Filed Date: March 13, 2012
Case Ongoing
Clearinghouse coding complete
On March 13, 2012, a number of medically fragile children or children who need skilled care services filed this lawsuit in the U.S. District Court for the Southern District of Florida against Florida's Agency for Health Care Administration and Department of Health, as well as eQHealth, a Louisiana non-profit corporation that contracted with the other defendant entities to make medical necessity determinations. The plaintiffs were represented by private counsel, the FSU College of Law Public Interest Law Center, and the North Florida Center for Equal Justice. The plaintiffs sued under the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Medicaid Act (Medicaid), and Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment Services (EPSDT Provisions), alleging that the defendants’ policies, actions, and omissions in reducing community-based, medically necessary services to medically fragile children hindered the plaintiffs’ caregivers’ ability to provide safe and appropriate care at home. By cutting such medical services for the plaintiffs, the defendants allegedly placed them at risk of unnecessary institutionalization in nursing facilities, which were not integrated facilities appropriate for the plaintiffs’ care.
The plaintiffs sought declaratory and injunctive relief. First, they sought a declaration that the defendants’ policies, actions, and omissions put the plaintiffs at risk of being placed in segregated facilities, in violation of the ADA, the Rehabilitation Act, Medicaid, and the EPSDT Provisions. They also sought a permanent injunction requiring the defendants to provide for medically necessary services in the most integrated setting possible. The case was assigned to Judge William J. Zloch and Magistrate Judge Robin S. Rosenbaum.
On April 26, 2012, the plaintiffs filed an unopposed motion to consolidate the case with T.H., et al v. Dudek, et al. Judge Zloch granted the motion on May 11, 2012. The plaintiffs then filed an amended complaint on May 16, 2012. The amended complaint sought relief on behalf of the putative class of medically fragile children and two subclasses: medically fragile children who lived at home but were at risk of future institutionalization, and medically fragile children already placed in geriatric nursing facilities. The amended complaint sought to compel the state to provide services that would allow them to live in their homes and communities, to cease the practice of denying or reducing plaintiffs' services at recertification where there had been no change in the medical necessity of such services, and to award compensatory services to remedy conditions that had resulted from past failures to provide medically necessary services.
The defendants moved to dismiss the action on June 1, 2012. The Florida state agency defendants claimed that they had provided services in accordance with state and federal Medicaid requirements and that they had not enacted a policy that favored institutionalization. On July 17, 2012 Judge William Zloch denied the motion to dismiss in a short order, stating that the issues would be better addressed in a motion for summary judgment. On July 17, 2012, the case was reassigned to Judge Robin S. Rosenbaum. On October 11, 2012, the case was referred to Magistrate Judge Barry S. Seltzer for discovery proceedings.
The United States Department of Justice (DOJ) filed a Statement of Interest with the court on June 28, 2012, urging the court to deny the defendants' motion to dismiss. Specifically, the DOJ argued that the plaintiffs had adequately identified a state policy that placed them at risk of unnecessary institutionalization in violation of the ADA; had stated a valid claim that the defendants violated the "reasonable promptness" and EPSDT provisions of the Medicaid Act by unreasonably applying their definition of medical necessity; and had alleged a clear violation of the Preadmission Screening and Resident Review (PASRR) requirements of the Nursing Home Reform Act.
On September 4, 2012, following an investigation of the state system with respect to six large nursing facilities that housed the majority of children with medically complex or fragile conditions, the DOJ sent a Findings Letter to the attorney general of Florida. The DOJ concluded that the State had failed to meet its obligations under Title VII of the ADA and 28 CFR Part 35 by unnecessarily institutionalizing hundreds of children in nursing facilities and by placing many others at risk of such placement.
For instance, although some community-based services were available through the Medicaid State Plan, the DOJ found the State had acted irrationally and placed several restrictions on the availability of these services. The DOJ noted that the children could live at home with their families or in other more integrated community settings if adequate services and support were provided. Specifically, the DOJ recommended that the State (1) increase community capacity by allocating additional waiver slots; (2) amend existing policies, including policies that may lead to inappropriate denial of medically necessary services; and (3) expand other community services to serve children in or at risk of entering nursing facilities. The DOJ also recommended that the State develop and implement an active transition plan to ensure that services and support would be available to serve the children, and specified that the transition plan should consult individuals knowledgeable about community living options, rather than rely on the staff of nursing facilities for such arrangements.
A few weeks later, the Florida Agency for Health Care Administration, the Florida Department of Health, and the Florida Department of Children and Families responded to the Findings Letter. They noted that, upon receiving the Findings Letter, they conducted their own multi agency investigation and found the assertions in the DOJ's letter to be unfounded. They stated their interest in working collaboratively with the DOJ, but noted that they required certain documents from the DOJ before they could start working on any issues.
On November 27, 2012, the plaintiffs moved for class certification. Their motion was denied without prejudice on September 25, 2013. At issue was whether the plaintiffs were really challenging the state's systematic practice of institutionalizing at-risk children (which would be appropriate for a class action) or whether the plaintiffs were, as the defendants contended, instead challenging individualized executions of the state's policy (which would be less amenable to class certification). The judge determined that the record was not sufficiently developed to show what kind of case this was, and instructed the plaintiffs to move to certify after more discovery had been completed.
On February 21, 2013, the defendants moved to dismiss the case for lack of subject matter jurisdiction due to mootness, claiming that they had voluntarily implemented policy changes to the specific rules, practices, and regulations challenged by the plaintiffs. The court denied the motion on August 6, 2013. According to the court, the defendants had ceased their prior alleged unlawful conduct, and as a government actor, there was a rebuttable presumption that cessation typically would moot the claim However, because the defendants did not unambiguously terminate their wrongful conduct (they had only developed changes to existing policy, rather than enacted final rules), they were not entitled to the presumption of mootness.
On December 6, 2013, Judge Rosenbaum granted the plaintiffs' motion to consolidate their case with United States v. State of Florida, a case brought by the DOJ against the state for unnecessarily segregating and institutionalizing children with disabilities in violation of the ADA.
On December 19, 2013, the plaintiffs renewed their motion to certify the class. The defendants opposed certification on February 24, 2013, and renewed their motion to dismiss the claims for lack of subject matter jurisdiction on March 3, 2014.
Shortly thereafter, the case was reassigned to Judge William J. Zloch, who referred the parties to mediation on June 17, 2014. On September 9, 2014, Judge Zloch denied the plaintiffs' motion for class certification without prejudice, with leave to refile following the court's ruling on the defendants' renewed motion to dismiss. Judge Zloch reasoned that because the motion to dismiss challenged the court’s subject matter jurisdiction, the court should resolve that potentially dispositive motion prior to reviewing the plaintiffs’ motion for class certification.
The court eventually denied the defendants’ motion to dismiss for lack of standing on December 29, 2014. Adopting the report and recommendation of the magistrate judge, the court held that the plaintiffs had standing because they had sufficiently alleged that the challenged policies of the defendant were acting as a catalyst to imminent harm—institutionalization—in a real and concrete way: the cutting of medically necessary services. Further, the plaintiffs’ claims were not moot because, even though the defendants had finalized their rules, their purported termination of the alleged wrongful conduct was still ambiguous because they had not changed the definition of “medically necessary” or “medical necessity,” which was integral to the plaintiffs’ claims.
On January 30, 2015, the plaintiffs settled with the defendant eQHealth, the Louisiana non-profit organization that contracted frequently with Florida. The plaintiffs asked that the court retain jurisdiction to enforce the settlement agreement, the terms of which were not made public. On April 17, 2015, the final mediation report was handed into the court. The remaining parties were unable to settle.
On April 3, 2015, the plaintiffs renewed their motion for class certification. The defendants, in turn, moved for judgment on the pleadings on May 4, 2015. On February 29, 2016, the court, adopting an August 7, 2015 recommendation of the magistrate judge, denied the plaintiffs’ motion for class certification. 2015 WL 11143082. The court found the class was not clearly defined and certification was unnecessary.
On September 1, 2015, the court adopted a report and recommendation submitted by Magistrate Judge Patrick M. Hunt, granting in part and denying in part the defendants' motion for judgment on the pleadings. 2015 WL 11143083. At stake was a portion of the plaintiffs' request for an injunction forcing "compensatory services" to make the plaintiffs whole after they were consistently denied medically necessary services. The defendants argued that compensatory damages are only available for plaintiffs for suits arising from the Individuals with Disabilities Education Act (IDEA). The court agreed, judging in favor of the defendants on the request for the injunction seeking compensatory services. However, Judge Hunt noted that the plaintiffs’ request under the EPSDT Provisions would necessarily require the defendants to provide services to "correct or ameliorate defects and physical and mental illnesses and conditions discovered" by the screenings performed by the defendants.
On February 29, 2016, the court again adopted a report and recommendation by Magistrate Judge Hunt, and denied class certification. 2016 WL 3753705. The reason for the denial was twofold. First, the class was denied because the definition of the class was overly broad. The plaintiffs sought to certify a class under the following parameters: "All current and future Medicaid recipients in Florida under the age of 21, who are (1) institutionalized in nursing facilities, or (2) medically complex or fragile and at risk of institutionalization in nursing facilities." Judge Hunt noted that this definition included all children who could be institutionalized, as opposed to those who would be unnecessarily institutionalized. Thus, the definition was too broad. Second, the class was found to be unnecessary. The plaintiffs tried to argue that the class was necessary due to the fact that three plaintiffs from the original suit had already passed away, and in order to prevent their case from becoming moot, they needed a certified class. The court decided that the probability of the case becoming moot was so low that certifying the class would be unnecessary.
On March 21, 2016, the defendants filed a motion for summary judgment, which would be denied by the court as moot on September 21, 2016.
On June 1, 2016, the defendants moved to dismiss several of the plaintiffs' claims due to their deaths and a lack of subsequent parties representing the decedents’ interests. On June 27, 2016, the court granted the motion to dismiss four of the plaintiffs. Also on June 27, 2016, the court granted a motion to dismiss plaintiff A.R.'s claims as moot per a June 14, 2016 recommendation of the Magistrate Judge. This matter was reconsidered due to the plaintiffs filing an untimely objection, but this reconsideration was denied on June 30, 2016, with the dismissal of plaintiff A.R. being reaffirmed.
On August 15, 2016, the plaintiffs filed an appeal with the Eleventh Circuit Court of Appeals to reconsider A.R.’s dismissal as plaintiff. That appeal would be denied on December 20, 2016 because A.R.’s dismissal was not appealable as a final or collateral order
Meanwhile, the district court dismissed the United States of America as plaintiffs on September 20, 2016. 209 F. Supp.3d 1279. The court found that the Attorney General could not file a suit under the plain language of Title II of the ADA.
On January 19, 2017, the court dismissed plaintiff A.G.'s claims for mootness due to him aging out of the Medicaid program, adopting the November 3, 2016 recommendation of the magistrate judge. A.G. turned 21 years old and as a result became ineligible for the Florida Medicaid program, mooting his claim for relief. The plaintiffs had previously sought class certification to prevent this issue.
On June 9, 2017, the court granted the defendant's motion to dismiss the three remaining plaintiffs, citing the March 22, 2017 recommendation of the magistrate judge. The defendants had argued that the plaintiffs’ claims should be dismissed due to the previously offending policies being changed or removed, rendering the claim moot. The magistrate judge found that, while usually a change in policy such as this would not render a claim moot, when it is a government policy being changed there is more consideration given. The magistrate judge determined that the offending policies had been unambiguously terminated, made in good faith with substantial deliberation, and consistently applied. As a result, the remaining plaintiffs’ claims were moot.
On August 7, 2017, six plaintiffs appealed their dismissal and the district court’s rulings on summary judgment and class certification to the Eleventh Circuit. On May 16, 2019, the court affirmed the district court's rulings, adopting the lower court’s reasoning as to the defendants’ good faith policy changes rendering the plaintiffs’ claims moot.
The DOJ also appealed their dismissal as plaintiffs to the Eleventh Circuit. On September 17, 2019, the circuit court reversed the district court's dismissal of the United States as a plaintiff and remanded for further proceedings. The court ruled that the Attorney General could sue under Title II of the ADA, as Congress had approved enforcement by any means authorized by law. On April 21, 2022, Florida filed a petition for a writ of certiorari, challenging the Eleventh Circuit’s ruling that the United States, through the Attorney General, could sue the state under the ADA. On October 3, 2022, the Supreme Court of the United States denied Florida’s petition for a writ of certiorari.
