04/17/2001
04/26/2001
06/12/2001
06/21/2001

309 ORDER granting [297−1] joint motion for Hearing on amended motion to approve settlement agreement granting [293−1] joint motion for leave to file post−hearing memorandum in excess of 20 page limit Motion hearing before Judge Wilkie D. Ferguson Jr. set for 2:00 2/9/01 for [267−1] motion for approval of settlement agreement ( Signed by Judge Wilkie D. Ferguson Jr. on 1/12/01) CCAP [EOD Date: 1/16/01] (dp, Deputy Clerk) (Entered: 01/16/2001)
310 ORDER upon motion for continuance Motion hearing before Judge Wilkie D. Ferguson Jr. set for 1:30 2/16/01 for [267−2] amended motion ( Signed by Judge Wilkie D. Ferguson Jr. on 1/24/01]) CCAP [EOD Date: 1/25/01] (dp, Deputy Clerk) (Entered: 01/25/2001)
311 UNOPPOSED MOTION by Lawton Chiles, Edward Feaver, Charles Kimber, Donna Allen, John Brown, Doug Cook, Richard T. Lutz for continuance of oral argument on amended motion to approve settlement agreement (ss, Deputy Clerk) (Entered: 01/29/2001)
312 NOTICE of filing declaration of Karen Wallen by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 02/09/2001)
313 NOTICE of filing copy of declaration of Amy Claiborne and the Prado−Steiman Compliance Chart by All Defendants (dp, Deputy Clerk) (Entered: 02/16/2001)
314 MEMORANDUM of law regarding the ability of parents to represent their children in this action by All Defendants (dp, Deputy Clerk) (Entered: 02/21/2001)
315 Joint Proposed Findings of Fact and Conclusions of Law by All Plaintiffs, All Defendants (dp, Deputy Clerk) (Entered: 02/21/2001)
316 MOTION by Kenneth Sapp for Peter Nimkoff to withdraw as attorney (dp, Deputy Clerk) (Entered: 02/23/2001)
317 NOTICE of filing documents by All Defendants (dp, Deputy Clerk) (Entered: 02/23/2001)
318 NOTICE of filing corrected transcript of fairness hearing by All Defendants (dp, Deputy Clerk) (Entered: 02/23/2001)
319 Transcript filed re: fairness hearing held by All Defendants (dp, Deputy Clerk) (Entered: 02/23/2001)
320 Transcript filed re: fairness hearing held by All Defendants (dp, Deputy Clerk) (Entered: 02/23/2001)
321 ORDER granting [316−1] motion for Peter Nimkoff to withdraw as attorney (Terminated: attorney Peter Nimkoff for Kenneth Sapp, attorney Ellen Marjorie Saideman for Kenneth Sapp ( Signed by Judge Wilkie D. Ferguson Jr. on 2/28/01) CCAP [EOD Date: 3/1/01] (dp, Deputy Clerk) (Entered: 03/01/2001)
322 MOTION by Jennifer Daniels, Kenneth Sapp, Kellieann Wallen Carol Johnson, Mary Daniels and Karen Wallen to rule on removal of cases from state court and the right to participate as parties for minor disabled plaintiffs (dp, Deputy Clerk) (Entered: 04/18/2001)
323 MOTION by All Defendants to strike [322−1] motion to rule on removal of cases from state court and the right to participate as parties for minor disabled plaintiffs or in the alternative, response in opposition to the motion (dp, Deputy Clerk) (Entered: 04/27/2001)
324 (VACATED BY DE #338) ORDER denying [267−1] motion for approval of settlement agreement, denying [267−2] amended motion ( Signed by Judge Wilkie D. Ferguson Jr. on 6/12/01) CCAP [EOD Date: 6/13/01] (dp, Deputy Clerk) Modified on 08/09/2001 (Entered: 06/13/2001)
325 MOTION under authority of Federal Civil Rule 59 by Wolf Prado−Steiman, Marlon Christie, Lucy Adawi, Daniel Lavin, Daniel Shell, Advocacy Center to rehear or amend in part the [324−1] order (ss, Deputy Clerk) (Entered: 06/22/2001)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 29 of 41

06/21/2001 06/21/2001 06/22/2001 06/25/2001 07/02/2001
07/05/2001 07/05/2001 07/05/2001 07/12/2001 07/24/2001 07/26/2001 07/26/2001 07/27/2001 07/27/2001 08/06/2001
08/08/2001 08/08/2001
08/08/2001

326 REQUEST by Wolf Prado−Steiman, Marlon Christie, Lucy Adawi, Daniel Lavin, Daniel Shell, Advocacy Center for oral argument on [325−1] motion to rehear or amend in part the [324−1] order (ss, Deputy Clerk) (Entered: 06/22/2001)
327 Certificate of consultation with counsel by Advocacy Center (ss, Deputy Clerk) (Entered: 06/22/2001)
328 NOTICE OF APPEAL by All Defendants of [324−1] order EOD Date: 06/13/01; Filing Fee: $ 105.00; Receipt #: 522671 Copies to USCA and Counsel of Record. (Former Deputy Clerk) (Entered: 06/25/2001)
Certified copies of Notice of Appeal, Docket, and Order under appeal to USCA: [328−1] appeal by All Defendants as to All Defendants (Former Deputy Clerk) (Entered: 06/25/2001)
329 ORDER Scheduling Hearing: Motion hearing before Judge Wilkie D. Ferguson Jr. set for 10:00 7/27/01 for [325−1] motion to reconsider or amend in part its [324−1] order (Signed by Wilkie D. Ferguson Jr. on 7/2/01) [EOD Date: 7/5/01] (ss, Deputy Clerk) (Entered: 07/05/2001)
NOTICE of Receipt of Transmittal Letter from USCA as to All Defendants Re: [328−1] appeal by All Defendants USCA NUMBER: 01−13589−F (Former Deputy Clerk) (Entered: 07/05/2001)
330 TRANSCRIPT INFORMATION FORM by All Defendants re: [328−1] appeal by All Defendants received. (Forwarded to Court Reporter Coordinater) (Former Deputy Clerk) (Entered: 07/06/2001)
331 Appeal Information Sheet re: [328−1] appeal by All Defendants . No transcript requested. Appeal Record due on 7/19/01 for All Defendants (Former Deputy Clerk) (Entered: 07/11/2001)
JURISDICTIONAL QUESTION. USCA Case Number Re: [328−1] appeal by All Defendants as to All Defendants USCA NUMBER: 01−13589−F (Former Deputy Clerk) (Entered: 07/13/2001)
335 MOTION by Samuel Brola to be heard at 7/27/01 hearing and for reconsideration of [329−2] order (dp, Deputy Clerk) (Entered: 07/31/2001)
332 NOTICE of declaration of Susan Dickerson with exhibit A and B by Wolf Prado−Steiman, Marlon Christie, Lucy Adawi, Daniel Lavin, Daniel Shell (dp, Deputy Clerk) (Entered: 07/27/2001)
333 AFFIDAVIT of Susan Dickerson by Wolf Prado−Steiman, Marlon Christie, Lucy Adawi, Daniel Lavin, Daniel Shell Re: (dp, Deputy Clerk) (Entered: 07/27/2001)
334 Minutes of hearing on motion to reconsider held before Judge Wilkie D. Ferguson Jr. on 7/27/01; Court Reporter Name or Tape #: Stephen Franklin (dp, Deputy Clerk) Modified on 07/30/2001 (Entered: 07/30/2001)
Motion hearing re: [335−1] motion to be heard at 7/27/01 hearing and for reconsideration of [329−2] order (dp, Deputy Clerk) (Entered: 08/06/2001)
336 TRANSCRIPT filed as to All Defendants of Motion Hearing held 7/27/01 before Judge Wilkie D. Ferguson, Jr. Volume #: I Pages: 1−31 re: [328−1] appeal by All Defendants . Appeal record due on 8/21/01 for All Defendants . (Former Deputy Clerk) (Entered: 08/07/2001)
337 NOTICE of filing transcript of hearing on 7/27/01 by Jeb Bush, Kathleen Kearney, Sec. Dept. Children, Robert S. Cohen(dp, Deputy Clerk) Modified on 08/09/2001 (Entered: 08/09/2001)
338 ORDER granting [335−1] motion to be heard at 7/27/01 hearing and for reconsideration of [329−2] order vacating [324−1] order and a new order shall be entered ( Signed by Judge Wilkie D. Ferguson Jr. on 8/8/01) [EOD Date: 8/9/01] (dp, Deputy Clerk) (Entered: 08/09/2001)
339 ORDER granting [267−1] motion for approval of settlement agreement, granting [267−2] amended motion ( Signed by Judge Wilkie D. Ferguson Jr. on 8/8/01) [EOD Date: 8/9/01] (dp, Deputy Clerk) (Entered: 08/09/2001)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 30 of 41

09/06/2001 09/06/2001
09/06/2001 09/07/2001 09/07/2001 09/07/2001 09/07/2001 09/07/2001 09/13/2001 09/19/2001
09/20/2001 09/25/2001 09/25/2001 10/18/2001 10/23/2001 10/26/2001 11/05/2001 11/21/2001 11/26/2001 12/12/2001

340 ORDER denying [279−1] motion to modify and in the alternative objection to proposed class settlement ( Signed by Judge Wilkie D. Ferguson Jr. on 9/6/01) [EOD Date: 9/7/01] (dp, Deputy Clerk) (Entered: 09/07/2001)
341 ORDER denying [278−1] motion for clarification and modification and objections to proposed class action settlement on their own behalf ( Signed by Judge Wilkie D. Ferguson Jr. on 9/6/01) [EOD Date: 9/7/01] (dp, Deputy Clerk) (Entered: 09/07/2001)
342 ORDER dismissing [311−1] motion for continuance of oral argument on amended motion to approve settlement agreement ( Signed by Judge Wilkie D. Ferguson Jr. on 9/6/01) [EOD Date: 9/7/01] (dp, Deputy Clerk) (Entered: 09/07/2001)
343 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman for attorney fees , to Tax Costs (dp, Deputy Clerk) (Entered: 09/10/2001)
344 NOTICE of filing declaration of Peter Nimkoff by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 09/10/2001)
345 NOTICE of filing documents in support of motion for attorneys' fees and costs by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 09/10/2001)
346 NOTICE of affidavit of Ellen Saideman by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 09/10/2001)
347 CERTIFICATE OF SERVICE by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 09/10/2001)
348 Certificate of readiness as to All Defendants transmitted to USCA Re: [328−1] appeal by All Defendants USCA NUMBER: 01−13589−F (Former Deputy Clerk) (Entered: 09/13/2001)
350 ORDER of dismissal from USCA (certified copy) dismissing [328−1] appeal pursuant to order granting appellants' "Motion to Dismiss," construed as a motion to dismiss this appeal with prejudice as moot. USCA #: 01−13589−F USCA Order Date: 9/17/01 (Former Deputy Clerk) (Entered: 09/21/2001)
349 MOTION by All Defendants to extend time to respond to motion for attorney's fees and costs (dp, Deputy Clerk) (Entered: 09/21/2001)
ACKNOWLEDGMENT of receipt by U.S.C.A. of: COR on 9/21/01 U.S.C.A. # 01−13589−F (Former Deputy Clerk) (Entered: 09/26/2001)
351 ORDER granting [349−1] motion to extend time to respond to motion for attorney's fees and costs ( Signed by Judge Wilkie D. Ferguson Jr. on 9/25/01) [EOD Date: 9/26/01] (dp, Deputy Clerk) (Entered: 09/26/2001)
352 NOTICE of Change of Address of Attorney by Advocacy Center, M. C., Wolf Prado−Steiman (dp, Deputy Clerk) (Entered: 10/18/2001)
353 RESPONSE by Karen Wallen to [343−1] motion for attorney fees, [343−2] motion to Tax Costs (dp, Deputy Clerk) (Entered: 10/24/2001)
354 MOTION by All Defendants to extend time to response to motion for attorneys' fees and costs (dp, Deputy Clerk) (Entered: 10/29/2001)
355 ORDER granting [354−1] motion to extend time to response to motion for attorneys' fees and costs ( Signed by Judge Wilkie D. Ferguson Jr. on 11/5/01) [EOD Date: 11/6/01] (dp, Deputy Clerk) (Entered: 11/06/2001)
356 THIRD MOTION by All Defendants to extend time to respond to motion for attorneys' fees and costs to class counsel (dp, Deputy Clerk) (Entered: 11/26/2001)
357 ORDER granting [356−1] motion to extend time to respond to motion for attorneys' fees and costs to class counsel ( Signed by Judge Wilkie D. Ferguson Jr. on 11/26/01) [EOD Date: 11/27/01] (dp, Deputy Clerk) (Entered: 11/27/2001)
358 THIRD MOTION by All Defendants to extend time to respond to motion for attorney's fees and costs (dp, Deputy Clerk) (Entered: 12/13/2001)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 31 of 41

12/14/2001 12/17/2001 12/17/2001 12/21/2001 12/31/2001 01/02/2002 01/02/2002 01/04/2002 01/31/2002 02/05/2002 03/08/2002 03/11/2002 03/11/2002 03/11/2002 03/12/2002 03/14/2002 03/14/2002
03/21/2002 04/15/2002

359 ORDER granting [358−1] motion to extend time to respond to motion for attorney's fees and costs ( Signed by Judge Wilkie D. Ferguson Jr. on 12/14/01) [EOD Date: 12/17/01] (dp, Deputy Clerk) (Entered: 12/17/2001)
360 MOTION by All Defendants for leave to exceed page limitation (dp, Deputy Clerk) (Entered: 12/18/2001)
361 NOTICE of filing documents in opposition to motion for attorneys fees and costs by All Defendants (dp, Deputy Clerk) (Entered: 12/18/2001)
362 JOINT MOTION by All Plaintiffs, All Defendants to extend jurisdiction of the court (dp, Deputy Clerk) (Entered: 12/21/2001)
363 ORDER granting [362−1] joint motion to extend jurisdiction of the court ( Signed by Judge Wilkie D. Ferguson Jr. on 12/31/01) [EOD Date: 1/2/02] (dp, Deputy Clerk) (Entered: 01/02/2002)
364 NOTICE of filing original declaration of Sheridan Weissenborn by All Defendants (dp, Deputy Clerk) (Entered: 01/03/2002)
365 AMENDED CERTIFICATE OF SERVICE by All Defendants (dp, Deputy Clerk) (Entered: 01/03/2002)
366 ORDER granting [360−1] motion for leave to exceed page limitation ( Signed by Judge Wilkie D. Ferguson Jr. on 1/4/02) [EOD Date: 1/7/02] (dp, Deputy Clerk) (Entered: 01/07/2002)
367 MOTION by Advocacy Center, M. C., Wolf Prado−Steiman to extend time to file reply memorandum in support of motion for attorneys' fees (dp, Deputy Clerk) (Entered: 02/01/2002)
368 ORDER granting [367−1] motion to extend time to file reply memorandum in support of motion for attorneys' fees ( Signed by Judge Wilkie D. Ferguson Jr. on 2/5/02) [EOD Date: 2/6/02] (dp, Deputy Clerk) (Entered: 02/06/2002)
369 MOTION by Richard T. Lutz, Doug Cook to extend time to file reply memorandum in support of motion for attorneys' fees (dp, Deputy Clerk) (Entered: 03/11/2002)
370 MOTION by Advocacy Center for Laura L. Whiteside to appear pro hac vice (dp, Deputy Clerk) (Entered: 03/13/2002)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 524697 (dp, Deputy Clerk) (Entered: 03/13/2002)
371 NOTICE of substitution of lead counsel and change of address by Peter Nimkoff by Advocacy Center (dp, Deputy Clerk) (Entered: 03/13/2002)
372 ORDER granting [370−1] motion for Laura L. Whiteside to appear pro hac vice ( Signed by Judge Wilkie D. Ferguson Jr. on 3/12/02) [EOD Date: 3/14/02] (dp, Deputy Clerk) (Entered: 03/14/2002)
373 NOTICE of Unavailability by Advocacy Center, M. C., Wolf Prado−Steiman for dates of: 3/19−3/29 (dp, Deputy Clerk) (Entered: 03/15/2002)
374 ORDER denying [323−1] motion to strike [322−1] motion to rule on removal of cases from state court and the right to participate as parties for minor disabled plaintiffs, dismissing [322−1] motion to rule on removal of cases from state court and the right to participate as parties for minor disabled plaintiffs ( Signed by Judge Wilkie D. Ferguson Jr. on 3/14/02) [EOD Date: 3/15/02] (dp, Deputy Clerk) (Entered: 03/15/2002)
375 ORDER granting [367−1] motion to extend time to file reply memorandum in support of motion for attorneys' fees ( Signed by Judge Wilkie D. Ferguson Jr. on 3/21/02) [EOD Date: 3/22/02] (dp, Deputy Clerk) (Entered: 03/22/2002)
376 NOTICE of attorney appearance for All Plaintiffs by James Kellogg Green (dp, Deputy Clerk) (Entered: 04/16/2002)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 32 of 41

04/24/2002 04/29/2002 04/29/2002 05/02/2002 05/02/2002 05/02/2002 05/02/2002 05/06/2002 05/06/2002 05/10/2002 05/13/2002 05/20/2002 05/21/2002 05/21/2002 05/21/2002 05/22/2002 05/22/2002
05/22/2002
05/24/2002 05/28/2002

377 NOTICE of filing amended objections to attorney time records by All Defendants (dp, Deputy Clerk) (Entered: 04/25/2002)
378 MOTION by All Plaintiffs for leave to file memorandum in excess of 20 pages (dp, Deputy Clerk) (Entered: 04/30/2002)
379 MOTION with memorandum in support by All Plaintiffs to continue court's jurisdiction to permit resolution of claims on the merits (dp, Deputy Clerk) (Entered: 04/30/2002)
380 MOTION by All Plaintiffs to extend time to file reply memorandum in support of motion for attorneys' fees (dp, Deputy Clerk) (Entered: 05/03/2002)
381 MOTION by All Plaintiffs to compel production of documents (dp, Deputy Clerk) (Entered: 05/03/2002)
382 MEMORANDUM by All Plaintiffs in support of [381−1] motion to compel production of documents (dp, Deputy Clerk) (Entered: 05/03/2002)
383 NOTICE of filing declaration of Ellen Saideman by All Plaintiffs (dp, Deputy Clerk) (Entered: 05/03/2002)
384 NOTICE of Unavailability by All Defendants for dates of: 6/21/02 (dp, Deputy Clerk) (Entered: 05/07/2002)
385 NOTICE of Unavailability by All Defendants for dates of: 8/10−8/23 (dp, Deputy Clerk) (Entered: 05/07/2002)
386 MOTION by All Defendants for stay of all proceedings, including discovery, relating to plaintiffs' verified motion for an award of attorneys' fees and litigation costs (ss, Deputy Clerk) (Entered: 05/13/2002)
387 MOTION by All Defendants for enlargement of time to respond to plaintiffs' motion to continue the Court's jurisdiction to permit resolution of claims on the merits and memorandum of law (ss, Deputy Clerk) (Entered: 05/14/2002)
388 MOTION by All Defendants to extend time to respond to motion for compel production (dp, Deputy Clerk) (Entered: 05/21/2002)
389 AMENDED MOTION by All Plaintiffs to continue court's jurisdiction referring to [379−1] motion to continue court's jurisdiction to permit resolution of claims on the merits (dp, Deputy Clerk) (Entered: 05/22/2002)
390 MOTION by All Plaintiffs to file overlength reply memorandum in support of motion for attorneys' fees (dp, Deputy Clerk) (Entered: 05/22/2002)
391 (STRICKEN BY DE 406) REPLY by All Plaintiffs to response to [343−1] motion for attorney fees, [343−2] motion to Tax Costs (dp, Deputy Clerk) Modified on 06/25/2002 (Entered: 05/22/2002)
392 ORDER granting [380−1] motion to extend time to file reply memorandum in support of motion for attorneys' fees ( Signed by Judge Wilkie D. Ferguson Jr. on 5/22/02) [EOD Date: 5/22/02] (dp, Deputy Clerk) (Entered: 05/22/2002)
393 OBJECTION by All Plaintiffs to [387−1] motion for enlargement of time to respond to plaintiffs' motion to continue the Court's jurisdiction to permit resolution of claims on the merits and memorandum of law (ss, Deputy Clerk) (Entered: 05/23/2002)
394 ORDER Granting [388−1] unopposed motion for enlargement of time to respond to motion for compel production; Response to motion reset to 5/24/02 for [381−1] motion to compel production of documents (Signed by Judge Wilkie D. Ferguson Jr. on 5/22/02) [EOD Date: 5/23/02] (ss, Deputy Clerk) (Entered: 05/23/2002)
395 RESPONSE by All Plaintiffs to [386−1] motion for stay of all proceedings, including discovery, relating to plaintiffs' verified motion for an award of attorneys' fees and litigation costs (dp, Deputy Clerk) (Entered: 05/28/2002)
396 RESPONSE by All Defendants to [381−1] motion to compel production of documents (dp, Deputy Clerk) (Entered: 05/29/2002)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 33 of 41

05/31/2002 06/05/2002 06/05/2002 06/13/2002 06/19/2002 06/19/2002 06/19/2002 06/19/2002 06/24/2002
06/24/2002
06/26/2002 06/26/2002 06/26/2002 06/28/2002 06/28/2002 06/28/2002

397 Transcript filed re: fairness hearing held 12/5/00 before Judge Wilkie D. Ferguson Jr. Pages: 1−87 (dp, Deputy Clerk) (Entered: 06/03/2002)
398 MOTION by All Defendants for leave to file reply memorandum in excess of ten pages (dp, Deputy Clerk) (Entered: 06/06/2002)
399 REPLY by All Defendants to response to [387−1] motion for enlargement of time to respond to plaintiffs' motion to continue the Court's jurisdiction to permit resolution of claims on the merits and memorandum of law (dp, Deputy Clerk) (Entered: 06/06/2002)
400 REPLY by All Plaintiffs to response to [381−1] motion to compel production of documents (dp, Deputy Clerk) (Entered: 06/14/2002)
401 MOTION by All Defendants for Hearing on [389−1] motion to continue court's jurisdiction (dp, Deputy Clerk) (Entered: 06/20/2002)
402 (STRICKEN BY DE 406) MEMORANDUM by All Defendants in opposition to [389−1] motion to continue court's jurisdiction (dp, Deputy Clerk) Modified on 06/25/2002 (Entered: 06/20/2002)
403 MOTION with memorandum in support by All Defendants for leave to file memorandum in excess of 20 pages (dp, Deputy Clerk) (Entered: 06/20/2002)
404 (STRICKEN BY DE 406) RESPONSE by All Defendants to [389−1] motion to continue court's jurisdiction, [389−2] amended motion (dp, Deputy Clerk) Modified on 06/25/2002 (Entered: 06/20/2002)
405 ORDER Motion hearing before Judge Wilkie D. Ferguson Jr. set for 11:00 7/19/02 for [389−1] motion to continue court's jurisdiction granting [401−1] motion for Hearing on [389−1] motion to continue court's jurisdiction ( Signed by Judge Wilkie D. Ferguson Jr. on 6/24/02) [EOD Date: 6/25/02] (dp, Deputy Clerk) (Entered: 06/25/2002)
406 ORDER dismissing [256−1] joint motion to approve proposed notice to class members of proposed settlement, establish procedure by which notice will be given and to schedule fairness hearing on settlement agreement dismissing [257−1] joint motion to approve alternate proposed notice to class members of proposed settlement granting [378−1] motion for leave to file memorandum in excess of 20 pages dismissing [379−1] motion to continue court's jurisdiction to permit resolution of claims on the merits dismissing [387−1] motion for enlargement of time to respond to plaintiffs' motion to continue the Court's jurisdiction to permit resolution of claims on the merits and memorandum of law denying [390−1] motion to file overlength reply memorandum in support of motion for attorneys' fees dismissing [398−1] motion for leave to file reply memorandum in excess of ten pages denying [403−1] motion for leave to file memorandum in excess of 20 pages striking [404−1] motion response, [402−1] opposition memorandum, [391−1] response reply ( Signed by Judge Wilkie D. Ferguson Jr. on 6/24/02) [EOD Date: 6/25/02] (dp, Deputy Clerk) (Entered: 06/25/2002)
407 MOTION by All Defendants for Thomas York to appear pro hac vice (dp, Deputy Clerk) (Entered: 06/27/2002)
Filing Fee Paid; FILING FEE $ 75.00 RECEIPT # 525562 (dp, Deputy Clerk) (Entered: 06/27/2002)
408 NOTICE of filing Developmental Disabilities Program Office E−Bulletin Vol. 1 No. 6 by All Defendants (dp, Deputy Clerk) (Entered: 06/27/2002)
409 RESPONSE by All Plaintiffs in opposition to [401−1] motion for Hearing on [389−1] motion to continue court's jurisdiction (dp, Deputy Clerk) (Entered: 07/01/2002)
410 MOTION by All Plaintiffs to strike Exhibit B to response to motion to continue jurisdiction (dp, Deputy Clerk) (Entered: 07/01/2002)
411 MOTION by All Plaintiffs for leave to file reply memorandum of law in excess of ten pages in length (dp, Deputy Clerk) (Entered: 07/01/2002)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 34 of 41

06/28/2002 07/09/2002 07/09/2002 07/09/2002 07/11/2002 07/15/2002 07/18/2002 07/18/2002 07/18/2002 07/19/2002 07/29/2002
07/29/2002 08/05/2002 08/12/2002 08/20/2002
09/30/2002 10/07/2002 10/11/2002

