UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DUBOIS, et al.,

Plaintiffs,

v.

LEVINE, et al.,

Defendants.

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

PLAINTIFFS’ MOTION AND MEMORANDUM OF LAW TO COMPEL

PRODUCTION OF DOCUMENTS AND FOR ENTRY OF

AN ORDER OF PROTECTION

Pursuant to Fed. R. Civ. P. 37(a) and N.D. Loc. R. 26.2(D), Plaintiffs, through

their undersigned attorneys, hereby move this Court for entry of an Order

compelling Defendants to produce the documents requested. With regard to the

disclosure of class members’ confidential personal and medical information, for the

reasons stated here and in Plaintiffs’ Memorandum in support of this motion,

Plaintiffs request that the documents be released under an Order of Protection

pursuant to Fed. R. Civ. P. 26(c)(2). Plaintiffs request that the Court enter the

proposed Order of Protection attached as Exhibit 1. As grounds for the motion,

Plaintiffs state:

1. This action was filed on April 11, 2003. (Dkt. #1.)

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2. Defendants operate a Medicaid home and community based care

program for persons with traumatic brain or spinal cord injuries (the Waiver

Program) to enable these individuals to avoid unnecessary institutionalization and

to receive medically necessary services while living at home. (Dkt. #1 ¶¶2,37.) As

a result of under funding and poor administration, Defendants have forced the

named Plaintiffs, and over 350 class members, to wait years to receive community

based services, without any notice of their right to challenge this decision, even

though there are at least 60 unfilled slots for enrolling persons into the Waiver

Program. (Id. ¶¶4, 40); (Dkt. #111, Ex. A, at 67 & Ex. B, at 48.) Although

Defendants will provide funding for these individuals to live in institutions, they

refuse to fund their community based services through the Waiver Program. (Dkt.

#1 ¶¶69, 74 & 78.) Defendants’ actions have caused Plaintiffs to be unnecessarily

institutionalized, or placed at risk of institutionalization, in violation of federal law.

(Dkt. #1 ¶¶1-3.)

3. Plaintiffs allege that Defendants’ systemic and continuing failure to

provide the class representatives, and class members, with Waiver Program

services violates the Americans with Disabilities Act (ADA), Section 504 of the

Rehabilitation Act of 1973 (Section 504), the Medicaid Act and the Due Process

Clause of the United States Constitution. (Dkt. #1 ¶¶1-3, 79-86.) Plaintiffs seek

declaratory and injunctive relief to remedy these systemic violations. (Id. ¶¶32-33.)

4. On March 1, 2004, the Court certified a class and denied Defendants’

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1 The class is defined as: All individuals with traumatic brain and spinal cord injuries

who the state has already determined or will determine to be eligible to receive BSCI

Waiver Program Services and have not received such services. Id.

2 As noted in Plaintiffs’ Motion to Extend Discovery, the parties were planning on

conducting discovery in this case through the month of June with, at least, an implicit

understanding between counsel that the current scheduling order would need to be

extended past the current June 1, 2004 deadline to accommodate all schedules involved.

(Dkt. #101.) If Defendants’ counsel had raised their objection to extending discovery before

May 26, 2004, Plaintiffs would have filed a motion to compel production and to extend

discovery in order to have sufficient time to resolve these issues. In any case, the

Magistrate Judge has Ordered a new discovery cutoff date of July 23, 2004. (Dkt. #108.)

3

Motion to Dismiss this case. (Dkt. #75.)

1

5. On October 8, 2003, Plaintiffs served their First Request to Produce

Documents. Ex. 2. On November 25, 2003, Defendants submitted a number

documents and raised objections to some of the requests on the grounds that the

requests violated federal and state privacy laws. Ex. 3. These requests are

continuing and Defendants are required to file supplementary answers and

documents if further or different information responsive information becomes known

to them.

6. At the deposition of two designated agents of Defendant Department

of Health on March 24 and 25, 2004, Plaintiffs renewed their requests for several

documents which had been previously requested and not produced (among which

several are at issue in this motion). By letter dated May 21, 2004, Plaintiffs again

renewed the requests for the documents which were not provided.

2

(Dkt. #100, at

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3 Defendants’ filed a Motion for Protective Order and asked that the discovery

requested by Plaintiffs in their letter of May 21, 2004, not be had or, in the alternative, that

this Court issue an order requiring individual notice to each person, and consent obtained,

before any disclosure of information pertaining to those people is made. (Dkt. #100, at 5-

6.). The Magistrate Judge denied this motion as moot. (Dkt. #108.)

