IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOANNA DYKES, et al.,

Plaintiffs,

vs. CASE NO. 4:11cv116/RS-WCS

ELIZABETH DUDEK in her

official capacity as Secretary of the 

Florida Agency for Health Care

Administration, et al., 

Defendants.

__________________________________

ORDER

Before me are the Defendants’ Motion to Dismiss Amended Complaint (Doc. 45) 

and Plaintiffs’ Response in opposition (Doc. 50). 

Standard of Review

To survive a motion to dismiss, a complaint must contain sufficient facts, which 

accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 

S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 127 S. Ct. 

1955, 1974 (2007). Granting a motion to dismiss is appropriate if it is clear that no relief 

could be granted under any set of facts that could be proven consistent with the 

allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 

2229, 2232 (1984). In making this determination, the court must accept all factual 

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allegations in the complaint as true and in the light most favorable to Plaintiff. 

Christopher v. Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 2182 (2003).

Background

This is a purported class action by individuals with developmental disabilities 

who are eligible to receive Medicaid. (Doc. 30, ¶ 1). Plaintiffs receive care in one of two 

settings: in intermediate care facilities for the developmentally disabled (“ICF/DD”) or in 

the community under Florida’s Home and Community Based Services Waiver program 

(“DD Waiver”). Plaintiffs contend that Defendants have a lengthy waitlist for the DD 

Waiver program. The waiting period may exceed more than five years in some cases. Id. 

at 2-3. Plaintiffs also contend that Defendants have limited the funding for the DD 

Waiver program which results in a portion of institutionalized patients never being 

enrolled. Plaintiffs allege that Defendants’ management of the DD Waiver program 

violates the reasonable promptness provisions of the Social Security Act (“SSA”), 42 

U.S.C. § 1396(a)(8), violates the “Freedom of Choice” provisions of the SSA, 42 U.S.C. 

§ 1915(c)(2), as amended, 42 U.S.C. § 1396n(c)(2), violates the Americans with 

Disabilities Act and the Rehabilitation Act, 42 U.S.C § 12101 et seq, 29 U.S.C §794, and 

is a violation of Plaintiffs Due Process rights under the Fourteenth Amendment. 

Case 4:11-cv-00116-RS-CAS Document 60 Filed 08/30/11 Page 2 of 7
Analysis

Medicaid—Reasonable Promptness 

Florida has elected to participate in the Medicaid program, 42 U.S.C. § 1396 et 

seq. By participating in the program, states are required to comply with applicable 

federal statutory and regulatory requirements. States are also required to create plans for 

implementing their Medicaid program. Id. at § 1396a(a). This plan must identify both 

the required and optional health care services that a state will provide. 

There are eight required services—inpatient hospital services, outpatient hospital 

services, laboratory and x-ray services, nursing facility services, physician services, 

nurse-midwife services, certified nurse practitioner services, and freestanding birth center 

services. See id. at § 1396a(a)(10)(A) (requiring state plans to provide at least the 

services listed in § 1396d(a)(1) through (5), (17), (21), and (28)). There are an 

additional twenty-one optional services, for which a state may provide payment through 

their Medicaid program. Id. at § 1396d(a)(6)-(16), (18)-(2), and (22)-(29). 

A state must comply with certain requirements for all services that the state 

chooses to offer, both required services and optional services. The “state-wideness 

requirement” ensures that medical assistance1 must be “in effect in all political 

subdivisions of the state.” Id. at § 1396a(1). In other words, services available in one 

part of the state must be available in all parts of the state. Additionally, the 

 

1 The term “medical assistance” is not defined by statute. Defendants contend that the term means “payment for all 

or part of a variety of healh care services listed in the Medicaid Act [as opposed to the state actually providing the 

services].” While there is a Circuit split over the definition of “medical assistance,” the definition comports with my 

understanding of 11th Circuit precedent. See Sabree v. Richman, 367 F.3d 180, 181, n.1(3d Cir. 2004) (noting the 

circuit split); Doe by & Through Doe v. Chiles, 136 F.3d 709, 722 (11th Cir. 1998). The definition of “medical 

assistance” is not of critical importance in this case as the Plaintiffs do not seek the state to actually provide the 

service, but rather to fund the service. 

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“comparability requirement” ensures that medical assistance must be available in equal 

“amount, duration, [and] scope” to every Medicaid-eligible person in the state. Id. at § 

1396a(a)(10)(B)(i). A third requirement, the one in dispute here, is the “reasonable 

promptness requirement.” See 42 U.S.C. § 1396a(a)(8). A state must ensure that medical 

assistance is “furnished with reasonable promptness to all individuals.” Id. 

Plaintiffs argue that the reasonable promptness requirement applies to the DD 

Waiver program to the same extent that it applies to required and optional services. 

(Doc. 30, ¶ 121). Plaintiffs contend that the lengthy waitlist for the DD Waivers is 

unlawful. Defendants disagree and argue that the Medicaid Act permits the federal 

government to limit the number of people who receive waiver services. (Doc. 45, p. 7). 

Defendants contend that only “eligible individuals” are covered by the reasonable 

promptness requirement, and that a cap on DD Waivers operates as a “constraint on 

eligibility.” Id. at 10. Defendants admit that Plaintiffs are entitled to enrollment in the 

DD Waiver program with reasonable promptness “if there are available slots.” Id. 

Because Plaintiffs have alleged that currently there are unfilled slots in the DD 

Waiver program,2I need not resolve the issue of whether the reasonable promptness 

requirement applies to the situation where all of the slots are filled. Consideration of this 

issue is not appropriate until discovery can be presented about enrollment in the DD 

Waiver program. 

 

2

Plaintiffs allege that there are 31,500 slots for DD Waivers, that the number of DD Waiver recipients has been as 

high as 31,066, and that currently there are less than 31,066 persons in the DD Waiver program. (Doc. 30, ¶132). 

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Medicaid—Freedom of Choice

Plaintiffs’ so called “freedom of choice requirement” is not nearly as expansive as 

their naming of the requirement might suggest. The Medicaid Act requires “individuals 

who are determined to be likely to require the level of care provided in a hospital, nursing 

facility, or intermediate care facility for the mentally retarded [to be] informed of the 

feasible alternatives, if available under the waiver. . .” 42 U.S.C. § 1396n(c)(2)(C). By 

its own terms, this section creates an obligation to inform, not an obligation to provide. 

Plaintiffs claim that Defendants failed to provide the “choice counseling.” (Doc. 30, 

¶191). Defendants contend that choice counseling is not required to include the DD 

Waiver program where no DD Waiver slots are available because that alternative is not 

“feasible” or “available.” (Doc. 45, p. 12). Because Plaintiffs have alleged that slots are 

available, consideration of this requirement is best suited for a time when more 

information is available about the program. 

Defendants also contend that Section 1396n(c)(2)(C) does not provide a private 

right of action. The Sixth and Ninth Circuit have found that there is a private right. See

Wood v. Tompkins, 33 F.3d 600, 612 (6th Cir. 1994); Ball v. Rodgers, 492 F.3d 1094 (9th 

Cir. 2007). At this stage, I find no reason to disagree. See Northwest Airlines v. County 

of Kent, 510 U.S. 355, 365 (1994) (“The question whether a federal statute creates a 

claim for relief is not jurisdictional.”) 

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ADA and Rehabilitation Act

The factors to be considered under Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 

(1999), require factual determinations inappropriate at this stage. Namely, the ADA 

requires the placement of a persons with a disability in community setting when (1) the 

state’s treatment professionals have determined that community placement is appropriate, 

(2) the individual does not oppose the placement, (3) the placement can be reasonably 

accommodated taking into account (a) the resources of the state, (b) and the needs of 

others with disability. (Doc. 45, citing id.)

Due Process

The “due process provision” of the Medicaid Act is 42 U.S.C. § 1396a(a)(3). This 

provision concerns procedural due process, not substantive due process. See Gean v. 

Hattaway, 330 F.3d 758, 772-773 (6th Cir. 2003). Section 1396a(a)(3) gives an 

opportunity for fair hearing to those whose claim for medical assistance has been denied 

or is not acted upon with reasonable promptness. Plaintiffs allege that they were never

provided notice of their opportunity to be heard when they were placed on the DD 

Waiver waitlist. (Doc. 30, ¶229). Defendants contend that Plaintiffs are not “eligible” 

for the DD Waiver program, thus they have no procedural due process rights in being on 

the waitlist. Again, this claim turns on whether there are available slots. 

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Defendants’ contention that there is not a private remedy under this section is also 

misplaced. See Gean v. Hattaway, 330 F.3d 758, 772-773 (6th Cir. 2003). 

The Motion to Dismiss (Doc. 45) is DENIED. 

ORDERED on August 30, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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