UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
Case No. 0:12-cv-60460-CIV-ZLOCH
T.H., by and through her next friend, Paolo Annino; A.C., by and through his next friend, Zurale Cali; A.R., by and through her next friend, Susan Root; C.V., by and through his next friends, Michael and Johnette Wahlquist; M.D., by and through her next friend, Pamela DeCambra; C.M., by and through his next friend, Norine Mitchell; B.M., by and through his next friend, Kayla Moore; T.F., by and through his next friend, Michael and Liz Fauerbach; each individually, and on behalf of all other children similarly situated in the State of Florida,
Plaintiffs, v.
ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration; HARRY FRANK FARMER, JR., in his official capacity as the state Surgeon General of the Florida Department of Health; KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children’s Medical Services, and eQHEALTH SOLUTIONS, INC., a Louisiana nonprofit corporation,
Defendants. __________________________________/
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C.

§ 517,1 because this litigation implicates the proper interpretation and application of the
integration mandate of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12101, et. seq. See Olmstead v. L.C., 527 U.S. 581 (1999). The Attorney General has
authority to enforce Title II of the ADA, and pursuant to Congressional mandate, to issue
regulations setting forth the forms of discrimination prohibited by Title II. See 42 U.S.C
§ 12134. Accordingly, the United States has a strong interest in the resolution of this matter.
Plaintiffs T.H., A.C., C.V., M.D., C.M., B.F., and T.F., by and through their next friends
(collectively, “Plaintiffs”), bring this proposed class action for declaratory and injunctive relief
under Title II of the ADA, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29
U.S.C. §794(a), the Medicaid Act, 42 U.S.C.§ 1396a et seq., and the Nursing Home Reform
Amendments to the Medicaid Act, 42 U.S.C. § 1396r. (See Pls.’ Am. Consolidated Compl. (“Compl.”), ECF No. 29, ¶¶ 1, 264-99.)2 Plaintiffs are children, ranging in age from 5 years old to 18 years old, who have been diagnosed as medically fragile3 and who are qualified for
services through the State’s Medicaid program, including home and community-based services
that allow individuals with disabilities to live at home in the community. (See Compl. ¶¶ 3, 9-
1 28 U.S.C. § 517 permits the Attorney General to send an officer of the Department of Justice to any district in the United States “to attend to the interests of the United States in a suit pending in a court of the United States.” 2 Plaintiffs seek to represent a class of Florida Medicaid recipients under the age of twenty-one who are able to and want to live in the community with appropriate supports and who are currently institutionalized or at risk of institutionalization in nursing facilities. (See Compl. ¶ 254.) 3 A “medically fragile child” is one who is “medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition, is ventilator dependent, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.” Fla. Admin. Code. R. 59G-1.010(165).
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13, 109-10, 119, 127, 129, 132, 147, 152, 154, 163, 168, 170, 180, 183, 185, 192, 195, 197, 206, 209, 211, 220, 224).
T.H., a 16-year-old with ongoing medical complications due to experiencing shaken baby syndrome in her infancy, lives at Kidz Corner, a 72-bed children’s wing of a 152-bed geriatric nursing facility. (Compl. ¶ 108). T.H. and other members of a proposed class of institutionalized children want to return home to their communities, but allege that they remain unnecessarily segregated in nursing homes because of the State’s policies and practices limiting medically necessary services in the community. (Id. ¶¶ 6-7). They also allege Defendants have failed to properly administer a federally required screening prior to nursing facility admission, thereby causing them and others similarly situated to be unnecessarily institutionalized. (Id. ¶¶ 293-99).
A.C., A.R., C.V., M.D., C.M., B.M. and T.F. live at home with their families and have been prescribed medically necessary services, including private duty nursing services. They wish to remain at home with their families, but allege that Defendants’ policies, procedures and practices, including the improper denial or reduction of medically necessary services place them at risk of unnecessary institutionalization. (See Compl. ¶¶ 5, 16, 17-20, 125-26, 127,135, 14445, 147, 153, 160-61, 163, 177-78, 180, 190, 192, 203-04, 206, 217-18, 220, 231-32). Because Plaintiffs’ Complaint properly alleges facts supporting each of their claims, the United States respectfully urges this Court to deny the State Defendants’ motion to dismiss.4
4 The United States solely addresses in this Statement of Interest the State Defendants’ motion to dismiss.
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STATUTORY AND REGULATORY BACKGROUND
A. The Integration Mandate and Olmstead
Congress enacted the ADA in 1990 “to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate
individuals with disabilities, and despite some improvements, such forms of discrimination
against individuals with disabilities continue to be a serious and pervasive social problem.” Id.
§ 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with
disabilities by public entities:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
Id. § 12132.
One form of discrimination prohibited by Title II of the ADA is violation of the
“integration mandate.” The integration mandate arises out of Congress’s explicit findings in the ADA, the Attorney General’s regulations implementing Title II,5 and the Supreme Court’s
decision in Olmstead, 527 U.S. at 587. In Olmstead, the Supreme Court held that public entities
are required to provide community-based services to persons with disabilities when (a) such
services are appropriate, (b) the affected persons do not oppose community-based treatment, and
5 The regulations provide that “a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The preamble discussion of the “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible[.]” 28 C.F.R. § 35.130(d), App. A at 572 (2010). Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, contains an identical regulation issued by the Attorney General. 28 C.F.R. § 41.51(d).
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(c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. 6 Id. at 607.
The ADA’s protections are not limited to those individuals who are currently institutionalized. The integration mandate also prohibits public entities from implementing policies or practices that place individuals at serious risk of unnecessary institutionalization. See M.R. v. Dreyfus, 663 F.3d 1100, 1116 (9th Cir. 2011); see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (noting that “nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements”); Haddad v. Dudek, 784 F. Supp. 2d 1308, 1323-32 (M.D. Fla. 2011) (denying defendants’ motion to dismiss where plaintiff in community sued to prevent unnecessary institutionalization).
B. The Early and Periodic Screening, Diagnosis and Treatment Requirements of the Medicaid Act Under the Early and Periodic Screening, Diagnosis and Treatment (“EPSDT”)
requirements of the Medicaid Act, states must provide coverage to categorically Medicaideligible individuals under the age of twenty-one for all medically necessary treatment services described in the Medicaid Act at 42 U.S.C. § 1396d(a), which sets forth a number of services that may be made available under a State Medicaid Plan. 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4); 42 U.S.C. § 1396d(r)(1)-(5). The treatment to be provided for is defined by 42 U.S.C. § 1396d(r) and includes dental, hearing and vision services and “[s]uch other necessary
6 In all ways relevant to this discussion, the ADA and Section 504 are generally construed to impose similar requirements. See Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316, n.3 (11th Cir. 2009); Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000).
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health care, diagnostic services, treatment, and other measures described in [42 U.S.C. § 1396d(a)]. . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are [otherwise] covered under the State plan.” 42 U.S.C. § 1396d(r)(5); 42 C.F.R. § 440.40. Under § 1396d(r)(5), states must “cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a),” S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 590 (5th Cir. 2004), including private duty nursing services. See 42 U.S.C. § 1396d(a)(8).
A state has discretion to develop a reasonable definition of “medical necessity,” but the services provided must be sufficient in amount, duration, and scope to reasonably achieve their desired purpose, including providing treatment “to correct or ameliorate defects and chronic conditions” of EPSDT-eligible children. 42 C.F.R. § 441.50 (describing purpose of EPSDT services); see Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1255, 1261 (11th Cir. 2011). Imposing restrictions on the number of hours of skilled nursing care available to a child that are not based on the needs of that child is inconsistent with the EPSDT provisions of the Medicaid Act. See Moore ex rel. Moore v. Cook, No. 1:07-CV-631-TWT, 2012 WL 1380220, at *10 (N.D. Ga. Apr. 20, 2012) (finding that reduction in nursing care hours provided to a child violated the EPSDT provisions of the Medicaid Act where his condition was not improving, and the reduction was based on a policy and practice to wean care and shift the burden of skilled care to the child’s parent); Royal ex rel. Royal v. Cook, No. 1:08-CV-2930-TWT, 2012 WL 2326115, at *9 (N.D. Ga. June 19, 2012) (same). States must ensure that each child receives all the covered services he is identified as needing, consistent with the EPSDT definition of medical necessity in §1396d(r)(5).
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FACTUAL BACKGROUND Plaintiffs in the instant lawsuit are eight medically fragile children currently living in a nursing facility or at home with family. (See Compl. ¶ 1). Defendants are Elizabeth Dudek, the Secretary of the Florida Agency for Health Care Administration (“AHCA”), Harry Frank Farmer, Jr., State Surgeon General and head of the Florida Department of Health (“DOH”), Kristina Wiggins, Deputy Secretary of DOH and Director of Florida Children’s Medical Services (“CMS”), and eQHealth, a Louisiana non-profit corporation that contracts with the State of Florida to review determinations that health care services are medically necessary. (See Compl. ¶¶ 32-35). Plaintiff T.H. has traumatic brain injury and medical complications arising from shaken baby syndrome. (Compl. ¶ 108). She has been determined to be medically appropriate for, and has previously lived in, the community, but she is currently institutionalized on a children’s wing of a large geriatric nursing facility. (Id. ¶¶ 108, 119, 122, 126). T.H. alleges that her medical foster care family wants to bring her home to them, but that Defendants’ policies and practices have denied her sufficient medically necessary services at home such that she has been forced to live in a nursing facility for the past five years. (See id. ¶¶ 119-26). Like Plaintiff T.H., Plaintiffs A.C., A.R., C.V., M.D., C.M., B.M., and T.F. have medically complex diagnoses, but they currently live in the community with their families or legal guardians. (Compl. ¶¶ 127, 147, 163, 180, 192, 206, 220). Each of them alleges they require ongoing medical assistance, including private duty nursing services, which has been prescribed by their physicians. (See id. ¶¶ 14, 137, 155, 171, 186, 198, 212). Private duty nursing services are “medically-necessary skilled nursing services that may be provided in a
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child’s home or other authorized settings to support the care required by the child’s complex medical conditions.” (See Compl. ¶ 15); see also Agency for Health Care Administration, Home Health Services Coverage and Limitations Handbook, at 2-17 (2008), incorporated by reference in Rule 59G-4.001, Fla. Admin. Code.
Pursuant to Defendants’ policies, every six months, recipients of private duty nursing services must request re-authorization of services, and Defendants review those requests to (1) determine whether the services are medically necessary and otherwise allowable under Medicaid rules and (2) ensure the quality of the services meets professionally recognized standards. (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 32, at 7). Florida’s definition of “medical necessity” includes the requirement that services must “[b]e furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.” Fla. Admin. Code R. 59G-1.010(166). Plaintiffs allege that, through application of this definition, Defendants have established a practice of routinely and improperly denying medically necessary services and that results in shifting to parents and caregivers the burden of providing skilled care, even though these caregivers do not have the ability to provide such care. (See Compl. ¶ 243).
For example, A.R., a 10-year-old child with traumatic brain injury who lives at home with her mother and two siblings, alleges that she has had her requests for prescribed medically necessary services denied, and her services thereby reduced, during at least four reviews since 2010. (Compl. ¶ 157). These reductions have allegedly occurred without any change in A.R.’s medical condition and were not based on A.R.’s individual needs, or a reasonable determination of medical necessity. (Compl. ¶ 159). A.R. alleges that without sufficient medically necessary services, her family will no longer be able to care for her at home, and she will be forced to enter
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a nursing home. (Compl. ¶¶ 160-61). The other named plaintiffs living at home allege that they have similarly faced reductions
in medically necessary services at least one or more times, despite the lack of any improvement in their medical condition or increase in their caregivers’ ability to provide care. (See Compl. ¶¶ 127, 137-43, 147, 156-59, 163, 172-76, 180, 187-90, 192, 199-202, 206, 213-16, 220, 22730). They allege that they are thereby denied medically necessary services mandated under the EPSDT provisions of the Medicaid Act and placed at risk of unnecessary isolation in a nursing facility. (See id. ¶¶ 144-45, 160-61, 177-78, 190, 203-04, 218, 231-32, 242-43).
ARGUMENT To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiffs. Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (citing Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008)). The Complaint must provide factual allegations that are “enough to raise a right to relief above the speculative level.” Edwards, 602 F.3d at 1291 (quoting Rivell, 520 F.3d at 1309 (internal citations omitted)). The Complaint surpasses this threshold analysis as to each of Plaintiffs’ claims. A. The Complaint Properly States A Claim Under Title II of the ADA and Section 504 Defendants argue that Plaintiffs have failed to state a claim that they are at risk of unnecessary institutionalization in violation of the ADA and Section 504 because they have
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failed to identify “some kind of policy or financial barrier that makes services available in institutions, but not in the community.” (Defs.’ Mot. at 10). Contrary to Defendants’ assertion, Plaintiffs have more than adequately identified a State policy that places them at risk of unnecessary institutionalization in violation of the ADA. They allege that the State has implemented and applied a medical necessity standard that deprives them of sufficient medically necessary services in the community, such that they are at serious risk of entering a nursing facility to obtain the services they need. (Compl. ¶ 7, 12-13, 285-86). Numerous courts have found a violation of the ADA’s integration mandate where a state has offered services to Medicaid recipients in the community and in institutions, but has restricted services in the community to such an extent that it has placed persons at risk of unnecessary institutionalization.
In Royal ex rel. Royal v. Cook, No. 1:08-CV-2930-TWT, 2012 WL 2326115, at *10, (N.D. Ga. June 19, 2012), for example, a child with a medically complex condition sued the Georgia Medicaid agency, alleging that its reduction of in-home nursing services, which had been prescribed by his physician, placed him at risk of institutionalization in violation of the ADA. See id. at *1, *8-9. After receiving 84 hours of in-home nursing care per week for more than seven years, the child received notice from the agency informing him that his approved hours of in-home nursing had been reduced to 70 hours per week. See id. at *1. The notice stated, in part, “skilled nursing care services will be reduced when the medical condition of the member stabilizes to give more of the responsibility of the care of the [recipient] to the parent(s) and or caregiver(s).” Id. at *2 (emphasis added). After an evidentiary hearing, the court found the reduction of in-home nursing care would “deprive [the child] of essential services necessary to maintain his life and health[,]” and found that the child’s caregiver would have to retire or quit
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his job to meet the deficit in skilled care caused by the reduction. Id. at *7. The court held that the state agency had violated the ADA, and enjoined the agency from implementing the reduction, finding that the reduction was unreasonable in light of the skill and availability of the caregiver and that it would place the child “at high risk of premature entry into institutional isolation.” Id. at *9.
Here, Plaintiffs’ claims are virtually identical—their physicians have prescribed an amount of in-home nursing services determined to be medically necessary, but the State has allegedly implemented a policy to reduce those services, not based on medically necessity, but based on an effort to shift care to plaintiffs’ families. (See Compl. ¶¶ 17-19, 144-45, 158-61, 173-78, 188-90, 200-04, 214-18, 228-32). Plaintiffs allege that the attempted reductions are the product of a flawed policy and would result in the reduction of authorized hours to a level that does not accurately reflect the amount of care that their caregivers are able to safely supply. (See id.) They allege that these threatened reductions put them at serious risk of placement in a nursing facility in order to meet their care needs. (See Compl. ¶¶ 264-74); see also Hunter ex rel. Lynah v. Cook, No. 1:08-CV-2930-TWT, 2011 WL 45000009, at *5 (N.D. Ga. Sept. 27, 2011) (granting plaintiffs’ motion to amend complaint to add ADA claim alleging plaintiffs “will be forced into institutional nursing facilities if they are denied the in-home duty nursing services requested by their physicians”).
Similarly, in Cruz v. Dudek, this Court granted a preliminary injunction requiring AHCA to provide plaintiff Medicaid recipients sufficient home-based services to prevent their institutionalization where they had shown that they were at risk of institutionalization while receiving limited home-based services offered by the agency. See Cruz v. Dudek, No. 10-23048-
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CIV, 2010 WL 4284955, at *1 (S.D. Fla. Oct. 12, 2010), adopted by Order Adopting
Magistrate’s Report & Recommendations, Cruz v. Dudek, No. 10-23048-CIV, ECF No. 57, at 2-
3 (S.D. Fla. Nov. 24, 2010). The services they sought—assistance from skilled and unskilled
personnel with their activities of daily living—were available through the State’s Medicaid
program both in-home and in a nursing facility setting. See id. But the State’s administration of
the home-based care program denied them access to a sufficient amount of personnel hours to
meet their needs, placing them at risk of institutionalization to receive the care they needed. See
id.; accord Haddad v. Dudek, 784 F. Supp. 2d 1308, 1317 (M.D. Fla. 2011) (denying motion to
dismiss where plaintiff Medicaid recipient “alleged that denial of Medicaid funding for the
community-based services . . . [and] requirement conditioning receipt of [such] services on her
entering a nursing home for sixty days against her will, constitute unlawful discrimination in
violation of the ADA and the Rehab Act”).
Here, as in Cruz and Haddad, although the type of services Plaintiffs seek is available
both within and outside of institutional settings, including up to 24-hour nursing care,
Defendants’ policies and practices effectively deny Plaintiffs access to services to the extent
necessary to meet their needs unless the services are provided in an institutional setting. (See Compl. ¶¶ 17-19, 144-45, 158-61, 173-78, 188-90, 200-04, 214-18, 228-32).7 The Complaint
7 Defendants’ assertion that Plaintiffs have not stated a claim for relief under the ADA or Rehabilitation Act because the ADA does not require the State to provide transition or replacement services, or to maintain a certain “level of services” is equally without merit. (See Defs.’ Mot. at 9-10). While the ADA does not mandate what specific services or level of services a state must offer, it does require states to refrain from adopting policies or engaging in practices that discriminate with respect to the services it actually provides. See Haddad, 784 F. Supp. 2d, 1284, 1301 (M.D. Fla. 2010) (holding that “[t]he ADA does not require states to provide a level of care or specific services, but once states choose to provide certain services, they must do so in a nondiscriminatory fashion”) (citing Olmstead 527 U.S. at 603, n.14).
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pleads ample facts alleging that Defendants’ policies and actions threaten to reduce, or have resulted in the reduction of, community-based services in a manner that renders the services insufficient to sustain Plaintiffs in the community. (See id.).
For the same reasons, this Court should reject Defendants’ argument that the ADA is “not the appropriate vehicle for challenging the prudential judgment of medical practitioners.” (Defs.’ Mot. at 11). Plaintiffs’ Complaint does not seek to challenge any individual physician’s determination of whether a service is medically necessary. Rather, Plaintiffs challenge the State’s policy and practice of denying medically necessary services based on a definition of medical necessity that causes discrimination by placing them at-risk of institutionalization. (See Compl. ¶¶ 138, 141, 157-59, 173-76, 188-89, 200-02, 214-16, 228-30, 243).
B. The Complaint States Valid Medicaid Act Claims Plaintiffs have alleged that, through Defendants’ unreasonable application of the State’s definition of medical necessity, Defendants violate the EPSDT provisions of the Medicaid Act by failing to ensure the availability of medically necessary services and “shift[ing] the burden for providing skilled nursing services to [] parents or caregivers . . . who are not skilled nurses.” (Compl. ¶ 243(c)). The Complaint alleges that Defendants have denied authorization, sometimes repeatedly over several years, for the number of hours of in-home nursing services prescribed by Plaintiffs’ physicians. (Compl. ¶¶ 157-59, 173-76, 188-89, 200-02, 214-16, 228-30). It further alleges that these denials are neither based on Plaintiffs’ medical needs nor the ability of their caregivers to supplement necessary care in the absence of medically prescribed services. (Compl. ¶¶ 156, 172, 187, 199, 213, 227, 243(c)).
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Defendants assert that their practice of reducing hours to shift care to Plaintiffs’ caregivers is in keeping with a rule promulgated by the federal Centers for Medicare and Medicaid Services (“federal CMS”) that restricts the categories of individuals eligible to receive payment for providing personal care services. (Defs.’ Mot. at 15) (citing Medicaid Program; Coverage of Personal Care Services, 62 Fed. Reg. 47896-01, 47897 (Sept. 11, 1997)). The rule provides that parents and other legally responsible individuals are not eligible to receive financial reimbursement for providing personal care services to their children because they are “inherently responsible” for providing such care. See 62 Fed. Reg. at 47899. That rule has nothing to do with the facts at issue here. Plaintiffs’ parents and caregivers do not seek financial reimbursement for the natural supports they provide to their children. They seek coverage for medically necessary services for their children. Defendants cite no authority for the proposition that they can shift the burden of providing medically necessary services, mandated under the EPSDT provisions of the Medicaid Act, to parents and caregivers. Indeed there is none. Although a state may take into consideration natural supports provided to a Medicaid recipient, it may not compel such supports or require parents or caregivers to become skilled care providers. Cf. Medicaid Program; Community First Choice Option, 77 Fed. Reg. 26828-01, 26856-57 (CMS final rule regarding implementation of state plan home and community-based attendant services, noting that CMS “expect[s] that identification of [] natural, unpaid supports be taken into consideration with the purpose of understanding the level of support an individual has, and should not be used to reduce the level of services provided to an individual unless these unpaid supports are provided voluntarily to the individual”).
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Plaintiffs have thus stated a valid claim that Defendants have violated the EPSDT provisions of the Medicaid Act by unreasonably applying their definition of medical necessity. See Moore, 637 F.3d at 1258 (remanding case to district court for determination of whether “limits the state imposed on [plaintiff’s] physician’s discretion in reducing her hours from 94 to 84 hours a week are not reasonable”). The court in Royal, discussed supra, at 10-11, found that Georgia violated the EPSDT provisions of the Medicaid Act by reducing nursing hours prescribed by the treating physician of a child who was medically complex where it found that “the real reason [for the reduction] was not due to an individualized determination of medical necessity, but due to [defendant’s] policy and practice . . . to wean nursing care and to shift more of the burden of skilled care to his parent caregiver over time.” Royal, 2012 WL 2326115, at *9. The Court found the application of that policy unreasonable, because the child’s “condition was not improving and his father’s competency to provide skilled care had not increased.” Id.; see also Moore ex rel. Moore v. Cook, 2012 WL 1380220, at *10 (“I am convinced that the real reason for reducing [plaintiff’s] nursing care hours was an unreasonable application of the [defendant’s] policy to wean nursing care and shift more of the burden to her caregiver”).
Like the plaintiffs in Royal and Moore, Plaintiffs have alleged that their caregivers are unable to safely perform many of the tasks provided by private duty nursing, either due to the caregiver’s lack of skill, or unavailability due to responsibility for other members of the family or employment outside the home. (Compl. ¶¶ 153, 169, 184, 196, 210, 225, 243(c)). Despite the limitations of their caregivers, and lack of changes in their medical needs, they allege that they have still been subject to repeated attempts by the State to reduce the number of hours authorized from that prescribed by their physicians as medically necessary. (Compl. ¶¶ 137-41, 156-59,
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172-75, 187-89, 199-201, 213-15, 227-30). For this reason, the Court should deny Defendants’
motion to dismiss Plaintiffs’ EPSDT claims.8 See Moore, 637 F.3d at 1259 (“When a state
Medicaid agency has exceeded the bounds of its authority by adopting an unreasonable
definition of medical necessity or by failing to ensure that a required service is ‘sufficient in
amount, duration, and scope to reasonably achieve its purpose,’ aggrieved Medicaid recipients
have recourse in the courts.”).
Plaintiffs have also stated a valid claim for violation of the “reasonable promptness”
provision of the Medicaid Act, which requires that Medicaid-eligible individuals receive medical
assistance with reasonable promptness. See 42 U.S.C. § 1396a(a)(8). Defendants argue that a
“reasonable promptness” claim is available only where there has been an outright denial of all
services or extended delay in the provision of medically necessary services. (Defs.’ Mot. at 16).
State Medicaid programs must, however, provide all medically necessary services with
reasonable promptness. Boulet v. Cellucci, 107 F. Supp. 2d 61, 79 (D. Mass. 2000) (holding that
medical assistance must correspond to the individual’s needs and the requirement of reasonable
promptness is “not satisfied by other services the plaintiffs are receiving or might be offered”).
8 Defendants suggest that Plaintiffs’ claims in this Court are improper because of the existence of the Medicaid Fair Hearing process in Florida. But Plaintiffs are not required to exhaust available administrative remedies before filing suit under Title II of the ADA or under 42 U.S.C. § 1983 for violation of the Medicaid Act. See Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816, 823-24 (11th Cir. 1998); 28 C.F.R. Part 35, App. B (2011), at 685 (“Because [Title II] does not require exhaustion of administrative remedies, the complainant may elect to proceed with a private suit at any time.”); Alacare, Inc.-North v. Baggiano, 785 F.2d 963, 968 (11th Cir. 1986) (finding no requirement to exhaust administrative remedies prior to filing suit under 42 U.S.C. § 1983 for violation of the Medicaid Act); Moore ex rel. Moore v. Medows, No. 1:07-CV-631-TWT, 2007 WL 1876017, at *4 (N.D. Ga. June 28, 2007). Moreover, the Plaintiffs allege that, despite repeated denials and successful appeals, the State has persisted in applying its medical necessity definition unreasonably, leaving caregivers less able to provide care while they are forced to proceed through reconsideration and appeals processes.
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The provision of some services does not relieve Defendants of their duty to provide all medically necessary services with reasonable promptness. See id.; Rosie D. v. Romney, 410 F. Supp. 2d 18, 27-28 (D. Mass. 2006) (finding that a violation of the requirement of reasonable promptness may occur where plaintiffs are denied access to services that correspond with their needs). Accordingly, the Court should deny Defendants’ motion to dismiss Plaintiffs’ EPSDT claims.
C. Defendants Misstate the Requirements of the Nursing Home Reform Amendments to the Medicaid Act
Defendants assert that the facts alleged by Plaintiffs do not give rise to a violation of the Pre-Admission Screening and Resident Review (“PASRR”) provisions of the Nursing Home Reform Amendments to the Medicaid Act. PASRR requires state authorities to screen all individuals slated for admission to a nursing facility for mental illness or developmental disabilities, in order to prevent the admission of persons whose needs could be met in the community. See 42 U.S.C. § 1396r(e)(7). If a person seeking admission to a nursing facility is identified as having an intellectual or developmental disability or mental illness during what is known as a Level I Review, the individual must be assessed to determine, inter alia, whether “the individual’s total needs are such that his or her needs can be met in an appropriate community setting.” 42 C.F.R. § 483.132(a)(1). The person must also be assessed to determine “[i]f specialized services are recommended,” and if so, to “identif[y] the specific . . . services required to meet the evaluated individual’s needs.” 42 C.F.R. § 483.128(i)(5); see also 42 C.F.R. § 483.136. This evaluation is referred to as the Level II PASRR review. 42 C.F.R. § 483.128(a). The Medicaid Act further requires that an individual must be promptly re-evaluated to determine whether her needs can be met in the community when there has been a significant change in physical or mental condition. 42 U.S.C. § 1396r(e)(7)(B)(iii).
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Defendants assert that they need not conduct a Level II PASSR evaluation of children
who, like T.H., are ventilator dependent. Defendants are incorrect. The PASRR regulations
enable states to expedite the admission of certain categories of individuals to nursing care by
providing for advance categorical determinations. See 42 C.F.R. § 483.130(c). Included among
the categories a state may use for advance determinations are those individuals who are
identified, using sufficient current and accurate data, as having
[s]evere physical illnesses such as coma, ventilator dependence, functioning at a brain stem level, or diagnoses such as chronic obstructive pulmonary disease, Parkinson’s disease, Huntington’s disease, amyotrophic lateral sclerosis, and congestive heart failure which result in a level of impairment so severe that the individual could not be expected to benefit from specialized services.
42 C.F.R. § 483.130(d)(3) (emphasis added); see also 42 C.F.R. § 483.132 (describing data to be
relied on in making determination). The single fact that a child is ventilator dependent, however,
does not permit a state to bypass or abbreviate the PASRR process. Instead, there must be a
determination, based on current and accurate medical information, that an individual has “a level
of impairment so severe that the individual could not be expected to benefit from specialized services.”9 Defendants do not suggest that such a determination was ever made with respect to
T.H. or similarly situated proposed class members.
T.H. alleges a clear violation of PASRR. She has pled ample facts alleging that she lived
in a community setting with medical foster parents for many years, and desires to and would
benefit from return to that setting with appropriate services and supports. (See Compl. ¶¶ 116,
9 Even where an individual meets the criteria for an advance categorical determination, she must still receive an abbreviated Level II evaluation. The categorical determinations are not exemptions from PASRR, nor can they be used inappropriately to avoid screenings. See Medicare and Medicaid Programs; Preadmission Screening and Annual Resident Review, 57 Fed. Reg. 56450-01, *56489-90 (Nov. 30, 1992).
18

125, 236). These allegations do not suggest that her diagnosis has resulted “in a level of impairment so severe that the [she] could not be expected to benefit from specialized services.” Nor do Defendants offer any evidence that they have made this individualized determination. T.H. alleges, however, that she has neither been considered for placement in the community, nor assessed for necessary specialized services, under a PASRR Level II evaluation since she entered the nursing facility. (See Compl. ¶¶ 111-12). Defendants merely assert that Plaintiff T.H.’s status as ventilator dependent permits Defendants to bypass their ongoing responsibility under federal law to determine individually and specifically the appropriateness of nursing facility services. (See Defs.’ Mot. at 18-19). This is incorrect. Cf. Joseph S. v. Hogan, 561 F. Supp. 2d 280, 305 (E.D.N.Y. 2008) (holding plaintiffs pled PASRR claim sufficiently where complaint stated that defendants failed, inter alia, to “to conduct resident reviews when notified by the nursing homes of significant changes in an individual’s condition, . . . to ensure that an appropriate evaluation is made as part of the resident review process, . . . [and] to provide plaintiffs with copies of their evaluations and PASRR determinations”) (internal citations omitted).
Defendants also argue that Plaintiffs have not set forth sufficient factual allegations in support of their claim that the PASRR program does not adequately assess “whether a child with mental illness or mental retardation needs any specialized habilitative services.” (Defs.’ Mot. at 20). But Plaintiffs specifically allege that T.H. and A.C., as well as others similarly situated, did not receive Level II evaluations to determine whether they need specialized services. (See Compl. ¶¶ 112, 131, 296, 298). Moreover, Defendants themselves admit that they do no Level II assessment of children like T.H. and A.C., who are ventilator dependent, to identify the
19

specialized services that they need. (See Defs.’ Mot. at 18, 20). Thus, they cannot seriously dispute that Plaintiffs have sufficiently alleged they received no adequate or appropriate PASRR assessment.
Defendants further argue that there are no factual allegations in the complaint that would support a reasonable inference that the private duty nursing, speech therapy and physical therapy services identified by Plaintiffs are “directed toward the ‘acquisition of the behaviors necessary for the client to function with as much self-determination and independence as possible.’” (Defs.’ Mot. at 20 (citing 42 C.F.R. §§ 483.120(a)(2); 483.440(a)(i)). Defendants improperly shift the burden of identifying specialized services to the children in nursing homes. Pursuant to their obligations under PASRR, however, it is the Defendants’ responsibility to conduct an evaluation to identify “the specific . . . services required to meet the evaluated individual’s needs.” 42 C.F.R. § 483.128(i)(5). They admit they have not done so, and Plaintiffs therefore state a valid claim for violation of the PASRR requirements of the Nursing Home Reform Act.
CONCLUSION For the reasons stated above, the United States respectfully requests that this Court deny Defendants’ Motion to Dismiss. The United States additionally requests that, should the Court hear oral argument on Defendants’ Motion, the United States be permitted to participate.

Dated June 28, 2012

Respectfully submitted,

WILFREDO A. FERRER United States Attorney Southern District of Florida

THOMAS E. PEREZ Assistant Attorney General
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/s/ Veronica Harrell-James VERONICA HARRELL-JAMES Assistant United States Attorney 99 N.E. 4th Street Miami, FL 33132 Telephone: (305) 961-9327 Facsimile: (305) 530-7139 Veronica.Harrell-James@usdoj.gov

EVE HILL Senior Counselor to the Assistant Attorney General
ALISON BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division
/s/ Travis England GREGORY B. FRIEL Acting Chief SHEILA S. FORAN Special Legal Counsel ANNE S. RAISH Deputy Chief TRAVIS W. ENGLAND, Bar ID A5501768 BETH A. ESPOSITO, Bar ID A5501719 JOY LEVIN WELAN, Bar ID A5501767 Trial Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 307-0663 Facsimile: (202) 307-1197 Travis.England@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that on June 28, 2012, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the a true and correct copy of the foregoing document was served on June 28, 2012 on all counsel of record or parties identified on the Service List below in the manner specified below, either via transmission of Notices of Electronic Filing generated by CM/ECF, or in some other authorized manner for those counsel or parties who are not authorized to receive Notices of Electronic Filing.
/s/ Travis W. England Travis W. England
22

SERVICE LIST

Edward J. Grunewald The North Florida Center for Equal Justice, Inc. 2121 Delta Blvd. Tallahassee, FL 32306 Phone: 850-701-3980 Fax: 850-701-3985 Email: egrunewald@nfcfej.org Attorney for Plaintiffs Service by CM/ECF Jill B. Zaborske The North Florida Center For Equal Justice, Inc. 2121 Delta Blvd. Tallahassee, FL 32303 Phone: 850-701-3980 Fax: 850-701-3985 Email: jill@nfcfej.org Attorney for Plaintiffs Service by CM/ECF Matthew W. Dietz 2990 SW 35th Avenue Miami, FL 33133 Phone: 305-669-2822 Fax: 305-442-4181 Email: matthewdietz@usdisabilitylaw.com Attorney for Plaintiffs Service by CM/ECF
Beverly H. Smith Agency for Health Care Administration 2727 Mahan Drive, MS 3 Tallahassee, FL 32308 Phone: 850-412-3630 Fax: 850-921-0158 Email: Beverly.Smith@ahca.myflorida.com Attorney for Defendant Dudek Service by CM/ECF

Jamie Ito The North Florida Center for Equal Justice, Inc. 2121 Delta Blvd. Tallahassee, FL 32306 Phone: 850-701-3980 Fax: 850-701-3895 Email: jamie@nfcfej.org Attorney for Plaintiffs Service by CM/ECF Paolo G. Annino FSU College of Law Public Interest Law Center 425 W. Jefferson Street Tallahassee , FL 32306 Phone: 850-644-9928 Fax: 850-644-0879 Email: pannino@law.fsu.edu Attorney for Plaintiffs Service by CM/ECF Andrew T. Sheeran Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive, Building 3, MS #3 Tallahassee, FL 32308 Phone: 850-412-3630 Fax: 850-921-0158 Email: Andrew.Sheeran@ahca.myflorida.com Attorney for Defendant Dudek Service by CM/ECF Stuart Fraser Williams Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, FL 32308 Phone: 850-412-3630 Fax: 850-921-0158 Email: Stuart.Williams@ahca.myflorida.com Attorney for Defendants Dudek, Farmer, and
Wiggins Service by CM/ECF

23

Nicholas William Romanello Conrad & Scherer 633 S. Federal Highway, 8th Floor PO Box 14723 Fort Lauderdale, FL 33302-4723 Phone: 954-462-5500 Fax: 954-463-9244 Attorney for Defendants Farmer and Wiggins Service by U.S. Mail
Lisa Scoles Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, FL 32301 Phone: 850-425-6654 Fax: 850-425-6694 Email: lscoles@radeylaw.com Attorney for Defendant eQHealth Solutions,
Inc. Service by CM/ECF

Harry Osborne Thomas Radey Thomas Yon & Clark 301 S. Bronough Street, Suite 200 PO Box 10967 Tallahassee, FL 32302 Phone: 850-425-6654 Fax: 850-425-6694 Email: Hthomas@radeylaw.com Attorney for Defendant eQHealth Solutions,
Inc. Service by CM/ECF

24

 
 Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 1 of 122

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION
CASE NO. 12-60460-CIV-ROSENBAUM

T.H., by and through her next friend, Paolo

Annino; L.J., by and through his next

friend, Paolo Annino; A.G., by and through

his next friend Gamal Gasser; A.C., by and

through his next friend Zurale Cali; A.R., by

and through her next friend, Susan Root;

C.V., by and through his next friends,

Michael and Johnette Wahlquist; M.D.,

by and through her next friend, Pamela

DeCambra; C.M., by and through his next

friend, Norine Mitchell; B.M., by and

through his next friend, Kayla Moore; and

T.F., by and through his next friend,

Michael and Liz Fauerbach; each

individually, and on behalf of all other

children similarly situated in the State of

Florida,

SECOND AMENDED

Plaintiffs,

CONSOLIDATED COMPLAINT -

v.

CLASS ACTION FOR

DECLARATORY AND INJUNCTIVE

RELIEF

ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration; HARRY FRANK FARMER, JR., in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health; KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children’s Medical Services; and eQHEALTH SOLUTIONS, INC., a Louisiana non-profit corporation,

Defendants.

__________________________________/

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 2 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
Plaintiffs, T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., B.M., and T.F. by and through their respective next friends, on behalf of themselves and all other children similarly situated in the State of Florida, sue the Defendants, ELIZABETH DUDEK (“DUDEK”), in her official capacity as Secretary for the Agency for Health Care Administration (“AHCA”); HARRY FRANK FARMER, JR. (“FARMER”), in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health (“FDOH”); KRISTINA WIGGINS (“WIGGINS”), in her official capacity as Deputy Secretary of the FDOH and Director of Children’s Medical Services (“CMS”); and eQHEALTH SOLUTIONS, INC. (“eQHealth”), and allege as follows:
PRELIMINARY STATEMENT 1. T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., B.M., T.F., and Plaintiff Class members
are medically fragile children or children who need skilled care services. Many are on tracheotomies, gastrostomy tubes and ventilators. 2. A Medically Fragile Child is one who is medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependant, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.
Rule 59G-1.010(165), Fla. Admin. Code. 3. A Child who needs Skilled Care Services is one who is
classified as requiring skilled nursing or skilled rehabilitative services in the community or in a nursing facility, [who is] 1. Ordered by and remain under the supervision of a physician; 2. Sufficiently medically complex to require supervision, assessment, planning, or intervention by a registered nurse; 3. Required to be performed by, or under the direct supervision of, a registered nurse or other health care professionals for safe and effective performance; 4. Required on a daily basis; 5. Reasonable and necessary to the treatment of a specific documented illness or injury; and 6. Consistent with the nature and severity of the individual's condition or the disease state or stage. Rule 56G-4.290(3), Fla. Admin. Code.
2

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 3 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
Institutionalized Plaintiffs and Sub-Class 4. T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs are children
who have been placed in nursing facilities. 5. As of the date of the filing of this Complaint, there are approximately 250 children
Medicaid recipients in Florida nursing facilities. 6. T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs want to
return home and to their communities. 7. T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs are
unnecessarily institutionalized and segregated in nursing facilities because of the Defendants’ decision to exclude them from any meaningful access to Florida’s system of community-based services and supports that they need to be able to reside in the community. 8. Due to the Defendants’ failure to provide medically necessary services in the community, T.H., L.J. and A.G., and members of the sub-class of institutionalized Plaintiffs are forced to be unnecessarily institutionalized in nursing facilities in order to receive medically necessary services. 9. The Defendants have failed and continue to fail to provide specialized services to T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs, to which they are entitled to receive in nursing facilities.
At-Risk Plaintiffs and Sub-Class 10. A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class live at
home. They are members of families and communities. 11. As of the date of this Complaint, there are approximately 3,300 child Medicaid recipients
of private duty nursing at risk of being placed in Florida nursing homes. 12. A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class are being
taken care of by loving and caring parents. 13. A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class need
ongoing medical help, including private duty nursing services, to survive at home and to participate in a family and community.
3

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 4 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
14. Due to the Defendants’ failure to provide those medically necessary services, A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class are at risk of unnecessary institutionalization in nursing facilities. All Plaintiffs and Plaintiff Class Members
15. Plaintiffs and Plaintiff Class members have been prescribed medical services by their primary care physicians, including private duty nursing care services, funded by Medicaid and administered by the Defendants, that would allow them to live and continue to live at home and in their communities.
16. Private duty nursing services are “medically-necessary skilled nursing services that may be provided in a child’s home or other authorized settings to support the care required by the child’s complex medical condition.” Agency for Health Care Administration, Home Health Services Coverage and Limitations Handbook, December 2011, at 2-17, incorporated by reference in Rule 59G-4.130, Fla. Admin. Code. (Hereinafter Handbook).
17. Plaintiffs and Plaintiff Class members are qualified for the Defendants’ system of community-based services and supports for individuals with mental retardation and mental illnesses. Each of the Plaintiffs and Plaintiff Class members is able to, and want to reside in an integrated, community-based placement, such as a family home, or a medical foster home.
18. The Defendants are denying Plaintiffs and Plaintiff Class members the Medicaid services, including private duty nursing services, that they need to live and continue to live at home and in their communities
19. Defendants have adopted uniform policies, practices, and regulations to reduce private duty nursing services.
20. The Defendants have failed and continue to fail to provide medically necessary services in home and community settings to Medicaid recipient children in Florida.
21. The Plaintiffs and Plaintiff Class members seek a declaration that the Defendants’ policies, regulations, actions and omissions are unnecessarily institutionalizing Plaintiffs and Plaintiff Class Members or placing Plaintiffs at risk of being placed in segregated facilities, in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
4

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 5 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
(“Section 504”); Medicaid Act, 42 U.S.C. §§ 1396-1396v (“Medicaid”); The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r (“NHRA”); Early and Periodic Screening, Diagnostic, and Treatment Services, 42 U.S.C. § 1396d(r) (“EPSDT Provisions”); and 42 U.S.C. § 1983. 22. The Plaintiffs and Plaintiff Class members seek for the court to enter a permanent injunction requiring the Defendants to stop segregating medically fragile and medically complex children in nursing facilities and to provide these children medically necessary Medicaid services in the most integrated setting appropriate in the community and to provide for their medically necessary services and to provide such services in the most integrated setting appropriate.
JURISDICTION AND VENUE 23. The Plaintiffs’ and Plaintiff Class members’ claims arise under the laws of the United
States. This court has jurisdiction over the claims pursuant to 28 U.S.C. §§ 1331 and 1343(a). 24. Venue is proper in the Southern District of Florida pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred in the district.
PARTIES Named Plaintiffs – Institutionalized Sub-Class 25. T.H. is a medically fragile 16-year-old child who has medical complications resulting from shaken baby syndrome. T.H. is institutionalized at Kidz Corner, a 72 bed children’s wing of a 152 bed geriatric nursing facility called Plantation Nursing and Rehab Center in Plantation, Florida (“Kidz Corner”). T.H. is represented by her next friend, Paolo Annino, an Attorney ad litem appointed by the Seventeenth Judicial Circuit Court of the State of Florida, who resides in Tallahassee, Florida. 26. L.J. is a medically fragile 15-year-old child primarily diagnosed with infantile cerebral palsy and anoxic brain damage. L.J. is institutionalized at Children’s Center a 34 bed children’s wing of Sabal Palms Health Care Center, a 233 bed geriatric nursing facility in Largo, Florida (“Sabal Palms”). L.J. is represented by his next friend, Paolo Annino, an Attorney ad litem appointed by the Tenth Judicial Circuit Court of the State of Florida, who resides in Tallahassee, Florida.
5

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 6 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
27. A.G. is a 17-year-old child who requires Skilled Care Services as a result of a motor vehicle accident and a resulting traumatic brain injury when he was 15. He currently is able to speak but is dependent on a g-tube to meet his nutritional needs. Notwithstanding his abilities and improvement of his condition since recovering from his coma, A.G. is institutionalized at Lakeshore Villas Nursing Home in Tampa, Florida (“Lakeshore”). A.G. is represented by his next friend and father, Gamal Gasser, who resides in Tampa, Florida. Named Plaintiffs – At-Risk Sub-Class
28. Plaintiff A.C. is a medically fragile five-year-old child who has medical complications resulting from a near drowning accident. A.C. lives with his next friend and mother, Zurale Cali, in Spring Hill, Florida.
29. A.R. is a medically fragile 10-year-old child Medicaid recipient of private duty nursing services diagnosed with traumatic brain injury. A.R. lives with her next friend and mother, Susan Root, and her brother and sister, in Edgewater, Florida.
30. C.V. is a medically fragile eight-year-old child Medicaid recipient of private duty nursing services diagnosed with Hurler Syndrome. C.V. lives with his next friends and legal guardians, Michael and Johnette Wahlquist, and their children, in Bristol, Florida.
31. M.D. is a medically fragile 14-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy and Strider Syndrome. M.D. lives with her next friend and mother, Pamela DeCambra, and her brother, in Tallahassee, Florida.
32. C.M. is a medically fragile four-year-old child Medicaid recipient of private duty nursing services diagnosed with chromosome deletion syndrome, chronic respiratory failure and severe cerebral palsy. C.M. lives with his next friend and mother, Norine Mitchell, and his father in Tallahassee, Florida.
33. B.M. is a medically fragile five-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy and developmental delay. B.M. lives with his next friend and mother, Kayla Moore, and his father in Fountain, Florida.
34. T.F. is a medically fragile 18-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy, mental retardation, and chronic lung disease. T.F. lives with his next friends and legal guardians, Michael and Liz Fauerbach, and his sister, in Miami, Florida.
6

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 7 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
Defendants 35. DUDEK is the Secretary of AHCA, which is the single state agency responsible for
administering the Medicaid program under Title XIX of the Social Security Act and for ensuring that the Medicaid program complies with federal law. See 42 U.S.C. § 1396a(a)(5); §§ 409.012(2), (14) & (15), Fla. Stat.; and § 409.902, Fla. Stat. As such, she has a duty to ensure that AHCA programs are administered in accordance with the law. DUDEK is sued in her official capacity only, as Secretary of AHCA. 36. FARMER is the State Surgeon General and head of FDOH, which is the primary state agency responsible for administering the Children’s Medical Services (“CMS”) program for children who require long term care and which administers the Children’s Multidisciplinary Assessment Team (“CMAT”) program. FARMER has the duty to ensure that FDOH programs are administered in accordance with the law. FARMER is sued in his official capacity. 37. WIGGINS is the Deputy Secretary of the Florida Department of Health and the Director of CMS. CMS, a division of the Florida Department of Health, is the lead agency of CMAT. CMAT is an inter-agency coordinated effort comprised of representatives from AHCA, the Department of Children and Families, the Agency for Persons with Disabilities and CMS. CMAT, under the leadership of CMS, makes recommendations for medically necessary services for children from birth to twenty-one who are medically fragile (65C-30.001, FAC). WIGGINS, as director of CMS, the lead agency of CMAT, has the duty to respond to the needs of each child and family and to guarantee the efficiency and effectiveness of support and services. WIGGINS is sued in her official capacity. 38. eQHealth is a Louisiana non-profit corporation with its principal place of business in Baton Rouge, Louisiana and is engaged in business in, and serves as an instrumentality of, the State of Florida. eQHealth contracts with AHCA to provide services for Florida’s Comprehensive Medicaid Utilization Management Program. (See Exhibit A, which is incorporated by reference into this Complaint).
7

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 8 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
STATUTORY AND REGULATORY BACKGROUND AND FRAMEWORK The Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165
39. In 1990, Congress enacted the Americans with Disabilities Act (ADA), which is the most comprehensive legislation geared toward the prohibition of discrimination based on disability. 42 U.S.C. §§ 12101-12213 (2000). When enacting the ADA, Congress noted “the nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” Id. at 12101(a)(8).
40. In signing the ADA into law, President George H.W. Bush stated: “The Americans with Disabilities Act presents us all with an historic opportunity. It signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life.” Statement on Signing the Americans with Disabilities Act of 1990, 2 Pub. Papers 1070, 1071 (July 26, 1990).
41. Congress found the following: (1) 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; (2) discrimination against individuals with disabilities persists in such critical areas as housing, public accommodations, education and institutionalization; (3) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusions, overprotective rules and policies, and segregation. See generally 42 U.S.C. §§ 12131-12165 (2000).
42. The ADA prohibits discrimination against individuals with disabilities by public entities and by instrumentalities of states: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. 43. Segregation of children with disabilities from their homes is discrimination under the
ADA. See 42 U.S.C. § 12101(a)(5); Olmstead v. L.C., 572 U.S. 581 (1999).
8

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 9 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
44. As public entities and instrumentalities of a state, Defendants are required to administer their services, programs and activities in “the most integrated setting appropriate” to the needs of Plaintiffs and Plaintiff Class members. See 28 C.F.R. § 35.130(d).
45. As public entities and instrumentalities of the state, Defendants are prohibited from providing “a qualified individual with a disability with an aide, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided others." 28 C.F.R. 35.130(b)(1)(iii).
46. As public entities and instrumentalities of the state, Defendants are prohibited from utilizing “criteria or methods of administration” that have the effect of subjecting Plaintiffs and Plaintiff Class members to discrimination on the basis of disability; or “that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity's program with respect to individuals with disabilities...” 28 C.F.R. § 35.130(b)(3). Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794
47. Section 504 provides: No otherwise qualified individual with a disability in the United States…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). 48. Regulations implementing Section 504 prohibit recipients of Federal financial assistance
from: [u]tiliz[ing] criteria or methods of administration… (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the …effect of substantially impairing accomplishment of the recipients’ program with respect to handicapped persons.
45 C.F.R. § 84.4(b)(4). 49. The Civil Rights Restoration Act of 1987 amends Section 504 to provide that if any part
of a program or activity receives federal financial assistance, all of the operations of the program are subject to Section 504. See 29 U.S.C. § 794(b)
9

Case 0:12-cv-60460-RSR Document 62 Entered on FLSD Docket 08/23/2012 Page 10 of 122 T.H. et al., v. DUDEK et al.
SECOND AMENDED CONSOLIDATED COMPLAINT
50. Disability discrimination claims brought under Section 504 are evaluated similarly to ADA claims. See Allmond v. Akal Sec., Inc., 558 F. 3d 1312, 1316 n.3 (11th Cir. 2009). The United States Medicaid Act, 42 U.S.C. §§1396-1396v
51. The Medicaid program is a cooperative federal/state program that provides health care services to specified categories of individuals meeting income and other criteria. See 42 U.S.C. §§ 1396-1396v.
52. Florida participates in the Medicaid program. See § 409.902, Fla. Stat. Medicaid’s Early and Periodic Screening,
Diagnosis and Treatment (“EPSDT”) Program 53. Federal law lists 28 health care services which a state may provide through its Medicaid
program. See 42 U.S.C. § 1396d(a)(1) – (28). 54. Some of these services are mandatory, meaning that if a state participates in Medicaid it
must provide those services (i.e., inpatient hospital services; outpatient hospital services; physician visits; lab & x-ray services; nursing home services; early and periodic screening, diagnosis, and treatment services for children; and family planning services). 42 U.S.C. § 1396a(a)(10)(A) (requiring states to provide the services listed at § 1396d(a)(1)–(5), (17) & (21)). 55. Most of the services are optional (i.e., prescription drugs, hospice, dental services, vision/optometry services, hearing services, chiropractic services, and podiatric services). 56. The package of mandatory and optional health care services that are provided by a state are known as the “State Plan.” 57. As part of its Early and Periodic Screening, Diagnosis and Treatment (“EPSDT”) Program, a state must provide all 28 health care services listed at 42 U.S.C. § 1396d(a)(1) – (28) to eligible children, which include private duty nursing services. 58. EPSDT requires screening, vision, dental, hearing and treatment services, and requires that such services include “such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5). 59. AHCA is required to
10

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T.H. et al., v. DUDEK et al. SECOND AMENDED CONSOLIDATED COMPLAINT
pay for early and periodic screening and diagnosis of a recipient under age 21 to ascertain physical and mental problems and conditions and all services determined by the agency to be medically necessary for the treatment, correction, or amelioration of these problems and conditions, including personal care, private duty nursing, durable medical equipment, physical therapy, occupational therapy, speech therapy, respiratory therapy, and immunizations.
§ 409.905(2), Fla. Stat. 60. AHCA defines Medically necessary services as those that must:
1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
2. 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;
3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and
5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.
Rule 59G-1.010(166)
61. For inpatient hospital services to be deemed medically necessary, they cannot be services which, “consistent with the provisions of appropriate medical care, [could] be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type.” Rule 59G-1.010(166)(b), Fla. Admin. Code.
62. AHCA’s policy regarding coverage of medically necessary services is found at Rule 59G-4.130 of the Florida Administrative Code, which incorporates by reference the Florida Medicaid Home Health Services Coverage and Limitations Handbook, December 2011 (“Handbook”).
63. The Handbook defines private duty nursing services as “medically-necessary skilled nursing services that may be provided in a child’s home or other authorized settings to support the care required by the child’s complex medical conditions.”
64. AHCA may authorize private duty nursing services where they are ordered by the child’s attending physician, are documented as medically necessary, are provided by a registered
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or licensed practical nurse, are consistent with the physicia[n] approved plan of care, and have been authorized before the services are provided. 65. AHCA does not authorize private duty nursing Services “solely for the convenience of the child, the parents or the caregiver.” (Handbook, at 2-18). 66. AHCA will decrease private duty nursing services “over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or as the child’s condition improves.” (Handbook, at 2-21). 67. The Handbook defines personal care services as “medically necessary assistance with activities of daily living that support a recipient’s medical care needs.” (Handbook, at 223). Personal care services may be provided to a child with complex medical problems who requires more individual and continuous care than can be provided through a home health aide visit. The services include bathing and grooming, toileting and elimination, oral hygiene, range of motion and positioning, and oral feedings and fluid intake. 68. The patient’s physician has a role in determining what treatment is medically necessary, see Moore ex rel. Moore v. Medows, 324 Fed. Appx. 773, 774 (11th Cir. 2009), and for developing the plan of care for the Medicaid recipient. 69. Pursuant to section 409.905(4)(b), Florida Statutes, Florida created a “comprehensive utilization management program” to review and assess the need for Medicaid recipients’ private duty nursing services. 70. Prior to 2011, Keystone Peer Review Organization (“KePRO”) served as the State’s “comprehensive utilization management program” pursuant to a contract with AHCA. 71. On February 24, 2011, eQHealth entered a Contract with AHCA to serve as the State’s “comprehensive utilization management program” 72. As Florida’s “comprehensive utilization management program,” eQHealth makes medical necessity determinations on behalf of AHCA and acts as a witness for AHCA in all fair hearing proceedings resulting from decisions and actions made by eQHealth. 73. Pursuant to its contract with AHCA, eQHealth agreed to comply with Federal civil rights laws, including the ADA and the Rehabilitation Act. (Exhibit A, Page 5). 74. Pursuant to the contract, eQHealth is required to apply AHCA criteria, guidelines, policies, procedures and processes in making medical necessity determinations. (Exhibit A, Attachment I, Page 12-18).
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75. Pursuant to the contract, eQHealth must have prior approval by AHCA for the clinical criteria it utilizes in reviewing prior authorization requests. (Exhibit A, Attachment I, Page 19).
76. Pursuant to the contract, eQHealth is to comply with AHCA staffing requirements. (Exhibit A, Attachment I, Page 7-12).
77. Pursuant to the contract, eQHealth received and receives federal financial assistance in excess of $100,000. (Exhibit A, Page 1 at I.B.1.-2).
78. eQHealth has received federal financial assistance from the Federal Centers for Medicare & Medicaid Services.
79. eQHealth has received federal financial assistance from the Federal Department of Health and Human Services.
80. Pursuant to the contract, eQHealth received and receives funding in an amount not to exceed $50,073,958 from AHCA. (Exhibit A, Page 10 at II.A.).
81. eQHealth is required to provide scheduled and periodic reporting on its services to AHCA.
82. eQHealth’s services under the contract are services which are traditionally performed by the state.
83. eQHealth’s services under the contract are performed as a state actor. 84. Each Medicaid recipient is provided services for a specific certification period. 85. A certification period is the period covered by the recipient’s plan of care or the time
period for which services are provided. Services can be approved for up to 180 days (6 months). Thus, the review process takes place every six months. 86. The review process begins when a home health agency (the provider of the medical services), submits a request for services, such as private duty nursing services with a skilled nurse, home health aide services, personal care assistant services, or home health visit services. When a request is submitted, an eQHealth nurse reviewer determines if the information submitted is sufficient to approve the request based on the medical necessity guidelines, the Handbook, and other relevant statutes and regulations. 87. Nurse reviewers are not permitted to deny services; they are only permitted to approve services.
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88. If the information that is submitted is insufficient for a nurse reviewer to make an approval, the review then goes to a physician reviewer. The physician reviewer reviews the information and makes a judgment based on the information provided and based on the applicable rules and regulations. Once that decision is rendered, it goes to the family and the provider who can then accept the decision or request a reconsideration within ten days from the denial of services.
89. If a reconsideration is requested, the provider then has an opportunity to provide additional information or clarification. The reconsideration then goes through the same process and is again reviewed by a nurse reviewer and if not approved by the nurse reviewer, to a second physician reviewer who is different from the original physician reviewer. The second physician reviewer renders a decision and can either uphold the denial or partial denial, approve the request as originally submitted, or modify the request and approve or deny something different. Medicaid’s Reasonable Promptness Requirement
90. Federal Medicaid law provides that individuals eligible to receive medical assistance under the program shall receive it with “reasonable promptness.” 42 U.S.C. 1396a(a)(8). Florida’s Nursing Facilities
91. A nursing facility is an institution that primarily provides: a. Skilled nursing care; b. Rehabilitation services for those who are sick, injured, or disabled; and c. Health related care and services to individuals who, because of their mental or physical condition, require care and services that can only be provided in an institutional setting.
See 42 U.S.C. § 1396r(a)(1)(A-C). 92. Nursing facility services are
services which are … required to be given an individual who needs … on a daily basis nursing care (provided by or requiring the supervision of nursing personnel) or other rehabilitative services which as a practical matter can only be provided in a nursing facility on an inpatient basis.
42 U.S.C. § 1396r(a) The Nursing Home Reform Amendments to the Medicaid Act
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93. The Nursing Home Reform Amendments of 1987 to the Medicaid Act, 42 U.S.C. § 1396r(e) (“NHRA”), are part of a comprehensive remedial statute designed to address the widespread problem of warehousing people with developmental disabilities in the nation’s nursing facilities. Congress enacted the Pre-Admission Screening and Resident Review (“PASRR”) provisions of the NHRA to prevent and remedy the unnecessary admission and confinement of people with psychiatric and developmental disabilities in nursing facilities. See 42 U.S.C. § 1396r(e)(7). The regulations implementing the PASRR requirements are found at 42 C.F.R. §§ 483.100 to 483.138.
94. Under federal Medicaid law, the State is required to screen incoming nursing facility patients for mental illness and mental retardation, determine whether placement in a nursing facility is appropriate and if specialized services are needed, and to provide the specialized services that are necessary.
95. The Children’s Multidisciplinary Assessment Team (CMAT) is responsible for conducting PASRRs in Florida pursuant to 42 U.S.C. § 483.112.
96. CMAT is an inter-agency coordinated effort comprised of representatives from AHCA, the Department of Children and Families, the Agency for Persons with Disabilities and CMS. CMAT, under the leadership of CMS, makes recommendations for medically necessary services for children from birth to twenty-one who are medically fragile (65C-30.001, FAC).
97. There are two levels of PASRR screening and review – Level I and Level II. See 42 C.F.R. § 483.128(a). The Level I screen determines whether individuals being considered for admission to a nursing facility have a mental illness or mental retardation. For those persons whose Level I screen indicates the existence of a mental illness or mental retardation, a Level II review is performed. This includes an assessment and evaluation to determine: a. If they do, in fact, have a mental illness or mental retardation; b. Whether they satisfy the nursing facility level of care criteria; c. Whether their needs could be met in the community through the provision of appropriate supports and services; and d. Whether they could benefit from the provision of specialized services designed to maximize their ability for self-determination and independence.
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42 C.F.R. §§ 483.128(a) & 483.132. 98. The Level II review must include a psychosocial evaluation that analyzes current living
arrangements and medical and social supports. The review must also include a functional assessment of the individual’s ability to engage in activities of daily living and must document the level of support that would be needed to assist the individual to perform these activities while living in the community. See C.F.R. § 483.134(b)(5). The assessment must determine whether it would be possible to meet the individual’s needs through the provision of services and supports in the community as an alternative to nursing facility placement. 99. If the Level II review determines that a resident does not require nursing facility services, but instead requires specialized services in a non-institutional setting, the Defendants must provide or arrange for the provision of such specialized services to the resident in an appropriate community setting. See 42 U.S.C. §§ 1396r(e)(7)(C)(i)&(ii); 42 C.F.R. §§ 483.118(c) & 483.120(b). 100. Specialized services consist of an active and continuous treatment program that includes aggressive, consistent implementation of specialized and generic training, treatment, and health services to allow the individual to function as independently and with as much self-determination as possible, and services designed to prevent or decelerate regression and loss of abilities. See 42 C.F.R. §§ 483.120 & 483.440(a). If an individual requires specialized services, under federal law, the state must provide those services with the frequency, intensity, and duration that meet the federal standard for active treatment. See 42 C.F.R. §§ 483.440(a)-(f). 101. The PASRR reviewers must explain to the individual involved and, where applicable, his or her legal representative the results of the Level II evaluation, including information regarding the individual’s ability to reside in a less restrictive community placement, and must provide the individual and legal representative with a copy of the PASRR report. See 42 C.F.R. §§ 483.128(k) & 483.130(l)(3). 102. If the Level II review determines that an individual admitted to a nursing facility needs specialized services, it must then be determined if the nursing facility can provide all needed specialized services and active treatment. If the review concludes that the facility
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cannot, the individual cannot be admitted to that nursing facility. See 42 C.F.R. § 483.126. 103. If the individual is admitted to a nursing facility, periodic reviews must be conducted whenever there is a change in the person’s condition to determine whether the individual continues to need a nursing level of care and to require confinement in a nursing facility. Periodic Level II evaluations must also determine whether specialized services are necessary to provide habilitation and active treatment. See 42 U.S.C. §§ 1396r(b)(3)(F)(i) & 1396r(e)(7)(A)&(B); 42 C.F.R. §§ 483.128, 483.132, 483.134, & 483.136. 104. The nursing facility may not admit individuals whose PASRR determined that the individual does not require nursing facility level services. See 42 C.F.R. § 483.118(a). 105. If a resident of a nursing facility who has resided in the facility for at least 30 months is determined to require specialized services, but not to require nursing facility level services, the State must offer the resident the option of remaining in the nursing facility or receiving services from the State in an alternative appropriate setting. See 42 C.F.R. § 483.118(c)(1). 106. If a resident of a nursing facility who has resided in the facility for less than 30 continuous months is determined to require specialized services, but does not require nursing facility level services, the State must arrange for the discharge of the resident and provide for and arrange specialized services for the mental illness or mental retardation. See 42 C.F.R. § 483.118(c)(2). 107. For individuals with mental illness, if specialized services are required, they must be services which combined with services provided by the [nursing facility], results in the continuous and aggressive implementation of an individualized plan of care that—(i) Is developed and supervised by an interdisciplinary team, which includes a physician, qualified mental health professionals and, as appropriate, other professionals. (ii) Prescribes specific therapies and activities for the treatment of persons experiencing an acute episode of serious mental illness, which necessitates supervision by trained mental health personnel; and (iii) Is directed toward diagnosing and reducing the resident's behavioral symptoms that necessitated institutionalization, improving his or her level of independent functioning, and achieving a functioning level that permits reduction in the intensity of mental health services to below the level of specialized services at the earliest possible time.
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42 C.F.R. § 483.120(a)(1). 108. For individuals with mental retardation, if specialized services are required, they must be
services which Include[] aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward--
(i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and
(ii) The prevention or deceleration of regression or loss of current optimal functional status.
42 C.F.R. §483.440(a)(1). 109. An individual with a mental illness or mental retardation may only be placed in a nursing
facility where the individual's needs are such that he or she meets the minimum standards for admission and the individual's needs for treatment do not exceed the level of services which can be delivered in the [nursing facility] to which the individual is admitted either through [nursing facility] services alone or, where necessary, through [nursing facility] services supplemented by specialized services provided by or arranged for by the State.
42 C.F.R. § 483.126. 110. National experience demonstrates that where PASRR reviews are properly performed,
approximately 80 percent of individuals with mental illness or mental retardation who are referred for or temporarily admitted to nursing facility placement are determined to be able to reside in the community with appropriate services and supports and should, therefore, be diverted to a more integrated community placement prior to or shortly after admission to the nursing facility. In Massachusetts, where the state was required by court order to conduct comprehensive PASRR reviews of all individuals with developmental disabilities residing in nursing facilities, more than 90 percent of those individuals were found to need specialized services.
FACTUAL ALLEGATIONS Institutionalized Plaintiff T.H.
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111. T.H. is a 16-year-old child who has medical complications resulting from shaken baby syndrome. T.H. is institutionalized at Kidz Corner, a 72 bed children’s wing of a 152 bed geriatric nursing facility called Plantation Nursing and Rehab Center in Plantation, Florida (“Kidz Corner”).
112. T.H. has medical complications resulting from Post-traumatic brain injury due to shaken baby syndrome. She is a medically fragile child with diagnoses including extensive retinal and brain hemorrhage; blindness; spastic quadriparesis; severe psychomotor retardation; skull fracture; hypertension; reactive airway disease; apnea; seizure disorder; and developmental delay. T.H. is on a gastrostomy tube (g-tube) and a tracheotomy tube and is ventilator dependent. She is non-verbal and non-ambulatory.
113. T.H. is a qualified person with a disability within the meaning of the ADA and Section 504.
114. T.H. meets the criteria for mental retardation on a Level I PASRR screen. 115. No Level II PASRR evaluation or review was ever performed. 116. On February 25, 1996, T.H. was born. 117. On November 16, 1996, at nine months old, T.H. suffered Shaken Baby syndrome,
causing major brain damage. 118. Subsequently, the Florida Department of Children and Families terminated T.H.’s
parent’s parental rights and T.H. became a foster child, a dependent of the State. 119. On June 2, 1997, T.H. was placed in a Medical Foster Care home, pursuant to Florida
Administrative Code Rule 65C-28.004(7)(f)3, where she resided with the same foster parents until 2006. 120. On June 16, 2006, T.H. was hospitalized for the insertion of a tracheotomy tube and on July 25, 2006, T.H. was hospitalized again for the insertion of a ventilator. 121. On August 1, 2006, T.H. was institutionalized at Kidz Korner, a 72 bed children’s wing of a 152 bed nursing home facility, called Plantation Nursing and Rehab Center located in Plantation, Florida. 122. On November 2, 2006, she was determined to be medically appropriate to continue in the Medical Foster Care program and her medical foster parents desired to have her return back home. Skilled nursing was provided upon T.H.’s return home to assist with her medical needs.
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123. Defendants failed to provide sufficient nursing services which directly resulted in T.H. being placed in a nursing facility.
124. On March 23, 2007, T.H. was again institutionalized to Kidz Korner due to the lack of sufficient private duty nursing care and has been placed there ever since. T.H.’s medical foster parents were unable to care for T.H. at home because of the lack of nursing services available to them.
125. T.H. lives in a hospital like room with another medically fragile child and no curtain or other barrier between them.
126. Since institutionalized in March of 2007, T.H. has not been hospitalized nor had any major medical emergencies. She has been stable for the last five years. She is currently being weaned off her ventilator and is off of it for 8 hours a day.
127. T.H. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting.
128. T.H.’s former medical foster care parent would like to have T.H. back in her home. 129. T.H. is segregated and institutionalized in a nursing facility because of Defendants’
current policies and practices that fail to provide medically necessary services in the community and force her to be institutionalized in a nursing facility in Florida.
L.J. 130. L.J. is a medically fragile 15-year-old child primarily diagnosed with infantile cerebral
palsy and anoxic brain damage. L.J. is institutionalized at the Children’s Center a 34 bed children’s wing of Sabal Palms Health Care Center, a 233 bed geriatric nursing facility in Largo, Florida (“Sabal Palms”). 131. L.J. is a medically fragile child with primary diagnoses including infantile cerebral palsy and anoxic brain damage. His secondary diagnoses include severe spastic quadriplegia, seizure disorder, and developmental delay. L.J. is on a gastrostomy tube (g-tube), a tracheotomy tube, an apnea monitor and oxygen via mist collar. He is non-verbal and non-ambulatory. 132. L.J. is a qualified person with a disability within the meaning of the ADA and Section 504. 133. L.J. meets the criteria for mental retardation on a Level I PASRR screen. 134. No Level II PASRR evaluation or review was ever performed.
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135. On December 3, 1996, L.J. was born. 136. In March 1997, at three months old, L.J.’s mother and grandmother found him not
breathing. He was air lifted to the hospital and it was determined that he had suffered septic shock. 137. Subsequently, on April 30, 1997, the Florida Department of Children and Families removed L.J. from his mother’s custody because she was not able to adequately care for the child due to his numerous medical problems. 138. On May 9, 1997, L.J. was placed at Sabal Palms and has remained there ever since. 139. On October 29, 1997, L.J.’s mother’s and father’s parental rights were terminated due to medical neglect and L.J. became a foster child, a dependent of the State. 140. Defendants failed to provide sufficient nursing services which directly resulted in L.J. being placed in a nursing facility and continuing to remain in a nursing facility. 141. L.J. lives in a hospital like room. 142. L.J. has not been hospitalized nor had any major medical emergencies in the past two years. 143. L.J. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting. 144. L.J. is segregated and institutionalized in a nursing facility because of Defendants’ current policies and practices that fail to provide medically necessary services in the community and force him to be institutionalized in a nursing facility in Florida.
A.G. 145. A.G. is a 17-year-old child who requires Skilled Care Services as a result of a motor
vehicle accident and a resulting traumatic brain injury when he was 15. He currently is able to speak but is dependent on a g-tube to meet his nutritional needs. Notwithstanding his abilities and his improved condition, he is institutionalized at Lakeshore Villas Nursing Home in Tampa, Florida (“Lakeshore”). 146. A.G.’s primary diagnoses is traumatic brain injury. His secondary diagnosis includes hypoxic ischemic encephalopathy. He requires skilled care services. 147. A.G. was born in Cairo, Egypt on July 28, 1995. He moved to the United States in 2010 and began attending Freedom High School in Tampa, where he was an “A” student.
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148. In 2011, A.G. was in a car accident while riding in a vehicle with his older brother. He was in a coma at Tampa General Hospital for one and a half months after the car accident, and after waking was moved to Lakeshore.
149. A.G. has a manual wheelchair but is unable to self-propel and requires an electric wheelchair, which has not been provided for him.
150. A.G. requires all of his self-care and daily living needs to be met by his caregivers. 151. Though A.G. speaks English, his primary language is Arabic, and there are no other
Arabic speakers at Lakeshore. 152. During the day, A.G. attends Gaither High School, but returns to Lakeshore in the
afternoon. 153. A.G. has not been hospitalized nor had any major medical emergencies since his transfer
to Lakeshore. 154. A.G. is a qualified person with a disability within the meaning of the ADA and Section
504. 155. A.G. meets the criteria for mental retardation or mental illness on a Level I PASRR
screen. 156. No Level II PASRR evaluation or review was ever performed. 157. Due to A.G.’s improving condition and reduction of funds paid to Lakeshore from
Medicaid, Lakeshore is denying needed services, such as physical and speech therapies. 158. A.G.’s primary language is Arabic, and contrary to Title VI of the Civil Rights Act of
1964, Lakeshore denied A.G. any language assistance with respect to its services, benefits, or encounters and as such, left A.G. further isolated and bereft of needed programs and services for any improvement. 159. A.G.. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting. 160. A.G. is segregated and institutionalized in a nursing facility because of Defendants’ current policies and practices that fail to provide medically necessary services in the community and force him to be institutionalized in a nursing facility in Florida.
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Plaintiffs At Risk of Institutionalization A.C.
161. Plaintiff A.C. is a five-year-old child who has medical complications resulting from a near drowning accident. At the time of the filing of the original complaint, A.C. lived at Lakeshore Villas Nursing Home in Tampa, Florida (“Lakeshore”). He now lives with his parents in Spring Hill, Florida.
162. Plaintiff A.C. nearly drowned as an infant and suffered significant hypoxic injury. A.C. now requires assistance with his daily life activities. He requires a ventilator and g-tube. He also has a permanent tracheotomy and is frequently subject to pneumonia. A.C. requires frequent assistance with positioning. A.C. requires at least 20 medications daily
163. A.C. is a qualified person with a disability within the meaning of the ADA and Section 504 of the Rehabilitation Act.
164. A.C. meets the criteria for mental retardation on a Level I PASRR screen. 165. Even though A.C. was determined to be mentally retarded, no Level II PASRR
evaluation or review was ever performed. 166. On September 14, 2011, a plan of care was made for A.C. which included daily physical
therapy, including passive range of motion exercises and placement in a stander at least once a day for up to one hour. Lakeshore does not provide the physical therapy. As such, A.C.’s mother attempted to do physical therapy with her son each day at Lakeshore. 167. A.C. requires speech therapy in order to improve spontaneous oral/facial movement, saliva management, and voicing for prefeeding purposes and quality of life. He was not provided speech therapy at Lakeshore. 168. While A.C. was institutionalized, his mother drove one hour from her home to Lakeshore every day. On Mondays to Fridays, she arrived at or about 9:30 a.m., and she stayed with A.C. until at or about 2:30 p.m. On weekends, she stays with A.C. in the afternoon. 169. A.C.’s mother wants to provide her son with a home a family life; to ensure that her son receives public educational benefits including a free and appropriate education, and related physical and occupational therapies; and to provide social events such as going to the park or with similarly aged peers who do not have disabilities. 170. In May 2011, A.C.’s family bought a new house to accommodate A.C. and to bring him home. This house has a bedroom and bathroom for A.C.
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171. On August 5, 2011, A.C.’s doctor signed discharge orders for A.C. in which he stated: “To be discharged with Nursing Care: 24 hours per day; 7 days per week to be provided by Home Health Agency.”
172. A.C. was scheduled to be discharged on September 14, 2011; however, on September 6, 2011, A.C.’s mother learned that A.C. had been approved for only eight (8) hours of private duty nursing care. AHCA and eQHealth also granted eight (8) additional hours of private duty nursing per week for two weeks “for caregiver training.”
173. AHCA and eQHealth denied the requested hours even though it found that A.C. “has a complicated respiratory status and would benefit [sic] being at home with PDN to limit a possible exacerbation of his respiratory status.”
174. AHCA and eQHealth concluded that eight hours of nursing care was “reasonable … to allow the caregivers to sleep.”
175. As a basis for the denial, AHCA and eQHealth cited Fla. Admin. R. 59G-1.010(166), which defines “medical necessity” and states that services must be “furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.”
176. A.C. requires more than eight (8) hours of private duty nursing each day. Without the provision of more private duty nursing hours, A.C. cannot receive appropriate care at home and his health and safety would be further compromised.
177. A.C. appealed the denial of services. Since the filing of the original complaint and after negotiations with AHCA, A.C. received the requested and prescribed hours for this current six month recertification period.
178. Without continued medically necessary services, A.C. will be forced back into institutionalization because his family will no longer be able to care for him at home.
179. A.C. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants.
180. The cost of institutionalization in a nursing facility is more than the cost of providing athome care.
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A.R. 181. A.R. is a medically fragile 10-year-old child Medicaid recipient of private duty nursing
services diagnosed with traumatic brain injury. A.R. lives with her mother in Edgewater, Florida. 182. A.R. is diagnosed with traumatic brain injury. 183. On January 24, 2010, at the age of 8 years old, A.R. was riding her scooter in front of her home and was hit by a vehicle. She was air lifted to Halifax Medical Center and it was found that she had severe brain trauma and that she was catastrophically injured. 184. She also has hydrocephalus, increased fluid in the brain, and has a surgically implanted shunt in her brain. A.R.’s brain injury requires her to have a tracheotomy tube and a gtube for feeding. She has severe seizures daily. 185. A.R. cannot walk and is non-verbal. She uses a wheelchair for mobility. 186. A.R. is a qualified person with a disability. 187. A.R.’s single mother cannot work outside the home because she provides care to A.R., her nine-year- old son who has been diagnosed with post-traumatic stress disorder after witnessing A.R.’s accident, and her 17-year-old daughter. A.R.’s mother has anxiety attacks. 188. Because of her health complications, A.R. has received Medicaid private duty nursing for approximately two years and is an ongoing Medicaid recipient of EPSDT Home Health Services. 189. A.R.’s treating physician has prescribed the medically necessary services for A.R. 190. A.R.’s condition has not improved and her need for services has remained the same. 191. Since 2010, eQHealth and AHCA has denied A.R.’s prescribed and requested services at least four times. Every certification period, eQHealth and AHCA has reduced services to A.R. 192. On August 25, 2011, A.R. received notice that eQHealth and AHCA was reducing A.R.’s prescribed nursing services from 12 hours day of private duty nursing and 12 hours a day of home health aide to just 10 hours of private duty nursing for six days and 14 hours for one day a week for the certification period of June 23, 2011 through December 19, 2011. 193. eQHealth and AHCA’s attempt to reduce A.R.’s services is not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and
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AHCA’s decision to reduce the services. This decision is not based on the individual need of A.R., is not justified by medical necessity, and does not reflect a professional judgment about A.R.’s condition. Rather, it is an administrative action made to save money. 194. Without medically necessary services, A.R. will be institutionalized because her family will no longer be able to care for A.R. at home. 195. A.R. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants. 196. The cost of institutionalization in a nursing facility is more than the cost of providing athome care.
C.V. 197. C.V. is a medically fragile eight-year-old child Medicaid recipient of private duty nursing
services diagnosed with Hurler Syndrome. C.V. lives with his legal guardians in Bristol, Florida. 198. C.V. was a foster child, but has been living with the same family since March 2005; those parents are now his legal guardians. 199. C.V.’s Hurler Syndrome causes a multitude of medical complications for him, most notably that he cannot breathe without a tracheotomy tube. His other conditions include esophageal reflux, intestinal infection due to clostridium difficile, enteritis due to adenovirus, acute myocardial infarction, asthma, acute respiratory failure, hemorrhage of the gastrointestinal tract, spinal kyphosis, other respiratory distress insufficiencies, moderate corneal clouding, and anomalies of the skull and face bones. 200. C.V.’s tracheotomy tube must be cleaned every five minutes. 201. C.V. cannot speak and requires constant supervision. 202. C.V. is a qualified person with a disability. 203. C.V.’s legal guardians both work full time jobs. Mr. Wahlquist owns and operates his business and is on call 24 hours a day, seven days a week, and works no less than 40 hours a week. In addition to caring for C.V., Ms. Wahlquist cares for her blind father and works at least 40 hours a week.
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204. Because of his health complications, C.V. has received Medicaid private duty nursing for approximately eight years and is an ongoing Medicaid recipient of EPSDT Home Health Services.
205. C.V.’s physician has prescribed the medically necessary services for C.V. 206. C.V.’s condition has not improved and his need for services has remained the same. 207. Since June 2006, AHCA has denied C.V. prescribed private duty nursing (“PDN”) care at
least 13 times at certification reviews. Almost every request made to AHCA was originally denied and only after reconsideration or the fair hearing process, have the hours been approved. 208. Since June 2006, for almost every certification period, eQHealth and AHCA has attempted to decrease services by increasing the amount of nursing hours denied. (e.g., for the certification period of March 31, 2008-September 26, 2008, eQHealth and AHCA denied 200 PDN hours; for the certification period of September 27, 2008-March 25, 2009, AHCA denied 696 PDN hours; for the certification period of March 26, 2009September 9, 2009, AHCA denied 928 PDN hours). 209. On September 16, 2011, C.V. received notice that eQHealth and AHCA were reducing the prescribed hours from 24 hours per day to 16 hours per weekday and eight hours for the whole weekend for the certification period of September 12, 2011 through March 9, 2012. This is a reduction of 8 hours of private duty nursing per weekday. 210. eQHealth and AHCA’s attempts to reduce C.V.’s services are not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA’s decision to reduce the services. This decision is not based on the individual need of C.V., is not justified by medical necessity, and does not reflect a professional judgment about C.V.’s condition. Rather, it is an administrative action made to save money. 211. Without medically necessary services, C.V. will be institutionalized because his family will no longer be able to care for C.V. at home. 212. C.V. is at risk of institutionalization in a nursing facility based upon the current regulations, rules, policies, practices, acts, and omissions of the Defendants. 213. The cost of institutionalization in a nursing facility is more than the cost of providing athome care.
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M.D. 214. M.D. is a medically fragile 14-year-old child Medicaid recipient of private duty nursing
services diagnosed with cerebral palsy and Strider Syndrome. M.D. lives with her mother her brother in Tallahassee, Florida. 215. M.D.’s Strider Syndrome causes a multitude of medical complications; most notably she has problems with breathing and has frequent seizures. Her other conditions include: esophageal spasms; inability to swallow, walk or talk; and a long history of frequent pneumonia. Because of her esophageal spasms, M.D. cannot swallow saliva and it accumulates in her throat. She must be bent over or moved to her side so the build-up can be removed. If she is not moved into the proper position, M.D. will suffocate. This experience usually sends her into a seizure and happens at least once per day. She cannot be left alone for any length of time. 216. M.D. cannot speak and requires constant supervision. 217. M.D. is a qualified person with a disability. 218. M.D.’s mother is a single mother and works approximately 40-50 hours per week in a job which she has held for over 25 years. 219. Because of her health complications, M.D. has received Medicaid private duty nursing for approximately 11 years and is an ongoing Medicaid recipient of EPSDT Home Health Services. 220. M.D.’s physician has prescribed the medically necessary services for M.D. 221. M.D.’s condition has not improved and her need for services has remained the same. 222. Since 2008, eQHealth and AHCA has denied M.D. the prescribed private duty nursing hours on five occasions. Every request M.D. made to eQHealth and AHCA was originally denied and only after reconsideration or the fair hearing process, have the hours been approved or services maintained. 223. On October 25, 2011, eQHealth and AHCA gave notice that they were reducing M.D.'s prescribed hours from 24 hours a day, seven days a week to 22 hours a day, seven days a week for the certification period of October 12, 2011 through April 11, 2012. eQHealth and AHCA’s attempts to reduce M.D.’s services are not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA’s decision to reduce the services. This decision is not based on the individual need of
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M.D., is not justified by medical necessity, and does not reflect a professional judgment about M.D.’s condition. Rather, it is an administrative action made to save money. 224. Without medically necessary services, M.D. will be institutionalized because her family will no longer be able to care for her at home. M.D. is at risk of institutionalization in a nursing facility based upon the current regulations, rules, policies, practices, acts, and omissions of the Defendants. 225. The cost of institutionalization in a nursing facility is more than the cost of providing athome care.
C.M. 226. C.M. is a medically fragile four-year-old child Medicaid recipient of private duty nursing
services diagnosed with chromosome deletion syndrome, chronic respiratory failure and severe cerebral palsy. C.M. lives with his mother and his father in Tallahassee, Florida. 227. C.M.’s diagnoses cause a multitude of medical complications for him; most notably he requires constant use of a ventilator and oxygen concentrator. He also requires a tracheotomy tube and g-tube. His other conditions include epilepsy, dual sensory impairment, developmental delay, hypotonia, and hypothyroidism. 228. C.M.’s severe respiratory problems require that his tracheotomy tube must be cleaned every four hours; however, constant supervision is needed as it disconnects frequently. C.M. cannot speak and is not ambulatory. C.M. is currently taking over 25 medications which need to be administered in various dosages every two hours. 229. C.M. is a qualified person with a disability. 230. C.M.’s father works a full-time job. C.M.’s mother is an educated professional and was recently hired as a first grade teacher. 231. Because of his health complications, C.M. has received Medicaid private duty nursing for almost four years and is an ongoing Medicaid recipient of EPSDT Home Health Services. 232. C.M.’s treating physician has prescribed the medically necessary services for C.M. 233. C.M.’s condition has not improved and his need for services has remained the same. 234. Since 2011, eQHealth and AHCA has denied C.M.’s requested and prescribed nursing hours at least once. 235. On July 14, 2011, eQHealth and AHCA gave notice that they were reducing C.M.’s prescribed hours from 12 hours a day to eight hours a day, Tuesday through Sunday, and
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12 hours on Monday for the certification period of July 1, 2011 through December 27, 2011. 236. eQHealth and AHCA’s attempts to reduce C.M.’s services are not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA’s decision to reduce the services. This decision is not based on the individual need of C.M., is not justified by medical necessity, and does not reflect a professional judgment about C.M.’s condition. Rather, it is an administrative action made to save money. 237. Without medically necessary services, C.M. will be institutionalized because his family will no longer be able to care for C.M. at home. 238. C.M. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants. 239. The cost of institutionalization in a nursing facility is more than the cost of providing athome care.
B.M. 240. B.M. is a medically fragile five-year-old child Medicaid recipient of private duty nursing
services diagnosed with cerebral palsy and developmental delay. B.M. lives with his mother and his father in Fountain, Florida. 241. B.M.’s Cerebral Palsy causes a multitude of medical complications, most notably he is dependent on a tracheotomy. His other conditions include periods of apnea, deafness, tracheal stricture and immobility. 242. B.M.’s tracheotomy tube must be suctioned out seven times a day and changed once a week. His apnea requires monitoring and supplemental oxygen. 243. B.M. is a qualified person with a disability. 244. B.M.’s father has a full-time job and is also on-call 24/7. B.M.’s mother has Lyme Disease, which prevents her from working; however, she provides B.M. with overnight care. The family’s location is at least three hours away from the nearest hospital. 245. Because of his health complications, B.M. has received Medicaid private duty nursing for approximately five years and is an ongoing Medicaid recipient of EPSDT Home Health Services. 246. B.M.’s physician has prescribed the medically necessary services for B.M.
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247. B.M.’s condition has not improved and his need for services has remained the same. 248. Since 2011, eQHealth and AHCA have denied B.M.’s requested and prescribed nursing
hours at least once. 249. On August 3, 2011, eQHealth and AHCA gave notice that they were reducing B.M.’s
prescribed hours from nine hours a day, Monday through Friday, and ten hours a day on the weekends to eight hours a day, Monday through Friday, and no hours on the weekends for the certification period of July 31, 2011 through January 7, 2012. 250. eQHealth and AHCA’s attempt to reduce B.M.’s services is not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA’s decision to reduce the services. This decision is not based on the individual need of B.M., is not justified by medical necessity, and does not reflect a professional judgment about B.M.’s condition. Rather, it is an administrative action made to save money. 251. Without medically necessary services, B.M. will be institutionalized because his family will no longer be able to care for B.M. at home. 252. B.M. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants. 253. The cost of institutionalization in a nursing facility is more than the cost of providing athome care.
T.F. 254. T.F. is a medically fragile 18-year-old child Medicaid recipient of private duty nursing
services diagnosed with cerebral palsy, mental retardation, and chronic lung disease. T.F. lives with his legal guardians and his sister in Miami, Florida. 255. T.F. was born with a variety of medical complications. T.F. has diagnoses of cerebral palsy, mental retardation, chronic lung disease, kyphoscoliosis, microcephalus, and gastroesophageal reflux. He has developmental delay, a seizure disorder, and cortical blindness. He requires the constant use of a ventilator and oxygen. T.F. has a g-tube and a tracheotomy tube. 256. T.F.’s ventilator must be checked hourly for proper function and deliverance of prescribed settings. Additionally, T.F. cannot be left alone because a disconnection from his ventilator will result in death. T.F. is unable to speak.
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257. T.F. also requires frequent mechanical suctioning to help remove any obstruction from his airway. Due to T.F.’s involuntary movements, at least two people are required for suctioning. This procedure also stimulates T.F.’s gag reflex causing him to become distressed, oxygen saturation decreases, intense coughing attacks occur, increased heart rate and respiration occur.
258. T.F. is a qualified person with a disability. 259. T.F.’s mother is studying for her Certified Personal Accountant exam and caring for
another child with a chronic gastrointestinal medical condition. T.F.’s father works overtime to financially provide for his family. 260. T.F.’s treating physician has prescribed the medically necessary services for T.F. 261. T.F.’s condition has not improved and his need for services has remained the same. 262. eQHealth and AHCA reduced T.F’s requested and prescribed nursing hours from nine hours per weekday, eight hours on Saturday and no hours on Sunday to eight hours per weekday with no hours on the weekends. This is a reduction from 1,370 private duty nursing hours to 688 hours for the total certification period. 263. On July 25, 2011, eQHealth and AHCA gave notice that they were reducing T.F.’s prescribed services from a Registered Nurse to a Licensed Practical Nurse for the certification period of July 3, 2011 through December 24, 2011. 264. eQHealth and AHCA’s attempt to reduce T.F.’s services is not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA’s decision to reduce the services. This decision is not based on the individual need of T.F., is not justified by medical necessity, and does not reflect a professional judgment about T.F.’s condition. Rather, it is an administrative action made to save money. 265. Without medically necessary services, T.F. will be institutionalized and his family will no longer be able to care for T.F. at home. 266. T.F. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants. 267. The cost of institutionalization in a nursing facility is more than the cost of providing athome care.
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GENERAL ALLEGATIONS 268. The Individual Plaintiffs, and the Plaintiff Class are individuals with physical and mental
impairments that substantially limit one or more major life activity, such as self-care and interaction with others. They also have a record of such impairments and are regarded by Defendants as having such impairments. 269. The Plaintiff Class members are qualified persons with a disability within the meaning of the ADA and Section 504. 270. Plaintiffs and Class members are able to, and desire to, live in the community with the appropriate services and supports. 271. It is the policy of the State of Florida to prevent the separation of children from their families and to reunify families who have had children placed in foster homes or institutions. See § 409.145, Fla. Stat. 272. Defendants have available community-based services for children currently institutionalized in nursing facilities, including residential assistance services, habilitation services, and private duty nursing services, which would enable Plaintiffs and Class members to live and continue to live in their homes and in the community. 273. Named Plaintiffs have been determined by healthcare professionals to be appropriate for community based services. 274. The provision of appropriate services and supports in the community is a reasonable accommodation for the Plaintiffs and Class members. 275. Nursing facilities are not integrated or appropriate settings for Plaintiffs and Class members. 276. The Defendants have developed, implemented, and administered its community services programs in a manner that systematically or effectively denies children residing in nursing facilities access to those community based programs. 277. Further, the Defendants have developed regulations, rules, customs, practices, policies, acts, and/or omissions of reducing the prescribed medically necessary services to medically fragile children to the point that the Plaintiffs’ caregivers cannot provide safe and appropriate care to the Plaintiffs and Plaintiff class members. (e.g., Handbook at 2-17 & 2-21; & Rule 59G-1.010(166)(a), Fla. Admin. Code). For example:
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a. “Florida Medicaid does not reimburse private duty nursing services provided solely for the convenience of the child, the parents or the caregiver.” Handbook at 2-18. This restriction is based on the regulatory definition of “medically necessary,” found at Rule 59G-1.010(166)(a), Fla. Admin. Code, which states, in part, that medically necessary services must “[b]e furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.” Defendants adopted and have applied this policy without the authority of any similar federal Medicaid policy, rule or statute, giving Defendants a basis to deny private duty nursing service hours that have been prescribed by Plaintiff and Plaintiff Class members’ treating physicians. eQHealth and AHCA’s application of this policy has forced and is forcing parents and caregivers to institutionalize their children.
b. “Private duty nursing services will be decreased over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or as the child’s condition improves.” Handbook at 2-21. Defendants adopted and have applied this policy without the authority of any similar federal Medicaid policy, rule or statute, giving Defendants a basis to deny private duty nursing services that have been prescribed by Plaintiff and Plaintiff Class members’ treating physicians. Plaintiff and Plaintiff Class members’ conditions will not improve over time, yet eQHealth and AHCA have routinely denied services even where Plaintiff and Plaintiff Class members’ needs have not decreased. Instead, Defendants seek to force parents to provide life sustaining, medically necessary care, usually performed by licensed and trained nurses, to their own children.
c. Parents and caregivers of Plaintiffs and Plaintiff class members are not capable of safely providing the required care because they are not medical professionals and/or are not available to provide the services at the required level or duration. Plaintiff and Plaintiff Class members have been placed in nursing homes and are at risk of being placed in a nursing home because Defendants have unlawfully shifted the burden for providing skilled nursing services to the parents or caregivers of children who are not skilled nurses. In contrast, there are not similar
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regulations, rules, customs, practices, policies, acts, and omissions utilized to deny benefits and to unnecessarily institutionalize and segregate similarly situated adults with disabilities. Defendants’ implementation of a definition of “medically necessary” that takes into account the mere availability of caregivers, regardless of their lack of medical training or qualification, is unreasonable and violates Federal law. d. eQHealth and AHCA have a pattern and practice of denying or reducing services at each certification period without regard to the child’s condition. 278. On June 25, 2012, AHCA adopted an updated version of the Home Health Services Coverage and Limitations Handbook. Agency for Health Care Administration, Home Health Services Coverage and Limitations Handbook, 2011, incorporated by reference in Rule 59G-4.001, Fla. Admin. Code.. The Updates to the Handbook further Defendants’ development of regulations, rules, customs, practices, policies, acts, and/or omissions of reducing services and creating barriers to obtain the prescribed medically necessary services for medically fragile children and children in need of skilled nursing services, and leading to their institutionalization. a. The updates to the Handbook further promote institutionalization by restricting private duty nursing services only to those children who “are unable to attend a Pediatric Prescribed Extended Care (PPEC) Center.”1 Handbook at 2-19. The Defendants explicitly require a child who is medically able to attend a PPEC to receive PPEC services instead of private duty nursing services. See Handbook at 2-20 (“A recipient who is medically able to attend a prescribed pediatric extended care (PPEC) center and whose needs can be met by the PPEC shall be provided with PPEC services instead of private duty nursing services.”). These updates to the Handbook will force children who would otherwise remain in their homes and integrated communities to be placed in a segregated facility entirely composed of other medically fragile children. Further, if an attending physician of a child
1 A PPEC is a “non-residential facility” that provides “short, long-term, or intermittent medical care” to medically fragile children. Agency for Health Care Administration, Prescribed Pediatric Extended Care Services Coverage and Limitations Handbook, 2007, at 1-2, incorporated by reference in Rule 59G-4.260, Fla. Admin. Code (emphasis added).
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Medicaid recipient finds that it is medical necessary for a child to receive PDN services at home, then the agency cannot, on its own, determine that it is medically appropriate for the child to be in a PPEC. See Moore ex rel. Moore v. Medows, 324 Fed. Appx. 773, 774 (11th Cir. 2009) (The patient’s physician has a role in determining what treatment is medically necessary, and for developing the plan of care for the Medicaid recipient). b. The updates to the Handbook also reduce the period during which Plaintiffs can appeal a denial of services from ten to five days. See Handbook at 2-33 (“A reconsideration review of the denial decision must be requested via the Medicaid QIO internet system within five business days of the date of the final denial or modified approval determination.”). There can be no justification for the reduction of Medicaid recipients’ review rights other than to make it more difficult to retain services. c. Further, the updates to the Handbook expand the definition of caregiver to include “family member who attends to the needs of a child.” Handbook at 1-5. The physical availability of siblings, other children in the home, grandparents, and other family members of the Medicaid recipients, will play a role in the certification process. As discussed extensively above, reliance on parents and caregivers for medical services is improper and to expand this definition to include any family member is also improper and unreasonable as it could include such persons even less equipped (children and grandparents) to handle the needs of medically fragile children. 279. The overall costs to institutionalize all of the Plaintiffs and Plaintiff class members in nursing facilities is more than the overall costs of providing at home care. 280. Defendants have and continue to make cuts in Plaintiffs’ and Class members’ services which have forced them to be unnecessary institutionalized in nursing facilities in order to receive the medically necessary services or have placed them at risk of unnecessary institutionalization in nursing facilities. 281. The Defendants have failed to operate the PASSR program in accordance with federal law, resulting in T.H., L.J., and members of the sub-class of institutionalized Plaintiffs
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residing in nursing homes not receiving the specialized services to which they are entitled. 282. Most of the approximately 250 Plaintiff Class members with mental illness or mental retardation who are confined in nursing facilities should have been diverted to a more integrated community placement if their PASRR reviews had been properly performed. 283. Of the approximately 250 Plaintiff Class members who remain in nursing facilities, most of them could be appropriately transitioned to the community with appropriate supports and services. 284. The overwhelming majority of the sub-class of institutionalized Plaintiffs would, if properly assessed during the PASRR review, be identified as needing and qualifying for specialized services. 285. The Defendants’ regulations, rules, customs, practices, policies, acts, and omissions of reducing the prescribed medically necessary services to medically fragile children below what the children require subjects them to and favors unnecessary institutionalization and is discriminatory under Olmstead and its progeny. 286. The Defendants’ actions were taken under the color of law and the Defendants knew or should have known that the policies, practices, acts, and conditions alleged herein has resulted or would result in the unnecessary institutionalization of the Plaintiffs and Plaintiff class members in nursing facilities. 287. As a result of the Defendants’ rules, regulations, policies, practices, customs, actions, and inactions, the Plaintiffs and the Plaintiff Class members remain unnecessarily institutionalized or are at risk of unnecessary institutionalization in segregated nursing facilities.
CLASS ACTION ALLEGATIONS 288. Plaintiffs seek to bring this case as a class action, pursuant to Fed. R. Civ. P. 23(a) &
(b)(2), and S.D. Loc. R. 23.1(b), on behalf of themselves and for similarly situated Florida children (birth through 21) who are Medicaid recipients and who are institutionalized or at risk of institutionalization. 289. The first proposed sub-class consists of all children who are Medicaid recipients that are currently institutionalized in a nursing home. Such children are either medically fragile,
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in need of skilled nursing care or intermediate care who are able and want to live in the community with appropriate supports and services, 290. The second proposed sub-class consists of all children who are Medicaid recipients that are medically fragile and are at risk of unnecessary institutionalization in nursing facilities or Pediatric Prescribed Extended Care facilities due to the denial of medically necessary private duty nursing services.
NUMEROSITY 291. The proposed Class of medically fragile child Medicaid recipients is so numerous that
joinder of all members is impractical. On information and belief, more than 3,500 medically fragile child Medicaid recipients fall within the definition of the class.
Institutionalized Sub-Class 292. The proposed sub-class of institutionalized Plaintiffs is so numerous that joinder of all
members is impractical. On information and belief, approximately 250 children, who are medically fragile, or in need of skilled nursing or intermediate care, are unnecessarily institutionalized in Florida nursing facilities. Although the exact number is known to the Defendants and is ascertainable, the Plaintiffs do not know the exact number of individuals in the class.
At-Risk Sub-Class 293. The proposed sub-class of at-risk Plaintiffs is so numerous that joinder of all members is
impractical. On information and belief, approximately 3,300 medically fragile children who receive private duty nursing fall within the definition of the class.
COMMON QUESTIONS OF LAW AND FACT 294. There are questions of law and fact common to the class including:
a. Whether Defendants violated Plaintiffs’ and class members’ rights under the ADA, in specific: i. Whether the Defendants’ uniform practices and policies have violated the ADA by segregating members of the sub-class of institutionalized Plaintiffs in nursing facilities and by failing to provide medically necessary services in an integrated community setting; and ii. Whether the Defendants’ uniform practices and policies have violated the ADA by placing members of the sub-class of at-risk Plaintiffs at risk of
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being institutionalized in nursing homes or daytime institutionalization in Pediatric Prescribed Extended Care facilities by the denial of medically necessary private duty nursing services; b. Whether Defendants violated Plaintiffs’ and class members’ rights under Section 504 of the Rehabilitation Act, in specific: i. Whether the Defendants’ uniform practices and policies have violated § 504 of the Rehabilitation Act by segregating members of the sub-class of institutionalized Plaintiffs in nursing facilities and by failing to provide medically necessary services in an integrated community setting; and ii. Whether the Defendants’ uniform practices and policies have violated §504 of the Rehabilitation Act by placing members of the at-risk sub-class of Plaintiffs at risk of being institutionalized in nursing homes or daytime institutionalization in Pediatric Prescribed Extended Care facilities by the denial of medically necessary private duty nursing services; c. Whether Defendants violated Plaintiffs’ and Plaintiff Class members’ right under the Medicaid Act, in specific: i. Whether the Defendants violated the institutionalized sub-class Plaintiffs’ rights under the Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. §1396r, by failing to perform adequate PASRR reviews; ii. Whether the Defendants’ uniform practices and policies have violated Medicaid’s EPSDT and reasonable promptness requirements by failing to provide Plaintiffs and members of Plaintiff Class with medically necessary private duty nursing services; d. Whether Plaintiffs and class members are entitled to declaratory and injunctive relief by virtue of Defendants’ violations of law.
TYPICALITY 295. The Plaintiffs’ claims are typical of the claims of the Plaintiff Class members because
they are based on the same factual, legal and remedial theories as the claims of the Plaintiff Class, who qualify for supports and services to live in the community, but have been deprived or are being deprived such supports and services, and have been forced to be segregated in nursing facilities or are at risk of being segregated.
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296. The Plaintiff Class members are qualified persons with a disability under the ADA and Section 504 of the Rehabilitation Act. ADEQUACY OF REPRESENTATION
297. The Plaintiffs can and will fairly and adequately represent and protect the interests of the Plaintiff Class members because the Plaintiffs are similarly situated with, and have suffered similar injuries as, the members of the class the Plaintiffs seek to represent.
298. The Plaintiffs have no interests that conflict with or are antagonistic to the interests of the entire Plaintiff Class.
299. The Plaintiffs have retained attorneys who are skilled and knowledgeable about civil rights litigation, Medicaid law, the practice and procedures in federal courts and management of class action litigation, and who will vigorously prosecute this litigation. COUNT 1 Title II of ADA (ALL DEFENDANTS)
300. The Plaintiffs repeat the allegations in paragraphs 1 through 299 of the Complaint as if fully set forth herein.
301. Count 1 is a claim under Title II of the ADA, 42 U.S.C. §§ 12131-12165. 302. Plaintiffs are qualified individuals with disabilities within the meaning of the ADA. 303. AHCA, FDOH, and CMS are public entities, and eQHealth is an instrumentality of a
state within the meaning of the ADA. 304. The ADA requires that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 305. Further, the regulations implementing the ADA 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). 306. Public entities “shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. § 35.130(b)(8).
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307. As public entities and instrumentalities of the state, Defendants are prohibited from providing “a qualified individual with a disability with an aide, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided others." 28 CFR 35.130(b)(1)(iii)
308. Defendants have discriminated against Plaintiffs and Plaintiff Class members in violation of the ADA on the basis of their disabilities by denying Plaintiffs and Plaintiff Class members medically necessary services in the community as a reasonable accommodation, resulting in Plaintiffs and Plaintiff Class members being unnecessarily institutionalized or at risk of unnecessary institutionalization in nursing facilities.
309. The Defendants have discriminated against the Plaintiffs and the Plaintiff Class members in violation of the ADA on the basis of their disabilities by: a. Segregating or placing the Plaintiffs and Plaintiff class members at risk of segregation and by failing to provide Plaintiffs and Plaintiff class members with appropriate community based services; b. Denying the Plaintiffs and the Plaintiff Class members medically necessary services resulting in the Plaintiffs’ and Plaintiff Class members’ institutionalization or placing them at risk of institutionalization; c. Denying the Plaintiffs and the Plaintiff Class members access to existing community programs and by requiring them to be confined in or at risk of being confined in segregated institutional settings in order to receive the care they require; d. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class have been inappropriately admitted to nursing facilities; e. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class are not provided the necessary specialized services to which they are entitled while residing in nursing facilities. This violation entitles Plaintiffs and Plaintiff Class members to injunctive and declaratory relief under the ADA.
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SECOND AMENDED CONSOLIDATED COMPLAINT
310. As a result of the Defendants’ ongoing violations, the Plaintiffs and the Plaintiff Class members continue to be harmed. COUNT 2 Section 504 of the Rehabilitation Act (ALL DEFENDANTS)
311. The Plaintiffs repeat the allegations in paragraphs 1 through 299 of the Complaint as if fully set forth herein.
312. Count 2 is a claim under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §. 794(a).
313. Plaintiffs are handicapped individuals under the Rehabilitation Act and are qualified to receive medically necessary services through Medicaid.
314. Defendants Dudek, Farmer and Wiggins are directors of agencies that receive federal financial assistance.
315. eQHealth receives Federal financial assistance. 316. The Defendants have discriminated against the Plaintiffs and Plaintiff Class members in
violation of Section 504 of the Rehabilitation Act on the basis of their disabilities by denying the Plaintiffs and Plaintiff Class members medically necessary services, as a reasonable accommodation, resulting in the Plaintiffs and Plaintiff Class members being unnecessarily institutionalized or at risk of unnecessary institutionalization in nursing facilities. 317. The Defendants have discriminated against the Plaintiffs and the Plaintiff Class members in violation of Section 504 of the Rehabilitation Act on the basis of their disabilities by: a. Segregating or placing the Plaintiffs and Plaintiff class members at risk of segregation
and by failing to provide Plaintiffs and Plaintiff class members with the appropriate community based services; b. Denying the Plaintiffs and the Plaintiff Class members medically necessary services resulting in the Plaintiffs’ and the Plaintiff Class members’ institutionalization or placing them at risk of institutionalization; c. Denying the Plaintiffs and the Plaintiff Class members access to existing community programs and by requiring them to be confined in or at risk of being confined in segregated institutional settings in order to receive the care they require;
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SECOND AMENDED CONSOLIDATED COMPLAINT
d. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class of Plaintiffs have been inappropriately admitted to nursing facilities;
e. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class of Plaintiffs are not provided the necessary specialized services to which they are entitled while residing in nursing facilities.
This violation entitles Plaintiffs and Plaintiff Class members to relief under Section 504 of the Rehabilitation Act. 318. As a result of the Defendants’ ongoing violations, the Plaintiffs and the Plaintiff Class members continue to be harmed.
COUNT 3 42 U.S.C. § 1983 – United States Medicaid Act – EPSDT Violations
(ALL DEFENDANTS) 319. The Plaintiffs repeat the allegations in paragraphs 1 through 299of the Complaint as if
fully set forth herein. 320. Count 3 is a 42 U.S.C. § 1983 claim against the Defendants for violation of Plaintiff’s
rights under the EPSDT provisions of the United States Medicaid Act, 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4)(B); and 42 U.S.C. § 1396d(r). 321. AHCA’s definition of “medical necessity”, see Rule 59G-1.010(166) (incorporated through the Handbook), is preempted by federal law and is invalid pursuant to the Supremacy Clause of the United States Constitution. See U.S. Const. Art VI, § 2. 322. Defendants’ regulations, rules, policies, procedures, customs and practices for providing private duty nursing, below the level that is medically necessary, violate the EPSDT provisions of the federal Medicaid statute at 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4)(B); and 42 U.S.C. § 1396d(r). This violation entitles Plaintiffs to relief under 42 U.S.C. § 1983. 323. As a result of the Defendants’ violations, the Plaintiffs and Plaintiff class have been damaged.
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SECOND AMENDED CONSOLIDATED COMPLAINT
COUNT 4 42 U.S.C. § 1983 – United States Medicaid Act – Reasonable Promptness
(ALL DEFENDANTS) 324. The Plaintiffs repeat the allegations in paragraphs 1 through 299 of the Complaint as if
fully set forth herein. 325. Count 4 is a claim under 42 U.S.C. § 1983 against the Defendants for violation of
Plaintiff’s rights under the Reasonable Promptness provision of the United States Medicaid Act, 42 U.S.C. § 1396a(a)(8). 326. Defendants’ regulations, rules, policies, customs, and practices, which limit the provision of medically necessary community-based services and supports, as well as medically necessary specialized services, result in extended delays and outright denials of medically necessary care to the Plaintiffs and members of the Plaintiff class. 327. The residential support, habilitation and other specialized services that Plaintiffs and the Plaintiff Class need are not provided with reasonable promptness, in violation of 42 U.S.C. § 1396a(a)(8). 328. As a result of the Defendants’ violations, the Plaintiffs and Plaintiff class have been damaged.
COUNT 5 42 U.S.C. § 1983 – The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r (DUDEK, FARMER, WIGGINS) 329. The institutionalized Plaintiffs reallege paragraphs 1 through 299 of the Complaint as if fully set forth herein. 330. Count 5 is a § 1983 claim for the Defendants’ violation of The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r. 331. Under federal Medicaid law, Florida’s CMAT is required to screen patients under the age of 21 for mental illness and mental retardation, determine whether placement in a nursing facility is appropriate and if specialized services are needed, and to provide the specialized services that are necessary. See 42 U.S.C. § 1396r(e)(7). 332. The Defendants’ PASRR program does not adequately screen applicants to nursing facilities to determine if they have a mental illness or mental retardation. As a result, many children with a mental illness or mental retardation that can be served in the
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SECOND AMENDED CONSOLIDATED COMPLAINT
community are wrongfully admitted to nursing facilities and are never provided a Level II PASRR evaluation and determination, as required by federal law. 42 C.F.R. § 483.112. 333. The Defendants’ PASRR program does not adequately or appropriately assess whether a child with mental illness or mental retardation who needs an institutional level of services can be served in another specialized facility, as required by federal law. 42 C.F.R. § 483.118. 334. The Defendants’ PASRR program does not adequately or appropriately assess whether a child with mental illness or mental retardation needs any specialized habilitative services and, if so, what those specific needs and services are. 42 C.F.R. § 483.112(b). 335. As a result of the Defendants’ ongoing violations, the institutionalized Plaintiffs and members of the sub-class of institutionalized Plaintiffs continue to be harmed.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: (1) Declare that the Defendants violated the Americans With Disabilities Act when they refused to provide medically necessary services, and reasonable accommodations to the at risk Plaintiffs and members of the at-risk Plaintiff sub-class, resulting in the at risk Plaintiffs and members of the at-risk Plaintiff sub-class being at risk of unnecessary institutionalization in nursing facilities; (2) Declare that the Defendants violated the Americans with Disabilities Act when they segregated the institutionalized Plaintiffs and members of the institutionalized Plaintiff sub-class and failed to provide them with integrated community services; (3) Declare that the Defendants violated Section 504 of the Rehabilitation Act of 1973 when they refused to provide medically necessary services and reasonable accommodations to the at risk Plaintiffs and members of the at risk Plaintiff sub-class, resulting in the at risk Plaintiffs and members of the at-risk Plaintiff sub-class being at risk of unnecessary institutionalization in nursing facilities; (4) Declare that the Defendants violated Section 504 of the Rehabilitation Act of 1973 when they segregated the institutionalized Plaintiffs and members of the institutionalized subclass and failed to provide integrated community services; (5) Declare that the Defendants have violated the Medicaid Act: 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4)(B); 42 U.S.C. § 1396d(r); and 42 U.S.C. 1396a(a)(8);
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(6) Declare Defendants deprived the institutionalized Plaintiffs and members of the institutionalized sub-class of their rights to be properly screened under the Nursing Home Reform Amendments to the Medicaid Act and of specialized services once they were placed in a nursing facility;
(7) Order the Defendants to provide private duty nursing services that will allow the Plaintiffs and Plaintiff class members to live in their homes and communities;
(8) Order the Defendants to cease the practice of denying or reducing Plaintiff and Plaintiff Class members’ services at recertification where there has been no change in the medical necessity of such services;
(9) Enter a permanent injunction requiring the Defendants to stop segregation of medically fragile children who are unnecessarily institutionalized in nursing homes and to provide integrated community services;
(10) Enter a permanent injunction requiring the Defendants to perform adequate Level I and Level II PASSR reviews to institutionalized children and to provide such services as determined by the Level II screening;
(11) Award compensatory services to the Plaintiffs and the Plaintiff Class members to ameliorate or remediate the conditions resulting from the Defendants’ failure to provide the medically necessary services;
(12) Award attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; 42 U.S.C. § 12133; and 29 U.S.C. § 794a; and
(13) Grant such other and further relief as this court may deem just and proper.