4 Defendants’ counsel have represented in their motion, and in a May 26, 2004,

phone call between counsel, that they will provide documents in response to requests nos.:

9, 29, 33 and 45. Accordingly, Plaintiffs have not addressed those requests here.

4

Ex. A.) Defendants have refused to provide these documents.

3

7. The documents that Defendants refuse to provide contain critical

information concerning individual class members, including their identities, as well

as Plaintiffs’ claims of systemic violations of the Medicaid Act, ADA and due

process. Plaintiffs are not able to obtain the information sought about class

members from any source.

8. The specific Requests to Produce to which Defendants objected, and

Defendants’ specific objections, are as follows:

4

Request No. 17:

All documents which refer to persons that have applied for and/or are in

need of BSCIWP services, but have not been provided with services, on a

monthly basis since the Waiver was approved by CMS, including but not

limited to documents which show the number of individuals, their names and

contact information, their initial application date, the length of time on the

waiting list for each person, where each person resided at the time of their

application, the services needed by each person and the estimated cost of

providing such services.

Defendants’ Objection:

This requests [sic] calls for the production of documents that are privileged

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5

and confidential under Section 413.441, Fla. Stat., and HIPAA. [Health

Insurance Portability and Accountability Act, 42 U.S.C. § 1320d-6]

Request No. 18:

All documents which refer to all individuals that have received BSCIWP

services on a monthly basis since the Waiver was approved by CMS,

including but not limited to documents which show the number of individuals,

their names and contact information, their initial application date, the length

of time on the waiting list for each person (if applicable), where each person

resided at the time of their application, where each person currently resides,

the services needed by each person and the cost of providing such services.

Defendants’ Objection:

This requests [sic] calls for the production of documents that are privileged

and confidential under Section 413.441, Fla. Stat., and HIPAA.

Request No. 19:

All files, records and other documents that concern each applicant for and/or

recipient of services through the BSCIWP including but not limited to all

BSCIP [Brain Spinal Cord Injury Program] and BSCIWP files for individuals

placed on a waiting list for BSCWIP services.

Defendants’ Objection:

This requests [sic] calls for the production of documents that are privileged

and confidential under Section 413.441, Fla. Stat., and HIPAA.

Request No. 20:

All documents that refer to contact between any nursing home residents and

the BSCIP or BSCIWP regarding community-based services since the

BSCIWP was approved by CMS.

Defendants’ Reponse:

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5 Defendants produced a description of the Institutional Transition Initiative (ITI) and

a draft of a study titled, “Promising Practices Nursing Home Transition,” dated September

2003. Plaintiffs informed Defendants that these documents were non-responsive. By letter

dated May 21, 2004, Plaintiffs clarified the information sought and their belief that

responsive documents existed. For example, during the deposition of named Plaintiff

Michael Dubois, Defendants’ counsel produced a written assessment done as part of the

Defendants’ ITI. Plaintiffs’ counsel had never been provided with a copy of this document

in discovery and believe that similar documents for other clients concerning the ITI exist and

have not been produced. (Ex. 4, at 34-36.)

6

Initial: See DOH exhibit #s 20, 20A and 20B.

5

Request No. 27:

All documents which refer to any individuals that were institutionalized in a

hospital, nursing home or other facility, after they applied for BSCWIP

services, including but not limited to documents which show the number of

individuals, their names and contact information, their initial application date,

the length of time on the waiting list for each person (if applicable), where

each person resided at the time of the their application, where each person

currently resides, the services needed by each person and the estimated

cost of providing such services.

Defendants’ Objection:

This requests [sic] calls for the production of documents that are privileged

and confidential under Section 413.441, Fla. Stat., and HIPAA.

Request No. 30:

All documents which specifically state the numerical position and

prioritization of each of the named Plaintiffs on the BSCIWP waiting list for

services in relation the other individuals on the waiting list, including but not

limited to documents which reflect any changes in such position since each

individuals’ application for services.

Defendants’ Objection:

This requests [sic] calls for the production of documents that are privileged

and confidential under Section 413.441, Fla. Stat., and HIPAA.

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6 This objection was raised for the first time in Defendants’ Motion for Protective

Order and was not cited in any discovery response. (Dkt. #100.) Although that motion was

dismissed as moot, Plaintiffs have addressed the objections raised by Defendants based

on the assumption that those same arguments will be raised again in Defendants’

opposition to this motion.

7 The BSCIP is the Brain and Spinal Cord Injury Program operated by Defendant

Department of Health. The BSCIP is the entry point for individuals into the Waiver Program

and provides limited short-term rehabilitative services to persons with traumatic brain or

spinal cord injuries.

7

Request No. 34:

All documents that involve persons that have moved from nursing homes,

hospitals or other institutional care facilities and into a community-based

placement through the BSCIWP, including but not limited to the names,

contact information for each person, the date of their initial application, the

length of time on the waiting list (if applicable) for each person, the cost of

services provided for each person and the specific services provided to each

person.

Defendants’ Objection:

Initial: The agency does not have documents concerning this request.

Supplemental: The information requested by [this paragraph] implicates

privacy rights as well as privilege and confidentiality under state and federal

law, particularly the Health Insurance Portability and Accountability Act

(HIPAA) of 1996. 42 CFR 431.300 et. seq., requires virtually absolute nondisclosure of any Medicaid recipient information without prior permission of

each recipient.

6

Request No. 37:

All documents relating to the survey conducted by the BSCIP

7

, pursuant to

a contractual relationship with the University of Florida and Health

Management Associates, including but not limited to:

a) Names, addresses and phone numbers of individuals who

were surveyed (or who the surveyors attempted to contact as

part of the survey);

b) Raw data associated with the survey responses;

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8 This objection was raised for the first time in Defendants’ Motion for Protective

Order and was not cited in any discovery response. (Dkt. #100.) See FN 6.

8

c) Notes made by persons administering the survey;

d) Contracts for any services relating to the BSCIP survey,

including but not limited to contracts involving UF, the Florida

Department of Health and Health Management Associates,

Inc.;

e) Drafts of the survey;

f) Any documents referencing the methodology relied upon in

conducting the survey;

g) Any correspondence and/or memoranda between the BSCIP,

UF and any other entity regarding the survey;

h) Any background documents which concern the development

of, purpose for and any contract(s) for the survey;

i) Any instructions to individuals conducting the survey; and

j) Any documents describing the time frame for the survey.

Defendants’ Objection:

Initial: The agency does not have documents concerning this request

Supplemental: The information requested by [this paragraph] implicates

privacy rights as well as privilege and confidentiality under state and federal

law, particularly the Health Insurance Portability and Accountability Act

(HIPAA) of 1996. 42 CFR 431.300 et. seq., requires virtually absolute nondisclosure of any Medicaid recipient information without prior permission of

each recipient.

8

Request No. 46:

All documents which reflect and/or refer to any complaints made by any

individual concerning the BSCIP and/or BSCIWP since the Waiver was

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9Plaintiffs informed Defendants that the documents produced by are non-responsive

to this request and requested that Defendants provide any responsive documents or a

written statement that none exist.

10 This objection was raised for the first time in Defendants’ Motion for Protective

Order and was not cited in any discovery response. See FN 6.

11 Plaintiffs’ counsel had a telephone conference with Defendants’ counsel on May

26, 2004, in an attempt to resolve this dispute without judicial action, with no success.

9

approved by CMS.

Defendants’ Response:

Initial: See DOH exhibit #46.

9

Supplemental: The information requested by [this paragraph] implicates

privacy rights as well as privilege and confidentiality under state and federal

law, particularly the Health Insurance Portability and Accountability Act

(HIPAA) of 1996. 42 CFR 431.300 et. seq., requires virtually absolute nondisclosure of any Medicaid recipient information without prior permission of

each recipient.

10

9. Undersigned counsel certifies that she has conferred with opposing

counsel in a good faith effort to resolve this dispute without judicial action.

11

Defendants’ counsel also stated that he opposes this motion.

WHEREFORE, Plaintiffs respectfully request that this Court issue an Order,

in an expedited manner, compelling Defendants to produce documents responsive

to requests nos.: 17 through 20, 27, 30, 34, 37 and 46, and issue the attached

proposed Order of Protection to safeguard the confidentiality and privacy

concerning the information disclosed.

MEMORANDUM OF LAW

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12 Defendants appear to agree with this standard by their reliance on Welsch v. City

and County of San Francisco, 887 F. Supp. 1293 (N.D. Cal. 1995). (Dkt. #100 at 4.)

