UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOANNA DYKES; DAVID WALKER,

by and through his next friend, Michele

Beauregard; LORETTA DAVIS, by and through 

her next Friend, Trish Mlekodaj; HEATHER

YOUNG, by and through her next friend Robert 

Stark; MICHELLE CONGDEN; AMANDA 

PIVINSKI; JOSHUA WOODWARD;

ALYSSA FERRARO, by and through her

next friend, Sharon Ferraro and DISABILITY 

RIGHTS FLORIDA, Inc., a Florida non-profit 

corporation,

Plaintiffs,

v. CASE NO.:

ELIZABETH DUDEK in her official 

capacity as Secretary of the Florida Agency 

for Health Care Administration, and 

BRIAN VAUGHAN in his official capacity 

as (Interim) Director of the Florida Agency 

for Persons with Disabilities, and

RICK SCOTT in his official capacity 

as Governor of the State of Florida.

Defendants.

/

AMENDED CLASS ACTION COMPLAINT 

FOR 

DECLARATORY AND INJUNCTIVE RELIEF

1. This is a statewide class action brought on behalf of over 19,000 individuals with 

developmental disabilities, as defined by Section 393.063(9) of the Florida Statutes,

eligible to receive services through Florida Medicaid in intermediate care facilities for the 

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developmentally disabled (ICF/DD)1and in the community under Florida‟s Home and 

Community Based Services Waivers for persons with developmental disabilities (“DD 

Waivers”). 

2. The plaintiffs are persons who are unable to fully care for themselves and, 

therefore, require various degrees of care, treatment, and/or habilitation. The plaintiffs 

seek appropriate day services, therapies, behavioral supports, residential placement, and

other home and community based services to enable them to reside in the most integrated 

setting possible. 

3. Some plaintiffs reside in private ICF/DDs or nursing homes where they have been 

confined to a category of waiting persons that will never move forward on the list. 

4. Some plaintiffs reside in their families‟ homes and have been on the DD Waivers

waitlist for over five years. They will not be prioritized for the DD Waiver until their 

caretakers succumb to incapacitation or death. 

5. Plaintiffs have been placed on waiting lists for enrollment on the DD Waivers 

where they languish for years without services thereby placing them at risk of 

institutionalization and regression of skills and therapies learned from educational 

programs. 

6. The defendants have failed to provide the plaintiffs with appropriate community 

 

1

On February 3, 2011, Rule 59G-6.045 of the Florida Administrative Code - Payment Methodology for 

Services in Facilities Not Publicly Owned and Publicly Operated (Facilities Formerly Known as ICF/DD 

Facilities) - was filed. For simplicity, the term “ICF/DD” will be used herein.

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services through the DD Waivers in order to avoid institutionalization.2

7. Through statute and rules, the DD Waivers‟ waitlist categories prioritize those 

persons deemed to be in crisis. Rule 65G-1.047 of the Florida Administrative Code 

defines crisis as meeting one of three conditions:

a. “First priority” crisis category: The applicant is currently homeless, living in a 

homeless shelter, or living with relatives in an unsafe environment.

b. “Second priority” crisis category: The applicant exhibits behaviors that, 

without provision of immediate waiver services, may create a life-threatening 

situation for the applicant or others, or that may result in bodily harm to the 

applicant or others requiring emergency medical care from a physician.

c. “Third priority” crisis category: The applicant‟s current caregiver is in 

extreme duress and is no longer able to provide for the applicant‟s health and 

safety because of illness, injury, or advanced age. The applicant needs 

immediate waiver services to remain living with the caregiver or to relocate to 

an alternative living arrangement.

8. Those persons on the waitlist that do not meet one of the three crisis priorities are 

further categorized into seven other categories pursuant to Section 393.065(5) of the 

 

2

DD Waiver services that are available include the following: Adult Day Training, Adult Dental Services, 

Behavior Analysis Services, Behavior Assistant Services, Companion Services, Consumable Medical 

Supplies, Dietitian Services, Durable Medical Equipment and Supplies, Environmental Accessibility 

Adaptations, In-Home Support Services, Medication Review, Occupational Therapy, Personal Care 

Assistance, Personal Emergency Response Systems, Physical Therapy, Private Duty Nursing, Residential 

Habilitation Services, Residential Nursing Services, Respiratory Therapy, Respite Care, Skilled Nursing, 

Special Medical Home Care, Specialized Mental Health Services, Speech Therapy, Support Coordination, 

Supported Employment, Supported Living Coaching, and Transportation.

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Florida Statutes.

9. For at least the past five years, only those persons deemed to be in crisis were 

enrolled on the DD Waiver.

10. For at least the past five years, the defendants have limited the number of crisis 

enrollments to only those that could be served with funding saved through attrition (i.e.,

when a current enrollee dies, becomes ineligible or moves out of state).

11. The defendants‟ statutes, rules and policies for waitlist management force persons 

with developmental disabilities currently residing in the community to forgo services 

completely while waiting for one of the three desperate and dangerous categories of crisis 

to take hold. 

12. For those persons already institutionalized, they will never be enrolled in the DD 

Waivers so long as the State continues to only fund enrollments of those in crisis.

13. The plaintiffs seek to remedy the pervasive systemic and continuing failure of the 

defendants to provide necessary services in a reasonably prompt manner to meet their 

needs, as required by the integration mandate of Title II of the Americans with 

Disabilities Act (“ADA”). See 28 C.F.R. § 35.130(d).

14. The plaintiffs seek a declaration that denial of adequate services with reasonable 

promptness, denial of notice of prioritization on the waitlist, and the denial of freedom of 

choice of those waitlisted persons violates Title XIX of the Social Security Act, 42 

U.S.C. § 1396a et seq., 42 C.F.R. § 431 et seq., the Americans with Disabilities Act, 42 

U.S.C. § 12101 et seq. (ADA), and 42 U.S.C. § 1983.

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JURISDICTION

15. This Court has jurisdiction over the claims presented in this action pursuant to 28 

U.S.C. § 1331. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202.

16. The plaintiffs‟ claims are predicated upon the applicable provisions of the 

Medicaid Act, namely 42 U.S.C. §§ 1396a(a)(8) & (23) & 42 C.F.R. § 435.930, requiring 

the delivery of Medicaid services to eligible persons with reasonable promptness and

freedom of choice of providers; the ADA, 42 U.S.C. § 12101 et seq., and Section 504 of 

the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs‟ claims for relief are also predicated 

upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color 

of state law, of rights privileges and immunities secured by the Constitution and laws of 

the United States. 

NAMED PLAINTIFFS

JOANNA DYKES

17. The Plaintiff, Joanna Dykes (“DYKES”), is a 23-year old woman diagnosed with 

an intellectual disability3and mental illness. She has no family and resides in an ICF/DD

 

3

The developmental disabilities community strongly encourages use of the term “intellectual disability” in 

lieu of “mental retardation” or “retardation.” See Shalock, Luckasson, and Shogren. “The Renaming of 

„Mental Retardation:‟ Understanding the Change to the Term „Intellectual Disability.” Intellectual and 

Developmental Disabilities. Vol. 45, No. 2: 116-124 (2007). See also Pub. Law. 111-256, § 1, Oct. 5,

2010, 124 Stat. 2643 (“Rosa‟s Law”). “Retardation” is defined in Section 393.063 of the Florida Statutes. 

For purposes of consistency, since the State of Florida and APD still use the term “retardation” or “mental 

retardation,” those terms will be used interchangeably.

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at Florida Mentor Facility, in Pensacola, Florida. DYKES has been on the DD Waivers 

waitlist for over three years.

18. DYKES desires to live independently. She is articulate and repeatedly requests to 

move to a supported living environment. She is capable of being employed and has 

received Supported Employment Coaching services through Vocational Rehabilitation.

DYKES has interviewed for jobs and hopes to be gainfully employed so she can be more 

independent. She was forced to turn down a job offer when a prior ICF/DD where she 

was living would not provide transportation during the evening when her shift would end.

19. DYKES no longer had support from natural sources when she reached the age of 

majority. She eventually became a resident at Lakeview Center. During discharge from 

Lakeview, DYKES was not apprised of the DD Waiver or its waitlist. She was placed in 

a privately owned ICF/DD and no longer received the services of a support coordinator,

instead relying on her client advocate to seek services in her best interests. After several 

years in the ICF/DD, DYKES‟s client advocate learned of the DD Waiver.

20. DYKES is capable of living in a supported living situation with the assistance of 

community services such as in-home supports and supported living coaching.

21. Despite her desire and ability to live in a community setting, DYKES has 

remained at the ICF/DD with little to no hope of ever residing in the community. 

DYKES has been informed that enrollments to the DD Waivers have been limited to 

crisis enrollments. Because of DYKES‟ placement in an ICF/DD, she would never meet 

the definition of crisis as defined in Rule 65G-1.047 of the Florida Administrative Code.

22. Section 393.065 of the Florida Statutes and Rules 65G-11.001-.003 of the Florida 

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Administrative Code appears to require DYKES‟ placement into waitlist prioritization 

Category 3. 

23. DYKES has not received notification of her prioritization assignment and any 

appealable rights she may have for that assignment.

24. Because of DYKES‟s living situation in the ICF/DD, she will never meet the 

requirements for any of the preceding categories other than Category 3 and will,

therefore, never move up in priority for enrollment on the waiver. Should the State 

continue to limit funding for only those deemed to be in crisis, DYKES will never be 

considered for enrollment on the DD Waiver and will remain segregated in contravention 

to the integrated setting she desires and for which she qualifies. 

DAVID WALKER

25. The Plaintiff, David Walker (“WALKER”), is an individual diagnosed with 

mental retardation and cerebral palsy. He resides with other persons with developmental 

disabilities in a private cluster ICF/DD in Holly Hill, Florida. WALKER has been on the 

DD Waiver waitlist for seven years.

26. WALKER files this complaint through his guardian advocate, Michele

Beauregard of Deltona, Florida.

27. WALKER requires assistance in daily living. He requires verbal prompts or 

assistance in eating, uses a wheelchair, requires assistance in shifting his weight or 

transferring, maintaining his personal hygiene and remaining safe. He would benefit from 

personal care assistance, adult day training program, and/or companion services. 

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28. WALKER was previously a resident of Sunland, a state-run institution, and was 

then enrolled in the DD Waiver and lived in a group home. Due to illness, WALKER was 

admitted to a hospital and then a nursing home. While recovering at the nursing home, 

WALKER lost his placement at the group home. His public guardian at the time then 

placed WALKER in an ICF/DD, foregoing his DD Waiver services. 

29. In 2003, WALKER‟s current Guardian applied for the DD Waiver and WALKER 

was placed on the waitlist. WALKER has the ability and desire to reside in the 

community, but needs DD Waiver assistance to do so.

30. WALKER has been informed that enrollments to the DD Waiver have been 

limited to crisis enrollments. Because of his placement in an ICF/DD, he would never 

meet the crisis definition.

31. Florida Statutes Section 393.065 and Rules 65G-11.001-.003 of the Florida 

Administrative Code appear to require WALKER‟s placement in Waitlist Prioritization 

Category 3. 

32. WALKER has not received notice of his prioritization assignment, nor any appeal 

rights he may have.

33. Because of WALKER‟s living situation in the ICF/DD, he will never meet the 

requirements for any of the preceding categories other than Category 3 and will,

therefore, never move up in the enrollment of individuals to the waiver. Without funding 

for categories other than crisis, David will remain institutionalized as he will never be 

considered in crisis pursuant to APD‟s rules.

LORETTA DAVIS

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34. The Plaintiff, Loretta Davis (“DAVIS”), is an adult female of 56 years and 

residing in a private ICF/DD in LeCanto, Florida. It is uncertain if Defendants have 

registered DAVIS on the DD Waivers waitlist though her guardian has applied for her.

35. In the ICF/DD, DAVIS has participated in leisure activities during the day that do 

not incorporate aggressive educational or functional training. DAVIS has had numerous 

accidents, including falls, and maladaptive behaviors that have continued without proper 

attention. 

36. DAVIS has been diagnosed as having cerebral palsy and intellectual disability. 

She has been determined to be disabled and eligible for an institutional level of care.

37. DAVIS has been informed that enrollments to the DD Waiver have been limited 

to crisis enrollments. Because of her placement in an ICF/DD, she would never meet the 

definition of crisis. DAVIS would like to be in the community and participate in her 

choice of day training. 

38. Section 393.065 of the Florida Statutes and Rules 65G-11.001-.003 of the Florida 

Administrative Code appear to require placement of DAVIS into Category 3 of the waitlist 

prioritizations categories. 

39. DAVIS has not received notification of her prioritization assignment or any rights 

she may have to appeal.

40. Because of DAVIS‟ living situation in the private ICF/DD, she will never meet 

the requirements for any of the preceding categories other than Category 3 and will, 

therefore, never move up in the enrollment of individuals to the waiver. Without funding 

for categories other than crisis, DAVIS will remain institutionalized as she will never be 

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considered in crisis pursuant to APD‟s rules.

HEATHER YOUNG

41. The Plaintiff, Heather Young (“YOUNG”), is a 21-year old woman diagnosed 

with mental retardation and orthopedic impairments, including paralysis. She has been on 

the DD Waivers waitlist for over four years.

42. YOUNG entered Florida‟s foster care system at age 11 and should have 

transitioned to the DD Waiver once she aged out of the foster care system at age 18. 

However, that did not happen and she was instead placed on the DD Waivers waitlist.

43. YOUNG has waited for community placements while being served in institutions 

and institution-like settings. She currently resides in a nursing home, unable to fully 

access the community or live in the community with supports.

44. Despite her paralysis and orthopedic impairments, YOUNG uses one hand to 

effectively communicate with an alphabet board. She requires medical assistance with a 

gastric tube and tracheotomy, but valiantly overcame Methicillin-resistant 

Staphylococcus aureus (MRSA) and a year-long battle with needing a respirator. She is 

now respirator-free and able to live in the community with supports.

45. YOUNG has been informed that enrollments to the DD Waivers have been 

limited to crisis enrollments. Because of her placement in a skilled nursing facility, she 

would never meet the definition of crisis.

46. Florida Statutes Section 393.065 and Florida Administrative Code Rules 65G11.001-.003 appear to require YOUNG‟s placement in Waitlist Prioritization Category 3. 

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47. YOUNG has not received notice of her prioritization assignment or any appeal 

rights she may have.

48. Because of YOUNG‟s age and living situation in the nursing facility, she will 

never meet the requirements for any of the preceding categories other than Category 3 

and will, therefore, never move up in the priority for enrollment to the waiver. Unless the 

State ceases to allow only crisis enrollments, she will remain segregated in the nursing 

facility, never realizing the benefit of community services and the integration mandate of 

the ADA.

MICHELLE CONGDEN

49. The Plaintiff, Michelle Congden (“CONGDEN”), is a 34-year old woman 

diagnosed with mental retardation. She has been on the DD Waivers waitlist for 13 years.

50. She currently resides with her sister and her sister‟s three young children. While 

on the waitlist, CONGDEN‟s father passed away and she moved in with her sister.

51. CONGDEN‟s sister is the sole caregiver for CONGDEN and her own three 

children; she needs respite services for her sister in order to avoid institutionalizing her. 

CONGDEN has hit and pushed her caregiver‟s small children and her sister believes the 

recent outbursts to be caused by a lack of stimulation. CONGDEN is in need of a day 

program to maintain her skills and occupy her to prevent maladaptive behaviors.

CONGDEN seeks a day program or companion, a personal care assistant for bathing and 

toileting and a behavioral analysis as services from the DD Waiver.

52. APD uses general revenue funds for the provision of individual and family 

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services to waitlisted persons who have emergency needs critical to avoid a crisis 

situation. However, using general revenue funds is precarious. CONGDEN‟s sister was 

notified that she could use nominal monies for CONGDEN, but would have to do so by 

the end of the month, leaving little time to coordinate CONGDEN‟s care or benefits.

53. Florida Statutes Section 393.065 and Florida Administrative Code Rules 65G11.001-.003 appear to place CONGDEN‟s in Waitlist Prioritization Category 6. 

54. CONGDEN has not received notice of her prioritization assignment nor any 

appeal rights she may have.

55. Because of CONGDEN‟s age, the age of her caregiver, and her living situation, it 

would be decades before she met the requirements for any of the preceding categories 

other than Category 6 and will, therefore, never move up in the priority for enrollment to 

the waiver. CONGDEN is relegated to the very end of a waitlist without a chance of 

progression, giving rise to a subclass of persons who are precluded from participating in 

and receiving services other than through segregated, isolated, institutional placement.

56. Without the day program, personal care assistance, and behavior analysis that 

CONGDEN seeks from the DD Waiver, her health, safety and welfare will decline. This 

places CONGDEN at risk of institutionalization.

AMANDA PIVINSKI

57. The Plaintiff, Amanda Pivinski (“PIVINSKI”), is a 24-year old woman diagnosed 

with Autism Spectrum Disorder and residing with her parents. She has been on the DD 

Waivers waitlist for over 7 years.

58. PIVINSKI is able to reside in the community, maintains a job, but continues to be 

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in need of services. Her employment was recently jeopardized by her need for a job 

coach. Without her mother‟s assistance as a job coach, PIVINSKI would not be able to 

maintain her employment and otherwise interact with others in community living. 

59. The defendant‟s categorization of those persons on the waitlist places 

PIVINSKI‟s parents in the precarious position of having to evict their own daughter in 

order to secure services for her before they die or become incapable.

60. Florida Statutes Section 393.065 and the Florida Administrative Code Rules 65G11.001-.003appear to require PIVINSKI‟s placement in Waitlist Prioritization Category 

6. 

61. Because of her parents‟ age and living situation in her family home, she will 

never meet the requirements for any of the preceding categories other than Category 6 for 

several decades. 

62. Unless the defendants cease to admit only crisis enrollments, PIVINSKI will 

remain without services or forced to seek institutionalization to receive services. 

63. PIVINSKI needs employment supports to maintain her in the community. Skills 

PIVINSKI learned in school will regress if not utilized daily in her employment and 

community activities. PIVINSKI is at risk of institutionalization.

64. PIVINSKI will also be subject to the continued growth of Category 5 which 

includes those expected to graduate from secondary school within the next 12 months. 

Without funding and enrollment for all categories, the State will never enroll those 

persons like PIVINSKI who are relegated to Categories 6 and 7, creating a sub-class of 

un-served persons who are precluded from participating in and receiving services unless 

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they enter segregated, isolated, institutional placements. This places PIVINSKI in 

imminent risk of institutionalization.

JOSHUA WOODWARD

65. The Plaintiff, Joshua Woodward (“WOODWARD”), is a 22-year old man 

diagnosed with Trisomy 21 and residing with his father and stepmother. He has been on 

the DD Waiver waitlist for over three years.

66. Because WOODWARD‟s parents are under 70 years of age, he is unlikely to ever 

move to any of the higher categories. WOODWARD‟s father is in poor health and needs 

assistance with his son.

67. WOODWARD resides in the community, seeks competitive employment, and 

needs services to maintain skills acquired in school. While he does not need much

assistance with activities of daily living, he needs assistance with speech therapy, an

employment coach, and behavior assistance.

68. The defendant‟s categorization of waitlisted persons places WOODWARD‟s 

parents in the precarious position of having to evict WOODWARD to secure services for 

him before they die or become incapable of providing care.

69. Unless the defendants cease to admit only crisis enrollments, WOODWARD will 

remain without services or forced to seek institutionalization to receive services. 

70. WOODWARD will also be subject to the continued growth of Category 5 which 

includes those expected to graduate from secondary school within the next 12 months. 

Without funding to completely and continuously fund Category 5, the State will never 

enroll those persons like WOODWARD who are relegated to Categories 6 and 7, creating 

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a sub-class of un-served persons who are precluded from participating in and receiving 

services unless they enter segregated, isolated, institutional placements. Without the 

speech therapy and behavior assistance, WOODWARD‟s skills attained in school are 

likely to regress putting his health, safety and welfare in jeopardy. The inability of 

WOODWARD to access needed services places him at risk of institutionalization.

ALLYSA FERRARO

71. The Plaintiff, Allysa Ferraro (“FERRARO”), is a young woman of 22 years 

residing with her mother, who is under 70 years of age. She has been on the DD Waiver 

waitlist for six years.

72. FERRARO has been diagnosed as having a developmental disability, specifically 

Dandy Walker malformation, and resides with her mother. 

73. FERRARO had back surgery in 2002 and no longer walks on her own. She 

utilizes a wheelchair for mobility although her mother believes she could walk if given 

physical therapy. FERRARO can climb into and out of the shower.

74. FERRARO resides in the community, wants to attend adult day training, and 

needs services to maintain skills acquired in school. 

75. Because FERRARO‟s caregiver is under 70 years of age, she is unlikely to ever 

move to any of the higher categories. Yet, FERRARO‟s mother, her sole caregiver, 

cannot meet FERRARO‟s needs without assistance. 

76. FERRARO‟s mother does not earn enough income to pay for FERRARO‟s adult 

day program and a place for her to live; she is faced with moving from her current 

apartment in order to pay for FERRARO‟s services on her own or institutionalizing 

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FERRARO. Currently, FERRARO‟s mother pays for the adult day program four days per 

week. On the fifth day, she either takes FERRARO to work with her or takes time off to 

care for FERRARO, attending doctor‟s appointments, or other activities. 

77. FERRARO‟s mother previously sought residential placement, but was told by the 

Agency for Persons with Disabilities (“APD”) that if she placed FERRARO in the group 

home near her, she would have to pay for the services. Although FERRARO‟s mother 

does not desire to institutionalize her daughter, APD did not inform her of her right to 

receive services in an ICF/DD. 

78. FERRARO applied for and was denied crisis enrollment four times. Instead, 

Defendants VAUGHAN and APD provided FERRARO with adult day training program 

and speech therapy services through general revenue funds, depriving FERRARO of the 

complete DD Waivers service array. 

79. The defendants‟ categorization of waitlisted persons places FERRARO‟s mother

in the precarious position of having to evict her own daughter to secure services for her.

80. Florida Statutes Section 393.065 and Florida Administrative Code Rules 65G11.001-.003 appear to require FERRARO‟s placement in Waitlist Prioritization Category 

6. 

81. Because of her mother‟s age and her residence in the family home, she will never 

meet the requirements for any of the categories preceding Category 6. Without the adult 

day training program she seeks, FERRARO is in imminent risk of institutionalization. 

82. Unless the defendants cease to admit only crisis enrollments, FERRARO will 

remain without services or forced to seek institutionalization to receive services. 

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83. FERRARO will also be subject to the growth of Category 5 which includes those 

expected to graduate from secondary school within the next 12 months. Without funding 

to completely and continuously fund Category 5, the State will never enroll those persons 

like FERRARO who are relegated to Categories 6 and 7, creating a sub-class of unserved persons precluded from participating in and receiving services unless they enter 

segregated, isolated, institutional placements. This places FERRARO in imminent risk of 

institutionalization.

DISABILITY RIGHTS FLORIDA

84. The Plaintiff, Disability Rights Florida, Inc., d/b/a Disability Rights Florida, 

formerly known as the “Advocacy Center for Persons with Disabilities, Inc.,” (the 

“P&A”), is a not-for-profit-corporation serving as Florida‟s federally funded protection 

and advocacy system for individuals with disabilities. The P&A maintains offices in 

Tampa, Hollywood and Tallahassee. Its main office is located at 2728 Centerview Drive, 

Suite 102, Tallahassee, Leon County, Florida. 

85. The P&A‟s mission is to advance the quality of life, dignity, equality, selfdetermination, and freedom of choice of people with disabilities through collaboration, 

education, and advocacy, as well as legal and legislative strategies.

86. Specifically, on behalf of persons with developmental disabilities, the P&A is 

authorized by federal law to “pursue legal, administrative, and other appropriate remedies 

or approaches to ensure the protection of, and advocacy for, the rights of individuals 

within the State who are or who may be eligible for treatment, services, or habilitation, or 

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who are being considered for a change in living arrangements.” 42 U.S.C. §

15043(a)(2)(A)(i).

87. The P&A has represented and continues to represent persons with developmental 

disabilities in individual actions, class actions and systemic relief initiatives affecting all 

such individuals.

88. The defendants‟ rules and policies adversely affect the substantial interests of the 

P&A, as clients and potential clients who are on the DD Waivers waitlist are not 

receiving needed services until they transition onto the DD Waivers. 

89. The P&A has standing to file this action as it provides representation and other 

legal services to persons receiving Medicaid services under the DD Waivers. See Florida 

Institutional Legal Servs., Inc. v. Florida Parole & Probation Comm’n, 391 So. 2d 247 

(Fla. 1st DCA 1980). Additionally, challenging the defendants‟ policy falls within the 

P&A‟s general scope of interest and activity, and the relief requested, declaratory and 

injunctive, is the type of relief appropriate for the plaintiffs to receive on behalf of the 

individuals who the P&A is mandated to serve. See NAACP, Inc. v. Florida Bd. of 

Regents, 863 So. 2d 294 (Fla. 2003), on remand, 876 So. 2d 636 (Fla. 1st DCA 2004).

90. The P&A and the individual plaintiffs are represented in this action by 

undersigned counsel. Service should be made at the address of counsel as set forth 

below. 

DEFENDANTS

ELIZABETH DUDEK

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91. The defendant Elizabeth Dudek (DUDEK) is the Secretary of Florida‟s Agency

for Health Care Administration (AHCA) and is sued in her official capacity. AHCA is 

the chief health policy and planning entity for the state, responsible for administering 

Florida‟s Medicaid Program, which includes the DD Waivers. See §§ 20.42(3) &

393.0661, Fla. Stat. 

BRIAN VAUGHAN

92. The defendant Brian Vaughan (VAUGHAN) is the Interim Director of Florida‟s 

Agency for Persons with Disabilities and is sued in his official capacity. Under Chapter 

393 of the Florida Statutes, APD is responsible for providing all services to persons with 

developmental disabilities, including state-run ICF/DDs and the programmatic 

management of the DD Waivers. See § 20.197(3), Fla. Stat. APD administers the 

Medicaid DD Waiver program under an interagency agreement with AHCA. 

RICK SCOTT

93. Governor Rick Scott (SCOTT) is the chief executive officer of the State of 

Florida. He is responsible for directing, supervising and controlling the executive 

departments of state government. Governor SCOTT is ultimately responsible for ensuring 

that Florida operates its long-term care system for people with disabilities in conformance 

with federal law. He is sued in his official capacity and only for prospective injunctive 

relief.

94. Pursuant to Article IV § 1(a), Florida Constitution, Defendant SCOTT is the 

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“chief administrative officer of the state responsible for the planning and budgeting of the 

state.”

95. Pursuant to Executive Order Number 11-72, Office of the Governor, neither 

VAUGHAN nor DUDEK, may propose, repeal, or make changes to its administrative 

rules without first obtaining approval from SCOTT through his designee of delegated 

powers, the Office of Fiscal Accountability and Regulatory Reform (OFARR). OFARR 

has the specific delegated power from SCOTT to review executive office agencies‟ rules 

for their impact to “adversely affect the availability of professional or occupational 

services to the public [and] impose an unjustified overall cost and economic impact, 

including indirect cost to consumers.” SCOTT has specifically delegated to OFARR the 

power to analyze the “impact of proposed and existing rules on matters of public health, 

public safety, public welfare” and to identify and review “actions taken by State agencies 

to improve program performance, meet program standards [and] promote economy and 

efficiency.”

96. DUDEK and VAUGHAN serve as the head of their respective agencies at 

SCOTT‟s discretion. SCOTT controls DUDEK and VAUGHAN through the power of 

removal and his ability to “inform such agency heads of the considerations that may lead 

to retention or removal”4 whether informally or through formal communications such as 

Executive Order 11-72. 

97. SCOTT‟s statements and creation of OFARR evidence his intention to retain 

 

4

SCOTT‟s “Response to Petition for Writ of Quo Warranto,” Whiley v. Scott, Case No.

SC 11-592, (where SCOTT maintains his authority as the ultimate decision maker and 

ability to control executive agencies exists informally even if OFARR did not exist).

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close supervisory power over actions or omissions taken by VAUGHAN and DUDEK. 

98. VAUGHAN‟s and DUDEK‟s illegal actions and omissions have been sanctioned, 

either formally through OFARR, or informally directly through SCOTT. 

99. At all times relevant to this Complaint, the defendants were and are acting under 

color of state law and knew or should have known of the policies, practices, acts and 

conditions alleged herein.

CLASS ACTION ALLEGATIONS

100. Pursuant to Fed. R. Civ. P. 23 (a) and (b)(2), the named plaintiffs bring this action 

on behalf of themselves and all other persons similarly situated.

101. The proposed class consists of:

a. all eligible individuals who are enrolled on the DD Waiver waitlist and 

residing in institutions or institution-like settings, including but not limited 

to skilled nursing facilities; 

b. all eligible individuals residing in institutions or institution-like settings 

who possess both the desire and capability to reside in the community with 

supports;

c. eligible individuals enrolled on the DD Waiver waitlist who would be or 

are assigned to categories three through seven; and

d. eligible individuals who will be subject to defendant‟s implementation of 

Florida‟s statute and rule to place them in waitlisted categories three 

through seven if they apply for the DD waiver in the future.

102. Numerosity: The class is so numerous that joinder of all its members is 

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impracticable. The plaintiffs believe there are over 19,000 class members, as it is

believed that there are 19,000 individuals on the DD Waiver waitlist. Although the exact 

number is known to the defendants and is ascertainable, plaintiffs do not know the exact 

number of the individuals.

103. Commonality: There are questions of law or fact that are common to all named 

plaintiffs, as well as to all putative class members including:

a. Whether the defendants‟ policies unnecessarily cause and perpetuate the 

segregation and discrimination through continued institutionalization or risk of 

institutionalization of persons with developmental disabilities, violating the 

ADA‟s integration mandate as enforced through 42 U.S.C. § 1983.

b. Whether the defendants‟ relegation of persons with developmental 

disabilities to a waitlist that has not been effectively implemented or funded for 

over five years violates Medicaid Act‟s requirement for the provision of services 

with reasonable promptness pursuant to 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. 

§ 435.930 through 42 U.S.C. § 1983. 

c. Whether the defendants‟ failure to enroll into the DD Waiver persons 

currently institutionalized and those turned away for crisis enrollment denies 

those plaintiffs the Medicaid Act‟s requirement for the freedom of choice of 

provider of services pursuant to 42 U.S.C. § 1396n(c)(2), enforced through 42 

U.S.C. § 1983.

d. Whether the Defendant‟s failure to inform those person on the DD Waiver 

waitlist of their prioritization categories and afford them an opportunity for 

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hearing deprives them of due process pursuant to 42 U.S.C. §1396a(a)(3), 42 

C.F.R. 431.220.

104. Typicality: The claims of the named plaintiffs are typical of the claims of the class 

as a whole in that the named plaintiffs and purported class are Medicaid eligible 

recipients who have been denied home and community based services by being placed on 

a lengthy waitlist that has little to no hope of culminating in community based services

and no means to challenge their lack of prioritization by the Defendants..

105. Adequate representation: The named plaintiffs will fairly represent and 

adequately protect the interests of members of the class as a whole. The named plaintiffs 

do not have any interests antagonistic to those of other class members. By filing this 

action, the named plaintiffs have displayed an interest in vindicating their rights, as well 

as the claims of others who are similarly situated. The named plaintiffs are represented by 

counsel who are skilled and knowledgeable about civil rights litigation, Medicaid law, 

practice and procedure in the federal courts, and the prosecution and management of class 

action litigation.

106. The defendants have acted or refused to act on grounds generally applicable to the 

class, making final injunctive relief appropriate with respect to the class as a whole under 

Fed. R. Civ. P. 23(b)(2). Although the specific disabilities of the class members vary, 

they share a common need for services provided by the DD Waiver Program, have been 

found to need and are eligible for these services as they meet the level of care required 

for placement in an ICF/DD, have been denied an opportunity to receive prompt services 

on the DD Waivers, and have been denied an opportunity to challenge their lack of 

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prioritization by Defendants.. A class action is superior to individual lawsuits for 

resolving this controversy.

MEDICAID STATUTORY AND REGULATORY FRAMEWORK

Medicaid Optional and Mandatory Services

107. Medicaid is a joint federal/state program authorized by Title XIX of the Social 

Security Act, 42 U.S.C. §§ 1396-1396v. It provides medical assistance to low income 

individuals who meet certain eligibility requirements. 

108. States are not required to participate in the Medicaid Program. If a state elects to 

participate, however, it is required to comply with applicable federal statutory and 

regulatory requirements. 

109. The Medicaid program allows states to furnish persons (including those with 

developmental disabilities) “rehabilitation and other services to help such families and 

individuals attain or retain capability for independence or self care." 42 U.S.C. § 1396. 

110. In addition to providing services that support the independence of program 

participants, the Medicaid Act requires that each state medical assistance program be 

administered in the best interests of the recipients. See 42 U.S.C. §1396a(a)(19). 

111. Federal funding is available to state Medicaid programs for both the provision of 

health care services and various administrative functions. The amount of federal funding 

available to a state is referred to as federal financial participation (FFP) and is determined 

by comparing a state's per capita income to the national average. 

112. The Medicaid state plan must identify the required and optional health care 

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services it will provide. 

113. In addition to the required services that each Medicaid program must provide, a 

state may choose any of thirty-four optional services to include in its plan. Each optional 

service a state offers must be provided consistent with all federal requirements. 

114. Placement in an ICF/DD is an optional Medicaid service. Florida opts to provide 

ICF/DD Medicaid services to persons who meet level of care criteria for placement in an 

ICF/DD. See § 409.906(15), Fla. Stat. Thus, placement and receipt of services in an 

ICF/DD are an entitlement. 

115. In an ICF/DD, a client receives a continuous active treatment program, including

“aggressive, consistent implementation of a program of specialized and generic training, 

treatment, health services and related services ..., that is directed toward the acquisition of 

the behaviors necessary for the client to function with as much self determination and 

independence as possible; and the prevention or deceleration of regression or loss of 

current optimal functional status.” 

116. The Medicaid Act also requires that a state plan for medical assistance "must . . . 

provide that all individuals wishing to make application for medical assistance under the 

plan shall have opportunity to do so, and that such assistance shall be furnished with 

reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). 

117. Federal regulations require that a state Medicaid agency must "furnish Medicaid 

promptly to recipients without delay caused by the agency's administrative procedures" 

and "continue to furnish Medicaid regularly to all eligible individuals until they are found 

to be ineligible." 42 C.F.R. § 435.930. 

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118. Medicaid beneficiaries are allowed to choose their health care professionals from 

a range of participating providers. See 42 U.S.C. § 1396a(a)(23). 

Medicaid Waivers and Developmental Disabilities Service Delivery System

119. Medicaid home and community-based services waiver programs are authorized 

by 42 U.S.C. § 1396n(c) and governed by 42 C.F.R. §§ 441.300-.310. Waiver programs 

enable states to provide home and community-based services to individuals with 

developmental disabilities or mental retardation who would otherwise need the level of 

care provided in an ICF/DD. 

120. Florida Statutes Chapter 409 and Florida Administrative Code Rule 59G-13.080

authorize the Florida Medicaid Developmental Disabilities Waiver (DD Waivers). 

Florida‟s DD Waivers are home and community-based waivers, created to maintain

persons with developmental disabilities in a home setting with supporting services 

necessary to prevent institutionalization. 

121. The DD Waivers program allows states to waive three specific Medicaid 

requirements: state-wideness, comparability of services, and community income and 

resource rules. 

122. A state‟s DD Waivers program must comply with all federal Medicaid 

requirements that are not specifically waived, including reasonable promptness.

123. States apply to the Centers for Medicare & Medicaid Services (CMS) for 

permission to operate a home and community based waiver; waiver applications must be 

approved before implementation. 

124. When a state offers waiver services, it must inform individuals likely to require 

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nursing home or ICF/DD care about "any feasible alternatives available under the 

waiver" and give them the "choice of either institutional or home and community-based 

services." 42 U.S.C. § 1396n(c)(3). See also 42 C.F.R § 441.302(d). 

Florida Medicaid

125. Florida defines “ICF/DD” as a facility licensed under state law and certified under 

federal regulations to furnish health care, rehabilitative services, and other related 

services to individuals who have mental retardation, a developmental disability or related 

conditions. See FLA. ADMIN. CODE R.65G-1.010(131). 

126. Pursuant to Florida Statutes Chapters 409 and 393, Florida provides Medicaid 

services to persons with developmental disabilities. Florida defines “Developmental 

disability” as “a disorder or syndrome that is attributable to retardation, cerebral palsy, 

autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and 

that constitutes a substantial handicap that can reasonably be expected to continue 

indefinitely.” § 393.063(9), Fla. Stat.

127. Under Federal and Florida Medicaid program statutes and rules, persons who 

meet level of care criteria for placement in an ICF/DD are also eligible to receive services 

in the community under the DD Waivers program. 

128. The purpose of the DD Waivers is to maintain eligible persons in the community 

and prevent institutionalization. 

129. ICF/DD‟s are considered institutional placements and annually cost more than 

services in the community. 

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Florida’s DD Waivers and ICF/DD Program

130. Florida has declared “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.” § 393.062, Fla. Stat.

131. Florida operates a four-tiered DD Waiver program. Each tier is a separate waiver 

and, per statute, has its own annual expenditure limit per individual. Tier 4 has the lowest 

annual expenditure limit and Tier One has the highest. 

132. The number of unduplicated recipients in the DD Waivers has been as high as 

31,066. Currently, there are fewer persons enrolled in the DD Waivers. Upon 

information and belief, Defendants have applied for and received approval for 31,500 

unduplicated recipients for the DD Waivers.

133. Defendants VAUGHAN and DUDEK control the number of recipients able to 

receive services through the DD waivers.

134. For Fiscal Year 2010-2011, Florida appropriated $283,409,222 as the state‟s share

for services to persons in the community. A federal match was provided to bring the 

amount to $805,826,618.

135. APD‟s state-run developmental disabilities centers were appropriated

$124,471,261 of state dollars for Fiscal Year 2010-2011.

136. For fiscal year 2009-2010, there were 2,857 Medicaid recipients in privately 

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owned and operated ICF/DDs at a cost of $326,966,255.

137. For state fiscal year 2009-2010, the average cost of a person in an ICF/DD was 

approximately $114,000.00 per person annually. For state fiscal year 2009-2010, the 

average cost of a person in the DD waivers was approximately $31,000.00.

138. The number of waitlisted persons residing in privately owned and operated 

ICF/DDs has increased since February 1, 2009.

The DD Waiver Waitlist

139. Currently, there are over 19,000 individuals, both children and adults, on the DD 

Waivers waitlist. 

140. Defendants steer individuals to accept unavailable waiver services while not

amending their waivers to accommodate an increase in participants, developing

additional providers, or increasing funding. Defendant‟s policies evidence an imbalance 

of the delivery of services that belie its stated intent.

141. APD has adopted rules to implement the waitlist categories pursuant to Florida 

Statute §393.065(5). See FLA. ADMIN. CODE R. 65G-11.002. They are:

a. Category 1 includes individuals determined to meet the crisis criteria 

specified in Rule 65G-1.047of the Florida Administrative Code;

b. Category 2 includes children who are jointly served by the Agency and the 

Department of Children and Family Services (“DCF”, also known as the 

Department of Children and Families) in the Child Welfare program;

c. Category 3 includes the following individuals:

i. Individuals for whom the caregiver has a condition or 

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circumstance that is expected to render the caregiver unable to 

provide care within the next twelve months and other caregivers 

are unable, unwilling or unavailable to provide care. 

ii. Individuals who are at substantial risk of incarceration or court 

commitment which is defined as unlawful activity by the 

individual that has required the intervention of local or state law 

enforcement even if the unlawful activity did not result in an arrest 

or criminal charges. 

iii. Individuals who are currently incarcerated and are expected to be 

released within 12 months. 

iv. Individuals whose behaviors or physical needs place them or their 

caregiver at risk or harm within the next 12 months, and for whom 

no other supports are currently available to meet their needs. 

v. Individuals who are identified by the facility as ready for discharge 

from a state mental health hospital, intermediate care facility for 

the developmentally disabled, a skilled nursing facility, 

correctional facility, or a secure forensic facility within the next 12 

months. 

vi. Individuals receiving Voluntary Protective Services (VPS) or 

requesting DCF assistance to prevent their child from entering 

foster care. 

d. Category 4 includes individuals whose primary caregiver is age 70 years 

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of age or older and no other alternate caregiver is available, willing or able 

to provide support. 

e. Category 5 includes individuals who are expected to graduate from 

secondary school within the next 12 months, individuals who have 

received a special diploma and need the support available through waiver 

funded services to obtain or maintain competitive employment, or 

individuals who have applied for and been accepted to an accredited 

institution for postsecondary education. 

f. Category 6 includes individuals who are 21 years of age or older, and do 

not meet the criteria for any other category. 

g. Category 7 includes those individuals who are younger than 21 years of 

age and who do not meet the criteria for any other category. 

142. As of July 1, 2010, APD reported that 37.2% of those on the waitlist had been 

waiting for community services longer than five years and 12.2% had been waiting for 

four to five years.

143. As of February 2011, 16% of those persons registered for the waitlist were 

categorized by APD as Category 3. Categories 6 and 7 contain the next highest numbers 

of waitlisted persons. Roughly 8% were not yet categorized by APD.

144. Despite the legislative intent of Chapter 393 of the Florida Statutes, there has been 

no expansion of DD Waiver funding or waiver enrollments available to non-crisis 

Medicaid eligible recipients. 

145. For at least the past five years, new DD Waiver enrollees have been funded only 

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through attrition, meaning persons currently enrolled in the DD Waiver must become 

ineligible, move out of state, or die before funds are available for waitlisted persons.

146. The defendants provide minimal services to waitlisted persons through general 

revenue funds to stave off DD Waiver crisis enrollment or institutionalization.

147. As of December 2010, 1,137 persons on the waitlist received APD non-Medicaid 

services through state General Revenue and social services block grants.

148. The use of general revenue funds does not draw down federal matching funds and 

deprives the individual of the full array of DD Waiver services. 

149. Those persons enrolled through crisis have APD‟s designation of homeless, 

without a caregiver, or a danger to themselves or others because of behaviors.

150. Persons enrolled through crisis have increased and more substantial needs 

requiring sufficient providers and quality services to maintain them in the community.

151. Funding for the DD Waivers has steadily decreased to 2005-2006 levels.

152. SCOTT instructed the Inspector General‟s audit of APD to specifically identify a

historical financial crisis in order to reduce DD Waiver provider rates by 12.5% by 

executive order. 

Unnecessary Institutionalization of Florida Citizens

153. At present, there are approximately 198 persons with developmental disabilities 

residing in private ICF/DDs who are registered on the DD Waivers waitlist.

154. Another 1,136 persons with developmental disabilities currently registered for the 

DD Waiver waitlist reside in what APD terms “other.” This includes psychiatric 

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facilities, large group homes, state-run non-ICF/DD facilities, and other institutional-like 

settings.

155. Additionally, 69 persons with developmental disabilities registered for the DD 

Waivers waitlist reside in state-run ICF/DDs.

156. In further contravention of its stated intent, Florida‟s numbers in nursing home 

admissions for persons with developmental disabilities has risen steadily in recent years.

157. At present, there are approximately 115 persons with developmental disabilities 

residing in nursing homes registered for the DD Waivers waitlist.

158. Persons on the waitlist languish for years without DD Waiver services that meet 

their needs in the most integrated setting possible. 

159. APD‟s waitlist of over 19,000 people evidences the community‟s preference for 

DD Waiver services over institutions and other institutional-like settings. 

160. Despite Florida‟s intention to concentrate its efforts to meet the growing demand 

for community services, Florida continues to serve individuals in costlier institutional 

settings, including ICF/DDs and nursing homes, whether state or privately operated.

COUNT ONE

REASONABLE PROMPTNESS

161. Paragraphs 1 through 160 are incorporated by reference.

162. This count is brought pursuant to Title XIX of the Social Security Act, 42 U.S.C. 

§ 1396a, 42 C.F.R. § 435.930, and 42 U.S.C. § 1983. 

163. The defendants voluntarily participate in the federal Medicaid program under 42 

U.S.C. § 1396 et seq.

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164. Federal law requires that any state which elects to participate in the Medicaid 

program to provide all services, including DD Waiver services, to eligible individuals 

with reasonable promptness.

165. The defendants have failed and continue to fail to provide adequate DD Waiver 

services with reasonable promptness by developing and implementing policies designed 

to place Medicaid eligible individuals with developmental disabilities on a waitlist for 

waiver services with no real chance of ever enrolling in the DD Waiver and realizing the 

benefits of community integration. 

166. The defendants‟ operation of the DD Waiver has resulted in five years of stagnant 

growth where an enrolled person would either have to die or move out of state in order 

for a DD Waiver slot to be available to a new enrollee that then has to meet the definition 

of crisis.

167. The unavailability of services in the community relegates Medicaid eligible 

persons with developmental disabilities to a waitlist placement for years, violating the 

reasonable promptness provisions of Title XIX of the Social Security Act, 42 U.S.C. 

§ 1396a(a)(8) and 42 C.F.R. § 435.930.

168. The consequence of the defendants‟ actions is the costlier placement of persons 

with disabilities in inappropriate settings such as large ICF/DDs, psychiatric facilities,

and nursing facilities.

169. SCOTT, VAUGHAN and DUDEK have failed to design and identify a 

comprehensive, effectively working plan to meet their obligation under the ADA in order

to provide services to the putative class in a reasonably prompt manner. 

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170. VAUGHAN and DUDEK have failed to remove barriers in their rules, policies, 

and implementation of their programs for the putative class to receive services in the 

community in a reasonably prompt manner.

171. SCOTT has approved VAUGHAN‟s and DUDEK‟s rules to impose barriers to 

the putative class in receiving community services in a reasonably prompt manner.

172. SCOTT‟s agent, OFARR, has omitted VAUGHAN‟s and DUDEK‟S barriercreating rules from the list of rules to be modified, repealed or amended.

173. SCOTT continues to violate the putative class‟ rights in receiving community 

services in a reasonably prompt manner until he authorizes approval of the repeal, 

modification and change to VAUGHAN‟s and DUDEK‟s rules to remove those barriers.

174. VAUGHAN, DUDEK, and SCOTT continue to constrain the DD Waivers‟

services, funding, and available slots while allowing the numbers of persons residing in 

institutional settings to increase.

175. The plaintiffs have suffered harm and will continue to suffer harm as a direct and 

proximate result of defendants‟ violations of the Medicaid Act and implementing 

regulations. 

176. Named plaintiffs, DYKES, WALKER, DAVIS and YOUNG, as well as those 

similarly situated, will never qualify for crisis because of their placements in institutions

and are dependent upon SCOTT, VAUGHAN and DUDEK to develop and implement a 

comprehensive, effectively working plan and resource allocation so that all categories of 

Florida‟s waitlist prioritizations receive services in the most integrated setting possible in 

a reasonably prompt manner.

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177. Named plaintiffs, CONGDEN, PIVINSKI, WOODWARD , FERRARO and those 

similarly situated, have been placed on a waitlist for services that are likely to take 

decades to materialize putting them at risk of institutionalization due to the lack of 

services in a reasonably prompt manner.

COUNT TWO

FREEDOM OF CHOICE

178. Paragraphs 1 through 160 and 165 through 174 are incorporated by reference.

179. This count is brought pursuant to 42 U.S.C. § 1983. 

180. The defendants engage in a pattern and practice that forces plaintiffs to forgo any 

Medicaid services and to languish on the waitlist until their caregivers are incapacitated 

or die for enrollment in the DD Waiver to occur. 

181. The defendants‟ pattern and practice violates statutory freedom of choice 

requirement under the Social Security Act, § 1915(c)(2), as amended, 42 U.S.C. § 

1396n(c)(2), as defendants require Medicaid eligible individuals to choose between (1) 

an indefinite and lengthy placement on the DD Waivers waitlist without services, or (2) 

placement in an ICF/DD or other institutional setting with services but decreased 

independence, where they would be frozen in category 3.

182. SCOTT, VAUGHAN and DUDEK have failed to provide the freedom of choice 

of services to the putative class as required by 42 U.S.C. § 1396n(c)(2). 

183. SCOTT has affirmatively permitted VAUGHAN and DUDEK, through SCOTT‟s 

specific instructions and delegation of powers, to continue to allocate scarce resources to 

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institutions and institutional-like settings to the detriment of community services in the 

DD Waivers. 

184. SCOTT‟s OFARR has allowed VAUGHAN‟s and DUDEK‟s rules to continue 

the isolation and segregation of registered waitlisted persons in institutions and 

institutional-like settings in violation of their freedom of choice as delineated in 42 

U.S.C. §1396n(c)(2).

185. SCOTT has failed to instruct VAUGHAN and DUDEK to identify and assess 

those persons not registered on the waitlist but residing in institutions or institutional-like 

settings for community placements as part of his duties as the chief administrative officer 

of planning and budgeting.

186. VAUGHAN and DUDEK have failed to remove barriers in their rules, policies, 

and implementation of their programs for the putative class to exercise their freedom of 

choice to receive services in the community.

187. SCOTT has allowed and permitted VAUGHAN and DUDEK‟s rules to impose 

barriers to the putative class to exercise their freedom of choice in receiving community 

services by omitting them from OFARR‟s list of rules to be modified, repealed or 

amended. SCOTT failed to identify VAUGHAN‟s and DUDEK‟s rules as ones that 

adversely affect the availability of professional or occupational services to the public and 

impose an unjustified overall cost and economic impact, including the indirect cost to 

consumers; and failed to analyze the impact of those rules on the matters of public health, 

public safety, and public welfare.

188. The defendants‟ pattern and practice to forgo continued counseling of the right to 

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elect to receive services in the community after placement in an institution or institutionlike facility violates statutory freedom of choice requirement under the Social Security 

Act, § 1915(c)(2), as amended, 42 U.S.C § 1396n(c)(2).

189. Named plaintiffs, DYKES and WALKER, were placed in ICF/DDs despite their 

desire and ability to reside in the community. DYKES and WALKER were unable to 

secure enrollment in, or even placement on the waitlist for, the DD Waiver due to the 

unavailability of family or advocates at the time of their placement in the ICF/DDs. 

190. VAUGHAN failed to identify DYKES, DAVIS and WALKER as able to live in 

the community and to ensure their eligibility and registration for the DD Waivers upon 

admission to the institution.

191. The defendants failed to provide the necessary choice counseling to ICF/DD 

residents to determine whether an integrated setting is more appropriate for them.

192. The defendants do not routinely and continuously identify ICF/DD residents who 

can live in the community and desire to do so. 

193. The defendants do not have a proactive plan to use their professional judgment to 

identify the most appropriate integrated setting, and often the less costly setting, for

ICF/DD residents.

194. Named plaintiff, YOUNG, was placed in a nursing home despite having the 

ability to reside in the community for less cost with appropriate services.

195. YOUNG qualifies for the DD Waiver based upon her disability. The DD Waiver 

offers an array of services capable of meeting YOUNG‟s needs to reside in the 

community and YOUNG has chosen to apply for the DD Waiver. 

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196. The defendants have failed to identify all DD Waiver eligible persons that have 

been diverted to nursing homes, and to routinely and continuously offer choice 

counseling to those persons to ensure they are in the most appropriate integrated setting .

197. Due to their placement on the DD Waivers waitlist, named plaintiffs, CONGDEN, 

WOODWARD, FERRARO and PIVINSKI, are denied the freedom of choice of 

providers, as the only provider available to them is an institution.

COUNT THREE

AMERICAN WITH DISABILITIES ACT and SECTION 504 OF THE 

REHABILITATION ACT

198. Paragraphs 1 through 160, 165 through 174, and 183 through 197 are incorporated 

by reference.

199. This count is brought pursuant to 42 U.S.C. § 1983.

200. The defendants are public agency directors responsible for operation of a public 

entity, pursuant to 42 U.S.C. §§ 12131(1)(A)&(B).

201. The defendants direct state agencies that receive federal financial assistance.

202. The defendants‟ pattern and practice in its administration of the Medicaid waiver 

program violates the ADA, 42 U.S.C. § 12101 et seq., in that Florida continues to fund 

unnecessary placements of individuals with similar disabilities in ICF/DDs at the expense 

of those individuals seeking services in the community, to the detriment of both groups. 

203. Pursuant to the ADA, public entities, including the defendants, must administer 

services, programs and activities in “the most integrated setting appropriate” to the needs 

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of qualified individuals with disabilities. See 28 C.F.R. § 35.130(d).

204. The ADA‟s implementing regulations further provide that “a public entity may 

not, directly or through contractual or other arrangements, utilize criteria or other 

methods of administration: (i) that have the effect of subjecting qualified individuals with 

disabilities to discrimination on the basis of disability; [or] (ii) 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).

205. Section 504 of the Rehabilitation Act of 1973 also contains an integration 

mandate for recipients of federal funds. See 29 U.S.C. § 794.

206. Section 504‟s regulations prohibit recipients of federal financial assistance from:

Utiliz[ing] criteria or methods of administration...(i)that have the effect of 

subjecting qualified handicapped persons to discrimination on the basis of 

handicap [or] (ii) that have the purpose or effect of defeating or substantially 

impairing accomplishment of the objectives of the recipient‟s program with 

respect to handicapped persons.

45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(1).

207. 28 C.F.R. § 41.51(d) requires a public entity to administer its services, programs 

and activities “in the most integrated setting appropriate” to the needs of qualified 

individuals with disabilities.

208. The defendants have funded unnecessary and costlier institutional placements for 

eligible individuals, to the detriment of the named plaintiffs and class members awaiting 

services through the community. 

209. The defendants‟ practice of unnecessarily allocating these funds for institutional 

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long-term care contravenes the stated intent of Florida Statutes Section 393.062, violates

the ADA, and violates Section 504 of the Rehabilitation Act.

210. The defendants have unnecessarily institutionalized plaintiffs and class members 

by (1) failing to properly assess the services and supports needed to reside in the 

community and (2) failing to inform the plaintiffs and class members of available

community services upon admission and thereafter to the ICF/DDs, nursing homes, and 

other institution-like settings.

211. The defendants‟ diversion of resources and categorization of waitlisted persons 

consequently results in only crisis enrollments to the DD Waivers, perpetuating the 

unnecessary segregation of those in institutions and virtually locking the doors so that no 

resident will ever receive community services.

212. The defendants‟ use and administration of Medicaid resources violates the antidiscrimination provision of the ADA, 42 U.S.C. § 12132, and Section 504 of the 

Rehabilitation Act, by limiting community-based care while allowing institutional care to 

rise.

213. The result of the defendants‟ actions and inactions is that eligible individuals are 

forced to choose between forgoing services in order to remain in the community or 

forgoing independence to obtain services in institutional placements.

214. The defendants‟ patterns and practices subject the plaintiffs to harm and injury by 

segregating named plaintiffs and class members and indefinitely depriving them of social 

integration through failure to continuously assess whether the institutional placement is 

more appropriate than services provided in a community setting.

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215. The defendants‟ failure to provide DD Waiver services to named plaintiffs and 

class members in the community places them in jeopardy of receiving services in an 

institution, rather than in the most integrated setting appropriate to their needs, in 

violation of the integration mandate of the ADA and 504 of Rehabilitation Act, 42 U.S.C. 

§ 12115 et seq., 29 U.S.C. § 794, and the implementing regulations, and 28 C.F.R. §§ 

35.130(d) and 41.51.

216. SCOTT, VAUGHAN and DUDEK have failed to provide the most integrated 

setting possible to the putative class as required by the integration mandate of the ADA

and in violation of Section 504 of the Rehabilitation Act. 

217. SCOTT has affirmatively permitted VAUGHAN and DUDEK, through SCOTT‟s 

specific instructions and delegation of powers, to continue to allocate scarce resources to 

institutions and institutional-like settings to the detriment of community services in the 

DD Waivers. 

218. SCOTT‟s OFARR allowed VAUGHAN‟s and DUDEK‟s rules and policies to 

continue the isolation and segregation of over 500 registered waitlisted persons, and 

others class members not yet registered for the waitlist, in institutions and institution-like 

settings in violation of the integration mandate of the ADA and Section 504 of the 

Rehabilitation Act. 

219. VAUGHAN and DUDEK have failed to remove barriers in their rules, policies, 

and implementation of their programs for the putative class to receive services in the 

community in accordance with the ADA and in violation of Section 504 of the 

Rehabilitation Act. 

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220. SCOTT has allowed and permitted VAUGHAN‟s and DUDEK‟s rules to impose 

barriers to the putative class in receiving community services by omitting them from 

OFARR‟s list of rules to be modified, repealed or amended. SCOTT failed to identify 

VAUGHAN‟s and DUDEK‟s rules as ones that: adversely affect the availability of 

professional or occupational services to the public; impose an unjustified overall cost and 

economic impact, including the indirect cost to consumers; or impact matters of public 

health, public safety, and public welfare.

221. YOUNG qualifies for the DD Waiver but cannot access those services because of 

VAUGHAN‟s and DUDEK‟S actions limiting community services. The DD Waiver 

offers an array of services capable of meeting YOUNG‟s support needs to reside in the 

community.

222. VAUGHAN and DUDEK‟s administration of the DD Waivers waitlist subject the 

named plaintiffs, DYKES, YOUNG, DAVIS and WALKER, and class members, to 

permanent placement on the DD Waivers waitlist due to the prioritization of individuals 

awaiting services pursuant to Section 393.065(5) of the Florida Statutes and Rules 65G11.001-.003 of the Florida Administrative Code.

223. Defendants‟ actions and omissions subject the named plaintiffs, DYKES, 

YOUNG, DAVIS and WALKER, and class members, to permanent placement on the DD 

Waiver waitlist due to the accompanying policies to continue funding their own 

unnecessary institutional placements in lieu of community services.

224. Defendants‟ actions and omissions subject the named plaintiffs CONGDEN, 

WOODWARD, FERRARO and PIVINSKI, and class members residing in the 

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community awaiting services, to a constructive permanent placement on the waitlist due 

to the continued allocation of scarce resources to unnecessary institutional placements in 

lieu of community resources. The defendants‟ actions and omissions described herein 

subject CONGDEN, WOODWARD, FERRARO and PIVINSKI and similarly situated 

class members to the risk of institutionalization.

COUNT FOUR

DENIAL OF DUE PROCESS

225. Paragraphs 1 through 160, 165-174, 183-197, and 200-201are incorporated by 

reference.

226. The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution prohibits states from depriving any person of life, liberty, or property, 

without due process of law. U.S. Const. Amend. XIV §1.

227. Plaintiffs have a constitutionally protected property interest in Medicaid benefits.

228. State plans must provide for granting an opportunity for a fair hearing before the 

state agency to any applicant whose claim for medical assistance under the plan is denied 

or is not acted upon with reasonable promptness. 42 U.S.C. §1396a(a)(3), 42 C.F.R. §

431.220.

229. VAUGHAN and DUDEK have failed to provide notice to DYKES, WALKER, 

DAVIS, YOUNG, CONGDEN, PIVINSKI, WOODWARD and FERRARO of their right 

to a hearing upon their application for the DD Waiver and their placement into a waitlist 

prioritization category pursuant to 42 C.F.R. § 431.206, § 431.220.

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RELIEF REQUESTED

Plaintiffs request the following relief be granted:

a. Certify this action as a class action pursuant to Fed. R. Civ. P. 23.

b. Declare that the defendants‟ failure to provide named plaintiffs and class 

members with services in the most integrated setting appropriate to their needs 

violates Title II of the ADA, Section 504 of the Rehabilitation Act.

c. Declare that the defendants‟ rules, policies and actions violate the Medicaid Act‟s 

freedom of choice and reasonable promptness provisions. Social Security Act, § 

1915(c)(2), as amended, 42 U.S.C. §§ 1396a(a)(8) & 1396n(c)(2), and 42 C.F.R. 

§ 435.930.

d. As to the class members residing in family homes, enter a Permanent Injunction 

requiring the defendants to:

i. Inform named plaintiffs and class members that they may be eligible for 

publicly-funded community services and that they have the choice of such 

services; and

ii. Determine eligibility for those desiring community services and notify 

them in writing with due process rights for hearing in adverse 

determinations; and

iii. Conduct assessments and preliminary support plans that are centered on 

needs, and not available resources, through person-centered planning; and

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iv. Ensure coverage of long-term care services and supports in the community 

by enrolling those eligible individuals most at risk of institutionalization as 

determined by their assessments and preliminary support plans; and

v. Determine the cost to enroll all class members residing in family homes 

and design and implement a comprehensive effective working plan to 

enroll those individuals in a reasonably prompt manner.

e. As to the class members residing in institutions or institutional-like settings, enter 

a Permanent Injunction ordering the defendants to:

i. Inform named plaintiffs and class members that they may be eligible for 

publicly-funded community services and that they have the choice of such 

services; and

ii. Determine eligibility for those desiring community services and notify 

them in writing with due process rights for hearing in adverse 

determinations; and

iii. Require waiver support coordinators to be assigned to develop discharge 

plans, support plans and individualized habilitation programs through 

person-centered planning for each plaintiff and class member;

iv. Transition each plaintiff and class member who desires to reside in the 

community with effective developmental services to the most integrated 

community setting appropriate with the necessary support services to meet 

the individual‟s needs;

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v. Make available the necessary alternative residential facilities, home 

services and vocational and day services in the community to allow the 

individual to reside in the most integrated setting appropriate.

f. Order the defendants to remove arbitrary administrative barriers which prevent 

class members from accessing individualized home and community based waiver 

services without alleging or facing a crisis situation precedent.

g. Order the defendants to provide plaintiffs and class members with necessary 

services to enable them to live in the community with reasonable promptness 

through the development of a comprehensive effective plan to eliminate and 

enroll persons from the DD Waiver waitlist.

h. Order the defendants to provide plaintiffs with notice of their denial for DD 

Waiver services, placement on the waitlist and assigned prioritization category 

together with their hearing rights.

i. Order the defendants to determine the eligibility of and enroll class members 

relegated to categories of the waitlist that do not incorporate crisis and to continue 

enrolling those individuals at a reasonable rate and pace so that a comprehensive 

effective working plan to eliminate the waitlist exists.

j. Order the defendants to develop a reliable and accurate means of tracking and 

projecting service demand and associated trends in order to maintain a 

comprehensive effective working plan to enroll persons from the DD Waiver 

waitlist with reasonable promptness.

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k. Award named plaintiffs and class members their reasonable attorneys‟ fees, 

litigation expenses and costs.

l. Grant such other relief as the court deems just and proper.

DATED in Tallahassee, Florida on this 8th day of July, 2011.

By s/ Amanda Heystek

Amanda Heystek, Esquire

Florida Bar No. 0285020

Disability Rights Florida

1000 N. Ashley Drive, Suite 640

Tampa, Florida 33602

(850) 488-9071 Telephone

(850) 488-8640 Facsimile

amandah@disabilityrightsflorida.org

Lead Trial Counsel

By s/ Paul E. Liles 

Paul E. Liles, Esquire

 Florida Bar No. 0921270

Disability Rights Florida

 Senior Trial Counsel

paull@disabilityrightsflorida.org

Christopher White, Esquire

Florida Bar No. 0060109

christopherw@disabilityrightsflorida.org

1000 N. Ashley Drive, Suite 640

Tampa, Florida 33602

Maryellen McDonald, 

Director of Legal and Advocacy Services

Florida Bar No. 607533

maryellenm@disabilityrightsflorida.org

2728 Centerview Drive, Suite 102

Tallahasseee, FL 32301

(850) 488-9071 Telephone

(850) 488-8640 Facsimile

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