Respectfully Submitted on this 15th day of August, 2012,

Law Offices of Matthew W. Dietz, P.L.
2990 SW 35th Ave. Miami, FL 33133 Phone: (305) 669-2822 Fax: (305) 442-4181 Email: Matthewdietz@usdisabilitylaw.com Lead Trial Attorney
By: s/ Matthew W. Dietz Matthew W. Dietz Fla. Bar No. 84905

FSU College of Law Public Interest Law Center
425 W. Jefferson Street Tallahassee, FL 32306 Phone: (850) 644-9928/F: (850) 644-0879 Email: Pannino@law.fsu.edu
By: s/ Paolo G. Annino Paolo G. Annino Florida Bar No. 0379166

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The North Florida Center For Equal Justice, Inc. 2121 Delta Blvd. Phone: (850) 701-3980 Fax: (850) 701-3985 Co-counsel By: s/ Jamie Ito
Jamie Ito Fla. Bar No. 13553 jamie@nfcfej.org By: s/ Edward J. Grunewald Edward J. Grunewald Fla. Bar No. 612472 egrunewald@nfcfej.org By: s/ Jill B. Zaborske Jill B. Zaborske Fla. Bar No. 621005 jill@nfcfej.org Tallahassee, FL 32303
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SECOND AMENDED CONSOLIDATED COMPLAINT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true and correct copies of the foregoing were served upon the following via CM/ECF and U.S. Mail on this 15th day of August, 2012.

Stuart F. Williams General Counsel Andrew T. Sheeran Assistant General Counsel Beverly H. Smith Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, MS #3 Tallahassee, FL 32308
Jennifer A. Tschetter General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Lisa M. Raleigh Special Counsel Florida Bar No. 0858498 PL-01, The Capitol Tallahassee, FL 32399-1050 Ph. (850) 414-3300 Fax (850) 414-9650 Email: lisa.raleigh@gmail.com

BY: s/ Matthew Dietz Matthew W. Dietz
Lisa Scoles Harry Osborne Thomas Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street Suite 200 Tallahassee, FL 32301

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Plaintiffs’
Exhibit A

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 Case 0:12-cv-60460-RSR Document 46 Entered on FLSD Docket 07/17/2012 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-60460-CIV-ZLOCH

A.R. et al.,

Plaintiffs, vs.

O R D E R

ELIZABETH DUDEK, et al.,

Defendants. /

THIS MATTER is before the Court upon Defendant eQHealth’s

Motion To Dismiss Plaintiffs’ Amended Consolidated Complaint (DE

30), Defendant eQHealth’s Request For Oral Argument On eQHealth’s

Motion To Dismiss Plaintiffs’ Amended Consolidated Complaint (DE

31), and Defendants Elizabeth Dudek, Harry Frank Farmer, Jr., and

Kristina Wiggins’ Joint Motion To Dismiss (DE 32). The Court has

carefully reviewed said Motions, the entire court file and is

otherwise fully advised in the premises.

The Court notes that the legal issues raised by the

aforementioned Motions to Dismiss (DE Nos. 30 & 32) are more

properly addressed in Motions For Summary Judgment, when discovery

may present the Court with a full record upon which it may address

and decide said issues.

Accordingly, after due consideration, it is

ORDERED AND ADJUDGED as follows:

1. Defendant eQHealth’s Motion To Dismiss Plaintiffs’ Amended

Consolidated Complaint (DE 30) and Defendants Elizabeth Dudek,

Case 0:12-cv-60460-RSR Document 46 Entered on FLSD Docket 07/17/2012 Page 2 of 2

Harry Frank Farmer, Jr., and Kristina Wiggins’ Joint Motion To

Dismiss (DE 32) be and the same are hereby DENIED; and

2. Defendant eQHealth’s Request For Oral Argument On

eQHealth’s Motion To Dismiss Plaintiffs’ Amended Consolidated

Complaint (DE 31) be and the same is hereby DENIED as moot.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward

County, Florida, this 17th

day of July, 2012.

Copies furnished: All Counsel Of Record

WILLIAM J. ZLOCH United States District Judge

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 Case 0:12-cv-60460-WJZ Document 175 Entered on FLSD Docket 08/06/2013 Page 1 of 19
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 12-60460-CIV-ROSENBAUM
A.R., by and through her next friend, Susan Root, et al.,
Plaintiffs, v. ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al.,
Defendants. ________________________________________/
ORDER This matter comes before the Court upon Defendants’ Motion to Dismiss, Or, Alternatively, for Dismissal in Part, For Lack of Subject Matter Jurisdiction Due to Mootness (“Motion to Dismiss”). [D.E. 117, 119]. The Court has reviewed the Motion, the filings supporting and opposing the Motion, and the other materials in the case file. For the reasons that follow, the Motion to Dismiss is denied.
BACKGROUND A. Procedural Background and Nature of Claims
Plaintiffs T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., and B.M.1 are children who have been diagnosed as “medically fragile” and who qualify for services through Florida’s Medicaid
1Plaintiff T.F. passed away on April 6, 2013. See D.E. 147.

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program.2 Plaintiffs T.H., L.J., and A.G., are children who have been placed in nursing facilities,3
while Plaintiffs A.C., A.R., C.V., M.D., C.M., and B.M. are children who live at home and claim
that they are at risk of unnecessary institutionalization at nursing facilities. See D.E. 62 at ¶¶ 4, 14.
On March 13, 2012, Plaintiffs filed a class-action lawsuit against Defendants Elizabeth
Dudek (“Dudek”), in her official capacity as Secretary for the Agency for Health Care Administration (“AHCA”);4 Harry Frank Farmer, Jr. (“Farmer”), in his official capacity as the State
Surgeon General and Secretary of the Florida Department of Health (“FDOH”); Kristina Wiggins
(“Wiggins”), in her official capacity as Deputy Secretary of the FDOH and Director of Children’s Medical Services (“CMS”); and eQHealth Solutions, Inc. (“eQHealth”).5 On August 23, 2013, Plaintiffs filed their Second Amended Complaint, which is the operative pleading in this case.6
2A medically fragile child is one who is “medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependent, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.” See D.E. 62 at ¶ 2 (citing Rule 59G-1.010(165), Fla. Admin. Code).
3A nursing facility is an institution that primarily provides (a) skilled nursing care and related services for residents who require medical or nursing care; (b) rehabilitation services for the rehabilitation of injured, disabled, or sick persons; and (c) on a regular basis, health-related care and services to individuals who, because of their mental or physical condition, require care and services (above the level of room and board) which can be made available to them only through institutional facilities. See 42 U.S.C. 1396r(a)(1)(A-C).
4The AHCA is designated as “the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act.” See Florida Statute § 409.902.
5eQHealth makes medical-necessity determinations on behalf of AHCA and acts as a witness for AHCA in all fair-hearing proceedings resulting from decisions and actions made by eQHealth. See. D.E. 62 at ¶ 72; D.E. 64 at ¶ 72.
6For ease of reference, this Order refers to the Second Amended Complaint simply as “Complaint.”
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The Complaint alleges that Defendants are denying Plaintiffs Medicaid services, including private-duty nursing (“PDN”) services, due to the adoption of “uniform policies, practices, and regulations to reduce private duty nursing services.” See D.E. 62 at ¶¶ 18-19. Plaintiffs further claim that Defendants “failed and continue to fail to provide medically necessary services in home and community settings to Medicaid recipient children in Florida.” Id. at ¶ 20. Based on these allegations, Plaintiffs ask the Court to declare that Defendants’ policies, regulations, actions, and omissions are unnecessarily institutionalizing Plaintiffs and Plaintiff class members or putting Plaintiffs at risk of being placed into segregated facilities, in violation of Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12131-12165 (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504"); the Medicaid Act, 42 U.S.C. §§ 1396-1396v (“Medicaid”); The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r (“NHRA”); Early and Periodic Screening, Diagnostic, and Treatment Services, 42 U.S.C. § 1396d(r) (“EPSDT Provisions”); and 42 U.S.C. § 1983. Id. at 21. Plaintiffs also seek a permanent injunction requiring Defendants to “stop segregating medically fragile and medically complex children in nursing facilities and to provide [Plaintiffs] medically necessary Medicaid services in the most integrated setting appropriate in the community and provide for their medically necessary services and to provide such services in the most integrated setting appropriate.” Id. at ¶ 22.
More specifically, Counts I and II allege that Defendants have discriminated against Plaintiffs on the basis of their disability by
a. Segregating or placing Plaintiffs and Plaintiff class members at risk of segregation and by failing to provide Plaintiffs and Plaintiff class members with appropriate community based services;
b. Denying Plaintiffs and Plaintiff Class members medically necessary services resulting in Plaintiffs
3

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and Plaintiff Class members’ institutionalization or risk of institutionalization;
c. Denying Plaintiffs and Plaintiff class members access to existing community programs and requiring them to be confined in or to be at risk of being confined in segregated institutional settings in order to receive the care they require;
d. Administering the PASRR[7] program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class have been inappropriately admitted to nursing facilities; and
7
“PASRR” is short for Pre-Admission and Resident Review. Two levels of PASRR screening and reviews exist – Level I and Level II. Level I screening determines whether individuals being considered for admission to a nursing facility have a mental illness or mental retardation. See 42 C.F.R. § 483.128(a). Level II screening is performed on those individuals for which Level I indicates the existence of a mental illness or mental retardation. A Level II assessment is used to determine whether
(1) The individual's total needs are such that his or her needs can be met in an appropriate community setting; (2) The individual's total needs are such that they can be met only on an inpatient basis, which may include the option of placement in a home and community-based services waiver program, but for which the inpatient care would be required; (3) If inpatient care is appropriate and desired, the [Nursing Facility] is an appropriate institutional setting for meeting those needs in accordance with § 483.126; or (4) If the inpatient care is appropriate and desired but the [Nursing Facility] is not the appropriate setting for meeting the individual's needs in accordance with § 483.126, another setting such as an [Intermediate Care Facility] (including small, community-based facilities), an [Institution for Mental Diseases], providing services to individuals aged 65 or older, or a psychiatric hospital is an appropriate institutional setting for meeting those needs.
See 42 C.F.R. § 483.132. According to Defendants, a PASRR Level II evaluation makes three specific determinations: (1) it confirms or rules out the presence of mental illness or intellectual disability; (2) it confirms the need for nursing facility services and the appropriateness of placement; and (3) it determines the need for specialized services. See D.E. 117 at 11-12. The Children’s Multidisciplinary Assessment Team (“CMA Team”) is responsible for conducting PASRRs in Florida pursuant to 42 U.S.C. § 483.112.
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e. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class are not provided the necessary specialized services to which they are entitled while residing in nursing facilities.
D.E. 62 at 41-43.
Further, Count III asserts that AHCA’s definition of “medical necessity” (i.e., Rule 59G1.010(166))8 is preempted by federal law and is invalid pursuant to the Supremacy Clause of the
United States Constitution. D.E. 62 at ¶ 321. In Count IV, Plaintiffs complain that “Defendants’
regulations, rules, policies, customs, and practices, which limit the provision of medically necessary
community-based services and support, as well as medically necessary specialized services, result
in extended delays and outright denials of medically necessary care to the Plaintiffs and members
of the Plaintiff class.” D.E. 62 at ¶ 326. Finally, in Count V, Plaintiffs allege that Defendants’
PASRR program does not adequately screen applicants to nursing facilities to determine whether
they have a mental illness or mental retardation. According to Plaintiffs, as a result, many children
8“Medical necessity” is defined as those services that must
1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; 2. 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; 3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; 4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and 5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.
Rule 59G-1.010(166), Fla. Admin. Code.
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with mental illness or mental retardation that can be served in the community are wrongfully admitted to nursing facilities and are never provided a Level II PASRR evaluation and determination, as required by federal law. D.E. 62 at ¶ 332. B. Defendants’ Motion to Dismiss
In the Motion now before the Court, Defendants urge the Court to find moot the claims advanced by Plaintiffs and to dismiss the action for lack of subject matter jurisdiction. According to Defendants, the Counts in the Complaint are “generalized attacks [that] can fairly be categorized as directed to certain rules and policies that allegedly: (1) force parents to ‘provide life sustaining medically necessary care’ to their children; (2) force children into Pediatric Prescribed Extended Care (“PPEC”)[9] centers; and (3) have resulted in the failure to operate the Pre-Admission Screening and Review (“PASRR”) program in accordance with federal law.” See D.E. 117 at 4. Because Defendants contend that they have voluntarily implemented policy changes to specific rules, practices, and regulations challenged by Plaintiffs, they posit that all counts of the Complaint are now moot. In further support of their argument that Plaintiffs’ claims have become moot, Defendants emphasize that they have no intention of reenacting any of the former rules, practices, and regulations that they have revised.
1. Parents Are Allegedly Forced to Provide Life Sustaining Care With respect to Plaintiffs’ allegation that Defendants’ policies force parents to provide lifesustaining medically necessary care to their children which are typically performed by private-duty nurses, Defendants point to two portions of the Florida Medicaid Home Health Services Coverage and Limitations Handbook (the “Home Health Handbook”) upon which Plaintiffs rely for their
9A Pediatric Prescribed Extended Care center is a non-residential facility that provides short, long-term, or intermittent medical care to medically fragile children. See D.E. 62 at ¶ 278(a)n.1.
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claims. First, Plaintiffs cite to the portion of the December 2011 Home Health Handbook that provides, “Florida Medicaid does not reimburse private duty nursing services provided solely for the convenience of the child, the parents or the caregiver.” See D.E. 117 at 5 (citing to D.E. 62 at ¶ 277(a)). In the Complaint, Plaintiffs note that “[t]his restriction is based on [Florida’s] regulatory definition of ‘medically necessary’ found at Rule 59G-1.010(166)(a), Fla. Admin. Code, which states, in part, that “medically necessary services must ‘be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.’” Id. Plaintiffs contend that Defendants adopted this policy as a basis to deny private-duty nursing service hours.
Second, Plaintiffs take issue with the portion of the December 2011 Home Health Handbook that provides, “Private duty nursing services will be decreased over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or the child’s condition improves.” See D.E. 117 at 6 (citing D.E. 62 at ¶ 277(b)). In other words, Plaintiffs express concern that Defendants will effectively force parents to provide life-sustaining medically necessary care that is usually and perhaps better performed by licensed and trained nurses. Id.
Defendants contend that AHCA has made changes that address both of Plaintiffs’ concerns. More specifically, AHCA has “clarified that services will only be decreased if there is a documented change in the child’s medical condition or social circumstances.” Id. Furthermore, AHCA has “published a provider alert implementing immediate policy changes to eliminate any requirement that parents or legal guardians of Medicaid recipient children provide services other than those relating to Activities of Daily Living (“ADL”) and Instrumental Activities of Daily Living (“IADL”), and only when the legal guardian is able and available to provide such services.”10 Id. at 6-7.
10Activities of Daily Living include eating, bathing, dressing, toileting, transferring, and maintaining continence. Instrumental Activities of Daily Living involve more complex life
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Defendants have also changed the Home Health Handbook to omit any reference to the prior policy that “Medicaid does not reimburse private duty nursing services provided primarily for the convenience of the chid, the parents, or the caregiver.” Based on these changes, Defendants suggest that Plaintiffs’ challenges regarding the alleged forcing of parents to provide life-sustaining care are now moot.
2. State Policies Allegedly Force Children Into PPECs As for Plaintiffs’ allegation that certain policies force children into PPECs, Defendants point to the following portion of the December 2011 Home Health Handbook upon which Plaintiffs rely:
A recipient who is medically able to attend a prescribed pediatric extended care (PPEC) center and whose needs can be met by the PPEC shall be provided with PPEC services instead of private duty nursing services. See D.E. 117 at 7 (citing D.E. 62 at ¶ 278(a)). Plaintiffs contend that this provision “will force children who would otherwise remain in their homes and integrated communities to be placed in a segregated facility entirely composed of other medically fragile children.” Id. While the Complaint involves other claims, Defendants construe Plaintiffs’ challenge as seeking that the Court “[o]rder the Defendants to provide private duty nursing services that will allow the Plaintiffs and Plaintiff class members to live in their homes and communities.” Id. (citing D.E. 62 at ¶ 278(a); Prayer for Relief(7)). In response, Defendants assert that, through certain policy changes, AHCA’s rules are being amended to clarify that no preference will be given to PPEC over home-health services. Rather, parents and legal guardians will have the right to choose between private-duty nursing services or PPEC services, or a combination of both. Id. at 8. According to Defendants, this means that,
activities including personal hygiene, light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management. See D.E. 117 at n.5.
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assuming medical necessity, if the parent or legal guardian does not request PPEC, the medically complex child will receive private-duty nursing.
3. Alleged Failure to Operate the PASRR Program in Accordance With Federal Law
With respect to Plaintiffs’ allegation that Defendants have failed to operate the PASRR program in accordance with federal law, Plaintiffs assert that “many children with a mental illness or mental retardation that can be served in the community are wrongfully admitted to nursing facilities and are never provided a Level II PASRR evaluation.” See D.E. 117 at 8 (citing D.E. 62 at ¶ 332). Defendants characterize Plaintiffs’ Complaint as requesting that the Court “[e]nter a permanent injunction requiring the Defendants to perform adequate Level I and Level II PASRR reviews (sic) to institutionalized children and to provide such services as are determined by the Level II screening.” Id. (citing D.E. 62 Prayer for Relief (10)).
Defendants contend that recent policy changes clarify AHCA’s rules to ensure that every individual whose PASRR Level I evaluation indicates that a suspicion of mental illness or intellectual disability exists will undergo an initial Level II evaluation. Additionally, Defendants claim that a Level II evaluation will take place whenever significant changes occur in the child’s condition. Id. at 9. In this respect, Defendants appear to concede that AHCA’s Nursing Facility Services Coverage Limitations Handbook previously included a PASRR checklist form that required a Level II evaluation if the individual had a severe illness, such as ventilator dependence, in which the individual could not be expected to benefit from specialized services. See D.E. 117 at 12. According to Defendants, however, “AHCA has prepared Rule 59G-1.040 as a new rule to streamline and clarify Level II evaluations.” Id. The new rule provides that where a Level I review results in suspicion of a mental illness or intellectual disability, every individual will receive a Level II evaluation.
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C. Response to Motion to Dismiss Plaintiffs respond to the Motion to Dismiss, arguing that dismissal of the action is not
appropriate because the claims advanced by Plaintiffs are not moot. First, Plaintiffs assert that the rule changes proposed by Defendants are not yet final. As a result, Plaintiffs suggest, Defendants cannot establish an “unambiguous termination” of the alleged offending policies. Significantly, Plaintiffs emphasize that a challenge to one of the proposed rules has already been made. According to Plaintiffs, this challenge, among other factors, raises doubt that the implementation of the policy revisions will be permanent.
Second, Plaintiffs contend that the timing and substance of the policy changes reveal that they were intended solely to manipulate jurisdiction. In this regard, Plaintiffs point out that Defendants’ change in behavior came only after the Complaint was filed, after the Department of Justice issued certain findings in the fall of 2012, and after Plaintiffs filed their Motion for Class Certification. Under these circumstances, Plaintiffs posit, Defendants cannot show “substantial deliberation” on their part with respect to changing their policies. Rather, Plaintiffs opine that Defendants’ proposed policy changes are an attempt to divest the Court of jurisdiction.
Finally, Plaintiffs suggest that Defendants’ policy changes fail to redress the harm stemming from the prior policies. Put simply, Plaintiffs contend that the policy changes do not provide complete relief to medically fragile children.
DISCUSSION Article III of the Constitution grants courts the authority to adjudicate “cases” and “controversies.” Already, LLC v. Nike, Inc., __ U.S. __, 133 S. Ct. 721, 726 (2013). Courts lack jurisdiction to entertain cases that are non-justiciable. As the Eleventh Circuit has explained,
Article III of the Constitution limits the jurisdiction of the federal courts to the consideration of “Cases” and “Controversies.” In turn,
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the “case or controversy” constraint imposes on federal courts a “dual limitation” known as “justiciability.” The doctrine of justiciability prevents courts from encroaching on the powers of the elected branches of government and guarantees that courts consider only matters presented in an actual adversarial context . . . .
The doctrine of mootness derives directly from the case-orcontroversy limitation because an action that is moot cannot be characterized as an active case or controversy. [A] case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome. As this Court has explained, put another way, a case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief. If events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed. Indeed, dismissal is required because mootness is jurisdictional. Any decision on the merits of a moot case or issue would be an impermissible advisory opinion. Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d 1276, 1281-82 (11th Cir.
2004) (quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir.2001) (per curiam) (citations
and internal quotation marks omitted). The Supreme Court has further clarified, “The requisite
personal interest that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.
22 (1997) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980)).
Here, Defendants argue that this case is now moot and the Court lacks subject-matter
jurisdiction because Defendants have voluntarily changed the alleged offending policies. A case
becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Atheists of Fla., Inc. v. City of Lakeland, Fla., 713 F.3d 577, 594 (11th Cir.
2013) (citations and internal quotation marks omitted). Whether a case is moot is a question of law.
Troiano, 382 F.3d at 1282.
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A defendant cannot automatically moot a case simply by ending its unlawful conduct once sued. Already, 133 S. Ct. at 727 (citing City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). Indeed, the “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘the defendant . . . free to return to his old ways.’” Troiano, 382 F.3d at 1282-83 (citations and internal quotation marks omitted); Sec'y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir.1992) (“It long has been the rule that ‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.’”) (quoting W.T. Grant Co., 345 U.S. at 632). Because of this concern, “a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Atheists of Fla., Inc., 713 F.3d at 594 (citing Already, 133 S.Ct. at 727) (internal quotation marks omitted) .
Although a defendant typically bears a heavy burden of persuading the court that the alleged conduct cannot reasonably be expected to recur, this burden does not apply when the defendant is a government actor. Rather, when the defendant is a government actor, a rebuttable presumption exists that the objectionable behavior will not recur. See id. (citations omitted); Troiano, 382 F.3d at 1283; Nat’l Advertising Co. v. City of Miami, 402 F.3d 1329, (11th Cir. 2005) (citing Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir. 2004) (“governmental entities and officials have been given considerably more leeway than private parties in the presumption that they are unlikely to resume illegal activities.”)). In fact, the Supreme Court has held almost uniformly that cessation of the challenged behavior moots the claim when the actor is the government. Troiano, 382 F.3d at 1282-83(citations omitted); Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga. (“NABP”), 633 F.3d 1297, 1310 (11th Cir. 2011).
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Accordingly, an assertion of mootness by a government actor should be rejected “only when there is a substantial likelihood that the offending policy will be reinstated if the suit is terminated.” Atheists of Fla., Inc., 713 F.3d at 594 (quoting Beta Upsilon Chi Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d 908, 916 (11th Cir. 2009)).
In the Eleventh Circuit, courts evaluate three factors when determining whether voluntary cessation by a government actor moots a case. “First, we consider whether the termination of the offending conduct was unambiguous.” Rich v. Sec'y, Florida Dept. of Corr., 716 F.3d 525, 531-32 (11th Cir. 2013) (quoting NABP, 633 F.3d at 1310 (quotation marks omitted)). “Second, we look to whether the change in government policy or conduct appears to be the result of substantial deliberation, or is simply an attempt to manipulate jurisdiction.” Id. (citing NABP, 633 F.3d at 1310)). “Third, we ask whether the government has ‘consistently applied’ a new policy or adhered to a new course of conduct.” Id.
In order for Defendants to invoke the presumption in favor of government actors, Defendants must have “unambiguously terminated” their prior alleged wrongful conduct. Here, although Defendants have initiated rule development regarding the changes in the policies and regulations, the rules are not yet final. With respect to the rules regarding changes to the PASRR process, the attachments to Defendants’ Motion to Dismiss reveal that a proposal has been filed for ruledevelopment workshops, but the rule is not yet finalized. Nor are the rules regarding PPECs yet final. To the contrary, they have been challenged. Indeed, during the comment period on the proposed PPEC rule, Florida Children’s First, Inc., initiated a challenge seeking to invalidate the rule. Plaintiffs also emphasize that the State Defendants in this matter similarly attempted to moot the case in Florida Pediatric Society v. Secretary of the Florida Agency for Health Care Administration, Case No. 05-23037 (S.D. Fla.), but the Honorable Aldaberto Jordan denied the
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request to dismiss the case as moot because the proposed state plan amendment had not yet been finally approved.
The rules at issue here include Florida Administrative Code Rule 59G-4.130, relating to home health care and private-duty nursing services; Rule 59G-1.040, relating to PASRR; and Rule 59G-4.260, relating to PPECs. A review of the Florida Administrative Code discloses that only Rule 59G-4.130, relating to home health care has become final. In contrast, the proposed rules relating to PASRR and PPECs remain subject to modification, despite Defendants’ claim that they have made statewide changes that have already been implemented in these areas. Under these circumstances, where the requirements of the Florida Administrative Procedure Act §§ 120.54, Fla. Stat., et seq., mandate extensive rule-making procedures that could result in changes to the pending non-final rules, the Court cannot find that Defendants “unambiguously terminated” the alleged offensive rules relating to PASRR and PPECs. Accordingly, the proposed rule changes embodied in Rule 59G-1.040 and Rule 59G-4.260 do not moot Plaintiffs’ claims.
Defendants’ reliance on Beta Upsilon and Jacksonville Property Rights Association. v. City of Jacksonville, 635 F.3d 1266 (11th Cir. 2011), is misplaced. While the Eleventh Circuit in Beta Upsilon found that the challenged discrimination policy was unambiguously terminated when the University of Florida modified the policy in its handbook, in that case, unlike here, no formal rule needed to be passed to implement the policy. See 586 F.3d at 915. Further, in Jacksonville Property Rights Association, the city passed legislation, amending the alleged violative portion of the municipal code at issue. As the court noted, the amendment to the municipal code became law, thus mooting the case. Likewise, the city passed an amendment to its plan, deleting reference to the offending language. Again, the court noted that the amendments took effect when the Florida Department of Community Affairs issued its order accepting the administrative law judge’s
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recommendations. In contrast, the rules at issue here are not final but instead remain subject to modification.
Defendants’ argument that Plaintiffs cannot rely on “mere speculation” to argue that the alleged wrongful conduct was not unambiguously terminated and that it might possibly recur fares no better. Where, as here, the language of the rules relating to PASRR and PPECs have not yet become finalized, Plaintiffs raise more than mere speculation that the challenged conduct has not been unambiguously terminated. In fact, the rule relating to PPECs, Rule 59G-4.260, was already the subject of a challenge brought by Florida Children’s First, Inc. Because there is no way at this time to know whether the rules, as proposed by AHCA, will become final, the Court does not find that Defendants have shown an unambiguous termination of the alleged wrongful conduct.
On the other hand, Rule 59G-4.130, relating to home health care services and private-duty nursing services, has become final. Accordingly, the Court must proceed to determine whether this rule change moots Plaintiffs’ claims. Rule 59G-4.130, Fla. Admin. Code, incorporates the Home Health Handbook by stating, “All home health agency providers enrolled in the Florida Medicaid program must be in compliance with the Home Health Services Coverage and Limitations Handbook, March 2013.” Consequently, the Court must examine the provisions of the Home Health Handbook.
Previously, the Handbook stated, “Florida Medicaid does not reimburse private duty nursing services provided solely for the convenience of the child, the parents or the caregiver.” In their Complaint, Plaintiffs argue that the restriction was based on Florida’s regulatory definition of “medically necessary,” found in Rule 59G1.010(166)(a), Fla. Admin. Code. According to Plaintiffs, Defendants adopted and applied this policy “without the authority of any similar federal Medicaid policy, rule or statute, giving Defendants a basis to deny private nursing service hours that have been
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prescribed by Plaintiff and Plaintiff Class members’ treating physicians.” See D.E. 62 at ¶ 277(a). Plaintiffs further contend that “Defendants’ implementation of a definition of ‘medically necessary’ that takes into account the mere availability of caregivers, regardless of their lack of medical training or qualification, is unreasonable and violates federal law.” See D.E. 62 at ¶ 277(e). The new policy, however, no longer precludes private-duty nursing services that are provided “for the convenience of” the child, parents, or caregiver. See D.E. 117-9 at 44.
Although Plaintiffs acknowledge Defendants’ policy changes, they argue that the changes do not moot Plaintiffs’ claims because Defendants “made no effort whatsoever to alter the overarching definition of “medically necessary,” and attempt to codify the existing practice of using nursing homes to place children with disabilities.” See D.E. 137 at 13. Plaintiffs emphasize that the definition of “medical necessity” contained in the Rule 59G-1.010(166)(5) of the Florida Administrative Code, which served as a basis for the Complaint, has not been changed.11 See id. at 15. According to Plaintiffs, the “sole basis for each of the rules that Defendants are now in the process of changing was . . . the ‘convenience of the caretaker’ standard.” Id. Plaintiffs find problematic the use of a subjective analysis by Defendants as to what services qualify as being “for the convenience of the caretaker.”
Defendants respond, contending that under the policy change in effect, a medically complex child will never have private-duty nursing services reduced or denied on the basis of the “caregiver convenience” factor. According to Defendants, contrary to Plaintiffs’ argument, the definition of “medically necessary” in the Florida Administrative Code is a general definition for all Medicaid
11The United States of America filed a Statement of Interest echoing Plaintiffs’ concerns about Defendants’ lack of attention to certain state-wide policies. For instance, the government noted that the definition of “medical necessity” continued to be used in the administrative code and could be relied upon to deny coverage of services found to be “for the convenience of the caregiver.” See D.E. 136 at 12.
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services, whereas the policy that the State has amended is what specifically applies when determining what private-duty nursing services to provide to medically complex children.
Defendants rely on Beta Upsilon in support of their argument that the Florida Administrative Code’s definition of “medically necessary” need not be amended to moot Plaintiffs’ claims. But Beta Upsilon is materially distinguishable from this case. In Beta Upsilon, the University of Florida denied a Christian fraternity, Beta Upsilon Chi (“Beta Upsilon”), official recognition because of its refusal to adhere to the university’s non-discrimination policy. 586 F.3d at 910. Beta Upsilon brought an action for declaratory and injunctive relief claiming that the University of Florida, by requiring Beta Upsilon to comply with the non-discrimination policy as a condition of recognition, had “infringed on its First and Fourteenth Amendment rights of association, freedom of speech, and free exercise of religion.” Id. Beta Upsilon filed a motion for preliminary injunction, seeking for the court to force the university to recognize it as a registered student organization. Id. After the district court denied the motion, Beta Upsilon filed an interlocutory appeal. Id. During the appeal, the university amended its non-discrimination policy and allowed Beta Upsilon to register as a registered student organization.12 Id. at 915. The University of Florida then filed a motion to dismiss
12The University of Florida amended its policy as follows: Student organizations that wish to register with the Center for Student Activities and Involvement (CSAI) must agree that they will not discriminate on the basis of race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations, or veteran status as protected under the Vietnam Era Veteran's Readjustment Assistance Act. A student organization whose primary purpose is religious will not be denied registration as a Registered Student Organization on the ground that it limits membership or leadership positions to students who share the religious beliefs of the organization. The University has determined that this accommodation of religious belief does not violate its nondiscrimination policy.
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the appeal as moot, and Beta Upsilon objected, arguing that the case was not moot because the university had not changed the regulation from which the Handbook non-discrimination policy derived — UF Regulation 6C1-1.006(1) (the “Regulation”). Id. Beta Upsilon argued that unless the Regulation was amended, the university could “capriciously revoke [Beta Upsilon’s registered student organization] status at any time.” Id. at 916.
The Eleventh Circuit granted the university’s motion to dismiss, finding that Beta Upsilon’s claims had become moot as a result of the change in the policy. In doing so, the court rejected the fraternity’s argument that the university was required to amend the underlying Regulation from which the policy was derived in addition to the handbook policy itself. Id. More specifically, the court noted that the university had modified the policy in the handbook, registered Beta Upsilon’s chapter, and stated its intention to adhere to its modified policies. Id. at 917. In finding the case moot, the court observed that while Beta Upsilon’s pleadings sought to enjoin the university from denying Beta Upsilon registered-student-organization status, the fraternity did not specify the manner in which the university should grant the relief. Id. Further, the court pointed out that Beta Upsilon had not mounted a facial challenge to the text of the Regulation, instead merely challenging the university’s refusal to register Beta Upsilon as a registered student organization. Id.
Unlike the plaintiff in Beta Upsilon, who challenged only a handbook policy, Plaintiffs here not only take issue with the applicability of the Home Health Handbook, they also attack AHCA’s definition of “medical necessity,” as set forth in Rule 59G-1.010(166) of the Florida Administrative Code. For example, the Complaint alleges that AHCA and eQHealth relied on the definition of
Beta Upsilon, 586 F.3d at 915 (amendment set forth in italics). The statement is reflected in the CSAI Handbook of Activities and CSAI’s registration and constitution guidelines and website. Id.
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“medical necessity” contained in Fla. Admin. R. 59G-1.010(166) as a basis for denial of private duty nursing services to Plaintiff A.C. See D.E. 62 at ¶ 175. Additionally, the Complaint cites to Rule 59G-1.010(166)(a), as an example of how Defendants have developed regulations, rules, customs, practices and policies, and have engaged in acts and omissions of reducing the prescribed necessary services to medically fragile children. See D.E. 62 at ¶ 277(a). Plaintiffs emphasize that the restriction of provision of private duty nursing services is based on the regulatory definition of “medically necessary” found in the Florida Administrative Code. Id. Moreover, in Count III of the Complaint, Plaintiffs allege that “AHCA’s definition of ‘medical necessity’, see Rule 59G1.010(166) (incorporated through the Handbook), is preempted by federal law and is invalid pursuant to the Supremacy Clause of the United States Constitution.” See D.E. 62 at ¶ 321.
Thus, in contrast to the defendant in Beta Upsilon, Defendants here have not provided all relief that Plaintiffs seek. Specifically, they have done nothing to modify the definition of“medical necessity” as set forth in Rule 59G-1.010(166), Fla. Admin. Code, and that definition still applies to Plaintiffs and allegedly deprives them of services and benefits that they seek through this litigation. As a result, Defendants’ actions have not mooted this case.
CONCLUSION Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss, Or, Alternatively, for Dismissal in Part, For Lack of Subject Matter Jurisdiction Due to Mootness [D.E. 117, 119] is DENIED for the foregoing reasons. DONE and ORDERED at Fort Lauderdale, Florida this 6th day of August 2013.

cc: counsel of record

___________________________________ ROBIN S. ROSENBAUM UNITED STATES DISTRICT JUDGE

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 Case 0:12-cv-60460-WJZ Document 203 Entered on FLSD Docket 09/25/2013 Page 1 of 6
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 12-60460-CIV-ROSENBAUM A.R., by and through her next friend, Susan Root, et al., Plaintiffs, v. ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al., Defendants. ________________________________________/
ORDER This matter comes before the Court upon Plaintiffs’ Motion for Class Certification. [D.E. 95]. The Court has reviewed the Motion, the filings supporting and opposing the Motion, and the other materials in the case file. The Court has also heard from counsel for the parties during a hearing held on September 13, 2013.
BACKGROUND In Olmstead v. L.C. ex rel. Zimring, the Supreme Court concluded that under Title II of the Americans With Disabilities Act (“ADA”), states must place individuals with mental disabilities in community settings rather than in institutions when a determination has been made that community placement is appropriate, the transfer from an institution to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated. 527 U.S. 581, 582 (1999). The principle underlying Olmstead’s holding is its recognition that unnecessary isolation and segregation of individuals with disabilities constitutes discrimination under the ADA. In this case, Plaintiffs allege that the State of Florida has a history of unnecessarily segregating medically

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fragile and complex children in institutions, thus, discriminating against these children on the basis of their disabilities.
Plaintiffs T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., and B.M.1 are children who have been diagnosed as “medically fragile” and who qualify for services through Florida’s Medicaid program. Plaintiffs T.H., L.J., and A.G. are children who have been placed in nursing facilities, while Plaintiffs A.C., A.R., C.V., M.D., C.M., and B.M. are children who live at home and claim that they are at risk of unnecessary institutionalization at nursing facilities. See D.E. 62 at ¶¶ 4, 14.
Plaintiffs filed this class-action lawsuit against Defendants Elizabeth Dudek (“Dudek”), in her official capacity as Secretary for the Agency for Health Care Administration (“AHCA”); Harry Frank Farmer, Jr. (“Farmer”), in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health (“FDOH”); Kristina Wiggins (“Wiggins”), in her official capacity as Deputy Secretary of the FDOH and Director of Children’s Medical Services (“CMS”); and eQHealth Solutions, Inc. (“eQHealth”). On August 23, 2013, Plaintiffs filed their Second Amended Complaint, which is the operative pleading in this case.
The Second Amended Complaint alleges that Defendants are denying Plaintiffs Medicaid services, including private-duty nursing services, due to the adoption of “uniform policies, practices, and regulations to reduce private duty nursing services.” See D.E. 62 at ¶¶ 18-19. As a result, Plaintiffs complain, children who, if they received all private-duty nursing to which they claim entitlement, could remain in community settings, are unnecessarily being institutionalized. Plaintiffs further contend that Defendants “failed and continue to fail to provide medically necessary services in home and community settings to Medicaid recipient children in Florida.” Id. at ¶ 20. Based on these allegations, Plaintiffs ask the Court to declare that Defendants’ policies, regulations, actions,
1Plaintiff T.F. passed away on April 6, 2013. See D.E. 147. 2

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and omissions are unnecessarily institutionalizing Plaintiffs and Plaintiff class members or putting Plaintiffs at risk of being placed into segregated facilities, in violation of Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12131-12165; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Medicaid Act, 42 U.S.C. §§ 1396-1396v; The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r; Early and Periodic Screening, Diagnostic, and Treatment Services, 42 U.S.C. § 1396d(r); and 42 U.S.C. § 1983. Id. at 21. Plaintiffs also seek a permanent injunction requiring Defendants to “stop segregating medically fragile and medically complex children in nursing facilities and to provide [Plaintiffs] medically necessary Medicaid services in the most integrated setting appropriate in the community and provide for their medically necessary services and to provide such services in the most integrated setting appropriate.” Id. at ¶ 22.
Specifically, Plaintiffs allege that Defendants are discriminating against them by engaging in the following activities:
a. Segregating or placing Plaintiffs and Plaintiff class members at risk of segregation and by failing to provide Plaintiffs and Plaintiff class members with appropriate community based services;
b. Denying Plaintiffs and Plaintiff Class members medically necessary services resulting in Plaintiffs and Plaintiff Class members’ institutionalization or risk of institutionalization;
c. Denying Plaintiffs and Plaintiff class members access to existing community programs and requiring them to be confined in or to be at risk of being confined in segregated institutional settings in order to receive the care they require;
d. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized subclass have been inappropriately admitted to nursing facilities; and
e. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-
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class are not provided the necessary specialized services to which they are entitled while residing in nursing facilities. D.E. 62 at 41-43. Further, Plaintiffs contend that AHCA’s definition of “medical necessity” (i.e., Rule 59G1.010(166)) is preempted by federal law and is invalid under the Supremacy Clause of the United States Constitution. D.E. 62 at ¶ 321.
MOTION FOR CLASS CERTIFICATION In the Motion for Class Certification, Plaintiffs ask the Court to certify the following class:
All current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities. See D.E. 95 at 1. According to Plaintiffs, the proposed class consists of approximately 3,338 children with severe disabilities who are either currently living in nursing facilities or are at risk of being placed in nursing facilities due to the threatened denial or reduction of medical and nursing services. Consequently, the proposed class consists of two sub-classes — the institutionalized subclass and the at-risk sub-class. According to Plaintiffs, common to all of the claims set forth in the Complaint are allegations that Defendants routinely deny or reduce community-based medically necessary services to Plaintiffs, and that, as a result, Plaintiffs and Plaintiff class members are unnecessarily institutionalized and are at risk of institutionalization in nursing facilities. In this regard, Plaintiffs allege a systemic problem with the manner in which the State of Florida makes decisions about the provision of community-based programs to medically fragile and medically complex children.
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Defendants respond that class certification is not appropriate in this matter because, despite Plaintiffs’ contention that they are not seeking individualized relief, the allegations in the Complaint reveal that Plaintiffs are attacking individual medical-necessity decisions as they are applied to each Plaintiff. Because Defendants claim that the case requires individualized factual determinations to ascertain who is “at risk” of institutionalization, Defendants contend that class certification is not appropriate. Put simply, Defendants argue that Plaintiffs do not challenge policies of the State, but rather, the individualized executions of those policies as they apply to medically fragile and medically complex children.
Consequently, this case presents the issue of whether children are unnecessarily denied community-based services because of a policy or systemic practice on Defendants’ part or because, in isolated cases, Defendants make errors in executing legal policies and practices. If a systemic problem exists, the case may be appropriately handled as a class action. If, however, the case involves a problem with the individualized application of the challenged policies in a handful of cases, class certification may not be appropriate. At this juncture, however, the record is not sufficiently developed for the Court to be able to discern what may be the case. Accordingly, Plaintiffs’ Motion for Class Certification must be denied at this time.
Under the circumstances, however, Plaintiffs shall have the opportunity to conduct discovery in furtherance of their claim that class certification is appropriate in this case and to renew their motion for class certification at the end of that period, should they desire to do so. Discovery is appropriate because Plaintiffs, as the parties moving for class certification, bear the burden of establishing each element of Federal Rule of Civil Procedure 23(a), commonly referred to as numerosity, commonality, typicality, and adequacy of representation. Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541, 2548 (2011). And, although a district court is not to determine
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the merits of a case at the certification stage, sometimes “‘it may be necessary for the court to probe

behind the pleadings before coming to rest on the certification question.’” Mills v. Foremost Ins.

Co., 511 F.3d 1300, 1309 (11th Cir. 2008) (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 160

(1982)). Due to the parties’ drastically diverging theories in this case, some discovery may be

helpful in resolving the class-certification issue.

Accordingly, Plaintiffs shall have an opportunity to conduct discovery that bears on the class-

certification issue. Significantly, during the September 13, 2013, hearing on this matter, when

questioned by the Court, counsel for the State Defendants advised that he was not necessarily opposed to discovery.2 Consequently, Plaintiffs shall have seventy-five (75) days to conduct

discovery that bears of the class certification issue. At the end of that period, Plaintiffs may, if they

so choose, re-file their Motion for Class Certification. For that purpose, Plaintiffs shall have a total

of ninety (90) days from the date of this Order to re-file their motion for class certification.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiffs’

Motion for Class Certification [D.E. 95] is DENIED WITHOUT PREJUDICE to re-file within

the next ninety days. During the next seventy-five days, Plaintiffs shall be permitted to conduct

discovery bearing on the class-certification issue. DONE and ORDERED at Fort Lauderdale, Florida this 25th day of September 2013.

cc: counsel of record

________________________________ ROBIN S. ROSENBAUM UNITED STATES DISTRICT JUDGE

2In Kenneth R. v. Hassan, 2013 U.S. Dist. LEXIS 132648 (D.N.H. 2013), a cited by Plaintiffs in their recently filed Notice of Additional Authority [D.E. 189], the Court denied without prejudice the plaintiffs’ first motion for class certification and allowed discovery on the certification issue. The plaintiffs then re-filed their motion for class certification.
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 Case 0:12-cv-60460-WJZ Document 215 Entered on FLSD Docket 12/06/2013 Page 1 of 15
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 12-60460-CIV-ROSENBAUM
A.R., by and through her next friend, Susan Root, et al.,
Plaintiffs, v. ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al.,
Defendants. ________________________________________/
ORDER This matter comes before the Court upon Plaintiffs’ Motion for Consolidation of Related Cases [ECF No. 192], pursuant to Rule 42(a), Fed. R. Civ. P. The Court has reviewed the Motion, the filings supporting and opposing the Motion, and the other materials in the case file. For the reasons that follow, the Motion for Consolidation of Related Cases is granted.
BACKGROUND Plaintiffs seek to have the related case of United States of America v. State of Florida, Case No. 13-CV-61576, consolidated with this case. According to Plaintiffs, the two cases have overlapping issues that must be resolved in combination in order to avoid possible conflicting orders and unnecessary multiplication of litigation.

Case 0:12-cv-60460-WJZ Document 215 Entered on FLSD Docket 12/06/2013 Page 2 of 15
A. The Instant Matter — Children’s Case (Case No. 12-60460) The instant matter was filed by Plaintiffs T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., and
B.M.1 who are children who have been diagnosed as “medically fragile” and who qualify for services through Florida’s Medicaid program.2 Plaintiffs T.H., L.J., and A.G., are children who have been placed in nursing facilities, while Plaintiffs A.C., A.R., C.V., M.D., C.M., and B.M. are children who live at home and assert that they are at risk of unnecessary institutionalization at nursing facilities.
On March 13, 2012, Plaintiffs filed a class-action lawsuit against various State of Florida Agency heads3 as well as eQHealth Solutions, Inc. (“eQHealth”), the non-profit corporation that has contracted with the State of Florida to provide prior authorization of home health services. Plaintiffs filed their Second Amended Complaint, which is the operative pleading in this case, on August 23, 2012.
The Second Amended Complaint alleges that Defendants are denying Plaintiffs Medicaid services, including private-duty nursing services, as a result of the adoption of uniform policies, practices, and regulations to reduce private-duty nursing services. Plaintiffs further claim that Defendants have failed to provide medically necessary services in home and community settings to
1Plaintiff T.F. passed away on April 6, 2013. See ECF No. 147. 2A medically fragile child is one who is “medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependent, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.” See ECF No. 62 at ¶ 2 (citing Rule 59G1.010(165), Fla. Admin. Code). 3Secretary for the Agency for Health Care Administration (“AHCA”), Elizabeth Dudek; the State Surgeon General, formerly Harry Frank Farmer, Jr., currently John Armstrong, M.D.; and Deputy Secretary of the Florida Department of Health (“FDOH”) and Director of Children’s Medical Services (“CMS”) formerly Kristina Wiggins, now Dr. Celeste Phillip.
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Medicaid recipient children in Florida. More specifically, Counts I and II contend that Defendants
have discriminated against Plaintiffs on the basis of their disability in the following ways:
a. Segregating or placing Plaintiffs and Plaintiff class members at risk of segregation and by failing to provide Plaintiffs and Plaintiff class members with appropriate community based services;
b. Denying Plaintiffs and Plaintiff Class members medically necessary services resulting in Plaintiffs and Plaintiff Class members’ institutionalization or risk of institutionalization;
c. Denying Plaintiffs and Plaintiff class members access to existing community programs and requiring them to be confined in or to be at risk of being confined in segregated institutional settings in order to receive the care they require;
d. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class have been inappropriately admitted to nursing facilities; and
e. Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class are not provided the necessary specialized services to which they are entitled while residing in nursing facilities.
See ECF No. 62 at 41-43.4
4“PASRR” is short for Pre-Admission and Resident Review. Two levels of PASRR screening and reviews exist – Level I and Level II. Level I screening determines whether individuals being considered for admission to a nursing facility have a mental illness or intellectual disability. See 42 C.F.R. § 483.128(a). Level II screening is performed on those individuals for which Level I indicates the existence of a mental illness or intellectual disability. According to Defendants, a PASRR Level II evaluation makes three specific determinations: (1) it confirms or rules out the presence of mental illness or intellectual disability; (2) it confirms the need for nursing facility services and the appropriateness of placement; and (3) it determines the need for specialized services. See ECF No. 117 at 11-12.
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Further, Count III asserts that AHCA’s definition of “medical necessity” (i.e., Rule 59G1.010(166))5 is preempted by federal law and is invalid pursuant to the Supremacy Clause of the United States Constitution. In Count IV, Plaintiffs complain that “Defendants’ regulations, rules, policies, customs, and practices, which limit the provision of medically necessary community-based services and support, as well as medically necessary specialized services, result in extended delays and outright denials of medically necessary care to the Plaintiffs and members of the Plaintiff class.” ECF No. 62 at ¶ 326. Finally, in Count V, Plaintiffs allege that Defendants’ PASRR program does not adequately screen applicants to nursing facilities to determine whether they have a mental illness or intellectual disability. According to Plaintiffs, as a result, many children with mental illness or intellectual disability that can be served in the community are wrongfully admitted to nursing facilities and are never provided a Level II PASRR evaluation and determination, as required by federal law.
Based on these allegations, Plaintiffs ask the Court to declare that Defendants’ policies, regulations, actions, and omissions are unnecessarily institutionalizing Plaintiffs and Plaintiff class members or putting Plaintiffs at risk of being placed into segregated facilities, in violation of Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12131-12165 (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504"); the Medicaid Act, 42 U.S.C. §§ 13961396v (“Medicaid”); the Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r (“NHRA”); Early and Periodic Screening, Diagnostic, and Treatment Services, 42 U.S.C. § 1396d(r) provisions (“EPSDT Provisions”); and 42 U.S.C. § 1983.
5Under Fla. Admin. Code R. 59G-1.010(166), the term “medical necessity” includes those services furnished in a manner not primarily intended for the convenience of the recipient, caretaker, or the provider.
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Plaintiffs also seek class-wide permanent injunctive relief under Rule 23(b)(2), Fed. R. Civ. P., requiring Defendants to refrain from segregating medically fragile and medically complex children in nursing facilities and to provide Plaintiffs with medically necessary Medicaid services in the most integrated setting appropriate in the community. Additionally, Plaintiffs request to enjoin Defendants from applying various rules and policies that place children at risk of institutionalization in nursing facilities. Ultimately, Plaintiffs seek injunctive relief requiring Defendants to
1. Provide children with disabilities the opportunity to receive services in the most integrated settings;
2. Provide private-duty nursing services that will allow children with disabilities to live in their homes and communities;
3. Implement a professionally-adequate screening and assessment process for children living in nursing facilities that will accurately identify children with developmental disabilities, including whether they can be appropriately served in the most integrated settings; and
4. For those children who are medically fragile or medically complex, ensure that they receive adequate nursing care based upon their medical needs and not based on their parents or caretakers’ schedule, in the most integrated setting.
See ECF No. 62 at 45-46. B. The Related DOJ Case (Case No. 13-61576)
Plaintiff in the related case is the United States of America, and the defendant is the State of Florida. In a Complaint filed on July 22, 2013, the United States asserted a single claim against the State of Florida for violations of Tile II of the ADA stemming from what the United States deems to be the unnecessary segregation and institutionalization of children with disabilities, as well as the reduction of private-duty nursing and personal-care services provided to children who live in the community. More specifically, the United States contends that the State of Florida has limited the availability of many community-based services for children with significant medical needs.
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Similar to the Children’s Case, the United States asserts that the State of Florida has denied or reduced medically necessary services through its definition of “medically necessary.” As noted above, under Rule 59G-1.010(166), Fla. Admin. Code R., only those services furnished in a manner not primarily intended for the convenience of the recipient, caretaker, or the provider qualify under the definition of “medical necessity.” The United States claims that the State of Florida employs this definition to deny medically necessary services and to compel parents and other family members to provide care that is medically necessary. Additionally, the United States contends that the State of Florida requires children with significant medical needs to enroll in Prescribed Pediatric Extended Care services instead of private-duty nursing services. The results, according to the United States, are that a number of children have been placed or remain in nursing facilities and that families have not been provided with in-home services that would have enabled them to safely care for their children at home.
Moreover, the United States alleges that the State fails to provide sufficient reimbursement rates for in-home nursing services; fails to ensure sufficient capacity in Home and Community-Based Services (“HCBS”) waiver programs; and fails to ensure that a sufficient capacity exists in noninstitutional, out-of-home settings that are able to serve children with significant medical needs. With respect to the HCBS waiver program, the United States claims that many of the individuals on the list for services have waited for five years or more. And, the United States avers, children have waited in nursing facilities for years while waiting to be enrolled in the programs. Further, the United States alleges that the State of Florida has failed to adequately implement the pre-admission screening program PASRR. In this regard, the United States points out that a substantial number of institutionalized children have been admitted to nursing facilities without having first been fully screened through the PASRR program.
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Overall, the United States alleges that the State of Florida violates the ADA by administering
and funding its programs and service system for children with disabilities in a manner that fails to
ensure the institutionalized and at-risk children receive services in the most integrated setting
appropriate to their needs and by failing to reasonably modify policies, practices, and procedures to
avoid such discrimination and unnecessary segregation. Based on these alleged violations, the
United States asks for the Court to declare that the State of Florida has violated Title II of the ADA.
Additionally, it seeks for the Court to enjoin the State of Florida from
1. Failing to provide appropriate, integrated community-based services and supports to the institutionalized and at-risk children consistent with their individualized needs;
2. Discriminating against institutionalized and at-risk children by failing to provide services and supports in the most integrated setting appropriate to their needs;
3. Failing or refusing to take such steps as may be necessary to restore, as nearly as practicable, the institutionalized children to the position they would have been in but for the discriminatory conduct; and
4. Failing or refusing to take such steps as may be necessary to prevent the recurrence of any discriminatory conduct in the future and to eliminate the effects of Defendant’s unlawful conduct.
Finally, the United States requests an award of compensatory damages to the institutionalized
children for injuries that they suffered as a result of the State’s failure to ensure compliance with the
requirements of Title II of the ADA.
B. Plaintiffs’ Motion to Consolidate
In the Motion now before the Court, Plaintiffs contend that consolidation of the cases will
conserve judicial resources and make the litigation of these matters more convenient for the parties
and witnesses. Second, Plaintiffs assert that consolidation will ensure consistent adjudication of the
issues that are common to the two complaints. Third, Plaintiffs note that both complaints allege that
the same children have been inappropriately admitted into nursing facilities and have not been
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properly screened under the PASRR program in violation of the Medicaid Act. Moreover, Plaintiffs contend that the State of Florida is reducing certain services which places these children at risk of institutionalization. Finally, Plaintiff argues that the relief sought in both cases is substantially the same.
In opposing the Motion to Consolidate, the State of Florida relies heavily on the Court’s prior denial of the Motion for Class Certification in the Children’s Case. According to the State of Florida, with the denial of class certification, the Children’s Case is a case for individualized relief and concerns the medical histories of nine children. In contrast, the DOJ Case seeks systemic changes to the Florida Medicaid program because it challenges the policies of the State. In addition, the State of Florida emphasizes that Plaintiffs in the Children’s Case seek declaratory and injunctive relief, while in the DOJ Case, the government seeks, in addition to such relief, damages to compensate children who were admitted to nursing homes. Next, the State of Florida asserts that because the claims differ, the nature of discovery in the two matters will be radically different. In this regard, the State believes that in the Children’s Case, discovery will concern particularized facts related to the nine children, while in the DOJ case, discovery will relate to policies and procedures.
Finally, the State of Florida points out that the two cases are at different stages of development. In the Children’s Case, Plaintiffs have until December 24, 2013, to renew their motion for class certification, and, pursuant to the Court’s prior Order, class-wide discovery is stayed pending resolution of the renewed motion. The State of Florida posits that, allowing time for interlocutory appellate review, the question of class certification will not be wholly resolved for months. Because of this possible delay, the State of Florida urges, consolidation of the two cases would derail the prompt resolution of the DOJ Case. In short, the State of Florida argues that the progress of the Children’s Case is too unpredictable to warrant consolidation of the cases.
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For its part, Defendant eQHealth notes that both cases include one or more parties that are not a party to the other case. eQHealth agrees with the State of Florida’s view that the Children’s Case focuses on how specific determinations are made with respect to the medical necessity of each child. In contrast, eQHealth believes that the DOJ Case involves broader issues regarding the implementation of policies and services, including the funding of the Medicaid program as well as providing reimbursement for in-home nursing services. According to eQHealth, consolidating the cases would broaden the scope of the litigation in the Children’s Case, which would be unfair to eQHealth because it performs medical-necessity reviews for only children in the community, and not those who are institutionalized. eQHealth emphasizes that it has no involvement in implementing and funding the State’s Medicaid program, and likewise, has no involvement in the PASRR program or foster care system. In eQHealth’s view, consolidating the two cases and broadening the issues will require it to attend depositions around the State that it otherwise would not have had to attend.
Finally, like the State of Florida, eQHealth points out the that the DOJ Case includes a request for compensatory damages for institutionalized children that would require individualized damage determinations, which is not permissible in a class action brought pursuant to Rule 23(b)(2). In this regard, eQhealth contends that the government’s request for damages is inconsistent with the class that Plaintiffs in the Children’s Case seek to have certified.
The United States does not oppose the requested consolidation. See ECF No. 212. And, to avoid a delay of the DOJ Case, the United States suggests, merits discovery in the consolidated cases could remain ongoing during the class certification proceedings in the Children’s Case. See id.
DISCUSSION Rule 42(a), Fed. R. Civ. P., governs motions to consolidate civil actions and provides, “If actions before the court involve a common question of law or fact, the court may . . . consolidate the
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actions.” The rule is a codification of the court’s inherent power to control the cases on its docket and to maximize economy of time and effort for itself, for counsel, and for litigants. Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir. 1985). The Eleventh Circuit has encouraged trial judges to “make good use of Rule 42(a) . . . in order to expedite the trial and eliminate unnecessary repetition and confusion.” Id. at 1495 (citations omitted).
A Court’s decision under Rule 42(a) is purely discretionary. Young v. City of Augusta, Ga. Through DeVaney, 59 F.3d 1160, 1168 (11th Cir. 1995) (citations omitted); Newman v. Eagle Building Technologies, 209 F.R.D. 499, 501 (S.D. Fla. 2002). In exercising its discretion, the Court must determine
[W]hether the specific risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives. Hendrix, 776 F.2d at 1495 (citations omitted). Because the Children’s Case and the DOJ Case involve common, complex issues of fact and law, the Court grants Plaintiffs’ Motion to Consolidate. Although the Court notes that the issues in the DOJ Case are somewhat broader than those set forth in the Children’s Case, the two cases are overwhelmingly similar in that they both allege that Defendants have improperly segregated or are attempting to segregate medically complex and medically fragile children residing in the State of Florida by failing to offer services necessary to keep these children in a home or community setting rather than in institutions. Both cases assert that Defendants deny children private-duty nursing services as a result of the adoption of policies, practices, and regulations. Both cases also contend that the State of Florida is administering its PASRR program in a way that medically fragile children
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are denied necessary specialized services to which they are entitled. In addition, Plaintiffs in both cases argue that the PASRR program has been administered in such a way as to result in the institutionalization of children because of improper screening procedures. In this regard, for example, Plaintiffs in both cases contend that a number of institutionalized children were admitted to nursing facilities without first having been fully screened through the PASRR program.
Likewise, both cases challenge the State of Florida’s use of the definition of “medical necessity” as set forth in Fla. Admin. Code R. 59G-1.010(166). More specifically, Plaintiffs in both cases assert that the definition limits covered services to those furnished in a manner not primarily intended for the convenience of the recipient, caretaker, or the provider. Both cases allege that the State Defendants use this definition to deny services to children as well as to compel family members to provide medically necessary care to children.
It is true that the DOJ Case involves other allegations regarding the funding of the Medicaid program. The DOJ Case also takes issue with the manner in which the State of Florida provides reimbursement for in-home nursing services and with the State’s alleged failure to ensure sufficient capacity in HCBS waiver programs. But, these additional allegations, as well as those relating to other out-of-home settings do not persuade the Court to deny consolidation of the cases. Significantly, both cases center around Plaintiffs’ contention that Defendants are unnecessarily segregating and institutionalizing children with disabilities and are also reducing private-duty and personal-care services provided to children who live in the community. In this regard, both lawsuits claim that Defendants have failed and continue to fail to provide medically necessary services in home and community-based settings to Medicaid-recipient children in Florida.
As a result of these alleged discriminatory policies, Plaintiffs in both cases seek declaratory and injunctive relief. Indeed, both cases request that the Court declare Defendants to be in violation
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of Title II of the ADA due to their policies, regulations, actions, and omissions. Likewise, both cases seek injunctive relief requiring Defendants to provide children with disabilities with services in the most integrated settings. Additionally, both lawsuits ask that the Court require the State Defendants to address the deficiencies in its PASRR program and implement an adequate screening process that will accurately identify children with developmental disabilities. Both cases also seek injunctive relief ensuring that medically fragile and medically complex children will receive nursing services based on their needs and not based on the availability of another caretaker or family member.
Significantly, prior to filing the DOJ Case, the government filed amicus briefs in the Children’s Case voicing its opinion with regard to many of the issues in that case. Indeed, the government even appeared at the hearing on the motion for class certification in the Children’s Case. The same attorneys now appear on behalf of the government in the DOJ Case. Similarly, counsel for the State of Florida in the DOJ Case also appear on behalf of various State Defendants in the Children’s Case. And, I am the presiding judge in both cases because both Judge Dimitrouleas and I found that, pursuant to Internal Operating Procedure 2.1500(c), the DOJ Case involved matters that were a material part of the subject matter of the Children’s Case. All of these factors persuade the Court that consolidation of the two cases is appropriate.
Although the Court recognizes that the DOJ Case seeks an award of compensatory damages for the institutionalized children, this fact alone does not require the Court to deny consolidation. A Rule 23(b)(2) class, as sought by Plaintiffs in the Children’s Case, is appropriate only if “the predominant relief sought is injunctive or declaratory.” Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001). In this respect, monetary relief can be obtained in a Rule 23(b)((2) class action as long as the predominant relief sought is injunctive or declaratory. Courts have explained that monetary relief predominates in a Rule 23(b)(2) action unless is it “incidental” to the requested
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injunctive or declaratory relief. Id. Monetary damages are incidental when class members automatically would be entitled to them once liability to the class as a whole is established, and awarding them would not entail complex individualized determinations. DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 469 F. App’x 762, 765 (Mar. 27, 2012) (citing Murray, 244 F.3d at 812).
Here, the damages sought by Plaintiff in the DOJ Case do not satisfy the criteria for being “incidental.” This is so because in order to make the determination as to the amount due to each institutionalized child for injuries suffered, an individualized determination would need to be made. The fact that the damages sought by Plaintiffs in the DOJ Case are not incidental, however, does not preclude the Court from consolidating the two cases. The Court previously denied the motion for class certification in the Children’s Case but permitted Plaintiffs to take additional discovery and to re-file the motion by December 24, 2013. At this juncture, a class has not been certified and it is not clear whether a class will be certified. If the Court declines to certify a class in the Children’s Case, the Court must still determine the predecessor questions common to both cases before it may consider whether damages are due to the children and, if so, how much. And, if, on the other hand, the Court does ultimately certify the class proposed by Plaintiffs in the Children’s Case, the fact that the government seeks damages on behalf of the institutionalized children does not necessarily impede the case. The Court may certify the class for purposes of liability but not for damages. Because similar determinations regarding liability are necessary in both the Children’s Case and the DOJ Case, consolidation is appropriate.
Nor does the fact that the two cases are at different stages discovery preclude consolidation. Rather, the Court can refine the scheduling order if necessary. In the Children’s Case, the Court previously stayed classwide discovery until the issue of class certification was resolved. See ECF No. 94 at 2. Merits discovery has already commenced in the DOJ Case and that discovery shall
13

Case 0:12-cv-60460-WJZ Document 215 Entered on FLSD Docket 12/06/2013 Page 14 of 15
remain ongoing during the resolution of the class-certification issue raised by Plaintiffs in the Children’s Case. In this regard, consolidation of the cases will not “derail” the litigation of the government’s claims as suggested by the State of Florida. Moreover, although eQHealth states it would be required to attend additional depositions if the cases were consolidated, the Court disagrees. eQHealth would not be required to attend any additional depositions that did not relate to the allegations made against it in the original Children’s Case. Of course, if eQHealth decides to attend these depositions, it may do so. It, however, is not required to attend. In addition, nothing precludes eQHealth from attending depositions by telephone to minimize expense.
In short, the two cases shall be consolidated because of the overwhelmingly common issues of fact and law presented. Consolidation of these matters eliminates the unnecessary duplication of efforts in filings, hearings, and other litigation by the parties. Consolidation further promotes judicial economy and eliminates unnecessary repetition and confusion in the cases. The Court has weighed the risks of prejudice to the parties; inconsistent adjudications of common factual and legal issues; and the burden on the parties, the witnesses, and available judicial resources posed by multiple lawsuits. The Court has also considered the length of time required to conclude multiple suits versus a single one, and the relative expense to all concerned and finds that consolidation of the two cases in appropriate. Consequently, the Motion to Consolidate is granted.
CONCLUSION For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Motion for Consolidation of Related Cases [ECF No. 192] is GRANTED as set forth herein. A.R. et al., v. Dudek, et al., Case No. 12-60460-CV-ROSENBAUM, and United States v. State of Florida, Case No. 13-61576-CV-ROSENBAUM, are hereby consolidated with each other. The two cases shall proceed under Case No. 12-60460-CV-ROSENBAUM. All pleadings to be filed hereafter shall
14

Case 0:12-cv-60460-WJZ Document 215 Entered on FLSD Docket 12/06/2013 Page 15 of 15

bear the Case No. 12-60460-CV-ROSENBAUM, and no pleadings, motions, or other matters shall be filed in Case No. 13-61576-CV-ROSENBAUM. All future filings shall bear the following caption:
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 12-60460-CIV-ROSENBAUM
A.R., by and through her next friend, Susan Root, et al.,
Plaintiffs, v. ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al.,
Defendants. ________________________________________/
UNITED STATES OF AMERICA, Plaintiff,
vs. STATE OF FLORIDA,
Defendant. _____________________________________/
DONE and ORDERED at Fort Lauderdale, Florida this 6th day of December 2013.

cc: counsel of record

___________________________________ ROBIN S. ROSENBAUM UNITED STATES DISTRICT JUDGE
15

 
 Case 0:12-cv-60460-WJZ Document 263 Entered on FLSD Docket 09/09/2014 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-60460-CIV-ZLOCH

A.R. by and through her next friend, Susan Root, et al.,
Plaintiffs,
vs.
ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al.,
Defendants. /
UNITED STATES OF AMERICA,
Plaintiff,
vs.
STATE OF FLORIDA,
Defendant. /

O R D E R

THIS MATTER is before the Court upon Plaintiffs’ Renewed Motion For Class Certification (DE 220). The Court has carefully reviewed said Motion, the entire court file and is otherwise fully advised in the premises.
Plaintiffs T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., and B.M.1 initiated the above-styled cause on March 13, 2012, against Defendants Elizabeth Dudek, in her official capacity as Secretary

1 Plaintiffs T.F., L.J., and A.C. have passed away since the commencement of the above–styled cause. See DE Nos. 147, 245 & 260.

Case 0:12-cv-60460-WJZ Document 263 Entered on FLSD Docket 09/09/2014 Page 2 of 4
of the Agency for Health Care Administration, John Armstrong, M.D., in his official capacity as State Surgeon General and Secretary of the Florida Department of Health, and Dennis Cookro, M.D., in his official capacity as Deputy Secretary of the Florida Department of Health and Director of Children’s Medical Services (hereinafter “the State Defendants”), as well as eQHealth Solutions, Inc. (hereinafter “Defendant eQHealth”), a non-profit corporation with whom the State of Florida has contracted to provide prior authorization of home health services. Plaintiffs are children with complex medical needs who have been diagnosed as “medically fragile”2 and qualify for health care services through Florida’s Medicaid program. In their Second Amended Complaint (DE 62), filed August 23, 2012, Plaintiffs allege, essentially, that Defendants have failed to provide medically necessary services in both home and community settings, as opposed to institutionalized settings, and are denying Medicaid services to Plaintiffs.
By prior Order (DE 203), United States District Judge Robin Rosenbaum denied without prejudice Plaintiffs’ Motion For Class Certification (DE 95) and with leave to refile.3 Said Order
2 A “medically fragile” child is one who is “medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependant, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.” Fla. Admin. Code Rule 59G-1.010(165).
3 On December 6, 2013, Judge Rosenbaum consolidated Plaintiffs’ action with the related case filed by the United States of America against the State of Florida, Case No. 13-61576-CIV. See DE 215. The
2

Case 0:12-cv-60460-WJZ Document 263 Entered on FLSD Docket 09/09/2014 Page 3 of 4
directed Plaintiffs to conduct discovery bearing on the classcertification issue, specifically, whether the potential class is affected by systemic practices or by isolated errors in the application of the challenged policies. By the instant Motion (DE 220), Plaintiffs inform the Court that Plaintiffs have conducted discovery and argue that class certification remains appropriate, based on alleged evidence of Defendants’ systemic practices.
In their Response In Opposition To Plaintiffs’ Renewed Motion For Class Certification (DE 237), the State Defendants included a Renewed Motion To Dismiss. In said Motion (DE 237), the State Defendants assert, first, that Plaintiffs’ claims are now moot because, due to the changes in the State’s administrative rules, the challenged policies and practices are no longer in force. Second, they maintain that Plaintiffs lack standing because no Plaintiff is institutionalized or at imminent risk of institutionalization. DE 237.
Because Defendants’ Renewed Motion To Dismiss (DE 237) challenges this Court’s subject matter jurisdiction, the Court will resolve the potentially dispositive Motion prior to taking up Plaintiffs’ Renewed Motion For Class Certification (DE 220). See Webster v. Royal Carribean Cruises, Ltd., 124 F. Supp. 2d 1317, 1321 (S.D. Fla. 2000) (“[T]he Court notes that the motion to
consolidated action was then reassigned to this Court on May 30, 2014, pursuant to Administrative Order 2014-48. DE 251.
3

Case 0:12-cv-60460-WJZ Document 263 Entered on FLSD Docket 09/09/2014 Page 4 of 4

dismiss may be dispositive, thereby rendering the motion for class

certification moot.”); Tapken v. Brown, 1992 WL 178984 at *12 (S.D.

Fla. Mar. 13, 1992) (citing Wright v. Shock, 742 F.2d 541, 543-45

(9th Cir. 1984) (relying on cases from the Second, Third, Fifth,

Eight, and Tenth Circuits in affirming district court’s decision to rule on summary judgment motion before the motion for class

certification)). Therefore, Plaintiffs’ Renewed Motion For Class

Certification (DE 220) will be denied without prejudice with leave

to refile, pending the Court’s ruling on the State Defendants’

Renewed Motion To Dismiss (DE 237). Accordingly, after due consideration, it is

ORDERED AND ADJUDGED that Plaintiffs’ Renewed Motion For Class

Certification (DE 220) be and the same is hereby DENIED without

prejudice with leave to refile following the Court’s ruling on the

pending the State Defendants’ Renewed Motion To Dismiss (DE 237).

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward

County, Florida, this

9th

day of September, 2014.

Copies furnished: All Counsel of Record

WILLIAM J. ZLOCH United States District Judge

4

 
 Case 0:12-cv-60460-WJZ Document 393 Entered on FLSD Docket 07/22/2015 Page 1 of 9
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
Case No.: 12-60460-CIV-ZLOCH/HUNT
A.R., by and through her next friend, SUSAN ROOT, et al.,
Plaintiffs,
v.
ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al.,
Defendants. _____________________________________/
UNITED STATES OF AMERICA
Plaintiff,
v.
STATE OF FLORIDA
Defendant. _____________________________________/
REPORT AND RECOMMENDATION This cause is before this Court on Defendants’1 Motion for Judgment on the
Pleadings, filed on April 20, 2015. ECF No. 341. On October 9, 2014, the Honorable
1 “Defendants” are collectively Elizabeth Dudek, in her official capacity as Secretary of the Agency for Health Care Administration; John Armstrong, M.D., in his official capacity as State Surgeon General and Secretary of the Florida Department of Health; and Cassandra G. Pasley, in her official capacity as Director of Children’s Medical Services of the Florida Department of Health.
On January 30, 2015, Defendant eQHealth Solutions Inc. and Plaintiffs filed a Joint Stipulation of Dismissal with Prejudice, and this Court entered a subsequent Final Order of Dismissal as to eQHealth. ECF No. 321–22.

Case 0:12-cv-60460-WJZ Document 393 Entered on FLSD Docket 07/22/2015 Page 2 of 9
William J. Zloch referred to the undersigned United States Magistrate Judge all pretrial
motions for report and recommendation or disposition. ECF No. 275; see also 28
U.S.C.A. § 636(b); S.D. Fla. L.R., Mag. R. 1. On July 14, 2015, the undersigned held a
hearing on the matter. ECF No. 386. Having heard oral argument and having carefully
reviewed Defendants’ Motion, the Response and Reply thereto, the entire case file, and
the applicable law, and being otherwise duly advised in the premises, it is hereby
recommended that Defendants’ Motion for Judgment on the Pleadings be GRANTED IN
PART and DENIED IN PART, as more fully set forth herein.
BACKGROUND
In this putative class action, Plaintiffs—A.R., C.V., M.D., C.M., B.M., T.F., A.C.,
A.G., L.J., and T.H.2—are children who have been diagnosed as medically fragile3 or
children who need skilled care services4 through Florida’s Medicaid program.5 On
2 Since the commencement of this action, Plaintiffs T.F., L.J., and A.C. have died. See ECF Nos. 147, 245, 260.
3 “Medically Fragile” means a person
who is medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parental nutrition (TPN), is ventilator dependent, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.
Rule 59G-1.010(165), Fla. Admin. Code. 4 Florida Administrative Code Rule 59G-4.290(3) provides as follows:
(3) Skilled Services Criteria. (a) To be classified as requiring skilled nursing or skilled rehabilitative services in the community or in a nursing facility, the recipient must require the type of medical, nursing or rehabilitative services specified in this subsection. (b) Skilled Nursing. To be classified as skilled nursing service, the service must meet all of the following conditions: 1. Ordered by and remain under the supervision of a physician; 2. Sufficiently medically complex to require supervision, assessment, planning, or intervention by a registered nurse. 3. Required to be performed by, or under the direct supervision of, a registered nurse or other health care professionals for safe and effective
2

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March 13, 2012, Plaintiffs filed the instant action against Defendants. On August 23, 2012, Plaintiffs filed their Second Amended Complaint (hereinafter, the “Complaint”), which is the operative pleading in this case. Plaintiffs seek injunctive and declaratory
relief against Defendants. At the time of the Complaint A.C., A.R., C.V., M.D., C.M., B.M., and T.F. were “at risk” Plaintiffs who live at home but were at risk of unnecessary institutionalization in nursing facilities. T.H., L.J., and A.G. were institutionalized
Plaintiffs who had been placed in nursing facilities. However, no Plaintiffs are currently
institutionalized. ECF No. 237 at 13. On July 22, 2013, the United States filed an action against the State of Florida—
challenging the same State policies and procedures—seeking injunctive and declaratory relief, as well as compensatory damages.6 United States v. Florida, No. 13-CV-61576, ECF No. 1. On December 6, 2013, this Court consolidated Plaintiffs’ action with the United States’ case because both actions involved common questions of law and fact.7
See ECF No. 214.
performance; 4. Required on a daily basis; 5. Reasonable and necessary to the treatment of a specific documented illness or injury; and 6. Consistent with the nature and severity of the individual’s condition or the disease state or stage. Rule 59G-4.290(3), Fla. Admin. Code. 5 “Medicaid is a cooperative federal-state program that provides federal funding for state medical services to the poor. See Wilder v. [Va. Hosp. Ass’n], 496 U.S. 498, 502 [ ] (1990). State participation is voluntary; but once a State elects to join the program, it must administer a state plan that meets federal requirements.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 433–34 (2004). 6 The United States’ claim against the State is based solely on an alleged violation of Title II of the ADA. 7 For ease of reference, “Plaintiffs” refers to the named plaintiffs and the United States government will be referred to by proper name.
3

Case 0:12-cv-60460-WJZ Document 393 Entered on FLSD Docket 07/22/2015 Page 4 of 9
The Complaint alleges that Defendants are denying Medicaid services to Plaintiffs, including private-duty nursing (“PDN”) services, due to the adoption of “uniform policies, practices, and regulations to reduce [PDN] services.” ECF No. 62 at ¶¶ 18–19. Plaintiffs further claim that Defendants “failed and continue to fail to provide medically necessary services in home and community settings to Medicaid recipient children in Florida.” Id. at ¶ 20.
Based on the pleaded facts, Plaintiffs ask this Court to declare that Defendants’ policies, regulations, actions, and omissions are unnecessarily institutionalizing Plaintiffs and Plaintiff class members or putting Plaintiffs at risk of being placed into segregated facilities, in violation of Title II of the Americans With Disabilities Act, 42 U.S.C. §§ 12131–12165 (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Medicaid Act, 42 U.S.C. §§ 1396–1396v (“Medicaid”); the Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r (“NHRA”); Early and Periodic Screening Diagnostic, and Treatment Services, 42 U.S.C. § 1396d(r) (“EPSDT Provisions”);8 and 42 U.S.C. § 1983. Id. at ¶ 21. Plaintiffs also seek a permanent injunction requiring Defendants to (1) “stop segregation of medically fragile children who are unnecessarily institutionalized in nursing homes and to provide integrated community services;” and (2) “perform adequate Level I and Level II PASSR reviews to institutionalized children and to provide such services as determined by the Level II screening[.]” ECF No. 62 at 46. Furthermore, Plaintiffs ask this Court to order
8 One requirement of accepting Medicaid funding from the Federal Government “is that every participating State must have an [EPSDT] program. EPSDT programs provide health care services to children to reduce lifelong vulnerability to illness or disease. The EPSDT provisions of the Medicaid statute require participating States to provide various medical services to eligible children, and to provide notice of the services.” Frew, 540 U.S. at 433–34.
4

Case 0:12-cv-60460-WJZ Document 393 Entered on FLSD Docket 07/22/2015 Page 5 of 9
Defendants to (1) “provide [PDN] services that will allow the Plaintiffs and Plaintiff class members to live in their homes and communities;” and (2) “cease the practice of denying or reducing Plaintiff and Plaintiff Class members’ services at recertification where there has been no change in the medical necessity of such services[.]” Last, Plaintiffs seek an “[a]ward of compensatory services . . . to ameliorate or remediate the conditions resulting from the Defendants’ failure to provide the medically necessary services,” as well as attorneys’ fees and costs. ECF No. 62 at 46.
It is the final request for relief that is the subject of the instant Motion— “compensatory services.” Specifically, Defendants argue that awards of compensatory services are limited to suits arising from the Individuals with Disabilities Education Act (the “IDEA”), which authorizes such awards to injured children. ECF No. 341 at 1–2. Likewise, Defendants argue that nothing in the ADA, the Rehabilitation Act, or the Medicaid Act authorizes awards of compensatory services. ECF No. 341 at 3.
Plaintiffs argue that their request for compensatory services is not premised on the IDEA; rather, Plaintiffs believe that an award of compensatory services is within this Court’s general equitable powers and awardable based on the EPSDT Provisions of the Medicaid Act. ECF No. 344 at 7.
ANALYSIS Federal Rule of Civil Procedure 12(c) provides that “[a]fter pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” “Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts.” Hawthorne v. Mac Adjustment, Inc., 140
5

Case 0:12-cv-60460-WJZ Document 393 Entered on FLSD Docket 07/22/2015 Page 6 of 9
F.3d 1367, 1370 (11th Cir. 1998). A reviewing court must accept the pleaded facts as true and view them in a light most favorable to the nonmoving party. Id.
Defendants request this Court to grant judgment in their favor as to Plaintiffs’ request for compensatory services intended to ameliorate or remediate the conditions resulting from Defendants’ failure to provide medically necessary services. In support, Defendants cite Spychalsky v. Sullivan, No. CV010958DRHETB, 2003 WL 22071602 (E.D.N.Y. Aug. 29, 2003), for the proposition that the ADA, the Rehabilitation Act, and the Medicaid Act do not permit Plaintiffs to seek an award of compensatory services similar to that awarded in cases arising under the IDEA.
In Spychalsky, a pro se plaintiff filed an action under the ADA, the Rehabilitation Act, and various state laws, but not the Medicaid Act. Spychalsky, 2003 WL 22071602 at *1. In treating the plaintiff’s Title II claims as Title III claims under the ADA, the court granted judgment in favor of the defendants because the plaintiff sought monetary damages, which are not available to private plaintiffs under the ADA. Id. at *5. The plaintiff had argued that he was entitled to “compensatory education damages.” Id. at *6. In dismissing his argument, the court reasoned that compensatory education damages are only awarded in IDEA cases. Id.
Spychalsky is distinguishable from the instant case in two ways. First, Spychalsky did not involve claims under the EPSDT Provisions. Second, the plaintiff in Spychalsky was seeking damages, not injunctive relief. Notwithstanding Spychalsky’s inapplicability to the case at bar, Plaintiffs fail to direct this Court to any law showing that they are entitled to “compensatory services” for Defendants’ past failure to adhere to federal requirements. It seems Plaintiffs have taken some liberal readings of the
6

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EPSDT Provisions to ask this Court to mandate Defendants to provide services that would remediate Defendants’ past failures. There is no question that Plaintiffs are not entitled to monetary damages. The only question is whether an injunction requiring “compensatory services” is tantamount to money damages or permissible in this case.
Plaintiffs’ Response cites many cases involving injunctive relief in Medicaid cases; however, none of the cited law includes an award of compensatory services. To the extent that Plaintiffs think the catchall section of the EPSDT Provisions validates the request for compensatory services, Plaintiffs are incorrect. The catchall provision simply explains the State’s duty to provide “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C.A. § 1396d(r)(5). This provision does not mention compensatory services to correct or ameliorate issues created by the State, it references issues discovered by the screening services. Thus, this provision alone does not support Plaintiffs’ request for compensatory services.9
Plaintiffs have not shown this Court any precedent awarding “compensatory services” as injunctive relief. Instead, Plaintiffs cite K.G. ex rel. Garrido v. Dudek, 839 F. Supp. 2d 1254 (S.D. Fla. 2011), for the proposition that a court may order compliance with § 1396d(r)(5). Contrary to Plaintiffs’ position, K.G. only supports an argument that a party may obtain a preliminary injunction requiring the State to comply with
9 In Plaintiffs’ own words: “The only mention of compensatory services in the entire complaint is Paragraph 11 of the prayer for relief is just that, a request to the Court upon a finding of liability that the claims sued on are valid and the court should structure the injunctive and declaratory relief using methods previously relied on by other courts so that the intent of the EPSTD and the ADA are carried out.” ECF No. 344 at 10.
7

Case 0:12-cv-60460-WJZ Document 393 Entered on FLSD Docket 07/22/2015 Page 8 of 9
§ 1396d(r)(5)—it does not stand for the proposition that “compensatory services” are awardable.
Accordingly, because this Court’s equitable powers only allow for injunctive relief requiring Defendants to comply with the EPSDT Provisions, which would necessarily require Defendants to “correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services,” Plaintiffs’ request for “compensatory services” is unfounded. However, Plaintiffs’ prayer for relief will be interpreted as a request for this Court to craft an injunction that incorporates the catchall provision of the EPSDT, if applicable.
RECOMMENDATION Based on the foregoing, the undersigned RECOMMENDS that Defendants’ Motion for Judgment on the Pleadings, ECF No. 341, be GRANTED IN PART and DENIED IN PART as set forth herein. The parties will have fourteen (14) days after being served with a copy of this Report and Recommendation within which to file written objections, if any, with the Honorable William J. Zloch, United States District Judge. See 28 U.S.C.A. § 636(b)(1) (providing procedure for review of magistrate judge report and recommendation). Failure to timely file objections shall bar the parties from a de novo determination by Judge Zloch of any issue covered in the Report and shall bar the parties from challenging, on appeal, the factual findings accepted or adopted by this Court, except upon grounds of plain error or manifest injustice. See Thomas v. Arn, 474 U.S. 140, 145–53 (1985) (holding that party waives appellate review of magistrate judge’s factual findings that were not objected to within period prescribed by 28 U.S.C. § 636(b)(1)); see also Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) (holding
8

Case 0:12-cv-60460-WJZ Document 393 Entered on FLSD Docket 07/22/2015 Page 9 of 9
that under current Eleventh Circuit rule: “[T]he failure to object limits the scope of our appellate review to plain error review of the magistrate judge’s factual findings[; however,] failure to object to the magistrate judge’s legal conclusions does not preclude the party from challenging those conclusions on appeal.”).
DONE and SUBMITTED at Fort Lauderdale, Florida, this 22d day of July 2015.

Copies furnished to: Honorable William J. Zloch All Counsel of Record

_____________________________________ PATRICK M. HUNT UNITED STATES MAGISTRATE JUDGE

9

 
 Case 0:12-cv-60460-WJZ Document 395 Entered on FLSD Docket 08/07/2015 Page 1 of 31
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION Case No.: 12-60460-CIV-ZLOCH/HUNT
A.R., by and through her next friend, SUSAN ROOT, et al.,
Plaintiffs, v.
ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al.,
Defendants. _____________________________________/ UNITED STATES OF AMERICA
Plaintiff, v. STATE OF FLORIDA
Defendant. _____________________________________/
REPORT AND RECOMMENDATION This cause is before this Court on Plaintiffs’ Second Renewed Motion for Class Certification, filed on April 3, 2015. ECF No. 329. On October 9, 2014, the Honorable William J. Zloch referred to the undersigned United States Magistrate Judge all pretrial motions for report and recommendation or disposition. ECF No. 275; see also 28

Case 0:12-cv-60460-WJZ Document 395 Entered on FLSD Docket 08/07/2015 Page 2 of 31
U.S.C.A. § 636(b); S.D. Fla. L.R., Mag. R. 1. On July 14, 2015, the undersigned held a
hearing on the motion for class certification. ECF No. 386. Having heard oral argument
and having carefully reviewed Plaintiffs’ Motion, the Response and Reply thereto, the
entire case file, and the applicable law, and being otherwise duly advised in the
premises, it is hereby recommended that Plaintiffs’ Renewed Motion for Class
Certification be DENIED, as more fully set forth herein.
I. BACKGROUND
In this putative class action, Plaintiffs—A.R., C.V., M.D., C.M., B.M., A.G., T.H.,
T.F., L.J., and A.C1—are children who have been diagnosed as medically fragile2 or
children who need skilled care services3 through Florida’s Medicaid program. On March
1 Since the commencement of this action, Plaintiffs T.F., L.J., and A.C. have died. See ECF Nos. 147, 245, 260.
2 “Medically Fragile” means a person
who is medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parental nutrition (TPN), is ventilator dependent, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.
Fla. Admin. Code. R. 59G-1.010(165). “‘Medically Complex” means that a person has chronic debilitating diseases or conditions of one or more physiological or organ systems that generally make the person dependent upon 24-hour-per-day medical, nursing, or health supervision or intervention.” Id. R. 59G1.010 (164).
3 Florida Administrative Code Rule 59G-4.290(3) provides, in part, as follows:
(3) Skilled Services Criteria.
(a) To be classified as requiring skilled nursing or skilled rehabilitative services in the community or in a nursing facility, the recipient must require the type of medical, nursing or rehabilitative services specified in this subsection.
(b) Skilled Nursing. To be classified as skilled nursing service, the service must meet all of the following conditions:
1. Ordered by and remain under the supervision of a physician; 2. Sufficiently medically complex to require supervision, assessment, planning, or intervention by a registered nurse[;] 3. Required to be performed by, or under the direct supervision of, a registered nurse or other health care professionals for safe and effective
2

Case 0:12-cv-60460-WJZ Document 395 Entered on FLSD Docket 08/07/2015 Page 3 of 31
13, 2012, Plaintiffs filed the instant action against Defendants Elizabeth Dudek, in her official capacity as Secretary for the Agency for Health Care Administration (“AHCA”);4
Harry Frank Farmer, Jr., in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health (“FDOH”);5 Kristina Wiggins, in her official capacity as Deputy Secretary of the FDOH and Director of Children’s Medical Services;6 and eQHealth Solutions Inc. (“eQHealth”).7 On August 23, 2012, Plaintiffs filed their
Second Amended Complaint (hereinafter, the “Complaint”), which is the operative
pleading in this case. ECF No. 62. Plaintiffs seek injunctive and declaratory relief
against Defendants.
At the time of the Complaint A.C., A.R., C.V., M.D., C.M., B.M., and T.F. were “at
risk” Plaintiffs who live at home but were at risk of unnecessary institutionalization in
nursing facilities. ECF No. 62 at 23–32. T.H., L.J., and A.G. were institutionalized
Plaintiffs who had been placed in nursing facilities. ECF No. 62 at 18–22. However, no
Plaintiffs are currently institutionalized. ECF No. 237 at 13.
performance; 4. Required on a daily basis; 5. Reasonable and necessary to the treatment of a specific documented illness or injury; and 6. Consistent with the nature and severity of the individual’s condition or the disease state or stage. Fla. Admin. Code R. 59G-4.290(3)(a)–(b). 4 The AHCA is designated as “the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act.” § 409.902, Fla. Stat. (2014). 5 John Armstrong, M.D., is the current State Surgeon General and Secretary of the FDOH. 6 Cassandra G. Pasley is the current Director of Children’s Medical Services. 7 eQhealth makes medical-necessity determinations on behalf of AHCA and acts as a witness for AHCA in all fair-hearing proceedings resulting from decisions and actions made by eQHealth. On January 30, 2015, Defendant eQHealth Solutions Inc. and Plaintiffs filed a Joint Stipulation of Dismissal with Prejudice, and this Court entered a subsequent Final Order of Dismissal as to eQHealth. ECF No. 321–22.
3

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The Complaint alleges that Defendants are denying Medicaid services to Plaintiffs, including private-duty nursing (“PDN”) services, due to the adoption of “uniform policies, practices, and regulations to reduce [PDN] services.” ECF No. 62 at ¶¶ 18–19. Plaintiffs further claim that Defendants “failed and continue to fail to provide medically necessary services in home and community settings to Medicaid recipient children in Florida.” ECF No. 62 at ¶ 20.
Based on the pleaded facts, Plaintiffs ask this Court to declare that Defendants’ policies, regulations, actions, and omissions are unnecessarily institutionalizing Plaintiffs and class members or putting Plaintiffs and class members at risk of being placed into segregated facilities, in violation of Title II of The Americans With Disabilities Act, 42 U.S.C. §§ 12131–12165 (the “ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”); The Medicaid Act, 42 U.S.C. §§ 1396–1396v (“Medicaid”); The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r (the “NHRA”); Early and Periodic Screening Diagnostic, and Treatment Services, 42 U.S.C. § 1396d(r) (“EPSDT Provisions”); and 42 U.S.C. § 1983. ECF No. 62 at ¶ 21. Plaintiffs also seek a permanent injunction requiring Defendants to (1) “stop segregation of medically fragile children who are unnecessarily institutionalized in nursing homes and to provide integrated community services;” and (2) “perform adequate Level I and Level II PASSR reviews to institutionalized children and to provide such services as determined by the Level II screening[.]” ECF No. 62 at 46. Furthermore, Plaintiffs ask this Court to order Defendants to (1) “provide [PDN] services that will allow the Plaintiffs and Plaintiff class members to live in their homes and communities;” and (2) “cease the practice of denying or reducing Plaintiff and Plaintiff
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[c]lass members’ services at recertification where there has been no change in the medical necessity of such services[.]”8 ECF No. 62 at 46. Each Medicaid recipient is provided services for a specific certification period. ECF No. 62 at ¶ 84. Services can be approved for up to 180 days, and the review process occurs at least every six months. ECF No. 62 at ¶ 85.
The Complaint sets forth allegations of an “Institutionalized Plaintiffs and Sub Class,” ECF No. 62 at 3, and an “At-Risk Plaintiffs and Sub-Class,” ECF No. 62 at 3. However, on November 27, 2012, Plaintiffs filed their first Motion for Class Certification seeking certification of the following class: “All current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities.” ECF No. 95 at 1. Plaintiffs submitted forty-four exhibits in support of their motion, consisting mostly of affidavits from parents or guardians of medically fragile children whose services have been reduced. ECF No. 95–96. After a hearing on the motion, this Court denied the motion without prejudice to refile after class-specific discovery was conducted. ECF No. 203. This Court determined that the record was not sufficiently developed for this Court to be able to discern whether this case is premised on systemic policy issues or individualized errors in the application of legal policies. ECF No. 203 at 5.
On February 19, 2013, Defendants filed a motion to dismiss the Complaint arguing that Plaintiffs’ claims were moot because Defendants changed the challenged
8 Plaintiffs also sought an “[a]ward of compensatory services . . . to ameliorate or remediate the conditions resulting from the Defendants’ failure to provide the medically necessary services,” as well as attorneys’ fees and costs. ECF No. 62 at 46. However, the undersigned recently recommended, by separate Report and Recommendation, that Plaintiffs should not be able to obtain “compensatory services” because there is no basis in law for this relief under Plaintiffs’ causes of action.
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policies. ECF No. 117. After full briefing on the issues, this Court denied Defendants’ motion for two reasons. ECF No. 175. First, this Court held that most of the changes on which Defendants relied were not final because the changes were still subject to an objection period before becoming finalized. ECF No. 175 at 14–15. Second, this Court determined that notwithstanding any changes that may become finalized, Defendants had not cured at least one important provision that was relevant to Plaintiffs’ case. Specifically, this Court held that the State had not changed the regulatory definition of “medically necessary” or “medical necessity” as prescribed in Rule 59G-1.010(166)(a) of the Florida Administrative Code. ECF No. 175 at 19.
On July 22, 2013, the United States filed an action against the State of Florida— challenging the same State policies and procedures—seeking injunctive and declaratory relief, as well as compensatory damages.9 United States v. Florida, No. 13-CV-61576, ECF No. 1. On December 6, 2013, this Court consolidated Plaintiffs’ action with the United States’ case because both actions involved common questions of law and fact. See ECF No. 214.
On December 19, 2013, Plaintiffs filed a Renewed Motion for Class Certification, including thirty exhibits. ECF No. 220. On March 3, 2014, in response to Plaintiffs’ Renewed Motion for Class Certification, Defendants also renewed their motion to dismiss Plaintiffs’ Complaint. ECF No. 237. Defendants contended, in part, that formerly pending rule changes had finalized, which mooted any of Plaintiffs’ claims that were premised on the prior rules. ECF No. 237. Plaintiffs argued, inter alia, that their claims were still justiciable because Defendants had failed to change the definition of
9 The United States’ claim against the State is based solely on an alleged violation of Title II of the ADA.
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“medically necessary” or “medical necessity,” as addressed in this Court’s prior ruling. On September 9, 2014, this Court denied the pending Renewed Motion for Class
Certification, again without prejudice, so that this Court could address the jurisdictional issues raised in Defendants’ renewed motion to dismiss. ECF No. 263.
On December 29, 2014, this Court adopted the undersigned’s Report and Recommendation on Defendants’ motion to dismiss, see ECF No. 310, wherein the undersigned concluded, in part, as follows:
This Court expressly stated that Plaintiffs’ claims were not moot because Defendants had not changed the challenged definition that permeates Plaintiffs’ claims. Thus, even if it is presumed that Defendants would not return the now finalized rules to their prior language and applications, Defendants’ purported termination of the offending conduct is still ambiguous because the challenged definition remains unchanged. ECF No. 287 at 26. On April 3, 2015, Plaintiffs filed their Second Renewed Motion for Class Certification, ECF No. 329, and a hearing was held on July 14, 2015, ECF No. 386. At the hearing, Plaintiffs’ counsel made arguments, but relied on their attached exhibits in support of their request for class certification and did not attempt to present more evidence.
II. ANALYSIS In the prior Report and Recommendation on Defendants’ motion to dismiss, the undersigned previously set forth the legal landscape applicable to this case, including discussion of the Supreme Court case of Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), which addressed Title II claims in the context of two mentally retarded women who were unnecessarily institutionalized by the State of Georgia. See ECF No. 287 at 7–10. The undersigned hereby incorporates the prior Report and Recommendation by
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reference and will focus this Report and Recommendation on the class-action analysis. A. Class-Action Standard
This Court “has broad discretion in determining whether to certify a class.” Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992) (citing Coon v. Ga. Pac. Co., 829 F.2d 1563, 1566 (11th Cir. 1987)). “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). Federal Rule of Civil Procedure 23 guides the court in deciding whether class certification is appropriate. Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003). “Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is ‘adequately defined and clearly ascertainable.’” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)10). “After a court determines that a class is ascertainable, it then considers whether the Rule 23 factors are met.” Bush v. Calloway Consolidated Grp. River City, Inc., No. 3:10-cv-841-J-37MCR, 2012 WL 1016871, at *3 (M.D. Fla. Mar. 26, 2012).
Federal Rule of Civil Procedure 23(a) permits the certification of a class when a class representative is part of the class and possesses the same interest and suffered the same injury as the proposed class members. Wal–Mart, 131 S. Ct. at 2250. “The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—effectively limit the class claims to those fairly encompassed by the
10 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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named plaintiff’s claims.” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)) (internal quotation marks omitted). Rule 23(a) sets forth the following prerequisites:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Once a party establishes the four prerequisites, a class action may be pursued when, inter alia, “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); see also Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997) (“An action may be maintained as a class action only if all four prerequisites of Rule 23(a) are satisfied and, in addition, the requirements of one of the three subsections of Rule 23(b) are also met.”). “‘The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted.’” Lakeland Reg’l Med. Ctr., Inc. v. Astellas US, LLC, 763 F.3d 1280, 1291 (11th Cir. 2014) (quoting Wal–Mart, 131 S. Ct. at 2257). The Rule is not a pleading standard; rather, a party seeking class certification must “affirmatively demonstrate his compliance with the Rule.” Wal–Mart, 131 S. Ct. at 2552; see also Lakeland Reg’l Med. Ctr., 763 F.3d at 1291 (stating that it was plaintiff’s
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burden to affirmatively demonstrate appropriateness of class certification). Because class certification requires proofs, “it may be necessary for the court to probe behind the pleadings” and conduct “a rigorous analysis” on whether the Rule 23(a) prerequisites have been satisfied. Falcon, 457 U.S. at 160–61. Furthermore, the “‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim,” Wal–Mart, 131 S. Ct. at 2551, because “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action[,]’” Falcon, 457 U.S. at 160 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978)). However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194–95 (2013); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.”). B. Definition and Ascertainability
A party satisfies the threshold requirement of adequate definition and ascertainability if the proposed class “can be ascertained by reference to objective criteria” and the members thereof can be identified through “a manageable process that does not require much, if any, individual inquiry.” Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782, 787 (11th Cir. 2014) (internal quotation marks omitted); see also Moore v. Walter Coke, Inc., 294 F.R.D. 620, 624 (N.D. Ala. 2013)
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(“Ascertainability depends on the class definition, and a successful definition is one that is precise, objective, and presently ascertainable by reference to objective criteria.” (internal quotation marks and alterations omitted)). However, the same level of precision is not required when a party seeks to certify a class under 23(b)(2). See Newberg on Class Actions § 3:7 (5th ed. 2015) (collecting cases); see also Kenneth R. ex rel. Tri-Cnty CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 263–64 (D.N.H. 2013) (“The level of precision, or ‘definiteness’ required, varies depending on the type of class sought to be certified under part (b) of Rule 23.”).
The First Circuit Court of Appeals has held that “notice to the members of a (b)(2) class in not required and the actual membership of the class need not . . . be precisely delimited.” Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972). Likewise, the Tenth Circuit Court of Appeals has more recently stated that “while the lack of identifiability is a factor that may defeat Rule 23(b)(3) class certification, such is not the case with respect to class certification under Rule 23(b)(2).” Shook v. El Paso Cnty., 386 F.3d 963, 972 (10th Cir. 2004) (citing Yaffe, 454 F.2d at 1366). The focus of a Rule 23(b)(2) class is on “the conduct complained of [as] the benchmark for determining whether a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often ‘incapable of specific enumeration.’” Id. (citing Committee’s Notes to Revised Rule 23; 3B Moore’s Federal Practice ¶ 23.01 [10-2] (2d ed. 1969)).
However, the former Fifth Circuit Court of Appeal in DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970), required a clearly defined and ascertainable definition for a Rule 23(b)(2) class and denied certification of the proposed class because it was too
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amorphous.11 As presented in the Second Renewed Motion for Class Certification (and the
prior two motions for class certification), Plaintiffs seek certification of one class, as follows: “All current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities.”12
Though precise definitions are less likely to be required when proceeding under Rule 23(b)(2), Plaintiffs’ definition is still too broad in scope and carries an amorphous “at risk” indicator which is elusive and lacks objective criteria defining the class.
First, the proposed class includes all children in the State Medicaid system who are institutionalized or at risk of institutionalization, without accounting for whether the institutionalization is necessary or justified. The Court in Olmstead did not condemn institutionalization, it condemned unnecessary institutionalization. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999). As such, Plaintiffs’ definition is over inclusive because it includes children who are unharmed by the policies alleged to be causing institutionalization and, thus, lack standing. See, e.g., Kenneth R. ex rel. Tri-Cnty. CAP, Inc./GS v. Hassan, 293 F.R.D. 254, 264 (D.N.H. 2013). However, this potential problem is easily curable by adding the term “unnecessarily” and “unnecessary” to modify “institutionalized” and “institutionalization,” respectively. See In re Monumental Life Ins.
11 The class sought was for “‘residents of this State active in the “peace movement” who have been harassed and intimidated as well as those who fear harassment and intimidation in exercising their First Amendment right of free expression in the form of passing out leaflets in furtherance of their cause.’” DeBremaecker, 433 F.2d at 734.
12 Plaintiffs maintain that they are proposing one class, while Defendants phrase the matter as two subclasses. Interestingly, the Complaint sets forth the claims as two sub-classes, “institutionalized” and “at-risk-of institutionalization,” but Plaintiffs seem to have abandoned this approach. ECF No. 62 at 38.
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Co., 365 F.3d 408 (5th Cir. 2004) (“District courts are permitted to limit or modify class definitions to provide the necessary precision.”).
Second, but most importantly, as set forth in the undersigned’s adopted Report and Recommendation on Defendants’ motion to dismiss, the determination of when a risk is sufficient to confer standing is fact intensive and case specific. See ECF No. 287 at 18–19 (“It appears that the question is not whether all disabled children in any Medicaid system can bring generalized claims against abstract policies that may or may not result in unnecessary institutionalization . . . . Instead, the Article III question is whether the particular disabled children have alleged effects of the infringing polices that are real and concrete enough for a court to find a true threat of institutionalization.”); see also ECF No. 310 (order adopting R&R). Children in the State Medicaid program who have not had their community services materially reduced by the allegedly deficient polices cannot be said to be at risk of imminent injury—unnecessary institutionalization—and thus lack standing.
In sum, the proposed class, though analyzed under a less stringent standard than a Rule 23(b)(3) class, is simply too broad and over inclusive so as to be adequately defined. See Kenneth R. ex rel., 293 F.R.D. at 264–65 (requiring objective and relevant limiting criteria to define “at risk”). Furthermore, alteration to this portion of Plaintiffs’ proposed class is too fundamental to their claims for this Court to independently take control and alter the definition. There has been no proffer of any objective criteria that could help define the at-risk members or any potential sub-class or a separate proffer of evidence to support a finding of numerosity, commonality, typicality, and adequacy of such a sub-class. Accordingly, the undersigned concludes
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that Plaintiffs’ proposed class lacks the required definiteness and ascertainability required to obtain class certification.
Even if the proposed class were adequately defined and ascertainable, the undersigned also concludes that certification is unnecessary under the current circumstances. C. Necessity of Class Certification
In addition to Rule 23’s requirements, “a district court should ask itself whether the need for the class exists to offset the concomitant expense and complexities associated with class action suits.” McArthur v. Firestone, 690 F. Supp. 1018, 1018 (S.D. Fla. 1988); see also Ruiz v. Robinson, No. 1:11-cv-23776-KMM, 2012 WL 3278644, at *2 (S.D. Fla. Aug. 9, 2012); Hall v. Burger King Corp., No. 89-0260-CIVKEHOE, 1992 WL 372354, at *12 (S.D. Fla. October 26, 1992) (“Whether plaintiff proceeds as an individual or on a class suit basis, the requested [injunctive] relief generally will benefit not only the claimant but all other persons subject to the practice of the rule under attack.” (internal quotation marks omitted)). Though some Circuits expressly disagree with the requirement of necessity,13 this Circuit’s binding precedent has applied the requirement. See United Farmworkers Hous. Project, Inc. v. City of Delray Beach, 493 F.2d 799, 812 (5th Cir. 1974); Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1964) (“The very nature of the rights appellants seek to vindicate requires that the decree run to the benefit not only of appellants but also for all persons similarly situated.”), cert. denied, 376 U.S. 910 (1964); accord M.R. v. Bd. of Sch. Comm’rs of Mobile Cnty., 286 F.R.D. 510, 519–20 (S.D. Ala. 2012) (citing former Fifth Circuit cases
13 See Dionne v. Bouley, 757 F.2d 1344, 1356 (1st Cir. 1985); Brown v. Scott, 602 F.2d 791, 795 (7th Cir. 1979); see generally Newberg on Class Actions § 4:35 (5th ed. 2015) (collecting cases on necessity requirement).
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as binding precedent and stating: “More importantly, binding precedent lends strong support to the notion that it is appropriate for district courts to consider the benefits and burdens in making a Rule 23(b)(2) certification decision, and to deny class certification where those benefits are insubstantial.”).
Defendants argue that class certification is unnecessary because injunctive relief against the state officials as to Plaintiffs would inure to the benefit of the proposed class without necessitating the concomitant expense and complexities associated with classaction suits. ECF No. 345 at 27 (citing McArthur, 690 F. Supp. at 1018). Put differently, if any Plaintiffs are granted injunctive relief in the form of having the Defendants change their policies, those same policies would benefit all Medicaid recipients. See, e.g., Access Now Inc. v. Walt Disney World Co., 211 F.R.D. 452, 455 (M.D. Fla. 2001) (“Finally, the Court finds that class certification in this action is unnecessary. The Plaintiffs are only seeking injunctive relief which, if granted, would necessarily benefit all other potential class members.”).
Plaintiffs argue that necessity is not a controlling factor when all of Rule 23’s requirements are satisfied. ECF No. 358 at 7 (citing ECF No. 138 at 3–6) (Plaintiffs’ Reply to Renewed Motion for Class Certification). All of the cases cited by Plaintiffs are non-binding precedent from other Circuits and do not guide this Court’s decision. Accordingly, absent any exception to the general requirement of necessity, the undersigned concludes that class certification is not appropriate in the instant case.
However, Plaintiffs also argue that the risk of mootness should influence this Court’s decision to certify a class. Indeed, if the circumstances showed that Plaintiffs’ case could become moot prior to judgment, class certification may be proper to ensure
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that the injunctive relief sought for the class is obtained notwithstanding the loss of Plaintiffs. See Lebron v. Wilkins, 277 F.R.D. 664, 666 (M.D. Fla. 2011) (citing Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981)). Here, though there have been some unfortunate deaths of three Plaintiffs, there remain seven Plaintiffs, and the undersigned concludes that the likelihood of all Plaintiffs’ claims becoming moot is too remote at this stage in the proceeding to mandate the application of an exception to the necessity requirement of class certification.
Notwithstanding the above conclusions and recommendation, in the event that this Court disagrees with the foregoing analysis and concludes that the class is adequately defined and that class certification is necessary, the undersigned will proceed to analyze the Rule 23(a) criteria as applied to the modified class. D. Standing and Mootness
Defendants once again assert that Plaintiffs’ claims are moot and that Plaintiffs lack standing to represent the unnecessarily institutionalized class members because no Plaintiffs are currently institutionalized. In fact, A.G. is the sole surviving Plaintiff that was institutionalized at the time of the Complaint, and he is no longer institutionalized.
Article III of the United States Constitution limits federal courts’ jurisdiction to actual “cases” and “controversies”—otherwise known as “justiciability.” See United States v. Rivera, 613 F.3d 1046, 1049 (11th Cir. 2010). “A claim is justiciable if it is definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character.” Id. at 1049–50 (quoting Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240–41 (1937)) (internal quotation marks
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omitted). Justiciability defines the judicial role by requiring the judiciary to defer to other branches of government when appropriate. Id. at 1050 (citing Erwin Chemerinsky, Federal Jurisdiction § 2.1, at 45 (5th ed. 2007)).
Two important elements of justiciability are standing and mootness. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167 (2000); see also Am. Civil Liberties Union v. The Fla. Bar, 999 F.2d 1486, 1489–90 (11th Cir. 1993). Standing is the requisite personal interest that must exist at the commencement of the litigation. Laidlaw, 528 U.S. at 189. Mootness, on the other hand, addresses whether the personal interest that existed at the beginning of the case is still present at a later stage of the proceeding. Id. However, the “description of mootness as standing set in a time frame is not comprehensive.” Id. at 190. Indeed, distinct from standing, there are exceptions to mootness that permit a court to retain jurisdiction over an otherwise moot case—e.g., allegedly unlawful activity that is “capable of repetition, yet evading review.” Id.
1. Institutionalized Plaintiffs’ Standing “‘[P]rior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing to raise each class subclaim.’” Murray v. Auslander, 244 F.3d 807, 810 (11th Cir. 2001) (quoting Prado– Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)); see also Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004). Here, Defendants claim that none of the Plaintiffs remain institutionalized, which is counter to the requirement that “the lead plaintiff must fit the class definition.” Hayes
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v. Wal–Mart Stores, Inc., 725 F.3d 349, 360 (3d Cir. 2013). Plaintiffs submit that the capable-of-repetition, yet-evading-review exception to the mootness doctrine should apply to the “ephemeral children with severe disabilities” because the class and its representatives are “inherently transitory.” ECF No. 358 at 8–9 (citing Olmstead v. L.C., 527 U.S. 581, 594 n.6 (1999); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191–92 (2000); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981)); see also Sierra Club v. Martin, 110 F.3d 1551, 1554 (11th Cir. 1997) (“To satisfy the ‘capable of repetition, yet evading review’ exception to mootness, the Supreme Court has required that (1) there be a reasonable expectation or demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.”). The inherently-transitory exception applies only “where it is ‘certain that other persons similarly situated’ will continue to be subject to the challenged conduct and the claims raised are ‘so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.’” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530–31 (2013) (quoting Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)). Importantly, this exception has been extended to situations where a defendant can “pick off” proposed class representatives by making their claims moot prior to certification. E.g., Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1090–92 (9th Cir. 2011) (applying inherently-transitory exception in class-certification case when the named plaintiff’s claim would be mooted by an unaccepted offer of judgment for the full amount of the named plaintiff’s individual claim).
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First, this Court has already determined that the capable-of-repetition, yetevading-review exception applies to the formerly institutionalized Plaintiff T.H. ECF No. 287 at 24. Thus, at least one Plaintiff has standing.
Second, the undersigned further concludes that application of the inherentlytransitory exception is appropriate for this Olmstead action because Defendants could “pick off” unnecessarily institutionalized Plaintiffs by releasing them from the nursing homes and mooting their claims prior to class certification. Therefore, to the extent that Plaintiffs seek to certify a class including unnecessarily institutionalized children, they have standing to do so.
2. Mootness Defendants also argue that they have cured the policies and procedures that Plaintiffs allege are the cause or evidence of the systemic problems—thus mooting this case. Indeed, since the filing of this case, Defendants’ policies have undergone many changes and Plaintiffs have acknowledge most of these changes while still maintaining that their claims are not moot. Specifically as to the remaining policy addressed in this Court’s orders on Defendants’ motions to dismiss, Defendants now assert that they have incorporated new language in the Home Health Services Coverage and Limitations Handbook regarding PDN services that overrides the statutory language referencing the convenience-of-the-caretaker standard—or the definitions of “medical necessity” and “medically necessary.” This Court previously addressed Defendants’ mootness argument and found that Defendants had not unambiguously terminated the convenience-of-the-caretaker standard because the statutory definition of “medical necessity” was unchanged. See
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ECF Nos. 287, 310. The undersigned incorporates by reference the legal framework and conclusion contained therein, and again concludes that ambiguity exists notwithstanding Defendants’ new assertions and alterations to the Handbook. Accordingly, it is recommended that this Court determine that Plaintiffs’ claims are not moot. To the extent that Defendants continuously make changes to their policies in an attempt to moot Plaintiffs’ claims, those issues previously addressed at the motion-todismiss stage can be readdressed at the summary-judgment stage. E. Numerosity
Rule 23(a)(1) requires a class to be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “Although mere allegations of numerosity are insufficient to meet this prerequisite, a plaintiff need not show the precise number of members in the class.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983). “Nevertheless, a plaintiff still bears the burden of making some showing, affording the district court the means to make a supported factual finding, that the class actually certified meets the numerosity requirement.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009). “[W]hile there is no fixed numerosity rule, generally less than twenty-one [plaintiffs] is inadequate, more than forty adequate, with numbers between varying according to other factors.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (internal quotation marks omitted). Furthermore, a court must consider “the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim.” Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981). Such factors are considered for purposes of determining the impracticability of joinder.
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See Armstead v. Pingree, 629 F. Supp. 273, 279 (M.D. Fla. 1986). As presented by Plaintiffs, the class includes 179 “medically complex” children
who are in the State’s Medicaid system and institutionalized in skilled-nursing facilities (this number is derived from eQHealth’s records as of November 4, 2013), ECF No. 329 Attach. 1;14 2,902 medically complex children in the State’s Medicaid system who are residing in the community throughout the State, ECF No. 329 Attach. 2 (Plaintiffs’ Motion asserts that 2,989 children are in the system, but their citation to Attachment 2 indicates that there were 2,902 children for the period July 1, 2012, through June 30, 2013); and 727 children in Florida’s Medical Foster Care (“MFC”) Program for the 2011– 2012 year, ECF No. 329 Attach. 4 (Plaintiffs get this number from an MFC “Fact Sheet” and cannot confirm whether these children are included in the 179 and 2902 children previously referenced). Though these numbers are not current and are approximations, this Court may make commonsense assumptions to find support for numerosity. See Martinez v. Mecca Farms, Inc., 213 F.R.D. 601, 605 (S.D. Fla. 2002) (citing Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925 (11th Cir. 1983)).
Defendants do not raise any challenge to Plaintiffs’ proof of numerosity as it would apply to the proposed class. Without question, the near 3,000 children included in the proposed class is well above any numerosity threshold and, as the children are located in diverse geographical locations throughout the State with changing locations and placements, joinder is impractical. See, e.g., M.D. v. Perry, 294 F.R.D. 7, 38 (S.D. Tex. 2013). Accordingly, the undersigned concludes that Plaintiffs satisfy the requirements of Rule 23(a)(1).
14 Defendants present evidence that there are at least 148 children in their system who are institutionalized in nursing facilities. ECF No. 345 Attach. 1 (Affidavit of Shevaun Harris).
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F. Commonality Rule 23(a)(2) requires that “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean merely that they have all suffered a violation of the same provision of law.” Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (citation and internal quotation marks omitted). “Their claims must depend upon a common contention . . . . That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. “‘Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.’” Id. (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131–32 (2009)).
Plaintiffs claim that four individual policies “among others,” “[i]n the aggregate,” “coalesce to form a cohesive practice of unnecessarily institutionalizing medically complex and medically fragile children.” ECF No. 329 at 11. Plaintiffs explain that the policy preference “is the glue that unites all members of the putative class because they have all either been institutionalized or put at risk of institutionalization as a result of this policy.” Id. Specifically, Plaintiffs propose the following question as a common question applicable to all class members: “Do any or all of Defendants’ policies and systemic practices, outlined in Named Plaintiffs’ Second Amended Complaint, violate Named Plaintiffs’ or the putative class members’ civil rights under the ADA, Rehabilitation Act, or the Medicaid Act via 42 U.S.C. § 1983?” ECF No. 329 at 8. In particular, the
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definitions of “medically necessary” and “medical necessity”—which incorporate the convenience-of-the-caretaker standard—have remained at the center of Plaintiffs’ claims and allegedly permeate Defendants’ review process resulting in the unnecessary institutionalization of medically fragile or complex children.
Defendants argue that Plaintiffs’ amorphous, systemic questions are really a composite of more specific questions that are not applicable to all members of the class. In fact, Defendants focus their entire Rule 23(a) argument on their position that the proposed class lacks commonality. See ECF No. 345 at 11–19.
It is no surprise that Plaintiffs wish to paint with a broad brush on one canvas and Defendants wish to frame this case as smaller, distinct pictures. The reality is that Plaintiffs’ claims are more akin to the art of pointillism.15 That is, the smaller pictures (or policies) that Defendants argue are not common to all members, could indeed be common to all members when they are juxtaposed and viewed together from a distance. Furthermore, one of the policies extends to the entire class—the convenience-of-the-caretaker standard.
Recently, in Wal–Mart, the Supreme Court appeared to tighten Rule 23’s commonality requirement in its decertification of an employment-discrimination class. 131 S. Ct. 2541; see also D.L. v. District of Columbia, 713 F.3d 120, 126 (D.C. Cir. 2013) (stating that Wal–Mart “changed the landscape” of commonality review). In holding that the district court improperly certified the class, the Court relied on its prior holding in General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982). In
15 “Pointillism” is “a technique of painting using tiny dots of various pure colors, which when viewed from a distance are blended by the viewer's eye.” Oxford English Dictionary (3d ed. 2006). The “technique was developed particularly by French neo-impressionist painters . . . as a means of producing luminous effects.” Id.
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Falcon, the Court determined, in the context of an employment discrimination claim, as follows:
Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typical of the class claims. Id. at 157–58. The Falcon Court then “suggested two ways in which that conceptual gap might be bridged.” Wal–Mart, 131 S. Ct. at 2253. First, if an employer “used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Falcon, 457 U.S. at 159 n.15. Second, “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Id. Applying the Falcon principles, the Court in Wal–Mart determined that the first way of bridging the gap did not apply to the case at issue because there were no testing procedures or company-wide evaluation methods that could be challenged. Thus, the Court attempted to bridge the gap by requiring significant proof that Wal–Mart operated under a general policy of discrimination. The Court determined that the plaintiffs failed to establish significant proof of a systemic policy of discrimination, and the Court reversed.
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Here, unlike in Wal–Mart, Plaintiffs’ Complaint challenges actual written policies, which when implemented in part or together, allegedly result in a systemic practice of unnecessary institutionalization. See, e.g., Lane v. Kitzhaber, 283 F.R.D. 587, 597 (D. Or. 2012) (“[A]s was the situation before Wal–Mart, despite the individual dissimilarities among class members, ‘commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.’” (quoting Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)). Plaintiffs further allege that by these policies being in existence and applied at least every six months, all medically complex and fragile children in the State’s Medicaid plan are suffering a harm and are at risk of institutionalization.16
Consistent with Wal–Mart, if Plaintiffs were claiming that Defendants operated under a general policy of unnecessary institutionalization, but did not challenge objective rules or methods of evaluation that resulted in institutionalization, Plaintiffs would be required to marshal significant proof of an unwritten policy or practice that was evidenced by empirical data. However, here, Plaintiffs have challenged at least four express policies, one of which remains at least ambiguously in effect—the convenienceof-the-caretaker standard—that could apply to the proposed class. A legal determination on the validity of those policies could be the glue that binds the class. See, e.g., Pashby v. Cansler, 279 F.R.D. 347, 353 (E.D.N.C. 2011) (holding that a determination of whether a specific policy is valid or invalid would resolve claims of potential class members, irrespective of particular factual circumstances), remanded on
16 As previously stated, the undersigned’s first conclusion is as follows: whether a class member is “at risk” is unascertainable based on a lack of objective criteria to show when a reduction in services is material enough to cause an imminent risk of unnecessary institutionalization. However, the instant analysis on commonality ignores any issues with the class as defined.
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other grounds, 708 F.3d 307 (4th Cir. 2013). Put differently, there will be a common question, and answer, as to whether the application of the convenience-of-the-caretaker standard to the class runs afoul of federal law. Indeed, without conceding that the policies violate Olmstead, but repeatedly arguing mootness, Defendants have been attempting to rid their written policies of the alleged issues that Plaintiffs assert cause unnecessary institutionalization.17 It is not necessary that all questions be common to the class—one common question will do. D.L. v. District of Columbia, 713 F.3d 120, 128 (2013) (citing Wal–Mart, 131 S. Ct. at 2556).
In sum, Plaintiffs’ claim of systemic failure is actually an amalgam of individualized policies, one of which is still generally applicable to the entire class, for which a determination of its legality would be a common dispositive question leading to a yes/no answer applicable to the entire class. Thus, the undersigned concludes that Plaintiffs satisfy the requirements of Rule 23(a)(2). G. Typicality
Rule 23(a)(3) requires “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Class members’ claims need not be identical to satisfy the typicality requirement; rather, there need only exist ‘a sufficient nexus . . . between the legal claims of the named class representatives and those of individual class members to warrant class certification.’” Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th Cir. 2012) (quoting Prado– Steiman v. Bush, 221 F.3d 1266, 1278–79 (11th Cir. 2000)) (alteration in original). “Although typicality and commonality may be related,” the two concepts have been
17 Though Defendants have altered other policies (one after acknowledging a failure to provide appropriate PASSR screenings), the existence of these policies at one time could still support Plaintiffs’ claim that Defendants have a systemic problem.
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distinguished “by noting that, ‘[t]raditionally, commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the named plaintiff in relation to the class.’” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1275 (11th Cir. 2009) (quoting Piazza v. Ebsco Indus., 273 F.3d 1341, 1346 (11th Cir. 2001)) (alteration in original). But see M.D. v. Perry, 294 F.R.D. 7, 29 (S.D. Tex. 2013) (“Often, once commonality is shown typicality will follow as a matter of course.”). “Factual distinctions between the claims of the named plaintiffs and those of other class members will not necessarily defeat a finding of typicality. Thus, a strong similarity of legal issues will suffice despite substantial factual differences.” In re Amerifirst Sec. Litigation, 139 F.R.D. 423, 428 (citing Appleyard v. Wallace, 754 F.2d 955, 959–63 (11th Cir. 1985), disapproved of on other grounds, Green v. Mansour, 474 U.S. 64, 67 (1985)).
Defendants do not present any argument against a finding of typicality, except to the extent that their commonality argument blends into typicality. Plaintiffs are medically complex Medicaid recipients under the age of twenty one who have allegedly been unnecessarily institutionalized in a nursing facility and/or are currently at risk of being unnecessarily institutionalized based on the application of Defendants’ policies. Plaintiffs’ claims are typical of the proposed class in that their claims arise from Defendants’ application of policies applicable to the entire class. Therefore, the undersigned concludes that Plaintiffs satisfy the requirements of Rule 23(a)(3). H. Adequacy
Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The court’s determination
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on adequacy of representation requires two distinct inquiries: “(1) whether any substantial conflicts of interest exist between the representative and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003). “Significantly, the existence of minor conflicts alone will not defeat a party’s claim to class certification: the conflict must be a ‘fundamental’ one going to the specific issues in controversy.” Id. (citing 7A Charles Alan Wright et al., Federal Practice & Procedure § 1768, at 326–27 (2d ed. 1986)). If some class members claim to have been harmed by the same conduct that helped other class members, such a situation would be a fundamental conflict. Id. Furthermore, “[c]ounsel will be deemed adequate if they are shown to be qualified, adequately financed, and possess sufficient experience in the subject matter of the class action.” City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 651 (S.D. Fla. 2010).
Defendants have not argued that Plaintiffs or Plaintiffs’ counsel are inadequate to represent the class, nor could they reasonably do so. As such, the undersigned concludes that Plaintiffs satisfy the requirements of Rule 23(a)(4). Thus, in the event that this Court deems class certification appropriate, this Court should appoint Matthew W. Dietz, The North Florida Center for Equal Justice, Inc., and the Florida State University College of Law Public Interest Law Center as Class Counsel. See Fed. R. Civ. P. 23(g). I. Rule 23(b)
In addition to satisfying Rule 21(a), Plaintiffs must also satisfy one of the three types of class actions set forth in Rule 23(b). Here, Plaintiffs seek certification pursuant
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to Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2); see also Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001) (requiring predominant relief sought in Rule 23(b)(2) class to be injunctive or declaratory relief).
There is no dispute among the parties that Plaintiffs are solely seeking injunctive and declaratory relief; thus, Plaintiffs fulfill Rule 23(b)(2)’s requirement. J. Miscellaneous Arguments
1. Whether the Adequacy of Defendants’ MFC Program Is Proper for ClassWide Determination.
Defendants argue that Plaintiffs failed to raise their Medical Foster Care (“MFC”) claim in the Complaint, ECF No. 62, and thus, cannot seek class determination on the issue. In addition, Defendants argue that no Plaintiffs have standing to challenge the MFC program because only one child is in foster care and eligible to be placed in a medical foster home, and that child, T.H., resides in a group home and does not claim to seek placement in a medical foster home. Plaintiffs’ Reply asserts that the MFC program is subsumed in the general policies challenged in the Amended Complaint. ECF No. 358 at 3.
Defendants cite Brown v. American Airlines, Inc., 285 F.R.D. 546, 560 (C.D. Cal. 2011), for the proposition that “[c]lass certification is not a time for asserting new legal theories that were not pleaded in the complaint.” ECF No. 345 at 20. The court in Brown made this statement because the named plaintiffs were attempting to change their prayer for relief from damages to injunctive relief in order to cure class-certification
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deficiencies. Thus, in addition to its nonbinding status, Brown does not support Defendants’ argument and is distinguishable from the instant case.
Furthermore, Defendants’ argument is more appropriately addressed by a dispositive motion, rather than couched in their response to Plaintiffs’ motion for class certification. The only issue before this Court is whether class certification is an appropriate mechanism to resolve Plaintiffs’ claims. Therefore, the undersigned recommends that Defendants’ MFC argument does not alter the class-certification analysis and recommendation.
2. Whether Compensatory Services Are Appropriate for Class-Wide Resolution.
Last, Defendants argue that an award of compensatory services would be intensely personal and individualized and, thus, is not appropriate for class-wide determination. ECF No. 345 at 29 (citing Wal–Mart, 131 S. Ct. at 2557). This issue is moot based on the undersigned’s prior Report and Recommendation concluding that “compensatory services” are not awardable.
III. RECOMMENDATION Based on the foregoing, the undersigned RECOMMENDS that Plaintiffs’ Second Renewed Motion for Class Certification, ECF No. 329, be DENIED because the proposed class is not clearly defined and ascertainable and because class certification is unnecessary. The parties will have fourteen (14) days after being served with a copy of this Report and Recommendation within which to file written objections, if any, with the Honorable William J. Zloch, United States District Judge. See 28 U.S.C.A. § 636(b)(1) (providing procedure for review of magistrate judge report and recommendation).
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Failure to timely file objections shall bar the parties from a de novo determination by Judge Zloch of any issue covered in the Report and shall bar the parties from challenging, on appeal, the factual findings accepted or adopted by this Court, except upon grounds of plain error or manifest injustice. See Thomas v. Arn, 474 U.S. 140, 145–53 (1985) (holding that party waives appellate review of magistrate judge’s factual findings that were not objected to within period prescribed by 28 U.S.C. § 636(b)(1)); see also Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) (holding that under current Eleventh Circuit rule: “[T]he failure to object limits the scope of our appellate review to plain error review of the magistrate judge’s factual findings[; however,] failure to object to the magistrate judge’s legal conclusions does not preclude the party from challenging those conclusions on appeal.”).
DONE and SUBMITTED at Fort Lauderdale, Florida, this 7th day of August, 2015.

Copies furnished to: Honorable William J. Zloch All Counsel of Record

_____________________________________ PATRICK M. HUNT UNITED STATES MAGISTRATE JUDGE

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17-13595 Docket

General Docket United States Court of Appeals for the Eleventh Circuit
Court of Appeals Docket #: 17-13595 Nature of Suit: 1446 Americans w/Disabilities Act-Othr A.R., et al v. Sec. Health Care Admin, et al Appeal From: Southern District of Florida Fee Status: Fee Not Required

Case Type Information: 1) U.S. Civil 2) U.S. Plaintiff 3) -

Originating Court Information: District: 113C-0 : 0:12-cv-60460-WJZ Court Reporter: Tammy Nestor Court Reporter: Unknown Reporter Civil Proceeding: William J. Zloch, Senior U.S. District Court Judge Secondary Judge: Patrick M. Hunt, U.S. Magistrate Judge Date Filed: 03/13/2012 Date NOA Filed: 08/08/2017

Prior Cases: 16-15518 Date Filed: 08/16/2016 Date Disposed: 12/20/2016 Disposition: Dismissed

Current Cases: Related

Lead 17-13572

Member 17-13595

Start

End

08/08/2017

Docketed: 08/08/2017 Termed: 09/17/2019

UNITED STATES OF AMERICA

Bonnie I. Robin-Vergeer Interested Party - Appellant Direct: 202-353-2464
[COR LD NTC U.S. Government] U.S. Department of Justice Civil Division, Appellate Staff MJB 3718 Firm: 202-514-3511 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530
Thomas E. Chandler Direct: 202-307-3192 [COR NTC U.S. Government] U.S. Department of Justice Civil Rights Division, Appellate Section Firm: 202-514-2195 950 PENNSYLVANIA AVE NW RM 3706 PO BOX 14403 WASHINGTON, DC 20530
Elizabeth Erin McDonald [NTC U.S. Government] U.S. Attorney General's Office 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530-0001
Emily M. Smachetti [NTC US Attorney] U.S. Attorney Service - SFL 99 NE 4TH ST 5TH FL MIAMI, FL 33132-2111
Victoria Thomas [NTC U.S. Government] U.S. Attorney General's Office 950 PENNSYLVANIA AVE NW

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versus

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WASHINGTON, DC 20530-0001
U.S. Attorney Service - Southern District of Florida [NTC US Attorney] U.S. Attorney Service - SFL 99 NE 4TH ST 5TH FL MIAMI, FL 33132-2111
Lindsey Weinstock [NTC U.S. Government] U.S. Attorney General's Office 950 PENNSYLVANIA AVE NW WASHINGTON, DC 20530-0001

SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, in her official capacity
Defendant - Appellee

Andrew Taylor Sheeran Direct: 850-412-3670 [NTC Retained] Florida Agency for Health Care Administration Firm: 850-922-5873 2727 MAHAN DR MS# 3 TALLAHASSEE, FL 32303

Leslei Gayle Street Direct: 850-412-3686 [NTC Retained] Florida Agency for Health Care Administration Firm: 850-922-5873 2727 MAHAN DR MS# 3 TALLAHASSEE, FL 32303

Stuart F. Williams Direct: 850-688-3225 [NTC Retained] Liberty Dental 6122 OBSERVATION CIR TALLAHASSEE, FL 32317

SURGEON GENERAL, STATE OF FLORIDA, in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health
Defendant - Appellee

Caryl Kilinski Direct: 850-414-3300 [NTC Government] Attorney General's Office Firm: 850-414-3300 PL-01 The Capitol TALLAHASSEE, FL 32399

Andrew Taylor Sheeran Direct: 850-412-3670 [NTC Retained] (see above)

Jennifer Ann Tschetter [NTC Government] Florida Department of Health Firm: 850-212-9593 4052 BALD CYPRESS WAY, BIN C65 TALLAHASSEE, FL 32399-3265

KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children's Medical Services
Defendant - Appellee

Caryl Kilinski Direct: 850-414-3300 [NTC Government] (see above)

Andrew Taylor Sheeran Direct: 850-412-3670 [NTC Retained] (see above)

Jennifer Ann Tschetter

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[NTC Government] (see above)

JOHN ARMSTRONG

Defendant - Appellee

Jay Patrick Reynolds Direct: 850-245-4005 [NTC Government] Florida Department of Health Bin A-02 Firm: 850-212-9593 4052 BALD CYPRESS WAY, BIN C65 TALLAHASSEE, FL 32399-3265

CELESTE PHILIP

Defendant - Appellee

William Eugene Gandy, Jr. Direct: 850-245-4398 [NTC Government] Florida Department of Health Firm: 850-212-9593 4052 BALD CYPRESS WAY, BIN C65 TALLAHASSEE, FL 32399-3265

STATE OF FLORIDA DEPARTMENT OF EDUCATION Terminated: 06/14/2019
Defendant - Appellee

STATE OF FLORIDA

Defendant - Appellee

Carter Glasgow Phillips Direct: 202-736-8270 [COR LD NTC Retained] Sidley Austin, LLP Firm: 202-736-8000 1501 K ST NW WASHINGTON, DC 20005

Andre V. Bardos [COR NTC Retained] GrayRobinson, PA Firm: 850-577-9090 301 S BRONOUGH ST STE 600 TALLAHASSEE, FL 32301-1724

Stefan R. Grow Direct: 850-412-3669 [COR NTC US Attorney] Florida Agency for Health Care Agency 2727 MAHAN DR MS#3 TALLAHASSEE, FL 32308

------------------------------

Collin P. Wedel Direct: 213-896-6000 [COR NTC Retained] Sidley Austin, LLP Firm: 213-896-6000 555 W 5TH ST STE 4000 LOS ANGELES, CA 90013

BAZELON CENTER FOR MENTAL HEALTH LAW Amicus Curiae

Ira A. Burnim Direct: 202-467-5730 x3120 [COR LD NTC Retained] Judge David L. Bazelon Center for Mental Health Law Firm: 202/467-5730 1101 15TH ST NW STE 1212 WASHINGTON, DC 20005-5002
Jean Mary Zachariasiewicz Direct: 410-962-1030 [COR NTC Retained] Brown Goldstein & Levy, LLP Firm: 410-962-1030

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120 E BALTIMORE ST STE 1700 BALTIMORE, MD 21202

C.V., by and through his next friends, Michael and Johnette Wahlquist Plaintiff

Paolo Annino [NTC Retained] Florida State University College of Law Firm: 904-644-5467 425 W JEFFERSON ST TALLAHASSEE, FL 32306

Matthew W. Dietz Direct: 305-669-2822 [NTC Retained] Disability Independence Group 2990 SW 35 AVE MIAMI, FL 33133

Edward Joseph Grunewald Direct: 850-701-3980 [NTC Retained] The North Florida Center For Equal Justice, Inc. Firm: 850-701-3980 2121 DELTA BLVD TALLAHASSEE, FL 32303-4209

NATIONAL FEDERATION OF THE BLIND

Amicus Curiae

Ira A. Burnim Direct: 202-467-5730 x3120 [COR LD NTC Retained] (see above)

Daniel Frank Goldstein Direct: 410-962-1030 [COR NTC Retained] Brown Goldstein & Levy, LLP Firm: 410-962-1030 120 E BALTIMORE ST STE 1700 BALTIMORE, MD 21202

Jean Mary Zachariasiewicz Direct: 410-962-1030 [COR NTC Retained] (see above)

M.D., by and through her next friend, Pamela DeCambra Plaintiff

Paolo Annino [NTC Retained] (see above)

Matthew W. Dietz Direct: 305-669-2822 [NTC Retained] (see above)

Edward Joseph Grunewald Direct: 850-701-3980 [NTC Retained] (see above)

NATIONAL DISABILITY RIGHTS NETWORK

Amicus Curiae

Ira A. Burnim Direct: 202-467-5730 x3120 [COR LD NTC Retained] (see above)

Jean Mary Zachariasiewicz Direct: 410-962-1030 [COR NTC Retained] (see above)

C.M., by and through his next friend, Norine Mitchell Plaintiff

Paolo Annino [NTC Retained] (see above)

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17-13595 Docket

Matthew W. Dietz Direct: 305-669-2822 [NTC Retained] (see above)

Edward Joseph Grunewald Direct: 850-701-3980 [NTC Retained] (see above)

AUTISTIC SELF ADVOCACY NETWORK

Amicus Curiae

Ira A. Burnim Direct: 202-467-5730 x3120 [COR LD NTC Retained] (see above)

Jean Mary Zachariasiewicz Direct: 410-962-1030 [COR NTC Retained] (see above)

DISABILITY RIGHTS FLORIDA

Plaintiff

David A. Boyer Direct: 850-488-9071 [NTC Retained] National Disability Rights Network 820 1ST ST NE STE 740 WASHINGTON, DC 33020

Molly Paris Direct: 305-788-9359 [NTC Retained] Florida Lawyers Assistance 2335 E ATLANTIC BLVD STE 410 POMPANO BEACH, FL 33062

ARC OF THE UNITED STATES

Amicus Curiae

Ira A. Burnim Direct: 202-467-5730 x3120 [COR LD NTC Retained] (see above)

Jean Mary Zachariasiewicz Direct: 410-962-1030 [COR NTC Retained] (see above)

EQHEALTH SOLUTIONS, INC., a Louisiana non-profit corporation Defendant

Thomas A. Crabb Direct: 850-425-6654 [NTC Retained] Radey Law Firm Firm: 850-425-6654 301 S BRONOUGH ST STE 200 TALLAHASSEE, FL 32301

Brittany Adams Long [NTC Retained] Radey Law Firm Firm: 850-425-6654 301 S BRONOUGH ST STE 200 TALLAHASSEE, FL 32301

Christopher B. Lunny Direct: 850-425-6654 [NTC Retained] Radey Law Firm Firm: 850-425-6654 301 S BRONOUGH ST STE 200 TALLAHASSEE, FL 32301

Harry Osborne Thomas Direct: 850-425-6654

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[NTC Retained] Radey Law Firm Firm: 850-425-6654 301 S BRONOUGH ST STE 200 TALLAHASSEE, FL 32301

DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. Amicus Curiae

Jean Mary Zachariasiewicz Direct: 410-962-1030 [COR NTC Retained] (see above)

NATIONAL ALLIANCE ON MENTAL ILLNESS Amicus Curiae

Jean Mary Zachariasiewicz Direct: 410-962-1030 [COR NTC Retained] (see above)

FORMER MEMBERS OF 1990 CONGRESS INVOLVED IN PASSAGE OF ADA
Amicus Curiae

Neil V. McKittrick Direct: 617-994-5700 [COR LD NTC Retained] Ogletree Deakins Nash Smoak & Stewart, PC Firm: 617-994-5704 1 BOSTON PL BOSTON, MA

Francesco A. DeLuca Direct: 617-994-5700 [COR NTC Retained] Ogletree Deakins Nash Smoak & Stewart, PC Firm: 617-994-5704 1 BOSTON PL BOSTON, MA

Jon M. Greenbaum Direct: 202-662-8315 [COR NTC Retained] Lawyers' Committee for Civil Rights Under Law Firm: 202-662-8314 1500 K ST NW FL 9 WASHINGTON, DC 20005

STATE OF TEXAS

Amicus Curiae

Scott A. Keller Direct: 202-639-7837 [COR LD NTC Retained] Baker Botts, LLP Firm: 202-639-7700 1299 PENNSYLVANIA AVE NW WASHINGTON, DC 20004

Natalie Thompson Direct: 512-936-1820 [COR LD NTC Government] Attorney General's Office Firm: (512) 463-2004 PO BOX 12548 (MC059) AUSTIN, TX 78711-2548

STATE OF GEORGIA

Amicus Curiae

Scott A. Keller Direct: 202-639-7837 [COR LD NTC Retained] (see above)

STATE OF INDIANA

Amicus Curiae

Scott A. Keller Direct: 202-639-7837 [COR LD NTC Retained] (see above)

STATE OF KANSAS

Amicus Curiae

Scott A. Keller Direct: 202-639-7837 [COR LD NTC Retained] (see above)

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STATE OF LOUISIANA
STATE OF OKLAHOMA
STATE OF SOUTH DAKOTA

17-13595 Docket

Amicus Curiae Amicus Curiae Amicus Curiae

Scott A. Keller Direct: 202-639-7837 [COR LD NTC Retained] (see above)
Scott A. Keller Direct: 202-639-7837 [COR LD NTC Retained] (see above)
Scott A. Keller Direct: 202-639-7837 [COR LD NTC Retained] (see above)

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17-13595 Docket

UNITED STATES OF AMERICA,

Interested Party - Appellant,

A.R. by and through her next friend, Susan Root, et al.,

Plaintiffs,

versus

SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, in her official capacity, STATE SURGEON GENERAL, in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health, KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children's Medical Services, STATE SURGEON GENERAL JOHN ARMSTRONG, MD, DEPUTY SECRETARY DR. CELESTE PHILIP, et al.,

Defendants - Appellees,

eQHEALTH SOLUTIONS, INC., a Louisiana non-profit corporation,

Defendant.

________________________________________________________

UNITED STATES OF AMERICA,

Consol Plaintiff,

versus

THE STATE OF FLORIDA,

Consol Defendant.

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08/08/2017
37 pg, 1.77 MB
08/21/2017
1 pg, 58.7 KB
08/21/2017
1 pg, 58.34 KB
08/22/2017
4 pg, 83.81 KB
08/22/2017
08/22/2017
1 pg, 149.88 KB
08/22/2017
08/22/2017
08/22/2017
08/22/2017
08/23/2017
2 pg, 16.27 KB
08/28/2017
6 pg, 17.91 KB
08/28/2017
32 pg, 1.66 MB
09/05/2017
7 pg, 39.36 KB
09/06/2017
10 pg, 217.78 KB
10/02/2017
3 pg, 146.7 KB
10/18/2017
50 pg, 843.86 KB
10/20/2017

CIVIL APPEAL DOCKETED. Notice of appeal filed by Appellant USA on 08/07/2017. Fee Status: Fee Not Required. Awaiting Appellant's Certificate of Interested Persons due on or before 09/22/2017 as to Appellant United States of America. Awaiting Appellee's Certificate of Interested Persons due on or before 09/29/2017 as to Appellee John Armstrong [Entered: 08/14/2017 01:23 PM]
APPEARANCE of Counsel Form filed by Bonnie I. Robin-Vergeer for United States (ECF: Bonnie RobinVergeer) [Entered: 08/21/2017 10:48 AM]
APPEARANCE of Counsel Form filed by Thomas E. Chandler for United States (ECF: Thomas Chandler) [Entered: 08/21/2017 10:54 AM]
APPEARANCE of Counsel Form filed by Andy Bardos for State of Florida; George N. Meros, Jr. for State of Florida; Leslei Gayle Street for State of Florida; Andrew Taylor Sheeran for State of Florida (ECF: Andre Bardos) [Entered: 08/22/2017 08:57 AM]
E-filed Appearance of Counsel processed for Attorney Thomas E. Chandler for Appellant USA in 1713595, Attorney Bonnie I. Robin-Vergeer for Appellant USA in 17-13595. [Entered: 08/22/2017 10:04 AM]
TRANSCRIPT INFORMATION form filed by Attorney Bonnie I. Robin-Vergeer for Appellant USA. No transcript is required for appeal purposes. [Entered: 08/22/2017 10:05 AM]
E-filed Appearance of Counsel processed for Attorney Andrew Taylor Sheeran for Not Party State of Florida in 17-13595. [Entered: 08/22/2017 10:07 AM]
E-filed Appearance of Counsel processed for Attorney Leslei Gayle Street for Appellee State of Florida in 17-13595. [Entered: 08/22/2017 10:10 AM]
E-filed Appearance of Counsel processed for Attorney George N. Meros Jr. for Appellee State of Florida in 17-13595. [Entered: 08/22/2017 10:11 AM]
E-filed Appearance of Counsel processed for Attorney Andy V. Bardos for Appellee State of Florida in 1713595. [Entered: 08/22/2017 10:13 AM]
Briefing Notice issued to Appellant USA. The appellant's brief is due on or before 09/18/2017. The appendix is due no later than 7 days from the filing of the appellant's brief. [Entered: 08/23/2017 11:22 AM]
Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Bonnie I. RobinVergeer for Appellant USA. On the same day the CIP is served, the party filing it must also complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/webbased-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Bonnie Robin-Vergeer) [Entered: 08/28/2017 02:39 PM]
Civil Appeal Statement filed by Attorney Bonnie I. Robin-Vergeer for Appellant USA. (ECF: Bonnie RobinVergeer) [Entered: 08/28/2017 02:46 PM]
Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney George N. Meros, Jr. for Appellees Secretary Florida Agency for Health Care Administration, State of Florida, John Armstrong, Celeste Philip and Not Party eQHealth Solutions, Inc.. On the same day the CIP is served, the party filing it must also complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: George Meros) [Entered: 09/05/2017 04:16 PM]
MOTION for extension of time to file appellants brief to 10/18/2017 at 11:59 pm filed by USA. Motion is Unopposed. [8237269-1] (ECF: Bonnie Robin-Vergeer) [Entered: 09/06/2017 01:17 PM]
ORDER: Appellant’s motion for an extension of time for filing its brief is GRANTED. Appellant’s brief is due October 18, 2017, with the appendix due seven days later. [8237269-2] JEC [Entered: 10/02/2017 02:29 PM]
Appellant's brief filed by USA. (ECF: Bonnie Robin-Vergeer) [Entered: 10/18/2017 02:00 PM]
Received paper copies of EBrief filed by Appellant USA. [Entered: 10/20/2017 04:41 PM]

10/23/2017

MOTION to appear pro hac vice filed by Attorney Francesco DeLuca for Not Party Former members of 1990 Congress involved in passage of ADA. [8279962-1] [Entered: 10/24/2017 03:18 PM]

10/23/2017

MOTION to appear pro hac vice filed by Attorney Neil McKittrick for Not Party Former members of 1990 Congress involved in passage of ADA. [8279968-1] [Entered: 10/24/2017 03:19 PM]

10/24/2017
1 pg, 639.21 KB

APPEARANCE of Counsel Form filed by Amici Curiae The National Federation of the Blind, the National Disability Rights Network, Bazelon Center for Mental Health Law, and Other Disability Organizations (ECF: Ira Burnim) [Entered: 10/24/2017 01:44 PM]

10/24/2017

APPEARANCE of Counsel Form filed by Ira Burnim for Amicus Curiae The National Federation of the

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1 pg, 639.21 KB
10/24/2017
1 pg, 15.21 KB
10/24/2017
1 pg, 15.21 KB
10/24/2017
1 pg, 454.36 KB
10/25/2017
1 pg, 458.58 KB
10/25/2017
199 pg, 5.75 MB
10/25/2017
94 pg, 6.94 MB
10/25/2017
38 pg, 144.23 KB
10/25/2017
82 pg, 7.02 MB
10/26/2017
8 pg, 20.47 KB
10/26/2017
1 pg, 282.44 KB
10/26/2017
10/26/2017
10/26/2017 10/27/2017
1 pg, 15.02 KB
10/27/2017
2 pg, 15.14 KB
10/30/2017 10/31/2017
15 pg, 59.11 KB

17-13595 Docket
Blind, National Disability Rights Network, Bazelon Center for Mental Health Law, The Arc, Autistic SelfAdvocacy Network, and Other Disability Organizations (ECF: Ira Burnim) [Entered: 10/24/2017 01:49 PM]
ORDER: Motion to appear pro hac vice filed by Francesco DeLuca is GRANTED by Supervisor. [8279962-2] [Entered: 10/24/2017 03:21 PM]
ORDER: Motion to appear pro hac vice filed by Neil McKittrick is GRANTED by Sopervisor. [8279968-2] [Entered: 10/24/2017 03:33 PM]
APPEARANCE of Counsel Form filed by DeLuca, Francecso A., Amicus Curiae Former Members of 1990 Congress involved in Passage of ADA (ECF: Francesco DeLuca) [Entered: 10/24/2017 04:20 PM]
APPEARANCE of Counsel Form filed by Neil V. McKittrick for Former members of 1990 Congress involved in passage of ADA. (ECF: Neil McKittrick) [Entered: 10/25/2017 09:12 AM]
Appendix filed [1 VOLUMES] by Appellant USA. (ECF: Bonnie Robin-Vergeer) [Entered: 10/25/2017 09:38 AM]
MOTION to file amicus brief pursuant to FRAP 29(a) filed by Neil McKittrick for Amici Curiae Former Members of Congress. [8281119-1] (ECF: Neil McKittrick) [Entered: 10/25/2017 02:19 PM]
Amicus Brief as of right or by consent of the parties filed by Ira A. Burnim, Bazelon Center for Mental Health Law. (ECF: Ira Burnim) [Entered: 10/25/2017 04:02 PM]
Amicus Brief filed by Amicus Curiae Former members of 1990 Congress involved in passage of ADA. BY CONSENT Service date: 10/25/2017 email - Attorney for Amicus Curium: Burnim, DeLuca, Goldstein, Greenbaum, McKittrick, Zachariasiewicz; Attorney for Appellants: Chandler, Robin-Vergeer, Smachetti, U.S. Attorney Service - Southern District of Florida; Attorney for Appellees: Bardos, Boudet, Gandy, Johnson, Lukis, Mawhinney, Meros, Reynolds, Sheeran, Street, Williams; Attorney for Not Parties: Annino, Boyer, Dietz, Grunewald, Lunny, Thomas; US mail - Attorney for Appellants: McDonald, Thomas, Weinstock; Attorney for Appellees: Kilinski, Tschetter; Attorney for Not Parties: Crabb, Long, Paris. [Entered: 11/15/2017 04:08 PM]
AMENDED Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Francesco A. DeLuca for Not Party Former members of 1990 Congress involved in passage of ADA. On the same day the CIP is served, the party filing it must also complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Francesco DeLuca) [Entered: 10/26/2017 04:41 PM]
APPEARANCE of Counsel Form filed by Jon Greenbaum for Amici Former Members of 1990 Congress Involved in Passage of ADA (ECF: Jon Greenbaum) [Entered: 10/26/2017 06:11 PM]
MOTION to appear pro hac vice filed by Attorney Daniel Goldstein for Amicus Curium National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc.. [8283843-1] [Entered: 10/27/2017 03:30 PM]
MOTION to appear pro hac vice filed by Attorney Jean M. Zachariasiewicz for Amicus Curium National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc.. [8283855-1] [Entered: 10/27/2017 03:33 PM]
Received paper copies of EBrief filed by Amicus Curiae Bazelon Center for Mental Health Law. [Entered: 10/30/2017 03:28 PM]
ORDER: Motion to appear pro hac vice filed by Daniel Goldstein is GRANTED by clerk, Motion to appear pro hac vice filed by Jean M. Zachariasiewicz is GRANTED by clerk. [8283855-2], [8283843-2] [Entered: 10/27/2017 03:36 PM]
NOTICE OF CIP FILING NEEDED to Daniel Goldstein for National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc. and Jean M. Zachariasiewicz for National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc.. You are receiving this notice because you have not completed the Web-Based Stock Ticker Symbol CIP via the court's public web-page and have not filed the CIP. Failure to comply with 11th Cir. Rules 26.1-1 through 26.1-4 may result IN return of deficient documents without action, or other sanctions on counsel, the party, or both. [Entered: 10/27/2017 03:49 PM]
Received paper copies of EAppendix filed by Appellant USA. 1 VOLUMES - 2 COPIES [Entered: 11/03/2017 02:11 PM]
MOTION for extension of time to file appellees brief to 01/16/2018 at 11:59 pm filed by State of Florida. Motion is Unopposed. [8286240-1] (ECF: Andre Bardos) [Entered: 10/31/2017 11:49 AM]

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10/31/2017
13 pg, 52.67 KB
11/02/2017
1 pg, 252.83 KB
11/02/2017
1 pg, 252.46 KB
11/03/2017
3 pg, 88.12 KB
11/03/2017
6 pg, 25.38 KB
11/15/2017
11/15/2017
11/20/2017
1 pg, 215.76 KB
11/20/2017

17-13595 Docket
RESPONSE to Motion for leave to file amicus brief [8281119-2] filed by Attorney Andy V. Bardos for Appellees State of Florida and Celeste Philip. (ECF: Andre Bardos) [Entered: 10/31/2017 11:53 AM]
APPEARANCE of Counsel Form filed by Daniel Frank Goldstein for National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc.. (ECF: Daniel Goldstein) [Entered: 11/02/2017 03:12 PM]
APPEARANCE of Counsel Form filed by Jean Mary Zachariasiewicz for National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc.. (ECF: Jean Zachariasiewicz) [Entered: 11/02/2017 03:14 PM]
ORDER: Motion for extension to file appellee brief filed by Appellee State of Florida is GRANTED. [8286240-2] Appellees brief due on 01/16/2018. GBT [Entered: 11/03/2017 11:59 AM]
Certificate of Interested Persons and Corporate Disclosure Statement filed by THE BAZELON CENTER FOR MENTAL HEALTH LAW, THE NATIONAL FEDERATION OF THE BLIND, THE NATIONAL DISABILITY RIGHTS NETWORK, THE AUTISTIC SELF ADVOCACY NETWORK, THE ARC OF THE UNITED STATES, DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC., AND THE NATIONAL. On the same day the CIP is served, the party filing it must also complete the court's webbased stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Daniel Goldstein) [Entered: 11/03/2017 03:56 PM]
MOTION MOOT: Motion for leave to file amicus brief is MOOT [8281119-2] RESPONSE filed 10/31/2017 consents to amicus brief. Motion filed by Amicus Curiae Former members of 1990 Congress involved in passage of ADA. [Entered: 11/15/2017 04:10 PM]
Please file a CIP to Neil V. McKittrick for Former members of 1990 Congress involved in passage of ADA. You are receiving this notice because you have not completed the Web-Based Stock Ticker Symbol CIP via the court's public web-page and have not filed the CIP via the electronic filing system (CM/ECF). Failure to comply with 11th Cir. Rules 26.1-1 through 26.1-4 may result in dismissal of the case or appeal under 11th Cir. R. 42-1(b), return of deficient documents without action, or other sanctions on counsel, the party, or both. [Entered: 11/15/2017 04:29 PM]
Certificate of Readiness filed as to Appellant USA. [Entered: 11/28/2017 10:15 AM]
Record on Appeal filed. SEALED Exhibit Envelope (DEs 134 & 172) [Entered: 11/28/2017 10:17 AM]

12/28/2017
01/02/2018 01/02/2018
01/03/2018
8 pg, 14.63 KB
01/03/2018
1 pg, 121.88 KB

DOCKETED IN ERROR *** Notice of Withdrawal of Co-Counsel for Amici Curiae The Bazelon Center for Mental Health Law, The National Federation of the Blind, et al filed by Attorney Jean Mary Zachariasiewicz for Amicus Curium National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc..--[Edited 01/02/2018 by CRL] (ECF: Jean Zachariasiewicz) [Entered: 12/28/2017 04:43 PM]
Notice of deficient Notice of Withdrawal of Co-Counsel for Amici Curiae filed by Jean Mary Zachariasiewicz for National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc. Attorney Daniel F. Goldstein must file his own Motion to withdraw. Counsel must file motion within 3 days. [Entered: 01/02/2018 03:26 PM]
NOTICE OF CIP FILING DEFICIENCY to Neil V. McKittrick for Former members of 1990 Congress involved in passage of ADA. You are receiving this notice because you have not filed a Complete Certificate of Interested Persons (CIP) via the electronic filing system (CM/ECF). An amended Certificate of Interested Persons was previously filed on 10/26/2017, by Attorney Francesco A. DeLuca but a previous Certificate to be Amended was never filed. Failure to comply with 11th Cir. Rules 26.1-1 through 26.1-4 may result in dismissal of the case or appeal under 11th Cir. R. 42-1(b), return of deficient documents without action, or other sanctions on counsel, the party, or both. Please file a Complete Certificate within 3 days. [Entered: 01/02/2018 03:47 PM]
Certificate of Interested Persons and Corporate Disclosure Statement filed by Amici Curiae Former Members of Congress Involved in the Passage of the Americans with Disabilities Act of 1990 Attorney Neil V. McKittrick for Amicus Curiae Former members of 1990 Congress involved in passage of ADA. On the same day the CIP is served, the party filing it must also complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Neil McKittrick) [Entered: 01/03/2018 10:24 AM]
MOTION to withdraw as counsel filed by Attorney Daniel Frank Goldstein for Amicus Curium National Disability Rights Network, National Alliance on Mental Illness, Bazelon Center for Mental Health Law, National Federation of the Blind, Autistic Self Advocacy Network, Arc of the United States and Disability Rights Education and Defense Fund, Inc.. Opposition to Motion is Unknown [8339827-1] (ECF: Daniel Goldstein) [Entered: 01/03/2018 04:28 PM]

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01/10/2018
1 pg, 14.37 KB

ORDER: Motion to withdraw as counsel filed by Daniel Frank Goldstein is GRANTED by clerk. [83398272] Attorney terminated: Attorney Daniel Frank Goldstein for Amicus Curiaes National Disability Rights Network, National Alliance on Mental Illness, Disability Rights Education and Defense Fund, Inc., Bazelon Center for Mental Health Law, Autistic Self Advocacy Network and Arc of the United States in 17-13595. [Entered: 01/10/2018 09:19 AM]

01/16/2018

Appellee's Brief filed by Appellee State of Florida. (ECF: Andre Bardos) [Entered: 01/16/2018 05:22 PM]

82 pg, 264.49 KB

01/18/2018

***ERROR***MOTION for extension of time to file reply brief to 03/01/2018 at 11:59 pm filed by USA. Motion is Unopposed. [8351034-1]--[Edited 01/19/2018 by RAV] (ECF: Bonnie Robin-Vergeer) [Entered: 01/18/2018 01:46 PM]

01/18/2018

TIME SENSITIVE MOTION for extension of time to file reply brief to 03/01/2018 at 11:59 pm filed by USA.

16 pg, 231.33 KB Motion is Unopposed. [8351042-1] (ECF: Bonnie Robin-Vergeer) [Entered: 01/18/2018 01:57 PM]

01/19/2018

Received paper copies of EBrief filed by Appellee State of Florida. [Entered: 01/25/2018 11:35 AM]

01/23/2018

Supplemental Appendix [4 VOLUMES] filed by Appellee State of Florida. (ECF: Andre Bardos) [Entered:

863 pg, 145.43 MB 01/23/2018 11:49 AM]

01/23/2018

Amicus Brief as of right or by consent of the parties filed by Scott A. Keller - States of Texas, Georgia,

31 pg, 217.25 KB Indiana, Kansas, Louisiana, Oklahoma, and South Dakota. (ECF: Scott Keller) [Entered: 01/23/2018

06:43 PM]

01/24/2018
3 pg, 54.94 KB

ORDER: Motion for extension to file reply brief filed by Appellant USA is GRANTED. [8351042-2] Reply brief due on 03/01/2018. SM [Entered: 01/24/2018 02:29 PM]

01/24/2018

Received paper copies of EAppendix filed by Appellee State of Florida. 4 VOLUMES - 2 COPIES [Entered: 01/25/2018 11:35 AM]

02/23/2018
13 pg, 38 KB

MOTION to withdraw as counsel filed by Attorney George N. Meros, Jr. for Appellees Secretary Florida Agency for Health Care Administration, State of Florida, John Armstrong, Celeste Philip and Not Party eQHealth Solutions, Inc.. Motion is Unopposed [8384751-1] (ECF: George Meros) [Entered: 02/23/2018 02:26 PM]

02/26/2018
1 pg, 14.42 KB

ORDER: Motion to withdraw as counsel filed by George N. Meros, Jr. is GRANTED by clerk. [8384751-2] Attorney terminated: Attorney George N. Meros Jr. for Appellees State of Florida, Secretary Florida Agency for Health Care Administration, Celeste Philip and John Armstrong, Not Party eQHealth Solutions, Inc. in 17-13595. [Entered: 02/26/2018 02:45 PM]

03/01/2018

Reply Brief filed by Appellant USA. (ECF: Bonnie Robin-Vergeer) [Entered: 03/01/2018 05:36 PM]

52 pg, 385.32 KB

03/08/2018

Received paper copies of EBrief filed by Appellant USA. [Entered: 03/12/2018 03:22 PM]

03/27/2018
03/27/2018
03/27/2018
1 pg, 26.8 KB
03/27/2018
3 pg, 85.05 KB
03/29/2018 03/29/2018
0 pg, 0 KB

The Court has determined that oral argument will be necessary in this case. Please forward 3 additional copies of the 1 volumes of Appendix, which conform to all formatting requirements, filed 10/25/17 by Attorney Bonnie I. Robin-Vergeer for Appellant USA to the Clerk's Office, Attention: Jenifer Tubbs. Your prompt attention to this matter is appreciated. [Entered: 03/27/2018 09:50 AM]
The Court has determined that oral argument will be necessary in this case. Please forward 3 additional copies of the 4 volumes of Supplemental Appendix, which conform to all formatting requirements, filed 1/23/18 by Attorney Andy V. Bardos for Appellees State of Florida and Celeste Philip to the Clerk's Office, Attention: Jenifer Tubbs. Your prompt attention to this matter is appreciated. [Entered: 03/27/2018 09:51 AM]
APPEARANCE of Counsel Form filed by Scott A. Keller for State of Georgia, State of Texas, State of Louisiana, State of South Dakota, State of Indiana, State of Kansas and State of Oklahoma. (ECF: Scott Keller) [Entered: 03/27/2018 03:26 PM]
Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Scott A. Keller for Amicus Curium State of Georgia, State of Texas, State of Louisiana, State of South Dakota, State of Indiana, State of Kansas and State of Oklahoma. On the same day the CIP is served, the party filing it must also complete the court's web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court's website. See 11th Cir. R. 26.1-2(b). (ECF: Scott Keller) [Entered: 03/27/2018 03:43 PM]
Received paper copies of EBrief on 3/28/18 filed by Amicus Curium State of Georgia, State of Indiana, State of Kansas, State of Louisiana, State of Oklahoma, State of South Dakota and State of Texas. [Entered: 03/29/2018 09:53 AM]
Assigned to tentative calendar number 24 in Miami during the week of July 9, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [Entered: 03/29/2018 02:05 PM]

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Additional copies of Appendix (3 sets - 1 vol ea) received from Bonnie I. Robin-Vergeer for USA and forwarded to the record room. [Entered: 03/30/2018 02:55 PM]

03/30/2018

Additional copies of Supplemental Appendix (3 sets - 4 vols ea) received from Andy V. Bardos for State of Florida and forwarded to the record room. [Entered: 03/30/2018 02:56 PM]

04/04/2018

MOTION to continue Oral Argument. filed by State of Florida. Opposing Counsel takes no Position.

15 pg, 61.26 KB [8420973-1] (ECF: Andre Bardos) [Entered: 04/04/2018 10:10 AM]

04/04/2018

Amended Motion to continue oral argument [8420973-2] filed by Appellee State of Florida. (ECF: Andre

15 pg, 61.34 KB Bardos) [Entered: 04/04/2018 10:56 AM]

04/09/2018
0 pg, 0 KB

Assigned to CORRECT tentative calendar number 24 in Miami during the week of July 16, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [Entered: 04/09/2018 03:43 PM]

04/20/2018
3 pg, 86.02 KB

ORDER: Motion to continue oral argument filed by Appellee State of Florida is GRANTED. Oral argument will be scheduled at a later date. [8420973-2] AJ [Entered: 04/20/2018 03:31 PM]

05/11/2018
0 pg, 0 KB

Assigned to tentative calendar number 29 in Miami during the week of September 24, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [Entered: 05/11/2018 08:47 AM]

05/11/2018
2 pg, 28.98 KB

Supplemental Authority filed by Appellant USA. (ECF: Bonnie Robin-Vergeer) [Entered: 05/11/2018 03:37 PM]

06/06/2018

This appeal has been removed from tentative calendar # 29 and will be reassigned at a later date. [Entered: 06/06/2018 09:36 AM]

06/06/2018

This appeal has been removed from tentative calendar # 29 and will be reassigned at a later date. [Entered: 06/06/2018 09:38 AM]

06/26/2018
0 pg, 0 KB

Assigned to tentative calendar number 2 in Miami during the week of October 1, 2018. Counsel must be logged into CM/ECF in order to view the attached calendar. [Entered: 06/26/2018 03:50 PM]

08/10/2018
1 pg, 15.77 KB

Calendar issued as to cases to be orally argued the week of 10/01/2018 in Miami, Florida. Counsel are directed to electronically acknowledge receipt of this calendar by docketing the Calendar Receipt Acknowledged event in ECF. Counsel must be logged into CM/ECF in order to view the attached calendar. [Entered: 08/10/2018 10:34 AM]

08/10/2018

Attorney Andy V. Bardos for Appellee State of Florida hereby acknowledges receipt of a copy of the printed calendar for 10/03/2018. Andy Bardos 850-577-9090 will present argument. (ECF: Andre Bardos) [Entered: 08/10/2018 11:31 AM]

08/13/2018

Oral argument scheduled. Argument Date: Wednesday, 10/03/2018 Argument Location: Miami, FL. [Entered: 08/13/2018 11:26 AM]

09/12/2018
1 pg, 78.43 KB

APPEARANCE of Counsel Form filed by John M. Gore for USA (ECF: John Gore) [Entered: 09/12/2018 12:14 PM]

09/12/2018

Attorney Bonnie I. Robin-Vergeer for Appellant USA hereby acknowledges receipt of a copy of the printed calendar for 10/03/2018. John M. Gore 202-353-9430 will present argument. (ECF: Bonnie RobinVergeer) [Entered: 09/12/2018 01:05 PM]

09/13/2018
1 pg, 80.9 KB

MOTION Appearance of Counsel form construed as Motion to Appear in Oral Argument filed by Appellant USA. Opposition to Motion is Unknown [8563046-1] [Entered: 09/13/2018 10:58 AM]

09/14/2018
3 pg, 56.91 KB

ORDER: Motion appear in oral argument construed from Appearance of Counsel form filed by Appellant USA is GRANTED. David J. Smith, ENTERED FOR THE COURT-BY DIRECTION.[8563046-2] [Entered: 09/14/2018 08:24 AM]

10/03/2018

Oral argument held. Oral Argument participants were John M. Gore for Appellant USA and Andre V. Bardos for Appellee State of Florida. [Entered: 10/03/2018 10:37 AM]

06/14/2019

Supplemental Authority filed by Appellee State of Florida. [17-13595] (ECF: Andre Bardos) [Entered:

32 pg, 568.29 KB 06/14/2019 11:15 AM]

06/18/2019
4 pg, 33.86 KB

Response to Supplemental Authority (28J) filed by Appellant USA. [17-13595] (ECF: Bonnie RobinVergeer) [Entered: 06/18/2019 09:36 AM]

08/08/2019
6 pg, 277.25 KB

MOTION to withdraw as counsel filed by Attorney Bonnie I. Robin-Vergeer for Appellant USA. Opposition to Motion is Unknown [8848237-1] [17-13595] (ECF: Bonnie Robin-Vergeer) [Entered: 08/08/2019 03:24 PM]

08/09/2019
3 pg, 18.31 KB

ORDER: John M. Gore's motion to withdraw as counsel for the United States is GRANTED. ENTERED FOR THE COURT-BY DIRECTION [8848237-2] [Entered: 08/09/2019 01:37 PM]

09/17/2019

Opinion issued by court as to Appellant USA. Decision: Reversed and Remanded. Opinion type:

67 pg, 265.76 KB Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at

https://ecf.ca11.uscourts.gov/n/beam/servlet/TransportRoom

13/15

12/4/2019
09/17/2019

17-13595 Docket
this link http://www.ca11.uscourts.gov/opinions. [Entered: 09/17/2019 04:14 PM] Judgment entered as to Appellant USA. [Entered: 09/17/2019 04:18 PM]

10/28/2019

APPEARANCE of Counsel Form filed by Stefan Robert Grow for State of Florida [17-13595] (ECF: Stefan

1 pg, 312.58 KB Grow) [Entered: 10/28/2019 02:48 PM]

10/29/2019

APPEARANCE of Counsel Form filed by Collin P. Wedel for State of Florida [17-13595] (ECF: Collin

1 pg, 113.64 KB Wedel) [Entered: 10/29/2019 12:35 PM]

10/29/2019

APPEARANCE of Counsel Form filed by Carter G. Phillips for State of Florida [17-13595] (ECF: Carter

1 pg, 114.76 KB Phillips) [Entered: 10/29/2019 12:38 PM]

10/29/2019

Petition for rehearing en banc (with panel rehearing) filed by Appellee State of Florida. [17-13595] (ECF:

107 pg, 486.19 KB Carter Phillips) [Entered: 10/29/2019 05:08 PM]

11/01/2019

APPEARANCE of Counsel Form filed by Natalie D. Thompson for State of Texas [17-13595] (ECF:

1 pg, 313.06 KB Natalie Thompson) [Entered: 11/01/2019 02:15 PM]

11/05/2019

Amicus brief in support of rehearing petition filed as of right or by consent of the parties by. [17-13595]

87 pg, 475.23 KB (ECF: Natalie Thompson) [Entered: 11/05/2019 04:39 PM]

11/20/2019
2 pg, 5.82 KB

ORDER: A judge of this Court withholds issuance of the mandate in this appeal. ENTERED FOR THE COURT - BY DIRECTION [Entered: 11/20/2019 11:40 AM]

https://ecf.ca11.uscourts.gov/n/beam/servlet/TransportRoom

14/15

 
 Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 1 of 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO . 12-60460-CIV -ZLOCH
C .V . by and through his next friends, Michael and Johnette Wahlquist , et al .,
Plaintiffs,

VS .
ELIZABETH DUDEK , in her official capacity as Secretary of the Agency for Health Care Administration , et al .,

Defendants .
UNITED STATES OF AMERICA , Plaintiff,
VS.
STATE OF FLORIDA ,

/
FINAL ORDER OF DISM ISSAL AS TO THE UNITED STATES OF AMERICA

Defendant .