412 REPLY by All Plaintiffs to response to [389−1] motion to continue court's jurisdiction (dp, Deputy Clerk) (Entered: 07/01/2002)
413 MEMORANDUM by All Defendants in opposition to [389−1] motion to continue court's jurisdiction (dp, Deputy Clerk) (Entered: 07/10/2002)
414 NOTICE of copies of documents by All Defendants (dp, Deputy Clerk) (Entered: 07/10/2002)
415 REPLY by All Plaintiffs to response to [343−1] motion for attorney fees, [343−2] motion to Tax Costs (dp, Deputy Clerk) (Entered: 07/10/2002)
416 NOTICE of filing copies of documents in opposition to corrected motion to continue court's jurisdiction by All Defendants (dp, Deputy Clerk) (Entered: 07/12/2002)
417 SECOND NOTICE of filing copies of documents by All Defendants (dp, Deputy Clerk) (Entered: 07/16/2002)
418 REPLY by All Plaintiffs to response to [389−1] motion to continue court's jurisdiction, [389−2] amended motion (dp, Deputy Clerk) (Entered: 07/19/2002)
419 MOTION by All Plaintiffs for leave to file reply memorandum in excess of 10 pages in length (dp, Deputy Clerk) (Entered: 07/19/2002)
420 NOTICE of filing supplemental declarations by All Plaintiffs (dp, Deputy Clerk) (Entered: 07/19/2002)
421 Minutes of hearing on motion for hearing on motion to continue held before Judge Wilkie D. Ferguson Jr. on 7/19/02; Court Reporter Name or Tape #: Carly Horenkamp (dp, Deputy Clerk) (Entered: 07/22/2002)
422 ORDER granting [381−1] motion to compel production of documents granting [386−1] motion for stay of all proceedings, including discovery, relating to plaintiffs' verified motion for an award of attorneys' fees and litigation costs granting [407−1] motion for Thomas York to appear pro hac vice dismissing [411−1] motion for leave to file reply memorandum of law in excess of ten pages in length granting [419−1] motion for leave to file reply memorandum in excess of 10 pages in length ( Signed by Judge Wilkie D. Ferguson Jr. on 7/29/02) [EOD Date: 7/30/02] (dp, Deputy Clerk) (Entered: 07/30/2002)
423 ORDER granting [389−1] motion to continue court's jurisdiction, granting [389−2] amended motion ( Signed by Judge Wilkie D. Ferguson Jr. on 7/29/02) [EOD Date: 7/30/02] (dp, Deputy Clerk) (Entered: 07/30/2002)
424 Transcript filed re: hearing on motions held 7/19/02 before Judge Wilkie D. Ferguson Jr. Pages: 1−16 (dp, Deputy Clerk) (Entered: 08/06/2002)
425 NOTICE of Mediation Hearing beginning 10/15/02 at 9:00 Edward B. Davis added as mediator (ss, Deputy Clerk) (Entered: 08/13/2002)
426 ORDER dismissing [410−1] motion to strike Exhibit B to response to motion to continue jurisdiction, denying [369−1] motion to extend time to file reply memorandum in support of motion for attorneys' fees, denying [343−1] motion for attorney fees, denying [343−2] motion to Tax Costs, denying [281−1] joint motion for clarification and modification and objections to proposed class action settlement by Sunrise Opportunities, The Haven Center and The Hope Center, denying [255−1] joint motion for approval of settlement agreement ( Signed by Judge Wilkie D. Ferguson Jr. on 8/20/02) [EOD Date: 8/21/02] (dp, Deputy Clerk) (Entered: 08/21/2002)
427 MOTION by Jennifer Daniels, Kellieann Wallen for legal representation (dp, Deputy Clerk) (Entered: 10/01/2002)
428 Mediation Statement by All Plaintiffs re: (dp, Deputy Clerk) (Entered: 10/08/2002)
429 RESPONSE by All Defendants to [427−1] motion for legal representation (dp, Deputy Clerk) (Entered: 10/15/2002)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 35 of 41

11/06/2002
11/15/2002 11/18/2002 11/29/2002 12/05/2002
12/11/2002 12/27/2002 01/09/2003
01/21/2003 02/18/2003
02/18/2003
03/19/2003 04/01/2003 06/19/2003 06/26/2003
06/26/2003 06/27/2003 07/01/2003 07/01/2003
07/07/2003 07/07/2003

430 MOTION by All Defendants to strike Karen Wallen's motion to produce certified copy of defendants' response in opposition to moton for legal representation (dp, Deputy Clerk) (Entered: 11/07/2002)
431 NOTICE of filing partial mediation agreement by All Defendants (dp, Deputy Clerk) (Entered: 11/18/2002)
432 MOTION by Kellieann Wallen to extend time to reply to response to produce and to strike (dp, Deputy Clerk) (Entered: 11/19/2002)
433 STATUS REPORT by Edward B. Davis (lh, Deputy Clerk) (Entered: 12/03/2002)
434 STIPULATED MOTION with memorandum in support by All Plaintiffs to extend time period of compliance with settlement agreement , and to withdraw [389−1] corrected motion to continue court's jurisdiction to permit resolution of plaintiffs' claims on the merits (ss, Deputy Clerk) (Entered: 12/06/2002)
435 REPLY by Jennifer Daniels to response to [427−1] motion for legal representation (dp, Deputy Clerk) (Entered: 12/12/2002)
436 RESPONSE by Kellieann Wallen to response in opposition to [427−1] motion for legal representation (ss, Deputy Clerk) (Entered: 12/30/2002)
437 ORDER granting [432−1] motion to extend time to reply to response to produce and to strike ( Signed by Judge Wilkie D. Ferguson Jr. on 1/9/03 nunc pro tunc) [EOD Date: 1/10/03] (dp, Deputy Clerk) (Entered: 01/10/2003)
438 NOTICE of Change of Address of Attorney by All Defendants (dp, Deputy Clerk) (Entered: 01/22/2003)
439 RESPONSE by Kellieann Wallen to [430−1] motion to strike Karen Wallen's motion to produce certified copy of defendants' response in opposition to moton for legal representation (dp, Deputy Clerk) (Entered: 02/19/2003)
440 RESPONSE by Jennifer Daniels to [430−1] motion to strike Karen Wallen's motion to produce certified copy of defendants' response in opposition to moton for legal representation (dp, Deputy Clerk) (Entered: 02/19/2003)
441 MOTION by Karen Wallen and Mary Daniels for court ordered medation (dp, Deputy Clerk) (Entered: 03/20/2003)
442 MOTION by Kellieann Wallen to compel production of document , or for sanctions (dp, Deputy Clerk) (Entered: 04/02/2003)
443 NOTICE of Unavailability by All Plaintiffs for dates of: 7/14−7/23 (dp, Deputy Clerk) (Entered: 06/20/2003)
445 CLERK'S NOTICE OF REASSIGNMENT OF CLOSED CASE. Case reassigned to Judge Patricia A. Seitz for all further proceedings. (Former Deputy Clerk) (Entered: 06/27/2003)
Magistrate identification: Magistrate Judge Bandstra (Former Deputy Clerk) (Entered: 06/27/2003)
444 MOTION by All Defendants for reassignment of case (dp, Deputy Clerk) (Entered: 06/27/2003)
446 MOTION by All Plaintiffs for leave to file memorandum of law in excess of twenty pages in length (ct, Deputy Clerk) (Entered: 07/02/2003)
447 NOTICE of filing facsimile copy of second seuuplemental declaration of Pat Wear, II dated June 30, 2003 and Development Services waiver services Florida Medicaid coverage and limitations handbook by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/02/2003)
448 NOTICE of filing second supplemental declaration of Pat Wear II by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/08/2003)
449 SECOND SUPPLEMETAL DECLARATION OF PAT WEAR II by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/08/2003)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 36 of 41

07/11/2003 07/16/2003 07/18/2003 08/08/2003 08/08/2003 08/11/2003 08/11/2003 08/11/2003 08/11/2003 08/13/2003
08/13/2003
08/14/2003 08/14/2003
08/18/2003 08/20/2003 08/25/2003 08/28/2003 08/29/2003

450 ORDER granting [446−1] motion for leave to file memorandum of law in excess of twenty pages in length ( Signed by Judge Patricia A. Seitz on 7/10/03) [EOD Date: 7/14/03] (ct, Deputy Clerk) (Entered: 07/14/2003)
451 MOTION with memorandum in support by All Defendants to extend time to respond to motion to continue jurisdiction (dp, Deputy Clerk) (Entered: 07/17/2003)
452 ORDER granting [451−1] motion to extend time to respond to motion to continue jurisdiction ( Signed by Magistrate Ted E. Bandstra on 7/17/03) [EOD Date: 7/21/03] (ct, Deputy Clerk) (Entered: 07/21/2003)
453 NOTICE of filing documents in opposition to Plaintifffs' motion to continue jurisdiction based on material breach of the Settlement Agreement by All Defendants (ct, Deputy Clerk) (Entered: 08/11/2003)
454 REQUEST for judicial notice by All Defendants (ct, Deputy Clerk) (Entered: 08/11/2003)
455 MEMORANDUM by All Defendants in opposition to motion to continue jurisdiction based on material breach of the settlement agreement (motion not found on docket) (ct, Deputy Clerk) (Entered: 08/12/2003)
456 NOTICE of conferring with counsel regarding defendants' request for judicial notice by All Defendants (ct, Deputy Clerk) (Entered: 08/12/2003)
457 MOTION by All Defendants for leave to file memorandum in opposition in excess of page limitation (ct, Deputy Clerk) (Entered: 08/12/2003)
458 MOTION by All Defendants for Hearing on motion to continue the Court jurisdiction based on material breach of settlement agreement (ct, Deputy Clerk) (Entered: 08/12/2003)
459 ORDER denying as moot [434−1] motion to extend time period of compliance with settlement agreement, denying as moot [434−2] motion to withdraw [389−1] corrected motion to continue court's jurisdiction to permit resolution of plaintiffs' claims on the merits ( Signed by Judge Patricia A. Seitz on 8/12/03) [EOD Date: 8/14/03] (ct, Deputy Clerk) (Entered: 08/14/2003)
460 AMENDED UNOPPOSED MOTION by All Defendants for leave to file memorandum in opposition in excess of page limitation referring to [457−1] motion for leave to file memorandum in opposition in excess of limitation (ct, Deputy Clerk) Modified on 08/14/2003 (Entered: 08/14/2003)
461 NOTICE of filing letters by Samuel Brola (ct, Deputy Clerk) (Entered: 08/15/2003)
462 ORDER denying [430−1] motion to strike Karen Wallen's motion to produce certified copy of defendants' response in opposition to moton for legal representation, denying as moot [427−1] motion for legal representation ( Signed by Judge Patricia A. Seitz on 8/13/03) [EOD Date: 8/15/03] (ct, Deputy Clerk) (Entered: 08/15/2003)
463 MOTION with memorandum in support by All Plaintiffs to extend time to file reply to on or before August 29, 2003 (ct, Deputy Clerk) (Entered: 08/19/2003)
464 ORDER granting [463−1] motion to extend time to file reply to on or before August 29, 2003 ( Signed by Judge Patricia A. Seitz on 8/19/03) [EOD Date: 8/21/03] (tb, Deputy Clerk) (Entered: 08/21/2003)
465 NOTICE to Court of no opposition to plaintiffs' motion for enlargement of time to file reply and memorandum on law by All Plaintiffs (ct, Deputy Clerk) (Entered: 08/26/2003)
466 SECOND MOTION with memorandum in support by All Plaintiffs to extend time to file reply (tb, Deputy Clerk) (Entered: 08/29/2003)
467 MOTION by Samuel Brola for Court to consider David L. Bissonette case as evidence of material breach of the settlement agreement and Court to retain jurisdiction (ct, Deputy Clerk) (Entered: 09/02/2003)

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09/02/2003 09/15/2003 09/18/2003 09/18/2003 09/19/2003
09/19/2003
09/22/2003
09/24/2003 09/24/2003 10/07/2003 11/10/2003 11/26/2003 11/26/2003 11/26/2003 02/02/2004 02/09/2004

468 ORDER granting [466−1] motion to extend time to file reply ( Signed by Judge Patricia A. Seitz on 8/29/03) [EOD Date: 9/3/03] (ct, Deputy Clerk) (Entered: 09/03/2003)
469 MOTION by Jennifer Daniels, Kellieann Wallen to compel production of documents, findings of facts and conclusion of law , and to extend time respond to the defendants responses (tb, Deputy Clerk) (Entered: 09/16/2003)
470 UNOPPOSED MOTION with memorandum in support by All Plaintiffs for leave to file reply and memorandum of law in excess of ten pages in length (tb, Deputy Clerk) (Entered: 09/19/2003)
471 UNOPPOSED THIRD MOTION by All Plaintiffs to extend time to file reply and memorandum of law (tb, Deputy Clerk) (Entered: 09/19/2003)
472 RESPONSE by Samuel Brola to strike, or in the alternative, response in opposition to the motion for Court to consider David L. Bissonette case as evidence of material breach of the settlement agreement and Court to retain jurisdiction (motion not found on docket) (ct, Deputy Clerk) (Entered: 09/22/2003)
474 MOTION by All Defendants to strike, or, in the alternative, response in opposition to the [467−1] motion for Court to consider David L. Bissonette case as evidence of material breach of the settlement agreement and Court to retain jurisdiction (th, Deputy Clerk) (Entered: 09/23/2003)
473 ORDER granting [471−1] motion to extend time to file reply and memorandum of law, granting [470−1] motion for leave to file reply and memorandum of law in excess of ten pages in length ( Signed by Judge Patricia A. Seitz on 9/19/03) [EOD Date: 9/23/03] (dg, Deputy Clerk) (Entered: 09/23/2003)
475 NOTICE of Unavailability by All Defendants for dates of: 11/26/03 through 12/2/03 (wc, Deputy Clerk) (Entered: 09/25/2003)
476 NOTICE To Court of intention that Defendant's Motion to Strike, etc. serve as a response to the Motion to Permit Samuel Brola to Represent and Speak for David L. Bissonette, etc. by All Defendants (wc, Deputy Clerk) (Entered: 09/25/2003)
477 REPLY by All Plaintiffs to response to motion to continue jurisdiction based on material breach of the settlement agreement (ct, Deputy Clerk) (Entered: 10/08/2003)
478 MEMORANDUM by Samuel Brola in support of [467−1] motion for Court to consider David L. Bissonette case as evidence of material breach of the settlement agreement and Court to retain jurisdiction (ct, Deputy Clerk) (Entered: 11/12/2003)
479 NOTICE of Unavailability by All Defendants for dates of: 12/22/03−1/2/04 (ct, Deputy Clerk) (Entered: 12/01/2003)
480 RESPONSE by All Defendants in opposition to [478−1] support memorandum (ct, Deputy Clerk) (Entered: 12/01/2003)
480 MOTION by All Defendants to strike [478−1] support memorandum (ct, Deputy Clerk) (Entered: 12/01/2003)
481 NOTICE of Unavailability by All Defendants for dates of: 7/28/04−8/5/04 (ct, Deputy Clerk) (Entered: 02/03/2004)
482 ORDER scheduling hearing on plaintiff's motion to continue jurisdiction based on material breach of the settlement agreement and administrative order on pending motions set motion hearing on plaintiff's motion to continue for 9:00 3/3/04 before Judge Patricia A. Seitz striking [444−1] motion for reassignment of case, striking [442−1] motion to compel production of document, striking [442−2] motion for sanctions, striking [441−1] motion for court ordered medation denying [457−1] motion for leave to file memorandum in opposition in excess of page limitation granting [458−1] motion for Hearing on motion to continue the Court jurisdiction based on material breach of settlement agreement granting [460−1] motion for leave to file memorandum in opposition in excess of page limitation ( Signed by Judge Patricia A. Seitz on 2/9/04) [EOD Date: 2/10/04] (ct, Deputy Clerk) (Entered: 02/10/2004)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 38 of 41

02/23/2004 02/23/2004 03/02/2004 03/02/2004 03/03/2004 03/04/2004 03/04/2004
03/08/2004 03/11/2004 03/30/2004
04/15/2004 04/16/2004 04/16/2004 04/16/2004 04/16/2004 04/16/2004 04/16/2004 04/19/2004 04/21/2004 04/21/2004

483 Renewal of MOTION by All Plaintiffs (Attorney ) for attorney fees (ct, Deputy Clerk) (Entered: 02/24/2004)
484 JOINT STATUS REPORT by All Plaintiffs, All Defendants (ct, Deputy Clerk) (Entered: 02/24/2004)
485 NOTICE of filing documents by Gail French (ct, Deputy Clerk) (Entered: 03/03/2004)
486 MEMORANDUM by Samuel Brola in support of [467−1] motion for Court to consider David L. Bissonette case as evidence of material breach of the settlement agreement and Court to retain jurisdiction (ct, Deputy Clerk) (Entered: 03/03/2004)
Motion hearing re: [467−1] motion for Court to consider David L. Bissonette case as evidence of material breach of the settlement agreement and Court to retain jurisdiction (ct, Deputy Clerk) (Entered: 03/05/2004)
487 Minutes of motion hearing held before Judge Patricia A. Seitz on 3/3/04; Court Reporter Name or Tape #: D. Ehrlich (ct, Deputy Clerk) (Entered: 03/05/2004)
488 ORDER on the March 3, 2004 hearing on Plaintiffs' motion to continue jurisdiction based on material breach of the settlement agreement. See Order for details. ( Signed by Judge Patricia A. Seitz on 3/3/04) [EOD Date: 3/5/04] (ct, Deputy Clerk) (Entered: 03/05/2004)
489 NOTICE to the Court regarding the DS waiver handbook issue by All Plaintiffs (ct, Deputy Clerk) (Entered: 03/09/2004)
490 NOTICE of filing (attached) notice of rule development by All Defendants (ct, Deputy Clerk) (Entered: 03/12/2004)
491 ORDER denying [467−1] motion for Court to continue jurisdiction based on material breach of the settlement agreement and Court to retain jurisdiction denying [483−1] motion for attorney fees, denying [343−1] motion for attorney fees ( Signed by Judge Patricia A. on 3/30/04) [EOD Date: 3/31/04] (ct, Deputy Clerk) (Entered: 03/31/2004)
492 MEMORANDUM by All Plaintiffs in support of [483−1] motion for attorney fees (ct, Deputy Clerk) (Entered: 04/16/2004)
493 VERIFIED AND UPDATED MOTION by All Plaintiffs (Attorney ) for attorney fees and costs (ct, Deputy Clerk) (Entered: 04/19/2004)
494 NOTICE OF FILING EXHIBITS to: [493−1] motion for attorney fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 04/19/2004)
495 NOTICE of filing index to exhibits filed in support of plaintiffs' motion for attorneys fees and litigation expenses by All Plaintiffs (ct, Deputy Clerk) (Entered: 04/19/2004)
496 Notice of filing Volume 2 of EXHIBITS to: [493−1] motion for attorney fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 04/19/2004)
497 Notice of filing volume 3 of EXHIBITS to: [493−1] motion for attorney fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 04/19/2004)
498 Notice of filing volume 4 of EXHIBITS to: [493−1] motion for attorney fees and costs by All Plaintiffs (ct, Deputy Clerk) Modified on 05/26/2004 (Entered: 04/19/2004)
499 AMENDED CERTIFICATE OF SERVICE by All Plaintiffs (ct, Deputy Clerk) (Entered: 04/20/2004)
500 Certification Regarding meet and confer for fees and costs (local rule 7.3) by All Plaintiffs (ra, Deputy Clerk) (Entered: 04/21/2004)
500 REQUEST by All Plaintiffs for Evidentiary Hearing (ra, Deputy Clerk) (Entered: 04/21/2004)

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04/30/2004 05/03/2004 05/04/2004 05/04/2004
05/26/2004 06/09/2004 06/14/2004 06/16/2004 06/28/2004 06/28/2004 06/29/2004 06/29/2004 06/29/2004 06/29/2004 07/01/2004 07/08/2004 07/08/2004
07/08/2004 07/08/2004

501 ORDER SCHEDULING MEDIATION before Mediator: Edward Davis for 5/18/04 at 9:30 ( Signed by Judge Patricia A. Seitz on 4/29/04) [EOD Date: 5/3/04] (ct, Deputy Clerk) (Entered: 05/03/2004)
502 UNOPPOSED MOTION by All Defendants (Attorney ) to extend time to respond to motion for attorney's fees and cost (ct, Deputy Clerk) (Entered: 05/04/2004)
503 ORDER granting [502−1] motion to extend time to respond to motion for attorney's fees and cost ( Signed by Judge Patricia A. Seitz on 5/3/04) [EOD Date: 5/5/04] (ct, Deputy Clerk) (Entered: 05/05/2004)
504 ORDER striking [469−1] motion to compel production of documents, findings of facts and conclusion of law, [469−2] motion to extend time respond to the defendants responses denying as moot [474−1] motion to strike, or, in the alternative, response in opposition to the [467−1] motion for Court to consider David L. Bissonette case as evidence of material breach of the settlement agreement and Court to retain jurisdiction ( Signed by Judge Patricia A. Seitz on 5/3/04) [EOD Date: 5/5/04] (ct, Deputy Clerk) (Entered: 05/05/2004)
505 NOTICE of Unavailability by All Plaintiffs for dates of: 7/19/04−7/23/04 (ct, Deputy Clerk) (Entered: 05/27/2004)
506 NOTICE of correction to plaintiffs' verified and updated motion for an award of attorney's fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 06/09/2004)
507 Unopposed second MOTION by All Defendants (Attorney ) to extend time to respond to motion for attorney's fee and costs (ct, Deputy Clerk) (Entered: 06/15/2004)
508 ORDER granting [507−1] motion to extend time to respond to motion for attorney's fee and costs ( Signed by Judge Patricia A. Seitz on 6/16/04) [EOD Date: 6/17/04] (ct, Deputy Clerk) (Entered: 06/17/2004)
509 NOTICE of filing attached documents 1−14 by All Defendants (ct, Deputy Clerk) (Entered: 06/29/2004)
510 2nd NOTICE of attached documets 1−2 by All Defendants (ct, Deputy Clerk) (Entered: 06/29/2004)
511 MOTION by All Defendants (Attorney ) for leave to file response in opposition to motion for attorneys' fees in excess of page limits (ct, Deputy Clerk) (Entered: 06/30/2004)
512 Third NOTICE of filing declaration of Sheridan Weissenbord and report of law by All Defendants (ct, Deputy Clerk) (Entered: 06/30/2004)
513 Declaration of Sheridan K. Weissenborn by All Defendants (ct, Deputy Clerk) (Entered: 06/30/2004)
514 RESPONSE by All Defendants to [493−1] motion for attorney fees and costs (ct, Deputy Clerk) (Entered: 06/30/2004)
515 Amended CERTIFICATE OF SERVICE for defendant's second notice of filing by All Defendants (ct, Deputy Clerk) (Entered: 07/02/2004)
516 UNOPPOSED MOTION by All Defendants (Attorney ) to exceed page limitation (ct, Deputy Clerk) (Entered: 07/09/2004)
517 NOTICE of fully executed duplicate originals of defendants unopposed motion to excess page limitation, response to plaintiffs' updated and verified motion for an award of attorneys' fees and litigation costs, and third notice of filing by All Defendants (ct, Deputy Clerk) Modified on 07/09/2004 (Entered: 07/09/2004)
518 Third NOTICE of filing by All Defendants (ct, Deputy Clerk) (Entered: 07/09/2004)
519 RESPONSE by All Defendants to [493−1] motion for attorney fees and costs (ct, Deputy Clerk) (Entered: 07/09/2004)

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 40 of 41

07/08/2004 07/12/2004 07/15/2004 07/19/2004 07/19/2004 07/19/2004 07/19/2004 07/19/2004 07/20/2004 07/21/2004 07/21/2004 07/22/2004 07/22/2004
07/27/2004 07/27/2004 07/27/2004 07/28/2004
09/16/2004 09/24/2004

520 NOTICE of attached declaration of Richard H. Law by All Defendants (ct, Deputy Clerk) (Entered: 07/09/2004)
521 UNOPPOSED MOTION by Advocacy Center (Attorney ) to extend time to reply to motion for attorneys' fees (ct, Deputy Clerk) (Entered: 07/12/2004)
522 Transcript filed re: Argument on Motions held 03/03/04 before Judge Patricia A. Seitz, J. Volume #: I Pages: 1−122 by Jeb Bush (vl, Deputy Clerk) (Entered: 07/16/2004)
523 UNOPPOSED MOTION by All Plaintiffs (Attorney ) for leave to file long reply to defendants' response in opposition to verified and updated motion for an award of attorneys' fees and costs (ct, Deputy Clerk) (Entered: 07/20/2004)
524 REPLY by All Plaintiffs to response to [493−1] motion for attorney fees and costs (ct, Deputy Clerk) (Entered: 07/20/2004)
525 Notice of filing volume 5 of EXHIBITS to: [493−1] motion for attorney fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/20/2004)
526 Notice of filing volume 6 of EXHIBITS to: [493−1] motion for attorney fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/20/2004)
527 Notice of filing volume 7 of EXHIBITS to: [493−1] motion for attorney fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/20/2004)
528 Second Declaration of Ellen M. Saideman by All Plaintiffs Re: [493−1] motion for attorney fees and costs (ct, Deputy Clerk) (Entered: 07/21/2004)
529 NOTICE of filing original declaration of Richard Law by All Defendants (ct, Deputy Clerk) (Entered: 07/22/2004)
530 Declaration of Richard H. Law by All Defendants (ct, Deputy Clerk) (Entered: 07/22/2004)
531 Index to EXHIBITS to: [524−1] response reply by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/23/2004)
532 CORRECTED UNOPPOSED MOTION by All Plaintiffs for leave to file long reply to defendants' response in opposition to verified and updated motion for an award of attorneys' fees and costs referring to [523−1] motion for leave to file long reply to defendants' response in opposition to verified and updated motion for an award of attorneys' fees and costs (ct, Deputy Clerk) (Entered: 07/23/2004)
533 CORRECTED NOTICE of filing voulme #8 of exhibits in support of support of plaintiffs' reply to moiton for attorneys' fees and costs by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/28/2004)
534 NOTICE of filing corrected second declaration of Ellen M. Saidman re: plaintiffs' updated motion for arttornys' fees by All Plaintiffs (ct, Deputy Clerk) (Entered: 07/28/2004)
535 Corrected second declaration of Ellen M. Saideman by All Plaintiffs Re: [493−1] motion for attorney fees and costs (ct, Deputy Clerk) (Entered: 07/28/2004)
536 ADMINISTRATIVE ORDER denying [511−1] motion for leave to file response in opposition to motion for attorneys' fees in excess of page limits granting [516−1] motion to exceed page limitation granting [521−1] motion to extend time to reply to motion for attorneys' fees denying [523−1] motion for leave to long reply to defendants' response in opposition to and updated motion for an award of attorneys' fees and costs granting [532−1] motion for leave to file long reply defendants' response in opposition to verified and updated motion for an award of attorneys' fees and costs, granting [532−2] amended motion ( Signed by Judge Patricia A. Seitz on 7/28/04) [EOD Date: 7/29/04] (ct, Deputy Clerk) (Entered: 07/29/2004)
537 AMENDED MOTION by All Plaintiffs for Evidentiary Hearing referring to [500−1] motion for Evidentiary Hearing (ct, Deputy Clerk) (Entered: 09/17/2004)
538 ORDER OF REFERENCE Referring Motion(s) [493−1] motion for attorney fees and costs referred to Judge Patricia A. Seitz ( signed by Judge Patricia A. Seitz on

Case: 0:98-cv-6496 As of: 01/31/2011 08:03 PM EST 41 of 41

10/04/2004 10/08/2004 10/20/2004
10/29/2004 10/29/2004 09/08/2005

9/23/04) [EOD Date: 9/27/04] (ct, Deputy Clerk) (Entered: 09/27/2004)
539 NOTICE of non−consent to trial and final disposition by the Magistrate by All Plaintiffs (gz, Deputy Clerk) (Entered: 10/06/2004)
540 FINAL report of Mediator. Disposition: Settled (ct, Deputy Clerk) (Entered: 10/12/2004)
541 ORDER setting deadline for parties to file settlement documents and denying [537−1] motion for Evidentiary Hearing, denying [537−2] amended motion, denying [500−1] motion for Evidentiary Hearing, denying [493−1] motion for attorney fees and costs ( Signed by Judge Patricia A. Seitz on 10/20/04) [EOD Date: 10/21/04] (ct, Deputy Clerk) (Entered: 10/21/2004)
542 JOINT NOTICE to Court by All Plaintiffs, All Defendants (ct, Deputy Clerk) (Entered: 11/01/2004)
543 Settlement agreement on attorneys fees and litigation expenses by All Plaintiffs, All Defendants (ct, Deputy Clerk) (Entered: 11/01/2004)
544 ORDER closing case. All pending motions are denied as moot and this case is closed. ( Signed by Judge Patricia A. Seitz on 9/7/05) [EOD Date: 9/9/05] (ct, Deputy Clerk) (Entered: 09/09/2005)

 
 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 99-11034 ________________________

AUGUST 11, 2000
THOMAS K. KAHN CLERK

D. C. Docket No. 98-06496-CV-WDF

WOLF PRADO-STEIMAN, by and through his mother and next friend Laura Prado, M.C., by and through his mother and next friend, et al.,
versus

Plaintiffs-Appellees,

JEB BUSH, in his official capacity as Governor and Chief Executive of the State of Florida, KATHLEEN KEARNEY, in her official capacity as Secretary, Department of Children and Families, et al.,

Defendants-Appellants.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________ (August 11, 2000)

Before EDMONDSON and MARCUS, Circuit Judges, and STROM*, District Judge. MARCUS, Circuit Judge:

*Honorable Lyle E. Strom, U.S. District Judge for the District of Nebraska, sitting by designation.

This is an interlocutory appeal from a class certification order. It also marks our first opportunity to explicate the circumstances in which a court of appeals should exercise its discretion to accept such an appeal under Federal Rule of Civil Procedure 23(f).
Defendants, Governor Jeb Bush and other named state officials, appeal the district court’s order certifying a broad class of developmentally-disabled persons eligible for Florida’s Home and Community Based Waiver Program, which provides Medicaid-related services in home- and community-based settings to individuals who meet certain level-of-care requirements. All parties agree that some kind of class or classes should be certified, but Defendants contend that the single class certified by the district court was too broad. Defendants specifically assert that Plaintiffs have not demonstrated that the claims of the named class representatives possess the requisite typicality with the claims of the class at large as required by Fed. R. Civ. P. 23(a). We agree and vacate the class certification order. On remand, the district court must ensure that at least one of the named class representatives possesses the requisite individual or associational standing to bring each of the class’s legal claims.
2

I.
A.
The named plaintiffs are individuals with developmental disabilities who
meet the level-of-care requirements of an intermediate care facility for individuals
with developmental disabilities (“ICF/DD”) under the Medicaid Act, Title XIX of
the Social Security Act, 42 U.S.C. § 1396, et seq.1 Medicaid is a cooperative
federal-state program through which the federal government furnishes financial
assistance to the states so that the states may provide necessary medical,
rehabilitation, and other services to low-income persons. At present, the federal
government pays for about 55% of the cost of Medicaid services in Florida. State
participation in Medicaid is voluntary, but participating states must comply with
1Under the ICF/DD program:
Each client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services . . ., that is directed toward –
(i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and
(ii) The prevention or deceleration of regression or loss of current optimal functional status.
42 C.F.R. § 483.440(a)(1)(i)-(ii) (1996). The ICF/DD program is restricted to individuals with sufficiently severe mental retardation and related conditions. It is not designed for “generally independent clients who are able to function with little supervision or in the absence of a continuous active treatment program.” 42 C.F.R. § 483.440(a)(2) (1996).
3

certain requirements imposed by the Act as well as regulations promulgated by the Secretary of Health and Human Services (“Secretary”). Those provisions allow state Medicaid plans to apply a “medical necessity” test to all applicants to ensure that applicants receive medical services in order of need. However, state plans are required to provide “an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396(a)(3); see also 42 C.F.R. § 431.200, et seq.
Under the Home and Community Based Services Waiver Act, Title XIX of the Social Security Act, 42 U.S.C. § 1396n(c), Congress has authorized certain persons with developmental disabilities to receive Medicaid services in a community setting rather than in an institutional facility. The Act empowers the Secretary to grant a waiver to a state under which approved costs of home- and community-based services are reimbursed for eligible individuals who otherwise would require care in an ICF/DD facility, but who instead elect to remain in their homes. 42 U.S.C. § 1396n(c). To qualify for a waiver, a state must develop alternative regulatory schemes aimed at lowering the cost of medical assistance
4

while still maintaining the same level of care.2 Florida has chosen to participate in the Medicaid Home and Community Based Waiver Program.3
B. On May 13, 1998, two of the named plaintiffs, Wolf Prado-Steiman and Marlon Christie, filed a class action lawsuit alleging that various Florida state officials in their official capacity, including the Governor and the Secretary of the Department of Children and Families, have acted unlawfully in their governance of Florida’s Home and Community Based Medicaid Waiver Program. Plaintiffs allege violations of the American with Disabilities Act, 42 U.S.C. § 12101, et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a, et seq., 1396n, et seq., and 42 C.F.R. § 431.200; the Due Process Clause; and 42 U.S.C. § 1983. Specifically, Plaintiffs contend that, contrary to federal law, state officials routinely deny or provide without reasonable promptness critical “Home and Community Based Waiver”
2Although the Waiver Act excuses states from satisfying all of the Medicaid Act’s requirements, see 42 U.S.C. § 1396n(c)(3), it does not authorize the Secretary to waive any sections of the Medicaid Act governing the health, safety, or welfare of Medicaid recipients. Moreover, the Secretary may not grant a waiver unless a state provides assurances that its waiver plan includes “necessary safeguards” to protect the health and welfare of individuals provided services under the waiver. 42 U.S.C. § 1396n(c)(2)(A).
3Florida’s Home and Community Based Waiver Program is outlined in detail at Fla. Admin.
Code § 59G-8.200. The specific provisions of this Program are not at issue in this appeal.
5

(“HCBW”) services for Medicaid-eligible, developmentally-disabled persons
based on funding concerns rather than medical necessity concerns.4
Plaintiffs assert that as a result of this policy many developmentally-disabled
persons who desire HCBW services have been forced to reside in institutional
facilities in order to receive Medicaid services. Plaintiffs also allege that
Defendants systematically deny Medicaid-eligible, developmentally-disabled
persons who apply for HCBW services the procedural due process protections
required by the Medicaid Act, including notice of their right to appeal adverse
decisions and to continue receiving benefits pending appeal, as well as the
opportunity for a fair hearing if their claims are denied or not acted upon with
reasonable promptness.5 Plaintiffs seek, among other things, declaratory and
4In Doe v. Chiles, we held that a “federal right to reasonably prompt provision of assistance under section 1396a(a)(8) of the Medicaid Act” exists, and “that this right is enforceable under section 1983.” 136 F.3d 709, 719 (11th Cir. 1998). Under section 1396a(a)(8), “[a] State plan for medical assistance must . . . provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). A corresponding federal regulation requires that the responsible state agency “[f]urnish Medicaid promptly to recipients without any delay caused by the agency’s administrative procedures,” and “[c]ontinue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible.” 42 C.F.R. § 435.930(a)-(b) (1996).
5Federal Medicaid regulations provide that a state “must establish time standards for determining eligibility and inform the applicant of what they are.” 42 C.F.R. § 435.911(a) (1996). These periods are not to exceed “[n]inety days for applicants who apply for Medicaid on the basis of disability” or “[f]orty-five days for all other applicants.” 42 C.F.R. § 435.911(a)(1)-(2) (1996). In addition, the state “must not use the time standard” as “a waiting period.” 42 C.F.R. § 435.911(e)(1) (1996).
6

injunctive relief which would require Defendants to provide necessary HCBW services to eligible persons and to comply with Medicaid procedural requirements in their adjudication and denial of HCBW services.
On July 31, 1998, Plaintiffs amended the complaint by right, adding four new individual plaintiffs, Lucy Adawi, Jennifer Batsidas, Daniel Lavin, and Daniel Shell, and one institutional plaintiff, the Advocacy Center for Disabled Persons, Inc. Plaintiffs then moved for class certification. On January 19, 1999, Plaintiffs sought to amend their complaint a second time to add, among other things, twelve further individual plaintiffs as well as a cause of action to enforce certain sections of the Medicaid Act requiring states participating in Medicaid to provide early and periodic screening, diagnosis, and treatment (“EPSDT”) to eligible persons under the age of 21. On February 19, 1999, the court held a hearing on Plaintiffs’ motion for class certification at which it apparently granted Plaintiffs’ request to file the second amended complaint.
In March 1999, the district court granted the class certification motion. It identified as class representatives all seven of the plaintiffs named in the first amended complaint, but declined to identify as class representatives the twelve
7

new plaintiffs added in the second amended complaint until Defendants could
complete discovery.6 The court defined the class as follows:
6The First Amended Complaint named six individual plaintiff class representatives -- Wolf Prado-Steiman, Lucy Adawi, Marlon Christie, Daniel Lavin, Jennifer Batsidas and Daniel Shell -and one institutional plaintiff class representative -- the Advocacy Center for Persons with Disabilities, Inc. Four of the individual plaintiffs -- Prado-Steiman, Adawi, Christie, and Lavin -have applied for HCBW services but have been denied coverage. The other two individual plaintiffs -- Batsidas and Shell -- currently receive HCBW services they allege are inadequate.
The following facts pertain to each named plaintiff:
(1) Wolf Prado-Steiman
Wolf is an eight year-old autistic boy who lives at home with his family. There is no dispute that he suffers from severe behavioral problems as a result of his disability. Plaintiffs contend that Wolf, having no assets or income, would be eligible for a HCBW waiver. He has applied for HCBW services and received no written determination on his claim. After this suit was filed, Defendants agreed to pay for 12 behavioral therapy sessions. In an institutional setting, his care would be ongoing.
(2) Lucy Adawi
Lucy is a fifty year-old mildly retarded woman with a schizoaffective disorder who lives with her 80 year-old mother. She applied for HCBW services but has received only $44 of necessary medical supplies
(3) Marlon Christie
Marlon Christie is an 18 year-old man with cerebral palsy who must sleep on the floor because he lacks an appropriate bed at home. He applied for HCBW services but was told there is a long waiting list and no available services.
(4) Daniel Lavin
Daniel Lavin is a 22 year-old man with severe mental retardation and cerebral palsy who needs bathroom modifications to make the room handicap-accessible. He applied for HCBW services but has received no services as yet due to his low priority rating on the waiting list. He has not received written notice of a denial of his request.
(5) Jennifer Batsidas 8

[A]ll persons with developmental disabilities who are presently receiving Home and Community-Based Waiver Services or who are eligible to receive Home and Community-Based Waiver Services, or who would receive or be eligible for Home and Community-Based Waiver Services in the future.
The district court also identified ten substantive, classwide claims:
a. whether Defendants have violated the ADA by denying individuals, who live in their own homes or with their families in community settings, services such as physical therapy, speech therapy, and dental services that are available to individuals who are ICF/DD’s;
b. whether Defendants have violated the ADA by engaging in diagnosis-based decision-making with their actions to deny or limit access to benefits, services, and opportunities because a person has a particular disability;
c. whether Defendants have violated § 504 of the Rehabilitation Act of 1973;
Jennifer Batsidas is a quadriplegic with cerebral palsy. She applied for HCBW services in January 1998 and was not placed on a waiver until October 1998 due to a lack of state funds. She received these funds only after a district coordinator identified her needs as “critical.” She presently receives funds on a “funds available basis.” She alleges that the vocational services she receives from the HCBW Program are inadequate.
(6) Daniel Shell
Daniel Shell is a 32 year-old man with moderate mental retardation and cerebral palsy currently receiving HCBW services in the form of a vocational service workshop. He allegedly has been denied physical therapy equipment recommended by his physician to treat his movement disorder. The equipment was requested in March 1998 and a hearing was not scheduled until January 1999. No hearing decision has yet been made. Shell alleges the services currently provided to him are inadequate.
9

d. whether Defendants have violated the Medicaid statute’s requirement of reasonable promptness, 42 U.S.C. § 1396a(8) and 42 U.S.C. § 1983, by failing to provide Medicaid Waiver Services with reasonable promptness;
e. whether Defendants have violated 42 U.S.C. § 1396n and 42 U.S.C. § 1983, by providing inadequate and inappropriate Home and Community-Based Waiver Services;
f. whether Defendants have violated 42 U.S.C. § 1396n and 42 U.S.C. § 1983, by funding institutional placements using Home and Community-Based Waiver Services;
g. whether Defendants have violated 42 U.S.C. § 1396n(c)(2) and 42 U.S.C. § 1983, by denying Plaintiffs their freedom of choice of an appropriate Home and Community-Based Waiver program that meets their health and welfare needs;
h. whether Defendants have violated Medicaid’s statewideness requirement, 42 U.S.C. § 1396a(a)(1), and 42 U.S.C. § 1983, by failing to provide Home and Community-Based Waiver services throughout the State of Florida;
i. whether Defendants have violated Medicaid’s EPSDT requirements, violated 42 U.S.C. § 1396(a)(43)(C) and 42 U.S.C. § 1983, by failing to provide needed EPSDT services directly and to ensure that there are providers who are qualified and willing to provide EPSDT services for children with developmental disabilities;
j. whether Defendants have violated the Due Process Clause of the U.S. Constitution and 42 U.S.C. § 1983, by denying Plaintiffs and class members procedural due
10

process, including notice and the opportunity for a fair hearing to challenge denials, reductions, and termination of Home and Community-Based Waiver benefits. Applying the prerequisites for class certification required by Federal Rule of Civil Procedure 23(a), the district court concluded: first, that there were over 20,000 estimated class members, satisfying Rule 23(a)(1) numerosity’s requirement; second, that there was sufficient commonality between the questions of law and fact posed by the class suit despite the class members’ varying medical conditions, satisfying Rule 23(a)(2)’s commonality requirement; third, that there was a sufficient nexus between these common questions of law and fact and the named representatives’ claims, satisfying Rule 23(a)(3)’s typicality requirement; and finally, that the named representatives satisfied Rule 23(a)(4)’s adequacy of representation requirement. The district court also concluded that class status was warranted under Rule 23(b)(2) because the class requested injunctive relief and Defendants had generally refused to act on grounds applicable to the class. Defendants then petitioned our court pursuant to Federal Rule of Civil Procedure 23(f) for an interlocutory appeal of the district court’s class certification order. We granted that petition on May 12, 1999, having taken into account the matters set forth below.
II.
11

We start by discussing Federal Rule of Civil Procedure 23(f), which allows federal courts of appeals to hear an interlocutory appeal of a district court’s order granting or denying class certification. The Rule, which became effective on December 1, 1998, reads as follows:
A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. Fed. R. Civ. P. 23(f). This case is the first published opinion in this circuit, and one of the first in the nation, to address the standards to be used when evaluating a Rule 23(f) petition. Thus far, only the First and Seventh Circuits have explored this question in detail. See Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288 (1st Cir. 2000); Blair v. Equifax Check Services, Inc., 181 F.3d 832 (7th Cir. 1999). We therefore begin our discussion with background on Rule 23(f), and then set forth some guideposts for evaluating when we should permit a Rule 23(f) appeal.
A. A good starting point is the Committee Note accompanying Rule 23(f), which articulates the drafters’ view of how courts should resolve petitions for appeal under this new rule. The Note emphasizes that “the court of appeals is
12

given unfettered discretion whether to permit the appeal, akin to the discretion
exercised by the Supreme Court in acting on a petition for certiorari. . . .
Permission to appeal may be granted or denied on the basis of any consideration
that the court of appeals finds persuasive.” Id. The Note then observes that
“[p]ermission [to appeal] is most likely to be granted when the certification
decision turns on a novel or unsettled question of law, or when, as a practical
matter, the decision on certification is likely dispositive of the litigation.” Id.
According to the Note:
[M]any suits with class-action allegations present familiar and almost routine issues that are no more worthy of immediate appeal than many other interlocutory rulings. Yet several concerns justify expansion of present opportunities to appeal. An order denying certification may confront the plaintiff with a situation in which the only sure path to appellate review is by proceeding to final judgment on the merits of an individual claim that, standing alone, is far smaller than the costs of litigation. An order granting certification, on the other hand, may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability.
Id.
As summarized by the First Circuit, Rule 23(f) serves two key purposes:
first, to provide a “mechanism through which appellate courts, in the interests of
fairness, can restore equilibrium when a doubtful class certification ruling would
13

virtually compel a party to abandon a potentially meritorious claim or defense
before trial”; and second, to “furnish[] an avenue, if the need is sufficiently acute,
whereby the court of appeals can take earlier-than-usual cognizance of important,
unsettled legal questions, thus contributing to both the orderly progress of complex
litigation and the orderly development of the law.” Mowbray, 208 F.3d at 293.
Based on these purposes, the Seventh Circuit in Blair outlined three
categories of cases for which Rule 23(f) review may be appropriate. As
summarized in Mowbray:
First, an appeal ordinarily should be permitted when a denial of class status effectively ends the case (because, say, the named plaintiff’s claim is not of a sufficient magnitude to warrant the costs of stand-alone litigation). Second, an appeal ordinarily should be permitted when the grant of class status raises the stakes of the litigation so substantially that the defendant likely will feel irresistible pressure to settle. Third, an appeal ordinarily should be permitted when it will lead to clarification of a fundamental issue of law.
Id.
The Seventh Circuit put additional gloss on these three broad categories. It
explained that a petitioner who sought to invoke either of the first two categories
also would have to “demonstrate that the district court’s ruling on class
certification is questionable -- and must do this taking into account the discretion
the district judge possesses in implementing Rule 23, and the correspondingly
14

deferential standard of appellate review.” Blair, 181 F.3d at 835. The court further observed that when reviewing petitions invoking the third and final category, it would focus on the importance of the issue to be resolved, more so than the likelihood of reversal. See id. Finally, it noted that even when an application touts a supposedly fundamental issue of law, a showing that an end-of-case appeal promises to be an adequate remedy will weigh heavily against granting a Rule 23(f) application. See id.
Recently, the First Circuit adopted Blair’s Rule 23(f) taxonomy as “structurally sound” with one notable caveat. Mowbray, 208 F.3d at 294. The Mowbray court worried, we think rightly, that the third Blair category might “encourage too many disappointed litigants to file fruitless Rule 23(f) applications” since “a creative lawyer almost always will be able to argue that deciding her case would clarify some ‘fundamental’ issue.” Id. The First Circuit then emphasized that “interlocutory appeals should be the exception, not the rule” because “many (if not most) class certification decisions turn on ‘familiar and almost routine issues.’” Id. (citing Comm. Note, Fed. R. Civ. P. 23(f)). As a result, the Mowbray court concluded that “Blair’s third category should be restricted to those instances in which an appeal will permit the resolution of an unsettled legal issue that is
15

important to the particular litigation as well as important in itself and likely to escape effective review if left hanging until the end of the case.” Id.
We find both the Blair and Mowbray opinions to be cogent explications of the Rule 23(f) inquiry. We think it important, however, to emphasize some additional considerations that may weigh against frequent interlocutory appellate review of class action certification decisions.
To begin with, there are too many class actions filed each year for federal appeals courts practicably to adjudicate class certification decisions on an interlocutory basis as a matter of course. As a statistical point of reference, we observe that according to the Federal Judicial Center, as of 1998 there were 1,742 active federal cases with class action activity. In 1994, there were only 816 such cases. A similar rise is reported for this Circuit; in 1998, according to the data, there were 221 active cases in this Circuit with class action activity, almost double the number of such cases, 114, during 1994.7 Given these numbers, and the large volume of ordinary final judgments that by law must be considered by the courts of appeals, routinely granting interlocutory appellate review of class certification decisions is simply not practicable.
7These figures are not published in printed form, but are derived from information in the databases of the Federal Judicial Center in Washington, D.C.
16

There are also powerful case management concerns that caution against routinely granting appellate review in these circumstances. Class certification orders also are not final judgments impervious to lower court review and revision. On the contrary, Rule 23(c)(1) specifically empowers district courts to alter or amend class certification orders at any time prior to a decision on the merits. That power is critical, because the scope and contour of a class may change radically as discovery progresses and more information is gathered about the nature of the putative class members’ claims.8 Indeed, Rule 23 contemplates that the class certification decision will be made prior to the close of discovery. Fed. R. Civ. P. 23(c)(1) (class status should be resolved “[a]s soon as practicable after the commencement of” the action); see also Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1389 (11th Cir. 1998) (en banc) (citing data showing that most class certification decisions are made in the early stages of the litigation). Rule 23(f) should not be a vehicle for courts of appeals to micro-manage complex class action litigation as it unfolds in the district court.
Moreover, interlocutory appellate review of a class certification decision may short-circuit the district court’s ability -- or at least willingness -- to exercise
8Rule 23(f) states expressly that an appeal under this provision does not stay proceedings in the district court unless the district court or the court of appeals so orders. Thus, Rule 23(f) contemplates that in most cases discovery (at the very least, merits discovery) will continue notwithstanding the pendency of an appeal of the class certification order.
17

its power to reconsider its certification decision. If a decision on class certification has been fully reviewed and affirmed on an interlocutory basis, both the parties and the district judge may feel constrained from revisiting the issue and thereby potentially triggering a new round of appellate proceedings with the inevitable delay and effort of such proceedings. This possibility is troubling, because class certification determinations are so fluid and fact-sensitive that district courts should be encouraged rather than discouraged from reassessing whether the prerequisites of Rule 23 exist and whether a class action is the most efficacious way to resolve the dispute. Quite simply, “[w]e should err, if at all, on the side of allowing the district court an opportunity to fine-tune its class certification order rather than opening the door too widely to interlocutory appellate review.” Mowbray, 208 F.3d at 294 (citing Fed. R. Civ. P. 23(c)(1)) (internal citation omitted).
Finally, authorizing interlocutory review simply on the basis of a so-called “fundamental” or “unsettled” question of law sets a difficult precedent. We share the First Circuit’s concern over encouraging a flood of Rule 23(f) petitions claiming that such a question is in dispute. Given the stakes of class action litigation, and the vast number of persons affected, many routine issues have the potential to take on substantial proportions and assume an importance they
18

otherwise might not. Moreover, given the highly particularized nature of class action determinations, and the lack of case law applying Rule 23 in many contexts, we imagine it relatively easy for a litigant to identify some question of law implicated by the class certification decision and in good faith characterize that question as novel or unsettled. To justify immediate and interlocutory appellate review, something more is necessary -- something that creates a compelling need for resolution of the legal issue sooner rather than later.
Taking into account all of these considerations, the following guideposts may be utilized in determining whether to grant an interlocutory appeal under Rule 23(f).
First, and most important, the court should examine whether the district court’s ruling is likely dispositive of the litigation by creating a “death knell” for either plaintiff or defendant. The prospect of irreparable harm from delaying appellate review of the class certification decision until after final judgment undoubtedly creates a compelling need for immediate review. Nevertheless, even ordinary class certification decisions by their very nature may radically reshape a lawsuit and significantly alter the risk-benefit calculation of the parties, leading to claims of irreparable harm. For that reason, the decision to grant interlocutory review based primarily on this factor generally should be limited to those cases
19

where the district court’s ruling, as a practical matter, effectively prevents the petitioner from pursuing the litigation. This might be the case where a denial of class status means that the stakes are too low for the named plaintiffs to continue the matter, or where the grant of class status raises the cost and stakes of the litigation so substantially that a rational defendant would feel irresistible pressure to settle. The size of the putative class and any record evidence regarding the financial resources of the parties are relevant to this inquiry. Also relevant, especially when a class has been certified in a mass tort case against a corporate defendant, is the existence and potential impact of related litigation against that defendant. The nature of the remedy sought in the case (and in damages cases, the amount of money potentially recoverable) is likewise relevant to this factor. For example, even a large class seeking declaratory or injunctive relief may create less pressure on a defendant than a class seeking compensatory and punitive damages so substantial that they threaten a defendant’s solvency. We anticipate that the number of decisions truly warranting immediate review on this basis alone will be small.
Second, a court should consider whether the petitioner has shown a substantial weakness in the class certification decision, such that the decision likely constitutes an abuse of discretion. Ordinarily, the appropriateness of allowing a
20