However, Defendants fail to mention the second prong of the inquiry: the balancing of the

interests.

10

ARGUMENT

I. Standards for Granting a Motion to Compel and for an Order of

Protection

Parties may obtain discovery regarding any matter, not privileged, that is

relevant to the claim or defense of any party. Fed. R. Civ. P. 26(b)(1). Relevant

information need not be admissible, as long as the discovery appears reasonably

calculated to lead to the discovery of admissible evidence. Id. A party may move

to for an order to compel the production or inspection of documents with respect to

any objection or any failure to allow inspection. Fed. R. Civ. P. 34(b); Fergis &

Selck Architects v. Suzy EDL Interiors, 2003 WL 23147405 (M.D. Fla. 2003).

Whether or not to grant the order to compel is at the discretion of the trial court. Id.

Federal Rule of Civil Procedure 26(c)(2) permits a court, upon motion by a

party, to enter a protective order to provide that disclosure or discovery may be had

only on specified terms and conditions. The prerequisite of such an order is a

showing of “good cause” made by the party seeking protection. Chicago Tribune

Co. v. Bridgestone/Firestone, 263 F.3d 1304, 1313 (11th Cir. 2001). In determining

“good cause,” courts must balance the party’s interest in obtaining access against

the other party’s interest in keeping the information confidential. Id.

12 Cf. Landry

v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (11th Cir. 1990) (motion to compel

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13 Defendants’ reference to this statute is erroneous as the provision cited does not

exist. Plaintiffs believe the intended reference is to §381.775, Fla. Stat. (2004) which

concerning confidentiality of BSCIP client information and will address that section for

purposes of this opposition.

11

denied where discovery not needed for factual proof in response to summary

judgment motion).

II. Plaintiffs’ Class Counsel Have a Right of Access to Class

Members’ Records

In summary, Defendants objected to document requests numbers: 17, 18,

19, 27, 30, 34, 37 and 46 based on an assertion that the documents and the

information they contain are privileged and confidential under § 413.441, Fla.

Stat.,

13

and provisions of the Health Insurance Portability and Accountability Act of

1996, (HIPAA) 42 U.S.C. § 1320d-6. Defendants, in their Motion for Protective

Order, which was dismissed as moot, argued that these documents were also

subject to confidentiality under 42 C.F.R. § 431.300 et seq.; (Dkt. #100, at 3 n.2.)

Defendants object to providing responsive documents to request number 20 which

involves Waiver Program and BSCIP client information. Although not raised by

Defendants in their motion, Plaintiffs believe that Defendants would assert that the

client information requested in document request number 20 is also subject to the

same privilege and confidentiality provisions cited above and should be considered

as part of this motion. As discussed below, Defendants’ reliance on certain federal

and state confidentiality laws is misplaced and this Court can, and should, require

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14 As indicated above and discussed below, Plaintiffs agree that an Order of

Protection should be entered in this case, but one that is less burdensome than that

suggested by Defendants in their previous Motion for Protective Order which was denied

as moot. (Dkt. #100.)

12

the disclosure of the information, albeit under an Order of Protection.

14

In light of the certification of a class in this case, the scales tip in Plaintiffs’

favor for disclosure of the information. See e.g., Rosie D. v. Swift, 256 F. Supp. 2d

115 (D. Ma. 2003) (granting motion to compel production of class members’ records

from state agency by applying balancing test where state privacy statute applied in

case alleging failure to provide community based services to individuals with

disabilities). Rosie D. is entirely consistent with well established law that class

counsel is entitled to access private information. See Ginest v. Board of Cty.

Comm., 306 F. Supp.2d 1158 (D. Wy. 2004) and cases cited there including Lora

v. Bd. of Educ. of City of New York, 74 F.R.D. 565 (E.D.N.Y. 1977).

In Ginest, plaintiffs sought production of medical records of inmates confined

to a correctional facility. The records were sought to discover evidence to support

allegations of systemic deficiencies in medical care in violation of a consent decree.

The court observed that“courts are virtually unanimous in holding that class counsel

in institutional litigation of this nature has a right to examine client medical records

to determine whether a systemic failure exists in the institution’s health care system.

Id. at 1159. The court further observed that:

...in class action institutional litigation ...’the individual

privacy interest and state policies, through [sic]

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cognizable, cannot prevail either as a constitutional or

federal evidentiary matter.’ [citations omitted].

Individual and state privacy interests must yield to

the federal interest in discovering whether public

officials and public institutions are violating federal

civil rights. ‘[I]n a civil rights action brought pursuant

to a federal claim, statutory privileges are not binding.’

[citation omitted]. In reaching this conclusion, the Court

is influenced by the fact that the disclosure of the

requested medical information ‘is sought by

professionals whose purpose is to protect the

constitutional rights of the Plaintiff class,’ and class

counsel will keep the information confidential except to

the extent that disclosure is necessary to advise the

Court of violations of federal rights.

Id. at 1159-60 (emphasis supplied).

Plaintiffs do not have any other access to the information sought. Defendant

Department of Health, through the administration of the Waiver Program, is the sole

possessor of the information concerning class members, including their identities.

As discussed above, this lawsuit seeks to remedy systemic violations in Defendants’

administration of the Waiver Program which provides home and community based

services to individuals with traumatic brain or spinal cord injuries. The program is

intended to prevent unnecessary institutionalization, and risk of institutionalization,

of persons with disabilities in order to obtain long-term care. Based on the

experiences of the named class members, there is good cause to believe that there

are wide-spread systematic and systemic violations of class members’ federal

rights. (Dkt. #111 and exhibits.) Without the information requested, Plaintiffs will

be unable to review and document these violations and thus, will be unable to

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adequately safeguard and protect the interests of the class members. Without

access to class members’ records, Defendants are free to carry on these violations

unchallenged and Defendants will not be compelled to provide the services that

class members need to live full, independent lives and ensure that they are provided

with the rights guaranteed under the Constitution and federal laws.

Contrary to Defendants’ argument, the documents sought by Plaintiffs are

relevant to the class claims of systemic violations in the administration of the Waiver

Program. For example, Defendants’ designated agents, who administer the Waiver

Program, testified that individuals on the waiting list for the program, including the

named Plaintiffs, have been denied services because the program has determined

that either they are not in immediate need of community based services, lack

“community supports,” are not Medicaid eligible or due to a lack of providers.

(Dkt.#104, Ex.A at 32, 62; Ex. 5, at 5.) These officials also claim that individuals on

the waiting list have been informed of these decisions and provided internally

contradictory testimony about whether and what type of due process notices are

provided to clients that apply for, are determined ineligible and/or are placed on a

waiting list for Waiver Program services. Ex. 6, compare ¶¶35, 66. The Medicaid

Act and constitutional due process require written notice and an opportunity to be

heard on these determinations about eligibility. However, the named Plaintiffs have

never been informed, in writing or otherwise, of such determinations. Ex. 7, at 17-

18; Ex. 8 at 38.) Based upon Defendants’ representations, the undisclosed class

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members’ records should contain information about these determinations and

whether Defendants have properly notified class members’ of these decisions and

their rights. The only way for Plaintiffs to obtain conclusive evidence as to whether

or not Defendants’ contradicted assertions concerning the provision of due process

rights are true or not is to examine the class members’ files. To prove the systemic

due process violations for the class, Plaintiffs need the only source of that

information – the actual client records which Defendants’ claim contain such

notices. The production of these documents will provide relevant evidence

regarding Plaintiffs’ Medicaid and due process claims.

The information sought is also relevant to the class claims that Defendants’

have violated the Medicaid Act, the ADA and Section 504 by: failing to provide

services to individuals with traumatic brain or spinal cord injuries in the setting most

integrated to their needs and, thus, forcing class members to live an institution or

be placed at risk of institutionalization in order to obtain needed care; failing to have

“a comprehensive, effectively working plan” for placing qualified persons with

disabilities in less restrictive settings and to have a waiting list for services that

moves at a “reasonable pace.” Olmstead, 527 U.S. at 598-601 & 605-06. This

information is also relevant to Plaintiffs’ claims about Defendants’ systemic failure

to provide services with “reasonable promptness” and failure to provide class

members with the “freedom of choice” between institutional and community based

care in violation of the federal Medicaid laws. 42 U.S.C. §1396a(a)(8); 42 U.S.C. §

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16

1396n(c)(2); Doe v. Chiles, 136 F.3d 709, 721 n. 21 (11th Cir. 1998). The only way

for Plaintiffs to prove these systemic violations is to examine class members’

records which include information about when they applied for services, how long

they have been on a waiting list and whether class members have been forced to

be institutionalized (or placed at risk of such) due to Defendants’ policies and

procedures in administering the Waiver Program. Defendants should not be

permitted to prevent Plaintiffs from access to information relevant to proving their

claims.