THIS MATTER is before the Court sua sponte . The Court has carefully reviewed the entire court file and is otherw ise fully advised in the premises.
Through its Medicaid program , the State of Florida administers and funds various services for children who are considered medically complex or frag ile . Under Title 11 of the Americans With
Disabilities Act of 1990 C'Title 11'0 , 42 U .S.C. 5 12131, 51 seg.,
each of those children is a ''qualified individual with a disability .'' 42 U .S.C. 5 12131(2) (2014). The State of Florida is
a ''public entity,' subject to Title Il's non-discrimination
provision . 42 U .S .C. 5 1213141). That provision provides that ''no
qualified individual with a disability shall , by reason of such

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 2 of 29

disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by such entity.'' 42
U .S .C . ï 12132 . Congress instructed the Attorney General to

promulgate regulations that implement Title II, including this non-

discrimination provision . 42 U .S.C. 5 l2134 (a). The Attorney

General thus issued what is commonly referred to as the

uintegration regulation ,'' which requires : %'A public entity shall

admin ister serv ices , program s, and activities in the most

integrated setting appropriate to the needs of qualified

individuals with disabilities.'' 28 C.F.R . 5 35.l3O(d) (2015) The

Supreme Court has interpreted this regulation, in conjunction with
two others,l to require that states ''provide community based

treatment for persons with mental disabilities when such placement

is appropriate, the affected persons do not oppose such treatment ,

and the placement can be reasonably accommodated , taking into

account the resources available to the State and the needs of

others with mental disabilities .'' Olm stead v . L .C . ex rel .

Zimring, 527

581, 607 (1999).

The United States Department of Justice ('lthe Department'')

brought this suit against the State of Florida (''the Statero ,

alleging that the State administers its Medicaid program in a way

that discriminates against the medically comp lex or fragile

children who are eligible for services under the program . In

l see 28 C .F.R. pt. 35, App. Aw p. 450 (defining the h'most integrated setting appropriate to the needs of qualified individuals with disabilities'' as ua setting that enables individuals with disabilities to interact with non disabled persons to the fullest extent possiblez'); 28 C.F.R. ï 35.l30(b)(7) (requiring public entities to ''make reasonable modifications'' to avoid ''discrimination on the basis of disability r'' unless such modifications would '%fundamentally alter the nature of the sezw ice, program, or activity.',)
2

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 3 of 29
particular, the Department's Complaint (DE 1, Case No. 13-61576CIV-ZLOCHIZ claims that by limiting the availability of community-
based services, the State has caused some medically complex or fragile children to be unnecessarily segregated in nursing facilities and p laced others at risk of being unnecessarily
segregated in such facilities. The Department's Complaint (DE 1, Case No . 13-6l576-CIV-ZLOCH) asserts only one claim : violation of
Title 11 of the Americans With Disabilities Act . In this posture , the Court is confronted with a single , dispositive question of law : whether Title 11 confers standing on the Attorney General (and hence the Department) to sue.3 Consistent with the plain language of the Americans With Disabilities Act, the Court finds that the Department does not have standing to sue under Title II .
A.
The Supreme Court has made clear that ''when an agency in its
governmental capacity 11 meant to have standing, Congress says so .''
Director , Office Of Workers' Comp . Proqram s, Dep 't Of Lab . v . Newport News ShiDbuilding And Dry Dock Co ., 514 U .S . 122 , l29
(l995)C'Newport News'o temphasis in original). Title Il's enforcement section provides certain ''remedies , procedures, and

2 By prior Order (DE 215), this Court consolidated the Department's case, United States v . Florida, Case No . 13-6l576-CIV -ZLOCH p with a substantially similar action brought by private plaintiffs, C.V . v . Dudek, Case No . 12-60460-
CIV -ZLOCH .

3 The

Court

notes

that

although

it has

raised

this

issue

sua

sponte ,

the

Parties have had a full and fair opportunity to set forth their respective

positions. See DE 28, Case No . l3-6l576-CIV -ZLOCH; DE Nos. 226 & 230, Case No .

l2-60460-CIV-ZLOCH. The Court is, of course, not bound by any ruling of any judge
who previously presided over this case . See l8B Wright, Miller, & Cooper, Federal

Practice & Procedure: Jurisdiction., ï 4478 (2d. ed. 2016) (uit is clear that all

federal courts retain power to reconsider if they wishz).

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 4 of 29

rights

to any Derson alleging discrimination on the basis of

disab ility in vio lation of section 12132 of this title .'' 42 U .S .C .

5 12133 (emphasis added) Laid beside the enforcement provisions

of Titles I and III of the Americans With Disab ilities Act, it is

clear that Title 11 does not confer standing on the Attorney

General and that the Department is not a ''person alleging

discrimination .''4

The Americans With Disabilities Act C'ADA'Q sets forth various prohibitions against disability -discrim ination . As a whole ,

Congress 's stated intent was ''to provide a clear and comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities.'' 42 U .S.C. 5 12101(b)(1). However,

to achieve this end, Congress subdivided the ADA into three titles,

each with distinct rights and remedial measures . Title I prohibits

disability-discrimination in employment . See 42 U .S .C . 55 12111-

12117. Title 11 governs the administration of public serv ices

provided by governmental entities . See 42 U .S .C . 55 12131-12165 .

And Title III proscribes disab ility -discrimination in pub lic

accommodations provided by private entities . See 42 U .S .C . 55

12181-12189 .

Unlike Title

whose enforcement prov ision speaks only of

Mperson Es) alleging discrimination,'' Titles I and III of the ADA expressly confer standing upon the Attorney General to initiate

litigation. Title provides that ''ltlhe powers, remedies and

4 For ease of exposition, the Court uses the tem s Attorney General and the Department interchangeably. Cf. 28 U.S.C. 5 506 ('%The Attorney General is the head of the Department of Justice''); 28 U.S.C. 5 5l6 (Bthe conduct of litigation in which the United States, an agency , or officer thereof is a party . . . is reserved to officers of the Department of Justice , under the direction of the Attorney General'').
4

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 5 of 29

procedures set forth in (Title VII of the Civil Rights Act of 1964)

shall be the powers, remedies, and procedures this subchapter

provides to the lEqual Employment Opportunity) Commission, to the

Attorney General, or to any person alleging discrimination on the

basis of disability in violation of any provision of this chapter

concerning employment.'' 42 U .S.C. 5 l21l7 (a). In turn, Title VII of the Civil Rights Act of 1964 authorizes the Attorney

General to seek various forms of judicial relief. See 42 U.S.C. 5 2000e-5(f) (hthe Attorney General (1 may bring a civil action
against such respondent in the appropriate Un ited States district

court'o ; 42 U .S.C. 5 2000e-6(a) P'the Attorney General may bring a civil action in the appropriate district court of the United

States'o ; 42 U .S.C. 5 2000e-8(c) (hlf any person required to comply

with the provisions of this subsection fa ils or refuses to do so ,

the (appropriate) United States district court

shall, upon

application of

the Attorney General

have jurisdiction

to issue to such person an order requiring him to comply'o . Title

III of the ADA grants Mthe Attorney General Eauthority to) commence a civil action in any appropriate United States district court ,'' if

she has reasonable cause to believe that

any person or group

of persons is engaged in a pattern or practice of discrim ination

under this subchapter; or (ii) any person or group of persons has
been discriminated against and such discrimination raises an issue

of general public importance.'' 42 U .S.C. 5 12l88 (b)(l)(B).
Where Congress has conferred standing on a particu lar actor in one section of a statutory scheme , but not in another, its silence

must be read to preclude standing . E .q ., Marshall v . Gibson 's

5

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 6 of 29
Prod., Inc. Of Plano, 584 F .2d 668, 672-676 (5th Cir. 1978)5; see In re Griffith, 206 F.3d 1389, 1394 (11th Cir. 2000)(en banc) ('Awhere Congress knows how to say something but chooses not to, its silence is controlling'o . Newport News controls. There,
the Supreme Court held that the Director of the Office of Workers'
Compensation (Mthe Director'') lacked standing to pursue an appeal of the decision of an adm inistrative review board in federal court .
Newport News , 5l4 U .S . at 136 . Central to the Court's reasoning was the absence of a provision conferring standing upon the agency head to prosecute appeals , when such a provision was found in two similar statutes . While the Longshore and Harbor Workers
Compensation Act (''LHWCA'') solely authorized Many person adversely
affected or aggrieved by a final order of the Board'' to seek review
in the appropriate court of appeals, 33 U.S.C. 5 92l (c), the
Occupational Safety and Health Act of 1970 contained a 'virtually identical'' appeal provision, plus a provision granting the Secretary of Labor authority to appeal. Id . at 130 . Likewise , the Black Lung Benefits Act of 1973 contained a prov ision notably absent from the LHWCA : one making the Secretary of Labor '%a party
in any proceeding relative to a claim for benefits.'' Ié . at l35 (cuoting 30 U.S.C. 5 932(k)). Faced with these measures, and noting that ''ltlhe withholding of agency authority is as
significant as the granting of it ,'' the Supreme Court concluded that the Director had no standing to proceed in federal court . Id .
at 136 .
5 In Borm er v. Citv of Prichard, 66l F.2d 12Q6t 1209 (11th Cir. 1981)(en banc), the Eleventh Circuit adopted as binding precedent all decisions of the fom er Fifth Circuit handed down prior to October 1, 1980.
6

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 7 of 29
Congress's grant of litigation authority to the Attorney
General in Titles I and III of the ADA--juxtaposed against its
omission in Title Il--compels the same result . As in Newport News, ''the normal conclusion one would derive from putting these statutes side by side is this : When , in a legislative scheme of this sort , Congress wants the (Attorney Generall to have standing, it says SO .X Id . at 135 . And as in Newport News, the absence of Congress's ''say so'' precludes the Department from suing under Title
The Department deigns Newport News to be little more than a quirk of administrative law . Any fair reading of the case refutes this contention--for Newport News dealt not with the intricacies of administrative procedure, but the critical bridge between
administrative proceedings and the judiciary: standing. Were there
any doubt , the Supreme Court cited two provisions of Title VII of the Civil Rights Act of 1964 expressly authorizing civil litigation by agencies to explain why the Director lacked standing . Id . at 130 . Notably , the very provisions cited by the Newport News Court are the civil enforcement remedies incorporated into Title I of the
ADA . See id. (citing 42 U .S.C . 55 2000e-5 (f) & 2000e-4 (g))
Newoort News does not govern adm inistrative appeals as such , but rather an agency 's standing to proceed in federal court .
is also apparent that the Department is not a Mperson alleging discrim ination .'' 42 U .S .C . 5 12133 . There is a ''longstanding interpretive presumption that 'person ' does not include the sovereign .'' Vermont Agency of Nat . Res . v . United States ex rel. Stev-e-ns, 529 U .S. 765, 78Q (200Q). This principle is not limited merely to the regulatory sweep of a statute. but
7

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 8 of 29
extends also to those provisions defining the actors who may be
plaintiffs under the statute, those who have standing. Compare i4 . at 787-88 (finding that a state is not a ''person'' subject to liability under the False Claims Act) With United States v . Cooper CorD., 3l2 U .S. 600, 606 (lg4lltholding that the United States is
not a uperson'' authorized to bring an action under the Sherman
Act). Thus, except upon an affirmative showing of statutory intent
to the contrary , M person ' does not include the sovereign , and statutes emp loying the word are ordinarily construed to exclude it .'' Int 'l Primate Prot . League v . Admin . of Tulane Educ . Fund ,
500 U .S. 72, 82-83 (1991). No such showing can be made under the ADA . Title of the ADA extends remedial authority , including authority to commence civil suit, to ''the (Equal Employment Opportunityl Commission, to the Attorney General, or to any person
alleging discrimination on the basis of disability .' 42 U .S .C . 5
l2l17 (a) Title 11 grants remedial authority only to ''person ls)
alleging discrim ination .'' 42 U .S .C . 5 12133 . The imp lication is clear : if the A ttorney General is not a ''person'' under Title 1, she is not a ''person'' under Title 11 either .
The Department posits that ''Whether the A ttorney General is a person under the statute is simply beside the point,'' and that the
Congressional judgment that Title Il's remedies shall be ''provide Ed) to any person alleging discrimination'' does not mean
that those remedies are provided only to those persons . DE 226 at 23-24 . To the contrary : the language Congress chose means precisely that, and who is a person under the statute is precisely the point . Persons alleging discrimination are not , as the Department suggests , merely intended beneficiaries of the statute .
8

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 9 of 29
Qualified individuals with a disability are the intended beneficiaries ; private parties alleging discrim ination are the mechanism by which Title Il's substantive guarantees are enforced . The Court is not free to ignore the statutory tex t in the manner the Department suggests .
Three well-established principles of interpretation further support the Court's reading of the ADA . First is the Mnormal rule of statutory interpretation that identical words u sed in different parts of the same act are intended to have the same meaning .'' Gustafson v . Alloyd Co., Incw 5l3 U .S. 561, 570 (l995)(guoting Department of Revenue of Ore . v . ACF Indu s., Inc w 510 U .S . 332 , 342 (1994)); see also Mohasco Corp . v . Silver, 447 U .S. 807, 826 (1980) C'we cannot accept respondent's position without unreasonably giving the word 'filed ' two different meanings in the same section of the statute'o . Next is the surplusage canon, the ''cardinal rule of statutory interpretation that no provision shou ld be construed to be entirely redundant .'' Kungys v . United States, 485 U .S . 759, 778 (1988); see also Aspley v. Murphy, 52 F. 570, 574 (5th Cir. 1892) (stating that courts must ulean in favor of a construction which will render every word operative rather than one which may make some idle and nugatory'o . If the Attorney General were a uperson alleging discrimination'' under Title II, then reference to her in Title I would be redundant . Or the term ''person'' wou ld have different meanings in Titles I and II . Nonsense . In both Title I and Title 11 of the ADA , the Attorney General is not a ''person alleging discrim ination .''
Lastly , the negative implication canon , or exoressio unius,
supports this construction. That is, ''ltlhe express prov ision of
9

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 10 of 29

one method of enforcing a substantive rule suggests that Congress

intended to preclude others .'' Alexander v . Sandoval , 523 U .S . 275,

290 (2001). By authorizing suits by individuals, Congress intended

to bar administrative agencies , like the Department, from

enforcement by litigation .

B.

The structure of Title Il's remedial scheme similarly reveals

no authority for the Department to commence civil litigation . That

remedial scheme incorporates remedies available under 5 505 of the

Rehabilitation Act of 1973 (:55 5051$ , 29 U .S.C. ï 794a, and makes

them available to ''any person alleging discrimination'' under Title

42 U .S .C . 5 12133 ; see Olmstead , 527 U .S . at 590 . Section 504

of the Rehabilitation Act, Which 5 505 enforces, prohibits

disability -discrimination by federally funded programs or

activities. See 29 U .S.C . 5 794 (a) (2014). Section 505 provides

that ''Etlhe remedies, procedures, and rights set forth in Title VI

of the Civil Rights Act of 1964

shall be availab le to any

person aggrieved by any act or failure to act by any recip ient of

Federal assistance or Federal provider of such assistance .

29 U.S.C . 5 794a (a)(2). Ultimately, Title VI of the Civil Rights

Act of 1964 ('ATitle VI''), which prohibits race-discrimination by
federally funded programs or activities , provides :

Each Federal department and agency which is empowered to

extend Federal financial assistance to any program or

activity , by way of grant, loan , or contract other than

a contract of insurance or guaranty is authorized and

directed to effectuate the provisions of section 2000d of

this title with respect to such program or activity by

issuing ru les, regulations, or orders of general

applicability which shall be consistent with achievement

of the objectives of the statute authorizing the

financial assistance .

Comp liance w ith any

10

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 11 of 29

requirement adopted pursuant to this section may be

affected (1) by the termination of or refusal to grant or
to continue assistance under such program or activ ity to

any recipient . or (2) by any other means authorized

by law .

. ''

42 U .S .C . 5 2000d-l .

The State argues that no statutorv cause of action for

Attorney General enforcement ex ists under Title V I, and therefore

none exists under Title II. The State observes that, similar to

the ADA 'S structure, Titles II, 111, IV , and VII of the Civil

Rights Act of 1964 expressly authorize suit by the Attorney

General , but Title VI does not .6 Title VI instead allows

enforcement of conditions attached to federal funding by Many other

means authorized by law''--a phrase that naturally points to

extrinsic sources of enforcement authority . Hence , according to

the State , suits by the Attorney General for Title VI violations

are typically actions for breach of contract . See Guardians Ass 'n

v . Civil Serv . Comm 'n of N .Y .C ., 463 U .S . 582 , 630 n . 24 (1983)(Mthe Federal Government can always sue any recipient who fails to comply

with the terms of the grant agreement'o ; Cannon v . Univ . of Chi.,

44l U .S. 677, 772 (1979)(White, J., dissenting)(''The %other means'

provisions of (Title VI) include agency suits to enforce

contractual antidiscrimination provisions'o ; United States v.

Marion Cnty. Sch . Distw 625 F.2d 607, 609-11 & 6l7 (5th Cir.

1980) (%'we conclude that the United States is entitled to sue to

enforce contractual assurances of compliance with Title V l's

prohibition against discrimination in the operation of federally

funded schools''); see also Arthur R . Block, Enforcement Of Title VI

6 Compare 42 U .S.C. 55 2000a-5 (Title 11), 2000b (Title 111), 2000c-6 (Title IV)? 2000e-5(f) & 2000e-6 (Title VII) with 42 U. S.C. 5 200Qd-l (Title VI).

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 12 of 29
Comp liance Agreement By Third Party Beneficiaries , 18 Harv . C .R .C.L. L. Rev . 9 n .24 (1983) (noting that the Department has enforced Title VI ''under tWo legal authorizations'': suits under Title IV of the Civil Rights Act of 1964 and actions for Mspecific performance of contractual assurances of non-discrim ination made by fund recipients/o .; Because Title 11 is not tied to federal funding, any cause of action for breach of a contract or covenant running with that funding was not carried over to Title II .
A lthough the State 's logic is availing , there is a simpler explanation : Congress did not incorporate all Mremedies, procedures , and rights' available under T itle Vl-- it incorporated only those ''remedies, procedures , and rights'' that may be exercised by a ''person alleging discrim ination .'' 42 U .S .C . 5 12133 . The Department rightly concedes that Title II, by its nature , incorporates less than the full panop ly of Title VI procedures and remedies .8 For example , the power to terminate federal funding

1 The Department disagrees and

suggests that ,

in

the absence of a

contractual assurance, its enforcement authority derives directly from Title VI.

Cf.Barnes v. Gorman, 536 U.S. 181, l89 n.3 (2002)(%'We do not imply, for example,

that suits under Spending Clause legislation are suits in contractd'). Whether

the wother means'' provision authorizes suit directly under Title VI, or merely

authorizes suit for breach of contract or violations of other titles of the Civil

Rights Act of 1964( appears to be a question of first impression . Indeed, the

former Fifth Circuit expressly avoided the issue in Marion Countv , 625 F .2d at

617. Resolution of this issue was perhaps unnecessary in the context of Title

VI because the guarantees of Title VI would be coextensive with the terms and

conditions of a Title VI funding grant . However, as Justice Stevens presciently

observed in his concurrence in Barnes, there is a marked disconnect between Title

II, which was enacted pursuant to 5 5 of the Fourteenth Amendment, and ï 505 and

Title VI? which were enacted pursuant to the Spending Clause . See Barnes, 536 U.S. at l92 (stating that Spending Clause cases ''say l) nothing about the remedy

that might be appropriate for (2 a breach' of Title 11). The Court need not

resolve that issue in this case, however, because any enforcement rights the

Department may have under Title VI, whether in contract or by statute, were not incorporated into Title II. Title 11 only ''providesd' remedial authority S'to''

private parties who allege discrimination . 42 U . S.C. 5 12133 .

8 The

Supreme

Court

has ,

in passing, mentioned

that Title

Il's

remedies are

uthe same as'' those in 5 505. Barnes, 536 U .S . at l89 n .3 . Howevert Barnes

holds only that, having incorporated a private right of action from Title VI

Title Il's private right of action would provide the same remedies as Title Vl',

s

12

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 13 of 29

under Title VI has no foothold in Title II . See 42 U .S .C . ï 2000d -

1. It is also beyond dispute that Title

the Rehabilitation

Act, and Title 11 each authorize suit by private individuals . The

Supreme Court has consistently held that Title VI allows private

individuals to sue for b0th injunctive relief and damages. See Cannon, 441 U .S. 677 (embracing the existence of a private

right of action under Title VI); Franklin v . Gwinnett Cty . Pub .

Sch w 503 U .S. 60 (1992) (finding that 5 2000d-7 of Title VI, which

abrogates states' sovereign immunity, validates Cannon 's holding);

Alexander, 532 U .S . at 280. Title 11 borrows that private right of

action from 5 505, which in turn incorporates it from Title VI .

See Barnes v. Gorman, 536 U .S. 181, l86 (2002) (MRehabilitation Act

(remedies) are coextensive with the remedies available in a private

cause of action brought under Title VI''); Olmstead, 527 U .S. at 59l

n.5 (''a person alleging discrimination on the basis of disability in v iolation of Title 11 may seek to enforce its provisions by

commencing a private lawsuit'') Among the remedies, procedures,

and rights available under Title VI and 5 505 , th is private right

of action is the only such procedure that could be uprovide ld) to'' a ''person alleging discrimination .'' 42 U .S .C . ï 12133 .

Moreover , the ADA 'S structure as a whole supports the

conclusion that Title 11 incorporates only enforcement rights that

may be exercised by private parties . Again , Title of the ADA

incorporates ''powers, remedies, and procedures'' available under

(i.e., no punitive damages). Id. at 185. Whether Title 11 has in fact incorporated %1a 'cause of action' is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive .'' Davis v. Passman, 442 U.S. 228, 239 (1979). The Barnes Court did not venture to say that the administrative procedures and causes of action arising under Title VI are coextensive with those available under Title II. Nor could it have .
13

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 14 of 29

Title VII of the Civil R ights Act of 1964 . Cognizant that Title VII of the Civil Rights Act of 1964 bestows specific rights on private parties, the Equal Employment Opportunity Commission , and

the Attorney General , Congress was carefu l to ensure that Title I of the ADA conferred those rights on ''the Comm ission ? the Attorney
General, (and) any person alleging discrimination'' by name. 42 U.S.C . 5 12117 (a). In Title III of the ADA, Congress incorporated
certain uremedies and procedures'' from Title 11 of the Civil Rights

Act of 1964 and provided them to l'any person who is being subjected

to discrimination on the basis of disability .

.'' 42 U .S .C .

l2l88 (a). 42 U .S.C. 5 2000a-3 (a), which Title III incorporates/
only allows the A ttorney General to intervene in litigation at the court's discretion. 42 U .S.C. 5 2000a-3 (a). Title III of the ADA expands on that lim ited authority in a section titled MEnforcement by Attorney General,' which details an investigatory obligation and an authorization to commence civil suit. 42 U.S .C. 5 l2l88 (b) As does Title Title III deliberately sets forth the who and how of its remedial scheme .

In light of the judicious manner in which Title I and III are
crafted , Title Il's failure to name the Attorney General or her rights under Title VI can hardly be seen as an after -thought . And the decision to limit enforcement of Title 11 to su its by private parties can hardly be seen as surprising . Title 11 reaches into many areas traditionally regulated by states . It thereby imposes
significant federalism costs, subjecting state-run public services to federal judicial review. See Olmstead, 527 U.S. at 610
(Kennedy, J ., concurring)(MThis danger is in addition to the federalism costs inherent in referring state decisions regarding

14

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 15 of 29
the administration and treatment program s and the allocation of
resources to the reviewing authority of the federal courts.d'); 1é. at 624 (Thomas, dissenting)(Mthe Majority's approach imposes
significant federalism costs, directing States how to make
decisions about the delivery of public services.'o . The language
employed in Title 11 avoids compounding those federalism costs by
requiring that such judicial review be at the behest of the
recipients of those public services, not the federal government.
A. Cognizant that Title 11 grants no explicit authority to commence civil litigation , the Department contends that Title 11 contains an embedded grant of enforcement authority . According to the Department, three aspects of Title 11 reveal this implied right of action .
The Department first contends that 5 l2l34 (b) of Title 11 ''expressly adopted the Rehabilitation Act 's detailed enforcement procedures and remedies, including the authority for the Department of Justice to seek remedies through litigation .'' DE 226, at l5 . Section l2134 (b) does nothing of the sort. That section directs the Attorney General to promulgate regulations that implement Title II, with an in struction that they be ''consistent with'' the Department of Health , Education , and Welfare 's regulations that implement the Rehabilitation Act . 42 U .S.C. 5 12l34 (b). This consistency mandate 'does not incorporate the Rehabilitation Act 's regulations into the ADA or direct the A ttorney General to
promulgate identical regulations for Title 11 .'' Elwell v . Okla . ex rel . Bd . of Regents of Univ . of Okla ., 693 F .3d 1303, 1313 (10th
15

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 16 of 29
Cir. 2012). BIt simply says that the Attorney General's regulations must be 'consistent'--that is, compatible or not
contradictory-- with those under the Rehabilitation Act .'' Id .; see
also Zimmerman v . Or. Dep't of Justice, l70 F.2d 1169, 1179 (9th Cir. 1999)(1142 U .S.C. 5 12l34 (b) does not suggest that Congress
intended to incorporate any provisions from the Rehabilitation Act
into Title 11.'') Section 12134 (a) authorizes the Attorney General
to define the substantive standards for discrimination under Title II . Because Title 11 extends the Rehabilitation A ct 's prohibition against disability -discrim ination beyond federal funding recipients to all public entities , the consistency mandate merely ensures that Title Il's substantive standards are analogous to those under the
Rehabilitation Act.9 section l2134 (b) has nothing to say about the Rehabilitation Act's procedures or remedies, and it certainly does
not go so far as to adop t them . Next , the Department argues that the ADA 'S attorney 's fee
provision , which allows a court to award attorney 's fees to a prevailing party ''other than the United States,'' indicates that it may bring suit under Title II . 42 U .S .C . 5 12205 . The Department 's argument overlooks a critical aspect of that provision , which appears in the hMiscellaneous Prov isions'' subchapter applicable to Titles 1, II, and III of the ADA .
Specifically, 5 12205 allows prevailing-party attorney's fees ''(i)n any action or administrative proceeding commenced pursuant to this
9 For entities subject to b0th the Rehabilitation Act and Title II, this
consistency mandate is particularly apropos . It prevents these entities from
being subjected to conflicting sets of standards. Cf. Elwell, 693 F.3d at 1313
Chobviously, Congress sought in 5 l2l34 (b) to prevent the Attorney General and the EEOC from whipsawing employers with contradictory rules in areas where their regulatory authority overlapszo .
l 6

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 17 of 29

chapter .

Id . A s this Order has exp lained exhaustively ,

Titles and III of the ADA contain explicit authority for the

Attorney General to bring suit . Hence, the fact that the United

States is not allowed attorney 's fees if it prevails in an action

under Title or III of the ADA lends no credence to the

Department 's argument that it may sue to enforce Title II .

Lastly , the Department asserts that absurd results w ill follow

this implied right of action to enforce Title

is not

recognized . When this argument is unpacked , however , it becomes

apparent that the Department's premonitions are entirely m isplaced .

The Department first complains that ''without recourse to judicial
remedies, the federal government would have no effective ability to

bring about comp liance .

DE 226 at 16 . That statement is

question -begging at its purest; it simply assumes the answer to the

issue presented : whether the federal government is the proper party

to effect comp liance with Title II . The Department continues that

if it is not able to sue to enforce Title II, the public entities

subject to it will have free reign to disregard its commands. Not
so . Like many other civil rights statutes , Title 11 employs the

concept of a ''private attorney general''-- private parties, empowered

by a fee-shifting provision , are entitled to effect compliance

through litigation .lo See , Fox v . Vice , 563 U .S . 826 , 833

(2011) (%'When a plaintiff succeeds in remedying a civil rights

violation, we have stated , he serves 1as a private attorney

10 As this Court has endeavored to make clear, Title 11 incorporates from Title VI only those rights that may be exercised by a private party . That is, Title Vl's private right of action . For that reason , the Court's construction
does not render superfluous Title Il's incorporation (through ï 505) of Title VI remedies, as the Department contends .

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 18 of 29

general, vindicating a policy that Congress considered of the

highest priority'' and ''Ehle therefore 'should ordinarily recover an

attorney's fee' from the defendant'/). The decision whether to utilize private enforcement or pub lic enforcement lies with

Congress alone, for it is the proper body to weigh the benefits and

burdens associated with each regime . As the State keenly observes,

'there is nothing absurd in the supposition that Congress might

elect to withhold from a federal agency a boundless discretion to

sue state and local governments .'' DE 230 at l5 .

As it turns out, the Department 's concern that it will not be

able to commence litigation is at most a half-truth . The Civil

Rights of Institutionalized Persons Act, 42 U.S .C. 5 1997, qt seg w

P'CRIPA'') authorizes the Attorney General to bring suit whenever

she has reasonab le cause to believe that persons residing in an

institution have been deprived of ''any of the rights, priv ileges ,

or immunities secured and protected by the Constitution or laws of

the United States. .'' 42 U.S .C. 5 l997a (a). CRIPA handcuffs

that authority , however , by requiring that the cond itions resulting

in such deprivation be 'legregious or flagrant,'' that such

deprivation be part of a ''pattern or practice ,'' and that the

institutionalized persons have Msuffered grievous harm .'' Id . The

Attorney General herself must ''personally sign any comp laint filed

pursuant to'' CRIPA . 42 U.S.C. 5 l997a (c) One of the ADA 'S core

concerns is the treatment of disabled persons confined in

institutions. See 42 U.S .C. 55 12l0l(a)(2),(3),& (5); Olmstead, 527

at 589

Not surprisingly , then , the Department has used

CRIPA as a vehicle to assert Title 11 violations in the past .

E.q., United States v. Arkansas, Case No . 09-00033-CIV-HOLMES (E.D .

18

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 19 of 29

Ark. 2009). Recognizing the authority the Department seeks in this
case would , in effect, a llow an end-run around CR IPA 'S stringent

requirements . The final absurd result the Department expounds is an

inability to fulfill the ADA 'S statement of purpose . One purpose of the ADA is ''to ensure that the Federal Government p lays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities .'' 42 U .S .C . j 12l0l(b)(3). Without access to a litigation remedy, the Department contends that th is general statement of purpose will ring hollow . Of course, a statute 's purpose may not be used to ''add features that will achieve the statutory 'purpose ' more effectively .''

Newport News, 514 U .S. at 136. Moreover, l'lelvery statute

proposes, not only to achieve certain ends , but also to achieve

them by particu lar means .

Id . In Titles I and III of the

ADA , those means include litigation by the Attorney General . Title

11 does not elect that Op tion . Instead, the A ttorney'General Was

empowered to set the substantive standards that define disability-

discrimination under Title II. See 42 U .S.C . 5 l2134 (a) FeW

roles could be more central to a statute 's en forcem ent . Apparently

malcontent with that duty , the Department demands not only to draw

up the plays, but to carry the ball as well . Newport News aptly

resolves the matter : ''The Withholding of agency authority is as

significant as the granting of it, and we have no right to play

favorites between the two .'' NewDort News, 5l4 U . S . at 136; cf .
Alexander, 532 U .S. at 287 CARaising up causes of action where a

statute has not created them may be a proper function for common-

law courts, but not for federal tribunals .ro ; Cannon, 441 U.S. at

19

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 20 of 29

730 (Powell, J ., dissenting)(noting that requests for implied
causes of action are an l'invitation to federal courts to legislate causes of action not authorized by Congress,'' which ''cannot be

squared with the doctrine of separation of powers .'o .

B.

Without explaining why it applies here , the Department asks

the Court to apply the Chevron framework to its understanding of

Title

Under Chevron, hlwlhen a court reviews an agency's

construction of the statute which it administers , it is confronted

with two questions .'' Chevron U .S .A .. Inc . v . Nat . Res . Def .

Council, Incw 467 U .S. 837, 842 (1984). The Court must first determine uwhether Congress has directly spoken to the precise question at issue . If the intent is clear , that is the end of the matter ; for the court, as well as the agency , must give effect to
the unambiguously expressed intent of Congress .'' Id . at 842-43 .

But ''if the statute is silent or ambiguous with respect to the specific issue , the question for the court is whether the agency 's answer is based on a permissible construction of the statute .'' Id . at 843 .
Title 11 grants the Attorney General rulemaking authority to
implement the statute 's commands . See 42 U .S .C . 5 l2l34(a).
Pursuant to that authority , the Attorney General has issued substantive regulations, e .q., 28 C .F.R . 5 35.13Q (d), as well as one that allows designated agencies to refer comp laints of non compliance to the A ttorney General ''with a recommendation for appropriate action .'' 28 C .F .R . 5 35 .174 . The Department seeks deference to its belief that Mappropriate action' includes resort to Department-initiated litigation . The fatal defect in the

20

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 21 of 29
Department's plea for Chevron deference is its failure to distinguish between two distinct concepts : the scope of an agency 's
authority and the scope of a court's jurisdiction.
Courts must defer ''to an agency 's interpretation of a statutory ambiguity that concerns the scope of the agency 's statutory authority .'' City of Arlington v . FCC , 569 U .S . , 133
S. Ct. 1863, 1868 (2013). For example, if the Federal
Communications Commission decided that its authority to regulate the rents that utility-pole owners charge for cable-television pole-attachments extended to attachments that provide b0th telev ision and internet, that decision would respect the agency 's
own authority . See id . at 1870 (citing National Cable & Telecomm . Ass'n, Inc. v . Gulf Power Co., 534 U .S. 327 (2002)) Chevron
undoubtedly applies in that area . Id . However , courts owe no deference to the agency 's understanding of the court's
jurisdiction. Cases concerning standing, like Newport News, and
the normal rules of construction govern here . Whether Title 11 confers standing on the Department is plainly an inquiry that falls within this latter category .
It bears mentioning at this juncture that l'lllanguage in a
regulation may invoke a private right of action that Congress through statutory text created , but it may not create a right that Congress has not .'' Alexander, 523 U.S. at 291 (''it is most certainly incorrect to say that language in a regulation can
conjure up a private cause of action that has not been authorized
by Congress . Agencies may play the sorcerer 's apprentice but not the sorcerer himself.'o . Put differently, administrative agencies may not confer standing on private p laintiffs by regulation . Nor
21

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 22 of 29

may they confer standing on themselves . An adm inistrative agency 's

entitlement to seek judicial relief must come from the statute
itself . Newport News, 5l4 U .S . at 136; Marshall , 584 F .2d at 676

Csthe district courts (have) jurisdiction over cases brought by
agencies only when 'expressly authorized to sue by Act of

Congress.''o . The judicial task is to determine whether the

statute confers standing on the plaintiff (and therefore

jurisdiction on the court), not to defer to an agency's position on

the matter . Indeed , the Department's request for Chevron

deference, if credited , would achieve precisely what Alexander

prohibits : using silence or ambiguity to create what Congress has

not. Chevron does not applyx l

The Court notes that even if Chevron deference were

appropriate in this case , it would do little to assist the

Department . A s section I of this Order shows, the ADA is neither

silent nor ambiguous as to the Department's litigation authority .

Title and III provide for it in clear terms, while Title 11

prov ides otherwise, choosing instead to give remedial authority to

individuals alleging discrim ination .

In place of that

straightforward reading, the Department puts forth an exotic

construction to arrive at the following conclusion : ''The question

of who is authorized to take action to ensure that the statutes'

remedies , procedures, and rights are available in practice to

victims of discrimination is a question that is not answered by the

language of the statutes .'' DE 226 at 24 . A s to the suggestion

11 It is for this reason that the Court departs from Judge Rosenbaum 's Order On Motion For Judgment On The Pleadings (DE 40, Case No . 13-61576-C1VZLOCH).
22

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 23 of 29
that hperson ls) alleging discrimination'' are the ones entitled to
take action , the Department responds that the mean ing of the word l'person'' is simp ly not important to a proper understanding o f Title II. See DE 226 at 23 . Even if it were , the Department posits, it does not mean that Title Il's remedies are provided only to those persons . See DE 226 at 24 . That is not a form of reasoning With
which the Court is familiar (indeed it appears to be the opposite of the expressio unius cannon). On Title Il's failure to mention
the Attorney General in the ''Enforcement'' section , the Department argues that its authority under Title 11 is ''coex tensive with the general public , such that no distinction is necessary .'' DE 226 at 2l . Titles I and III on the other hand do mention the A ttorney General because she has different rights and responsibilities than private parties under those titles . See DE 226 at 22 . There is no reason to assume that Congress would be so deliberate in Titles I and III (setting forth not only the ''what,'' but also ''to whom'o ,
yet so reckless in Title 11 (delineating only the 'lwhat'o . Chevron
requires courts to defer to permissible statutory constructions , not ingenious academic exercises in the conceivable . What the Department has suggested is of the latter ilk .
The Department's remaining arguments fare no better . Each directs the Court 's attention to a purported source of authority outside the statute . Of course , the Department's cause of action , if any , must come from Title 11 itself . Newport News, 5l4 U .S . at 136; Marshall, 584 F .2d at 676 . Even so , the sources on which the Department relies do not withstand scrutiny .
The Department argues that Executive Order 13217, which 23

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 24 of 29
directs the A ttorney General to Mfu lly enforce Title 11 of the
ADAJ' supports its authority to bring suit . Exec. Order No . 13217, 66 Fed. Reg. 33,155 (June l8, 2001). The circular nature of this argument should be readily apparent (the Executive Branch has
authority to enforce T itle 11 through litigation because the
Executive Branch says it has authority to enforce Title 11 through
litigation) Moreover, Executive Order 13217 refers to cooperative
efforts with states and alternative dispute resolution , not
litigation . See id . Next, the Department points to a committee report from the
House of Representatives that dealt With a previous draft of Title
Il's enforcement section . Whatever limited use some courts may
find in such legislative history , it certainly cannot be used to
override the unambiguous terms Congress chose to
enact-- particularly where, as here , the legislative history cited
concerns language Congress rejected. See, e.g., Harris v. Garner,
216 F.3d 970, 977 (11th Cir. 2000)(%'When the import of the words
Congress has used is clear, as it is here , we need not resort to
legislative history , and we certainly shou ld not do so to undermine
the plain meaning of the statutory language .'o .lz
12 The Court echoes the sentiments of Justice Antonin Scalia regarding this fictitious hunt for the collective intentions of the Congressional body :
A reliance on legislative history also assumes that the legislature even had a view on the matter at issue. This is pure fantasy . In the ordinary case, most legislators could not possibly have focused on the narrow point before the court. The few who did undoubtedly had varying views. There is no reason to believe, in other words, that a nlegislative intent'' ever existed . Even if legislative intent did exist, there would be little reason to think it might be found in the sources that the courts consult . Floor statements may well have been (and in modern times very probably were) delivered to an almost-empty chamber--or even inserted into the Conqressional Record as a virtually invisible
Mextension of remarks' after adjournment. Even if the chamber was
24

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 25 of 29

The Department's last redoubt is what it contends to be a

Msubstantial history of federal enforcement .

DE 226 at 9.13

In support, the Department cites several district court op inions

for the proposition that Title 11 authorizes it to participate in

litigation . Most are not on point, and the remainder are not

persuasive . In two of the cases the Department cites, the parties

never raised, and the court never considered, the issue of the

full, there is no assurance that everyone present listened, much less agreed . As for committee reports, they are drafted by committee staff and are not voted on (and rarely even read) by the committee members, much less by the full house . And there is little reason to believe that members of the committee reporting the bill hold views representative of the full chamber. Quite the contrary, the conventional wisdom is that the Committee on Agriculture, for example, will be dominated by representatives from farming states. (While some political scientists have challenged that view, it is at least clear that the representativeness of committees is unproved.) Statements in committee hearings are so far removed from what the full house possibly could have had in mind that their asserted relevance is comical. And all these doings of the houses of a bicameral legislature could not possibly have entered into the thinking of the other house--or of the President who signed the bill . The stark reality is that the only thing that one can say for sure was agreed to by b0th houses and the President (on signing the bill) is the text of the statute. The rest is legal fiction.
Antonin scalia & Bryan A . Garner, Readinq Law : The Interoretation of Leqal Texts 376 (2012). Committee reports are not a useful aid in discerning the meaning of statutory language . However, because the Court has been dragged into this morass anyway , it will make some passing observations. The Committee on Education and Labor Report cited by the Department : which does contemplate Department lawsuits to enforce Title II, dealt with a prlor draft of Title 11,s enforcement section . That prior draft made the Rehabilitation Act's remedies available 'with respect
to any individual who believes that he or she is being subjected to
discrimination on the basis of disability .'' H .R . Rep . No . lQ1-485-II at 98.
However, the Committee on the Judiciary rejected the 'with respect to'' language, instead deciding that Rehabilitation Act remedies should be %lprovidetdl to''
persons alleging discrimination . See H .R . Rep . No. 101-485-111 at 52 . That committee 's report speaks only of a private right of action . Id . The Senate initially proposed utilizing the l'with respect to'' language, but receded from that position in favor of the %'provides to' language. See H .R . Conf. Rep . 101-
558 at ! 23. One might conclude that these revisions compel the result the
Court has reached here . But the Court need not speculate about what interpretive changes were intended by the compromises of persons not charged with a duty to 'lsay what the law is.' Marburv v. Madison, 5 U.S. l37 (1 Cranch 137), 177 (1803). The text carries the day, and the exercise of sifting through these reports offers no interpretive help .
13 As part of this history , the Department advises that it has entered several settlement agreements and consent decrees to redress Title 11 violations . see DE 226 at 8. While these efforts to encourage compliance are commendable, they have nothing to do with whether the statute authorizes the Department to
Su e .
25

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 26 of 29
Department's standing . See United States v . N . 111 . Special Recreation Ass'n, Case No. 12-CV-07613 (N .D . 111. Apr. 1l, 2013); United States v . City of Baltw Case No . 09-CV-01049 (D. Md. Feb . 29, 2012) Four others concern the Department's intervention in existing litigation . See Lane v . Brown, Case No . l2-CV-l38 (D . Or . May 22, 2013); Steward v . Perry, Case No . 10-CV-01025 (W .D . Tex.
Sept . 20, 2012): Lynn E. v . Lvnch , Case No. 12-CV-53 (D .N .H . Apr . 4, 2012)7 Disability Advocates, Inc. v . Paterson, Case No. 03-CV03209 (E.D.N .Y. Nov. 23, 2009). In Lynn B., all parties assented
to the Department 's intervention ; in Paterson , no party opposed it ; and in Lane and Steward , no party opposed the Department 's intervention on the ground that the Department lacked standing . Thus , none of these cases furthers the Department 's position because none actually addressed its standing .
The Court is not persuaded by the three cases that do concern the Department's standing under Title II . In United States v . Citv and Countv of Denver, the court found that Title 11 authorizes suit by the Department because the phrase ''other means authorized by law'' found in Title VI allows the Department to sue . 927 F . Supp .
1396, 1400 (D. Colo. 1996)(citing Marion Cty., 625 Supp . at 612).14 However, the court neither discussed the meaning of the
''provides to any person alleging discrimination'' language in Title II, nor analy zed Title Il's enforcement section against that of Titles and 111 . Smith v . City of Philadelphia follows the same pattern--looking to Title VI without conducting analysis of Title
14 The court in Citv and Countv of Denver did not consider whether this authority to sue derives from a contractual assurance or from the statute itself--a question the Marion Countv court expressly avoided . See supra, note 9.
26

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 27 of 29
Il's language and structure . 345 F . Supp . 2d 482, 489-90 (E.D. Pa. 2004). And United States v . Virginia, simply adopts the reasoning
of City and County of Denver without any further analysis . Case No. 12-CV-00059 (E .D . Va. June 5, 2012). The Court finds that the language and structure of the ADA compel the opposite conclusion reached in these cases .
111 . The Department 's claim for relief in this case seeks to augment the manner in which the State has chosen to deliver its
service system for children with disabilities . The Supreme Court has previously recognized that constitutional principles of federalism erect limits on the federal government 's ab ility to direct state officers or to interfere with the functions of state governments. See Printz v . United States, 52l U .S. 898 (1997); New York v . United States, 5O5 U .S. l44 (1992). In areas Where Congress does possess power to alter federal-state relations, the Supreme Court has required that ''if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unm istakelably clear .'' Will v . M ich . Dept . Of State Police, 49l U .S . 58 , 65 (1989)(internal quotations omitted); see also United States v . Bass, 404 U.S. 336, 349 (1971) ('%the requirement of a clear statement assures that the legislature has in fact faced , and intended to bring into issue , the critical matters involved in the
judicial decision') Thus, when Congress has utilized its Spending
Power to induce states to estab lish policies that it could not otherwise compel them to enact , the Supreme Court has required that conditions attached to federal funding be expressed clearly and

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 28 of 29
unambiguously . See Pennhurst State Sch . and Hosp . v . Halderman , 451 U.S. 1, 17 & 24 (1981). Similarly, when Congress seeks to abrogate states' sovereign immunity , its intention to do so must be unequivocal . See Atascadero State Hosp . v . Scanlon , 473 U .S . 234, 242 (1985). Although these principles do not directly govern disposition of this case, they do animate the limits Congress itself has p laced on statutory su its against states .
When Congress has authorized litigation by federal agencies against state and local governments , that authorization has come in clear terms and often with strict conditions . See e .g ., 42 U .S .C 5 1997a (CRlpAllauthorizing suit by the Attorney General against state-run institutions where conditions are egregious or flagrant , the harm grievous, and a pattern or practice of violations exists); 42 U .S.C. 5 2000h-2 (Title IX of the Civil Rights Act of lg64ltauthorizing the Attorney General to intervene in any suit seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment if she certifies that the case is of general public importance); 42 U.S .C. 5 2000c-6 (a) (Title IV of the Civil Rights Act of 1964)(authorizing the Attorney General to sue state-operated schools after giv ing notice to the school board of
complaints of racial discrimination and an opportunity to adjust the conditions alleged in the complaint); 42 U .S.C. 5 2000b (a) (Title III of the Civil Rights Act of lg64llauthorizing the
Attorney General to sue for racial discrimination in state-owned facilities). Statutes such as these fueled the Supreme Court's observation in Newport News that ''the United States Code displays
throughout that when an agency in its governmental capacity 1.
meant to have standing , Congress says so .'' 514 U .S . at 129 . 28

Case 0:12-cv-60460-WJZ Document 543 Entered on FLSD Docket 09/20/2016 Page 29 of 29

Titles I and III of the ADA say that the Attorney General has

standing to comm ence civil litigation . Title 11 does not . The

Court's ''job is to honor the () statutory language.

Arcia

v. Fla . Sec'y of State, 772 F.3d 1335, 1347 (11th Cir. 2014) That

language requires the Court to conclude that the A ttorney General

does not have standing to assert the claim raised in this case . To

hold otherwise Would be for the Court to make the naked judicial
claim to legislative power- -a cla im fundamentally at odds with our

system of government-- to be able to rewrite Title 11 in accord With

the Department 's textual interpretation .

Accordingly , after due consideration , it is

ORDERED AHn ADJUDGED that the United States of America 's Claim

raised in its Complaint (DE 1, Case No . 13-6l576-CIV-ZLOCH) be and

the same is hereby D ISMISSED for lack of standing to sue .

DONE AHn ORDERED in Chambers at Fort Lauderdale, Broward

county ,

Florida , this

,;# -- day of september,2oz6.

Copies furnished : All Counsel of Record

*
WILLIAM J . ZLOCH United States District Judge

29

 
 Case 0:12-cv-60460-WJZ Document 596 Entered on FLSD Docket 01/19/2017 Page 1 of 15

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 12-60460-CIV-ZLOCH

C.V. by and through his next friends Michael and Johnette Wahlquist, et al.,

Plaintiffs,

vs.

O R D E R

JUSTIN SENIOR, in his official capacity as Secretary of the Agency for Health Care Administration, et al.,

Defendants. /

UNITED STATES OF AMERICA,

Plaintiff,

vs.

STATE OF FLORIDA,

Defendant. /

THIS MATTER is before the Court upon the Report &

Recommendation On The State’s Motion To Dismiss A.G.’s Claim As

Moot (DE 557), filed herein by United States Magistrate Judge

Patrick M. Hunt, and the State’s Motion To Dismiss A.G.’s Claims As

Moot (DE 540). The State Defendants1 and Private Plaintiff A.G.

(hereinafter, “A.G.”) have each filed Objections to said Report.

1 Defendants Justin Senior, in his official capacity as Secretary of the Agency for Health Care Administration, Celeste Philip, M.D., in her official capacity as the Surgeon General of the State of Florida and Secretary of the Florida Department of Health, and Cassandra Pasley, in her official capacity as Director of the Florida Department of Health’s Children’s Medical Service, are referred to herein collectively as the “State Defendants.”

Case 0:12-cv-60460-WJZ Document 596 Entered on FLSD Docket 01/19/2017 Page 2 of 15
See DE Nos. 563 & 565. The Court has conducted a de novo review of the entire record herein and is otherwise fully advised in the premises.
Earlier in this litigation, Plaintiffs, including A.G., vigorously argued that class certification was necessitated by the risk that their claims would become moot from death or “aging out of Florida Medicaid (EPSDT).” DE 401, p. 5. That program is available only to children——in this context, defined as Medicaid recipients under the age of twenty-one. See 42 U.S.C. §§ 1396d(a)(4)(B) & (r)(5) (2015); Fla. Stat. § 409.905(2) (2016). A.G. is now twenty-one years old. The State Defendants thus contend that A.G.’s claims are moot because he is no longer eligible for services under the EPSDT program. A.G. believes that his claims are still live because he is eligible for other Medicaid services provided by the State under other programs. After thorough consideration, the Court concludes that A.G.’s claims set forth in the Second Amended Complaint (DE 62) (hereinafter “Complaint”) are moot.
I. Background The Medicaid program is a collaborative program between the federal government and states that choose to participate, which provides health care services to certain qualified individuals. See 42 U.S.C. §§ 1396-1396v. States that elect to participate in
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the Medicaid program must submit to the Secretary of Health and Human Services a Medicaid State Plan detailing the scope of the state’s program. 42 U.S.C. § 1396. The Medicaid Act lists twentynine services, eight of which must be covered under the state’s Medicaid State Plan. See 42 U.S.C. § 1396d(a)(1)-(29); 42 U.S.C. § 1396a(a)(10)(A). The remaining twenty-one services are optional for adults, but must be provided to children through the “early and periodic screening, diagnostic, and treatment” program (hereinafter, “EPSDT”). See 42 U.S.C. §§ 1396d(a)(4)(B) & (r)(5). For example, private duty nursing is an optional service for adults, but must be provided to children through EPSDT. See 42 U.S.C. § 1396d(a)(8); 42 U.S.C. § 1396a(a)(10)(A). States that participate in the Medicaid program must “either provide for the establishment of a single State agency to administer or to supervise the administration of the plan.” 42 U.S.C. § 1396(b)(5).
The State of Florida (hereinafter, the “State”) participates in the Medicaid program, and the Agency for Health Care Administration is the single agency responsible for administering the State’s plan. Fla. Stat. § 409.902(1). Consistent with federal law, the State provides private duty nursing services (among others) to eligible Medicaid recipients under the age of twenty-one as part of its EPSDT program. Fla. Stat. § 409.905(2); Fla. Stat. § 409.908(3)(p). The State also provides private duty
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nursing services to eligible Medicaid recipients age twenty-one and
older through its iBudget Waiver program. See DE 540, p. 5 n.5.
The Agency for Persons with Disabilities administers the iBudget
Waiver program, see Fla. Stat. § 393.065; however, the Agency for
Health Care Administration has ultimate authority over the State’s
Medicaid program. See Fla. Stat. § 20.42(3).
The Complaint (DE 62) begins by describing Plaintiffs,
including A.G., as “medically fragile children or children who need
skilled care services.” DE 62, ¶ 1. Regarding A.G. specifically,
the Complaint (DE 62) alleges as follows:
145. [As of August 23, 2012] A.G. is a 17-year-old child who requires Skilled Care Services . . .
147. A.G. was born in Cairo, Egypt on July 28, 1995 . . .
154. A.G. is a qualified person with a disability within the meaning of the ADA and Section 504.
155. A.G. meets the criteria for mental retardation or mental illness on a Level I PASRR screen.
156. No Level II PASRR evaluation or review was ever performed.
157. Due to A.G.’s improving condition and reduction of funds paid to Lakeshore from Medicaid, Lakeshore is denying needed services, such as physical and speech therapies.
158. A.G.’s primary language is Arabic, and contrary to Title VI of the Civil Rights Act of 1964, Lakeshore denied A.G. any assistance with respect to its services, benefits, or encounters and as such, left A.G. further isolated and bereft of needed programs and services for any improvement.
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159. A.G. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting. DE 62, ¶¶ 145, 147, & 154-59. Like A.G., each of the other
Plaintiffs alleged that they need (or need more) private duty
nursing services in order to avoid unnecessary institutionalization
or in order to be placed in a community setting. See DE 62, ¶¶
127, 143, 176, 178, 192, 194, 209, 211, 223, 224, 235, 237, 249,
251, 262, & 265. The Complaint (DE 62) specifically identifies
policies applicable only to children that Plaintiffs allege cause
an unwarranted denial of medically necessary services, and
consequently, unnecessary instititutionalization or a risk of
unnecessary instititutionalization. See DE 62, ¶¶ 277 & 278.
Indeed, Plaintiffs alleged that they
have been placed in nursing homes and are at risk of being placed in a nursing home because Defendants have unlawfully shifted the burden for providing skilled nursing services to parents or caregivers of children who are not skilled nurses. In contrast, there are not similar regulations, rules, customs, practices, policies, acts, and omissions utilized to deny benefits and to unnecessarily institutionalize and segregate similarly situated adults with disabilities. DE 62, ¶ 277 (emphasis added).
The Complaint (DE 62) sets forth five counts: Count 1,
violation of Title II of the Americans With Disabilities Act; Count
2, violation of Section 504 of the Rehabilitation Act; Count 3,
violation of the EPSDT provisions of the Medicaid Act asserted
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pursuant to 42 U.S.C. § 1983; Count 4, violation of the reasonable promptness provisions of the Medicaid Act asserted pursuant to 42 U.S.C. § 1983; and Count 5, violation of the Nursing Home Reform Amendments to the Medicaid Act asserted pursuant to 42 U.S.C. § 1983. Notably, each Count incorporates by reference the allegations contained in paragraphs 277 and 278. See DE 62, ¶¶ 300, 311, 319, 324, & 329.
Not surprisingly, then, this case has focused exclusively on the State’s administration of its Medicaid program to children. For example, Plaintiffs, including A.G., sought to certify a class comprised of “[a]ll current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities.” DE 329 (emphasis added). After the Magistrate Judge recommended that Plaintiffs’ proposed class not be certified, Plaintiffs, including A.G., proffered a new proposed class definition: “All current Medicaid recipients in the state of Florida under the age of 21, who are (1) unnecessarily institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of unnecessary institutionalization by receiving materially less private duty nursing services, personal care or respite care services than ordered by their treating physicians.” DE 397 (emphasis added).
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In the course of litigating their Second Renewed Motion For

Class Certification (DE 329), Plaintiffs, including A.G., described

the “common thread [that] binds all members of this putative class;

they are all ‘medically complex’ or ‘medically fragile’ children

subject to Defendants’ systemic policies and practices.” DE 329.

As in their Complaint (DE 62), Plaintiffs, including A.G., then set

out the specific polices that they alleged were “exemplary of

Defendants’ overarching process of unnecessarily institutionalizing

medically complex and medically fragile children.”

Id.

Plaintiffs, including A.G., urged that class certification was

necessary because “mootness is a real risk in this proceeding.” DE

401. To make their point, Plaintiffs fastidiously set forth the

precise risk of mootness faced by each of the ten named Plaintiffs.

As to A.G., Plaintiffs asserted:

A.G. will turn 21 years old on July 28, 2016, ten months from the date of this filing. See Johnson v. Opelousas, 658 F.2d 1065, 1069-1072 (11th Cir. 1981) (finding trial court abused its discretion in denying certification where plaintiff only had ten months until his claims were mooted by reaching the age of majority.) It is probable that he will age out of EPSDT before the conclusion of this lawsuit.

Id. Ultimately, the Court denied Plaintiffs’ request for class

certification.

Since the filing of the Complaint (DE 62), two important

circumstances have changed, which no Party disputes. At the time

that Complaint (DE 62) was filed, A.G. resided in a nursing

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facility. A.G. has since transitioned to the community. A.G. has also since turned twenty-one years old, and is no longer eligible to participate in the EPSDT portion of the State’s Medicaid program.
In addition, two important deadlines have passed——both before A.G. turned twenty-one. First, on January 21, 2016, the Court’s deadline for filing an amended complaint passed, and no Party has since requested amendment. See DE 387. Second, on April 30, 2016, discovery closed, and no Party has sought to reopen it. See id.
In light of A.G.’s age, and because Plaintiffs seek only prospective relief, the State Defendants moved to dismiss A.G.’s claims as moot. See DE 540. In his Report (DE 557), the Magistrate Judge recommends that Counts 3 and 5 be dismissed as moot. As to Count 3, the Magistrate Judge concluded that because A.G. is no longer eligible for EPSDT services under the State’s Medicaid program, that claim is moot. The Magistrate Judge concluded that A.G.’s claim in Count 5 is moot because A.G. no longer resides in an institution. A.G. did not object to either of these conclusions.2 The Magistrate concluded that A.G.’s claims set forth in Counts 1, 2, and 4 are unaffected by A.G.’s age and may therefore proceed. The State objects to the Magistrate’s
2 A.G. objected only to “the Magistrate Judge’s finding under Counts One and Two that private duty nursing is the only service at issue.” DE 563, at 2.
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conclusion in this regard. II. Analysis
Article III of the Constitution allows federal courts to exercise their jurisdiction only over “Cases” and “Controversies.” U.S. Const. art. III, § 2. This limitation “presents an important restriction on the power of the federal courts,” Sociality Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998), for it prevents the judiciary from encroaching upon powers granted to the elected branches.
One restriction on federal courts’ authority flowing from the case-or-controversy requirement is the doctrine of mootness. See Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997) (“an action that is moot cannot be characterized as an active case or controversy.”). “A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Florida Assoc. Of Rehab. Facilities, Inc. v. State of Fla. Dept. of Health and Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000) (internal marks omitted). That is, “[w]hen events subsequent to the commencement of a lawsuit create a situation in which the court can no longer give the plaintiff meaningful relief, the case is moot and must be dismissed.” Id.
Age-related mootness issues are no novelty to federal courts. Indeed, federal courts routinely dismiss as moot the claims of
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parties who, by virtue of their age, are no longer subject to the policies they challenge——at least where the party seeks only prospective relief. E.g., Honig v. Doe, 484 U.S. 305, 318 (1988) (“Respondent John Doe is now 24 years old and, accordingly, is no longer entitled to the protections and benefits of the EHA, which limits eligibility to disabled children between the ages of 3 and 21 . . . It is clear, therefore, that whatever rights to state educational services he may yet have as a ward of the State . . . the Act would not govern the State’s provision of those services and thus the case is moot as to him.”); Craig v. Boren, 429 U.S. 190, 192 (1976) (finding that attainment of the age of twenty-one mooted a plaintiff’s claims where he challenged state laws prohibiting the sale of certain beers to males under the age of twenty-one); Atherton Mills v. Johnston, 259 U.S. 13, 15-16 (1922) (“The lapse of time since the case was heard and decided in the District Court has brought the minor, whose employment was the subject matter of the suit, to an age which is not within the ages affected by the act. The act, even if valid, cannot affect him further. The case for an injunction has, therefore, become moot and we cannot consider it.”); Tucker v. Phyfer, 819 F.2d 1030 (11th Cir. 1987) (concluding that a plaintiff’s claims for prospective relief were moot where he challenged conditions at a juvenile detention center, but attained the age of eighteen and was released
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from the facility while the case was pending). The Magistrate Judge correctly concluded that A.G.’s claim set
forth in Count 3, which alleges violations of the Medicaid Act’s EPSDT policies, has become moot because of A.G.’s age. Having attained the age of twenty-one, A.G. is no longer subject to the State’s EPSDT Medicaid programs. See Fla. Sta. § 409.905(2); 42 U.S.C. § 1396d(a)(4)(B). The Court thus lacks jurisdiction to grant A.G. the prospective relief he seeks with respect to Count 3.
With respect to Counts 1, 2, and 4, A.G. clings to broad language in the Complaint (DE 62) in an attempt to avoid dismissal of those claims for mootness. In particular, A.G. claims that because “[he] is eligible for Medicaid and AHCA has been named as a defendant, [his] claims are not moot.” DE 545. In essence, A.G. argues that because the Complaint (DE 62) alleges that “A.G. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting,” he has sufficiently stated a claim regarding any of the State’s Medicaid programs for which he is eligible. DE 62, ¶ 159. Despite his attempts to characterize the allegations in the Complaint (DE 62) as challenging policies other than the EPSDT program, the Court finds that A.G.’s claims in Counts 1, 2, and 4 rise and fall with the
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claim in Count 3.3 Counts 1, 2, and 4 allege violations of the Americans With
Disabilities Act, the Rehabilitation Act, and the Medicaid Act’s reasonable promptness requirement, respectively. To be sure, those statutes contain no age limitation. However, according to the Complaint (DE 62), it is the State’s administration of its EPSDT policies that causes a violation of those statutes. Therefore, to the extent that Count 3 is moot, Counts 1, 2, and 4 are also moot.
Moreover, Federal Rule of Civil Procedure 8(a) requires a plaintiff’s complaint to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint must contain factual allegations “in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint does not suffice “if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal marks omitted). Any fair reading of the Complaint (DE 62) confirms that this case concerns only children and the State’s administration of its Medicaid plan to children. Indeed, by incorporating paragraph 277 of the Complaint (DE 62),
3 The Magistrate Judge also recommended that A.G.’s claim in Count 5 be dismissed as moot because A.G. no longer resides in an institution. A.G. did not object to that recommendation. The Court adopts the Magistrate Judge’s reasoning and conclusion with respect to Count 5.
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Counts 1, 2, and 4 expressly denounce any contention that the State “den[ies] benefits [to] and [] unnecessarily institutionalize[s] and segregates[s] similarly situated adults with disabilities.” DE 62, ¶ 277. The Complaint (DE 62) simply contains no factual allegations putting the State on notice that this case also concerns the iBudget Waiver program or any other Medicaid program the State offers to adults. Indeed, without such allegations or discovery (which is now closed), it is entirely speculative whether A.G. requested services under a program other than EPSDT, whether the State denied those services, and whether such denial was unlawful. A.G. is not entitled this late in the game to assert an entirely new legal theory based solely on broad language in the Complaint (DE 62) without factual allegations supporting that theory.
In a similar vein, A.G. is not entitled to whipsaw the Court by asserting a legal theory that is fundamentally at odds with a position he maintained earlier in the case for the simple expedience of avoiding initiating a new lawsuit. Cf. New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (judicial estoppel “prohibit[s] parties from deliberately changing positions according to the exigencies of the moment”) (quotation omitted). While litigating Plaintiffs’ Second Renewed Motion For Class Certification (DE 329), A.G. expressly represented to the Court that his claims would
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become moot when he turned twenty-one. See DE. A.G. has therefore conceded that his claims are now moot.
In sum, the Complaint (DE 62) does not state a claim with respect to the State’s iBudget Waiver program, or any other Medicaid policy applicable to adults. Each of Counts 1, 2, 3, and 4 are dependent upon the Medicaid policies the State has in place for children. A.G. is no longer subject to those policies, and consequently, the Court can no longer fashion him meaningful relief. If Plaintiff A.G. wishes to challenge the manner in which the State administers its Medicaid program for adults, he is free to do so. But the Court lacks jurisdiction to hear his challenge to the State’s Medicaid program for children.
Accordingly, after due consideration, it is ORDERED AND ADJUDGED as follows: 1. Plaintiff’s Objection To Report And Recommendation On Defendant’s Suggestion For Mootness As To Plaintiff A.G. (DE 563) be and the same is hereby OVERRULED; 2. To the extent they are consistent with this Order, The State’s Objections To The Report And Recommendation On The State’s Motion To Dismiss A.G.’s Claim As Moot (DE 565) be and the same are hereby SUSTAINED; 3. To the extent that it recommends dismissal of Plaintiff A.G.’s claims in Counts 3 and 5 of the Second Amended Complaint (DE 62), the Report And Recommendation On The State’s Motion To Dismiss
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A.G.’s Claims As Moot (DE 557) filed herein by United States

Magistrate Judge Patrick M. Hunt be and the same is hereby

approved, adopted, and ratified by the Court;

4. To the extent that it recommends that Plaintiff A.G.’s

claims in Counts 1, 2, and 4, of the Second Amended Complaint (DE

62) proceed, the Court declines to approve, adopt, and ratify the

Report And Recommendation On The State’s Motion To Dismiss A.G.’s

Claims As Moot (DE 557);

5. The State’s Motion To Dismiss A.G.’s Claims As Moot (DE

540) be and the same is hereby GRANTED; and

6. The above-styled cause be and the same is hereby DISMISSED

without prejudice as to Plaintiff A.G. in that the Court lacks

subject matter jurisdiction over the same.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward

County, Florida, this

19th

day of January, 2017.

WILLIAM J. ZLOCH United States District Judge
Copies furnished:
All Counsel of Record
The Honorable Patrick M. Hunt United States Magistrate Judge

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 Case 0:12-cv-60460-WJZ Document 634 Entered on FLSD Docket 03/22/2017 Page 1 of 27
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION Case No. 12-60460-CIV-ZLOCH C.V., by and through his next friends, Michael and Johnette Wahlquist, et al., Plaintiffs, v. JUSTIN M. SENIOR, in his official capacity as Interim Secretary of the Agency for Health Care Administration, et al., Defendants. ____________________________________/
REPORT AND RECOMMENDATION
This matter is before this Court on Defendants’ Motion for Summary Judgment. ECF No. 588. The motion was referred to the undersigned for a report and recommendation. ECF No. 275; see also 28 U.S.C. § 636(b); S.D. Fla. Mag. R. 1. Having carefully reviewed the motion, the response, the reply, the entire case file, and applicable law, having held a hearing on the matter, ECF No. 615, 619, and being otherwise fully advised in the premises, the undersigned hereby RECOMMENDS that the motion be GRANTED.
I. Background Plaintiffs filed this case in March 2012 as a putative class action seeking systemic
changes to Florida’s administration of Medicaid services to disabled children. As Defendants, following substitutions, the Complaint names: (1) Justin M. Senior, in his official capacity as Secretary of the Agency for Health Care Administration (“AHCA”), the single state agency responsible for administering Florida’s Medicaid program; (2) Celeste Philip,

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M.D., in her official capacity as the State Surgeon General and Secretary of the Florida Department of Health (“DOH”); (3) Cassandra G. Pasley, in her official capacity as the Director of the DOH’s Division of Children’s Medical Services; and (4) eQHealth Solutions, Inc., a Louisiana non-profit corporation in privity with the AHCA.1 Compl. 7; ECF No. 620 at 9.
At the time the operative Complaint was filed, ECF No. 62, named Plaintiffs were categorized into two groups. The first classification included three “institutionalized” children, that is, children who were residing in one of three Florida nursing homes. Compl. 3. The second classification included seven children who were alleged to be “at risk” of institutionalization. Compl. 3–4. But, today, due to unfortunate and unforeseen circumstances, such as death, “aging out” of the system, and relocation, only three named Plaintiffs remain. Those Plaintiffs—C.V., M.D., and C.M.—have never been institutionalized. ECF No. 589 ¶ 26.
On February 29, 2016, after substantial discovery took place, this Court denied Plaintiffs’ motion for class certification. ECF No. 448. Plaintiffs’ proposed class included “[a]ll current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities.” ECF No. 329 at 2. In short, this Court found that the proposed class was simply “too broad and over inclusive so as to be adequately defined.” ECF No. 395 at 13; ECF No. 448 at 2. Therefore, the merits of Plaintiffs’ claims now depend solely on the factual allegations apropos to C.V., M.D., and C.M.
1 Pursuant to an agreement, eQHealth was subsequently dismissed as a party. ECF No. 322. Because the remaining Defendants are all State of Florida officials sued in their official capacities, they may be collectively referred to as “the State” or “Florida.”
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The Complaint currently raises four causes of action.2 Counts 1 and 2 raise claims
for alleged violations of Title II of the Americans with Disabilities Act (“ADA”) and the
Rehabilitation Act, respectively. Both statutes are substantively the same, see Badillo v.
Thorpe, 158 F. App’x 208, 214 (11th Cir. 2005), and identical allegations support both
claims. Specifically, the remaining named Plaintiffs allege that Florida has violated each Act by placing them at risk of segregation in a confined institutional setting3 and by denying
them medically necessary services. Compl. 40–43. More specifically, the Complaint
alleges that C.V., M.D., and C.M. are customarily denied private duty nursing services,
thereby placing them at risk of undue institutionalization. See Compl. 4, 26–30.
Private duty nursing (“PDN”) services are skilled nursing services often provided in
the recipient’s home. They are intended for individuals “who require more individual and
continuous care than is available from a visiting nurse or routinely provided by the nursing
staff of the hospital or skilled nursing facility.” 42 C.F.R. § 440.80. Under the Early and
Periodic Screening, Diagnosis and Treatment (“EPSDT”) provisions of the United States
Medicaid Act, Florida is required to provide medically necessary PDN services that are
“sufficient in amount, duration, and scope” to all qualified children under the age of twenty-
2 A fifth cause of action concerning the State’s administration of the Pre-Admission Screening and Resident Review (“PASRR”) provisions of the Nursing Home Reform Amendments of 1987 to the United States Medicaid Act was recently dismissed. ECF No. 631, 617. Under the PASRR program, “the State is required to screen incoming nursing facility patients for mental illness and mental retardation, determine whether placement in a nursing facility is appropriate and if specialized services are needed, and to provide the specialized services that are necessary.” Compl. ¶ 94. Although the Complaint alleged that Florida’s administration of the PASRR program is inadequate, the Complaint did not allege that C.V., M.D., or C.M. were ever harmed or at imminent risk of harm as a result of the State’s inadequate administration of that program. Rather, the PASRR claims only applied to currently or formerly institutionalized Plaintiffs who are no longer in this case. See, e.g., Compl. ¶¶ 281–82, 329–32. 3 Under certain circumstances, undue institutionalization is itself discrimination under Title II of the ADA. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597–603 (1999).
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one.4 42 C.F.R. § 440.230(b); Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1255 (11th
Cir. 2011).
Florida does not dispute that C.V., M.D., and C.M. need PDN services due to their
complex medical conditions. C.V. has Hurler Syndrome, which, among other things,
requires him to breath with a tracheotomy tube that must be cleaned every five minutes.
Compl. 26. M.D. has been diagnosed with cerebral palsy and Strider Syndrome, which also
leads to breathing problems as well as frequent seizures. Compl. 28. M.D. cannot speak
and requires constant supervision to avoid suffocating on her own saliva. Id. C.M. has
been diagnosed with chromosome deletion syndrome, chronic respiratory failure, and
severe cerebral palsy. Compl. 29. He, too, requires constant supervision for the cleaning
of his tracheotomy tube and the administration of over twenty-five medications. Id. Notably,
each child’s parent(s) or legal guardian(s) work full-time jobs, and none are skilled nurses. Compl. 26–30, 34. Hence, each child’s physician has prescribed PDN services.5 Compl.
26–30.
4 For a service to be found “medically necessary,” it must meet the following five conditions: 1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; 2. 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; 3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; 4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and 5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.
Fla. Admin. Code 59G-1.010(166)(a). 5 The fact that a provider has prescribed services does not, in itself, make such services “medically necessary.” Fla. Admin. Code 59G-1.010(166)(c).
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The primary issue in this case concerns the amount of PDN hours that Florida authorizes. In a process called “prior authorization,” Florida determines the medical necessity of requested services at least every 180 days.6 Compl. ¶ 85. “The goal of prior authorization is to assure that the care and services proposed to be provided are actually needed, that all equally effective, less expensive alternatives have been given consideration and that the proposed service and materials conform to commonly accepted standards.” Moore, 637 F.3d at 1238. As of 2011, eQHeatlh performs prior authorization reviews for any requests for PDN services by M.D. and C.M. Compl. 12; ECF No. 589 ¶¶ 6, 32. In 2014, after the Complaint was filed, DOH contracted with Ped-I-Care, who now performs prior authorization reviews for any requests for PDN services by C.V.7 ECF No. 589 ¶¶ 9, 33.
The Complaint generally condemns Florida’s “policies, practices, and regulations to reduce private duty nursing services” during prior authorization reviews. Compl. ¶ 19. The Complaint specifically identifies three policies that allegedly result in denied or reduced PDN services. At the time the Complaint was filed, each of these policies was located in the AHCA’s Home Health Services Coverage and Limitations Handbook (“Handbook”), which was incorporated by reference into Rule 59G-4.130 (2011) of the Florida Administrative Code. Until recently, the Handbook specified the services provided by the State and the policies that regulate them. ECF No. 589 ¶ 3.
The first policy is referred to as the “convenience standard.” Compl. ¶¶ 65, 277a. Specifically, the Handbook states that “Florida Medicaid does not reimburse private duty
6 The process has two stages, if necessary. The first level of review is performed by a nurse who can only approve, but cannot deny, services. Compl. ¶¶ 86–88. If the nurse cannot approve services, medical necessity is then reviewed by a physician. Id. 7 Prior to that time, eQHealth also performed prior authorization reviews for any requests for PDN services by C.V. Compl. 12.
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nursing services provided solely for the convenience of the child, the parents or the caregiver.” Handbook 2-18. This policy is an extension of the definition of “medically necessary” found in Rule 59G-1.010(166) of the Florida Administrative Code. As part of that regulation, a service is not deemed “medically necessary” unless it is “furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider,” among other things. See supra note 4. In the Complaint, Plaintiffs allege that “Defendants adopted and have applied this policy without the authority of any similar federal Medicaid policy, rule or statute, giving Defendants a basis to deny private duty nursing service hours that have been prescribed by Plaintiff and Plaintiff Class members’ treating physicians.” Compl. 34. Further, the Complaint states, Florida’s “application of this policy has forced and is forcing parents and caregivers to institutionalize their children.” Compl. 34–35.
The second Handbook policy states that PDN services “will be decreased over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or as the child’s condition improves.” Handbook 2-21; Compl. ¶¶ 66, 277b. Plaintiffs allege that pursuant to this policy, “Defendants seek to force parents to provide life sustaining, medically necessary care, usually performed by licensed and trained nurses, to their own children.” Compl. 34. Due to this policy, the Complaint states, “Plaintiff and Plaintiff Class members have been placed in nursing homes and are at risk of being placed in a nursing home because Defendants have unlawfully shifted the burden for providing skilled nursing services to the parents or caregivers of children who are not skilled nurses.” Id.
The third Handbook policy states that “[a] recipient who is medically able to attend a prescribed pediatric extended care (‘PPEC’) center and whose needs can be met by the PPEC shall be provided with PPEC services instead of [PDN] services.” Handbook 2-20;
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Compl. ¶ 278a.8 A PPEC center, also referred to as a medical daycare, “is a ‘nonresidential facility’ that provides ‘short, long-term, or intermittent medical care’ to medically fragile children.” Compl. 35 n.1. Children may attend PPEC Centers for as many as twelve hours per day, seven days per week.9 See Fla. Stat. § 400.914(2)(a) (2016). Plaintiffs allege that this policy of preferring PPEC centers “further promote[s] institutionalization by restricting [PDN] services only to those children who ‘are unable to attend a [PPEC] Center.’” Compl. 35. According to Plaintiffs, this policy “will force children who would otherwise remain in their homes and integrated communities to be placed in a segregated facility entirely composed of other medically fragile children.” Id.
With respect to C.V., M.D., and C.M., the Complaint specifically demonstrates a pattern of prior authorization denials “based upon the current policies and practices of the Defendants.” Compl. 27, 29, 30. For example, the Complaint alleges that since June 2006, the AHCA denied C.V. the appropriate hours of PDN care at least 13 times at certification reviews. Compl. ¶ 207. Since 2008, M.D. was denied the prescribed PDN hours on five separate occasions. Compl. ¶ 222. And, since 2011, C.M. was denied hours once. Compl. ¶ 234. As grounds for the denials, the AHCA expressly stated that the hours were primarily intended for the convenience of the recipient’s caretaker. ECF No. 620 at 14–15, 17, 21. The Complaint alleges that the denials “are not based on a change in the medical necessity of the services,” but are “an administrative action made to save money.” Compl. 27, 28, 30.
For each denial, Plaintiffs were forced to engage in an appeal called a fair hearing process in order to obtain the appropriate hours. See id. Although each appeal was
8 This policy comes from the 2012 version of the Handbook. 9 The State’s policies governing the provision of PPEC services are contained in a separate Handbook: the Prescribed Pediatric Extended Care Services Coverage and Limitations Handbook, which is incorporated by reference into Florida Administrative Code Rule 59G4.260(2). ECF No. 620 at 7–8. The Complaint does not challenge any of the policies in that Handbook, however.
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successful, Plaintiffs no longer wish to engage in this negative cycle. So, after their most recent denial, Plaintiffs filed this lawsuit. The Complaint states that Florida’s policies and practices specifically place them “at risk of institutionalization” in a Florida nursing facility because, without the appropriate hours of medically necessary services, their parents or caregivers will no longer be able to care for them at home. Compl. 27, 29, 30.
Counts 3 and 4 raise related claims pursuant to 42 U.S.C. § 1983 for alleged violations of the United States Medicaid Act. Count 3 states that the AHCA’s regulatory definition of “medical necessity,” and Defendants’ policies and practices “for providing private duty nursing, below the level that is medically necessary, violate the EPSDT provisions of the federal Medicaid Statute.” Compl. 43. Count 4 states that as a result of Defendants’ policies and practices that limit the provision of medically necessary services, which “result in extended delays and outright denials of medically necessary care to the Plaintiffs,” the specialized services that Plaintiffs need “are not provided with reasonable promptness, in violation of 42 U.S.C. § 1396a(a)(8).” Compl. 44.
As recourse, Plaintiffs seek declaratory and injunctive relief, but not damages.10 Specifically, Plaintiffs request for this Court to “[o]rder the Defendants to provide private duty nursing services that will allow the Plaintiffs and Plaintiff class members to live in their homes and communities.” Compl. 46. Plaintiffs also seek for Defendants “to cease the practice of denying or reducing Plaintiff and Plaintiff Class members’ services at recertification where there has been no change in the medical necessity of such services.” Id.
In February 2013, Florida moved to dismiss Plaintiffs’ claims for lack of jurisdiction. ECF No. 117. That motion argued that Plaintiffs’ claims were moot because Florida had
10 This Court dismissed Plaintiffs’ claim for “compensatory services.” ECF No. 399. 8

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recently (as of January 2013) discontinued use of, and proposed formal rule changes to, the offending policies that Plaintiffs challenge. Nevertheless, this Court denied the motion, finding that most of the rule changes were not yet final. ECF No. 175 at 13–14. Additionally, the Court noted that Florida did nothing to modify the regulatory definition of “medically necessary” and, thus, “that definition still applies to Plaintiffs and allegedly deprives them of services and benefits that they seek through this litigation.” Id. at 19.
In March 2014, Florida filed a “renewed” motion to dismiss. ECF No. 237. The renewed motion explains that the relevant rule changes are now final and that all relevant Handbook policies developed under the medical-necessity definition have since been formally repealed. Id. at 12. However, because Florida had still not touched the regulatory definition of “medically necessary,” the Court again denied the motion. ECF No. 287 at 25– 26; ECF No. 310; see also ECF No. 395 at 19–20.
In the instant Motion for Summary Judgment, filed in January 2017, Florida again argues that Plaintiffs’ claims are moot due to the policy changes.11 ECF No. 588. This motion highlights the prior policy changes and explains that Florida has since adopted new Rule 59G-4.261(4), which “expressly provides that the convenience standard contained in the general definition of ‘medical necessity’ in Rule 59G-1.010(166) ‘shall not be applicable when determining the medical necessity of private duty nursing services.’” Id. at 12. Additionally, the motion states that the offending policies have not been applied in over three years since they were first pulled from practice, such that “no dispute of material fact remains to be adjudicated.” Id. at 5.
11 Defendants group the first two challenged policies into one: “First, Plaintiffs claim that the State applies the convenience standard to require parents and other caregivers to provide PDN services themselves, and denies PDN services to the extent that parents and other caregivers are available to provide those services.” ECF No. 588 at 6 (second emphasis added). For clarity, the undersigned treats them separately.
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II. Standard of Review Although Florida’s motion is labeled as a Motion for Summary Judgment, to the
extent it seeks dismissal solely on grounds of mootness, it is actually a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007). In this regard, the motion presents a “factual attack” to this Court’s subject-matter jurisdiction because it relies on matters outside the Complaint. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). In a factual attack:
the trial court may proceed as it never could under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. (quoting Williamson v. Tucker, 645 F.2d 404, 412–13 (5th Cir. 1981)). The only exception is when the jurisdictional basis of a claim is intertwined with the merits such that a decision on one would effectively decide the other. Id. at 1530. Under this scenario, “the district court should apply a Rule 56 summary judgment standard when ruling on a motion to dismiss which asserts a factual attack on subject matter jurisdiction.” Id. Of course, the summary judgment standard is more restrictive than the former. Under Rule 56, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, this Court may not weigh any evidence and must resolve all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Stack v. Dep't of Army, 160 F. App'x 857 (11th Cir. 2005).
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Here, it is doubtful that the jurisdictional basis of Plaintiffs’ claims are intertwined with the merits. See Thomas v. Branch Banking & Trust Co., 32 F. Supp. 3d 1266, 1269 n.2 (N.D. Ga. 2014). However, the undersigned finds it unnecessary to weigh any evidence in order to resolve Florida’s motion. Moreover, Florida is certainly aware of the appropriate standard, having filed six other mootness motions in this case, yet it specifically asked this Court to apply the more restrictive summary judgment standard. ECF No. 588 at 7–8. Therefore, the undersigned will do so.
III. Analysis Article III of the United States Constitution “limits the jurisdiction of federal courts to
the consideration of ‘Cases’ and ‘Controversies.’” Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002) (quoting U.S. Const. art. III, § 2). For a claim to be justiciable, i.e., capable of being resolved by this federal Court, the plaintiff must have standing and his claims must be ripe, among other things. See Levy v. Miami-Dade Cty., 358 F.3d 1303, 1305 (11th Cir. 2004). The Supreme Court has stated that “the irreducible constitutional minimum of standing contains three elements”:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (alterations in original) (citations omitted). The doctrine of mootness has been described as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the
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litigation (standing) must continue throughout its existence (mootness).” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). Although this view is not comprehensive due to exceptions, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190–91 (2000), it illustrates the principle nicely. Even when there is standing at the inception of a case, “[i]f events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed.” Soliman, 296 F.3d at 1242 (quoting Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)). Stated differently, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). “The doctrine of mootness derives directly from the case or controversy limitation because ‘an action that is moot cannot be characterized as an active case or controversy.’” Id. (quoting Adler v. Duval Cty. Sch. Bd., 112 F.3d 1475, 1477 (11th Cir. 1997)). Thus, if an action is moot, “dismissal is required because mootness is jurisdictional.” Id. (quoting Al Najjar, 273 F.3d at 1336).
Florida’s primary argument is that this action is moot due to its own decision to repeal and discontinue use of the offending policies. Voluntary cessation is an exception to the mootness doctrine. Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1282 (11th Cir. 2004). “It is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’” Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)). Otherwise, the defendant would be “free to return to his old ways” at the conclusion of the case. Id. (quoting Aladdin’s Castle, 455 U.S. at 289 n.10).
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However, this concern is less warranted where the defendant is a government actor, as here. Beta Upsilon Chi Upsilon Chapter at the Univ. of Florida v. Machen, 586 F.3d 908, 916 (11th Cir. 2009). In such cases, there is a “rebuttable presumption that the objectionable behavior will not recur,” Troiano, 382 F.3d at 1283, and “an assertion of mootness will be rejected ‘only when there is a substantial likelihood that the offending policy will be reinstated if the suit is terminated,” Beta Upsilon, 586 F.3d at 917 (quoting Troiano, 382 F.3d at 1284). Indeed, where the defendant is a government actor, “the Supreme Court has held almost uniformly that voluntary cessation of the challenged conduct moots the claim.” Id.
In the Eleventh Circuit, “[t]hree factors are relevant in conducting this mootness inquiry”:
First, we consider whether the termination of the offending conduct was “unambiguous.” Second, we look to whether the change in government policy or conduct appears to be the result of substantial deliberation, or is simply an attempt to manipulate jurisdiction. Third, we ask whether the government has “consistently applied” a new policy or adhered to a new course of conduct. Nat'l Ass'n of Boards of Pharmacy v. Bd. of Regents of the Univ. Sys. of Georgia, 633 F.3d 1297, 1310 (11th Cir. 2011). With these principles in mind, the undersigned will now separately address each factor. A. The Policies Have Been Unambiguously Terminated As explained above, the Complaint challenged three Handbook policies that allegedly lead to the denial or reduction of PDN services: (1) the convenience standard; (2) the requirement for parents or caregivers to perform skilled nursing services; and (3) the PPEC Center preference. The first policy is a descendant of the convenience standard within the generic definition for “medically necessary” found in Rule 59G-1.010(166). The three policies have since been formally repealed, and PDN services have been expressly
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exempted from application of the convenience standard within the generic definition for “medically necessary.” ECF No. 589 at 4–5. It is difficult to discern a more clear way that the State could have terminated the offensive policies at issue.
As explained in Florida’s prior motions to dismiss, the relevant changes began in January 2013, when the AHCA first “published provider alerts implementing immediate (as of the date of publication) policy changes and clarifications.” ECF No. 117 at 3. For example, with respect to the first two policies identified in the Complaint, on January 31, 2013, Florida informed eQHealth that it would no longer apply the convenience standard to determine the medical necessity of PDN services. ECF No. 233-1 ¶ 8. Additionally, on the next day, Florida issued a notice stating that it would not require parents to participate to the fullest extent possible when performing skilled interventions that normally could only be provided by a licensed nurse. ECF No. 237 at 6.
At the same time, the AHCA “initiated rule development pursuant to Florida’s Administrative Procedures Act (Chapter 120, Florida Statutes) to codify those policy changes and clarifications through promulgated rules.” ECF No. 117 at 3. Specifically, Florida deleted from the Handbook the statement that “Medicaid does not reimburse private duty nursing services provided primarily for the convenience of the child, the parents, or the caregiver”; the statement that caregivers are required “to participate in providing care to the fullest extent possible”; and other subordinate policies that arguably applied the convenience standard or that put pressure on caregivers to provide services that should be provided by skilled nurses.12 ECF No. 237 at 5–7.
Similarly, with respect to the PPEC preference, Florida repealed the policy that stated “[a] recipient who is medically able to attend a [PPEC] center and whose needs can
12 Parents or caregivers may still provide PDN services, if “willing and capable.” ECF No. 345-1 at 81.
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be met by the PPEC shall be provided with PPEC services instead of private duty nursing services.” ECF No. 589 at 5. Florida also revised the Handbook “to provide that a parent or legal guardian has a right to choose between private duty nursing services or PPEC services, or a combination of both,” and informed parents of this change through personal letters. ECF No. 117 at 10; ECF No. 237 at 9–11. Each of these formal changes became “final” on June 25, 2013, when Rule 59G-4.130 was amended to incorporate the revised Handbook, dated March 2013. ECF No. 589 ¶ 13.
Furthermore, today, the State’s policies and practices are even further removed from those challenged in the Complaint. In addition to the enactment of new Rule 59G-4.261(4), after the filing of the last mootness motion, the State officially retired the Handbook. ECF No. 589 ¶ 4. Now, the provision of medically necessary services, including PDN services, is governed by a separate administrative rule that incorporates by reference a specific-service Coverage Policy. Id. For example, the new PDN Coverage Policy is incorporated by reference into Rule 59G-4.261 of the Florida Administrative Code, which became effective November 17, 2016. Id.
In response to the instant motion, Plaintiffs do not take issue with the substance of Florida’s policy changes.13 ECF No. 619 at 24–25; see also ECF No. 220. Rather, Plaintiffs attempt to minimize the importance of the repealed policies in this case by interpreting the Complaint broadly. For example, Plaintiffs argue that this case is not moot because “this case includes the failure to provide all medically necessary services, and not just private duty nursing services.” See ECF No. 608 at 4–5 (emphasis added). Similarly, they argue that the convenience standard has not been unambiguously terminated because
13 Plaintiffs were aware of the proposed changes and had the opportunity to object, but did not. ECF No. 619 at 38.
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it still exists within the general definition of “medically necessary,” which applies to a panoply of other services. See id. at 6–9.
Additionally, Plaintiffs question the State’s recent decision to govern the provision of skilled services through separate, service-specific coverage policies, rather than the Handbook. See id. at 10–13. Plaintiffs argue that the State now places additional limits on the types of medically necessary services—including PDN services, PPEC services, and Personal Care Services—that medically complex children may receive, “which are without legal validity.” Id. at 2. According to Plaintiffs, “The standards utilized by AHCA further create[] ambiguity by isolating conditions that would be deemed to fall into the [definition of] medical necessity . . . .” Id. at 10. “Now,” Plaintiffs assert, “instead of stating that services prescribed by doctors are not for the convenience of the caretaker, care is denied when the defendants disagree with a medical professional and deem the medical care, treatment, or monitoring [is] not sufficiently skilled to require a nurse.” Id. at 10–11. Thus, Plaintiffs argue that the convenience of the caretaker standard is still alive, “but with another category selected for ineligibility,” and that “parents are [still] required to perform[] skilled nursing tasks to their children.” Id. at 11.
In the same vein, Plaintiffs challenge the State’s use of Job Aids, which Plaintiffs describe as a “screening tool” for physician reviewers to determine the medical necessity of services. Id. at 11, 13. Plaintiffs state that in June 2016, the AHCA revised these “guidelines” for physician reviewers to “further limit[] the types of conditions covered” for PDN services. Id. at 11. Plaintiffs argue that the use of Job Aids is invalid (under state law) because they are “not adopted through formal rulemaking procedures.” Id. at 13. Additionally, Plaintiffs argue:
The existence of, and ease of creating, such tools raises the ambiguity of the termination of the conduct of ceasing services due to requiring parents to do medical services for their
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children – as the state can always add another “Job Aid” . . . without any notice, which would automatically change the interpretation of “medically necessary” and restrict services to these children. Id. The undersigned rejects Plaintiffs’ attempts (on the eve of trial) to again rewrite the Complaint and expand the scope of this case to the provision of other medically necessary services. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004). Plaintiffs lack standing to challenge the State’s provision of medically necessary services in general, and Rule 8(a) forbids such a challenge. Near the inception of this case, the undersigned found that Plaintiffs’ claims were sufficiently pleaded and justiciable because they were factually grounded in concrete denials of medically necessary services that were allegedly based upon the offensive policies, placing Plaintiffs at real and imminent risk of future denials and undue institutionalization. ECF No. 287 at 19–20. However, with respect to C.V., M.D., and C.M., Plaintiffs’ claims depend exclusively on the denial of PDN services as a result of the State’s offensive policies. See Compl. 26–30. To date, Plaintiffs have not sufficiently alleged or presented any evidence to show an “injury in fact” based upon the denial of any other medically necessary service. Similarly, the undersigned rejects Plaintiffs’ attempts to challenge the convenience standard within the regulatory definition of “medically necessary” in the abstract. In truth, the Complaint challenged that definition only insofar as it was the basis for the Handbook policy that led to the denial of requested PDN services. See ECF No. 241 at 9 (“This definition is the linchpin to the policies and practices Named Plaintiffs challenge . . . .”). There are no allegations or evidence that the convenience standard is used to unlawfully deny any other medically necessary services. Thus, although the convenience standard in the definition of medically necessary still exists and applies to other services provided by
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the State, Plaintiffs’ concerns in this case have been fully addressed by the repeal of that policy and the adoption of new Rule 59G-4.261(4). That rule makes absolutely clear that the convenience standard in the definition of “medically necessary” no longer applies to the provision of PDN services, the only medically necessary service that is relevant to Plaintiffs’ claims. As a result, this Court can no longer say that the definition “still applies to Plaintiffs and allegedly deprives them of services and benefits that they seek through this litigation.” ECF No. 175 at 19.
Additionally, the undersigned rejects Plaintiffs’ suggestion that the offensive policies were merely transplanted into new Coverage Policies. The offensive policies were expressly terminated far prior to the enactment of the “new” criteria,14 and Plaintiffs do not sufficiently establish how the current criteria governing the provision of PDN services are somehow unlawful under the ADA or the Medicaid Act. See Moore, 637 F.3d at 1255 (“A state may also limit required Medicaid services based upon its judgment of degree of medical necessity so long as such limitations do not discriminate on the basis of the kind of medical condition.”). Although Plaintiffs argue that parents or caretakers are still required to perform “skilled” nursing services for their children, by their own argument, only non-skilled services are exempted under the coverage limitations. Moreover, the Coverage Policy for PDN services expressly exempts use of the convenience standard. ECF No. 589-1 at 12. Thus, the undersigned finds that the new Coverage Policy for PDN services does not apply the letter or spirit of the offensive ones.
Finally, the undersigned rejects Plaintiffs’ last-ditch effort to divert their attack towards the State’s use of Job Aids. Not only was that practice not challenged in the Complaint either, the use of Job Aids also does not create ambiguity concerning the
14 Florida states that the “PDN Coverage Policy creates no new criteria, above and beyond medical necessity, that were not contained in the [Handbook].” ECF No. 611 at 7.
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termination of the offending policies because they do not require the use of any policies. The Job Aid for PDN services, for example, is only used when a first-level reviewer cannot approve the requested services based on existing policies. It merely requires the first-level reviewer to compose a “Clinical Summary” for the physician reviewer and provides a template for required information, such as whether the patient is ventilator dependent or has seizures, inter alia. ECF No. 609-1 at 2–3. The goal of the Job Aid is to ensure that a Clinical Summary emailed to the Associate Medical Director for a physician’s review “is complete, consistent and provides all the necessary information so that additional requests for information are minimized.” Id. at 2. As such, it does not limit the types of conditions covered based on any policies, let alone any offensive ones, nor could it if it were revised in the future, as speculative as that concern may be.15 Accordingly, the undersigned is now satisfied that the offensive policies have been unambiguously terminated.
B. The State’s Changes Were Made in Good Faith and the Result of Substantial Deliberation
To make changes to the Handbook, the State must comply with a formal and extensive rulemaking process outlined in Chapter 120 of the Florida Statutes. See ECF No. 589 at 4 n.2. Similarly, to add Rule 59G-4.261(4), the State was required to comply with a public administrative process outlined in the Administrative Procedures Act, which took place over thirteen months. Id. at 4. The aforementioned changes took considerable time, deliberation, and effort, and they cannot be undone without complying with the extensive, public processes again.
Nonetheless, Plaintiffs speculate that the changes were made to manipulate this Court’s jurisdiction. Plaintiffs impugn bad faith because the changes “occurred well after
15 Florida notes that the June 2016 changes were not substantive in nature, as Plaintiffs suggest. ECF No. 611 at 8.
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Plaintiffs’ lawsuit had already begun,” and because Florida did not provide a “contemporaneous policy explanation for why it was making those changes.” ECF No. 608 at 16–17. Plaintiffs also state that Florida has never acknowledged the unlawfulness of its former policies. Id. at 17.
The undersigned rejects Plaintiffs’ suggestion that the changes were made to manipulate this Court’s jurisdiction or were otherwise brought in bad faith. The focus of this factor is less on the timing or subjective motive behind the initiation of changes, and more on the Defendants’ intention to keep the changes at the conclusion of the lawsuit. See Jacksonville Prop. Rights Ass'n, Inc. v. City of Jacksonville, FL, 635 F.3d 1266, 1275 (11th Cir. 2011) (finding that “the City has not passed this legislation to manipulate our jurisdiction” where it saw nothing in the record to suggest that the City would re-enact the offensive policies and where amendment was “a time-consuming endeavor”); Beta Upsilon, 586 F.3d at 915 (“We are not concerned with UF’s motivation for changing its registration policy, but only with whether a justiciable controversy exists.”); Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1331 (11th Cir. 2004) (“Whether the repeal of a law will lead to a finding that the challenge to the law is moot depends most significantly on whether the court is sufficiently convinced that the repealed law will not be brought back.”); Jews for Jesus, Inc. v. Hillsborough Cty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998) (“Because there is no reason to think that the airport will change its policy at the conclusion of this lawsuit, we affirm the district court’s dismissal of the suit as moot.”). Indeed, in cases where government policies have been challenged, “an assertion of mootness will be rejected ‘only when there is a substantial likelihood that the offending policy will be reinstated if the suit is terminated.’” Beta Upsilon, 586 F.3d at 917 (quoting Troiano, 382 F.3d at 1284). Because mootness is a jurisdictional issue, this is true even if the change
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occurs during an appeal. See id. at 916 (“This is so even if, as here, the court has heard oral argument and has taken the case under advisement.”).
Here, although the changes were initiated after Florida received notice of this lawsuit, and the subjective motivation for change is not entirely clear, there is simply no evidence to suggest that Florida is reasonably likely to reenact or apply the offensive policies at the conclusion of this lawsuit. See id. at 917. Moreover, unlike in Rich v. Sec'y, Florida Dep't of Corr., 716 F.3d 525, 532 (11th Cir. 2013), Florida has repeatedly promised not to return to its old ways, and it does not now argue that the offensive polices are still legal. ECF No. 588 at 15. As a result, because the Defendants are government actors, the undersigned can only assume that the changes were motivated by a genuine change of heart, made for the benefit of the people they serve. See Martin v. Houston, No. 2:14-CV905-WKW, 2016 WL 7426563, at *8 (M.D. Ala. Dec. 23, 2016). After all, the administration of health care services is an evolving, fluid process. Therefore, even if this lawsuit was the catalyst for change, as Plaintiffs suggest, this alone is not enough to overcome the rebuttable presumption that the “objectionable behavior will not recur.” Beta Upsilon, 586 F.3d at 917 (quoting Troiano, 382 F.3d at 1283). Accordingly, the undersigned finds that the State’s changes were the result of substantial deliberation and not an attempt to manipulate jurisdiction.16
C. The Changes Have Been Consistently Applied Plaintiffs’ primary argument is that the State of Florida “continues its conduct in denying medically necessary services to medically complex children, which leads to a risk
16 This finding also precludes any belief that Plaintiffs’ claims are capable of repetition, yet evading review, although Plaintiffs did not raise that argument. Jews for Jesus, 162 F.3d at 629 n.4.
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of being institutionalized in a skilled nursing facility.”17 ECF No. 608 at 1; ECF No. 619 at 21–25. Although Plaintiffs admit that, “[s]ince 2013, the State has not required children to attend PPEC centers rather than receive PDN services, nor have Plaintiffs been denied any PDN services on the ground that PPEC services were available,” ECF No. 589 ¶ 18, they argue that the State still applies the convenience standard and requires parents or caregivers to provide skilled nursing services to their children.
At the same time, Plaintiffs suggest that Florida’s policy changes came “too late in the game” for this Court to determine if they have been consistently applied. ECF No. 608 at 18; see Rich, 716 F.3d at 532. In this regard, the undersigned acknowledges that PDN services were only recently exempted from application of the convenience standard within the regulatory definition of “medically necessary.” Yet, it is important to recognize that, through provider alerts, Florida purported to discontinue applying all offensive policies, including the convenience standard, in early 2013. This has provided the undersigned with ample time to review the State’s conduct for consistency. See ECF No. 608 at 18 (citing Jews for Jesus, 162 F.3d at 629). Having done so, the undersigned is persuaded that the offensive policies are no longer applied to deny any PDN services.18 ECF No. 589-2; ECF No. 589-3.
Plaintiffs do not present any evidence that shows otherwise. Cf. Nat'l Advert. Co. v. City of Miami, 402 F.3d 1329, 1334 (11th Cir. 2005) (“[O]nce the repeal of an ordinance has
17 As there is some overlap, the undersigned has also considered Plaintiffs’ arguments in this section when determining whether the offensive policies have been unambiguously terminated. 18 Plaintiffs state that the State’s declarants are basing their testimony on their review of business records that are not in evidence and are, therefore, inadmissible. ECF No. 609 at 2. However, the undersigned finds that this is not a valid reason to disregard the State’s evidence. See Stanley v. Kansas Counselors of Kansas City, 639 F. App'x 589, 590–91 (11th Cir. 2016) (unpublished); Duke v. Nationstar Mortg., L.L.C., 893 F. Supp. 2d 1238, 1244 (N.D. Ala. 2012) (“Contrary to the Dukes’ contention, personal knowledge can be based on a review of relevant business files and records.”).
22

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caused our jurisdiction to be questioned, [plaintiff] bears the burden of presenting affirmative evidence that its challenge is no longer moot. Mere speculation that the City may return to its previous ways is no substitute for concrete evidence of secret intentions.”); see also Fed. R. Civ. P. 56(c) (setting forth procedure for asserting that a fact is genuinely disputed). Rather, Plaintiffs attempt to poke holes in the State’s implementation of change itself and, in doing so, assume that the offensive policies are still applied or will be applied in the future. For example, Plaintiffs believe that parents and caregivers are still “required to and encouraged to provide [PDN] services to their medically complex child[ren]” because the State’s contract with Ped-I-Care does not include a limitation for the convenience standard, and because Ped-I-Care’s provider manual requests documentation as to whether the parent or caregiver is “willing and able” to provide services for the child. ECF No. 608 at 9– 10, 18. Plaintiffs also argue that Defendants do not train their care coordinators or reviewers as to the limitations on the convenience standard, citing a Power Point presentation on the provision of PDN services that does not expressly acknowledge the discontinued use of the convenience standard. Id. at 9–10.
The undersigned declines to adopt Plaintiffs’ pessimistic and unreasonable assumptions, however. For starters, Ped-I-Care’s contract requires it to comply with current state law and authorizes sanctions for violating that law. ECF No. 609-4 at 125, 300–01, 304. Thus, the fact that it does not expressly include a limitation for the convenience standard does not mean that the convenience standard still applies. Likewise, the Ped-ICare provider manual’s reference to care that the parent or caregiver is willing and able to provide does not “require” parents or caretakers to provide PDN services; it merely provides an option for those who prefer to provide PDN services themselves. See ECF No. 345-1 at 315. If so, they can receive reimbursement pursuant to the PDN Coverage Policy. ECF No. 589-1 at 13. Lastly, there is no valid reason to think that eQHealth’s first-level
23

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reviewers are unaware of the current standards. As Florida explains, the State elsewhere informs its first-level reviewers that the convenience standard does not apply to PDN services. ECF No. 612-1. Thus, in sum, there is simply nothing to suggest that either PedI-Care or eQHealth actually apply the offensive policies during prior authorization reviews.
In fact, perhaps most importantly, C.V., M.D., and C.M. admit “the Defendants have continued to authorize the appropriate amount of care for the plaintiffs” throughout the course of this litigation. ECF No. 608 at 10; see also ECF No. 620 at 9–10, 12. Since 2012, “no Plaintiff has engaged in the fair hearing process to challenge a denial or reduction of PDN services.” ECF No. 589 ¶ 35. As a result, C.V., M.D., and C.M. cannot point to a single denial of PDN services in at least four years (covering at least eight certification reviews), let alone a denial based upon an offensive policy.
Plaintiffs’ only grievance now is that their nurses regularly miss shifts, resulting in “effective” denials. ECF No. 608 at 10. But, surely this is not enough to save Plaintiffs’ claims for trial. This new allegation is not triable in this case for the same reason as Plaintiffs’ attempts to attack the State’s Medicaid system in general: it is not sufficiently pleaded in the Complaint. For over four years now, this case has been about three policies that effectively led to the denial of medically necessary PDN services to Plaintiffs—not nurses who fail to show up for work for reasons unrelated to the policies.19 To the extent Plaintiffs desire to challenge other aspects of the State’s administration of Medicaid services to disabled children, Plaintiffs may file a different case. The relevant inquiry here is whether the State continues to apply the offensive policies, and the undersigned finds that it does not.
19 The reason appears to be related to the State’s budget. See ECF No. 609 at 4–5. 24

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D. Conclusion In sum, the undersigned concludes that Plaintiffs’ claims are moot. By any fair reading of the Complaint, the success of the remaining Plaintiffs’ claims each depends exclusively on the existence and application of the identified policies leading to the reduction or denial of PDN services. It was the existence and application of those policies that gave them standing to allege an imminent risk of being denied medically necessary PDN services and, thus, a risk of undue institutionalization. ECF No. 287 at 19–20; see also ECF No. 329 at 8–11. In addition, it was the existence and application of those policies that could establish their entitlement to declaratory or injunctive relief. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000) (“In order to receive declaratory or injunctive relief, plaintiffs must establish that there was a violation, that there is a serious risk of continuing irreparable injury if the relief is not granted, and the absence of an adequate remedy at law.” (emphasis added) (citing Newman v. Alabama, 683 F.2d 1312 (11th Cir. 1982))). But, to the extent the Complaint challenges those policies on their face, the written policies simply no longer exist, and there is nothing to suggest that they would be reinstated if the suit is terminated. See Coral Springs Street Sys., 371 F.3d at 1331 n.9 (“The federal courts of appeal have virtually uniformly held that the repeal of a challenged ordinance will moot a plaintiff's request for injunctive relief in the absence of some evidence that the ordinance has been or is reasonably likely to be reenacted.”). Similarly, to the extent the Complaint challenges those policies as applied to the remaining Plaintiffs, the policies were discontinued from use in early 2013, and there is no real indication that Florida would ever apply them again in the future. As a result, Plaintiffs can no longer show that they are at imminent risk of being denied medically necessary PDN services or are otherwise at risk of undue institutionalization in violation of the ADA, the Rehabilitation Act, or the Medicaid Act. See
25

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Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (“In ADA cases, courts have held that a plaintiff lacks standing to seek injunctive relief unless he alleges facts giving rise to an inference that he will suffer future discrimination by the defendant.”).20 And, without the policies, they cannot establish entitlement to declaratory or injunctive relief based upon facts and theories alleged in the Complaint.21 See Green v. Mansour, 474 U.S. 64, 73 (1985) (“We think that these cases demonstrate the impropriety of the issuance of a declaratory judgment in this case. There is no claimed continuing violation of federal law, and therefore no occasion to issue an injunction. Nor can there be any threat of state officials violating the repealed law in the future.”); Carver Middle Sch. Gay-Straight All. v. Sch. Bd. of Lake Cty., Florida, 842 F.3d 1324, 1330 (11th Cir. 2016) (“[A] court cannot grant declaratory relief when there is no ‘immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest.’” (quoting Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 125–26 (1974))); Shotz, 256 F.3d at 1082 (“Injury in the past, however, does not support a finding of an Article III case or controversy when the only relief sought is a declaratory judgment.” (quoting Malowney v. Federal Collection Deposit Group, 193 F.3d 1342, 1348 (11th Cir. 1999))).
Of course, the present inability to establish harm is not necessarily a bad thing for Plaintiffs. To the extent Plaintiffs filed this lawsuit seeking to improve Florida’s administration of Medicaid services to disabled children, Plaintiffs have succeeded. At a systemic level, Florida has “cease[d] the practice of denying or reducing Plaintiff[s’] services
20 At the summary judgment stage, standing requires “a factual showing of perceptible harm.” Lujan, 504 U.S. at 567. 21 Although the two inquiries are different, “the analysis of whether a case is moot overlaps with the analysis of whether a permanent injunction is appropriate on the merits because both are concerned with the likelihood of future unlawful conduct.” Sheely, 505 F.3d at 1182 n.10. Here, without the offensive policies, Plaintiffs cannot establish by a preponderance of the evidence that this form of equitable relief is necessary. The likelihood of future violations is simply too remote.
26

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at recertification where there has been no change in the medical necessity of such services.” Compl. 46. As for C.V., M.D., and C.M., they have received all the PDN services they have requested in the last four years. Thus, it can now be said that Florida “provide[s] private duty nursing services that will allow [them] to live in their homes and communities.” Compl. 46; see also ECF No. 623 at 2.
This progress was not possible without change. Nonetheless, because of the changes, this Court can no longer provide Plaintiffs with any additional, meaningful relief. Therefore, Plaintiffs’ claims must be dismissed as moot.
IV. Recommendation Accordingly, the undersigned recommends that Florida’s Motion for Summary
Judgment, ECF No. 588, be construed as a 12(b)(1) motion to dismiss for lack of subjectmatter jurisdiction and that the motion to dismiss be GRANTED.
Within fourteen days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3–1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).
DONE AND SUBMITTED at Fort Lauderdale, Florida this 22nd day of March, 2017.
___________________________________ PATRICK M. HUNT UNITED STATES MAGISTRATE JUDGE
27

 
 Case 0:12-cv-60460-WJZ Document 645 Entered on FLSD Docket 06/09/2017 Page 1 of 2

UNITED STATBS DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO . 12-60460-CIV -ZLOCH

C .V . by and through his next friends Michael and Johnette Wahlquist, et al .,

Plaintiffs ,
VS .
JUSTIN SEN IOR , in his official capacity as Secretary of the Agency for Health Care Administration, et al .,

FINAL ORDER 0F D ISMISSAL

Defendants .
/
UNITED STATES OF AMERICA ,

Plaintiff,

VS .

STATE OF FLORIDA ?
Defendant .
/
THIS MATTER is before the Court upon the Report & Recommendation (DE 634) filed herein by United States Magistrate Judge Patrick M . Hunt and the State Of Florida's Motion For Summary (DE 588). Private Plaintiffs C.V ., M.D ., and C .M ., the remaining
plaintiffs in this action, object to said Report. See DE 637. The State Defendantsl do not. The Court has conducted a él novo review
of the entire record herein and is otherw ise fully advised in the premises .
The Court adopts the reasoning and conclusions set forth in

' Defendants Justin Senior , in his official capacity as Secretary of the
Agency for Health Care Administration, Celeste Philip , M .D ., in her official capacity as the Surgeon General of the State of Florida and Secretary of the Florida Department of Health, and Cassandra Pasley, in her official capacity as Director of the Florida Department of Health's Children's Medical Service, are referred to herein collectively as the ''State Defendants.''

Case 0:12-cv-60460-WJZ Document 645 Entered on FLSD Docket 06/09/2017 Page 2 of 2
Magistrate Judge Hunt's Report & Recommendation (DE 634). The
Court will therefore dismiss as moot the claim s remaining before the Court asserted by Private Plaintiffs C .V ., M .D ., and C .M .
Accordingly , after due consideration , it is ORDERED *Hn AD.A M GED as follows :
Plaintiffs' Objection To Report And Recommendation On
Defendant's Motion For Summary Judgment (DE 637) be and the same is
hereby OVERRULED ; 2. The Report & Recommendation (DE 634) filed herein by United
States Magistrate Judge Patrick M . Hunt be and the same is hereby approved , adopted , and ratified by the Court ;
3. The State Of Florida's Motion For Summary (DE 588) be and
the same is hereby GRANTED ; 4 . The above-sty led cause be and the same is hereby DISM ISSED
without prejudice as to Plaintiffs C.V.,M.D., and C.M. in that the Court lacks subject matter jurisdiction over their claims; and
All pending Motions be and the same are hereby DENIED as
moot .
DONE AHn ORDERED in Chambers at Fort Lauderdale, Broward
County,Florida,this 6A - dayofJune,2017.

$

q

' '

WILLIAM J . ZLOCH Sr . United States District Judge
Copies furnished :
A ll Counsel of Record
The Honorable Patrick M . Hunt United States Magistrate Judge

 
 Case 0:12-cv-60460-WJZ Document 665 Entered on FLSD Docket 05/16/2019 Page 1 of 22 Case: 17-13572 Date Filed: 05/16/2019 Page: 1 of 1

David J. Smith Clerk of Court

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

AP
May 16, 2019
MIAMI For rules and forms visit www.ca11.uscourts.gov

May 16, 2019

Clerk - Southern District of Florida U.S. District Court 400 N MIAMI AVE MIAMI, FL 33128-1810

Appeal Number: 17-13572-GG Case Style: A.R., et al v. Sec. Health Care Admin., et al District Court Docket No: 0:12-cv-60460-WJZ

A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being forwarded to counsel and pro se parties. A copy of the court's decision was previously forwarded to counsel and pro se parties on the date it was issued.

The enclosed copy of the judgment is hereby issued as mandate of the court. The court's opinion was previously provided on the date of issuance.

Sincerely,

DAVID J. SMITH, Clerk of Court

Reply to: Lois Tunstall Phone #: (404) 335-6191

Enclosure(s)

MDT-1 Letter Issuing Mandate

Case 0:12-cv-60460-WJZ Document 665 Entered on FLSD Docket 05/16/2019 Page 2 of 22 Case: 17-13572 Date Filed: 05/16/2019 Page: 1 of 2
UNITED STATES COURT OF APPEALS For the Eleventh Circuit ______________
No. 17-13572 ______________
District Court Docket No. 0:12-cv-60460-WJZ
A.R., by and through her next friend, Susan Root, C.V., by and through his next friends, Michael and Johnette Wahlquist, M.D., by and through her next friend, Pamela DeCambra, C.M., by and through his next friend, Norine Mitchell, T.H., by and through her next friend, Paolo Annino, A.G., by and through his next friend Gamal Gasser,
Plaintiffs - Appellants,
B.M., by and through his next friend, Kayla Moore, et al.,
Plaintiffs,
versus
SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, in her official capacity, STATE SURGEON GENERAL, in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health, KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children's Medical Services, STATE SURGEON GENERAL JOHN ARMSTRONG, MD, DEPUTY SECRETARY DR. CELESTE PHILIP, INTERIM SECRETARY JUSTIN M. SENIOR, Agency for Health Care Administration, CASSANDRA G. PASLEY, Director of Children's Medical Services,
ISSUED AS MANDATE 05/16/2019

Case 0:12-cv-60460-WJZ Document 665 Entered on FLSD Docket 05/16/2019 Page 3 of 22 Case: 17-13572 Date Filed: 05/16/2019 Page: 2 of 2
Defendants - Appellees, eQHEALTH SOLUTIONS, INC., a Louisiana non-profit corporation, et al.,
Defendants. ___________________________________________________________ UNITED STATES OF AMERICA,
Consol Plaintiff, versus THE STATE OF FLORIDA,
Consol Defendant. __________________________________________ Appeal from the United States District Court for the
Southern District of Florida __________________________________________
JUDGMENT It is hereby ordered, adjudged, and decreed that the opinion issued on this date in this appeal is entered as the judgment of this Court.
Entered: April 17, 2019 For the Court: DAVID J. SMITH, Clerk of Court
By: Jeff R. Patch
ISSUED AS MANDATE 05/16/2019

Case 0:12-cv-60460-WJZ Document 665 Entered on FLSD Docket 05/16/2019 Page 4 of 22 Case: 17-13572 Date Filed: 04/17/2019 Page: 1 of 18
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13572 ________________________
D.C. Docket No. 0:12-cv-60460-WJZ
A.R., by and through her next friend, Susan Root, C.V., by and through his next friends, Michael and Johnette Wahlquist, M.D., by and through her next friend, Pamela DeCambra, C.M., by and through his next friend, Norine Mitchell, T.H., by and through her next friend, Paolo Annino, A.G., by and through his next friend Gamal Gasser,
Plaintiffs - Appellants,
B.M., by and through his next friend, Kayla Moore, et al.,
Plaintiffs,
versus

Case 0:12-cv-60460-WJZ Document 665 Entered on FLSD Docket 05/16/2019 Page 5 of 22 Case: 17-13572 Date Filed: 04/17/2019 Page: 2 of 18

SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, in her official capacity, STATE SURGEON GENERAL, in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health, KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children’s Medical Services, STATE SURGEON GENERAL JOHN ARMSTRONG, MD, DEPUTY SECRETARY DR. CELESTE PHILIP, INTERIM SECRETARY JUSTIN M. SENIOR, Agency for Health Care Administration, CASSANDRA G. PASLEY, Director of Children's Medical Services,
Defendants - Appellees,
eQHEALTH SOLUTIONS, INC., a Louisiana non-profit corporation, et al.,
Defendants.
___________________________________________________________
UNITED STATES OF AMERICA,
Consol Plaintiff,

versus

THE STATE OF FLORIDA,
2

Consol Defendant.

Case 0:12-cv-60460-WJZ Document 665 Entered on FLSD Docket 05/16/2019 Page 6 of 22 Case: 17-13572 Date Filed: 04/17/2019 Page: 3 of 18
________________________ Appeal from the United States District Court
for the Southern District of Florida ________________________ (April 17, 2019)
Before JILL PRYOR, BRANCH and BOGGS,* Circuit Judges. PER CURIAM:
Six plaintiffs appeal the district court’s dismissal of a putative class action challenging Florida’s provision of medical services to Medicaid-recipient, medically fragile children. In dismissing the case in its entirety, the district court ruled that the State had unambiguously terminated its use of the challenged policy—application of the “convenience standard” in assessing whether privateduty nursing treatment was medically necessary—rendering the case moot, and that no remaining plaintiff had standing to challenge the State’s administration of its Pre-Admission Screening and Resident Review program.
After careful consideration and with the benefit of oral argument, we agree with the district court and therefore affirm.
* The Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation.
3

Case 0:12-cv-60460-WJZ Document 665 Entered on FLSD Docket 05/16/2019 Page 7 of 22 Case: 17-13572 Date Filed: 04/17/2019 Page: 4 of 18
I. BACKGROUND This case concerns medically fragile children—children with medical conditions so serious as to require medical apparatus or procedures to sustain their lives.1 Each of the plaintiffs-appellants is medically fragile. For example, appellant M.D. has cerebral palsy and Strider Syndrome. Unable to swallow, she risks suffocation unless her body is positioned properly at all times. Another appellant, C.V., has Hurler’s Syndrome and cannot breathe without a tracheotomy tube—which must be cleaned every five minutes. A third appellant, C.M., has chromosome deletion syndrome, chronic respiratory failure, and severe cerebral palsy. His more than 25 medications must be administered every two hours. M.D., C.V., C.M., and other medically fragile children sought private-duty nursing (“PDN”) services for their gravely needed, specialized, and intensive medical care. PDN services are one-on-one nursing services provided to
1 At the time this suit was initiated, Florida law defined “medically fragile” as referring to a person who is:
medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependant, [sic] or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.
Fla. Admin. Code R. 59G-1.010(165) (2012). Florida’s Administrative Code no longer contains this definition. See Fla. Admin. Code R. 59G-1.010 (2019).
4

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individuals who require more in-depth care than a hospital or nursing facility can provide. Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1234 (11th Cir. 2011).
Florida’s Medicaid program covers medically necessary PDN services provided to Medicaid-recipient children. But at the time the medically fragile plaintiffs sought these services, four Florida policies allegedly reduced coverage of PDN services for them. The first was Florida’s definition of “medically necessary,” which excluded from coverage services that were “primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.” Fla. Admin. Code R. 59G-1.010(166) (2012); Florida Agency for Health Care Administration’s (“AHCA”) Home Health Services Coverage and Limitations Handbook (December 2011) (“Handbook”) at 2-2.2 That provision was known as the “convenience standard.” Doc. 237 at 6.3 The State construed the convenience standard to mean that if a child’s parents were available to provide nursing services to the child, then PDN services were merely for the convenience of the caretaker and would not be covered by Medicaid. Second, Florida Medicaid covered PDN services only for children who were “unable to attend a Pediatric Prescribed Extended Care” (“PPEC”) Center: an institution in which children received out-of-
2 The Handbook is incorporated by reference into the AHCA’s rules, see Fla. Admin Code R. 59G-4.130 (2011), and therefore has the force of law.
3 All citations in the form “Doc. #” refer to numbered entries on the district court docket.
5

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home care for up to twelve hours a day, seven days a week. Handbook at 2-19. Third, if authorized, Florida PDN services to medically fragile children were “decreased over time as parents and caregivers [were] taught skills to care for their child and [became] capable of safely providing that care or as the child’s condition improves.” Handbook at 2-23. Fourth, Florida inconsistently administered PreAdmission Screening and Resident Review (“PASRR”) screenings—used to diagnose mental illness or intellectual disability in incoming nursing facility patients, determine whether patients require specialized services, and prescribe those necessary services, 42 U.S.C. § 1396r(b)(3)(F)—resulting in denial of medically necessary services, including PDN care.
Applying these policies, the State routinely denied PDN services to medically fragile children. Without the in-home nursing care the children needed, their families had no choice but to place them in nursing facilities, a result their families desperately sought to avoid.
Two groups of medically fragile children, through their legal guardians, sued Florida officials seeking systemic changes to the State’s administration of Medicaid services to such children. The first group, children who were institutionalized—that is, residing in Florida nursing homes—alleged that the State had inappropriately screened them for, and denied them Medicaid coverage for, services that would have allowed them to remain in their homes. The second
6

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group, children who remained at home and received Medicaid-funded PDN services, alleged that the State’s policies, including application of the convenience standard, reduced the availability of those services and put them at risk of unnecessary institutionalization. The plaintiffs sought certification of a class of “[a]ll current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities.” Doc. 95 at 1.
After the district court consolidated their cases, the plaintiffs filed an amended complaint (“complaint”) with five counts. Counts 1 through 4 challenged Florida’s “policies, practices, and regulations to reduce [PDN] services.” Doc. 62 ¶ 19. Counts 1 and 2 specifically alleged violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12165, and the Rehabilitation Act, 29 U.S.C. § 794, respectively. Under these counts, the plaintiffs alleged that Florida’s policies—including the convenience standard, the PPEC preference, the caregiver preference, and improper PASRR screenings—violated each Act by placing them at risk of segregation in institutional settings and by denying them medically necessary services, including PDN services.
7

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Counts 3 and 4 alleged claims under 42 U.S.C. § 1983 for violations of the United States Medicaid Act (“Medicaid Act”), 42 U.S.C. §§ 1396-1396w-5.4 Specifically, the plaintiffs alleged in Count 3 that the AHCA’s regulatory definition of “medical necessity” and the defendants’ policies for “providing [PDN services], below the level that is medically necessary, violate[d] the [Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”)] provisions of the federal Medicaid statute.” Doc. 61 at ¶¶ 321-322. And Count 4 alleged that Florida’s policies limited the provision of PDN services, resulting in delays and denials of medically necessary care to the plaintiffs in violation of the Medicaid Act’s “reasonable promptness” provision, 42 U.S.C. § 1396a(a)(8), which requires assistance to be provided with reasonable promptness to eligible individuals.
Finally, Count 5 challenged the State’s administration of the PASRR provisions of the Nursing Home Reform Amendments of 1987 (“NHRA”) to the Medicaid Act, 42 U.S.C. § 1396r. This claim—brought only by the “institutionalized Plaintiffs,” see Doc. 62 at ¶¶ 329, 335—alleged that Florida’s administration of its PASRR program failed to comply with the NHRA, resulting in wrongful admission of children to, or retention of children in, nursing facilities.
4 The alleged constitutional basis for the § 1983 claim was that the AHCA’s definition of “medical necessity” in Rule 59G-1.010(166) was preempted by federal law and invalid pursuant to the Supremacy Clause of the United States Constitution. U.S. Const. art. VI, § 2.
8

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The plaintiffs sought certification of a class under Federal Rule of Civil Procedure 23(b)(2) and for declaratory and injunctive relief on all five claims.
After a year of litigation, including discovery, the State moved to dismiss the complaint because, beginning in 2013, it had discontinued its application of the convenience standard to PDN services. The district court denied the motion to dismiss for two reasons. First, even though Florida had formally changed its policy prioritizing PPEC over PDN services and implemented new policies regarding PASRR screenings, those rule changes were not yet final. Second, Florida had not amended its definition of “medical necessity” in Rule 59g1.010(166)—that is, the definition that applies generally to all Medicaid services— which contained the convenience standard and which the State allegedly applied when considering whether to cover PDN services.
Another year passed, and the administrative rule changes concerning the PPEC prioritization and PASRR screenings became final. Again, the State moved to dismiss. Because the State still had not amended its regulatory definition of “medically necessary” in Rule 59G-1.010(166), however, the district court denied its motion for a second time.
The district court subsequently dismissed the claims of one of the plaintiffs, A.R., when she moved to Colorado, and of two other plaintiffs, T.H. and A.G., when they turned 21, on the ground that as legal adults they were no longer subject
9

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to the challenged policies. The district court next dismissed Count 5, concluding that the challenge to the PASRR screenings concerned only institutionalized children and that, due to death or dismissal, no institutionalized children remained as parties to the case. The district court also denied the plaintiffs’ motion for class certification because the proposed class was inadequately defined and unascertainable and because class certification was unnecessary. Thus, the case was reduced from five to four claims and from a potential class action to only three plaintiffs, none of whom was institutionalized.
Florida then moved for summary judgment, again arguing that the remaining claims—Counts 1 through 4—were moot given Florida’s new, final Rule 59G4.261(4). The new rule provided that the convenience standard contained in the general definition of “medical necessity” in Rule 59G-1.010(166) “‘shall not be applicable when determining the medical necessity of [PDN] services.’” Doc. 588 at 12 (quoting Fla. Admin. Code R. 59G-4.261(4)). The State also pointed out that it had been more than three years since it had last applied the convenience standard in deciding whether to cover PDN services.
Treating Florida’s motion for summary judgment as a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss, a magistrate judge determined that the case was moot because the State had terminated all the challenged policies and “nothing . . . suggest[ed] that [the policies] would be reinstated if the suit [were]
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terminated.” Doc. 634 at 25. The magistrate judge rejected what he characterized as “Plaintiffs’ attempts (on the eve of trial) to again rewrite the [c]omplaint and expand the scope of this case to the provision of other medically necessary services” beyond PDN. Id. at 17. Adopting the magistrate judge’s recommendation, the district court dismissed all remaining claims. This appeal followed.
II. STANDARD OF REVIEW “We review factual findings underlying a mootness decision for clear error. We review de novo the legal issue of whether, based on the facts, a case is moot.” Stein v. Buccaneers L.P., 772 F.3d 698, 701 (11th Cir. 2014).
III. ANALYSIS On appeal, the plaintiffs challenge the district court’s dismissal of their claims in four ways. First, they argue that the district court improperly dismissed Counts 1 through 4 as moot, both because the court improperly limited the scope of the lawsuit to PDN services and because Florida might renege on its policy changes. Second, they argue that the district court erred in dismissing Count 5— the challenge to Florida’s PASRR program—because the remaining plaintiffs could maintain that claim despite the fact that they were not presently institutionalized. Third, they object to the dismissal of plaintiffs A.R., A.G., and T.H. from the case on mootness or lack of standing grounds because they had
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either moved away from Florida or turned 21. Fourth, they argue that the district court improperly denied class certification. We take up each argument in turn. A. Counts 1 Through 4 Are Moot Because the State Has Exempted PDN
Services from the Convenience Standard. The district court concluded that Counts 1 through 4 were moot because the
State amended its administrative rule permitting application of the convenience standard to PDN services.
Article III limits the federal courts to deciding “[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. This limitation means that federal courts lack jurisdiction over cases where the issue in controversy has become moot. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001). A case generally “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012) (internal quotation marks omitted).
A case does not necessarily become moot when a defendant voluntarily ceases the activity that forms the basis of the lawsuit. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Rather, “voluntary cessation of offensive conduct will only moot litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.” Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1333 (11th Cir. 2005). In cases where the defendant is the government, we apply a rebuttable presumption that
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government actors are “unlikely to resume illegal activities.” Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir. 2004). We have explained that “[t]his presumption is particularly warranted in cases where the government repealed or amended a challenged statute or policy—often a clear indicator of unambiguous termination.” Doe v. Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014).
Since the plaintiffs filed suit, the State of Florida formally adopted a new administrative rule exempting PDN services from the convenience standard. See Fla. Admin. Code R. 59G-4.261(4). The State also has long since removed all subordinate policies that could be construed as applying pressure to parents to provide skilled nursing services to their children by deleting statements in the AHCA Handbook requiring caregivers “to participate in providing care to the fullest extent possible” and by authorizing PDN services only to “supplement” caregiver-provided care. Doc. 237 at 6-7; see Doc. 118-9 at 44. Those changes in Florida’s regulations and policies rendered the plaintiffs’ challenge moot.
The plaintiffs contend that their case is not moot because Florida continues to apply the convenience standard when deciding whether Medicaid covers PDN services. We examine three factors to determine whether there is a “reasonable expectation that the government entity will reenact the challenged legislation” such that a challenge to government conduct will not be moot: (1) whether the change
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in conduct resulted from substantial deliberation or was only an attempt to manipulate jurisdiction; (2) whether termination of the challenged conduct was unambiguous, permanent, and complete; and (3) whether the government has consistently maintained its commitment to the legislative scheme. Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1256-57 (11th Cir. 2017) (en banc), cert. denied sub nom. Davenport v. City of Sandy Springs, 138 S. Ct. 1326 (2018). Here, the rule change resulted from substantial deliberation; it became final, resulted from a formal, public process, and cannot be repealed or revised without going through that same process. Fla. Stat. § 120.54(3)(d)5 (“After a rule has become effective, it may be repealed or amended only through the rulemaking procedures specified in this chapter.”). The State’s policy change was also unambiguous: the new administrative rule plainly states that the convenience standard “shall not be applicable when determining the medical necessity of [PDN] services.” Fla. Admin. Code R. 59G-4.261(4). Further, Florida has consistently repeated its commitment to the policy change. In fact, the State stopped applying the convenience standard to deny any PDN services in 2013—three years before the rule became final. Because we see nothing to suggest that Florida “will reenact the challenged legislation,” Flanigan’s Enters., 868 F.3d at 1257, the district court did not err in dismissing Counts 1 through 4.
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The plaintiffs further argue that the case is not moot because the district court misconstrued the scope of the complaint. Their complaint, they say, set forth more sweeping challenges than the district court recognized when it dismissed Counts 1 through 4. Specifically, the plaintiffs contend that their complaint challenged “a constellation of deficient policies and practices” beyond PDN services. Appellant’s Br. at 23.
We disagree. The language of the complaint generally and the facts alleged about each plaintiff support the district court’s construction of Counts 1 through 4 as challenging only Florida’s policies relating to Medicaid coverage of PDN.
The complaint expressly challenged Florida’s “policies, practices, and regulations to reduce [PDN] services.” Doc. 62 at ¶ 19. The complaint took issue with four Florida policies that allegedly reduced PDN services: (1) the convenience standard, by which Florida refused to reimburse PDN services provided solely for the child’s, parents’, or caregivers’ convenience; (2) a policy prescribing that “[a] recipient who is medically able to attend a [PPEC] center and whose needs can be met by the PPEC shall be provided with PPEC services instead of [PDN] services,” Handbook at 2-22; (3) a policy that PDN services would be “decreased over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or as the child’s condition improves,” Handbook at 2-23; and (4) Florida’s PASRR screenings, by which
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Florida determined whether PDN services were medically necessary for the plaintiffs. Each of these policies specifically concerned Florida’s coverage of PDN services, not a broader cluster of Medicaid or community-based services, for children. And each of these PDN policies was subject, at the time the suit was filed, to Florida’s requirement that Medicaid coverage was available only for medically necessary services, a determination that Florida made in part by applying the convenience standard. Fla. Admin. Code. R. 59G-1.010.
The facts alleged about each plaintiff likewise support the district court’s conclusion that the plaintiffs challenged only Florida policies related to Medicaid coverage of PDN services. The complaint alleged that each child was prescribed PDN services by his or her physician, requested Medicaid coverage for PDN services, and was unlawfully denied coverage, depriving him or her of those services. It alleged that the State applied the convenience standard to deny PDN services to medically fragile children whose parents were able to provide nursing services to their child. In total, the complaint mentioned PDN services more than 70 times. It failed to allege the denial of any other services.
Because Counts 1 through 4 of the complaint specifically challenged Florida’s policies relating to Medicaid coverage of PDN services and Florida unambiguously changed its policies through formal rule-making to exempt PDN services from the convenience standard, prohibit prioritization of PPEC over PDN
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services, abolish the caregiver preference, and mandate complete PASRR screenings, the district court properly dismissed Counts 1 through 4 as moot.5
B. No Institutionalized Plaintiffs Remain in the Case to Challenge the PASRR Program.
That leaves us with Count 5 of the complaint, which concerns Florida’s
administration of the PASRR provisions of the NHRA in compliance with federal
law. The district court dismissed the PASRR claim because it was brought on
behalf of children who were institutionalized, yet no plaintiff in the case remained
in an institution.
The plaintiffs concede that none of the plaintiffs who resided in nursing institutions when the complaint was filed remains institutionalized.6 But they
argue that they nevertheless can challenge the PASRR program because Florida’s
allegedly flawed administration of the program puts remaining plaintiffs C.V.,
M.D., and C.M. at risk of unnecessary institutionalization. We reject this argument
because Count 5 of the complaint clearly specified that “institutionalized
5 The plaintiffs also contend on appeal that the complaint challenged the definition of medical necessity found in Rule 59G-1.010(166) as applied to all Medicaid services—not merely as applied to PDN services. That is not how we read the complaint. The complaint mentioned the definition of medical necessity only three times. Only once did the complaint challenge the definition of medical necessity, condemning the application of the convenience standard to PDN services specifically. On its face, then, the complaint plainly challenged the application of the definition of medical necessity as applied to PDN services only.
6 A.G., L.J., and T.H. resided in nursing facilities at the time the complaint was filed. L.J. has since died. A.G. and T.H. were released from nursing facilities in 2013.
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Plaintiffs” challenged the State’s administration of the PASRR program and that
only “institutionalized Plaintiffs and members of the sub-class of institutionalized
Plaintiffs” were harmed by it. Doc 62 at ¶¶ 329, 335. Count 5 did not allege any
claims on behalf of non-institutionalized children who might be at risk of being institutionalized.7
IV. CONCLUSION
Because Counts 1 through 4 are moot given Florida’s unequivocal policy
changes and because no institutionalized plaintiff remains in the case to bring Count 5, the district court correctly dismissed the case in its entirety.8 We affirm
the district court’s dismissal.
AFFIRMED.
7 On appeal, the plaintiffs also argue that the district court erred in dismissing A.G., T.H., and A.R. from the case. We disagree. Having turned 21, A.G. and T.H. would never again be subject to PASRR screenings through the Children’s Multidisciplinary Assessment Team within the Florida Department of Health—a team that only administers such screenings to children. See Doc. 62 at ¶¶ 95-96 (challenging PASRR screenings conducted by the Florida’s Children’s Multidisciplinary Assessment team, which exclusively “makes recommendations for medically necessary services for children from birth to twenty-one”). And having moved to Colorado in 2015, A.R. was no longer subject to allegedly improper PASRR screenings from the Florida Department of Health. Because A.G., T.H., and A.R. “lack a legally cognizable interest in the outcome” of this dispute, the district court did not err in dismissing them from the case. BankWest, Inc. v. Baker, 446 F.3d 1358, 1364 (11th Cir. 2006) (internal quotation marks omitted).
8 Because all of the plaintiffs’ claims are moot, we need not consider whether the district court properly denied class certification.
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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith Clerk of Court

April 17, 2019

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 17-13572-GG Case Style: A.R., et al v. Sec. Health Care Admin., et al District Court Docket No: 0:12-cv-60460-WJZ

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

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, costs taxed against appellants.

Please use the most recent version of the Bill of Costs form available on the court's website at www.ca11.uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Joe Caruso, GG at (404) 335-6177.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 
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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13595 ________________________

D.C. Docket No. 0:12-cv-60460-WJZ

UNITED STATES OF AMERICA, versus

Plaintiff-Appellants,

STATE OF FLORIDA, ________________________

Defendant-Appellees.

Appeal from the United States District Court for the Southern District of Florida ________________________

(September 17, 2019) Before JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.

Table of Contents ANALYSIS ................................................................................................................5
I. An Overview of Title II of the ADA ......................................................................5
II. The Remedial Structure of Title VI of the Civil Rights Act...............................12
A. Title VI Enforcement Regulations Contemplate Department of Justice Enforcement Suits ................................................................................................14

∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation.

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B. Enforcing Title VI: Any Other Means Authorized By Law ...........................17 III. Section 505 of the Rehabilitation Act................................................................21
A. Rehabilitation Act Enforcement Regulations Tracked Title VI Regulations .22 B. Department of Justice Enforcement of the Rehabilitation Act .......................27 IV. Enforcement of Title II of the ADA ..................................................................32 A. Title II Enforcement Regulations Follow Regulations Promulgated Under the Rehabilitation Act and Title VI............................................................................33 B. Title II of the ADA Permits Department of Justice Enforcement ..................39 C. The Legislative History of Title II Supports the Attorney General’s Authority to File Suit ............................................................................................................46 D. The Department of Justice Has Filed Suit to Enforce Title II ........................51 E. Federalism Principles Do Not Alter Our Conclusion......................................54 CONCLUSION ........................................................................................................58
BOGGS, Circuit Judge: In September 2012, after completing a six-month investigation, the
Department of Justice issued a Letter of Findings notifying Florida that it was failing to meet its obligations under Title II of the Americans With Disabilities Act of 1990 (“ADA”) and its implementing regulations, by “unnecessarily institutionalizing hundreds of children with disabilities in nursing facilities.” The Department of Justice also asserted that Florida’s Medicaid policies and practices placed other
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children who have “medically complex”1 conditions, or who are “medically
fragile,”2 at risk of unnecessary institutionalization.
The Department of Justice negotiated with Florida to attempt to resolve the
violations identified in the Letter of Findings. After concluding that it could not
obtain voluntary compliance, the Department of Justice filed suit in the Southern
District of Florida in July 2013, seeking declaratory and injunctive relief under Title
II of the ADA and 28 C.F.R. § 35.130(d).
In December 2013, pursuant to Fed. R. Civ. P. 42(a), the district court
consolidated the Department of Justice’s suit with a previously-filed class-action
complaint from a group of children who similarly alleged that Florida’s policies
1 The Letter of Findings relied on Florida’s then-operative definition of “medically complex.” The term describes “a person [who] has chronic debilitating diseases or conditions of one (1) or more physiological or organ systems that generally make the person dependent upon twenty-four (24) hour-per-day medical, nursing, or health supervision or intervention.” Fla. Admin. Code R. 59G-1.010(164) (2012). Florida has since amended its Administrative Code, and this definition no longer appears. See Fla. Admin. Code R. 59G-1.010.
2 At the time the Letter of Findings was issued, Florida defined “medically fragile” as a person who is:
medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependent, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning. Fla. Admin. Code R. 59G-1.010(165) (2012). This definition no longer appears in Florida’s Administrative Code. See Fla. Admin. Code R. 59G-1.010.
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caused, or put them at risk of, unnecessary institutionalization and unlawful segregation on the basis of disability. See A.R. v. Sec’y Fla. Agency for Health Care Admin., 769 F. App’x 718 (11th Cir. 2019).
Shortly before the consolidation, Florida filed a Motion for Judgment on the Pleadings, asserting that Title II of the ADA did not authorize the Attorney General to file suit. The district court denied Florida’s motion, concluding that the Department of Justice had reasonably interpreted Title II and had the authority to file suit to enforce Title II. See A.R. v. Dudek, 31 F. Supp. 3d 1363, 1367 (S.D. Fla. 2014).
In 2016, the district court sua sponte revisited the issue3 and dismissed the Department of Justice’s case because it concluded that the Attorney General lacked standing to sue under Title II of the ADA. See C.V. v. Dudek, 209 F. Supp. 3d 1279, 1282 (S.D. Fla. 2016). After further litigation, the district court dismissed the children’s case. This appeal followed.
3 There do not appear to be any significant factual or legal changes between the 2014 decision and the 2016 decision. The consolidated cases were reassigned in 2014, shortly after the district court decided Florida’s Motion for Judgment on the Pleadings. In 2016, the district court justified its departure from the 2014 decision because it concluded that the 2014 decision erroneously applied Chevron U.S.A. Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984), and improperly deferred to the Department of Justice’s interpretation of the statute. See C.V. v. Dudek, 209 F. Supp. 3d 1279, 1291 n.11 (S.D. Fla. 2016).
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ANALYSIS This case requires us to determine whether the Attorney General has a cause of action to enforce Title II of the ADA. This is a purely legal question, requiring statutory interpretation. Therefore, the proper standard of review is de novo. Stansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 914 (11th Cir. 2014).
I. An Overview of Title II of the ADA The ADA was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” and establish strong, enforceable standards to achieve that goal. 42 U.S.C. § 12101(b)(1)–(2). Congress envisioned that, through the ADA, the Federal Government would take “a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities,” and invoked “the sweep of congressional authority, including the power to enforce the [F]ourteenth [A]mendment and to regulate commerce” to “address the major areas of discrimination faced day-to-day by people with disabilities.” Id. (b)(3)–(4). See also United States v. Georgia, 546 U.S. 151, 154 (2006). Part A of Title II, 42 U.S.C. §§ 12131–12134, addresses public services provided by public entities. A “public entity” means “any State or local government,” or “any department, agency, special purpose district, or other
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instrumentality of a State or States or local government . . . .” 42 U.S.C.
§ 12131(1)(A)–(B). Title II prohibits discrimination based on disability, specifically,
“[s]ubject to the provisions of this subchapter, no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term
“qualified individual with a disability” means:
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2).
Title II’s enforcement provision states that “[t]he remedies, procedures, and
rights set forth in section 794a of Title 29 shall be the remedies, procedures, and
rights this subchapter provides to any person alleging discrimination on the basis of
disability in violation of section 12132 of this title.” 42 U.S.C. § 12133. Congress
directed the Attorney General to “promulgate regulations in an accessible format
that implement [Title II].” 42 U.S.C. § 12134(a). Such regulations, with the
exception of specifically-identified terms,
shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of
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Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of Title 29.
Id. (b).
It is undisputed that Title II permits a private cause of action for injunctive
relief or money damages. Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 750 (2017).
We must determine whether Title II’s enforcement scheme, 42 U.S.C. § 12133,
permits the Attorney General to bring an enforcement action.4 The starting point is
the language of the statute. United States Dep’t of Transp. v. Paralyzed Veterans of
Am., 477 U.S. 597, 604 (1986). If the words of the statute are unambiguous, then
we may conclude the inquiry there. Connecticut Nat’l Bank v. Germain, 503 U.S.
249, 254 (1992).
Through a series of cross-references, the enforcement mechanism for Title II
of the ADA is ultimately Title VI of the Civil Rights Act of 1964. See 42 U.S.C.
§ 12133; 29 U.S.C. § 794a; 42 U.S.C. § 2000d-1. Section 12133 of Title II states
4 Florida maintains that Supreme Court decisions examining Title II’s enforcement provisions that consistently mention private enforcement without considering public enforcement support a conclusion that Title II was never meant to permit public enforcement. But in each of those cases, the Supreme Court was confronted with questions stemming from private litigation (the United States intervened to defend abrogation of state sovereign immunity in two cases). See Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 751–52 (2017); United States v. Georgia, 546 U.S. 151, 154–55 (2006); Tennessee v. Lane, 541 U.S. 509, 513 (2004); Barnes v. Gorman, 536 U.S. 181, 183 (2002); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999). The Court was not required to consider whether the Attorney General could enforce Title II in those cases. We do not consider the Supreme Court’s silence on an issue that was not presented dispositive.
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that the “remedies, procedures, and rights” available to a person alleging
discrimination are those available in § 505 of the Rehabilitation Act of 1973,
29 U.S.C. § 794a. Section 505 contains a provision for enforcing § 504 of the
Rehabilitation Act, which prohibits discrimination on the basis of disability by
programs and activities receiving federal financial assistance. See 29 U.S.C.
§§ 794(a); 794a. In relevant part, § 505 states that:
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (and in subsection (e)(3) of section 706 of such Act (42 U.S.C. 2000e-5), applied to claims of discrimination in compensation) shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.
29 U.S.C. § 794a(a)(2).
Like § 504 of the Rehabilitation Act, § 601 of Title VI of the Civil Act of 1964
prohibits discrimination, exclusion, or denial of benefits—in that statutory scheme,
on the basis of race, color, or national origin—by “any program or activity receiving
federal financial assistance.” 42 U.S.C. § 2000d.
Section 602 of Title VI requires the various federal departments and agencies
that provide federal financial assistance to “effectuate” § 601 by “issuing rules,
regulations, or orders of general applicability . . . .” 42 U.S.C. § 2000d-1. Agencies
may “effect” “[c]ompliance with any requirement adopted pursuant to this
section . . . (1) by the termination of or refusal to grant or to continue assistance
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under such program or activity to any recipient . . . or (2) by any other means authorized by law . . . .” Ibid. Before any action may be taken, the department or agency must issue appropriate notice and determine that it cannot obtain voluntary compliance. Ibid.
Florida insists that we need not consider the “remedies, procedures, and rights” available in § 505 of the Rehabilitation Act, or Title VI of the Civil Rights Act. It reasons that, because the Attorney General is not a “person alleging discrimination,” he is “not within the class to whom Title II provides enforcement authority,” and therefore is not authorized to bring suit to enforce Title II. To support this argument, Florida compares Titles I and III of the ADA, which expressly mention the Attorney General, with Title II, which does not.5
The United States contends that this interpretation (followed by the district court) “misreads the plain text of Title II.” It asserts that “Title II does not authorize the Attorney General to file enforcement suits by equating the Attorney General with a ‘person alleging discrimination.’” Rather, it contends that the phrase “remedies, procedures, and rights” in § 12133 is the operative phrase for statutory analysis. By
5 The dissenting opinion focuses on the presumption against treating the government as a “person,” citing Return Mail, Inc. v. U.S. Postal Serv., 587 U.S. ____ (2019), No. 17-1594, 2019 WL 2412904, at *5 (June 10, 2019). The Supreme Court’s holding in Return Mail should not change our analysis: in Return Mail, the underlying patent-review statute provided specific remedies for a specified offended party, thus differing significantly from the complex “remedies, procedures, and rights” structure of the ADA explained in detail in Part IV of our opinion.
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cross-referencing to other statutes, Congress made a “package” of remedies, rights, and procedures available that may include enforcement by the Attorney General.
In enacting the ADA, Congress legislated in light of existing remedial statutes. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 590 & n.4 (1999); Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1176–77 (11th Cir. 2003). This decision carries significant weight. When Congress adopts a new law that incorporates sections of a prior law, “Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434 U.S. 575, 581 (1978). Because in Title II Congress expressly incorporated § 505 of the Rehabilitation Act, which in turn incorporated Title VI of the Civil Rights Act, as the available “remedies, procedures, and rights,” it is “especially justified” to conclude that Congress was aware of prior interpretations, as well as the operation of, both Acts. See Cannon v. Univ. of Chi., 441 U.S. 677, 696–98 (1979) (applying a similar presumption while using Title VI to interpret Title IX). Focusing solely on the word “person” and the difference in the language of enforcement provisions within the ADA ignores this presumption.
Title II, the Rehabilitation Act, and Title VI are structured in a similar manner. Each has a statutory provision forbidding discrimination. Compare 42 U.S.C. § 2000d, with 29 U.S.C. § 794(a), and 42 U.S.C. § 12132. Indeed, § 202 of Title II (42 U.S.C. § 12132) and § 504 of the Rehabilitation Act overlap substantially in their
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prohibitions on discrimination on the basis of disability. See Barnes v. Gorman, 536 U.S. 181, 184–85 (2002). Title II and the Rehabilitation Act share the same enforcement provision, which incorporates the entirety of Title VI. See 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2).
It is true that, at first glance, Title II’s enforcement provision is not as specific as those in Titles I and III. But that difference should not dictate a conclusion that, absent greater specificity, we should simply assume that a single word in § 12133 ends all inquiry. Because Congress chose to cross-reference other statutory provisions to identify how Title II may be enforced, we must consider those statutory provisions. Courts construing Title II and the Rehabilitation Act have taken the same approach. See Barnes, 536 U.S. at 185 (Title II); Olmstead, 527 U.S. at 590 n.4 (Title II); Alexander v. Choate, 469 U.S. 287, 293 n.7 (1985) (Rehabilitation Act); Community Television of S. Cal. v. Gottfried, 459 U.S. 498 (1983) (Rehabilitation Act); Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012) (Rehabilitation Act); Shotz, 344 F.3d at 1169–70 (Title II); United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1043–45 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985) (Rehabilitation Act).
We begin in Part II by discussing the remedial provisions of Title VI of the Civil Rights Act, as it is the earliest-enacted statute and ultimate fount of the cascade of cross-references. We also examine the regulations promulgated with Title VI and
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litigation that considered whether the United States could file suit to enforce Title VI. Next, in Part III, we analyze § 505 of the Rehabilitation Act, its accompanying regulations, and cases in which the United States brought suit to enforce the Rehabilitation Act. In Part IV, we return to Title II of the ADA and examine the regulations the Attorney General promulgated pursuant to Congress’s directive in 42 U.S.C. § 12134, and the district court’s conclusions about the scope of Title II enforcement. We analyze Title II’s legislative history, and other cases in which federal courts have concluded that the Attorney General may file suit to enforce Title II.
II. The Remedial Structure of Title VI of the Civil Rights Act Title VI contains two enforcement mechanisms. See Alexander v. Sandoval, 532 U.S. 275, 280–81, 288–89 (2001); Arthur R. Block, Enforcement of Title VI Compliance Agreements by Third Party Beneficiaries, 18 Harv. C.R.-C.L. L. Rev. 1, 9–10 (1983). First, § 601 contains an implied private cause of action. See Sandoval, 532 U.S. at 279–80. The second enforcement mechanism is in § 602, which, as discussed above, directs federal agencies to “effectuate” § 601’s prohibition on discrimination by programs that receive federal funding through regulation, fund termination, and “any other means authorized by law.”6 See id. at
6 The regulatory powers attached to § 602 are substantial by contrast with other grants of regulatory power elsewhere in the Civil Rights Act. In Title VII, for example, Congress specified
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289. Regulations promulgated pursuant to § 602 do not create a private right of
action.7 Id. at 289. Agencies enforce § 601’s prohibition on discrimination “either
by terminating funding to the ‘particular program, or part therof,’ that has violated
the regulation or ‘by any other means authorized by law[.]” Ibid. (quoting 42 U.S.C.
§ 2000d-1). This system, developed in the 1960s, was well-established at the time
the ADA and the Rehabilitation Act were enacted. See Block, supra, 9–10.
that the EEOC could create “procedural” regulations to carry out the Title, rather than Congress’s more substantive grant of authority in Title VI to implement § 601. See Olatunde C.A. Johnson, Lawyering That Has No Name: Title VI and the Meaning of Private Enforcement, 66 Stan. L. Rev. 1293, 1298 (2014) (citing 42 U.S.C. § 2000e-12).
7 In Alexander v. Sandoval, 532 U.S. 275, 279 (2001), the Supreme Court considered whether a private cause of action existed to enforce Department of Justice regulations promulgated under § 602. Sandoval had filed suit, alleging that Alabama’s policy of administering driver’s license examinations only in English violated a Department of Justice regulation that forbade recipients of funding from using methods of administration that had the effect of discriminating on the basis of race, color, or national origin. Id. at 278–79. Florida points to Sandoval for the proposition that expressly providing one method of enforcing a substantive rule suggests that Congress intended to preclude others. The Supreme Court made this statement in Sandoval as it concluded that private individuals may not sue to enforce agency regulations promulgated under § 602 because that statute did not contemplate a private right of action—rather, it directed authority to agencies. Id. at 289. Sandoval instructs us that we must look to the statutory language of particular provisions to assess the method of enforcement Congress has provided. Further, as the Supreme Court explained in Cannon v. Univ. of Chi., 441 U.S. 677, 711 (1979), when it concluded that Title IX implied a private right of action, the fact that other provisions of a “complex statutory scheme create express remedies” is not a sufficient reason to conclude that separate sections do not contain other remedies. The Court “has generally avoided this type of ‘excursion into extrapolation of legislative intent,’ unless there is other, more convincing evidence that Congress meant to exclude the remedy.” Ibid. (quoting Cort v. Ash, 422 U.S. 66, 83 n.14 (1975)).
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A. Title VI Enforcement Regulations Contemplate Department of Justice Enforcement Suits
It is helpful to survey the Department of Justice’s regulations addressing Title VI enforcement, particularly because Congress, in § 602, specifically directed the Department of Justice (and other agencies) to make those regulations. When the “empowering provision” of a statute directs the agency to regulate as necessary to carry out what Congress intends, “the validity of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling legislation.’” Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356, 369 (1973) (quoting Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268, 280– 81 (1969)); see also Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984) (deferring to “contemporaneous regulations issued by the agency responsible for implementing a congressional enactment”).
Individuals who believe that they have been subjected to discrimination in violation of Title VI may file a written complaint. See 28 C.F.R. § 42.107(b). Upon receipt of a complaint, the Department is required to “make a prompt investigation,” to determine whether a recipient of federal funding has failed to comply with the antidiscrimination requirements. Id. (c).8 If that investigation demonstrates that the
8 Agencies are also required to conduct periodic compliance reviews to ensure that federalfunding recipients are complying with their obligations. 28 C.F.R. § 42.107(a). A compliance
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recipient is not in compliance, then the Department must notify the recipient and attempt to resolve the matter by “informal means” if possible. Id. (d)(1).
If the Department and recipient are unable to resolve the matter, then further action may be taken to induce compliance. Ibid. Such actions may include suspending, terminating, refusing to grant or continue federal financial assistance, or “any other means authorized by law[.]” 28 C.F.R. § 42.108(a). The Department of Justice has characterized those other means as including, but not limited to “[a]ppropriate proceedings brought by the Department to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking,” or “[a]ny applicable proceeding under State or local law.” Id. (a)(1)–(2). The Department may not take such actions until it has determined that it cannot secure voluntary compliance, the Attorney General has approved the action, and the non-complying party has been notified of its failure to comply and the action to be taken. Id. (d).
Terminating or refusing to provide federal funding is the “ultimate sanction[.]” 28 C.F.R. § 50.3. To avoid such a drastic step, the Department’s guidelines urge agencies to take alternatives to achieve “prompt and full compliance
review that indicates that there may be discrimination or noncompliance with agency regulations may also trigger an investigation. Id. (c).
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so that needed Federal assistance may commence or continue.” Ibid. Such
alternatives include administrative action or court enforcement.
Compliance with the nondiscrimination mandate of title VI may often be obtained more promptly by appropriate court action than by hearings and termination of assistance. Possibilities of judicial enforcement include (1) a suit to obtain specific enforcement of assurances, covenants running with federally provided property, statements or compliance or desegregation plans filed pursuant to agency regulations, (2) a suit to enforce compliance with the other titles of the 1964 Act, other Civil Rights Acts, or constitutional or statutory provisions requiring nondiscrimination, and (3) initiation of, or intervention or other participation in, a suit for other relief designed to secure compliance.
Ibid.
Florida argues that Title VI (and § 505 of the Rehabilitation Act, which we
discuss infra in Part III, pp. 23–33) do not authorize federal enforcement actions,
and never have. It maintains that the cases the United States relies upon are limited
to “specific performance of contractual assurances of compliance obtained from
recipients of federal funds.”
It is hardly surprising that many Title VI cases are actions to ensure
compliance by recipients of federal funding. Title VI was intended to ensure that
“funds of the United States are not used to support racial discrimination.” 110 Cong.
Rec. 6544 (1964) (statement of Sen. Humphrey). One of the easiest methods of
achieving this goal was to require all recipients or seekers of federal financial
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assistance to execute assurances that they would not discriminate. Such assurances stated that the United States could enforce those agreements in court. See 28 C.F.R. § 42.105(a)(1).
B. Enforcing Title VI: Any Other Means Authorized By Law Even though government Title VI enforcement actions may be brought to ensure a funding recipient’s assurances of nondiscrimination, Title VI does not limit “other means authorized by law” solely to such enforcement. United States v. Marion Cty. Sch. Dist., 625 F.2d 607 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981), illustrates this principle. There, the Fifth Circuit determined that the United States had authority to sue to enforce a school district’s contractual assurance to comply with Title VI’s prohibition against discrimination. Id. at 617. The court observed that the government’s complaint described the suit as one to compel specific performance and enforce Title VI and the Fourteenth Amendment. Id. at 609 n.3. The district court had dismissed the complaint because it concluded that, by establishing alternative means to achieve federal antidiscrimination objectives, Congress nullified the United States’s existing right to sue to enforce contracts. Id. at 611–12. The court rejected this reasoning, concluding that the Civil Rights Act did not limit enforcement strategies to only those means set out explicitly in the Act. The government has a right to “sue to enforce its contracts . . . as a matter of federal
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common law without the necessity of a statute.” Id. at 611. Congress may, by statute, remove that right, but only if it offers “extremely, even unmistakably clear” evidence of such intent. Ibid. (citing United States v. United Mine Workers, 330 U.S. 258, 272 (1947)).
The language in § 602 supported this conclusion. It “clearly provide[d] that other means of action, even if not mentioned in the Act, are to be preserved.” Id. at 612. The phrase “any other means authorized by law” showed that Congress intended to preserve other methods of enforcement—including filing suit. Id. at 612–13. The Civil Rights Act contained a provision that explicitly preserved the existing authority of the Attorney General, the United States, or any agency, to bring, or intervene in, any action or proceeding. Id. at 612 (citing 42 U.S.C. § 2000h-3).
The Fifth Circuit only considered whether § 602 permitted contract enforcement actions. The United States’ response to the school district’s motion to dismiss had asserted that the Title VI and Fourteenth Amendment claims were not brought as independent causes of action, but subsidiary to the contract claims. Id. at 609 n.3.9 Because the Fifth Circuit resolved the case on the contractual question, it
9 This is not necessarily the winning point Florida thinks it is. The United States’s authority to bring contractual actions is, as the Fifth Circuit pointed out in United States v. Marion Cty. Sch. Dist., 625 F.2d 607, 611 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981), clearly established. The decision to emphasize the contract action may have been a strategic litigation decision, or it may have been made for any of a number of reasons. Regardless, we decline to accord substantial weight to an assertion made in a brief in a different case over thirty years ago.
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did not consider whether the United States had an “implied right of action under Title VI,” or the “inherent authority to sue to enforce the Fourteenth Amendment.” Id. at 616–17.
Akin to Marion County, in United States v. Alabama, 828 F.2d 1532, 1547 (11th Cir. 1987), cert. denied, 487 U.S. 1210 (1988), superseded by statute on other grounds by J.W. v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018), we acknowledged that Title VI’s status as spending-power legislation, and the presence of federal funding was sufficient to permit the United States to file suit to enforce Title VI’s antidiscrimination provisions. A review of the history of Title VI demonstrates that the United States has consistently used such litigation to enforce its provisions.10
Other cases that have considered § 602’s administrative-enforcement scheme have recognized the Attorney General’s right to bring legal actions as an avenue of enforcing Title VI without specifying that only contract actions are permissible. In
10 See, e.g., United States v. Fordice, 505 U.S. 717, 724 (1992); United States v. Harris Methodist Forth Worth, 970 F.2d 94, 96 (5th Cir. 1992); United States v. Lovett, 416 F.2d 386, 390 n.4, 391 n.5 (8th Cir. 1969); United States v. Louisiana, 692 F. Supp. 642, 649–50 (E.D. La. 1988), vacated on other grounds by 715 F. Supp. 606 (E.D. La. 1990); United States v. Yonkers Bd. of Educ., 518 F. Supp. 191, 201 (S.D.N.Y. 1981); United States v. El Camino Cmty. Coll. Dist., 454 F. Supp. 825, 826–27 (C.D. Cal. 1978), aff’d, 600 F.2d 1258 (9th Cir. 1979); United States v. Texas, 321 F. Supp. 1043, 1057–58 & n.18 (E.D. Tex. 1970), supplemented by 330 F. Supp. 235 (E.D. Tex. 1971), aff’d by 447 F.2d 441 (5th Cir. 1971); United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285, 288 (E.D. Tex. 1969); United States by Clark v. Frazer, 297 F. Supp. 319, 323 (M.D. Ala. 1968).
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National Black Police Ass’n v. Velde, 712 F.2d 569, 572 (D.C. Cir. 1983), cert. denied, 466 U.S. 963 (1984), the court considered whether agency officials’ failure to terminate federal funding to discriminatory local law enforcement violated their statutorily-imposed duties. In concluding that terminating federal funding was discretionary, the court relied on Title VI’s construction to permit other enforcement schemes, including “referral of cases to the Attorney General, who may bring an action against the recipient.” Id. at 575. See also United States v. Maricopa Cty., 151 F. Supp. 3d 998, 1018–19 (D. Ariz. 2015), aff’d 889 F.3d 648 (9th Cir. 2018); United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285, 288 (E.D. Tex. 1969); United States v. Frazer, 297 F. Supp. 319, 323 (M.D. Ala. 1968).
The phrase “any other means authorized by law” in § 602 appears to be routinely interpreted to permit suit by the Department of Justice. See United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985) (phrase refers to federal enforcement); Brown v. Califano, 627 F.2d 1221, 1224 & n.10, 1227, 1233 & n.73 (D.C. Cir. 1980) (discussing referrals to the Department of Justice); Maricopa Cty., 151 F. Supp. 3d at 1018–19; Adams v. Richardson, 351 F. Supp. 636, 641 (D.D.C. 1972).
A similar phrase in another statute has received a comparable interpretation. In United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir. 2002), the Sixth Circuit considered whether the phrase “any other action authorized by law with respect to
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the recipient” in the Family Educational Rights and Privacy Act (“FERPA”) conferred standing upon the Department of Education to seek injunctive relief. The court observed that, while FERPA contained a general authorization to permit the Secretary of Education to “take appropriate actions to enforce” FERPA, that alone was insufficient to permit enforcement litigation. Ibid. (citing 20 U.S.C. § 1232g(f)). However, another provision in FERPA offered the Secretary a menu of options in response to noncompliance with FERPA, including “any other action authorized by law with respect to the recipient.” Id. at 807–08 (citing 20 U.S.C. § 1234c(a)(4)). The court concluded that this language “expressly” permitted the Secretary to sue to enforce FERPA “in lieu of its administrative remedies.” Id. at 808. In reaching this conclusion, the Sixth Circuit relied on Baylor Univ. Med. Ctr., 736 F.2d at 1050, which had interpreted the Rehabilitation Act (encompassing § 602), and National Black Police Ass’n, 712 F.2d at 575, which discussed § 602.
A review of the statute, the regulations that Congress expressly directed the agencies to create, and precedent demonstrates that Title VI contains an administrative enforcement scheme and permits judicial enforcement of its prohibition against discrimination. We next turn to the Rehabilitation Act.
III. Section 505 of the Rehabilitation Act The Rehabilitation Act established a “comprehensive federal program” that Congress intended to benefit individuals with disabilities. Consolidated Rail Corp.
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v. Darrone, 465 U.S. 624, 626 (1984). It was originally enacted without an enforcement provision. See Community Television of S. Cal. v. Gottfried, 459 U.S. 498, 509 (1983). Because § 504 was “patterned after Title VI of the Civil Rights Act of 1964, it was understood that responsibility for enforcing it . . . would lie with those agencies administering the federal financial assistance programs.” Ibid. (citing S. Rep. No. 93-1297, at 39–40 (1974)).11
A. Rehabilitation Act Enforcement Regulations Tracked Title VI Regulations
The Department of Health, Education, and Welfare (“HEW”) developed implementing regulations for § 504, and its Secretary was assigned to coordinate enforcement across federal departments and agencies. See S. Rep. No. 93-1297, at 40 (1974); Exec. Order No. 11,914, 41 Fed. Reg. 17,871 (Apr. 28, 1976), revoked by Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980). HEW’s 1977 regulations incorporated by reference its procedures under Title VI of the Civil Rights Act on an interim basis. See Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefitting From Federal Financial
11 Congress amended the Rehabilitation Act in 1974. Legislative history from that amendment reveals that Congress intended § 504 to lead to “implementation of a compliance program” similar to Title VI, including regulations, investigation, review, attempts to ensure voluntary compliance, and sanctions such as termination of federal funds, or “other means otherwise authorized by law.” S. Rep. No. 93-1297, at 39-40 (1974). This legislative history is especially relevant in light of the 1978 Amendments to the Rehabilitation Act. See infra pp. 25– 27.
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Assistance, 42 Fed. Reg. 22685 (May 4, 1977) (adopting 45 C.F.R. § 80.6–80.10 and Part 81 of Title 45 of the C.F.R. which specify “[T]itle VI complaint and enforcement procedures” to implement § 504).
HEW’s Title VI procedures were identical to those adopted by the Department of Justice to implement Title VI, discussed supra at Part II.A, pp. 14–17.12 They permit individuals to file complaints, 45 C.F.R. § 80.7(b), which require an investigation. Id. (c). Agencies must attempt to resolve the matter by “informal means.” Id. (d). Like the Department of Justice’s regulations, they identify other actions that may be taken against noncompliant funding recipients: termination of funding and referral to the Department of Justice for enforcement proceedings. Compare 45 C.F.R. § 80.8(a), with 28 C.F.R. § 42.108(a).
In January 1978, HEW issued coordination regulations for the Rehabilitation Act. See Implementation of Executive Order 11,914: Nondiscrimination on the Basis of Handicap in Federally Assisted Programs, 43 Fed. Reg. 2132 (Jan. 13, 1978). Executive Order 11,914 had directed HEW’s Secretary to coordinate implementation of § 504. Exec. Order 11,914, 41 Fed. Reg. 17,871 (Apr. 28, 1976);
12 In 1979, the Department of Education Organization Act divided HEW into the Department of Education and the Department of Health and Human Services (“HHS”). See National Wrestling Coaches Ass’n v. U.S. Dep’t of Educ., 263 F. Supp. 2d 82, 91 (D.D.C. 2003). HEW’s regulations promulgating § 504 of the Rehabilitation Act remain in HHS’s regulations. See 45 C.F.R. §§ 80.7–80.8.
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Consolidated Rail Corp., 465 U.S. at 634. The 1978 regulations directed agencies to establish a system to enforce § 504, which was to include “[t]he enforcement and hearing procedures that the agency has adopted for the enforcement of [T]itle VI of the Civil Rights Act of 1964 . . . .” 43 Fed. Reg. 2137, § 85.5(a).
In November 1978, Congress amended the Rehabilitation Act. There are two aspects to this amendment that are significant for the purposes of this case. First, Congress amended § 504. It directed that agencies “shall promulgate such regulations as may be necessary” to carry out the 1978 amendments. See Pub. L. 95-602, Title I, § 119, codified at 29 U.S.C. § 794(a). The agencies were required to submit copies of any proposed regulation to “appropriate authorizing committees of the Congress . . . .” Ibid.
Second, Congress enacted § 505, which established the enforcement procedures for violations of the Rehabilitation Act, including § 504. See Pub. L. 95602, Title I, § 120, codified at 29 U.S.C. § 794a. As we have discussed, § 505 adopted the “remedies, procedures, and rights” set out in Title VI, and specified that those remedies “shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.” 29 U.S.C. § 794a(a)(2).
In Consolidated Rail Corp., the Supreme Court observed that the effect of these amendments was to “incorporate the substance of the Department’s regulations
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into the statute.” 465 U.S. at 634 n.15. Legislative history demonstrates that Congress intended § 505(a)(2) to codify HEW’s regulations for § 504 enforcement. Id. at 635. Specifically, the “regulations promulgated by the Department of Health, Education, and Welfare with respect to procedures, remedies, and rights under section 504 conform with those promulgated under Title VI. Thus, this amendment codifies existing practice as a specific statutory requirement.”13 S. Rep. No. 95-890, at 19 (1978); Consolidated Rail Corp., 465 U.S. at 635 n.16 (“[T]hese Department regulations incorporated Title VI regulations governing ‘complaint and enforcement procedures . . . .’”); see also School Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 279 (1987); United States v. Bd. of Trustees for Univ. of Ala., 908 F.2d 740, 746–47 (11th Cir. 1990); Miener v. Missouri, 673 F.2d 969, 978 (8th Cir. 1982).
In 1980, President Carter issued an Executive Order assigning responsibility for coordinating the implementation and enforcement of Title VI, the Rehabilitation
13 Florida points to language in legislative history from the 1974 Amendments that it asserts showed that Congress only intended to create a private right of action. It is true that Congress stated that it intended to “permit a judicial remedy through a private right of action.” S. Rep. 931297, at 40 (1974). But this portion of the report also discusses Congress’s vision of a “compliance program” similar to Title VI enforcement. Ibid.; see also supra, note 11 (discussing the 1974 Amendments’ legislative history). Congress’s decision in 1978 to codify existing regulations that specifically required agencies to use Title VI’s administrative enforcement procedures undercuts Florida’s contentions. Congress’s decision, in 1978, to mention a private remedy is not surprising, given the litigation over whether Title VI implied a private right of action. See Sandoval, 532 U.S. at 280; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Guardians Ass’n v. Civil Serv. Comm’n of City of N.Y., 463 U.S. 582, 587 (1983).
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Act, and Title IX of the 1972 Education Amendments14 to the Attorney General. See Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980), reprinted in 42 U.S.C. § 2000d-1, app. Executive Order 12,250 directs the Attorney General to review the existing rules and regulations to determine their adequacy and consistency, as well as “develop standards and procedures for taking enforcement actions and for conducting investigations and compliance reviews.” Ibid. Executive Order 12,250 revoked Executive Order No. 11,914. Id. at 72997. The Executive Order also preserved the coordinating regulations HEW had promulgated, which by then fell under the auspices of the newly-formed Department of Health and Human Services “HHS”).
The present regulations of the Secretary of Health and Human Services relating to the coordination of the implementation of Section 504 of the Rehabilitation Act of 1973, as amended, shall be deemed to have been issued by the Attorney General pursuant [to] this Order and shall continue in effect until revoked or modified by the Attorney General. Ibid. The Department of Justice’s regulations for enforcement of § 504 are the same as those HEW promulgated in 1978. Compare 28 C.F.R. § 41.5, with 43 Fed. Reg. 2137, § 85.5(a).
14 Title IX was also modeled after Title VI. See Cannon, 441 U.S. at 694. Section 902 of Title IX is substantially similar to § 602 of Title VI. Compare 20 U.S.C. § 1682, with 42 U.S.C. § 2000d-1.
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As tedious as this administrative and regulatory history may be, it is essential to understand what Congress did when it enacted the enforcement provision of Title II. Sections 504 and 505 of the Rehabilitation Act, and their implementing regulations, established a system of administrative enforcement that replicated the one in § 602 of the Civil Rights Act. This system permits both individual complaints and federal agency oversight to lead to investigations that may end with federal enforcement actions. This is illustrated in Rehabilitation Act enforcement litigation.
B. Department of Justice Enforcement of the Rehabilitation Act The United States and Florida dispute whether the United States has enforced the Rehabilitation Act through litigation. Florida argues that, because there have been no such enforcement actions, this undercuts the United States’s argument that Congress knew the Rehabilitation Act could trigger federal litigation, and so incorporated the same intent in Title II. The United States has filed suit to enforce the Rehabilitation Act. There appear to be fewer cases than Title VI enforcement, but this is not surprising. Federal investigations may not always culminate in litigation. The Rehabilitation Act was intended to track Title VI, which requires that agencies attempt to achieve voluntary compliance through informal means before terminating funding or taking “any other means authorized by law.” 42 U.S.C. § 2000d-1; 29 U.S.C. § 794a(a)(2).
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Although much of the litigation under the Rehabilitation Act was brought by private parties, that does not automatically lead to the conclusion that a private right of action is the sole method of enforcement. Reliance on a private right of action may be more attractive to individuals who want to ensure that they receive relief that best fits their circumstances and goals. For example, they can control the progress of the litigation or settle on their own terms. See Block, supra, at 9–10. Litigation over whether there was an implied private right of action in the Rehabilitation Act recognized that the Rehabilitation Act also contained an administrative-enforcement system. See Miener v. Missouri, 673 F.2d 969, 978 (8th Cir. 1982); Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1381 (10th Cir. 1981); Camenisch v. Univ. of Tex., 616 F.2d 127, 133–34 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981); Kling v. Los Angeles Cty., 633 F.2d 876, 879 (9th Cir. 1980); NAACP v. Med. Ctr., Inc., 559 F.2d 1247, 1254–55, 1258 (3d Cir. 1979).
The United States has brought suits to ensure compliance with the Rehabilitation Act, and each of those suits took place after the relevant agency had received a complaint and investigated. See United States v. Bd. of Trustees for Univ. of Ala., 908 F.2d 740, 742 (11th Cir. 1990) (deaf student filed complaint in 1979 alleging University improperly denied sign-language interpreter services, government filed suit to enforce Rehabilitation Act); United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1041 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985)
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(deaf patient filed complaint that hospital refused to permit her to bring an interpreter, hospital refused to allow HHS to investigate); United States v. Univ. Hosp. of State Univ. of N.Y. at Stony Brook, 729 F.2d 144, 147 (2d Cir. 1984) (United States filed suit after receiving a complaint relating to medical treatment of disabled baby).
Florida argues that Baylor Univ. Med. Ctr. was not an enforcement action because the central question was whether the receipt of Medicare and Medicaid funds made the hospital a recipient of federal financial assistance subject to § 504. Florida is correct about the nature of the central question, but it errs in characterizing Baylor as anything other than an enforcement action. The United States and the Medical Center had both sought summary judgment on the question of federal funding, and the district court awarded it to the United States. Id. at 1041–42. It concluded that the Medical Center was in violation of § 504 and suspended all future Medicare and Medicaid payments to the Medical Center until it complied with the investigation. Id. at 1042. The question of the receipt of federal financial assistance was essential to determining whether the Medical Center was violating § 504 and whether the United States could enforce § 504. Ibid.
The Fifth Circuit affirmed the conclusion that the hospital was a federalfunding recipient but determined that the district court abused its discretion in suspending the funding immediately. Id. at 1050. It relied on the history of the
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Rehabilitation Act and its relationship to Title VI. Administrative enforcement remedies, the court explained, were inconsistent with an immediate, automatic suspension of federal funding because § 602 sets out very specific procedures to be implemented before terminating funding. Ibid. The court also specifically stated that agencies seeking to enforce § 504 may “resort to ‘any other means authorized by law’—including the federal courts.” Ibid. (citing United States v. Marion Cty. Sch. Dist., 625 F.2d 607 (5th Cir. 1980)).
The Second Circuit has considered the nature of the United States’s authority to enforce § 504. In Stony Brook, 729 F.2d at 148, the United States filed suit, alleging that a hospital had violated § 504 and accompanying regulations by refusing to provide information regarding medical care provided to a baby born with severe disabilities. The Second Circuit, applying the assumption that § 504 covered the hospital, and determining that the baby was a “handicapped individual,” id. at 155, nonetheless concluded that § 504 did not apply to decisions about medical treatment, and that HHS could not proceed in its investigation. Id. at 157–59.15 Importantly,
15 It is important to note that in United States v. Univ. Hosp. of State Univ. of N.Y. at Stony Brook, 729 F.3d 144, 161 (2d Cir. 1984), the relevant Rehabilitation Act claim was whether the baby was denied certain surgical interventions on the basis of her disability. The Second Circuit pointed out that the hospital was always willing to perform the surgeries if her parents consented, thus the baby was treated in an “evenhanded manner” by the hospital. Ibid. The United States’s claims in this case are consistent with (although not limited to) the kind of claims raised in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999), and, inter alia, concern whether Florida is violating Title II of the ADA by failing to provide community placements for individuals for whom a less restrictive setting than an institution is appropriate. This is a far cry from a case
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the court did not conclude that the government lacked any authority to enforce § 504. Rather, with the issue of the United States’s authority before it, the court concluded that this particular investigation and enforcement action exceeded the congressionally delegated enforcement authority under the Rehabilitation Act because Congress did not intend for agencies to insert themselves in those circumstances. Id. at 160.
A review of the legislative and regulatory background of the Rehabilitation Act, its existing regulations, and legal precedent demonstrate that the Act incorporated a system of administrative procedures that included a complaint, compliance reviews, investigation, and possible enforcement action by the Attorney General. As we have discussed above, Congress was fully aware of this system, it is consistent with what Congress intended, and the 1978 Amendments to § 504 and § 505 demonstrate that Congress codified the existing administrative practice of using Title VI procedures. Further, by 1980, the Attorney General had been tasked with enforcing Title VI, the Rehabilitation Act, Title IX, and other similar statutes. It is with this background that we now address the specific language in the enforcement provision of Title II of the ADA.
in which a federal agency sought to investigate (and possibly override) parents’ reasonable, informed medical decisions for their child. See also American Acad. of Pediatrics v. Heckler, 561 F. Supp. 395 (D.D.C. 1983).
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IV. Enforcement of Title II of the ADA The United States contends that by incorporating the “remedies, procedures, and rights” of the Rehabilitation Act (and accordingly Title VI), “Congress adopted a federal administrative enforcement scheme in which persons claiming unlawful discrimination may complain to and enlist the aid of federal agencies in compelling compliance, potentially leading to a DOJ lawsuit.” Florida argues that, because the administrative process was not designed to vindicate individual rights, such actions “taken at the executive’s discretion and without the complainant’s involvement” deprive the terms “right” and “remedy” of all meaning. Florida relies on precedent that recognized a private right of action under the Rehabilitation Act and rejected administrative exhaustion, particularly Camenisch v. Univ. of Tex., 616 F.2d 127 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981). In recognizing private rights of action, courts have emphasized the potentially unsatisfactory nature of administrative remedies for individuals under Title VI and the Rehabilitation Act. See id. at 135. That argument lends support to finding an implied cause of action to permit individuals to seek personal redress. Ibid. It does not, however, automatically lead to the conclusion that government enforcement is impermissible. Ensuring that public entities subject to federal statutes comply with those states ultimately vindicates individuals’ personal rights. Although some plaintiffs may prefer private remedies, that fact does not persuade us that we should
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ignore Congress’s decision to enact a statutory scheme that permits the government to enforce Title II.
A. Title II Enforcement Regulations Follow Regulations Promulgated Under the Rehabilitation Act and Title VI
Congress directed the Attorney General to “promulgate regulations . . . that implement” Title II. 42 U.S.C. § 12134(a). Congress directed that those regulations “be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of Title 29.” Id. (b).
As we have discussed above in Part III.A, pp. 23–28, the 1978 regulations required agencies to establish enforcement procedures for § 504. See Implementation of Executive Order 11,914: Nondiscrimination on the Basis of Handicap in Federally Assisted Programs, 43 Fed. Reg. 2132, 2137, § 85.5(a) (Jan. 13, 1978). Part 41 of title 28 of the Code of Federal Regulations contains the regulations that the Attorney General promulgated in response to Executive Order 12,250, Nondiscrimination on the Basis of Handicap in Federally Assisted Programs, which, as we have already observed, are the same as HEW’s January 13, 1978 regulations. Those regulations required agencies to use the “enforcement and hearing procedures that the agency has adopted for the enforcement of [T]itle VI of
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the Civil Rights Act of 1964[.]” Compare 28 C.F.R. § 41.5, with 43 Fed. Reg. 2137,
§ 85.5(a).
The Department of Justice then issued regulations that, consistent with
Congress’s directive in § 12134, established an administrative scheme for Title II
similar to the ones available for the Rehabilitation Act and Title VI. See 28 C.F.R.
§§ 35.170–35.174, 35.190. An individual may file a complaint with the appropriate
federal agency, any agency that provides funding to the public entity allegedly
discriminating, or with the Department of Justice. 28 C.F.R. § 35.170. Agencies
“shall” investigate complaints, may conduct compliance reviews, and, if appropriate,
attempt informal resolution.16 Id. § 35.172(a)–(c). If an agency can obtain voluntary
compliance, then such agreements must provide for enforcement by the Attorney
General. Id. § 35.173(b)(5).
16 Florida points out that the Department of Justice amended its regulations to clarify that agencies are not obligated to investigate administrative complaints alleging violations of Title II. In 2010, the Department modified its regulations. See Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56,164, 56,228 (Sept. 15, 2010). The Department explained that, since Title II regulations went into effect, it had “received many more complaints alleging violations of [T]itle II than its resources permit it to resolve.” Ibid. It modified a regulation to clarify that designated agencies may exercise discretion in determining which complaints they select to resolve. Agencies may still “engage in conscientious enforcement” without fully investigating each complaint. Ibid. Rather, the Department explained that the modification was to permit agencies to assess whether agencies are likely to succeed in enforcement, whether the enforcement is consistent with the agencies’ policies, and whether agencies’ limited resources are best spent on a particular complaint. Ibid. A person who complains to an agency may still file suit regardless of the agency’s resolution of the matter. 28 C.F.R. § 35.172(d). As we have already said, this argument certainly supports an implied private right of action. But our concern is with government, rather than private, enforcement.
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Agencies are required to issue a letter of findings that provides public entities their findings of fact, conclusions of law, description of remedies for violations, and notice of available rights and procedures. Id. § 35.172(c). If a public entity “declines to enter into voluntary compliance negotiations or if negotiations are unsuccessful, the designated agency shall refer the matter to the Attorney General with a recommendation for appropriate action.” Id. § 35.174. Complainants may file private suits under 42 U.S.C. § 12133, regardless of whether or not an agency finds a violation. Id. § 35.172(d).
The district court dismissed Congress’s directive to the Attorney General in § 12134(a)–(b) to implement regulations that must be consistent with Title II and the Rehabilitation Act enforcement regulations. C.V., 209 F. Supp. 3d at 1288. Relying on Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012), and Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1179 (9th Cir. 1999), the district court explained that § 12134(a) “authorizes the Attorney General to define the substantive standards for discrimination under Title II,” and “the consistency mandate merely ensures that Title II’s substantive standards are analogous to those under the Rehabilitation Act.” C.V., 209 F. Supp. 3d at 1288. It quoted Zimmerman, 170 F.3d at 1179, for the proposition that “42 U.S.C. § 12134(b) does not suggest that Congress intended to incorporate any provisions from the
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Rehabilitation Act into Title II.” C.V., 209 F. Supp. 3d at 1288 (emphasis in original).17
But Elwell and Zimmerman addressed a very different issue than the one presented here. Both of those cases considered whether Title II permitted individuals to bring employment discrimination claims against public entities. See Elwell, 693 F.3d at 1305–06; Zimmerman, 170 F.3d at 1171–72. In those cases, plaintiffs contended that, because Title II incorporated § 505 of the Rehabilitation Act’s “remedies, procedures, and rights,” Congress intended to adopt the Rehabilitation Act’s prohibition on employment discrimination. Elwell, 693 F.3d at 1312; Zimmerman, 170 F.3d at 1179. Both Elwell and Zimmerman firmly rejected this argument, pointing out that Congress adopted the Rehabilitation Act’s procedural rights in Title II, rather than its substantive prohibitions on employment discrimination. After all, Congress had already extensively addressed employment discrimination in Title I of the ADA. Elwell, 693 F.3d at 1312; Zimmerman, 170 F.3d at 1179. Both opinions also rejected the argument that, because the Attorney
17 The district court made a critical omission when it quoted Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1179 (9th Cir. 1999). The full sentence reads: “Unlike 42 U.S.C. § 12133, 42 U.S.C. § 12134(b) does not suggest that Congress intended to incorporate any provisions from the Rehabilitation Act into Title II.” Ibid. (emphasis added). The Ninth Circuit emphasized that the requirement of “consistency” in areas of regulatory overlap did not demonstrate an intent to incorporate substantive provisions concerning an entirely separate subject (employment) that Congress had already addressed exhaustively in Title I. Id. at 1179–80. Here, by contrast, the requirement of consistency makes far more sense when Title II addresses public services provided by public entities and the relevant regulations address the same subject.
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General’s Title II regulations were required to be consistent with certain Rehabilitation Act regulations, it adopted the Rehabilitation Act regulations that prohibited discrimination in employment. Elwell, 693 F.3d at 1312–13; Zimmerman, 179 F.3d at 1179–80.
Elwell and Zimmerman do support a conclusion that the Attorney General’s regulations to implement Title II were intended to be consistent with the Rehabilitation Act in the areas where they might overlap. The regulations included definitions of certain terms, identified types of prohibited discrimination, and accessibility standards. Zimmerman, 170 F.3d at 1179–80; Elwell, 693 F.3d at 1313. Title II: (1) expressly addresses public services provided by public entities; 42 U.S.C. § 12132; (2) directly incorporates the rights, procedures, and remedies available in § 505(a)(2) of the Rehabilitation Act for violations of the prohibition on discrimination by programs or activities that receive federal financial assistance; id. at § 12133; and (3) directs that regulations to implement Title II must be “consistent” with certain Rehabilitation Act regulations that apply to recipients of Federal financial assistance. Id. § 12134.
The consistency requirement in § 12134(b) leads to the conclusion that Congress intended the Attorney General’s Title II regulations to adopt the Rehabilitation Act’s Title-VI-type enforcement procedures because Title II’s enforcement procedure used the Rehabilitation Act’s enforcement structure. See S.
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Rep. No. 101-116, at 57 (1989) (explaining that the Attorney General should use § 504 enforcement procedures and its role under Executive Order 12,250 as “models for regulation); H.R. Rep. No. 101-485 II, at 98 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 381 (same).
We considered that the Attorney General’s Title II regulations were “entitled to controlling weight” in Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th Cir. 2003). “Congress expressly authorized the Attorney General to make rules with the force of law interpreting and implementing the ADA provisions generally applicable to public services.” Ibid. (citing 42 U.S.C. § 12134(a)). See also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597–98 (1999) (“Because the Department [of Justice] is the agency directed by Congress to issue regulations implementing Title II . . . its views warrant respect.” (citation omitted)).
These regulations are reasonably related to the legislative purpose of the ADA, which included federal enforcement. Id. at 1179 & n. 25. They are consistent with the remedial structure that Congress selected for Title II, in that they adopt similar enforcement procedures to the Rehabilitation Act and Title VI, as Congress directed. Thus, “[b]ecause Congress explicitly delegated authority to construe the statute by regulation, in this case we must give the regulations legislative and hence controlling weight unless they are arbitrary, capricious, or plainly contrary to the statute.” United States v. Morton, 467 U.S. 822, 834 (1984), accord Yeskey v. Com.
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of Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d Cir. 1997), aff’d sub nom. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998); Kornblau v. Dade Cty., 86 F.3d 193, 194 (11th Cir. 1996).
B. Title II of the ADA Permits Department of Justice Enforcement To be sure, the Attorney General may not, by regulation, employ a cause of action where none was intended. See Sandoval, 532 U.S. at 291 (concluding that regulations may not create a private right of action where Congress did not so intend); Marshall v. Gibson’s Prods., Inc. of Plano, 584 F.2d 668, 677–78 & n.16 (5th Cir. 1978). But Title II incorporated the Rehabilitation Act’s procedural rights. See Elwell, 693 F.3d at 1312; Zimmerman, 170 F.3d at 1179. Congress chose to use § 505(a)(2) of the Rehabilitation Act as the enforcement mechanism for Title II of the ADA, with full knowledge that those provisions established administrative enforcement and oversight in accordance with Title VI. Congress also knew that, by adopting § 502(a)(2), it incorporated Title VI’s “any other means authorized by law” provision. The district court concluded that the “simpler explanation” was that “Congress did not incorporate all ‘remedies, procedures, and rights’ available under Title VI—it incorporated only those ‘remedies, procedures, and rights’ that may be exercised by a ‘person alleging discrimination.’” C.V., 209 F. Supp. 3d at 1286–87 (quoting 42 U.S.C. § 12133) (emphasis in original). It reasoned that, as “the power
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to terminate federal funding under Title VI has no foothold in Title II,” the available enforcement remedy is simply a private lawsuit.18 Id. at 1287.
This conclusion is inconsistent with the statutory text, and Congress’s directive that Title II’s remedies are the same as the Rehabilitation Act. See Barnes, 536 U.S. at 185. At the time Congress enacted the ADA, there had been a number of decisions from the Supreme Court and the circuits regarding the availability of an implied private right of action under Title VI and the Rehabilitation Act. If Congress only intended to create a private right of action under Title II, then its decision to cross-reference to § 505 of the Rehabilitation Act, which expressly incorporates Title VI, including its administrative enforcement scheme in § 602, would be mystifying, especially because it had directed the Attorney General to develop regulations that were to be consistent with Rehabilitation Act enforcement procedures that included Title VI enforcement. See 42 U.S.C. § 12134.
It is true that Title II, unlike the Rehabilitation Act and Title VI, does not condition the right to enforce the statute on a defendant’s receipt of federal funding.
18 The district court’s reliance on Alexander v. Sandoval, 532 U.S. 275 (2001), is misplaced. There, the Supreme Court, interpreting § 602 of the Civil Rights Act, explained that § 602 did not confer rights on individuals, rather it focused on federal agencies’ responsibilities. Id. at 289. The implication from Sandoval, as was observed in United States v. Maricopa Cty., 151 F. Supp. 3d 998, 1018 (D. Ariz. 2015), is that when enforcement provisions focus on a particular party, it is more likely that Congress gave that party the ability to enforce the provision. Sandoval’s logic lends more support to concluding that there is a right of action for federal agency enforcement in § 602’s reference to “any other means authorized by law.” Ibid.
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But, as the Supreme Court observed in Barnes v. Gorman, 536 U.S. 181, 189 n.3
(2002), that does not mean that an analysis of the available “remedies, procedures,
and rights” turns on that distinction. Justice Scalia (who wrote the Court’s opinion)
and Justice Stevens (who concurred only in the judgment) disagreed over the
relevance of contract-law principles to the Court’s conclusion that punitive damages
were not available in Title II suits. See id. at 189–90 (Scalia, J.), 192–93 (Stevens,
J., concurring in the judgment). The Court had determined that because such
damages were not available in suits under Title VI or the Rehabilitation Act, which
were Spending Clause legislation, they were not available in Title II suits. Id. at
189–90. Justice Scalia noted that the ADA is not Spending Clause legislation, but
rejected the distinction because Congress had “unequivocally” selected remedies
derived from Spending Clause legislation when it enacted the ADA.
The ADA could not be clearer that the “remedies, procedures, and rights . . . this subchapter provides” for violations of § 202 are the same as the “remedies, procedures, and rights set forth in” § 505(a)(2) of the Rehabilitation Act, which is Spending Clause legislation. Section 505(a)(2), in turn, explains that the “remedies, procedures, and rights set forth in title VI . . . shall be available” for violations of § 504 of the Rehabilitation Act.
Id. at 189 n.3 (Scalia, J.) (emphasis in original) (citations omitted).
In Barnes, while interpreting the remedial structure of Title II of the ADA, the
Supreme Court did not consider the federal-funding distinction persuasive because
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Congress expressly adopted remedies from those Spending Clause statutes. Congress intended for those to be the available remedies for Title II because it said so.19 See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.”). To determine the available remedies, we must take Congress at its word. This brings us to Florida’s arguments concerning who may file suit under Title II.
Florida asserts that because Congress did not name the Attorney General in Title II, the Attorney General may not sue. It relies on Director, Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 129 (1995), for the proposition that if an agency is meant to have standing, then Congress expressly says so. This is one of the key concepts from Newport News. The other is that, when making such determinations, courts examine the nature, structure, and purpose of the relevant statutory scheme. We do not conclude that Newport News dictates the result Florida proposes.
Newport News examined a single, self-contained statute, rather than a complex statutory scheme with two layers of statutory cross-reference. The
19 Of course, if a public entity does not receive federal funding, then the United States may not terminate or withhold such funding. But the ADA prohibits discrimination by all public entities, regardless of the source of funding. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1174 (11th Cir. 2003).
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Supreme Court considered whether the Director of the Office of Workers’ Compensation Programs could, under the judicial review provision of the Longshore Harbor Workers’ Compensation Act (“LHWCA”), seek judicial review of a decision by the Benefits Review Board. 514 U.S. at 123.
The relevant statute provided that “‘any person adversely affected or aggrieved by’ the Board’s order” could appeal the decision in a United States Court of Appeals. Id. at 126 (quoting 33 U.S.C. § 921(c)). The Board had affirmed an administrative law judge’s determination that a worker was only partially disabled. The Director sought review in the Fourth Circuit, which independently concluded that the Director could not seek judicial review because she was not a “person adversely affected or aggrieved” by the Board’s decision within the meaning of the LHWCA.20
The Supreme Court affirmed. The Director was not a party to the proceedings before the administrative law judge, and, under the LHWCA, she could not appeal the judge’s determinations to the Board. Thus, allowing her to challenge the Board’s determinations in a federal court of appeals would be quite odd. The key phrase in the judicial review provision, “a person adversely affected or aggrieved,” is, the
20 The worker did not seek judicial review, and upon inquiry by the Fourth Circuit, “expressly declined to intervene on his own behalf,” although he did not oppose the Director’s appeal. Director, Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 124–25 (1995).
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Court explained, a “term of art” that statutes use to “designate those who have standing to challenge or appeal an agency decision, within the agency or before the courts.” Id. at 126. But nothing suggested that, “without benefit of specific authorization to appeal, an agency, in its regulatory or policy-making capacity, is ‘adversely affected’ or ‘aggrieved.’”21 Id. at 127. The Court explained that the general judicial review provision of the Administrative Procedure Act does not include an agency as a person adversely affected or aggrieved, id. at 129, and “when an agency in its governmental capacity is meant to have standing, Congress says so.” Ibid. (emphasis in original).
The Court rejected the Director’s argument that she could seek judicial review because the Board’s decision impaired her ability to achieve the LHWCA’s purposes and perform administrative duties. Id. at 126. The Court observed that the Board’s decision did not interfere with the Director’s duties as set forth by the LHWCA, and that the purpose of the LHWCA was not to ensure adequate compensation, but rather to resolve disputes. Id. at 130–31. Even assuming that the LHWCA’s sole purpose was to ensure compensation for workers, agencies “do not automatically have standing to sue for actions that frustrate the purposes of their statutes[,]” and the
21 Agencies may be “adversely affected or aggrieved” in some circumstances, such as when they are injured in their “nongovernmental capacity . . . as . . . member[s] of the market group that the statute was meant to protect.” Newport News, 514 U.S. at 128 (citing United States v. ICC, 337 U.S. 426, 430 (1949)).
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plain language of the statute did not show a “clear and distinctive responsibility for employee compensation as to overcome” the obvious reading of the text—that the “person adversely affected or aggrieved” by the Board’s decision is one of the parties to the proceeding. Id. at 132.
By contrast, here, Congress enacted a statute that drew upon two other statutes to create the remedies, rights, and procedures available for enforcement, with the full knowledge that the other statutes—the Rehabilitation Act and the Civil Rights Act—were enforceable by federal agencies through funding termination or “any other means authorized by law.” See 42 U.S.C. § 12133. Then Congress told the Attorney General to make regulations (that we defer to) to implement Title II that were to be consistent with a set of regulations that traced directly back to Title VI regulations. 42 U.S.C. § 12134(a)–(b). Congress was quite clear that Title V of the Rehabilitation Act and its accompanying regulations were to be construed as the minimum standard for the ADA. 42 U.S.C. § 12201 (“Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.”).
By the time Congress enacted the ADA, it had established administrative enforcement structures in Title VI and the Rehabilitation Act that each followed the same pattern. Various federal investigations under those statutes had culminated in
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the Department of Justice filing suit in federal court to enforce these statutory provisions. Congress knew that both Title VI and the Rehabilitation Act had been enforced through Department of Justice litigation, and when it enacted the ADA, cross-referencing to Spending Clause remedies—without the federal-funding hook—such remedies necessarily entailed federal enforcement actions, particularly when § 12133 ultimately cascades back to “any other means authorized by law,” a phrase that courts have interpreted to permit referral to the Department of Justice for further legal action. See Cannon, 441 U.S. at 710–11 (implying a private remedy in part because Congress considered it to be available at the time of enactment); Brown v. Gen. Svcs. Admin., 425 U.S. 820, 828 (1976) (“For the relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was.”). The legislative, regulatory, and precedential background of the statutes that Congress incorporated demonstrate that Congress intended to create a system of federal enforcement for Title II of the ADA. Indeed, one of the purposes of the ADA was to ensure that the Federal Government “play[ed] a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities.” 42 U.S.C. § 12101(b)(3).
C. The Legislative History of Title II Supports the Attorney General’s Authority to File Suit
In considering the legislative history, we are mindful that courts need not examine legislative history if the meaning of the statute is plain, but it may do so,
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particularly if a party’s interpretation is based on a misreading or misapplication of legislative history. See Harris v. Garner, 216 F.3d 970, 976–77 (11th Cir. 2000) (en banc), cert. denied, 532 U.S. 1065 (2001). Here, both parties dispute the effect of certain portions of the legislative history surrounding the enactment of the ADA.
The United States cites two committee reports, one from the Senate Committee on Labor and Human Resources, S. Rep. No. 101-116 (1989), and one from the House Committee on Education and Labor, H.R. Rep. No. 101-485 II (1990), reprinted in 1990 U.S.C.C.A.N. 303, which, it asserts, demonstrate that Congress intended that the Department of Justice should enforce Title II.
Both reports note that Title II’s enforcement provision specifies that the “remedies, procedures, and rights” are those available in § 505 of the Rehabilitation Act. S. Rep. No. 101-116, at 57; H.R. Rep. No. 101-485 II, at 98, 1990 U.S.C.C.A.N. at 381. The Committee reports state (in virtually identical language) that administrative enforcement of § 12133 should track federal enforcement practices under § 504 of the Rehabilitation Act, and the Attorney General “should use section 504 enforcement procedures and the Department’s coordination role under Executive Order 12250 as models for regulation in this area.” H.R. Rep. No. 101485 II, at 98, 1990 U.S.C.C.A.N. at 381; S. Rep. No. 101-116, at 57.
The Committee envisions that the Department of Justice will identify appropriate Federal agencies to oversee compliance activities for State and local governments. As with section 504, these Federal agencies,
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including the Department of Justice, will receive, investigate, and where possible, resolve complaints of discrimination. If a Federal agency is unable to resolve a complaint by voluntary means, the Federal government would use the enforcement sanctions of section 505 of the Rehabilitation Act of 1973. Because the fund termination procedures of section 505 are inapplicable to State and local government entities that do not receive Federal funds, the major enforcement sanction for the Federal government will be referral of cases by these Federal agencies to the Department of Justice.
The Department of Justice may then proceed to file suits in Federal district court. As with section 504, there is also a private right of action for persons with disabilities, which includes the full panoply of remedies. Again, consistent with section 504, it is not the Committee’s intent that persons with disabilities need to exhaust Federal administrative remedies before exercising their private right of action.
H.R. Rep. No. 101-485 II, at 98, 1990 U.S.C.C.A.N. at 381; S. Rep. No. 101-116, at
57–58.22
Florida emphasizes that these reports refer to an earlier version of the bill, and
cites another, later report, from the Committee on the Judiciary H.R. Rep. No. 101-
485 III, reprinted in 1990 U.S.C.C.A.N. 445, that does not discuss federal
enforcement actions under Title II. In discussing Title II’s enforcement provision,
the report from the Committee on the Judiciary stated:
22 Title II of the ADA and the Rehabilitation Act do not require a private party to exhaust administrative remedies before bringing suit. See Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999).
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Section 205 incorporates the remedies, procedures and rights set forth in Section 505 of the Rehabilitation Act of 1973. As in [T]itle I, the Committee adopted an amendment to delete the term “shall be available” in order to clarify that Rehabilitation Act remedies are the only remedies which [T]itle II provides for violations of [T]itle II. The Rehabilitation Act provides a private right of action, with a full panoply of remedies available, as well as attorney’s fees. H.R. Rep. No. 101-485 III, at 52, 1990 U.S.C.C.A.N. at 475 (footnotes omitted). The difference between these Committee Reports is not, however, conclusive. First, the report from the Committee on the Judiciary emphasized that Title II extended the coverage of § 504 of the Rehabilitation Act, and that it intended for Title II to “work in the same manner as Section 504.” Id. at 49–50, 1990 U.S.C.C.A.N. at 472–73. Second, the reference to a “private right of action” included a footnote to Miener v. Missouri, 673 F.2d 969 (8th Cir. 1982), which concluded that the Rehabilitation Act contained an implied private right of action and recognized the federal enforcement structure. Id. at 978. As we have discussed above, there had been considerable litigation over whether the Rehabilitation Act permitted a private right of action. Thus, references to that private right equally permit the inference that Congress wanted to be clear that Title II did not just track the administrative enforcement structure of the Rehabilitation Act and Title VI, but also authorized a private right of action.
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This legislative history is not dispositive—indeed, we are wary of putting
much, if any weight on various committee reports when the text of the bill was
subsequently amended. More significantly, other courts considering this question
have concluded that the Attorney General has the power to enforce Title II in federal
court.23
23 Florida, adopting the district court’s arguments, contends that the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (“CRIPA”), is an express mechanism to protect the rights of institutionalized persons. The district court concluded that “[r]ecognizing the authority the Department seeks in this case would, in effect, allow an end-run around CRIPA’s stringent requirements.” C.V. v. Dudek, 209 F. Supp. 3d 1279, 1290 (S.D. Fla. 2016).
CRIPA requires that the Attorney General have reasonable cause to believe that “any State or political subdivision of a State, official, employee, or agent thereof, or other person acting on behalf of a State or political subdivision of a State” is subjecting persons confined in an institution to “egregious or flagrant conditions” that deprive them of rights, privileges or immunities secured or protected by the Constitution or laws of the Untied States that causes them “grievous harm” and is “pursuant to a pattern or practice” before filing suit. 42 U.S.C. § 1997a(a). But CRIPA is irrelevant in this case. Institutions that are subject to CRIPA must be “owned, operated, or managed by, or provide[] services on behalf of any State or political subdivision of a State,” 42 U.S.C. § 1997(1)(A), and include institutions that provide “skilled nursing, intermediate or longterm care, or custodial or residential care.” Id. (B)(v). Privately owned and operated facilities are not subject to CRIPA if either licensing or receipt of payments under Medicaid, Medicare, or Social Security, are the “sole nexus” between the facility and the State. Id. (2)(C). A review of the record seems to indicate that the nursing facilities at issue are private facilities that receive payments from Florida through Medicaid. Further, the United States’ claims address more than just practices within Florida’s institutions.
There is nothing to suggest that CRIPA was intended to be the only means of enforcing the rights of institutionalized persons. Congress enacted CRIPA some ten years before the ADA. Presumably Congress was aware that CRIPA existed, and yet it chose to enact the ADA, which reaches far more broadly, and provides protection against unnecessary institutionalization. See 42 U.S.C. § 12101; Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Obviously Congress can create different types of enforcement schemes for different types of statutory or constitutional violations.
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D. The Department of Justice Has Filed Suit to Enforce Title II We are not the first court to pass upon this issue, and a review of other cases that have considered whether Title II permits the Attorney General to file suit demonstrates that the district court’s decision is an outlier. This Circuit has generally acknowledged the scope of potential federal enforcement under Title II, in Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1175 (11th Cir. 2003). In that case, we concluded that individuals could be liable under the ADA’s anti-retaliation provision where the retaliation took place in response to opposition against discrimination prohibited by Title II. Id. at 1163. To do so, we explained, would not be inconsistent with the “allowed scope of government enforcement action” because the ADA is not Spending Clause legislation and funding-termination procedures are not applicable to public entities that do not receive federal funding. Id. at 1175. We concluded that the ADA and its accompanying regulations did not “indicate” that enforcement by referral to the Department of Justice or the Attorney General for appropriate action could not be taken against individuals. Ibid. In United States v. City & Cty. of Denver, 927 F. Supp. 1396, 1399 (D. Colo. 1996), the district court considered whether the Attorney General had authority to file suit under Title II of the ADA. After describing the statutory cascade from
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§ 12133, to § 504 of the Rehabilitation Act, to § 602 of Title VI, the district court observed that “[c]ourts have interpreted the words ‘by any other means authorized by law’ to mean that a funding agency, after finding a violation and determining that voluntary compliance is not forthcoming, could refer a matter to the Department of Justice to enforce the statute’s nondiscrimination requirements in court.” Id. at 1400 (citing National Black Police Ass’n, 712 F.2d at 575 & n.33; Marion Cty., 625 F.2d at 612 & n.12). The United States’s regulations that implemented Title II were consistent with the administrative procedures under Title VI and the Rehabilitation Act. Ibid. The district court concluded that, by investigating, attempting to negotiate with Denver, and following Denver’s refusal to enter into an agreement, the United States complied with the procedural requirements for Title II of the ADA (which were consistent with § 602’s requirement that no action be taken until the department had advised the noncompliant party of its failure, and attempted to secure compliance through voluntary means). Ibid.
In Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 484–85 (E.D. Pa. 2004), Smith filed suit alleging that, upon learning that he had AIDS, paramedics refused to assist him, in violation of Title II of the ADA. The United States intervened. Id. at 484. The district court ruled that Smith’s claims were time barred but concluded that the United States could proceed with its enforcement action because it had a separate and independent base of jurisdiction under Title II and § 504 of the
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Rehabilitation Act. Id. at 489. The district court’s reasoning tracked the reasoning used in City & Cty. of Denver. Because the Title II’s enforcement provision cascades to § 602, which authorizes the Attorney General to enforce compliance with Title VI by filing suit in federal court, “the Attorney General may also bring suit to enforce other statutes which adhere to the enforcement scheme set forth in Title VI.” Id. at 490.
Other courts have considered this matter and reached the same conclusion following the same analysis. See United States v. Harris Cty., No. 4:16-cv-2331, 2017 WL 7692396, at *1 (S.D. Tex. Apr. 26, 2017); United States v. Virginia, No. 3:12-cv-59-JAG, 2012 WL 13034148, at *2–3 (E.D. Va. June 5, 2012); United States v. Arkansas, No. 4:10-cv-00327, 2011 WL 251107, at *3, *8 (E.D. Ark. Jan. 24, 2011) (concluding that the Department of Justice had authority to initiate a civil action to enforce Title II but dismissing the complaint without prejudice because the Department had not sufficiently alleged that it had complied with statutory prerequisites).
Other cases the United States has filed to enforce Title II have not considered the question of standing but were litigated without jurisdictional challenge in the federal courts. See, e.g., United States v. Gates-Chili Cent. Sch. Dist., 198 F. Supp. 3d 228 (W.D.N.Y. 2016) (alleging ADA violations from a school’s rule regarding a student’s service dog); United States v. City of Balt., 845 F. Supp. 2d 640, 642 n.1
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(D. Md. 2012) (DOJ filed suit alleging that the City of Baltimore Zoning Code discriminates against individuals receiving treatment in residential substance abuse provisions in violation of Title II of the ADA); United States v. N. Ill. Special Recreation Ass’n, No. 12-c-7613, 2013 WL 1499034 (N.D. Ill. Apr. 11, 2013) (United States filed suit alleging discrimination against individuals with epilepsy in violation of Title II).
When confronted with this issue, courts have routinely concluded that Congress’s decision to utilize the same enforcement mechanism for Title II as the Rehabilitation Act, and therefore Title VI, demonstrates that the Attorney General has the authority to act “by any other means authorized by law” to enforce Title II, including initiating a civil action. We agree with this reasoning.
E. Federalism Principles Do Not Alter Our Conclusion Florida contends that principles of federalism dictate a different result and complains that “the federal government has haled a State into court over questions that go to the heart of its sovereignty: the weighing of competing healthcare policies.” Relying on Gregory v. Ashcroft, 501 U.S. 452 (1991), Florida asserts that Congress did not make a clear statement in Title II that it intended to “empower the federal executive to sue the States[.]” Florida argues that we should not presume that Congress intended to authorize such litigation without a clear statement because
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federal enforcement actions impose “considerable federalism costs,” and such litigation is “coercive.”
In Gregory, the Supreme Court considered whether a mandatory age-based retirement provision for judges in the Missouri Constitution violated the Age Discrimination in Employment Act (“ADEA”). 501 U.S. at 455. The Court recognized that, under the Supremacy Clause, Congress may legislate in areas usually controlled by states provided that it is within its constitutional authority. Id. at 460. But, the Court pointed out, the structure of a State’s government and the qualifications it establishes for exercising government authority are fundamental questions of sovereignty, particularly when it comes to identifying constitutional officers. Ibid. For Congress to interfere with those issues would seriously disrupt the “usual constitutional balance of federal and state powers.” Ibid. Therefore, the Court would not read the ADEA to reach state judges unless Congress expressly indicated that it should. Because the ADEA identified an exception for “appointees on the policymaking level,” the Court decided that was “sufficiently broad” to permit a conclusion that the ADEA did not reach state judges. Id. at 467. Gregory instructs us that, to alter the usual balance between state and federal interests, Congress must speak clearly.
Congress has done so. Twenty years ago, in Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 208 (1998), the Supreme Court considered whether Title II
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applied to state prisons. “Assuming, without deciding, that the plain-statement rule” of Gregory controlled the application of the ADA to state prisons, the Court concluded that, unlike in Gregory, the language of the ADA “plainly cover[ed] state institutions without any exception that could cast the coverage of prisons into doubt.” Id. at 209–10 (citing 42 U.S.C. § 12131(1)(B)).24
Our analysis is similarly straightforward. Even assuming the “plain statement rule” applies, Congress expressly intended for Title II to reach states. Title II of the ADA defines “public entities” as “any State or local government,” or “any department, agency, special purpose district, or other instrumentality of a State or States or local government . . . .” 42 U.S.C. § 12131(1)(A)–(B). Florida has been a state since 1845. Thus, it “fall[s] squarely within the statutory definition of ‘public entity[]’ . . . .” Yeskey, 524 U.S. at 210.
Florida may have valid complaints about this lawsuit, but whether it is amenable to suit by the United States is not one of them. The Supreme Court has consistently recognized that, “[i]n ratifying the Constitution, the States consented to suits brought by other states or by the Federal Government.” Alden v. Maine, 527
24 The Supreme Court declined to consider whether the application of the ADA to state prisons was a constitutional exercise of Congress’s power under either the Commerce Clause or § 5 of the Fourteenth Amendment because the courts below had not considered the issue. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212–13 (1998). We similarly do not need to reach the question of whether application of the ADA to a state is a constitutional exercise of Congressional power because it is not before us.
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U.S. 706, 755 (1999). States do not retain sovereign immunity from suits brought by the federal government. See West Virginia v. United States, 479 U.S. 305, 311 n.4 (1987); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.14 (1996); Principality of Monaco v. Mississippi, 292 U.S. 313, 329 (1934); United States v. Miss. Dep’t of Pub. Safety, 321 F.3d 495, 498–99 (5th Cir. 2003) (concluding that the Eleventh Amendment does not bar the United States from suing a state to enforce Title I of the ADA).
To be sure, there are “federalism costs inherent in referring state decisions regarding the administration of treatment programs and the allocation of resources to the reviewing authority of the federal courts.” Olmstead, 527 U.S. at 610 (Kennedy, J., concurring). But the Supreme Court struck that balance in Olmstead, holding that the requirement that States provide community-based treatment must be tempered by: (1) a determination by the State’s treatment professionals that such placement is appropriate; (2) the individuals to receive such treatment do not oppose it; and (3) the placement can be accommodated, considering the state’s resources and the needs of other individuals who receive such treatment. Id. at 607. The same considerations in Olmstead apply to the merits of this case. Florida’s federalism concerns do not dictate a different result.
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CONCLUSION When Congress chose to designate the “remedies, procedures, and rights” in § 505 of the Rehabilitation Act, which in turn adopted Title VI, as the enforcement provision for Title II of the ADA, Congress created a system of federal enforcement. The express statutory language in Title II adopts federal statutes that use a remedial structure based on investigation of complaints, compliance reviews, negotiation to achieve voluntary compliance, and ultimately enforcement through “any other means authorized by law” in the event of noncompliance. In the other referenced statutes, the Attorney General may sue. The same is true here. For the foregoing reasons, we REVERSE the district court’s judgment and REMAND for proceedings consistent with this opinion.
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BRANCH, Circuit Judge, dissenting: Because the United States is not a “person alleging discrimination” under
Title II of the Americans with Disabilities Act (“ADA”), Title II does not provide the Attorney General of the United States with a cause of action to enforce its priorities against the State of Florida. Accordingly, I respectfully dissent.
The relevant text of Title II states: The remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title. 42 U.S.C. § 12133 (emphasis added). The language of this provision is unambiguous. Title II provides enforcement rights “to any person alleging discrimination.” Thus, the question is whether the Attorney General is a “person alleging discrimination” under Title II. To answer that question, we apply “a ‘longstanding interpretive presumption that ‘person’ does not include the sovereign,’ and thus excludes a federal agency.” Return Mail, Inc. v. USPS, 587 U.S. ____, No. 17-1594, 2019 WL 2412904, at *5 (June 10, 2019) (quoting Vermont Agency of Natural Resources v. US ex rel. Stevens, 529 U. S. 765, 780–781 (2000)). In Return Mail, the Supreme Court considered whether the United States Postal Service (“USPS”), a federal agency, was a “person” eligible to seek patent review under the America Invents Act
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(“AIA”). USPS had petitioned for review of Return Mail’s patent under two
sections of the AIA that allow for post-issuance patent review. Id. at *4–5.
However, the language of the AIA limited post-issuance review proceedings to “a
person who is not the owner of a patent,” id. (citing 35 U.S.C. §§ 311(a), 321(a)),
or when “the person or the person’s real party in interest or privy has been sued for
infringement.” Id. (citing AIA § 18(a)(1)(B), 125 Stat. 330). Thus, the direct
question presented to the Supreme Court in Return Mail was: “whether a federal
agency is a ‘person’ capable of petitioning for post-issuance review under the
AIA.” Id. In concluding that the Government presumptively is not a “person” for
purposes of federal statutes, the Supreme Court explained:
This presumption reflects “common usage.” United States v. Mine Workers, 330 U.S. 258, 275 (1947). It is also an express directive from Congress: The Dictionary Act has since 1947 provided the definition of “person” that courts use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U.S.C. § 1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 199–200 (1993). The Act provides that the word “person . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” § 1. Notably absent from the list of “person[s]” is the Federal Government. See Mine Workers, 330 U.S. at 275 (reasoning that Congress’ express inclusion of partnerships and corporations in § 1 implies that Congress did not intend to include the Government). Thus, although the presumption is not a “hard and fast rule of exclusion,” United States v. Cooper Corp., 312 U.S. 600, 604–605 (1941), “it may be disregarded only upon some affirmative showing of statutory intent to the contrary.” Stevens, 529 U.S. at 781.
Id. at *6.
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Given Return Mail’s clear explanation of the presumption in favor of excluding the Federal Government from the definition of “person,” I approach the analysis of Title II the same way. As such, I begin with the presumption that “person alleging discrimination,” 42 U.S.C. § 12133, does not include the United States. See Return Mail, 2019 WL 2412904, at *5. In order to overcome “the presumption that a statutory reference to a ‘person’ does not include the Government,” there must be “some indication in the text or context of the statute that affirmatively shows Congress intended to include the Government” in its definition of “person.” Id. Nothing in the text of Title II overcomes this presumption. But Return Mail states that context matters, too. And so I next examine the enforcement language contained in the other Titles of the ADA.1
In Title I of the ADA, the enforcement language provides as follows: The powers, remedies, and procedures set forth in . . . this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.
1 The ADA contains three primary subchapters, each referred to as a separate “Title.” Each Title “forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III.” Tennessee v. Lane, 541 U.S. 509, 516–17 (2004).
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42 U.S.C. § 12117(a) (emphasis added). The text of Title I thus explicitly conveys the “powers, remedies, and procedures . . . to the Attorney General.” Id. Title II echoes the “any person alleging discrimination” language contained in Title I, but the reference to “the Attorney General” is conspicuously missing from Title II. Compare 42 U.S.C. § 12133, with 42 U.S.C. § 12117(a).
Title III of the ADA also contains language bestowing enforcement authority on the Attorney General:
If the Attorney General has reasonable cause to believe that—(i) any person or group of persons is engaged in a pattern or practice of discrimination under this subchapter; or (ii) any person or group of persons has been discriminated against under this subchapter and such discrimination raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court. 42 U.S.C. § 12188(b)(B) (emphasis added). The text of Title III of the ADA is even more explicit than the text of Title I and clearly provides the Attorney General with the authority to bring a civil suit in federal court. Title II, by contrast, is entirely devoid of any reference to “the Attorney General” or the power to “commence a civil action.” Compare 42 U.S.C. § 12133 with 42 U.S.C. § 12188(b)(B). The difference in language across the ADA’s three titles is noteworthy. It is well settled that, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that
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Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). If Congress had intended to grant a civil cause of action to the Attorney General in Title II, “it presumably would have done so expressly as it did in” Titles I and III. See Russello, 464 U.S. at 23.
Yet the majority essentially reads Title III’s language (that “the Attorney General may commence a civil action in any appropriate United States district court”) into Title II. Although the majority readily admits that, “at first glance, Title II’s enforcement provision is not as specific as those in Titles I and III,” it finds these differences inconsequential. The majority reasons that the differences between Title II and the other subchapters of the ADA “should not dictate a conclusion that, absent greater specificity, we should simply assume that a single word in § 12133 ends all inquiry.” As discussed above, the inquiry does, in fact, turn on a single word. Accordingly, it is clear that the Attorney General is not a “person alleging discrimination” under Title II.
Notably, however, the United States does not argue that the Attorney General is a “person alleging discrimination.” The United States instead argues that “Title II provides to ‘persons’ alleging discrimination the ‘remedies, procedures, and rights’—including the prospect of Attorney General enforcement—that are provided to persons under the Rehabilitation Act and Title
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VI.” The majority agrees with the United States: “Focusing solely on the word ‘person’ and the difference in the language of enforcement provisions within the ADA ignores” the presumption that “Congress legislated in light of existing remedial structures.” But “[f]ocusing solely on the word ‘person’” is precisely where this case should begin and end. Because the Attorney General of the United States—on behalf of the United States itself and not on behalf of any individuals served by the State of Florida—filed suit in this case, it is the United States that must have a cause of action to enforce Title II. And that determination necessarily depends on whether the Attorney General is a “person alleging discrimination” under the text of Title II. Because he is not such a person, the Attorney General has none of the “rights, procedures, and remedies” available under the Rehabilitation Act and Title VI. Accordingly, in this case, it is legally irrelevant what those “rights, procedures, and remedies” are because he simply does not possess those rights with respect to Title II. I do not agree that the multitude of cross-references to other federal regulatory schemes somehow provides a cause of action that does not otherwise exist in the text of Title II.
The Attorney General also insists that “a holding that the Attorney General cannot continue to bring lawsuits to enforce Title II would seriously undermine federal enforcement of the ADA against public entities.” But we cannot expand the definition of “person” just because such an interpretation would “further the
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purpose of the” statute. Return Mail, 2019 WL 2412904, at *10 n.11. “Statutes rarely embrace every possible measure that would further their general aims, and, absent other contextual indicators of Congress’ intent to include the Government in a statutory provision referring to a ‘person,’ the mere furtherance of the statute’s broad purpose does not overcome the presumption in this case.” Id. See Cooper, 312 U.S. at 605 (“[I]t is not our function to engraft on a statute additions which we think the legislature logically might or should have made”). And Title II remains enforceable—even if the Attorney General does not have enforcement authority— because, as the Attorney General acknowledges, a “person alleging discrimination” may still enforce Title II through a private right of action.
Both the United States and the majority make much of the fact that “one of the purposes of the ADA was to ensure that the Federal Government ‘play[ed] a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities.’” But, even if we find—as I do—that Title II does not allow the Attorney General to bring suit, the federal government will continue to “play a central role in enforcing the standards established in [the ADA] on behalf of individuals with disabilities.” 42 U.S.C. § 12101(b)(3). Title I and Title III of the ADA clearly and explicitly confer enforcement authority on the Attorney General. See 42 U.S.C. §§ 12117(a), 12188(b)(B). Accordingly, a holding that the Attorney General cannot sue the States to enforce Title II does not affect, in any
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way, the Attorney General’s ability to enforce the other Titles of the ADA. Thus, the ADA’s broad statutory purpose rationally coexists with the holding that the Attorney General cannot file federal lawsuits to enforce Title II.
Because the text of Title II is determinative, and because that text does not provide the Attorney General with a cause of action to enforce Title II against the State of Florida, I would affirm the order of the district court. I respectfully dissent.
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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303

David J. Smith Clerk of Court

September 17, 2019

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 17-13595-GG Case Style: A.R., et al v. Sec. Health Care Admin, et al District Court Docket No: 0:12-cv-60460-WJZ

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

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).

The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.

Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.

Pursuant to Fed.R.App.P. 39, each party to bear own costs.

Please use the most recent version of the Bill of Costs form available on the court's website at www.ca11.uscourts.gov.

For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Joseph Caruso, GG at (404) 335-6177.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6151

OPIN-1A Issuance of Opinion With Costs

 
 Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 1 of 60
APPEAL,CLOSED,MEDIATION,PMH,RECOUT,REF_DISCOV
U.S. District Court Southern District of Florida (Ft Lauderdale) CIVIL DOCKET FOR CASE #: 0:12−cv−60460−WJZ

A.R. et al v. Dudek et al Assigned to: Judge William J. Zloch Referred to: Magistrate Judge Patrick M. Hunt Case in other court: 16−15518−D
USCA, 17−13572−B
USCA, 17−13595−BB Cause: 28:1331 Fed. Question: Civil Rights Violation
Plaintiff

Date Filed: 03/13/2012 Date Terminated: 06/09/2017 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

A.R. by and through her next friend, Susan Root TERMINATED: 06/27/2016

represented by Edward J. Grunewald The North Florida Center for Equal Justice, Inc. 2121 Delta Blvd. Tallahassee, FL 32306 850−701−3980 Fax: 850−701−3985 Email: egrunewald@nfcfej.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie Marie Ito Florida Office of the Attorney General Employment Litigation PL−01 The Capitol Tallahassee, FL 32399−1050 850−414−3300 Fax: 850−488−4872 Email: jamie.ito@myfloridalegal.com TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jill B. Zaborske City Attorney's Office, City of Tallahassee 300 S. Monroe Street Tallahassee, FL 32301 850−891−8554 Fax: 850−891−8973 Email: Jill.Zaborske@talgov.com TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino FSU College of Law Public Interest Law Center 425 W. Jefferson Street Tallahassee, FL 32306 850−644−9928 Fax: 850−644−0879 Email: pannino@law.fsu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Wilson Dietz Matthew W. Dietz 2990 SW 35th Avenue

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 2 of 60

Miami, FL 33133 305−669−2822 Fax: 442−4181 Email: mdietz@justdigit.org ATTORNEY TO BE NOTICED

Plaintiff
C.V. by and through his next friends, Michael and Johnette Wahlquist

represented by Edward J. Grunewald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jill B. Zaborske (See above for address) TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
M.D. by and through her next friend, Pamela DeCambra

represented by Edward J. Grunewald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jill B. Zaborske (See above for address) TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
C.M. by and through his next friend, Norine

represented by Edward J. Grunewald (See above for address)

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 3 of 60

Mitchell

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jill B. Zaborske (See above for address) TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
B.M. by and through his next friend, Kayla Moore TERMINATED: 02/16/2017

represented by Edward J. Grunewald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jill B. Zaborske (See above for address) TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
T.F. by and through his next friend, Michael and Liz Fauerbach; each individually, and on behalf of all other children similarly situated in the State of Florida TERMINATED: 06/27/2016

represented by Edward J. Grunewald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 4 of 60

Jill B. Zaborske (See above for address) TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.C. by and through his next friend, Zurale Cali; each individually, and on behalf of all others who are similarly situated in the State of Florida TERMINATED: 06/27/2016

represented by Edward J. Grunewald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jill B. Zaborske (See above for address) TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
T.H. by and through her next friend, Paolo Annino TERMINATED: 03/13/2017

represented by Edward J. Grunewald (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jill B. Zaborske (See above for address) TERMINATED: 11/20/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paolo G. Annino (See above for address) LEAD ATTORNEY

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 5 of 60

ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
L.J. by and through his next friend, Paolo Annino TERMINATED: 06/27/2016

represented by Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A.G. by and though his next friend Gamal Gasser TERMINATED: 01/19/2017

represented by Jamie Marie Ito (See above for address) TERMINATED: 08/22/2014 ATTORNEY TO BE NOTICED

Matthew Wilson Dietz (See above for address) ATTORNEY TO BE NOTICED

V.
Consol Plaintiff
United States of America TERMINATED: 09/20/2016

represented by Beth A. Esposito U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue NW Washington, DC 20005 202−305−1130 Email: beth.esposito@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
H. Justin Park US Department of Justice 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 (202) 305−0178 Email: justin.park@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joy Levin Welan U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 202−305−1894 Email: joy.welan@usdoj.gov TERMINATED: 07/21/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsey Weinstock US Department of Justice 950 Pennsylvania Avenue NY NYA

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 6 of 60

Washington, DC 20530 202−616−2221 Email: lindsey.weinstock@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Travis W. England U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 202−616−2042 Email: travis.england@usdoj.gov TERMINATED: 05/12/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eliza Dermody U.S. Department of Justice Disabillty Rights Section− NYA 950 Pennsylvania Ave, NW Washington, DC 20005 202−305−0463 Email: eliza.dermody@usdoj.gov ATTORNEY TO BE NOTICED

Elizabeth Erin McDonald US Department of Justice 950 Pennsylvania Avenue NW NYA Washington, DC 20530 202−616−2985 Email: elizabeth.mcdonald@usdoj.gov ATTORNEY TO BE NOTICED

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

Victoria Thomas US Department of Justice 950 Pennsylvania Avenue, NW − NYA Washington, DC 20530 202−616−2925 Email: victoria.thomas2@usdoj.gov ATTORNEY TO BE NOTICED

Consol Plaintiff Disability Rights Florida

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

Molly Jean Paris 2335 East Atlantic Blvd.

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 7 of 60
Suite 410 Pompano Beach, FL 33062 9545669040 Fax: 9545680803 Email: molly@fla−lap.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Elizabeth Dudek, Fl in her official capacity as Secretary of the Agency for Health Care Administration

represented by Michael Garrett Austin McDermott Will & Emery LLP 333 SE 2nd Avenue Suite 4500 Miami, FL 33131 (305) 347−6517 Fax: (305) 347−6500 Email: maustin@mwe.com TERMINATED: 10/19/2015 LEAD ATTORNEY
Allison Goodson Mawhinney GrayRobinson, P.A. P. O. Box 11189 Tallahassee, FL 32302−3189 850−577−9090 Email: allison.mawhinney@gray−robinson.com ATTORNEY TO BE NOTICED
Andrew T. Sheeran Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive Building 3, MS #3 Tallahassee, FL 32308 850−412−3630 Fax: 850−921−0158 Email: Andrew.Sheeran@ahca.myflorida.com ATTORNEY TO BE NOTICED
Ashley Hoffman Lukis GrayRobinson, P.A. 301 S. Bronough St. Ste. 600 Tallahassee, FL 32301 850 577 9090 Email: ashley.hoffman@gray−robinson.com ATTORNEY TO BE NOTICED
Beverly H Smith State of Florida, Agency for Health Care Administration 2727 Mahan Drive, MS 3 Tallahassee, FL 32308 (850)412−3630 Fax: (850)921−0158 Email: Beverly.Smith@ahca.myflorida.com TERMINATED: 11/05/2012
Leslei Gayle Street Agency for Healthcare Administration Office of the General Counsel 2727 Mahan Drive, MS #3

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 8 of 60

Tallahassee, FL 32308 850−412−3686 Fax: 850−921−0158 Email: Leslei.Street@ahca.myflorida.com ATTORNEY TO BE NOTICED

Lisa Maria Raleigh Office of the Attorney General − Complex Litigation Unit 107 West Gaines Street Tallahassee, FL 32301 850−414−3821 Fax: 850−414−9650 Email: lisa.raleigh@myfloridalegal.com TERMINATED: 10/15/2012

Stuart Fraser Williams Agency for Health Care Administration 2727 Mahan Drive Mail Stop 3 Tallahassee, FL 32308 850−412−3630 Fax: 850−921−0158 Email: stuart.williams@ahca.myflorida.com ATTORNEY TO BE NOTICED

George N. Meros , Jr. Gray Robinson 301 S Bronough Street Suite 600 Post Office Box 11189 (32302) Tallahassee, FL 32301 850−577−9090 Fax: 577−3311 Email: gmeros@gray−robinson.com TERMINATED: 02/23/2018 ATTORNEY TO BE NOTICED

Defendant
Harry Frank Farmer, Jr., M.D. in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health

represented by Jennifer Ann Tschetter Florida Department of Health 4052 Bald Cypress Way Bin A−02 Tallahassee, FL 32399 8502454353 Fax: 8504101448 Email: jennifer_tschetter@doh.state.fl.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Garrett Austin (See above for address) TERMINATED: 10/19/2015 LEAD ATTORNEY

Allison Goodson Mawhinney (See above for address) ATTORNEY TO BE NOTICED

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

Ashley Hoffman Lukis (See above for address)

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 9 of 60

ATTORNEY TO BE NOTICED

Caryl Kilinski Department of Health Office of the General Counsel 4052 Bald Cypress Way Bin A−02 Tallahassee, FL 32399 850−245−4398 Fax: 850−413−8743 Email: caryl_kilinski@doh.state.fl.us ATTORNEY TO BE NOTICED

Nicholas William Romanello Conrad & Scherer 633 S Federal Highway 8th Floor PO Box 14723 Fort Lauderdale, FL 33302−4723 954−462−5500 Fax: 463−9244 Email: Nromanel@hcdpbc.org TERMINATED: 07/31/2012

Defendant
Kristina Wiggins in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children's Medical Services

represented by Jennifer Ann Tschetter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Garrett Austin (See above for address) TERMINATED: 10/19/2015 LEAD ATTORNEY

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

Caryl Kilinski (See above for address) ATTORNEY TO BE NOTICED

Nicholas William Romanello (See above for address) TERMINATED: 07/31/2012

Defendant
eQHealth Solutions, Inc. a Louisiana non−profit corporation TERMINATED: 01/30/2015

represented by Christopher Brian Lunny Radey Thomas Yon & Clark 301 S Bronough Street, Suite 200 PO Box 10967 Tallahassee, FL 32302 850−425−6654 Fax: 850−425−6694 Email: clunny@radeylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harry Osborne Thomas Radey Thomas Yon & Clark 301 S Bronough Street Suite 200 PO Box 10967 Tallahassee, FL 32302 850−425−6654

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 10 of 60

Fax: 425−6694 Email: hthomas@radeylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brittany Adams Long Radey Thomas Yon & Clark 301 South Bronough Suite 200 Tallahassee, FL 32301 850−425−6654 Fax: 850−425−6694 Email: balong@radeylaw.com ATTORNEY TO BE NOTICED

George N. Meros , Jr. (See above for address) TERMINATED: 02/23/2018 ATTORNEY TO BE NOTICED

Lisa Scoles Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street Suite 200 Tallahassee, FL 32301 (850) 425−6654 Fax: (850) 425−6694 Email: lscoles@radeylaw.com TERMINATED: 09/11/2012

Michael Garrett Austin (See above for address) TERMINATED: 10/19/2015

Thomas Ames Crabb Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 Tallahassee, FL 32301 (850) 425−6654 Fax: (850) 425−6694 Email: tcrabb@radeylaw.com ATTORNEY TO BE NOTICED

Defendant
State Surgeon Genera John Armstrong, MD

represented by Michael Garrett Austin (See above for address) TERMINATED: 10/19/2015 LEAD ATTORNEY

Allison Goodson Mawhinney (See above for address) ATTORNEY TO BE NOTICED

Ashley Hoffman Lukis (See above for address) ATTORNEY TO BE NOTICED

George N. Meros , Jr. (See above for address) TERMINATED: 02/23/2018 ATTORNEY TO BE NOTICED

Jay Patrick Reynolds Florida Department of Corrections

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 11 of 60

Office of the General Counsel 501 South Calhoun Street Tallahassee, FL 32399 (850) 717−3605 Fax: (850) 410−3073 Email: Patrick.Reynolds@fdc.myflorida.com ATTORNEY TO BE NOTICED

Defendant Deputy Secretary Dr. Celeste Philip

represented by Michael Garrett Austin (See above for address) TERMINATED: 10/19/2015 LEAD ATTORNEY

Allison Goodson Mawhinney (See above for address) ATTORNEY TO BE NOTICED

Andre Velosy Bardos Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Post Office Box 11189 (32302) Tallahassee, FL 32301 850−577−9090 Fax: 850−577−3311 Email: andy.bardos@gray−robinson.com ATTORNEY TO BE NOTICED

Ashley Hoffman Lukis (See above for address) ATTORNEY TO BE NOTICED

George N. Meros , Jr. (See above for address) TERMINATED: 02/23/2018 ATTORNEY TO BE NOTICED

William Eugene Gandy , Jr. Florida Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin #A−02 Tallahassee, FL 32399−1703 (850) 245−4398 Fax: (850) 245−4790 Email: eugene.gandy@myfloridalegal.com ATTORNEY TO BE NOTICED

Defendant Dennis Cookro

represented by George N. Meros , Jr. (See above for address) TERMINATED: 02/23/2018 ATTORNEY TO BE NOTICED

Defendant
Interim Secretary Justin M. Senior Agency for Health Care Administration

represented by George N. Meros , Jr. (See above for address) TERMINATED: 02/23/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andre Velosy Bardos (See above for address) ATTORNEY TO BE NOTICED

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 12 of 60

Defendant
Cassandra G. Pasley Director of Children's Medical Services

represented by George N. Meros , Jr. (See above for address) TERMINATED: 02/23/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Velosy Bardos (See above for address) ATTORNEY TO BE NOTICED

V. Consol Defendant The State of Florida

represented by Christopher N. Johnson GrayRobinson, P.A. Wells Fargo Building 333 S.E. 2nd Avenue Suite 3200 Miami, FL 33131 305−416−6880 Fax: (305) 416−6887 Email: christopher.johnson@gray−robinson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allison Goodson Mawhinney (See above for address) TERMINATED: 04/18/2017 ATTORNEY TO BE NOTICED
Andre Velosy Bardos (See above for address) TERMINATED: 04/18/2017 ATTORNEY TO BE NOTICED
Andrew T. Sheeran (See above for address) ATTORNEY TO BE NOTICED
Ashley Hoffman Lukis (See above for address) TERMINATED: 04/18/2017 ATTORNEY TO BE NOTICED
George N. Meros , Jr. (See above for address) TERMINATED: 02/23/2018 ATTORNEY TO BE NOTICED
James Timothy Moore , Jr. GrayRobinson 301 South Bronough Street Suite 600 Tallahassee, FL 32312 850−577−9090 Email: tim.moore@gray−robinson.com (Inactive) TERMINATED: 04/18/2017 ATTORNEY TO BE NOTICED
John A. Boudet

Case: 0:12-cv-60460 As of: 05/28/2019 03:05 AM EDT 13 of 60

GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, FL 32801 (407) 843−8880 Fax: (407) 244−5690 Email: john.boudet@gray−robinson.com ATTORNEY TO BE NOTICED

Leslei Gayle Street (See above for address) ATTORNEY TO BE NOTICED

Stuart Fraser Williams (See above for address) ATTORNEY TO BE NOTICED

Amicus
United States of America United States Attorney's Office 99 N.E. 4th Street, 3rd Floor Miami, Fl 33132 305−961−9327

represented by Lindsey Weinstock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Travis W. England (See above for address) TERMINATED: 05/12/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Scott US Department of Justice 950 Pennsylvania Avenue NW NYA Washington, DC 20530 202−305−0449 Email: Angela.Scott2@usdoj.gov TERMINATED: 04/21/2015 ATTORNEY TO BE NOTICED

Elizabeth Erin McDonald (See above for address) ATTORNEY TO BE NOTICED

Veronica Vanessa Harrell−James (See above for address) ATTORNEY TO BE NOTICED

Victoria Thomas (See above for address) ATTORNEY TO BE NOTICED

Joy Levin Welan (See above for address) TERMINATED: 07/21/2015 ATTORNEY TO BE NOTICED

Date Filed 03/13/2012

# Docket Text
1 COMPLAINT − CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants. Filing fee $ 350.00 receipt number 113C−4548818, filed by T.F., M.D., C.V., A.R., C.M., B.M.. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s) Elizabeth Dudek, # 3 Summon(s) Harry Frank Farmer, # 4 Summon(s) Kristina Wiggins, # 5 Summon(s) eQHealth, # 6 Summon(s) Pam Bondi)(Dietz, Matthew) (Entered: 03/13/2012)

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03/13/2012 03/13/2012 03/13/2012 04/03/2012 04/03/2012 04/04/2012 04/04/2012 04/04/2012
04/05/2012 04/09/2012 04/09/2012 04/11/2012
04/19/2012 04/19/2012
04/20/2012 04/20/2012
04/26/2012 04/27/2012 04/30/2012

2 Judge Assignment to Judge William J. Zloch and Magistrate Judge Robin S. Rosenbaum (ar2) (Entered: 03/13/2012)
3 Summons Issued as to Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins, eQHealth Solutions, Inc. (ar2) (Entered: 03/13/2012)
4 Clerks Notice to Filer re: Summons(es) cannot be issued. The party(ies) on the summons(es) does not match the initiating documents. (ar2) (Entered: 03/13/2012)
5 NOTICE of Attorney Appearance by Beverly H Smith on behalf of Elizabeth Dudek (Smith, Beverly) (Entered: 04/03/2012)
6 NOTICE of Attorney Appearance by Andrew T. Sheeran on behalf of Elizabeth Dudek (Sheeran, Andrew) (Entered: 04/03/2012)
7 NOTICE of Attorney Appearance by Harry Osborne Thomas on behalf of eQHealth Solutions, Inc. (Thomas, Harry) (Entered: 04/04/2012)
8 NOTICE of Attorney Appearance by Lisa Scoles on behalf of eQHealth Solutions, Inc. (Scoles, Lisa) (Entered: 04/04/2012)
9 Consent MOTION for Extension of Time to File Answer RE: Complaints re 1 Complaint, by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins, eQHealth Solutions, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order)(Thomas, Harry) (Entered: 04/04/2012)
10 Paperless Order GRANTING Defendants' Motion for Extension of Time to Answer. All Defendants shall have until noon on Friday, April 20, 2012, to respond to Plaintiffs' Complaint.Signed by Judge William J. Zloch on 4/5/2012.(wjz2) (Entered: 04/05/2012)
11 Bar Letter re: Admissions sent to attorneys Jamie Ito and Edward J. Grunewald, mailing date April 9, 2012. (ksa) (Entered: 04/09/2012)
12 Bar Letter re: Admissions sent to attorney Paolo G. Annino, mailing date April 9, 2012. (ksa) (Entered: 04/09/2012)
13 CLERK'S NOTICE re 11 Bar Letter re: Admissions sent to attorneys Jamie Ito and Edward J. Grunewald. Attorneys Jamie Ito and Edward J. Grunewald are members of this Court's Bar. They were admitted to the Southern District of Florida Bar on March 20, 2012. (ksa) (Entered: 04/11/2012)
14 Defendant's MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM and Supporting Memorandum of Law by eQHealth Solutions, Inc.. Responses due by 5/7/2012 (Scoles, Lisa) (Entered: 04/19/2012)
15 Defendant's MOTION Motion to Take Judicial Notice re 14 Defendant's MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM and Supporting Memorandum of Law by eQHealth Solutions, Inc.. (Attachments: # 1 Exhibit A)(Scoles, Lisa) (Entered: 04/19/2012)
16 Consent MOTION for Extension of Time to File Answer RE: Complaints re 1 Complaint, Second Motion for Extension by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Sheeran, Andrew) (Entered: 04/20/2012)
17 PAPERLESS ORDER granting 16 Motion for Extension of Time to Respond to Complaint. Defendants Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. and Kristina Wiggins shall file their response to Plaintiffs' Complaint by Noon, Friday, 4/27/2012. Signed by Judge William J. Zloch on 4/20/2012. (bc) (Entered: 04/20/2012)
18 Unopposed MOTION to Consolidate Cases and Incorporated Memorandum of Law by A.R., B.M., C.M., C.V., M.D., T.F.. Responses due by 5/14/2012 (Attachments: # 1 Text of Proposed Order)(Dietz, Matthew) (Entered: 04/26/2012)
19 MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. Responses due by 5/14/2012 (Sheeran, Andrew) (Entered: 04/27/2012)
20 Clerks Notice to Filer re 19 MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM . Attorney Did Not Associate Themselves; ERROR − Filing attorney

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05/03/2012
05/03/2012
05/11/2012 05/11/2012 05/15/2012 05/15/2012 05/15/2012 05/16/2012 05/16/2012 05/30/2012 05/30/2012
06/01/2012 06/04/2012 06/06/2012 06/07/2012
06/07/2012

neglected to associate themselves to the case. The Clerk has added the attorney to the case. It is not necessary to refile this document future filings must comply with the CM/ECF Administrative Procedures and Local Rules by filing a Notice of Attorney Appearance and linking themselves to the case. (ls) (Entered: 04/30/2012)
21 Unopposed MOTION for Extension of Time to File Response/Reply as to 14 Defendant's MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM and Supporting Memorandum of Law by A.R., B.M., C.M., C.V., M.D., T.F.. (Dietz, Matthew) (Entered: 05/03/2012)
22 PAPERLESS ORDER granting 21 Motion for Extension of Time to Respond to 14 Defendant's Motion to Dismiss 1 Complaint. Plaintiffs shall file their response to Defendants' 14 Motion to Dismiss Complaint by Noon, 5/14/2012. Signed by Judge William J. Zloch on 5/3/2012. (bc) (Entered: 05/03/2012)
23 ORDER of Instructions. Signed by Judge William J. Zloch on 5/11/2012. (bc) (Entered: 05/11/2012)
24 ORDER granting 18 Unopposed Motion to Consolidate Cases. Signed by Judge William J. Zloch on 5/11/2012. (ar2) (Entered: 05/11/2012)
25 MOTION TO DISMISS 1 Complaint, FOR FAILURE TO STATE A CLAIM by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. Responses due by 6/1/2012 (Smith, Beverly) (Entered: 05/15/2012)
26 Unopposed MOTION for Extension of Time to Amend Complaint by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 6/1/2012 (Dietz, Matthew) (Entered: 05/15/2012)
27 ORDER granting 26 Motion for Extension of Time to Amend Complaint. Plaintiffs shall file their Amended Complaint by Noon, 5/18/2012. Signed by Judge William J. Zloch on 5/15/2012. (bc) (Entered: 05/15/2012)
28 NOTICE of Attorney Appearance by Stuart Fraser Williams on behalf of Elizabeth Dudek Associated Cases: 0:12−cv−60460−WJZ, 0:12−cv−60461−WJZ(Williams, Stuart) (Entered: 05/16/2012)
29 Plaintiff's AMENDED COMPLAINT against All Defendants filed in response to Order Granting Motion for Leave, filed by T.F., M.D., A.C., C.V., A.R., C.M., T.H., B.M.. (Attachments: # 1 Exhibit A)(Dietz, Matthew) (Entered: 05/16/2012)
30 Defendant's MOTION TO DISMISS 29 Amended Complaint FOR FAILURE TO STATE A CLAIM and Supporting Memorandum of Law by eQHealth Solutions, Inc.. Responses due by 6/18/2012 (Scoles, Lisa) (Entered: 05/30/2012)
31 Defendant's MOTION for Hearing re 30 Defendant's MOTION TO DISMISS 29 Amended Complaint FOR FAILURE TO STATE A CLAIM and Supporting Memorandum of Law and Request for Oral Argument by eQHealth Solutions, Inc.. (Scoles, Lisa) (Entered: 05/30/2012)
32 MOTION TO DISMISS 29 Amended Complaint FOR FAILURE TO STATE A CLAIM by Elizabeth Dudek. Responses due by 6/18/2012 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Williams, Stuart) (Entered: 06/01/2012)
33 Corporate Disclosure Statement by eQHealth Solutions, Inc. (Thomas, Harry) (Entered: 06/04/2012)
34 SCHEDULING REPORT − Rule 26(f) by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. (Attachments: # 1 Text of Proposed Order)(Dietz, Matthew) (Entered: 06/06/2012)
35 ORDER for Pre−Trial Conference. Pretrial Conference set for 6/14/2013 at 9:30 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by Noon, 5/31/2013. Signed by Judge William J. Zloch on 6/7/2012. (bc) (Entered: 06/07/2012)
36 ORDER REFERRING CASE to Mediation. Signed by Judge William J. Zloch on 6/7/2012. (bc) (Entered: 06/07/2012)

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06/07/2012 06/18/2012 06/18/2012
06/25/2012 06/25/2012 06/26/2012 06/26/2012 06/27/2012 06/28/2012 07/17/2012 07/17/2012 07/20/2012 07/30/2012
07/31/2012 07/31/2012
07/31/2012 07/31/2012 07/31/2012

37 Order on Trial Instructions. Signed by Judge William J. Zloch on 6/7/2012. (bc) (Entered: 06/07/2012)
38 RESPONSE to Motion re 32 MOTION TO DISMISS 29 Amended Complaint FOR FAILURE TO STATE A CLAIM filed by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Replies due by 6/28/2012. (Dietz, Matthew) (Entered: 06/18/2012)
39 RESPONSE to Motion re 30 Defendant's MOTION TO DISMISS 29 Amended Complaint FOR FAILURE TO STATE A CLAIM and Supporting Memorandum of Law filed by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Replies due by 6/28/2012. (Dietz, Matthew) (Entered: 06/18/2012)
40 MOTION for Protective Order by Elizabeth Dudek. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(Smith, Beverly) (Entered: 06/25/2012)
41 ORDER granting 40 Motion for Protective Order. Signed by Judge William J. Zloch on 6/25/2012. (bc) (Entered: 06/25/2012)
42 NOTICE by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. NOTICE OF NO AGREEMENT ON SELECTION OF MEDIATOR (Dietz, Matthew) (Entered: 06/26/2012)
43 PAPERLESS ORDER denying as moot 14 , 15 , 19 and 25 Motions to Dismiss for Failure to State a Claim per Plaintiffs' Amended Complaint 29 . Signed by Judge William J. Zloch on 6/26/2012. (bc) (Entered: 06/26/2012)
44 RESPONSE/REPLY to 39 Response to Motion, Reply to Plaintiffs' Response to eQHealth's Motion to Dismiss and Supporting Memorandum of Law by eQHealth Solutions, Inc.. (Scoles, Lisa) (Entered: 06/27/2012)
45 Statement of: Interest by United States of America (Harrell−James, Veronica) (Entered: 06/28/2012)
46 ORDER denying 30 Motion to Dismiss for Failure to State a Claim; denying as moot 31 Motion for Hearing; denying 32 Motion to Dismiss for Failure to State a Claim. Signed by Judge William J. Zloch on 7/17/2012. (bc) (Entered: 07/17/2012)
47 ORDER REASSIGNING CASE to Judge Robin S. Rosenbaum for all further proceedings, Judge William J. Zloch no longer assigned to case Signed by Judge William J. Zloch on 7/17/2012. (mb) (Entered: 07/17/2012)
48 Clerk's Appointment of Mediator: Robert D McIntosh added (pt) (Entered: 07/20/2012)
49 Amended Scheduling Order and ORDER of REFERRAL to Mediation SCHEDULING ORDER: ( Jury Trial set for 6/17/2013 before Judge Robin S. Rosenbaum., Calendar Call set for 6/13/2013 01:00 PM in Fort Lauderdale Division before Judge Robin S. Rosenbaum., Amended Pleadings due by 8/15/2012., Expert Discovery due by 5/10/2013., Fact Discovery due by 3/26/2013., Joinder of Parties due by 8/15/2012., In Limine Motions due by 6/3/2013., Dispositive Motions due by 4/10/2013., Pretrial Stipulation due by 6/6/2013.) Mediation Deadline 4/15/2013. Signed by Judge Robin S. Rosenbaum on 7/30/2012. (cbr) Modified year of calendar call on 8/1/2012 (wc). (Entered: 07/31/2012)
50 ANSWER and Affirmative Defenses to Amended Complaint by eQHealth Solutions, Inc..(Thomas, Harry) (Entered: 07/31/2012)
51 NOTICE of Substitution of Counsel by Jennifer Ann Tschetter on behalf of Harry Frank Farmer, Jr., M.D., Kristina Wiggins Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ (Tschetter, Jennifer) Modified text on 8/1/2012 (ar2). (Entered: 07/31/2012)
52 ANSWER and Affirmative Defenses to Amended Complaint by Elizabeth Dudek.(Smith, Beverly) (Entered: 07/31/2012)
53 ANSWER and Affirmative Defenses to Amended Complaint by Harry Frank Farmer, Jr., M.D., Kristina Wiggins.(Tschetter, Jennifer) (Entered: 07/31/2012)
Attorney Nicholas William Romanello terminated per DE 51 Notice. Notice of Termination delivered by US Mail to Nicholas Romanello. (ar2) (Entered: 08/01/2012)

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08/03/2012 08/15/2012 08/16/2012
08/17/2012 08/17/2012 08/17/2012 08/20/2012
08/21/2012
08/23/2012 08/24/2012 08/31/2012 09/06/2012 09/06/2012 09/10/2012 09/11/2012

54 NOTICE by Elizabeth Dudek Notice of Appearance of Counsel Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Raleigh, Lisa) (Entered: 08/03/2012)
55 UNOPPOSED MOTION to Amend 29 Amended Complaint and Enlarge Deadlines by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 9/4/2012 (Attachments: # 1 Exhibit Second Amended Complaint)(Dietz, Matthew). Added MOTION to Enlarge Deadlines on 8/16/2012 (ar2). (Entered: 08/15/2012)
56 Clerks Notice to Filer re 55 Unopposed MOTION to Amend/Correct 29 Amended Complaint and Enlarge Deadlines. Motion with Multiple Reliefs Filed as One Relief; ERROR − The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (ar2) (Entered: 08/16/2012)
57 ORDER REQUIRING CLARIFICATION regarding Plaintiffs' Motion to Amend Complaint and Enlarge Deadlines DE 55 . See Order for details. Signed by Judge Robin S. Rosenbaum on 8/17/2012. Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ (kms) Modified link on 8/21/2012 (tp). (Entered: 08/17/2012)
58 RESPONSE to 57 Order and Notice of Scrivener's Error by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Dietz, Matthew) Modified to add missing event [DE 59] Notice (Other) on 8/20/2012 (ar2). (Entered: 08/17/2012)
59 NOTICE of Scrivener's Error by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. (See DE 58 for image). (ar2) (Entered: 08/20/2012)
60 Clerks Notice to Filer re 59 Notice (Other), 58 Response/Reply (Other). Two or More Document Events Filed as One; ERROR − Only one event was selected by the Filer but more than one event was applicable to the document filed. The docket entry was corrected by the Clerk. It is not necessary to refile this document but in the future, the Filer must select all applicable events. (ar2) (Entered: 08/20/2012)
61 ORDER granting 55 Unopposed Motion to Amend Complaint and Enlarge Deadlines. Clerks Notice: Filer must separately re−file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. Motion for Class Certification due by 10/26/2012, Responses due by 11/16/2012; Interim Status Report due by 1/16/2013. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 8/21/2012. (kms) (Entered: 08/21/2012)
62 Second AMENDED COMPLAINT against All Defendants filed in response to Order Granting Motion for Leave, filed by T.F., M.D., A.C., C.V., A.R., C.M., T.H., B.M..(Dietz, Matthew) (Entered: 08/23/2012)
63 NOTICE of Attorney Appearance by Michael Garrett Austin on behalf of Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Austin, Michael) (Entered: 08/24/2012)
64 ANSWER and Affirmative Defenses to Amended Complaint (Second) by eQHealth Solutions, Inc..(Thomas, Harry) (Entered: 08/31/2012)
65 ANSWER and Affirmative Defenses to Amended Complaint by Elizabeth Dudek.Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Austin, Michael) (Entered: 09/06/2012)
66 ANSWER and Affirmative Defenses to Amended Complaint by Harry Frank Farmer, Jr., M.D., Kristina Wiggins.Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Austin, Michael) (Entered: 09/06/2012)
67 MOTION to Withdraw as Attorney for Defendant eQHealth by Lisa C. Scoles. by eQHealth Solutions, Inc.. Responses due by 9/27/2012 (Scoles, Lisa) (Entered: 09/10/2012)
68 PAPERLESS ORDER granting 67 Lisa C. Scoles's Motion to Withdraw as Attorney for Defendant eQHealth Solutions, Inc. Attorneys Harry O. Thomas and Donna E. Blanton will continue to represent Defendant eQHealth in this matter. Attorney Lisa Scoles terminated. Signed by Judge Robin S. Rosenbaum on 9/11/2012. (kms) (Entered:

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09/28/2012 10/03/2012 10/05/2012 10/05/2012 10/10/2012 10/11/2012 10/15/2012
10/15/2012 10/18/2012 10/18/2012
10/24/2012 10/25/2012
11/02/2012 11/02/2012
11/05/2012

09/11/2012)
69 NOTICE of Attorney Appearance by Thomas Ames Crabb on behalf of eQHealth Solutions, Inc. (Crabb, Thomas) (Entered: 09/28/2012)
70 NOTICE of Attorney Appearance by Christopher Brian Lunny on behalf of eQHealth Solutions, Inc. (Lunny, Christopher) (Entered: 10/03/2012)
71 NOTICE of Attorney Appearance by Leslei Gayle Street on behalf of Elizabeth Dudek (Street, Leslei) (Entered: 10/05/2012)
72 Plaintiff's MOTION for Extension of Time to file answers to interrogatories by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 10/22/2012 (Dietz, Matthew) (Entered: 10/05/2012)
73 MOTION to Withdraw as Attorney by Lisa Raleigh. by Elizabeth Dudek. Responses due by 10/29/2012 Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Raleigh, Lisa) (Entered: 10/10/2012)
74 ORDER REFERRING CASE to Ch. Magistrate Judge Barry S. Seltzer for Discovery Proceedings. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 10/11/2012. (kms) (Entered: 10/11/2012)
75 PAPERLESS ORDER requiring that on or before noon on October 18, 2012, Defendants Harry Frank Famer and Kristina Wiggins shall file an expedited response to 72 Plaintiff's MOTION for Enlargement of Time to file Answers to Defendants, Harry Frank Farmer and Kristina Wiggins', First Set of Interrogatories. Signed by Ch. Magistrate Judge Barry S. Seltzer on 10/15/2012. (kas) (Entered: 10/15/2012)
76 ORDER granting 73 Lisa Raleigh's Motion to Withdraw as Counsel for Defendant Agency for Healthcare Administration. Attorney Lisa Maria Raleigh terminated. Signed by Judge Robin S. Rosenbaum on 10/15/2012. (kms) (Entered: 10/15/2012)
77 RESPONSE in Opposition re 72 Plaintiff's MOTION for Extension of Time to file answers to interrogatories filed by Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Austin, Michael) (Entered: 10/18/2012)
78 PAPERLESS ORDER granting in part and denying in part 72 Plaintiffs' Motion for Enlargement of Time to File Answers to Defendant, Harry Frank Farmer and Kristina Wiggins', First Set of Interrogatories. Plaintiff shall have until and including November 2, 2012, to respond to the Interrogatories. Signed by Ch. Magistrate Judge Barry S. Seltzer on 10/18/2012. (kas) (Entered: 10/18/2012)
79 Unopposed MOTION for Extension of Time to file Motion for Class Certification by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 11/13/2012 (Dietz, Matthew) (Entered: 10/24/2012)
80 PAPERLESS ORDER granting in part and denying in part 79 Plaintiffs' Unopposed Motion for Enlargement of Time to File Moton for Class Certification. Plaintiffs shall file their Motion for Class Certification by November 27, 2012, and Defendants shall file their response to the Motion for Class Certification by January 11, 2013. Signed by Judge Robin S. Rosenbaum on 10/25/2012. (kms) (Entered: 10/25/2012)
81 MOTION to Withdraw as Attorney by Beverly H. Smith. by Elizabeth Dudek. Responses due by 11/19/2012 (Smith, Beverly) (Entered: 11/02/2012)
82 Defendant's MOTION for Discovery to Bifurcate and/or Stay Classwide Discovery by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. Responses due by 11/19/2012 (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)(Austin, Michael) (Entered: 11/02/2012)
83 PAPERLESS ORDER granting 81 Beverly H. Smith's Motion to Withdraw as counsel for Defendants Elizabeth Dudek and the Agency for Healthcare Administration. Attorney Beverly H Smith terminated Signed by Judge Robin S. Rosenbaum on 11/5/2012. (kms) (Entered: 11/05/2012)

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11/05/2012 11/06/2012
11/13/2012 11/16/2012 11/16/2012 11/19/2012 11/19/2012 11/20/2012 11/20/2012 11/21/2012 11/23/2012
11/26/2012 11/27/2012 11/27/2012

84 Defendant's MOTION for Extension of Time to Complete Discovery Responses to Plaintiffs' First Interrogatories by Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Text of Proposed Order)(Austin, Michael) (Entered: 11/05/2012)
85 PAPERLESS ORDER granting 84 Defendant DOH's Motion for Extension of Time to Serve Responses to Plaintiffs' First Interrogatories. Defendant DOH shall have until and including November 15, 2012, to serve responses to Plaintiffs' First Set of Interrogatories. Signed by Ch. Magistrate Judge Barry S. Seltzer on 11/6/2012. (kas) (Entered: 11/06/2012)
86 Defendant's MOTION Motion for Cease and Desist Order Regarding Plaintiffs' Improper and Misleading Communications with Putative Class Members by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Austin, Michael) (Entered: 11/13/2012)
87 ORDER Expediting Briefing re 86 Defendant's Motion for Cease and Desist Order Regarding Plaintiffs' Improper and Misleading Communications with Putative Class Members. Plaintiffs' response to the Motion is due by November 23, 2012. Signed by Judge Robin S. Rosenbaum on 11/16/2012. (kms) (Entered: 11/16/2012)
Reset Deadlines as to 86 Defendant's MOTION Motion for Cease and Desist Order Regarding Plaintiffs' Improper and Misleading Communications with Putative Class Members . Responses due by 11/23/2012 (tp) (Entered: 11/20/2012)
88 Unopposed MOTION for Extension of Time to File Response/Reply as to 82 Defendant's MOTION for Discovery to Bifurcate and/or Stay Classwide Discovery by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 11/19/2012)
89 PAPERLESS ORDER granting 88 Plaintiff's Unopposed Motion for Extension of Time to File Response re 82 Defendant's MOTION to Bifurcate and/or Stay Classwide Discovery. Plaintiff's Response is due by 11/20/2012. Signed by Judge Robin S. Rosenbaum on 11/19/2012. (kms) (Entered: 11/19/2012)
90 RESPONSE to Motion re 82 Defendant's MOTION for Discovery to Bifurcate and/or Stay Classwide Discovery filed by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Replies due by 11/30/2012. (Dietz, Matthew) (Entered: 11/20/2012)
91 Plaintiff's MOTION for Leave to File Excess Pages on Plaintiffs' Motion and Memorandum for Class Certification by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Attachments: # 1 Text of Proposed Order)(Dietz, Matthew) (Entered: 11/20/2012)
92 PAPERLESS ORDER granting 91 Plaintiffs' Unopposed Motion for Leave to Exceed Page Limit on Plaintiffs' Motion and Memorandum for Class Certification. Plaintiffs shall be permitted to file a Motion for Class Certification that is 40 pages in length. Signed by Judge Robin S. Rosenbaum on 11/21/2012. (kms) (Entered: 11/21/2012)
93 RESPONSE in Opposition re (86 in 0:12−cv−60460−RSR) Defendant's MOTION Motion for Cease and Desist Order Regarding Plaintiffs' Improper and Misleading Communications with Putative Class Members filed by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Attachments: # 1 Exhibit Exhibit A)Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Ito, Jamie) (Entered: 11/23/2012)
94 ORDER granting in part and denying in part 82 Defendants' Motion to Bifurcate Discovery and/or Motion to Stay Classwide Discovery. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 11/26/2012. (kms) (Entered: 11/26/2012)
95 Plaintiff's MOTION to Certify Class − Plaintiffs' Motion for Class Certification and Incorporated Memorandum of Law by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 12/14/2012 (Attachments: # 1 Exhibit, # 2 Exhibit)(Dietz, Matthew) (Entered: 11/27/2012)
96 NOTICE by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. re 95 Plaintiff's MOTION to Certify Class − Plaintiffs' Motion for Class Certification and Incorporated Memorandum of Law NOTICE OF FILING EXHIBITS IN SUPPORT OF MOTION FOR CLASS CERTIFICATION (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25

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11/30/2012 12/03/2012 12/03/2012 12/04/2012 12/18/2012 12/19/2012 01/16/2013 01/24/2013 01/28/2013
01/29/2013 01/29/2013 01/29/2013
02/08/2013

Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Exhibit, # 42 Exhibit)(Dietz, Matthew) (Entered: 11/27/2012)
97 Unopposed MOTION for Extension of Time UNOPPOSED TO FILE REPLY BRIEF re 93 Response in Opposition to Motion, by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. Responses due by 12/17/2012 (Attachments: # 1 Text of Proposed Order)(Austin, Michael) (Entered: 11/30/2012)
98 PAPERLESS ORDER granting 97 Defendants' Unopposed Motion for Extension of Time to File Reply Brief in Support of Motion for Cease and Desist Order. The reply is now due on 12/4/12. Signed by Judge Robin S. Rosenbaum on 12/3/2012. (kms) (Entered: 12/03/2012)
99 REPLY to Response to Motion re 86 Defendant's MOTION Motion for Cease and Desist Order Regarding Plaintiffs' Improper and Misleading Communications with Putative Class Members filed by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Austin, Michael) (Entered: 12/03/2012)
100 NOTICE by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. re 96 Notice (Other),,, NOTICE OF FILING DECLARATION (Attachments: # 1 Exhibit)(Dietz, Matthew) (Entered: 12/04/2012)
101 Joint MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion for Class Certification by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins, eQHealth Solutions, Inc.. (Attachments: # 1 Text of Proposed Order)(Austin, Michael) (Entered: 12/18/2012)
102 PAPERLESS ORDER granting in part and denying in part 101 Joint Motion for Extension of Time to File Response re 95 Plaintiff's MOTION to Certify Class. Defendants' Response to the Motion to Certify Class is due by 2/11/2013. Signed by Judge Robin S. Rosenbaum on 12/19/2012. (kms) (Entered: 12/19/2012)
103 STATUS REPORT Interim Joint Status Conference by A.C., A.R., B.M., C.M., C.V. (Dietz, Matthew) (Entered: 01/16/2013)
104 Unopposed MOTION for Leave to File Exceed Page Limit for Their Response in Opposition to Plaintiffs' Motion for Class Certification by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Text of Proposed Order)(Austin, Michael) (Entered: 01/24/2013)
105 PAPERLESS ORDER granting 104 Defendants' Unopposed Motion for Leave to Exceed Page Limit for Their Response in Opposition to Plaintiffs' Motion for Class Certification. Defendants shall be permitted to file a Response in Opposition to the Motion for Class Certification that is forty (40) pages in length. Signed by Judge Robin S. Rosenbaum on 1/28/2013. (kms) (Entered: 01/28/2013)
106 NOTICE of Attorney Appearance by Caryl Kilinski on behalf of Harry Frank Farmer, Jr., M.D., Kristina Wiggins Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Kilinski, Caryl) (Entered: 01/29/2013)
107 Unopposed MOTION for Leave to File Excess Pages for Its Response in Opposition to Plaintiffs' Motion for Class Certification by eQHealth Solutions, Inc.. (Attachments: # 1 Text of Proposed Order)(Thomas, Harry) (Entered: 01/29/2013)
108 PAPERLESS ORDER granting 107 Defendant eQHealth's Unopposed Motion for Leave to Exceed Page Limit for Its Response in Opposition to Plaintiffs' Motion for Class Certification. Defendant eQHealth may file a 30−page Response to the Motion for Class Certification. Signed by Judge Robin S. Rosenbaum on 1/29/2013. (kms) (Entered: 01/29/2013)
109 Unopposed MOTION for Extension of Time to File Response/Reply Plaintiffs' Motion for Class Certification by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins, eQHealth Solutions, Inc.. (Attachments: # 1 Text of Proposed Order)(Austin, Michael) (Entered: 02/08/2013)

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02/11/2013 02/14/2013 02/14/2013
02/18/2013 02/18/2013
02/18/2013 02/19/2013
02/19/2013
02/19/2013

110 PAPERLESS ORDER granting 109 Defendants' Unopposed Motion for Extension of Time to File Response re 95 Plaintiff's MOTION to Certify Class. Defendant's Response is now due by 2/19/2013. Signed by Judge Robin S. Rosenbaum on 2/11/2013. (kms) (Entered: 02/11/2013)
111 ORDER re 86 Defendants' Motion for Cease and Desist Order Regarding Plaintiffs' Improper and Misleading Communications with Putative Class Members. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 2/14/2013. (kms) (Entered: 02/14/2013)
112 SECOND AMENDED SCHEDULING ORDER: Granting Joint Motion for Enlargement of Mediation and Discovery Deadlines; Jury Trial re−set for 12/16/2013 in Fort Lauderdale Division before Judge Robin S. Rosenbaum. Calendar Call set for 12/12/2013 01:00 PM in Fort Lauderdale Division before Judge Robin S. Rosenbaum. Expert Discovery due by 11/8/2013. Fact Discovery due by 9/26/2013. Mediation Deadline 10/15/2013. In Limine Motions due by 11/15/2013. Dispositive Motions due by 10/10/2013. Motions due by 11/15/2013. Pretrial Stipulation due by 12/6/2013. Signed by Judge Robin S. Rosenbaum on 2/14/2013. (ls) (Entered: 02/15/2013)
113 RESPONSE in Opposition re 95 Plaintiff's MOTION to Certify Class − Plaintiffs' Motion for Class Certification and Incorporated Memorandum of Law filed by eQHealth Solutions, Inc.. (Thomas, Harry) (Entered: 02/18/2013)
114 RESPONSE in Opposition re 95 Plaintiff's MOTION to Certify Class − Plaintiffs' Motion for Class Certification and Incorporated Memorandum of Law Notice of Filing Exhibits in Support of Memorandum in Opposition to Plaintiffs' Motion for Class Certification filed by eQHealth Solutions, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24)(Thomas, Harry) (Entered: 02/18/2013)
115 NOTICE of Filing Exhibits by eQHealth Solutions, Inc. re 113 Response in Opposition to Motion (ls)(See Image at DE # 114 ) (Entered: 02/19/2013)
116 Clerks Notice to Filer re 114 Response in Opposition to Motion,,,. Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de#115]. It is not necessary to refile this document.Incorrect Document Link; ERROR − The filed document was not correctly linked to the related docket entry. The correction was made by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (ls) (Entered: 02/19/2013)
117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. Responses due by 3/8/2013 (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 1A, # 3 Exhibit Exhibit 1B, # 4 Exhibit Exhibit 1C, # 5 Exhibit Exhibit 1D, # 6 Exhibit Exhibit 1E, # 7 Exhibit Exhibit 1F, # 8 Exhibit Exhibit 1G, # 9 Exhibit Exhibit 1H, # 10 Exhibit Exhibit 1I, # 11 Exhibit Exhibit 2)(Austin, Michael) (Entered: 02/19/2013)
118 RESPONSE in Opposition re 95 Plaintiff's MOTION to Certify Class Motion for Class Certification and Incorporated Memorandum of Law filed by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit Declaration of Shevaun Harris, # 2 Exhibit Exhibit A attachment to Exhibit 1, # 3 Exhibit Exhibit B attachment to Exhibit 1, # 4 Exhibit Exhibit C attachment to Exhibit 1, # 5 Exhibit Exhibit D attachment to Exhibit 1, # 6 Exhibit Exhibit E attachment to Exhibit 1, # 7 Exhibit Exhibit F attachment to Exhibit 1, # 8 Exhibit Exhibit G attachment to Exhibit 1, # 9 Exhibit Exhibit H attachment to Exhibit 1, # 10 Exhibit Exhibit I attachment to Exhibit 1, # 11 Exhibit Exhibit 2 Deposition of Thomas Darling, # 12 Exhibit Exhibit 3Deposition of Marjorie Evans, # 13 Exhibit Exhibit 4 Deposition of Cindy Conway, # 14 Exhibit Exhibit 5 Declaration of Dr. James Langenfeld, # 15 Exhibit Exhibits 1−14 attachment to Exhibit 5, # 16 Exhibit Exhibit 6 Named Plaintiffs Deposition Summaries, # 17 Exhibit Exhibit 7 Paolo Annino Deposition, # 18 Exhibit Exhibit 8 Non−Plaintiff Declarant Summaries, # 19 Exhibit Exhibit 9 Milane Wakizaka Deposition, # 20 Exhibit Exhibit 10 Tammy Hutchison Deposition, # 21 Exhibit Exhibit 11 Susan Root

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02/21/2013 02/26/2013 02/26/2013 02/28/2013
02/28/2013 03/05/2013
03/11/2013 03/14/2013

Deposition, # 22 Exhibit Exhibit 12 Stacey Russell Deposition, # 23 Exhibit Exhibit 13 Seth Hyman Deposition, # 24 Exhibit Exhibit 14 Sharon Picariello Deposition, # 25 Exhibit Exhibit 15 Zurale Calie Deposition, # 26 Exhibit Exhibit 16 Deborah Gout Deposition, # 27 Exhibit Exhibit 17 Juan Lorenzo Deposition, # 28 Exhibit Exhibit 18 Lucia Vargas Deposition, # 29 Exhibit Exhibit 19 Susan Dorsey Deposition, # 30 Exhibit Exhibit 20 Johnette Wahlquist Deposition, # 31 Exhibit Exhibit 21 Kayla Moore Deposition, # 32 Exhibit Exhibit 22 Pamela DeCambra Deposition, # 33 Exhibit Exhibit 23 Gamal Gasser Deposition, # 34 Exhibit Exhibit 24 Stephanie Powell Deposition, # 35 Exhibit Exhibit 25 Elizabeth Fauerbach Deposition, # 36 Exhibit Exhibit 26 Julie Calandro Deposition, # 37 Exhibit Exhibit 27 Debra Thomas−Robeck Deposition, # 38 Exhibit Exhibit 28 Alex Perez Deposition, # 39 Exhibit Exhibit 29 Howard Griffin Deposition, # 40 Exhibit Exhibit 30 Daisy Jaquez Deposition, # 41 Exhibit Exhibit 31 Norine Mitchell Deposition)(Austin, Michael) Modified on 2/20/2013 (ls). (Entered: 02/19/2013)
119 MOTION to Dismiss for Lack of Subject Matter Jurisdiction Due to Mootness and Incorporated Memorandum of Law Re: 62 Second Amended Complaint by eQHealth Solutions, Inc. Responses due by 3/11/2013 (Thomas, Harry) Modified document link on 2/21/2013 (ar2). (Entered: 02/21/2013)
120 Unopposed MOTION for Extension of Time to file Plaintiffs Reply to Defendants Responses to Motion for Class Certification and Responses to Defendants Motions to Dismiss by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 3/15/2013 (Dietz, Matthew) (Entered: 02/26/2013)
121 PAPERLESS ORDER granting 120 Plaintiffs' Unopposed Motion for Extension of Time to File Their Reply to Defendants' Responses to Motion for Class Certification and Responses to Defendants' Motions to Dismiss. Plaintiffs shall file their Reply to the Motion for Class Certification by March 29, 2013, and shall file their Response to the Motions to Dismiss by April 1, 2013. Signed by Judge Robin S. Rosenbaum on 2/26/2013. (kms) (Entered: 02/26/2013)
Reset Deadlines as to 119 Defendant's MOTION to Dismiss for Lack of Jurisdiction 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness , 95 Plaintiff's MOTION to Certify Class − Plaintiffs' Motion for Class Certification and Incorporated Memorandum of Law, 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness. Responses due by 4/1/2013 Replies due by 3/29/2013. (tp) (Entered: 02/28/2013)
122 NOTICE of Compliance (Verified) and Motion for Clarification and/or Stay by A.C. re (111 in 0:12−cv−60460−RSR) Order (Attachments: # 1 Exhibit 1)Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Dietz, Matthew) (Entered: 02/28/2013)
123 PAPERLESS ORDER granting 122 Plaintiffs' request for Clarification of Order Regarding Communications. Previously, the Court issued an Order [D.E. 111] stating that "[a]ny communication between the parties and the putative class members relating in any way to (a) the merits, status, or effect of the class action, or (b) a class member's participation in the action must be in writing and copied to other parties at least 24 hours before it is made." The Court clarifies that Plaintiff's understanding of the intent of the Order is correct. The instruction applies to any mass solicitation or mass mailings to putative class members; it does not apply to routine and ordinary communications with putative class members, communications with the press, or communications with any third party. The instruction applies to both Plaintiffs and Defendants. Signed by Judge Robin S. Rosenbaum on 3/5/2013. (kms) (Entered: 03/05/2013)
124 RESPONSE/REPLY to 122 Notice of Compliance With Order and Motion for Clarification And/Or Stay by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Austin, Michael) (Entered: 03/11/2013)
125 Unopposed MOTION for Leave to File reply to the State Defendants Response to Plaintiffs Verified Notice of Compliance with Court Order and Motion for Clarification and/or Stay by A.C., T.H., A.R., B.M., C.M., C.V., M.D., T.F.. Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Dietz, Matthew) (Entered: 03/14/2013)

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03/25/2013 03/26/2013 03/26/2013
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04/10/2013

126 Unopposed MOTION for Extension of Time to File Response/Reply to Defendants Responses in Opposition of Plaintiffs Motion for Class Certification and to Defendants Motions to Dismiss by A.C., T.H., A.R., B.M., C.M., C.V., M.D., T.F.. Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Dietz, Matthew) (Entered: 03/25/2013)
127 Unopposed MOTION for Extension of Time to File Response/Reply to Defendants Responses in Opposition of Plaintiffs Motion for Class Certification and to Defendants Motions to Dismiss by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 03/26/2013)
128 PAPERLESS ORDER granting 126 Plaintiffs' Second Unopposed Motion for Extension of Time to File Response re 119 Defendant's MOTION to Dismiss for Lack of Jurisdiction and 117 Defendant's MOTION to Dismiss; and Reply to Plaintiffs' MOTION to Certify Class. Plaintiffs' Responses to Defendants' Motions to Dismiss are now due by 4/10/2013 and Plaintiffs' Reply to the Motion for Class Certification is now due by 4/10/2013. Signed by Judge Robin S. Rosenbaum on 3/26/2013. (kms) (Entered: 03/26/2013)
129 ORDER terminating 127 Motion for Extension of Time in light of D.E. 126 and 128. Signed by Judge Robin S. Rosenbaum on 3/26/2013. (kms) (Entered: 03/26/2013)
130 Plaintiff's MOTION for Leave to File Excess Pages on Plaintiffs Reply to Defendants Responses in Opposition to Plaintiffs Motion for Class Certification and for Plaintiffs Response to Defendants Motions to Dismiss by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 03/28/2013)
131 PAPERLESS ORDER granting 130 Plaintiffs' Motion for Leave to Extend Page Limitations. Plaintiffs shall be permitted to file a thirty−page consolidated Reply to Defendants' Responses in Opposition to Motion for Class Certification. Plaintiffs shall also be permitted to file a thirty−page consolidated Response to Defendants' Motions to Dismiss. Signed by Judge Robin S. Rosenbaum on 3/29/2013. (kms) (Entered: 03/29/2013)
132 MOTION State Defendants' Unopposed Motion for an Order Governing Disclosure of Privileged Materials by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit Order)(Austin, Michael) (Entered: 04/02/2013)
133 ORDER granting 132 Unopposed Motion for An Order Governing Disclosure of Privileged Materials. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 4/3/2013. (kms) (Entered: 04/03/2013)
SYSTEM ENTRY − Docket Entry 134 [motion] restricted/sealed until further notice. (mb) (Entered: 04/04/2013)
135 ORDER GRANTING Motion to File Documents Under Seal (DE #134). Signed by Judge Robin S. Rosenbaum on 4/5/2013. (mb) (Entered: 04/05/2013)
136 RESPONSE in Opposition re 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness, 119 Defendant's MOTION to Dismiss for Lack of Jurisdiction 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness Statement of Interest of the United States of America filed by United States of America. (Harrell−James, Veronica) (Entered: 04/10/2013)
137 RESPONSE to Motion re 119 Defendant's MOTION to Dismiss for Lack of Jurisdiction 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness , 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness filed by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Replies due by 4/22/2013. (Attachments: # 1 Exhibit A Part 1, # 2 Exhibit A Part 2, # 3 Exhibit A−7, # 4 Exhibit A−8, # 5 Exhibit A−18, # 6 Exhibit A−20, # 7 Exhibit A−23, # 8 Exhibit A−28, # 9 Exhibit A−39, # 10 Exhibit A−42, # 11 Exhibit A−47, # 12 Exhibit A−54, # 13 Exhibit A−96, # 14 Exhibit A−107, # 15 Exhibit A−113, # 16 Exhibit A−121, # 17 Exhibit A−148, # 18 Exhibit A−160, # 19 Exhibit A−169, # 20 Exhibit A−171, # 21 Exhibit A−181, # 22 Exhibit A−191, # 23 Exhibit A−200, # 24 Exhibit A−207, # 25 Exhibit A−216, # 26 Exhibit A−218, # 27 Exhibit B)(Dietz, Matthew) (Entered: 04/10/2013)

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04/10/2013
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138 REPLY to Response to Motion re (95 in 0:12−cv−60460−RSR) Plaintiff's MOTION to Certify Class − Plaintiffs' Motion for Class Certification and Incorporated Memorandum of Law filed by A.C., T.H., A.R., B.M., C.M., C.V., M.D., T.F.. (Attachments: # 1 Exhibit Ex. 1 AHCA Statements, # 2 Exhibit Ex. 2 eQ Report, # 3 Exhibit Ex. 3 Nathanson Depo, # 4 Exhibit Ex. 4 Draft Rule, # 5 Exhibit Ex. 5 Summary Order, # 6 Exhibit Ex. 6 eQ Composite, # 7 Exhibit Ex. 7 eQ Manual, # 8 Exhibit Ex. 8 Our Kids Email, # 9 Exhibit Ex. 9 Wait List Report, # 10 Exhibit Ex. 10 DOAH Petition, # 11 Exhibit Ex. 11 DOAH Petition(2), # 12 Exhibit Ex. 12 Darling Report, # 13 Exhibit Ex. 13 AC Documents, # 14 Exhibit Ex. 14 AR Documents, # 15 Exhibit Ex. 15 AR Documents(2), # 16 Exhibit Ex. 16 CV Documents, # 17 Exhibit Ex. 17 MD Documents, # 18 Exhibit Ex. 18 MD Documents(2), # 19 Exhibit Ex. 19 BM Documents, # 20 Exhibit Ex. 20 CM Documents, # 21 Exhibit Ex. 21 TF Documents, # 22 Exhibit Ex. 22 AG Documents, # 23 Exhibit Ex. 23 LJ Documents, # 24 Exhibit Ex. 24 TH Documents)Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Ito, Jamie) (Entered: 04/10/2013)
139 MOTION for Extension of Time State Defendants' Unopposed Motion for Extension of Time to file reply to Plainitffs' Response to Defendants' Motion to Dismiss re 137 Response to Motion,,,, ( Responses due by 5/3/2013), MOTION for Extension of Time to File Response/Reply by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit 1)(Austin, Michael) (Entered: 04/16/2013)
140 Unopposed MOTION for Extension of Time to File Response/Reply as to 136 Response in Opposition to Motion,, to Statement of Interest of the United States of America by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit 1)(Austin, Michael) (Entered: 04/17/2013)
141 PAPERLESS ORDER granting 139 State Defendants' Unopposed Motion for Extension of Time to File Reply re 117 MOTION to Dismiss. The State Defendants' Reply is now due by 6/6/2013. Signed by Judge Robin S. Rosenbaum on 4/18/2013. (kms) (Entered: 04/18/2013)
142 PAPERLESS ORDER granting 140 State Defendants' Unopposed Motion for Extension of Time to File Response re 136 Statement of Interest filed by the United States of America. State Defendants' Response to the Statement of Interest is now due by 6/6/2013. Signed by Judge Robin S. Rosenbaum on 4/18/2013. (kms) (Entered: 04/18/2013)
143 Consent MOTION for Leave to File a Surreply in Response to Plaintiffs' Reply in Support of Motion for Class Certification with Memorandum of Law by eQHealth Solutions, Inc.. (Thomas, Harry) (Entered: 04/24/2013)
144 PAPERLESS ORDER granting 143 Unopposed Motion for Leave to File Sur−Reply to Motion for Class Certification. The Sur−Reply is due by May 6, 2013. Signed by Judge Robin S. Rosenbaum on 4/24/2013. (kms) (Entered: 04/24/2013)
145 Unopposed MOTION for Leave to File Surreply in Response to Plaintiffs' Reply In Support of Motion for Class Certification by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Austin, Michael) (Entered: 05/01/2013)
146 MOTION to Strike 137 Response to Motion,,,, Exhibit B [Doc. 137−27] by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. Responses due by 5/20/2013 (Austin, Michael) (Entered: 05/01/2013)
147 NOTICE by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. Suggestion of Death of T.F. (Dietz, Matthew) (Entered: 05/02/2013)
148 PAPERLESS ORDER granting 145 State Defendants' Unopposed Motion for Leave to File Sur−Reply to Motion for Class Certification. The Sur−Reply is due by June 6, 2013. Signed by Judge Robin S. Rosenbaum on 5/2/2013. (kms) (Entered: 05/02/2013)
149 STATEMENT NOTING A PARTY'S DEATH as to T.F. by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. See DE 147 for image (tp) (Entered: 05/03/2013)
150 Clerks Notice to Filer re 147 Notice (Other). Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [de#149]. It is not necessary to refile this document. (tp) (Entered: 05/03/2013)
151 REPLY to Response to Motion re 143 Consent MOTION for Leave to File a Surreply in Response to Plaintiffs' Reply in Support of Motion for Class Certification with

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Memorandum of Law −Defendant eQHealth's Surreply in Response to Plaintiffs' Reply in Support of Motion for Class Certification (DE.138) filed by eQHealth Solutions, Inc.. (Thomas, Harry) (Entered: 05/06/2013)
152 NOTICE by eQHealth Solutions, Inc. re 151 Reply to Response to Motion, Notice of Filing Deposition Transcript Excerpt In Support of its Surreply in Response to Plaintiffs' Reply in Support of Motion for Class Certification (Thomas, Harry) (Entered: 05/06/2013)
153 NOTICE of Attorney Appearance by Brittany Adams Long on behalf of eQHealth Solutions, Inc. (Long, Brittany) (Entered: 05/06/2013)
154 OBJECTION to Inadmissible Opinions of Dr. James Langenfeld by A.C., A.R., B.M., C.M., C.V., M.D., T.H. Re: 118 Response in Opposition to Motion (Dietz, Matthew) Modified text on 5/14/2013 (ar2). (Entered: 05/14/2013)
155 OBJECTION to Inadmissible Statements in the Declaration of Shevaun Harris by A.C., A.R., B.M., C.M., C.V., M.D., T.H. Re: 117 Motion to Dismiss and 118 Response in Opposition to Motion (Attachments: # 1 Exhibit A)(Dietz, Matthew) Modified text on 5/14/2013 (ar2). (Entered: 05/14/2013)
156 RESPONSE in Opposition re 146 MOTION to Strike 137 Response to Motion,,,, Exhibit B [Doc. 137−27] filed by A.C., A.R., B.M., C.M., C.V., M.D., T.H.. (Ito, Jamie) (Entered: 05/15/2013)
157 MOTION for Leave to File Excess Pages State Defendants' Motion for Leave to Exceed Page Limit for their Consolidated Reply Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction Due to Mootness by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Affidavit A)(Austin, Michael) (Entered: 05/15/2013)
158 Notice of Supplemental Authority re 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness, 119 Defendant's MOTION to Dismiss for Lack of Jurisdiction 117 Defendant's MOTION to Dismiss 62 Amended Complaint or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness by M.D., A.C., C.V., A.R., C.M., T.H., B.M. (Dietz, Matthew) (Entered: 05/20/2013)
159 Unopposed MOTION for Extension of Time to File Response/Reply as to 154 Notice (Other) Plaintiffs' Objection to Inadmissible Evidence of Dr. James Langenfeld by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit A)(Austin, Michael) (Entered: 05/21/2013)
160 PAPERLESS ORDER granting 159 State Defendants' Unopposed Motion for Extension of Time to File Response re 154 Plaintiffs' Objection to Inadmissible Evidence of Dr. James Langenfeld. The State Defendants' response is now due by 6/14/2013. Signed by Judge Robin S. Rosenbaum on 5/22/2013. (kms) (Entered: 05/22/2013)
161 REPLY to Response to Motion re 146 MOTION to Strike 137 Response to Motion,,,, Exhibit B [Doc. 137−27] filed by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Austin, Michael) (Entered: 05/28/2013)
162 PAPERLESS ORDER granting 157 State Defendants' Motion for Leave to Exceed Page Limit for Their Consolidated Reply Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction Due to Mootness. The State Defendants may file a Reply memorandum that is twenty pages in length. Signed by Judge Robin S. Rosenbaum on 5/29/2013. (kms) (Entered: 05/29/2013)
163 RESPONSE in Opposition Re: 155 Objection to Inadmissible Statements in the Declaration of Shevaun Harris by Elizabeth Dudek (Attachments: # 1 Exhibit 1 − Declaration of Dudek, # 2 Exhibit 2 − Supplemental Declaration of Harris)(Austin, Michael) Modified text on 6/3/2013 (ar2). (Entered: 05/31/2013)
164 SURREPLY in Response to 138 Reply in Support of Motion for Class Certification by Elizabeth Dudek, Kristina Wiggins, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit 1 − Supplemental Declaration and Expert Report of Dr. James Langenfeld)(Austin, Michael) Modified text on 6/7/2013 (ar2). (Entered: 06/06/2013)

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165 RESPONSE to 136 Statement of Interest of the United States of America by Elizabeth Dudek, Kristina Wiggins, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit 1 − Declaration of Shevaun Harris, # 2 Exhibit 2 − Declaration of Cheryl Collins, # 3 Exhibit 3 − Declaration of Elizabeth Dudek)(Austin, Michael) Modified text on 6/7/2013 (ar2). (Entered: 06/06/2013)
166 REPLY in Support Re: 117 Motion to Dismiss, or Alternatively, for Dismissal in Part, for Lack of Subject Matter Jurisdiction due to Mootness by Elizabeth Dudek, Kristina Wiggins, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit 1 − Declaration of Shevaun Harris, # 2 Exhibit 2 − Declaration Cheryl Collins, # 3 Exhibit 3 − Declaration of Elizabeth Dudek, # 4 Exhibit 4 − Supplemental Declaration of Shevaun Harris, # 5 Exhibit 5 − Declaration of Beth Kidder)(Austin, Michael) Modified text on 6/7/2013 (ar2). (Entered: 06/06/2013)
167 NOTICE by Elizabeth Dudek, Kristina Wiggins, Harry Frank Farmer, Jr., M.D. re 154 Notice (Other) State Defendants Opposition to Plaintiffs Objection to Inadmissible Opinions of Dr. James Langenfeld (Attachments: # 1 Exhibit 1)(Austin, Michael) (Entered: 06/14/2013)
168 STRICKEN. NOTICE of Mediator Selection: Major B. Harding selected.(Austin, Michael) Modified text per DE 171 Notice of Striking on 6/17/2013 (ar2). (Entered: 06/14/2013)
169 Clerks Notice to Filer re 168 Notice of Mediator Selection. Proposed Order Docketed as Main Document; CORRECTIVE ACTION REQUIRED − Filer must File a Notice of Striking, then resubmit the proposed order as instructed in the CM/ECF Administrative Procedures (ar2) (Entered: 06/17/2013)
170 ORDER Scheduling Mediation before Major B. Harding, Esq. Mediation set for 9/25/2013 at 9:30 AM. Signed by Judge Robin S. Rosenbaum on 6/17/2013. (kms) (Entered: 06/17/2013)
171 NOTICE of Striking 168 Notice of Mediator Selection filed by Harry Frank Farmer, Jr., M.D., Kristina Wiggins, Elizabeth Dudek by Elizabeth Dudek, Kristina Wiggins, Harry Frank Farmer, Jr., M.D. (Austin, Michael) (Entered: 06/17/2013)
SYSTEM ENTRY − Docket Entry 172 [motion] restricted/sealed until further notice. (ra) (Entered: 06/20/2013)
173 ORDER granting 172 Sealed Motion. Signed by Judge Robin S. Rosenbaum on 6/28/13. (mg) (Entered: 07/01/2013)
174 MOTION Motion to Excuse Professional Insurance Company's Representative from Attending Mediation re 36 Order Referring Case to Mediation by eQHealth Solutions, Inc.. (Attachments: # 1 Exhibit A−−Errors and Omissions Insurance Policy)(Thomas, Harry) (Entered: 08/01/2013)
175 ORDER denying [117, 119] Motion to Dismiss for Lack of Jurisdiction. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 8/6/2013. (kms) (Entered: 08/06/2013)
176 PAPERLESS ORDER denying as moot 146 Motion to Strike. Signed by Judge Robin S. Rosenbaum on 8/6/2013. (kms) (Entered: 08/06/2013)
177 RESPONSE to Motion re 174 MOTION Motion to Excuse Professional Insurance Company's Representative from Attending Mediation re 36 Order Referring Case to Mediation filed by A.C., A.R., B.M., C.M., C.V., M.D., T.H.. Replies due by 8/22/2013. (Dietz, Matthew) (Entered: 08/12/2013)
178 MOTION State Defendants' Motion Requesting Entry of Order Governing Procedures for De−Identifying Confidential Information by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Attachments: # 1 Exhibit 1 − Text of Proposed Order)(Austin, Michael) (Entered: 08/20/2013)
179 Plaintiff's MOTION to Seal and Substitute Exhibits by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Dietz, Matthew) Unsealed on 9/9/2013 per Order 185 (mg). (Entered: 08/28/2013)

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180 Clerks Notice to Filer re 179 Plaintiff's MOTION to Seal and Substitute Exhibits . Sealed Document Filed Electronically; ERROR − The Filer failed to file a sealed document in the conventional paper format. The document has been restricted and the docket text has been corrected. It is not necessary to refile the document but future sealed filings must be filed in the conventional paper format in accordance with the CM/ECF Administrative Procedures. (mg) (Entered: 08/28/2013)
181 ORDER Setting Hearing on Motion 95 Plaintiff's MOTION to Certify Class. Motion Hearing set for 9/13/2013 at 2:00 PM in Fort Lauderdale Division before Judge Robin S. Rosenbaum. Signed by Judge Robin S. Rosenbaum on 9/3/2013. (kms) (Entered: 09/03/2013)
182 RESPONSE in Opposition re 178 MOTION State Defendants' Motion Requesting Entry of Order Governing Procedures for De−Identifying Confidential Information filed by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 09/03/2013)
183 ORDER Re−Setting Hearing on Motion 95 Plaintiff's MOTION to Certify Class − Plaintiffs' Motion for Class Certification and Incorporated Memorandum of Law : Motion Hearing set for 9/13/2013 at 1:00 PM in Fort Lauderdale Division before Judge Robin S. Rosenbaum. Signed by Judge Robin S. Rosenbaum on 9/4/2013. (kms) (Entered: 09/04/2013)
184 NOTICE of Attorney Appearance by George N. Meros, Jr on behalf of Elizabeth Dudek, John Armstrong, MD, Dr. Celeste Philip. Attorney George N. Meros, Jr added to party Elizabeth Dudek(pty:dft), Attorney George N. Meros, Jr added to party John Armstrong, MD(pty:dft), Attorney George N. Meros, Jr added to party John Armstrong, MD(pty:dft), Attorney George N. Meros, Jr added to party Dr. Celeste Philip(pty:dft), Attorney George N. Meros, Jr added to party Dr. Celeste Philip(pty:dft). Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Meros, George) (Entered: 09/05/2013)
185 ORDER granting 179 Motion to Seal. Signed by Judge Robin S. Rosenbaum on 9/6/13. (mg) (Entered: 09/09/2013)
186 CLERK'S NOTICE of Compliance re 185 Order on Motion to file Documents Under Seal. (mg) (Entered: 09/09/2013)
187 PAPERLESS ORDER granting 174 Defendant eQHealth's Motion to Excuse Its Professional Insurance Company's Representative From Attending Mediation. eQHealth's professional liability insurer, Homeland Insurance Company of New York, and its claims administrator, OneBeacon Professional Insurance, are not required to attend the September 25, 2013, mediation in person. Homeland and OneBeacon, however, must be available by telephone during the entirety of the mediation. Signed by Judge Robin S. Rosenbaum on 9/13/2013. (kms) (Entered: 09/13/2013)
188 REPLY to Response to Motion re 178 MOTION State Defendants' Motion Requesting Entry of Order Governing Procedures for De−Identifying Confidential Information State Defendants' Reply in Support of Motion Requesting Entry of Order Governing Procedures for De−Identifying Confidential Information filed by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Kristina Wiggins. (Austin, Michael) (Entered: 09/13/2013)
213 Paperless Minute Entry for proceedings held before Judge Robin S. Rosenbaum: Motion Hearing held on 9/13/2013 re 95 Plaintiff's MOTION to Certify Class. The Court held a hearing on the Motion to Certify Class. APPEARANCES: Edward Grunewald, Matthew Dietz, Rachel Goldstein, Michael Austin, Rachel Mervis, Stuart Williams, George Meros, Harry Thomas, Brittany Long, Veronica Harrell−James, Justin Park, and Travis England. (Digital 13:09:39.) (rby) (Entered: 11/06/2013)
189 NOTICE of Additional Authority in Support of 95 Motion for Class Certification by C.V., A.R., T.F., M.D., A.C., C.M., T.H., B.M. (Attachments: # 1 Exhibit A)(Dietz, Matthew) Modified to add document link on 9/20/2013 (ar2). (Entered: 09/18/2013)
190 ORDER denying 86 Defendants' Motion for Cease and Desist Order. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 9/19/2013. (kms) (Entered: 09/19/2013)
191 ORDER denying as moot 125 Motion for Leave to File Reply in light of docket entry 190. Signed by Judge Robin S. Rosenbaum on 9/19/2013. (kms) (Entered: 09/19/2013)

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192 MOTION to Consolidate Cases by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 10/7/2013 (Dietz, Matthew) (Entered: 09/19/2013)
193 EMERGENCY MOTION for Representatives to Appear by Telephone by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 10/7/2013 (Dietz, Matthew) Modified text on 9/20/2013 (ar2). (Entered: 09/19/2013)
194 EMERGENCY MOTION to Continue Mediation by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H. Responses due by 10/7/2013 (Dietz, Matthew) Modified text on 9/20/2013 (ar2). (Entered: 09/19/2013)
195 MEMORANDUM of Law in Support of 192 Motion for Consolidation of Related Cases by C.V., A.R., T.F., M.D., A.C., C.M., T.H., B.M. (Dietz, Matthew) Modified text on 9/20/2013 (ar2). (Entered: 09/19/2013)
196 Clerks Notice to Filer Re: 194 EMERGENCY MOTION to Continue Mediation, and 193 EMERGENCY MOTION for Representatives to Appear by Telephone. Emergency Document Filed Electronically; ERROR − Emergency matters may not be filed electronically, they must be filed in the conventional paper format in the division where the judge is chambered. The Clerk contacted Chambers and corrected the docket text to indicate the document is an emergency matter. It is not necessary to refile this document but future filings must comply with the CM/ECF Administrative Procedures and Local Rules. (ar2) (Entered: 09/20/2013)
197 Notice of Supplemental Authority re (118 in 0:12−cv−60460−RSR) Response in Opposition to Motion,,,,,,,,, by Dennis Cookro, Elizabeth Dudek, John Armstrong, MD. Attorney George N. Meros, Jr added to party Elizabeth Dudek(pty:dft), Attorney George N. Meros, Jr added to party Dennis Cookro(pty:dft), Attorney George N. Meros, Jr added to party Dennis Cookro(pty:dft). (Attachments: # 1 Supplement, # 2 Supplement, # 3 Supplement)Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Meros, George) (Entered: 09/20/2013)
198 ORDER denying 194 Motion to Continue Mediation. Signed by Judge Robin S. Rosenbaum on 9/20/2013. (kms) (Entered: 09/20/2013)
199 ORDER granting in part and denying in part 193 Motion for Leave to Appear by Telephone at Mediation. Signed by Judge Robin S. Rosenbaum on 9/20/2013. (kms) (Entered: 09/20/2013)
200 ORDER Staying Pretrial Deadlines. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 9/20/2013. (kms) (Entered: 09/20/2013)
201 UNOPPOSED MOTION to Appear Telephonically for Paolo Annino by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Dietz, Matthew) Modified text on 9/24/2013 (ar2). (Entered: 09/24/2013)
202 PAPERLESS ORDER granting 201 Plaintiffs' Motion for Paolo Annino to appear telephonically at the mediation. The Court finds good cause to grant Plaintiffs' Motion since Mr. Annino is confined to his home because he has pneumonia. Signed by Judge Robin S. Rosenbaum on 9/24/2013. (RSR) (Entered: 09/24/2013)
203 ORDER denying without prejudice 95 Plaintiffs' Motion for Class Certification. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 9/25/2013. (kms) (Entered: 09/25/2013)
204 MEDIATION DISPOSITION REPORT by Major B. Harding. Disposition: Case did not settle.(tpl) (Entered: 09/27/2013)
205 RESPONSE in Opposition re 192 MOTION to Consolidate Cases by Plaintiffs and Incorporated Memorandum of Law filed by eQHealth Solutions, Inc.. (Thomas, Harry) (Entered: 10/07/2013)
206 RESPONSE in Opposition re (192 in 0:12−cv−60460−RSR) MOTION to Consolidate Cases filed by John Armstrong, MD, Elizabeth Dudek, Dr. Celeste Philip. (Attachments: # 1 Exhibit A)Associated Cases: 0:12−cv−60460−RSR, 0:12−cv−60461−WJZ(Meros, George) (Entered: 10/07/2013)

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10/14/2013 10/15/2013
10/15/2013 10/16/2013 10/17/2013 10/24/2013 10/25/2013 11/15/2013
12/06/2013 12/11/2013
12/13/2013 12/17/2013 12/18/2013

207 Unopposed MOTION for Extension of Time Plaintiffs' Reply to Defendants' Response to Plaintiffs Motion to Consolodate by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 10/31/2013 (Dietz, Matthew) (Entered: 10/14/2013)
208 PAPERLESS ORDER denying as moot 207 Plaintiff's Motion for Extension of Time to File Motion for Class Certification. In light of the Court's September 25, 2013, Order [D.E. 203], Plaintiffs were provided with seventy−five days to conduct discovery that bears on the class certification issue. At the end of that period, Plaintiffs are able to re−file their Motion for Class certification. Plaintiffs were advised that they would have ninety days from the date of the September 25th Order to re−file their Motion for Class Certification. In accordance with the Court's prior Order, Plaintiffs have until December 9, 2013, to complete discovery that bears on the class certification issue. Plaintiffs have until December 24, 2013, to re−file their Motion for Class Certification. Defendants shall be permitted until February 24, 2014, to file their response to any re−filed Motion for Class Certification. Signed by Judge Robin S. Rosenbaum on 10/15/2013. (kms) (Entered: 10/15/2013)
209 Unopposed MOTION for Extension of Time TO FILE PLAINTIFFS REPLY TO DEFENDANTS RESPONSE TO PLAINTIFFS MOTION CONSOLIDATE by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. Responses due by 11/1/2013 (Dietz, Matthew) (Entered: 10/15/2013)
210 PAPERLESS ORDER granting 209 Unopposed Motion for Extension of Time to File Reply to Motion to Consolidate. Plaintiffs shall file their reply by 10/25/13. Signed by Judge Robin S. Rosenbaum on 10/16/2013. (kms) (Entered: 10/16/2013)
Set/Reset Deadlines as per DE 210 as to 192 MOTION to Consolidate Cases . Replies due by 10/25/2013. (lk) (Entered: 10/17/2013)
211 REPLY to Response to Motion re 192 MOTION to Consolidate Cases filed by A.C., A.R., B.M., C.M., C.V., M.D., T.H.. (Ito, Jamie) (Entered: 10/24/2013)
212 NOTICE by United States of America re 192 MOTION to Consolidate Cases . Attorney Joy Levin Welan added to party United States of America(pty:am). (Welan, Joy) (Entered: 10/25/2013)
214 TRANSCRIPT of Motion to Certify Class Hearing held on 9/13/2013 before Judge Robin S. Rosenbaum, 1−91 pages, Court Reporter: Jerald M. Meyers, 954−431−4757 / crjm@aol.com. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/9/2013. Redacted Transcript Deadline set for 12/19/2013. Release of Transcript Restriction set for 2/18/2014. (Attachments: # 1 Designation Access Form)(amb) (Entered: 11/15/2013)
215 ORDER granting 192 Motion for Consolidation of Related Cases. Signed by Judge Robin S. Rosenbaum on 12/6/2013. (ar2) (Entered: 12/06/2013)
216 AMENDED SCHEDULING ORDER: ( Trial set for 1/5/2015 before Judge Robin S. Rosenbaum., Calendar Call set for 12/31/2014 at 1:00 PM in Fort Lauderdale Division before Judge Robin S. Rosenbaum., Amended Pleadings due by 5/16/2014., Expert Discovery due by 7/1/2014., Fact Discovery due by 7/1/2014., Joinder of Parties due by 5/16/2014., Dispositive Motions due by 9/11/2014., Pretrial Motions due by 11/3/2014., Pretrial Stipulation due by 11/17/2014., Status Report due by 6/20/2014), and ORDER REFERRING CASE to Mediation. Mediation Deadline 9/16/2014. Signed by Judge Robin S. Rosenbaum on 12/11/2013. (ar2) (Entered: 12/11/2013)
217 Consent MOTION to Amend/Correct 216 Scheduling Order, Order Referring Case to Mediation,,,, by United States of America. Responses due by 12/30/2013 (Welan, Joy) (Entered: 12/13/2013)
218 Unopposed MOTION for Leave to File Excess Pages ON PLAINTIFFS AMENDED MOTION AND MEMORANDUM FOR CLASS CERTIFICATION by A.C., A.R., B.M., C.M., C.V., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 12/17/2013)
219 PAPERLESS ORDER granting 218 Plaintiffs' Unopposed Motion for Leave to File Excess Pages. Plaintiffs may file an Amended Motion for Class Certification that is 40 pages in legnth. Signed by Judge Robin S. Rosenbaum on 12/18/2013. (kms) (Entered:

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12/19/2013
12/19/2013
12/23/2013 12/23/2013 12/23/2013 12/23/2013 12/23/2013 01/02/2014 01/21/2014 01/21/2014 01/23/2014 02/12/2014

12/18/2013)
220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Attorney Jamie Marie Ito added to party A.G.(pty:pla), Attorney Jamie Marie Ito added to party L.J.(pty:pla). Responses due by 1/6/2014 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD)(Ito, Jamie) (Entered: 12/19/2013)
221 SECOND AMENDED SCHEDULING ORDER and ORDER of Referral to Mediation, granting 217 Motion to Amend Scheduling Order. Amended Pleadings due by 5/16/2014. Expert Discovery due by 8/1/2014. Fact Discovery due by 8/1/2014. Joinder of Parties due by 5/16/2014. Mediation Deadline 10/16/2014. Dispositive Motions due by 10/9/2014. In Limine Motions and Daubert Motions due by 12/3/2014. Pretrial Stipulation due by 12/19/2014. Status Report due by 7/18/2014. Calendar Call set for 1/29/2015 at 1:00 PM in Fort Lauderdale Division before Judge Robin S. Rosenbaum. Trial set for 2/2/2015 before Judge Robin S. Rosenbaum. Signed by Judge Robin S. Rosenbaum on 12/19/2013. (ar2) (Entered: 12/20/2013)
222 Unopposed MOTION for Leave to File Excess Pages in Opposition to the State of Florida's Motion for Judgment on the Pleadings by United States of America. (Welan, Joy) (Entered: 12/23/2013)
223 PAPERLESS ORDER granting 222 Unopposed Motion for Leave to File Excess Pages. The United States may file a response to the Motion for Judgment on the Pleadings that is twenty−five pages in length. Signed by Judge Robin S. Rosenbaum on 12/23/2013. (kms) (Entered: 12/23/2013)
224 Unopposed MOTION for Extension of Time to File Response/Reply in Support of Motion for Judgment on the Pleadings by The State of Florida. (Attachments: # 1 Text of Proposed Order)(Meros, George) (Entered: 12/23/2013)
225 PAPERLESS ORDER granting 224 The State of Florida's Motion for Extension of Time to File Reply to Motion for Judgment on the Pleadings. The Reply is now due by 1/23/2014. Signed by Judge Robin S. Rosenbaum on 12/23/2013. (kms) (Entered: 12/23/2013)
226 MEMORANDUM in Opposition to the State of Florida's Motion for Judgment on the Pleadings [D.E. 28 in Case No. 0:13−cv−61576−RSR], filed herein pursuant to Order 215 by United States of America. (Welan, Joy) (Entered: 12/23/2013)
227 NOTICE of Change of Address by Matthew Wilson Dietz. Attorney Matthew Wilson Dietz added to party A.G.(pty:pla), Attorney Matthew Wilson Dietz added to party L.J.(pty:pla). (Dietz, Matthew) (Entered: 01/02/2014)
228 Unopposed MOTION for Leave to File Exceeded Page limit in its Reply in Support of its Motion for Judgment on the Pleadings by The State of Florida. (Meros, George) (Entered: 01/21/2014)
229 PAPERLESS ORDER granting 228 The State of Florida's Unopposed Motion for Leave to Exceed Page Limit in Its Reply in Support of Its Motion for Judgment on the Pleadings. The State of Florida may file a Reply that is 15 pages in length. Signed by Judge Robin S. Rosenbaum on 1/21/2014. (kms) (Entered: 01/21/2014)
230 MEMORANDUM in Support of the State of Florida's Motion for Judgment on the Pleadings [D.E. 28 in Case No. 0:13−cv−61576−RSR], filed herein pursuant to Order 215 by The State of Florida. (Meros, George) (Entered: 01/23/2014)
231 MOTION for Extension of Time to file Response re 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law ( Responses due by 3/3/2014), MOTION for Leave to File Excess Pages by The State of Florida. (Meros, George) (Entered: 02/12/2014)

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02/13/2014
02/24/2014 02/26/2014 02/26/2014 02/28/2014
03/03/2014 03/03/2014
03/07/2014 03/07/2014 03/07/2014 03/17/2014 03/24/2014 03/27/2014

232 PAPERLESS ORDER granting 231 The State Defendants' Motion for Extension of Time to file Response to Motion for Class Certification; granting 231 Motion for Leave to File Excess Pages. The State Defendants' Response to the Motion for Class Certification is now due by March 3, 2014. The State Defendants are permitted to file a Response that is 35 pages in length. Signed by Judge Robin S. Rosenbaum on 2/13/2014. (kms) (Entered: 02/13/2014)
233 RESPONSE in Opposition re 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law filed by eQHealth Solutions, Inc.. (Attachments: # 1 Exhibit A−Supplemental Affidavit of Cheryl Collins, # 2 Exhibit B−Example Denial Letter, # 3 Exhibit C−Excerpt of eQHealth's Criteria and Guidelines)(Thomas, Harry) (Entered: 02/24/2014)
234 Unopposed MOTION for Extension of Time to File Response/Reply as to 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law by A.C., A.G., A.R., B.M., C.M., C.V.. (Dietz, Matthew) (Entered: 02/26/2014)
235 PAPERLESS ORDER granting 234 Unopposed Motion for Extension of Time to File Reply re 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law. Plaintiffs' Reply is now due by 3/17/2014. Signed by Judge Robin S. Rosenbaum on 2/26/2014. (kms) (Entered: 02/26/2014)
236 PAPERLESS ORDER denying 178 State Defendants' Motion Requesting Entry of Order Governing Procedures for De−Indentifying Confidential Information. The Court finds that the the redaction requirements of Federal Rule of Civil Procedure 5.2, the Qualified HIPAA Protective Order (DE 40−2), and the Stipulated Protective Order Governing Confidential Information (DE 40−1) are sufficient to protect the indentity and privacy rights of the putative class members, particularly as the Stipulated Protective Order requires the redaction and/or de−indentification of all PHI (Protected Health Information) pursuant to 45 C.F.R. sec. 164.512(b)(2)(i). Signed by Ch. Magistrate Judge Barry S. Seltzer on 2/28/2014. (kas) (Entered: 02/28/2014)
237 RESPONSE in Opposition re 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law; and Renewed Motion to Dismiss Claims filed by John Armstrong, MD, Dennis Cookro, Elizabeth Dudek. (Meros, George) Modified status/text per Chambers on 10/20/2014 (sk). (Entered: 03/03/2014)
238 NOTICE by Dennis Cookro, Elizabeth Dudek, John Armstrong, MD re 237 Response in Opposition to Motion Notice of Filing Exhibits (Attachments: # 1 Exhibit Supplemental Declaration of Shevaun Harris, # 2 Exhibit Second Supplemental Declaration and Expert Report of Dr. James Langenfeld, # 3 Exhibit Transcript of Deposition of Chuck Browning, # 4 Exhibit Declaration of Mari−Jo Lewis−Wilkinson)(Meros, George) (Entered: 03/03/2014)
239 MOTION for Extension of Time to File Response/Reply as to 233 Response in Opposition to Motion, for Class Certification by A.R.. (Dietz, Matthew) (Entered: 03/07/2014)
240 PAPERLESS ORDER granting 239 Plaintiffs' Unopposed Motion for Extension of Time to File Reply to Renewed Motion for Class Certification 233 . Plaintiffs shall have until March 31, 2014, to file their Reply to the Renewed Motion for Class Certification. Signed by Judge Robin S. Rosenbaum on 3/7/2014. (kms) (Entered: 03/07/2014)
Set/Reset Deadlines as to 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law. Replies due by 3/31/2014. (sk) (Entered: 03/10/2014)
241 REPLY to Response to Motion re 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law filed by A.C., A.G., A.R., B.M., C.M., C.V.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Dietz, Matthew) (Entered: 03/17/2014)
242 Consent MOTION for Protective Order (Modify and Supersede Prior Protective Orders by The State of Florida. (Attachments: # 1 Exhibit)(Meros, George) (Entered: 03/24/2014)
243 PAPERLESS ORDER granting 242 the State of Florida's Consent Motion to Modify and Supercede Prior Protective Orders. The Court will enter a separate Protective Order Governing Confidential Information, which shall modify and supercede the prior

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03/27/2014 03/31/2014 03/31/2014 03/31/2014
04/10/2014 04/15/2014
04/22/2014
05/30/2014
06/16/2014 06/17/2014
06/17/2014 06/17/2014 07/07/2014 07/07/2014 07/08/2014

protective orders entered in these consolidated cases. Signed by Ch. Magistrate Judge Barry S. Seltzer on 3/27/2014. (kas) (Entered: 03/27/2014)
244 PROTECTIVE ORDER GOVERNING CONFIDENTIAL INFORMATION. Signed by Ch. Magistrate Judge Barry S. Seltzer on 3/27/2014. (kas) (Entered: 03/27/2014)
245 Statement of: Noting A Party's Death by A.C., A.G., A.R., B.M., C.M., C.V., M.D., T.F., T.H. (Dietz, Matthew) (Entered: 03/31/2014)
246 REPLY to 220 Renewed Motion for Class Certification by A.C., A.G., A.R., B.M., C.M., C.V., M.D., T.F., T.H. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Dietz, Matthew) Modified to add document link on 4/1/2014 (ar2). (Entered: 03/31/2014)
247 REPLY to Response to Motion re 220 Renewed MOTION to Certify Class and Incorporated Memorandum of Law Statement of Interest of the United States of America filed by United States of America. Attorney Travis W. England added to party United States of America(pty:am). (Attachments: # 1 Exhibit Exhibit A)(England, Travis) (Entered: 03/31/2014)
248 REPLY to 237 Response in Opposition filed by John Armstrong, MD, Dennis Cookro, Elizabeth Dudek. (Meros, George) Modified document link on 4/11/2014 (ar2). (Entered: 04/10/2014)
249 Unopposed MOTION to Amend/Correct 221 Order on Motion to Amend/Correct,, Unopposed Motion to Amend Scheduling Order by United States of America. Responses due by 5/2/2014 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(England, Travis) (Entered: 04/15/2014)
250 THIRD AMENDED SCHEDULING ORDER granting in part 249 Unopposed Motion to Amend Scheduling Order. Amended Pleadings due by 9/25/2014. Expert Discovery due by 10/31/2014. Fact Discovery due by 9/15/2014. Joinder of Parties due by 9/25/2014. Mediation Deadline 12/17/2014. Dispositive Motions due by 12/1/2014. In Limine Motions due by 1/2/2015. Pretrial Stipulation due by 1/21/2015. Status Report due by 11/17/2014. Signed by Judge Robin S. Rosenbaum on 4/22/2014. (ar2) (Entered: 04/22/2014)
251 CLERKS NOTICE REASSIGNING CASE pursuant to Administrative Order 2014−48. Case reassigned to Judge William J. Zloch and Magistrate Judge Patrick M. Hunt for all further proceedings. Judge Robin S. Rosenbaum, Ch. Magistrate Judge Barry S. Seltzer no longer assigned to case. (mb) (Entered: 05/30/2014)
252 NOTICE of Attorney Appearance by Eliza Dermody on behalf of United States of America. Attorney Eliza Dermody added to party United States of America(pty:conpla). (Dermody, Eliza) (Entered: 06/16/2014)
253 ORDER for Pre−Trial Conference. Pretrial Conference set for 1/30/2015 at 9:30 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by Noon, 1/16/2015. Signed by Judge William J. Zloch on 6/17/2014. (bc) (Entered: 06/17/2014)
254 ORDER REFERRING CASE to Mediation. Signed by Judge William J. Zloch on 6/17/2014. (bc) (Entered: 06/17/2014)
255 Order on Trial Instructions. Signed by Judge William J. Zloch on 6/17/2014. (bc) (Entered: 06/17/2014)
256 NOTICE by United States of America re 254 Order Referring Case to Mediation Notice of Selection of Mediator (England, Travis) (Entered: 07/07/2014)
257 NOTICE of Mediator Selection: Dominic M. Caparello selected. (See DE 256 for image).(ar2) (Entered: 07/08/2014)
258 Clerks Notice to Filer re 256 Notice (Other). Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see [DE 257] NOTICE of Mediator Selection. It is not necessary to refile this document. (ar2) (Entered: 07/08/2014)

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07/10/2014 08/08/2014 08/21/2014 08/22/2014 09/09/2014 09/10/2014 09/10/2014 09/10/2014 09/15/2014 09/18/2014 09/19/2014 09/22/2014 09/26/2014
10/06/2014 10/07/2014
10/08/2014

259 Notice of Mediation Hearing before Mediator, Dominic M. Caparello filed by United States of America. Mediation Hearing set for 11/18/2014 09:30 AM (England, Travis) (Entered: 07/10/2014)
260 SUGGESTION OF DEATH as to A.C. by A.G., A.R., B.M., C.M., C.V., M.D., T.F., T.H. (Dietz, Matthew) (Entered: 08/08/2014)
261 MOTION to Withdraw as Attorney by Jamie Ito. by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Responses due by 9/8/2014 (Ito, Jamie) (Entered: 08/21/2014)
262 ORDER granting 261 Motion to Withdraw as Attorney. Attorney Jamie Ito terminated. Signed by Judge William J. Zloch on 8/22/2014. (bc) (Entered: 08/22/2014)
263 ORDER denying without prejudice 220 Motion to Certify Class. Signed by Judge William J. Zloch on 9/9/2014. (bc) (Entered: 09/09/2014)
264 Joint MOTION for Hearing Status Conference by The State of Florida. (Meros, George) (Entered: 09/10/2014)
265 MOTION Motion for Leave to Divide Expert Depositions into Two Sessions re 264 Joint MOTION for Hearing Status Conference by The State of Florida. (Meros, George) (Entered: 09/10/2014)
266 MOTION for Leave to Divide Expert Depositions into Two Sessions re 264 Joint MOTION for Hearing Status Conference by The State of Florida. (Meros, George) Modified text on 9/11/2014 (jua). (Entered: 09/10/2014)
267 NOTICE by United States of America re 250 Order on Motion to Amend/Correct, Joint Notice Regarding Consent to Proceed Before Magistrate (England, Travis) (Entered: 09/15/2014)
268 MOTION eQHealth's Motion to Excuse Its Professional Insurance Co.'s Representative from Attending Mediation re 259 Notice of Mediation Hearing, 254 Order Referring Case to Mediation and Incorporated Memorandum of Law by eQHealth Solutions, Inc.. (Crabb, Thomas) (Entered: 09/18/2014)
269 PAPERLESS ORDER denying as moot 265 Motion for Leave to Divide Expert Depositions into Two Sessions per DE 266 . Signed by Judge William J. Zloch on 9/19/2014. (bc) (Entered: 09/19/2014)
270 ORDER granting 268 Motion to Excuse its Professional Insurance Company's Representatives from Attending Mediation. Signed by Judge William J. Zloch on 9/22/2014. (bc) (Entered: 09/22/2014)
271 RESPONSE in Opposition re 266 MOTION Motion for Leave to Divide Expert Depositions into Two Sessions re 264 Joint MOTION for Hearing Status Conference filed by United States of America. (Attachments: # 1 Exhibit A − ProconGPS, Inc. v. Skypatrol, LLC, # 2 Exhibit B − Alliance of Automobile Manufacturers v. Jones)(Welan, Joy) (Entered: 09/26/2014)
272 REPLY to Response to Motion re 266 MOTION Motion for Leave to Divide Expert Depositions into Two Sessions re 264 Joint MOTION for Hearing Status Conference filed by The State of Florida. (Meros, George) (Entered: 10/06/2014)
273 Plaintiff's MOTION to Compel Production of Email Documents by October 15, 2014 and for Expedited Briefing by United States of America. Responses due by 10/24/2014 (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A − Request for Production of Documents, # 3 Exhibit B − Cacho Deposition, # 4 Exhibit C − Wadsworth Deposition, # 5 Exhibit D − Discovery Stipulation, # 6 Exhibit E − Response to Request for Production, # 7 Exhibit F − Letter 2−24−14, # 8 Exhibit G − Email 3−27−14, # 9 Exhibit H − Letter 4−24−14, # 10 Exhibit I − Letter 5−9−14, # 11 Exhibit J − Letter 5−16−14, # 12 Exhibit K − Email 6−6−14, # 13 Exhibit L − Letter 6−16−14, # 14 Exhibit M − Email 9−24−14, # 15 Exhibit N − Email 9−30−14, # 16 Exhibit O − Email 10−3−14, # 17 Exhibit P − DTI Memorandum, # 18 Exhibit Q − Email 10−6−14, # 19 Exhibit R − Green Deposition)(Welan, Joy) (Entered: 10/07/2014)
274 ORDER Setting Status Conference: Status Conference set for 10/20/2014 at 10:00 AM in Fort Lauderdale Division before Judge William J. Zloch. Signed by Judge William J. Zloch on 10/8/2014. (bc) (Entered: 10/08/2014)

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10/09/2014 10/09/2014
10/09/2014 10/09/2014 10/10/2014
10/13/2014 10/14/2014 10/15/2014
10/15/2014 10/16/2014 10/20/2014 10/21/2014 10/21/2014 11/13/2014

275 ORDER REFERRING CASE to Magistrate Judge Patrick M. Hunt for disposition of all pre−trial non−dispositive motions and a report and recommendation concerning disposition of all dispositive matters. Signed by Judge William J. Zloch on 10/9/2014. (bc) (Entered: 10/09/2014)
276 PAPERLESS ORDER requiring expedited briefing and setting hearing re 273 the United States' Motion to Compel. The State of Florida shall respond to 273 the United States' Motion to Compel by 5:00 p.m. on 10/10/2014. The United States may file a reply to the State's response by 3:00 p.m. on 10/14/2014. Discovery Hearing set for 10/15/2014 10:30 AM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 10/9/2014. (tjs) (Entered: 10/09/2014)
277 CASE REFERRED to Magistrate Judge Patrick M. Hunt for Disposition of all Pre−Trial Non−Dispositive Motions and a Report and Recommendation concerning disposition of all dispositive matters per DE 275 Order. (ar2) (Entered: 10/09/2014)
278 GENERAL ORDER ON DISCOVERY PROCEDURES. Please see Order for details. Signed by Magistrate Judge Patrick M. Hunt on 10/9/2014. (tjs) (Entered: 10/09/2014)
279 RESPONSE in Opposition re 273 Plaintiff's MOTION to Compel Production of Email Documents by October 15, 2014 and for Expedited Briefing filed by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Meros, George) (Entered: 10/10/2014)
280 Unopposed MOTION Appear Telephonically re 274 Order Setting Status Conference, 276 Endorsed Order, Set/Reset Hearings,,,, by The State of Florida, eQHealth Solutions, Inc.. Attorney George N. Meros, Jr added to party eQHealth Solutions, Inc.(pty:dft). (Meros, George) (Entered: 10/13/2014)
281 REPLY to Response to Motion re 273 Plaintiff's MOTION to Compel Production of Email Documents by October 15, 2014 and for Expedited Briefing filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Welan, Joy) (Entered: 10/14/2014)
282 PAPERLESS ORDER denying as moot 273 Motion to Compel. The parties contacted Chambers and informed the Court that their discovery issue was resolved. Accordingly, 273 Motion to Compel is DENIED AS MOOT and the discovery hearing scheduled for 10:30 a.m. on 10/15/2014 is hereby cancelled. Signed by Magistrate Judge Patrick M. Hunt on 10/15/2014. (tjs) (Entered: 10/15/2014)
283 Joint MOTION to Amend/Correct Scheduling Order by United States of America. Responses due by 11/3/2014 (England, Travis) (Entered: 10/15/2014)
284 PAPERLESS ORDER granting 280 Motion for Leave for Certain Counsel to Appear Telephonically at Status Conference. Signed by Judge William J. Zloch on 10/16/2014. (bc) (Entered: 10/16/2014)
285 Minute Entry for proceedings held before Judge William J. Zloch: Status Conference held on 10/20/2014. Court Reporter: Tammy Nestor, 305−523−5635 (bc) (Entered: 10/20/2014)
286 ORDER Resetting Pre−Trial Conference. Pretrial Conference reset for 10/23/2015 at 10:00 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by Noon, 10/9/2015. Signed by Judge William J. Zloch on 10/21/2014. (bc) Modified time of pretrial conference on 10/21/2014 (ar2). (Entered: 10/21/2014)
Reset Hearing due to incorrect time per DE 286 Order. Pretrial Conference set for 10/23/2015 10:00 AM in Fort Lauderdale Division before Judge William J. Zloch. (ar2) (Entered: 10/21/2014)
287 REPORT AND RECOMMENDATIONS re 237 Defendants' Renewed Motion to Dismiss. Recommending 237 Defendants' Renewed Motion to Dismiss be DENIED. Please see R&R for details. Objections to R&R due by 12/1/2014 Signed by Magistrate Judge Patrick M. Hunt on 11/13/2014. (tjs) (Entered: 11/13/2014)

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11/17/2014 11/20/2014 11/20/2014 11/25/2014 11/25/2014 12/01/2014 12/01/2014 12/01/2014 12/03/2014 12/09/2014
12/09/2014 12/09/2014 12/15/2014 12/15/2014
12/15/2014 12/16/2014

288 MOTION to Compel Answers to Interrogatories by The State of Florida. Responses due by 12/4/2014 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Meros, George) (Entered: 11/17/2014)
289 MOTION to Withdraw as Attorney by Jill B. Zaborske. by A.G., A.R., B.M., C.M., C.V., M.D., T.H.. Responses due by 12/8/2014 (Zaborske, Jill) (Entered: 11/20/2014)
290 PAPERLESS ORDER granting 289 Unopposed Motion to Withdraw as Co−Counsel. Attorney Jill B. Zaborske is terminated as co−counsel for Plaintiffs. Attorneys Matthew W. Dietz, Paolo Annino, and Edward Grunewald will continue to represent Plaintiffs. Signed by Magistrate Judge Patrick M. Hunt on 11/20/2014. (tjs) (Entered: 11/20/2014)
291 RESPONSE in Opposition re 288 MOTION to Compel Answers to Interrogatories filed by United States of America. (Attachments: # 1 Exhibit A − DOJ Letter of Findings)(England, Travis) (Entered: 11/25/2014)
292 PAPERLESS ORDER Setting Hearing on 288 Motion to Compel. Motion Hearing set for 12/9/2014 at 10:30 AM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 11/25/2014. (tjs) (Entered: 11/25/2014)
293 OBJECTIONS to 287 Report and Recommendations by John Armstrong, MD, Elizabeth Dudek, The State of Florida. (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 12/01/2014)
294 OBJECTIONS to 287 Report and Recommendations of Magistrate Judge's Report and Recommendation by eQHealth Solutions, Inc.. (Attachments: # 1 Exhibit A−2014 Home Health Services Coverage and Limitations Handbook)(Thomas, Harry) (Entered: 12/01/2014)
295 RESPONSE in Support re 288 MOTION to Compel Answers to Interrogatories filed by The State of Florida. (Meros, George) (Entered: 12/01/2014)
296 NOTICE by The State of Florida re 295 Response in Support of Motion filing of remainder of Reply (Meros, George) (Entered: 12/03/2014)
297 Paperless Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 12/9/2014 re 288 MOTION to Compel Answers to Interrogatories filed by The State of Florida. Daniel Alter, Esq., Leslei Street, Esq.(phone) and Andrew Sheeran, Esq. (phone) appeared on behalf of the State of Florida. Justin Park, Esq. appeared on behalf of the United States of America. Order to follow. (Digital 10:34:12.) (dby) (Entered: 12/09/2014)
298 ORDER granting in part and denying in part 288 Motion to Compel. Please see Order for details. Signed by Magistrate Judge Patrick M. Hunt on 12/9/2014. (tjs) (Entered: 12/09/2014)
299 Plaintiff's MOTION for Protective Order and Incorporated Memorandum of Law by United States of America. (Attachments: # 1 Exhibit A − Declaration of Travis W. England, # 2 Exhibit B − Amended Deposition Notice, # 3 Exhibit C − United States v. Pine)(Welan, Joy) (Entered: 12/09/2014)
300 Unopposed MOTION for Extension of Time to File Response/Reply/Answer to eQHealth Solutions, Inc. Objections to Report and Recommendations (DE 294) by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 12/15/2014)
301 PAPERLESS ORDER granting 300 Motion for Extension of Time to File Response to EQHealth Solutions, Inc. Objections to Report and Recommendation 294 . Plaintiffs shall file their response to Defendant EQHealth Solutions, Inc.'s 294 Objections to Report and Recommendations by Noon, 12/26/2014. Signed by Judge William J. Zloch on 12/15/2014. (bc) (Entered: 12/15/2014)
302 RESPONSE TO OBJECTION to 287 Report and Recommendations filed by State Defendants by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 12/15/2014)
303 RESPONSE to Motion re 299 Plaintiff's MOTION for Protective Order and Incorporated Memorandum of Law filed by The State of Florida. Replies due by 12/26/2014. (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 12/16/2014)

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12/18/2014 12/18/2014
12/22/2014 12/23/2014
12/23/2014 12/28/2014 12/29/2014 12/30/2014 01/12/2015
01/13/2015 01/13/2015 01/13/2015 01/15/2015 01/15/2015 01/22/2015

304 Plaintiff's MOTION for Protective Order (Partial) or in the Alternative to Vacate Order to Stay Class−Wide Discovery by A.G., A.R., B.M., C.M., C.V.. (Attachments: # 1 Exhibit Deposition Notice of Denise Wronowski)(Dietz, Matthew) (Entered: 12/18/2014)
305 ORDER Setting Hearing on Motions 304 Named Plaintiffs' Motion for Protective Order and 299 United States' Motion for Protective Order. Please see Order for details. Motion Hearing set for 1/12/2015 01:30 PM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 12/18/2014. (tjs) (Entered: 12/18/2014)
306 REPLY in Support of re 299 Plaintiff's MOTION for Protective Order and Incorporated Memorandum of Law filed by United States of America. (Attachments: # 1 Exhibit A − Letter of Findings)(Welan, Joy) Modified text on 12/23/2014 (yar). (Entered: 12/22/2014)
307 TRANSCRIPT of status conference held on 10/20/2014 before Judge William J. Zloch, 1−19 pages, Court Reporter: Tammy Nestor, 954−769−5488 / Tammy_Nestor@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/16/2015. Redacted Transcript Deadline set for 1/26/2015. Release of Transcript Restriction set for 3/26/2015. (tnr) (Entered: 12/23/2014)
308 RESPONSE in Opposition re 304 Plaintiff's MOTION for Protective Order (Partial) or in the Alternative to Vacate Order to Stay Class−Wide Discovery filed by The State of Florida. Replies due by 1/2/2015. (Meros, George) (Entered: 12/23/2014)
309 NOTICE of Settlement between Plaintiffs and eQhealth Solutions, Inc. by A.G., A.R., B.M., C.M., C.V. (Dietz, Matthew) (Entered: 12/28/2014)
310 ORDER adopting 287 Report and Recommendations; denying 237 Renewed Motion to Dismiss. Signed by Judge William J. Zloch on 12/29/2014. (jua) (Entered: 12/29/2014)
311 REPLY to Response to Motion re 304 Plaintiff's MOTION for Protective Order (Partial) or in the Alternative to Vacate Order to Stay Class−Wide Discovery filed by A.G., A.R., B.M., C.M., C.V.. (Dietz, Matthew) (Entered: 12/30/2014)
312 Paperless Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 1/12/2015 re 299 Plaintiff's MOTION for Protective Order and Incorporated Memorandum of Law filed by United States of America, 304 Plaintiff's MOTION for Protective Order (Partial) or in the Alternative to Vacate Order to Stay Class−Wide Discovery filed by A.R., A.G., C.M., C.V., B.M.. Matthew Dietz, Esq., Travis England, Esq., Veronica Harrell−James, Esq. and Angela Scott, Esq. appeared on behalf of the Plaintiffs. George Meros, Jr., Esq., Daniel Alter, Esq., Andrew Sheeran, Esq.(phone) and Leslei Street, Esq.(phone) appeared on behalf of the Defendants. Orders to follow. (Digital 13:34:21.) (dby) (Entered: 01/13/2015)
313 ORDER denying 304 Motion for Protective Order, deferring ruling on 304 Motion to Vacate 94 Order Bifurcating Discovery. Please see Order for details. Signed by Magistrate Judge Patrick M. Hunt on 1/13/2015. (tjs) (Entered: 01/13/2015)
314 ORDER (sending out PDF copy of Order to parties) re 313 Order on Motion for Protective Order. Signed by Magistrate Judge Patrick M. Hunt on 1/13/2015. (tjs) Modified status/text per Chambers on 1/13/2015 (sk). (Entered: 01/13/2015)
315 Clerks Notice of Docket Correction re 313 Order on Motion for Protective Order − no document attached. Sent out PDF copy thereof to parties − see 314 Order − for document. Docket Text Modified by Clerk. (sk) (Entered: 01/13/2015)
316 ORDER denying 304 Motion for Protective Order. Signed by Judge William J. Zloch on 1/15/2015. (bc) (Entered: 01/15/2015)
317 ORDER granting in part and denying in part 299 United States' Motion for Protective Order. Please see Order for details. Signed by Magistrate Judge Patrick M. Hunt on 1/15/2015. (tjs) (Entered: 01/15/2015)
318 ORDER TO SHOW CAUSE. Show Cause Response due by 1/30/2015. Signed by Judge William J. Zloch on 1/22/2015. (ar2) (Entered: 01/22/2015)

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01/26/2015 01/30/2015 01/30/2015 01/30/2015 02/02/2015 02/04/2015
02/20/2015 02/25/2015 03/20/2015 04/02/2015 04/03/2015
04/06/2015 04/08/2015 04/08/2015 04/08/2015 04/08/2015

319 Notice of Mediation Hearing before Mediator, Dominic M. Caparello filed by United States of America. Mediation Hearing set for 4/15/2015 09:30 AM (England, Travis) (Entered: 01/26/2015)
320 NOTICE of Attorney Appearance by Lindsey Weinstock on behalf of United States of America, United States of America. Attorney Lindsey Weinstock added to party United States of America(pty:am), Attorney Lindsey Weinstock added to party United States of America(pty:conpla). (Weinstock, Lindsey) (Entered: 01/30/2015)
321 STIPULATION of Dismissal (Joint) with Prejudice between Plaintiffs and eQhealth Solutions, Inc. by C.V., A.R., A.G., A.C., C.M., B.M. (Dietz, Matthew) (Entered: 01/30/2015)
322 Final Order of Dismissal as to Defendant eQHealth Solutions, Inc. Signed by Judge William J. Zloch on 1/30/2015. (bc) (Entered: 01/30/2015)
323 RESPONSE/REPLY to 317 Order on Motion for Protective Order by The State of Florida. (Meros, George) (Entered: 02/02/2015)
324 TRANSCRIPT of Discovery Hearing held on 1/12/2015 before Magistrate Judge Patrick M. Hunt, 1−37 pages, Court Reporter: Jerald M. Meyers, 954−431−4757 / crjm@aol.com. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/2/2015. Redacted Transcript Deadline set for 3/12/2015. Release of Transcript Restriction set for 5/8/2015. (Attachments: # 1 Designation Access Form)(amb) (Entered: 02/04/2015)
325 RESPONSE/REPLY to 323 Response/Reply (Other) Response to State of Florida's Objections by United States of America. (Attachments: # 1 Exhibit A −− 30(b)(6) Deposition Notice)(England, Travis) (Entered: 02/20/2015)
326 NOTICE of Attorney Appearance by Angela Scott on behalf of United States of America. Attorney Angela Scott added to party United States of America(pty:am). (Scott, Angela) (Entered: 02/25/2015)
327 NOTICE/STIPULATION of Substitution of Counsel by Jay Patrick Reynolds on behalf of John Armstrong, MD instead of prior counsel of record Jennifer Tschetter and Caryl Kilinski. . Attorney Jay Patrick Reynolds added to party John Armstrong, MD(pty:dft). (Reynolds, Jay) (Entered: 03/20/2015)
328 NOTICE by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H. Notice of Removal of Counsel (Dietz, Matthew) (Entered: 04/02/2015)
329 Renewed MOTION to Certify Class and Incorporated Mmorandum in Support Thereof by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Responses due by 4/20/2015 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Dietz, Matthew) (Entered: 04/03/2015)
330 Unopposed MOTION MOTION FOR LEAVE TO ALLOW PLAINTIFFS TO APPEAR AT MEDIATION BY TELEPHONE by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 04/06/2015)
331 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 240 Order on Motion for Extension of Time to File Response/Reply/Answer, , MOTION for Leave to File Excess Pages by The State of Florida. (Meros, George) (Entered: 04/08/2015)
332 ORDER Re: 327 Notice of Substitution of Counsel. Signed by Judge William J. Zloch on 4/8/2015. (ar2) (Entered: 04/08/2015)
333 ORDER Re: 328 Notice of Removal of Counsel. Signed by Judge William J. Zloch on 4/8/2015. (ar2) (Entered: 04/08/2015)
334 ORDER denying 330 Motion for Leave to Allow Plaintiffs to Appear at Mediation. Signed by Judge William J. Zloch on 4/8/2015. (ar2) (Entered: 04/08/2015)

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04/08/2015
04/10/2015 04/17/2015 04/17/2015 04/17/2015 04/20/2015 04/20/2015 04/21/2015 04/27/2015 05/04/2015 05/04/2015
05/05/2015 05/05/2015 05/05/2015 05/07/2015 05/08/2015

335 PAPERLESS ORDER granting 331 Unopposed Motion for Extension of Time to File Response to 329 Renewed Motion to Certify Class, and granting Motion for Leave to Exceed Page Limit. Defendants' Response is due on 5/4/2015, and shall not exceed thirty pages in length. Signed by Magistrate Judge Patrick M. Hunt on 4/8/2015. (tjs) (Entered: 04/08/2015)
336 Defendant's MOTION to Dismiss 62 Amended Complaint by The State of Florida. Responses due by 4/27/2015 (Meros, George) (Entered: 04/10/2015)
337 FINAL MEDIATION REPORT by Dominic Caparello. Disposition: Case did not settle.(Findley, Thomas) (Entered: 04/17/2015)
338 MOTION for Sanctions or in the Alternative, to Compel by The State of Florida. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Meros, George) (Entered: 04/17/2015)
339 NOTICE by United States of America of Withdrawal of Appearance by Angela Scott (Welan, Joy) (Entered: 04/17/2015)
340 WITHDRAWAL of Motion by The State of Florida re 336 Defendant's MOTION to Dismiss 62 Amended Complaint filed by The State of Florida (Meros, George) (Entered: 04/20/2015)
341 MOTION for Judgment on the Pleadings by The State of Florida. (Meros, George) (Entered: 04/20/2015)
342 ORDER approving, adopting and ratifying 339 Notice of Withdrawal of Appearance of Attorney Angela Scott. Signed by Judge William J. Zloch on 4/21/2015. (bc) (Entered: 04/21/2015)
343 RESPONSE in Opposition re 338 MOTION for Sanctions or in the Alternative, to Compel filed by United States of America. Replies due by 5/7/2015. (Attachments: # 1 Exhibit Declaration of Jennifer Deines, # 2 Exhibit Declaration of Beth Esposito)(Weinstock, Lindsey) (Entered: 04/27/2015)
344 RESPONSE/REPLY to the Motion for Judgment on the Pleadings filed by Defendants by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 05/04/2015)
345 RESPONSE in Opposition re 329 Renewed MOTION to Certify Class and Incorporated Mmorandum in Support Thereof filed by John Armstrong, MD, Elizabeth Dudek. Replies due by 5/14/2015. (Attachments: # 1 Affidavit Second Supplemental Declaration of Shevaun Harris, # 2 Affidavit Third Supplemental Declaration of Dr. James Langenfeld, # 3 Affidavit Declaration of Ellyn Palermo Theophilopoulos, M.D., J.D.)(Meros, George) (Entered: 05/04/2015)
346 PAPERLESS ORDER Setting Hearing on 338 MOTION for Sanctions or in the Alternative, to Compel. Motion Hearing set for 5/13/2015 10:30 AM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 5/5/2015. (tjs) (Entered: 05/05/2015)
347 RESPONSE in Support re 338 MOTION for Sanctions or in the Alternative, to Compel filed by The State of Florida. (Meros, George) (Entered: 05/05/2015)
348 ORDER STRIKING 347 Reply in Support of 338 Motion for Sanctions. Florida's Reply was due three days after receipt of the United States' Response, 4/30/2015, per 278 this Court's standing discovery order. Accordingly, 347 Florida's Reply is late and is stricken. Signed by Magistrate Judge Patrick M. Hunt on 5/5/2015. (tjs) (Entered: 05/05/2015)
349 Unopposed MOTION for Extension of Time to File Response/Reply/Answer TO DEFENDANTS RESPONSE TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 05/07/2015)
350 PAPERLESS ORDER granting 349 Unopposed Motion for Extension of Time to File Reply and Motion to Exceed Page Limits in re 329 Renewed Motion to Certify Class. Plaintiffs' Reply Brief is due by 6/4/2015 and shall not exceed 15 pages. Signed by Magistrate Judge Patrick M. Hunt on 5/8/2015. (tjs) (Entered: 05/08/2015)

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05/13/2015
05/14/2015 05/19/2015 05/19/2015 05/20/2015 05/28/2015
06/02/2015 06/03/2015 06/04/2015 06/05/2015 06/05/2015 06/08/2015 06/08/2015 06/08/2015 06/08/2015

351 Paperless Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 5/13/2015 re 338 MOTION for Sanctions or in the Alternative, to Compel filed by The State of Florida. Rachel Goldstein, Esq. appeared on behlaf of the individual plaintiffs. H. Justin Park, Esq., Lindsey Weinstock, Esq. and Veronica Harrell−James, Esq. appeared on behalf of the United States of America. George Meros, Jr., Esq. and Evan Apell, Esq. appeared in person and Andrew Sheeran, Esq. Leslei Street, Esq. and Stuart Williams, Esq. appeared by phone on behalf the the State of Florida. Patrick Reynolds, Esq. appeard by phone on behalf of Surgeon General. Order to follow. (Digital 10:34:13.) (dby) (Entered: 05/13/2015)
352 RESPONSE in Support re 341 MOTION for Judgment on the Pleadings filed by John Armstrong, MD, Elizabeth Dudek, The State of Florida. (Meros, George) (Entered: 05/14/2015)
353 Exhibit and Witness List used at hearing on 5/13/2015 by The State of Florida. (dby) (Entered: 05/19/2015)
354 NOTICE of Attorney Appearance by Victoria Thomas on behalf of United States of America. Attorney Victoria Thomas added to party United States of America(pty:conpla). (Thomas, Victoria) (Entered: 05/19/2015)
355 ORDER granting in part and denying in part 338 Motion for Sanctions/Motion to Compel. Please see Order for details. Signed by Magistrate Judge Patrick M. Hunt on 5/20/2015. (tjs) (Entered: 05/20/2015)
356 TRANSCRIPT of discovery hearing held on 5−13−2015 before Magistrate Judge Patrick M. Hunt, 1−41 pages, Court Reporter: Dawn Whitmarsh, 305−523−5598 / Dawn_Whitmarsh@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/22/2015. Redacted Transcript Deadline set for 7/2/2015. Release of Transcript Restriction set for 8/31/2015. (dwh) (Entered: 05/28/2015)
357 Joint MOTION for Extension of Time Joint Motion for time to Serve Objections to Magistrate Judge's Order on Motion for Sanctions/Motion to Compel re 355 Order on Motion for Sanctions by The State of Florida. Responses due by 6/19/2015 (Meros, George) (Entered: 06/02/2015)
358 RESPONSE/REPLY to Defendants' Response to Plaintiffs' Second Renewed Motion For Class Certification by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dietz, Matthew) (Entered: 06/03/2015)
359 PAPERLESS ORDER Setting Hearing on 329 Renewed Motion to Certify Class and 341 Motion for Judgment on the Pleadings. Motion Hearing set for 6/23/2015 10:00 AM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 6/4/2015. (tjs) (Entered: 06/04/2015)
360 MOTION Motion to Modify Schedule and for Status Conference by The State of Florida. (Meros, George) (Entered: 06/05/2015)
361 Joint MOTION for Extension of Time to Serve Expert Disclosures Pending Ruling on State of Florida's Motion to Modify Schedule (D.E. 360) by United States of America. Responses due by 6/22/2015 (England, Travis) (Entered: 06/05/2015)
362 Unopposed MOTION to Continue June 23, 2015 Hearing by The State of Florida. Responses due by 6/25/2015 (Attachments: # 1 Exhibit Affidavit)(Meros, George) (Entered: 06/08/2015)
363 Unopposed MOTION for Leave to File Excess Pages re: forthcoming motion for reconsideration by United States of America. (Weinstock, Lindsey) (Entered: 06/08/2015)
364 PAPERLESS ORDER granting 363 Motion for Leave to File Excess Pages. The United States' motion shall not exceed seven pages. Signed by Magistrate Judge Patrick M. Hunt on 6/8/2015. (tjs) (Entered: 06/08/2015)
365 MOTION for clarification 355 Order on Motion for Sanctions by The State of Florida. Responses due by 6/25/2015 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit

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06/08/2015 06/08/2015 06/09/2015
06/09/2015 06/10/2015 06/12/2015 06/16/2015 06/17/2015 06/17/2015
06/18/2015 06/22/2015 06/22/2015 06/26/2015 06/29/2015 07/02/2015 07/06/2015

C)(Meros, George) (Entered: 06/08/2015)
366 MOTION for Reconsideration re 355 Order on Motion for Sanctions / Motion to Compel by United States of America. (Attachments: # 1 Affidavit Declaration of Beth A. Esposito, # 2 Exhibit A, # 3 Exhibit B)(Welan, Joy) (Entered: 06/08/2015)
367 Corrected MOTION for Reconsideration re 355 Order on Motion for Sanctions / Motion to Compel by United States of America. (Attachments: # 1 Affidavit Declaration of Beth A. Esposito, # 2 Exhibit A, # 3 Exhibit B)(Welan, Joy) (Entered: 06/08/2015)
368 PAPERLESS ORDER granting 362 Motion to Continue Hearing on 329 Renewed Motion to Certify Class and 341 Motion for Judgment on the Pleadings. Hearing reset for 7/14/2015 10:00 AM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 6/9/2015. (tjs) (Entered: 06/09/2015)
369 PAPERLESS ORDER denying as moot 366 Motion for Reconsideration. See 367 Corrected Motion for Reconsideration. Signed by Magistrate Judge Patrick M. Hunt on 6/9/2015. (tjs) (Entered: 06/09/2015)
370 ORDER granting 357 Joint Motion for Extension of Time. Signed by Judge William J. Zloch on 6/10/2015. (ar2) (Entered: 06/10/2015)
371 MOTION for Leave to File Pleading to Add an Affirmative Defense, MOTION to Amend/Correct ( Responses due by 6/29/2015) by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Meros, George) (Entered: 06/12/2015)
372 RESPONSE in Opposition re 367 Corrected MOTION for Reconsideration re 355 Order on Motion for Sanctions / Motion to Compel filed by The State of Florida. Replies due by 6/26/2015. (Meros, George) (Entered: 06/16/2015)
373 ORDER Resetting Pre−Trial Conference. Pretrial Conference set for 5/20/2016 at 9:30 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by Noon, 5/6/2016. Signed by Judge William J. Zloch on 6/17/2015. (bc) (Entered: 06/17/2015)
374 PAPERLESS ORDER denying the Parties' Joint Motion Tor Extension Of Time To Extend Expert Disclosure Deadlines Pending Ruling On Defendant State Of Florida's Motion To Modify Schedule [DE 361] as moot per the Court's Order Resetting Pre−trial Conference [DE 373]. Signed by Judge William J. Zloch on 6/17/2015. (ary) (Entered: 06/17/2015)
375 RESPONSE in Opposition re 365 MOTION for clarification 355 Order on Motion for Sanctions filed by United States of America. Replies due by 6/29/2015. (Attachments: # 1 Affidavit Declaration of Beth A. Esposito)(Weinstock, Lindsey) (Entered: 06/18/2015)
376 REPLY to Response to Motion re 365 MOTION for clarification 355 Order on Motion for Sanctions filed by The State of Florida. (Meros, George) (Entered: 06/22/2015)
377 REPLY to Response to Motion re 367 Corrected MOTION for Reconsideration re 355 Order on Motion for Sanctions / Motion to Compel filed by United States of America. (Weinstock, Lindsey) (Entered: 06/22/2015)
378 ORDER granting 365 Motion for Clarification; denying 367 Motion for Reconsideration. See Order for details. Signed by Magistrate Judge Patrick M. Hunt on 6/26/2015. (tjs) (Entered: 06/26/2015)
379 RESPONSE to Motion re 371 MOTION for Leave to File Pleading to Add an Affirmative Defense MOTION to Amend/Correct filed by United States of America. Replies due by 7/9/2015. (England, Travis) (Entered: 06/29/2015)
380 Notice of Supplemental Authority in support of Plaintiffs Second Renewed Motion for Class Certification (D.E. #329). by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H. (Attachments: # 1 Exhibit) (Dietz, Matthew) (Entered: 07/02/2015)
381 PAPERLESS ORDER granting 371 The State of Florida's Motion for Leave to File Amended Answer and Affirmative Defenses Clerks Notice: Filer must separately re−file

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07/06/2015 07/06/2015 07/06/2015 07/08/2015 07/14/2015
07/15/2015 07/15/2015 07/20/2015 07/21/2015 07/21/2015 07/22/2015 07/22/2015
07/31/2015 08/07/2015

the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. 379 The United States' Response to 371 the State's Motion to Amend indicates that the United States does not oppose the relief requested. Signed by Magistrate Judge Patrick M. Hunt on 7/6/2015. (tjs) (Entered: 07/06/2015)
382 Amended ANSWER and Affirmative Defenses to Complaint by The State of Florida. (Meros, George) (Entered: 07/06/2015)
383 MOTION to Amend/Correct 373 Order on Motion for Miscellaneous Relief, by The State of Florida. Responses due by 7/23/2015 (Meros, George) (Entered: 07/06/2015)
384 Plaintiff's OBJECTION of Magistrate Judge 378 Order on Motion for Clarification, Order on Motion for Reconsideration to District Court (Weinstock, Lindsey) (Entered: 07/06/2015)
385 RESPONSE in Opposition re 383 MOTION to Amend/Correct 373 Order on Motion for Miscellaneous Relief, filed by United States of America. Replies due by 7/20/2015. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Weinstock, Lindsey) (Entered: 07/08/2015)
386 PAPERLESS Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 7/14/2015 re 341 MOTION for Judgment on the Pleadings filed by The State of Florida, 329 Renewed MOTION to Certify Class and Incorporated Mmorandum in Support Thereof filed by A.R., A.G., T.F., C.M., B.M., A.C., T.H., L.J., C.V., M.D. Attys present in court: Paola Annino, Rachel Goldstein, Lindsey Weinstock, Edward Grunewald, Matthew Dietz, George Meros, Daniel Alter. Attys appearing by telephone: Leslei Street, Andrew Sheeran, Patrick Reynolds & Victoria Thomas. Hearing held. Order to follow. (Digital 10:05:09.) (dd) (Entered: 07/14/2015)
387 AMENDED ORDER Resetting Pre−Trial Conference. Pretrial Conference reset for 5/20/2016 at 9:30 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by Noon, 5/16/2016. Signed by Judge William J. Zloch on 7/15/2015. (bc) (Entered: 07/15/2015)
388 PAPERLESS ORDER denying as moot [DE 383] The State Defendants' Motion to Amend Or Correct Order Resetting Pre−Trial Conference per the Court's Amended Order Resetting Pre−Trial Conference [DE 387] Signed by Judge William J. Zloch on 7/15/2015. (ary) (Entered: 07/15/2015)
389 MOTION to Withdraw as Attorney for the United States by Joy Levin Welan. by United States of America. Responses due by 8/6/2015 (Welan, Joy) (Entered: 07/20/2015)
390 PAPERLESS ORDER granting 389 Joy Levin Welan's Motion to Withdraw as Attorney for United States. Attorney Joy Levin Welan terminated. Signed by Magistrate Judge Patrick M. Hunt on 7/21/2015. (tjs) (Entered: 07/21/2015)
391 RESPONSE/REPLY to 384 Plaintiff's OBJECTION of Magistrate Judge 378 Order on Motion for Clarification, Order on Motion for Reconsideration to District Court by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Meros, George) (Entered: 07/21/2015)
392 NOTICE of Attorney Appearance by Elizabeth Erin McDonald on behalf of United States of America. Attorney Elizabeth Erin McDonald added to party United States of America(pty:conpla). (McDonald, Elizabeth) (Entered: 07/22/2015)
393 REPORT AND RECOMMENDATIONS re 341 Defendants' Motion for Judgment on the Pleadings. Recommending 341 Defendants' Motion for Judgment on the Pleadings be GRANTED IN PART and DENIED IN PART. Please see R&R for details. Objections to R&R due by 8/10/2015. Signed by Magistrate Judge Patrick M. Hunt on 7/22/2015. (tjs) (Entered: 07/22/2015)
394 REPLY to Response to Motion re 384 Plaintiff's OBJECTION of Magistrate Judge 378 Order on Motion for Clarification, Order on Motion for Reconsideration to District Court filed by United States of America. (Esposito, Beth) (Entered: 07/31/2015)
395 REPORT AND RECOMMENDATIONS re Named Plaintiffs' 329 Second Renewed Motion to Certify Class. Recommending that Named Plaintiffs' 329 Second Renewed Motion to Certify Class be DENIED. Please see R&R for details. Objections to R&R due

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08/11/2015
08/21/2015 08/24/2015 09/01/2015 09/08/2015 09/08/2015 09/08/2015
09/08/2015 09/09/2015 09/16/2015 09/16/2015
09/16/2015 09/16/2015 09/22/2015 09/24/2015 09/28/2015 09/29/2015

by 8/24/2015. Signed by Magistrate Judge Patrick M. Hunt on 8/7/2015. (tjs) (Entered: 08/07/2015)
396 TRANSCRIPT of Motions Hearing held on 7/14/2015 before Magistrate Judge Patrick M. Hunt, 1−66 pages, Court Reporter: Carl Schanzleh, 305−523−5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/4/2015. Redacted Transcript Deadline set for 9/14/2015. Release of Transcript Restriction set for 11/12/2015. (Attachments: # 1 Designation Access Form)(amb) (Entered: 08/11/2015)
397 OBJECTIONS to 395 Report and Recommendations by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Dietz, Matthew) (Entered: 08/21/2015)
398 OBJECTIONS to 395 Report and Recommendations on Plaintiffs' Second Renewed Motion for Class Certification by The State of Florida. (Meros, George) (Entered: 08/24/2015)
399 ORDER Adopting 393 Report and Recommendations and granting in part and denying in part 341 Motion for Judgment on the Pleadings. Signed by Judge William J. Zloch on 9/1/2015. (bc) (Entered: 09/01/2015)
400 RESPONSE TO OBJECTION to 395 Report and Recommendations by The State of Florida. (Meros, George) (Entered: 09/08/2015)
401 RESPONSE TO OBJECTION to 395 Report and Recommendations by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Attachments: # 1 Exhibit A)(Dietz, Matthew) (Entered: 09/08/2015)
402 MOTION to Compel Answers to Its Seventh Set of Interrogatories by The State of Florida. Responses due by 9/25/2015 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Meros, George) (Entered: 09/08/2015)
403 Statement of: Interest by United States of America re 397 Objections to Report and Recommendations (Thomas, Victoria) (Entered: 09/08/2015)
404 MOTION to Strike 403 Statement of Interest of United States by The State of Florida. Responses due by 9/28/2015 (Meros, George) (Entered: 09/09/2015)
405 MOTION for Protective Order by The State of Florida. (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 09/16/2015)
406 Defendant's MOTION for Leave to File Reply to Plaintiffs' Response to the State Defendants' Objections to the Report and Recommendation on Plaintiffs' Second Renewed Motion for Class Certification by The State of Florida. (Meros, George) (Entered: 09/16/2015)
407 RESPONSE in Opposition re 404 MOTION to Strike 403 Statement of Interest of United States filed by United States of America. Replies due by 9/28/2015. (Thomas, Victoria) (Entered: 09/16/2015)
408 RESPONSE in Opposition re 402 MOTION to Compel Answers to Its Seventh Set of Interrogatories filed by United States of America. Replies due by 9/28/2015. (England, Travis) (Entered: 09/16/2015)
409 REPLY to Response to Motion re 402 MOTION to Compel Answers to Its Seventh Set of Interrogatories filed by The State of Florida. (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 09/22/2015)
410 RESPONSE in Opposition re 405 MOTION for Protective Order filed by United States of America. Replies due by 10/5/2015. (Weinstock, Lindsey) (Entered: 09/24/2015)
411 REPLY to Response to Motion re 404 MOTION to Strike 403 Statement of Interest of United States filed by Elizabeth Dudek. (Meros, George) (Entered: 09/28/2015)
412 MOTION to Withdraw as Attorney for State Defendants by Michael G. Austin and Rachel Mervis. by John Armstrong, MD, Elizabeth Dudek, Dr. Celeste Philip. Attorney Michael Garrett Austin added to party John Armstrong, MD(pty:dft), Attorney Michael

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09/30/2015 10/01/2015 10/02/2015 10/08/2015
10/09/2015 10/12/2015 10/19/2015 10/23/2015
10/26/2015
10/27/2015 10/29/2015 11/19/2015 11/19/2015

Garrett Austin added to party Dr. Celeste Philip(pty:dft). Responses due by 10/16/2015 (Austin, Michael) (Entered: 09/29/2015)
413 RESPONSE to Motion re 406 Defendant's MOTION for Leave to File Reply to Plaintiffs' Response to the State Defendants' Objections to the Report and Recommendation on Plaintiffs' Second Renewed Motion for Class Certification filed by A.C., A.G., A.R., B.M., C.M., C.V., L.J.. Replies due by 10/13/2015. (Dietz, Matthew) (Entered: 09/30/2015)
414 REPLY to Response to Motion re 405 MOTION for Protective Order filed by The State of Florida. (Meros, George) (Entered: 10/01/2015)
415 ORDER SETTING HEARING on 402 Motion to Compel and 405 Motion for Protective Order. Motion Hearing set for 10/8/2015 at 02:00 PM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 10/2/2015. (ahr) (Entered: 10/02/2015)
416 Paperless Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 10/8/2015 re 405 MOTION for Protective Order filed by The State of Florida, 402 MOTION to Compel Answers to Its Seventh Set of Interrogatories filed by The State of Florida. Parties Present: Lindsey Weinstock, Esq., Veronica Harrell−James, Esq., Victoria Thomas, Esq., Rachel Goldstein, Esq., Lisa Goodman, Esq., George Meros, Jr., Esq., Andy Bardos, Esq., Andrew Sheeran, Esq.(phone), Leslei Street, Esq. (phone) and Stuart Williams, Esq. (phone). Order to follow. (Digital 14:03:28.) (dby) (Entered: 10/08/2015)
417 ORDER denying 402 Motion to Compel; denying 405 Motion for Protective Order. Signed by Magistrate Judge Patrick M. Hunt on 10/9/2015. (ahr) (Entered: 10/09/2015)
418 REPLY to Response to Motion re 406 Defendant's MOTION for Leave to File Reply to Plaintiffs' Response to the State Defendants' Objections to the Report and Recommendation on Plaintiffs' Second Renewed Motion for Class Certification filed by The State of Florida. (Meros, George) (Entered: 10/12/2015)
419 ORDER granting 412 Motion to Withdraw as Attorney. Attorney Michael Garrett Austin terminated. Signed by Judge William J. Zloch on 10/19/2015. (bc) (Entered: 10/19/2015)
420 ORDER granting 406 Motion for Leave to File Reply To Plaintiffs Response To The State Defendants Objections To The Report And Recommendation On Plaintiffs Second Renewed Motion For Class Certification (DE 406). Defendants shall file their Reply to Plaintiffs Response To The State Defendants Objections To The Report And Recommendation On Plaintiffs Second Renewed Motion For Class Certification (DE 401) no later than noon on Tuesday, October 27, 2015. Signed by Judge William J. Zloch on 10/23/2015. (bc) (Entered: 10/23/2015)
421 TRANSCRIPT of Motion Hearing held on 10/8/2015 before Magistrate Judge Patrick M. Hunt, 1−48 pages, Court Reporter: Bonnie Joy Lewis, 954−985−8875. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/19/2015. Redacted Transcript Deadline set for 11/30/2015. Release of Transcript Restriction set for 1/28/2016. (Attachments: # 1 Designation Access Form)(amb) (Entered: 10/27/2015)
422 RESPONSE/REPLY to 398 Objections to Report and Recommendations by The State of Florida. (Meros, George) (Entered: 10/27/2015)
423 NOTICE by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H. re 397 Objections to Report and Recommendations NOTICE OF NEW AUTHORITY REGARDING OBJECTIONS TO THE REPORT AND RECOMMENDATION ON PLAINTIFFS SECOND RENEWED MOTION FOR CLASS CERTIFICATION (Attachments: # 1 Exhibit A) (Dietz, Matthew) (Entered: 10/29/2015)
424 Unopposed MOTION for Leave to File Excess Pages re: forthcoming motion to compel by United States of America. (Park, H.) (Entered: 11/19/2015)
425 PAPERLESS ORDER granting 424 Motion for Leave to File Excess Pages. Signed by Magistrate Judge Patrick M. Hunt on 11/19/2015. (ahr) (Entered: 11/19/2015)

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11/19/2015
11/30/2015 12/07/2015 12/11/2015 12/15/2015 12/15/2015 12/15/2015
12/15/2015 12/16/2015 12/17/2015 12/18/2015 12/21/2015 12/22/2015 01/07/2016
01/26/2016

426 MOTION to Compel Complete Answers to Interrogatories by December 15, 2015 by United States of America. Responses due by 12/7/2015 (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, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit L, # 13 Exhibit Exhibit M, # 14 Exhibit Exhibit N)(Weinstock, Lindsey) (Entered: 11/19/2015)
427 RESPONSE in Opposition re 426 MOTION to Compel Complete Answers to Interrogatories by December 15, 2015 filed by The State of Florida. Replies due by 12/10/2015. (Attachments: # 1 Affidavit)(Meros, George) (Entered: 11/30/2015)
428 REPLY to Response to Motion re 426 MOTION to Compel Complete Answers to Interrogatories by December 15, 2015 filed by United States of America. (Park, H.) (Entered: 12/07/2015)
429 ORDER Setting Hearing on Motion 426 MOTION to Compel Complete Answers to Interrogatories by December 15, 2015 : Motion Hearing set for 12/15/2015 02:00 PM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 11/19/2015. (ahr) (Entered: 12/11/2015)
430 AFFIDAVIT in Opposition re 426 MOTION to Compel Complete Answers to Interrogatories by December 15, 2015 Supplemental Affidavit filed by The State of Florida. (Meros, George) (Entered: 12/15/2015)
431 MOTION to Amend/Correct 387 Scheduling Order, 373 Order on Motion for Miscellaneous Relief, by The State of Florida. Responses due by 1/4/2016 (Meros, George) (Entered: 12/15/2015)
432 Paperless Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 12/15/2015 re 426 MOTION to Compel Complete Answers to Interrogatories by December 15, 2015 filed by United States of America, as to 426 MOTION to Compel Complete Answers to Interrogatories by December 15, 2015 . Parties Present: George Meros, Jr., Dan Alter, Esq., Patrick Williams, Esq.(phone), Leslei Street, Esq. (phone), Elizabeth McDonald, Esq., Justin Park, Esq, Lisa Goodman, Esq.( Status Conference set for 1/5/2016 at 02:00 PM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt.). (Digital 14:03:57.) (dby) (Entered: 12/15/2015)
433 *ORDER granting in part, denying in part, and deferring ruling in part on 426 the United States' Motion to Compel. Signed by Magistrate Judge Patrick M. Hunt on 12/15/2015. (ahr) (Entered: 12/15/2015)
434 PAPERLESS ORDER denying 431 Motion to Amend/Correct. Signed by Judge William J. Zloch on 12/16/2015. (dcr) (Entered: 12/16/2015)
435 MOTION for clarification 434 Order on Motion to Amend/Correct by The State of Florida. Responses due by 1/4/2016 (Meros, George) (Entered: 12/17/2015)
436 ORDER overruling 384 Appeal/Objection of Magistrate Judge Order to District Court. Signed by Judge William J. Zloch on 12/18/2015. (bc) (Entered: 12/18/2015)
437 ORDER granting in part and denying in part 435 Motion for Clarification or Reconsideration. Signed by Judge William J. Zloch on 12/21/2015. (jua) (Entered: 12/21/2015)
Set/Reset Hearing. Status Conference pertaining to 426 is reset for 1/7/2016 at 10:00 AM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. (ahr) (Entered: 12/22/2015)
438 PAPERLESS Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Status Conference held on 1/7/2016 re: Motion to Compel Answers to Interrogatories by December 15, 2015. Hearing held. Parties present:ATTYS(DOJ) Justin Park, Elizabeth McDonald and Veronica Harrell−James. ATTYS: Daniel Alter, Evan Appell, (on phone)Leslei Street, Andrew Sherran, Andy Bardos, Matthew Dietz and Charlene Roberts. DAR: 11:00:00. (50 min) (Digital 11:00:00.) (dd) Modified on 1/7/2016 (dd). (Entered: 01/07/2016)
439 TRANSCRIPT of DAR hearing held on 1/7/16 before Magistrate Judge Patrick M. Hunt, 1−34 pages, Court Reporter: Tammy Nestor, 954−769−5488 /

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02/01/2016 02/01/2016
02/03/2016 02/08/2016
02/11/2016 02/18/2016 02/22/2016 02/23/2016 02/29/2016 02/29/2016 03/08/2016 03/11/2016 03/17/2016

Tammy_Nestor@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/19/2016. Redacted Transcript Deadline set for 2/29/2016. Release of Transcript Restriction set for 4/28/2016. (tnr) (Entered: 01/26/2016)
440 MOTION for Leave to File Multiple Motions for Partial Summary Judgment by The State of Florida. (Meros, George) (Entered: 02/01/2016)
441 PAPERLESS ORDER denying 440 the State's Motion for Leave to File Multiple Motions for Partial Summary Judgment. However, due to the complex nature of the case, the undersigned hereby extends the page limitations for filings requesting or opposing summary judgment as follows: the motion shall not exceed thirty (30) pages; the response shall not exceed thirty (30) pages; and the reply, if any, shall not exceed fifteen (15) pages. Signed by Magistrate Judge Patrick M. Hunt on 2/1/2016. (ahr) (Entered: 02/01/2016)
442 Renewed MOTION to Compel Disclosure of Additional Data in Response to One Interrogatory by United States of America. Responses due by 2/22/2016 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Park, H.) (Entered: 02/03/2016)
443 TRANSCRIPT of Proceedings held on 12/15/2015 before Magistrate Judge Patrick M. Hunt, 1−29 pages, Court Reporter: Carl Schanzleh, 305−523−5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/3/2016. Redacted Transcript Deadline set for 3/14/2016. Release of Transcript Restriction set for 5/12/2016. (Attachments: # 1 Designation Access Form)(amb) (Entered: 02/08/2016)
444 RESPONSE to Motion re 442 Renewed MOTION to Compel Disclosure of Additional Data in Response to One Interrogatory filed by The State of Florida. Replies due by 2/22/2016. (Meros, George) (Entered: 02/11/2016)
445 ORDER denying 426 Motion to Compel and granting 442 Renewed Motion to Compel. See Order for details. Signed by Magistrate Judge Patrick M. Hunt on 2/18/2016. (ahr) (Entered: 02/18/2016)
446 MOTION for Extension of Time to File Rebuttal Expert Reports by The State of Florida. Attorney Christopher N. Johnson added to party The State of Florida(pty:condft). Responses due by 3/10/2016 (Attachments: # 1 Exhibit A)(Johnson, Christopher) (Entered: 02/22/2016)
447 PAPERLESS ORDER denying 446 Motion for Extension of Time. Signed by Magistrate Judge Patrick M. Hunt on 2/23/2016. (ahr) (Entered: 02/23/2016)
448 ORDER Adopting in Part 395 Report and Recommendations;denying 329 Motion to Certify Class. Signed by Judge William J. Zloch on 2/29/2016. (bc) (Entered: 02/29/2016)
449 ORDER denying 404 Motion to Strike. Signed by Judge William J. Zloch on 2/29/2016. (bc) (Entered: 02/29/2016)
450 MOTION to Set a June 2016 Trial Date by United States of America. Attorney Elizabeth Erin McDonald added to party United States of America(pty:am). (McDonald, Elizabeth) (Entered: 03/08/2016)
451 MOTION for Fact Cutoff Date of March 14, 2016 by United States of America. (Thomas, Victoria) (Entered: 03/11/2016)
452 NOTICE of Attorney Appearance by Allison Goodson Mawhinney on behalf of John Armstrong, MD, Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Dr. Celeste Philip, The State of Florida. Attorney Allison Goodson Mawhinney added to party John Armstrong, MD(pty:dft), Attorney Allison Goodson Mawhinney added to party Elizabeth Dudek(pty:dft), Attorney Allison Goodson Mawhinney added to party Harry Frank Farmer, Jr., M.D.(pty:dft), Attorney Allison Goodson Mawhinney added to party Dr. Celeste Philip(pty:dft), Attorney Allison Goodson Mawhinney added to party The State of Florida(pty:condft). (Mawhinney, Allison) (Entered: 03/17/2016)

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03/18/2016 03/21/2016 03/21/2016
03/23/2016 03/25/2016 03/28/2016 03/28/2016 04/01/2016 04/05/2016
04/06/2016 04/06/2016
04/07/2016
04/07/2016 04/07/2016

453 STIPULATION of Dismissal with Prejudice by B.M. (Dietz, Matthew) (Entered: 03/18/2016)
454 MOTION for Summary Judgment by The State of Florida. Responses due by 4/7/2016 (Meros, George) (Entered: 03/21/2016)
455 Statement of: Undisputed Material Facts by The State of Florida re 454 MOTION for Summary Judgment (Attachments: # 1 Exhibit Meros Declaration (Part 1 of 2), # 2 Exhibit Meros Declaration (Part 2 of 2), # 3 Exhibit Adler Declaration, # 4 Exhibit Chytka Declaration, # 5 Exhibit Kidder Declaration)(Meros, George) (Entered: 03/21/2016)
456 RESPONSE in Opposition re 450 MOTION to Set a June 2016 Trial Date filed by The State of Florida. Replies due by 4/4/2016. (Meros, George) (Entered: 03/23/2016)
457 Defendant's MOTION in Limine to Preclude Paolo Annino from Testifying and Incorporated Memorandum of Law by The State of Florida. (Meros, George) (Entered: 03/25/2016)
458 MOTION for Protective Order by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Meros, George) (Entered: 03/28/2016)
459 RESPONSE in Opposition re 451 MOTION for Fact Cutoff Date of March 14, 2016 filed by The State of Florida. Replies due by 4/7/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Meros, George) (Entered: 03/28/2016)
460 REPLY to Response to Motion re 450 MOTION to Set a June 2016 Trial Date filed by United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(McDonald, Elizabeth) (Entered: 04/01/2016)
461 NOTICE of Attorney Appearance by Ashley Hoffman Lukis on behalf of John Armstrong, MD, Elizabeth Dudek, Harry Frank Farmer, Jr., M.D., Dr. Celeste Philip, The State of Florida. Attorney Ashley Hoffman Lukis added to party John Armstrong, MD(pty:dft), Attorney Ashley Hoffman Lukis added to party Elizabeth Dudek(pty:dft), Attorney Ashley Hoffman Lukis added to party Harry Frank Farmer, Jr., M.D.(pty:dft), Attorney Ashley Hoffman Lukis added to party Dr. Celeste Philip(pty:dft), Attorney Ashley Hoffman Lukis added to party The State of Florida(pty:condft). (Lukis, Ashley) (Entered: 04/05/2016)
462 ORDER granting 458 Motion for Protective Order. Signed by Magistrate Judge Patrick M. Hunt on 4/6/2016. (ahr) (Entered: 04/06/2016)
463 MOTION to Compel The State of Florida to Produce Signed Declarations of Non−Party Witnesses by United States of America. Responses due by 4/25/2016 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(England, Travis) (Entered: 04/06/2016)
464 MOTION for Reconsideration re 462 Order on Motion for Protective Order by United States of America. (Attachments: # 1 Memorandum in Opposition to Motion for Protective Order, # 2 Exhibit A to Opposition Brief, # 3 Exhibit B to Opposition Brief, # 4 Exhibit C to Opposition Brief, # 5 Exhibit D to Opposition Brief, # 6 Exhibit E to Opposition Brief, # 7 Exhibit F to Opposition Brief, # 8 Exhibit G to Opposition Brief, # 9 Exhibit H to Opposition Brief, # 10 Exhibit I to Opposition Brief, # 11 Exhibit J to Opposition Brief, # 12 Exhibit K to Opposition Brief, # 13 Exhibit L to Opposition Brief, # 14 Exhibit M to Opposition Brief, # 15 Exhibit N to Opposition Brief, # 16 Exhibit O to Opposition Brief, # 17 Exhibit P to Opposition Brief, # 18 Exhibit Q to Opposition Brief, # 19 Exhibit R to Opposition Brief, # 20 Exhibit S to Opposition Brief)(England, Travis) (Entered: 04/07/2016)
465 RESPONSE in Support re 451 MOTION for Fact Cutoff Date of March 14, 2016 filed by United States of America. (Attachments: # 1 Exhibit A)(Thomas, Victoria) (Entered: 04/07/2016)
466 RESPONSE to Motion re 464 MOTION for Reconsideration re 462 Order on Motion for Protective Order filed by The State of Florida. Replies due by 4/18/2016. (Meros, George) (Entered: 04/07/2016)

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04/07/2016 04/07/2016
04/08/2016 04/08/2016 04/11/2016 04/12/2016 04/12/2016 04/12/2016
04/14/2016 04/18/2016 04/18/2016
04/18/2016 04/19/2016

467 RESPONSE in Opposition re 454 MOTION for Summary Judgment filed by United States of America. Replies due by 4/18/2016. (Attachments: # 1 Statement of Material Facts)(Weinstock, Lindsey) (Entered: 04/07/2016)
468 AFFIDAVIT signed by : Travis W. England. re 467 Response in Opposition to Motion for Summary Judgment by United States of America (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V)(Weinstock, Lindsey) (Entered: 04/07/2016)
469 RESPONSE to Motion re 457 Defendant's MOTION in Limine to Preclude Paolo Annino from Testifying and Incorporated Memorandum of Law filed by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Replies due by 4/18/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dietz, Matthew) (Entered: 04/08/2016)
470 ORDER granting in part and denying in part 464 Motion for Reconsideration. Signed by Magistrate Judge Patrick M. Hunt on 4/8/2016. (ahr) (Entered: 04/08/2016)
471 RESPONSE to Motion re 463 MOTION to Compel The State of Florida to Produce Signed Declarations of Non−Party Witnesses filed by The State of Florida. Replies due by 4/21/2016. (Attachments: # 1 Bardos Declaration)(Meros, George) (Entered: 04/11/2016)
472 Unopposed MOTION to Withdraw attorney Rachel L. Goldstein,. Esq. as counsel for Plaintiffs by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. (Attachments: # 1 Text of Proposed Order)(Dietz, Matthew) (Entered: 04/12/2016)
473 PAPERLESS ORDER granting 472 Motion. Signed by Magistrate Judge Patrick M. Hunt on 4/12/2016. (ahr) (Entered: 04/12/2016)
474 PAPERLESS ORDER Setting Hearing on 463 Motion to Compel. At the hearing, Florida shall be prepared to provide the declarations for in camera inspection. Motion Hearing set for 4/19/2016 at 10:00 AM in courtroom 203D in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 4/12/2016. (ahr) (Entered: 04/12/2016)
475 REPLY to Response to Motion re 463 MOTION to Compel The State of Florida to Produce Signed Declarations of Non−Party Witnesses filed by United States of America. (England, Travis) (Entered: 04/14/2016)
476 RESPONSE in Support re 457 Defendant's MOTION in Limine to Preclude Paolo Annino from Testifying and Incorporated Memorandum of Law filed by The State of Florida. (Meros, George) (Entered: 04/18/2016)
477 NOTICE by The State of Florida re 455 Statement, Notice of Filing Certified Copies of Court Orders (Attachments: # 1 Redacted Certified Copy of Order Child 10, # 2 Redacted Certified Copy of Order Child 14, # 3 Redacted Certified Copy of Order Child 38, # 4 Redacted Certified Copy of Order Child 92, # 5 Redacted Certified Copy of Order Child 121, # 6 Redacted Certified Copy of Order Child 124, # 7 Redacted Certified Copy of Order Child 128, # 8 Redacted Certified Copy of Order Child 133, # 9 Redacted Certified Copy of Order Child 154, # 10 Redacted Certified Copy of Order Child 321) (Meros, George) (Entered: 04/18/2016)
478 REPLY to Response to Motion re 454 MOTION for Summary Judgment filed by The State of Florida. (Meros, George) (Entered: 04/18/2016)
479 Paperless Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 4/19/2016 re 463 MOTION to Compel The State of Florida to Produce Signed Declarations of Non−Party Witnesses filed by United States of America. Chrisopher Johnson, Esq and Leslei Street, Esq. (phone) appeared on behalf of the State of Florida. Alana Kuhn, Esq. Justin Park, Esq. and Veronica Harrell−James, Esq. appeared on behalf of the United States of America. Lisa Goodman, Esq (phone) appeared on behalf of the individual Plaintiffs. Order to follow. (Digital 10:13:54.) (dby) (Entered: 04/19/2016)

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04/19/2016 04/19/2016 04/23/2016 05/02/2016 05/03/2016 05/03/2016 05/05/2016 05/05/2016
05/10/2016 05/12/2016
05/13/2016 05/13/2016 05/17/2016

480 MOTION to Dismiss 62 Amended Complaint Suggestion of Mootness as to Plaintiff A.R. by The State of Florida. Responses due by 5/6/2016 (Attachments: # 1 Exhibit Exhibit A Declaration, # 2 Exhibit Exhibit B Deposition Transcript)(Meros, George) (Entered: 04/19/2016)
481 ORDER granting in part and denying in part 463 Motion to Compel. Signed by Magistrate Judge Patrick M. Hunt on 4/19/2016. (ahr) (Entered: 04/19/2016)
482 Unopposed MOTION to Amend/Correct Certain Pretrial Deadlines and Request for Expedited Consideration by The State of Florida. Responses due by 5/12/2016 (Meros, George) (Entered: 04/23/2016)
483 PAPERLESS ORDER Setting Hearing on 480 MOTION to Dismiss 62 Amended Complaint Suggestion of Mootness as to Plaintiff A.R., and 454 MOTION for Summary Judgment : Motion Hearing set for Thursday, 5/12/2016 at 02:00 PM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Signed by Magistrate Judge Patrick M. Hunt on 5/2/2016. (ahr) (Entered: 05/02/2016)
484 ORDER granting 482 Motion to Adjust Pretrial Deadlines and Request for Expedited Consideration. Pretrial Conference reset for 6/17/2016 at 9:30 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by 6/3/2016. Signed by Judge William J. Zloch on 5/3/2016. (bc) (Entered: 05/03/2016)
485 RESPONSE to Motion re 480 MOTION to Dismiss 62 Amended Complaint Suggestion of Mootness as to Plaintiff A.R. filed by A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Replies due by 5/13/2016. (Dietz, Matthew) (Entered: 05/03/2016)
486 NOTICE OF COURTROOM ASSIGNMENT re: 480 MOTION to Dismiss 62 Amended Complaint Suggestion of Mootness as to Plaintiff A.R., and 454 MOTION for Summary Judgment set for 5/12/2016 at 02:00 PM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt will be held in COURTROOM 205C. (dby) (Entered: 05/05/2016)
487 TRANSCRIPT of Hearing on Motions held on 4−19−16 at 10:13 a.m. before Magistrate Judge Patrick M. Hunt, 1−35 pages, Court Reporter: Carly Horenkamp, 305−523−5147 / Carleen_Horenkamp@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/31/2016. Redacted Transcript Deadline set for 6/9/2016. Release of Transcript Restriction set for 8/8/2016. (ch) (Entered: 05/05/2016)
488 RESPONSE in Support re 480 MOTION to Dismiss 62 Amended Complaint Suggestion of Mootness as to Plaintiff A.R. filed by The State of Florida. (Meros, George) (Entered: 05/10/2016)
489 Paperless Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 5/12/2016 re 454 MOTION for Summary Judgment filed by The State of Florida, 480 MOTION to Dismiss 62 Amended Complaint Suggestion of Mootness as to Plaintiff A.R. filed by The State of Florida. Veronica Harrell−James, Esq., Lindsey Weinstock, Esq. and Victoria Thomas, Esq. appeared on behalf of the USA. Matthew Dietz, Esq., Edward Grunewald, Esq. and Lisa Goodman, Esq. appeared on behalf of the Individual Plaintiffs. George Meros, Esq. and Andy Bardos, Esq. appeared on behalf of the State of Florida. Phone appearances: Allison Mawhinne, Esq. and Ashley Lukis, Esq. appeared on behalf of the State of Florida. Leslei Street, Esq. and Andrew Sheehran, Esq appeared on behalf of the Health Care Administration. Patrick Reynolds, Esq. appeared on behalf of the Dept. of Health. Order to follow. (Digital 14:02:50.) (dby) (Entered: 05/13/2016)
490 Unopposed MOTION to Continue Pre−Trial Conference Date re 484 Order on Motion to Amend/Correct, by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Responses due by 5/31/2016 (Dietz, Matthew) (Entered: 05/13/2016)
491 Amended MOTION to Continue Pre−Trial Conference Date re 484 Order on Motion to Amend/Correct, by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Responses due by 5/31/2016 (Dietz, Matthew) (Entered: 05/13/2016)
492 ORDER granting 491 Motion to Continue Pre−Trial Conference.. Pretrial Conference reset for 7/1/2016 at 9:30 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by Noon, 6/17/2016. Signed by Judge William J. Zloch on

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05/18/2016 05/19/2016 05/20/2016 05/25/2016
06/01/2016 06/06/2016 06/06/2016 06/07/2016 06/09/2016 06/13/2016 06/13/2016 06/14/2016 06/14/2016
06/15/2016

5/17/2016. (bc) (Entered: 05/17/2016)
493 MOTION for Leave to File Admitted Trial Exhibits Under Seal by The State of Florida. (Attachments: # 1 Declaration in Support)(Meros, George) (Entered: 05/18/2016)
494 NOTICE of Attorney Appearance by James Timothy Moore, Jr on behalf of The State of Florida. Attorney James Timothy Moore, Jr added to party The State of Florida(pty:condft). (Moore, James) (Entered: 05/19/2016)
495 MOTION to Exclude "Survey" Evidence and Expert Testimony of Dr. Tina Kitchin and Memorandum of Law in Support by The State of Florida. Attorney John A. Boudet added to party The State of Florida(pty:condft). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Boudet, John) (Entered: 05/20/2016)
496 TRANSCRIPT of Motion Hearing held on 5/12/2016 before Magistrate Judge Patrick M. Hunt, 1−105 pages, Court Reporter: Bonnie Joy Lewis, 954−985−8875. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/20/2016. Redacted Transcript Deadline set for 6/30/2016. Release of Transcript Restriction set for 8/26/2016. (Attachments: # 1 Designation Access Form)(amb) (Entered: 05/26/2016)
497 MOTION to Dismiss 62 Amended Complaint as to A.C., T.F., and L.J. by Elizabeth Dudek, Dr. Celeste Philip. Responses due by 6/20/2016 (Meros, George) (Entered: 06/01/2016)
498 RESPONSE in Opposition re 493 MOTION for Leave to File Admitted Trial Exhibits Under Seal filed by United States of America. Replies due by 6/16/2016. (Dermody, Eliza) (Entered: 06/06/2016)
499 RESPONSE in Opposition re 495 MOTION to Exclude "Survey" Evidence and Expert Testimony of Dr. Tina Kitchin and Memorandum of Law in Support filed by United States of America. Replies due by 6/16/2016. (Attachments: # 1 Exhibit A − I)(Thomas, Victoria) (Entered: 06/06/2016)
500 ORDER re 498 Response in Opposition to Motion filed by United States of America. Defendants shall file any Reply by Noon, 6/13/2016. Signed by Judge William J. Zloch on 6/7/2016. (bc) (Entered: 06/07/2016)
501 REPORT AND RECOMMENDATION recommending granting 454 Florida's Motion for Partial Summary Judgment. Objections to R&R due by 6/27/2016 Signed by Magistrate Judge Patrick M. Hunt on 6/9/16. (ahr) (Entered: 06/09/2016)
502 REPLY to Response to Motion re 493 MOTION for Leave to File Admitted Trial Exhibits Under Seal filed by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Meros, George) (Entered: 06/13/2016)
503 ORDER re 501 REPORT AND RECOMMENDATIONS. Objections to Report and Recommendations (DE 501) due by Noon, 6/20/2016. Signed by Judge William J. Zloch on 6/13/2016. (bc) (Entered: 06/13/2016)
504 REPORT AND RECOMMENDATION recommending granting 480 Defendants' Motion to Dismiss Plaintiff A.R.'s claims as moot. Objections to R&R due by 7/1/2016 Signed by Magistrate Judge Patrick M. Hunt on 6/14/16. (ahr) (Entered: 06/14/2016)
505 PAPERLESS ORDER requiring expedited response and reply to 497 Defendants' Motion to Dismiss A.C. T.F., and L.J.'s claims, which was filed June 1, 2016. Plaintiffs shall file a response on or before Friday, June 17, 2016, at noon. Defendants shall file a reply on or before Wednesday, June 22, 2016, at noon. Signed by Magistrate Judge Patrick M. Hunt on 6/14/2016. (ahr) (Entered: 06/14/2016)
506 PAPERLESS ORDER amending 505 . Plaintiffs shall file their response to 497 on or before Monday, June 20, 2016. Defendants shall file their reply on or before Friday, June 24, 2016, at noon. Signed by Magistrate Judge Patrick M. Hunt on 6/15/2016. (ahr) (Entered: 06/15/2016)

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06/15/2016 06/16/2016
06/17/2016
06/20/2016 06/20/2016 06/20/2016
06/23/2016 06/23/2016 06/24/2016
06/24/2016 06/24/2016
06/27/2016 06/27/2016 06/27/2016 06/27/2016 06/29/2016 06/29/2016

507 ORDER re 504 REPORT AND RECOMMENDATIONS. Parties shall file any objections to Report and Recommendation by Noon, 6/24/2016. Signed by Judge William J. Zloch on 6/15/2016. (bc) (Entered: 06/15/2016)
508 RESPONSE to Motion re 495 MOTION to Exclude "Survey" Evidence and Expert Testimony of Dr. Tina Kitchin and Memorandum of Law in Support filed by The State of Florida. Replies due by 6/27/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Meros, George) (Entered: 06/16/2016)
509 PRETRIAL STIPULATION (JOINT) by United States of America (Attachments: # 1 SCHEDULE A − UNITED STATES' AND PRIVATE PLAINTIFFS' LIST OF TRIAL EXHIBITS, # 2 SCHEDULE B − STATE OF FLORIDA'S LIST OF TRIAL EXHIBITS, # 3 SCHEDULE C − UNITED STATES' AND PRIVATE PLAINTIFFS' LIST OF WITNESSES, # 4 SCHEDULE D − STATE OF FLORIDA'S LIST OF TRIAL WITNESSES)(England, Travis) (Entered: 06/17/2016)
510 OBJECTIONS to 501 Report and Recommendations on State's Motion for Partial Summary Judgment by The State of Florida. (Meros, George) (Entered: 06/20/2016)
511 RESPONSE to Motion re 497 MOTION to Dismiss 62 Amended Complaint as to A.C., T.F., and L.J. filed by A.C., A.G., A.R., B.M., C.M., C.V., L.J., M.D., T.F., T.H.. Replies due by 6/30/2016. (Dietz, Matthew) (Entered: 06/20/2016)
512 MOTION for Leave to Appear Telephonically at Pre−Trial Conference, July 1, 2016 at 9:30 a.m. . Attorney/Representative: Veronica Harrell−James by United States of America. Responses due by 7/8/2016 (Attachments: # 1 Text of Proposed Order)(Harrell−James, Veronica) (Entered: 06/20/2016)
513 MOTION in Limine by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Meros, George) (Entered: 06/23/2016)
514 MOTION in Limine to Strike the State of Florida's Designations of Entire Deposition Transcripts by United States of America. (Attachments: # 1 Exhibit)(McDonald, Elizabeth) (Entered: 06/23/2016)
515 Unopposed MOTION for Leave to Appear Telephonically at Pre−Trial Conference July 1, 2016 at 9:30 am . Attorney/Representative: Stuart F. Williams, Leslei G. Street, Andrew T. Sheeran, J. Patrick Reynolds, Allison G. Mawhinney by The State of Florida. Responses due by 7/11/2016 (Meros, George) (Entered: 06/24/2016)
516 OBJECTIONS to 504 Report and Recommendations ON DEFENDANTS SUGGESTION FOR MOOTNESS AS TO PLAINTIFF A.R. by A.R.. (Dietz, Matthew) (Entered: 06/24/2016)
517 MOTION for Attorney Fees Verified Motion to Determine the Amount of and for Award of Sanctions by The State of Florida. Responses due by 7/11/2016 (Attachments: # 1 Exhibit A−Billing Records, # 2 Exhibit B−Declaration of George N. Meros, Jr.)(Meros, George) (Entered: 06/24/2016)
518 Final Order of Dismissal as to Plaintiffs A.C., T.F. and L.J. Signed by Judge William J. Zloch on 6/27/2016. (bc) (Entered: 06/27/2016)
519 Final Order of Dismissal as to Plaintiff A.R. Signed by Judge William J. Zloch on 6/27/2016. (bc) (Entered: 06/27/2016)
520 Joint MOTION to Bring Electronic Equipment into the courtroom and for Leave to Use Trial Presentation Technology by United States of America. Responses due by 7/14/2016 (McDonald, Elizabeth) (Entered: 06/27/2016)
521 ORDER granting 512 and 515 Motions to Appear at Pre−Trial Conference Telephonically. Signed by Judge William J. Zloch on 6/27/2016. (bc) (Entered: 06/27/2016)
522 Order Cancelling Pre−Trial Conference. Signed by Judge William J. Zloch on 6/29/2016. (bc) (Entered: 06/29/2016)
523 Plaintiff's MOTION for Reconsideration re 519 Order Dismissing Party, Terminate Motions by A.R.. (Dietz, Matthew) (Entered: 06/29/2016)

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06/29/2016 06/30/2016 06/30/2016 07/01/2016 07/11/2016 07/11/2016 07/11/2016
07/21/2016 07/21/2016 07/21/2016 08/05/2016 08/08/2016 08/15/2016
08/16/2016

524 RESPONSE to Motion re 523 Plaintiff's MOTION for Reconsideration re 519 Order Dismissing Party, Terminate Motions filed by The State of Florida. Replies due by 7/11/2016. (Meros, George) (Entered: 06/29/2016)
525 ORDER denying 523 Motion for Reconsideration. Signed by Judge William J. Zloch on 6/30/2016. (bc) (Entered: 06/30/2016)
526 Joint MOTION to Take Deposition from 12 additional deponents by The State of Florida. (Meros, George) (Entered: 06/30/2016)
527 ORDER denying 526 Joint Motion of the United States and The State of Florida for Leave to Take Additional Depositions. Signed by Judge William J. Zloch on 7/1/2016. (ar2) (Entered: 07/05/2016)
528 RESPONSE in Opposition re 514 MOTION in Limine to Strike the State of Florida's Designations of Entire Deposition Transcripts filed by The State of Florida. Replies due by 7/21/2016. (Attachments: # 1 Exhibit A−Amended Deposition Designations)(Meros, George) (Entered: 07/11/2016)
529 RESPONSE in Opposition re 517 MOTION for Attorney Fees Verified Motion to Determine the Amount of and for Award of Sanctions filed by United States of America. Replies due by 7/21/2016. (Attachments: # 1 Exhibit Summary of Contested Charges, # 2 Exhibit Contract)(McDonald, Elizabeth) (Entered: 07/11/2016)
530 RESPONSE in Opposition re 513 MOTION in Limine filed by United States of America. Replies due by 7/21/2016. (Attachments: # 1 Exhibit A − Expert Report of Dr. Gant, # 2 Exhibit B − Expert Report of Dr. Nelson, # 3 Exhibit C − Excerpt of Deposition of Dr. Nelson, # 4 Exhibit D − Excerpt of Deposition of Vicki Abrams, # 5 Exhibit E − Excerpt of Deposition of Beth Kidder, # 6 Exhibit F − Excerpt of Deposition of Shevaun Harris, # 7 Exhibit G − Excerpt of Deposition of Erica Floyd−Thomas, # 8 Exhibit H − Excerpt of Deposition of Madeleine Nobles, # 9 Exhibit I − Excerpt of Deposition of Lori Gephart, # 10 Exhibit J − Excerpt of Deposition of Patricia Cobb, # 11 Exhibit K − Excerpt of Deposition of Gay Madden, # 12 Exhibit L − DCF Organizational Chart, # 13 Exhibit M − AHCA Organizational Chart, # 14 Exhibit N − AHCA Organizational Description, # 15 Exhibit O − eQHealth Solutions, Inc. Contract)(England, Travis) (Entered: 07/11/2016)
531 REPLY to Response to Motion re 513 MOTION in Limine filed by The State of Florida. (Meros, George) (Entered: 07/21/2016)
532 REPLY to Response to Motion re 514 MOTION in Limine to Strike the State of Florida's Designations of Entire Deposition Transcripts filed by United States of America. (Attachments: # 1 Exhibit Deposition, # 2 Exhibit Deposition, # 3 Exhibit Deposition)(McDonald, Elizabeth) (Entered: 07/21/2016)
533 RESPONSE in Support re 517 MOTION for Attorney Fees Verified Motion to Determine the Amount of and for Award of Sanctions filed by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit A1, # 3 Exhibit A2, # 4 Exhibit A3, # 5 Exhibit A4, # 6 Exhibit B, # 7 Exhibit C)(Meros, George) (Entered: 07/21/2016)
534 RESPONSE/REPLY The State of Florida's Objections to Plaintiffs' Use of Deposition Testimony by The State of Florida. (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 08/05/2016)
535 ORDER granting in part and denying in part 517 Motion for Attorney Fees. Signed by Magistrate Judge Patrick M. Hunt on 8/8/2016. (ahr) (Entered: 08/08/2016)
536 Notice of Appeal as to 525 Order on Motion for Reconsideration by A.R.. Filing fee $ 505.00 receipt number 113C−9002473. Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dietz, Matthew) (Entered: 08/15/2016)
Transmission of Notice of Appeal, Order Under Appeal and Docket Sheet to US Court of Appeals re 536 Notice of Appeal, Notice has been electronically mailed. (amb) (Entered: 08/16/2016)

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08/17/2016 08/18/2016 08/22/2016
08/30/2016 09/14/2016
09/15/2016
09/20/2016 09/21/2016 09/26/2016 10/06/2016 10/07/2016 10/14/2016
10/20/2016
10/20/2016 10/20/2016 10/21/2016
10/21/2016

537 Unopposed MOTION for Leave to File Amended Exhibit List by The State of Florida. (Attachments: # 1 Amended Exhibit List)(Meros, George) (Entered: 08/17/2016)
538 Acknowledgment of Receipt of NOA from USCA re 536 Notice of Appeal, filed by A.R.. Date received by USCA: 8/16/16. USCA Case Number: 16−15518−D. (hh) (Entered: 08/18/2016)
539 NOTICE by United States of America re 534 Response/Reply (Other) − Notice of Objection to Florida's Objections to Plaintiffs' Use of Deposition Testimony (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Dermody, Eliza) (Entered: 08/22/2016)
540 MOTION to Dismiss 62 Amended Complaint A.G.'s Claims as Moot by The State of Florida. Attorney Andre Velosy Bardos added to party The State of Florida(pty:condft). Responses due by 9/16/2016 (Bardos, Andre) (Entered: 08/30/2016)
541 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 540 MOTION to Dismiss 62 Amended Complaint A.G.'s Claims as Moot by A.G. (Attachments: # 1 Text of Proposed Order)(Dietz, Matthew) Modified to remove filers on 9/14/2016 (asl). (Entered: 09/14/2016)
542 PAPERLESS ORDER granting 541 Motion for Extension of Time to File Response/Reply to Motion. Re: 540 MOTION to Dismiss 62 Amended Complaint A.G.'s Claims as Moot filed by The State of Florida. Response due by 9/26/2016. Signed by Magistrate Judge Patrick M. Hunt on 9/15/2016. (ahr) (Entered: 09/15/2016)
543 Final Order of Dismissal as to The United States of America. Signed by Judge William J. Zloch on 9/20/2016. (bc) (Entered: 09/20/2016)
544 ORDER denying as moot 514 , 513 , 493 , 454 , 495 , 537 , 451 , 520 and 450 Motions. Signed by Judge William J. Zloch on 9/21/2016. (bc) (Entered: 09/21/2016)
545 RESPONSE to Motion re 540 MOTION to Dismiss 62 Amended Complaint A.G.'s Claims as Moot filed by A.G., Replies due by 10/6/2016. (Dietz, Matthew) Modified to remove filers on 9/26/2016 (asl). (Entered: 09/26/2016)
546 REPLY to Response to Motion re 540 MOTION to Dismiss 62 Amended Complaint A.G.'s Claims as Moot filed by The State of Florida. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Meros, George) (Entered: 10/06/2016)
547 Unopposed MOTION for Extension of Time to Serve and File Motion for Non−Taxable Expenses and Costs by The State of Florida. Responses due by 10/24/2016 (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 10/07/2016)
548 PAPERLESS ORDER granting 547 Motion for Extension of Time. The State of Florida shall have until Friday, November 18, 2016, to serve its Motion For Non−Taxable Expenses And Costs, and until noon on Monday, December 19, 2016, to file the same. Signed by Judge William J. Zloch on 10/14/2016. (dcr) (Entered: 10/14/2016)
549 MOTION for Bill of Costs by The State of Florida. Responses due by 11/7/2016 (Attachments: # 1 Exhibit A, # 2 Exhibit B−Part 1 of 3, # 3 Exhibit B−Part 2 of 3, # 4 Exhibit B−Part 3 of 3, # 5 Exhibit C, # 6 Exhibit D−Part 1 of 2, # 7 Exhibit D−Part 2 of 2, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M)(Meros, George) (Entered: 10/20/2016)
550 MOTION for Bill of Costs Memorandum in Support of Bill of Costs by The State of Florida. Responses due by 11/7/2016 (Meros, George) Modified to re−docket, see 551 on 10/21/2016 (asl). (Entered: 10/20/2016)
551 MEMORANDUM in Support re 549 MOTION for Bill of Costs by The State of Florida. See 550 for image (asl) (Entered: 10/21/2016)
552 Clerks Notice to Filer re 550 MOTION for Bill of Costs Memorandum in Support of Bill of Costs. Wrong Event Selected; ERROR − The Filer selected the wrong event. The document was re−docketed by the Clerk, see 551 . It is not necessary to refile this document. (asl) (Entered: 10/21/2016)
553 MOTION to Vacate 215 Order on Motion to Consolidate Cases by United States of America. Responses due by 11/7/2016 (Weinstock, Lindsey) (Entered: 10/21/2016)

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10/25/2016 10/25/2016
11/01/2016 11/03/2016
11/07/2016 11/10/2016 11/14/2016 11/14/2016
11/15/2016 11/17/2016 11/18/2016 11/21/2016 12/01/2016 12/02/2016
12/05/2016 12/05/2016 12/07/2016

554 Defendant's MOTION Motion for Revised Scheduling Order by The State of Florida. (Meros, George). Added MOTION for Hearing on 10/25/2016 (asl). (Entered: 10/25/2016)
555 Clerks Notice to Filer re 554 Defendant's MOTION Motion for Revised Scheduling Order and for Scheduling Conference . Motion with Multiple Reliefs Filed as One Relief; ERROR − The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (asl) (Entered: 10/25/2016)
556 MOTION to Strike 549 MOTION for Bill of Costs by United States of America. Responses due by 11/18/2016 (McDonald, Elizabeth) (Entered: 11/01/2016)
557 REPORT AND RECOMMENDATION recommending granting in part and denying in part 540 Motion to Dismiss 62 Amended Complaint A.G.'s Claims as Moot filed by The State of Florida. Objections to R&R due by 11/21/2016. Signed by Magistrate Judge Patrick M. Hunt on 11/3/2016. (ahr) (Entered: 11/03/2016)
558 RESPONSE in Opposition re 553 MOTION to Vacate 215 Order on Motion to Consolidate Cases filed by The State of Florida. Replies due by 11/17/2016. (Meros, George) (Entered: 11/07/2016)
559 RESPONSE to Motion re 554 Defendant's MOTION Motion for Revised Scheduling Order and for Scheduling Conference MOTION for Hearing filed by C.V.. Replies due by 11/21/2016. (Dietz, Matthew) (Entered: 11/10/2016)
560 ORDER denying 553 Motion to Vacate. Signed by Judge William J. Zloch on 11/14/2016. (bc) (Entered: 11/14/2016)
561 ORDER Resetting Pre−Trial Conference. Pretrial Conference reset for 3/10/2017 at 9:30 AM in Fort Lauderdale Division before Judge William J. Zloch. Pretrial Stipulation due by Noon, 2/24/2017. Signed by Judge William J. Zloch on 11/14/2016. (bc) (Entered: 11/14/2016)
562 MOTION for Extension of Time to Seek Attorney's Fees , MOTION to Bifurcate Determination of Entitlement From Determination of Amount by The State of Florida. Responses due by 12/2/2016 (Meros, George) (Entered: 11/15/2016)
563 OBJECTIONS to 557 Report and Recommendations by A.G., B.M., C.M., C.V., M.D., T.H.. (Dietz, Matthew) (Entered: 11/17/2016)
564 RESPONSE in Opposition re 556 MOTION to Strike 549 MOTION for Bill of Costs filed by The State of Florida. Replies due by 12/1/2016. (Meros, George) (Entered: 11/18/2016)
565 OBJECTIONS to 557 Report and Recommendations on the State's Motion to Dismiss A.G.'s Claims as Moot by Dr. Celeste Philip, Justin M. Senior, Cassandra G. Pasley. (Meros, George) (Entered: 11/21/2016)
566 REPLY to Response to Motion re 556 MOTION to Strike 549 MOTION for Bill of Costs filed by United States of America. (McDonald, Elizabeth) (Entered: 12/01/2016)
567 RESPONSE in Opposition re 562 MOTION for Extension of Time to Seek Attorney's Fees MOTION to Bifurcate Determination of Entitlement From Determination of Amount filed by United States of America. Replies due by 12/9/2016. (Attachments: # 1 Exhibit A − Oct. 6 e−mail, # 2 Exhibit B − Oct. 7 e−mail, # 3 Exhibit C − Nov. 11 e−mail, # 4 Exhibit D − Nov.15 e−mail)(England, Travis) (Entered: 12/02/2016)
568 RESPONSE TO OBJECTION to 557 Report and Recommendations by the State by A.G., B.M., C.M., C.V., M.D., T.H.. (Dietz, Matthew) (Entered: 12/05/2016)
569 RESPONSE TO OBJECTION to 557 Report and Recommendations by The State of Florida. (Meros, George) (Entered: 12/05/2016)
570 Unopposed MOTION for Extension of Time Re:Certain Deadlines of L.R. 7.3 and this Court's Oct. 14, 2016 Order re 548 Order on Motion for Extension of Time, by United States of America. Responses due by 12/21/2016 (England, Travis) (Entered: 12/07/2016)

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12/07/2016 12/08/2016 12/15/2016 12/15/2016 12/16/2016 12/16/2016 12/19/2016
12/20/2016
12/20/2016 12/20/2016 12/21/2016 12/21/2016 12/22/2016 12/22/2016

571 MOTION for Leave to File a Reply to A.G.'s Response to the State's Objections to the Report and Recommendation by The State of Florida. (Meros, George) (Entered: 12/07/2016)
572 Defendant's REPLY to 567 Response in Opposition to Motion, 562 MOTION for Extension of Time to Seek Attorney's Fees MOTION to Bifurcate Determination of Entitlement From Determination of Amount by The State of Florida. (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 12/08/2016)
573 MOTION to Dismiss 62 Amended Complaint Count 5 as Moot by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Responses due by 12/29/2016 (Attachments: # 1 Exhibit A)(Meros, George) (Entered: 12/15/2016)
574 Plaintiff's MOTION to Compel DISCLOSURES by A.G., C.M., C.V., T.H.. Responses due by 12/29/2016 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dietz, Matthew) (Entered: 12/15/2016)
575 ORDER granting 571 Motion for Leave to File Reply to Plaintiff's Response. The State shall file its reply to Plaintiff's Response 568 by Noon, 12/20/2016. Signed by Judge William J. Zloch on 12/16/2016. (bc) (Entered: 12/16/2016)
576 NOTICE by A.G., B.M., C.M., C.V., T.H. re 574 Plaintiff's MOTION to Compel DISCLOSURES (Attachments: # 1 Exhibit A) (Dietz, Matthew) (Entered: 12/16/2016)
577 MOTION to Tax Costs by The State of Florida. Responses due by 1/3/2017 (Attachments: # 1 Exhibit A−Index of Nontaxable Expenses and Costs, # 2 Exhibit B−Part 1 of 6−Invoices and Payment Records, # 3 Exhibit B−Part 2 of 6−Invoices and Payment Records, # 4 Exhibit B−Part 3 of 6−Invoices and Payment Records, # 5 Exhibit B−Part 4 of 6−Invoices and Payment Records, # 6 Exhibit B−Part 5 of 6−Invoices and Payment Records, # 7 Exhibit B−Part 6 of 6−Invoices and Payment Records, # 8 Exhibit C− ediscovery expenses, # 9 Exhibit D−experts expenses, # 10 Exhibit E−legal research expenses, # 11 Exhibit F−travel expenses, # 12 Exhibit G−Walling Declaration, # 13 Exhibit H−Discovery Stipulation, # 14 Exhibit I−Predictive Coding Protocol, # 15 Exhibit J−Kobetitsch Declaration, # 16 Exhibit K−Experts Curricula Vitae)(Meros, George). Added MOTION for Attorney Fees on 12/20/2016 (asl). (Entered: 12/19/2016)
578 Clerks Notice to Filer re 577 MOTION to Tax Costs . Motion with Multiple Reliefs Filed as One Relief; ERROR − The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (asl) (Entered: 12/20/2016)
579 REPLY to Response to Motion re 571 MOTION for Leave to File a Reply to A.G.'s Response to the State's Objections to the Report and Recommendation Reply to Plaintiff A.G.'s Response (DE 568) filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Attachments: # 1 Exhibit A−Declaration of Gay Madden, # 2 Exhibit B−email exchange)(Meros, George) (Entered: 12/20/2016)
580 ORDER of DISMISSAL from USCA. The Defendant−Appellees' motion to dismiss this appeal is GRANTED. Nothing in this order shall prevent A.R. from filing an appeal from the eventual final judgment of the district court. All outstanding motions are DENIED as moot re 536 Notice of Appeal, filed by A.R. USCA #16−15518−DD (apz) (Entered: 12/21/2016)
581 ORDER granting 562 Motion for Extension of Time; granting 562 Motion to Bifurcate. Signed by Judge William J. Zloch on 12/20/2016. (ail) (Entered: 12/21/2016)
582 ORDER denying 556 Motion to Strike ; denying as moot 570 Motion for Extension of Time. Signed by Judge William J. Zloch on 12/20/2016. (ail) (Entered: 12/21/2016)
583 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to 573 MOTION to Dismiss 62 Amended Complaint Count 5 as Moot by A.G., B.M., C.M., C.V., M.D., T.H.. (Attachments: # 1 Text of Proposed Order)(Dietz, Matthew) (Entered: 12/22/2016)
584 PAPERLESS ORDER granting 583 Motion for Extension of Time to File Response/Reply to Motion. Re: 573 MOTION to Dismiss 62 Amended Complaint Count

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12/27/2016 01/05/2017 01/09/2017 01/09/2017
01/09/2017
01/11/2017 01/17/2017 01/18/2017 01/18/2017 01/19/2017 01/19/2017 01/19/2017 01/20/2017 01/20/2017 01/23/2017

5 as Moot filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley. Response due by 1/9/2017. Signed by Magistrate Judge Patrick M. Hunt on 12/22/2016. (ahr) (Entered: 12/22/2016)
585 NOTICE OF WITHDRAWAL OF MOTION by B.M., C.M., C.V. re 574 Plaintiff's MOTION to Compel DISCLOSURES filed by T.H., A.G., C.M., C.V. (Dietz, Matthew) (Entered: 12/27/2016)
586 MOTION for Entry of Judgment under Rule 54(b) by United States of America. (Weinstock, Lindsey) (Entered: 01/05/2017)
587 RESPONSE to Motion re 573 MOTION to Dismiss 62 Amended Complaint Count 5 as Moot filed by A.G., B.M., C.M., C.V., M.D., T.H.. Replies due by 1/17/2017. (Dietz, Matthew) (Entered: 01/09/2017)
588 MOTION for Summary Judgment by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Attorney Andre Velosy Bardos added to party Cassandra G. Pasley(pty:dft), Attorney Andre Velosy Bardos added to party Dr. Celeste Philip(pty:dft), Attorney Andre Velosy Bardos added to party Justin M. Senior(pty:dft). Responses due by 1/23/2017 (Bardos, Andre) (Entered: 01/09/2017)
589 Statement of: Undisputed Material Facts in Support of Motion for Summary Judgment by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior re 588 MOTION for Summary Judgment (Attachments: # 1 Declaration of Shevaun Harris, # 2 Declaration of Ellyn Theophilopolous, M.D., J.D., # 3 Declaration of Donald J. Fillipps, M.D., # 4 Declaration of Cheryl A. Young)(Bardos, Andre) (Entered: 01/09/2017)
590 ORDER denying 586 Motion for Entry of Judgment under Rule 54(b). Signed by Judge William J. Zloch on 1/11/2017. (bc) (Entered: 01/11/2017)
591 REPLY to Response to Motion re 573 MOTION to Dismiss 62 Amended Complaint Count 5 as Moot filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Meros, George) (Entered: 01/17/2017)
592 NOTICE of Attorney Appearance by William Eugene Gandy, Jr on behalf of Dr. Celeste Philip. Attorney William Eugene Gandy, Jr added to party Dr. Celeste Philip(pty:dft). (Gandy, William) (Entered: 01/18/2017)
593 Unopposed MOTION State of Florida's Motion for Leave for Certain Counsel to Attend Pre−Trial Conference Telephonically by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior, The State of Florida. (Meros, George) (Entered: 01/18/2017)
594 Plaintiff's MOTION FOR ADDITIONAL DISCOVERY UNDER RULE 56(d) by A.G., B.M., C.M., C.V., M.D., T.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dietz, Matthew) Modified relief on 1/19/2017 (asl). (Entered: 01/19/2017)
595 Plaintiff's MOTION for Extension of Time to File Response/Reply/Answer as to 588 MOTION for Summary Judgment by A.G., B.M., C.M., C.V., M.D., T.H.. (Dietz, Matthew) (Entered: 01/19/2017)
596 ORDER granting 540 Motion to Dismiss; Adopting in Part 557 Report and Recommendations. Signed by Judge William J. Zloch on 1/19/2017. (bc) (Entered: 01/19/2017)
597 Amended MOTION AMENDED MOTION FOR ADDITIONAL DISCOVERY pursuant to Rule 56(d) by B.M., C.M., C.V., M.D., T.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dietz, Matthew) (Entered: 01/20/2017)
598 ORDER re 595 Plaintiff's Motion for Extension of Time to File Response/Reply/Answer as to 588 MOTION for Summary Judgment and 594 Motion for Discovery. State Defendants shall file their Responses by Noon, 1/23/2017. Signed by Judge William J. Zloch on 1/20/2017. (bc) (Entered: 01/20/2017)
599 RESPONSE in Opposition re 597 Amended MOTION AMENDED MOTION FOR ADDITIONAL DISCOVERY pursuant to Rule 56(d) filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Replies due by 1/30/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit

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01/23/2017 01/23/2017 01/23/2017 01/24/2017 01/24/2017 01/25/2017 01/26/2017 01/30/2017 01/30/2017 01/30/2017 02/01/2017
02/06/2017 02/06/2017
02/07/2017

G)(Meros, George) (Entered: 01/23/2017)
600 RESPONSE in Opposition re 595 Plaintiff's MOTION for Extension of Time to File Response/Reply/Answer as to 588 MOTION for Summary Judgment filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Replies due by 1/30/2017. (Meros, George) (Entered: 01/23/2017)
601 REPLY to Response to Motion re 597 Amended MOTION AMENDED MOTION FOR ADDITIONAL DISCOVERY pursuant to Rule 56(d) filed by B.M., C.M., C.V., M.D., T.H.. (Dietz, Matthew) (Entered: 01/23/2017)
602 ORDER granting 595 Motion for Extension of Time to File Response to Motion for Summary Judgment ; denying 597 Motion for Additional Discovery. Signed by Judge William J. Zloch on 1/23/2017. (bc) (Entered: 01/23/2017)
603 PAPERLESS ORDER requiring the State Defendants to reply to the Plaintiffs' Response in Opposition to Defendants' Motion for Summary Judgment 588 on or before February 6, 2017. Signed by Magistrate Judge Patrick M. Hunt on 1/24/2017. (ahr) (Entered: 01/24/2017)
604 PAPERLESS ORDER Setting Hearing on 588 State Defendants' Motion for Summary Judgment: Motion Hearing set for 2/9/2017 at 10:00 AM in Fort Lauderdale Division before Magistrate Judge Patrick M. Hunt. Courtroom TBA. Signed by Magistrate Judge Patrick M. Hunt on 1/24/2017. (ahr) (Entered: 01/24/2017)
605 Joint MOTION to Bring Electronic Equipment into the courtroom and to Use Trial Presentation Technology by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Responses due by 2/8/2017 (Meros, George) (Entered: 01/25/2017)
606 NOTICE OF ASSIGNING COURTROOM re 604 Order Setting Hearing on Motion, 588 State Defendants' Motion for Summary Judgment: Motion Hearing set for 2/9/2017 at 10:00 AM in Fort Lauderdale Division IN COURTROOM 205C before Magistrate Judge Patrick M.Hunt (dby) (Entered: 01/26/2017)
607 MOTION to Dismiss 62 Amended Complaint as Moot by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Responses due by 2/13/2017 (Meros, George) (Entered: 01/30/2017)
608 RESPONSE to Motion re 588 MOTION for Summary Judgment filed by B.M., C.M., C.V., M.D., T.H.. Replies due by 2/6/2017. (Dietz, Matthew) (Entered: 01/30/2017)
609 Plaintiff's RESPONSE to 589 Statement, by B.M., C.M., C.V., M.D., T.H.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Dietz, Matthew) (Entered: 01/30/2017)
610 PAPERLESS ORDER setting forth expedited briefing schedule as to 607 Defendants' Motion to Dismiss T.H.'s Claims as moot. Plaintiff's Response is due on or before February 8, 2017. Defendants' Reply is due on or before February 13, 2017. As a substantially similar issue was already addressed by this Court, and due to the proximity of the PTC, no extensions of time will be granted. Signed by Magistrate Judge Patrick M. Hunt on 2/1/2017. (ahr) (Entered: 02/01/2017)
611 REPLY in Support re 588 MOTION for Summary Judgment filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Meros, George) Modified title text on 2/7/2017 (asl). (Entered: 02/06/2017)
612 REPLY to Response to Motion re 588 MOTION for Summary Judgment State of Florida's Statement of Undisputed Material Facts in Response to Plaintiffs' Statement of Facts filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Attachments: # 1 Exhibit Madden Declaration, # 2 Exhibit Young Declaration)(Meros, George) (Entered: 02/06/2017)
613 RESPONSE to Motion re 607 MOTION to Dismiss 62 Amended Complaint as Moot filed by B.M., C.M., C.V., M.D., T.H.. Replies due by 2/14/2017. (Dietz, Matthew) (Entered: 02/07/2017)

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02/08/2017 02/09/2017
02/13/2017 02/15/2017 02/16/2017 02/23/2017
02/24/2017 02/28/2017 03/01/2017 03/01/2017 03/02/2017 03/03/2017 03/06/2017 03/07/2017 03/07/2017 03/10/2017

614 NOTICE by B.M., C.M., C.V., M.D., T.H. re 608 Response to Motion OF FILING SUPPLEMENTAL DOCUMENTATION IN SUPPORT OF PLAINTIFFS RESPONSE TO THE STATE MOTION FOR SUMMARY JUDGEMENT (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Dietz, Matthew) (Entered: 02/08/2017)
615 PAPERLESS Minute Entry for proceedings held before Magistrate Judge Patrick M. Hunt: Motion Hearing held on 2/9/2017 re 588 MOTION for Summary Judgment filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley. Report and Recommendation to follow. Attorney Appearance(s): Matthew Wilson Dietz, Edward J. Grunewald, Ashley Hoffman Lukis, Stuart Fraser Williams, Leslei Gayle Street, Andrew T. Sheeran, Andre Velosy Bardos, William Eugene Gandy, Jr, James Timothy Moore, Jr, Lisa Goodman, Evan Appell. (Digital 10:03:59) (dby) (Entered: 02/09/2017)
616 REPLY to Response to Motion re 607 MOTION to Dismiss 62 Amended Complaint as Moot filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Bardos, Andre) (Entered: 02/13/2017)
617 REPORT AND RECOMMENDATIONS recommending granting 607 Motion to Dismiss T.H.'s Claims as Moot, and 573 Motion to Dismiss Count 5 as Moot, filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley. Objections to R&R due by 3/1/2017. Signed by Magistrate Judge Patrick M. Hunt on 2/15/2017. (ahr) (Entered: 02/15/2017)
618 Final Order of Dismissal of Plaintiff B.M. and his next friend, Kayla Moore. Signed by Judge William J. Zloch on 2/16/2017. (bc) (Entered: 02/16/2017)
619 TRANSCRIPT of Hearing Proceedings held on 2/9/2017 before Magistrate Judge Patrick M. Hunt, 1−53 pages, Court Reporter: Bonnie Joy Lewis, 954−985−8875. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/16/2017. Redacted Transcript Deadline set for 3/27/2017. Release of Transcript Restriction set for 5/24/2017. (Attachments: # 1 Designation Access Form)(amb) (Entered: 02/24/2017)
620 PRETRIAL STIPULATION by C.M., C.V., M.D., T.H. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Dietz, Matthew) (Entered: 02/24/2017)
621 OBJECTIONS to 617 Report and Recommendations by C.M., C.V., M.D., T.H.. (Dietz, Matthew) (Entered: 02/28/2017)
622 ORDER Cancelling Pre−Trial Conference Signed by Senior Judge William J. Zloch on 2/28/2017. (ail) (Entered: 03/01/2017)
623 Plaintiff's MOTION in Limine all evidence regarding changes in policies and procedures after the inception of this matter by C.M., C.V., M.D., T.H.. (Dietz, Matthew) (Entered: 03/01/2017)
624 MOTION in Limine by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Bardos, Andre) (Entered: 03/02/2017)
625 RESPONSE in Opposition re 623 Plaintiff's MOTION in Limine all evidence regarding changes in policies and procedures after the inception of this matter filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Replies due by 3/10/2017. (Bardos, Andre) (Entered: 03/03/2017)
626 RESPONSE TO OBJECTION to 617 Report and Recommendations by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Bardos, Andre) (Entered: 03/06/2017)
627 MOTION for Leave to File Admitted Trial Exhibits Under Seal by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Bardos, Andre) (Entered: 03/07/2017)
628 NOTICE by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior re 627 MOTION for Leave to File Admitted Trial Exhibits Under Seal, 624 MOTION in Limine (Meros, George) (Entered: 03/07/2017)
629 REPLY to Response to Motion re 623 Plaintiff's MOTION in Limine all evidence regarding changes in policies and procedures after the inception of this matter filed by C.M., C.V., M.D., T.H.. (Dietz, Matthew) (Entered: 03/10/2017)

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03/10/2017 03/10/2017 03/17/2017 03/21/2017 03/22/2017
03/28/2017 04/03/2017 04/04/2017 04/18/2017 04/18/2017
04/26/2017
04/27/2017
05/09/2017 05/12/2017 06/09/2017 06/09/2017

630 RESPONSE to Motion re 624 MOTION in Limine filed by C.M., C.V., M.D., T.H.. Replies due by 3/17/2017. (Dietz, Matthew) (Entered: 03/10/2017)
631 ORDER Adopting 617 Report and Recommendations. Signed by Senior Judge William J. Zloch on 3/10/2017. (bc) (Entered: 03/10/2017)
632 REPLY to Response to Motion re 624 MOTION in Limine filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Bardos, Andre) (Entered: 03/17/2017)
633 RESPONSE to Motion re 627 MOTION for Leave to File Admitted Trial Exhibits Under Seal filed by C.M., C.V., M.D.. Replies due by 3/28/2017. (Dietz, Matthew) (Entered: 03/21/2017)
634 REPORT AND RECOMMENDATION recommending granting 588 Florida's Motion for Summary Judgment filed by Justin M. Senior, Dr. Celeste Philip, and Cassandra G. Pasley. Objections to R&R due by 4/5/2017. Signed by Magistrate Judge Patrick M. Hunt on 3/22/17. (ahr) (Entered: 03/22/2017)
635 REPLY to Response to Motion re 627 MOTION for Leave to File Admitted Trial Exhibits Under Seal filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Bardos, Andre) (Entered: 03/28/2017)
636 MOTION to Withdraw as Attorney for the Department of Health by George N. Meros, Jr.. by GrayRobinson, P.A.. Attorney George N. Meros, Jr added to party GrayRobinson, P.A.(pty:mov). Responses due by 4/17/2017 (Meros, George) (Entered: 04/03/2017)
637 OBJECTIONS to 634 Report and Recommendations by C.M., C.V., M.D.. (Dietz, Matthew) (Entered: 04/04/2017)
638 RESPONSE TO OBJECTION to 634 Report and Recommendations by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. (Bardos, Andre) (Entered: 04/18/2017)
639 ORDER granting 636 Motion to Withdraw as Attorney. Attorney Allison Goodson Mawhinney; George N. Meros, Jr; James Timothy Moore, Jr; Andre Velosy Bardos and Ashley Hoffman Lukis terminated. Signed by Senior Judge William J. Zloch on 4/18/2017. (bc) (Entered: 04/18/2017)
640 Plaintiff's MOTION for Leave to File RESPONSE TO THE STATES RESPONSE TO PLAINTIFFS OBJECTION TO REPORT AND RECOMMENDATION ON THE STATES MOTION FOR SUMMARY JUDGMENT by C.M., C.V., M.D.. (Dietz, Matthew) (Entered: 04/26/2017)
641 RESPONSE to Motion re 640 Plaintiff's MOTION for Leave to File RESPONSE TO THE STATES RESPONSE TO PLAINTIFFS OBJECTION TO REPORT AND RECOMMENDATION ON THE STATES MOTION FOR SUMMARY JUDGMENT and Recommendation on the State's Motion for Summary Judgment filed by Cassandra G. Pasley, Dr. Celeste Philip, Justin M. Senior. Replies due by 5/4/2017. (Meros, George) (Entered: 04/27/2017)
642 MOTION to Withdraw as Attorney for the United States of America by Travis W. England. by United States of America. Responses due by 5/23/2017 (England, Travis) (Entered: 05/09/2017)
643 ORDER granting 642 Motion to Withdraw as Attorney. Attorney Travis W. England terminated. Signed by Senior Judge William J. Zloch on 5/12/2017. (bc) (Entered: 05/12/2017)
644 ORDER denying 549 Motion for Bill of Costs; denying 577 Motion to Tax Costs. ; denying 577 Motion for Attorney Fees. Signed by Senior Judge William J. Zloch on 6/9/2017. (lk) (Entered: 06/09/2017)
645 FINAL ORDER OF DISMISSAL and ADOPTING REPORT AND RECOMMENDATIONS ; Granting 588 Motion for Summary Judgment; DENYING AS MOOT ALL PENDING MOTIONS: Denying as moot 593 Motion ; denying as moot 594 Motion for Discovery; denying as moot 605 Motion to Bring Electronic Equipment into the courtroom; denying as moot 623 Motion in Limine; denying as moot 624 Motion in Limine; denying as moot 627 Motion for Leave to File ; adopting Report and Recommendations re 634 Report and Recommendations; denying as moot 640 Motion for Leave to File Closing Case. Motions terminated: 593 Unopposed MOTION State of

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Florida's Motion for Leave for Certain Counsel to Attend Pre−Trial Conference Telephonically filed by Justin M. Senior, Dr. Celeste Philip, The State of Florida, Cassandra G. Pasley, 640 Plaintiff's MOTION for Leave to File RESPONSE TO THE STATES RESPONSE TO PLAINTIFFS OBJECTION TO REPORT AND RECOMMENDATION ON THE STATES MOTION FOR SUMMARY JUDGMENT filed by C.M., M.D., C.V., 624 MOTION in Limine filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley, 605 Joint MOTION to Bring Electronic Equipment into the courtroom and to Use Trial Presentation Technology filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley, 588 MOTION for Summary Judgment filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley, 634 REPORT AND RECOMMENDATIONS re 588 MOTION for Summary Judgment filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley Recommending granting., 623 Plaintiff's MOTION in Limine all evidence regarding changes in policies and procedures after the inception of this matter filed by T.H., C.M., M.D., C.V., 627 MOTION for Leave to File Admitted Trial Exhibits Under Seal filed by Justin M. Senior, Dr. Celeste Philip, Cassandra G. Pasley, 594 Motion for Discovery filed by T.H., A.G., C.M., M.D., C.V., B.M.. Signed by Senior Judge William J. Zloch on 6/9/2017. (lk)

06/14/2017 06/14/2017 06/15/2017 08/07/2017
08/07/2017
08/08/2017 08/08/2017 08/10/2017

NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014−69. (Entered: 06/09/2017)
Attorney George N. Meros, Jr representing The State of Florida (Consol Defendant) Activated. (Meros, George) (Entered: 06/14/2017)
646 Unopposed MOTION for clarification 644 Order on Motion for Bill of Costs, Order on Motion to Tax Costs, Order on Motion for Attorney Fees by The State of Florida. Responses due by 6/28/2017 (Meros, George) (Entered: 06/14/2017)
647 ORDER granting 646 Motion for Clarification. Signed by Senior Judge William J. Zloch on 6/15/2017. (bc) (Entered: 06/15/2017)
648 Notice of Appeal as to 543 Order Dismissing Party by United States of America. Filing fee $ 505.00. USA/FPD Filer − No Filing Fee Required. Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (Weinstock, Lindsey) (Entered: 08/07/2017)
649 Notice of Appeal as to 399 Order on Report and Recommendations, Order on Motion for Judgment on the Pleadings, 448 Order on Motion to Certify Class, Order on Report and Recommendations, 519 Order Dismissing Party, Terminate Motions, 631 Order on Report and Recommendations, Order on Motion to Dismiss,, 525 Order on Motion for Reconsideration, 645 Order on Report and Recommendations, Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief, Order on Motion for Discovery, Order on Motion to Bring Electronic Equipment, Order on Motion in Limine,, Order on Motion for Leave to File,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,, 596 Order on Motion to Dismiss, Order on Report and Recommendations by A.G., A.R., C.M., C.V., M.D., T.H.. Filing fee $ 505.00 receipt number 113C−9952255. Within fourteen days of the filing date of a Notice of Appeal, the appellant must complete the Eleventh Circuit Transcript Order Form regardless of whether transcripts are being ordered [Pursuant to FRAP 10(b)]. For information go to our FLSD website under Transcript Information. (Attachments: # 1 Exhibit A)(Dietz, Matthew) (Entered: 08/07/2017)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 648 Notice of Appeal, Notice has been electronically mailed. (hh) (Entered: 08/08/2017)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 649 Notice of Appeal,,,, Notice has been electronically mailed. (hh) (Entered: 08/08/2017)
650 Acknowledgment of Receipt of NOA from USCA re 649 Notice of Appeal filed by T.H., A.R., A.G., C.M., M.D., C.V.. Date received by USCA: 8/8/2017. USCA Case Number: 17−13572−B. (apz) (Entered: 08/10/2017)

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08/14/2017 08/21/2017 08/24/2017 08/24/2017 08/24/2017 09/05/2017 09/25/2017 09/25/2017 11/13/2017
11/15/2017 12/08/2017 12/15/2017
02/23/2018 02/23/2018 05/16/2019

651 Acknowledgment of Receipt of NOA from USCA re 648 Notice of Appeal, filed by United States of America. Date received by USCA: 8/8/2017. USCA Case Number: 17−13595−B. (apz) (Entered: 08/14/2017)
652 TRANSCRIPT INFORMATION FORM by United States of America re 648 Notice of Appeal,. No Transcript Requested. (Weinstock, Lindsey) (Entered: 08/21/2017)
653 TRANSCRIPT INFORMATION FORM by B.M. re 649 Notice of Appeal. Pretrial and Trial transcript(s) ordered. Order placed by Matthew W. Dietz. Email sent to Court Reporter Coordinator. (apz) (Entered: 08/24/2017)
654 COURT REPORTER ACKNOWLEDGMENT re 653 Transcript Information Form, 649 Notice of Appeal. Court Reporter: Bonnie Joy Lewis, 954−985−8875. Estimated filing date of transcript 5/25/2016 & 2/23/2017. (apz) (Entered: 08/24/2017)
655 TRANSCRIPT NOTIFICATION − has/have been filed by Court Reporter: Bonnie Joy Lewis, 954−985−8875 re 653 Transcript Information Form, 649 Notice of Appeal. (apz) (Entered: 08/24/2017)
656 TRANSCRIPT INFORMATION FORM by Justin M. Senior re 649 Notice of Appeal,,,,. 2/9/2017 Magistrate Judge Hunt transcript(s) ordered. Order placed by George N. Meros, Jr.. Email sent to Court Reporter Coordinator. (Meros, George) (Entered: 09/05/2017)
657 TRANSCRIPT INFORMATION FORM by B.M., et al., re 649 Notice of Appeal. Motion Hearing transcript(s) ordered. Order placed by Matthew W. Dietz. Email sent to Court Reporter Coordinator. (apz) (Entered: 09/25/2017)
658 TRANSCRIPT NOTIFICATION − Transcript has been filed by Carl Schanzleh re 649 Notice of Appeal, 657 Transcript Information Form. (apz) (Entered: 09/25/2017)
659 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Florida certifies that the record is complete for purposes of this appeal re: 648 Notice of Appeal, Appeal No. 17−13595−BB. The entire record on appeal is available electronically with the exception of Sealed DEs 134 & 172. (apz) Text Modified on 11/15/2017 (apz). (Entered: 11/13/2017)
660 Certified and Transmitted Record on Appeal to US Court of Appeals (Atlanta Office) consisting of (1) Sealed Volume of Pleadings containing DEs 134 & 172 re 648 Notice of Appeal. USCA #17−13595−BB. (apz) (Entered: 11/15/2017)
661 Acknowledgment of Receipt of ROA from USCA re 648 Notice of Appeal, filed by United States of America. Date received by USCA: 11/20/2017. USCA Case Number: 17−13595−BB. (apz) (Entered: 12/12/2017)
662 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Southern District of Florida certifies that the record is complete for purposes of this appeal re: 649 Notice of Appeal, Appeal No. 17−13572−BB. The entire record on appeal is available electronically. (apz) (Entered: 12/15/2017)
663 Unopposed MOTION to Withdraw as Attorney by George N. Meros, Jr.. by Justin M. Senior, The State of Florida. Responses due by 3/9/2018 (Meros, George) (Entered: 02/23/2018)
664 ORDER granting 663 Motion to Withdraw as Attorney. Attorney George N. Meros, Jr. is hereby withdrawn from the case. Signed by Magistrate Judge Patrick M. Hunt on 2/23/2018. (hhr) (Entered: 02/23/2018)
665 MANDATE of USCA (certified copy). AFFIRM Order of the district court with court's opinion as to as to 649 Notice of Appeal, filed by T.H., A.R., A.G., C.M., M.D., C.V.; Date Issued: 5/16/2019; USCA Case Number: 17−13572−GG (apz) (Entered: 05/16/2019)

 
 September 28, 2012

MyFlIAMIUt:SCOM

Mr. Thomas E. Perez Assistant Attorney General U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, NW Washington, D.C. 20530
Re: DJ No. 204-18-212
Dear Mr. Perez:
We have received your letter of September 25, 2012, as sent in response to our letter of September 14, 2012, and in follow-up to your Findings Letter of September 4,2012.
In your letter, you express concern about the welfare of Florida's children. The State assures you that the healthcare professionals at the Florida agencies charged with the daily responsibility of ensuring child welfare are equally concerned. Indeed, these hardworking employees at the Agency for Health Care Administration, the Department of Children and Families, and the Department of Health have dedicated their lives and careers to ensuring that this and other vulnerable populations receive necessary medical services in the most integrated setting possible.
Accordingly, after receiving your Findings Letter, the State conducted its own mUlti-agency investigation, during which we visited all nursing facilities where medically complex or medically fragile children reside. We also contacted the parents or caregivers 0 f such children to ensure that they were aware of the services available for them in the community. Based on our investigation, we have concluded that the assertions in your Findings Letter are'unfounded.
The State appreciates the Justice Department's offer to send lawyers from Washington to Florida, sometime in the next two weeks, to collaborate with our healthcare experts regarding the matters identified in the Findings Letter. You also assert that time is of the essence because "[c]hildren in Florida are unnecessarily living in nursing facilities." It is therefore unclear why you would wish to wait a single day to provide us with their identities. Upon our receipt of the children's names, we will immediately conduct an additional, focused investigation of those specific children so that their parents and caregivers can again explore community living options. We will also immediately work with the children's parents or caregivers to address any concerns and to ensure that they are fully aware of the extensive complement of Medicaid services available in the home. Children served by the Florida Medicaid program have such services available to them (up to twenty-four hours a day, seven days a week) whenever a doctor determines such services are medically necessary. These services include: private-duty nursing;

Agency for Health Care Administration Secretary Liz Dudek

Florida Department of Children and Families Secretary David Wilkins

Florida Department of Health Secretary John Armstrong, MD

personal-care assistance; home health-aide servIces; and occupational, physical, and speech therapy.

Your stated reason for not providing us the State with the names 0 f the children at issue, or any of the other supporting information we requested, is that ''the State declined to provide information to the Department in response to our information request .. .." This posturing does not help us address the immediate needs of medically complex or medically fragile children who are at the center of the Justice Department's concern. This position is also inconsistent with your stated desire to work collaboratively to resolve your concerns. If the Justice Department's investigation is truly motivated by a concern over child welfare, and if the goal is truly to avoid protracted and unnecessary litigation that will divert and consume the State's resources, then we should work together immediately to address the circumstances of any children your investigation has identified.

Accordingly, we would like to take the first step in that collaborative process by providing you with documents needed to resolve your concerns. As you know, the Department of Justice has filed a Statement ofInterest in support of the putative class action lawsuit pending in the U.S. District Court for the Southern District of Florida, A.R.lTH, et ai. v. Dudek, et ai. In that suit, Plaintiffs (and the Department in its Statement ofInterest) have made nearly identical legal and factual allegations as those asserted in your Findings Letter. Thus, in the spirit of collaboration, we will provide you a copy of all documents produced by the State in the A.R.lTH suit. We will do so whether or not the Department chooses to share with us the documents we have requested.

Again, as stated in our September 14 letter, when the Justice Department provides the State with the requested documents and information, we believe that the State's healthcare professionals can immediately work to clarify any misinformation that the DOJ's lawyers may have regarding these complex issues. We look forward to working cooperatively to voluntarily address and resolve any and all concerns your attorneys may have.

~ Stuart Williams General Counsel Agency for Health Care Administration 2727 Mahan Dr., Building 3 :il~&;~

&£~ General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, FL 32399-1703

General Counsel Department of Children and Families 1317 Winewood Boulevard, Bldg. 2 Rm. 204 Tallahassee, FL 32399-0700

 
 u.s. Department of Justice
Civil Rights Division

Office of the Assistant Attorney General

Washington, D.C. 20530

The Honorable Pamela Jo Bondi Attorney General for the State of Florida Florida Department of Legal Affairs PL-O I The Capitol Tallahassee, FL 32399-1050

SEP 04 2012

Re: United States' Investigation of the State of Florida's Service System for Children with Disabilities Who Have Medically Complex Conditions, DJ. No. 204-18-212

Dear Attorney General Bondi:

We write to report the findings of the Civil Rights Division's investigation of the State of Florida (the "State") with respect to its system for delivering services and supports to children with disabilities, including those who have medically complex or medically fragile conditions. I During our investigation, we assessed the State's compliance with Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131-12134 (the "ADA"), as interpreted by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999), requiring public entities to ensure that individuals with disabiiities receive services in the most integrated setting appropriate to their needs.

Our review of the State's system reveals that the State fails to meet its obligations under Title II of the ADA and its implementing regulations, 28 C.F.R. Part 35, by unnecessarily institutionalizing hundreds of children with disabilities in nursing facilities. Many children entering nursing facilities in the State are unnecessarily separated from their families and communities for years. With adequate services and supports, these children could live at horne with their families or in other more integrated community settings. The State's policies and practices also place numerous other children who have medically complex or medically fragile conditions at risk of placement in nursing facilities and other institutional settings.

I For the purposes of this letter, the United States adopts Florida's definition of "medically complex," found in Title 590 of the Florida Administrative Code: "'Medically complex' means that a person has chronic debilitating diseases or conditions of one (I) or more physiological or organ systems that generally make the person dependent upon twenty-four (24) hour-per-day medical, nursing, or health supervision or intervention." Fla. Admin. Code R. 5901.010(164). Medically fragile individuals are by definition medically complex. See Fla. Admin. Code R. 5901.010(165).

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

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

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

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During our visits we also collected certain information related to the children residing in these facilities. Based on this data and other data routinely submitted to the federal government by these facilities, we have reviewed a substantial amount of information regarding these children, including each child's length of stay in the facility. We and our consultant have also reviewed hundreds of pages of records, including a large number of care plans written by the facilities and periodic assessments conducted by the State.
We also spoke with family members of many of these children. They shared their stories with us, and many expressed their desire to raise their children in an environment that fosters involvement and participation in the community, close to the child's family and loved ones. They also shared their frustration with the State's administration of services and expressed the general perception that the State does not arrange for services in a manner that would allow their children to remain safely at home.
Families who care for children with medically complex conditions in their homes expressed similar concerns. Although their children currently access community services that allow them to remain at home, the families have faced recent efforts by the State to reduce the availability of these services. For example, a number of families told us of their tireless efforts to ensure their children receive the amount of in-home nursing hours that their children's physicians have prescribed. Repeatedly, however, the State has denied or reduced these medically necessary services. These families told us that the stress added by frequent reductions has impinged on their ability to care for their children.
During our examination of the range of services available within the State's system, we met or held telephone conferences with numerous providers of community-based services for children with disabilities, including those that serve children who have medically complex or medically fragile conditions. We also interviewed stakeholders within the system and a mimber of advocates for families of children and youth with disabilities. Many within these groups articulated frustrations similar to those of the families with whom we spoke. Specifically, they informed us that the State's administration of its service system is driven by considerations other than the health, safety, wellbeing, and development of the children being served, and as a result, families that are able, with appropriate supports, to care for their children at home may be stretched to the point of admitting their child to a nursing facility or other institutional setting.
III. BACKGROUND
The State provides services to children with developmental disabilities and those who have medically complex or medically fragile conditions through a number of State agencies, including the Department of Health ("DOH"), the Agency for Health Care Administration ("AHCA"), the Department of Children and Families ("DCF"), and the Agency for Persons with Disabilities ("APD"). Within DOH, the Children's Medical Services ("CMS") program has lead responsibility for facilitating collaboration among these agencies to arrange for long-term care services for children with certain special health care needs, including medically complex andlor medically fragile conditions.6 Collectively, representatives from each agency participate in a Children's
6 See Fla. Stat. § 20,43, § 391.016, § 391.026; See also DOH, CMS, DCF & AHCA, CMAT Statewide Operational Plan 1 (2010), available at http://www.cms-kids.comlhome/resources/documents/cmat plan.pdf.

-6-

Multidisciplinary Assessment Team ("CMAT"), which convenes for each eligible child under the
age of twenty-one identified as medically fragile or medically complex and needing certain longterm care services.7 For children who receive services from several different agencies, CMAT staff
is directed to work collaboratively with care coordinators from each agency to ensure that the child's needs are met.8

A. Placement of Florida Children in Nursing Facilities

During our investigation we learned that through the CMAT process, the State has overseen the placement of hundreds of children into nursing facilities.9 For a majority of the children

referred to these facilities, the State pays an enhanced rate of over $500 per day per child, which is

more than double what the facility receives from the State to serve elderly individuals and other

adults. 10

.

Through our visits to multiple facilities, reviews of resident records, and conversations with family members, we found that a significant number of children are referred to a CMAT while hospitalized and placed in nursing facilities directly from the hospital. 11 For example, one ten-yearold child sustained a near-drowning accident at the age of six and was discharged from the hospital to a nursing facility, where she has remained ever since. Her mother lives hundreds of miles away from the facility, but tries to visit her daughter as often as she can. She told us, "if I had the resources to take care of my [child], you can be ... sure [my child] would be living with me right now." Another five-year-old child who has quadriplegia and respiratory complications resulting from a car accident has lived in a facility for three years since the accident. His mother wants to bring him home but reports that she has been told that the waiting time for community-based services is five to ten years. She told us, "I cry all the time thinking of [my child] ....There should be something out there to help children come home."
Other children were placed in a nursing facility from home after their families were unable to obtain necessary services and supports through the State Medicaid program. One eighteen-yearold who was born with cerebral palsy moved with her mother to Florida to be closer to other family members in 2007. Upon arriving in Florida, the family discovered that the State would not provide community-based services that the child had previously relied upon to live in the community. As a result, her mother had to place her in a nursing facility to meet her medical needs. The grandmother of another nineteen-year-old young man diagnosed with traumatic brain injury told us that her

7 See CMAT Statewide Operational Plan, at 1-2.
8 See id. at 27.
9 See Fla. Admin. Code R. 59A-4.1295(3) (requiring recommendation from CMAT prior to a child's admission to a nursing facility).
10 See AHCA Website, Nursing Home Supplemental Payments, http://ahca.myflorida.com/medicaid/cost reim/nhsp.shtml (last visited July 11,2012); AHCA Website, Nursing Home Rates, http;llahca.myflorida.com/medicaid/cost reim/nh rates.shtml (last visited July 11,2012).
11 We also learned that some children in the custody of the State had been admitted to a facility through DCF.

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family had no choice but to place their child in a nursing facility because of the State's waiting list for community-based services. "If we took him home, we wouldn't have gotten any help," she told us. The young man still resides at the nursing facility, but is working towards obtaining a degree from a local high school.
Prior to each child's admission to a nursing facility, the State is responsible for assessing whether placement in a community-based setting would be appropriate. The Pre-Admission Screening and Resident Review ("PASRR") 12 is a two-step evaluation process, required by federal law, that is designed among other things to screen individuals entering nursing facilities for intellectual disabilities or related conditions (a "Level I" screening), determine whether the individual needs nursing facility services, assess whether placement in a community setting would be an appropriate alternative, and identify specialized services required to meet the individual's needs (a "Level II" assessment).13 If, after a Level I PASRR screening, it is suspected that a child has an intellectual disability or a related condition, the CMAT is tasked with referring the child to APD for a Level II assessment. 14 According to guidance from the State, the child may be admitted to the facility only after APD has completed a Level II assessment of the child. IS
The PASRR assessment is supposed to determine whether "the individual's total needs are such that his or her needs can be met in an appropriate community setting" and "identifies the specific services which are required to meet the evaluated individual's needs ....,,16 The Medicaid Act further requires that an individual must be promptly re-evaluated to determine whether her needs can be met in the community when there has been a significant change in physical or mental conditionY On paper, State policies are similar-the CMAT must evaluate the need for continued facility placement six months after a child has been placed in a nursing facility. 18 Thereafter, the CMAT must conduct a follow-up meeting at least annually to re-assess the child's status. 19 A more
12 The federal Nursing Home Reform Act requires that states develop and implement a Preadmission Screening and Resident Review ("PASRR") program for all Medicaid-certified nursing facilities. 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100 to 483.138.
13 See 42 U.S.C. § 1396r(e)(7); 42 C.F.R. §§ 483.100 to 483.138.
14 See CMAT Statewide Operational Plan, at 67-68.
15 See id. at 68.
16 42 C.F.R. §§ 483.128(i)(3), 483.132(a)(1). According to the PASRR Technical Assistance Center, established by contract with the Centers for Medicare and Medicaid Services, "The Level II [assessment] must ... determine whether the individual's needs would be better met by living in the community whether or not those services are currently available. Even if [nursing facility] placement is ultimately the most practical option, the Level II should identify the services the individual would need to live in the community, even if those services do not exist or are inaccessible ...." PASRR Technical Assistance Center, PASRR in Plain English, http://www.pasrrassist.org/resoUl'ces/pasrr-plain-english (updated May 10,2011).
1742 U.S.C. § 1396r(e)(7)(B)(iii).
18 See CMAT Statewide Operational Plan at 70.
19 See id.

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frequent meeting is required ifthere is a significant change in the child's clinical status or a meeting is requested.2o
Despite these pre-admission and ongoing review requirements, in our review of data we noted a large number of children who had indications of an intellectual or developmental disability but for whom PASRR evaluations had apparently not been performed, either initially or after there had been an apparent change in the child's condition.21 We learned that CMAT meetings are often done remotely, and that a CMS representative visits the facility only periodically. From our review, we observed that for many children the State has little, if any, active involvement in identifying more integrated service options for the child. Instead, the State largely relies on social workers employed by the nursing facilities to make recommendations for alternative services in the community.22 Yet a number of the social workers we spoke with showed a lack of familiarity with many of the State's home and community-based services that would allow children to live at home with their families.
When a child in a nursing facility turns eighteen years of age, the CMAT is to begin transition planning for the transfer of responsibility to the local Department of Elder Affairs, which gains responsibility for the individual upon his or her twenty-first birthday.23 At a number of facilities, we learned that after their twenty-first birthday, some young adults are simply transferred down the hall to a different ward ofthe facility and housed among elderly residents. We also received information that individuals have been discharged from one nursing facility to another at their twenty-first birthday.
Many children and young adults who have been placed in these facilities remain there for a very long time, even when it is apparent that their medical conditions would permit return to the community with appropriate supports. Among the facilities we visited, the average length of stay for children is over three years. More than fifty children had resided in a facility for over five years. And a number of children had been in a facility for a decade or longer, including some who entered a facility as toddlers or young children and who remain in the facility as adolescents.
20 Id. For children who receive additional Medicaid services that are not included in the nursing facility's per diem rate, a CMS nurse care coordinator must visit the child once every six months to "review the child's plan of care and progress notes, collaborate with the nursing facility care coordinator to ensure appropriateness of care and maintain contact with the family." Id. at 71.
21 Further, children who were admitted to a nursing facility before the age ofthree have allegedly not been screened through the PASRR process because of a State policy that children under three may not, by definition, be diagnosed with mental illness or an intellectual or developmental disability. See CMAT Statewide Operational Plan at 68; Children's Medical Services, Weekly Update, March 7, 2008, available at www.cmskids.comJproviders/early steps/memos/memo 03 07-08.pdf.
22 See generally, CMAT Statewide Operational Plan at 72; see also Fla. Admin. Code R. 59A-4.1295(5)(c) (delegating certain responsibilities to facility staff "to facilitate a smooth transition from the nursing facility to the home or other placement") .
23 See CMAT Statewide Operational Plan, at 71-72.

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B. Home-Based and Community-Based Services
The children in nursing facilities in Florida have a range of diagnoses, but with appropriate services and supports, these children could have their care needs met at home or in other community-based settings. It is apparent, however, that families of many of these children have been told without sufficient basis that their children are not capable of living at home, or have been given very little information, if any, about alternative services that could help support their child in the community.
The specific services that any child will need to address their care needs must be prescribed by the child's treating professionals after an individual assessment, and targeted to meet the child's specific needs. Though their care needs vary, most children who have medically complex conditions are totally dependent on assistance from others to perform activities of daily living, such as eating, bathing, or dressing, and require periodic monitoring and regular therapies. These children will generally require services in the form of a personal care attendant for at least some portion of each day to assist with these needs. In addition, many children with medically complex conditions require frequent skilled nursing services for a set number of hours per day to assist with nutritional and respiratory needs, including care associated with a feeding tube or a ventilator. Other children have high variability in their care needs, including regulation of body temperature or assistance with respiratory technology that requires continuous observation and intervention and which may require ongoing exercise of medical judgment.
The State offers a number of home-based services capable of serving children just like those who reside in nursing facilities in Florida. The State also offers placement in homelike settings other than the child's family home when the child's family is unable to care for the child at home?4 If authorized by the State, these services permit children and young adults to remain at home with their families or in other community-based settings. We found, however, that the State administers these services in a manner that restricts their availability, resulting in limited or no possibility for children in nursing facilities to transition to these services, and placing other children in the community at risk of entry to a nursing facility because they are unable to access the communitybased services that they need.
1. Medicaid State Plan Services
Some community-based services are available through the Medicaid State Plan, including home health services such as private duty nursing and personal care services, and medically
24 Medical Foster Care ("MFC"), for example, is a service coordinated between ARCA, CMS, and DCF to provide family-based care for medically complex children under the age of twenty-one who have been determined unable to safely receive care in their own homes. See DOR, DCF, & ARCA, MFC Statewide Operational Plan, at 1-1 (2009), available at http://www.cms-kids.comJhome/resources/documents/mfc state.pdf. The purpose of the MFC program is "[t]o enhance the quality of life for medically complex and medically fragile foster children, allowing them to develop to their fullest potential ... [and to] provide a family-based, individualized, therapeutic milieu of licensed medical foster homes to reduce the high cost oflong-term institutionalization of medically complex and medically fragile foster children." Id. To be eligible for the MFC Program, an individual must be in the custody ofDCF through a court order or a voluntary placement agreement. See Fla. Admin. Code R. 65C-28.007 (establishing procedures for voluntary outof-home care).

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necessary therapies?5 In recent years, however, the State has implemented restrictions on the availability of these services. The State has implemented utilization review processes, for example, that authorize reviewers employed by a State contractor to reduce or alter the in-home nursing services prescribed by a child's physician.26 These processes are designed to achieve cost savings and to avoid unnecessary or duplicative services. Families, providers, and advocates informed us, however, that these processes are being administered in a way that may lead to increasing the State's costs for the care of children with disabilities-as reduced availability of community-based care results in more frequent hospitalizations and emergency room visits, and long-term institutionalization in nursing facilities.
Additionally, during our investigation we learned of instances of the State's utilization review process being applied irrationally or without appropriate consideration of the child's needs, resulting in service authorizations below the level required to safely meet a child's care needs. For example, one ten-year-old girl with traumatic brain injury who lives at home with her mother and two siblings has had her requests for prescribed in-home care services denied, and her services thereby reduced, during at least four reviews since 2010. These reductions have occurred without any change in her medical condition. Her mother fears that without sufficient medically necessary in-home care services their family will no longer be able to care for their daughter at home, and they will be forced to place the child in a nursing facility.27 She informed us that she will continue to push for the services her daughter needs saying, "I love her and I want her to be home with her family ... I don't think it's fair to put her in an institution."
Every six months, the families of children with prescribed in-home nursing services must recertify that those services are necessary. We learned of many instances of the State repeatedly denying or reducing prescribed hours of in-home nursing at each six-month recertification period, even when there had been no change in the parent's availability or ability to provide care, or the child's medical condition. The parents of one eight-year-old child with a medically fragile condition, for example, both work full time jobs, but want to make sure that their child has safe and appropriate medical care while at home. The child's mother informed us that the services prescribed by her child's physician as medically necessary have been denied or reduced thirteen times since 2006, even though her child's condition has not changed. She told us, "[i]t's a fight and a battle all the time ... [b]y the time one [recertification period] finishes it's time to start all over again." The mother of another eighteen-year-old with cerebral palsy told us that she was "so overwhelmed" with the existing care she provided to her son that she was unable to even attend a hearing contesting further service reductions.
25 See generally, AI-ICA, Home Health Services Coverage and Limitations Handbook, available_at http://pol'tal.flmmis.com/FLPublic/Pol'tals/O/StaticContentiPublic/HANDBOOKS/CL OS OS070 1 Home Health verI. 2.pdf.
26 Fla. Stat. § 409.905(4)(b); see also AHCA Contract No. MED12S; EQ Health Solutions, Florida Division Website: http://fl.eqhs.org/ (last visited July 2,2012).
27 See also discussion infra, pp. lS-20.

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2. Home and Community-Based Waiver Programs
In addition to in-home nursing and other services available through the Medicaid State Plan, other services are available only to individuals who are enrolled in one of the State's size-limited waiver programs for individuals with developmental disabilities. Since July 2005, the number of individuals on the waiting list for services under these programs has grown from 14,629 to more than 21,000 in March 2012, and more than half of the individuals on the list have waited for five years or more.28 Pursuant to current state policies, a child in a nursing facility would not qualify for prioritization on this waiting list.29 Children with medically complex conditions who currently live at home and who may qualify for these waiver services face the barrier of a years-long waiting list for services.
Despite the growth of demand for waiver services, the number of individuals actually enrolled in these programs has decreased by several thousand in the last several years.30 The State's payments to providers of services under these programs have also shrunk. In 2011, for example, APD announced that payment rates to all providers of community-based services under the State's waiver programs for individuals with developmental disabilities would be reduced by 15% to respond to a legislative decrease in funding. 31
28 See Dykes v. Dudek, No. 11-00116 (N.D. Fla.), Exhibit I to Pis.' Mot. for Sum. J. (Defs.' Resp. to Interrog.), ECF No. 125-9, at 4; APD Quarterly Report, May 2012, at 10.
29 See Fla. Admin. Code R. 65G-11.002 (3) (incorporating the crisis criteria specified in Fla. Admin. Code R.65G1.047); Ex. I to Pis.' Statement of Facts, Defs' Answer to Interrog., Dykes v. Dudek, No. 11-00116 (N.D. Fla. May 2, 2012), ECF No. 125-9 ("since 2006 emollment has been limited to individuals who are in crisis."). Pursuant to a budgetary proviso established by the State legislature, AHCA is permitted to transfer funding from nursing facilities to emoll additional individuals onto a number of the State's waivers serving persons with physical disabilities. But this program would not permit children in nursing facilities with developmental disabilities to access waiver services sufficient to meet their needs, because the services provided in these waivers are not targeted to individuals with developmental disabilities. See Ch. 2011-69, Laws of Florida, Specific Appropriation 208. In addition, by definition the Aged and Disabled Adult Waiver is open only to individuals aged 18 and over, rendering it out of reach for a large number of younger individuals currently in nursing facilities, regardless of their disability. See AI-ICA, Alternatives to Nursing Homes, http://apps.ahca.myflorida.comJnhcguide/alternatlves.shtml#AgedandDisabledAdultWaiverProgram (last visited July 13, 2012). A similar budgetary proviso permits transfer of funds for individuals residing in Intermediate Care Facilities, but not nursing facilities, to waiver programs for individuals with developmental disabilities. See Laws of Florida 2011-69, Specific Appropriation 206; Laws of Florida 2012-118, Specific Appropriation 222.
30 See APD Quarterly Report, Nov. 2007, at 2; APD Quarterly Report, May 2012, at 2. The State is also transitioning all individuals currently on these waivers to a single new waiver that we learned may result in a reduction in the amount of waiver-funded services available to an individual. See ,Fla. Stat. § 393.0662; APD Quarterly Report, May 2012, at 2; APD Cost Containment Plan FY 2011-12, at C-2, available at: http://apdcares.org/pubUcations/legisJative/docs/apdcost-containment-plan-20 11-20 12.pdf (noting that implementing new waiver may lead to service decreases).
31See APD, Plan Pursuant to Section 393.0661(7), F.S. For Adjustments Necessary to Comply With the Availability of Monies Provided to the Agency for Persons with Disabilities in the General Appropriations Act, available at
http://apd.myflorida.com/news/news/20 111emergency-plan.pdf.

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

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ADA, the Attorney General's regulations implementing Title II/4 and the Supreme Court's decision
in Olmstead, 527 U.S. at 587. In Olmstead, the Supreme Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate, (b) the affected persons do not oppose community-based treatment, and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of other persons with disabilities. Id. at 607.
In so holding, the Court explained that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." Id. at 600. It also recognized the harm caused by unnecessary institutionalization: "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." Id. at 601.
The ADA's protections are not limited to those individuals who are currently institutionalized. The integration mandate also prohibits public entities from pursuing policies that place individuals at risk of unnecessary institutionalization. See M.R. v. Dreyfus, 663 F.3d 1100, 1116-17 (9th Cir. 2011); see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181 (lOth Cir. 2003) (noting that "nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA's integration requirements").
Our investigation has produced substantial evidence that the State fails to provide services to hundreds of children currently in nursing facilities in the most integrated setting appropriate to their needs, and places many others at risk of institutionalization, in violation of its obligations under the ADA and Olmstead.
B. Nursing Facilities Are Segregated, Institutional Settings
The nursing facilities in which hundreds of Florida's children and young adults currently reside are segregated, institutional settings. Cf., e.g., Day v. District of Columbia, No. 10-cv-2250ESH, 2012 WL 456491, at *22 (D.D.C. 2012) (denying motion to dismiss ADA claim regarding institutionalization in nursing facilities); Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Conn., 706 F. Supp. 2d 266 (D. Conn. 2010) (same); Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) (same); Long v. Benson, No. 4:08cv26-RH/WCS, 2008 WL 4571904, at *3 (N.D. Fla. Oct. 14,2008) (certifying class of individuals who were institutionalized in nursing homes); Colbert v. Blagojevich, No. 07 C 4737, 2008 WL 4442597, at *10 (N.D. Ill. Sept. 29, 2008) (same); Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999) (denying motion to dismiss ADA claim regarding institutionalization in nursing facilities). As the Supreme Court has recognized, undue segregation causes harm to individuals with disabilities who are unnecessarily institutionalized. See Olmstead, 527 U.S. at 601.
34 The regulations provide that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35 .l30(d). See also 28 C.F.R. § 41.51(d). The preamble discussion of the "integration regulation" explains that "the most integrated setting" is one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible[.J" 28 C.F.R. § 35.130(d), App. B. at 673 (2011).

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

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

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

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

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2. The State Unduly Limits the Availability a/Community-Based Services
The State also places undue limits on the availability of community-based resources that could prevent entry into nursing facilities and allow children to remain in or return to the community. The State has implemented measures that have expanded nursing facility capacity, including an enhanced per diem rate for medically fragile children, while simultaneously limiting or reducing the availability of community-based care. Families who care for children with medically complex conditions in their homes reported frustrations with policies regarding home and community-based services, and, in particular, with the constant threat of service reductions.
For example, as described above, the State has established utilization review processes for certain in-home services. These processes require families of children receiving in-home services to recertify every six months that the services are medically necessary. However, on numerous occasions, the State has reduced or denied the availability of prescribed in-home services at these recertification periods, even where the child's condition and their families' ability to provide care had not changed. These reductions result in shifting care to the child's family, even though they may be unavailable or unable to safely provide the care the child needs. These families must then appeal the reductions in services, resulting in lengthy reconsideration and appeals processes that impinge on their ability go to work, care for their children, and conduct other business of the family. A number of families who have been subject to ref,eated service reductions recently joined a lawsuit against State officials challenging these practices. 7 They allege that State policies and practices have led to repeated denials of medically necessary services, in violation of both the ADA and the Medicaid Act resulting in their children having to enter nursing facilities to receive necessary services. 38
The United States Court of Appeals for the Eleventh Circuit has recognized that such practices may violate the EPSDT requirements of the Medicaid Act. See Moore ex. reI. Moore v. Reese, 637 F.3d 1220, 1259 (11th Cir. 2011) ("When a state Medicaid agency has exceeded the bounds of its authority by adopting an unreasonable definition of medical necessity or by failing to ensure that a required service is 'sufficient in amount, duration, and scope to reasonably achieve its purpose,' aggrieved Medicaid recipients have recourse in the courts.") On remand, a district court recently found the unreasonable application of policies aimed at shifting in-home skilled care to a child's caregivers violates the Medicaid Act's requirements that states must ensure the availability of medically necessary services for Medicaid-eligible children. See Moore ex reI. Moore v. Cook, 2012 WL 1380220, at *10 (N.D. Ga. Apr. 20, 2012) ("I am convinced that the real reason for reducing [plaintiffs] nursing care hours was an unreasonable application of the [defendant's] policy to wean nursing care and shift more of the burden to her caregiver"). And in another case, the court found that such practices also violate the ADA. See Royal ex reI. Royal v. Moore, 2012 WL 2326115, at *9 (N.D. Ga. Jun. 19,2012) (holding State violated the ADA and the Medicaid Act where "the real reason [for the State's reduction in in-home nursing] was not due to an individualized determination of medical necessity, but due to [defendant's] policy and practice ... to wean nursing care and to shift more of the burden of skilled care to [plaintiff s] parent caregiver over time").
37 See A.R. v. Dudek, No. 12-60460 (S.D. Fla., filed Mar. 13,2012).
38 See id.

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Service limitations and reductions in the rates paid to providers of community-based care have also placed strains on families and providers. Families told us they are afraid that, over time, such measures will result in the admission of their children to nursing facilities or other institutional settings. On more than one occasion, we learned of families with one or more children or young adults with disabilities who have had to choose which of their children would live at home and which would live in an institution. Providers of community-based services and other stakeholders expressed similar concerns regarding the State's administration of these programs and the health and safety of recipients. One provider of community-based services informed us of at least two individuals who had previously been in their care with waiver-funded services and who were placed in a nursing facility because the State denied continued eligibility for the specific waiver-funded service.
These concerns also appear to be rooted in the State's policies and practices, which in recent years have led to reduced availability of home and community-based waiver programs. In the last several years, the number of individuals served through these programs has decreased, resulting in a growing list of children waiting years for services and having access to a waiver slot only once they have literally deteriorated to the point of "crisis." The State has also systematically reduced or rejected funding for community-based services-in 2011, for example, the State rejected nearly $40 Million in federal dollars designated specifically to support individuals transitioning from nursing facilities and other institutional settings to the community.39
Although the State has added limitations or imposed restrictions on the availability of community-based care for children with disabilities, it has consistently raised the enhanced per diem rates offered to facilities housing children who have medically fragile conditions.4o It has also ensured that nursing facilities seeking to serve more children can do so-in 2011, at the request of one nursing facility serving children, the State removed a regulatory limit that had previously limited the number of children served at a nursing facility to sixty.41 In the wake of these changes,
39 In early 2011, Florida applied for and received a $37.5 million grant from the federal Centers for Medicare and Medicaid Services through the Money Follows the Person initiative, which funds support for individuals transitioning to the community from nursing facilities and other institutions. See generally, CMS Website, Money Follows the Person, http://www.medicaid.govIMed icaid-CHIP-Program-Information/By-Topics/Long-Term-Services-andSupport/Balancing/Money-Follows-the-Person.html (last visited July 11,2012). In June 2011 the Florida Joint Legislative Budget Commission voted to prevent the release of these funds. See Florida Joint Legislative Budget Commission, June 24 Meeting Packet, at 49, available at http://www.leg.state.fl.us/Data/Committees/JointlJLBC/Meetings/Packets/062411.pdf (describing MFP grant and AHCA request for $2 Million in funds to implement the grant); Florida Joint Legislative Budget Commission Report, at 13, available at http://www.leg.state.fl.us/Data/Committees/Joint/JLBC/Actions/062411.pdf (rejecting AHCA request); see also Linda Shrieves, Florida reiects millions more in federal health-care grants, Orlando Sentinel (Jun. 29, 2011), http://articles.orlandosentinel.com/20 11-06-29/health/os-florida-federal-grants-20 11 0629 1 nursing-homes-federalgrant-money-on-nursing-home-care.
40 Since January 2005, the supplemental rate paid to facilities serving medically fragile children has increased by 23%. See AHCA Website, Nursing Home Supplemental Payments, http://ahca.myflorida.com/Medicaid/cost reimlnhsp.shtml (last visited July 11,2012).
41 See Fla. Admin. Code. R. 59A-4.1295(7)(e) (2010); Plantation Nursing & Rehab. Ctr. v. Agency for Health Care Administration, No. lO-10313RX, 2010 WL 5135584, at *1 (Fla. Div. of Admin. Hearings, Dec. 14,2010).

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

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

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