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Case Name T.H. v. Dudek PB-FL-0007
Docket / Court 0:12-cv-60460-CI ( S.D. Fla. )
State/Territory Florida
Case Type(s) Child Welfare
Disability Rights-Pub. Accom.
Special Collection Olmstead Cases
Case Summary
On March 13, 2012, plaintiffs -- medically fragile children or children who need skilled care services -- filed a 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. After consolidating two ... read more >
On March 13, 2012, plaintiffs -- medically fragile children or children who need skilled care services -- filed a 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. After consolidating two similar cases in Spring 2012, plaintiffs' amended complaint sought relief under the ADA, Section 504 of the Rehabilitation Act, and the Medicaid Act, on behalf of two subclasses: children who live at home but are at risk of future institutionalization, and children placed in geriatric nursing facilities. The plaintiffs also named eQHealth, the organization contracted to serve Florida's Medicaid utilization review entity, as a defendant.

Plaintiffs are represented by private counsel, the FSU College of Law Public Interest Law Center, and the North Florida Center For Equal Justice. They seek to compel the state to provide services that will allow them to live in their homes and communities, to cease the practice of denying or reducing Plaintiffs' services at recertification where there has been no change in the medical necessity of such services, and to award compensatory services to the Plaintiffs to remedy conditions that have resulted from past failures to provide medically necessary services.

The Defendants filed a motion to dismiss 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.

The United States sent a Statement of Interest to the Court on June 28, 2012, urging the Court to deny defendants' motion to dismiss. Specifically, the United States stated that plaintiffs have adequately identified a state policy that placed them at risk of unnecessary institutionalization in violation of the ADA, stated a valid claim that defendants violated the "reasonable promptness" provision and EPSDT provisions of the Medicaid Act by unreasonably applying their definition of medical necessity, and alleged a clear violation of PASRR requirements of the Nursing Home Reform Act.

On July 17, Judge William Zloch denied the motion to dismiss in a short order, saying that the issues would be better addressed in a motion for summary judgment.

On September 4, 2012, the U.S. Department of Justice, Civil Rights Division (DOJ) sent a Findings Letter to the attorney general of Florida stating that, based on the DOJ 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 State 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 are available through the Medicaid State Plan, the State has acted irrationally and placed several restrictions on the availability of these services. The DOJ noted that these children could live at home with their families or in other more integrated community settings if adequate services and support was provided. Specifically, the DOJ recommended that the State increase community capacity by allotting additional waiver slots, amend existing policies, including policies that may lead to inappropriate denial of medically necessary services, and 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 are available to serve the children. This transition plan should include 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 multiagency 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 require certain documents from the DOJ before they can start working on any issues.

On Feb. 21, 2013, the defendants moved to dismiss the case for lack of subject matter jurisdiction due to mootness, because, they claimed that they had voluntarily implemented policy changes to the specific rules, practices, and regulations challenged by the plaintiffs The Court (Judge Ron S. Rosenbaum) denied the motion on Aug. 6, 2013.

On Sept. 25, 2013, Judge Rosenbaum denied without prejudice the plaintiffs' motion for class certification. 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 defendants contended, really just challenging individualized executions of the state's policy (which would be less amenable to class certification). The judge determined that at present, the record was not sufficiently developed to show what kind of case this was. Plaintiffs could move to recertify after they took some discovery.

On Dec. 6, 2013, Judge Rosenbaum granted plaintiffs' motion to consolidate their case with one that the Department of Justice had brought against the state for its unnecessarily segregating and institutionalizing disabled children in violation of the ADA.

On Dec. 19, 2013, the plaintiffs renewed their motion to certify the class. The defendants opposed and renewed their own motion to dismiss the claims for lack of subject matter jurisdiction.

Shortly thereafter, the case was reassigned to Judge William J. Zloch, who referred the parties to mediation on June 17, 2014. On Sept. 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, which was eventually denied on Dec. 29, 2014.

On Jan. 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 over eQHealth pending the fulfillment of the settlement agreement, but the terms of the settlement were not stipulated.

In April 2015, the plaintiffs renewed their motion for class certification. The defendants, in turn, motioned for judgement on the pleadings. On April 17, 2015, the final mediation report was handed into the court. The remaining parties were apparently unable to settle.

On Sept. 1, 2015, the court adopted a report and recommendation submitted by Judge Patrick M. Hunt, which suggested to the court to grant in part and deny in part the defendants' motion for judgment on the pleadings. 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 Early and Periodic Screening Diagnostic, and Treatment Services (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 the screenings performed by the defendants.

On Feb. 29, 2016, the court again adopted a report and recommendation by Judge Hunt, which this time recommended denial of the class certification requested by the plaintiffs. The reason for the denial was two-fold. First, the class was denied was because the definition of the class was too 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 includes all children who could be institutionalized, as opposed to those who would be unnecessarily institutionalized. Thus, the definition was found to be 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 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, but in September, 2016, it was denied as moot. As of October 31, 2016, this case is going to trial.

Alice Liu - 09/28/2012
Andrew Junker - 10/29/2014
Megan Brown - 10/31/2016

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Issues and Causes of Action
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Affected Gender
Benefit Source
Hospital/Health Department
Integrated setting
Mental impairment
Mobility impairment
Disability (inc. reasonable accommodations)
Access to public accommodations - governmental
Classification / placement
Family reunification
Government Services (specify)
Habilitation (training/treatment)
Pattern or Practice
Placement in mental health facilities
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Reasonable Accommodations
Reasonable Modifications
Reassessment and care planning
Relative caretakers
Staff (number, training, qualifications, wages)
Medical/Mental Health
Intellectual/Developmental Disability
Medical care, general
Mental Disability
Brain injury
Cerebral palsy
Intellectual/developmental disability, unspecified
Plaintiff Type
Private Plaintiff
Type of Facility
Causes of Action 42 U.S.C. § 1983
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Title XIX of the Social Security (Medicaid) Act, 42 U.S.C §1396
Defendant(s) Agency for Health Care Administration
eQHealth Solutions
Florida Department of Health
Plaintiff Description Medically fragile children or children who need skilled care services. Subclasses: Insitutionalized children in nursing facilities; at-risk children at home, but as risk of institutionalization.
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2012
Case Ongoing Yes
Case Listing DR-FL-0004 : United States of America v. State of Florida (S.D. Fla.)
0:12-cv-60460 (S.D. Fla.)
PB-FL-0007-9000.pdf | Detail
Date: 09/25/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Statement of Interest of the United States
PB-FL-0007-0001.pdf | External Link | Detail
Date: 06/28/2012
Source: U.S. Department of Justice Civil Rights Division, Disability Rights Section
Order Denying Motion to Dismiss [ECF# 46] (S.D. Fla.)
PB-FL-0007-0005.pdf | Detail
Date: 07/17/2012
Source: PACER [Public Access to Court Electronic Records]
PB-FL-0007-0002.pdf | Detail
Date: 08/15/2012
Source: PACER [Public Access to Court Electronic Records]
Re: United States' Investigation of the State of Florida's Service System for Children with Disabilities Who Have Medically Complex Conditions, D.J. No. 204-18-212
PB-FL-0007-0004.pdf | External Link | Detail
Date: 09/04/2012
Re: D.J. No. 204-18-212 (Response to 9/4/2012 Findings Letter)
PB-FL-0007-0003.pdf | External Link | Detail
Date: 09/28/2012
Order [Denying Defendants' Motion to Dismiss] [ECF# 175] (S.D. Fla.)
PB-FL-0007-0006.pdf | Detail
Date: 08/06/2013
Source: PACER [Public Access to Court Electronic Records]
Order [Denying Motion to Certify Class] [ECF# 203] (S.D. Fla.)
PB-FL-0007-0007.pdf | Detail
Date: 09/25/2013
Source: PACER [Public Access to Court Electronic Records]
Order [Granting Plaintiffs' Motion for Consolidation of Related Cases] [ECF# 215] (S.D. Fla.)
PB-FL-0007-0008.pdf | Detail
Date: 12/06/2013
Source: PACER [Public Access to Court Electronic Records]
Order [Denying Renewed Motion for Class Certification] [ECF# 263] (S.D. Fla.)
PB-FL-0007-0009.pdf | Detail
Date: 09/09/2014
Source: PACER [Public Access to Court Electronic Records]
Report and Recommendation [on Class Certification] [ECF# 395] (2015 WL 11143082) (S.D. Fla.)
PB-FL-0007-0020.pdf | WESTLAW | Detail
Date: 08/07/2015
Source: PACER [Public Access to Court Electronic Records]
Report and Recommendation [on Judgment on the Pleadings] [ECF# 393] (2015 WL 11142892) (S.D. Fla.)
PB-FL-0007-0019.pdf | WESTLAW | Detail
Date: 07/22/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Hunt, Patrick M Court not on record [Magistrate]
PB-FL-0007-0019 | PB-FL-0007-0020
Rosenbaum, Robin Stacie (State Trial Court, S.D. Fla., Eleventh Circuit)
PB-FL-0007-0006 | PB-FL-0007-0007 | PB-FL-0007-0008 | PB-FL-0007-9000
Zloch, William J. (S.D. Fla.)
PB-FL-0007-0005 | PB-FL-0007-0009
Plaintiff's Lawyers Annino, Paolo G (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Dietz, Matthew Wilson (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Grunewald, Kathy Newman (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Ito, Jamie (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Zaborske, Jill B (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Defendant's Lawyers Austin, Michael Garrett (Florida)
Kilinski, Caryl (Florida)
Long, Brittany Adams (Florida)
Lukis, Ashley Hoffman (Florida)
Mawhinney, Allison Goodson (Florida)
Meros, George N Jr. (Florida)
Raleigh, Lisa M. (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Reynolds, Jay Patrick (Florida)
Romanello, Nicholas William (Florida)
Scoles, Lisa (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Scott, Angela (District of Columbia)
Sheeran, Andrew T (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Smith, Beverly H (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-9000
Street, Leslei Gayle (Florida)
Thomas, Harry O. (Florida)
PB-FL-0007-0002 | PB-FL-0007-9000
Tschetter, Jennifer Ann (Florida)
PB-FL-0007-0002 | PB-FL-0007-0003 | PB-FL-0007-9000
Williams, Stuart Fraser (Florida)
PB-FL-0007-0002 | PB-FL-0007-0002 | PB-FL-0007-0003 | PB-FL-0007-9000
Other Lawyers Barkoff, Alison (District of Columbia)
England, Travis W (District of Columbia)
Esposito, Beth A (District of Columbia)
Ferrer, Wilfredo A (Florida)
Foran, Sheila (District of Columbia)
Friel, Gregory (District of Columbia)
Harrell-James, Veronica Vanessa (Florida)
Hill, Eve L. (District of Columbia)
Parker, Marion Drew (Florida)
Perez, Thomas E. (District of Columbia)
PB-FL-0007-0001 | PB-FL-0007-0004
Raish, Anne (District of Columbia)
Welan, Joy Levin (District of Columbia)

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