Case 4:03-cv-00107-SPM -AK Document 1 Filed 04/11/03 Page 1 of 34
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION
MICHAEL DUBOIS, MELVIN M. and CHARLES SMITH, on behalf of themselves and all others similarly situated,
Plaintiffs, v. RHONDA MEDOWS, in her official capacity as Secretary, Florida Agency for Health Care Administration, and JOHN AGWUNOBI, in his official capacity as Secretary, Florida Department of Health,
Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (CLASS ACTION)
PRELIMINARY STATEMENT 1. This is a statewide class action brought on behalf of over 226 persons with brain or spinal cord injuries that have been unnecessarily segregated in nursing homes and similar institutions in order to receive Medicaid funded long-term health care services, or put at imminent risk of such segregation. Defendants' systemic and continuing failure to provide the named Plaintiffs and alleged class members
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.... ,
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(Plaintiffs) with medically necessary home and community based services violates the Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et seq., and implementing regulations, Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. §794(a), and implementing regulations, and Title XIX of the Social Security Act (the Medicaid Act), 42 U.S.C. §1396a et seq., and implementing regulations. Plaintiffs are eligible for home and community based services through Florida's Medicaid Program. However, due to Defendants' failure to adequately fund and administer Florida's home and community based services program for persons with traumatic brain or spinal cord injuries, there is a lack of community based services to meet Plaintiffs' needs. The named Plaintiffs bring this action on behalf of themselves and all others with traumatic brain or spinal cord injuries who are inappropriately confined and segregated in nursing homes and similar institutions or, who are or will be at risk of being institutionalized, because of Defendants' failure to provide home health care and other supportive services to meet their needs to live in the community. Plaintiffs seek injunctive relief to remedy these systemic violations of federal law.
2. Since 1999, Florida has operated the Brain or Spinal Cord Injury Medicaid Home and Community Based Waiver Program (BSCI Waiver Program). The BSCI Waiver Program enables a limited number of persons with traumatic brain or spinal cord injuries to avoid unnecessary institutionalization and to receive medically necessary services while living at home. As a result of under funding and
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poor administration, the State has a waiting list of over 226 persons who are eligible for, but unable to obtain, these services. There are currently at least 124 unfilled slots in the BSCI Waiver Program. There may be hundreds of persons that are eligible for these services, who were never informed about the existence of the services or, who are on the waiting list.
3. Plaintiffs bring this action to compel Defendants to provide Plaintiffs with home and community based care services in the least restrictive setting that is most appropriate to their needs. Plaintiffs seek a declaration that denial of due process and services with reasonable promptness violates the Medicaid Act and implementing regulations, the ADA and implementing regulations, Section 504, and implementing regulations and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Medicaid Act and Fourteenth Amendment claims are brought pursuant to 42 U.S.C. §1983. Plaintiffs seek to remedy the pervasive, systemic and continuing failure of Defendants to provide them with BSCI Waiver Program services in a reasonably prompt manner as required by federal law. Plaintiffs also seek to remedy Defendants' failure to provide these services in the most integrated setting appropriate to their needs -- their homes and communities. Plaintiffs seek injunctive relief to require Defendants to comply with federal statutory and constitutional law.
JURISDICTION 4. This Court has jurisdiction over the claims presented in this action
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pursuant to 28 U.S.C. §§1331 ,1343(a)(3) & (4). 5. Plaintiffs' claims for relief are predicated upon 42 U.S.C. §12101 et
seq., 29 U.S.C. §794, 42 U.S.C. §1396 et seq. and 42 U.S.C. §1983, which authorizes actions to redress the deprivation, under color of state law, of rights privileges and immunities secured by the Constitution and laws of the United States.
6. Declaratory relief is authorized by 28 U.S.C. §§2201 and 2202. 7. Plaintiffs seek permanent injunctive relief pursuant to Fed. R. Civ. P. 65.
VENUE 8. Venue lies in the Northern District pursuant to 28 U.S.C. §1391 (b), and in the Tallahassee Division, because a substantial part of the events giving rise to this action occurred in Leon County, Florida, and both Defendants may be found there. N.D. Fla. R. 3.2(A).
PLAINTIFFS 9. Plaintiff Michael Dubois (Dubois) is a 35 year old man with quadriplegia following a spinal cord injury in 1983 as a result of a diving accident. He receives Supplemental Security Income (SSI), Medicaid and Medicare. Since his injury at age 16, he has resided in several nursing homes because his elderly parents are unable to care for him. Medicaid pays for the nursing home where he currently resides in Gainesville, Florida. Dubois applied for BSCI Waiver Program services on August 11, 2000, and meets the eligibility criteria.
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10. Plaintiff Melvin M. is a 23 year old man who lives in Perry, Florida. He has paraplegia as a result of a shooting incident in 1998. 1 He was in a coma following this incident and experiences memory problems due to a possible brain injury. He receives SSI and Medicaid. He applied for BSCI Waiver Program services on or about April 8, 2002, and meets the eligibility criteria.
11. Plaintiff Charles Smith (Smith) is a 38 year old man who lives with his mother in Pensacola, Florida. Smith has quadriplegia as a result of a spinal cord injury from a car accident in 1990. He receives SSI and Medicaid. Due to medical conditions related to his spinal cord injury, he has been hospitalized for infections several times since his injury. He applied for the BSCI Waiver Program on or about January 23, 2001, and meets the eligibility criteria.
12. Although each of the named Plaintiffs is eligible for the BSCI Waiver Program, none of them have been provided with services.
DEFENDANTS
13. Defendant Rhonda Medows (Medows) is Secretary of Florida's Agency for Health Care Administration (AHCA) and is sued in her official capacity. AHCA is the state agency responsible for administering Florida's Medicaid Program, including the Waiver Program. §20.42, Fla. Stat. (2002). Under state law, Medows is responsible for implementing policy and rules for the agency, as well as planning,
1 Plaintiffs have, contemporaneously with the Complaint, filed a Motion to Proceed Under A Pseudonym for named Plaintiff Melvin M..
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directing, organizing, supervising, administering and executing the functions of AHCA and proposing AHCA's budget to the Governor. §20.05, Fla. Stat. (2002). As Secretary, she is responsible for ensuring that AHCA operates in conformity with federal law, including but not limited to operating the Florida Medicaid Program.
14. Defendant Agwunobi (Agwunobi) is Secretary of Florida's Department of Health (DOH) and is sued in his official capacity. Agwunobi is responsible for all administrative, policy, planning and budgetary matters for the DOH, including those which affect Florida's participation in Medicaid Waiver Programs. §20.05, Fla. Stat.. (2002). He is responsible for the DOH decisions that result in the funding of and administration of programs for persons with brain or spinal cord injuries. /d.; §381.79, Fla. Stat. (2002). As Secretary, he is also responsible for ensuring that DOH operates in conformity with federal law.
15. At all times relevant to this Complaint, Defendants were acting under color of state law and knew or should have known of the policies, practices, acts and conditions alleged herein.
CLASS ACTION ALLEGATIONS 16. Pursuantto Fed. R. Civ. P. 23(a) and (b)(2), the named Plaintiffs bring this action on behalf of themselves and all other persons similarly situated. 17. The proposed class consists of all individuals with traumatic brain or spinal cord injuries who are eligible or will be eligible to receive BSCI Waiver Program services and have not received such services.
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18. Numerosity: The Plaintiff class is so numerous that joinder of all its members is impracticable. There are currently over 226 class members. The class also includes future class members, likely to number in the hundreds, that will be eligible to receive BSCI Waiver Program services based on their future applications.
19. Commonality: There are questions of law or fact that are common to all named Plaintiffs, as well as to all putative class members: Whether Defendants have violated the Medicaid Act, the ADA, §504 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
20. Typicality: The claims of the named Plaintiffs are typical of the claims of the class as a whole.
21. Adequate representation: The named Plaintiffs will fairly represent and adequately protect the interests of members of the class as a whole. The named Plaintiffs do not have any interests antagonistic to those of other class members. By filing this action, the named Plaintiffs have displayed an interest in vindicating their rights, as well as the claims of others who are similarly situated. The relief sought by the named Plaintiffs will inure to the benefit of members of the class generally. The named Plaintiffs are represented by counsel who are skilled and knowledgeable about civil rights litigation, Medicaid law, practice and procedure in the federal courts and the prosecution and management of class action litigation.
22. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive and declaratory relief
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appropriate with respect to the class as a whole under Fed. R. Civ. P. 23(b)(2). Although the disabilities of the class members vary, they share a common need for services provided by the BSCI Waiver Program, are eligible for these services and have not been provided these services. A class action is superior to individual lawsuits for resolving this controversy.
STATEMENT OF FACTS A. Medicaid Statutory and Regulatory Framework
23. Medicaid is a joint federal/state program authorized by Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq. It provides medical assistance to low income individuals who meet certain eligibility requirements. The federal government provides 58.8% of the costs of services provided under the program and the state of Florida provides the remaining 41.2%.
24. States are not required to participate in the Medicaid Program. If a state elects to participate, however, it is required to comply with applicable federal statutory and regulatory requirements. 42 U.S.C. §1396. Florida voluntarily participates in the Medicaid Program. §409.902, Fla. Stat. (2002).
25. AHCA, under the direction of Defendant Medows, is the State agency that is responsible for administering Florida's Medicaid services. §20.42, Fla. Stat. (2002).
26. Under federal and state law, there are numerous categories of Medicaid eligibility for low income disabled individuals. See, e.g., 42 U.S.C.
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§1396a(a)(1 0); 42 C.F R. §§435.120 -.138, .230- .236; §§409.903 & .904, Fla. Stat. (2001); Fla. Admin. CodeR. 65A-1.710; See also Department of Children and Families' (DCF) Integrated Public Assistance Policy and Procedures Manual, §2040.0800. Individuals that receive SSI are categorically eligible for Medicaid. 42 U.S.C. §1396a(a)(1 O)(A); 42 C.F.R. §436.11 0.
27. Under 42 U.S.C. §§1396 et seq., any state which has elected to participate in the Medicaid Program must ensure that all medically necessary services, including BSCI Waiver Program services, are provided to eligible persons with reasonable promptness. 42 U.S.C. §1396a(a)(8); 42 C.F.R. §435.930. Individuals who apply for Medicaid on the basis of disability are entitled to receive a timely determination of their eligibility within 90 days of their application and to be informed of this right. 42 C.F.R. §435.911. Applicants are also entitled to a written notice of the agency's decision on their application. 42 C.F.R. §435.912.
28. State Medicaid Plans must provide the 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(a)(3); 42 C.F.R. §431.200 et seq. The regulations which implement this statutory requirement define the process that is due to Medicaid recipients. See 42 C.F.R. §431.200 et seq. When an individual's eligibility for medical assistance under the plan is denied or not acted upon with reasonable promptness, he or she is entitled to a written notice that informs him or her of the action the agency intends to take, the reasons for the
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action, the law that supports the action and an explanation of the right to request a fair hearing. 42 C.F.R. §§431.210 & 435.912. B. The Home and Community Based Waiver Program
29. Congress adopted the Home and Community Based Waiver (Waiver Program) in order to allow individuals who would otherwise require care in a nursing home or other institutional settings to receive services in their own homes and in home-like settings. See S. Rep. No. 97-139 & H.R. Conf. Rep. No. 97-208, reprinted in 1981 U.S.C.C.A.N. 396.
30. The BSCI Waiver Program is one of several Waiver Programs in Florida. See Fla. Admin. Code R. 65A-1.701 (1 ), (3), (5), (1 0) & (24).
31. 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 communitybased services that an individual needs to avoid institutionalization." 42 C.F.R. §441.300 (emphasis added).
32. Under the waiver provisions of the Medicaid Act, states may include as medical assistance the cost of home and community based services, which if not provided, would require care to be provided in a nursing home, hospital or other institutional setting. 42 U.S.C. §1396n(c); 42 C.F.R. §435.217. 42 U.S.C. §1396n(c)(1) provides:
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
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(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... the cost of which could be reimbursed under the State plan.
33. To receive permission to operate a Waiver Program, the State must
assure the federal government that the estimated average per person expenditures
under the proposed waiver are no greater than the estimated per person
expenditures the State would make for the same individuals if the waiver was not
granted. 42 U.S.C. §1396n(c)(2)(D). In addition, the State must make assurances
that once the waiver is operating, the actual total expenditures made under the
waiver will be no greater than the total amount the State would have made for
services in nursing facilities, hospitals or other institutional settings for individuals
being served under the waiver. 42 C.F.R. §441.302(f).
34. In establishing the Medicaid Waiver Programs, Congress requires that
individuals with disabilities have the freedom to choose whether to receive services in an institution (e.g., nursing home) or in the community through the Waiver
Program. 42 U.S.C. §1396n(c)(2)(C); 42 C.F.R. §441.302(d)(1) & (2). A state must
ensure that individuals who
are determined to be likely to require the level of care provided in a hospital, [or] nursing facility ... are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, [or] nursing facility services ...
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42 U S.C. §1396n(c)(2)(C). 35. Individuals who live in hospitals or nursing homes cannot also receive
services under the Home and Community Based Waiver, but can be eligible for such services (e.g., residing in a nursing home and on a waiting list for a Waiver Program). 42 C.F.R. §441.301 (b)(1 )(ii).
36. States are also required to annually provide the Secretary of Health and Human Services with information on the impact of the waiver and the type and amount of medical assistance provided under the Medicaid State Plan and on the health and welfare of recipients. 42 U.S.C. §1396n(c)(2).
37. Florida first obtained approval for a Home and Community Based Waiver for persons with brain or spinal cord injuries in 1999. This BSCI Waiver Program was approved for a three year period and a renewal application was approved as of July 2002, by the Centers for Medicare and Medicaid Services (formerly the Health Care Financing Administration) - the federal agency that reviews waiver applications.
38. The BSCI Waiver Program is a category of Medicaid services that is established to provide cost-effective alternatives to institutional care for individuals that have brain or spinal cord injuries. 42 U.S. C. §1396n(c); 42 C.F.R. §§440.180 & 441.300.
39. To be eligible for the BSCI Waiver Program, an individual must meet certain income and asset criteria, as well as medical criteria which would qualify
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them for the Medicaid Institutional Care Program (ICP)(i.e., nursing home care). See42 U.S.C. §1396n(c) & (d); 42 C.F.R. §441.301. See also Fla. Admin. Code R. 65A-71 0(4). DCF is the state agency that is responsible for determining financial eligibility for Medicaid. §§409.901 (18), .902, .919, Fla. Stat. (2002). DOH is the state agency that is responsible for taking, processing and making final determinations on individuals' applications for services through the BSCI Waiver Program. §20.43, Fla. Stat. (2002).
40. Defendants' approved BSCI Waiver Program application authorizes the State, for the 2002-03 fiscal year, to provide home and community based services to 300 individuals to allow them to live at home rather than unnecessarily reside in institutions. Approximately only 176 individuals are currently receiving services through the BSCI Waiver Program, thus, leaving at least 124 unfilled slots in the program.
41. Florida's approved application for the BSCI Waiver Program provides assurances to the Centers for Medicare and Medicaid Services that Medicaid beneficiaries will be offered an informed choice of alternatives. Specifically, the State assures that "when an individual is determined to be likely to require [nursing facility] level of care... the individual... will be informed of any feasible alternatives under the waiver, and given the choice of either institutional or home and community-based services." Florida's Section 1915(c) Waiver Application for a Medicaid Home and Community Based Services Waiver for Persons with Traumatic
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Brain or Spinal Cord Injuries, dated June 7, 2002, at 43. C. The Brain and Spinal Cord Injury Program
42. Florida also operates a Brain and Spinal Cord Injury Program (BSCIP) through state-only funding. §381.7395, Fla. Stat. (2002). The BSCIP provides short-term rehabilitative services to assist individuals in making a transition back into the community following a traumatic brain or spinal cord injury.
43. The BSCIP is not a Medicaid program and is administered by the DOH. The BSCIP is funded through traffic-related fines, surcharges for driving and boating under the influence convictions and temporary license tag fees. These funds are deposited into the BSCIP Rehabilitation Trust Fund. §381.79, Fla. Stat. (2002). The BSCIP is a payor of last resort for individuals that reside in Florida and have brain or spinal cord injuries. /d.
44. Unlike the BSCIP, the BSCI Waiver Program is intended to provide long-term home and community based care for individuals with brain or spinal cord injuries. Persons with brain or spinal cord injuries can be eligible to and receive services through BSCIP, in addition to being eligible for the BSCI Waiver Program.
45. Under §381.77, Fla. Stat. (2002), the DOH is required to conduct an annual survey of Florida's nursing homes to determine the number of persons 55 years of age and under who reside in such facilities due to brain or spinal cord injuries. "All persons identified in such a survey shall be evaluated as to their rehabilitation potential, and any person who may benefit from rehabilitation shall be
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given an opportunity to participate in an appropriate rehabilitation program for which she or he may be eligible." /d. D. Americans with Disabilities Act
46. On July 12, 1990, Congress enacted the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., which establishes important civil rights for persons with disabilities.
47. 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." /d. §12101(a)(2).
48. Congress found that "discrimination against individuals with disabilities persists in ... institutionalization ... and access to public services." /d. §12101(a)(3).
49. 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." /d. §12101(a)(5).
50. 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
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participate in, and contribute to, society. /d. §12101(a)(7).
51. 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. /d. §12101(b)(1) & (2).
52. Title II of the ADA provides that "... no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program or activities of a public entity, or be the subject of such discrimination by such an entity." /d. §12132. Implementing regulations require that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. §35.130(d).
53. The ADA was enacted to help serve "... the Nation's proper goals regarding individuals with disabilities, [which goals] are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for each individual." 42 U.S.C. §121 01 (a)(8). Disabilities are defined, with respect to an individual, to include "a physical or mental impairment that substantially limits one or more of the major life activities of such individual. .. such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
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learning, and working." 28 C.F.R. §35.104. 54. In a July 29, 1998, letter from the United States Department of Health
Care Finance Administration (HCFA) to state Medicaid Directors, HCFA advises that the "most integrated setting' standard applies to States, including State Medicaid programs," and urges States to meet the objectives of the ADA" by continuing to develop home and community based services options for persons with disabilities to live in integrated settings."
55. The "most integrated setting" means a setting "that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." 28 C.F.R. Part 35, App. A, at 450 (1998).
56. Under the ADA's "community integration mandate," unnecessary institutionalization of individuals with disabilities constitutes prohibited discrimination under the ADA.
57. Each Plaintiff and class member is a "qualified individual with a disability" within the meaning of 42 U.S.C. §§12102(2) & 12131(2).
58. The Medicaid Program, the Medicaid Home and Community Based Services Waiver Program and the Brain and Spinal Cord Injury Program are public services subject to Title II of the ADA. /d. §12131-12134. E. Section 504 of the Rehabilitation Act
59. Section 504 provides: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, 17

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shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ... 29 U.S.C. §794(a). 60. Under Section 504, an "individual with a disability" includes any person who "has a physical or mental impairment which substantially limits one or more of such person's major life activities." /d. §705(20)(8). 61. Each Plaintiff and class member is an "individual with a disability" within the meaning of 29 U.S.C. §705(20)(8). 62. Under Section 504, a "program or activity receiving Federal financial assistance" includes the "a department, agency, special purpose district, or other instrumentality of a State or of a local government." /d. §793(b)(1 )(A). 63. The Medicaid Program, the Medicaid Home and Community Based Services Waiver Program and the Brain and Spinal Cord Injury Program are public services subject to Section 504. /d. 64. Section 504 and implementing regulations require that services be provided in the most integrated setting appropriate to an individual's needs. 28 C.F.R. §41.51 (d); 45 C.F.R. §84.4(b)(2). F. Due Process 65. All individuals who meet the eligibility criteria for the BSCI Waiver Program are entitled to medical assistance services and those services shall be
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furnished with reasonable promptness. 42 U.S.C. §1396a(a)(8); 42 C.F.R. §435.930. When an individual's claim for medical assistance is denied or not acted upon with reasonable promptness, the State must provide him or her with due process, pursuant to the Fourteenth Amendment to the United States Constitution, through written notice and an opportunity for a fair hearing. 42 U.S.C. §1396a(a)(3); 42 C.F.R. §431.200 et seq.. G. Named Plaintiffs' Allegations
Michael Dubois 66. Plaintiff Dubois is a 35 year old man with quadriplegia following a spinal cord injury in 1983 as a result of a diving accident. He receives SSI, Medicaid and Medicare. Medicaid pays for the nursing home where he currently resides in Alachua County, but will not pay for him to live in a home-setting. Since his injury at age 16, he has lived in several nursing homes because his parents are unable to care for him. Dubois requires use of a motorized wheelchair and needs assistance with bathing, dressing, personal grooming, transferring from his wheelchair and toileting. He works part-time at Target Department Store and won an award for his volunteer work with elementary school children. 67. On or about August 11, 2000, Dubois applied for the BSCI Waiver Program. He never received any written determination about his application. At that time, he was verbally informed by a case worker from the BSCI Waiver Program that he met the eligibility requirements and that he would be placed on a
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waiting list because no funds were available. Since his application, he has never received any written notice about his placement on the waiting list, that the services he needs are being denied, or concerning his right to appeal the denial. For over two years, the State has never informed him about when he will receive services.
68. Dubois' independent living needs can be met in a home-setting which will prevent him from being forced to continue to live in a nursing home. To live in the community, he needs several hours of personal care services per week to assist with his bathing, dressing, personal grooming and toileting. He also needs modifications to his home. All of these services are available through the BSCI Waiver Program. Although Medicaid will pay for Dubois to reside in a nursing home, it will not pay for him to receive medically necessary services in the community through the BSCI Waiver Program. (Dubois also needs medical supplies, which would continue to be provided for, as now, through the Medicaid State Plan.)
69. As a result of Defendants' policies and practices, Dubois continues to be institutionalized and unnecessarily segregated and excluded from full participation in the community. Without BSCI Waiver Program services, he is confined to a nursing home even though the State has recommended that a community placement is the most appropriate setting for him and he wants to be an active member of the community. Although Medicaid will pay for Dubois to live in a nursing home, it will not provide payment for him to live in a home-setting through
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the provision of BSCI Waiver Program services. Melvin M. 70. Plaintiff Melvin M. is 23 years old and developed paraplegia as a result
of a shooting incident in 1998. He receives SSI and Medicaid. He has severe contractu res in his legs which cause them to remain in a rigid, bent position, and he experiences pain in his hip areas. He requires use of a motorized wheelchair for mobility and needs diapers due to bowel incontinence. He is able to dress only his upper body, needs some assistance in transferring from his wheelchair and needs assistance with bathing, toileting and food preparation. He also experiences some memory problems that are possibly due to a traumatic brain injury related to a coma and stroke following his initial injury. He has also experienced pressure sores in the past due to lack of movement. His treating physician has recommended an orthopedic evaluation, physical therapy and occupational therapy, however, he has received none of these services.
71. To remain living at home, Melvin M. needs home modifications, physical and occupational therapies, an evaluation and possible treatment for traumatic brain injury, assistance with his activities of daily living (e.g., bathing, dressing, toileting, food preparation) and life skills training. All of these services are available through the BSCI Waiver Program. Although Medicaid would pay for Melvin M. to reside in a nursing home, it will not pay for him to receive medically necessary services in his home and community through the BSCI Waiver Program.
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(Melvin M. also needs medical supplies, physical therapy, occupational therapy and an orthopedic evaluation and he has not been able to obtain these through the Medicaid State Plan.)
72. On or about April 8, 2002, Melvin M. applied for the BSCI Waiver Program. He was verbally informed by a case worker from the BSCI Waiver Program that he met the eligibility requirements and that he would be placed on a waiting list because no funds were available. Since his application, he has never received any written notice of his status, that the services he needs are being delayed or denied, or concerning his right to appeal the delay or denial.
73. The BSCIP, a state-only funded program, has provided Melvin M. with limited case management and some diaper supplies. However, these services are on a limited basis and are not available for long-term home and community based care. This funding can be terminated at any time.
74. Melvin M. desperately wants to develop the skills needed to live independently. Melvin M.'s reliance on his friends and family for daily incontinence care and constant assistance with his activities of daily living is straining the few fragile social supports he has now. It is uncertain how much longer his current inadequate care arrangements will last. Without home and community based services, his health remains in jeopardy and he is at risk of being forced to live in an institution. Although Medicaid will pay for Melvin M. to live in a nursing home, it will not provide payment for him to live in his home through the provision of BSCI
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Waiver Program services. Charles Smith 75. Plaintiff Smith is a 37 year old man who has quadriplegia as a result
of a spinal cord injury from a diving accident in 1990. He receives SSI and Medicaid. Due to medical conditions related to his spinal cord injury, he has been hospitalized several times for infections. Smith uses a motorized wheelchair. His mother is his primary care giver. Frequently, his mother has to take business related trips. Smith's sister, who does not reside with him, also assists in taking care of him, but she, too, is only able to provide very limited care. This means that Smith is left alone at home.
76. On or about January 23, 2001, Smith applied for the BSCI Waiver Program. He never received any written determination about his application. At that time, he was verbally informed by a case worker from the BSCI Waiver Program that he would be placed on a waiting list for services. Since his application, he has never received any written notice of his status, that the services he needs are being delayed or denied, or concerning his right to appeal the delay or denial. For over two years, the State has never informed him about if or when he will receive services.
77. To remain living at home, Smith needs daily personal care services to assist him with bathing, dressing and toileting, transferring from his wheelchair and personal grooming. All of these services are available through the BSCI Waiver
23

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Program. (He also needs medical supplies, which would, as now, be provided through the Medicaid State Plan.)
78. Without BSCI Waiver Program services, Smith is at imminent risk of being forced to live unnecessarily in a nursing home. Although Medicaid would pay for Smith to live in a nursing home, it will not provide payment for him to live at home through the provision of BSCI Waiver Program services. H. Defendants' Unlawful Actions
Medicaid Act Violations 79. Defendants administer the BSCI Waiver Program in a manner which limits the availability of these medically necessary services for Plaintiffs and which precludes the provision of services in a reasonably prompt manner. 42 U.S.C. §1396a(a)(8); 42 C.F.R. §435.930. Defendants' failure to provide BSCI Waiver Program services to eligible individuals with reasonable promptness is proximately caused by Defendants' arbitrary and unreasonable policies and practices. 80. The inadequate funding of the BSCI Waiver Program and the maintenance of a waiting list that can take up to several years to provide services is in violation of the Medicaid Act provisions that require states participating in the Waiver Program to provide Medicaid recipients in need of Waiver Program services with a choice between institutional services (e.g., a nursing home) and community based services. 42 U.S.C. §1396(n)(c)(2). This provision creates binding obligations on any state that elects to provide supports and services in individuals
24

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homes and community under a Waiver Program. Defendants' application for the BSCI Waiver Program incorrectly states that they are in compliance with this obligation. Plaintiffs are forced into unnecessary and inappropriate institutionalization in order to obtain medically necessary care or are put at risk of being forced into an institution. Defendants' actions jeopardize Plaintiffs' health and safety.
Americans with Disabilities Act Violations 81. There are numerous persons with brain or spinal cord injuries that are inappropriately confined to an institution or at risk of being confined to an institution because of Defendants' policies and practices. 82. Defendants routinely place individuals eligible for BSCI Waiver Program services on a waiting list which is comprised of a list of persons who have applied for services, but who have not received any such services. The named Plaintiffs have been waiting for these services for anywhere from one year to over two and a half years. On information and belief, class members have been on this waiting list, in some cases, for several years. 83. Defendants fail to provide individuals with disabilities with services in the most integrated setting appropriate to their needs-- their homes and community. Instead, Defendants' actions with regard to their administration and under funding of the BSCI Waiver Program make services available only in an institutional setting. Without these services, individuals with disabilities are forced to live an institution
25

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or are placed at risk of having to live in an institution. Due Process Violations 84. Defendants have consistently denied Plaintiffs their rights to BSCI
Waiver Program services and to due process. 85. As a matter of practice, Defendants do not provide Plaintiffs with due
process protections. Typically, Defendants deny services, stating verbally that funds are not available. Defendants do not provide written notice that is required under the United States Constitution and the Medicaid Act and implementing regulations for procedural protections, including the right to appeal adverse determinations.
86. Defendants routinely take applications for the BSCI Waiver Program, but fail to issue determinations on the applications. Individuals are not notified that their applications have been denied or that they have been placed on a waiting list for services. Individuals are not given adequate notice, or any notice, of the reasons whether or why their application has been denied.
CLAIMS FOR RELIEF COUNT I
AMERICANS WITH DISABILITIES ACT 87. Paragraphs 1 through 86 are incorporated herein as if fully set forth. 88. Each named Plaintiff and class member is a "qualified individual with a disability" within the meaning of 42 U.S.C. §12101(2).
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89. The Department of Health, the Medicaid Program, the Waiver Program and the Brain and Spinal Cord Injury Program are all public services subject to Title II oftheADA. 42 U.S.C. §§12131-12134.
90. Defendants' denial of necessary services, while offering the option of more expensive, institutional services, violates the ADA and implementing regulations, specifically, the "integration mandate" of the ADA, 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." Defendants' actions force Plaintiffs to unnecessarily live in a nursing home or other institutional settings or place them at risk of having to do so in violation of the ADA. By failing to make BSCI Waiver Program services available to the named Plaintiffs and others similarly situated, Defendants are in violation of the ADA by not providing individuals with disabilities with services in the most integrated setting appropriate to their needs -- their homes and community.
91. Defendants' failure to have a waiting list for BSCI Waiver Program services that moves at a reasonable pace forces individuals with disabilities to unnecessarily live in an institution or be placed at risk of having to live in an institution in violation of the ADA and implementing regulations.
92. Providing BSCI Waiver Program services to Plaintiffs in their homes would not fundamentally alter the nature of services under the program.
93. Plaintiffs have suffered harm and will continue to suffer harm, for
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which there is no adequate remedy at law, as a direct and proximate result of Defendants' violations of the ADA.
COUNT II SECTION 504 OF THE REHABILITATION ACT OF 1973 94. Paragraphs 1 through 86 are incorporated herein as if fully set forth. 95. Defendants receive federal funds and are subject to the requirements of Section 504. 96. The BSCI Waiver Program receives federal financial assistance. The BSCI Waiver Program is a Medicaid Program which receives 41.2% of its funding from the state of Florida and 58.8% from the federal government. 29 U.S.C. §793(b)(1 )(A). 97. Each of the named Plaintiffs and the class members are individuals with disabilities as defined under 29 U.S.C. §705(20)(8). This includes any person who "has a physical or mental impairment which substantially limits one or more of such person's major life activities." Plaintiffs are substantially limited in various major life activities, including caring for themselves, walking, performing manual tasks and working. 98. Plaintiffs are "otherwise qualified" to participate in the BSCI Waiver Program and to receive BSCI Waiver Program services. The named Plaintiffs are eligible for BSCI Waiver Program services. 99. Defendants' practices, policies and procedures, as described above,
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violate the rights of Plaintiffs that are secured by Section 504 by forcing Plaintiffs to unnecessarily live in a nursing home or other institutional setting and placing them at risk of having to do so. By failing to make BSCI Waiver Program services available to the named Plaintiffs and others similarly situated, Defendants are in violation of Section 504 by not providing individuals with disabilities with services in the most integrated setting appropriate to their needs-- their homes and community --and by discriminating against Plaintiffs solely on the basis of disability.
100. Plaintiffs have suffered harm and will continue to suffer harm, for which there is no adequate remedy at law, as a direct and proximate result of Defendants' violations of Section 504.
COUNT Ill MEDICAID ACT- REASONABLE PROMPTNESS 42 U.S.C. §1396a(a)(8) PURSUANT TO 42 U.S.C. §1983
101. Paragraphs 1 through 86 are incorporated herein as if fully set forth. 102. This count is brought pursuant to 42 U.S.C. §1983. At all times relevant to this action, Defendants have acted under color of state law. 103. Federal law requires any state which has elected to participate in the Medicaid program under 42 U.S.C. §1396 et seq., to provide all services, including BSCI Waiver Program services, with reasonable promptness. 42 U.S.C. §1396a(a)(8); 42 C.F.R. §435.930. 104. Defendants fail to provide BSCI Waiver Program services with
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reasonable promptness in violation of 42 U.S.C. §1396a(a)(8), 42 C.F.R. §435.930 and 42 U.S.C. §1983.
105. Plaintiffs have suffered harm and will continue to suffer harm, for which there is no adequate remedy at law, as a direct and proximate result of Defendants' violations of 42 U.S.C. §1396a(a)(8); 42 C.F.R. §435.930 and 42 U.S.C. §1983.
COUNT IV MEDICAID ACT - FREEDOM OF CHOICE 42 U.S.C. §1396n(c)(2) PURSUANT TO 42 U.S.C. §1983 106. Paragraphs 1 through 86 are incorporated herein as if fully set forth. 107. This count is brought pursuant to 42 U.S.C. §1983. At all times relevant to this action, Defendants have acted under color of state law. 108. Defendants have violated 42 U.S.C. §1396n(c)(2) by denying Plaintiffs their freedom of choice of an appropriate Waiver Program that meets their health and welfare needs. 109. Defendants' application for the BSCI Waiver Program incorrectly states that they are in compliance with 42 U.S. C. §1396n(c)(2). 110. Without adequate services available in the community, Plaintiffs will be unnecessarily institutionalized and are placed at risk of unnecessary institutionalization. 111. Defendants are in violation of 42 U.S.C. §1396n(c)(2) and 42 U.S.C. §1983.
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112. Plaintiffs have suffered harm and wil' continue to suffer harm, for which there is no adequate remedy at law, as a direct and proximate result of Defendants' violations of 42 U.S.C. §1396n(c)(2) and 42 U.S.C. §1983.
COUNT V DUE PROCESS PURSUANT TO 42 U.S.C. §1983 113. Paragraphs 1 through 86 are incorporated herein as if fully set forth. 114. This count is brought pursuant to 42 U.S.C. §1983. At all times relevant to this action, Defendants have acted under color of state law. 115. All individuals who meet the eligibility criteria for the BSCI Waiver Program are entitled to medical assistance services and those services shall be furnished with reasonable promptness. 42 U.S.C. §1396a(a)(8); 42 C.F.R. §435.930. When an individual's claim for medical assistance is denied or not acted upon with reasonable promptness, the State must provide him or her with due process through written notice and an opportunity for a fair hearing. 42 U.S.C. §1396a(a)(3); 42 C.F.R. §431.200 et seq.. 116. Defendants have not provided any procedural protections for Plaintiffs. Defendants do not provide Plaintiffs with written notice informing them of the denial or delay in services or that they have an opportunity for a fair hearing to challenge this action. 117. By denying Plaintiffs notice and the opportunity for a fair hearing to challenge the denial or delay of BSCI Waiver Program services, Defendants have
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violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution, federal Medicaid laws and implementing regulations and the terms of Florida's Waiver Program agreement with CMS.
118. Plaintiffs have suffered harm and will continue to suffer harm, for which there is no adequate remedy at law, as a direct and proximate result of Defendants' violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, federal Medicaid law and implementing regulations, the terms of Florida's Waiver Program agreement with CMS and 42 U.S.C. §1983.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Certify this action as a class action. B. Declare that Defendants' failure to provide Plaintiffs with services in the most integrated setting appropriate to their needs violates their rights under the ADA, and implementing regulations, and under Section 504 of the Rehabilitation Act of 1973, and implementing regulations. C. Declare that Defendants have violated Plaintiffs' rights under the Medicaid Act, and implementing regulations, by failing to and refusing to provide them with BSCI Waiver Program services in a reasonably prompt manner and by failing to provide them with the right to be informed of and the freedom to choose community based services rather than institutionalization.
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D.

Declare that Defendants' denial of BSCI Waiver Program services

without written notice and the right to a hearing is in violation of Plaintiffs' rights

under the Medicaid Act, and implementing regulations, and the Due Process Clause

of the Fourteenth Amendment to the United States Constitution.

E. Enter a permanent injunction requiring Defendants to provide Plaintiffs

with BSCI Waiver Program services in the most integrated setting appropriate to

their needs.

F. Enter a permanent injunction requiring Defendants to provide Plaintiffs

with medically necessary BSCI Waiver Program services with reasonable

promptness to enable them to live in the community and to assure their heath and

safety.

G. Enter a permanent injunction requiring Defendants to inform Plaintiffs

and their families of the choice of individualized, home and community based

services available to them and to make this option available.

H. Enter a permanent injunction requiring Defendants to inform Plaintiffs,

in writing, of their due process and Medicaid Act rights.

I.

Enter a permanent injunction requiring Defendants to remove arbitrary

administrative barriers which prevent Plaintiffs from accessing BSCI Waiver

Program services.

J. Award Plaintiffs their reasonable attorneys' fees and costs.

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K. proper.

Grant such other and further relief as this Court deems just and
Respectfully submitted,
By: ___~ ___u ___: ___J ___i ___{ ___~ _____
Andrea Costello Florida Bar No.532991
Peter P. Sleasman Florida Bar No. 367931
SOUTHERN LEGAL COUNSEL, INC. 1229 N.W. 121h Avenue Gainesville, FL 32601 (352) 271-8890 (352) 271-8347 (fax)
Appearing Pro Hac Vice: Jane Perkins Sarah Somers
NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street Chapel Hill, NC 27514 (919) 968-6308 (919) 968-8855 (fax) ATTORNEYS FOR PLAINTIFFS

Dated: April 8, 2003

34

 
 Case 4:03-cv-00107-SPM -AK Document 75 Filed 03/01/04 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

Page 1 of 12

MICHAEL DUBOIS, et al.,

Plaintiffs,

vs.

CASE NO.: 4:03cv107-SPM

RHONDA MEDOWS, et al.,

Defendants. _________________________/

ORDER ON PENDING MOTIONS

Pending before the Court is Defendants’ Motion to Dismiss the Complaint

(doc. 20), Plaintiff’s Unopposed Motion for An Enlargement of Time to File a

Response to Defendants’ Motion to Dismiss (doc. 22), and Plaintiffs’ Motion for

Class Certification (doc. 12).

I. BACKGROUND

Plaintiffs seek declaratory and injunctive relief against officials of the State

of Florida, in their official capacities, for delays in providing home and community

based services to a proposed class of more than 226 persons with brain or spinal

cord injuries. Each of the three named plaintiffs allege that they are on a waiting

list and that they meet the eligibility requirements for the services. Plaintiff

Michael Dubois has been on the waiting list since August 11, 2000; Plaintiff

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Page 2 of 12
Melvin M. since April 8, 2002; and Plaintiff Charles Smith since January 23, 2001.
The community-based services at issue are available through the Brain or Spinal Cord Injury Medicaid Home and Community Based Waiver Program (BSCI Waiver Program), which Florida has operated since 1999. The BSCI Waiver Program is funded by medicaid and allows up to 300 individuals with traumatic brain and spinal cord injuries in Florida to receive medically necessary services while living at home, as an alternative to institutional or nursing home care. The goal of the BSCI Waiver Program is to provide cost-effective alternatives to institutional care for individuals with brain or spinal cord injuries.
Plaintiffs allege that due to under-funding and poor administration, only 176 individuals are receiving BSCI Waiver Program services in Florida, despite a waiting list of 226 who meet eligibility requirements. As a consequence, Plaintiffs allege, they have been forced to choose between living at home without services or living in an institutional setting that excludes them from full participation in the community.
According to Plaintiffs, their rights have been violated in the following ways:
1. Violation of the “integration mandate” of Title II of the Americans
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Page 3 of 12
with Disabilities Act1 and Section 504 of the Rehabilitation Act2 by failing to
provide services in the most integrated setting appropriate to their needs.
2. Violation of the “reasonable promptness” provision of the Medicaid
Act3 by failing to provide available services with reasonable promptness.
3. Violation of the “freedom of choice” provision of the Medicaid Act4
by failing to provide freedom of choice among available services to meet health
and welfare needs.
4. Violation of the Due Process clause of the Fourteenth Amendment
by failing to provide written notice and a hearing regarding the denial or delay of
1 42 U.S.C. § 12132, as implemented by 28 C.F.R. § 35.130(d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”).
2 29 U.S.C. § 794(a), as implemented by 28 C.F.R. § 41.51(d) (“Recipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.”).
3 42 U.S.C. § 1396(a)(8) (“[A]ll individuals wishing to make application for medical assistance under the plan shall have opportunity to do so and . . . such assistance shall be furnished with reasonable promptness to all eligible individuals.”).
4 42 U.S.C. § 1396(a)(23)(A) (“[A]ny individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, or community pharmacy, or person, qualified to perform the services or services required . . . who undertakes to provide him such services . . . .”) and 42 U.S.C. § 1396n(C)(2) (“A waiver shall not be granted unless . . . (C) such individuals . . . are informed of the feasible alternatives, if available under the waiver, at the choice of the such individuals, to the provision of inpatient hospital services [or] nursing facility services . . . .’).
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available services as required under the Medicaid Act5.

Page 4 of 12

II. MOTION TO DISMISS

A. Standing

To establish standing under the “case or controversy” requirement of

Article III, a party must show “(1) that he has suffered an actual or threatened

injury, (2) that the injury is fairly traceable to the challenged conduct of the

defendant, and (3) that the injury is likely to be redressed by a favorable ruling.”

Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994). Under a related doctrine of

ripeness, the injury is further assessed to determine whether adjudication would

be premature because the injury is too speculative and may not occur. Ala.

Power Co. vs. United States Dep’t of Energy, 307 F.3d 1300, 1310 n.9 (11th Cir.

2002). The basic function of the ripeness doctrine is to prevent courts from

“entangling themselves in abstract disagreements over administrative policies,

and also to protect agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete way by the

challenging parties.” Id. (quoting Abbott Laboratories v. Gardner, 387 U.S. 136,

148-49 (1967).

5 42 U.S.C. § 1396(a) (“A State plan for medical assistance must . . . (3) provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or not acted upon with reasonable promptness.”), as implemented by 42 C.F.R § 431.200.
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Page 5 of 12
Defendants argue that Plaintiffs lack standing and that their claims are not ripe because Plaintiffs are not entitled to receive BSCI Waiver Program Services immediately, and because Plaintiffs have not alleged that their ranking on the waiting list brings them within the 300 placements the program allows. These arguments are unavailing for the following reasons.
First, “. . . when standing becomes an issue on a motion to dismiss, general factual allegations of injury resulting from defendant’s conduct may be sufficient to show standing.” Bischoff v. Osceola County, 222 F.3d 874, 878 (11th Cir. 2000). In this case, Plaintiffs have alleged actual injuries that logically flow from all of their claims. These allegations are sufficient to demonstrate standing at this stage of the proceeding.
Second, Plaintiffs allege injuries that, regardless of their positions on the waiting list or their entitlement to immediate services, are subject to remedy through this suit. For example, Plaintiffs’ “integration mandate” claims alleged in Counts I and II are based on provisions of the ADA and the Rehabilitation Act that impose integration obligations independent of the current limits of BSCI Waiver Program. See Olmstead v. L.C., 527 U.S. 581, 607 (1999)(recognizing the States’ obligation under the ADA to provide community-based treatment through reasonable accommodation). The injury at issue is that Plaintiffs are eligible for the services but have been kept on a waiting list that has not moved at a reasonable pace. See id. at 606. “[A] comprehensive, effectively working plan
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Page 6 of 12
for placing qualified persons with [] disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace,” id., would remedy the harm suffered by Plaintiffs, even if they were not provided services immediately.
Plaintiffs’ “reasonable promptness” claim in Count III and “freedom of choice” claim in Count IV present a similar issue. Plaintiffs allege that through under-funding and poor administration, the Defendants have created a situation where services are purportedly available but they are not actually being provided. The injury alleged is not the denial of immediate services. It is the de facto denial of choice among available services and the denial of available services with reasonable promptness by keeping Plaintiffs on a waiting list while services are not actually being provided.
Finally, Plaintiffs’ due process claim in Count V concerns the requirements for notice and an opportunity for a hearing when Medicaid services are delayed or denied. Defendants make no reasoned argument that these due process requirements are dependent upon Plaintiffs being entitled to immediate services or being at the top of the waiting list. Notice and an opportunity for a hearing, which Plaintiffs allege they have not been provided, is required whenever a request for services is denied or not acted upon with reasonable promptness.
Plaintiffs have sufficiently demonstrated that they are suffering injuries as a result of Defendants’ failure to properly provide Medicaid services and administer the BSCI Waiver Program. Accordingly, Defendant’s motion to
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dismiss for lack of standing will be denied.

Page 7 of 12

B. Eleventh Amendment Immunity

Defendants argue that Plaintiffs’ integration mandate claims in Counts I

and II, which are made pursuant to Title II of the ADA and Section 504 of the

Rehabilitation Act, are barred by Eleventh Amendment immunity. This argument

is unavailing for two reasons.

First, Eleventh Amendment immunity has been waived with regard to the

Rehabilitation Act claims in this case by the acceptance of federal funds. See

Garrett v. Univ. of Ala., 344 F.3d 1288 (11th Cir. 2003). Second, Plaintiffs’ claims

can proceed under the doctrine of Ex parte Young6 notwithstanding any Eleventh

Amendment immunity issues. Ex parte Young allows private parties to sue state

officers in their official capacities for prospective injunctive relief against ongoing

violations of federal law. See Summit Med. Associates, P.C. v. Pryor, 180 F.3d

1326, 1336-37 (11th Cir. 1999). The doctrine applies to federal claims generally,

including claims under Title II of the ADA. See Bd. of Trustees v. Garrett, 531

U.S. 356, 374 n9. (2001), see also, Henrietta D. v. Bloomberg, 331 F.3d 261, 288

(2d Cir. 2003) (noting that federal appellate court rulings are now in accord on Ex

Parte Young and Title II of the ADA).

Accordingly, Defendants’ motion to dismiss on Eleventh Amendment

6 Ex parte Young, 209 U.S. 123 (1908).
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immunity grounds will be denied.

Page 8 of 12

C. Validity of Causes of Actions

1. integration mandate claims

Defendants argue that Plaintiffs’ integration mandate claims are deficient

as a matter of law because Plaintiffs have failed to allege that they are being

denied services in a discriminatory manner based on their disabilities. Similar

arguments were rejected by the United States Supreme Court in Olmstead, 527

U.S. at 598-600. In Olmstead, the Court recognized that “unjustified institutional

isolation of persons with disabilities,” as Plaintiffs allege, is a form of

discrimination proscribed by the ADA. Id. at 600.

Additional arguments Defendants raise, regarding whether placements

can be reasonably accommodated or whether doing so would require

fundamental alteration of the State’s program, are affirmative defenses that will

not defeat Plaintiffs’ claim at the pleading stage. Accordingly, Defendants’

motion to dismiss Plaintiffs’ integration mandate claims will be denied.

2. reasonable promptness and freedom of choice claims

As grounds for dismissal of these claims, Defendants repeat the

arguments they made regarding standing. Defendants argue that these claims

are deficient because Plaintiffs have not alleged that their ranking on the waiting

list puts them among the 300 placements the BSCI Waiver Program is designed

to cover. As discussed with regard to standing, Plaintiffs allegations are

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Page 9 of 12
sufficient to state a claim for relief. Accordingly, the motion to dismiss these claims will be denied.
3. due process claim Relying on McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), Defendants argue that Plaintiffs have not stated a valid claim for denial of procedural due process given the opportunities Plaintiffs still have available to request a hearing regarding the denial of services. Defendants’ reliance on McKinney is misplaced. McKinney involved a government employee who alleged that the Board of County Commissioners showed bias against him during his termination hearings. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994). In resolving the case, the McKinney court applied the rule delineated by the Supreme Court in Parratt v. Taylor, 451 U.S. 527 (1981) and Hudson v. Palmer, 468 U.S. 517 (1984) regarding random and unauthorized deprivations. In Parratt and Hudson, the Supreme Court explained that when a deprivation of property results from random and unauthorized conduct, predeprivation procedures are impractical because the state cannot predict that the deprivation will occur. Parratt, 451 U.S. at 541; Hudson, 468 U.S. at 533. Therefore, the Court held the lack of a pre-deprivation hearing will not give rise to a procedural due process violation unless the state fails to provide a meaningful postdeprivation remedy. Parratt, 451 U.S. at 541; Hudson, 468 U.S. at 536. The holdings in Parratt and Hudson, however, do not extend to cases where a
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Page 10 of 12
foreseeable deprivation results from inadequate procedural protections. See Zinermon v. Burch, 494 U.S. 113, 138-39 (1990).
In this case, Plaintiffs do not allege that Defendants acted in a random or unauthorized manner. Instead, Plaintiffs allege that the procedural protections the Defendants have in place are inadequate to provide due process. Accordingly, McKinney does not apply and Defendants’ motion to dismiss the due process claim will be denied. III. CLASS CERTIFICATION
With regard to class certification, Defendants’ primary argument is that the proposed class is overly broad and fails to take into account the particularized nature of each person’s medical condition and status for placement. This argument is similar to one addressed by the United States Court of Appeals, Eleventh Circuit, in Murry v. Auslander, 244 F.3d 807, 813 (11th Cir. 2001). The Murry court found that the problem could be resolved by modifying the class definition to include “only those individuals whom the state already has determined or will determine to be eligible and qualified to receive medically necessary [Waiver services].” Murry 244 F.3d at 813. The same modification will work in this case.
With regard to the other requirements for class certification under Federal Rule of Civil Procedure 23(a), Plaintiffs have demonstrated that class certification is appropriate. In particular, the numerosity requirement is satisfied since the
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Page 11 of 12
class consists of over 226 individuals. The commonality requirement is satisfied because there are common questions of law and fact concerning the propriety of the state’s administration of the BSCI Waiver Program. The typicality requirement is likewise met because given the similarity of claims and defenses. Finally, the adequacy requirement is met because Plaintiffs’ counsel has demonstrated competence with these claims and there is no indication that the interests of the named Plaintiffs and the proposed class are in conflict.
A class action is appropriate under Federal Rule of Civil Procedure 23(b) where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief of corresponding declaratory relief with respect to the class as a whole . . . .” Fed. R. Civ. P. 23(b)(2). Because the relief sought in this case, i.e. to correct deficiencies in the administration of the BSCI Waiver Program, would benefit the class as a whole, and because all requirements of Rule 23(a) have been met, class certification is appropriate. Based on the foregoing, it is
ORDERED AND ADJUDGED: 1. Plaintiff’s Unopposed Motion for An Enlargement of Time to File a Response to Defendants’ Motion to Dismiss (doc. 22) is granted. The response (doc. 28) was considered. 2. Defendants’ Motion to Dismiss the Complaint (doc. 20) is denied. 3. Plaintiffs’ Motion for Class Certification (doc. 12) is granted. The
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Page 12 of 12
class is defined as follows: All individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligible to receive BSCI Waiver Program services and have not received such services.
DONE AND ORDERED this 1st day of March, 2004.
s/ Stephan P. Mickle
Stephan P. Mickle United States District Judge
Case No.: 4:03cv107-SPM

 
 Case 4:03-cv-00107-SPM -AK Document 190 Filed 10/10/06 Page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DUBOIS, et al.,

Plaintiffs,

v.

Case No. 4:03-CV-107-SPM

CALAMAS, et al.,

Defendants.

JOINT NOTICE OF FILING SETTLEMENT AGREEMENT Pursuant to Federal Rule of Civil Procedure 23(e) and Northern District Local Rule 16.2(A), Plaintiffs Michael Dubois, Charles Smith and Melvin M. and Defendants Christa Calamas1, in her official capacity as Secretary of the Florida Agency for Health Care Administration, and M. Rony Francois, in his official capacity as Secretary of the Florida Department of Health now seek Court approval of a Settlement Agreement in this class action case. This case was filed on behalf of individuals with traumatic brain or spinal cord injuries concerning Defendants' administration of Florida's Medicaid Waiver Program that provides home and

1

Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure,

Defendants hereby substitute the current Secretary of the Agency for Health Care

Administration, Christa Calamas, for the former Secretary, Alan Levine, and the

current Secretary of the Department of Health, M. Rony Francois, for the former

Secretary, John Agwunobi.

Case 4:03-cv-00107-SPM -AK Document 190 Filed 10/10/06 Page 2 of 4

community based services for persons with traumatic brain and spinal cord injuries. The Settlement Agreement is attached hereto as Exhibit A.
The parties have contemporaneously, with this notice, and separately filed a Joint Motion for Approval of Procedure to Notify the Class of Proposed Settlement and Fairness Hearing and a proposed Order Requiring Notice to Class Members of Proposed Settlement and Fairness Hearing.

Respectfully submitted,

CHARLES J. CRIST, JR. ATTORNEY GENERAL
s/ George Waas George Waas Special Counsel Florida Bar No. 129967
Douglas B. MacInnes Senior Assistant Attorney General Florida Bar No. 255629
Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399-1050 General PL-01 The Capitol (850) 414-3300 (850) 488-4872 (fax)
ATTORNEYS FOR DEFENDANTS

s/ Andrea Costello Andrea Costello Florida Bar No. 532991 SOUTHERN LEGAL COUNSEL, INC. 1229 N.W. 12th Avenue Gainesville, FL 32601-4113 (352) 271-8890 (352) 271-8347 (fax)
Peter P. Sleasman Florida Bar No. 367931 LEGAL ADVOCACY CENTER OF CENTRAL FLORIDA, INC. 222 S.W. Broadway Street Ocala, FL 34474 (352) 482-0179 (352) 482-0181 (fax)

2

Case 4:03-cv-00107-SPM -AK Document 190 Filed 10/10/06 Page 3 of 4
Appearing Pro Hac Vice: Jane Perkins Sarah Somers NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street Chapel Hill, NC 27514 (919) 968-6308 (919) 968-8855 (fax) ATTORNEYS FOR PLAINTIFFS
3

Case 4:03-cv-00107-SPM -AK Document 190 Filed 10/10/06 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was furnished by electronic notification this 10th day of October, 2006 to the following:
George Waas Douglas B. MacInnes Office of the Attorney General PL-01, the Capitol Tallahassee, FL 32399-1050
s/ Andrea Costello Andrea Costello
4

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 1 of 138

!
I•

EXHIBIT A

I

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 2 of 138
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DUBOIS, et al., Plaintiffs,
v.
CALAMAS, et al., Defendants.

Case No. 4:03-CV-107-SPM

SETTLEMENT RECITALS
~
WHEREAS, Plaintiffs, Michael Dubois, Melvin M. and Charles Smith, filed this lawsuit on April 11, 2003, on behalf of themselves and all others similarly situated concerning Defendants'1 administration of Florida's Medicaid Waiver Program for persons with traumatic brain and spinal cord injuries which provides home and community based services; and
WHEREAS, the class certified as represented by th~ Plaintiffs in this lawsuit is defined as: all individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligible to receive services from Florida's Medicaid Waiver Program for persons with traumatic brain and spinal cord injuries and have not received such services; and

1

Pursuant to Fed. R. Civ. P. 25(d)(1 ), Defendants hereby substitute the current·

Secretary of the Agency for Health Care Administration, Christa Calamas, for the former Secretary

Alan Levine, and the current Secretary of the Department of Health, M. Rony Francois, for the

former Secretary, John Agwunobi.

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 3 of 138 ·[-

i
i

'

WHEREAS, Plaintiffs' lawsuit asserts claims underthe Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101 et seq. and implementing regulations; Section 504 of the
Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794(a) and implementing regulations;
Title XIX of the Social Security Act (the Medicaid Act), 42 U.S.C. § 1396a et seq. and
implementing regulations; and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and
WHEREAS, Defendants have opposed these claims in the course of this litigation; and
WHEREAS, the Plaintiffs and Defendants have voluntarily and knowingly and for the consideration set forth below, agreed to settle this lawsuit on the terms specified in this Settlement Agreement.
SETTLEMENT AGREEMENT NOW THEREFORE, Plaintiffs and Defendants enter into and do hereby stipulate to a Settlement Agreement ("Agreement") that imposes binding obligations upon the parties and their successors to the extent stated below and constitutes a resolution of the issues in this action. A. DEFINITIONS As used throughout this Agreement, the following definitions apply: 1. The term "parties" refers to Plaintiffs and Defendants. As the term applies to Defendants, it includes her/his agents, employees and/or successors in office.
2. The term "CMS" refers to the federal Centers for Medicare & Medicaid
Services of the United States Department of Health and Human Services.
2

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 4 of 138
3. The term "AHCA" refers to the State of Florida, Agency fo~ Health Care Administration.
4. The term "DOH" refers to the State of Florida, Department of Health. 5. The phrase "TBI/SCI Waiver Program" refers to the Medicaid Waiver Program designed and requested by the Defendants and authorized by CMS and described on pages 1-5 and 1-6 of the Defendant developed Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook ("Handbook"), a copy of which is attached hereto as Exhibit "A" for ease of reference for the court and class members and which certain provisions of are incorporated by reference herein. ·6. The term "waiver slots" refers to the unduplicated number of individuals approved by CMS for enrollment at any one time in the TBI/SCI Waiver Program. B. DUE PROCESS, APPLICATIONS FOR SERVICES, FREEDOM OF CHOICE, ASSESSMENTS FOR TBI/SCI WAIVER SERVICES, RULEMAKING, DISTRIBUTION AND NOTICE 1. In consultation with Plaintiffs' counsel, Defendants have developed a Handbook which includes, inter alia, policies and procedures concerning individuals' due process rights, applications for services, freedom of choice, assessments for services, and the waiting list for services. The Handbook encompasses many issues and matters that are beyond the scope of this litigation and Agreement, therefore, only certain selected provisions and pages of the Handbook, which are specifically referred to herein as being incorporated by reference, are considered to be part of the terms of this settlement. For ease of reference only, by class members and the court, the Handbook is attached hereto in its entirety. Defendants agree to make the Handbook, including all appendices thereto, .
3

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 5 of 138rIf
available on their websites. AHCA's website will have a link to the Handbook and the Handbook will be maintained on the Medicaid Fiscal Agent website. The Handbook has been promulgated in Florida's Administrative Code as part of Florida's administrative rules governing Defendants' actions. Fla. Admin. R. 59G-13.130.
2. Defendants agree that an persons who apply for services will receive a written determination within 90 days of the date of their application which informs them whether they will be enrolled in the TBI/SCI Waiver Program, placed on the waiting list for services, whether additional information is needed to complete their application, and/or whether they are determined not to be eligible for services. Such notice will be provided using the "Notice of Decision and Fair Hearing" contained in the attached Handbook at Appendix .pages G-2 and G"'"3.
3. The attached provisions of the Handbook contained at page 2-5 (freedom of choice), page 2-38 (due process) and Appendix G, "Notice of Decision and Fair Hearing" at pages G-2 and G-3 (due process), in concert with applicable federal and state law and regulations, shall govern each of these specified matters for TBI/SCI Waiver Program services. The Handbook pages referred to in this paragraph are incorporated by reference herein.
4. Nothing in paragraphs 2 and 3 above shall operate as an impediment to AHCA engaging in future rulemaking on the referenced subjects provided that any such rules are consistent with federal freedom of choice requirements contained at 42 U.S.C. § 1396n(c)(2) and federal due process requirements contained at 42 U.S.C. § 1396a(a)(3)
and 42 C.F.R. § 431.200 et seq.. Any such rule changes shall not require any revisions
to this Agreement. 4

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 6 of 138

5. In addition to the Handbook, Defendants have developed Internal Operating

Procedures ("lOPs") for the TBI/SCI Waiver Program. The lOPs provide guidance to case

workers concerning the application, assessment, due process, enrollment and waiting list

procedures for the TBI/SCI Waiver Program and shall be provided, upon request, by DOH

to persons on the waiting list, as well as all participants in the TBI/SCI Waiver Program.

Through January 2009, DOH shall provide Plaintiffs' counsel with a copy of any proposed

changes to the lOPs at least 3Q days prior to their authorization. The lOPs are also

available on the BSCIP website.

6. Defendants have also developed two brochures to provide information to

.I

applicants and enrollees concerning the application, assessment, due prpcess, enrollment

II

II
i)

and waiting list procedures for the TBI/SCI Waiver Program. These brochures and any

II

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updated versions, shall be offered by DOH to all applicants for the TBI/SCI Waiver

'I

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Program and shall be distributed to all Brain and Spinal Cord Injury Program (BSCIP)

II

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If

offices in the state, the Florida Brain Injury Association, the Florida Spinal Cord Injury

I
ii

II
II

Resource Center, Centers for Independent Living, and the Advocacy Center for Persons

III,

i'

with Disabilities and local offices of the Department of Children and Families. These

II

II II

publications are also available on the BSCIP website. Through January 2009, DOH shall

II

II

II

provide Plaintiffs' counsel with·a copy of any proposed changes to the brochures at least

i

30 days prior to authorization.

I

7. Notwithstanding the substantial input by Plaintiffs' counsel concerning the

content of the Handbook, lOPs and brochures, this Agreement does not limit the Plaintiffs'

right to pursue any administrative challenges consistent with Florida's Administrative

Procedures Act. §120.56, Fla. Stat. (2006).

5

r
Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 7 of 138

8. AHCA accepts this Settlement Agreement as notice that, through January

2009, Plaintiffs' counsel are interested parties to whom notice of rule adoption under

. Section 120.54(3)(a)(3), Fla. Stat., is due regarding rulemaking concerning the TBi/SCI

.

.

Waiver Program.

9. Plaintiffs agree that all requirements upon Defendants of copies or notice that

run through January 2009 contained in this agreement are fully complied by Defendants

by sending such copies or notice to Southern Legal Counsel, Inc., at the address supplied

below. This is without limitation as to any other means Plaintiffs' counsel subsequently

propose that Defendants find acceptable.

C. WAIVER SLOTS AND FUNDING

1. DOH shall make it a priority to seek funding that will be sufficient to expand

the TBI/SCI Waiver Program by a minimum of 50 slots for FY 2006-07, 75 slots for FY

2007-08 and 75 slots for FY 2008-09. DOHshall use its best efforts to have its legislative

budget request, with each of these stated waiver slot increas.es for each fiscal year,

included as part of the Governor's recommended budget and to obtain the necessary

legislative support and funding for this expansion of waiver slots. DOH shall support this

request and shall use its best efforts to obtain legislative approval of the expansion in each

of these fiscal years.

2. To the extent that the expansion of the TBI/SCI Waiver Program referred to

in paragraph (C)(1) depends upon federal funding or is subject to approval by CMS, AHCA

shall use its best efforts to obtain such funding or approvals.

3. Through June 2009,AHCA agrees to provide Plaintiffs' counsel with copies

of any approved amendments or renewals, to the state's current TBI/SCI Waiver Program

6

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 8 of 138
application (approved as of June 2002) within 30 days of notification of approval by CMS (for approved amendments), including but not limited to any amendments to the number of waiver slots, applied for and approved by CMS. D. ASSESSMENTS FOR TBI/SCI WAIVER PROGRAM SERVICES
1. DOH agrees to perform assessments utilizing the Handbook's Home and Community Medicaid Waiver Prioritization Screening Instrument ("TBIISCI Screening Instrument"). Within 180 days of the execution of this Agreement DOH shall use the TBI/SCI Screening Instrument to perform assessments for all persons on the Waiting List at the time of execution. E. CLASS NOTICE, FAIRNESS. HEARING, COURT APPROVAL OF THE
SETTLEMENT AGREEMENT AND ENTRY OF FINAL ORDER 1. The parties agree that upon execution of this Agreement, they shall file with the Court a Joint Motion in which the parties will request: (a) that the Court approve the (proposed) Notice to the Class and enter an Order approving the Notice and setting a date foraFed. R.Civ. P.23(e)fairnesshearing;(b)thatpursuanttoFed. R.Civ. P.23(e),the Court approve the Settlement Agreement and enter an Order to that effect; and (c) that at the appropriate time, the Court enter a Dismissal With Prejudice pursuant to the terms of this Agreement. 2. Upon execution of this Agreement, counsel will submit to the Court the Joint Motion together with the.proposed orders and the (proposed) Notice to Class Members of Proposed Settlement and Fairness Hearing. Notice to class members, in a form approved by the Court, shall be made. 3. Defendants agree to bear the costs of providing .the notice, by mail, to all
7

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 9 of 138
class members currently on the waiting list for services, and to post the notice on their websites and in appropriate offices.
4. The parties will request that the Court expedite the scheduling of the fairness hearing and counsel will work together to facilitate the fairness hearing. All counsel will use their continued and best efforts to obtain court approval of the Settlement Agreement and the above-referenced orders.
5. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter hereof and is intended as a complete and exclusive statement of the terms and conditions thereof. This Agreement supercedes and replaces all prior negotiations and agreements between the parties hereto,whetherwritten or oral.
6. This Agreement is not an admission of any wrongdoing or misconduct on the part of Defendants, nor is it an admission by Defendants that Plaintiffs would have prevailed or by Plaintiffs that Defendants would have prevailed in this litigation.
7. Dismissal ofthis case shall be with prejudice. The parties understand that this Agreement is not a consent decree. The parties agree that execution of this Agreement by Defendants and/or approval of the same shall not operate in any manner to confer continuing jurisdiction.
8. If the Court does not approve this Agreement or incorporate the terms of this Agreement in the. Final Order, or alters or amends any portion of this Agreement, this Agreement is hereby withdrawn, and shall be null and void and all parties shall be placed in the same position as if this Agreement was never agreed to by the parties.
8

Case 4:03-crv·-.00107-SPM -AK Document 190-2 Filed 10/10/06 Page 10 of 138
F. ATTORNEYS' FEES AND COSTS 1. Defendants agree to pay the Plaintiffs for their reasonable attorneys' fees
and costs associated with this lawsuit for the time period up to and including November 2, 2005, in the amount of $245,000 all inclusive. This amount shall constitute full, fair and
\
final disposition of the entire case on the issue of fees and costs and shall be paid by check issued not later than 30 days after approval of the Settlement Agreement is granted by the court. G. DISPUTE RESOLUTION
1. This Agreement shall be enforceable only in accordance with the terms de~cribed in (H)(2).
2. The parties hereby agree that if a dispute as to the performance of this Agreement should arise, it shall be. resolved exclusively in the following manner:
a. Written Notification of Alleged Violations and Voluntary Correction. If Plaintiffs believe that Defendants have breached the terms of this Agreement, Plaintiffs will notify Defendants of the provision of the Agreement which they allege Defendants have not complied with, and with a written explanation of the nature of the alleged breach. Such notification shall be within ten (1 0) days of discovering such alleged breach. Upon receipt of this written notice and explanation ("notice"), Defendants will conduct an appropriate investigation and respond, in writing, within ten (10) business days, unless an extension is mutually agreed upon. The parties may, if warranted, take voluntary corrective action. There shall be no award of attorneys' fees or costs to either party for any actions/inactions taken at this stage, regardless of the eventual outcome of the dispute.
9

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 11 of 138
b. Mediation. If Plaintiffs reasonably believe that the response provided by Defendants does not resolve the issue(s) or alleged violation(s) raised in the notice, the parties shall attend mediation to resolve the dispute. The cost of the mediation shall be divided evenly between the parties. Unless otherwise agreed in writing between the parties, mediation must commence within 30 calendar days from receipt of notice unless extended for good cause shown. For alleged violations which Plaintiffs, in good faith, reasonably believe may result in immediate and irreparable harm to Plaintiffs, the notice shall so indicate this belief, and mediation must then commence within five (5) business days, if at all practicable, The parties shall conduct the mediation in good faith in an attempt to resolve the matter(s) contained in the notice, and shall therefore have a representative, with full authority to settle the dispute, attend the mediation (subject to any limitations imposed upon Defendants by state law, § 45.062, Fla. Stat.). Neither side is entitled to attorneys' fees for any time devoted toward this mediation process, regardless of outcome.
c. Exclusive Remedy. If the issue(s) of noncompliance raised in the notice is/are not resolved through mediation, then Plaintiffs' sole remedy is to file a separate contract action in a state court of competent jurisdiction in Leon County, Florida. Strict compliance with paragraphs (G)(2)(a) and (G)(2)(b) of this settlement is agreed by the parties to be a condition precedent to the filing of any such action. H. NO STRICT INTERPRETATION AGAINST DRAFTSMAN
1. The parties have participated in the drafting of this Agreement and have had the opportunity to consult with counsel concerning its terms. This Agreement shall not be interpreted strictly against any one party on the ground that it drafted the Agreement or any
10

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 12 of 138

part of it.

2. All legal representations, including agreements based on legal claims,

attributable to the Defendants as set out herein are solely and exclusively for the purpose

of this Settlement Agreement and shall not be binding on these Defendants or Plaintiffs in

any other action or proceeding with the exception of any actio~s filed in state court to

enforce the terms of this Agreement.

I.

FACSIMILE SIGNATURES BINDING

In order to expedite the signing of this Agreement, the parties stipulate and agree
that the delivery of an executed signature page by one party !O the other via facsimile

transmission shall bind the transmitting party to the same extent as service of the original

signature page by hand delivery. The parties stipulate and agree that a party that sends

a signature page via facsimile transmission shall mail the original to the other party within

three (3) business days after the facsimile transmission .

/0 Respectfully Submitted on this

.,.,;:.... .
day of

~ ·"'

, 4006;

By_ :__-~-~-~---
Andrea Costello Florida Bar No.532991
Southern Legal Counsel, Inc.
1229 N.W. 12th Avenue
Gainesville, FL 32601-4113
(352) 271-8890
(352) 271-8347(fax) Attorri~y'for Plaintiffs

Date: ------1-"_0_:_1_~_,~/_o_t,_,:'----__

By: _______________________

Date: _ _ _ _ _ _ _ _ __

Peter P. Sleasman Florida Bar No.367931 Legal Advocacy Center of Central Florida, Inc. 222 S.W. Broadway Street

i

Ii .

11

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 13 of 138

part of it. 2. All legal representations, including agreements based on legal claims,
attributable to the Defendants as set out herein are solely and exclusively for the purpose of this Settlement Agreement and shall not be binding on these Defendants or Plaintiffs in any other action or proceeding with the exception of any actions filed in state court to enforce the terms of this Agreement. I. FACSIMILE SIGNATURES BINDING
In order to expedite the signing of this Agreement, the parties stipulate and agree that the delivery of an executed signature page by one party to the other via facsimile transmission shall bind the transmitting party to the same extent as service of the original signature page by nand delivery. The parties stipulate and agree that a party that sends a signature page via facsimile transmission shall mail the original to the other party within three (3) business days after the facsimile transmission.
Respectfully Submitted on this _ _ day .of _ _ _ _ _ _ _ _, 2006.

By: ___________________

Date: __________

Andrea Costello

Florida Bar No.532991

Southern Legal Counsel, Inc.

1229 N.W. 12th Avenue

Gainesville, FL 32601-4113 (352) 271-8890

(352) 271-8347(fax)

By: -~.!..~-"'t'-o-m""e'--'~'-·f_o_;:r~'-1-=_ -~-in-t_ if_s__ Date: I0 - 0 4- 0 &

Peter P. Sleasman

Florida Bar No.367931

Legal Advocacy Center of Central Florida, Inc.

222 S.W. Broadway Street

·

11

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 14 of 138

Ocala, FL 34474 (352) 482-0179, ext. 313 (352) 482-0181 (fax) Attorney for Plaintiffs

Date: _to~/_4_.+-j_o_h__,___

ppearing Pro Hac Vice: Jane Perkins National Health Law Program, Inc.· 211 N. Columbia Street . Chapel Hill, NC 27514 (919) 968-6308 (919) 968-8855 (fax) Attorneys for Plaintiffs

Date: (()- 4 '- Q(.tJ

By:----------George Waas, Special Counsel Florida Bar No. 129967 Douglas B. Macinnes Senior Assistant Attorney General Florida Bar No. 255629 Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399-1050 (850) 414-3300 (850) 488-4872 (fax) Attorneys for Defendants

Date: _ _ _ _ _ _ _ __

12

10/06/2006 13:09 850-488-4872

OAG

PAGE 02/04

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 15 of 138

Ocala, FL 34474 (352) 482-0179, ext. 313 (352) 482·0181 (fax) Attorney for Plaintiffs

By: Appearing Pro Hac Vice: Sarah Somers National Health Law Program, Inc. 211 N. Columbia Street Chapel HiD, NC27514 (919) 968-6308 (919) 968-8855 (fax) Attorneys for Plaintiffs

Date:

By: Appearing Pro Hac Vice: Jane Perkins National Health Law Program, Inc. 211 N. Columbia Street Chapel Hill, NC 27514 (919) 968-6308 (919) 968-8855 (fax) Attomeys for Plaintiffs

By:

7J~

eo Waas, Special Counsel

Florida Bar No. 129967

Douglas B. Macinnes

Senior Assistant Attorney General

Florida Bar No. 255629

Office of the Attorney General

PL-01 The Capitol

Tallahassee. FL 32399-1050

(850) 414-3300

(850) 488-4872 (fax)

Attorneys for Defendants

Date:
I Date: L6 /c; O(;i

12

1B/B6/2BB6 13:09 850-488-4872

OAG

PAGE 03/04

l6/05!C2aees6e 41:01:34-1cv-00I!1J50tb7U-S3P-8M743-AK Document D1O9H0/G-2EI'ERFAIi.l.eCdOI.1JN0~it/.1L.0/06 Page 16 ot-f'A1bl:3o. 8 J.Q/J. ..

8y:

~ ~ ~ M.S.N.• A.RN.P.

Date:_~£0~/~~~~0.::;._6 _ ' '

Deputy Secretary

Department of Health

40~2 Bald Cypress Way

Talfahassee. Fl 32399

(850) 2454244

(850) 922-9453 (fax)

__ By: --=T~ho_ma s~W~.A~m--ol~d--------
Deputy Secretary for Medicaid Agency tor Health Care Administration 2727 Mahan Drive. MS #8 Tallahassee. FL32308
(850) 488-3560
(850) 488-2520 (fax)

Date: -----------------

By: --W~i~lli-am--R-o-be-rt-s ---------

· Da~:------------~---

Florida Bar No. 0586617

Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, MS #3

Tallahassee, FL 32308-5403

(850) 922-5873

(850)413-9313 {fax)

_______________ By; --=s-~~~~n~B~ro-w_n

Date: _ _ _-...:.._ _ _ __

florida Bar No. 589063
Assistant General Counsel
Agency for Health Care Administration 2727 Mahan Drive, Bldg. 3, MS #3 Tallahassee. Fl32308-5403
(850) 414-7326
(850) 92i ·0158 (fax)

13

10/06/2£1£16 13:09 850-488-4872

OAG

PAGE £!4/El4

1_1!_ I -(:JCb-;a~Js1:e.1b4:0113:-!c:>1:v:1 -00107-SPM -AK Document 190-2 Filed 10/10/06l:l::lldP';aI,.:g:I, eII17 U':>!:!of 138 t-' • !C.::

By. ____________~----~~ Nancy Humbert, M.S.N., A.R.N.P. Deputy Secretary Department of Health 4052 Bald Cypre$s Way
Tallahassee. FL 32399 (850) 245-4244 (850) 922-9453 (fax)

Date:---~--:-----

. By: -....='£~.1/t::;...;...~~.a~._.....~1-.f-t- Date:----.D.~~;.ei/MpM:.:w.Thoi'nas W. Arnold Deputy Secretary for Medicaid Agency for Health Caire Administration 2727 Mahan Drive, MS #8 Tallahassee, Fl 32308 (850) 488~3560 (850) 488-2520 (fax)

~L/~ ~~

Date: /<1,6#(..

Florida Bar No. 0586617 Acting General Counsel Agency for Health Care Administration
2727 Mahan Drive. MS #3
Tallahassee. FL 32308-5403 (850) 922-5873 (850) 413-9313 (fax).

By:----::;.~-.,...-.:...,-...--.---· ---- Date: u; '1/"( Brevin Brown
Florida Bar No. 589063
Assistant General Counsel
Agency for Health care Administration
2727 Mahan Drive, Bldg. 3, MS #3 Tallahassee. FL 32308-5403 (850) 414-7326 (850) 921~0158 (fax)

13

TOTAL. P.l32

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 18 of 138

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Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 19 of 138
Florida Medicaid
Traumatic Brain and Spinal Cord Injury Waiver Services Handbook
Agency for Health Care Administration

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 20 of 138

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 21 of 138

JEB BUSH, GOVERNOR

ALAN LEVINE, SECRETARY

May 15, 2006
Dear Medicaid Provider:
Enclosed please find the Florida Medicaid Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook, April 2006. The handbook includes the provider requirements, covered services, service limitations, procedure codes, and fees for the Florida Medicaid Traumatic Brain and Spinal Cord Injury Waiver Services Program.
Please contact your area Medicaid office if you have any questions. The area Medicaid offices’ phone numbers and addresses are available on the Agency’s website at http://ahca.myflorida.com. Click on Medicaid, and then on Area Offices. They are also listed in Appendix C of the Florida Medicaid Provider General Handbook. All the Medicaid handbooks are available on the Florida Medicaid Provider Handbook and Resource Library CD-ROM and on the Medicaid fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support, and then on Handbooks.
We appreciate the services that you provide to Florida’s Medicaid recipients.
Sincerely,

Beth Kidder Chief, Bureau of Medicaid Services

2727 Mahan Drive y Mail Stop #20 Tallahassee, FL 32308

Visit AHCA online at http://ahca.myflorida.com

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 22 of 138

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 23 of 138

UPDATE LOG TRAUMATIC BRAIN AND SPINAL CORD INJURY
WAIVER SERVICES COVERAGE AND LIMITATIONS HANDBOOK
How to Use the Update Log

Introduction

Changes to the handbook will be sent out as handbook updates. An update can be a change, addition, or correction to policy. It may be either a pen and ink change to the existing handbook pages or replacement pages.
It is very important that the provider read the updated material and file it in the handbook as it is the provider’s responsibility to follow correct policy to obtain Medicaid reimbursement.

Explanation of the Update Log

The provider can use the update log to determine if all the updates to the handbook have been received.
Update No. is the number that appears on the front of the update.
Effective Date is the date that the update was effective.

Instructions

Make the pen and ink changes and file new or replacement pages.
File the cover page and pen and ink instructions from the update in numerical order after the log.
If an update is missed, write or call the Medicaid fiscal agent at the address given in Appendix C of the Medicaid Provider Reimbursement Handbook.

UPDATE NO. Apr2006 New Handbook

EFFECTIVE DATE April 2006

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TRAUMATIC BRAIN AND SPINAL CORD INJURY WAIVER SERVICES
COVERAGE AND LIMITATIONS HANDBOOK

Table of Contents

Chapter/Topic

Page

Introduction Handbook Use and Format .................................................................................................... ii Characteristics of the Handbook ........................................................................................... iii Handbook Updates................................................................................................................ iii

Chapter 1 – Provider Qualifications and Enrollment General Definitions ............................................................................................................. 1-2 Description and Purpose .................................................................................................... 1-5 Provider Qualifications........................................................................................................ 1-7 Community Support Coordinator Provider Qualifications .................................................. 1-9 Service Provider Qualifications ........................................................................................ 1-11 Enrollment Process .......................................................................................................... 1-17 Provider Responsibilities .................................................................................................. 1-19

Chapter 2 - Covered Services, Limitations, and Exclusions Service Requirements .........................................................................................................2-2 Community Support Coordinator.........................................................................................2-8 Community Support Coordinator Documentation Requirements......................................2-10 Plan of Care.......................................................................................................................2-13 Covered Services ..............................................................................................................2-18 Service Documentation Requirements..............................................................................2-18 Adaptive Health and Wellness .........................................................................................2-20 Assistive Technologies ......................................................................................................2-22 Attendant Care ..................................................................................................................2-24 Behavioral Programming ...................................................................................................2-25 Companion Services ........................................................................................................2-27 Consumable Medical Supplies ..........................................................................................2-28 Environmental Accessibility Adaptions.................................................... …………………2-29 Life Skills Training .............................................................................................................2-32 Personal Adjustment Counseling ......................................................................................2-34 Personal Care Services.....................................................................................................2-36 Rehabilitation Engineering Evaluation...............................................................................2-37 Appeal Rights and Fair Hearing Process… ........................ …..……………………………2-38

Chapter 3 – Procedure Codes and Fees Reimbursement Information ................................................................................................3-1 Procedure Code Modifiers...................................................................................................3-5

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Appendices Appendix A: TBI/SCI Waiver Services Procedure Codes, Reimbursement and and Maximum Limits.................................................................................... A-1 Appendix B: Florida Brain and Spinal Cord Injury Program Regions................................ B-1 Appendix C: Home and Community-Based Waiver Referral Agreement.......................... C-1 Appendix D: Brain and Spinal Cord Injury Program Request for Level of Care ............... D-1 Appendix E: Notification of Level of Care.......................................................................... E-1 Appendix F: Brain and Spinal Cord Injury Program Waiting List Policy for the Traumatic Brain/Spinal Cord Injury Medicaid Waiver Program and The Home and Community-Based Medicaid Waiver Prioritization Screening Instrument ..................................................................................... F-1 Appendix G: Notice of Decision and Right to a Fair Hearing ............................................G-1 Appendix H: Brain and Spinal Cord Injury Program Medicaid Home and Community-Based Waiver Service Plan.................................................... H-1

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Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook

Overview

INTRODUCTION TO THE HANDBOOK

Introduction

This chapter introduces the format used for the Florida Medicaid handbooks and tells the reader how to use the handbooks.

Background

There are three types of Florida Medicaid handbooks:
• Provider General Handbook describes the Florida Medicaid Program. • Coverage and Limitations Handbooks explain covered services, their
limits, who is eligible to receive them, and the fee schedules. • Reimbursement Handbooks describe how to complete and file claims for
reimbursement from Medicaid.
Exception: For Prescribed Drugs Services, the coverage and limitations handbook and the reimbursement handbook are combined into one.

Legal Authority

The following federal and state laws govern Florida Medicaid:
• Title XIX of the Social Security Act, • Title 42 of the Code of Federal Regulations, • Chapter 409, Florida Statutes, and • Chapter 59G, Florida Administrative Code.

In This Chapter

This chapter contains:
TOPIC Handbook Use and Format Characteristics of the Handbook Handbook Updates

PAGE ii iii iii

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Handbook Use and Format

Purpose

The purpose of the Medicaid handbooks is to furnish the Medicaid provider with the policies and procedures needed to receive reimbursement for covered services provided to eligible Florida Medicaid recipients.
The handbooks provide descriptions and instructions on how and when to complete forms, letters or other documentation.

Provider

The term “provider” is used to describe any entity, facility, person or group who is enrolled in the Medicaid program and renders services to Medicaid recipients and bills Medicaid for services.

Recipient

The term “recipient” is used to describe an individual who is eligible for Medicaid.

General Handbook

General information for providers regarding the Florida Medicaid Program, recipient eligibility, provider enrollment, fraud and abuse policy, and important resources are included in the Florida Medicaid Provider General Handbook. This general handbook is distributed to all enrolled Medicaid providers and is updated as needed.

Coverage and Limitations Handbook

Each coverage and limitations handbook is named for the service it describes. A provider who furnishes more than one type of service will have more than one coverage and limitations handbook.

Reimbursement Handbook

Each reimbursement handbook is named for the claim form that it describes.

Chapter Numbers

The chapter number appears as the first digit before the page number at the bottom of each page.

Page Numbers

Pages are numbered consecutively throughout the handbook. Page numbers follow the chapter number at the bottom of each page.

White Space

The "white space" found throughout a handbook enhances readability and allows space for writing notes.

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Characteristics of the Handbook

Format

The format styles used in the handbooks represent a concise and consistent way of displaying complex, technical material.

Information Block

Information blocks replace the traditional paragraph and may consist of one or more paragraphs about a portion of the subject. Blocks are separated by horizontal lines.
Each block is identified or named with a label.

Label

Labels or names are located in the left margin of each information block. They identify the content of the block in order to facilitate scanning and locating information quickly.

Note

Note is used most frequently to refer the user to pertinent material located elsewhere in the handbook.
Note also refers the user to other documents or policies contained in other handbooks.

Topic Roster

Each chapter contains a topic roster on the first page, which serves as a table of contents for the chapter, listing the subjects and the page number where the subject can be found.

Handbook Updates

Update Log

The first page of each handbook will contain the update log.
Every update will contain a new updated log page with the most recent update information added to the log. The provider can use the update log to determine if all updates to the current handbook have been received.
Each update will be designated by an “Update No.” and the “Effective Date.”

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Handbook Updates, continued

How Changes Are Updated

The Medicaid handbooks will be updated as needed. Changes may consist of any one of the following:
1. Pen and ink updates—Brief changes will be sent as pen and ink updates. The changes will be incorporated on replacement pages the next time replacement pages are produced.
2. Replacement pages—Lengthy changes or multiple changes that occur at the same time will be sent on replacement pages. Replacement pages will contain an effective date that corresponds to the effective date of the update.
3. Revised handbook—Major changes will result in the entire handbook being replaced with a new effective date throughout.

Numbering Update Pages

Replacement pages will have the same number as the page they are replacing. If additional pages are required, the new pages will carry the same number as the preceding replacement page with a numeric character in ascending order. (For example: page 1-3 may be followed by page 1-3.1 to avoid reprinting the entire chapter.)

Effective Date of New Material

The month and year that the new material is effective will appear at the bottom of each page. The provider can check this date to ensure that the material being used is the most current and up to date.
If an information block has an effective date that is different from the effective date on the bottom of the page, the effective date will be included in the label.

Identifying New Information

New material will be indicated by vertical lines. The following information blocks give examples of how new labels, new information blocks, and new or changed material within an information block will be indicated.

New Label

A new label for an existing information block will be indicated by a vertical line to the left and right of the label only.

New Label and New Information Block

A new label and a new information block will be identified by a vertical line to the left of the label and to the right of the information block.

New Material in an Existing Information Block

New or changed material within an existing information block will be indicated by a vertical line to the left and right of the information block.

New or Changed Paragraph

A paragraph within an information block that has new or changed material will be indicated by a vertical line to the left and right of the paragraph.
Paragraph with new material.

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Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook

CHAPTER 1 TRAUMATIC BRAIN AND SPINAL CORD INJURY
WAIVER SERVICES PROVIDER QUALIFICATIONS AND ENROLLMENT
Overview

Introduction

This chapter describes the Medicaid Traumatic Brain Injury/Spinal Cord Injury Waiver Program (TBI/SCI Waiver Program), specifies the authority regulating TBI/SCI Waiver Program services, the purpose of the program and provider qualifications, enrollment, and responsibilities.
The handbook is intended for TBI/SCI providers. Internal program policies and procedures pertaining to state agency operations are contained in internal operating procedure (IOP) documents, not the provider handbook.

Legal Authority

Medicaid home and community-based services (HCBS) waiver programs are authorized under Sections 1902 (A)(10)(B) and 1915(C) of the Social Security Act and governed by Title 42, Code of Federal Regulations (C.F.R.), Part 441, Subpart G.
The Florida Medicaid TBI/SCI Waiver Program is authorized by Chapters 381.75 and 409, Florida Statutes (F.S.) and Chapter 59G, Florida Administrative Code (F.A.C.).
Specific statutory authority for the promulgation of the TBI/SCI Waiver Services Handbook into rule is found in the following provisions of law: Chapters 408.301, 408.302, and 409.919, F.S.
The Agency for Health Care Administration (AHCA) has final authority on all policies, procedures, rules, regulations, manuals and handbooks pertaining to the waiver. The Department of Health (DOH) is authorized by AHCA to operate and oversee the waiver in accordance with the Interagency Agreement for Medicaid between AHCA and DOH regarding the TBI/SCI Waiver Program.

In This Chapter

This chapter contains:
TOPIC General Definitions Description and Purpose Provider Qualifications Community Support Coordinator Provider Qualifications Service Provider Qualifications

PAGE
1-2 1-5 1-7 1-9 1-11

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Overview, continued

In this Chapter,

Enrollment Process

1-17

continued

Provider Responsibilities

1-19

General Definitions

AHCA

AHCA is the acronym for the Agency for Health Care Administration. AHCA administers the Florida Medicaid program.

Agency or Group Provider

A business or organization enrolled to provide a waiver service(s) that has one or more staff employed to carry out the enrolled service(s). An agency or group provider for rate purposes is a provider that hires staff to perform the waiver services.

Authorized Representative

An individual who has filed a letter of authorization, signed by the applicant or recipient, authorizing the person to represent the applicant or recipient.

BSCIP

BSCIP is the acronym for the Brain and Spinal Cord Injury Program operated by the Florida Department of Health. The TBI/SCI Waiver Program is operated as a function of BSCIP. BSCIP has headquarters in Tallahassee and has regional offices located throughout the state.
Note: See Appendix B in this handbook for a listing of the BSCIP regional offices and contact information. Additional information on the BSCIP is available at http://www.doh.state.fl.us/Workforce/BrainSC

Brain Injury

Brain injury (as defined in Chapter 381.745, F.S.) is an insult to the skull, brain or its covering, resulting from external trauma, which produces an altered state of consciousness or anatomic, motor, sensory, cognitive or behavioral deficits.

Brain and/or Spinal Cord Injury

For the purpose of this handbook, brain and/or spinal cord injury means brain and spinal cord injury or brain or spinal cord injury.

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General Definitions, continued

Care Plan

The care plan is an individualized plan of supports and services designed to meet the needs of a recipient enrolled in the waiver program. The plan is based on the preferences and needs of a recipient and is utilized to authorize the provision of waiver services and supports to a recipient. The care plan is also referred to as the plan of care.

Case Management Agency

One of the five regional offices of the BSCIP that assists the waiver recipient in community reintegration.

Case Manager

Person employed by the BSCIP to provide case management services for applicants and recipients.

Central Registry

The central registry is established and maintained by the Department of Health for persons who have sustained moderate to severe brain or spinal cord injuries. In accordance with Chapter 381.74 F.S., every public or private health agency, private or public social agency, and attending physician must report to the registry within five days of identification or diagnosis of any person who has such a brain or spinal cord injury.

Community Support Coordinator

An enrolled waiver provider of community support coordination services is selected by the recipient enrolled in the waiver (or his authorized representative) to assist the recipient who receives waiver services in gaining access to needed waiver and Medicaid state plan services, as well as needed medical, social, educational and other services, regardless of the funding source for the services to which access is gained.

DOH

DOH is the acronym for the Florida Department of Health. The DOH administers the Brain and Spinal Cord Injury Program (BSCIP).

Health Insurance Portability and Accountability Act of 1996 (HIPAA)

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) makes health insurance more “portable” so that workers may take their health insurance with them when they moved from one job to another, without losing health coverage. This federal legislation also requires the health care industry to adopt uniform codes and forms to streamline the processing and use of health data and claims. HIPAA also provides protection for the privacy of people’s health care information and gives them greater access to that information.

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General Definitions, continued

Independent Provider Invoice
Level of Care
Medicaid State Plan Services

An individual who meets specified qualifications of certain career service classification codes or holds local occupational licenses.
A list of the approved service(s) or procedure(s) rendered or item(s) purchased, rate and units. The provider’s name, address, provider number and the appropriate service code must appear on the form. When billing for equipment or supplies, include brand name, model number, size, and any attachments needed. The service provider may send a copy of catalog pages.
The level of nursing or rehabilitative care required by a Medicaid applicant or recipient based on his medical or related needs as defined by the criteria in Chapter 59G-4.180, F.A.C.
The Medicaid state plan is the name of the state and federal document that describes the Medicaid services that the state provides to all Medicaid recipients as authorized in Chapter 409, F.S. State plan services are available to persons enrolled in the waiver and must be accessed prior to accessing waiver services. Individuals placed on the waiting list for TBI/SCI waiver services who are eligible for Medicaid are eligible for state plan services.
A description of the services offered through the Florida Medicaid Program state plan can be found in the Florida Medicaid provider handbooks. The handbooks are available on the Medicaid fiscal agent website at http://floridamedicaid.acs-inc.com. Click on Provider Support, and then on Handbooks.

Residence

The place in which a recipient resides for an extended or a permanent period of time and is considered his home.

RIMS

RIMS is the acronym for the Rehabilitation Information Management System, which is the database of all client information, maintained by the BSCIP.

Spinal Cord Injury

Spinal cord injury, as defined in Chapter 381.745, F.S., is a lesion to the spinal cord or cauna equine resulting from external trauma with evidence of significant involvement of two of the following – motor deficit, sensory deficit, bowel and bladder dysfunction.

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General Definitions, continued

TBI/SCI Medicaid Waiver Administrator

The BSCIP Headquarters Office employs a TBI/SCI Medicaid waiver administrator who is responsible for the following:
• Managing the waiver at the headquarters level and coordinating with BSCIP regional offices;
• Receiving provider enrollment packets; • Verifying that providers meet licensure, certification and other standards; • Facilitating enrollment of eligible providers with the Medicaid fiscal agent; • Training providers and furnishing technical assistance; • Monitoring providers through on-site reviews at least annually; • Preparing written monitoring reports for the provider, DOH and AHCA; and • Maintaining day-to-day operations of the TBI/SCI Waiver.

Description and Purpose

TBI/SCI Waiver Description

Recipients in the TBI/SCI Waiver Program have access to support and services, which enable them to live at home and in the community. Eligibility is limited to the number of unduplicated recipients stated in the waiver application or amendments that is approved by the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services, and by the amount of state matching revenue appropriated by the legislature.
State matching funds for the waiver are generated from the TBI/SCI Trust Fund. Revenue from moving traffic violation fines, Driving Under the Influence, Boating Under the Influence convictions and $1.00 from all temporary tags goes into this fund. The Florida DOH, BSCIP operates the waiver under the authorization of AHCA’s Division of Medicaid. The waiver has a five-year span and may be renewed at the discretion of the Centers for Medicare and Medicaid Services.
TBI/SCI waiver recipients must demonstrate health conditions or limitations in functioning that would result in placement in a skilled nursing facility were it not for the provision of TBI/SCI waiver services.

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Description and Purpose, continued

Purpose of the TBI/SCI Waiver

The purpose of the TBI/SCI Waiver Program is to maintain and promote the health of individuals with traumatic brain injuries or spinal cord injuries through the provision of needed supports and services in order to delay or prevent institutionalization. The intent of the program is to provide a choice of services that will allow eligible recipients to live at home or in the community and to achieve productive lives to the degree possible.
TBI/SCI waiver recipients receive services that enable them to:
• Remain in the community; • Reside in an accessible environment; • Receive necessary support services; and • Receive necessary supplies and equipment.

Purpose of this Handbook

This handbook is intended for use by eligible providers who furnish TBI/SCI Medicaid waiver services to recipients enrolled in the waiver program. It must be used in conjunction with the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, which contains the specific procedures for submitting claims for payment, and the Florida Medicaid Provider General Handbook, which contains information about the Medicaid program in general and record keeping requirements.
Note: The Florida Medicaid provider handbooks are available on the Medicaid Handbook and Resource Library CD-ROM and the Medicaid fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support, and then click on Handbooks. The Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, is incorporated by reference in 59G-13.001, F.A.C.; and the Florida Medicaid Provider General Handbook is incorporated by reference in 59G-5.020, F.A.C.

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Provider Qualifications

Introduction

Before becoming eligible and to remain eligible to provide TBI/SCI waiver services, TBI/SCI waiver providers must meet the general Medicaid provider qualifications contained in Chapter 2 of the Florida Medicaid Provider General Handbook and the specific provider qualifications and requirements listed in this handbook.

General TBI/SCI Waiver Provider Qualifications

TBI/SCI waiver provider applicants must meet the following specific TBI/SCI qualifications:
• Be determined to meet the provider qualifications and be certified as eligible by the BSCIP Headquarters Office;
• Not be currently suspended from Medicare or Medicaid in any state; • Possess a high degree of ethical principles and have no adverse documented
history with DOH, BSCIP, AHCA, or any other regulatory agency that raise questions regarding whether the health, safety and welfare of a consumer would be jeopardized during the delivery of an approved waiver service; • Be enrolled with the Medicaid fiscal agent as a TBI/SCI waiver provider, provider type 67, specialty code 79; • Have a current, signed TBI/SCI Waiver Referral Services Agreement with DOH (Appendix C); and • Be at least 18 years of age.
Note: See Appendix C for a copy of the TBI/SCI Waiver Referral Services Agreement.

Agreement to Comply

All TBI/SCI waiver provider applicants must agree to comply with requirements found in the Medicaid Provider Agreement and the TBI/SCI Medicaid Waiver Services Referral Agreement, as well as the service-specific requirements specified in this handbook, as a condition of enrollment and remaining eligible to provide services.

TBI/SCI Waiver Provider Background Screening Requirements

Direct service provider applicants, as defined in Chapter 393.063(15), F.S., must comply with the requirements of a level II background screening in accordance with section 435.04, F.S. Failure to do so will result in denial of application.
Note: See Chapter 2 in the Florida Medicaid Provider General Handbook for information on the background screening requirements and procedures.

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Provider Qualifications, continued

Family Members Enrolled as TBI/SCI Waiver Providers

Parents of minors, spouses, guardians and guardian advocates of waiver participants are specifically excluded from payment for any services provided to their child, spouse or recipient for whom they are a guardian or guardian advocate.
Under no circumstances may a relative provide community support coordination to a recipient who is a family member.
Relatives who are not legally responsible for the care of the recipient may provide attendant, companion or personal care, as long as they meet the provider qualifications for the service. The relative must meet the same qualifications as other providers of the same waiver service and be approved and enrolled as a Medicaid TBI/SCI waiver provider. The reasons for using a relative who is not legally responsible for the care of the recipient must be documented in the case record.

Provider Agencies

A provider agency or group provider for rate purposes is a provider who hires staff to perform the waiver services. The agency rate is used for all services that are directly provided by employees of the provider. All employees of an agency or group provider must meet the qualifications and requirements specified in the provider agreement and in this chapter for the specific services that they are providing. The provider must maintain a personnel file documenting qualifications of all employees and their background screening results.

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Community Support Coordinator Provider Qualifications

Community Support Coordination Provider Qualifications

Community support coordination providers must meet the following educational or certification requirements:
• Master’s degree from an accredited college or university in counseling, rehabilitation counseling or social work;
• Bachelor’s degree from an accredited college or university with a major in a social, behavioral or rehabilitative science or education and three years professional experience in counseling or in a public rehabilitation program;
• Certification as a case manager by the Commission for Case Manager Certification; or
• Certification as a disabilities management specialist by the Certification of Disability Management Specialist Commission.

Community Support Coordinator Documentation Requirements

At the time of enrollment, community support coordinators must submit documentation to show that by coursework, experience or training that they have:
• Familiarity with the population served; • Knowledge of the theories and practices in training the population served; • Knowledge of the theories and practices of effective verbal and written
communication with the population served; • Knowledge of medical and psychological aspects of disability groups; • Knowledge of methods of compiling, organizing and analyzing data; and • Knowledge of interviewing techniques.

Background Screening for Community Support Coordinators

When the provider applicant submits an application with fingerprint card to the BSCIP Headquarters Office and a local level background check has been completed by the Florida Department of Law Enforcement and returned with no criminal record or other disqualifying offense, the BSCIP Headquarters office will determine the applicant eligible to conduct unsupervised visits with a recipient.

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Community Support Coordinator Provider Qualifications, continued

Dual Employment

Community support coordinator applicants who have other employment at the time of application and who intend to remain in the current employment must include a statement with their provider applications that addresses their plans for dual employment.
The statement must include the following information:
• Type of employment held at the time of the application; • Total number of hours involved in that employment on a weekly basis; • Plan for the manner in which the applicant may be contacted by recipients
receiving services during the hours employed in the other job; • How conflicting priorities, emergencies and meetings will be handled; and • Any long range plans that the community support coordinator applicant has
for reducing or terminating the other employment should he assume a full waiver caseload.
The BSCIP Headquarters Office must approve the dual employment plan as a part of the waiver enrollment process. If it is determined that the applicant cannot be available to meet the needs of the recipients in the applicant’s caseload, the application will be denied.
In no instance may dual employment include providing direct services to recipients with traumatic brain and/or spinal cord injuries, unless the services are provided within the role of case manager or community support coordination.

Community Support Coordination Training Requirements

Community support coordinators must attend a minimum of 12 hours of statewide pre-service training that is conducted by the BSCIP Office.
Community support coordinators must also be trained and certified by the BSCIP Office in the proper administration of the DOH approved assessment tool for ascertaining the recipient’s level of need. This training is separate from, and in addition to, the pre-service requirement. Community support coordinators must be certified in the administration of the DOH approved assessment within 90 days of completing the pre-service training.
Community support coordinators are required to participate in statewide trainings held by the BSCIP Office. These trainings are held annually. Community support coordinators are required to attend at least every other year.

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Service Provider Qualifications

Adaptive Health and Wellness Provider Qualifications

Adaptive health and wellness providers must be a health studio, as defined in Chapter 501, F.S., excluding those types exempted in sections 501.013(2)-(5), F.S.
Providers of adaptive health and wellness services must meet the following minimum qualifications:
• During the times the facility is open to recipients, a physical therapist who is licensed to practice in Florida must be present;
• During the times the facility is open to recipients, sufficient staff with the following qualifications must be present to assist the consumers to safely use the equipment and facilities;
Ö Understanding and knowledge of disabilities and functional limitations; and
Ö Special training in working with individuals with traumatic brain and/or spinal cord injuries.
• Equipment must be accessible or adaptable to people with disabilities.
Providers must supply the community support coordinator with documentation of recipient’s attendance at the facility.

Adaptive Health and Wellness Training Requirements

All adaptive health and wellness providers’ staff must provide proof of training in Cardiopulmonary Resuscitation (CPR) no later than 30 days of initially providing services. Providers must maintain proof that their staff completed CPR training and annual or required updated training on file for review.

Assistive Technologies Provider Qualifications

The Code of Federal Regulations (C.F.R.) Part 440.70 requires assistive technologies providers to be in compliance with all applicable state and local laws relating to qualifications or licensure.
Chapter 205, F.S. requires independent vendors, assistive technologies suppliers and assistive technologies practitioners to be certified by the Rehabilitation Engineering and Assistive Technology Society of North America (RESNA).

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Service Providers Qualifications, continued

Attendant Care Provider Qualifications

Attendant care providers must be licensed as a:
• Home health agency licensed under Chapter 400, Part IV, F.S., or • Registered nurse licensed under 464, part I, F.S., or • Licensed practical nurse licensed under Chapter 464, Part I, F.S.
At the time of enrollment, attendant care providers must demonstrate a familiarity with the population to be served by submitting a detailed resume with their enrollment applications.
A registered nurse who is licensed in Florida must supervise attendant care services provided by a licensed practical nurse (LPN). The frequency and intensity of the supervision will include direct observation during the provision of attendant care services by the registered nurse every 60 days.

Attendant Care Provider Training Requirements

Attendant care providers must provide proof of training in CPR, AIDS and infection control no later than 30 days of initially providing attendant care services. Proof of annual or required updated training must be maintained on file for review.

Behavioral Programming Provider Qualifications

Behavioral programming providers must have one of the following licenses or certificate:
• Psychologist licensed under Chapter 490, F.S.; • Mental health counselor, clinical social worker, marriage and family therapist
licensed under Chapter 491, F.S.; or • Behavior analyst or associated behavior analyst certification in accordance
with Chapter 393, F.S.
At the time of enrollment providers must submit documentation to show by coursework, experience or training that they have:
• Familiarity with population served; • Knowledge of the theories and practices in behavior management; • Knowledge of the theories and practices of effective verbal and written
communication; and • Knowledge of medical and psychological aspects of disability groups.

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Service Provider Qualifications, continued

Companion Services Provider Qualifications

Companion services providers must be either a:
• Home health agency licensed under Chapter 400, Part IV, F.S.; or • Independent vendor.
At the time of enrollment, independent vendor providers must:
• Demonstrate a familiarity with the population served; • Be 18-years of age or older; • Have the ability to read, write and follow directions; and • Have special training in working with individuals with traumatic brain and/or
spinal cord injuries. Special training means validation by the DOH of a provider’s experience working with individuals with traumatic brain and/or spinal cord injuries.
Relatives who are not legally responsible for the care of the recipient may provide companion care, as long as they meet the provider qualifications and are approved and enrolled as a Medicaid TBI/SCI waiver provider.

Companion Services Training Requirements

Companion service providers must provide proof of training in CPR, AIDS and infection control within 30 days of initially providing companion care services. Proof of annual or required updated training must be maintained on file for review.

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Service Provider Qualifications, continued

Consumable Medical Supplies Provider Qualifications

Consumable medical supplies providers must be licensed as a:
• Durable medical equipment company licensed under Chapter 205, F.S.; • Pharmacy licensed under Chapter 465, F.S. and permitted by DOH; or • Home health agency licensed under Chapter 400, Part IV, F.S.
In accordance with Chapter 400.935, F.S., and Chapter 409.919, F.S., home health agencies and durable medical equipment companies must provide a surety bond, letter of credit or other collateral at the time of application, unless the agency has been a Medicaid-enrolled provider for at least one year prior to the date it applies to become a waiver provider and has had no sanctions imposed by Medicaid or any other regulatory body.
Medical supply companies and durable medical equipment suppliers must hold local occupational licenses or permits, in accordance with Chapter 205, F.S.

Environmental Accessibility Adaptations Provider Qualifications

Environmental accessibility adaptation (EAA) services providers must be general contractors licensed under Chapter 464, Part I, F.S. and have verification of insurance coverage including liability and worker’s compensation, an occupational license issued by the county or city, and a federal tax identification number.
Providers of environmental accessibility adaptations must demonstrate experience in the assessment of the need for such adaptations.

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Service Provider Qualifications, continued

Life Skills Training

Providers of life skills training must meet the following educational qualifications:
• Master’s degree from an accredited college or university in counseling, rehabilitation counseling, psychology, occupational therapy, speech therapy or social work; or
• Bachelor’s degree from an accredited college or university in social, behavioral or rehabilitative science or education and two years of experience in counseling or in a public rehabilitation program.
At the time of enrollment, providers must also possess knowledge of medical and psychological aspects of disability groups and demonstrate by coursework, experience or training:
• Familiarity with population served; • Knowledge of the theories and practices in training; and • Knowledge of the theories and practices of effective verbal and written
communication.

Personal Care Services Provider Qualifications

Personal care services providers of this service must be one of the following entities:
• Home health agency licensed under Chapter 400, Part IV, F.S.; • Community Care for the Elderly Lead Agency registered in accordance with
Chapter 400.509, F.S., 410.604, or 410.0241; or • Personal services provider certified in Basic First Aid and Adult CPR.
Providers must also meet the following minimum qualifications:
• Be 18-years of age or older; • Have the ability to read, write and follow directions; and • May not be legally responsible for the recipient.
At the time of enrollment, providers of this service must demonstrate training or validation of skills competency in all of the following areas:
1. Assisting with activities of daily living to include bathing, dressing, toileting, feeding, eating, bed making, ambulating and body mechanics;
2. Nutrition and food management to include the purchasing, preparation, storage and serving of food;
3. Household management to include care of bedroom, bathroom, kitchen, care of clothing and safety in the home; and
4. Special training or experience in working with individuals with traumatic brain and/or spinal cord injuries.

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Service Provider Qualifications, continued

Personal Care Services Training Requirements

Personal care providers must provide proof of training in the areas of CPR, AIDS and infection control within 30 days of initially providing personal care services. Proof of annual or required updated training must be maintained on file for review.

Personal Adjustment Counseling Provider Qualifications

Personal adjustment counseling providers must meet the following requirements:
• Be licensed as a psychologist, mental health counselor, clinical social worker, or marriage and family therapist under Chapters 490 or 491, F.S.; or
• Be certified as a rehabilitation counselor by the Commission of Rehabilitation Counselor Certification.
At the time of enrollment providers must demonstrate by coursework, experience or training that they have:
• Familiarity with population served; • Knowledge of the theories and practices in training; • Knowledge of the theories and practices of effective verbal and written
communication; and • Knowledge of medical and psychological aspects of disability groups.

Rehabilitation Engineering Evaluation Provider Qualifications

Providers of rehabilitation engineering evaluation must be certified assistive technology practitioners credentialed through the Rehabilitation Engineering and Assistive Technology Society of North America.
At the time of enrollment providers must also provide a:
• Current professional license or certification; • Copy of occupational license issued by county or city; • Copy of Federal Tax ID Certification; and • Copy of professional liability insurance.

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Provider Enrollment

Introduction

To enroll as a TBI/SCI wavier provider, the individual or entity must submit a completed Medicaid enrollment application package and a TBI/SCI Waiver Referral Services Agreement (Appendix C) to the BSCIP Headquarters Office.
Note: Medicaid enrollment application packages can be obtained from the Medicaid fiscal agent by calling 800-377-8216. Enrollment forms are also available on the fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support.
Note: See Appendix C for a copy of the TBI/SCI Waiver Referral Services Agreement.

Determination of Provider Eligibility for Certification

The BSCIP Headquarters Office makes a preliminary determination as to whether or not the provider applicant meets the qualifications and requirements for enrollment as a waiver provider. This determination includes a review of previous employment history and other relevant information. The BSCIP Headquarters Office will notify the applicant in writing if the applicant is denied enrollment as a provider of waiver services.

Enrollment Process

After the BSCIP Headquarters Office certifies the TBI/SCI waiver provider application, BSCIP forwards the enrollment application to the Medicaid fiscal agent, who completes final processing and determines enrollment.
The Medicaid fiscal agent notifies the BSCIP Headquarters Office when the provider applicant is enrolled in Medicaid as a TBI/SCI waiver provider. The BSCIP Headquarters Office then sends the provider a notice indicating the status as a Medicaid-enrolled TBI/SCI waiver provider.
The notice will list the TBI/SCI waiver services that the provider is eligible to provide, the effective date of Medicaid enrollment, and the assigned Medicaid provider number.
Once notice of enrollment is received, the provider may render waiver services and receive reimbursement for those services from Medicaid. No waiverreimbursed service may be offered or rendered until the provider receives notification of enrollment in Medicaid.
Note: For additional information, contact the BSCIP Regional Office. See Appendix B for contact information.

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Provider Enrollment, continued

Service Providers Wishing to Provide Multiple Services

Existing Medicaid waiver providers may cross-enroll to provide services in other waivers as well as apply to provide additional TBI/SCI services for which they meet provider qualifications.
To enroll to provide additional services, the provider must complete the following forms:
• Application for a New Location Code. Enter “67” for provider type and “79” for specialty code;
• Authorization Agreement For Electronic Funds Transfer and a letter from the bank;
• Non-Institutional Provider Agreement; and • Finger print card and check, if background screening was not previously
completed.
The provider submits the form to the BSCIP Headquarters Office, which will review them for completeness and, if necessary, work with the provider to remedy any problems with the application. If the provider meets the TBI/SCI waiver provider requirements, the BSCIP Headquarters Office will certify the provider and send the application to the Medicaid fiscal agent, who completes the provider’s enrollment.
Note: Medicaid enrollment application forms can be obtained from the Medicaid fiscal agent by calling 800-377-8216. Enrollment forms are also available on the fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support.

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Provider Responsibilities

HIPAA Responsibilities

Florida Medicaid has implemented all of the requirements contained in the federal legislation known as Health Insurance Portability and Accountability Act (HIPAA). As trading partners with Florida Medicaid, all Medicaid providers, including their staff, contracted staff and volunteers, must comply with HIPAA privacy requirements effective April 14, 2003. Providers who meet the definition of a covered entity according to HIPAA must comply with HIPAA Electronic Data Interchange (EDI) requirements effective October 16, 2003. This coverage and limitations handbook contains information regarding changes in procedure codes mandated by HIPAA. The Florida Medicaid Provider Reimbursement Handbooks contain the claims processing requirements for Florida Medicaid, including the changes necessary to comply with HIPAA.
Note: For more information regarding HIPAA privacy in Florida Medicaid, see Chapter 2 in the Florida Medicaid Provider General Handbook.
Note: For more information regarding claims processing changes in Florida Medicaid because of HIPAA, see the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081.
Note: For information regarding changes in EDI requirements for Florida Medicaid because of HIPAA, contact the fiscal agent EDI Help Desk at 1-800829-0218.

Changes to Provider Information

Medicaid requires that changes to a provider’s enrollment information, such as address and financial reporting, must be reported to the Medicaid fiscal agent, who will notate the changes to the provider file and send any needed forms to the provider. If the provider fails to notify the Medicaid fiscal agent of changes or fails to return any required forms, the provider’s payment may be delayed.
After receiving the appropriate forms from the Medicaid fiscal agent, it is essential that the provider send the forms identifying the provider changes to the BSCIP Headquarters Office for official tracking and recording of the changes. It is the responsibility of BSCIP Headquarters to return the recorded form back to the Medicaid fiscal agent.
Providers should maintain a copy of all correspondence and a return receipt for any information requested or sent by certified mail. Doing so will facilitate resolution of any outstanding issues or concerns.
Note: See Chapter 2 in the Florida Medicaid Provider General Handbook for additional information on reporting changes.

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Provider Responsibilities, continued

Staffing Requirements

A Medicaid provider must furnish sufficient and appropriate staff to meet the needs of the recipients it has agreed to serve. Staffing requirements are based on the amount and types of services to be provided as authorized in the recipient’s care plan, which is based on the recipient’s service needs that were identified through a comprehensive assessment.
A provider should agree to serve a recipient only after the provider has reviewed and understands the recipient service needs as specified in the recipient’s care plan.

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CHAPTER 2 TRAUMATIC BRAIN AND SPINAL CORD INJURY
WAIVER SERVICES COVERED SERVICES, LIMITATIONS AND EXCLUSIONS
Overview

Introduction

This chapter describes the services covered under the Traumatic Brain Injury/Spinal Cord Injury (TBI/SCI) Waiver Program. It also describes the requirements to receive services, the requirements for service provision, service limitations, and service exclusions.

In This Chapter

This chapter contains:
TOPIC Service Requirements Community Support Coordinator Community Support Coordination Documentation Requirements Plan of Care Covered Services Service Documentation Requirements Adaptive Health and Wellness Assistive Technologies Attendant Care Behavioral Programming Companion Services Consumable Medical Supplies Environmental Accessibility Adaptations Life Skills Training Personal Adjustment Counseling Personal Care Services Rehabilitation Engineering Evaluation Appeal Rights and Fair Hearing Process

PAGE 2-2 2-8 2-10
2-13 2-18 2-18 2-20 2-22 2-24 2-25 2-27 2-28 2-29 2-32 2-34 2-36 2-37 2-38

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Service Requirements

Introduction

Medicaid reimburses providers for home and community-based services rendered to eligible Medicaid recipients who have been enrolled in the TBI/SCI Waiver Program.
TBI/SCI waiver services must be rendered by qualified, enrolled providers pursuant to a written plan of care that is developed as a result of a detailed assessment of the recipient’s condition and service needs. Because services are based on the individual needs of the recipient, not every recipient receives every service.

Determination of Medicaid Eligibility

Individuals not already receiving Medicaid benefits as members of the Medicaid eligibility groups served indicated in the TBI/SCI Waiver at the time they need TBI/SCI waiver services must be referred to the local Department of Children and Families (DCF) public assistance office or online http://www.myflorida.com/accessflorida to apply for Medicaid coverage.
An authorized representative may submit the application on behalf of the individual. The individual’s case manager may assist an individual in submitting an application for Medicaid benefits.
The applicant should specifically state on the application that it is for “Home and Community-Based Services.”
Financial eligibility for home and community-based waiver services is determined by DCF staff using the Institutional Care Program (ICP) assets and income eligibility criteria.
If the DCF Office of Economic Self-Sufficiency made the original financial eligibility determination, that office will notify the recipient annually of the need to renew eligibility. If the recipient is Medicaid-eligible through Supplemental Security Income (SSI), annual financial redetermination by DCF is not required.
Note: A list of current local DCF Offices of Economic Self Sufficiency is available on the Internet at http://www.dcf.state.fl.us/ess.

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Service Requirements, continued

Who Can Receive Services

Enrollment in the TBI/SCI Waiver Program is limited to the number of unduplicated recipients stated in the waiver application or amendments, which have been approved by the Centers for Medicare and Medicaid Services, and by the amount of matching state revenue appropriated by the legislature.
Participants in the waiver must meet all of the following criteria:
• Be age 18 or older; • Be diagnosed with a traumatic brain injury or spinal cord injury as defined
in Chapter 381.745, F.S.; • Be medically stable, which is defined as the absence of any of the
following: (1) An active, life threatening condition (e.g., sepsis, respiratory, or other condition requiring system therapeutic measures), (2) IV drip to control or support blood pressure, or (3) intracranial pressure or arterial monitor; • Be eligible for Medicaid under one of the categories described in Chapter 3 of the Florida Medicaid Provider General Handbook; • Meet the level of care criteria for Intermediate II, or higher (i.e., Intermediate II, Intermediate I or Skilled) as stated in 56G-4.180, F.A.C.; • Be referred to the State’s Central Registry, created by Section 381.74, F.S.; and • Be enrolled in the TBI/SCI Waiver Program. Recipient “enrollment” means being determined financially and medically eligible following a determination of available TBI/SCI waiver funds.

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Service Requirements, continued

Level of Care Requirements

All applicants for TBI/SCI waiver services must be assessed to determine whether they meet the nursing home level of care for Intermediate II or higher (i.e., Intermediate II, Intermediate I or Skilled) as stated in 56G-4.180, F.A.C. A level of care determination verifies that an individual qualifies for nursing home level of care.
Level of care reviews are performed by the Comprehensive Assessment and Review for Long Term Care Services (CARES) Program in the Department of Elder Affairs.

Level of Care Determinations Procedures

If a TBI/SCI waiver applicant resides in the community at the time of enrollment, he must have:
• An initial level of care determined by Florida’s CARES Program; and • His injury certified using the Brain and Spinal Cord Injury Program
Request for Level of Care form (Appendix D). This form is filled out by a physician and covers medical stability and medical eligibility and includes a statement of nursing home level of care eligibility. It must be signed and dated by the physician.
If the TBI/SCI waiver applicant resides in a institutional setting (e.g., individuals who are institutionalized for trauma or acute medical and acute rehabilitation services following a brain or spinal cord injury or individuals residing in a nursing facility) at the time of application:
• The applicant may use the Brain and Spinal Cord Injury Program Request for Level of Care form (Appendix D) to have his physician certify both his level of care and medical eligibility based upon having a brain or spinal cord injury.
• The applicant’s case manager then sends a copy of the TBI/SCI Medicaid Waiver Level of Care Determination form to the CARES unit for certification of the level of care.
If the applicant’s level of care is certified by CARES, the CARES unit sends the CARES Notification of Level of Care Form (Appendix E) to the applicant’s case manager.
Note: See Appendix D for a copy of the Brain and Spinal Cord Injury Program Request for Level of Care form.
Note: See Appendix E for a copy of the CARES Notification of Level of Care Form.

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Service Requirements, continued

Freedom of Choice and Informed Choice

Freedom of Choice and Informed Choice is the method for informing recipients of their right to:
• Choose between receiving services in an institution or receiving services through the TBI/SCI waiver; and
• Choose among all available TBI/SCI waiver services offered and all enrolled TBI/SCI waiver service providers in their service area.
All applicants assessed to need the institutional level of care have the right to choose between receiving services in an institutional setting or receiving services through the TBI/SCI Waiver Program.
All recipients served through the waiver may select from enrolled, qualified service providers and may change providers at any time. Once a recipient has an approved plan of care, the funds allocated to that plan follow the recipient. Within the funds allocated in the plan of care, the recipient is free to change enrolled, qualified providers as desired to meet the goals and objectives set out in the plan.
When an applicant is denied his choice of service or enrolled provider, he must be notified in writing of the reason and provided with a Notice of Decision form (Appendix G).

Applicant’s Copy of Forms

Upon request, all applicants or their authorized representative shall be provided with a copy of any completed assessment instruments, the CARES Notification of Level of Care, and the TBI/SCI Medicaid Waiver Level of Care Determination form completed by the physician.

Recertification of Eligibility

Recipients enrolled in the TBI/SCI waiver must have their level of care and medical eligibility recertified annually. The recipient’s community support coordinator will assist the participant to ensure that the TBI/SCI Waiver Level of Care Determination form is completed, signed and dated by a physician. The community support coordinator shall also complete the DOEA Form 701B.
The community support coordinator must send the TBI/SCI Waiver Level of Care Determination form and completed DOEA Form 701B to the CARES unit for certification of level of care. If certified by CARES, the CARES unit will send the community support coordinator the CARES Notification of Level of Care form. The community support coordinator must provide a copy of both forms to the recipient and provide the original to the case manager for the recipient’s file.

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Service Requirements, continued

Recipient Enrollment into the Waiver

BSCIP Headquarters Office will determine if:
• The applicant meets the eligibility criteria for the TBI/SCI waiver; • Sufficient funding is available to meet the recipient’s needs as stated in a
proposed plan of care and budget for services; and • There is adequate support in the community to ensure the recipient’s
safety and well being.

BSCIP Waiting List

The BSCIP Headquarters Office maintains the prioritized statewide list of TBI/SCI recipients who have been screened, appear to be eligible and in need of waiver services, and are waiting for waiver services.
Note: Refer to Appendix F for the BSCIP Waiting List Policy for the TBI/SCI Medicaid Waiver Program.

Medical Necessity

Waiver services may be provided only when the service or item is medically necessary. Medically necessary is defined in 59G-1.010(166)(a)(c), F.A.C. as follows:
(a) “Medically necessary” or “medical necessity” means that medical or allied care, goods or services furnished or ordered must meet the following conditions:
• Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
• Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs;
• Be consistent with generally accepted professional medical standards as defined by the Medicaid program and not be experimental or investigational;
• Be reflective of the level of service that can safely be furnished, for which no equally effective and more conservative or less costly treatment is available statewide; and,
• Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.
(c) The fact that a provider has prescribed, recommended, or approved medical or allied care, goods or services does not, in itself, make such care, goods or services medically necessary, or a medical necessity, or a covered service.

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Service Requirements, continued

Availability of Other Coverage Sources

Supports and services are developed and delivered in community settings. The supports and services authorized under the TBI/SCI waiver must be used to supplement the supports already provided by family, friends, neighbors, and the community.
When a service must be purchased, services available under the Medicaid state plan must be used before accessing services through the waiver. The waiver cannot supplant or replace a service that is available through the Medicaid state plan. It is a federal requirement to access state plan coverage before the provision of waiver services.
For specific information about Medicaid state plan coverage, refer to the Medicaid Coverage and Limitations Handbook for the particular service. The handbooks can be downloaded from the Medicaid fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support, and then on Handbooks.

Service Delivery Timelines

Recipients enrolled in the waiver will be authorized services that have been determined to be medically necessary, and available under this waiver, with reasonable promptness. The Traumatic Brain and Spinal Cord Injury Program will make reasonable efforts to begin provision of services within 90 days of authorization, to the extent that sufficient provider capacity exists.

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Community Support Coordinator

Description

Community support coordination services assist TBI/SCI waiver recipients in gaining access to needed waiver and Medicaid state plan services and other needed medical, social, educational, and other services regardless of the funding source.
Every TBI/SCI waiver recipient must receive community support coordination services.
The community support coordinators are responsible for ongoing reassessment of the recipient’s needs and level of care, ongoing review of the plan of care and the recipient’s satisfaction with the services provided. Community support coordination services consist of identifying, organizing, coordinating, monitoring, and modifying services needed by the recipient.
Community support coordination requires extensive knowledge of the existing service network and the willingness to seek out additional service options that may benefit the recipient.
Community support coordinators must enroll as Medicaid providers.

Choice of Community Support Coordinator

The recipient has a right to select the community support coordinator provider of his choice. In the absence of a selection by the recipient or authorized representative, the BSCIP Regional Office may assign a community support coordinator. The recipient or authorized representative may make a different selection at a later date.

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Community Support Coordinator, continued

Community Support Coordinator Responsibilities

It is the responsibility of the community support coordinator to perform and document the following activities:
• Assist the recipient to achieve the goals and objectives set forth in his plan of care;
• Ongoing coordination between the service providers and the recipient as the plan of care is implemented and referral to available and appropriate resources are made;
• Advocate on behalf of recipients and their caregivers and families through the provision of information and resources necessary to make informed choices;
• Refer recipients to non-Medicaid services when available and appropriate; • Ensure that recipients have a choice of service providers; • Calculate the cost of each service, know the total monthly and annual cost of
services for each recipient, and include it in the case record; • Update the plan of care every six (6) months to ensure the appropriate
services are being provided at the level needed by the recipient; • Maintain an up-to-date recipient case record as required in this handbook; • Monitor recipient’s satisfaction with services received and ongoing
reassessment of recipient needs; • Ensure that level of care and medical eligibility are recertified annually by
CARES through submission of a completed TBI/SCI Waiver Level of Care Determination form and DOEA Form 701B to the CARES unit for certification of level of care; • Notify the BSCIP Regional Office of any emergency situations and comply with written district procedures to document significant incidents; • Report suspected instances of abuse, neglect, or exploitation to the Florida Abuse Hotline at 1-800- 96ABUSE; • Inform recipients regarding grievance procedures and fair hearing rights; • Assist the recipient to request a fair hearing in the event of a perceived adverse action; • Attend all required meetings and training scheduled by the BSCIP Headquarters or Regional Program Office; and • Comply with all written Medicaid and BSCIP operational policies and procedures.

Monthly Visit Requirement

The community support coordinator is required to make at least one face-to-face visit with the recipient per month and perform at least one other support coordination activity per month for each recipient in the community support coordinator’s caseload.

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Community Support Coordinator, continued

Limitations

A community support coordinator’s caseload cannot exceed a maximum of either 36 individuals or an amount specified by the Florida Legislature, even when that total includes participants of other programs.
The community support coordinator may serve fewer than 36 individuals; however, he must accept all recipients who select him for Medicaid waiver support coordination services and may not reject any recipient referred to him by the BSCIP if the recipient resides in the geographic area agreed upon by the coordinator and specified in the Medicaid Waiver Referral Agreement.
The BSCIP Headquarters Office must approve any changes in the caseload numbers or geographic area in writing.
Community support coordination is reimbursed at a rate of $120.00 per month.

Community Support Coordination Documentation Requirements

Recipient Case Records

The community support coordinator must keep a detailed case record. This record is required to ensure that information regarding the recipient’s condition and service provision is contained in a single location to promote continuity and quality of care. It is the basis for quality assurance monitoring.
The recipient’s case record documents all activities and interactions with the recipient and any other provider(s) involved in the support and care of the recipient. The record must include the following information:
• Recipient demographic data including emergency contact information, parental or guardian contact data, permission forms, and copies of assessments, evaluations, and medical and medication information;
• Legal data such as guardianship papers, court orders and release forms; • Copies of eligibility documentations, including level of care determinations by
CARES; • Needs assessments, including all physician referrals; • Plans of care including accurate cost projections; • Documentation of interaction and contacts (including telephone contacts) with
recipient, family members, service providers or others related to planned services; • Documentation of issues relevant to the recipient remaining in the community with supports and services consistent with his capacities and abilities. This includes monitoring achievement of goals and objectives as set forth in the plan of care; • Problems with service providers must be addressed in the narrative with a planned course of action noted. Documentation of progress made towards resolution of such problems must be clear and concise; and • All entries in case records must be dated appropriately.
Note: See Chapter 2 of the Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Community Support Coordination Documentation Requirements, continued

Case Narrative Requirements

Case narrative entries must include enough details so that a reviewer will be able to understand the circumstances fully and evaluate the community support coordinator’s effectiveness in meeting the recipient’s needs and addressing concerns as they arise.
All support coordination activities must be recorded in the case narrative.
The narrative must be clearly written and demonstrate comprehensively what the community support coordinator has done to meet the needs identified in the plan of care.
There should be documentation on the activities of others on behalf of the recipient.
The narrative must record observations of the recipient’s physical and emotional status.

Monthly Visit Documentation Requirement

Case narratives must clearly document at least one monthly face-to-face visit with the recipient. At least one other support coordination activity per month must also be documented to justify reimbursement for community support coordination.

Recording Time Spent

Documentation in the case record must include a clear and concise record of at least one face-to-face contact and at least one other support coordination activity performed on behalf of the recipient during that month.
Although community support coordination service is reimbursed on a fixed monthly basis, entries must document the amount of time performing the community support coordination activity. Time spent documenting activities in the case record must be included in the calculation of the time spent.

Electronic Records

Case narratives may be recorded on a computer. A printout of the narrative must be maintained in the recipient’s case record. If computer printouts are used, back up files must be kept. Each entry into the case record must be signed and dated on the date recorded by the community support coordinator.

Permanent Record Documentation

All case record documentation must be legible and written in blue or black ink. No erasures or “whiteout” is permitted. In case of error, the entry must be lined through, initialed, and dated by the writer. Each entry must be signed and dated by the community support coordinator.

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Community Support Coordinator Documentation Requirements, continued

Confidentiality

To ensure the confidentiality of recipient information, records maintained by the community support coordinator must be kept in a locked filing cabinet at a secured central location. The location will be specified in the provider’s Medicaid Waiver Referral Agreement. The community support coordinator must also ensure that computer records are securely maintained.

Records are the Property of the BSCIP

The community support coordinator is responsible for maintaining each case record in accordance with DOH and BSCIP office procedures. The records are the property of the BSCIP office and must to be returned to the BSCIP Office in the event that:
• Recipient moves out of state; • Recipient terminates services; • Recipient dies; • Community support coordinator changes employment; or • Community support coordinator terminates services.

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Plan of Care

Description

A plan of care is a written document that authorizes the services that the recipient receives. Development of the plan of care is a critical part of service delivery and must be done in cooperation with the recipient, and may include family members or friends providing direct care or support to the recipient.

Purpose

The purpose of the plan of care is to specify:
• All the services and supports to be provided regardless of the funding source; • The service provider; • The number of units of each service to be provided; and • The duration of the service.

Plan of Care Form

The Care Plan must be completed on the Brain and Spinal Cord Injury Program Medicaid Home and Community Based Waiver Service Plan (Appendix H). The form includes information on the recipient’s freedom of choice to receive services from any enrolled provider and the recipient’s fair hearing rights.
Note: See Appendix H for a copy of the Brain and Spinal Cord Injury Program Medicaid Home and Community Based Waiver Service Plan.

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Plan of Care, continued

Plan of Care Development

The community support coordinator develops the plan of care specific to the recipient’s needs that are identified in the comprehensive assessment instrument (DOEA Form 701B) completed by the CARES Program. The recipient; or parent, legal guardian, guardian advocate, caregiver, or authorized representative must be consulted in the development of the plan. As part of the development of the plan of care, a rehabilitation engineering evaluation must be authorized to determine the need for assistive technologies and environmental access adaptations that will foster independence and reduce the need for hands-on assistance and supervision.
The plan of care must include the least restrictive and most cost-beneficial environment for accomplishment of the objectives for recipient progress and a specification of all the services that are authorized. The ultimate goal of the plan must be to enable the recipient to live a dignified life in the least restrictive setting appropriate to the recipient’s needs.
When service needs are identified, the recipient must be given information about the providers so that he can make an informed choice of providers. The entire care planning process must be documented in the case record.
The plan of care must include the date it is developed. The duration and scope of service must be specified for each service authorized. It is recommended that services only be initially authorized for up to six months in order to determine the continued need for the frequency authorized.
Care must be taken to authorize service parameters and times of service mutually agreeable to the recipient and the service provider.
Services or service amounts not specified in the plan of care are not considered approved or authorized. Reimbursement for services furnished, but not specified in the plan of care are subject to recoupment. Services provided outside the time frames specified in the plan of care are also subject to recoupment.
Note: See Chapter 5 of the Medicaid Provider General Handbook for information on fraud and abuse.

Budget Worksheet

A budget worksheet is developed electronically in RIMS in conjunction with plan of care development. Community support coordinators must be knowledgeable about the cost of waiver services and must figure the cost of each service as authorized in the plan of care. A projected total must be stipulated on the budget worksheet.

Recipient’s Copy

The recipient or his authorized representative must receive a copy of the plan and any revisions made to the plan.

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Plan of Care, continued

Recipient’s Approval and Signature

Prior to signing the plan of care, the community support coordinator must inform the recipient or his authorized representative that his signature indicates agreement with the plan as well as the statement on the bottom of the plan of care form regarding his right to a fair hearing and informed choice.
The recipient or his authorized representative must sign the plan of care to indicate agreement with the plan. If the recipient is unable to sign his name due to a disability, and there is no authorized representative, the recipient must indicate his agreement verbally and this agreement must be documented in the case record and on the plan itself with a notation indicating, “recipient is unable to sign due to disability.”

BSCIP Regional Office Service Authorization

In order for a recipient to receive a service it must be specified on a recipient’s plan of care and be authorized by the BSCIP Regional Office and approved by the BSCIP Headquarters Office before the service may be provided.
When a requested service or item is determined to be medically necessary in accordance with the standards set forth in 59G-1.010 (166)(a)(c), F.A.C., and the requested item meets the service definitions in the TBI/SCI waiver, the BSCIP Regional Office will authorize the service, amend the plan of care and budget, and submit to BSCIP Headquarters for approval.
If sufficient information is not available to determine that the service or item is medically necessary, the BSCIP Regional Office will send a written request for more information to the community support coordinator, recipient, or authorized representative. If the BSCIP determines that the service is not medically necessary, the BSCIP will send a written denial of the service and notice of due process to the recipient or authorized representative and a copy to the community support coordinator.

BSCIP Headquarters Office Approval

A copy of the plan of care and budget as approved by the BSCIP Regional Office must be sent to the BSCIP Headquarters Office for final approval before services may be provided.

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Plan of Care, continued

Plan of Care Implementation and Review

The community support coordinator implements the approved plan by:
 Identifying potential providers;  Referring potential providers to BSCIP Headquarters for enrollment;  Reviewing the recipient’s service needs on an ongoing basis to ensure that
needs are being met;  Regularly contacting the providers serving the recipient to determine the
recipient’s condition and progress made as a result of the service provided;  Regularly checking with providers to ensure the provider’s capacity to
continue service provision; and  Performing a monthly face-to-face visit with the recipient to determine
ongoing service needs as well as satisfaction with current service provision.

Service Providers’ Authorization for Services

The plan of care serves as the waiver service provider’s authorization to render the service. The community support coordinator must send a copy of the recipient’s plan of care to the service provider in advance of service provision. Without this plan, the provider cannot be assured reimbursement. The waiver services are limited to the amount, duration and scope of the services described on the recipient’s plan of care. If a provider exceeds the limits specified on the plan of care, Medicaid is not responsible for reimbursing the excess.
Service authorization is contingent upon the enrolled recipient remaining eligible for Medicaid during the month of service. If a recipient loses his Medicaid eligibility, the service authorization is null and void. Should this happen, the provider must contact the community support coordinator, the case manager, or the BSCIP Headquarters Office.

Changing Service Authorization

If a change in the plan of care results in either increased or decreased expenditures, the BSCIP Headquarters Office must approve the proposed revision in advance. If the change does not affect the budget, (i.e., the recipient wishes to change to a different provider with an identical rate), prior approval is not required, and the required changes to the plan of care must be made.

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Plan of Care, continued

Plan of Care Redetermination

The plan of care must be reviewed at least every six months. At the time of review, all authorized services are examined to determine their effectiveness and benefit to the recipient. The community support coordinator must ensure that this process is completed in a timely, orderly manner to prevent disruption of services.

Termination of Services

Termination of a waiver service can occur when it is determined that:
• The service is no longer necessary to try to prevent institutionalization and to allow the recipient to live in the least restrictive setting appropriate to his needs;
• The recipient chooses to terminate participation in the waiver program; • The recipient moves out of state; • The recipient becomes financially ineligible for Medicaid; • The recipient is no longer medically stable; • The recipient no longer meets the medical eligibility criteria (e.g., a brain
or spinal cord injury as defined in Chapter 381.745, F.S.); • The recipient is non-compliant or repeatedly refuses to follow a written
plan of care or to cooperate with waiver case managers, as determined by the Department of Health (DOH); • The recipient no longer meets the defined level of care criteria for Intermediate II, or higher (i.e., Intermediate II, Intermediate I or Skilled) as stated in 56G-4.180, F.A.C.; or • The recipient dies.
The community support coordinator and the case manager must discuss all decisions to terminate services with the recipient and the service provider prior to the action. If the decision is made to terminate a service, written notice must be sent to the recipient on a Notice of Decision form (Appendix G) at least ten days in advance of terminating the service. If the recipient disagrees with the action being taken, the recipient has the right to appeal the adverse action.
Note: See Appendix G in this handbook for a copy of the Notice of Decision Form.
Note: See Appeal Rights and Fair Hearings for additional information on fair hearings.

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Covered Services Introduction

TBI/SCI waiver services are based on recipient needs that are documented in an approved plan of care. The plan of care specifies services to be provided and the cost of these services. The services listed below represent the services, in addition to community support coordination, that may be purchased for a recipient who is participating in the TBI/SCI waiver and who needs the services to reach an outcome described on his plan of care.
• Adaptive Health and Wellness • Assistive Technologies • Attendant Care • Behavioral Programming • Companion Services • Consumable Medical Supplies • Environmental Accessibility Adaptations • Life Skills Training • Personal Adjustment Counseling • Personal Care Services • Rehabilitation Engineering Evaluation

Service Documentation Requirements

Introduction

Medicaid will only reimburse for waiver services that are specifically identified in the approved plan of care by service type, frequency and duration and for which there is sufficient documentation supporting the provision and receipt of the service.

General Service Documentation Requirements

When a Medicaid waiver service is rendered, the provider must document the service provision and file the documentation prior to requesting reimbursement. Appropriate documentation is required in order to receive payment. All service documentation must be dated and signed by the service provider.
A list of the documentation required for each service is included in the service description. For the purpose of monitoring and review of service claims, the provider must retain such documentation on file for a minimum of five years.
Note: See Documentation Requirements under the specific services for a detailed listing of the documentation that is required prior to reimbursement.
Note: See Chapter 2 of the Medicaid Provider General for additional information regarding service documentation requirements.

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Service Log

The provider must keep a service log that includes documentation of the recipient’s name, recipient’s Medicaid ID number, the description of the service, activities, supplies or equipment provided and corresponding procedure code, times and dates service was rendered, amount billed for each service, provider’s name and Medicaid provider number.

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Adaptive Health and Wellness

Description

The adaptive health and wellness service includes membership in a health studio for the purpose of improving coordination, flexibility, strength, stamina, balance, and cardiovascular fitness. Improvement in these functions enhances the recipient’s ability to perform activities of daily living and helps to avoid secondary complications of disability.

Service Requirements

A physician must order this service. The physician’s order must be renewed every six months.
A physical therapist licensed to practice in Florida must conduct an initial assessment of the recipient. The assessment must include, but is not limited to, range of motion, transfer and gait skills, strength testing, and the level of assistance required.
The physical therapist works with the recipient to design an appropriate workout regimen.
The physical therapist must:
• Monitor changes to the recipient’s workout regimen; • Review the recipient’s workout regimen when there is a change in the
recipient’s medical status; and • At least quarterly, conduct an assessment of the recipient to measure the
outcomes of the workout regimen.

Limitations

Adaptive health and wellness services are limited to the amount, duration and scope of the services described in the recipient’s plan of care and the approved budget for cost of services.
The maximum reimbursement for membership in a health studio is $50 per month, not to exceed $600 per year.

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Documentation Requirements

Documentation of services must include at a minimum:
• Physician’s written order for the service (to be renewed every six months);
• Activities in each session charted on a flow chart; • Physical therapist’s documentation of the recipient’s progress towards
objectives of the workout regimen; • Physical therapist’s documentation of the findings of the quarterly
assessment; and • Documentation of recipient’s attendance at the facility.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Assistive Technologies

Description

Adaptive equipment or other technologies include items, equipment, or products, whether acquired commercially or off the shelf, which can be modified or customized and used to increase, maintain, or improve the functional capabilities of recipients with disabilities.

Service Requirements

Assistive technologies services include the purchase of the equipment or device, as well as maintenance and repair of such equipment or technologies.
Repairs and maintenance are subject to the terms of the existing warranty. Recipients must exhaust all applicable warranty services prior to requesting waiver services.
All equipment and technologies must meet applicable standards of manufacture, design and installation. If the equipment is to be repaired, the repair and its cost must be specified on the plan of care.

Limitations

Assistive technologies services will only be reimbursed with TBI/SCI waiver funds based on certification through a rehabilitation engineering evaluation that such technologies or equipment are necessary to try to prevent institutionalization and to enable the recipient to live in the least restrictive setting appropriate to his needs.
Items reimbursed with TBI/SCI waiver funds must be in addition to any medical equipment and supplies furnished under the Medicaid Durable Medical Equipment and Medical Supplies Program. Please refer to the Florida Medicaid Durable Medical Equipment and Medical Supplies Coverage and Limitations Handbook for information on the equipment and supplies covered by the Medicaid Durable Medical Equipment and Medical Supplies Program.
Items that are not of direct medical or remedial benefit to the recipient and items for diversional or entertainment purposes are not covered under the TBI/SCI Waiver Program.
Assistive technologies services are limited to the amount, duration and scope of the services described in the recipient’s plan of care and the approved budget for cost of services.
The maximum reimbursement for assistive technologies shall not exceed $2500 per year.
Note: The Florida Medicaid Durable Medical Equipment and Medical Supplies Coverage and Limitations Handbook are available on the Medicaid fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support, and then on Handbooks.
Note: See Rehabilitation Engineering Evaluation in this chapter for additional information on the evaluation.

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Assistive Technologies, continued

Documentation Requirements

For reimbursement, the provider must submit an invoice along with documentation from the community support coordinator stating that the item or technology was received and is operating according to the manufacturer’s description.
For monitoring purposes, the provider must maintain a file that includes:
• A copy of the authorization to provide services; and • A copy of the receipt for the product and the documentation from the
community support coordinator verifying receipt together with a statement that the product is operating according to the manufacturer’s specifications.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Attendant Care Description
Place of Service Limitations
Documentation Requirements

Attendant care is hands-on care of both a supportive and health-related nature, specific to the needs of a medically stable, physically handicapped recipient. Attendant care services are those that substitute for the absence, loss, diminution, or impairment of a physical or cognitive function.
Attendant care services may include skilled or nursing care to the extent permitted by state law. Housekeeping activities that are incidental to the performance of care may also be furnished as part of attendant care services.
Attendant care must be provided in the recipient’s home or workplace.
A registered nurse, licensed to practice in Florida, must supervise attendant care services providers. The frequency and intensity of supervision must include direct observation of attendant care services by the registered nurse at least every 60 days. If the attendant care services provider is a registered nurse, the supervisory requirement is waived.
Attendant care is limited to the amount, duration and scope of the services described in the recipient’s plan of care and the approved budget for cost of services.
Attendant care may be provided concurrently (at the same time and date) with another service, with the exception of personal care or companion services.
The maximum reimbursement for attendant care services is $7.50 per unit, not to exceed 12 units (3 hours) per day. A unit is defined as a 15-minute time period or portion thereof.
The following documentation is required prior to reimbursement for services: a daily service log documenting the time of arrival and departure and time spent performing specific allowable activities required by the recipient. The attendant providing the service must sign the log.
For monitoring purposes, the provider must maintain a file that includes:
• A copy of the service logs for the period being reviewed; • A copy of the service authorization; and • A copy of verification of supervision by the registered nurse (if the
provider is not a registered nurse).
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Behavioral Programming

Description

Behavioral programming is recipient-designed strategies to decrease a recipient’s maladaptive behaviors that interfere with his ability to remain in the community. It is provided to assist a person to learn new behavior, to increase existing acceptable behavior, to reduce existing maladaptive behavior, and to emit behavior under precise environmental conditions.

Service Requirements

Behavioral programming services must be deemed necessary to avoid institutionalization and to enable the recipient to live in the least restrictive setting appropriate to his needs.
Behavioral programming services include a complete assessment of the maladaptive behavior(s) and development of a structured behavioral intervention plan. The plan must be implemented with on-going training and supervision to caregivers and behavior aides. Consultation with community support coordinators must be ongoing for reassessment of the plan.
Behavioral programming does not rely on cognitive therapies and expressly excludes psychological testing, neuropsychology, sex therapy, psychoanalysis, hypnotherapy and long-term counseling as treatment modalities. However, personal adjustment counseling services may be provided as an adjunct to behavioral programming.
Training for family caregivers is part of the service when these persons are integral to the implementation or monitoring of a behavior programming service plan.

Place of service

Behavioral programming may be provided in the recipient’s home or anywhere in the community. However, in all cases, behavioral programming services must be provided in the setting(s) relevant to the behavior problems being addressed.

Limitations

Behavioral programming services may be provided concurrently (at the same time and date) with another service.
Behavioral programming services are limited to the amount, duration and scope of the services described in the recipient’s plan of care and the approved budget for cost of services.
The maximum reimbursement for behavioral programming services is $12 per unit, not to exceed eight units (two hours) per day. A unit is defined as a 15minute time period or portion thereof.

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Behavioral Programming, continued

Documentation Requirements

The following documentation is required prior to reimbursement for the service:
• A service log specifying time and dates of service signed by the provider; and
• A monthly summary of progress towards goals and objectives specified in the service plan.
If the provider is to be reimbursed for an assessment, the provider must submit:
• An invoice; and • A copy of the assessment report.
For monitoring purposes, the provider must have a file that includes:
• A copy of the behavior programming services plan; • A copy of the service logs for the period being reviewed; • A copy of the monthly summary notes; and • A copy of the assessment report, if the provider was authorized to
perform the assessment.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Companion Services

Description

Companion services are non-medical care, supervision and socialization, provided to a functionally impaired adult. Companions may assist or supervise the recipient with such tasks as meal preparation, laundry and shopping as specified in the plan of care. The provision of companion services does not entail any invasive hands-on nursing care. Providers may also perform light housekeeping tasks that are incidental to the care and supervision of the recipient.

Service Requirements

Companion services are provided in accordance with a therapeutic goal in the plan of care, and cannot be purely diversional in nature.

Place of Service

Companion services may be provided in the home of the recipient or anywhere in the community where supervision and care is necessary.
Companion services may not be provided or received in the companion services provider’s home.

Limitations

Companion services are limited to the amount, scope and duration of the services described in the recipient’s plan of care and approved budget for cost of services. Companion services cannot be provided by a legally responsible family member.
The maximum reimbursement for companion services is $3.00 per unit, not to exceed 24 units (six hours) per day. A unit is defined as a 15-minute time period or portion thereof. Companion services cannot be concurrent with attendant care services or personal care services.

Documentation Requirements

For reimbursement purposes, the provider must submit:
• An invoice; and • A service log detailing times of arrival and departure and specific details
of time spent in each activity for each date of service. The service log must be signed by the provider.
For monitoring review purposes, the provider must have copies of all service logs for the period being reviewed.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Consumable Medical Supplies

Description

Consumable medical supplies are disposable supplies used by the recipient or caregiver that are essential to adequately care for the recipient’s personal needs. Such supplies enable the recipient either to perform activities of daily living or to stabilize and monitor a health condition.

Limitations

Consumable medical supplies reimbursed with TBI/SCI waiver funds must be in addition to any medical supplies furnished under the Medicaid Durable Medical Equipment and Medical Supplies Program. The Medicaid Durable Medical Equipment and Medical Supplies Program is a Medicaid state plan service that is available to all Medicaid recipients. Please refer to the Florida Medicaid Durable Medical Equipment and Medical Supplies Coverage and Limitations Handbook for information on the supplies covered by the program.
The consumable medical supplies must be of direct medical or remedial benefit to the recipient.
The supplies and the needed amount of each item must be specifically authorized in the plan of care.
If multiple vendors are enrolled to provide consumable medical supplies, the recipient must be encouraged to select from among the eligible vendors based upon the availability of the item needed, quality, and best price.
Recipients or their family members cannot be reimbursed for consumable medical supplies purchased on their own.
Consumable medical supplies are limited to the amount, scope and duration of the services described in the recipient’s plan of care and approved budget for cost of services.
The maximum reimbursement for consumable medical supplies is $250 per month.
Note: The Florida Medicaid Durable Medical Equipment and Medical Supplies Coverage and Limitations Handbook are available on the Medicaid fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support, and then on Handbooks.

Documentation Requirements

For reimbursement purposes, the provider must submit an invoice listing the supplies purchased.
For monitoring and review purposes, the provider must have a copy of the invoices listing the supplies purchased for the period being reviewed.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Environmental Accessibility Adaptations

Description

Environmental accessibility adaptations are home modifications that include physical adaptations to the home which are authorized on an recipient's plan of care and necessary to ensure the health, welfare and safety of the recipient, or which enable the recipient to function with greater independence in the home, and without which, the recipient would require institutionalization.
Such adaptations may include the installation of ramps and grab-bars, widening of doorways, modification of bathroom facilities, or installation of specialized electric and plumbing systems, which are necessary to accommodate medical equipment, supplies or assistive technologies that are necessary for the welfare of the recipient.

Service Requirements

Environmental accessibility adaptation services must be provided in accordance with applicable state or local building codes.
Environmental accessibility adaptations will only be reimbursed with waiver funds based on certification through a rehabilitation engineering evaluation that such modifications are necessary to prevent institutionalization and to enable the recipient to live in the least restrictive setting appropriate to his needs.
Note: See Rehabilitation Engineering Evaluation in this chapter for additional information on the evaluation.

Place of Service

Adaptations can be made only to the recipient’s dwelling place.
Adaptations are allowed in rented homes or apartments only with the written permission of the landlord. The written agreement between the recipient and landlord must specify any requirements for restoration of the property to its original condition if the recipient moves. It must further specify that the BSCIP and waiver funding are not obligated for costs of restoration.
Recipients living in assisted living facilities or other licensed residential settings are not eligible to receive this service. The responsibility for adaptations belongs to the facility owner or operator.

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Limitations

Environmental accessibility adaptation services are limited to the amount, duration, and scope of the adaptation project specified on the service plan and current approved cost plan.
If multiple vendors are enrolled to provide environmental adaptation services, the recipient must be encouraged to select from among the eligible vendors based upon availability, quality of workmanship, and best price.
Excluded are those adaptations or improvements to the home that are of general utility, and are not of direct medical or remedial benefit to the recipient such as carpeting and central air conditioning.
Environmental accessibility adaptations include only adaptations to an existing structure, and must be provided in accordance with applicable state or local building codes. Adaptations that add to the total square footage of the home are excluded.
Recipients requesting environmental accessibility adaptations are expected to apply for all other assistance available to meet the environmental needs of the recipient.
Environmental accessibility adaptations do not include those adaptations or improvements to the home that are:
• Of general utility; • Considered to be standard housing obligations of the owner or tenant;
and • Not considered to be of medical or therapeutic benefit to the waiver
participant.
If adaptations are made to a recipient’s residence, adaptation to another residence cannot be made until two years after the adaptation to the first residence.
The maximum reimbursement for adaptations shall not exceed $5000 per year.

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Documentation Requirements

For reimbursement purposes, the provider must submit:
• An invoice specifying the adaptations completed on the home; and • Documentation that the services were completed in accordance with the
contract or agreement. Verification of completion is done by a home visit.
For monitoring review purposes, the provider must have, at a minimum:
• A copy of the invoices for the period being reviewed; and • A copy of the service authorization.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Life Skills Training

Description
Service Requirements
Limitations

Life skills training provides goal-oriented training and support to injured individuals residing in the community. It is intended to provide skills necessary to resume life after injury. It is designed to foster successful integration into the community and should, ultimately, lead to a higher level of independence.
Life skills training includes assistance and training with financial resource management, utilization of community resources, and management of personal assistance services. Training and support also includes areas related to activities of daily living such as grooming and personal hygiene. Other examples include household management, cooking and nutrition, family and child support activities, health and disability self-management, social integration skills and interpersonal relationships.
Life skills training must be based on a functional community assessment that identifies the types of training and assistance needed. The assessment is a tool designed by the life skills trainer to assist the provider in becoming familiar with the specific training needs of the recipient. The assessment will examine all aspects of the recipient’s daily life including relationships and the recipient’s ability to perform activities of daily living and maintain a safe, clean environment.
A financial profile may also be required if money management is the area where training and support is needed. This will include an analysis of the household costs and revenue sources necessary to maintain a balanced monthly budget.
Life skills training is limited to the amount, duration and scope of the services authorized in the recipient’s plan of care and approved budget for cost of services.
The maximum reimbursement for life skills training is $5.25 per unit, not to exceed eight units (two hours) per day. A unit is defined as a 15-minute time period or portion thereof.

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Documentation Requirements

For reimbursement purposes, the provider must submit:
• An invoice; • Copies of assessments and training objectives to be met; and • A service log that is to be supported by documentation of activities,
training methods, and contacts with the recipient.
For purposes of review and monitoring, the provider must maintain:
• Copies of service logs for the period being reviewed including the documentation of activities and training as well as progress notes detailing recipient’s response and progress made toward goals set forth; and
• A copy of the service authorization.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Personal Adjustment Counseling and Training

Description

Personal adjustment counseling and training consists of ongoing therapeutic services to resolve interpsychic or interpersonal conflict resulting from the traumatic injury. Counseling may be provided as an adjunct to behavioral programming, and may include services for substance abuse.
Personal adjustment counseling and training is necessary to foster independence and to try to prevent institutionalization and to enable the recipient to live in the least restrictive setting appropriate to his needs.
If counseling and training are provided to members of a recipient’s family, the services must be for the purposes of assisting the family in implementing the plan of care, implementing a behavioral intervention plan, or for the direct benefit of the recipient. For purposes of this service, “family” is defined as the person(s) who live with or provide care to a waiver participant and may include a parent, spouse, children, relative, or in-laws.

Place of Service

Personal adjustment counseling and training services may be provided in the following places:
• Recipient’s place of residence; • Recipient’s place of employment with advance permission from the
employer; or • In the provider’s office.

Limitations

Personal adjustment counseling and training must supplement mental health and substance abuse services available under the Medicaid Community Behavioral Health Program. The Medicaid Community Behavioral Health Program is a Medicaid state plan program available to all Medicaid recipients. See the Florida Medicaid Community Behavioral Health Services Coverage and Limitations Handbook for additional information on the program’s services.
The maximum reimbursement for personal adjustment counseling and training is $12.00 per unit, not to exceed eight units (two hours) per day. A unit is defined as a 15-minute time period or portion thereof.
Note: The Florida Medicaid Community Behavioral Health Services Coverage and Limitations Handbook are available on the Medicaid fiscal agent’s website at http://floridamedicaid.acs-inc.com. Click on Provider Support, and then on Handbooks.

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Personal Adjustment Counseling and Training, continued

Documentation Requirements

For reimbursement purposes, the provider must submit:
• An invoice; • A monthly summary; and • A copy of the assessment and treatment plan.
For purposes of review and monitoring, the provider must maintain copies of service logs for the period being reviewed including the documentation of activities.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Personal Care Service

Description

Personal care services are assistance with eating, bathing, dressing, personal hygiene, and activities of daily living.
Personal care services may include assistance with preparation of meals, but does not include the cost of the meals themselves.
When specified in the plan of care, this service may also include such housekeeping chores as bed making, dusting and vacuuming, which are incidental to the care furnished, or which are essential to the health and welfare of the recipient, rather than the recipient's family.

Service Requirements

Personal care services must be supervised by a registered nurse, who directly observes the personal care services at least every 90 days.

Limitations

Personal care service is limited to the amount, duration and scope of the services described in the recipient’s plan of care.
Payment will not be made for personal care services furnished by a legally responsible family member.
This service cannot be provided concurrently with attendant care services or companion services.
The maximum reimbursement for personal care services is $5.00 per unit of service, not to exceed 16 units (four hours) per day. A unit is defined as a 15minute time period or portion thereof.

Documentation Requirements

For reimbursement purposes, the provider must submit:
• An invoice; and • Service logs which detail specific tasks completed on each date of
service for which reimbursement is requested.
For purposes of review and monitoring, the provider must maintain:
• Copies of service logs for the period being reviewed including the documentation of tasks;
• A copy of the service plan; and • Documentation of supervisory visit by the registered nurse if the provider
is not a registered nurse.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Rehabilitation Engineering Evaluation

Description

Rehabilitation engineering evaluation includes an assessment of the systematic application of technologies, or engineering methodologies needed to address the barriers confronted by individuals with brain and spinal cord injuries.
The areas to be assessed include education, rehabilitation, transportation, independent living, and socialization.
The service also includes assistance in obtaining or maintaining assistive technologies devices, as well as training and technical assistance needed by recipients and caregivers regarding the operation or application of such devices which are necessary to ensure the health and welfare of the recipient, or which enable him to remain independent in the community.
The service is intended for recipients who require further evaluation than that usually required by a recipient prior to receipt of assistive technologies service.

Service Requirements

Prior to authorizing services for new recipients, a rehabilitation engineering evaluation will be authorized to determine the need for assistive technologies and home modifications, which will foster independence and reduce the need for hands-on assistance and supervision. The rehabilitation engineering evaluation will verify that assistive technologies or equipment are necessary to prevent institutionalization or risk of institutionalization and to enable the recipient to live in the least restrictive setting appropriate to his needs.

Limitations

Rehabilitation engineering evaluation services are limited to the amount, duration, and scope of the evaluation described in the plan of care and approved cost plan.
The maximum reimbursement for a rehabilitation engineering evaluation is $200 per evaluation, not to exceed one evaluation per month.

Documentation Requirements

For reimbursement purposes, the provider must submit: • An invoice; and • Copy of the evaluation specifying date of service.
For purposes of review and monitoring, the provider must maintain: • Copy of the service plan, and • Copy of the evaluation.
Note: See Service Documentation Requirements in this chapter and Record Keeping Requirements in Chapter 2 of the Florida Medicaid Provider General Handbook for additional information regarding service documentation requirements.

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Appeal Rights and Fair Hearing Process

Right to a Fair Hearing

In accordance with Chapter 42, 431.221(d) of the Code of Federal Regulations, a recipient has certain appeal rights.
Refer to Notice of Decision Form (Appendix G).

Reinstated Benefits

Reinstated or continued benefits must not be reduced or terminated prior to the final hearing decision unless an additional cause for adverse action occurs while the hearing decision is pending, and the recipient fails to request a hearing after a subsequent notice of adverse action.

Necessary Actions to be Taken When Appeal is Granted

Benefit changes are effective based on the date specified by the hearing officer.

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CHAPTER 3 TRAUMATIC BRAIN AND SPINAL CORD INJURY
WAIVER SERVICES PROCEDURE CODES AND FEES
Overview

Introduction

This chapter provides and describes the reimbursement requirements for the Traumatic Brain Injury/Spinal Cord Injury (TBI/SCI) Waiver Program services.

In This Chapter

This chapter contains:
TOPIC Reimbursement Information Procedure Code Modifiers

PAGE 3-1 3-5

Reimbursement Information

Introduction

Medicaid reimburses home and community-based waiver procedure codes based on the Healthcare Common Procedure Coding System (HCPCS) Level III procedure codes that are locally assigned codes, approved by the Centers for Medicare and Medicaid Services.

Billing Procedures

Payments for all services are based upon the specific service authorization noted in the recipient’s plan of care. All authorizations to service providers are paid only for the amount of time and duration specified on the plan of care. Service providers must submit invoices and all documentation supporting the delivery of service to the BSCIP Billing Office, located at 15857 SE 19th Highway, Cross City, FL 32628. Staff will review the invoice and supporting documentation for accuracy and submit the invoice to the Department of Health (DOH) Office of Finance and Accounting.
Each provider is required to submit all invoices or claims for services within 60 days of the date of service. This will be accomplished by the service provider submitting an invoice to the BSCIP Billing Office as instructed.
Specific billing instructions and procedures for submitting invoices or claims are available through the BSCIP Billing Office.

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Reimbursement Information, continued

BSCIP Waiver Service Rates

The rate for payment for all services is determined by the BSCIP Headquarters Office and subject to a maximum rate established by Medicaid and the availability of appropriated funding from the Florida Legislature.
Once BSCIP has established a rate with a waiver provider for a certain level of service, that rate must apply to all recipients receiving the same level of service. The rate is included in the provider’s Medicaid Waiver Referral Agreement (Appendix C).
Providers may not charge different rates based on the recipient’s home region or other arbitrary criteria, if the identical service is being provided.
Note: See Appendix C for a copy of the Medicaid Waiver Referral Agreement.

Reimbursement by Session or Quarter Hour

For services billed by the session or quarter hour, all units provided on a single day must be aggregated on one line of the claim form showing the date of service and the units provided. These services include:
• Attendant Care • Companion Care • Personal Care • Behavioral Programming • Life Skills Training • Personal Adjustment Counseling

Reimbursement by Item(s)

For services billed for particular items or jobs, the total for all items provided on a single day must be shown on one line of the claim form with the date provided and the unit of service as “1.” These services include:
• Environmental Accessibility Adaptations • Assistive Technologies • Consumable Medical Supplies • Rehabilitation Engineering Evaluation

Reimbursement by the Month

For services billed by the month, each month of service must be shown on one line of the claim form, with the date of service the last day of the month and the unit of service as “1.” These services include:
• Adaptive Health and Wellness • Community Support Coordination

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Reimbursement Information, continued

Recipient Responsibility

As part of the eligibility process, the Department of Children and Families (DCF) applies a standard formula to calculate a financial responsibility, if any, for recipients who receive waiver services. The recipient and the case manager are notified by DCF of the amount of the recipient’s financial responsibility.

Consolidated Billing

It is a DOH requirement for service providers to consolidate the service amounts from the daily service logs and submit a consolidated amount at the end of the month for payment using the last day of the month as the date of service. If services terminate before the end of the month, providers must combine each day’s service for the service period and bill at the end of the service period, using the last day of the service period as the date of service.

Recoupment of Funds

Providers of waiver services must provide the services in a manner that meets the definition and requirements specified in this handbook. If the provider fails to meet service standards, to properly document the delivery of services, or receives reimbursement for services not properly authorized or delivered, these payments are considered overpayments and will result in a recoupment of funds by DOH or Medicaid.
Community support coordinators are subject to the recoupment policies specific to the performance of identified, essential support coordination activities as follows:
An amount equal to a pro-rated daily portion of each monthly rate shall be paid back to the DOH by the community support coordinator for each day after the effective date of a recipient’s care plan including projected costs if the plan is not submitted to the BSCIP Waiver Administrator for review and approval.
All other providers are subject to recoupment specific to the service requirements specified in this handbook.
Note: See Chapter 5 in the Florida Medicaid Provider General Handbook for additional information on Medicaid fraud and abuse.

Limitations

Providers may not bill for service when a recipient is not in attendance or receiving a service. Services that are ordinarily provided in accumulated units (for example, day or month) must be adjusted to reflect actual service provision.

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Reimbursement Information, continued

Timely Submission of Claims

All invoices for TBI/SCI Waiver services must be submitted within 60 days of the date of service. Once a service is provided and documented, the provider should promptly submit all invoices for reimbursement to the BSCIP Billing Office that is specified in the provider’s Medicaid Waiver Referral Agreement.
All invoices submitted for payment must be correct, complete, legible and in accordance with the approved service authorization. Any problems with an invoice should be corrected and the claim resubmitted promptly.
If the BSCIP processes an invoice for payment, and the provider determines an error has been made, it is the provider’s responsibility to promptly notify the BSCIP.

Note: See Chapter 1 in the Florida Medicaid Provider Reimbursement Handbook for additional information on timely claim submission.

Procedure Code Table

The TBI/SCI Waiver Services Procedure Code Table found in Appendix A, corresponds to the services described in Chapter 2 of this handbook.
The procedure code table specifies:
• The name of the service; • The procedure codes and identifying modifiers associated with the
service; • Unit of service; and • Maximum fee.

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Procedure Code Modifiers

Definition of Modifier

For certain types of services, one or two 2-digit modifiers must be entered on the claim form. Modifiers more fully describe the procedure performed so that accurate payment may be determined.
The modifiers are entered in the field next to the procedure code field in item 33, under Modifier.
TBI/SCI waiver services providers must use the modifiers with the procedure codes listed on Appendix A, Procedure Codes and Fee Schedule, when billing for the specific services in the procedure code descriptions. The modifiers listed in Appendix A can only be used with the procedure codes listed. Use of modifiers with any other procedure codes will cause the claim to deny or pay incorrectly.
Note: See in the Florida Medicaid Provider Reimbursement Handbook, NonInstitutional 081, for additional information on entering modifiers on the claim form.

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APPENDIX A TBI/SCI WAIVER SERVICES PROCEDURE CODES,
REIMBURSEMENT AND MAXIMUM LIMITS
Non-Duplication of Services: TBI/SCI Waiver services may not duplicate services available through other funding sources or other Medicaid programs.

SERVICE
Adaptive Health and Wellness Assistive Technologies Attendant Care
Behavior Programming
Community Support Coordination Companion Care

PROCEDURE CODE
S9970 E1399 S5125 96152
G9012
S5135

MODIFIER

REIMBURSEMENT PER UNIT

UA

$50 per month

UA

Variable

UA

$7.50 per 15-minute unit

UA

$12.00 per 15-minute

unit

UA

$120 per month

UA

$3.00 per 15-minute unit

MAXIMUM LIMIT PER RECIPIENT Not to exceed $600 per year Not to exceed $2500 per year 12 units (3 hours) per day 8 units (2 hours) per day
1 Unit ($120) per month
24 units (6 hours) per day

Consumable Medical Supplies
Environmental Accessibility Adaptations Life Skills Training

S5199 S5165 H2014

UA

$250 per month

UA

Variable

Not to exceed $250 per month
Not to exceed $5000 per year

UA

$5.25 per 15-minute unit 8 units (2 hours) per day

Personal Adjustment Counseling
Personal Care

H2019 T1019

UA

$12.00 per 15-minute

unit

8 units (2 hours) per day

UA

$5.00 per 15-minute unit 16 units (4 hours) per day

Rehabilitation Engineering Evaluation

T1028

UA

$200 per evaluation

1 Unit ($200) per recipient month

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APPENDIX B FLORIDA BRAIN & SPINAL CORD INJURY
PROGRAM REGIONS

REGION
REGION 1 2000 Bldg, Suite 101B Midtown Centre 3974 Woodcock Drive Jacksonville, FL 32207 (904) 348-2755
REGION 2 Suite 212 3751 Maguire Boulevard Orlando, FL 32803 (407) 897-5964
REGION 3 Suite 212 9400 4th Street, North St. Petersburg, FL 33702 (727) 570-3427
REGION 4 2550 West Oakland Park Blvd. Ft. Lauderdale, FL 33311 (954) 677-5639
REGION 5 401 Northwest 2nd Avenue, Room S-221 Miami, FL 33128 (305) 377-5464

COUNTIES INCLUDED
Alachua, Baker, Bay, Bradford, Calhoun, Clay, Columbia, Dixie, Duval, Escambia, Franklin, Gadsden, Gilchrist, Gulf, Hamilton, Holmes, Jackson, Jefferson, Lafayette, Leon, Levy, Liberty, Madison, Nassau, Okaloosa, Santa Rosa, St. Johns, Suwannee, Taylor, Union, Wakulla, Walton, Washington
Brevard, Citrus, Flagler, Hernando, Lake, Marion, Orange, Osceola, Putnam, Seminole, Sumter, Volusia
DeSoto, Hardee, Highlands, Hillsborough, Manatee, Pasco, Pinellas, Polk, Sarasota
Broward, Charlotte, Collier, Glades, Hendry, Indian River, Lee, Martin, Okeechobee, Palm Beach, St. Lucie
Miami-Dade and Monroe

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APPENDIX C HOME AND COMMUNITY-BASED WAIVER
REFERRAL AGREEMENT

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HOME AND COMMUNITY-BASED WAIVER REFERRAL AGREEMENT

This Referral Agreement made this ____ day of _____ 200__, between the Department of Health’s Brain and Spinal Cord Injury Program and ______________________________, (hereinafter referred to as the Service Provider.) This Referral Agreement has an effective date beginning ________________ and is in effect for a period of time that is equal to the Medicaid Waiver provider’s enrollment period with the state of Florida’s Medicaid fiscal agent. The purpose of this agreement is to promote the development of a coordinated service delivery system to meet the needs of individuals who have incurred a traumatic brain or spinal cord injury and who are at risk of premature institutionalization. Another purpose of this agreement is to enable eligible recipients to receive Home and Community-Based Waiver Services from qualified providers with oversight of the quality of care by the Waiver Administrator employed by the Brain and Spinal Cord Injury Program. These services are authorized in order that the recipient may remain in the least restrictive setting and avoid or delay premature nursing home placement. Services and care are to be furnished in a way that fosters the independence of each recipient with dignity and respect.

I. Objective:

A.

To maintain a climate of cooperation and consultation with and between

BSCIP providers, in order to achieve maximum efficiency and effectiveness.

B.

To participate through shared information in the development and expansion

of services.

C.

To promote programs and activities designed to prevent the premature

institutionalization of people who have incurred a traumatic brain or spinal

cord injury.

D.

To require the parties of this Agreement to provide technical assistance and

consultation to each other on matters pertaining to actual service delivery

and share appropriate assessment information and care plans so duplication

may not occur.

E.

To establish an effective working relationship between the BSCIP regional

office responsible for the development of care plans and authorization of

services available under the Medicaid waiver, the Service Provider that is

responsible for the direct provision of those services to recipients, and the

BSCIP Headquarters Office that is responsible for management and

oversight of the program.

II. Under this Agreement, the Service Provider agrees to the following:

A.

To accept client referrals from the 1915c Home and Community-Based

Service (HCBS) Medicaid waiver from the BSCIP regional office or

community support coordinator.

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B. To provide quality service(s) to the Medicaid waiver recipient as specified in Section IV. Provision of service(s) rendered by Service Provider is subject to quality assurance monitoring and/or observation by the management agency and/or the Brain and Spinal Cord Injury Program and/or the Department of Health.

C.

To provide only those services specifically outlined in the Plan of

Care and authorized by the BSCIP regional office.

D.

To attach current and up-to-date documentation regarding the service

provider’s qualifications to this agreement; and to provide, as

requested, any information regarding Medicaid waiver billing,

payment, or Medicaid waiver recipient information to the BSCIP

regional office or BSCIP Headquarters Office. Provider rate

increases/decreases must be forwarded to the BSCIP Headquarters

Office along with justification for any increase. If additional

services are to be added to this agreement, a written request by the

Service Provider to do so must be received by the BSCIP

Headquarters Office and an amendment to the Referral Agreement

must be prepared by the BSCIP Headquarters Office listing the

added service(s). The necessary documentation regarding provider

qualifications for additional services must be attached to the

agreement.

E. To maintain the Medicaid waiver recipient’s confidentiality according to HIPAA.

F. To immediately report any changes in the Medicaid waiver

recipient’s condition to the BSCIP regional office.

G. To maintain enrolled provider status with the Florida Medicaid Fiscal Agent, by renewing applicable licensure, certifications, contract, and/or referral agreements and by maintaining all provider qualifications as contained in the Traumatic Brain and Spinal Cord Injury Medicaid Waiver under which services are provided.

H. To permit inclusion of provider name and other appropriate information on a list of all enrolled providers which will be shown to recipients during development of an individualized plan of care, understanding that the recipients reserved the right at all times to a choice of enrolled providers.

I. To provide ten day advance written notification to the BSCIP

regional office and/or BSCIP Regional case managers of staffing

shortfalls, which will negatively impact provision of service to

Traumatic Brain and Spinal Cord Injury Medicaid waiver recipients.

J. To submit claim data for billing to the appropriate BSCIP office after delivery of services has been accomplished. All services should be billed within 60 days after services have been provided or document reasons for delayed submission of claims. Such documentation shall be available for review by the BSCIP Headquarters Office or upon request.

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K. To submit void or adjustment claims no later than 45 days after either party has identified the error. Any error not adjusted or voided within 45 days may be adjusted or voided by the BSCIP Headquarters Office. The provider’s refusal to adjust or void erroneous claims will result in termination of this agreement.
L. To develop and implement a policy to ensure that its employees, board members, and management, as applicable, will avoid any conflict of interest or the appearance of a conflict of interest when disbursing or using the funds described in this agreement. A conflict of interest includes, but is not limited to, receiving or agreeing to receive, a direct or indirect benefit, or anything of value from a Service Provider, recipient, vendor, or any person wishing to benefit from the use or disbursement of funds.
M. To adhere to the policies and procedures as outlined in the following manuals published by the Agency for Health Care Administration: Traumatic Brain and Spinal Cord Injury Medicaid Waiver Coverage and Limitation Handbook and the Medicaid Provider General Handbook including any and all attachments or updates.
N. To advise the Medicaid Fiscal Agent and BSCIP Headquarters office of any change in status to ownership, location, business name change and so forth, that could impede the Waiver Administrator from accurately reporting and reconciling federal requests for information.
O. The BSCIP and the vendor will comply with all requirements of the Health Insurance Portability and Accountability Act (HIPAA) of 1996’s Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”). As such, each agrees to the following:

(a)

That neither party will use or disclose protected health

information for any purpose other than as authorized by

law, by this contract, or by separate agreement between the

parties.

(b)

That each party will not use or disclose protected health

information in a manner which would be a prohibited use

or disclosure if made by the other.

(c)

That each party will maintain safeguards as necessary to

ensure that the protected health information is not used or

disclosed except as provided by law, by this contract, or by

separate agreement between the parties.

(d)

That each party will report to the other any use or

disclosure of the protected health information of which it

becomes aware that is not provided for by law, by this

contract, or by separate agreement between the parties that

pertains to protected health information that was received

from the other.

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(e)

That each party will ensure that any of its subcontractors or

agents to whom it provides protected health information

received from the other agree to the same restrictions and

conditions that apply to each other with respect to such

information.

(f)

In the event that the protected health information

constitutes a Designated Record Set, each party will

provide access to protected health information to the

subject of that information in circumstances where the

information is being held by the other.

(g)

That each party will provide health information to the

subject of the information in accordance with the subject’s

right to access, inspect, copy, and amend their health

information.

(h)

That each party will make available to the Secretary of

Health & Human Services its internal practices, books and

records relating to the use, and disclosure of protected

health information received from the other or its agents for

the purposes of determining compliance with the Privacy

Rule, subject to any applicable legal privileges.

(i)

Each party will assist the other in meeting its obligation to

provide, at an individual’s request, an accounting of all

uses and disclosures of personal health information which

are not related to treatment, payment, or operations within

60 days of the request of an accounting.

(j)

That each party will incorporate any amendments or

corrections to protected health information when notified

by the other that the information is inaccurate or

incomplete.

(k)

That at the termination of this contract, unless a new

contract is agreed upon, each party will return or destroy all

protected health information received from the other that it

still maintains in any form unless it is not feasible to do so.

(l)

That either party may terminate this contract with prior

written notification if it learns that the other party has

repeatedly violated or neglected to comply with a term of

this contract provision.

(m) That each party will disclose only the minimum amount of information necessary to accomplish the permitted use of the protected health information. This minimum use requirement does not apply to information provided for treatment or to disclosures required by law.

(n)

That each party will limit the use and disclosure of

protected health information to the minimum number of

employees necessary by class of employee and type of

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information to accomplish the permitted use of the information.

(o)

That each party will meet at least the minimum security

requirements for the protection of protected health

information as required by HIPAA by the compliance date.

(p)

That each party is bound by the terms of the “Notice of

Privacy Practices” of the other with regard to protected

health information it receives from the other upon receipt

of such Notice.

P. To provide to the BSCIP Headquarters office proof of annual recertification and/or licensing within thirty days of renewal.

It is understood that because the Service Provider is a Medicaid waiver provider, all recipients enrolled in this Medicaid waiver are guaranteed a personal choice of providers. Therefore, the BSCIP can not ensure a specific number of client referrals or number of hours to a provider.
III. Under this Agreement, the BSCIP HQ Office agrees to the following:

A.

To facilitate the enrollment of providers with the Medicaid Fiscal Agent.

B.

To provide technical assistance and training to Service Providers as required

by the TBI/SCI Medicaid Waiver Handbook.

C.

To notify the BSCIP regional office within 48 hours of any approved service

provider rate adjustment.

D.

To regularly monitor the Service Providers in accordance with requirements

specified by the Department of Health.

IV. Under this agreement, the following service(s) will be delivered by the Service Provider in accordance with the plan of care or service authorization:

Service(s)

Unit Rate

Counties Served

County of License

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V. Termination

In the event this agreement is terminated, the BSCIP regional office and the service provider agree to submit, at the time notice of intent to terminate is delivered, a plan, which identifies procedures to ensure services to recipients will not be interrupted or suspended by the termination.

A.

Termination at Will

This agreement may be terminated in writing by either party upon no less than thirty (30) calendar days notice, without cause, unless both parties mutually agree upon a lesser time. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery.

B.

Termination Because of Lack of Funds

In the event funds to finance this agreement become unavailable, the BSCIP Headquarters Office may terminate this agreement upon no less than twenty-four (24) hours notice in writing to the other party. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery. The BSCIP Headquarters Office shall be the final authority as to the availability of funds.

C.

Termination for Breach

Unless a breach is waived by the BSCIP Headquarters Office in writing, or the parties fail to cure the breach within the time specified by the area agency, the BSCIP Headquarters Office may, by written notice to the parties; terminate the agreement upon no less than twenty-four (24) hours notice. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery.

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The officials as authorized below, herein have read, understand and agree to comply with this Referral Agreement as written, and have received a duly executed copy of same.

Department of Health

Service Provider

Signature

Signature

Print Name

Print Name

Title

Title

Date

Date

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APPENDIX D BRAIN AND SPINAL CORD INJURY PROGRAM
REQUEST FOR LEVEL OF CARE

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Brain and Spinal Cord Injury Program Request for Level of Care

REFERRED INDIVIDUAL:

DOB

I. MEDICAL STABILITY: Does the Patient have any of the following? A. Active, life threatening condition present, (e.g., sepsis, respiratory, or
other condition requiring systematic therapeutic measures).
B. IV drip to control or support blood pressure.
C. Intracranial pressure or arterial monitor.
D. Ventilator support (does not disqualify for TBI/SCI Medicaid Waiver). The patient may have a tracheotomy for airway protection without ventilator, gastrostomy or feeding tube, or IV access for non-life threatening illness.
II. MEDICAL ELIGIBILITY
SPINAL CORD INJURY (SCI) A. Did the injury result from trauma to the spinal cord or cauda equina?
B. Did the lesion result in significant involvement and functional limitation of two or more of the following? 1. Motor Deficit 2. Sensory Deficit 3. Bowel/Bladder Dysfunction
C. If SCI patient has also sustained a brain injury, functional level is at a Rancho Level IV or greater.
BRAIN INJURY (BI) A. Did the injury occur from external trauma?
B. Which of the following were produced by the injury resulting in functional limitations: 1. Altered State of Consciousness 2. Motor Deficit Present 3. Sensory Deficit Present 4. Cognitive/Behavioral Deficit
C. RANCHO LEVEL: (Refer to attached Adult Rancho Los Amigos Guide)
Adult: 1 2 3 4 5 6 7 8 9 10

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Yes

No

Signature of Physician/Physician’s Representative Completing

Date

Form (Title/Facility)

CERTIFICATE OF ELIGIBILITY

FOR BSCIP USE ONLY: There is reasonable expectation that the individual will benefit from services based on the goal of community reintegration.