Rule 23(f) appeal should turn on more than the outcome of a preliminary debate
about the merits of the district court’s ruling. Interlocutory review may be
appropriate when it promises to spare the parties and the district court the expense
and burden of litigating the matter to final judgment only to have it inevitably
reversed by this Court on an appeal after final judgment. Such a situation may
exist, for example, when the district court expressly applies the incorrect Rule 23
standard or overlooks directly controlling precedent. Cf. Rutstein v. Avis Rent-A-
Car Sys., Inc., 211 F.3d 1228, 1234-35 (11th Cir. 2000) (granting Rule 23(f)
petition and reversing order granting class certification where in light of a prior
Eleventh Circuit opinion “we do not see how plaintiffs can maintain a class action
under Rule 23(b)(3) in the instant case”). In that situation, interlocutory review
may be warranted even if none of the other factors supports granting the Rule 23(f) petition.9 Typically, however, class certification decisions require the application
of broad and flexible legal standards to unique and complex sets of facts that do
9The more the alleged error arises out of a mistake of law (as opposed to an improper application of the law to the facts), the more the case may be susceptible to interlocutory review, simply because such an error is more readily reviewable by this Court and does not require us to base our determination on an evolving factual record that may already have become incomplete. See SunAmerica Corp. v. Sun Life Assur. Co., 77 F.3d 1325, 1333 (11th Cir. 1996) (court necessarily abuses its discretion if it “has applied an incorrect legal standard”); see also Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000) (granting Rule 23(f) petition and applying de novo standard to reverse district court’s interpretation of the adequacy-of-representation test of Rule 23(a)(4)).
21

not fit squarely within prior precedent. Due to the highly fact-sensitive nature of
this inquiry, district courts are given wide latitude to decide whether and how to
certify a class, and appellate scrutiny of such decisions is limited at any stage.
Accordingly, merely demonstrating that the district court’s ruling is questionable
generally will be insufficient to support a Rule 23(f) petition in the absence of
other factors supporting immediate review. See Armstrong, 138 F.3d at 1386
(“class certification decisions are left to the sound discretion of the district court,
and in most cases the certification order can be effectively reviewed on appeal after
final judgment”) (internal citation omitted).10
Third, a court should consider whether the appeal will permit the resolution
of an unsettled legal issue that is “important to the particular litigation as well as
important in itself.” Mowbray, 208 F.3d at 294. Such an issue might be one that is
of moment yet is “likely to escape effective review if left hanging until the end of
the case.” Id. Alternatively, the issue might be one as to which an appellate ruling
10We do not mean to suggest that this factor weighs in favor of a Rule 23(f) appeal only when the party seeking interlocutory review meets the extremely demanding test applied to mandamus petitions. See Armstrong, 138 F.3d at 1386 (prior to Rule 23(f) court would issue writ of mandamus to direct district judge to take particular action regarding a class certification ruling only when the “certification order constitutes, at a minimum, a clear abuse of discretion”). Rather, this factor should be viewed as a sliding scale. The stronger the showing of an abuse of discretion, the more this factor weighs in favor of interlocutory review. We note, however, that every litigant seeking to appeal under Rule 23(f) necessarily believes that the district court has abused its discretion. Accordingly, simply alleging an abuse of discretion may not in and of itself justify an interlocutory appeal.
22

sooner rather than later will substantially assist the bench and bar, as may be the case when an issue is arising simultaneously in related actions involving the same or similarly-situated parties or is one that seems likely to arise repeatedly in the future. The fact that the lawsuit involves a governmental entity, or has a strong public interest component, may also lend the issue particular importance and urgency. Moreover, interlocutory review under Rule 23(f) seems more appropriate if the unsettled issue relates specifically to the requirements of Rule 23 or the mechanics of certifying a class, given that one of the primary justifications for Rule 23(f) was a concern over the perceived lack of a substantial body of case law addressing the Rule 23 standards. See Blair, 181 F.3d at 835. We reiterate, however, that a class certification decision which “turns on case-specific matters of fact and district court discretion,” Comm. Note, Fed. R. Civ. P. 23 -- as most certification decisions indisputably do -- generally will not be appropriate for interlocutory review.
Fourth, a court should consider the nature and status of the litigation before the district court. Some cases plainly will be in a better pre-trial posture for interlocutory appellate review than others. As noted above, the propriety of granting or denying a class, as well as the proper scope of any class that has been granted, may change significantly as new facts are uncovered through discovery.
23

Similarly, a limited or insufficient record may adversely affect the appellate court’s ability to evaluate fully and fairly the class certification decision. Moreover, a district court’s ruling on dispositive motions or a motion to add new class representatives, parties, or claims may significantly redefine the issues in the case and thereby affect the scope of or need for a class. Accordingly, the decision on a Rule 23(f) petition may take into account such considerations as the status of discovery, the pendency of relevant motions, and the length of time the matter already has been pending. In certain circumstances the court may also consider the current impact on the parties of rulings by the district court that, while not themselves subject to Rule 23(f) review, nevertheless are inextricably tied to the class certification decision. Cf. Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1007-08 (11th Cir. 1997) (reviewing petitions for writ of mandamus that challenged class certification decision as well as district court’s order allowing highly prejudicial advertising and mass mailings to putative class members), reh’g denied, 167 F.3d 542 (1998).
Finally, a court should consider the likelihood that future events may make immediate appellate review more or less appropriate. Simply by way of example, settlement negotiations involving some or all of the parties affected by the decision, or the prospect of an imminent change in the financial status of a party
24

(such as a bankruptcy filing) may caution against hearing an interlocutory appeal. Conversely, if the case is likely to be one of a series of related actions raising substantially the same issues and involving substantially the same parties, then early resolution of a dispute about the propriety of certifying a class may facilitate the disposition of future claims. Also significant is whether the district court itself has indicated that it views its class certification decision as conditional or subject to revision at a later stage in the case.
We do not create any bright-line rules or rigid categories for accepting or denying Rule 23(f) petitions today. Our authority to accept Rule 23(f) petitions is highly discretionary, and the foregoing list of factors is not intended to be exhaustive; there may well be special circumstances that lead us to grant or deny a Rule 23(f) petition even where some or all of the relevant factors point to a different result. Moreover, none of the foregoing factors is necessarily conclusive; ordinarily, each relevant factor should be balanced against the others, taking into account any unique facts and circumstances.
We reiterate, however, that interlocutory appeals are inherently “disruptive, time-consuming, and expensive,” Mowbray, 208 F.3d at 294, and consequently are generally disfavored. Piecemeal appellate review has a deleterious effect on judicial administration. It increases the workload of the appellate courts, to the
25

detriment of litigants and judges. It requires the appellate courts to consider issues that may be rendered moot if the appealing party ultimately prevails in or settles the case. It undermines the district court’s ability to manage the action. And it creates opportunities for abuse by litigants seeking to delay resolution of a case by raising with the appellate court objections to the scope of an order that should have been raised first with the district court itself. Most of these concerns are, if anything, even more compelling in the class action context, especially given the district court’s broad authority under Rule 23(c)(1) to monitor and if necessary reconsider its class certification decision as discovery unfolds and the action progresses to trial.
We will therefore use restraint in accepting Rule 23(f) petitions, and these interlocutory petitions will not be accepted as a matter of course.
B. Turning to the particulars of this case, we acknowledge that this lawsuit may not raise the kind of issues that ordinarily might warrant granting a Rule 23(f) petition. First, we do not believe the grant of class status here raises the stakes of litigation so substantially that the Defendants likely will feel irresistible pressure to settle. The certified Plaintiff class, while large, is only seeking declaratory and injunctive relief (not money damages). As a result, the size of the certified class, in
26

this particular case, does not place tremendous economic pressure on Defendants.
And while an award of injunctive and declaratory relief would exert a significant
impact on the administration of the state HCBW program, Defendants’
interlocutory appeal does not concern the scope of this potential relief.
Second, while we agree with Defendants that the district court would have
been wiser to certify several subclasses rather than one large class, see infra Part
III, Defendants do not demonstrate any substantial weakness or profound error of
law in the class certification decision. Though in passing Defendants challenge the
class certification language as vague, they do not argue that a HCBW class should
not have been certified; indeed, they propose that the district court should have
certified two HCBW classes. Consequently, because both parties agree that some
kind of HCBW class(es) should be certified in this case, the issues raised on appeal
are not dispositive of the litigation.11 Moreover, much of the vagueness of the
11In their brief, Defendants argue that the district court should have certified the following two HCBW classes:
Class One. All persons with developmental disabilities who have applied for services which are compensable under the Florida Home and Community Based Waiver and who have been determined to be eligible for services but who have not received them with reasonable promptness. Class Two. All persons with developmental disabilities who have applied for services compensable under the Florida Home and Community Based Waiver but who have been denied them without notice and opportunity for hearing.
27

district court’s order relates to its inclusion of persons who will be eligible for or
will receive HCBW services in the future; while such language would have serious
implications in a class action seeking monetary damages, it is of little moment in this case because the certified class only seeks declaratory and injunctive relief.12
Defendants’ objection that Plaintiffs have not as yet demonstrated that a
named class representative possesses individual or associational standing to bring
each of the class’s subclaims is of greater moment. But although we agree that at
least one named representative must have standing to bring each class subclaim,
see infra Part III, this argument should have been raised squarely with the district court rather than for the first time in a Rule 23(f) petition.13 Outside the Rule 23(f)
context, issues of standing are normally not available for review on interlocutory
appeal. See Summit Medical Assocs. v. Pryor, 180 F.3d 1326, 1334 (11th Cir.
1999).
12We agree with Defendants that the class certification order does not offer a precise definition of what it means to be “eligible” for HCBW services. However, whether the term includes those who have applied for HCBW services or rather all people residing in Florida who meet the ICF/DD level-of-care criteria only really affects the size of the class. Because money damages are not sought by this class, such a definitional problem is less significant at this time.
13In their motion to dismiss, Defendants did raise a standing-related issue; however, they did not contest the individual standing of the named plaintiffs to raise their proposed class claims. Instead, Defendants merely argued that Plaintiffs had not demonstrated that they were likely to suffer injury at the hands of the named Defendants because the state officials named, for example, then-Governor Lawton Chiles, lacked official responsibility over the state Medicaid program.
28

Extensive interlocutory review of Defendants’ standing objection seems particularly inappropriate given the circumstances of this case. First, the factual record is not fully developed -- making resolution of individual standing claims impossible. Second, even if Defendants’ argument were completely correct, at worst several new named representatives would have to be added to the class or several of the class subclaims would have to be amended or dropped. Simply put, Defendants’ standing argument does not end the case; and given the fluid nature of class certification rulings and the ability of the district court to alter or amend the certified class at any point prior to a ruling on the merits, see Fed. R. Civ. P. 23(c)(1), we believe such standing challenges are best raised initially with the district court rather than as the predicate for an appeal under Rule 23(f).
Other Rule 23(f) factors might also weigh against interlocutory review were this an ordinary case. We see no truly novel or fundamental issue of law raised by the class certification decision. As discussed above, the scope and nature of this class may be affected by matters still subject to discovery and fact development. On the other hand, this lawsuit has tremendous importance to thousands of developmentally-disabled persons in the State of Florida, many of whom have a critical need for prompt delivery of the services and benefits they claim to have been denied by the State. There is also a broader but no less compelling public
29

interest in determining promptly the scope of the State’s administrative and financial obligations under the Medicaid program with respect to such persons. Given these considerations, as well as the fact that we have not previously enunciated Rule 23(f) standards and the merits of this appeal have already been briefed and oral argument heard, we proceed to address certain aspects of the class certification ruling -- particularly with respect to the creation of subclasses and typicality review.
III. We review orders granting class certification for abuse of discretion. See Kendrick v. Jefferson County Bd. of Educ., 932 F.2d 910, 914 (11th Cir. 1991) (citing Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th Cir.1984)). Fed. R. Civ. P. 23(a) requires, as a condition precedent to class certification, that four prerequisites be met. The Rule states:
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
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Id. These four requirements commonly are referred to as the prerequisites of numerosity, commonality, typicality, and adequacy of representation, see General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740 (1982); Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985), and they are designed to effectively limit class claims to those “‘fairly encompassed’” by the named plaintiffs’ individual claims, Falcon, 457 U.S. at 156, 102 S. Ct. at 2370 (citation omitted). In this case, Defendants argue that the certified class does not satisfy the commonality and typicality requirements because there are several classwide legal claims for which no named plaintiff possesses Article III standing.
In many ways, the commonality and typicality requirements of Rule 23(a) overlap. Both requirements focus on whether a sufficient nexus exists between the legal claims of the named class representatives and those of individual class members to warrant class certification. See Washington v. Brown & Williamson Tobacco Co., 959 F.2d 1566, 1569 n.8 (11th Cir. 1992) (citing Falcon, 457 U.S. at 157 n.13, 102 S. Ct. at 2370 n.13); Appleyard, 754 F.2d at 958 (citing De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225 (7th Cir.1983)); see also 7 C. Wright & A. Miller, Federal Practice and Procedure § 1764 (1972). Traditionally, commonality refers to the group characteristics of the class as a whole and
31

typicality refers to the individual characteristics of the named plaintiff in relation to
the class. See Baby Neal v. Casey, 43 F.3d 48, 56 (3rd Cir. 1994). These
requirements “serve as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named
plaintiff’s claim and the class claims are so interrelated that the interests of the
class members will be fairly and adequately protected in their absence.” Falcon,
457 U.S. at 157 n.13.14
It should be obvious that there cannot be adequate typicality between a class
and a named representative unless the named representative has individual standing
to raise the legal claims of the class. As noted above, typicality measures whether
a sufficient nexus exists between the claims of the named representatives and those
of the class at large. Without individual standing to raise a legal claim, a named
14Neither of these requirements requires that “all putative class members share identical claims.” Baby Neal, 43 F.3d at 56. Previously, we have explained that these requirements may be satisfied even if some factual differences exist between the claims of the named representatives and the claims of the class at large. See Appleyard, 754 F.2d at 958 (“‘[t]he typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members’”) (quoting De La Fuente, 713 F.2d at 232). However, we do require that the named representatives’ claims share “‘the same essential characteristics as the claims of the class at large.’” Appleyard, 754 F.2d at 958 (quoting De La Fuente, 713 F.2d at 232) (emphasis added). In making this determination, we have concluded that “a strong similarity of legal theories will satisfy the typicality requirement despite substantial factual differences.” Appleyard, 754 F.2d at 958; see also Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (stating that “a sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory”).
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representative does not have the requisite typicality to raise the same claim on behalf of a class.
As the Supreme Court has explained, “[w]e have repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Falcon, 457 U.S. at 156, 102 S. Ct. at 2370 (citing East Texas Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403, 97 S. Ct. 1891, 1896, 52 L. Ed. 2d 453 (1977)) (internal quotation marks omitted); see also Blum v. Yaretsky, 457 U.S. 991, 999, 102 S. Ct. 2777, 2783, 73 L. Ed. 2d 534 (1982) (explaining that “[i]t is not enough that the conduct of which the plaintiff complains will injure someone. The complaining party must also show that he is within the class of persons who will be concretely affected. Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.”). This rule makes especially good sense when we consider that one of the core purposes of conducting typicality review is to ensure that “the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees’ interests will be fairly represented.” Baby Neal, 43 F.3d at 57; see also 1 Newberg & Conte, Newberg on Class Actions, § 3.13 (3d ed. 1992).
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Thus, it is well-settled that prior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim. “[A]ny analysis of class certification must begin with the issue of standing.” Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987); see also Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A, July 1981) (stating that the “constitutional threshold [of standing] must be met before any consideration of the typicality of claims or commonality of issues required for procedural reasons by Fed. R. Civ. P. 23”). “Only after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin, 823 F.2d at 1482. It is not enough that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to one of many claims he wishes to assert. Rather, “each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Id. at 1483.
In this case, Defendants offer a very narrow argument. As discussed earlier, they do not contend that a HCBW class should not be certified -- in fact they
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propose two HCBW classes that they believe warrant certification. Defendants likewise do not argue that none of the named plaintiffs has standing to bring any HCBW class claims -- rather, in their briefs and at oral argument, Defendants concede that two named plaintiffs, Daniel Lavin and Daniel Shell, do have individual standing to bring three of the ten identified class claims.15 Defendants merely assert that prior to class certification Plaintiffs made no showing that any named plaintiff had individual standing to bring the other seven identified class claims. See supra, Part I.
Having studied the record, it is clear that there are a number of individual standing challenges that cannot be resolved adequately on appeal. For example, Defendants contend that a number of the named plaintiffs have not demonstrated that they are eligible for HCBW services. As best we can tell from the record before us, an HCBW applicant is considered eligible by Defendants if she (1) is a
15Specifically, Defendants admit that Lavin and Shell are appropriate class representatives for the following three claims:
1. Failure to provide notice and opportunity for a hearing of the denial, reduction, or termination of waiver benefits in violation of the Due Process Clause. 2. Failure to provide adequate and appropriate waiver services in violation of 42 U.S.C. § 1396n. 3. Failure to provide waiver services with reasonable promptness in violation of 42 U.S.C. 1396a.
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client of developmental services, (2) meets the level-of-care criteria for admission to an ICF/DD, and (3) elects waiver services in lieu of institutionalized care at an ICF/DD. This inquiry is necessarily fact-specific and requires factual proffers, through affidavits and other evidentiary documents, that have not been developed sufficiently as of now.16 We therefore remand this case to the district court and direct it to ensure that at least one named representative of each class or subclass has standing for each proffered class or subclass claim.
We observe as well that the class, as presently defined, appears to be composed of too many subgroups with disparate legal claims to warrant certification. As it now stands, the class consists of “all persons with developmental disabilities who are presently receiving Home and CommunityBased Waiver Services or who are eligible to receive Home and Community-Based Waiver Services, or who would receive or be eligible for Home and Community-
16To highlight the fluid and undeveloped state of the record, we note that Plaintiffs recently have filed a motion with our court, well after oral argument was heard, to supplement the record with unauthenticated documents not previously reviewed by the district court. These documents allegedly demonstrate that many of the named representatives, whom Defendants challenge as lacking standing, actually have been deemed eligible by Defendants for HCBW services. Given the late date of this submission and the fact that they have not been authenticated or reviewed by the district court, we decline to consider these materials on appeal. We wish to emphasize, however, that the district court should consider the admissibility of this new evidence on remand -particularly as it impacts the standing inquiry.
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Based Waiver Services in the future.” The overbreadth of this class is made plain by a brief consideration of the class’s subclaims.
While the class ostensibly is comprised of developmentally-disabled persons who meet Medicaid eligibility requirements for ICF/DD care, there are sharp differences amongst class subgroups in the type of conduct challenged and the type of injury suffered. Broadly speaking, Plaintiffs allege both substantive and procedural injuries: first, they allege that Defendants provided inadequate and inappropriate HCBW services or denied outright HCBW services to eligible persons who meet the ICF/DD level-of-care requirements due to funding rather than medical necessity concerns; second, they allege that Defendants failed to provide HCBW services with reasonable promptness to eligible individuals; and finally, they allege that Defendants unlawfully failed to provide HCBW applicants with the requisite procedural safeguards including reasonably prompt claims decisions and notice of an applicant’s right to appeal a claims denial.
We believe these alleged injuries may be better addressed through several subclasses rather than one large class. It appears that there are three general subclasses of HCBW applicants whose interests are affected by this suit. First, there are those individuals who have applied for HCBW services and been approved by Defendants for HCBW services, but who challenge their approved
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services as inadequate, inappropriate, or untimely provided (in the case of those applicants who are approved for a waiver but are placed on indefinite waiting lists). Second, there are those persons who have applied for HCBW services but who have been denied such services without notice and opportunity for hearing. Finally, there are those individuals who have applied for HCBW services and still await an adjudication of their HCBW applications.
While the alleged injuries of these subclasses may overlap to some degree, there are obvious and important differences, for example, between the injury claim of an applicant who already has been approved but has not received HCBW services, and an applicant who has been ruled ineligible or who still awaits an eligibility ruling for HCBW services. Notably, each group targets a different “bad act” of Defendants whether it be a failure to provide approved services in a reasonably prompt manner, a claims denial, or a failure to adjudicate a claims application in a reasonably prompt manner. Because these injury claims target different defendant conduct, the type of proof required for each claim necessarily will differ.
In addition, proof of these alleged injuries also requires a threshold showing of eligibility for HCBW services. As noted above, it appears that an HCBW applicant is considered eligible by Defendants if she (1) is a client of
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developmental services, (2) meets the level-of-care- criteria for admission to an
ICF/DD, and (3) elects waiver services in lieu of institutionalized care at an
ICF/DD. Not all members of the certified class have been ruled eligible for
HCBW services by Defendants, however. While some class members have been
adjudged eligible, other class members still await an eligibility determination. One
advantage then of dividing the existing class into subclasses reflecting class
members’ HCBW applicant status is that each member of a subclass will occupy a
similar eligibility status -- that is, either approved, denied, or pending adjudication.
For these reasons, it may be prudent to certify three HCBW subclasses, on
the basis of HCBW applicant status. One possible approach would be the
following three subclasses:
Class One. All persons with developmental disabilities who have applied for services which are compensable under the Florida Home and Community Based Waiver and who have been determined to be eligible for services but who have not received them with reasonable promptness or have received inadequate or inappropriate services.
Class Two. All persons with developmental disabilities who have applied for services compensable under the Florida Home and Community Based Waiver but who have been adjudged ineligible and/or denied services without notice and opportunity for hearing.
Class Three. All persons with developmental disabilities who have applied for services compensable under the
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Florida Home and Community Based Waiver and have not received a reasonably prompt claims determination.
All that said, given the slenderness of the factual record before us, we must
leave the ultimate decision as to what kinds of appropriate subclasses to create to
the sound discretion of the district court. We also note that Plaintiffs’ suit contains
several additional fact-specific claims which, after further factual inquiry, may be
better litigated through additional subclasses rather than through subclasses based
simply on HCBW applicant status. For example, Plaintiffs’ suit now includes a
claim that Medicaid-eligible, developmentally-disabled children under the age of
21 have been denied EPSDT services by Defendants. A separate EPSDT subclass
may be appropriate if after further factual development it becomes clear that
Defendants’ alleged EPSDT policy is sufficiently different from its HCBW policy.
In fashioning appropriate subclasses, the district court also should be careful not to
certify subclasses overlapping with certified classes in other related ICF/DD litigation now pending.17
17 There are four other related ICF/DD cases in various stages before the district court. The most similar of these cases is Murray v. Bock, District Court No. 98-1066-CIV- FERGUSON, Appeal No. 99-10789. On March 10, 1999, the district court entered a Memorandum Order stating that a class certification order would be entered and that the order would certify a class of “all developmentally disabled individuals participating in the Home and Community-Based Waiver who are not receiving or who have not received some services under the Waiver for which they are eligible.” The district court has not yet entered a class certification order. Obviously, this proposed class would overlap with the subclasses we have outlined above.
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In short, having accepted the Defendants’ petition for appeal under Rule
23(f), we agree with the Defendants that the single class certified by the district
court does not comply with the requirements of Rule 23(a). Plaintiffs have not
demonstrated that the claims of the named class representatives possess the
requisite typicality with the claims of the class at large, or that the named class
We believe the other three cases involve distinct ICF/DD claims. In Does v. Chiles, District Court No. 92-589-CIV-FERGUSON, Appeal Nos. 96-5144 and 99-14590, Plaintiffs have moved for certification of a class of “all developmentally disabled individuals in the State of Florida who are entitled to Intermediate Care Facilities for the Mentally Retarded (“ICF/MR”) placement but have not received a placement with reasonable promptness.” The magistrate judge has recommended certification of this class but the district court has not yet entered its order.
In Cramer v. Bush, District Court No. 96-6619-CIV-FERGUSON, Appeal No. 98-5876, the district court on March 25, 1998 certified a class of “all individuals who are Medicaid recipients who resided in private ICF/DDs in Florida as of June 30, 1997, and/or who currently reside in private ICF/DDs.”
Finally, in Brown v. Bush, District Court No. 98-673-CIV-FERGUSON, Appeal No. 99-11544, the district court on March 31, 1999 certified a class of “all individuals who on or after January 1, 1998 have resided, are residing or will reside at the DSIs, including all persons who have been transferred from DSIs to other settings, such as intermediate care facilities, group homes or skilled nursing facilities but remain defendants’ responsibility, and all persons at risk of being sent to DSIs.” On appeal, we vacated the district court’s order and remanded with instructions that the district court certify the following class:
All individuals with developmental disabilities who were residing in a Florida DSI as of March 25, 1998, and/or are currently residing in a Florida DSI, who are Medicaid eligible and presently receiving Medicaid benefits, who have properly and formally requested a community-based placement, and who have been recommended by a State-qualified treatment . . . team for a less restrictive placement that would be medically and otherwise appropriate, given each individual’s particular needs and circumstances.
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representatives possess standing to raise all of the class’s claims. On remand, the district court must ensure that at least one of the named class representatives possesses the requisite individual or associational standing to bring each of the class’s legal claims. Moreover, the wisest course may be to divide this single class into subclasses according to class members’ HCBW application status provided that a named representative possesses individual or associational standing for each proffered subclaim. We therefore vacate the class certification order and remand for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.
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