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

1

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

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

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

Secretary, John Agwunobi.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DUBOIS, et al.,

 Plaintiffs,

v.

CALAMAS, et al.,

 Defendants.

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

ORDER REQUIRING NOTICE TO CLASS MEMBERS OF PROPOSED

SETTLEMENT AND FAIRNESS HEARING

Pursuant to Federal Rule of Civil Procedure 23(e) and Northern District Local

Rule 16.2(D), the parties now seek Court approval of a Settlement Agreement in 1

this class action case filed on behalf of individuals with traumatic brain or spinal cord

injuries who are eligible, or will be determined to be eligible, for home and

community based services provided through the Traumatic Brain and Spinal Cord

Injury Medicaid Waiver Program (TBI/SCI Waiver Program). The settlement, if

approved, includes agreements concerning how the TBI/SCI Waiver Program will

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be administered.

The Plaintiffs in this case allege that Defendants have violated Title II of the

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

regulations, Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C.

§794(a) and implementing regulations, Title XIX of the Social Security Act (the

Medicaid Act), 42 U.S.C. §1396a et seq. and implementing regulations, and the Due

Process Clause of the Fourteenth Amendment to the United States Constitution.

Among these allegations are the following: (1) Defendants have forced Plaintiffs to

be unnecessarily institutionalized and segregated in institutions, or placed at risk of

institutionalization, in order to receive Medicaid funded long-term health care

services, rather than providing them with services in the most integrated setting

appropriate to their needs; (2) Defendants have failed to provide Plaintiffs with a

choice of home and community based or institutional services as required by the

Medicaid Act, 42 U.S.C. §1396n(c)(2); (3) Defendants have failed to provide

necessary medical services to Plaintiffs with reasonable promptness, as required

by the Medicaid Act, 42 U.S.C. §1396a(a)(8); and (4) Defendants have violated the

notice and hearing provisions of the Medicaid Act, 42 U.S.C. §1396a(a)(3), the

implementing regulations, 42 C.F.R. 431.200, et seq., and the Due Process Clause

of the U.S. Constitution by failing to provide class members with a written notice

describing the basis for the delay/denial in requesting long term care services and

informing individuals of their fair hearing rights. Defendants deny these allegations.

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Plaintiffs are seeking declaratory and injunctive relief.

This case is brought pursuant to 42 U.S.C. § 1983 by all individuals with

traumatic brain or spinal cord injuries who the state has already determined or will

determine to be eligible to receive TBI/SCI Waiver Program services and have not

received such services. (Dkt. #75 at 11-12.)

Upon consideration of the Settlement Agreement and the parties’ Joint

Motion for Approval of Procedure to Notify the Class of Proposed Settlement and

Fairness Hearing, the Court orders as follows:

NOTICE TO CLASS MEMBERS

The Court agrees with the parties that notice of the settlement of this case

should be provided to class members, pursuant to Rule 23(e) of the Federal Rules

of Civil Procedure, prior to the entry of an order of approval of the Settlement

Agreement in order to provide an opportunity for class members to object. The

Court further approves the parties’ agreement as to the form, content and procedure

for providing notice to the class as follows:

1. The parties shall provide notice of the proposed settlement of this

case (Notice), in the form attached hereto as Exhibit A, by Defendants distributing

the notice by First Class U.S. Mail on or before November 17, 2006, to all

individuals that are on the waiting list for TBI/SCI Waiver Program services as of the

date of this Order. Defendants shall bear the costs of mailing such Notices.

Defendants shall post the Notice on the home page of the official website of the

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Department of Health’s Brain and Spinal Cord Injury Program located at:

http://www.doh.state.fl.us/Workforce/BrainSC/ and the home page of the official

website of the Agency for Health Care Administration located at:

http://ahca.myflorida.com. Defendants shall also display the Notice in their

appropriate offices around the state in conspicuous places accessible to the public.

2. A hearing will be held at 1:30 p.m. on January 4,

2007, in Courtroom 2, United States Courthouse, 401 S.E. 1st Avenue,

Gainesville, Florida, to consider and act upon any objection to the proposed

settlement of this case that has been filed with the Court, communicated to

Plaintiffs’ counsel, or stated at the hearing, and, if appropriate, to approve the

settlement. Counsel for the class and counsel for Defendants should be prepared

at the hearing to respond to objections filed by class members and to provide other

information, as appropriate, bearing on whether or not the settlement should be

approved.

With the consent of the parties, and after a review and finding that the

foregoing notice procedure and content is fair and reasonable, it is hereby

ORDERED that the parties shall comply with the terms of the foregoing notice

procedure.

DONE AND ORDERED this 31st day of October, 2006. 

 s/ Stephan P. Mickle

 STEPHAN P. MICKLE

 UNITED STATES DISTRICT JUDGE

Case 4:03-cv-00107-SPM-AK Document 198 Filed 10/31/06 Page 4 of 6
EXHIBIT A

Case 4:03-cv-00107-SPM-AK Document 198 Filed 10/31/06 Page 5 of 6
NOTICE

PROPOSED SETTLEMENT OF DUBOIS, et al. v. CALAMAS, et al.

United States District Court, Northern District of Florida

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

Dubois, et al. v. Calamas, et al. is a lawsuit that was filed on April 11, 2003. This case has

been certified by the Court as a class action lawsuit on behalf of all persons with traumatic brain

or spinal cord injuries who the state has determined, or will determine, to be eligible to receive

home and community based services from Florida’s Traumatic Brain and Spinal Cord Injury

Medicaid Waiver Program (TBI/SCI Waiver Program). In this case, Plaintiffs allege that

Defendants have violated federal Medicaid laws, the Americans with Disabilities Act, the

Rehabilitation Act of 1973, and the Due Process Clause of the U.S. Constitution in the

administration of the TBI/SCI Waiver Program. 

The lawyers and named parties have agreed to settle the lawsuit. The settlement includes

agreements about how the TBI/SCI Waiver Program will be administered concerning

determinations on applications for services, assessments for services, the freedom to choose

between home and community based care or institutional care, the waiting list for services,

written notice of decisions on applications, and the right to a fair hearing.

RIGHT TO OBJECT: Any class member has the right to object to this proposed Settlement

Agreement.

You may review the proposed Settlement Agreement by visiting the Clerk’s Office, U.S.

Courthouse, 401 S.E. 1st Avenue, Gainesville, Florida, 32601. The Settlement Agreement is

also available on the following websites:

http://www.doh.state.fl.us/Workforce/BrainSC/

http://ahca.myflorida.com

http://www.southernlegal.org

You may file written objections to the dismissal by mailing your reasons for objection to the

clerk of court at the above address no later than December 22, 2007. If you wish

to file evidence to support your objections, you must also file the evidence in writing by this

date. You should also mail or fax a copy of any objection(s) that you send to the Clerk to the

Plaintiffs’ attorney listed below.

You also have the right to object to the settlement in person at a hearing that will be held at

1:30 p.m. on January 4, 2007. The hearing will take place in Courtroom 2, 

United States Courthouse, 401 S.E. 1st Avenue, Gainesville, Florida, 32601. If a

reasonable accommodation is needed for you to testify or appear, please notify the Clerk of the

Court.

To ask questions of Plaintiffs’ attorneys about the case or the procedure for objecting, you can

contact: Andrea Costello, Southern Legal Counsel, Inc., 1229 N.W. 12 Avenue, Gainesville, th

Florida, 32601, (352) 271-8347 (fax); or email: slc@southernlegal.org

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