Signature of BSCIP Case Manager

Date

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ADULT RANCHO LOS AMIGOS COGNITIVE SCALE

Level I

No response to pain, touch, sound or sight.

Level II Generalized reflex response to pain.

Level III

Localized response. Blinks to strong light, turns toward/away from sound, responds to physical discomfort, inconsistent response to commands.

Level IV

Confused – Agitated. Alert, very active, aggressive, or bizarre behaviors, performs motor activities but behavior is non-purposeful, extremely short attention span.

Level V

Confused – Non-agitated. Gross attention to environment, highly distractible, requires continued redirection, difficulty learning new tasks, agitated by too much stimulation. May engage in social conversation but with inappropriate verbalizations.

Level VI

Confused – Appropriate. Inconsistent orientation to time and place, retention span/recent memory impaired, begins to recall past, consistently follows simple directions, goal-directed behavior with assistance.

Level VII

Automatic – Appropriate. Performs daily routine in highly familiar environment in a non-confused, but automatic robot-like manner. Skills noticeably deteriorate in unfamiliar environment. Lacks realistic planning for own future.

Level VIII Purposeful – Appropriate. Stand-by assistance.

Level IX Purposeful – Appropriate. Stand-by assistance upon request.

Level X Purposeful – Appropriate. Modified independent.

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APPENDIX E NOTIFICATION OF LEVEL OF CARE

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Notification of Level of Care

1. From CARES PSA/Worker: ______________________________ To District: ___________C&F Unit/Other: ____________

Case Mgr: _______________________________________Case Mgt Agency: _____________________________________

2. Client Name: _____________________________________________DOB: _____________ SSN: _____________________

Current Location: ______________________________________________________________________________________

3. Level of Care:
□ Skilled □ Risk of Hospital

□ Intermediate I □ Intermediate II

□ Withhold LOC □ Does Not Meet LOC

4. Meets Program Requirements For:

□ PAC

□ Aged & Disabled Adults

□ Assisted Living

□ Channeling

□ Elder Care

□ Cystic Fibrosis

□ Model Waiver

□ □ Brain and Spinal Cord Injury

LTCCDPP

□ PACE

□ □ Does Not Meet Waiver Criteria

Other Program

Specify:______________

5. Placement Recommendation:

□ Community

□ Nursing Facility

□ Temporary Nursing Facility

□ Swing Bed

□ □ State Mental Health Hospital

Other Placement

Specify: __________________

□ Hospital Based Nursing

Bed for Rehab Care

6. OBRA Screen:

□ □ □ □ MI Level I

MR Level I

MI Level II

MR Level II

7. LOC Effective Date: ________________

8. Comments: _________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

__________________________________________________________________________

9. Approval

Signature: ___________________________________

Date: __________________

DOEA-CARES form 603 (Revised, March 2003)

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APPENDIX F BRAIN AND SPINAL CORD INJURY PROGRAM
WAITING LIST POLICY FOR THE TRAUMATIC BRAIN/SPINAL CORD INJURY
MEDICAID WAIVER PROGRAM
AND
HOME AND COMMUNITY-BASED MEDICAID WAIVER PRIORITIZATION SCREENING INSTRUMENT

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Brain and Spinal Cord Injury Program Waiting List Policy for the Traumatic Brain/Spinal Cord Injury Medicaid Waiver Program

I.

Introduction

The purpose of the Brain and Spinal Cord Injury Program (BSCIP) waiting list policy for the Traumatic Brain /Spinal Cord Injury Medicaid Waiver (TBI/SCI Medicaid Waiver) Program is three-fold:

1. to provide for statewide consistency for developing and managing the TBI/SCI Medicaid Waiver waiting list;

2. to provide a valid process for ranking individuals requesting services when budgetary restraints necessitate that they be placed on the waiting list log rather than referred for application and eligibility determination; and

3. to provide a reliable process for referring individuals for face-to-face assessment, application, and eligibility determination from the waiting list log in priority order into the TBI/SCI Medicaid Waiver program when funding is available.

II.

Screening for Consideration for Community-Based Programs and the TBI/SCI Medicaid

Waiver Waiting List Log

A. Prioritization Screening

1. All referrals for services provided through the Brain and Spinal Cord Injury Program must first contact the Central Registry established within the BSCIP. Referrals are subsequently sent to the Regional Offices.

2. The TBI/SCI Prioritization Screening Instrument is used to record demographic information pertaining to the individual requesting services, and to assist the screener in determining functional abilities, formal and informal support provided, services received from other programs, needs and risk of institutionalization of the individual requesting services.

3. The TBI/SCI Prioritization Screening Instrument, hereafter referred to as “screening instrument”, will be completed by telephone (or may be completed face-to-face if the individual comes into the office), by BSCIP administrative staff.

4. If the individual contacts a contracted provider directly requesting services, that provider will provide the individual with the telephone number for the appropriate BSCIP Regional Office to contact for screening. It is the individual’s responsibility to follow through with contacting the BSCIP Regional Office. The Central Registry will be notified by the Regional Office of the referral.

5. The screening instrument shall be completed no later than fourteen (14) days after the individual requests home and community based waiver services. The first contact date is the date of initial contact with the Central Registry, not the date that the screening instrument was initiated or completed.

6. Following completion of the screening, the instrument is scored and entered into the BSCIP information management system, which is called the Rehabilitation Information Management System (RIMS), along with the applicant’s demographic information and date of the screening.

7. Applicants on previous waiting lists will be screened under the new procedures using the screening instrument and will be placed on the wait list according to the screening score and original date of contact.

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B. Location of TBI/SCI Medicaid Waiver Waiting List
The TBI/SCI Medicaid Waiver waiting list is maintained within RIMS. It is used to record and maintain the score from the screening instrument of those individuals requesting services from the TBI/SCI Medicaid Waiver program when funding is not available and an opening in the program is not available. Once funding is available, the TBI/SCI Medicaid Waiver waiting list log will be used to identify and refer individuals in priority order for a face-to-face assessment and eligibility determination.
C. Record Management
All completed (past and current) screening instruments are kept in an individual file folder labeled with the name and date of birth of each individual requesting services. All documentation relating to this individual will be maintained in the individual’s file folder. If a case is opened on the individual, all screening instruments and other documentation must be maintained in the case record.
D. Maintenance of the Waiting List
1. For security purposes, the BSCIP Waiver Administrator is responsible for maintaining the BSCIP Medicaid Waiver waiting list. The BSCIP Waiver Administrator will enter the applicant information into RIMS. The BSCIP Waiver Administrator, or his delegate, will be the only person to have this access. All others will have “view only” access.
2. The waiting list log for the TBI/SCI Medicaid Waiver program represents the needs of applicants statewide and is maintained in the RIMS database. Individuals who have direct security access to the Medicaid Waiver statewide log and RIMS database will not share information from the database with anyone other than with other individuals who have direct security access to RIMS, and only as needed in order to accomplish tasks associated with maintaining the waiting list and moving an individual off the list.
E. Individuals Not Considered as New Referrals
1. When an individual enrolled in the TBI/SCI Medicaid Waiver program moves or relocates to another region, the funding allocated to the individual moves from the originating region to the region to which the individual moves, and the individual will continue to receive services. This individual is not treated as a new referral and is not moved back onto the Medicaid Waiver waiting list.
2. When an individual initially requests services and is placed on the TBI/SCI Medicaid Waiver waiting list and moves to a different region, he is not treated as a new referral. He is not re-screened, unless there are changes which will likely result in a revised score. His date of initial contact does not change, regardless of whether a re-screening is deemed appropriate. All documentation pertaining to the individual will be sent from the originating region to the region to which the individual moves. Additionally, the individual will be provided a telephone number and contact name in the receiving region, and instructed to follow-up with the contact as soon as the move is completed.
F. Re-Screening
1. The individual requesting services is re-screened by the appropriate BSCIP staff (preferably the same person who completed the initial screening) annually using the screening instrument and re-scored if the individual’s situation has changed. This may result in a change in the individual’s ranking on the waiting list.
2. The individual requesting services (or that person’s representative) must contact the BSCIP Regional Office if his status or situation changes at any time. A new screening is completed within ten working days of the reported

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change in status. Revisions in the individual’s situation may also result in his score being changed, resulting in a change in the individual’s ranking on the waiting list log.
III. Due Process
A. Upon completion of the screening instrument for an initial screening, annual re-screening, or change of status screening, BSCIP staff will send a Notice of Decision Form to the individual requesting services informing the individual requesting services that he has been placed on the TBI/SCI Medicaid Waiver waiting list. The individual’s screening score and fair hearing rights shall be included as part of the Notice of Decision Form.
B. In the event that the case manager contacts the highest ranking individual on the TBI/SCI Medicaid Waiver waiting list and determines that services are no longer necessary or appropriate, the individual will be sent a Notice of Decision and given 10 days to appeal and preserve their space before the next individual on the waiting list is contacted.
C. In the event of a hearing proceeding involving the highest ranking individual on the TBI/SCI Medicaid Waiver waiting list, all actions relating to moving another individual off the waiting list will be suspended until a final order is provided by the hearings officer.
IV. Funding Available to the TBI/SCI Waiver Program
A. Allocation Methodology
Funds will be allocated to the BSCIP Regional Offices for the TBI/SCI Medicaid Waiver program at the beginning of each fiscal year. The allocation of funds to the program will be based on the total annualized authorized Care Plan costs of active clients in the TBI/SCI Medicaid Waiver program in each Region. The balance of the funds will be maintained in a control account to be used for amending existing care plans or adding new individuals to the TBI/SCI Medicaid Waiver program.
B. Funding Unmet Need
1. It is the intent of federal policy that the TBI/SCI Medicaid Waiver program will meet identified and medically necessary Care Plan needs which are within the range of services offered by the TBI/SCI Medicaid Waiver for individuals enrolled in the program. Any unmet needs of recipients enrolled in the Medicaid Waiver program will be funded prior to moving the highest-ranking individuals off the TBI/SCI Medicaid Waiver waiting list into the program.
2. The TBI/SCI waiting list policy is written in order to discourage the moving of individuals from the TBI/SCI Medicaid waiver list while recipients enrolled in the waiver program have unmet needs. In order to accomplish this, case managers must:
a.) Keep accurate records of Care Plan costs associated with each current Medicaid Waiver recipient; and,
b.) Annualize, and update as necessary, the cost of each TBI/SCI Medicaid Waiver Care Plan.
3. When a TBI/SCI Medicaid waiver case is terminated, the terminated recipient’s Care Plan is reviewed for two purposes:
a.) To determine the annual amount of funding authorized for services specific to the recipient’s Care Plan; and,
b.) To determine the amount of authorized service allocation that was not used by the recipient terminating from the program (unexpended authorized Care Plan funds).

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C. Unexpended Authorized Care Plan Funds of a Medicaid Waiver Recipient
To determine the unexpended authorized Care Plan funds of a Medicaid Waiver case that has been terminated, the Waiver Administrator will review the terminated case in RIMS to determine from the Care Plan any funds not expended.
D. Review of Available Funds and Waiting List
1. The BSCIP Waiver Administrator will determine funds available based upon a review of projected care plan costs and actual expenditures in RIMS. A determination will be made regarding the transfer of funds from the control account into a Regional account in order to move the next highest-ranking individual from the waiting list and refer for TBI/SCI Medicaid Waiver application and assessment. This decision is based on the amount of funds in the control account, unexpended authorized Care Plan funds and projected annualized savings created by the case termination, projected unmet need of clients in the TBI/SCI Medicaid Waiver program, and the annualized assessed costs of care for the highest ranking individual on the waiting list log who is requesting services.
2. For purposes of determining the most appropriate person to be transferred from the wait list to the waiver program, a “Wait List Review Team” will be established. The team is comprised of the five BSCIP Regional Managers, the BSCIP Waiver Administrator and the BSCIP Bureau Chief.
3. In order to determine the region where the highest-ranking individual is located, the Wait List Review Team members will view the statewide TBI/SCI Medicaid Waiver waiting list log. In the event that the top two individuals on the waiting list log have the same screening score, team members will use the date of initial contact to determine which individual will be considered to have a higher ranking. The individual with the earlier date of initial contact will be ranked higher.
4. When there is a situation in which two or more individuals on the waiting list log score the same and have the same date of initial contact, a re-screening will be completed using the screening instrument. The individual with the higher score will be moved from the waiting list and begin the CARES review process. If the scores remain the same, then a DOEA Form 701B, Department of Elder Affairs Assessment Instrument, will be administered, and the highest numerical score on the Form 701B will be utilized to determine which individual will be moved from the waiting list.
E. Review of Highest Ranking Individual’s Screening and Needs
1. Following the determination that funds are available to refer the highest ranking individual from the TBI/SCI Medicaid Waiver waiting list for a face-to-face assessment, the case manager in the appropriate Region will contact that individual by telephone and review the most recent screening instrument. The purpose of this review will be to discern whether the individual appears to continue to have service needs that are programmatically appropriate and whether the individual continues to be interested in services from the TBI/SCI Medicaid Waiver program. It is not necessary to complete a new screening instrument at this point; notes and documentation in the margin of the latest screening instrument are appropriate. If services are no longer necessary or appropriate, or interest is lacking, this will be noted in the case notes section of RIMS and notification to the Waiver Administrator is required. Wait List Review Team members will also be informed. After the appeal period has expired, the next highest ranking individual on the waiting list will then be contacted for a review of his most recent screening instrument and a subsequent face-to-face assessment.

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2. The TBI/SCI Waiver case manager will schedule a home visit with the highest ranking individual requesting services to complete a full assessment using the DOEA Form 701B, and to estimate the individual’s projected cost of care. The BSCIP Waiver Administrator and Wait List Review Team members will be provided with specific information relating to the individual’s health conditions, probable service needs, and projected cost of care.

F. When Funding is Available; Transferring of Funds

When funding becomes available to cover the highest ranking individual’s service needs, notification is made to the appropriate Regional Manager. The TBI/SCI waiver case manager will assist the highest ranking individual with completing the Request for Assistance (CF-ES 2066) to establish Medicaid eligibility, the BSCIP Request for Level of Care, and other documentation required to establish eligibility. Once eligibility is established, appropriate steps will be taken to ensure that funds are available in the Region to begin services to the highest ranking individual. The Care Plan will be developed by the case manager and approved by the Regional Manager and the BSCIP Waiver Administrator. After these steps have been completed, service delivery begins.

G. When Funding is Not Available

When the amount of available funds will not cover the assessed costs of the projected annualized cost of care, the highest ranking individual will not be contacted by the TBI/SCI case manager to complete the Request for Assistance, programmatic application, and other eligibility documentation. It is inappropriate to move to a lower ranking individual whose costs are projected as less. It is also inappropriate to reduce the projected authorized care because of lack of funding, unless directed to do so by a hearings officer. Unexpended dollars resulting from client terminations will be kept in the BSCIP control fund account and used for needs of current enrollees or held until the amount accumulates to cover the assessed costs of the projected annualized cost of care of the highest ranking individual, as determined by Wait List Review Team members. At the discretion of the Wait List Review Team members, projected end of year surplus funds may be used for one-time purchases to meet the needs of recipients already enrolled in the program.

H. Change in Individual’s Condition or Service Needs

In order for the individual to be transferred from the waiting list to the waiver program, it is imperative that the face-to-face assessment and information provided by the individual regarding his medical condition and needed services validate the information indicated on the screening instrument. If it is discovered, while completing the full assessment (DOEA Form 701B), that the highest ranking individual’s medical condition, and service and care needs are not as extensive as originally projected during the telephone screening, the individual is re-screened, using the screening instrument, re-scored and moved back to the waiting list. After the appeal period has expired, the process begins again with the next highest-ranking individual on the waiting list.

V.

Quality Assurance

In order to ensure continued integrity of the TBI/SCI Medicaid Waiver waiting list, quality assurance reviews will be completed randomly and, at a minimum, twice a year. Randomly selected screening instruments will be provided to BSCIP Headquarters staff upon request to review for quality assurance purposes.

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HOME AND COMMUNITY-BASED MEDICAID WAIVER

PRIORITIZATION

SCREENING INSTRUMENT

Today’s Date: ___/____/______

SECTION I

Date Referred To Central Registry:___/___/___

Region: _____
Name Last Name

County______________

First Name

MI

Date of Birth: ____/___/_____

Address: Street: _______________________________
City: ______________State____Zip_______

Brain Injury Spinal Cord Both

Email: __________________________________________ Phone Number: ___________________________________
Housing situation. Do you believe your present housing is:

Medicaid Number: __________________
Medicare Number: ___________________

Safe?

Accessible?

Affordable?

How long there?______ Plan to stay? Yes No

SECTION II

APPLICANT CONDITIONS: [ASIA SCALE I]

APPLICANT CONDITIONS: [GLASGOW SCALE]

SPINAL CORD INJURY

TRAUMATIC BRAIN INJURY

C1 AND C2 C3 AND C4 C5

T1 T2 - T6 T7 - T12

EYES OPEN MOTOR RESPONSES VERBAL RESPONSES

Yes No Yes No Yes No

C6

L1 - L2

[RANCHO SCALE]

C7

L3 – L4

C8

L5- S1

LEVEL I

LEVEL II

S2,S3,S4

LEVEL III

LEVEL IV

LEVEL V

LEVEL VI

LEVEL VII OR HIGHER

ADDITIONAL DIAGNOSES/DISABILITIES: [ELABORATE HERE] _______________________________________

____________________________________________________________________________________

____________________________________________________________________________________

LIVING SITUATION:

Alone? (5)

With Spouse? (0)

With Other Relative? (0)

With Other? (0)

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FUNCTIONAL ADLS/IADLS

Are you ventilator dependent?

Yes No

CONSUMER CONDITIONS

Physical Health

Total ____

Are you able to communicate with others?

Yes No

Do you need assistive devices?

Yes No

CONSUMER RESOURCES

Total ____

How would you rate your overall health at the present time?

Is medical care/behavioral support readily available?

Excellent (1) Good (2)

Fair (3)

Poor (4)

Compared to a year ago, how would you rate your health?

Always (1) Sometimes (2)

Rarely (3)

Never (4)

Is transportation to medical care/behavioral support readily available?

Much Better(1) Better (2)

About same (3) Worse (4)

How much do your physical problems stand in the way of your doing the things you want to do?

Not at all (1) Occasionally (2) Often (3)

All the time (4)

Always (1) Sometimes (2)

Rarely (3)

Never (4)

Do your finances/insurance permit access to healthcare and medications?

Behavioral Health

Not at all (4) Occasionally (3) Often (2) All the time (1)

Does the individual have ongoing memory or confusion problems?

Yes (5) No (0)

Does the individual exhibit maladaptive behavior?

Yes (5) No (0)

Functional

Total ____

How much help do you need with the following Activities of Daily Living [ADL’s]?

(Codes: 0 = No help; 1=No help but relies on Assistive Device; 2=Supervision; 3=Some Help; 4=Total Help, can’t do at all)

BATHE

(0)

(1)

(2)

(3)

(4)

How often do you have adequate assistance with the following ADL’s?

Total ____

N/A for institutional settings

Always(0) Sometimes (1)

Rarely (2) Never (3)

DRESS

(0)

(1)

(2)

(3)

(4)

Always(0) Sometimes (1)

Rarely (2) Never (3)

EAT

(0)

(1)

(2)

(3)

(4)

Always(0) Sometimes (1)

Rarely (2) Never (3)

USE BATHROOM

(0)

(1)

(2)

(3)

(4)

Always(0) Sometimes (1)

Rarely (2) Never (3)

TRANSFER

(0)

(1)

(2)

(3)

(4)

Always(0) Sometimes (1)

Rarely (2) Never (3)

WALKING/ MOBILITY

Always(0) Sometimes (1)

Rarely (2) Never (3)

(0)

(1)

(2)

(3)

(4)

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How much help do you need

Total ____

with the following instrumental activities of

daily living [IADL’s]?

(Codes: 0 = No help; 1=No help but relies on Assistive Device; 2=Supervision; 3=Some Help; 4=Total Help, can’t do at all)

How often do you have

Total ____

adequate assistance with the following IADL’S?

N/A for institutional settings

(0) (1) (2) (3) (4) (0) (1) (2) (3) (4) (0) (1) (2) (3) (4) (0) (1) (2) (3) (4) (0) (1) (2) (3) (4) (0) (1) (2) (3) (4) (0) (1) (2) (3) (4)

(0) (1) (2) (3

(4)

Do heavy chores Do light housekeeping Use phone Manage money Prepare meals Do shopping Take medication Use transportation

Always (0)

Sometimes (1)

Always (0)

Sometimes (1)

Always (0)

Sometimes (1)

Always (0)

Sometimes (1)

Always (0)

Sometimes (1)

Always (0)

Sometimes (1)

Always (0)

Sometimes (1)

Always (0)

Sometimes (1)

Rarely (2) Never (3) Rarely (2) Never (3) Rarely (2) Never (3) Rarely (2) Never (3) Rarely (2) Never (3) Rarely (2) Never (3) Rarely (2) Never (3) Rarely (2) Never (3)

SECTION III

Nutrition Status

1. Have you lost or gained ten pounds or more in the past six months without trying?

Yes (1) No (0)

If yes, Gain: ________lbs,

Loss: __________ lbs.

2. Do you take three or more kinds of medicine a day?
Yes (1) No (0)
3. Do you have two or more drinks of beer, wine, or liquor almost every day?
Yes (1) No (0)
4. Has your injury caused you to change the food you eat?
Yes (1) No (0)

5. Do you eat at least two meals per day?
Yes (1) No (0)

6. Do you have any problems with your throat, mouth or teeth that make it difficult to chew

Yes (1) No (0)

or swallow?

7. Do you have enough money to buy the food you need?
Yes (1) No (0)

Total Score _______

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Screener please answer:
Does there appear to be a need for food stamps?
Yes (1) No (0)

Tobacco Use
1. Do you smoke or use Tobacco products?

Yes (1) No (0)

2. Have you ever smoked or used tobacco? If yes for how long?______ Yes (1) No (0)

SECTION IV

Status of Caregiver and Other Support Mechanisms

PRIORITIZATION/SCORING

1. Is the individual requesting services at risk of abuse, neglect or exploitation as referred

Yes (5) No (0)

by Protective Services?

Yes (5) No (0)

2. Is the individual currently residing in a nursing facility, or at risk of nursing home placement within the next 30 to 60 days?

Yes (5) No (0)

3. Is there an imminent loss of caregiver?

Yes (5) No (0)

4. Is the individual solely responsible for minor children (under the age of 12) in the home?

Name of Caregiver:

Caregiver Assessment [if applicable]
What type of assistance do you currently provide?

___________________________ Relationship to Client:

Spouse Parent Child

Other

Financial

Emotional

Physical

Other

How likely is it that you will continue to provide support and care?

Caregiver:

Very Likely

Somewhat likely

Unlikely

Grandchild Friend Other Relative Assessor: Telephone: ( ) ___________

Very Likely

Somewhat likely

Unlikely

How is Your Own Health?

Excellent Good Fair Poor
Individual requests a copy of the completed Prioritization Screening Instrument?

Yes No

______________________________________ Signature of screener
F-10

_______________________ Date
April 2006

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 128 of 138

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 129 of 138
Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook
APPENDIX G NOTICE OF DECISION
AND RIGHT TO A FAIR HEARING

April 2006

G-1

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 130 of 138

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 131 of 138
Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook

NOTICE OF DECISION

TRAUMATIC BRAIN AND SPINAL CORD INJURY MEDICAID WAIVER PROGRAM

[DATE] Applicant/Participant Name: Address:

Case Worker Name: Telephone: Case Name or Number:

_______________________________ _______________________________ _______________________________

You are hereby notified of the following:

 Your TBI/SCI Waiver Program services have been: o Denied o Terminated o Suspended o Reduced

Service(s):

Pursuant to Rule:
□ 59G-4.180, Florida Administrative Code □ 59G-13.130, Florida Administrative Code □ Other: ____________

Reason(s) for Action Taken:

 You have been placed on the TBI/SCI Waiver waiting list: Date of Referral:
Prioritization Score: _____ of ____ (total possible score)
Reason(s) for placement on waiting list:

To request a copy of your screening instrument, contact the BSCIP Waiver Administrator:
Florida Department of Health BSCIP Waiver Administrator 4052 Bald Cypress Way, BIN C-25 Tallahassee, FL 32399-1744 (850) 245-4045

(Please see page 2 for information about fair hearings) G-2

April 2006

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 132 of 138
Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook
RIGHT TO A FAIR HEARING If you do not agree with this decision, you or your authorized representative may ask for a hearing within 21 days of the date of this notice. If this action is a termination, reduction, or suspension of your services, those services may continue until your hearing is held, but you must ask for a Fair Hearing within 10 days of the date of this notice in order to receive continued benefits. You may be requested to repay that portion of the benefits that the hearing decision determines to be invalid. You have the right to be represented by an authorized representative, to review your file at a reasonable time before and during the hearing, to review all documents and records to be used by the State at the hearing and receive copies of all such documents. You may request an interpreter. In the circumstances where an applicant for, or recipient of, TBI/SCI Waiver Services wishes to appeal decisions made by the State of Florida entities, the individual may make written request for a hearing to: Office of Appeal Hearings 1317 Winewood Boulevard, Building 5, Room 203 Tallahassee, Florida 32399 850-488-1429
cc: Individual’s provider

April 2006

G-3

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 133 of 138
Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook
APPENDIX H BRAIN AND SPINAL CORD INJURY PROGRAM MEDICAID HOME AND COMMUNITY-BASED WAIVER
SERVICE PLAN

April 2006

H-1

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 134 of 138

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 135 of 138
Traumatic Brain and Spinal Cord Injury Waiver Services Coverage and Limitations Handbook
Brain & Spinal Cord Injury Program Medicaid Home & Community Based Waiver Service Plan

Name Original

Start Date

Medicaid # End Date

Date of Birth Amendment

Start Date

BSCI Region End Date

HCB WAIVER SERVICES Attendant Care Personal Care Companion Life Skills Training Adaptive Health & Wellness Personal Adjustment Counseling Behavioral Programming Assistive Technologies Consumable Medical Supplies Rehab. Engineering Evaluation Environmental Accessibility Adaptations Community Support Coordination
Other Community Based Services Comprehensive In-Patient Rehab. Occupational Therapy Physical Therapy Speech/Cognitive Therapy Comm. Re-Entry/Trans. Living Neuropsycho./psychological Vehicle Modifications Medical Follow-Up Medications/Medical Supplies Durable Medical Equipment Other

Provider

Contact Person

Phone #

Start

End

,

Frequency

BSCI

Medicaid

Medicare Private Ins. Other

Start

End

COMMENTS:

Freedom of Choice/Fair Hearing: This care plan has been discussed with me and I chose the services and service providers described in the plan. I understand the Medicaid Waiver services described in the plan; and I accept the services instead of nursing home placement. I have the right to receive services from any enrolled waiver provider. I am entitled to a fair hearing if I am denied services or the provider of my choice, or my services are terminated, suspended, or reduced.

Recipient/Representative: Community Support Coord.:
H-2

Date: Date:

Case Manager: Regional Manager:

Date: Date:

April 2006

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 136 of 138

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 137 of 138

Case 4:03-cv-00107-SPM -AK Document 190-2 Filed 10/10/06 Page 138 of 138
Jeb Bush Governor Alan Levine Secretary 2727 Mahan Drive Tallahassee, FL 32308 http://ahca.myflorida.com

 
 Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 1 of 19

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DUBOIS, et al.,

Plaintiffs,

v.

Case No. 4:03-CV-107-SPM

CALAMAS, et al.,

Defendants.

PLAINTIFFS' MEMORANDUM IN SUPPORT OF JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT

I.

STANDARD FOR APPROVAL OF SETTLEMENT IN CLASS ACTION

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 (11th Cir. 1984). Nowhere is this policy more appropriate than in class

actions where "there is an overriding public interest in favor of settlement." Cotton v. Hinton, 559 F.2d 1326, 1331 {5th Cir. 1977)1• "Settlement of the 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

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981 ), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit prior to October 1, 1981 .

0

l · '... ,

LLJ

{"")

....J

I

LL..

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 2 of 19
judicial resources." Armstrong v. Board ofSchool Directors, 616 F.2d 305, 313 {7th Cir. 1980).
Under the Federal Rules of Civil Procedure, a class action settlement cannot be dismissed without the approval of the court. Fed. R. Civ. P. 23(e). 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 factors which a district court may consider in evaluating the fairness of a class settlement, including:
(1) the likelihood of success at trial; (2) the range of possible recovery; (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 of litigation; {5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved. Bennett, 737 F.2d at 986. Most important among these factors are the range of possible recovery, the likelihood of success on the merits and whether the settlement is "reasonable in light of these determinations." In re Corrugated ContainerAntitrust Litigation, 643 F.2d 195, 217 (5th Cir. 1981 ). When considering these factors, the court should keep in mind the "strong presumption" in favor of
2

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 3 of 19
finding a settlement fair. Cotton, 559 F.2d at 1331. In addition, to determine the fairness of a proposed settlement, "the view of experienced counsel" as to the merits of the settlement is entitled to significant weight. See Ressler v. Jacobson, 822 F.Supp. 1551, 1552 (M.D. Fla. 1992). II. EVALUATION OF THE SETTLEMENT
An analysis of the Settlement Agreement in this case, in light of the Eleventh Circuit's criteria, as explained below, establishes that it is fair, adequate, reasonable and in the best interests of the class.
A. Likelihood of Success on the Merits and the Range of Possible Recovery
Courts judge the fairness of a proposed compromise by weighing the plaintiffs' likelihood of success on the merits against the amount and form of the relief achieved in the settlement. See Cotton, 559 F.2d at 1130-31. However, courts are not to decide the merits of the case or resolve unsettled legal questions. /d. at 1130. "As settlements are construed upon compromise the merits of the parties' claims and defenses are deliberately left undecided." Ressler, 822 F.Supp. at 1552-53. "Judicial evaluation of a proposed settlement of a class action thus involves a limited inquiry into whether the possible rewards of continued litigation with its risks and costs are outweighed by the benefits of the settlement." /d. at 1553. Indeed, a trial court, in approving class action settlements has neither the
3

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 4 of 19
"right nor the duty to reach any ultimate conclusions on the issues of fact and law which underlie the merits of the dispute." Cotton, 559 F.2d at 1130. In evaluating the likelihood of success on the merits if this matter had been tried, it is helpful to examine the allegations and claims for relief made by Plaintiffs in their Complaint. /d.
Plaintiffs filed their class action Complaint on April 11, 2003 {Dkt. #1 ), on behalf of all individuals with traumatic brain or spinal cord injuries who have been, or will be, determined to be eligible for the state's Traumatic Brain and Spinal Cord Injury Medicaid Waiver Program {TBI/SCI Waiver Program) which provides home and community based services to prevent unnecessary institutionalization or risk of institutionalization to obtain long term care. The Complaint alleged that Defendants' administration of the TBI/SCI Waiver Program violated the Americans with Disabilities Act {ADA), 42 U.S.C. § 12101 et seq. and implementing regulations, and, Section 504 of the Rehabilitation Act of 1973 {Section 504), 29 U.S.C. § 794(a) and implementing regulations, due to the failure to establish "a comprehensive, effectively working plan" for placing qualified persons with disabilities in the most integrated {i.e., least restrictive) settings appropriate to their needs, to have a "waiting list that moved at a reasonable pace," and forcing Plaintiffs to be institutionalized, or at risk of institutionalization, to receive long-term care. See
4

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 5 of 19
Olmstead v. L.C., 527 U.S. 581 (1999). Plaintiffs also alleged that Defendants violated Title XIX of the Social Security Act (the Medicaid Act), 42 U.S.C. § 1396a et seq. and implementing regulations and the Due Process Clause of the Fourteenth Amendment to the United States Constitution by failing to make written determinations within 90 days of an application for services, not providing services with "reasonable promptness," failing to provide due process and failing to provide class members with the freedom of choice between institutional care and home and community based services. Defendants denied these allegations.
In the Complaint, Plaintiffs sought declaratory and injunctive relief and requested that the Court enjoin Defendants to adopt new policies and procedures to ensure that class members could obtain services with reasonable promptness; have the opportunity to receive written notice and a fair hearing which comply with state and federal laws and the Constitution concerning any adverse actions/decisions concerning their requests for services; be provided with the freedom to choose between institutional care and home and community based services; be placed on a waiting list for services (if necessary) that moves at a reasonable pace and not be forced to be institutionalized, or placed at the risk of institutionalization, to obtain long-term care. As described in more detail below in Section (B), the Settlement Agreement provides this relief. It provides for the
5

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 6 of 19
adoption and implementation of a Handbook and Internal Operating Procedures which has resulted in numerous positive policy changes addressing these issues. In addition, Defendants have committed to seek significant increases in funding over the next several state fiscal years to ensure that the agreed upon changes and protections are fully and reasonably implemented. Additionally, as part of the Settlement Agreement, the majority of these changes, such as the provision of due process and an increase in funding and the expansion of the TBI/SCI Waiver Program through the enrollment of 50 more individuals for fiscal year 2006-07 have already occurred. Defendants are also conducting new assessments of all individuals currently on the waiting list for services using the assessment and prioritization tool developed by the parties as part of the Handbook and Internal Operating Procedures. All of these improvements were sought by Plaintiffs in their Complaint.
While Plaintiffs' counsel believe that their claims have strong legal support, the range of possible relief through further litigation was virtually the same as that offered through the terms of the Settlement Agreement. There are direct benefits to class members through the relief attained by the Settlement Agreement provisions. Accordingly, an evaluation of this factor warrants approval of the settlement.
6

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 7 of 19
B. Fairness, Adequacy, and Reasonableness of the Settlement The determination of a "reasonable" settlement is not susceptible to a mathematical equation yielding a particularized sum. Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972). "[l]n any case there is a range of reasonableness with respect to a settlement- a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion ..." /d. at 693. The Settlement Agreement terms provide extensive tangible benefits to the Plaintiffs. In consultation with Plaintiffs' counsel, Defendants have developed a Handbook which includes, inter alia, policies and procedures concerning individuals' due process rights, applications for services, freedom of choice, assessments for services, and the waiting list for services.2 The Handbook is available to the public through the state fiscal agent's website. Defendants have agreed that all persons who apply for services will receive a written determination within 90 days of their application which informs them whether they will be enrolled in the TBIISCI Waiver program, placed on the waiting list for services, whether additional information is needed to complete their
2 The Handbook encompasses many issues and matters that are beyond the scope of this litigation and Agreement, therefore, only certain selected provisions and pages of the Handbook, which are specifically referred to in the Settlement Agreement, are considered to be part of the settlement.
7

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 8 of 19
application, and/or whether they are determined not to be eligible for services. See Handbook at Appendix pages G-2 and G-3 ("Notice of Decision and Fair Hearing"
form). (Dkt. #190 at Ex. A, App. G-2 & G-3).
In addition to the Handbook, Defendants have developed Internal Operating Procedures (lOPs) for the TBI/SCI Waiver Program. The lOPs provide guidance to case workers concerning the application, assessment, due process, enrollment and waiting list procedures for the program and shall be provided, upon request, by the Department of Health to persons on the waiting list and participants in the program. The lOPs are also accessible to the public on the Department of Health Brain and Spinal Cord Injury Program's website.
As part of the settlement terms, the Department of Health shall make it a priority to seek funding that will be sufficient to expand the TBI/SCI Waiver Program by a minimum of 50 slots for fiscal year 2006-07; 75 slots for fiscal year 2007-08; and 75 slots for fiscal year 2008-09. The Department of Health also agrees to use its best efforts to have its legislative budget request, with each of these stated waiver slot increases for each fiscal year, included as part of the Governor's recommended budget and to obtain the necessary legislative support and funding for this expansion of waiver slots. DOH also agrees to support this request and use its best efforts to obtain legislative approval of the expansion in each of these fiscal
8

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 9 of 19
years.3 With regard to assessments for TBI/SCI Waiver Program services, the
Department of Health also agrees to perform assessments utilizing the Handbook's Home and Community Medicaid Waiver Prioritization and Screening Instrument and to conduct assessments of all persons on the waiting list for the TBI/SCI Waiver Program withing 180 days of execution of the Settlement Agreement by using this new assessment tool. This tool will be used to re-screen applicants, determine their service need and develop a priority score utilizing this information in order to determine where to place them on the waiting list for services, if such placement is necessary. This is a significant development and benefit for the class members because, previously, class members on the waiting list received no written confirmation of their placement on the waiting list, much Jess any information concerning their position on the waiting Jist in relation to other applicants.
Under the terms of the Settlement Agreement, class members will not only receive written notice of information concerning their assessment and priority score for services, but will also receive written information about their due process rights and right to a hearing to challenge any decisions that they disagree with. Prior to
3 To the extent that expansion of the TBI/SCI Waiver Program depends upon federal funding or is subject to approval by the federal Centers for Medicare and Medicaid Services, the Agency for Health Care Administration agrees to use its best efforts to obtain such funding or approvals.
9

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 10 of 19
the Settlement Agreement, there was no written notice provided concerning the denial or delay of services. Defendants have agreed that all class members will now receive a written due process notice which contains the information required by federal Medicaid regulations.
As part of the settlement terms to ensure the rights of class members, Defendants also developed two brochures to provide information to applicants and enrollees concerning the application, assessment, due process, enrollment and waiting list procedures for the TBI/SCI Waiver Program. These brochures shall be offered by the Department of Health to all applicants for the TBIISCI Waiver Program and shall be distributed to all Brain and Spinal Cord Injury Program offices in the state, the Florida Brain Injury Association, the Florida Spinal Cord Injury Resource Center, Centers for Independent Living, the Advocacy Center for Persons with Disabilities and the local offices of the Department of Children and Families. These publications are also made available on the BSCIP website.
While the Defendants have made concessions, including the development and implementation of a lengthy Handbook and Internal Operating Procedures concerning the administration of the TBIISCI Waiver Program which implements many formal procedures that were not in place prior to the Settlement Agreement. Plaintiffs have also made compromises in order to settle this case. For example,
10

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 11 of 19

not all individuals on the waiting list for services will be enrolled, right away, into the program, nor did Defendants agree to formally adopt an Olmstead type plan for the state. However, Plaintiffs believe that this compromise should not result in injury to any class members since under Olmstead, the state can have a waiting list, it is just required to move at a "reasonable pace." Moreover, class members' rights will be protected through the procedural due process necessary to challenge a denial or delay in services. Plaintiffs also believe that the agreement made by Defendants to commit to secure additional funding for, at least, an additional200 individuals4 to be enrolled in the program over the next three state fiscal years will serve the needs of the class members in obtaining timely services as required under the ADA and Section 504. Plaintiffs counsel believe that the settlement of this case at this juncture will be far more beneficial to the Plaintiffs than continued litigation of their claims.
C. Complexity, Expense, and Duration of Litigation There were numerous complex factual and legal issues involved in this litigation. The complexity of the Medicaid program is well documented.5 Plaintiffs

4

In addition, the maximum number of slots for the TBI/SCI Waiver Program,

as stated in Section {C)(1) of the Settlement Agreement, can be exceeded if additional

funding can be secured.

5

Indeed, the Medicaid Handbook which was created and adopted as part of

the settlement is over 100 pages long and merely governs one aspect of the state's

11

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 12 of 19
engaged an expert to assist in understanding the administration of the TBI/SCI Waiver Program as compared to similar Medicaid programs around the country which provide home and community based services to persons with traumatic brain or spinal cord injuries. At the time that this litigation was filed, there were 226 known individuals in the class, each with varying factual circumstances concerning his or her application for services, and the parties vigorously litigated issues related to class certification. See Dkt. ##12, 13, 19, 20, 102, & 111.
The legal issues to be tried regarding the Medicaid Act, the ADA and Section 504 are complex and would have required the presentation of expert testimony and detailed and complex factual issues concerning analysis of the state budgets for several agencies and an analysis of whether or not the Defendants' available affirmative defense under the ADA and Section 504 was established. See Olmstead, 527 U.S. at 604. Plaintiffs anticipate that between 25-30 witnesses, in addition to experts, would have been required at trial related to the intensive factual inquiry and proof required for the ADA and Section 504 claims and defenses. The trial in this matter would have also taken at least 7-10 days.
To complete trial preparations, Plaintiffs would have sought additional formal
Medicaid Program, the TBI/SCI Waiver Program. See Fla. Admin. Code. R. 59G-13.130.
12

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 13 of 19

discovery and the expense of continuing to litigate would have included the depositions of approximately 15 additional administrators, state regional managers and case workers with the TBI/SCI Waiver Program who are located in offices from Miami to Pensacola. This discovery would have been necessary to supplement the information already obtained and have it in a form useful for trial.
Plaintiffs prefer to devote limited and finite resources to productively meeting the needs of the class and believe that Defendants also share this sentiment. In the absence of the Settlement Agreement, depending on the duration of continued litigation, class members might not receive any TBI/SCI Waiver Program services for years or would have to wait to benefit from any positive policy changes, even assuming an eventual favorable decision.
D. Substance and Amount of Opposition to Settlement In approving a settlement, courts have noted the possible hardships that may be imposed and objections from class members must be considered. Piambino v. Bailey, 757 F.2d 1112, 1142 (11th Cir. 1985). The agreed upon and approved notice of proposed settlement to class members informed the public that written objections could be filed and set December 22, 2007,6 as the deadline for the filing

6

The parties assumed that the Court intended that December 22, 2006, to be

the actual deadline.

13

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 14 of 19
of such objections. To Plaintiffs' knowledge, Defendants compiled with the Court's Order concerning the notice and distributed the approved notice to all class members via First Class Mail on or before November 17, 2006, posted the notice on the home page of the official website of the Department of Health's Brain and Spinal Cord Injury Program and the home page of the official website for the Agency for Health Care Administration, and displayed the Notice in their appropriate offices around the state in conspicuous places accessible to the public. As of January 2, 2007, the parties were unaware of any written objections to the Settlement Agreement from class members.
E. Stage of Proceedings at Which the Settlement was Achieved The purpose of considering the stage of the proceedings is to ensure that Plaintiffs had access to sufficient information to evaluate the case and to assess the adequacy of a settlement proposal with an informed judgment of the strengths and weaknesses of their position. In this case, there has been extensive discovery, including numerous depositions of agency personnel with detailed knowledge about the administration of the program and the exchange of hundreds of pages of documents. Defendants filed a motion to dismiss which was denied by the court. (Dkt. #75). Both parties anticipated filing motions for summary judgment as to certain claims, however, as indicated above, trial of certain issues would have been
14

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 15 of 19
necessary. The intensive settlement negotiations conducted through mediation, and informal discussion, facilitated the Plaintiffs' ability to judge whether to accept and recommend the proposed terms contained in the Settlement Agreement. Plaintiffs and their attorneys fully understood the relative strengths and weaknesses of their legal position and negotiated the Settlement Agreement in light of that assessment.
F. Views of Plaintiffs' Counsel To assist the court in determining the fairness of a proposed settlement, "the view of experienced counsel" as to the merits of the settlement is entitled to significant weight. Ressler, 822 F.Supp. at 1552. Plaintiffs were represented by an experienced team of attorneys from Southern Legal Counsel, Inc., and the National Health Law Program. Southern Legal Counsel has served as class counsel in class actions on a number of cases, including litigation to vindicate the rights of persons with disabilities. The National Health Law Program have served as class counsel on numerous Medicaid class actions throughout the country, including litigation to protect the rights of low-income persons with disabilities. After full review of the evidence obtained through discovery and analysis of the applicable legal issues, Plaintiffs' attorneys are satisfied that this settlement confers significant, concrete benefits upon the Plaintiffs, is fair, reasonable, and adequate to the class
15

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 16 of 19
and is the best that could be achieved under the circumstances. It not only provides benefits to class members now, but also implements systemic policy changes and commitments to increases in service capacity that will benefit class members for years to come.
This was not a hurried agreement reached in the initial stages of a lawsuit. Rather, because of the stage of the proceedings and the large amount of discovery, the parties were well aware of the relative strengths and weaknesses of each others' positions. Moreover, the settlement terms were also reached through extensive negotiations during several formal mediation sessions and informal discussions that happened from June 2004 through August 2006. During that time, the terms of the agreement were developed, finalized, and the Handbook and Internal Operating Procedures were developed with extensive comments by both parties. The settlement process was prolonged due to the complicated issues involved in developing these policies and the role of two state agencies and numerous state administrative personnel. Over this time period, Plaintiffs' counsel also contributed extensive comments and raised multiple issues concerning these policies in order to ensure the fairness of the terms of the settlement to all members of the class. Plaintiffs' counsel can state that, in their experienced opinion, beyond any doubt, that the Settlement Agreement is fair, reasonable, and adequate to the
16

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 17 of 19
class. CONCLUSION
The parties respectfully request that the Court enter an order approving the Settlement Agreement for all of the foregoing reasons. As referenced in the Settlement Agreement, the Agreement itself does not trigger the ultimate dismissal of this case. Instead, as set forth at Section (E)(1 ), the parties have contemporaneously filed a proposed Final Order of Dismissal with Prejudice and respectfully request that the Court enter that Order and close the case.
Respectfully submitted,
Andrea Costello Florida Bar No.532991 SOUTHERN LEGAL COUNSEL, INC. 1229 NW 121h Avenue Gainesville, FL 32601-4113 (352) 271-8890 (352) 271-8347 (fax) Peter P. Sleasman Florida Bar No.367931 LEGAL ADVOCACY CENTER OF CENTRAL FLORIDA, INC. 222 SW Broadway Street Ocala, FL 34474 (352) 482-0179 (352) 482-0181 (fax)
17

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 18 of 19
Appearing Pro Hac Vice: Jane Perkins Sarah Somers NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street Chapel Hill, NC 27514 (919) 968-6308 (919) 968-8855 (fax) ATTORNEYS FOR PLAINTIFFS
18

Case 4:03-cv-00107-SPM -AK Document 208 Filed 01/03/07 Page 19 of 19
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was furnished by electronic mail and U.S. First Class Mail on this 3rd day of January 2007, to the following:
George Waas and Douglas B. Macinnes
Office of the Attorney General PL-01, the Capitol Tallahassee, FL 32399-1050
Andrea Costello
19

 
 Case 4:03-cv-00107-SPM -AK Document 212 Filed 01/04/07 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

MICHAEL DUBOIS, et al.,

Plaintiffs,

vs.

CASE NO.: 4:03cv107-SPM

CHRISTA CALAMAS, et al.,

Defendants.
--------------------~'
ORDER OF APPROVAL OF SETTLEMENT AGREEMENT

This cause was heard on January 4, 2007. Class members were given

notice of the proposed settlement and the opportunity to object. No objections

have been made.

The Court finds that the settlement provides significant benefits to all

members of the class. The terms of the settlement are fair, reasonable, and

adequate. Accordingly, pursuant to Federal Rule of Civil Procedure 23(e), the

Court approves the settlement agreement.

SO ORDERED this 4th day of January, 2007.

s~e' /f~K_~
United States District Judge

 
 Case 4:03-cv-00107-SPM -AK Document 213 Filed 01/04/07 Page 1 of 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

DUBOIS, et al.,

Plaintiffs,
v.

Case No. 4:03-CV-107-SPM

CALAMAS, et al.,

Defendants.

ORDER OF DISMISSAL WITH PREJUDICE

Pursuant t~r:s of the Order of Approval of Settlement Agreement

.!ji!:. entered on the

ay of January, 2007, it is hereby ORDERED that this case is

DISMISSED WITH PREJUDICE.

~

.!f.-!- DONE AND ORDERED this

day of January, 2007.

.,~sa>JHP..MIC.KrE _/~ UNITED STATES DISTRICT JUDGE

 
 Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 1 of 20
CLOSED, CLERK_2
U.S. District Court Northern District of Florida (Tallahassee) CIVIL DOCKET FOR CASE #: 4:03−cv−00107−SPM −AK

DUBOIS, et al v. MEDOWS, et al Assigned to: CHIEF JUDGE STEPHAN P MICKLE Referred to: MAGISTRATE JUDGE ALLAN KORNBLUM Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/11/2003 Date Terminated: 01/04/2007 Jury Demand: None Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

MICHAEL DUBOIS ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED

represented by ANDREA COSTELLO FLORIDA INSTITUTIONAL LEGAL SERVICES INC − NEWBERRY FL 14260 W NEWBERRY RD STE 412 NEWBERRY, FL 32669 352−375−2494, ext. 1012 Fax: 352−331−5202 Email: acostello@filsinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

JANE PERKINS NATIONAL HEALTH LAW PROGRAM − CHAPEL HILL NC 211 N COLUMBIA ST CHAPEL HILL, NC 27514 919/968−6308 Fax: 968−8855 LEAD ATTORNEY ATTORNEY TO BE NOTICED

PETER PRESCOTT SLEASMAN FLORIDA INSTITUTIONAL LEGAL SERVICES INC − NEWBERRY FL 14260 W NEWBERRY RD STE 412 NEWBERRY, FL 32669 352−375−2494 Fax: 352−331−5202 Email: psleasman@filsinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

SARAH SOMERS NATIONAL HEALTH LAW PROGRAM − CARRBORO NC 101 E WEAVER ST STE G−7 CARRBORO, NC 27510 919−968−6308 Fax: 919−968−8855 Email: somers@healthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
CHARLES SMITH ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED

represented by ANDREA COSTELLO (See above for address) LEAD ATTORNEY

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 2 of 20

ATTORNEY TO BE NOTICED

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

PETER PRESCOTT SLEASMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Plaintiff
MELVIN M ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED

represented by ANDREA COSTELLO (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

PETER PRESCOTT SLEASMAN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

V.
Defendant
RHONDA MEDOWS IN HER OFFICIAL CAPACITY AS SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION TERMINATED: 05/27/2004

represented by CHARLES ALAN FINKEL ATTORNEY GENERAL STATE OF FL − TALLAHASSEE FL STATE OF FLORIDA PL 01 THE CAPITOL TALLAHASSEE, FL 32399−1050 850/414−3300 Fax: 488−4872 TERMINATED: 02/20/2004 LEAD ATTORNEY
DOUGLAS B MACINNES ATTORNEY GENERAL − PL−01 − TALLAHASSEE FL STATE OF FLORIDA 400 S MONROE ST PL−01 THE CAPITOL TALLAHASSEE, FL 32399−1050 850−414−3672 Fax: 850−488−4872 Email: Douglas_MacInnes@oag.state.fl.us LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

GEORGE LEE WAAS ATTORNEY GENERAL − PL−01 − TALLAHASSEE FL STATE OF FLORIDA PL 01 THE CAPITOL TALLAHASSEE, FL 32311 850/414−3662 Fax: 488−4872 Email: waas01@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JOHN O AGWUNOBI IN HIS OFFICIAL CAPACITY AS SECRETARY FLORIDA DEPARTMENT OF HEALTH TERMINATED: 01/03/2007

represented by CHARLES ALAN FINKEL (See above for address) TERMINATED: 02/20/2004 LEAD ATTORNEY
GEORGE LEE WAAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
ALAN LEVINE IN HIS OFFICIAL CAPACITY AS SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION TERMINATED: 01/03/2007

represented by CHARLES ALAN FINKEL (See above for address) TERMINATED: 02/20/2004 LEAD ATTORNEY
DOUGLAS B MACINNES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

GEORGE LEE WAAS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
CHRISTA CALAMAS SECRETARY OF THE DEPARTMENT OF HEALTH

Defendant
DR. M RONY FRANCOIS SECRETARY OF THE DEPARTMENT OF HEALTH

Date Filed 04/11/2003 04/11/2003 04/11/2003

# Docket Text
setting 90 day no activity deadline pursuant to N.D.Fla.Loc.R.41.1 to 7/10/03 (atm,Gainesville) (Entered: 04/16/2003)
1 COMPLAINT Filing Fee: $150.00 Receipt #: 400 102002 (atm,Gainesville) (Entered: 04/16/2003)
2 CIVIL Cover Sheet (atm,Gainesville) (Entered: 04/16/2003)

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04/11/2003 04/11/2003 04/11/2003 04/11/2003 04/15/2003 04/16/2003
04/24/2003 04/29/2003 04/29/2003 04/29/2003 04/30/2003 05/02/2003 05/02/2003 05/07/2003 05/13/2003 05/15/2003

3 MOTION by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M for JANE PERKINS AND SARAH SOMERS to Appear Pro Hac Vice Filing Fee $20.00 Receipt #: 400 102002 (atm,Gainesville) (Entered: 04/16/2003)
4 AFFIDAVIT of Janes Perkins Re: [3−1] motion for JANE PERKINS AND SARAH SOMERS to Appear Pro Hac Vice by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (atm,Gainesville) (Entered: 04/16/2003)
5 AFFIDAVIT of Sarah Somers by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M Re: [3−1] motion for JANE PERKINS AND SARAH SOMERS to Appear Hac Vice by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (atm,Gainesville) (Entered: 04/16/2003)
6 MOTION by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M to proceed in pseudonym and to file exhibits under seal with proposed exhibits A &B (atm,Gainesville) (Entered: 04/16/2003)
SUMMONS(ES)/NOTICE OF CONSENT issued for defendant RHONDA MEDOWS, defendant JOHN O AGWUNOBI and forwarded to plaintiff. (atm,Gainesville) (Entered: 04/16/2003)
Motion submitted with file to Judge Stephan P. Mickle Re: [6−1] motion to proceed in pseudonym and to file exhibits under seal by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS, [3−1] motion for JANE PERKINS AND SARAH SOMERS to Appear Pro Hac Vice by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (atm,Gainesville) (Entered: 04/16/2003)
7 ORDER by Judge Stephan P. Mickle granting [3−1] motion for JANE PERKINS AND SARAH SOMERS to Appear Pro Hac Vice Copies sent as noted on document. (knr,Gainesville) (Entered: 04/24/2003)
9 NOTICE by plaintiff MICHAEL DUBOIS, plaintiff CHARLES SMITH, plaintiff MELVIN M of filing returns of service (knr,Gainesville) (Entered: 05/01/2003)
10 RETURN of Service Executed as to defendant RHONDA MEDOWS 4/17/03 Answer due on 5/7/03 for RHONDA MEDOWS (knr,Gainesville) (Entered: 05/01/2003)
11 RETURN of Service Executed as to defendant JOHN O AGWUNOBI 4/17/03 Answer due on 5/7/03 for JOHN O AGWUNOBI (knr,Gainesville) (Entered: 05/01/2003)
8 ORDER by Judge Stephan P. Mickle granting [6−1] motion to proceed in pseudonym and to file exhibits under seal Copies sent as noted on document. (knr,Gainesville) (Entered: 04/30/2003)
12 MOTION by plaintiff MICHAEL DUBOIS, plaintiff CHARLES SMITH, plaintiff MELVIN M for class certification Deadline for filing response to motion is: 5/20/03 and deadline to return file to court is: 5/27/03 (knr,Gainesville) (Entered: 05/05/2003)
13 MEMORANDUM by plaintiff MICHAEL DUBOIS, plaintiff CHARLES SMITH, plaintiff MELVIN M in support of [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS . (knr,Gainesville) (Entered: 05/05/2003)
14 MOTION by defendant RHONDA MEDOWS, defendant JOHN O AGWUNOBI to Extend Time to Answer [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (until 5/27/03) (knr,Gainesville) (Entered: 05/09/2003)
Motion submitted with file to Judge Stephan P. Mickle Re: [14−1] motion to Extend Time to Answer [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS by JOHN O AGWUNOBI, RHONDA MEDOWS (knr,Gainesville) (Entered: 05/13/2003)
15 MOTION by plaintiffs' MICHAEL DUBOIS, CHARLES SMITH, MELVIN M to Extend Time to file attorney time records through April 30, 2003 (knr,Gainesville) Modified on 05/16/2003 (Entered: 05/16/2003)

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05/19/2003 05/20/2003
05/21/2003 05/21/2003 05/27/2003
05/27/2003 05/30/2003 05/30/2003 06/03/2003 06/03/2003 06/04/2003 06/04/2003 06/10/2003 06/16/2003 06/16/2003 06/16/2003

Motion submitted without file to Judge Stephan P. Mickle Re: [15−1] motion to Extend Time to file attorney time records through April 30, 2003 by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (knr,Gainesville) (Entered: 05/19/2003)
16 ORDER by Judge Stephan P. Mickle granting [14−1] motion to Extend Time to Answer [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS setting answer to complaint deadline for 5/27/03 for JOHN O AGWUNOBI, RHONDA MEDOWS , resetting response to motion deadline for 5/27/03 Re: [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS Copies sent as noted on document. (knr,Gainesville) (Entered: 05/20/2003)
17 ORDER by Judge Stephan P. Mickle granting [15−1] motion to Extend Time to file attorney time records through April 30, 2003 until 5/30/03 Copies sent as noted on document. (knr,Gainesville) (Entered: 05/21/2003)
18 ATTORNEY Time Record by plaintiff MICHAEL DUBOIS, plaintiff CHARLES SMITH, plaintiff MELVIN M (knr,Gainesville) (Entered: 05/21/2003)
19 RULE 7.1(B) Conference Statement by Defendants RHONDA MEDOWS, JOHN O AGWUNOBI Re: [14−1] motion to Extend Time to Answer [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS by JOHN O AGWUNOBI, RHONDA MEDOWS (tss,Gainesville) (Entered: 05/30/2003)
20 MOTION by Defendants RHONDA MEDOWS, JOHN O AGWUNOBI to Dismiss Complaint Deadline for filing response to motion is: 6/16/03 and deadline to return file to court is: 6/19/03 (tss,Gainesville) (Entered: 05/30/2003)
Motion submitted with file to Judge Stephan P. Mickle Re: [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (tss,Gainesville) (Entered: 05/30/2003)
21 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (knr,Gainesville) (Entered: 06/02/2003)
22 MOTION by plaintiff MICHAEL DUBOIS, plaintiff CHARLES SMITH, plaintiff MELVIN M to Extend Time to Answer [20−1] motion to Dismiss Complaint by JOHN O AGWUNOBI, RHONDA MEDOWS (knr,Gainesville) (Entered: 06/03/2003)
23 RESPONSE by defendant RHONDA MEDOWS, defendant JOHN O AGWUNOBI to [12−1] motion for class certification by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (knr,Gainesville) (Entered: 06/04/2003)
Motion submitted without file to Judge Stephan P. Mickle Re: [22−1] motion to Extend Time to Answer [20−1] motion to Dismiss Complaint by JOHN O AGWUNOBI, RHONDA MEDOWS by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (knr,Gainesville) (Entered: 06/04/2003)
DOCUMENT Location re: [23−1] motion response to motion for class certification by JOHN O AGWUNOBI, RHONDA MEDOWS sent to chambers Reason: review (knr,Gainesville) (Entered: 06/04/2003)
24 NOTICE by defendants RHONDA MEDOWS, JOHN O AGWUNOBI of supplemental authority in support of motion to dismiss (atm,Gainesville) (Entered: 06/11/2003)
25 SUBSTITUTE ATTORNEY Time Record for April 2003 by Plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (tss,Gainesville) (Entered: 06/17/2003)
26 ATTORNEY Time Record for May 2003 by Plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (National Health Law Program) (tss,Gainesville) Modified on 06/17/2003 (Entered: 06/17/2003)
27 ATTORNEY Time Record for May 2003 by Plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (Southern Legal Counsel) (tss,Gainesville) (Entered: 06/17/2003)

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06/30/2003 07/01/2003 07/08/2003
07/11/2003 07/11/2003 07/11/2003
07/14/2003
07/15/2003 07/16/2003
07/18/2003 08/15/2003 08/15/2003 08/19/2003 08/26/2003 08/27/2003 08/27/2003 09/02/2003
09/02/2003

28 RESPONSE by plaintiff MICHAEL DUBOIS, plaintiff CHARLES SMITH, plaintiff MELVIN M to [20−1] motion to Dismiss Complaint by JOHN O AGWUNOBI, RHONDA MEDOWS (csg,Gainesville) (Entered: 07/01/2003)
Motion submitted without to Judge Stephan P. Mickle Re: [20−1] motion to Dismiss Complaint by JOHN O AGWUNOBI, RHONDA MEDOWS (csg,Gainesville) (Entered: 07/01/2003)
29 MOTION by defendant RHONDA MEDOWS, defendant JOHN O AGWUNOBI for Leave to File addenum Re: [23−1] motion response by JOHN O AGWUNOBI, RHONDA MEDOWS with addendum in text of said motion Deadline for filing response to motion is: 7/28/03 and deadline to return file to court is: 7/31/03 (knr,Gainesville) Modified on 07/17/2003 (Entered: 07/09/2003)
30 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (knr,Gainesville) (Entered: 07/14/2003)
31 ATTORNEY Time Record by plaintiff MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (knr,Gainesville) (Entered: 07/14/2003)
32 RESPONSE by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M to [29−1] motion for Leave to File addenum Re: [23−1] motion response by JOHN O AGWUNOBI, RHONDA MEDOWS by JOHN O AGWUNOBI, RHONDA MEDOWS (knr,Gainesville) (Entered: 07/14/2003)
Motion submitted without file to Judge Stephan P. Mickle Re: [29−1] motion for Leave to File addenum Re: [23−1] motion response by JOHN O AGWUNOBI, RHONDA MEDOWS by JOHN O AGWUNOBI, RHONDA MEDOWS (knr,Gainesville) (Entered: 07/14/2003)
resetting 90 day no activity deadline pursuant to N.D.Fla.Loc.R.41.1 to 10/14/03 (knr,Gainesville) (Entered: 07/15/2003)
33 ORDER by Judge Stephan P. Mickle granting [29−1] motion for Leave to File addenum Re: [23−1] motion response by JOHN O AGWUNOBI, RHONDA MEDOWS Copies sent as noted on document. (bkp,Gainesville) (Entered: 07/16/2003)
34 SCHEDULING ORDER by Judge Stephan P. Mickle setting deadlines for: filing Joint Report of Planning Meeting by: 9/8/03 Discovery Cutoff: 11/17/03 Copies sent as noted on document. (knr,Gainesville) (Entered: 07/18/2003)
35 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt,Gainesville) (Entered: 08/15/2003)
36 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt,Gainesville) (Entered: 08/15/2003)
37 MEMORANDUM by defendants RHONDA MEDOWS, JOHN O AGWUNOBI in support of [20−1] motion to Dismiss Complaint by JOHN O AGWUNOBI, RHONDA MEDOWS (bkp,Gainesville) (Entered: 08/20/2003)
38 JOINT Report of Planning Meeting requesting 12/31/03 discovery deadline (llt,Gainesville) (Entered: 08/26/2003)
DOCUMENT Location re: [38−1] joint report requesting 12/31/03 discovery deadline sent to Deputy Clerk Reason: review (llt,Gainesville) (Entered: 08/27/2003)
39 RULE 26 Disclosure by defendants RHONDA MEDOWS, JOHN O AGWUNOBI (llt,Gainesville) (Entered: 08/28/2003)
40 Mediation and SCHEDULING ORDER by Judge Stephan P. Mickle setting deadlines for: Discovery Cutoff: 12/31/03 filing Mediation Report by: 2/28/04 Bench trial date: 4/19/04 Dispositive motions by: 1/19/04 Copies sent as noted on document. (llt,Gainesville) (Entered: 09/02/2003)
41 NOTICE by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M of supplemental authority for Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss (llt,Gainesville) (Entered: 09/02/2003)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 7 of 20

09/08/2003 09/11/2003 09/11/2003 09/15/2003 09/19/2003 10/14/2003 10/15/2003 10/15/2003 10/15/2003 10/15/2003 10/16/2003 10/17/2003 10/21/2003 10/30/2003
10/31/2003
11/05/2003
11/12/2003 11/17/2003

42 NOTICE by defendants RHONDA MEDOWS, JOHN O AGWUNOBI of filing first set of interrogatories (llt,Gainesville) (Entered: 09/09/2003)
43 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH (llt,Gainesville) (Entered: 09/11/2003)
44 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt,Gainesville) (Entered: 09/11/2003)
45 ADDENDUM RULE 26 Disclosure by defendants RHONDA MEDOWS, JOHN O AGWUNOBI (atm,Gainesville) (Entered: 09/17/2003)
46 NOTICE by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M of supplemental authority for Plaintiff's memorandum of Law in Opposition [doc 28] to Defendants' Motion to Dismiss [doc 20] (llt,Gainesville) (Entered: 09/20/2003)
47 NOTICE by Charles J. Crist, Jr., counsel for defendants RHONDA MEDOWS, JOHN O AGWUNOBI of unavailablility 12/19/03 − 6/5/04 (llt,Gainesville) (Entered: 10/15/2003)
resetting 90 day no activity deadline pursuant to N.D.Fla.Loc.R.41.1 to 1/13/04 (llt,Gainesville) (Entered: 10/15/2003)
48 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt,Gainesville) (Entered: 10/15/2003)
49 ATTORNEY Time Record by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt,Gainesville) (Entered: 10/15/2003)
resetting 90 day no activity deadline pursuant to N.D.Fla.Loc.R.41.1 to 1/13/04 (llt,Gainesville) (Entered: 10/15/2003)
DOCUMENT Location re: [47−1] notice of unavailablility 12/19/03 − 6/5/04 by JOHN O AGWUNOBI, RHONDA MEDOWS sent to Chambers Reason: review (llt,Gainesville) (Entered: 10/16/2003)
50 Amended NOTICE by plaintiff MELVIN M of unavailability of defense counsel 12/19/03−1/5/04 (llt,Gainesville) (Entered: 10/20/2003)
DOCUMENT Location re: [50−1] notice of unavailability of defense counsel 12/19/03−1/5/04 by MELVIN M sent to Chambers Reason: review (llt,Gainesville) (Entered: 10/21/2003)
51 Unopposed MOTION by plaintiffs MICHAEL DUBOIS, CHARLES SMITH, MELVIN M to Modify [40−1] Scheduling order as follows: Plaintiffs' Expert Report shall be served by 12/15/03, Defendants' Expert Report shall be served by 1/15/04, Expert depositions shall be completed by 1/30/04 and Motions shall be filed by 2/27/04 (llt,Gainesville) (Entered: 10/30/2003)
Motion submitted without file to Judge Stephan P. Mickle Re: [51−1] motion to Modify [40−1] Scheduling order as follows: Plaintiffs' Expert Report shall be served by 12/15/03, Defendants' Expert Report shall be served by 1/15/04, Expert depositions shall be completed by 1/30/04 and Motions shall be filed by 2/27/04 by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS (llt,Gainesville) (Entered: 10/31/2003)
52 ORDER by Judge Stephan P. Mickle granting [51−1] motion to Modify [40−1] Scheduling order as follows: Plaintiffs' Expert Report shall be served by 12/15/03, Defendants' Expert Report shall be served by 1/15/04, Expert depositions shall be completed by 1/30/04 and Motions shall be filed by 2/27/04 and resetting motion filing deadline for 2/27/04 Copies sent as noted on document. (llt,Gainesville) (Entered: 11/05/2003)
53 NOTICE of filing addendum to Response to First Request to Produce Documents by JOHN O AGWUNOBI, RHONDA MEDOWS (Response never filed with the court) (llt, Gainesville) (Entered: 11/17/2003)
54 ATTORNEY TIME RECORDS by plaintiffs MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (llt, Gainesville) (Entered: 11/24/2003)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 8 of 20

11/17/2003 12/15/2003
12/15/2003 12/17/2003 12/18/2003
12/20/2003 12/20/2003 12/22/2003 01/06/2004 01/15/2004 01/15/2004 01/27/2004 01/28/2004 01/28/2004
02/03/2004 02/05/2004

55 ATTORNEY TIME RECORDS by plaintiffs MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (llt, Gainesville) (Entered: 11/24/2003)
56 Unopposed MOTION to Modify the Scheduling Order, requesting 2/1/04 discovery deadline, 1/20/04 Plaintiffs' Expert Report Deadline, 2/20/04 Defendants' Expert Report deadline, 3/8/04 Expert Depositions deadline, 2/20/04 mediation deadline and 4/8/04 motion filing deadline by MICHAEL DUBOIS, CHARLES SMITH. (llt, Gainesville) (Entered: 12/16/2003)
57 ATTORNEY TIME RECORDS by plaintiffs MICHAEL DUBOIS, MELVIN M, RHONDA MEDOWS, CHARLES SMITH for November, 2003. (llt, Gainesville) (Entered: 12/16/2003)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 56 UNOPPOSED MOTION to Extend Deadlines in Mediation and Scheduling Order filed by MICHAEL DUBOIS, CHARLES SMITH (tss, Gainesville) (Entered: 12/17/2003)
58 ORDER granting 56 Motion to Modify the Scheduling Order; new deadlines established and reset: 12/19/03 Mediator Selection deadline, 2/1/04 Discovery deadline, 1/20/04 Plaintiffs' Expert Report service deadline; 2/9/04 Mediation deadline, 2/20/04 Defendants' Expert Report service deadline; 3/8/04 Expert depositions completion deadline, 4/8/04 Motions filing deadline and 6/24/04 Tallahassee Trial date reset. Signed by Judge STEPHAN P MICKLE. (llt, Gainesville) (Entered: 12/20/2003)
Set/Reset Scheduling Order Deadlines: Discovery due by 2/2/2004. Motions due by 4/8/2004. (llt, Gainesville) (Entered: 12/20/2003)
Set Deadlines/Hearings: Mediation to take place by 2/9/2004 (llt, Gainesville) (Entered: 12/20/2003)
Set/Reset Trial Management Order Deadlines: Bench Trial reset for 6/24/2004 08:30 AM before JUDGE STEPHAN P MICKLE pursuant to order [doc 58] extending deadlines and continuing trial. (llt, Gainesville) (Entered: 12/22/2003)
59 NOTICE of Hearing: Bench Trial reset for 6/21/2004 08:30 AM before JUDGE STEPHAN P MICKLE. (tss, Gainesville) (Entered: 01/06/2004)
60 ATTORNEY TIME RECORDS for December, 2003 by attorneys for plaintiffs MICHAEL DUBOIS, MELVIN M, CHARLES SMITH, Andrea Costello and Peter Sleasman. (llt, Gainesville) (Entered: 01/19/2004)
61 ATTORNEY TIME RECORDS for December, 2003 by attorneys for plaintiffs MICHAEL DUBOIS, MELVIN M, CHARLES SMITH, Jane Perkins and Sarah Somers. (llt, Gainesville) (Entered: 01/19/2004)
62 MOTION for Extension of Time to Complete Discovery by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 01/27/2004)
63 NOTICE by JOHN O AGWUNOBI, RHONDA MEDOWS re 62 MOTION for Extension of Time to Complete Discovery (WAAS, GEORGE) (Entered: 01/28/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 62 MOTION for Extension of Time to Complete Discovery filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M and 63 Notice (response) filed by JOHN O AGWUNOBI, RHONDA MEDOWS (tss, Gainesville) Modified on 1/29/2004 (tss, Gainesville). (Entered: 01/28/2004)
64 RESPONSE in Support re 62 MOTION for Extension of Time to Complete Discovery and Defs' Notice to the Court filed by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 02/03/2004)
65 REPLY to Response to Motion re 62 MOTION for Extension of Time to Complete Discovery filed by JOHN O AGWUNOBI, RHONDA MEDOWS. (WAAS, GEORGE) (Entered: 02/05/2004)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 9 of 20

02/05/2004
02/06/2004 02/11/2004
02/12/2004 02/13/2004 02/17/2004 02/17/2004 02/17/2004 02/18/2004 02/18/2004 02/18/2004
02/19/2004 02/20/2004 03/01/2004 03/02/2004 03/08/2004

66 DOCKET ANNOTATION BY COURT: [Doc 65] is the exact same pleading as [doc 64]. Same pleading posted again using preferred event, Reply to Response to Motion, as recommended by the Clerk's office. (llt, Gainesville) (See corrected information in Docket Annotation doc 68 Modified on 2/12/2004 llt, Gainesville). (Entered: 02/05/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 65 Reply to Response to Motion filed by JOHN O AGWUNOBI, RHONDA MEDOWS (tss, Gainesville) (Entered: 02/06/2004)
67 ORDER granting 62 MOTION for Extension of Time to Complete Discovery filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M − Discovery due by 4/2/2004; Dispositive Motions to be filed by 6/4/2004; Bench Trial set for 7/19/2004 08:30 AM before JUDGE STEPHAN P MICKLE; Mediation Report due by 4/16/2004 − Signed by Judge STEPHAN P MICKLE on 2/11/04. (tss, Gainesville) (Entered: 02/11/2004)
68 DOCKET ANNOTATION BY COURT: Doc 66 , Docket Annotation, is corrected as following, [Doc 65] is the exact same pleading as [doc 63]* (not doc 64)* (llt, Gainesville) (Entered: 02/12/2004)
69 First MOTION to Extend Time re Trial Date by JOHN O AGWUNOBI. (WAAS, GEORGE) (Entered: 02/13/2004)
70 First MOTION to Withdraw as Attorney Charles Finkel by JOHN O AGWUNOBI. (WAAS, GEORGE) (Entered: 02/17/2004)
71 NOTICE by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH of Filing of January, 2004 Time Records (COSTELLO, ANDREA) (Entered: 02/17/2004)
72 NOTICE by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH of Filing of January, 2004 Time Records (COSTELLO, ANDREA) (Entered: 02/17/2004)
MOTIONS REFERRED to Judge Judge Kornblum: 70 First MOTION to Withdraw as Attorney Charles Finkel (llt, Gainesville) (Entered: 02/18/2004)
73 DOCKET ANNOTATION BY COURT: Counsel for Defendant, Mr. Finkel, will file a separate Motion for Withdrawal, which was included in within the Motion to Extend Trial Date doc 69 . (llt, Gainesville) (Entered: 02/18/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Mickle notified that action is needed Re: 69 Unopposed MOTION to Extend 7/19/04 Trial Date to 8/9/04 filed by JOHN O AGWUNOBI (Withdrawal of Attorney Finkel, included within this motion,to be filed separately as another motion) (llt, Gainesville) (Entered: 02/18/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Magistrate Judge Allan Kornblum notified that action is needed Re: 70 First MOTION to Withdraw as Attorney Charles Finkel filed by JOHN O AGWUNOBI (tss, Gainesville) (Entered: 02/19/2004)
74 ORDER granting 70 Motion for Charles Finkel to Withdraw as Defendants' Co−Counsel. Attorney CHARLES ALAN FINKEL terminated . Signed by Judge ALLAN KORNBLUM. (llt, Gainesville) (Entered: 02/20/2004)
75 ORDER granting 12 Motion for Class Certification, denying 20 Motion to Dismiss the Complaint, and granting 22 Motion for Extension of Time to Respond to 20 Motion to Dismiss the Complaint − response was considered;signed by Judge STEPHAN P MICKLE. (tss, Gainesville) (Entered: 03/02/2004)
76 ORDER granting 69 First MOTION to Extend Time re Trial Date filed by JOHN O AGWUNOBI; Bench Trial reset for 8/16/2004 at 08:30 AM before JUDGE STEPHAN P MICKLE;signed by Judge STEPHAN P MICKLE on 3/2/04. (tss, Gainesville) (Entered: 03/02/2004)
77 Defendants Medows' and Agwunobi's ANSWER to Complaint And Affirmative Defenses by JOHN O AGWUNOBI.(WAAS, GEORGE) (Entered: 03/08/2004)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 10 of 20

03/15/2004 03/23/2004 03/23/2004 04/01/2004 04/01/2004 04/01/2004
04/02/2004 04/05/2004 04/07/2004 04/07/2004
04/07/2004
04/08/2004 04/08/2004 04/08/2004 04/08/2004 04/13/2004 04/13/2004 04/13/2004 04/13/2004

78 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M. (SLEASMAN, PETER) (Entered: 03/15/2004)
79 NOTICE by JOHN O AGWUNOBI Of Trial Schedule Conflict (WAAS, GEORGE) (Entered: 03/23/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Paul notified that action is needed Re: 79 Notice Of 8/16/04 Trial Date Conflict filed by JOHN O AGWUNOBI (llt, Gainesville) (Entered: 03/23/2004)
80 NOTICE by RHONDA MEDOWS Defendants' Notice of Trial Conflict (WAAS, GEORGE) (Entered: 04/01/2004)
81 MOTION to Continue Defendants' Motion For Continuance of Trial by RHONDA MEDOWS. (WAAS, GEORGE) Additional attachment(s) added on 4/7/2004 (llt, Gainesville). (Entered: 04/01/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 80 Notice of Trial Conflict filed by RHONDA MEDOWS, and 81 Motion to Continue 8/16/04 Trial filed by RHONDA MEDOWS (llt, Gainesville) (Entered: 04/01/2004)
82 ORDER re 79 Notice of Conflict filed by JOHN O AGWUNOBI; Defendant shall notify Court by 6/7/2004 if conflict still exists;signed by Judge STEPHAN P MICKLE on 4/2/04. (tss, Gainesville) (Entered: 04/05/2004)
83 ORDER denying without prejudice 81 Motion to Continue Trial;signed by Judge STEPHAN P MICKLE. (tss, Gainesville) (Entered: 04/05/2004)
84 Joint MOTION for Extension of Time to Complete Discovery by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 04/07/2004)
85 DOCKET ANNOTATION BY COURT: Re 81 MOTION to Continue Defendants' Motion For Continuance of Trial filed by RHONDA MEDOWS ; attachment added to said motion − Copy of Order from Southern District of Florida. Motion filed electronically but attachment received 4/2/04 with request for Clerk's office to post the attachment. (llt, Gainesville) (Entered: 04/07/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 84 Joint MOTION for Extension of Time to Complete Discovery filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (bkp, Gainesville) (Entered: 04/07/2004)
86 Amended MOTION to Continue Trial by JOHN O AGWUNOBI. (WAAS, GEORGE) (Entered: 04/08/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 86 Amended/Unopposed MOTION to Continue 8/16/04Trial filed by JOHN O AGWUNOBI (llt, Gainesville) (Entered: 04/08/2004)
87 NOTICE by RHONDA MEDOWS Re−Notice of Taking Deposition (WAAS, GEORGE) (Entered: 04/08/2004)
88 NOTICE by RHONDA MEDOWS Re−Notice of Taking Deposition (WAAS, GEORGE) (Entered: 04/08/2004)
89 MOTION to Extend Time to File Time Records for Time Recorded from February 1 through 29, 2004 by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 04/13/2004)
90 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 04/13/2004)
91 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 04/13/2004)
92 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 04/13/2004)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 11 of 20

04/13/2004 04/15/2004
04/16/2004 04/20/2004
04/21/2004
05/05/2004 05/10/2004 05/14/2004 05/14/2004 05/25/2004 05/25/2004 05/27/2004 05/27/2004 05/27/2004 05/27/2004 05/27/2004
05/27/2004

MOTIONS REFERRED to Judge Kornblum: 89 MOTION to Extend Time to File Time Records for Time Recorded from February 1 through 29, 2004 (llt, Gainesville) (Entered: 04/13/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Magistrate Judge Allan Kornblum notified that action is needed Re: 89 MOTION to Extend Time to File Time Records for Time Recorded from February 1 through 29, 2004 filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (tss, Gainesville) (Entered: 04/15/2004)
93 ORDER granting 89 Motion to Extend Time to File February 1 through 29, 2004 Attorney Time Records and setting 4/16/04 filing deadline. Signed by Judge ALLAN KORNBLUM. (llt, Gainesville) (Entered: 04/16/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 67 Scheduling Order directing that mediation report be filed by 4/16/04 − nothing filed to date (tss, Gainesville) (Entered: 04/20/2004)
94 ORDER granting re 84 Joint MOTION for Extension of Time to Complete Discovery filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M, and 86 Amended MOTION to Continue Trial filed by JOHN O AGWUNOBI, New deadlines established: Discovery due by 6/1/2004. Dispositive Motions to be filed by 8/1/2004 Mediation Report due by 7/9/2004 Jury Trial set for 10/18/2004 08:30 AM before JUDGE STEPHAN P MICKLE.. Signed by Judge STEPHAN P MICKLE on 4/21/04. (llt, Gainesville) (Entered: 04/21/2004)
95 NOTICE by RHONDA MEDOWS Defendant's Notice of Appearance of Co−Counsel (MACINNES, DOUGLAS) (Entered: 05/05/2004)
96 NOTICE of Unavailablity of Counsel 5/25/04 through 6/17/04 by JOHN O AGWUNOBI (llt, Gainesville) (Entered: 05/12/2004)
97 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 05/14/2004)
98 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 05/14/2004)
99 NOTICE by JOHN O AGWUNOBI of unavailability of counsel (WAAS, GEORGE) (Entered: 05/25/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 99 Amended Notice of Unavailability of Counsel filed by JOHN O AGWUNOBI (llt, Gainesville) (Entered: 05/25/2004)
100 MOTION for Protective Order Defendants' Motion for Protective Order by RHONDA MEDOWS. (Response due by 6/14/2004) (Attachments: # 1 Exhibit)(WAAS, GEORGE) (Entered: 05/27/2004)
101 MOTION for Extension of Time to Complete Discovery by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 05/27/2004)
102 RESPONSE to Motion re 12 Motion for Miscellaneous Relief Defendants' Motion to Decertify the Class filed by JOHN O AGWUNOBI. (WAAS, GEORGE) (Entered: 05/27/2004)
MOTIONS REFERRED to Judge Kornblum: 100 MOTION for Protective Order (llt, Gainesville) (Entered: 05/27/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 101 MOTION to modify the scheduling order filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt, Gainesville) (Entered: 05/27/2004)
103 DOCKET ANNOTATION BY COURT: Re 102 Response to Motion filed by JOHN O AGWUNOBI; per phone conversation with counsel for Defendant, exhibits in support to be filed separately. (llt, Gainesville) (Entered: 05/27/2004)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 12 of 20

05/27/2004
05/28/2004 05/28/2004 05/28/2004 05/28/2004 06/01/2004 06/02/2004 06/03/2004 06/03/2004 06/09/2004 06/09/2004 06/09/2004
06/10/2004

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephen P. Mickle notified that action is needed Re: 102 Response to Motion filed by JOHN O AGWUNOBI, 75 Order granting [doc 12] motion for class certification 103 Re 102 Response to Motion filed by JOHN O AGWUNOBI; per phone conversation with counsel for Defendant, exhibits in support to be filed separately. (bkp, Gainesville) (Entered: 05/27/2004)
104 NOTICE by JOHN O AGWUNOBI of Filing Exhibits in Support of Response to Motion For Class Certification (Defendants' Motion to Decertify the Class (Attachments: # 1)(WAAS, GEORGE) (Entered: 05/28/2004)
105 RESPONSE in Opposition re 101 MOTION for Extension of Time to Complete Discovery Plaintiffs' Motion to Extend Discovery filed by JOHN O AGWUNOBI. (Attachments: # 1)(WAAS, GEORGE) (Entered: 05/28/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 104 Notice of Filing Exhibits in Support of Response doc 102 to Motion for Class Certification filed by JOHN O AGWUNOBI (llt, Gainesville) (Entered: 05/28/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 105 Response in Opposition to Motion to Modify Scheduling Order, doc 101 filed by JOHN O AGWUNOBI (llt, Gainesville) (Entered: 05/28/2004)
106 AMENDED RESPONSE in Opposition re 101 MOTION for Extension of Time to Complete Discovery Amended Defendants' Response in Opposition to Plaintiffs' Motion to Extend Discovery filed by JOHN O AGWUNOBI. (Attachments: # 1)(WAAS, GEORGE) Modified on 6/3/2004 to correct attachments (tss, Gainesville). (Entered: 06/01/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Magistrate Judge Allan Kornblum notified that action is needed Re: 100 MOTION for Protective Order Defendants' Motion for Protective Order filed by RHONDA MEDOWS (tss, Gainesville) (Entered: 06/02/2004)
MOTIONS REFERRED to Magistrate Judge Allan Kornblum: 101 MOTION for Extension of Time to Complete Discovery (tss, Gainesville) (Entered: 06/03/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Magistrate Judge Allan Kornblum notified that action is needed Re: 106 Amended Response in Opposition to Motion filed by JOHN O AGWUNOBI and 101 MOTION for Extension of Time to Complete Discovery filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (tss, Gainesville) (Entered: 06/03/2004)
107 MOTION for Extension of Time to File Response/Reply Opposition to Defendants' Motion to Decertify the Class by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 06/09/2004)
MOTIONS REFERRED to Judge Kornblum: 107 Unopposed MOTION for Extension of Time to File Response/Reply Opposition to Defendants' Motion to Decertify the Class (llt, Gainesville) (Entered: 06/09/2004)
108 ORDER DENYING AS MOOT 100 Defendants' Motion for Protective Order filed by RHONDA MEDOWS, and GRANTING IN PART 101 MOTION for Extension of Time to Complete Discovery filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M in so far as the discovery deadline and deadline for expert depositions is extended. The Motion is DENIED in all other respects. Discovery due by 7/23/2004.. Signed by Judge ALLAN KORNBLUM on 6/9/04. (llt, Gainesville) (Entered: 06/10/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Magistrate Judge Allan Kornblum notified that action is needed Re: 107 UNOPPOSED MOTION for Extension of Time to File Response/Reply Opposition to Defendants' Motion to Decertify the Class filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (tss, Gainesville) (Entered: 06/10/2004)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 13 of 20

06/14/2004 06/15/2004 06/15/2004 06/15/2004 06/16/2004 06/18/2004
06/18/2004 06/18/2004 06/18/2004 06/21/2004 06/21/2004
06/21/2004 06/21/2004

ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 107 UNOPPOSED MOTION for Extension of Time to File Response/Reply Opposition to Defendants' Motion to Decertify the Class filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (tss, Gainesville) (Entered: 06/14/2004)
109 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 06/15/2004)
110 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 06/15/2004)
111 MEMORANDUM in Opposition re 102 Response to Motion by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D# 5 Exhibit Exhibit E# 6 Exhibit Exhibit F# 7 Exhibit Exhibit G# 8 Exhibit Exhibit H)(COSTELLO, ANDREA) (Entered: 06/15/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 111 Memorandum in Opposition to Response to Motion, doc 102 , filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt, Gainesville) (Entered: 06/16/2004)
112 MOTION to Compel Production of Documents and for Entry of an Order of Protection and Memorandum of Law in Support by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (Attachments: # 1 Exhibit 1 − Proposed Order of Protection# 2 Exhibit 2 − Pls' First Request to Produce Documents# 3 Exhibit 3 − Defs' Responses to First Request to Produce Docs# 4 Exhibit 4 − Dubois Depo pp.34−36 and exhibit# 5 Exhibit 5 − Reineking Depo Excerpts# 6 Exhibit 6 − DeLilla Depo Excerpts# 7 Exhibit 7 − Dubois Depo Excerpts pp. 17−18# 8 Exhibit 8 − Smith Depo Excerpts# 9 Exhibit 9 − BSCIP Release)(COSTELLO, ANDREA) (Entered: 06/18/2004)
113 MOTION to Expedite Time for Defendants to File an Opposition and for an Expedited Ruling on Plaintiffs' Motion to Compel Production of Documents and for Entry of an Order of Protection by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 06/18/2004)
114 ORDER granting 107 Motion for Extension of Time to File Response; Plaintiffs' response, doc 111 is accepted as timely filed.. Signed by Judge STEPHAN P MICKLE. (llt, Gainesville) (Entered: 06/18/2004)
Set/Reset Deadlines as to 112 MOTION to Compel Production of Documents (Response due by 7/6/2004) (llt, Gainesville) (Entered: 06/21/2004)
MOTIONS REFERRED to Judge Kornblum: 112 MOTION for Entry of an Order of Protection and Memorandum of Law in Support (llt, Gainesville) (Entered: 06/21/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Kornblum notified that action is needed Re: 113 MOTION to Expedite Time for Defendants to File an Opposition and for an Expedited Ruling on Plaintiffs' Motion to Compel Production of Documents and for Entry of an Order of Protection filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt, Gainesville) Modified on 6/24/2004 to correct spelling error (tss, Gainesville). (Entered: 06/21/2004)
MOTIONS REFERRED to Judge Kornblum: 113 MOTION to Expedite Time for Defendants to File an Opposition and for an Expedited Ruling on Plaintiffs' Motion to Compel Production of Documents and for Entry of an Order of Protection (llt, Gainesville) (Entered: 06/21/2004)
115 RESPONSE in Opposition re 113 MOTION to Expedite Time for Defendants to File an Opposition and for an Expedited Ruling on Plaintiffs' Motion to Compel Production of Documents and for Entry of an Order of Protection to Motion to Shorten Time for Defendants to File, Etc. filed by ALAN LEVINE. (WAAS, GEORGE) (Entered: 06/21/2004)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 14 of 20

06/21/2004 06/21/2004 06/22/2004 06/22/2004 06/22/2004 06/22/2004
06/24/2004
06/25/2004 06/25/2004 06/30/2004 06/30/2004
07/06/2004 07/06/2004 07/07/2004

116 NOTICE by ALAN LEVINE of Unavailability of Undersigned Counsel (WAAS, GEORGE) (Entered: 06/21/2004)
117 MOTION to Excuse the Class Representatives from the Requirement of Having to Personally Appear at the Mediation by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (Response due by 7/9/2004) (COSTELLO, ANDREA) (Entered: 06/21/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Kornblum notified that action is needed Re: 115 Response in Opposition to Motion to Expedite Time and Ruling, doc 113 , filed by ALAN LEVINE (llt, Gainesville) (Entered: 06/22/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 116 Notice of Unavailability of Counsel filed by ALAN LEVINE (llt, Gainesville) (Entered: 06/22/2004)
MOTIONS REFERRED to Judge Kornblum: 117 Unopposed MOTION to Excuse the Class Representatives from the Requirement of Having to Personally Appear at the Mediation (llt, Gainesville) (Entered: 06/22/2004)
118 ORDER granting 113 MOTION to Expedite Time for Defendants to File an Opposition and for an Expedited Ruling on Plaintiffs' Motion to Compel Production of Documents and for Entry of an Order of Protection filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M and setting deadline − Response due by 6/30/2004 re: 112 MOTION to Compel Production of Documents and for Entry of an Order of Protection and Memorandum of Law in Support filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M.. Signed by Judge ALLAN KORNBLUM on 6/22/04. − Notify Chambers on 7/7/2004 (llt, Gainesville) Modified on 6/25/2004 to correct posting error regarding response deadline, reference 6/25/04 Docket Annotation (llt, Gainesville). (Entered: 06/24/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 117 MOTION to Excuse the Class Representatives from the Requirement of Having to Personally Appear at the Mediation filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (tss, Gainesville) (Entered: 06/24/2004)
119 DOCKET ANNOTATION BY COURT: Re 118 Order; error in posting response deadline corrected; response deadline set for 6/30/04 (llt, Gainesville) (Entered: 06/25/2004)
120 ORDER granting 117 Motion to allow class representatives to particpate in mediation by telephone . Signed by Judge STEPHAN P MICKLE. (mal, Gainesville) (Entered: 06/25/2004)
121 Joint MOTION to Extend Time to Continue Trial, Joint MOTION for Extension of Time to Complete Discovery, Joint MOTION for Extension of Time to File Dispositive Motions by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 06/30/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 121 Joint MOTION to Extend Time to Continue Trial, to Complete Discovery, and to File Dispositive Motions filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt, Gainesville) (Entered: 06/30/2004)
122 NOTICE by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH (COSTELLO, ANDREA) (Entered: 07/06/2004)
123 MEDIATION REPORT. (mediation continued) (deb, Gainesville) (Entered: 07/07/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P Mickle notified that action is needed Re: 112 MOTION to Compel Production of Documents and for Entry of an Order of Protection and Memorandum of Law in Support filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M, 122

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 15 of 20

07/07/2004
07/13/2004 07/15/2004 07/15/2004 07/16/2004
08/04/2004 08/04/2004 09/03/2004 09/03/2004 09/10/2004 09/10/2004
09/14/2004
09/15/2004 09/15/2004

Notice (Joint Stipulation ) filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (deb, Gainesville) (Entered: 07/07/2004)
124 ORDER granting 121 Joint MOTION to Extend Time to Continue Trial, for Extension of Time to Complete Discovery, and for Extension of Time to File Dispositive Motions filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M − Discovery now due by 10/28/2004, Dispositive Motions to be filed by 12/15/2004, and Bench Trial reset for 2/22/2005 at 08:30 AM before JUDGE STEPHAN P MICKLE;signed by Judge STEPHAN P MICKLE on 7/7/04. (tss, Gainesville) (Entered: 07/07/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Allan Kornblum notified that action is needed Re: 122 Notice (Other) filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M, re 112 MOTION to Compel (deb, Gainesville) (Entered: 07/13/2004)
125 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 07/15/2004)
126 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 07/15/2004)
127 ORDER of Protection of Confidential Information Relating to Unnamed Class Members which shall control the confidentiality of all information pertaining to class members, including unnamed class members, that is sought by discovery in this action. Signed by Judge ALLAN KORNBLUM on 7/15/04. (llt, Gainesville) (Entered: 07/19/2004)
128 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 08/04/2004)
129 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 08/04/2004)
130 MEDIATION REPORT stating motions to extend the discovery will be filed. (knr, Gainesville) (Entered: 09/03/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 130 Mediation Report (knr, Gainesville) (Entered: 09/03/2004)
131 MOTION for Extension of Time to Complete Discovery, MOTION for Extension of Time to File Dispositive Motions and to Continue Trial by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 09/10/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 131 MOTION for Extension of Time to 12/28/04 to Complete Discovery and Expert Deposition, MOTION for Extension of Time to 2/15/05 to File Dispositive Motions, and Motions and to Continue Trial to 4/28/05 filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (llt, Gainesville) (Entered: 09/10/2004)
132 ORDER granting re 131 MOTION for Extension of Time to Complete Discovery, to File Dispositive Motions and to Continue Trial filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M, Discovery due by 12/28/2004; Expert Depositions to be Completed by 12/28/04; Motions due by 2/14/2005; and Jury Trial set for 4/18/2005 08:30 AM before JUDGE STEPHAN P MICKLE.. Signed by Judge STEPHAN P MICKLE on 9/14/04. (llt, Gainesville) (Entered: 09/15/2004)
133 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 09/15/2004)
134 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 09/15/2004)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 16 of 20

09/15/2004 10/14/2004 10/14/2004 11/15/2004 11/15/2004 12/14/2004 12/14/2004 12/23/2004 12/23/2004 01/13/2005 01/13/2005 02/08/2005
02/15/2005 02/15/2005 03/15/2005 03/15/2005 03/24/2005 03/24/2005 03/28/2005
04/15/2005

135 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 09/15/2004)
136 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 10/14/2004)
137 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 10/14/2004)
138 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 11/15/2004)
139 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, MELVIN M, CHARLES SMITH. (COSTELLO, ANDREA) (Entered: 11/15/2004)
140 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/14/2004)
141 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/14/2004)
142 Joint MOTION to Extend Time for Discovery, Motions and Trial by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/23/2004)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge S. Mickle notified that action is needed Re: 142 Joint MOTION to Extend Time for Discovery, Motions and Trial set in 132 Order (bkp, Gainesville) (Entered: 12/23/2004)
143 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 01/13/2005)
144 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 01/13/2005)
145 ORDER granting 131 Joint MOTION for Extension of Time to Complete Discovery, MOTION for Extension of Time to File Dispositive Motions and to Continue Trial filed by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. Discovery due by 3/28/2005. Motions due by 5/15/2005. Jury Trial set for 7/18/2005 before JUDGE STEPHAN P MICKLE. Signed by Judge STEPHAN P MICKLE on 2/8/05. (llt, Gainesville) (Entered: 02/09/2005)
146 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 02/15/2005)
147 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 02/15/2005)
148 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 03/15/2005)
149 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 03/15/2005)
150 Joint MOTION to Extend Time to Conduct Discovery, File Motions and Continue Trial by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 03/24/2005)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 150 Joint MOTION to Extend Time to Conduct Discovery, File Motions and Continue Trial (llt, Gainesville) (Entered: 03/24/2005)
151 ORDER granting 150 Joint MOTION to Extend Time to Conduct Discovery, File Motions and Continue Trial − Discovery due by 6/28/2005, Dispositive Motions to be filed by 9/28/2005, and Jury Trial reset for 1/17/2006 at 08:30 AM before JUDGE STEPHAN P MICKLE;signed by Judge STEPHAN P MICKLE on 3/28/05. (tss, Gainesville) (Entered: 03/28/2005)
152 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 04/15/2005)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 17 of 20

04/15/2005 05/16/2005 05/16/2005 05/16/2005 06/15/2005 06/15/2005 06/29/2005 06/29/2005 07/06/2005
07/15/2005 07/18/2005 07/21/2005
07/22/2005 08/09/2005 08/09/2005 09/15/2005 09/15/2005 10/17/2005 10/17/2005 11/15/2005

153 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 04/15/2005)
154 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 05/16/2005)
155 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 05/16/2005)
156 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 05/16/2005)
157 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 06/15/2005)
158 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 06/15/2005)
159 Joint MOTION to Extend Time for Discovery, Motions and Trial by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 06/29/2005)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 159 Joint MOTION to Extend Time for Discovery, Motions and Trial (llt, Gainesville) (Entered: 06/29/2005)
160 ORDER granting 159 Joint MOTION to Extend Time for Discovery, Motions and Trial filed by MICHAEL DUBOIS,, CHARLES SMITH,, MELVIN M. Expert depositions to be completed by 1/27/06, Dispositive Motions to be filed by 3/28/2006, Discovery due by 1/27/2006 and Jury Trial set for 7/17/2006 before JUDGE STEPHAN P MICKLE.. Signed by Judge STEPHAN P MICKLE on 7/6/05. (llt, Gainesville) (Entered: 07/06/2005)
161 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 07/15/2005)
162 MOTION for Extension of Time to File to File Time Records for Time Recorded from June 1 through 31, 2005 by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (Attachments: # 1)(COSTELLO, ANDREA) (Entered: 07/18/2005)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 162 MOTION for Extension of Time to File to File Time Records for Time Recorded from June 1 through 31, 2005 (llt, Gainesville) (Entered: 07/21/2005)
163 ORDER granting 162 Motion for Extension of Time to File attorney time records for Plaintiffs' counsel. Signed by Judge STEPHAN P MICKLE. (llt, Gainesville) (Entered: 07/25/2005)
164 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 08/09/2005)
165 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 08/09/2005)
166 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 09/15/2005)
167 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 09/15/2005)
168 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 10/17/2005)
169 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 10/17/2005)
170 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 11/15/2005)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 18 of 20

11/15/2005 12/15/2005 12/15/2005 01/17/2006 01/17/2006 01/17/2006 01/27/2006 01/27/2006 01/31/2006 01/31/2006 02/15/2006 02/15/2006 03/15/2006 03/15/2006 04/21/2006 04/21/2006 04/21/2006 04/21/2006
04/24/2006
09/15/2006

171 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 11/15/2005)
172 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/15/2005)
173 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/15/2005)
174 NOTICE of FIRM CHANGE FOR PETER P. SLEASMAN by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (SLEASMAN, PETER) (Entered: 01/17/2006)
175 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 01/17/2006)
176 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 01/17/2006)
177 Joint MOTION to Extend Time to Complete Discovery, Motions and Trial by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 01/27/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 177 Joint MOTION to Extend Time to Complete Discovery, Motions and Trial (llt, Gainesville) (Entered: 01/27/2006)
178 ORDER granting 177 Motion to Extend Time; new deadlines established: 5/29/06 discovery deadline, 7/28/06 motions deadlines, and 11/20/06 trial date. Signed by Judge STEPHAN P MICKLE. (llt, Gainesville) (Entered: 01/31/2006)
Set Deadlines/Hearings Discovery due by 5/29/2006. Motions due by 7/28/2006. Jury Trial set for 11/20/2006 before JUDGE STEPHAN P MICKLE, per 178 order. (llt, Gainesville) (Entered: 01/31/2006)
179 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 02/15/2006)
180 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 02/15/2006)
181 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 03/15/2006)
182 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 03/15/2006)
183 MOTION for Extension of Time to File Attorney Time Records for Time From March 1, 2006, through March 31, 2006 by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 04/21/2006)
184 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 04/21/2006)
185 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 04/21/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 183 Unopposed MOTION for Extension of Time to File Attorney Time Records for Time From March 1, 2006, through March 31, 2006 (llt, Gainesville) (Entered: 04/21/2006)
186 ORDER granting 183 Motion for Extension of Time to File Records for Attorney Time from 3/1/06 through 3/31/06. Plaintiff's time recrods (docs 184 and 185) are accepted as timely filed. Signed by Judge STEPHAN P MICKLE. (llt, Gainesville) (Entered: 04/25/2006)
187 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 09/15/2006)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 19 of 20

09/15/2006 10/03/2006
10/10/2006 10/10/2006
10/10/2006 10/11/2006
10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/31/2006 10/31/2006
11/29/2006 11/29/2006 11/29/2006 11/30/2006
12/01/2006

188 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 09/15/2006)
189 PRETRIAL ORDER signed by Judge STEPHAN P MICKLE on 10/3/06 (Attachments: # 1 Evidence &Exhibit Information) Final Pretrial Conference set for 11/6/2006 at 01:30 PM before JUDGE STEPHAN P MICKLE in Gainesville and Bench Trial set for 11/20/2006 at 08:30 AM before JUDGE STEPHAN P MICKLE in Tallahassee(tss, Gainesville) (Entered: 10/03/2006)
190 NOTICE of Settlement by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M (Attachments: # 1 Exhibit Settlement Agreement) (COSTELLO, ANDREA) (Entered: 10/10/2006)
191 Joint MOTION Approval of Procedure to Notify the Class of Proposed Settlement and Fairness Hearing by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (Attachments: # 1 Exhibit Proposed Notice to the Class of the Proposed Settlement and Fairness Hearing) (COSTELLO, ANDREA) (Entered: 10/10/2006)
192 Proposed Pretrial Order Requiring Notice to Class Members of Proposed Settlement and Fairness Hearing by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 10/10/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 192 Proposed Pretrial Order, 190 Notice of Settlement, 191 Joint MOTION Approval of Procedure to Notify the Class of Proposed Settlement and Fairness Hearing (llt) (Entered: 10/11/2006)
193 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 10/16/2006)
194 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 10/16/2006)
195 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 10/16/2006)
196 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 10/16/2006)
197 ORDER Cancelling Pretrial Conference and Trial pursuant to 190 Notice of Settlement filed by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS; signed by Judge STEPHAN P MICKLE on 10/31/06. (tss) (Entered: 11/01/2006)
198 ORDER Requiring Notice to Class Members of Proposed Settlement and Fairness Hearing − Settlement Hearing set for 1/4/2007 at 01:30 PM before JUDGE STEPHAN P MICKLE; signed by Judge STEPHAN P MICKLE on 10/31/06. (tss) (Entered: 11/01/2006)
199 MOTION to Extend Time to File Time Records for Time Recorded from October 1, 2006 Through October 31, 2006 by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 11/29/2006)
200 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 11/29/2006)
201 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 11/29/2006)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 199 MOTION to Extend Time to File Time Records for Time Recorded from October 1, 2006 Through October 31, 2006 201 Attorney Time Records − Sealed Portion (Ex Parte), 200 Attorney Time Record, (llt) (Entered: 11/30/2006)
202 ORDER granting 199 Motion to Extend Time to file Attorney Time Records; 200 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. and 201 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. accepted as timely filed. Signed by Judge STEPHAN P MICKLE on 12/1/06. (llt) (Entered: 12/04/2006)

Case: 4:03-cv-107 As of: 02/03/2011 08:47 PM CST 20 of 20

12/15/2006 12/15/2006 12/15/2006 12/15/2006 01/03/2007 01/03/2007 01/03/2007 01/03/2007 01/04/2007 01/04/2007 01/04/2007
01/04/2007
01/04/2007 01/04/2007

203 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/15/2006)
204 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/15/2006)
205 ATTORNEY TIME RECORDS by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/15/2006)
206 ATTORNEY TIME RECORDS − SEALED PORTION by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 12/15/2006)
207 JOINT MOTION for Approval of Settlement Agreement (tss) (Entered: 01/03/2007)
208 MEMORANDUM in Support of 207 JOINT MOTION for Approval of Settlement Agreement (tss) (Entered: 01/03/2007)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Stephan P. Mickle notified that action is needed Re: 207 JOINT MOTION for Approval of Settlement Agreement 208 Memorandum in Support of Motion (tss) (Entered: 01/03/2007)
209 MOTION for Leave to Appear Request to Appear by Telephone by MICHAEL DUBOIS, CHARLES SMITH, MELVIN M. (COSTELLO, ANDREA) (Entered: 01/03/2007)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge Mickle notified that action is needed Re: 209 MOTION for Leave to Appear by Telephone (llt) (Entered: 01/04/2007)
211 Minute Entry for proceedings held before Judge STEPHAN P MICKLE : Settlement Conference held on 1/4/2007 − written order to follow (Court Reporter Christine Bordenave.) (bkp) (Entered: 01/04/2007)
ACTION REQUIRED BY CHAMBERS: Chambers of Judge S. Mickle notified that action is needed Re: 211 Minute Entry for proceedings held before Judge STEPHAN P MICKLE : Settlement Conference held on 1/4/2007 − written order to follow (bkp) (Entered: 01/04/2007)
212 ORDER OF APPROVAL OF SETTLEMENT AGREEMENT re 207 MOTION for Settlement filed by MELVIN M, JOHN O AGWUNOBI, CHARLES SMITH, ALAN LEVINE, MICHAEL DUBOIS, 208 Memorandum in Support of Motion filed by MELVIN M, JOHN O AGWUNOBI, CHARLES SMITH, ALAN LEVINE, MICHAEL DUBOIS Signed by Judge STEPHAN P MICKLE on 1/4/07. (bkp) (Entered: 01/04/2007)
213 ORDER DISMISSING CASE WITH PREJUDICE Signed by Judge STEPHAN P MICKLE on 1/4/07. (bkp) (Entered: 01/04/2007)
214 ORDER granting 209 MOTION for Leave to Appear by Telephone filed by MELVIN M, CHARLES SMITH, MICHAEL DUBOIS Signed by Judge STEPHAN P MICKLE on 1/4/07. (bkp) Modified on 1/9/2007 to clarify entry (tss, Gainesville). (Entered: 01/04/2007)