The case was reassigned to Judge Cecilia M. Altonaga in January 2022, who recused herself later that month for reasons unknown to the Clearinghouse. The case was then transferred to Judge Donald M. Middlebrooks. Discovery was referred to Magistrate Judge Patrick Hunt.
On June 15, 2022, the DOJ filed an amended complaint as a plaintiff under the ADA, to enforce the rights of “Institutionalized Children”—children with complex medical needs who were unnecessarily institutionalized in nursing homes or young adults admitted to these facilities who remained there unnecessarily—in Florida. The complaint alleged that Florida discriminated against Institutionalized Children by failing to administer medical services in the setting most appropriate to their needs, namely their homes and communities, in violation of the ADA. The complaint sought declaratory and injunctive relief. Specifically, a declaration that Florida had violated Title II of the ADA by failing to administer services and programs to prevent the unnecessary institutionalization of Institutionalized Children, and enjoining Florida from discriminating against Institutionalized Children by requiring the provision of appropriate, integrated, community-based healthcare and taking steps to prevent the recurrence of such discriminatory conduct.
On July 20, 2022, the defendants again moved to dismiss the action, arguing that the DOJ had failed to state child-specific facts adequate to assert a claim under Title II of the ADA. On March 2, 2023, the court adopted the magistrate judge’s recommendation and denied the motion to dismiss, holding that the United States had fulfilled its burden under Title II.
As of March 2023, the case was ongoing.
Summary Authors
Alice Liu (9/28/2012)
Andrew Junker (10/29/2014)
Megan Brown (10/31/2016)
Carter Powers Beggs (11/20/2019)
Kady Matsuzaki (3/14/2023)
United States of America v. State of Florida, Southern District of Florida (2013)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4234232/parties/ar-v-dudek/
Boggs, Danny Julian (Kentucky)
Annino, Paolo G (Florida)
Chandler, Thomas E. (District of Columbia)
Austin, Michael Garrett (Florida)
Barkoff, Alison (District of Columbia)
Boggs, Danny Julian (Kentucky)
Hunt, Patrick M (Florida)
Jordan, Adalberto Jose (Florida)
McAliley, Chris M. (Florida)
Rosenbaum, Robin Stacie (Florida)
Zloch, William J. (Florida)
Chandler, Thomas E. (District of Columbia)
Dietz, Matthew Wilson (Florida)
England, Travis W (District of Columbia)
Esposito, Beth A (District of Columbia)
Friel, Gregory (District of Columbia)
Grunewald, Kathy Newman (Florida)
Harrell-James, Veronica Vanessa (Florida)
Perez, Thomas E. (District of Columbia)
See docket on RECAP: https://www.courtlistener.com/docket/4234232/ar-v-dudek/
Last updated July 6, 2023, 3:11 a.m.
State / Territory: Florida
Case Type(s):
Public Benefits/Government Services
Special Collection(s):
Post-WalMart decisions on class certification
Key Dates
Filing Date: March 13, 2012
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Initial: Medically fragile children or children who need skilled care services. Subclasses: Institutionalized children in nursing facilities; at-risk children at home, but as risk of institutionalization. Consolidated Plaintiffs: United State of America
Plaintiff Type(s):
Attorney Organizations:
U.S. Dept. of Justice Civil Rights Division
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Denied
Defendants
Florida Department of Health, State
Agency for Health Care Administration (Tallahassee), State
Defendant Type(s):
Case Details
Causes of Action:
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Medicaid, 42 U.S.C §1396 (Title XIX of the Social Security Act)
Available Documents:
Outcome
Prevailing Party: Mixed
Nature of Relief:
Source of Relief:
Issues
General:
Access to public accommodations - governmental
Deinstitutionalization/decarceration
Habilitation (training/treatment)
Placement in mental health facilities
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Reassessment and care planning
Staff (number, training, qualifications, wages)
Discrimination-basis:
Disability (inc. reasonable accommodations)
Affected Sex or Gender:
Disability:
Mental Disability:
Intellectual/developmental disability, unspecified
Medical/Mental Health:
Intellectual/Developmental Disability
Type of Facility:
Benefit Source: