remain institutionalized in nursing facilities throughout Florida. Nearly two thousand others will have no guarantee that they will receive the medically necessary nursing services to which they are entitled under the Medicaid Act, and no guarantee that they will not be placed at risk of institutionalization through further discriminatory administration of Defendants’ programs. Additionally, the facts of this case support class certification, especially in light of the established precedent that class actions are appropriate mechanisms for resolving civil rights violations, including those involving rights protected by the ADA, as well as those enforcing the Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) requirements of the Medicaid Act, 42 U.S.C. §1396 et seq. BACKGROUND Plaintiffs T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., and B.F. are children who have been diagnosed as “medically fragile,” and who qualify for services through the State of Florida’s Medicaid program, including those services that allow individuals with disabilities to live at home in the community. (See Pls.’ Second Am. Compl., ECF No. 62, (“Compl.”) (Filed Aug. 23, 2012) ¶¶ 1, 15-17.) They allege that, despite being qualified for community-based services, they either have been, or are at risk of being, required to enter nursing facilities to receive necessary care. (Id. ¶¶ 7, 14) They further allege that this is the direct result of State policies that do not ensure that medically necessary community-based services (specifically, private duty nursing services) are appropriately offered or provided and that these policies violate the ADA and the Medicaid Act. (See id. ¶¶ 4-14.) They also allege that Defendants administer a federally mandated nursing home pre-admission screening program in a manner that both conflicts with federal law and results in inappropriate admissions to nursing facilities. (See id. ¶¶ 329-335.) Thus, Plaintiffs have brought the present action for declaratory and injunctive
Defendants’ recently proposed Policy Changes evidences an unambiguous termination of the practices that have allegedly harmed Plaintiffs and their proposed class members is suspect. Harrell, 608 F.3d at 1266. These Policy Changes stand in stark contrast to Defendants’ prior, unambiguous efforts to reduce the availability of in-home nursing services, and instead require individuals to receive PPEC services. For example, in a 2010 budget proviso, the Legislature reduced funding for private duty nursing services by several million dollars, directed AHCA to limit availability of the service to twelve continuous hours per day, and mandated parental participation in care. In the same year, the Legislature added a budget proviso requiring AHCA to “direct” beneficiaries to PPEC services instead of private duty nursing, and to offer private duty nursing as a supplemental service only. AHCA followed suit through implementing the policies that they now propose to change. There is thus a strong basis to suspect that the instant Policy Changes, which are an abrupt about-face from prior policies, are driven not by the desire to “improve” the Medicaid program or “clarify” existing policies, but instead to deprive the Court of subject matter jurisdiction. In sum, as in Harrell and in contrast with Troiano, the “timing and content” of Defendants’ Policy Changes here do not make it “absolutely clear” that Defendants have effectuated an “unambiguous termination” of their objectionable policies. Harrell, 608 F. 3d at 1268; NABP, 633 F.3d at 1310. B. Defendants’ Proposed Policy Changes Not Support Dismissal Even If They Mooted Some of Plaintiffs’ Allegations. Even if the Policy Changes were fully effectuated and permanent, dismissal would still be inappropriate. As noted above, “[a] case becomes moot . . . when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Already, 133 S. Ct.
should not prevent aspects of this case from proceeding on a class basis. II. Class Certification Is Appropriate in This Case. It is well established that rights actions, particularly those that seek to vindicate the rights of persons with disabilities pursuant to the integration mandate of the ADA and the Supreme Court’s opinion in Olmstead v. L.C., 527 U.S. 581 (1999), may be well-suited for resolution on a class basis. See, e.g., Pashby v. Delia, No. 11-2363, 2013 U.S. App. Lexis 4516, at *14-*18 (4th Cir. Mar. 5, 2013) (upholding certification of class of all current or future North Carolina Medicaid recipients age 21 or older who have, or will have, coverage of personal care denied, delayed, interrupted, terminated, or reduced due to new eligibility requirements in violation of the ADA); Lane v. Kitzhaber, 283 F.R.D. 587, 594-602 (D. Or. 2012) (certifying class of individuals with intellectual or developmental disabilities who are in or have been referred to sheltered workshops and who are qualified for supported employment services, for claims arising under ADA and Rehabilitation Act). These actions frequently call for rulings on State policies and practices that simultaneously impact large numbers of citizens. This case presents no exception. Plaintiffs here seek declaratory and injunctive relief to change State policies and practices that either have resulted in the warehousing of large numbers of medically fragile children into nursing facilities, or threaten to do so. If Plaintiffs prevail in arguing that these State policies violate the ADA, then this Court can issue a single order commanding the State to change its policies, to refrain from employing discriminatory policies, and to institute policies to prevent discrimination. Such an order would provide relief to the entire proposed class. A. Class Certification Allows for Efficient, Effective Resolution of Civil Rights Cases, Especially Those Involving Rights Protected by the ADA.
SERVICE LIST Edward J. Grunewald The North Florida Center for Equal Justice, Inc. 2121 Delta Blvd. Tallahassee, FL 32306 Phone: 850-701-3980 Fax: 850-701-3985 Email: Attorney for Plaintiffs Service by CM/ECF Ito The North Florida Center for Equal Justice, Inc. 2121 Blvd. Tallahassee, FL 32306 Phone: 850-701-3980 Fax: 850-701-3895 Email: Attorney for Plaintiffs Service by CM/ECF Jill B. Zaborske The North Florida Center For Equal Justice, Inc. 2121 Delta Blvd. Tallahassee, FL Phone: 850-701-3980 Fax: 850-701-3985 Email: Attorney for Plaintiffs Service by CM/ECF Paolo G. Annino FSU College of Law Public Interest Law Center 425 W. Jefferson Street Tallahassee , FL Phone: 850-644-9928 Fax: 850-644-0879 Email: Attorney for Plaintiffs Service by CM/ECF Matthew W. Dietz 2990 SW 35th Avenue Miami, FL 33133 Phone: 305-669-2822 Fax: 305-442-4181 Email: Attorney for Plaintiffs Service by CM/ECF Michael Garrett Austin DLA Piper LLP (US) 200 South Biscayne Blvd. Suite 2300 Miami , FL 33131 305-423-8522 Fax: 305-437-8131 Email: Attorney for Defendants Dudek, Farmer, and Wiggins Stuart Fraser Williams Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, FL 32308 850-412-3630 Fax: 850-921-0158 Email: Attorney for Defendants Dudek, Farmer, and Wiggins Service by CM/ECF Leslei Gayle Street Agency for Healthcare Administration Office Of The General Counsel 2727 Mahan Drive, Ms #3 Tallahassee , FL 32308 850-412-3686 Fax: 850-921-0158 Email: Attorney for Defendant Dudek Service by CM/ECF Andrew T. Sheeran Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive, Building 3, MS #3 Jennifer Ann Tschetter Florida Department of Health 4052 Bald Cypress Way Bin A-02 Tallahassee , FL 32399