III. Defendants’ Production and Disclosure of the Requested

Documents Does Not Violate Federal or State Privacy Laws.

Defendants argue that HIPAA prohibits disclosure of the requested

documents which contain client personal and medical information. Plaintiffs do not

dispute that HIPAA’s protections apply to the information sought. HIPAA and its

implementing regulations impose certain constraints on the use or disclosure of

protected health information about an individual that is maintained in the records of

a “covered entity.” 42 U.S.C. § 1395ss(d)(3)(A); 45 C.F.R. §§ 160 & 164. Covered

entities include health plans, the definition of which explicitly includes “the Medicaid

program under title XIX of the Act, 42 U.S.C. 1396, et seq.” 45 C.F.R. § 160.103.

Although HIPAA’s protections apply to the documents Plaintiffs seek, the

documents can be produced by Defendants pursuant to one of the specific

exceptions to HIPAA’s non-disclosure requirements.

It is clear that federal regulations allow disclosure of protected health

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17

information in the course of any judicial or administrative procedure in response to

a discovery request. 45 C.F.R. § 164.512(e). In order for this exception to apply,

the covered entity must be given satisfactory assurances that the party seeking the

information has made reasonable efforts to secure a protective order. Id. at

§160.512(e)(1)(ii)(B). “Satisfactory assurances” consist of a written statement and

accompanying documentation demonstrating that the party seeking the protected

health information has requested a qualified protective order from the court. 42

C.F.R. § 164.512(e)(1)(iv). Cf. A Helping Hand, LLC. v. Baltimore Cty., Md., 295

F.Supp.2d 585, 591-593(D. Md. 2003) (recognizing the applicability of HIPAA

regulations permitting disclosure in judicial proceeding but not requiring disclosure

on other grounds).

Plaintiffs do not object to the entry of such an order. A qualified order of

protection prohibits the parties from using or disclosing the protected health

information for any purpose other than the litigation or proceeding for which such

information was requested and requires the return to the covered entity or

destruction of the protected health information (including all copies made) at the end

of the litigation or proceeding. 42 C.F.R. § 164.512(e)(1)(v). Plaintiffs requested

that Defendants enter into a stipulated consent protective order to safeguard

confidentiality under HIPAA and state privacy law. (Dkt. #100, at Ex. A.)

Defendants responded to that request by refusing to provide the documents and

filing a motion for protective order. (Dkt. #100.) Plaintiffs proposed Order of

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18

Protection meets HIPAA’s requirements. The information sought can and should

be disclosed under the terms of the proposed Order of Protection.

Moreover, policy reasons mitigate against Defendants’ incorrect interpretation

of HIPAA’s requirements as an absolute bar to disclosure without individual client

authorizations. If Defendants’ interpretation of HIPAA were accepted, litigation on

behalf of a class of individuals seeking Medicaid and/or other medical services

would be impossible. Such an absurd result cannot, and was not, intended by

Congress and the agency responsible for enforcing HIPAA. 45 C.F.R. § 164.512(e).

Nor do federal Medicaid regulations prohibit disclosure of recipient

information without prior permission of each recipient. (Dkt. #100, at p.3, FN 2.)

Similar to HIPAA, these regulations allow disclosure of information under certain

circumstances that are present in this case.

Medicaid regulations provide that information may be disclosed for purposes

directly connected with the administration of the state plan. 42 C.F.R. § 431.301.

Such purposes include conducting a civil proceeding related to the administration

of the plan. 42 C.F.R. § 431.302(d). Plaintiffs’ attorneys are conducting a civil

proceeding related the administration of a part of the Medicaid state plan - Florida’s

Medicaid Waiver Program for persons with traumatic brain or spinal cord injuries.

Disclosure is authorized in this instance.

Federal Medicaid regulations also require that access to information be

restricted to persons who are subject to standards of confidentiality comparable to

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15 The statute also appears to permit disclosure of client’s representative upon an

order of a judge of a court of competent jurisdiction following a finding in an in camera

proceeding that the records are relevant and should be released. § 381.775(1)(d), Fla.

Stat. (2004). An in camera review would reveal that these documents are relevant to

representation of the class, prosecution of the class claims and can be disclosed under

state law. However, as discussed above, disclosure through an authorization signed by the

client’s representative is legally sufficient under the statute. Plaintiffs do not believe than

an in camera review is required under Florida law, assuming it applies and is not necessary

under federal law.

19

those of the agency. 42 C.F.R. § 431.306(b). That requirement is satisfied through

Plaintiffs’ proposed Order of Protection which would impose such standards of

confidentiality. The regulations also contemplate the release of information, in

comparable circumstances through a subpoena, and require only that the Court be

informed of the applicable statutory provisions, policies and regulations restricting

disclosure. 42 C.F.R. § 431.306(f). Through this motion and entry of the proposed

Order of Protection, the court is properly informed of the confidentiality restrictions

that apply.

Assuming arguendo that federal law does not control, Defendants argument

that disclosure of these records would violate Florida law is also misplaced in light

of the plain statutory language. Information about applicants or recipients in the

BSCIP may be released “to the applicant or recipient, or his or her representative”

upon receipt of a written waiver. §381.775(a) (emphasis added). The BSCIP and

Waiver Program’s current practice, in compliance with HIPAA and Florida law,

permits the disclosure of clients’ information through the written authorization of the

client’s legal representative. Ex. 9.

15 Plaintiffs’ counsel has obtained the BSCIP

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16 Defendants also asserted that because they have filed a motion to decertify the

class, the court should, in effect, assume that the class is no longer certified until it rules

upon the motion. (Id., at 3.) This assertion is baseless. This Court has determined that the

class meets certification requirements and unless it find otherwise, Defendants are not

entitled to delay discovery simply by requesting that the Court reverse its earlier decision,

especially in light of the discovery cutoff date. The failure to produce these documents in

a timely manner could cause undue delay.

20

and Waiver Program records of the named Plaintiffs and other individuals that have

applied for and/or that are receiving services by signing an authorization as the legal

representative of those individuals. Since a class has been certified, Plaintiffs’

counsel is the legal representative of all class members and has the right to access

such records under §381.775(a), Fla. Stat..

III. Individual Notice and Consent Do Not Need to be Obtained for

Each Class Member Before Information is Disclosed.

In their motion for protective order, Defendants requested that this Court

require that individual notice be given to each class member and consent obtained

from each before any such disclosure is made.

16

(Dkt. #100.) As discussed above,

neither HIPAA, the Medicaid laws, nor state law require the imposition of such a

restrictive and onerous order. Moreover, this case has been certified as a class

action by this Court. That ruling entails a finding under Rule 23 of the Federal Rules

of Civil Procedure that Plaintiffs’ attorneys are able to fairly and adequately

represent this class. Barlow v. Marion Co. Hospital Distr., 88 F.R.D. 619, 628 (D.C.

Fla. 1980). Fair and adequate representation necessarily consists of safeguarding

the interests of the class. Id. Access to this information is necessary to ensure

Case 4:03-cv-00107-SPM -AK Document 112 Filed 06/18/04 Page 20 of 25
17 Defendants did not assert this objection in their original response. See

Defendant’s Response to First Request to Produce.

21

that Plaintiffs’ counsel are able to adequately represent the class. For example,

without inspecting the class members’ records, Plaintiffs’ counsel have no way of

knowing whether class members have received adequate, or any notice,

concerning: their rights to apply for Waiver Program services, their rights to legally

adequate notice of delays or denials in services, their rights to appeal any such

decisions, their rights to contest any decisions to place them in a certain category

of the waiting list for services and whether services have been provided in a manner

that complies with the requirements of the Medicaid laws, the ADA and Section 504.

Defendants submitted that an order of protection should require notice to and

consent obtained from every person affected before disclosure, but did not provide

any proposed order. (Dkt. #100 at 5-6.) Such a procedure is unduly burdensome,

is fraught with the potential to be confusing to class members and utterly defeats

the procedural advantages of class actions.

IV. Defendants’ Argument That The Requests Are Oppressive and

Unduly Burdensome Are Not Relevant to the Entryof a Protective

Order and Should Be Rejected.

Defendants argued that the document requests at issue are unduly

burdensome, oppressive and will result in undue expense and outweigh the

relevance of the documents sought.

17

(Dkt. #100, at 4.) This position is without

merit. The mere fact that numerous documents have been produced is no defense

Case 4:03-cv-00107-SPM -AK Document 112 Filed 06/18/04 Page 21 of 25
18

In Re Multi-Piece Rim Products Liability Litigation, 652 F.2d 671 (D.C. Cir. 1981)

(addresses compelling discovery from non-party witnesses in a multi-district litigation case

and involves the application of holdings in a number of courts which included orders

adverse to party seeking protection); Cunningham v. Connecticut Mutual Life Insurance,

845 F. Supp. 1403 (S.D. Cal. 1944) (protective order denied and motion to compel granted

in context, inter alia, of waiver of previleges and allegations of fraud); Harris v. Amoco

Production Co., 768 F.2d 669 (5th Cir. 1985) (involving interpretation of a court’s authority

to request the use of documents obtained by the Equal Opportunity Commission in litigation

for other purposes); Cockrum v. Johnson, 917 F. Supp. 479 (E.D. Tex. 1996) (providing

protection to intimate letters written to under-aged daughter in a criminal habeas

proceedings raising ineffective assistance of counsel where other evidence available); and

Blum v. Schlegel, 150 F.R.D. 38, 41 (W.D.N.Y. 1993) (providing protection to the production

of academic colleagues tenure files as irrelevant to First Amendment claims).

22

to the production of other relevant documents. Blaine v. General Motors Corp., 141

F.R.D. 328 (M.D. Ala. 1991) (mere fact that producing documents would be

burdensome and expensive and would interfere with a party's normal operations is

not a reason to refuse an otherwise legitimate discovery request). Defendants

made this bald assertion without any factual supportregarding the burdensomeness

of production, nor did they assert any factual basis for irrelevancy. Further, the

cases relied on by Defendants in their previous Motion for Protective Order, while

stating in some instances the proper principle, are so far afield from the factual

circumstances of the instant case as to be irrelevant and not helpful to the analysis

here.

18

(Dkt. #100, at 4-5.) In contrast to the cases cited by Defendants, Plaintiffs

seek information related to members of a class that they represent to advance

interests common to the entire class.

Plaintiffs are sensitive to the fact that class members’ records are stored in

offices around the state. To alleviate any burdens of production on Defendants’

Case 4:03-cv-00107-SPM -AK Document 112 Filed 06/18/04 Page 22 of 25
23

part, Plaintiffs offered to inspect the records at the location where they are stored

and to request copies of only the documents necessary for Plaintiffs’ case. Contrary

to Defendants’ assertion, Plaintiffs have not burdened Defendants with additional

requests. Plaintiffs merely seek access to documents that were already requested

and are relevant to their case. Plaintiffs are willing to limit disclosure of the

information to comply with federal and state privacy laws. The certified class

contains several hundred individuals. For Defendants to argue that production of

relevant documents is without justification does not take into account the specificity

provided by Plaintiffs as to the information sought, the class allegations or the size

of the class.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court issue

an Order compelling Defendants to produce documents responsive to requests

numbers: 17 through 20, 27, 30, 34, 37 and 46, and issue the attached proposed

Order of Protection to safeguard the confidentiality and privacy concerning the

information disclosed concerning members of the certified class.

Respectfully Submitted,

s/ Andrea Costello

Andrea Costello

Florida Bar No.532991

Peter P. Sleasman

Case 4:03-cv-00107-SPM -AK Document 112 Filed 06/18/04 Page 23 of 25
24

Florida Bar No.367931

Southern Legal Counsel, Inc.

1229 NW 12

th Avenue

Gainesville, FL 32601-4113

(352) 271-8890

Facsimile: (352) 271-8347

Appearing Pro Hac Vice:

Jane Perkins

Sarah Somers

N A T I O N A L H E A L T H L A W

PROGRAM

211 N. Columbia Street

Chapel Hill, NC 27514

(919) 968-6308

(919) 968-8855 (fax)

ATTORNEYS FOR PLAINTIFFS

Case 4:03-cv-00107-SPM -AK Document 112 Filed 06/18/04 Page 24 of 25
25

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Plaintiffs’ Motion

to Compel Production of Documents and for Entry of an Order of Protection was

furnished by electronic notification this 18th day of June, 2004 to the following:

George Waas and Douglas B. MacInnes

Office of the Attorney General

PL-01, the Capitol

Tallahassee, FL 32399-1050

s/ Andrea Costello

Andrea Costello

Case 4:03-cv-00107-SPM -AK Document 112 Filed 06/18/04 Page 25 of 25