Filed Date: March 13, 2012
Case Ongoing
Clearinghouse coding complete
On March 13, 2012, a number of medically fragile children or children who needed skilled care services filed this lawsuit in the U.S. District Court for the Southern District of Florida. They sued the Florida Agency for Health Care Administration and the Florida 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 Florida State University 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 that were inappropriate 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 medically necessary services in the most integrated setting possible. The case was assigned to District 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, which Judge Zloch granted 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: (1) medically fragile children who lived at home but were at risk of future institutionalization and (2) medically fragile children already placed in geriatric nursing facilities. The amended complaint also added a claim under the Nursing Home Reform Amendments to the Medicaid Act. It sought to compel the state to provide services that would allow the plaintiffs to live in their homes and communities, to cease the practice of denying or reducing the 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 the court denied the motion to dismiss in a short order, stating that the issues would be better addressed in a motion for summary judgment. The case was reassigned to District Judge Robin S. Rosenbaum on July 17, 2012 and to Magistrate Judge Barry S. Seltzer for discovery proceedings on October 11, 2012.
The United States Department of Justice (“DOJ”) filed a Statement of Interest on June 28, 2012, urging the court to deny the defendants' motion to dismiss. Specifically, the DOJ argued that the plaintiffs had (1) adequately identified a state policy that placed them at risk of unnecessary institutionalization in violation of the ADA, (2) 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 (3) alleged a clear violation of the Preadmission Screening and Resident Review (“PASRR”) requirements of the Nursing Home Reform Amendments.
The plaintiffs filed a second amended consolidated complaint on August 15, 2012 that added additional plaintiffs.
On September 4, 2012, following an investigation of 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 C.F.R. Part 35 by unnecessarily institutionalizing hundreds of children in nursing facilities and putting 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 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. The DOJ 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 deemed the DOJ’s assertions 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. The court denied their motion without prejudice on September 25, 2013. The decision turned on whether the plaintiffs challenged the state’s systematic practice of institutionalizing at-risk children (which would make a class action appropriate) or whether the plaintiffs instead challenged individualized executions of the state’s policy (which would not warrant class certification). Judge Rosenbaum determined that she required a more-developed record to make this determination. 2013 WL 11971283.
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. Judge Rosenbaum found that the defendants had ceased their prior unlawful conduct. For government actors, this cessation creates a rebuttable presumption of mootness. However, the court held that the defendants were not entitled to this presumption because they only developed changes to existing policy, instead of enacting final rules that would unambiguously terminate their wrongful conduct. 2013 WL 11971282.
On December 6, 2013, the court 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 allegedly 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 renewed their motion to dismiss 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. 2014 WL 11531369.
The court denied the defendants’ motion to dismiss for lack of standing on December 29, 2014. Adopting the November 13 report and recommendation of the magistrate judge (2014 WL 11531370), the court held that the plaintiffs had standing because they had sufficiently alleged that the challenged policies acted as a catalyst to imminent harm—institutionalization. They did so in a real and concrete way by cutting 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. 2014 WL 11531887.
On January 30, 2015, the plaintiffs settled with the defendant eQHealth, a 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 in to the court. The remaining parties were unable to settle.
The plaintiffs renewed their motion for class certification on April 3, 2015. The defendants, in turn, moved for judgment on the pleadings on May 4, 2015.
On September 1, 2015, the court adopted a report and recommendation from by Magistrate Judge Hunt (2015 WL 11142892), 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 to plaintiffs in suits arising from the Individuals with Disabilities Education Act (“IDEA”). The court agreed, ruling in favor of the defendants on the request for an injunction seeking compensatory services. However, Magistrate Judge Hunt noted that the plaintiffs’ request under the EPSDT Provisions required the defendants to provide services to "correct or ameliorate defects and physical and mental illnesses and conditions discovered" by the defendants.
On February 29, 2016, the court denied class certification (2016 WL 3766139), adopting another report and recommendation by Magistrate Judge Hunt (2015 WL 11143082). First, the court deemed the proposed class overly broad. The plaintiffs sought to certify a class of "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." Magistrate Judge Hunt noted that this definition included all children who could be institutionalized, as opposed to those who would be unnecessarily institutionalized. Second, the court found the class unnecessary, given the low probability of the case becoming moot.
The next month, on March 21, the defendants moved for summary judgment. The following month, the defendants also moved to dismiss the plaintiff A.R. because they had moved out of the state. Further, the defendants moved to dismiss three plaintiffs in June of that year because those plaintiffs had died and no subsequent parties represented the decedents’ interests.
On June 9, 2016, Magistrate Judge Hunt issued a report and recommendation advising Judge Zloch to grant partial summary judgment for the Florida defendants on the United States’ damages claim. Magistrate Judge Hunt concluded that the United States should fail on its money damages claim under Title II of the ADA because it did not allege individualized injuries for each child. 2016 WL 3221140.
Magistrate Judge Hunt issued another report and recommendation on June 14, 2016. He recommended granting the defendants’ motion to dismiss A.R.'s claims as moot. 2016 WL 11783303. The court adopted the magistrate judge’s recommendations on June 27, 2016; on the same day, it also dismissed the claims of the three plaintiffs who had died. The plaintiffs filed a motion for reconsideration as to the dismissal of A.R.'s claims, and the court denied the motion on June 30, 2016.
On August 8, 2016, Magistrate Judge Hunt ordered the United States to pay the state of Florida $40,168.99 in attorneys’ fees and costs for violating discovery rules. 2016 WL 11783282.
The plaintiffs appealed A.R.’s dismissal to the United States Court of Appeals for the Eleventh Circuit on August 15, 2016. The Eleventh Circuit dismissed the appeal on December 20, 2016 for lack of jurisdiction.
Back in the district court, Judge Zloch dismissed the United States as a plaintiff on September 20, 2016. The court found that the United States lacked standing to sue under the plain language of Title II of the ADA. 209 F. Supp. 3d 1279. In light of this order, the court denied the defendants’ motion for summary judgment as moot the next day. The United States subsequently asked the court to allow it to appeal the dismissal by vacating the consolidation order, issuing a separate judgment, or certifying an interlocutory appeal. The court declined to vacate the consolidation order on November 14, 2016, and declined the other two requests on January 11 of the following year. 2017 WL 11680161.
On January 19, 2017, the court partially adopted a report and recommendation (2016 WL 11783280) and dismissed a plaintiff's claims as moot because they had turned 21 years old and become ineligible for the Florida Medicaid program. 2017 WL 11680164. After a February 15, 2017 report and recommendation (2017 WL 11680162), on March 10 of that year the court dismissed another plaintiff who turned 21. 2017 WL 11680163. In the same order, the court granted the defendants' motion to dismiss the Nursing Home Amendment claim because it had been specifically brought on behalf of institutionalized children, and none of the remaining plaintiffs were institutionalized.
On June 9, 2017, the court granted the defendants' motion to dismiss the three remaining plaintiffs (2017 WL 11680165), citing the March 22, 2017 recommendation of the magistrate judge (2017 WL 2730397). The defendants had changed or removed the previously offending policies. Magistrate Judge Hunt found that, although a change in policy like this would not usually render a claim moot, the analysis changes when it concerns a government policy. Magistrate Judge Hunt deemed the remaining plaintiffs’ claims moot because the offending policies had been unambiguously terminated, made in good faith with substantial deliberation, and consistently applied.
On August 7, 2017, six plaintiffs appealed the district court’s orders dismissing their claims, denying class certification, and granting summary judgment for the defendants. On May 16, 2019, the Eleventh Circuit issued a per curiam opinion affirming the district court’s rulings. Circuit Judges Jill Pryor, Elizabeth L. Branch, and Danny J. Boggs heard the case. The Eleventh Circuit adopted the district court’s reasoning as to the defendants’ good faith policy changes that rendered the plaintiffs’ claims moot. 769 F. App’x 718.
The United States also appealed its dismissal as a plaintiff on August 7, 2017. On September 17, 2019, the Eleventh Circuit reversed the district court's dismissal of the United States as a plaintiff and remanded for further proceedings. Writing for the court, Judge Boggs held that the U.S. Attorney General had standing to sue under Title II of the ADA because Congress had approved enforcement “by any other means authorized by law.” Judge Branch dissented, arguing that the plain text of Title II only gives standing to “any person alleging discrimination,” and thus the United States did not qualify. 938 F.3d 1221.
Florida filed a petition for rehearing en banc on October 29, 2019, which the Eleventh Circuit denied on December 22, 2021. Circuit Judge Kevin C. Newsom dissented from the denial of rehearing. 21 F.4th 730.
On April 21, 2022, Florida filed a petition for a writ of certiorari with the Supreme Court of the United States. Florida echoed Judge Branch’s argument that the United States lacked standing because it did not constitute a “person alleging discrimination” under the ADA. 2022 WL 1250772. The Supreme Court denied the petition on October 3, 2022. 143 S. Ct. 89.
Meanwhile in the district court, the case was reassigned to Judge Cecilia M. Altonaga in January 2022. Judge Altonaga recused herself later that month for reasons unknown to the Clearinghouse. The case was then transferred to Judge Donald M. Middlebrooks.
On June 15, 2022, the United States filed an amended complaint 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 in violation of the ADA by failing to administer medical services in the setting most appropriate to their needs, namely their homes and communities. The complaint sought declaratory and injunctive relief. Specifically, the United States sought (1) a declaration that Florida violated Title II of the ADA by failing to administer services to prevent unnecessary institutionalization and (2) an injunction barring Florida from discriminating against Institutionalized Children by requiring the provision of appropriate, integrated, community-based healthcare and the implementation of steps to prevent future discrimination.
Florida again moved to dismiss the amended complaint on July 20, 2022, arguing that the United States failed to state child-specific facts adequate to assert a claim under Title II of the ADA. Florida and the United States filed cross-motions for summary judgment on February 15 and 16, 2023.
Judge Middlebrooks adopted Magistrate Judge Hunt’s recommendation (2023 WL 2330693) on March 2, 2023 and denied Florida’s motion to dismiss, holding that the United States had fulfilled its burden under Title II. 2023 WL 2329522.
On April 11, 2023, Magistrate Judge Hunt recommended partially granting Florida’s motion for summary judgment and denying the United States’ motion for partial summary judgment. The magistrate judge concluded that the United States had sufficiently alleged systemic violations of the ADA to survive summary judgment. As to the requirements imposed by the Supreme Court in L.C. v. Olmstead, the magistrate judge concluded that there were genuine issues of material fact as to whether community settings would be appropriate for the children and whether their parents were in favor of moving them to community settings, so the magistrate judge recommended denying summary judgment on those issues. Finally, the magistrate judge concluded there were genuine issues of material fact related to the United States’s recommended accommodations, though recommended granting summary judgment to Florida as to whether two particular accommodations were “fundamental alterations” and thus not required by Olmstead. 2023 WL 3293661.
Judge Middlebrooks accepted the recommendation on May 5, 2023. The court granted Florida’s motion for summary judgment to the extent that (1) “any modification that requires Florida to provide community-care services that would exceed the federally approved cost or participant cap on a Medicaid program would be a fundamental alteration to that program” and (2) “any request to create a new program akin to foster care featuring in-home placement with people who are not a child’s custodians would be an impermissible fundamental alteration to the program.” 2023 WL 3276779.
Judge Middlebrooks presided over a nine-day bench trial from May 8 to May 19, 2023. At the end of the trial, the court stated that it anticipated ruling in favor of the United States on the merits, but asked for additional briefs regarding remedies. Per the court’s order, the parties filed a joint status report on May 24, 2023, stating that they did not intend to settle.
The parties gave closing statements in the bench trial before Judge Middlebrooks on June 20, 2023.
On July 14, 2023, the court held that Florida had violated Title II of the ADA by discriminating against children with disabilities, and granted injunctive relief for the plaintiffs. The court found that the United States had standing to sue under the ADA, even if it was not vindicating the rights of individual plaintiffs. Judge Middlebrooks also found that Florida failed to provide adequate community-based and EPSDT services to children with complex medical needs who receive Medicaid, causing them to be unnecessarily institutionalized. The court entered an injunction ordering Florida to (1) require the managed care plans to ensure the provision of all covered and authorized private duty nursing (“PDN”) and develop methods to measure provider performance, including real-time reporting of PDN provider issues; (2) inform families about and facilitate the transition of children from nursing facilities; (3) improve the existing Care Coordination system to strengthen accountability and eliminate silos of care; and (4) enforce the state’s contracts that require managed care organizations to provide sufficient medical care. The court also appointed a monitor to serve for a limited period and ensure compliance with the injunction. 2023 WL 4546188.
Florida appealed on July 17, 2023. In the district court, the state moved to stay the injunction pending appeal on July 21, 2023. Judge Middlebrooks denied the motion on July 25, 2023. 2023 WL 4763189.
The district court entered a final judgment in favor of the United States and against Florida on July 20, 2023. After some back-and-forth between the parties, the district court appointed Steven Fitton as a monitor on August 29, 2023.
In the Eleventh Circuit, the state moved on August 21, 2023 to stay the district court’s injunction pending appeal. The Eleventh Circuit heard oral argument on January 24, 2024. On February 6, 2024, the Eleventh Circuit granted the motion to stay portions of the injunction related to requiring a training curriculum for Care Coordinators, a reporting system for managed care organizations, and certain data collection. The Eleventh Circuit also stayed most of the monitoring provisions. Circuit Judge Andrew L. Brasher partially dissented, stating that he would stay the injunction in its entirety.
The district court held a status conference on February 15, 2024 and scheduled the next status conference for May 1, 2024. As of April 25, 2024, the case is 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)
Sophia Acker (3/31/2024)
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 March 31, 2024, 4:38 p.m.
State / Territory: Florida
Case Type(s):
Public Benefits/Government Services
Special Collection(s):
DOJ Civil Rights Division Statements of Interest
Post-WalMart decisions on class certification
Key Dates
Filing Date: March 13, 2012
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
The United States of America, and a proposed class of 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
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:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Source of Relief:
Form of Settlement:
Order Duration: 2023 - None
Content of Injunction:
Develop anti-discrimination policy
Issues
General:
Access to public accommodations - governmental
Deinstitutionalization/decarceration
Parents (visitation, involvement)
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Reassessment and care planning
Staff (number, training, qualifications, wages)
Jails, Prisons, Detention Centers, and Other Institutions:
Habilitation (training/treatment)
Placement in mental health facilities
Disability and Disability Rights:
Intellectual/developmental disability, unspecified
Discrimination-basis:
Disability (inc. reasonable accommodations)
Medical/Mental Health:
Intellectual/Developmental Disability
Type of Facility:
Benefit Source: