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.

__________________________________

 

Before me are Plaintiffs’ Motion for Class Certification (Doc. 61) and Defendants’ 

Response in Opposition (Doc. 69). 

Standard of Review

Plaintiffs seek class certification under Fed. R. Civ. P. 23. “Rule 23 does not set 

forth a mere pleading standard.” Rather, a party seeking class certification must 

“affirmatively demonstrate [their] compliance with the Rule -- that is, [they] must be 

prepared to prove that there are in fact sufficiently numerous parties, common questions 

of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) 

(citation omitted). "[It] sometimes it may be necessary for the court to probe behind the 

pleadings before coming to rest on the certification question." Id. “Certification is proper 

only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 

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23(a) have been satisfied.” Id. 

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. 

Analysis

To meet their burden, Plaintiffs must first demonstrate four perquisites—

numerosity, commonality, typicality, adequacy. Rule 23(a) provides: 

“A class may sue . . . on behalf of all members only if: 

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(1) the class is so numerous that joinder of all members 

is impracticable; 

(2) there are questions of law or fact common to the 

class; 

(3) the claims or defenses of the representative parties 

are typical of the claims or defenses of the class; 

and

(4) the representative parties will fairly and adequately 

protect the interests of the class.”

 

Second, the proposed class must satisfy at least one of the three requirements of 

Rule 23(b). Plaintiffs rely on Rule 23(b)(2), which applies when “the party opposing the 

class has acted or refused to act on grounds that apply generally to the class, so that final 

injunctive relief or corresponding declarative relief is appropriate respecting the class as a 

whole.” 

Threshold Issue: Standing

Article III of the United States Constitution limits the role of the federal judiciary 

to resolving cases and controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-

560, 112 S. Ct. 2130, 2136 (1992). Standing is a core component of this Article III 

requirement that must be established by litigants before a court may exercise jurisdiction 

over their claims. Id. at 560, 112 S. Ct. at 2136. The rules allowing the creation of class 

actions cannot be used to circumvent this most fundamental requirement. “No class may 

be certified that contains members lacking Article III standing.” Denney v. Deutsche 

Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). See also Conigliaro v. Norwegian Cruise 

Line, 2006 U.S. Dist. LEXIS 95576, *14-15 (S.D. Fla. 2006) (quoting Oshana v. CocaCola Bottling Co., 225 F.R.D. 575, 580 (N.D. Ill. 2005) (“The proposed class description 

Case 4:11-cv-00116-RS-WCS Document 80 Filed 10/14/11 Page 3 of 11
'"must not be so broad as to include individuals who are without standing to maintain the 

action on their own behalf.”). 

Here, the proposed class includes “all individuals meeting the level of care 

requirements for placement in an ICF/DD who are enrolled on the DD Waiver waitlist...” 

(Doc. 61, p.2). This class includes “subclasses of those who (1) receive services in 

institutions or institutional-like settings and (2) reside in the community without 

services.” Id. 

The second subclass (“community plaintiffs”) identified by Plaintiffs does not run

afoul of standing jurisprudence. The “injuries” suffered by those who currently reside in 

the community are sufficient to confer standing. Plaintiffs Congden, Pivinski, and 

Woodward are in this subclass and reside in their communities. They are not 

institutionalized.

The doctrine of standing requires (1) that Plaintiff must have suffered an injury-infact; (2) that there must be a causal connection between the injury and the conduct 

complained of; and (3) that it must be likely, as opposed to merely speculative that the 

injury will be redressed by a favorable decision. Lujan, at 560-561, 112 S. Ct. at 2136. 

A. Injury-in-Fact

The injury-in-fact must be both “(a) concrete and particularized and (b) actual or 

imminent, not conjectural or hypothetical.” Fla. Wildlife Fed'n., Inc. v. S. Fla. Water 

Mgmt. Dist., 647 F.3d 1296 (11th Cir. 2011) (citation omitted). Plaintiffs need not wait 

for an injury to occur. Rather, an allegation of future injury satisfies this prong of 

standing so long as the alleged injury “is likely to occur, and likely to do so 

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immediately.” 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003) (citing 

Lujan, 504 U.S. at 560, 112 S. Ct. at 2136). 

Defendants assert that the community plaintiffs lack standing because they are 

“neither institutionalized nor at imminent risk of being institutionalized.” (Doc. 69, p.7). 

Defendants miss the mark. It is not the threat of institutionalization which is a cognizable 

injury. Rather, the “waiting lists for enrollment on the DD Waivers where [the 

community plaintiffs] languish for years without services” are the injury. 

 Plaintiffs have standing because their claims are grounded in statute. Plaintiffs 

interpretation of the reasonable promptness provisions of the Social Security Act, 42 

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

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

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

of this dispute. Whether they succeed or fail will be determined on the merits of their 

arguments. Defendants contend that Plaintiffs have no valid cause of action under the 

SSA or the ADA, and therefore have no standing. (Doc. 69, p.6-7). Whether Plaintiffs’ 

cause of action is valid will be determined outside the standing context. 

Plaintiffs are incorrect in their standing analysis to the extent that they claim that 

the threat of institutionalization confers standing. Plaintiffs claim that the community 

plaintiffs are on the “continuum of [the] path to institutionalization.” (Doc. 61, p.12). 

For the community plaintiffs, the threat of institutionalization is speculative and is not 

relevant. 

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Class Certification 

A. Commonality and Typicality

The commonality and typicality requirements of Rule 23(a) tend to merge. Both 

serve as guideposts for determining whether under the particular circumstances 

maintenance of a class action is economical and whether the named plaintiff's claim and 

the class claims are so interrelated that the interests of the class members will be fairly 

and adequately protected in their absence. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 

2541, 2551, n.5 (2011) (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 

147, 157-158, n. 13 (1982). 

“Commonality requires the plaintiff to demonstrate that the class members have 

suffered the same injury.” Id. This does not mean merely that they have all suffered a 

violation of the same pro-vision of law. Rather, “what matters to class certification . . . is 

not the raising of common 'questions' -- even in droves -- but, rather the capacity of a 

classwide proceeding to generate common answers apt to drive the resolution of the 

litigation. Dissimilarities within the proposed class are what have the potential to impede 

the generation of common answers.” Id. (citation omitted).

Here, the main obstacle to class certification is the disparity between the two 

subclasses: the institutional plaintiffs are far different from the community plaintiffs. 

Most problematic is that the law treats institutional and community plaintiffs 

differently. That is, undue institutionalization qualifies as discrimination under the ADA. 

Olmstead v. L. C. by Zimring, 527 U.S. 581, 597-598 (1999). But, it is unclear whether 

exclusion from community based programs qualifies as discrimination. Thus, the 

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institutionalized plaintiffs articulate a recognized cause of action. But, the community 

plaintiffs will have more difficulty arguing their case. Answering the uncertainly in the 

community plaintiff’s ADA claim will be central to their case, but inconsequential to the 

institutional plaintiffs. This difference in established law is fatal to creating a class which 

contains both groups. 

A second problem that arises between the two groups is how Florida law treats 

them. FLA. STAT. § 393.065(5) establishes the priority of those seeking waiver services: 

Except as otherwise directed by law, beginning July 1, 2010, the 

agency shall assign and provide priority to clients waiting for 

waiver services in the following order:

(a) Category 1, which includes clients deemed to be in crisis as 

described in rule.1

(b) Category 2, which includes children on the wait list who are 

from the child welfare system with an open case in the 

Department of Children and Family Services' statewide automated 

child welfare information system.

(c) Category 3, which includes, but is not required to be limited 

to, clients:

 1. Whose caregiver has a documented condition that is 

expected to render the caregiver unable to provide care within the 

next 12 months and for whom a caregiver is required but no 

alternate caregiver is available;

 2. At substantial risk of incarceration or court commitment 

without supports;

 3. Whose documented behaviors or physical needs place them 

or their caregiver at risk of serious harm and other supports are 

not currently available to alleviate the situation; or

 4. Who are identified as ready for discharge within the next 

year from a state mental health hospital or skilled nursing facility 

 

1

Florida Administrative Code § 65G-1.047 defines the crisis category. It includes the following: first priority as 

those who are homeless or living in an unsafe environment; second priority as those who exhibit behaviors that may 

create life-threatening situations or bodily harm; third priority as those who have caregivers in extreme duress and 

are not able to care. 

Case 4:11-cv-00116-RS-WCS Document 80 Filed 10/14/11 Page 7 of 11
and who require a caregiver but for whom no caregiver is 

available.

(d) Category 4, which includes, but is not required to be limited 

to, clients whose caregivers are 70 years of age or older and for 

whom a caregiver is required but no alternate caregiver is 

available.

(e) Category 5, which includes, but is not required to be limited 

to, clients who are expected to graduate within the next 12 months 

from secondary school and need support to obtain or maintain 

competitive employment, or to pursue an accredited program of 

postsecondary education to which they have been accepted.

(f) Category 6, which includes clients 21 years of age or older 

who do not meet the criteria for category 1, category 2, category 

3, category 4, or category 5.

(g) Category 7, which includes clients younger than 21 years of 

age who do not meet the criteria for category 1, category 2, 

category 3, or category 4.Within categories 3, 4, 5, 6, and 7, the 

agency shall maintain a wait list of clients placed in the order of 

the date that the client is determined eligible for waiver services.

The community plaintiffs in the lawsuit are in category six or higher. They suffer 

injuries different and distinct from the institutional plaintiffs. For example, Plaintiff 

Pivinski is a 24-year old woman who resides in the community and maintains a job. 

(Doc. 30, ¶57-58). She lives with her parents, and because of her parents’ age and living 

situation, Pivinski will “never meet the requirements for any of the preceding categories 

other than Category 6for several decades.” Id. at ¶61. Plaintiffs contend that Pivinski 

will never be enrolled in the DD Waiver program, and that her caregivers must “evict

their daughter before they die or become incapable” in order to make her eligible. 2 Id. at 

 

2

Plaintiff contends that only those in category one (the crisis category) are enrolled in the DD Waiver. (Doc. 30, 

¶9). 

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¶59. They contend that this situation places Pivinski in “imminent risk of 

institutionalization.” Id. at ¶64. 

Similarly, Plaintiff Woodward lives at home with his father and stepmother. He is 

22-years old. He “does not need much assistance with activities of daily living.” Id. at ¶ 

65-67. Woodward is in Category 6 or 7. 

Plaintiff Young, on the other hand, is an institutional plaintiff. She currently 

resides in a nursing home and suffers from paralysis and other orthopedic impairments. 

Id. at ¶41-44. Young requires medical assistance with a gastric tube and tracheotomy. 

Young is a Category 3. 

Here, the hurdle to class certification is that the reasoning why the community 

plaintiffs are not enrolled in the DD Waiver program is different from the 

institutionalized plaintiffs. The institutionalized plaintiffs are not enrolled in the waiver 

program because they “will never qualify for crisis (categorization) because of their 

placements in the institution.” (Doc. 30, ¶176). That is, the fact that they are in the 

institution precludes their ability to get off the waitlist. Not so for the community 

plaintiffs. The reason they are not in the DD Waiver program is much more fact specific. 

The crisis category, the one from which Defendants allegedly fill the slots for the waiver 

program, includes individuals whose “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.” FLA ADMIN. CODE §65G-1.047. The institutionalized plaintiffs who are 

in an ICF/DD will never fall into this category. However, many of the community 

plaintiffs will eventually find themselves in a situation where their caregivers are unable 

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to care for them. The two groups are on separate and distinct paths when it comes to 

categorization under Florida statute. The facts which keep them from the waiver 

program are different, making the combination into one class inappropriate. 

A third problem is that the injuries suffered by the institutional plaintiffs are 

different from the community plaintiffs. The institutional plaintiffs are stuck in ICF/DD 

wanting to be in the community under the DD Waiver program. The community 

plaintiffs are in the community, want to remain there, and also want to be enrolled in the 

DD Waiver program. They fear institutionalization, but are not institutionalized. The 

harm of not being in the DD Waiver program has different consequences for the two 

classes of plaintiffs. The community plaintiffs are largely where they would be if they 

were in the program. For them, the issue is mainly about resources. The institutional 

plaintiffs are in a completely different situation. The issue for them isn’t so much 

funding as it is the actual setting.3 

Finally, there is a conflict of interest between the two groups. The institutional 

plaintiffs, many of whom are in higher priority categories, have a different agenda than 

the community plaintiffs, many of whom are in a lower priority category. For example, 

given that there are a fixed number of slots in the waiver program, the institutionalized 

plaintiffs and those in higher priority would want to take those slots. They are invested in 

keeping the status quo of prioritization. The lower priority candidates, like the 

 

3

Plaintiffs may argue that the risk of institutionalizing makes the two classes sufficiently common. However, the 

possibility of institutionalization is mere speculation. For example, while Plaintiffs portray plaintiff Pivinski’s 

situation as extraordinarily dire, Piviniski’s categorization belies this claim. Because she is in category six, her 

caregivers must be younger than 70 years of age, and the caregivers do not have conditions which are expected to 

render them unable to provide care within the next 12 months. Fla. Stat. § 393.065(5). While the choice to keep her

at home, rather than put her in an institution may be a difficult one, Pivinski and the others have not demonstrated 

that they are in imminent risk of institutionalization

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community plaintiffs, have an interest in changing the prioritization regime. Their 

interest is to jump ahead or at least supplement higher prioritized candidates on the 

waitlist. For example, the community plaintiffs may argue that the length of time on the 

waitlist should be a critical factor in considering who gets into the DD Waiver program. 

The institutional plaintiffs and other higher priority candidates could disagree and 

contend that physical condition and status as institutionalized individuals should be a 

priority. In short, both groups are competing for the same scarce resources. 

This simple illustration demonstrates why an approach combining the community 

plaintiffs and institutional plaintiffs into one class is untenable. A Category Six 

individual is far different from a Category Three individual. Numerous factors are 

considered when making these determinations: the age and health of caregivers; the age 

and condition of the individual; the effect of time on these conditions; the resources of 

the individual and her caregivers; and whether the individual is enrolled and will graduate 

from school. The interests of those in lower prioritization categories may be 

diametrically opposed to those in higher prioritization categories. 

Plaintiffs’ Motion for Class Certification (Doc. 61) is DENIED. 

ORDERED on October 14, 2011.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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