Case 3:10-cv-00414-MMH-TEM Document 1 Filed 05/13/10 Page 1 of 14 PageID 1
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHELE HADDAD, Plaintiff

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Case No.

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Defendants.

COMPLAINT .JURISDICTION AND VENUE
1. The Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiffs' causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794(a).
2. Venue is proper because a substantial part of the actions and omissions of which Plaintiffs alleges occurred in this District. 28 U.S.C. § 139I(b).
DEFENDANTS 3. Thomas Arnold, is the Secretary of the Florida Agency for Health Care Administration (AHCA), and is sued in his official capacity.

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4. AHCA is the chief health policy and planning entity for the state and is responsible for administering Florida's Medicaid Program. Fla. Stat. § 20.42(3) (2006).
5. AHCA is the "single state agency" that operates Florida' Medicaid program, see 42 U.S.C. § 1396a(a)(5), and is the state agency responsible for administering Florida's nursing home and community-based long-term care system for people with disabilities.
6. Secretary Arnold is responsible for the oversight, supervision and control of AHCA and its divisions, and is ultimately responsible for ensuring that AHCA's services for people with disabilities are provided in conformance with federal law.
7. Defendant Dr. Anna Viamonte Ross is the Secretary of Florida's Department of Health (DOH) and is sued in her official capacity.
8. DOH is the primary state agency responsible for administering the Medicaid Traumatic Brain Injury/Spinal Cord Injury Waiver program for persons who require long-term care in the community.
9. DOH recommends legislative budget requests for programs and services for the state's population who have spinal cord injuries. The Traumatic Brain Injury/Spinal Cord Injury Waiver is supposed to prevent unnecessary institutionalization of persons like the Plaintiff who has quadriplegia.
PLAINTIFF MICHELE HADDAD
10. Michele Haddad is 49 years old. 11. On September 7, 2007, when she was 47 years old, she was in a motorcycle accident caused by an intoxicated car driver.
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12. Ms. Haddad was hospitalized in Brooks Rehabilitation Hospital until January, 2008.
13. On or about November 2007, while she was still hospitalized, she applied to
Defendants to receive home health care through the Spinal Cord Injury Medicaid Waiver. She has been on the "wait list" for services since then.
14. As a result of the accident, she became a quadriplegic, paralyzed from her breasts down.
15. She is unable to open her right hand and she cannot close her left hand. As a result she has minimal manual dexterity.
16. Ms. Haddad uses a motorized wheelchair for ambulation. 17. She has worked as a bank teller and has also done office work in an auto repair store. 18. Ms. Haddad was married for 24 years and has two adult sons, David, 29, resides in Miami and Anthony, 24. 19. In November, 2009, Ms. Haddad's husband divorced her but continued to reside with her until March 2010, when Anthony was able to move into her home. 20. Between January 2008, when she was discharged from Brooks Rehabilitation Hospital, and March 2010, when her husband left the house, Ms. Haddad's husband was her primary caregiver. 21. Her husband picked her out of bed, transferred her to a wheelchair, bathed her, helped her with her hygiene needs, dressed her, shopped for food, prepared meals, assisted her with eating, and at the end of the day performed the same functions to assist her to get into bed.
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22. Ms. Haddad uses a catheter and requires a bowel program. Her husband was responsible for these toilet needs.
Since March 2010, when her husband left the house, her son, Anthony, has had to perform the exact same functions of providing care for Ms. Haddad.
24. Anthony graduated from Florida International University in December, 2009. He had majored in international relations and marketing and had planned to reside in Miami.
25. As a result of his parents' divorce and his mother having no one to care for her, Anthony has temporarily returned home but wants to move back to Miami as soon as his mother obtains assistance with her activities of daily living from some other person.
26. Ms. Haddad does not want to go into a nursing home but wants to continue residing in the community, where she has an active life.
27. In the community, she attends church, goes to the movies, visits friends and goes shopping.
28. Ms. Haddad uses the gymnasium at Brooks Rehabilitation Hospital's outpatient unit for exercise.
29. She owns a home that is accessible with a ramp, roll-in shower, and a hoyer lift. Her sole source of income is her monthly Social Security Disability Insurance, and she is eligible for, and receives, both Medicare and Medicaid.
30. Without community-based Spinal Cord Waiver services, Ms. Haddad is at risk of being institutionalized, even though she desperately does not want to reside in a nursing facility.
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31. Defendants' Brain and Spinal Cord Injury Program was contacted by telephone in early March, 2010. They were told that Ms. Haddad's husband had moved out and that Ms. Haddad desperately required Medicaid Waiver services because the only help she was receiving was from her son, Anthony.
32. Defendants' employee did not know when, or if, Ms. Haddad would receive Waiver services. To date, Ms. Haddad receives no Waiver services.
33. Florida's Medicaid Spinal Cord Waiver provides many of the same services Ms. Haddad would receive in a nursing facility.
34. Florida's reimburses nursing homes for eligible Medicaid residents $206.09 a day (statewide average) or $6,182.70 a month and reimburses $15.62 an hour for inhome Spinal Cord Waiver services.
35. Because Ms. Haddad would reqUIre about seven hours a day for all her activities of daily living, her community-based services would cost $109.34 a day or $3,280.20.
36. Many persons who have spinal cord injuries, paralysis, and quadriplegia and who have the same or similar daily living activity impairments and needs as Ms. Haddad reside in the community and their own apartments, with appropriate community-based, Medicaid-funded long-term care services.
37. The same Medicaid-funded personal care, assistance with activities of daily living and health care services that Ms. Haddad would receive in a nursing facility could be provided in the community.
38. Defendants provide Medicaid funding for the personal care, assistance with activities of daily living and health care services in the community without conditioning
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receipt of such services on placement in a nursing facility but are available only for a very limited number of people who are similar to Ms. Haddad.
39. People with spinal cord injuries (like Ms. Haddad), for whom Defendants do not provide these services in the community, either must go into a nursing facility to receive the these services or are placed on a "waiting list" for services.
40. For more than two years, Ms. Haddad has applied for Medicaid's home health services, but Defendants have not provided her with any home and community-based services.
41. Instead they have placed her on a "wait list" and heave told her to be "eligible" for these services, she will have to enter a nursing home for 60 days.
42. Defendants have Medicaid funded services which would permit Ms. Haddad to continue to live successfully at home and to participate in church, family and community life.
43. Since July 1, 2007, Defendants have provided community-based Medicaid services to 375 people with spinal cord injuries. Defendants will continue to limit those services to 375 people through June 30, 2012.
44. According to the recently released Kaiser Commission "Medicaid Home and Community-Based Service Programs: Data Update," at Table 11, there were 434 people with spinal cord injuries on a "wait list" in FY 2008 for Medicaid community-based services.
45. These people could reside in the community with appropriate Medicaidfunded services and not be forced to enter a nursing home.
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46. Based on information and belief, in December 2008, the waiting list for persons \vith spinal cord injuries had increased to 554 people.
47. Despite the number of people with spinal cord injuries on a wait list for home and community-based Medicaid services, Defendants have not increased the number of people with spinal cord injuries who will receive community-based services.
48. Defendants have recently stated that there are "no funded slots open" in the spinal cord waiver program.
49. Defendants violate the Americans with Disabilities Act (ADA), Title II, 42 U.S.C. § 12132, and its implementing regulations, and Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulations. Among other things, these laws require the Department to administer its services and programs, including Medicaid, "in the most integrated setting appropriate" to the needs of the individual with disabilities.
50. Plaintiff Haddad seeks declaratory and injunctive relief to receive Medicaid services which will allow her to continue to reside in the community and not require her institutionalization. THE AMERICANS WITH DISABILITIES ACT
51. Title II of the Americans with Disabilities Act (ADA) provides that "no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by such entity." 42 U.S.C. § 12132.
52. Regulations implementing Title II of the ADA require that a public entity administer its services, programs and activities in "the most integrated setting
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appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 35. 130(d).
53. Regulations implementing Title II provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity's
program with respect to individuals with disabilities...." 28 C.F.R. § 35.130(b)(3).
54. Defendants ACHA and DOH are public entities under Title II of the ADA and its implementing regulations. SECTION 504 OF THE REHABILITATION ACT
55. Section 504 of the Rehabilitation Act of 1973 provides: "No otherwise qualified individual with a disability in the United States..., shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ...." 29 U.S.C. § 794a.
56. Regulations implementing Section 504 require a recipient of federal financial assistance to administer its services, programs, and activities in "the most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
57. Regulations implementing Section 504 prohibit recipients of Federal financial assistance from:
"[u]tiliz[ing] criteria or methods of administration... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (ii) [t]hat have the...effect of substantially impairing
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accomplishment of the recipients' program with respect to handicapped persons." 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(i). 58. Defendants' Medicaid program receives Federal financial assistance under Section 504 and its implementing regulations. Federal Medicaid funds pay for approximately 67.64% of the cost of the Florida's Medicaid program. 59. In 1965, Congress enacted Title XIX of the Social Security Act, 42 U.S.C. § 1396-1396v, establishing Medicaid, a medical assistance program cooperatively funded by the federal and state governments. The purpose of Medicaid is to furnish, as far as practicable, "medical assistance on behalf of...aged, blind or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services" and "to help such families and individuals to attain or retain capability for independence or self-care...." 42 U.S.C. § 1396 (emphasis added). 60. The Secretary of Health and Human Services administers the Medicaid program at the federal level through the Centers for Medicare & Medicaid Services (CMS), which has urged states pursuant to the ADA to avoid unnecessary institutionalization of person with disabilities in nursing facilities. 61. State participation in Medicaid is voluntary. Once a state elects to participate, it must adhere to the federal legal requirements, as provided by the Medicaid Act, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973 (Section 504). 62. The Medicaid Act allows states to provide coverage of home health nursing and personal attendant services, for persons who are otherwise entitled to receive nursing
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home services, if they meet the state's nursing home "level of care" requirements, e.g., need assistance with a certain number of activities of daily living. See 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(7), (8), (22). Based on information and belief, the Plaintiffs meet Defendants' "level of care" for a nursing facility.
63. The Medicaid Act also authorizes states to obtain Home and CommunityBased Service (HCBS) waivers from CMS to provide for alternatives to nursing home care and services. Waiver programs cover a range of home-based services for Medicaid recipients. See 42 U.S.C. § 1396n(c).
64. Defendants have applied to CMS for a Medicaid Waiver entitled the "Traumatic Brain Injury/Spinal Cord Waiver" for only 375 people.
65. Ms. Haddad has been on the waiting list since November, 2007. 66. Ms. Haddad has never been informed about her rank or numerical position on the waiting list, whether her rank or numerical position has even changed, when approximately she will receive Waiver services, what if anything she might do to increase her position, or any other information regarding how slowly or quickly the waiting list might be moving. 67. Defendants will limit Traumatic Brain Injury/Spinal Cord Waiver" services to 375 people through June 30, 2012. According to a November 24, 2009 Kaiser Commission report entitled "Medicaid Home and Community-Based Service Programs: Data Update", there were 434 people with spinal cord injuries on a "wait list" in FY 2008 for these community-based services. (See Table 11). These people could reside in the community with appropriate Medicaid-funded services and not be forced to enter a nursing home. Based on information and belief, in late 2008, the number of people who
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had applied for these services and were on a waiting list had increased to 554 people. Despite this waiting list, Defendants have not increased the number of people with spinal cord injuries who will receive community-based waiver services.
68. Defendant ACHA is designated as the "single state agency" responsible for the administration and supervision of Florida's Medicaid Program under Title XIX of the Social Security Act.
69. Under the Medical Assistance Act, the Defendants are required to administer the Florida's Medicaid program in conformity with federal law, including the ADA and Section 504.
FIRST CLAIM FOR RELIEF Title II of the Americans with Disabilities Act 70. Plaintiff Haddad is an individual with disabilities in that she has a physical impairment, and other impairments, that substantially limit one or more of her major life activities, including but not limited to breathing, walking, bathing, speaking, and standing. 71. Plaintiff Haddad is a qualified person with disabilities in that she is capable of safely living at home with necessary services and she meets the essential eligibility requirements for the receipt of services from and participation in the State Medicaid program with reasonable modification to the rules, policies, and practices of that program, 42 U.S.c. §12131(2). 72. Reasonable modifications include, inter alia: increasing the number of Spinal Cord Injury Waiver slots so that people who are otherwise eligible for this waiver are not at risk of institutionalization or expanding the personal care option services to provide
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these services to individuals who are in their homes and apartments instead of only in an assisted living facility, and allocating the same funds Defendants would pay for her in a nursing home to provide services for Ms. Haddad in the community.
73. Without reasonable modification of the rules, policies, and procedures governing the Florida's Medicaid program, Plaintiff is at a risk of being isolated and segregated into an institutional setting. This is against her will, and she does not want to be placed into a nursing home.
74. Defendants' denial of Medicaid funding for the in-home health services that Plaintiff requires to avoid segregation in an institution and remain in the integrated home settings that is appropriate to her needs, constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 130.51(d).
75. Defendants have utilized criteria and methods of administration that subject Plaintiff to discrimination on the basis of disability, including (A.) condititioning receipt of community-based services on her entering a nursing home for 60 days and be unnecessarily institutionalized, and (8.) by failing to assess properly the services and supports that would enable Plaintiff to remain in the community and failing to ensure that Plaintiff has access to Medicaid-covered services that will meet her needs in the community, in violation of Tide II of the ADA and implementing regulations.
SECOND CLAIM FOR RELIEF Section 504 of the Rehabilitation Act 76. Plaintiff is a "qualified person with disabilities" within the meaning of Section 504. She has physical and/or mental impairments that substantially limit one or more
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major life activities, and she meets the essential eligibility requirements for long term care under Florida's Medicaid program.
77. Defendants' denial of Medicaid funding for the in-home health services that Plaintiff requires to avoid segregation in an institution and remain in the integrated home settings that is appropriate to their needs constitutes unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), and its implementing regulation, 28 C.F.R. §41.51(d).
78. Defendants have also utilized criteria and methods of administration that subject Plaintiffs to discrimination on the basis of disability, including CA.) condititioning receipt of community-based services on her entering a nursing home for 60 days and be unnecessarily institutionalized, and (B.) by failing to assess properly the services and supports that would enable Plaintiff to remain in the community and failing to ensure that Plaintiff has access to Medicaid-covered services that will meet her needs in the community, thereby violating Section 504 and its implementing regulations.
RELIEF REQUESTED WHEREFORE, Plaintiff respectfully requests that the Court grant the following relief: A. Declare that the Defendants' denial of funding for Plaintiffs necessary and appropriate Medicaid in-home nursing services constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. B. Grant preliminary and pennanent injunctions enJommg the Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or
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participation with them from denying Plaintiff Medicaid in-home nursing services "in the most integrated setting," her home, including to the extent to which Plaintiffs service needs can and will be met by enrolling her in the existing Home and Community-Based Services waiver.
C. Waive the requirement for the posting of a bond as security for the entry of preliminary relief.
D. Award the Plaintiff the costs of this action and reasonable attorney's fees pursuant to 29 U.S.C. § 794a and 42 U.S.C. § 12133 and any other applicable provision of law.
F. All such other and further relief as the Court deems to be just and equitable. Respectfully submitted,
Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 Facsimile: 215-627-3183 stevegoldada@cs.com
70 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counselfor the Plaintiff
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

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MICHELLE HADDAD,

Plaintiff,

v.
THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

Case No.
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Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,

Defendants.

PLAINTIFF MICHELE HADDAD'S MOTION FOR PRELIMINARY INJUNCTION, MEMORANDUM IN SUPPORT THEREOF, AND EXPEDITED HEARING
Pursuant to Fed. R. Civ. P. 65, Plaintiff Michele Haddad moves for a preliminary injunction to enjoin Defendants from denying her Medicaid home and community-based services ("HCBS"), in order to prevent Plaintiff Haddad's unnecessary institutionalization in a nursing home. Due to the emergency nature of her situation, Plaintiff Haddad further moves for an expedited hearing. As grounds therefore, Plaintiff Haddad states:
1. This action is brought on behalf of a Florida resident who has quadriplegia as a result of a car accident. Plaintiff Haddad is on Medicaid. Plaintiff Haddad has successfully lived in the community since the accident and desires to continue to reside in her own home and community instead of having to enter a nursing facility. She could continue to reside in the community with appropriate services provided with Medicaid funds. She is at imminent risk of being unnecessarily

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institutionalized because of Defendants' failure to administer their Medicaid services, programs and activities in an appropriate, integrated community setting. See affidavit ofMichele Haddad, attached hereto as Exhibit A.
2. Plaintiff Haddad lives in a fully accessible home in Jacksonville, Florida. lei.
3. When she was 47, on September 7, 2007, she was in a motor cycle accident caused by an intoxicated car driver. She broke her spine as a result of the accident. ld
4. On or about November, 2007, when she was still hospitalized In Brooks Rehabilitation, Ms. Haddad applied to Defendants' Brain and Spinal Cord Injury Program to receive home health care through the Spinal Cord Injury Medicaid Waiver. She has been on the "wait list" for in-home Waiver services nearly two and a half years. ld.
S. Ms. Haddad was recently contacted by the Spinal Cord Injury Waiver and told they have no funds to provide her with services. However, if she would enter a nursing home for 60 days, then she would be eligible to be transferred to the Spinal Cord Injury Waiver program and receive services in the community. ld.
6. Ms. Haddad does not want to live in a nursing home but wants to remain in her home and to receive services in the community. ld
7. She is unable to open her right hand and she cannot close her left hand. As a result she has minimal manual dexterity. ld
8. Ms. Haddad uses a motorized wheelchair for ambulation. ld. 9. Between January 2008, when Ms. Haddad was discharged from Brooks Rehabilitation Hospital, and March 2010, Ms. Haddad's husband was her primary caregiver. In November, 2009, after 24 years of marriage, the Haddads divorced. Mr. Haddad remained in the
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family home and continued to serve as her primary caregiver until March 2010, when he left the home.ld
10. One of Ms. Haddad's two adult sons, Anthony, 24, has left his home in Miami to temporarily move in with his mother to provide her with the care she requires in order to remain in the community. Id
11. Ms. Haddad's son Anthony now is responsible for the tasks that her husband had provided since the accident: transferring her out of bed to a wheelchair, bathing her, helping her with her hygiene needs, dressing her, shopping for food, preparing meals, assisting her with eating, and at the end of the day performing the same functions to assist her to get into bed. Id
12. Further, Ms. Haddad uses a catheter and requires a bowel program. Her husband was responsible for these toilet needs. Since March, when Ms. Haddad's husband left the house, her son, Anthony, has had to perform the exact same very personal care for her. ld
13. In early March, 2010, Ms. Haddad again contacted Defendants' Brain and Spinal Cord Injury Program. She notified the Program that her husband and primary caregiver had moved out and she desperately required Medicaid Waiver services because the only help she was receiving was from her son, Anthony. Id
14. Anthony cannot continue to provide services to his mother and has only temporarily returned home. Anthony recently graduated from Florida International University in December, 2009, majoring in international relations and marketing. Anthony only returned home to care for his mother due to the exigent circumstances -- his parents' divorce, his father leaving the house, and his mother having no one to care for her. Anthony intends to move back to Miami, and without the
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services he has been providing in the home, Ms. Haddad will be forced to enter an unnecessarily
segregated setting. lei.
15. Ms. Haddad does not want to go into a nursing home; instead, she wants to continue
residing in her own home in the community, where she has an active life. lei.
16. In the community, she attends church, goes to the movies, visits friends and goes shopping. She uses the gymnasium at Brooks Rehabilitation Hospital's out-patient unit for
exercise. lei.
17. She does not think it is appropriate for her son to provide the activities of daily living
which she requires (including very private tasks). lei.
18. She owns her house which is accessible with a ramp, roll-in shower, and a hoyer lift. Her sole source of income is her monthly Social Security Disability Insurance, and she is eligible
for and receives both Medicare and Medicaid. lei.
19. Without community-based Spinal Cord Waiver services, Ms. Haddad is at risk of institutionalization, even though she desperately does not want to reside in a nursing facility. Ms. Haddad has lost her primary caregiver and lacks the natural supports that she previously relied on in order to live in the community. It!.
20. A copy of her treating physician's declaration IS attached as Exhibit Band incorporated herein.
21. Despite Defendants knowing that Ms. Haddad is at imminent risk of institutionalization, they have not offered any Medicaid services so she could remain in the
community. lei.
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22. Ms. Haddad has been eligible for Florida's Medicaid nursing home services since her injury in 2007. She still meets Florida's level of care for nursing home eligibility.ld.
23. Florida's Medicaid nursing home reimbursement is approximately $178 per diem. 24. Defendants have a community-based Medicaid Traumatic Brain Injury/Spinal Cord Medicaid Waiver but its capacity is limited, providing 375 slots. 25. Defendants have certified to the federal Medicaid agency that, for each person Florida diverts from the nursing home and provides Waiver services in the community, the State and the federal government save approximately $20,000 a year. 26. Despite these savings and knowing that Plaintiff Haddad is in imminent risk of nursing home placement, Defendants refuse to provide Ms. Haddad with services in her home. 27. Plaintiff Haddad needs Defendants' Medicaid HCBS benefits to assist her with activities of daily living. These services could be provided to Plaintiff Haddad either pursuant to "waiver" services or "personal care services," see 42 U.S.C. §§1396n(c) and 1396d(a)(24), both of which are part of the Florida's Medicaid program. 28. Even though Ms. Haddad applied for home and community-based services and is on a waiting list, Waiver services have not been made available to her. Ms. Haddad's advocates telephoned Defendants' Jacksonville Medicaid Waiver office regarding waiver services, but none have been provided and no one could tell her when services would be provided for her in the community. See affidavit ofMichele Haddad. 29. Further, the personal care option service under the state plan is currently unavailable to Ms. Haddad in her community placement because, in Florida, the service is limited to persons
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with disabilities who reside only in assistive living facilities (not to individuals who live in their own apartments or houses).
30. To obtain the necessary services, Defendants require that Plaintiff Haddad leave the community and enter a Medicaid-funded nursing facility setting.
31. Plaintiff Haddad will imminently have no option other than to enter into a nursing home where Defendants' Medicaid program will pay for the same services she can and has received in the community.
32. Defendants refuse to offer her the services In the community and instead are requiring her to enter a nursing facility to receive those services, in violation of both the Americans with Disabilities Act, 42 V.S.c. § 12101 et seq. ("ADA"), and the Rehabilitation Act of 1973, 29 V.S.c. § 794a ("Section 504"), and their implementing regulations, in particular the "integration mandate," which requires that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R.§ 35. 130(d).
WHEREFORE Plaintiff Haddad seeks a preliminary injunction to enjoin Defendants from denying her services in the community to assist her with her daily living activities.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF HADDAD'S MOTION FOR A PRELIMINARY INJUNCTION I. Plaintiff Meets the Standards for Preliminarv Injunctive Relief The criteria for granting a preliminary injunction are (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted; (3) a balance of hardships favoring the plaintiff; and (4) advancement of the public interest. Schiavo Ex Rei. Schindler v. Schiavo, 403 F.3d 1223 (11 th Cir. 2005). The grant or denial of a preliminary
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injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probability of ultimate success at final hearing with the consequences of immediate irreparable injury, which could flow from the denial of preliminary relief. Siegal v. Lepore, 234 FJd 1163, 1178 (11 th Cir. 2000). If the other factors weigh in favor of granting relief, Plaintiff only has to show a substantial case on the merits of the claim. Schiavo, 403 F.3d at 1226.
In the instant case, Plaintiff Haddad raises a very strong likelihood of success on the merits under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and the Rehabilitation Act of 1973,29 U.S.C. § 794a ("Section 504"), and their implementing regulations; a very strong probability of irreparable injury; and both the balance of hardships and public interests weigh significantly in her favor. Accordingly, Plaintiffis entitled to preliminary injunctive relief. II. Likelihood of Success
A. Defendants' Responsibilities under the HeBS TBI/SCI Waiver Medicaid is a joint federal/state program authorized by Title XIX of the Social Security Act. 42 U.S.C. §§ 1396-1396v. It provides medical assistance to low income individuals who meet certain eligibility requirements. States are not required to participate in the Medicaid program. If a state elects to participate, however, it is required to comply with all applicable federal statutory and regulatory requirements. 42 U.S.C. § 1396a; Wilder v. Virginia Hosp. Ass 'n, 496 U.S. 498, 502 (1990); Florida Ass'n oj Rehab. Facilities, Inc. v. Florida Dep't oj Health & Rehab. Servs., 225 F.3d 1208, 1211 (11th Cir. 2000). Medicaid home and community-based services (HeBS) waiver programs are authorized by
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42 U.S.C. § 1396n(c) and governed by 42 C.F.R. §§ 441.300-.310. 1 Waiver programs enable states to provide home and community-based services to individuals with disabilities who would otherwise need the level of care provided in the institutional nursing home? Personal care assistant services (PCA) is one of the services that can be provided through a waiver. 42 U.S.C. § 1396n(c)(4)(6). Medicaid waiver programs must, in the aggregate, be cost-neutral, in that the total average cost of providing care for program participants in the home and community based setting must not exceed the estimated total average cost of providing care in the institutional setting that these participants would require. 42 U.S.C. §1396n(c)(2)(D), 42 C.F.R. §441.302(e).
Florida's Medicaid waiver program is one of the two Medicaid programs which could prevent Ms. Haddad's imminent institutionalization. The other Medicaid program is the "personal care services" benefits, alk/a "personal care option.." 42 U.S.C. § 1396n(a)(24). Under the program, states like Florida provide personal attendant services such as Plaintiff Haddad requires. However, Florida has opted to limit its personal care services benefits to only those persons who reside in its Medicaid funded assisted living facilities and does not provide these services to persons who reside in their own apartments or homes.
B. The ADA and Section 504 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a ("Section 504") IS
States that opt to provide waiver services may "waive" the requirements of statewideness, comparability and income requirements for which a state's other Medicaid services and programs must otherwise comply with 42 U.S.C.§1396n(c)(3). The Secretary of the Department of Health and Human Services has approved nine waivers in Florida for people who would otherwise require care in a nursing facility. Ms.Haddad meets the eligibility criteria for Florida's Traumatic Brain Injury/Spinal Cord Injury Waiver ("TBI/SCI"). 2 The Florida Medicaid per diem reimbursement is $178.45 on average for an annual average reimbursement 0 f$ 65, 134.25. See http://www.fdhc.state.f1.us?Medicaid/cost_reimlnh_fates.
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"commonly known as the civil rights bill of the disabled," Americans Disabled for Accessible Public Transp. (ADAPT) v. Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989) (en banc), and prohibits disability-based discrimination by recipients of federal funding, such as Defendants. 29 U.S.C. § 794(a). Extending the prohibitions of Section 504, in 1990, Congress enacted the Americans with Disabilities Act, 42 U.S.c. § 12101 et seq. (ADA), to prohibit discrimination by all public entities, regardless of whether they receive federal funding. H.R. Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 267,472. Like Section 504, Title II of the ADA broadly prohibits discrimination by public entities, such as Defendants. 42 U.S.C. §§ 12131 (l), 12132. The ADA and Section 504 are analyzed together since "there is no significant difference in the analysis of rights and obligations created by the two." Zulke v. Regents of the Univ. of Calif., 166 F.3d 1041, 1045 n.l1 (9th Cir. 1999). The ADA provides that the "remedies, procedures, and rights set forth in [Section 504] shall be the remedies, procedures and rights [applicable to ADA claims]." 42 U.S.C. § 12133. Section 504 and the ADA reflect Congress' recognition of the pervasiveness of disabilitybased discrimination in society. Congress specifically found that "discrimination against individuals with disabilities persists in such critical areas as .. , health services ...." 42 U.S.C. § 12101(a)(3) (ADA) (emphasis added); see also 29 U.S.C. § 701 (a)(5) (Section 504).
The concept of "discrimination" under these Acts encompasses more than disparate
treatment of people with disabilities vis-a-vis individuals without disabilities. See Olmstead v. L. c.,
527 U.S. 581, 598 (1999) (ADA); Alexander v. Choate, 469 U.S. 287, 297, 300-01 (1984) (Section 504); Shelen L. v. DiDario, 46 F.3d 325, 333, 335 (3d Cir.), eert. denied, 516 U.S. 813 (1995) (ADA); Nathanson v. Medical College ofPenn. , 926 F.2d 1368, 1384 (3d Cir. 1991) (Section 504). The Supreme Court in Olmstead made it clear that the state cannot discriminate between people
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with disabilities while providing such care for "categorically needy" persons. 3 Title II of the ADA prohibits public entities from discriminating against persons with
disabilities. 42 U.S.C. § 12132.4 A "qualified individual with a disability" is a person who "with or without reasonable modifications to rules, polices or practices" meets the "essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12132(2). Defendants do not dispute that Plaintiff Haddad is a qualified person with a disability who meets the eligibility requirements for Florida's Medicaid nursing home "level of care" as well as for its waiver and Medicaid programs.
C. The ADA and Section 504's Integration Mandate Under both the ADA and Section 504, the Attorney General was directed to promulgate implementing regulations. 42 U.S.C. § 12134(a); 29 U.S.C. § 794(a). See Helen L., supra. Congress further directed that the regulations promulgated under Title II of the ADA be consistent with the regulations adopted under Section 504. 42 U.S.C. §12134(b). For purposes of implementing Title 11 of the ADA, the Attorney General promulgated a regulation requiring public entities to "administer
3 The ADA also prohibits discrimination against different categories of people between people with disabilities while providing such care for "categorically needy" persons with disabilities. Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), Helen L., supra. In Townsend, the plaintiffs alleged that the state was using Medicaid's home and community based waiver services ("HCBS") to provide essential long term care to some residents with disabilities, but not to others. The Court held that the state violated the ADA by denying community-based long term care for "medically needy" persons. 4 Similarly, Section 504 prohibits the recipients of federal funds from discriminating on the basis of disability:
No otherwise qualified individual with a disability...shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... 29 U.S.C. §794(a).
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services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35. 130(d). The regulation was based upon virtually identical regulatory language promulgated to implement Section 504 with respect to federal financial recipients. 28 C.F.R. § 41.51 (d). These two regulations, known as the "integration mandate," are construed and applied in the same manner. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1179 n.3 (lOth Cir. 2003).
The integration mandate was analyzed and interpreted by the United States Supreme Court
in the landmark decision of Olmstead v. L. c., 527 U.S. 581 (1999). The Olmstead plaintiffs were
individuals with mental disabilities who were confined in Georgia's state psychiatric institutions, but who wanted to live in the community. Plaintiffs asserted that the state's refusal to pay for them to live in community settings violated the integration mandate of Title II of the ADA and its implementing regulations. The Court was thus presented with the question of whether the proscription of disability discrimination may require the placement of individuals with disabilities in community settings rather than institutions. Id at 587.
The Court began its analysis by citing the relevant Congressional findings that serve as the underpinnings for the ADA:
(2) historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive societal problem;
(3) discrimination against individuals with disabilities persists in such critical areas as...institlilionalization... ;
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion.. failure 10 make reasonable modifications to existingfacilities and practices, [and] segregation...
42 U.S.C. §12101(a)(2), (3) & (5) (emphasis added) (quoted in Olmstead. 527 U.S.at 588-89).
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The Court's decision was premised on the DOl integration regulation: A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
28 C.F.R. § 35.l30(d). After noting the comprehensive scope of discrimination embraced by the ADA, the
Olmstead Court explained the nature of discrimination prohibited by Title II of the ADA in the context of the integration mandate:
Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community sellings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement and cultural enrichment. Dissimilar treatment exists in the key respect: In order to receive needed medical services, persons with ... disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without [such] disabilities can receive the medical services they need without similar sacrifice. 527 U.S. at 600-601 (citations omitted; emphasis added). Accordingly, the Court concluded, more
than nine years ago, that "unjustified isolation, we hold, is properly regarded as discrimination
based on disability." ld at 597. The facts of the case at bar clearly demonstrate that Plaintiff Haddad will suffer
discrimination. There can be no doubt that for Plaintiff Haddad that the "most integrated setting" for
her is her own home. By living at home and participating in the community, she has been able to
experience and benefit from church activities, family relations, social contacts, educational advancement, and cultural enrichment of which the Supreme Court spoke. Being forced to move to a nursing home solely to receive the personal attendant care services that Plaintiff Haddad needs for
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her activities of daily living is exactly the sort of discrimination recognized in Olmstead (recognizing discrimination where "[i]n order to receive needed medical services, persons with [] disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without [] disabilities can receive the medical services they need without similar sacrifice. See Brief for United States as Amicus Curiae 6-7, 17." Olmstead, 527 U.S. at 601. Defendants' refusal to provide Medicaid funds for her in the community and its failure to grant a reasonable modification to its existing Medicaid programs that would allow her to remain in the community plainly falls within the disability discrimination condemned by the Supreme Court in Olmstead. The ADA and Section 504 clearly prohibit conditioning receipt of a public service or program on a person being institutionalized. That was the bedrock of the Olmstead decision. It also demonstrates Judge Ferguson's conclusion that "underfunding of the Home and Community-Based Waiver program compels institutionalization, thus negating a meaningful choice." Cramer v. Chiles, 33 F.Supp.2d 1342, 1353 (S.D. Fla.l999).
Plaintiff Haddad is at imminent risk of being forced into a nursing home. Due to Defendants' failure to provide services in the most integrated setting, she will be forced to relinquish her independence in order to receive necessary assistance with her activities of daily living. Ms. Haddad's unjustified isolation triggers the concerns driving the Court in Olmstead, of (1) "perpetuat[ing] unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life" and (2) "severely diminish[ing]" plaintiffs "everyday life activities .. .including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." Olmstead, 527 U.S. at 601. Forcing Ms. Haddad to receive services in a nursing home setting will cut her off from the community activities
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she enjoys, including attending church, going to the movies, visiting friends, going shopping, and exerclsmg.
Further, Defendants requirement that Plaintiff Haddad enter a nursing home for 60 days, after which she will be eligible to be transferred to the Spinal Cord Injury Waiver Program violates the ADA in that Defendants cannot condition receipt of community services on a person with a disability entering a segregated institution. See affidavit oj Kristen Russell, attached hereto as Exhibit C. Plaintiff Haddad need not wait until she enters the nursing home to receive communitybased services, the same services she would receive in the nursing home. The conditioning of community-based services on institutionalization is itself discrimination. In Fisher v. Oklahoma Health Care Auth., 335 F. 3d 1175 (lOth Cir. 2003), Oklahoma had changed its Medicaid prescription program so that persons in the community would be entitled to receive no more than five prescriptions per month. However, if persons resided in a nursing facility, they could receive an unlimited number of prescriptions. The Fisher Circuit emphasized that "failure to provide Medicaid
services in a community-based setting may constitute a form of discrimination." Id. at 1182. The
Tenth Circuit noted that the protections in the ADA's "integration regulation," would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discrimination law or policy that threatens to force them into segregated isolation. [W]hile it is true that plaintiffs in Olmstead were institutionalized at the time they brought their claim, nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA's integration requirements.
Id. at 1181. See also Radaszewski v. At/aram, 383 F.3d 599, 611 (7th Cir. 2004), Crabtree v. Goetz, 2008 U.S.Dist. LEXIS 103097 (MD TN, December 19,2008).
This same principle applies to Plaintiff Haddad. In the community, she currently receives no Medicaid-funded personal attendant care services to assist her with her activities of daily living.
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If she is forced to enter a nursing home, even for 60 days, in order to be eligible to receive services in the community, she will be "utmecessarily institutionalized," precisely the type of discrimination that Congress intended to end with the enactment of the ADA and Section 504. By requiring Plaintiff Haddad to move to a nursing facility to receive the same services she could receive in the community, Florida is conditioning the receipt of these Medicaid services on living in an institutional setting, i.e., the nursing facility, which is segregated, instead of providing them to her in the community.
D. Defendants Violate the ADA and Section 504 by Failing to Make Reasonable Modifications and Accommodations in their Policies, Practices, and Procedures
Section 504 and the ADA prohibit actions by covered entities that have a discriminatory effect on people with disabilities. See Alexander v. Choate, 469 U.S. at 297; Frederick L. v. Department ofPublic Welfare, 364 F.3d 487 (3d Cir. 2004), 422 F.3d 151 (3d 2005). Both the ADA and Section 504 affirmatively require that covered entities make reasonable modifications and accommodations to their policies and practices when necessary to accommodate individuals with disabilities, see Olmstead, 527 U.S. at 592; Alexander, 469 U.S. at 301, and require that people with disabilities have "meaningful access" to covered entities' programs. Id.; Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 857 (lOth Cir. 2003); Crabtree, supra.
In the present action, Defendants' failure to make reasonable modifications and accommodations results in Plaintiff Haddad being denied "meaningful access" to either Florida's Medicaid waiver programs or its Medicaid personal care services benefits. Because Florida has restricted its Medicaid personal care services benefits, 42 USC § 1396d(a)(24), to persons residing in assisted living facilities, Plaintiff Haddad is not able to benefit from either Florida's Medicaid waiver program or its Medicaid personal care services program. Similarly, because Florida has
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capped its TBIISCI waiver and has not increased it for a number of years to meet the needs of people on the wait list generally, including Ms. Haddad's needs in the community, an accommodation that is easy to accomplish, Florida's Medicaid program refuses to make the reasonable modification and accommodation in this program which will ensure Ms. Haddad remains in her home and is not discriminated against.
Beginning with Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979), the courts have recognized that Section 504 requires publicly funded programs to provide reasonable modifications and accommodations when needed to assure that people with disabilities have meaningful access to its programs and services. See Alexander, 469 U.S. at 300-01 & n.20-21. Title II of the ADA requires:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity. 28 C.F.R. § 35. 130(b)(7) (authorized by 42 U.S.C. § 12134(b». The concept of reasonable modification recognizes that strictly "equal" treatment of people with disabilities will not assure meaningful access. See Henrietta D. v. Bloomberg, 331 F.3d 261, 273, 274-75 (2d Cir. 2003). Accordingly, the ADA and Section 504 require accommodations assuring that otherwise neutral policies and practices do not, in practice, discriminate against people with disabilities by denying them meaningful access to the covered entity's programs and services. Id., see also US Ainvays, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (in ADA employment discrimination case, "preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal"). For example, Section 504 and the ADA also prohibit discrimination on the basis of the severity of a person's disability. In Jackson v. Fort Stanton Hosp. & Training School, 757 F.
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Supp. 1243 (D.N.M. 1990), rev'd on other grounds, 964 F.2d 980 (lOth Cir. 1992), plaintiffs with developmental disabilities challenged their exclusion from the state's community services program because of the severity of their disabilities. In that case, people with severe disabilities were precluded from living in community settings because the programs lacked amenities that could be reasonably furnished that were necessary to accommodate their serious needs. The Court found that "Defendants' failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory." Id at 1299. It concluded that:
modifications of the existing community service system in New Mexico would not require an excessive financial burden and that the accommodations would enable severely handicapped residents of [residential facilities] to realize the benefits of community settings. Accordingly, the defendants should require those community programs that receive federal assistance funds to make reasonable accommodations for those severely handicapped residents [of facilities] whose lOTs have determined that a community program could be appropriate, if reasonably modified. Id. at 1299. See also Williams v. Wasserman, 937 F. Supp. 524, 530 (D. Md. 1996) ("while the ADA does not place an affirmative obligation on the state to create or fundamentally alter a program of community-based treatment options, the ADA does oblige the defendants to make those options available to otherwise qualified individuals without regard to the severity ... of their disabilities"); Martin v. Voinovich, 840 F. Supp. 1175, 1192 (S.D. Ohio 1993) ("Defendants' failure to accommodate the severely handicapped in existing community programs while serving less severely handicapped peers is unreasonable and discriminatory"). A recent reasonable accommodation case from the Seventh Circuit is quite instructive. In Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), plaintiff sought 24 hour private duty nursing care under the HeBS waiver program, a service he alleged he would require in a hospital or nursing
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facility if forced to move there. The State argued that it did not provide that level of service under its waiver, and that plaintiff could only receive $4,593 per month - the equivalent of five hours a day of private-duty nursing care. However, the court found that the state already provided for some private duty nursing care, and further that
the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community-integrated settings.... If variations in the way services were delivered in different settings [home vs. institution, or assisted living facility vs. an apartment] were enough to defeat a demand for more community integrated care, then the integration mandate of the ADA and the Rehabilitation Act would mean very little. Id. at 611. On remand, the district court found that the state's failure to fully fund at home, private duty nursing for the young man under the Medicaid-funded HCBS constituted disability discrimination, and that the state was obligated to provide treatment in the most integrated setting - his home. It rejected the state's claim that such an outcome would result in a fundamental alteration of the state's program. Radaszewski v. Maram, 2008 WL 2097382, *15 (N.D. Ill., March 26,2008); see a/so Grooms v. Maram 2008 WL 2271492, *16 (N.D. Ill., May 30, 2008), Long v. Benson, 2008 WL 4571904 (N.D. Flo, Oct. 14, 2008), on appeal; Disability Advocates Inc. v. Paterson. 598 F.Supp.2d 289 (E.D.N.Y.2009). E. Plaintiff Haddad's Requests for Modifications Are Reasonable. It is well-established that the ADA and Section 504 both require Defendants to make reasonable modifications and accommodations to their policies, practices, and procedures when necessary to avoid discrimination. 42 U.S.C. § 12l32; 28 C.F.R. § 35.l30(b)(7) (ADA). In a reasonable accommodation and modification claim, it is the plaintiffs obligation to articulate a modification that "seems reasonable on its face." US Airways, Inc. v. Barnett, 535 U.S. 391, 401
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(2002); see also Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3d Cir. 2001) ("plaintiff bears only the burden of identifying an accommodation, the costs of which do not clearly exceed its benefits," i.e., that is not "clearly ineffectively or outlandishly costly"). If the plaintiff articulates a reasonable modification, then the burden shifts to the defendant to prove that the proposed modification would impose an undue burden on its resources or a fundamental alteration of its program. Olmstead, 527 U.S. at 603; Frederick L., 364 F.3d at 492 n.4.
Defendants have ignored this obligation to Plaintiff Haddad by not providing her with personal attendant care services either through their Medicaid TBI/SCI waiver or through their Medicaid personal care services program. Defendants obtained permission from the federal Centers for Medicare and Medicaid (CMS) to have a Medicaid TBI/SCI waiver which permitted Florida with the option under Medicaid of providing home and community based services, including inhome care provided by personal attendants, to a person who would otherwise require nursing home level care. 42 U.S.C. § 1396n( c)(l) ("but for the provision of such [waiver] services the individuals would require the level of care provided in ... a nursing facility... the cost of which would be reimbursed under the State plan"). When Defendants obtained this Medicaid waiver, they took on the mandatory obligation to provide such in-home care to qualifying individuals such as Plaintiff Haddad. Despite the significant increase in the number of people on the wait list for the TBI/SCI waiver, Defendants have failed to increase the number of Medicaid TBI/SCI waiver slots so that Plaintiff Haddad could reside in the community instead of in a nursing facility 5
Courts have held that increasing expenditures and increasing the numbers of people who
5 Similarly, Defendants have restricted their Medicaid personal care services benefits, 42 USC § 1396d(a)(24), to persons residing in assisted living facilities. Defendants could easily expand this program to persons who reside in their own homes and apartments.
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receive waiver services in the community is not an unreasonable accommodation. See e.g., Radaxzewski, 383 F.3d at 613-15; Frederick L. v. Dept't ofPublic Welfare, 364 F.3d 487,500 (3rd Cir. 2004); Fisher, 335 F. 3d at 1182-83, and Makin v. Hawaii, 114, F. Supp. 2d 1017, 1034 (D. Haw. 1999).
Plaintiff Haddad has done all she can to live integrated into the community. She has received attendant care services from her parents and from her husband (now ex-husband) for as long as they could provide the care and services. She does not have money to pay for personal care services and without services provided through Defendants' programs, she will be forced to enter an unnecessarily segregated setting to receive needed services.
The reasonableness of a particular accommodation "depends on the individual circumstances of each case" and "requires a fact-specific, individualized analysis of the disabled individual's circumstances and accommodations that might allow her to meet the program's standards." Wong v. Regents ofthe Univ. ofCal., 192 F.3d 807, 818 (9th Cir. 1999).
Plaintiff Haddad has identified the specific program modifications and accommodations she seeks. She has asked Defendants, as a reasonable accommodation of her disability, to provide Medicaid payments, under either their Medicaid TBIISCI waiver or Medicaid personal care services programs, for care and services with her daily living activities. Were she to enter a nursing home, Defendants' per diem reimbursement to Medicaid nursing facilities is $178.45 a day or $5,353.50 a month. Under the federal requirements for a waiver, a state must assure the federal agency that the waiver is "cost effective," that is, on the average, the amount spent on community-based services "will not exceed the amount of such medical assistance provided for such individual [in the nursing facility] if the waiver did not apply." 42 USC § 1396n(c)(4)(A). If Defendants were to provide her
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with services under the TBI/SCI waiver, they would save more than $20,000 a year. The reasonable
accommodations that Plaintiff Haddad requests fall squarely within the existing duties already
assigned to Florida under the HCBS Waiver.
Similarly, under Florida's Medicaid program that provides personal care services, see 42
U.S.C. §1396d(a)(24), Defendants limit these services to persons who reside in an assisted living
complex. The reasonable accommodation Plaintiff Haddad requests is that the same service be
provided to her in her own home instead of in an assisted living facility. That would allow her to
hire and pay with Medicaid funds personal attendants who would provide the level of care that she
needs. As this is a practice that Defendants have approved for persons who reside in assisted living
facilities, it could not be an undue burden to extend the practice so that Plaintiff Haddad can
continue to reside in her home.
III. Irreparable Injury
Courts have recognized irreparable injury as a result of institutionalization in a nursing
facility. Ms. Haddad will irreparably suffer if she is must go into an institution:
• Her treating physician, Dr. Jeffery S. Jones, from the Brooks Rehabilitation Hospital, in his declaration which is attached to Ms. Haddad's motion, stated that "in his opinion, if she were placed in a nursing home she would quickly become depressed and her health would likely quickly deteriorate." (Dr. Jones Declaration ~ 20, attached and incorporated herein).
• The emotional impact of institutionalization has been noted by other courts: "this will inflict an enormous psychological blow. Also, because of the very substantial difference in [plaintiffs] perceived quality of life in the apartment as compared to the nursing home, each day he is required to live in the nursing home will be an irreparable harm." Long v. Benson, No. 08cv26, 2008 WL 4571903 *2 (N.D. Fla. Oct. 14, 2008). The detrimental effects that institutionalization has been similarly recognized in another ADA case: "forcing these Plaintiffs into nursing homes that would be detrimental to their care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or death." Crabtree v. Goetz, No. 080939, 2008 WL 5330506 *25 (M.D. Tenn. Dec. 19, 2008)(Haynes, J.)
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• "Plaintiffs...have lived successfully in their community based apartments. In the absence of an injunction, both Plaintiffs will lose funding and be forced from these community settings. The evidence at this point is strong that Plaintiffs will suffer regressive consequences if moved, even temporarily. Plaintiffs have behavioral and special needs, and benefit from a stable environment and personalized treatment."
l\1arlo M v. Cansler, No. 5:09-CV-535, 2010 WL 148849 (E.D. N.C. Jan. 17,2010). If a preliminary injunction is not issued, Plaintiff Haddad will not be able to continue to live
at home. She will have no option other than to enter to a nursing home and suffer all the injuries listed in Olmstead. Such discrimination and irreparable injury are unnecessary, if defendants would only authorize Ms. Haddad personal attendant services either under its Medicaid waiver or Medicaid personal care services programs. The irreparable injury includes more than a violation of her civil rights under the ADA and Section 504. The irreparable injury is that she will be institutionalized in a setting that demeans her by taking away her independence and dignity. IV. Balance of Hardships
The Court must weigh the harm to Plaintiff Haddad against possible damage to Defendants. Micshel-Trapaga v. City of Gainesville, 907 F. Supp. 1508, 1513 (N.D. Fla. 1995). While Plaintiff Haddad is threatened with institutionalization, Defendants' only possible damages are monetary. The harm to Plaintiff Haddad here clearly outweighs any harm to Defendants. See, e.g., Edmonds, 417 F. Supp. 2d at 1342 (harm to plaintiffs of being deprived of essential medical services outweighs any harm to state); Illinois Hosp. Ass'n v. Illinois Dep 't ofPublic Aid, 576 F. Supp. 360, 371 (N.D. III. 1983) ("once a state has voluntarily elected to participate in the Medicaid program ... [it cannot] characterize its duty to comply with the requirements of [the program] as constituting a hardship to its citizens"); Kansas Hosp. Ass 'n v. Whiteman, 835 F. Supp. 1548, 1552-53 (D. Kan. 1993) (threatened injuries to plaintiffs outweighed any harm to defendant that would result from
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issuing the temporary restraining order because changing Medicaid coverage "significantly alters the status quo to the detriment of the individual plaintiffs, while its positive budgetary impact on state coffers is negligible in a relative sense").
The balance of hardships clearly favors Plaintiff Haddad in this case. All that she is asking is that Defendants spend less of their Medicaid funds and permit her to continue to reside in her home with the personal attendants she needs to accomplish her activities of daily living. Providing the requested accommodation falls squarely within the duties imposed upon Defendants by either the Medicaid waiver or the Medicaid personal care option.
By contrast, if Plaintiff Haddad must leave her home and go to a nursing facility, Defendants will expend more Medicaid funds than they would were she in the community. Further, Plaintiff Haddad would be institutionalized despite the fact that she has successfully resided in the community since she became disabled nearly three years ago. Plainly, the balance of hardships tips in favor of Plaintiff Haddad. V. The Public Interest
A preliminary injunction to provide services to Plaintiff Haddad is not adverse to the public interest. In determining whether the public interest will be disserved by the granting of a request for preliminary injunction, courts may look to the legislative intent in enacting the statute sought to be enforced. As the Eleventh Circuit found in Johnson v. U.S.D.A., 734 F.2d 774, 788 (11 th Cir. 1984), cost to the government "alone" is not a reason to deny a preliminary injunction as being against the public interest. In a case challenging foreclosure procedures, the court looked at the legislative purposes of the Housing Act of 1949 and found that the public interest of providing decent housing would be served by preventing premature foreclosures. Id.
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The public interest also will be served by an order granting a preliminary injunction for Plaintiff Haddad. There is a strong public policy expressed in the ADA and Section 504. Congress found that discrimination against people with disabilities is a serious and pervasive social problem, and that people with disabilities have been subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such persons to participate in and contribute to society. 42 U.S.C. §12101. The purpose of the ADA's passage was to provide a clear and comprehensive national mandate for elimination of discrimination against individuals with disabilities. Accordingly, it serves the public interest to issue the requested preliminary injunctive relief. VI. Waiving the Bond Requirement
Plaintiff should be exempted from the bond requirement of Fed. R. Civ. P.65(c). The amount of required security is within the discretion of the trial court. Bell South, 425 F.3d at 971; Caterpillar, Inc. v. Nationwide Equipment, 877 F.Supp. 611, 61 7 (M.D. Fla. 1994); Baldree v. Cargill, Inc., 758 F.Supp. 704 (M.D. Fla. 1990), affd, 925 F.2d 1474 (11th Cir. 1991). The court may also waive all payment.
Courts have used their discretion to waive the bond requirement for indigent plaintiffs. E.g., Bass v. Richardson, 338 F. Supp. 478, 490 (E.D.N.Y. 1971) (lilt is clear that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c)"); Denny v. Shealth & Social Servo Bd of State of Wis., 285 F. Supp. 526, 527 (E.D. Wis. 1968) ("Poor persons ... are by hypothesis unable to furnish security as contemplated in Rule 65(c), and the court should order no security in connection with the preliminary injunction. "). See also
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j\1aine Ass'n ofInterdependent Neighborhoods, 647 F. Supp. at 1319 (court granted waiver of bond, noting impecunious status of plaintiffs, and based on plaintiffs strong case on the merits).
Plaintiff Haddad is indigent, her income is her Social Security Disability Insurance, and seeks injunctive relief to receive services in the community that Defendants already provide in nursing homes. The case implicates the public interest and the balance of hardships tips sharply in favor of the Plaintiff. This Court should not require Plaintiff Haddad to give security. VII. Conclusion
For the reasons and on the authority cited above, Plaintiff Haddad respectfully requests that this Honorable Court grant her preliminary injunctive relief. She has demonstrated a substantial likelihood of success on the merits; she will suffer irreparable injury in the event emergency relief is denied; and the balance of hardships tip in Plaintiff's favor.
Respectfully submitted, Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 (215) 627-7100, ext 227 stevegoldada@cs.com
• Howanitz, Esq ida Bar No. 0020967 1 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com Counsel for the Plaintiff
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 </s> Case 3:10-cv-00414-MMH-TEM Document 10 Filed 05/24/10 Page 1 of 22 PageID 88

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

____________________________________

MICHELE HADDAD,

)

)

Plaintiff, )

v.

) Case No. 3:10-CV414-J-00 MMH-TEM

)

THOMAS ARNOLD, in his official

)

capacity as Secretary, Florida Agency for )

Health Care Administration, and

)

)

Dr. ANNA VIAMONTE ROSS,

)

in her official capacity as Secretary,

)

Florida Department of Health,

)

)

Defendants. )

____________________________________)

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517,

because this litigation implicates the proper interpretation and application Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., (“ADA”).1 In particular,

this case involves Title II’s integration mandate. See Olmstead v. L.C., 527 U.S. 581

(1999). The Department of Justice has authority to enforce Title II, 42 U.S.C. § 12133,

and to issue regulations implementing the statute, id. §12134. The United States has a strong interest in the resolution of this matter.2

1 This statute, 28 U.S.C. § 517, does not require the United States to seek leave of the parties to file a statement of interest. 2The Administration’s commitment to realizing the goals of community integration as set forth in Olmstead has led the United States to file briefs in a number of Olmstead enforcement cases since 2009 in Connecticut, Virginia, North Carolina, New York, Illinois, Georgia, Arkansas, and California. See “President Obama Commemorates Anniversary of Olmstead and Announces New Initiatives to Assist Americans with Disabilities,” June 22, 2009, Office of the Press Secretary, available at http://www.whitehouse.gov/the_press_office/President-Obama-Commemorates-Anniversary-of-Olmsteadand-Announces-New-Initiatives-to-Assist-Americans-with-Disabilities/)

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This lawsuit alleges that the State of Florida fails to provide community-based services to Medicaid-eligible individuals with spinal cord injuries who are at risk of institutionalization. Instead, the state will fund those services only after an individual relinquishes his or her ties to the community and enters a nursing home. (“Russell Affidavit,” Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., Dkt. 59) (Attached at Exh. A).) The state continues to fund costly, unnecessary institutional placements when it could instead provide more appropriate, community-based services at a lower cost, in violation of Title II, as interpreted in Olmstead.3
Since 2007, Ms. Haddad has successfully resided in the community. Her ability to remain in the community was recently imperiled due to changes in her caregiver situation. Ms. Haddad notified defendants of her increased need for services but was told services were not available. However, she was informed that, although there were no funds for community-based services, if she would move into a nursing home for sixty days, then she could receive ten hours of services each day in the community. (Haddad Dec. ¶ 17.) Due to her inability to access services on the Traumatic Brain Injury/Spinal Cord Injury (“TBI/SCI”) Waiver, Ms. Haddad is at risk of entry into an unnecessarily segregated setting (e.g. a nursing home).
The state’s failure to provide sufficient community-based services to qualified individuals who are at risk of institutionalization and its conditioning of communitybased services on entrance into a nursing home violates the ADA. If a state can require
3 This lawsuit is related to Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., filed Dec. 2, 2009). Jones was brought on behalf of one individual, Ms. Jones, and the complaint was later amended to add class claims and additional named plaintiffs. Plaintiffs filed for leave to add Ms. Haddad as a named plaintiff in the Jones action, however this motion is still pending (as is the motion for class certification). A motion for preliminary injunction was filed on behalf of Ms. Haddad on April 15, 2010. This motion was denied without prejudice on May 7, 2010, due to Ms. Haddad’s status as a non-party. Subsequent to that decision and in light of Ms. Haddad’s urgent need for services, counsel in Jones filed this separate action in order to resolve this Court’s concerns about Ms. Haddad’s current status as a non-party.
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individuals to enter an institution before providing community-based services, the protections of Olmstead are meaningless. The facts alleged in Ms. Haddad’s complaint, as well as her declaration in support of her motion for preliminary injunction, demonstrate a likelihood of success on the merits of the Title II integration claim. Furthermore, Ms. Haddad’s allegations meet the additional requirements for a preliminary injunction: plaintiff’s placement in an institutional setting will cause irreparable harm, the balance of equities weighs in favor of Ms. Haddad, and granting this injunction is in the public interest.
Statutory and Regulatory Background Congress enacted the Americans with Disabilities Act (“ADA”) in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities. [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132. As directed by Congress, 42 U.S.C. § 12134, the Attorney General issued regulations implementing Title II, which are based on regulations issued under section
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504 of the Rehabilitation Act.4 See 42 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a);
Executive Order 12250, 45 Fed. Reg. 72995 (1980), reprinted in 42 U.S.C. § 2000d-1.
The Title II regulations require public entities to “administer services, programs, and
activities in the most integrated setting appropriate to the needs of qualified individuals
with disabilities.” 28 C.F.R. § 35.130(d). The preamble discussion of the “integration
regulation” explains that “the most integrated setting” is one that “enables individuals
with disabilities to interact with nondisabled persons to the fullest extent possible.” 28
C.F.R. § 35.130(d), App. A.
Eleven years ago, the Supreme Court applied these authorities and held that
Title II prohibits the unjustified segregation of individuals with disabilities. Olmstead,
527 U.S. at 586. Olmstead held that public entities are required to provide community-
based services for persons with disabilities who would otherwise be entitled to
institutional services when a) treatment professionals reasonably determine that such
placement is appropriate; b) the affected persons do not oppose such treatment; and c) the
4 Title II was modeled closely on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in federally conducted programs and in all of the operations of public entities that receive federal financial assistance. Title II provides that “[t]he remedies, procedures, and rights” set forth under Section 504 shall be available to any person alleging discrimination in violation of title II. 42 U.S.C. § 12133; see also 42 U.S.C. § 12201(a) (ADA must not be construed more narrowly than Rehabilitation Act). The ADA directs the Attorney General to promulgate regulations to implement title II, and requires those regulations to be consistent with preexisting federal regulations that coordinated federal agencies’ application of Section 504 to recipients of federal financial assistance, and interpreted certain aspects of Section 504 as applied to the federal government itself. 42 U.S.C. § 12134(a)-(b). Title II thus extended Section 504’s pre-existing prohibition against disability-based discrimination in programs and activities (including state and local programs and activities) receiving federal financial assistance or conducted by the federal government itself to all operations of state and local governments, whether or not they receive federal assistance. The ADA and the Rehabilitation Act are generally construed to impose the same requirements. See Allmond v. Akal Sec., Inc., 558 F.3d 1312 (11th Cir. 2009); Cash v. Smith, 231 F.3d 1301, 1305(11th Cir, 2000). This principle follows from the similar language employed in the two acts. It also derives from the Congressional directive that implementation and interpretation of the two acts “be coordinated to prevent[ ] imposition of inconsistent or conflicting standards for the same requirements under the two statutes.” Baird ex rel. Baird v. Rose, 192 F.3d 462, 468 (4th Cir, 1999) (citing 42 U.S.C. § 12117(b)) (alteration in original). See also, Yeskey v. Com. of Penn. Dep’t of Corrections, 118 F.3d 168, 170 (3d Cir. 1997) (“[A]ll the leading cases take up the statutes together, as we will.”), aff’d, 524 U.S. 206 (1998).
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placement can be reasonably accommodated, taking into account the resources available
to the entity and the needs of others who are receiving disability services from the entity.
Olmstead, 527 U.S. at 607.
Summary of Facts
Pursuant to provisions of the Medicaid Act, Florida administers the TBI/SCI
Waiver program, which reimburses participants’ costs for a range of home-based services
provided to Medicaid recipients. See 42 U.S.C. § 1396(c).5 The TBI/SCI Waiver, which
was approved by the federal government’s Centers for Medicare and Medicaid Services
(“CMS”) in 2002, caps the number of persons eligible to receive community-based
services at 375 people through 2012.6 (Compl. ¶ 43). Despite the substantial waiting list
for these services,7 defendants have not sought to increase the number of individuals it
plans to serve under the waiver.8 Instead of serving these individuals in the community,
5 Waiver programs allow states to provide home and community based services to individuals with disabilities who would otherwise require the level of care provided in institutions such as nursing homes. 6 CMS approved nine waiver programs in Florida for individuals who would otherwise require care in an institutional setting, including the TBI/SCI Waiver and a waiver for individuals with physical disabilities. While Plaintiff Haddad may be eligible for services under the aged and disabled waiver, this waiver also has a substantial waiting list. As of the most recent report from the Kaiser Commission, in 2006 there were 20,712 participants on the aged and disabled waiver, and as of 2008, there were more than 12,684 individuals on the waiting list for the aged and disabled waiver. Medicaid Home and Community-Based Services Report, Table 5 & 11, Date Update, Nov. 2009. 7 According to a November 25, 2009, Kaiser Commission report, there were 434 people on the TBI/SCI waiver waiting list in 2008. (Compl. ¶ 44.) Another source places this number as high as 554 people by late 2008. (Id. ¶ 46.) 8 States can submit requests for approval to CMS to increase the number of individuals to be served under a particular waiver. 42 C.F.R. § 441.355. Such requests are regularly granted by CMS. See Knowles v. Horn, No. 08-CV-1492, 2010 WL 517591 (N.D. Tex., Feb. 10, 2010) (citing to Grooms v. Maram, 563 F. Supp. 2d 840, 857 (N.D. Ill., 2008) (“ [T]he federal government has not denied a single waiver application in the last ten years. Defendant here presents no basis to believe the federal government would deny the State’s application for an amendment in this case and the court will not concoct one.”) In addition to its nine waiver programs, Defendants also deliver personal care assistance services to Florida residents through the Assistive Care Services (“ACS”) program, an optional service funded through Medicaid. Unlike most other states that offer personal care assistance services, however, defendants restrict eligibility for these services to Medicaid-eligible individuals who already live in assisted living facilities, qualified residential treatment facilities, or adult family-care homes. See Florida Agency for Health Care Administration, Assisted Care Services, available at: http://ahca.myflorida.com/medicaid/asc/index.shtml. Defendants’ eligibility restriction for the ACS program closes off the personal care option as a funding source for individuals like Ms. Haddad, who currently reside in the community.
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the state offers to institutionalize individuals in costly, segregated nursing homes for sixty days in order to later provide them with community-based services. In effect, the state makes community-based services unavailable to individuals who are currently in the community, but are at risk of institutionalization. Instead, it requires them to be institutionalized in order to receive services.9
Plaintiff Michele Haddad is a 49 year-old woman with a spinal cord injury that resulted from a motorcycle accident; she has quadriplegia and uses a wheelchair. (Haddad Dec. ¶ ¶ 4, 5, 11.) She first applied for the TBI/SCI Waiver program in November 2007 and remains on the waiting list. (Id. ¶ 6). Ms. Haddad requires assistance with activities of daily living, including transferring in and out of bed, bathing and basic hygiene needs, dressing, preparing meals, eating and assistance with her catheter and bowel program. (Id. ¶¶ 14, 15.) Following her accident, Ms. Haddad’s husband served as her primary caregiver. The couple divorced in November 2009. Despite their divorce, her ex-husband continued to live in her home and acted as her primary caregiver until March 2010, because there was no one else who could help her. (Id. ¶¶ 12-13.)
Ms. Haddad notified Defendants in March 2010 of the significant change in her caregiving arrangement, a change that put her at risk of institutionalization if she did not receive waiver services. (Id. ¶¶ 12, 16.) Since her husband left, Ms. Haddad’s 24-yearold son Anthony temporarily moved back home from Miami to assist her until she is
9 Indeed, the state has submitted an amendment to the waiver program to CMS that would “carve out” more slots from the waiver to limit them exclusively to persons currently in nursing homes rather than in the community, so that there would be even fewer spaces on the waiver program for persons like Ms. Haddad who seek to avoid going to the nursing home. (Attached at Exh. B)
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taken off the waiting list. (Id. at ¶ ¶ 13-14.) This solution is only short-term, as Anthony must return to his life in Miami soon. (Id. at ¶ 18.)
Recently, Defendants informed her that, although there were no funds for community-based services, if Ms. Haddad would move into a nursing home for 60 days, she could receive 10 hours a day of services in the community. (Id. at ¶¶ 8, 17.) Ms. Haddad does not wish to enter a nursing home in order to receive the assistance she requires. (Id. at ¶ 9.) The services Ms. Haddad would receive if she were forced to enter a nursing home would be the same types of services that she needs to remain in her community placement and are already available in her community and provided to other individuals who receive services under the TBI/SCI Waiver. (Compl. ¶ ¶¶ 36-37.) Further, the cost of providing these services to Ms. Haddad in the community is less expensive than the cost of receiving these services in an unnecessarily segregated setting, such as a nursing home. Ms. Haddad would require approximately seven hours per day of assistance with her activities of daily living (at an estimated cost of $109.34/day or $3,280.20/month).10 (Id. ¶ 35.) This cost is roughly half the cost of Ms. Haddad’s care in a nursing home (Florida reimburses nursing homes for Medicaid residents at $6,182.70/month). (Id. ¶ 34.) Ms. Haddad desires to remain living in the community, where she has an active life attending church and social events with friends, exercising, and shopping. (Haddad Dec. ¶¶ 19, 20.)
10 A declaration submitted by Dr. Johns suggests Ms. Haddad may need additional hours (10-12 hours per day). (Johns Dec. ¶ 20.) Even with this higher hour requirement, the estimated cost for Ms. Haddad’s community-based services would still be less than the reimbursement rate paid to nursing homes (using plaintiff’s rate of $15.62/hr, 12 hours of service per day would come to $187.44/day or $5623.30/month).
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Argument To obtain a preliminary injunction, the moving party must show (1) substantial likelihood of success on the merits, (2) substantial likelihood of irreparable harm, (3) that the balance of equities favors granting the injunction and (4) that the public interest would not be harmed by the injunction. ACLU v. Miami Dade County School Bd., 557 F.3d 1177, 1198 (11th Cir. 2009); McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998). “A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the ‘burden of persuasion’” as to each of the four prerequisites. See McDonald’s, 147 F.3d at 1306 (internal citations omitted). Defendants’ failure to provide community services under the TBI/SCI waiver to individuals living in the community without first requiring an individual to enter a nursing home puts Ms. Haddad at risk of institutionalization and satisfies the requirements of a preliminary injunction by showing (1) likelihood of success on the merits of her ADA Title II claim; (2) likelihood that placement in a nursing home will cause irreparable harm; (3) balance of hardships weighs in favor of plaintiff; and (4) granting an injunction is in the public interest. A. Plaintiff Is Likely to Succeed on the Merits of Her Title II Claim 1. The ADA Integration Mandate Congress enacted the ADA in 1990 to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits discrimination in access to public services by requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of
8

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the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In Olmstead, the Supreme Court construed the ADA’s integration mandate and concluded that the discrimination forbidden under Title II of the ADA includes “unnecessary segregation” and “[u]njustified isolation” of the disabled. Olmstead, 527 U.S. at 582, 600-601 (1999). “Unjustified isolation of the disabled” amounts to discrimination because it “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and “severely diminishes everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 560-61.
The ADA’s integration mandate specifies that persons with disabilities receive services in the “most integrated setting appropriate to their needs.” 28 C.F.R. § 35.130(d) (“[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”). The “most integrated setting” is “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 app. A (2009); Olmstead, 527 U.S. at 592. This mandate advances one of the principal purposes of Title II of the ADA – ending the isolation and segregation of people with disabilities. See Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005).
The Olmstead decision represents an authoritative construction of the ADA statute and implementing regulation and therefore under Alexander v. Sandoval, 532 U.S. 275 (2001), may be enforced through a private right of action. In Sandoval, a case addressing whether private individuals may sue to enforce disparate-impact regulations
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promulgated under Title VI of the Civil Rights Act of 1964, the Court held that private individuals cannot bring suit to enforce rights that are provided only by implementing regulations, where the statute does not explicitly provide both a private right of action and the statute itself has been construed to prohibit only intentional discrimination. However, Sandoval explicitly states that a private right of action lies to enforce a regulation that authoritatively construes a statute:
We do not doubt that regulations applying § 6 01’s ban on i ntentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, and it is therefore meaningless to talk about a separate cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well. 532 U.S. at 284 (internal citations omitted). The Supreme Court’s decision in Olmstead constitutes just such an authoritative construction of the statute and provides the basis for a private right of action to enforce the integration mandate. Frederick L. v. Dept. of Public Welfare, 157 F. Supp. 2d 509, 539 (E.D. Pa. 2001). Courts reviewing Olmstead claims have consistently analyzed these cases within the framework of the typical requirements for an ADA Title II claim. The general foundational requirements of a Title II claim require a plaintiff to allege that he or she (1) is a “qualified individual with a disability”; (2) was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. See Townsend v. Quasim, 328 F.3d 511, 517 n.3 (9th Cir. 2003).
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Crucially, the risk of institutionalization itself is sufficient to demonstrate a violation of Title II. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003). In Fisher, the Tenth Circuit rejected defendants’ argument that plaintiffs could not make an integration mandate challenge until they were placed in the institutions. The Court reasoned that the protections of the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Id. at 1181.11 See also Marlo M. v. Cansler, 679 F. Supp. 2d 635 (E.D.N.C. 2010) (granting preliminary injunction in case where plaintiffs were at risk of institutionalization); Ball v. Rogers, No. 00-67 (D. Ariz. April 24, 2009) (holding that failure to provide plaintiffs with needed services “threatened Plaintiffs with institutionalization …[and] forced them into institutions in order to receive their necessary care” in violation of the ADA and Rehabilitation Act).
A state’s obligation to provide services in the most integrated setting may be excused only where a state can prove that the relief sought would result in a “fundamental alteration” of the state’s service system. Olmstead, 527 U.S. at 601-03. In Townsend, an individual brought an Olmstead claim challenging the state of Washington’s decision to provide assistance with his activities of daily living only in nursing home settings, and not in the community. In rejecting the state’s fundamental alteration defense, the court explained that “policy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided,” for “precisely that alteration was at issue in
11 The Court went on to conclude that “Olmstead does not imply that disabled persons, who, by reason of a change in state policy, stand imperiled with segregation, may not bring a challenge to the state policy under the ADA’s integration regulation without first submitting to institutionalization.” Id. at 1182.
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Olmstead, and Olmstead did not regard the transfer of services to a community setting, without more, as a fundamental alteration.” Townsend, 328 F.3d at 519.
Further, “[i]f every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.” Fisher, 335 F.3d at 1183. Nor do a state’s budgetary shortages alleviate its responsibilities under Olmstead: “that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion” that providing the community services that plaintiffs seek would be a fundamental alteration. Fisher, 335 F.3d at 1181. See also Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dept. Of Public Welfare, 402 F.3d 374, 380 (3d Cir. 2005). Congress was aware that integration “will sometimes involve substantial short-term burdens, both financial and administrative,” but the longterm effects of integration “will benefit society as a whole.” Fisher, 335 F.3d at 1183.
Here, defendants limit community-based services under the TBI/SCI waiver to those already in nursing homes. This practice prevents individuals, who are at risk of entry into nursing homes from receiving the necessary services in the community that would allow them to stay out of congregate, institutional settings. Defendants instead choose to fund more expensive services in segregated settings. Plaintiff could be appropriately served in the community and desires a community placement. Providing such a placement in a manner that complies with Olmstead and the integration regulation would not fundamentally alter the state’s operation of its programs. The allegations in plaintiff’s petition thus state a claim for a Title II violation under the ADA in a straightforward application of the Olmstead principle.12
12 As stated by CMS in the following guidance provided to state Medicaid directors, the mere fact that a state is permitted to “cap” the number of individuals it serves on a particular waiver under the Medicaid
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2. Defendants’ Provision of Personal Care Services Must Comply with the Integration Regulation
In an earlier case, Florida argued that 28 C.F.R. § 35.135, entitled “Personal
Devices and Services,” exempts States from having to provide any personal services
(such as the types of services Ms. Haddad requires) to a qualified individual with a disability as part of a program modification.13 That regulation affords no defense here.
The personal devices regulation simply makes clear that Title II does not require a State
to provide personal services in a program that does not include such services. (For
example, the Department of Motor Vehicles need not provide wheelchairs to those who
wait in line for a driver’s license.) But the State already provides personal services both
to individuals in need of such services who are living in the community and are enrolled
in the State’s TBI/SCI Waiver program. Both the relevant regulations and the
Department of Justice’s authoritative interpretation of those regulations make clear that
where the State operates a program or provides a service that includes the provision of
personal services – such as a program providing nursing home services – it cannot
discriminate against individuals with disabilities in the provision of those services. 28
C.F.R. § 35.130. See also U.S. Dept. of Justice; ADA Title II Technical Assistance
Act does not by itself determine whether the requested modification would result in a fundamental alteration under the ADA:
May a State establish a limit on the total number of people who may receive services under an HCBS waiver? Yes. Under 42 U.S.C. § 441.303(f)(6), States are required to specify the number of unduplicated recipients to be served under the HCBS waivers. ... The State does not have an obligation under Medicaid law to serve more people in the HCBS waiver than the number requested by the State and approved by the Secretary. If other laws (e.g., ADA) require the State to serve more people, the State may do so using non-Medicaid funds or may request an increase in the number of people permitted under the HCBS waiver. ... Failure to seek or secure Federal Medicaid funding does not generally relieve the State of an obligation that might be derived from other legislative sources (beyond Medicaid), such as the ADA). CMS, Olmstead Update No. 4, at 4 (Jan. 10, 2001) (emphasis in original and added), available at http://www.cms.hhs.gov/smdl/downloads/smd011001a.pdf. 13 See the State of Florida’s Response in Opposition filed in Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., Dkt. 59) at 2D (Attached at Exh. A)
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Manual, § II-3.6200 (“Of course, if personal services or devices are customarily provided
to the individuals served by a public entity, such as a hospital or nursing home, then these personal services should also be provided to individuals with disabilities.”).14
The issue in this case is whether the ADA’s integration mandate requires the State
to provide services (including personal care services) in the community to plaintiff when
it would otherwise provide such services in nursing homes. As we have argued above,
the integration mandate requires exactly that.
3. Plaintiff Is Likely to Prevail on Her Title II Claim
Plaintiff can be served in the community. (Johns Dec. ¶ 20.) Plaintiff has lived in
a community placement — her family home — since leaving the Brooks Rehabilitation
Hospital following the accident that left her a person with quadriplegia. She could be
served appropriately at home with the necessary supports for her activities of daily living.
(Compl. ¶¶ 36-37.) In November 2007, Plaintiff requested community-based services
that would enable her to remain in the community. (Haddad Dec. ¶ 6.) She did not
receive these services and instead was placed on the waiver’s waiting list. (Id. ¶ 7.)
Ms. Haddad was able to remain in the community only because her husband assisted her
with all of her activities of daily living. (Id. ¶ 12.) However, in March, 2010, Ms.
Haddad’s caregiver situation changed dramatically as her husband, whom she has
14 The Technical Assistance Manual provides the Department’s interpretation of its ADA regulations, and has been relied upon by the Supreme Court. See Bragdon v. Abbott, 524 U.S. 624, 646-647 (1998). The appendix to the Title II regulations also explains that the regulation “parallels an analogous provision” in the regulations implementing Title III. 28 C.F.R. Pt. 35, App.A, p. 546 (2004) (referring to 28 C.F.R. § 36.306). The Appendix accompanying the Title III regulations, in turn, explains: “Of course, if personal services are customarily provided to the customers or clients of a public accommodation, e.g., in a hospital or senior citizen center, then these personal services should also be provided to persons with disabilities using the public accommodation.” 28 C.F.R. Pt. 36; App. B, p. 704 (2004). Because the Department of Justice’s interpretation of its own regulation merits substantial deference, see Auer v. Robbins, 519 U.S. 452, 461 (1997), this Court should reject contrary interpretations of the personal services regulation. See also Coeur Alaska Inc. v. Se. Alaska Conservation Council, __ U.S. __, 129 S.Ct. 2458, 2469 (2009).
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recently divorced, left the home, leaving her without a primary caregiver. (Id. ¶ 12.) Ms. Haddad notified defendants of this change and her elevated need for communitybased services under the waiver. (Id. ¶ 16.) Despite the heightened risk of Ms. Haddad being institutionalized due to her lack of support services, the state offered her community services only if she first entered a nursing home. (Id. ¶ 17.) The receipt of community-based services was thus conditioned on plaintiff’s willingness to relinquish her life in the community, despite clear evidence that the state could provide her with necessary services in the community at less cost than it would pay if she would enter the nursing home. (Id. ¶ 26.)
The Court in Olmstead interpreted Title II of the ADA to require public entities to make reasonable modifications to their service systems to enable individuals with disabilities to receive services in integrated, community-based settings, unless doing so would constitute a fundamental alteration. Disability Advocates, Inc., 653 F. Supp. 2d 184, 191-92 (E.D.N.Y. 2009) After plaintiff has presented a “reasonable accommodation,” a state can rebut the reasonableness of such a proposal by either showing compliance with the integration mandate or showing that the relief requested would require a fundamental alteration. Disability Advocates, Inc., 653 F. Supp. 2d at 301, n.890.
Here, plaintiff alleges that defendants are willing to provide plaintiff with services in costly institutional settings, yet refuse to allow plaintiff to remain in the community and receive similar services. (Haddad Dec. ¶¶ 23, 24, 26, 27.) Importantly, in a brief filed in a related matter, defendants have not contested Ms. Haddad’s risk of institutionalization; instead, they argued that the harm of institutionalization is not
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substantial enough to justify the requested relief. (“Response in Opposition,” Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., Dkt. 58, at 14, 15.) There is no doubt from the facts alleged that Ms. Haddad is at risk of institutionalization: the temporary assistance she currently receives from her son will terminate shortly, as he intends to leave and return to his home in Miami. (Haddad Dec. ¶ 18.) Ms. Haddad has no other supports to provide her with assistance with tasks such as transferring her in and out of bed to a wheelchair, bathing her, helping her with her hygiene needs, helping her with her catheter and bowel program, preparing meals and assisting her with eating. (Id. ¶¶ 14, 15.) Without assistance in these essential tasks, Ms. Haddad will be forced to enter a nursing home where she will no longer be able to actively participate in her community. (Id. ¶¶ 18, 19, 20)
Plaintiff’s proposed modification, on the other hand, would allow her to be served in the community, rather than force her to enter a nursing home to be eligible to receive services. This modification is consistent with Olmstead and the requirement that states serve individuals in the most integrated setting. There are no facts demonstrating that Florida has an “effectively working plan” (Olmstead, 527 U.S. at 605) for individuals with spinal cord injuries who are at risk of institutionalization. Instead, the defendants’ position, as evident in filings in the Jones matter, appears to be that the only individuals who will be able to access community services are those who will first submit to institutionalization. (“Response in Opposition,” Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., Dkt. 58, at 15.) To argue that the requested relief will result in a fundamental alteration is unpersuasive in light of the services defendants say they will provide if atrisk individuals will first enter nursing homes.
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Courts have been clear that the burden of establishing the fundamental alteration
defense is on the defendant. Benjamin v. Dept. of Public Welfare, Commonwealth of
Penn., et al., No. 09-1182 (M.D. Pa. Jan. 25, 2010 Order Denying Motion to Dismiss)
(Attached at Exh. E), citing Frederick L. v. Dept. of Public Welfare, 364 F.3d 487, 492
n.4 (3d Cir. 2004). The facts alleged here support a strong likelihood that plaintiff could
be served with a reasonable modification. By merely speculating on possible scenarios that might work a fundamental alteration,15 defendants cannot carry the burden of establishing this defense.16
B. Plaintiff Will Suffer Irreparable Harm if Defendant Is Not Enjoined
Ms. Haddad’s placement in the unnecessarily segregated nursing home will undoubtedly
harm her health and well-being. Ms. Haddad’s physician has submitted a declaration
stating that if she “were placed in a nursing home she would quickly become depressed
and her health would most likely quickly deteriorate.” (Johns Dec. ¶ 21.) These facts are
consistent with those that have led other courts to find irreparable harm. In Long v.
Benson, No. 08cv26, 2008 WL 4571903 *2 (N.D. Fla. Oct. 14, 2008), a Florida court
granted a preliminary injunction in an Olmstead case and explained that forcing the
individual to leave his community placement and enter a nursing home “will inflict an
enormous psychological blow. Also, because of the very substantial difference in
15 See the State of Florida’s Response in Opposition filed in Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., Dkt. 59) at 2D (Attached at Exh. A) 16 The plurality in Olmstead recognized the concern of displacing “persons at the top of the communitybased treatment waiting list by individuals lower down who commenced civil actions.” Olmstead, 527 U.S. at 606. Here, however, plaintiff is not asking to jump to the head of the line; instead, she is requesting that, until the court can complete a full evaluation of the state’s fundamental alteration defense, the state provide her with less costly community-based services rather than requiring her to first enter a nursing home for 60 days. Furthermore, any suggestion by defendants that Ms. Haddad seeks to skip ahead of more needy individuals is at odds with the fact that they appear willing to provide her with services (in advance of others on the waiting list), as long as she is first willing to subject herself to discrimination by entering a nursing home. (“Russell Affidavit,” Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., Dkt. 59) at 2D (Attached at Exh. A).)
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[plaintiff’s] perceived quality of life in the apartment as compared to the nursing home, each day he is required to live in the nursing home will be an irreparable harm.” In Marlo M., 679 F.Supp. 2d at 638, the court granted a preliminary injunction in an Olmstead case because the plaintiffs had “lived successfully in their community based apartments,” and, if they lost community services they would “suffer regressive consequences if moved [to a nursing home], even temporarily.” (emphasis added). And in Crabtree v. Goetz, No. 08-0939, 2008 WL 5330506 *25 (M.D. Tenn. Dec. 19, 2008), the court granted a preliminary injunction enjoining state defendants from cutting home health care services that would force plaintiffs with disabilities into institutional placements; the court explained that institutionalization “would be detrimental to [plaintiffs’] care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or death.”
The Court in Olmstead, too, recognized these very concerns, describing the adverse effects that occur with unnecessary institutional placements:
First, institutional placement … perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.... Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.... In order to receive needed [] services, persons … must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the [] services they need without similar sacrifice. Olmstead, 527 U.S. at 600-01. Should Ms. Haddad be required to enter a nursing home, as the state has offered as a condition to her receipt of services in the community, she will sacrifice these exact benefits of community integration: no longer attending church, visiting with friends, and many other activities. (Haddad Dec. ¶¶ 19, 20.)
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C. The Balance of Hardship Tips in Plaintiff’s Favor The hardship to defendant of funding services for plaintiff in a community setting
under the waiver program is negligible and is clearly outweighed by the benefit of allowing plaintiff to remain in the community setting where she has thrived for the past three years. The proposed reasonable modification to allow Ms. Haddad to receive community-based services without entering a nursing home for 60 days will save defendants and its Medicaid program money because it will cost less than her placement in a nursing home, which defendants have already offered to fund for a 60-day period. (Haddad Decl. ¶¶ 8, 17; “Russell Affidavit,” Jones v. Arnold, No. 09-cv-1170 (M.D. Fla., Dkt. 59) at 2D (Attached at Exh. A).) The lack of hardship to defendant is in stark contrast with the significant hardship Ms. Haddad faces if no injunction is granted: if forced to enter a nursing home, she must relinquish the freedom and independence of her life in the community in order to receive waiver services. The balance of hardships therefore tips in favor of granting a preliminary injunction to permit Ms. Haddad to remain in the community pending final judgment. D. Granting a Preliminary Injunction is in the Public Interest
There is a strong public interest in granting a preliminary injunction to allow plaintiff to remain in a community setting. There is a public interest in eliminating the discriminatory effects that arise from segregating persons with disabilities into institutions when they can be appropriately placed in community settings. As Olmstead explained, the unjustified segregation of persons with disabilities can stigmatize them as incapable or unworthy of participating in community life.17 Olmstead, 527 U.S. at 600.
17 See also U.S. Amicus Brief in Olmstead at 16-17, citing to 136 Cong. Rec. H2603 (daily ed. May 22, 1990) (statement of Rep. Collins) (“To be segregated is to be misunderstood, even feared,” and “only by
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In Long, the court relied on this reasoning to hold that the public interest favored allowing the plaintiff to “remain in the community rather than be isolated in the nursing home”:
If, as it ultimately turns out, treating individuals like Mr. Griffin in the community would require a fundamental alteration of the Medicaid program, so that the Secretary prevails in this litigation, little harm will have been done. To the contrary, [plaintiff’s] life will have been better, at least for a time. Long, 2008 WL 4571903 *3. In addition to the public interest in eliminating the discriminatory effects of unnecessary segregation of individuals with disabilities, the public has an interest “in protecting its pocketbook.” Florida Wildlife Fed’n v. Goldschmidt, 506 F.Supp. 350, 373 (C.D. Fla. 1981). As noted above, Ms. Haddad’s services are less expensive if provided in the community than in a nursing home. The public interest favors a preliminary injunction where such a fiscal loss would otherwise result.
Conclusion The Court should grant Ms. Haddad’s Motion for Preliminary Injunction. Plaintiff has demonstrated that the Complaint satisfies all the requirements for this court to grant a preliminary injunction, and as such, the Court has authority to grant plaintiff the relief that she seeks in this matter. With the Court’s permission, counsel for the United States will be present at any upcoming hearings.
breaking down barriers between people can we dispel the negative attitudes and myths that are the main currency of oppression.”) (Attached at Exh. F)
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Respectfully submitted this the 24th day of May, 2010. Dated: _ May 24, 2010____
Respectfully submitted, ERIC H. HOLDER, JR. Attorney General of the United States THOMAS E. PEREZ Assistant Attorney General SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division /s/ Beth A. Esposito JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief BETH A. ESPOSITO, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 305-8454 Facsimile: (202) 616-6862 beth.esposito@usdoj.gov
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CERTIFICATE OF SERVICE I hereby certify that on May 24, 2010, a copy of foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Beth A. Esposito BETH A. ESPOSITO Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 305-8454 Facsimile: (202) 616-6862 beth.esposito@usdoj.gov Counsel for United States
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MICHELE HADDAD,

Plaintiff v.

Case No: 3:10-cv-414-J-99MMH-TEM

THOMAS W. ARNOLD, in his official Capacity as Secretary, Florida Agency for Health Care Administration, and
DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health,
Defendants
_________________________________________/
DEFENDANTS’ RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
The Defendants, THOMAS W. ARNOLD, in his official capacity as the Secretary of
the Florida Agency for Health Care Administration, and DR. ANA VIAMONTE ROS, in
her official capacity as Surgeon General, Florida Department of Health, by and through the
undersigned counsel, hereby submit this, their response in opposition to Plaintiff Michele
Haddad‟s Motion for Preliminary Injunction. As grounds therefore, Defendants submit the
following Memorandum of Law, which is attached hereto and is incorporated herein by
reference.

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MEMORANDUM OF LAW I. Legal Standard
To obtain a preliminary injunction, Plaintiff, Michele Haddad (“Haddad”) must demonstrate that: (1) she has a substantial likelihood of prevailing on the merits; (2) she will suffer irreparable harm unless the injunction issues; (3) the threatened injury to Haddad outweighs whatever damage the proposed injunction may cause the Defendants; and (4) the injunction, if issued, would not be adverse to the public interest. Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. Ga. 2005). Plaintiff has the burden of persuasion in all of the four requirements for preliminary injunctive relief, and she must “clearly carry” this burden. United States v. Lambert, 695 F.2d 536, 540 (11th Cir. Fla. 1983) (citing Texas v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir. 1975)); See also Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. Fla. 1974).
In addition, the law distinguishes between preliminary injunctions that seek to maintain the status quo and those that seek some relief beyond the status quo. The instant Motion for Preliminary Injunction falls into the latter category, as it asks the Court to order the Defendants to undertake an activity they are currently not undertaking (i.e., to provide for personal care assistance in Haddad‟s home). In the Eleventh Circuit, “[w]hen a preliminary injunction goes beyond the status quo and seeks to force one party to act, it becomes a mandatory or affirmative injunction and the burden placed on the moving party is increased.” Mercedes-Benz U.S. Int'l, Inc. v. Cobasys, LLC, 605 F. Supp. 2d 1189, 1196 (N.D. Ala. 2009) (emphasis added). Indeed, “when a plaintiff applies for a mandatory preliminary injunction, such relief 'should not be granted except in rare
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instances in which the facts and law are clearly in favor of the moving party.‟” Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F.2d 560, 561 (5th Cir. La. 1971) (quoting Miami Beach Federal Sav. & Loan Asso. v. Callander, 256 F.2d 410, 415 (5th Cir. Fla. 1958)) (emphasis added). Mandatory injunctions are “particularly disfavored” by the courts. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. Fla. 1976) (emphasis added).
As demonstrated below, Plaintiff cannot clearly carry the heavy burden of persuasion regarding the four requirements for mandatory preliminary injunctions. Neither the facts nor the law “clearly” favor the Plaintiff. As such, this Court should deny Plaintiff‟s Motion for Preliminary Injunction. II. Haddad Cannot Demonstrate a Substantial Likelihood of Prevailing on the
Merits Haddad does not have a substantial likelihood of prevailing on the merits of this case. First, Haddad does not and cannot allege any violation of the black letter law of the Medicaid Act, the ADA, or the ADA‟s implementing regulations. Second, Haddad‟s case relies on an “interpretation” of regulatory guidance regarding the ADA to re-write the federal Medicaid statute. And third, the Defendants have consistently expanded home and community-based services for the disabled for three decades, belying any claim of intentional discrimination against Haddad or others similarly situated. A. Haddad does not allege a clear violation of the Medicaid Act or the
ADA. This Court must first note that Haddad does not and cannot point to any violation of the black letter of the Medicaid Act or of the ADA in bringing her claim. As the Defendants
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will discuss further herein, the federal Medicaid statute specifically makes the type of service Haddad seeks here, personal care assistance, an optional Medicaid service. The federal Medicaid also makes home and community-based waiver services (which can include personal care assistance) optional, and allows states that opt to provide these services to cap the number of persons served. Thus, Florida has inarguably followed federal Medicaid law in choosing not to provide personal care assistance through its Medicaid program, and has followed the law in providing home and community-based services to a limited number of persons.
In addition, Haddad does not point to any statutory provision of the ADA that supports her cause. Title II of the ADA, which pertains to public programs and services, generally states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The regulations to the ADA, moreover, state that the ADA “does not require a public entity to provide to individuals with disabilities … services of a personal nature including assistance in eating, toileting, or dressing.” 42 C.F.R. § 35.135. Accordingly, the Defendants‟ decision to generally exclude personal care services from Medicaid coverage complies with the black letter of the ADA and its implementing regulations.
B. Defendants’ Conduct Does Not Constitute Discrimination Under the ADA
Rather than point to the black letter of the federal Medicaid Act or the ADA, Haddad bases her case on the ADA implementing regulations. First, Haddad asks this court to
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enforce what is known as the ADA‟s “integration mandate” which is found at 28 C.F.R. Section 35.130(d), and which states: “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” See Complaint, e.g., ¶¶ 49, 52, 74, Relief Requested. Second, Haddad essentially asks this Court to ignore the ADA‟s explicit exclusion of personal care services from its purview. This Court should reject both arguments. The ADA‟s implementing regulations do not create a private right of action, and this Court cannot ignore the plain meaning of the regulation excluding personal care assistance from the ADA‟s reach.
C. The Regulations Implementing Title II of the ADA, Including the “Integration Mandate”, are Not Enforceable by Private Right of Action
The “integration mandate” in Title II of the ADA does not create a private right of action. As the Eleventh Circuit held in a recent decision, “[w]hile the ADA directed the Attorney General to promulgate regulations implementing Part II, 42 U.S.C. § 12134, the purpose of those 22 regulations is to provide standards for compliance with the ADA, id. § 12134(c), not to give individuals a right to sue if compliance with those standards is not met.” Am. Ass'n of People with Disabilities v. Harris, 2010 U.S. App. LEXIS 9615, at 28 (11th Cir. Fla. May 11, 2010) (emphasis added). Here, Haddad alleges that compliance with the “integration mandate” has not been met and that this confers on her the right to bring an action against the Defendants. As the Eleventh Circuit has held in Am. Ass‟n of People with Disabilities, this is not the case.
Plaintiff may argue that she is not seeking to independently enforce the “integration mandate,” but is rather attempting to enforce the ADA itself, the scope of which is
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interpreted and defined by the “integration mandate” regulation. However, the technical violation of the “integration mandate” that Plaintiff alleges here cannot constitute a violation of § 12132, as Plaintiff alleges. Section 12132 provides: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity” (emphasis added). Here, the program from which the Plaintiff alleges she has been “excluded from participating in or [ ] denied the benefits of” (the TBI/SCI Waiver program) is only available to individuals with the same disability as the Plaintiff. By definition, therefore, any exclusion, denial, or discrimination cannot be “by reason of such disability.” Any such exclusion, denial, or discrimination would have to be for some other reason. The Plaintiff has therefore failed to allege a violation of § 12132, and cannot enforce the “integration mandate.”
D. This Court must respect the plain meaning the of the ADA regulations that do not require a public entity to provide personal care services.
Here, Haddad seeks assistance transferring from her bed to her wheelchair and from her wheelchair back to her bed, and assistance dressing, grooming, toileting, and with other activities of daily life. Complaint, ¶ 21-22. Plaintiff contends that the ADA requires the provision of such personal care services. This is not the case. To the contrary, the ADA regulations specifically exclude personal care services from the ADA‟s purview.
Section 35.135 of the ADA‟s implementing regulations states that the ADA “does not require a public entity to provide to individuals with disabilities…services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). In its Statement of Interest in this case, the United States Department of Justice (DOJ) argues
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that 28 C.F.R. § 35.135 “affords no defense here.” Statement of Interest of the United States of America, p. 13. The DOJ contends that § 35.135 “simply makes clear that Title II does not require a State to provide personal services in a program that does not include such services. (For example, the Department of Motor Vehicles need not provide wheelchairs to those who wait in line for a driver‟s license.)” Id (emphasis in original). The DOJ implies that, because Florida allegedly provides personal care services to Medicaid recipients in the nursing home, it must also provide these services in the community under the “integration mandate.” Id. This is made clear, the DOJ contends, by its own “authoritative interpretation” of 28 C.F.R. § 35.135. Id. This “interpretation,” however, is entitled to no deference.
Simply stated, the DOJ‟s “interpretation” of 28 C.F.R. § 35.135 is not an interpretation at all. It is an attempt to carve out an exception to this regulation that is not present in the text. The DOJ wants this Court to say that the regulation contains an exception for public entities that provide personal care services. This is an improper attempt to amend the regulation without complying with the requirements of the federal Administrative Procedures Act.
42 C.F.R. § 35.135 has a plain meaning and is unambiguous. It is not subject to “interpretation” as Courts cannot and do not interpret regulations that have a plain meaning. Nor do courts defer to agency “interpretations” of unambiguous regulations. As the United States Court of Appeals for the Eleventh Circuit stated in Charter Fed. Sav. & Loan Ass‟n v. Office of Thrift Supervision, 912 F.2d 1569, 1580-1 (11th Cir. 1990), “where the language selected by the drafters is clear and unequivocal, the courts are bound to give effect to the
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plain meaning of the chosen words [of a regulation] and no duty of interpretation arises.” Id., (citing KCMC, Inc. v. FCC, 600 F.2d 546, 549 (5th Cir. 1979)).
Likewise, the United States Supreme Court has held that “deference is warranted only when the language of the regulation is ambiguous.” Christensen v. Harris County, 529 U.S. 576, 588 (U.S. 2000). In Christensen, the Court found that the regulation at issue was not ambiguous. “To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Id. This would be the case in the instant matter as well.
42 C.F.R. § 35.135 could not be clearer: “This part does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). There is no ambiguity or need for interpretation, and there is no exception for public entities that provide personal care services. Indeed, the DOJ cannot identify a single ambiguous term or phrase in the regulation – and in the absence of ambiguity, federal courts prohibit interpretation.
In its Statement of Interest, the DOJ cites the ADA Title II Technical Assistance Manual, § II-3.6200, which, in reference to the provision in § 35.135, states: “Of course, if personal services or devices are customarily provided to the individuals served by a public entity, such as a hospital or nursing home, then these personal services should also be provided to individuals with disabilities.” This statement, which is not itself a regulation, says nothing about the provision of personal care services in the community. On its face, it
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is clearly referring to the provision of personal care services to individuals with disabilities in a context where such services are “customarily provided to the individuals served by a public entity, such as a hospital or nursing home” (emphasis added). The plain meaning of this provision is that a hospital or nursing home should not take § 35.135 to mean that they can deny personal care services to individuals with disabilities who are in their custody.
Thus, § 35.135 and the Guidance that accompanies it exempt public entities from having to provide personal care services outside of a custodial context such as a nursing home or hospital. The DOJ then employs a classic piece of circular logic. According to the DOJ, once a public entity follows its Guidance and provides personal care assistance in a nursing home, its “interpretation” of § 35.135 takes effect and the public entity is required to provide personal care assistance in the community as well. Section 35.135 and its interpretive Guidance thus become a tautological trap. The Guidance requires nursing homes to provide personal care, but once they do the DOJ will “interpret” its regulations to require personal care in the community. This Court should not allow such games to be played with an unambiguous regulation.
This Court should also note that personal care services are not among the essential “services, programs, and activities” that the Florida Medicaid Program provides in nursing facilities. 42 C.F.R. § 35.130(d). The Florida Medicaid Program pays for “24-hour-a-day nursing and rehabilitative services for a recipient in a nursing facility licensed under part II of chapter 400.” § 409.905(8), Florida Statutes (emphasis added). No doubt, personal care services are provided in nursing facilities. However, nursing facilities provide these services incidentally from the custodial relationship between the nursing facility and the Medicaid
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recipient, in order to keep the residents in optimum health. Meals and snacks are also incidentally provided in nursing facilities. Under the DOJ‟s “interpretation” of its regulation, the “integration mandate” would mean that the Florida Medicaid Program has to provide meals and snacks to disabled Medicaid recipients in the community. The Florida Medicaid Program requires nursing facilities to provide “a clean comfortable mattress, pillows, clean linens and bedding appropriate to the weather and climate, towels and washcloths, functional furniture appropriate to the resident‟s needs, and individual closet space with clothes racks and shelves.” Florida Medicaid Nursing Facilities Coverage and Limitations Handbook, p. 2-9. The tautological interpretation of the “integration mandate” that the Plaintiff and DOJ espouse would require the Florida Medicaid Program to assure that all disabled Medicaid recipients in the community have these items in the community; including the requirement for adequate closet space. This clearly goes too far, but it is the same absurd logic that lies behind the Plaintiff and DOJ‟s claim that the “integration mandate” requires the provision of personal care services in the community.
The regulations implementing Title II of the ADA are clear. Florida is required to administer its services “in the most integrated setting appropriate,” but this cannot be read to require the Florida Medicaid Program to provide “services of a personal nature,” which is precisely the kind of services Plaintiff is requesting here. The ADA does not require the provision of these services.
E. The ADA Neither Abrogates nor Amends the Black Letter Provisions of the Medicaid Act
The fundamental question that lies at the heart of this lawsuit relates to the relationship between the ADA and the Medicaid Act. To resolve this case, this Court will
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have to examine how these two statutes relate to one another. To do this, this Court will need an understanding of both laws.
1. Medicaid Medicaid is a joint federal-state venture created by federal statute, Title XIX of the Social Security Act of 1965, as amended. 42 U.S.C. § 1396 et seq. In order to participate in Medicaid, a state must submit a plan to the federal government outlining its program to fund medical services for the poor and needy in accordance with the federal Medicaid Act. If the federal government approves the plan, it “then subsidizes a certain portion of the financial obligations which the state has agreed to bear.” Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997) (citing Silver v. Baggiano, 804 F.2d 1211 (11th Cir. 1986)). Currently, with the addition of stimulus funds pursuant to the American Recovery and Reinvestment Act of 2009, the federal government provides approximately 68% of the money in Florida‟s Medicaid Program. When the stimulus period ends, the federal contribution will likely return to approximately 55%. The federal Medicaid Act defines “medical assistance” to mean payment for all or part of the services listed in 42 U.S.C. § 1396d(a)(1) through (28). 42 U.S.C. § 1396d(a). Only seven of the twenty-eight services listed are mandatory, meaning that a state must include these seven services in its state plan to participate in Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services for adults over the age of 21 include inpatient hospital services, outpatient hospital services, laboratory and x-ray services, nursing facility services, nurse-midwife services, and certified nurse practitioner services. See 42 U.S.C. § 1396a(a)(10)(A) (requiring state plans to provide at least the services listed in § 1396d(a)(1)
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through (5), (17) and (21)). Thus, Florida is required by federal law to make nursing facility services available and, if these services are medically necessary for Plaintiff, she is entitled to them as a matter of federal law. See e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).
Florida may include any of the other twenty-one services listed in 42 U.S.C. § 1396d(a), including personal care services. However, it is essential to note that Florida is not required to provide such services to comply with the Medicaid Act, and, to the extent that Florida opts not to provide any of these twenty-one other services, Florida‟s Medicaid recipients to do not have an entitlement to those services.
In addition to the Medicaid services offered under a state‟s Medicaid State Plan, a state may also enter into an agreement with the federal government to offer services under a waiver program, such as the HCBS waivers. See 42 U.S.C. § 1396n(c). Under waiver programs such as the TBI/SCI Waiver, the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation. 42 U.S.C. § 1396n(c)(3). Most importantly for the purposes of this case, the Medicaid Act permits waiver of the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B). Id. This provision requires state plans to offer the services in 42 U.S.C. § 1396d(a) to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396a(a)(10)(B). By providing for a waiver of the comparability requirement, the Medicaid Act permits states to discriminate on the basis of disability. Indeed, as a result of the various waivers, the Florida Medicaid Program currently provides increased services to persons with disabilities like
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HIV/AIDS, Austism, and mental retardation, while simultaneously offering no enhanced services to persons with other types of disabling conditions.
The Medicaid Act also permits waiver of Medicaid requirements with respect to limiting the number of persons receiving waiver services and eliminating the statewideness requirement. While a state must provide services under its State Plan to everyone who meets the state‟s Medicaid eligibility requirements, the waiver law specifically allows states to “cap” the number of persons receiving waiver services. 42 U.S.C. § 1396n(c)(9)-(10). Waiver of statewideness means that states can limit the provision of HCBS services to certain parts of the state as opposed to persons living throughout the state. 42 U.S.C. § 1396n(c)(3).
It is important to note that while the federal Medicaid Act permits states to create HCBS waiver programs, it does not require states to do so. As the Medicaid Act states, “a State plan approved under this subchapter may include as „medical assistance‟ under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by” the federal government. 42 U.S.C. § 1396n(c)(1) (emphasis added). Neither does the Medicaid Act require the federal government to approve states‟ HCBS waiver programs. The Secretary of the Department of Health and Human Services “may by waiver” allow states to create HCBS programs. Id. (emphasis added).
It is not disputed that the Florida Medicaid program does not provide in-home personal care assistance for adults like Plaintiff. While Florida does provide in-home personal care assistance through its TBI/SCI Waiver, Florida has opted to place a cap on the number of persons enrolled in this program. The TBI/SCI Waiver program had no available
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opening at the time Plaintiff applied and she was thus placed on a waiting list. In the Complaint and Motion for Preliminary Injunction, Plaintiff does not allege that Florida has violated the Medicaid Act by failing to provide her with in-home personal care assistance. However, in both the Complaint and Motion for Preliminary Injunction she is requesting the Court to order Defendants to provide her with such services. Such an order would effectively nullify one or more provisions of the Medicaid Act.
2. Analysis of Interplay Between the ADA and the Medicaid Act To grant Haddad‟s Motion for Preliminary Injunction, the Court will have to hold that the ADA has invalidated one or more provisions of the Medicaid Act. For example, the Court would have to invalidate the Medicaid Act‟s explicit statement that the only mandatory services are those found at 42 U.S.C. § 1396d(a)(1) through (5), (17), and (21) by converting personal care assistance from an optional service to a mandatory service. 42 U.S.C. § 1396a(a)(10)(A). In the alternative, an injunction order would invalidate the provision in 42 U.S.C. § 1396n(c)(1) declaring that HCBS waiver programs are optional for states and that states can cap enrollment in such programs. As such, the only way that Plaintiff‟s claims could be sustained is if the ADA were interpreted to amend (or partially repeal) the Medicaid Act by implication, by either amending/repealing 42 U.S.C. § 1396a(a)(10)(A), which makes personal care services optional for states, or by converting “may” in 42 U.S.C. § 1396n(c)(1) to “shall” . It is clear that an inherent assumption of Plaintiff‟s claim is that the Medicaid Act has been impliedly amended by the ADA. However, the criteria for statutory amendment by implication are not met here. The Supreme Court has held that “[a]mendments by implication, like repeals by
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implication, are not favored.” United States v. Welden, 377 U.S. 95, 103 (U.S. 1964). In a case where “two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (U.S. 1974). The Medicaid Act and the ADA are clearly capable of co-existence, and the ADA contains no clear congressional intent to amend the Medicaid Act.
Moreover, as to the administration of the Medicaid program, the Medicaid Act is a more specific statute than the ADA. Indeed, the ADA generally prohibits discrimination, while the Medicaid Act ordinarily prohibits discrimination but waives this prohibition in a specific, public health policy context. According to the U.S. Supreme Court, “it is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (U.S. 1976). The more specific statute controls “regardless of the priority of enactment.” Morton, at 551. See also Ardestani v. United States Dep't of Justice, INS, 904 F.2d 1505, 1513 (11th Cir. 1990) (“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one”).
The ADA does not amend the Medicaid Act. In fact, however, the Plaintiff is not even alleging that the ADA has amended the Medicaid Act, but rather that a DOJ regulation has amended the Medicaid Act. Essentially Plaintiff is arguing that the “integration mandate” changes the entire structure of the Medicaid Act. But as noted above, § 12132 does not go nearly as far as the “integration mandate.” Lacking this regulatory provision, no
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court would find that a state providing nursing facility services to individuals with disabilities through its Medicaid program, as the Medicaid Act requires states to do, constitutes exclusion from participation in or a denial of the benefits of the Medicaid program. Of course, no regulation can amend a statute.
Even if it were found that the ADA, or more specifically, the “integration mandate” in the ADA regulations, does in fact amend the Medicaid Act by implication, there is no basis in law or logic to support Plaintiff‟s position as to the character and effect of that amendment. The Plaintiff wants the ADA‟s prohibition of discrimination to slice into the Medicaid Act and, with surgical precision, add, change, or remove a word or two here and there, leaving the overall structure of the Medicaid Act and the HCBS waiver programs intact. The Plaintiff, however, fails to provide a rational basis for why the TBI/SCI Waiver program itself would withstand the wrath of the ADA, as the TBI/SCI Waiver program is a service that blatantly discriminates on the basis of disability. The TBI/SCI Waiver program is only available to persons with a traumatic brain injury or a spinal cord injury. It is not available to persons with any other sort of disability, such as autism or cerebral palsy, nor is it available to individuals who have no disabilities at all.
In fact, all HCBS waiver programs discriminate in the class of persons they serve. The Medicaid Act permits and contemplates such discrimination. 42 U.S.C. § 1396n(c)(1), (2), (3), (4), and (7). What is more, regulations of the Centers for Medicare and Medicaid Services (CMS) implementing the Medicaid Act require discrimination on the basis of diagnosis (or disability) in the provision of HCBS services. CMS requires that if a State “furnishes home and community-based services… under a waiver granted under this
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subpart, the waiver request must…[b]e limited to one of the following target groups or any subgroup thereof that the State may define: (i) Aged or disabled, or both. (ii) Mentally retarded or developmentally disabled, or both. (iii) Mentally ill.” 42 C.F.R. § 441.301(b)(6) (emphasis added).
The HCBS waiver programs discriminate based on disability in order to provide persons with disabilities services that would not otherwise be available to them. But they still discriminate on the basis of disability. As a result, there are persons with disabilities who are “excluded from participation in or [ ] denied the benefits of” HCBS waiver programs that are targeted to persons with other disabilities. See 42 U.S.C. § 12132. If the ADA‟s prohibition of discrimination “by reason of…disability” amends the Medicaid Act, then surely the HCBS waiver programs would not survive.
A grant of Plaintiff‟s Motion for Preliminary Injunction will essentially require a finding that the ADA amends the Medicaid Act by prohibiting a certain kind of discrimination (i.e., institutionalization of persons with disabilities) while permitting another kind of discrimination (i.e., creating an HCBS waiver program exclusively for persons with a spinal cord injury). But this makes no sense. If the ADA trumps Medicaid, it must do so in a comprehensive and coherent way. If the ADA indeed prohibits Florida from denying personal care services in the community, then it must necessarily also prohibit Florida from offering an inherently discriminatory program like the TBI/SCI Waiver program.
F. The Requested Relief Would Constitute a Fundamental Alteration of Florida’s Medicaid Program
The regulations implementing Title II of the ADA provide that a “public entity shall make reasonable modifications in policies, practices, or procedures when the modifications
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are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Here, any interpretation that allows the ADA (or its regulations) to trump the Medicaid Act would involve a fundamental alteration of the Medicaid Program. If, contrary to the Medicaid Act, this Court uses the ADA to convert personal care assistance into a mandatory Medicaid service, it will create federal entitlement to personal care assistance in all 2.7 million Medicaid recipients in Florida. If, contrary to the Medicaid Act, this Court uses the ADA to make waiver services mandatory and removes states‟ ability to cap the waivers, it will destroy the states‟ reasonably delegated responsibility to ensure the adequacy of its provider networks and to create other safeguards prior to providing community-based services. As far as Defendants are aware, no other court has required a state Medicaid program to expand a waiver based on the ADA or Rehab Act. Finally, if this Court strikes down waivers entirely, it will functionally obliterate Medicaid.
While it does not make sense to interpret the ADA to uphold the HCBS waiver programs but prohibit institutionalization of disabled individuals, if the Court were to find that this is what the ADA requires, such would still constitute a fundamental alteration of the Florida Medicaid Program, because the State of Florida would be required by the federal Medicaid Act to provide assurances to CMS that it will provide “necessary safeguards” for a greatly increased number of recipients and “financial accountability for funds expended” for a greatly increased amount of services. 42 U.S.C. § 1396n(c)(2)(A).
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In addition, as demonstrated in the Affidavit of Kristen Russell dated April 29, 2010, and attached to this Response as Exhibit A, if the State of Florida were forced to place Ms. Haddad on the TBI/SCI Waiver program, they would be forced to reduce services that others on the TBI/SCI Waiver program are currently receiving. As those individuals on the TBI/SCI Waiver program are entitled to the services they are receiving, this would surely constitute a fundamental alteration. Such a modification is not reasonable.
The case law Plaintiff cites in the Motion for Preliminary Injunction regarding reasonable modifications is instructive here. In Alexander v. Choate, 469 U.S. 287 (U.S. 1985), the U.S. Supreme Court made clear that while state Medicaid programs may not discriminate against the disabled, neither are such programs bound to provide specialized services to the disabled that are not available to other Medicaid recipients, “as long as care and services are provided in „the best interests of the recipients.‟” Alexander v. Choate, 469 U.S. 287, 303 (U.S. 1985) (Citing 42 U. S. C. § 1396a(a)(19)). The Rehab Act, the Court held, does not require states to alter the “definition of the benefit being offered simply to meet the reality that the handicapped have greater medical needs.” Id., at 304. Here, Plaintiff is essentially asking the Court to order Defendant to redefine the benefits offered under the Florida Medicaid Program to meet the heightened needs of the disabled.
1. Florida’s Comprehensive, Effectively Working Plan Plaintiff‟s requested relief would also constitute a fundamental alteration in that it would disrupt Florida‟s “comprehensive, effectively working plan” to provide HCBS to those qualified individuals who desire such services. See Olmstead, at 606 (“If, for example, [a] State were to demonstrate that it had a comprehensive, effectively working plan for
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placing qualified persons with…disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met”). In Arc of Wash. State Inc. v. Braddock, 427 F.3d 615 (9th Cir. Wash. 2005), the Ninth Circuit held that Washington was not required by the ADA to expand its waiver program because Washington‟s HCBS program “(1) [was] sizeable, with a cap that ha[d] increased substantially over the past two decades; (2) [was] full; (3) [was] available to all Medicaideligible disabled persons as slots become available, based only on their [health needs] and position on the waiting list; (4) ha[d] already significantly reduced the size of the state's institutionalized population.” Arc of Wash. State Inc., at 622.
Florida has a “comprehensive, effectively working plan” to provide HCBS to those qualified individuals who desire such services. As shown in the Affidavit of Elizabeth Y. Kidder, dated June 2, 2010, the Florida Medicaid Program administers 14 HCBS waiver programs. These programs began in the 1980s, and have consistently expanded since that time. Florida added new HCBS waiver programs in 1982, 1985, 1989, 1991, 1995, 1998, 1999, 2004, 2006, and 2008. As shown in the Affidavit of S. Michele Hudson, dated June 2, 2010, the following HCBS waivers have all expanded over the past four years: the Adult Cystic Fibrosis Waiver, the Alzheimer‟s Disease Waiver, the Developmental Disabilities Waiver (Tier 1), the Family Dysautonomia Waiver, the Family Supported Living Waiver, the Nursing Home Diversion Waiver, and the TBI/SCI Waiver. Indeed, the Florida Medicaid Program now serves more nursing home-eligible persons outside of nursing homes than in them in any given month. See Affidavit of S. Michele Hudson, dated June 2, 2010.
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The TBI/SCI Waiver program in particular has grown. Implemented in 1999, the TBI/SCI Waiver program expanded from an average monthly caseload of 245 persons (Fiscal Year 2005-2006) to 309 persons (Fiscal Year 2008-2009). Id. In addition, TBI/SCI Waiver program expenditures have increased from $5,874,815 (Fiscal Year 2005-2006) to $10,066,381 (Fiscal Year 2008-2009). Id. As shown in the April 29, 2010, Affidavit of Kristen Russell (attached to this Response as Exhibit A), the TBI/SCI Waiver program is full, with no funded slots available. In addition, the TBI/SCI Waiver program is available to all Medicaid eligible individuals with a traumatic brain injury or spinal cord injury based only on their health needs and position on the waiting list. What is more, the vast majority of the SSI population in the Florida Medicaid Program are currently in the community and not in institutions. In Fiscal Year 2008-2009, the Florida Medicaid Program had an average monthly caseload of about 311,000 SSI persons. Id. Of those, only about 45,000, or 14%, were residing in nursing facilities in any given month. Id.
It is clear that Florida has a “comprehensive, effectively working plan” to provide HCBS to qualified individuals who desire such services. In such a case, “a court would have no warrant effectively to order displacement of persons at the top of the communitybased treatment waiting list by individuals lower down who commenced civil actions.” Olmstead v. L.C. ex rel. Zimring, at584. Such “displacement” is precisely what Plaintiff‟s request in the instant case would cause. Given Florida‟s “comprehensive, effectively working plan,” such would certainly constitute an impermissible fundamental alteration.
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2. Costs Plaintiff alleges that the requested relief constitutes a “reasonable modification” because the provision of services would be less expensive in the community than in a nursing facility. See e.g., Motion for Preliminary Injunction, p. 20-21. However, the cost analysis is not as simple as Plaintiff makes it out to be. As the Affidavit of Kristen Russell, dated June 2, 2010, demonstrates, less than 10% of the individuals on the waiting list for the TBI/SCI Waiver program currently reside in a nursing facility. Yet all of these persons are requesting at-home services through the TBI/SCI Waiver program. Unless an individual would have entered a nursing facility for a sufficiently long period of time but for the waiver program, the Defendants realize no cost savings by placing such individual in the TBI/SCI Waiver program. III. Plaintiff Will Not Incur Any Irreparable Harm In order to qualify for a preliminary injunction, Plaintiff would have to show that she will suffer irreparable harm. Mony Secs. Corp. v. Vasquez, 238 F. Supp. 2d 1304 (M.D. Fla. 2002). Plaintiff fails to show that any harm she would incur by entering a nursing facility would be irreparable. The case law cited by Plaintiff is inapplicable to the present situation. She cites McMillan v. McCrimon, 807 F. Supp. 475 (C.D. Ill. 1992), for the principle that the loss of Medicaid benefits constitutes irreparable harm. In McMillan, the district court found that the plaintiffs in that case would not receive the services and care they required in a nursing facility. McMillan, at 479. In the instant case, Plaintiff does not contend that she would not receive the medical services she needs if she were institutionalized in a nursing facility.
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Rather, she claims that the fact that such a facility is the only place she can receive the services she needs constitutes a failure of the Defendant to provide services in the most integrated setting pursuant to ADA regulations. McMillan does not stand for the principle that receipt of services in a less integrated setting constitutes irreparable harm.
Plaintiff likewise cites Edmonds v. Levine, 417 F. Supp. 2d 1323 (S.D. Fla. 2006), to show that the denial of medical benefits, and the resulting loss of services, constitutes irreparable harm. In the Edmonds case, the state had discontinued coverage of the prescription drugs that the plaintiffs were already receiving. Edmonds, at 1326. The Court held that this denial of medical services constituted irreparable harm. Id., at 1342. This is not the situation in the instant case. Plaintiff is not being denied medical services. To the extent that she needs personal care assistance, she would receive such services in a nursing facility.
Plaintiff also cites Mitson v. Coler, 670 F. Supp. 1568 (S.D. Fla. 1987), which held that a preliminary injunction was appropriate where plaintiffs risked losing their medical services, in this case nursing facility services. The irreparable harm in Mitson, being forced out of a nursing facility, is the exact opposite of the irreparable harm that Plaintiff is alleging: being “forced” to enter a nursing facility. Unlike the plaintiffs in Mitson, Plaintiff does not risk losing any services she is currently receiving. Her complaint is that she cannot receive the services in the setting of her choice.
Even if Plaintiff did enter a nursing home, this harm would not be “irreparable” as Ms. Haddad would be eligible after 60 days for the Nursing Home Transition program, which is funded and which would allow Ms. Haddad to be transferred to the TBI/SCI
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Waiver. See April 29, 2010, Affidavit of Kristen Russell, attached to this Response as Exhibit A. The Nursing Home Transition Program is independently funded by the Florida Legislature through the nursing home line item. This program allows for eligible nursing home residents to transition to various HCBS waiver programs once they have been in a nursing facility at least 60 consecutive days. As part of the settlement agreement in Long v. Benson, Case No. 4:08-cv-RH-WCS, a lawsuit in the United States District Court for the Northern District of Florida which was also brought under Title II of the ADA and Section 504 of the Rehab Act, AHCA made several promises and assurances regarding the implementation of the Nursing Home Transition Program. It should be noted that one of Plaintiff‟s attorneys was involved in the settlement negotiations in Long as counsel for the plaintiffs in that case. He is apparently now taking the position that this compromise constitutes “irreparable harm.” See Affidavit of Elizabeth Y. Kidder, dated June 1, 2010. IV. The Balance of Hardships Weighs in Favor of the Defendants
The Court must balance the harms in determining whether a preliminary injunction should issue. Plaintiff contends that the threatened harm to her outweighs any harm to Defendant. Contrary to Plaintiff‟s assertions, she is not asking the Defendants to simply spend less of their Medicaid funds and permit her to continue to reside in her home. To the extent that the Plaintiff is asking the Court to make personal care assistance services mandatory for Florida or to “uncap” the TBI/SCI Waiver, the state would be forced to assemble a massive personal care assistance provider network.
The case law cited by Plaintiff in this Motion is inapposite. She cites Edmonds as finding that the “harm to plaintiffs of being deprived of essential medical services outweighs
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any harm to state.” In fact, the defendants in Edmonds never claimed that they would incur any hardship. Since the plaintiffs did claim they would incur hardship, the Court concluded that the balance of hardships weighed in their favor. Edmonds, at 1342. Here, the Defendants would incur significant harm if a preliminary injunction is issued.
Plaintiff also cites Illinois Hospital Asso. v. Illinois Dep't of Public Aid, 576 F. Supp. 360 (N.D. Ill. 1983), for the principle that a state cannot characterize its duties to comply with the requirements of an under an elective program such as Medicaid as constituting a hardship. Id. However, this does not describe the Defendants in the instant case. Defendants are not claiming that any of the duties imposed by the Medicaid program constitute a hardship. Rather, Defendants contend that the additional burdens that the Court would be imposing by granting the requested injunctive relief, burdens that go beyond the requirements of the Medicaid program, would constitute a hardship. Furthermore, Illinois Hospital Asso. is not an example of a court weighing burdens in favor of plaintiffs, as the defendant in that case did not claim any hardship. V. The Public Interest Will Be Harmed if Plaintiff is Granted a Preliminary
Injunction Plaintiff has the burden of showing that the preliminary injunctive relief they seek would serve the public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. Fla. 2005). Plaintiff claims that the public interest will be served by an order granting a preliminary injunction in her favor. However, the only person such a preliminary injunction would serve would be Plaintiff. To the extent that the preliminary injunction required the State of Florida to add personal care services to its Medicaid State Plan or
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“uncap” enrollment in its TBI/SCI Waiver, Florida would be required to divert funds from
other sources, potentially injuring other Medicaid recipients. To the extent that the
preliminary injunction required Defendants to “jump” Plaintiff to the head of the TBI/SCI
Waiver waiting list, the state would be required to deny or delay benefits to recipients who
had been higher on the waiting list. Such a result would be inequitable and contrary to the
public interest. Plaintiff fails to address this problem in her Motion.
CONCLUSION For the reasons stated above, this Court should deny Plaintiff‟s Motion for
Preliminary Injunction.
Respectfully submitted this 2nd day of June, 2010.
AGENCY FOR HEALTH CARE ADMINISTRATION
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
BY: /s/ William M. Blocker II William M. Blocker II Fla. Bar No. 295700 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308
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(850) 922-5873; (850) 921-0158 Fax E-mail: William.blocker@ahca.myflorida.com
DEPARTMENT OF HEALTH
BY: /s/ Enoch Jonathan Whitney Enoch Jonathan Whitney Fla. Bar No. 13063 Office of the Attorney General 400 S Monroe St # PL-01 Tallahassee, Florida 32399-6536 (850) 414-3672; (850) 488-4872 Fax Email: Jon.Whitney@myfloridalegal.com
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 2nd day of June, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
27

 </s> UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

MICHELE HADDAD,

Plaintiff,

vs.

Case No. 3:10-cv-414-J-34TEM

ELIZABETH DUDEK, in her official capacity as Secretary, Florida Agency for Health Care Administration, and

DR. HENRY FRANK FARMER, in his official capacity as Florida Surgeon General, Florida Department of Health,1

Defendants. _____________________________

ORDER

This case is before the Court on Plaintiff’ s Motion for Attorneys’ Fees and Litigation

Expenses. (Doc. 74; Motion). The Motion was referred to the Honorable Thomas E. Morris,

United States Magistrate Judge, for a Report and Recommendation regarding an appropriate

resolution of the Motion. (Doc . 75; 07/08/ 11 Order). Defendants filed a Response in

Opposition to the Motion, (Doc.76; Response), and with leave ofCourt, Plaintiff filed a Reply

to the Response. (Doc. 80; Reply). OnOctober 3, 2011, Judge Morris conducted a hearing

1 Plaintiff originally named Thomas Arnold, in his official capacity as Secretary of the Florida Agency for
Health Care Administration, and “Dr. Anna Viamonte Ross in her official capacity as Secretary , Florida Department of Health.” (Doc 1; Complaint). Dr. Ana Viamonte Ros previously served as Fl orida’s Surgeon General. Dr. Henry Frank Farmer is currently servi ng as Florida’s Surgeon General. Additionally, Thomas Arnold is no longer serving in the position of Secretary of the Florida Agency for Health Care Administration (FAHCA), and Elizabeth Dudek is currently serving as Secretary of the FAHCA. (See Doc. 93). Pursuant to Rule 25(d), Federal Rules of Civil Procedure (Rules(s)), Dudek and Farmer are substituted as the named Defendants in their official capacity, as successors in office.

on Plaintiff’s Motion, at which ar guments of counsel were presented. (Doc. 90; 10/03/11 Minutes). On October 20, 2011, the Magistrate Jud ge entered a 29-page Report and Recommendation (Doc. 92; Report), recommending ht at Plaintiff’s Motion be granted in part, and that Plaintiff should be awarded attorney’sfees and costs in theamount of $75,641.16.2 Report at 29. Thereafter, Defendants filed Objections to Report and Rec ommendation Regarding Resolution of Plaintiff’s Motion for Attorneys’ Feesand Litigation Expenses, (Doc. 93; Objections), and Plaintiff filed a Response to the Objections. (Doc. 95; Respons e to Objections).
Standard of Review The Court “may accept, reject, or modif y, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). If no specific objections to findings of facts are filed, thedistrict court is not required to conduct a de novo review of those findings. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); seealso 28 U.S.C. § 636(b)(1). The district court must review legal conclusions denovo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co. , 37 F.3d 603, 604 (11th Cir . 1994); United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla. May 14, 2007). Upon independent review of t he file, and for the reasons stated in Judge Morris’s Report, the Court will overrule the Objections, and accept and adopt the legal and
2 In reaching this conclusion, the Magistrate Judge recommended that Plai ntiff recover for 98.9 hours claimed by Attorney Stephen Gold at $525 per hour, toaling $51,922.50, and for 72.8hours claimed by Attorney Jay Howanitz at $300 per hour, totaling $21,840.00, plus litigation costs totaling $1,878.66. Report at 29.
2

factual conclusions rec ommended by Judge Morris, with one minor modification.

3

Accordingly, it is hereby

ORDERED:

1. The objections set forth i n Defendants’ Objections to R eport and

Recommendation Regarding Resolution of Plaintiffs’ Motion for Attorneys’ Fees and Litigation

Expenses, (Doc. 93) are OVERRULED.

2. The Magistrate Judge’s Reportand Recommendation (Doc. 92) isADOPTED,

as modified by this Order, as the opinion of the Court.

3. Plaintiff’s Motion for Attorneys’ F ees and Litigation Expenses (Doc. 74) is

GRANTED IN PART, as set forth in the Report and Recommendation.

4. Plaintiff is entitled to an award for a ttorney’s fees and costs in the amount of

$75,641.16.

5. The Clerk of the Court is directed to enter a Judgment in favor of Plaint iff

Michele Haddad, and against Defendant Elizabeth Dudek, in her official capacity as

Secretary, Florida Agency for Health Care Administration, and Defendant Dr. Harry Frank

3 In the Report, the Magistrate Judge concludes that an hourly rate of $525 is not unreasonable “based on the prevailing market value in the Middle District of Florida for similar services by lawyers of comparable skills, experience and reputation.” Report at 22. T he undersigned need not consider whether such a rate is reasonable in the Middle District of Florida as theMagistrate Judge also concluded, correctly, that Plaintiffwas justified in hiring a “non-local attorney.” Seeid. at 21-22. Amer. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999)(attorney may recover non-local rates if that attorney can demonstrate a lack of local attorneys who were willing and able to take the case). Upon consideration of the Declarations of Stephen F. Gold, Howard C. Coker, and Mark G. Alexander, and utilizing the Court’s own expertiseand experience on the matter of the reasonableness of fees, the undersigned finds, for the reasons stated by the Magistrate Judge, that the rate of $525 is a reasonable rate in this actoi n for a Philadelphia, Pennsylvania attorney with 40 years experience and extensive knowledge and experiencerelating to the subject matter of the action. SeeNorman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988); see alsoLoranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994); Padurjan v.Aventura Limousine & Transp. Serv., Inc., 441 F. App’x 684, 686 (11th Cir. 2011).
3

Farmer, in his official capacity as Surgeon G eneral, Florida Department of Health, in t he amount of $75,641.16, for attorneys’ fees and costs in accordance with this Order, and close the file.
DONE AND ORDERED in Jacksonville, Florida, this 2nd day of February, 2012.
lc12 Copies to: Counsel of Record
4

 </s> Case 3:10-cv-00414-MMH-TEM Document 42 Filed 06/21/10 Page 1 of 6 PageID 685

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MICHELE HADDAD,

Plaintiff v.

Case No: 3:10-cv-414-J-99MMH-TEM

THOMAS W. ARNOLD, in his official Capacity as Secretary, Florida Agency for Health Care Administration, and
DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health,
Defendants
_________________________________________/
DEFENDANTS’ MEMORANDUM OF LAW ON THE STANDARD FOR INJUNCTIVE RELIEF
The Defendants, THOMAS W. ARNOLD, in his official capacity as the Secretary of
the Florida Agency for Health Care Administration, and DR. ANA VIAMONTE ROS, in
her official capacity as Surgeon General, Florida Department of Health, by and through
undersigned counsel, pursuant to this Court’s order, submit this memorandum of law on the
mandatory nature of the injunctive relief requested in the above styled matter.
Injunctions are either prohibitory (status quo) or mandatory (affirmative) in nature.
Prohibitory injunctions seek only to maintain the status quo pending a trial on the merits.
Tom Doherty Associates, Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995).
Mandatory injunctions alter the status quo “by commanding some positive act.” Id
(emphasis added). When the relief requested constitutes a mandatory injunction, “the
1

Case 3:10-cv-00414-MMH-TEM Document 42 Filed 06/21/10 Page 2 of 6 PageID 686
burden placed on the moving party is increased.” Mercedes-Benz U.S. Int'l, Inc. v. Cobasys, LLC, 605 F. Supp. 2d 1189, 1196 (N.D. Ala. 2009). A mandatory preliminary injunction “should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.” Miami Beach Fed. Sav. & Loan Ass'n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958). See also Staver v. Am. Bar Ass'n, 169 F. Supp. 2d 1372, 1376 (M.D. Fla. 2001) (“A mandatory preliminary injunction requiring defendant to take affirmative action is proper only in rare instances.” (internal quotations omitted)). The United States Supreme Court has distinguished between mandatory and prohibitory injunctions by describing a mandatory injunction as one that orders a party to “take action”, whereas a prohibitory injunction would “restrain” a party from unlawful action. Meghrig v. KFC W., Inc., 516 U.S. 479, 484, 116 S. Ct. 1251, 1254, 134 L. Ed. 2d 121 (1996)
At the hearing on Plaintiff’s Motion for Preliminary Injunction in this matter, Plaintiff’s counsel argued that the requested injunction is prohibitory because Plaintiff wants the Court to “restrain” Defendants from continuing to (allegedly) violate Title II of the Americans with Disabilities Act (“ADA”). But the alleged discrimination lies precisely in the Defendants’ inaction (i.e., the “failure” of the Defendants to provide in-home personal care assistance services to the Plaintiff), and such “discrimination” could only be “restrained” by this Court ordering the Defendants to take positive action (i.e., to provide in-home personal care assistance services to the Plaintiff). Plaintiff’s counsel’s argument is circuitous and tortured to the extreme.
Plaintiff’s counsel would make actions out of inactions and restraints out of affirmative orders to act. The Court should not be fooled by this assault on logic. It is
2

Case 3:10-cv-00414-MMH-TEM Document 42 Filed 06/21/10 Page 3 of 6 PageID 687
abundantly obvious that the requested injunctive relief is for a mandatory preliminary
injunction. The Plaintiff wants the Court to order the Defendants to undertake an
affirmative act (i.e., to provide in-home personal care assistance services to the Plaintiff),
which Defendants are not currently doing. The status quo is that the Plaintiff is not
receiving any services from the Florida Medicaid Program. The Plaintiff wants to change
the status quo by an order of this Court requiring Defendants to undertake a positive act.
As held in Schrier v. University of Colorado, 427 F.3d 1253, 1261 (C.A. 10 (Colo.) 2005):
We characterize an injunction as mandatory if the requested relief “affirmatively require[s] the nonmovant to act in a particular way, and as a result ... place[s] the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.” Id. at 979 (quoting SCFC ILC, Inc., 936 F.2d at 1099). While merely seeking restoration of the status quo, Dr. Schrier's requested relief nonetheless “affirmatively require[s] the [University] to act in a particular way,” id., that is, to reinstall him as Chair of the Department of Medicine. Moreover, we agree with defendants that “reinstatement would place the court in position where it may have to provide supervision.” Aple. Br. at 48. Thus, the relief sought here is properly characterized as mandatory and, as a result, constitutes a specifically disfavored injunction.
If the Defendants were enforcing a specific policy that was operating to prevent
Plaintiff from being placed on the Traumatic Brain Injury / Spinal Cord Injury Waiver
(“TBI/SCI Waiver”), the Court could arguably issue a prohibitory injunction restraining
Defendants from continued enforcement of the policy, without applying the higher standard
for mandatory injunctions. But no such policy exists. The Plaintiff will be placed on the
TBI/SCI Waiver if and when she is at the top of the waiting list and a slot opens up. The
Defendants do not have a policy requiring the Plaintiff to spend 60 days in a nursing facility
before she can be placed on the TBI/SCI Waiver. Jacqueline Jones, for example, was placed
on the TBI/SCI Waiver without having to spend 60 days in a nursing facility because she 3

Case 3:10-cv-00414-MMH-TEM Document 42 Filed 06/21/10 Page 4 of 6 PageID 688
was at the top of the waiting list and a slot opened up. The Defendants have called the Court’s attention to the nursing home transition program only to show that 60 days in a nursing facility is the worst case scenario that the Plaintiff faces. Because the Defendants have no policy that can be restrained, this is not a prohibitory injunction.
Plaintiff’s counsel’s characterization of the requested relief (an order from the Court instructing Defendants to “stop discriminating”) would constitute an “obey the law” injunction. The 11th Circuit has repeatedly held that such injunctions are unenforceable. Fla. Ass’n of Rehabilitation Facilities, Inc. v. Fla. Dept. of health and Rehabilitative Svcs., 225 F.3d 1208, 1222-3 (11th Cir. 2000) (citing Burton v. City of Belle Glade, 178 F.3d 1175. 1200 (11th Cir. 1999). In doing so, the 11th Circuit has reasoned that the specificity requirement of Rule 65(d), Fed. R. Civ. P., “is no mere technicality,” and that injunctions must let those enjoined “know exactly what conduct the court has prohibited and what steps they must take to conform their conduct to the law.” Fla. Ass’n of Rehabilitation Facilities, Inc., 225 F.3d at 1223. The specificity requirement could only be met by a mandatory injunction.
Because the Plaintiff is requesting a mandatory injunction, the higher standard applicable to such orders must be applied. The requested injunction “should not be granted [unless] the facts and law are clearly in favor of the moving party.” Miami Beach Fed. Sav., at 415 (emphasis added). Moreover, such instances are “rare.” Id.
At the June 15, 2010, hearing, Plaintiff’s counsel indicated that Plaintiff’s Motion for Preliminary Injunction should be granted unless Defendants demonstrate that such relief would constitute a fundamental alteration. If courts were to adopt this standard, then no
4

Case 3:10-cv-00414-MMH-TEM Document 42 Filed 06/21/10 Page 5 of 6 PageID 689
Defendant would ever be able to defeat a motion for preliminary injunction brought under Title II of the ADA as no Defendant would be able to organize and produce sufficient evidence to prove a fundamental alteration given the limited time period applicable to such proceedings.
However, the burden is not on the Defendants here. The Plaintiff bears the onus to demonstrate that the facts and law are clearly in her favor. Defendants have presented sufficient evidence and legal arguments to show that neither the facts nor the law are as clear as the Plaintiff would have the Court believe. As such, the requested mandatory injunction should not be issued.
If this Court has any doubts as to the mandatory nature of the requested injunction, it should be noted that mandatory injunctions are not the only category of injunctions that are historically disfavored by courts. Also disfavored are “preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) aff'd and remanded sub nom. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S. Ct. 1211, 163 L. Ed. 2d 1017 (2006). That is precisely the type of injunction before the Court in this matter. The Plaintiff is requesting the Court to order Defendants to place her on the TBI/SCI Waiver, which is all the relief she seeks in this case. Regardless of the mandatory or prohibitory nature of this injunction, it is still disfavored for this reason and should therefore be subject to heightened scrutiny. See Id.
Respectfully submitted this 21st day of June, 2010. AGENCY FOR HEALTH CARE ADMINISTRATION 5

Case 3:10-cv-00414-MMH-TEM Document 42 Filed 06/21/10 Page 6 of 6 PageID 690
BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
BY: /s/ William M. Blocker II William M. Blocker II Fla. Bar No. 295700 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: William.blocker@ahca.myflorida.com
DEPARTMENT OF HEALTH
BY: /s/ Enoch Jonathan Whitney Enoch Jonathan Whitney Fla. Bar No. 13063 Office of the Attorney General 400 S Monroe St # PL-01 Tallahassee, Florida 32399-6536 (850) 414-3672; (850) 488-4872 Fax Email: Jon.Whitney@myfloridalegal.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to all parties on this 21st day of June, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
6

 </s> Case 3:10-cv-00414-MMH-TEM Document 44 Filed 06/21/10 Page 1 of 6 PageID 700

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MICHELE HADDAD,

)

)

Plaintiff,

)

)

v.

)

)

THOMAS ARNOLD, in his official

)

capacity as Secretary, Florida Agency for )

Health Care Administration

)

)

Dr. ANA VIAMONTE ROS,

)

in her official capacity as Secretary,

)

Florida Department of Health ,

)

)

Defendants.

)

____________________________________)

Case No. 3:10-cv-414-J-99MMH-TEM

UNITED STATES’ MEMORANDUM OF LAW REGARDING THE PRELIMINARY INJUNCTION STANDARD

Pursuant to the Court’s order, the United States respectfully submits this

memorandum of law concerning the legal standard for a preliminary injunction.

ARGUMENT

The decision whether or not to issue a preliminary injunction lies within the sound

discretion of the trial court. Charles H. Wesley Educ. Foundation, Inc. v. Cox, 408 F.3d

1379, 1354 (11th Cir. 2005). To grant a motion for preliminary injunction, the court

must determine that (1) the plaintiff has a substantial likelihood of prevailing on the

merits; (2) the plaintiff will suffer irreparable injury unless the injunction issues; (3) the

threatened injury to the plaintiff outweighs whatever damage the proposed injunction

may cause the Defendants; and (4) the injunction, if issued, would not be adverse to the

public interest. Id.

Case 3:10-cv-00414-MMH-TEM Document 44 Filed 06/21/10 Page 2 of 6 PageID 701
The “primary justification” for the issuance of a preliminary injunction is to
preserve the court’s ability to render a meaningful decision on the merits. Canal
Authority of the State of Florida v. Callaway, 489 F. 2d 567, 573, 576 (5th Cir. 1974).
As the court in Callaway explained:
It must not be thought … that there is any magic in the phrase ‘status quo.’ The purpose of the preliminary injunction is always to prevent irreparable injury so as to preserve the court’s ability to render a meaningful decision on t he merits. It often happens that this purpose is furthered by preservation of the status quo, but not always. If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent injury, either by returning to the last uncontested status quo between the parties…,by the issuance of a mandatory injunction…or by allowing the parties to take proposed action that the court finds will minimize the irreparable injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo.
Id. (emphasis added). Thus, the determination of whether to grant a preliminary
injunction should focus not on the specific nature of the relief, but on whether such relief
is necessary to prevent irreparable harm so as to preserve the court’s ability to render a
meaningful decision. Consistent with this reasoning, to enjoin violations of civil rights,
courts in this and other circuits have granted preliminary injunctions requiring affirmative
acts on the part of defendants in order to prevent irreparable harm to the moving party.
For instance, in Cox, a case in which plaintiffs alleged violations of the U.S.
Constitution and federal voting rights acts, the Eleventh Circuit, without applying a
heightened standard, affirmed the granting of a preliminary injunction requiring the
defendants to process sixty-four voter registration applications. Cox, 408 F.3d at 1351;
id., 324 F. Supp. 2d 1358, 1369 (N.D. Ga. 2004); see also Gresham v. Windrush
2

Case 3:10-cv-00414-MMH-TEM Document 44 Filed 06/21/10 Page 3 of 6 PageID 702
Partners, Ltd., 730 F.2d 1417, 1425 (11th Cir. 1984) (issuing preliminary injunction requiring defendants to display notices and instruct employees and agents of nondiscrimination policies and finding that “when housing discrimination is shown it is reasonable to presume that irreparable injury flows from the discrimination”); Rogers v. Windmill Point Vill. Club Assoc., Inc., 967 F.2d 525, 528 (11th Cir. 1992); Long v. Benson, No. 08cv26, 2008 WL 4571903 *2 (N.D. Fla. Oct. 14, 2008) (granting preliminary injunction requiring Florida to provide Medicaid coverage for certified nursing assistant services after finding irreparable injury would result if plaintiff was forced to enter a nursing home to receive necessary assistance); Daniels v. School Bd. of Brevard, 985 F.Supp. 1458 (M.D. Fla. 1997) (granting preliminary injunction requiring defendants to remedy Title IX inequalities).1
If no injunction is issued in this case and Ms. Haddad is forced to enter a nursing home to receive services, even a short-term institutional placement will result in irreparable injury. Ms. Haddad’s unnecessary institutionalization will sever her ties to the community in which she actively participates. See, e.g. Gresham, 730 F.2d at 1424 (granting preliminary injunction after finding irreparable harm when an individual is forced to sever his or her ties to the community due to housing discrimination). Additionally, her health would likely deteriorate. (Decl. of Dr. Johns ¶ 21: Ms. Haddad would “quickly become depressed and her health would most likely quickly deteriorate”
1 See also Katie A. v. Bonta, 433 F. Supp. 2d 1065 (C.D. Cal. 2006) (granting a mandatory preliminary injunction requiring the state to provide wraparound services and therapeutic foster care to a statewide class of children with mental health needs who faced irreparable injury due to unnecessary institutionalization) (rev’d and remanded, 481 F. 3d 1150 (9th Cir. 2007) (finding proper standard for a mandatory preliminary injunction was applied, but reversing and remanding on other grounds); Community Services, Inc. v. Heidelberg, 439 F. Supp. 2d 380, 400-401 (M.D. Pa. 2006) (entering preliminary injunction ordering defendants to issue permits for plaintiff to utilize property as long term structured residence for individuals with mental illness).
3

Case 3:10-cv-00414-MMH-TEM Document 44 Filed 06/21/10 Page 4 of 6 PageID 703
if she is placed in a nursing home.) Similar concerns led the court in Long to grant a preliminary injunction where forcing plaintiff to enter a nursing home “will inflict an enormous psychological blow…each day he is required to live in the nursing home will be an irreparable harm.” Long, 2008 WL 4571903 *2 (emphasis added). See also Kathleen S. v. Dep’t. of Public Welfare of Com., 10 F.Supp.2d 476, 481 (E.D. Pa. 1998) (denying stay because individuals with disabilities “are irreparably injured every day they remain unnecessarily segregated in violation of the ADA.”) Any deterioration in Ms. Haddad’s health as a result of unnecessary institutionalization cannot be remedied by a later decision on the merits.
The cases cited by Defendants for the proposition that a heightened preliminary injunction standard should be applied are inapposite. Two of the cases defendants cite are materially different, as neither case involves the critical rationale justifying a preliminary injunction: preventing irreparable harm in order to preserve the ability of the courts to render a meaningful decision on the merits. In Mercedes-Benz U.S. Int’l, Inc. v. Cobasys, LLC, 605 F.Supp. 2d 1189 (N.D. Ala. 2009), there was no question that, absent a preliminary injunction, the court could render a meaningful decision on the merits.2 Further, given the uncertainty as to the terms of the contract, the court in Mercedes-Benz could not know if the specific performance it would require in a preliminary injunction would ultimately be ordered. Here, on the other hand, the only question is where defendants will be required to provide services (in a nursing facility in violation of Olmstead, or in the community – at an arguably lower cost). In light of this undisputed
2 In Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F.2d 560 (5th Cir. 1971), the movant could not establish irreparable harm where the action it sought to enjoin had been ongoing for five years without objection. Thus, there was no concern that absent an injunction the court would be unable to render a meaningful decision.
4

Case 3:10-cv-00414-MMH-TEM Document 44 Filed 06/21/10 Page 5 of 6 PageID 704
obligation to fund services, the determination of whether this court should grant a preliminary injunction does not present the concerns over ordering an action that may later be determined to be unnecessary; the state’s obligation to fund Ms. Haddad’s services is inevitable, and thus the concerns that drive the heightened standard for preliminary injunctions that require affirmative actions by the enjoined party are not present here. Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 829 (D.C. Cir. 1984) (affirming grant of mandatory preliminary injunction requiring manufacturer to create fund to pay for diagnostic exams where defendants’ obligations were already established).
Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976), while applying a heightened standard, supports Ms. Haddad’s request for a preliminary injunction, as the court there ordered defendants to appoint plaintiffs to an administering board. The court was persuaded that plaintiffs were likely to succeed on the merits and that plaintiffs established irreparable harm that would result from absence of plaintiff’s voice on the board (pointing specifically to the harm arising from delays in health care improvements that would likely result from absence of plaintiffs on the board). These facts, unlike the facts in Mercedes-Benz and Exhibitors, justify the rationale for granting a preliminary injunction: to preserve the court’s ability to render a meaningful decision on the merits.
For the foregoing reasons and the reasons set forth in the United States’ Statements of Interest, the Court should grant Ms. Haddad’s motion for preliminary injunction.
5

Case 3:10-cv-00414-MMH-TEM Document 44 Filed 06/21/10 Page 6 of 6 PageID 705

June 21, 2010

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
___/s/ Anne Raish____________________ JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief ANNE S. RAISH, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 305-1321 Facsimile: (202) 305-9775 Anne.Raish@usdoj.gov

CERTIFICATE OF SERVICE
I hereby certify that on June 21, 2010, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. Notice of this filing will be sent by email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.

/s/ Anne S. Raish ANNE S. RAISH Trial Attorney

6

 </s> Case 3:10-cv-00414-MMH-TEM Document 46 Filed 06/23/10 Page 1 of 10 PageID 706

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

MICHELE HADDAD,

Plaintiff,

vs.

Case No. 3:10-cv-414-J-99MMH-TEM

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants.

_____________________________________/

ORDER GRANTING PRELIMINARY INJUNCTIVE RELIEF

THIS CAUSE is before the Court on Plaintiff Mcihele Haddad’s Motion for Preliminary

Injunction, Memorandum in Support Thereof, and Expedited Hearing (Doc. No. 2; Motion),

filed on May 13, 2010. Plaintiff is suingDefendants, under 42 U.S.C.§ 12133 and 29 U.S.C.

§ 794(a), alleging that they ar e discriminating against her on t he basis of her disability in

violation of the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act (the

“Rehab Act”). See Complaint (Doc. No. 1) at 1, 11-13. In the Motion, Plaintiff requests that

the Court enjoin Defendants from denying her in-home health care services in order to

prevent her from being forced into unnecessary institutionalization in a nursing home. See

Motion at 1.

In support of her request, Plani tiff, a quadriplegic, contendsthat she has continuously

lived in the community and couldcontinue to do so if Defendantswould provide her with the

Case 3:10-cv-00414-MMH-TEM Document 46 Filed 06/23/10 Page 2 of 10 PageID 707

services she is eligible to r eceive through the state’s Traumatic Brain Injury/Spinal Cord Injury (TBI/SCI) Medicaid waiver program.1 See id. at 2-5. To date, she has been denied those services due to a limitation on the num ber of persons who can participate in the program. See id. at 5. Thus, although eligible for the services, Plaintiff has remained on a waiting list for nearly two and a half years. See id. at 2, 5. Having lost her caregiver, Plaintiff now faces institutionalization if not provided in-home health care services such as those provided under the TBI/SCI waiver which she is otherwise medically and financially eligible to receive. See id. at 4. I. PROCEDURAL HISTORY
Upon review of the Motion, the Court ent ered an order taking the Motion under advisement and directing Plaintiff to se rve the Motion and supporting materials on Defendants. See May 13, 2010 Order (Doc. No. 4) at 1. While Plaintiff was complying with the Court’s order, the United Stat es filed a motion seeking leav e to submit a brief in this action, see United States’ Motion for Leave to Appear Specially (Doc. No. 6) at 1, and the Court granted that request, seeMay 21, 2010 Order at 1-2. Assuch, the United States filed its brief on May 24, 2010. See Statement of Interest of the United States of America (Doc. No. 10; Statement of Interest).
Once Plaintiff advised the Court that she had accomplished service of process,2 the Court entered another order scheduling a hear ing on the Motion for June 7, 2010, and

1

Plaintiff also contends she should be prov ided the personal care services ot herwise

provided to persons in assisted living facilities. The Court does not address this contention in this Order.

2

See Returns of Service (Doc. Nos. 11 and 12) filed May 25, 2010.

-2-

Case 3:10-cv-00414-MMH-TEM Document 46 Filed 06/23/10 Page 3 of 10 PageID 708
setting an expedited briefing schedule due tothe urgency of this matter. SeeMay 25, 2010 Order (Doc. No. 13) at 1-2. I n the May 25, 2010 Order, the Court directed Defendants to respond to the Motion by May 28, 2010, and permitted Plaintiff to submit a reply brief on or before June 2, 2010. See id. at 2-3. However, on Ma y 27, 2010, Defendants filed an emergency motion requesting an extension of time in which to file their response. See Emergency Motion for Extension of Time (Doc . No 20; Emergency Motion) at 1-2. That same day, the Court held a telephonic hearing on the Emergency Motion. See May 27, 2010 Order (Doc. No. 21) at 1. During the hearing, Plaintiff’s counsel advised that Plaintiff was currently hospitalized due to medical complications unrelated to the alleged denial of services that are the subject of this action. Although he did not know when she would be medically able to be discharged, he indicatedthat Plaintiff was in limbo and would be unable to go home without the provision ofthe services she seeks tocompel Defendants to provide. After hearing from the part ies, the Court granted Defendants’ requested extension and continued the hearing on the Motion until June 15, 2010. SeeClerk’s Minutes (Doc. No. 22) at 1. However, in light of Plaintiff’s circumstances, the Court directed Plaintiff’s counsel to immediately file a notice if Plaintiff was medically able to be released from the hospital, but not able to do so because of the unavailabilit y of in-home health care services. In accordance with the Court’s direcitves from the May 27, 2010 hearnig, the parties timely filed their responsive memoranda, see Defendants’ Response and Memorandum of Law in Opposition to Plaintiff’s Motion for Preliminary Injunction (Doc. No. 27; Response); Plaintiff Michele Haddad’s Response to Defendants’ Memorandum in Opposition to the Preliminary Injunction (Doc. No. 29; Reply), which are supported by various documents.
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The Court held a hearing on the Motion on June 15, 2010. At the beginning of the hearing, Plaintiff’s counsel advised that Plaintfif’s medical condition was improving. Indeed, Plaintiff was able to leave the hospital for a shor t period of time to attend a portion of the hearing in person. Her counsel also advised the Court that he had spo ken to Plaintiff’s social worker who indicated that Plaintiff would be discharged from the hospital in two to three weeks. At the conclusion of the heari ng, after again confirming that Plaintiff was expected to be hospitalized for reasons unrelated to the allegations in this action for an additional period of two to three weeks, t he Court requested additional briefing from the parties on one legal issue. Although it was the Court’s initial request that the briefing be submitted on June 18, 2010, the Court acco mmodated a request from counsel that the deadline be set for Monday, June 21, 2010. Theparties have filed those memoranda. See Plaintiff Michele Haddad’s Memorandum in Response to the Court’s Request Regarding Preliminary Injunction Standards (Doc. No . 41; Plaintiff’s Memora ndum); Defendants’ Memorandum of Law on the Standard for Injunc tive Relief (Doc. No. 43-1; Defendants’ Memorandum); United States’ Memorandum of Law Regarding the Preliminary Injunction Standard (Doc. No. 44; United States’ Memorandu m). In addition to filing Plaintiff’s Memorandum on June 21, 2010, Plaintiff’s counselfiled a notice indicating that he had “just received notice that Brooks Rehabilitation Hospital plans to discharge Michele Haddad on Thursday, June 24, 2010.” SeeNotice of Status RegardingMichele Haddad (Doc. No. 40).
Having considered the arguments set forthin the Motion and the various memoranda filed by Plaintiff, the United States and De fendants, as well as th e arguments presented during the June 15, 2010 hearing, the record of which this Court hereby incorporates, the
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Court finds that the Motion is due to be granted. In reaching this conclusion, the Court has carefully considered each of the arguments se t forth by Defendants in the Response and Defendant’s Memorandum and thosepresented at the hearing. While the Court recognizes that its resolution of the issues raised in the Motion and the opposing memoranda warrants a thorough written analysis, the Court finds that the exigency of Plaintiff’s current circumstances will not permit the completion of such an order in advance of Plaintif f’s impending release from the hospital. Given that the Court has determined that the Motion is due to be granted, a delay in so ordering, simply to accommodate the preparation of a thorough legal opinion, could def eat the very purpose of the relief sought. As such, the Court has determined that resolving the Motion at this time is appropriate with an opinion setting forth the Court’s reasoning to follow.3 II. STANDARD FOR RELIEF
A party seeking preliminary injunctive relief msut establish that “(1) it has a substantial likelihood of success on the merits, (2) the movant will suffer irreparable injury unless the injunction is issued, (3) the threatened injury tothe movant outweighs the possible injury that the injunction may cause the opposing party, and (4) if issued, the injunction would not disserve the public interest” before t he district court may grant such relief. Horton v. St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001) (citing Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)); see alsoInt’l Cosmetics Exch. v. Gapardis Health & Beauty, Inc,. 303 F.3d 1242, 1246 (11th Cir. 2002) (citing Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51

3
Court.

Should the parties agree that such an order is unnecessary, they may so advise the -5-

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F.3d 982, 985 (11th Cir. 1995)). A dditionally, “[i]t is well established in this circuit that a preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to all four elements.” Siegel, 234 F.3d at 1176 (internal quotations and alterations omitted).
A typical preliminary injunction is prohibitive in nature and seeks simply to maintain the status quo pending a resolution ofthe merits of the case. SeeMercedes-Benz U.S. Int’l, Inc. v. Cobasys, LLC, 605 F. Supp. 2d 1189, 1196 (N.D. Al a. 2009). When a preliminary injunction is sought to force another party to act, rather than simply to maintain the status quo, it becomes a “mandatory or affirmativeinjunction” and the burden on the moving party increases. Exhibitors Poster Exch. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971). Indeed, a mandatory injunction “‘should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.’” Id. (quoting Miami Beach Fed. Sav. & Loan Ass’n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958)); see alsoMartinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976) (“Mandaotry preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued unless the facts andlaw clearly favor the moving party.”)4 Accordingly, a plaintiff seeking such relief bear s a heightened burden of demonstr ating entitlement to preliminary injunctive relief. SeeVerizon Wireless Pers. Commc’n LP v. City of Jacksonville, Fla., 670 F. Supp. 2d 1330, 1346 (M.D. Fla. 2009) (quoting the Southern District of New York, “Where a mandat ory injunction is s ought, ‘courts apply a heightened standard of

4

In Bonner v. City of Prichard , 661 F.2d 1 206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down

prior to the close of business on September 30, 1981.

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review; plaintiff must make a cel ar showing of entitlement tothe relief sought or demonstrate that extreme or serious damage would result absent the relief.’”); Mercedes-Benz, 605 F. Supp. 2d at 1196; OM Group, Inc. v. Mooney , No. 2:05-cv-546-FtM-33SPC, 2006 WL 68791, at *8-9 (M.D. Fla. Jan. 11, 2006).
Here, the parties disagree as to the nature otfhe relief sought. Plaintiff contends that because she merely seeks to prohibit unlawful discrimination, the injunctive relief she requests is prohibitive in nature and does not seek to change the status quo. However, Defendants argue that because Plai ntiff is not currently receiving in-home health care services from Defendants and requests that this Court order Defendants to provide her with such services, she seeks to change the status quo by requiring them to act. Because the Court determines that Plaintiff has satisfied the heightened burden of demonstrating her entitlement to mandatorypreliminary injunctive relief, theCourt need not resolve the parties’ dispute as to the applicable standard. III. FINDINGS
Upon due consideration of the record in this action, the Motion and Reply, the Response, the memoranda filed by the United States, the supplemental memoranda filed by the parties, and the arguments presented at the June 15, 2010 hearing, the Court finds that Plaintiff, Michele Haddad, has satisfied herburden of showing thatthe facts and law are
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clearly in her favor and warrant the entry of pr eliminary injunctive relief in this action. 5 Specifically, the Court finds that Plaintiff hasmade a clear showing that she has a significant and substantial likelihood of succeeding on the merits of her claim that Defendants’ refusal to provide her w ith in-home based health care servi ces for w hich she i s financially and medically eligible, and which Defendants provi de to others through the TBI/SCI Medicaid waiver program violates the ADA and the Rehab Act; that she will suffer irreparable injury unless the injunction is issued in that she is at imminent risk of being institutionalized in order to obtain the necessary services which Defendants refuse to provide her outside the institutional setting; that the threatened injury to Plaintiff outweighs the possible injury that the limited injunctive relief ordered here may cause Defendants; and that this injunction will not disserve the public interest.
In the Motion, Plaintiff requests that the Court waive the requirement that she post a bond pursuant to Federal Rule of Civil Procedure 65(c). Defendants do not appear to oppose this relief as they did not address it in their Response. The r ecord in this action reflects that Plaintiff is indigent. Her sole source of support is her social security disability insurance payment, and she is eligible for both Medicare and Medicaid. In light of these representations, and in the absence of any opposition by Defendants, the Court will waive the requirement that Plaintiff post a bond.

5

The Court cautions that its findings in this Order are strictly limited to the unique

circumstances currently facing Plaintiff, Mic hele Haddad, and are based upon the limited record now

before the Court. Thus, this Court’sorder granting preliminary injunctive relief should not be interpreted

as suggesting that the Courtwill find such relief warranted under circumstances different from those here,

or that Defendants, on a more complete record, cann ot establish that such relief would constitute an

undue burden or that they have a comprehensive, effe ctively working plan for providing services to

qualified individuals with disabilities obviating the need for such relief.

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In light of the foregoing, the undersigned having found that Plaintiff has satisfied all of the prerequisites to the entry of the preliminary injunctive relief sought in this action, it is hereby ORDERED:
1. Plaintiff Michele Haddad’s Motion forPreliminary Injunction, Memorandum in Support Thereof, and Expedited Hearing (Doc. No. 2; Motion) is GRANTED.
2. Defendants shall immediately re-assessPlaintiff’s eligibility and placement on the waiting list for s ervices under the Traumatic Brain Injury/Spinal Cord Injury Medicaid waiver program.
3. In the event that reassessment results in a decision that services are to be denied, Defendants, their officers, agents, employees, attorneys, and all persons who are in active concert or participation with them, are hereby enjoined from denying or otherwise refusing to provide Plaintiff services consistent with those that would be authorized by the Traumatic Brain Injury/Spinal Cord Injury Medicaid waiver program, pending further order of the Court.
4. Defendants shall continue to re-assess Plaintiff’s status everyforty (40) days and file a notice with the Court advising of Plaintiff’s position on the waiting list.
5. Based upon the evidence presented, the Court determines that no security bond will be required under Federal Rule of Civil Procedure 65(c).
DONE AND ORDERED in Jacksonville, Florida, this 23rd day of June, 2010.
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 </s> Case 3:10-cv-00414-MMH-TEM Document 49 Filed 07/09/10 Page 1 of 39 PageID 839

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

MICHELE HADDAD,

Plaintiff,

vs.

Case No. 3:10-cv-414-J-99MMH-TEM

THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration, and

DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants.

_____________________________________/

OPINION

THIS CAUSE came before the Court on Plaintiff Michele Haddad’s [1] Motion for

Preliminary Injunction, Memorandum in Support Thereof, andExpedited Hearing (Doc. No.

2; Motion),2 filed on May 13, 2010. Plaintiff is suing Defendants, under 42 U.S.C. § 12133

and 29 U.S.C. § 794(a), alleging that they are discriminating against her on the basis of her

disability in violation of the Americans with Disabilities Act(the “ADA”) and the Rehabilitation

1

Plaintiff is also involved in the related case of Jones v. Arnold, 3:09-cv-1170-J-34JRK,

as a member of a putative class sought to becertified. See May 7, 2010 Order (3:09-cv-1170-J-34JRK

Doc. No. 62) at 1. She initially filed a motion for preliminary injunction in the Jones case, but the Court

denied that motion without prejudice because, as an unnamed class member in an uncertified class,

Plaintiff was not yet a party to the action andlacked standing to seek preliminary injunctive relief therein.

See id. at 1-3. Subsequently, Plaintiff filed the present action and the instant motion in her own name.

2

Attached to the Motion are Plaintiff Mic hele Haddad’s Declaration in Support of her

Motion for a Preliminary Injunction (Doc.No. 2-1; Haddad Dec.), the Declaration of Jeffery S. Johns, M.D.

(Doc. No. 2-2; Johns Dec.), and the Affidavitof Kristen Russell (Doc. No. 2-3; Russell Aff. I), which was

originally filed in the related Jones case.

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Act (the “Rehab Act”). See Complaint (Doc. No. 1) at 1, 11-13. In the Motion, Plaintiff requested that the Court enjoin Defendants from denying her Medicaid in-home services in order to prevent her from being forced into unnecessary institutionalization in a nursing home. See Motion at 1. I. PROCEDURAL HISTORY
Upon review of the Motion, the Court ent ered an order taking the Motion under advisement and directing Plaintiff to se rve the Motion and supporting materials on Defendants. See May 13, 2010 Order (Doc. No. 4) at 1. While Plaintiff was complying with the Court’s order, the United Stat es filed a motion seeki ng leave to submit a brief in this action, see United States’ Motion for Leave to Appear Specially (Doc. No. 6) at 1, and the Court granted that request, seeMay 21, 2010 Order at1-2. As such, the United States filed its brief on May 24, 2010.3 See Statement of Interest of theUnited States of America (Doc. No. 10; Statement of Interest).
Once Plaintiff accomplished service of process, 4 the Court entered another order scheduling a hearing on the Motion for June 72, 010, and set an expedited briefing schedule due to the urgency of this matter. SeeMay 25, 2010 Order (Doc. No.13) at 1-2. In the May

3

Attached to the Statement of Interest are the following: anadditional copy of the Russell

Affidavit I (Doc. No. 10-1 at 5); a letter dated February 23, 2010 (Doc. No1.0-1 at 7-9; February 23, 2010

Letter); Defendants’ Response and Memorandum of Law in Opposition to Michele Haddad’s Motion for

Preliminary Injunction (Doc. No. 10-1 at 11-29), originally filed inthe Jones case; Initial Brief from Holly

Benson, in her Official Capacity as Secretary, Fl orida Agency for Health Care Administration, and

Douglas Beach, in his Official Capacity as Secretary, Florida Department of Elder Affairs (Doc. No. 10-1

at 31-88; Benson Brief), from the Eleventh Circuit Court of Appeals action, Benson v. Long, Case No.:

08-16261AA; January 25, 2010 Memorandum and Order Doc. No. 38 (Doc. No. 10-1at 90-98; Benjamin

Order), from the United States District Court for the Middle District of Pennsylvania action, Benjamin v.

Dep’t of Pub. Welfare,Commonwealth of Pa., 09-cv-1182; and a copy of Olmstead v. L.C. ex rel Zimrin,g

527 U.S. 581 (1999).

4

See Returns of Service (Doc. Nos. 11 and 12) filed May 25, 2010.

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25, 2010 Order, the Court directed Defendants to respond to the Motion by May 28, 2010, and permitted Plaintiff to submit a reply brief on or before June 2, 2010. See id. at 2-3. However, on May 27, 2010, Deef ndants filed an emergency motion requesting an extension of time in which to file their response. See Emergency Motion for Extension of Time (Doc. No 20; Emergency Motion) at 1-2. That same day, the Court held a telephonic hearing on the Emergency Motion. See May 27, 2010 Order (Doc. No. 21) at 1. During the hearing, Plaintiff’s counsel advised that Plaintiff wa s, at that time, hos pitalized due to medical complications unrelated to the alleged denial of services that are the subject of this action. Although counsel did not know when she would be medically able to be discharged, he indicated that Plaintiff was in limbo and would be unable to go home without the provision of the services at issue in t he instant litigation. After heari ng from the parties, the Court granted Defendants’ requested ex tension and continued the hearing on the Motion until June 15, 2010. See Clerk’s Minutes (Doc. No. 22) at 1. However, in light of Plaintiff’s circumstances, the Court directed Plaintiff’s counsel to immediately file a notice if Plaintiff was medically able to be released from the hospi tal, but not able to do so because of the unavailability of in-home health care services.In accordance with the Court’s directives from the May 27, 2010 hearing, the parties timely filed their responsive memoranda, see Defendants’ Response and Memorandum of Law in Opposition to Plaintiff’s Motion for Preliminary Injunction (Doc. No. 27; Respons e); Plaintiff Michele Haddad’s Response to
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Defendants’ Memorandum in Opposition to the Preliminary Injunction (Doc. No. 29; Reply), which are supported by various documents.5
The Court held a hearing on the Motion on June 15, 2010. SeCelerk’s Minutes (Doc. No. 39; Preliminary Injunction Hearing). At the beginning of the hearing, Plaintiff’s counsel advised that Plaintiff’s medical condition was improving. Indeed, Plaintiff was able to leave the hospital for a period of time to attend a portion of the hearing in person. Her counsel also advised the Court that he had spoken to Pl aintiff’s social worker who indicated that Plaintiff was expected to be discharged from the hospital in two to three weeks. At the conclusion of the hearing, after again confi rming that Plaintiff was expec ted to remain hospitalized for reasons unrelated to the allegations in this action for an additional period of two to three weeks, the Court reques ted additional briefing from the parties on one legal issue. The parties hav e filed those memoranda. See Plaintiff Michele Haddad’s

5

The Response is supported by the following: the Affidavit of Elizabeth Y. K idder in

Support of Defendant’s [sic] Response and Memorandum of Law in Opposition toMotion for Preliminary

Injunction (Doc. No. 24-1; Kidder Aff.); a draft copy of the Florida Nursing Home Transition Plan (Doc.

No. 24-2; Transition Plan); a copy of the Settlement Agreement from Long v. Benso,n4:08cv26-RH/WCS

in the United States District Court for the Northern District of Florida (Doc. No. 24-3; Long Settlement);

the Affidavit of Kristen Russell in Support of Defendant’s [sic] Response and Mem orandum of Law in

Opposition to Motion for Preliminary Injunction (Doc. No. 25-1; Russell Aff. II); the Affidavit of Susan

Michele Hudson in Support of Defendant’s [sic] Response and Memorandum of Law in Opposition to

Motion for Preliminary Injunction (Doc. No. 26-1;Hudson Aff.); and another copyof the Russell Affidavit

I (Doc. No. 27-1).

The Reply is accompanied by copies ofhte following: SSI-Related Programs Fact Sheets

January 2010 (Doc. No. 29-1; Fact Sheets); Appendix C-Eligibilityand Post-Eligibility Medicaid Eligibility

Groups Served (Doc. No. 29-2; Medicaid Eligibility); Appendix B-4: Medicaid Eligibility Groups Served

in the Waiver (Doc. No.29-3; Waiver Eligibility); AARP Across the States Profiles of Long-Term Care and

Independent Living (Doc. No. 29-4;AARP Profile); Florida Medicaid Nursing Homes January, 2010 Rate

Semester Initial Per Diems (Doc . No. 29-5; Per Diem); a series of documents related to Defendants’

October 2007 amendment of Florida’s Home- and Cmo munity-Based Waiver for Individuals (aged 18 and

older) with Traumatic Brain or Spinal Cord Injuries (Doc. No. 29-6; Waiver Amendment); Home and

Community Based Service Waivers and Long Term Care (Doc. No. 29-7; Waiver List); Kaiser

Commission on Medicaid and the Uninsured November 2009 (Doc. No. 29-8; Kaiser Report); Spinal Cord

Injury in Florida, a Needs and Resources Assessment (Doc. No. 29-9; Assessment);and a letter dated

January 8, 2010 (Doc. No. 29-10; January 8, 2010 Letter).

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Memorandum in Response to the Court’s Request Regarding Pr eliminary Injunction Standards (Doc. No. 41; Plaintiff’s Memorandum); Defendants’ Memorandum of Law on the Standard for Injunctive Relief (Doc. No. 43-1; Defendants’ Memorandum); United States’ Memorandum of Law Regarding the Preliminary Injunction Standard (Doc. No. 44; United States’ Memorandum).
In addition to filing Plaintiff’s Memorandum as directed on June 21, 2010, Plaintiff’s counsel filed a notice indicating that he had “just received notice that Brooks Rehabilitation Hospital plans to discharge Michele Haddad on Thursday, June 24, 2010.” See Notice of Status Regarding Michele Haddad (Doc. No. 40; Plaintiff’s Notice of Status). By the time the Court reviewed Plaintiff’s Notice of Status, having had the benefit ofthe parties’ briefing and the arguments presented at the hearing, the Court had det ermined that preliminary injunctive relief was warranted and was in t he process of preparing a written opinion and order which would grant Plaintiff relief and se t forth the Court’s reasons for doing so. However, upon review of Plaintiff’s Notice of Status, the Court determined that the urgency of the circumstances required the issuance ofan order resolving the Motion without a delay solely necessary to complete the preparation of a written opinion. Thus, the Court granted the Motion with the intention ofproviding an opinion setting forth ist reasoning at a later date. See June 23, 2010 Order (Doc. No. 46) at 8. The Court fulfills that intention here.
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II. FACTUAL BACKGROUND6 Plaintiff is a forty-ni ne-year-old resident of Flori da. S ee Haddad Dec. at 1. On
September 7, 2007, when she wa s forty-seven, Plaintiff was in a motorcycle accident caused by an intoxicated driver. See id. As a result of the accident, Plaintiff is paralyzed from the chest down and has a diagnosis of quadrip legia, with a spinal injury at the c6-c7 vertebrae. See Johns Dec. at 3; see also Haddad Dec. at 2. Plaintiff is mentally alert and fully aware of her surroundings, but she has minimal manual dexterity. See Johns Dec. at 4; see also Haddad Dec. at 3. Her right hand re mains closed, and her left hand remains open. See Johns Dec. at 4; Haddad Dec. at 3. Hwoever, she has some limited ability to use her arms. See Johns Dec. at 4. After her accident,Plaintiff required a tracheotomy, which has been removed, but Plaintiff cannot speak and breathe at the same t ime. See id. Additionally, she is required to take various medciations, and is at risk for injury and infection due to her catheterization. See id. Plaintiff uses a motorized wheelchair for mobility, and resides in a wheelchair-accessible home with a roll-in shower. Seeid.; Haddad Dec. at 2-3. Nevertheless, Plaintiff is completely dependent on others to help her perform most of her activities of daily living, including transferri ng from her bed to her wheelchair, dressing, bathing and showering, toileting, bladder management, assistance with bowel movements, including digital stimulation, and shopping for, preparing, and eating food. See Johns Dec.

6

The Court notes that, as the Motion was one for preliminary injunctive relief an d

necessarily before the Court on an expedited schedule, the factual record contained herein may not be

completely developed. Therefore, the following facts and conclusions of law do not necessarily reflect

what may be established on a record more fully developed following trial on these issues. Accordingly,

the determinations in this Order are expressly limited to the r ecord before the Court at the time of the

Preliminary Injunction Hearing and do not indicate orlimit the ultimate outcome of the issues presented

in this matter.

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at 4; see also Haddad Dec. at 3. She requires t en to twelve hours a day of in-home assistance to remain in the community.7 See Johns Dec. at 5.
Plaintiff’s rehabilitation is ongoing, and s he uses the out-patient equipment and facilities at Brooks Rehabilitation Hospital (“Brooks”) in Jacksonville, Florida, where she was a patient from November 2007 to January 2008, after her accident. SeeJohns Dec. at 3-4. Despite her dependence on the care from others, Plaintiff has maintained an active life in the community. SeeHaddad Dec. at 4; see alsoJohns Dec. at 5. She attends church, goes to the movies, visits friends, goes shopping,and exercises at the Brooks gymnasium. See Haddad Dec. at 4; see also Johns Dec. at 5. At the telephonic hearing on May 27, 2010, Plaintiff’s counsel represented thatPlaintiff had experienced medical complications requiring another tracheotomy and had been hospitalized at Brooks where she would remain for an unknown length of time. On June21, 2010, Plaintiff’s counsel notified the Court that Plaintiff was scheduled to be discharged from Brooks on June 24, 2010. See Plaintiff’s Notice of Status at 1.
After Plaintiff’s initial discharge from Brooks in January 2008, her husband was her primary care giver. See Haddad Dec. at 3; see also Johns Dec. at 5. In November 2009, Plaintiff and her husband divorced, yet he continued toprovide Plaintiff’s care until he moved out of their home in March 2010. See Haddad Dec. at 3; Johns Dec. at 5. After that time, one of Plaintiff’s adult sons , who was living in Miami, Florida and had recently graduated

7

In the Complaint, which is not ver ified, Plaintiff asserts that she would require “about

seven hours a day for all her activities of dai ly living.” See Complaint at 5. However, Plaintiff’s

physician’s declaration indicates that, in his medical opinion, Plaintiff “requires about 10-12 hours a day

of in-home assistance in order to meet her needs.” See Johns Dec. at 5. Likewise, in her declaration

verifying the Motion, Plaintiff indicates that Def endants offered her 10 hours a day of services in the

community if she would move into a nursing home. See Haddad Dec. at 3-4.

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from college, temporarily moved back home in odrer to provide Plaintiff the care she needed to remain in the community. See Haddad Dec. at 3; Johns Dec. at 5. From that time until Plaintiff’s hospitalization, her son became responsible for all of the tasks Plaintiff’s husband had performed, including very personal care, such as hygiene and administering Plaintiff’s bowel program. See Haddad Dec. at 3-4; see alsoJohns Dec. at 5. Plaintiff’s son returned to care for Plaintiff because of her exigent circumstances, but would be unable to provide these services to Plaintiff indefinitely. SeeHaddad Dec. at 4. Indeed, he intended to return to his responsibilities in Miami. See id.; Johns Dec. at 5. Upon such occurrence, absent other assistance, Plaintiff would be forced toleave the communityand enter a nursing home in order to receive the care she requires. See Haddad Dec. at 4-5; Johns Dec. at 5.
Defendants are responsible for administeri ng Florida’s in- home services waiver programs, see Kidder Aff. at 1; Hudson Aff. at 1; Russell Aff. II at 1, including the Traumatic Brain Injury/Spinal Cord Injury Waiver (“T BI/SCI Waiver”) program implemented in 1999, see Kidder Aff. at 2; Hudson Aff. at 1-3. Through this program, the state delivers in-home services, such as home health care and related services, to Medicaid eligible persons with traumatic brain or spinal cord injuries so that they can remain in the community. See Russell Aff. II at 1-2. The TBI/SCI Waiver program grew from a monthly caseload of 245 persons and yearly expenditures of $5,874,815 in fiscal year 2005 to 2006, to 309 persons and $10,066,381 in 2008 to 2009. See Hudson Aff. at 3. Defendants have various other waiver programs that deliver services to persons with other physical and mental disabilities. See id. at 1-3; Kidder Aff. at 2. These programs have increased in size and scope over the course of their existence. See Hudson Aff. at 1-3. In fiscal year 2008 to 2009, the average
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monthly caseload of Medicaid recipients in nursing homes was approximately 50,000, and
the average monthly caseload in in-home services waiver programs was approximately
61,000. See id. at 4.
In November 2007, while Plaintiff was stillat Brooks, she applied to receive services
under Defendants’ TBI/SCI Waiver. See Haddad Dec. at 2-3; see also Johns Dec. at 5.
However, Plaintiff has not received any TBI/SCIWaiver services despite having been on the
waiting list for approximately two-and-a-half years. See Haddad Dec. at 3-5. In a let ter
dated January 8, 2010, Defendants acknowledged that Plaintiff was on a waiting list to
receive in-home services, but explained:
[p]resently, the Department of Ch ildren and Families does not have funds available (or available openings) to serve additional individuals through these programs. . . . Placement on the waiting list does not ensure future eligibility. Funding is very limited inthese programs, andthe amount of funding allocated to these programs has not been inc reased in many years. Unfortunately, moving individuals off the waiting list into these programs does not occur frequently, therefore, we enc ourage you to continue seeking services from other programs.
January 8, 2010 Letter at 1.
Plaintiff’s income is limited to her Soci al Security Disability Insurance, and she is
eligible for, and receives, Medicare and Medicaid. See id. at 4. With her other sources of
assistance withdrawing, Plaintiff faced the rsi k of institutionalization without in-home services
through Defendants’ TBI/SCI Waiver.8 See id. at 5; Johns Dec. at 5. Accordingly, Plaintiff

8

Plaintiff argues that an additional potential source of assistance is Defendants’personal

care services waiver, but contends that this program is only available to individuals residing in nursing

homes. See Motion at 5-6, 19 n.5; Transcript of June 15, 2010 Hearing (Doc No4.7; Tr.) at 8. However,

at the hearing, Defendants argued that there is no personal care services program. See Tr. at 33-35,

100-02. Instead, services of a personal nature, such as those Plaintiff requires, which are rendered to

individuals in nursing homes are incidental to the nursing home placement. See id. They are not the

(continued...)

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contacted Defendants in early March 2010, to notify them of the change in her circumstances, and that she desperately required in-home services. See Haddad Dec. at 4. In late April 2010, Defendants informed Plai ntiff that there were no funds for in-home services, but if she would move into a nursing home, after sixty days in the nursing home, she would be eligible to receive ten hours a day of in-home services through the Florida Nursing Home Transition Plan (the “Transition Plan”). Seeid.; Russell Aff. I at 2; Tr. at 10915; see also Transition Plan at 1-12; Long Settlement at 1-13. However, Plaintiff does not wish to enter a nursing home; she wishes to receive the in-home services for which she is medically and financially eligible and to remainin the community, where she leads an active life. See Haddad Dec. at 3-4. Additionally, Plaint iff’s physician opines that, even if she meets the criteria for nursing hom e care, Plaintiff will quickly become depressed and her health will most likely deteriorate if she is placed in a nursing home. See Johns Dec. at 5.
Plaintiff is eligible for the TBI/SCI Waiver, see Kidder Aff, at 3; Medicaid Eligibility at 1-2; Waiver Eligibility at 1-2; Fact Sheets at 4-5, and would benefit from the program, see Johns Dec. at 5, however, Defendants have represented that there are no funded slots available in the program at this time, see January 8, 2010 Letter at 1; Russell Aff. I at 2; Haddad Dec. at 4. Priority of placement on the TBI/SCI Waiver waiting list is based on the probability, given the individual’slevel of community support andseverity of needs, that, but for the TBI/SCI Wa iver, the non-institutionalized individual will be institutionalized or the
8(...continued) subject of an independent waiver or funding source.See id. Plaintiff focused her argument on the waiver program and provided little argument regarding her entitlement to in-home services based on the fact that such services would otherwisebe incidental to institutionalization. As such, the Court’s ruling addresses only Plaintiff’s primary argument at this time.
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institutionalized individual will not be deinstitutionalized. See Russell Aff. II at 2. At the Preliminary Injunction Hearing, defense counsel was unsure of Plaintiff’s exact position on the waiting list, but represented tothe Court that she was not in ht e top forty-five spots. See Tr. at 51-52. Defendants did not know the average wait time for individuals on the waiting list or the average turnover. Seeid. at 54, 57, 102-03. However, Defendants explained that, because movement on the waiting list is based on an individual’s needs, rather than time spent on the waiting list, the wait time can vary greatly from person to person. See id. at 102-03. If a person’s needs change, they canrequest reassessment which can change their position on the waiting list. Seeid. at 102-03, 115. Nevertheless,despite Plaintiff’s contact with Defendants in March 2010, advising them of her change incircumstances, Plaintiff has not been reassessed since January 2010. See id. at 115-16.
Although Plaintiff has been on the waiting list for waiver services since at least early 2008, and Defendants have representedto Plaintiff that the TBI/SCI Waiver program is full, the data from 2008 to 2009 may conflict with this representation. The TBI/SCI Waiver has been approved for 375 persons for the peri od beginning July 1, 2007, through June 30, 2012. See Waiver Amendment at 1. Ac cording to the Waiver List, which summarizes information regarding the utilization and cost of the state’s various waiver programs, as of November 1, 2008, the TBI/SCIWaiver had an enrollment ofonly 343 persons and a waiting list of 554 persons. SeeWaiver List at 2. Additionally,the Hudson Affidavit represents that, at the end of fiscal year 2008 to 2009, enrollment in the TBI/SCI Waiver was 309 persons. See Hudson Aff. at 3. Thus, it is unclear whether all 375 funded slots in the TBI/SCI Waiver Program are fully utilized.
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Even if the program is full, Defendants readily acknowledge that they could expand the number of slots in t he program before 2012, see id. at 59-60, but that would only guarantee money from the feder al government. Defendants would st ill need to provide Florida’s portion of the funding, as well as the expanded provider network necessary to support such an expansion, see id. at 65-66. However, Defendants provided no evidence as to the cost or impact of such an expansi on on other programs or its ability to provide adequate services to the state’s disabled population. Nevertheless, Defendants do assert that placing Plaintiff into the pr ogram would violate the TBI/SCI Waiver rules because Plaintiff is not next on the waiting list, and that if Defendants were forced to place Plaintiff in the TBI/SCI Waiver, they would have to reduce services that others in the program are currently receiving. See Russell Aff. I at 2; see also Tr. at 49-50, 66-67.
Nursing home care is a mandatory service under Medicaid, andif Plaintiff is required to enter a nursing facility, Defendants would have to pay for such care irrespective of budgetary constraints. See Tr. at 111. Defendants admit t hat, “[i]n most cases, when a Medicaid recipient is diverted or transitioned from a nursing facility to an [in-home services] waiver program, costs to Medicaid for providnig care to that individual are reduced.” Hudson Aff. at 3. Indeed, for budgeting purposes, De fendants assume a two-to-one savings for those diverted from nursing homes. See id. at 3-4. H owever, because of D efendants’ budget structure, Defendants would require Plaintiff to enter a nursing home, where funding comes from the state’s nursing home line item which the state is required to pay. See Tr. at 111. Then, after at least sixty consecutiv e days in a nursin g facility, Plaintiff would be
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eligible for the ni -home services she requiresfrom the TBI/SCI Waiver through the Transition Plan. See Kidder Aff. at 2; Tr. at 110-14.
The Transition Plan is independently funded by the Florida legislature through t he nursing home line item, see Kidder Aff. at 2; Tr. at 112, and was implemented to give Defendants a funding source to deinstitutionalize individuals who are qualified for in-home services but are languishing in nursing homes because of full waiver programs, see Tr. at 110-11. Essentially, the Transition Plangives Defendants’ budget flexibility. Seeid. at 111. The sixty-day requirement was implemented to avoid gamesmanship, such as individuals entering nursing facilities for a day and then jumping out immediately into a waiver program, see id. at 112-14, and Defendants contend that the requirement assures that an individual would legitimately, but for in-home services, enter a nursing home and be institutionalized, see id. at 104-06 (“Well, if somebody is going to spend 60 day s in a nur sing home, that makes it much more likely that they would have had to, without these waiver services, go into a nursing home. It’s essentially an a ssessment of need.”). Additionally, Defendants explain that the policy reflects Florida’s focus on deinstitutionalization as a priority over diversion. See id. at 106-07. Notably, however, Defendants do not assure that Plaintiff will be transitioned into the TBI/SCI Waiver immediaetly after sixty consecutive days in a nursing facility. See id. at 19, 73-75. Instead, Defendants st ate that Plaintiff would have to be institutionalized for “at least” sixty days, but then would have to be assessed and be determined to be safe for community plac ement. By this action, Plaintiff seeks injunctive relief requiring Defendants to provide her with in-home services without first subjecting herself to unnecessary institutionalization.
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III. DEFENDANTS’ “STANDING” CHALLENGE As an initial matter, Defendants as sert that Plaintiff lacks standing to pursue this
action because she has not been discriminated agai nst "by reason of . . . disability" and because any claims she has are precluded by a settlement reached in the case of Dubois v. Levine, Case No. 4:03-CV-107-SPM from the Unietd States District Court for the Northern District of Florida. See Defendants’ Motion to Dismiss Complaint (Doc. No. 32; Motion to Dismiss).9 Although Defendants did not raise these arguments as a challenge to Plaintiff's standing to sue in response to the Motion, they did present them in their Motion to Dismiss and during the Preliminary Injunction Heari ng. While Defendant s suggest that their arguments present a challenge to Plaintiff’s standing to pursue this action, that contention is simply without merit.
Standing is a jurisdictional requirement, andthe party invoking federal jurisdiction has the burden of establishing it. SeeLujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In order to establish standing under Article III of the United States Constitution, a plaintiff must "allege such a personal stak e in the outcome of the cont roversy as to warrant [her] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on [her] behalf." Watts v. Boyd Properties, 758 F. 2d 1482, 1484 (11th Cir. 1985) (quoting Warth v. Seldin, 422 U.S. 490, 499-500 (1975)). Specific ally, a plaintiff must prove t hree elements in order to establish standing: (1) that he or she has suffered an "i njury-in-fact," (2) that there is a "causal connection betweenhte asserted injury-in-fact and the challenged

9

Plaintiff has responded to the Mot ion to Dismiss. See Plaintiff Michele Haddad’s

Memorandum of Law in Opposition toDefendants’ Motion to Dismiss Complaint (Doc. No. 35; Response

to Motion to Dismiss).

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action of the defendant," and (3) ht at a favorable decision by ht e court will redress the injury.

See Shotz v. Cates , 256 F. 3d 1077, 1081 (11th Cir. 2001) (internal citations omitted).

"These requirements are the 'irreducible minimum'required by the Constitution for a plaintiff

to proceed in federal court." Id. at 1081 (quoting Northeastern Fla. Chapter of Associated

Gen. Contractors of Amer ica v. City of Jacksonville , 508 U.S. 656, 664 (1993)) (internal

citations omitted). Additionally, in an action for injunctive relief, a plaintiff has standing only

if the plaintiff establishes "a real and i mmediate–as opposed to a merely conjectural or

hypothetical–threat of future injury." See Wooden v. Board of Regentsof University System

of Georgia, 247 F. 3d 1262, 1284 (11th Cir. 2001). A complaint that includes "only past

incidents of discrimination" is insufficient to allege a real and immediate threat of future

injury. See Shotz, 256 F. 3d at 1081.

Defendants do not attempt to contest that Plaintiff can satisfy each of the

se

requirements. Instead, they appear to present a c hallenge to Plaintiff's ability to state a

claim for relief under the ADA, as well as a pot ential defense - that Plaintiff's claims are

barred by issue preclusion - or collateral estoppel. See Motion to Dismiss at 4; see Cope

v. Bankamerica Hous. Serv., Inc., No. Civ.A. 99-D-653-N., 2000 WL 1639590, at *4 (M.D.

Ala. Oct. 10, 2000). Upon review ofPlaintiff's claims, the Court isfully satisfied that she has

alleged an injury in fact, which is purport edly caused by the Defendants' actions, and for

which a favorable decision by the Court would provide redress. Moreover, Plaintiff alleges

a real and immediate threat of future injury. Thus, the Court determines that Plaintiff has

standing to pursue the claims raised in this ac tion. Moreover, neither of the challenges

raised by Defendants in their "standing" discussion is actually a challenge to the Court's

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subject matter jurisdiction. Thus, the Court will consider these arguments as challenges to Plaintiff's ability to succeed on the merits of her claims. IV. STANDARD FOR RELIEF
A party seeking preilminary injunctive relief must establish that “(1) it has a substantial likelihood of success on the merits, (2) the movant will suffer irreparable injury unless the injunction is issued, (3) the threatened injury tothe movant outweighs the possible injury that the injunction may cause the opposing party, and (4) if issued, the injunction would not disserve the public interest” before the district court may grant such relief. Hor ton v. St. Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001) (citing Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)); see alsoInt’l Cosmetics Exch. v. Gapardis Health & Beauty, Inc,. 303 F.3d 1242, 1246 (11th Cir. 2002) (citing Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995)). Additionally, “[i]t is well established in this circuit that a preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to all four elements.” Siegel, 234 F.3d at 1176 (internal quotations and alterations omitted).
A typical preliminary injunction is prohibitive in nature and seeks simply to maintain the status quo pending a resolution ofthe merits of the case. SeeMercedes-Benz U.S. Int’l, Inc. v. Cobasys, LLC, 605 F. Supp. 2d 1189, 1196 (N.D. Ala. 2009). When a preliminar y injunction is sought to force another party to act, rather than simply to maintain the status quo, it becomes a “mandatory or affirmative injunction” and the burden on the moving party increases. Exhibitors Poster Exch. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th Cir. 1971). Indeed, a mandatory injunction “‘should not be granted except in rare instances in
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which the facts and law are clearly infavor of the moving party.’” Id. (quoting Miami Beach Fed. Sav. & Loan Ass’n v. Callander, 256 F.2d 410, 415 (5th Cir. 1958)); see alsoMartinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976) 10 (“Mandatory preliminary relief, which goes well beyond simply maintaining the statusquo pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly fav or the moving party.”). Accordingly, a plaintiff seeking such relief bears a heightened burden of demonstrat ing entitlement to preliminary injunctive relief. See Verizon Wireless Pers. Commc’n LP v. City of Jacksonville, Fla., 670 F. Supp. 2d 1330, 1346 (M.D. Fl a. 2009) (quoting the Southern District of New York, “Where a mandatory injunction is sought, ‘courts apply a heightened standard of review; plaintiff must make a clearshowing of entitlement to the relief sought or demonstrate that extreme or serious damage would result absent the relief.’”); MercedesBenz, 605 F. Supp. 2d at 1196; OM Group, Inc. v. Mooney, No. 2:05-cv-546-FtM-33SPC, 2006 WL 68791, at *8-9 (M.D. Fla. Jan. 11, 2006).
Here, the parties disagree as to the nature otfhe relief sought. Plaintiff contends that because she merely seeks to prohibit unlawful d iscrimination, the injunctive relief she requests is prohibitive in nature and does not seek to change the status quo. However, Defendants argue that because Plai ntiff is not currently receiving in-home health care services from Defendants, and requests that this Court orderDefendants to provide her with such services, she seeks to change the status quo by requiring them to act. Because the Court determined that Plaintiff satisfied the heightened burden of demons trating her

10

In Bonner v. City of Prichard , 661 F.2d 1 206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down

prior to the close of business on September 30, 1981.

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entitlement to mandatory preliminary injunctive relief, the Court did not resolve the parties’
dispute as to the applicable standard.
V. DISCUSSION
A. SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
Title II of the ADA provides that “no qua lified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.”11 42 U.S.C. § 12132. In the decision of Olmstead v. L.C. ex rel Zimring, 527
U.S. 581 (1999), the Supreme Court considered the application of this anti-discrimination
provision in a rather unique context:
we confront the question whether the proscription of discrimination may require placement of persons with ment al disabilities in community settings rather than in institutions.
Id. at 587. The Court answered thisquestion with a “qualified yes.” Seeid. In doing so, the
Court held that the unjustified institutional isolation of persons with disabilities is a form of
discrimination by reason of disability. See id. at 597, 600-01. The Court explained:
Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions thatpersons so isolated are incapable or unworthy of participating in community life. . . . Second, confinement in an institution severely diminishes the everyday l ife activities of i ndividuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Dissimilar

11

Plaintiff’s Rehab Act claim is essentially the same as her ADA claim, and discrimination

claims of this kind are analyzed similarly under the two acts. See Allmond v. Akal Sec., Inc., 558 F.3d

1312, 1316 n.3 (11th Cir. 2009) (“Because the same standards govern discrimination claims under the

Rehabilitation Act and the ADA, we discuss those claims together and rel y on cases construing those

statutes interchangeably.”). Accordingly, the Court will refer primarilyto the ADA forthe sake of brevity.

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treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with m ental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.
Id. at 600-01 (internal citations omitted). To avoid the discriminat ion inherent in the
unjustified isolation of disabled persons, public entities are required to make reasonable
modifications to policies, practices, and proc edures for services they elect to provide.
Nevertheless, the OlmsteadCourt recognized that a state’s responsibility, once it determines
to provide community-based treatment, is not without limits. See id. at 603.12 Rather, the
regulations implementing the ADA require only“reasonable modifications” and permit a state
to refuse alterations to programs that will result in a fundamental alteration of the program
or service. See id.
In considering whether a proposed modification is a reasonable modification, which
would be required, or a fundamental alte ration, which would not, t he Olmstead Court
determined that a simple comparison showingthat a community placement costs less than
an institutional placement is not sufficient to establish reasonableness because it overlooks
other costs that the state may not be able to avoid. See id. at 604. The Court explained,
Sensibly construed, the fundamental-alteration component of the reasonablemodifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.

12

“‘[W]hile “[t]he section of Justice Ginsburg’s opinion discussing the state’s fundamental

alteration defense commanded only four votes . . . [b]ecause it relied on narrower grounds than did

Justice Stevens’ concurrence or Justice Kennedy’s concurrence, both of which reached the same

ultimate result, Justice Ginsburg’s opinion controls.”’” Arc of Washington State Inc. v. Braddock, 427

F.3d 615, 617 (9th Cir. 2005) (quoting Sanchez v. Johnson , 416 F.3d 1051, 1064 n.7 (9th Cir. 2005),

quoting Townsend v. Quasim, 328 F.3d 511, 519 n.3 (9th Cir. 2003)).

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Id. Indeed, the Cour t recognized that t he fundamental alteration defense must be

understood to allow some leeway to maintain a range of facilities and services. See id.

If, for example, the State were to demonstrate that it had a comprehensive,

effectively working plan for placing qualified persons with mental disabilities

in less restrictive settings, and a waiting list that moved at a reasonable pace

not controlled by the State’s endeavors tokeep its institutions fully populated,

the reasonable-modifications standard would be met. . . . In such

circumstances, a court would have no warrant effectively to or

der

displacement of persons at the top of the communtiy-based treatment waiting

list by individuals lower down who commenced civil actions.

Id. at 605-06. Thus, having considered the ADA as well as the applicable regulations, the

Court concluded that the ADA requires states to provide community based treatment f or

persons with disabilities when: (1) the state’s treatmentprofessionals have determined that

community-based services are appropriate for an individual; (2) t he individual does not

oppose such services; and (3) the services can be reasonably accommodated, taking into

account (a) the resources available to the sat te, and (b) the needs ofothers with disabilities.

See id. at 602-04, 607; Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare , 402 F.3d

374, 379-80 (3d Cir. 2005); Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of

Pa., 364 F.3d 487, 493 (3d Cir. 2004); Fisher v. Okla. Health Care Auth. , 335 F.3d 1175,

1181 (10th Cir. 2003). When these requirements are met, states must provide services to

individuals in community settings rather than in institutions. See Fisher, 335 F.3d at 1181.

Before addressing the Court’s conclusion that Plaintiff has established that she has

a substantial likelihood of satisfying these requirements such that Def endants should be

ordered, at this stage of the proceedings, to porvide her with in-homeservices, the Court will

first discuss Defendants’ general challenges to Plaintiff’s ability to pursue this action.

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Defendants first argue that Plaintiff cannot state a claim of discrimination under the ADA because she is not being discriminated agai nst “by reason of such disability” here because all in-home services waiver program s discriminate by their nature, providing services solely to disabled individuals and not to non-disabled individuals. See Response at 5-6; Motion to Dismiss at 4. However,the Eleventh Circuit and the Supreme Court have squarely rejected this argument. See Olmstead, 527 U.S. at 597-601 (affirming the finding of disability-based discriminat ion in L.C. v. Olmstead , 138 F.3d 893, 897-901 (11th Cir. 1998)). T he unjustified institut ional isolation of persons with disabilities is a form of disability-based discrimination that need not be accompanied bydissimilar treatment of nondisabled persons. Seeid. Indeed, in rejecting this sameargument by the state in Olmstead, the Court specifically stated, “Congress had a more comprehensive view of the concept of discrimination advanced in the ADA,” id. at 598, than the view espoused by the s tate. Therefore, Defendants’ argument is not well taken.
Next, Defendants assert that Plaintiff's clami s are barred by the doctrine of collateral estoppel. See Motion to Dismiss at 3-5. Specific ally, Defendants explain that the issues underlying Plaintiff’s claims were previously adjudicated by the settlement in the Dubois litigation, see Motion to Dismiss at 3-5, which resolved the claims of a class defined as encompassing “all individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligib le to receive services from Florida’s Medicaid Waiver Program for persons with traumatic brain and spinal cord injuries and have not yet received such services,” see Settlement (Doc. No. 32-2; Dubois Settlement) at 1.
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The doctrine of collater al estoppel, also referred to as issue preclusion, bars the relitigation of issues that previous ly have been litigated and decided. See Irvin v. United States, 335 F. App’x 821, 822-23 (11th Cir. 2009); Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000). To apply collateral estoppel, the following elements must be present: "(1) the issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in t he prior proceeding; (3) the determinati on of the issue in the prior litigation must have been ‘a critical and necessary part’ of the judgment in the first action; and (4) the party against whom collateral estoppelis asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding.” See Christo, 223 F.3d at 1339 (quoting Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998)). The principles of collateral estoppel ar e generally applicable to judgments entered in class actions like Dubois. See Cope, 2000 WL 1639590, at *5. However, while Defendants have provided the Court with a copy of the Dubois Settlement which was approved by the court, this single document is insufficientto establish that the first three prerequisites for collateral estoppel have been satisfied.13 However, even if they are satisfied, a review of the Dubois

13

Indeed, a cursory review of the Dubois Setetlment raises significant questions about the

Defendants’ ability to satisfy the second and third elements. Paragraph H(2) of the Dubois Settlement

agreement provides “all legal representations, including agreements based on legal claims, attributable

to the Defendants as set out herein are solely and excul sively for the purpose ofthis settlement and shall

not be binding o n these Defendants or Plaintiffs in any other action or proceeding. . . .“ See Dubois

Settlement at 11. Thus, it appears that the parties to the Dubois Settlement specifically intended that

their agreement not have any prospective preclu sive effect. Moreover, the Dubois Settlement

affirmatively provides “this agreement is not an admission of any wrongdoing or misconduct on the part

of Defendants nor is it an admission by Plaintiffs that Defendant would have prevailed in this litigation.”

See id. at 8. In Cope, the court found the second element of collateral estoppel lacking where the

settlement agreements at issue contained provisions indicating that the settlements did not constitute

admissions of fault, liability or wrongdoing or an admission that the claims were valid. In doing so, the

court noted that in accepting the prior settlement agreements, the reviewing court did not actually

“determine” any issues bearing on the defendant’s liability . See Cope, 2000 WL 1639590, at *9-10.

Therefore, the common issues had not actually been litigated. Seeid. Here, the parties didnot present

(continued...)

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Settlement establishes that Defendants cannot satisfy the f ourth element. Thus, t heir collateral estoppel defense fails.
The Eleventh Circuit has found the “opportunity to litigate” element satisfied where a litigant was a party to the previous action, and was afforded a full and fair opportunity to address the issues in question. See Irvin, 335 F. App’x at 823; Christo, 223 F.3d at 1340. However, where a part icular claim has not a ccrued at the time of the earlier proceeding, litigants cannot be said to have had a full and fair opportunity to litigate the issues. See In re Jennings, 378 B.R. 687, 696 (M .D. Fla. 2006) (f ull and fair opportunity to litigate requirement not satisfied where party had not yet been authorized to pursue a claim when the preceding adjudication occurred). Plaintiff was not a party to the Dubois litigation, nor was she a member of the class who woul d have had an opportunity to object to the settlement. This is so because Plaintiff did not suffer her injury until September 7, 2007, after the Dubois action was filed and even after the Dubois Settlement was signed and approved by the court. Accordingly, she had noopportunity to litigate her claims which had not yet accrued. See In re Jennings, 378 B.R. at 696.
Defendants’ authorities in support of issue preclusion based on the Dubois Settlement are unavailing. In Reyn’s Past a Bella, LLC v. Visa USA, Inc. , class members who wer e parties to the judicial proceedings were precluded from collaterally attacking a settlement agreement where they were part of the class and represented by counsel at the fairness hearing on the settlement agreement. See442 F.3d 741, 746-47 (9thCir. 2006). Similarly,
13(...continued) argument regarding the satisfaction of these elements of collateral estoppel in any detail. Because the Court finds that the final element required for collateral estoppel is clearly lacking, it need not address these elements further.
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in Carter v. Rubin, the court noted that “[c]ollateral estoppel, or issue preclusion, . . . bars ‘relitigation of [an] issue in a suit on a different cause of action involving a party to the first case.’” See 14 F. Supp. 2d 22, 34 (D.D.C. 1998) (sec ond alteration in original underline supplied). Unlike these plaintiffs, Plaintiff Haddad was not a party to the Dubois litigation.
In an effort to overcome this deficiency,Defendants assert that astrict reading of the class certified in Dubois establishes that Plaintiff is bound by that adjudication because she falls within the class definition which included “all individuals with traumatic brain or spinal cord injuries who the state hasalready determined or will determine to be eligible to receive services from Florida’s Medicaid Waiver Program . . . and have not yet received such services.” See Dubois Settlement at 1. However, Plaintiff could not have been a member of that class because, at the time the complaint was filed and the Dubois Settlement was signed and approved, she had no such injury. The language “who the state has already determined or will determine to be eligible to receive services” does not extend the class, ad infinitum, to all those for whom the state will evemr ake such a determination even though they had no injury at the time the Dubois Settlement was contemplated. Rather, this language plainly refers to those with such injuries at the time of the action, whether or not the state had determined their eligibility for services. Accordingly, Plaintiff’s claims in this action are not barred by the Dubois Settlement.
Defendants also contend that the motion for preliminary injunction must be denied because the implementing regulations of the ADA do notcreate a private right of action, and therefore, Plaintiff has no claim. Defendant s cite Am. Ass’n of People with Disabilities v. Harris, 605 F.3d 1124 (11th Cir. 2010)in support of thiscontention, but Harrisis inapplicable
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to the present case. In Harris, the plaintiffs filed suit against various state actors for failure to provide handicapped-accessible voting machines. SeeHarris, 605 F.3d at 1126-27. The district court dismissed the plaintiffs’ cl aims under the ADA, Rehab Act, and the Florida Constitution and statutes, but permittedthem to amend their complaint. Seeid. at 1127-28. The plaintiffs then filed a two-count amended cmo plaint, asserting claims under the ADA and the Rehab Act. See id. at 1128. After a bench trial, the district court issued a declaratory judgment and an injunction against the Supervisor of Elections (“Supervisor”) based not on a finding that he or any defendant violated the ADA or the Rehab Act, but rather based on a conclusion that the Supervisor of Elections violated the ADA’s implementing regulation, 28 C.F.R. § 35.151(5), which deals with nondiscrimination on the basis of disability in state and local services. See id. at 1128-29. The Supervisor appealed the injunction, but while that appeal was pending, other circ umstances rendered it moot. See id. at 1130. The district court then entered fi nal judgment against the Supervi sor in accordance with the declaratory judgment and injunction, which the Supervisor appealed. See id. at 1130-31.
In vacating the district court’s judgment, the Eleventh Circuit noted that, although the amended complaint contained claims under the ADA and the Rehab Act, the judgment did not declare that the defendants had violat ed either of those statutes. See id. at 1131. In fact, there was no finding at all in regard to the ADA or the Rehab Act. Seeid. The district court’s judgment was, instead, limited to finding a violati on of the ADA’s implementing regulation. See id. The Eleventh Circuit opined that it was unclear where the district court had found the authority to order the Supervisor to comply with the implementing regulation without first determining whether the ADA, itself, authorized such relief. See id. Indeed,
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after performing such an analysis, the Eleventh Circuit held that there was no private right of action arising from theimplementing regulation alone because congress placed available recourse within the ADA’s express statutory right of action. See id. at 1132-35. Thus, absent a violation of the ADA, a violation of its implementing regulations would not create a private right of action and remedy. See id. at 1135-36.
Nevertheless, Harris’ holding presents no bar to Plaintiff’s claim s because she is asserting a violation of the ADA, which does afford a private right of action. Indeed, Harris recognized that the ADA includes an express statutory right of action. See id. Moreover, the Supreme Court in Olmstead specifically found that unjusti fied isolation, under certain circumstances, can constitute aviolation of the ADA. See527 U.S. at 597. This is the basis of Plaintiff’s action–not a violation of the ADA’s integrationmandate, separate from the ADA or the Rehab Act, as in Harris. Therefore, Harris presents no bar to Plaintiff’s assertion of her right of action for a violation of the ADA based on unjustified isolation. See id. at 596602; see also Crabtree v. Goetz, NO. CIV.A. 3:08-0939., 2008 WL 5330506, at *24 (M.D. Tenn. Dec. 19, 2008); Grooms v. Maram, 563 F. Supp. 2d 840, 851-854, 854 n.3 (N.D. Ill. 2008); Radaszewski v. Maram, No. 01 C 9551., 2008 WL 2097382, at *14 (N.D. Ill. Mar. 26, 2008). Defendants’ arguments to the contrary simply reflect a mi scharacterization of Plaintiff’s claims. See Response at 5-6; Tr. at 36-38.
Alternatively, Defendants argue that Plaintiff cannot pursue her ADA claim because the Court must respect the pal in language of the ADA regulationswhich instruct that a public entity need not provide personal care services. See Response at 6-10. Specifically, they rely on 42 C.F.R. § 35.135 which states that public entities are not required to provide
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“services of a personal nature including assi stance in eating, toileting, or dressing.”

Defendants contend that in lightof this regulation, the ADA cannot be interpreted to require

them to provide such services to Plaintiff. See id. at 6. However, Defendants’ argument

misses the mark. The ADA does not require stat es to provide a level of care or specific

services, but onc e states choose to provide certain services, they must do so in a

nondiscriminatory fashion. See Olmstead, 527 U.S. 581, 603 n. 14; see also Fisher, 335

F.3d at 1182 (state may not amend opt ional programs so as to violate the ADA); cf.

Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999) (no ADA violation where

plaintiffs requested service not already pr ovided by defendant). Here, Defendants have

elected to provide the services that Plaintiff requests through the TBI/SCI Waiver program.

Having done so, they must provide them in accordance with the ADA’s anti-discrimination

mandate. Therefore, ifPlaintiff is entitled to Medicaid services and is otherwise qualified for,

desires, and requires TBI/SCI Waiver services in order to avoid unnecess

ary

institutionalization, the ADA may, indeed, require Defendants to provide Plaintiff with such

services if doing so would not result in a fundamental alteration of its programs.

Defendants last broad challenge t o the sufficiency of Plaintiff’s claims is their

argument that the ADA cannot abrogate or amend the Medicaid Act to make personal care

services mandatory or to require Defendants to uncap their TBI/SCI Waiver program. See

Response at 14-17. Specifically, Defendants c ontend that “the only way that Plaintiff’s

claims could be sustained is if the ADA were interpreted to amend (or partially repeal) the

Medicaid Act by implication, by either amending/repealing 42 U.S. C. § 1396a(a)(10)(A),

which makes personal c are services optional for states” or by requiring states to provide

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services under waiver programs. Response at 14. Indeed, Defendants conclude, “if the ADA’s prohibition of discrimination ‘by reason of . . . disability’ amends the Medicaid Act, then surely the HCBS waiver progar ms would not survive.” Response at 17. This is so, they argue, because waiver programs bytheir nature discriminate based on disability. The Court concludes that Defendants’ arguments are unavailing.
First the Court rejects Defendants’ c ontention that the success of Plaintiff’s action requires a finding that the ADA invalidates or amends the Medicaid Act by mandating the provision of personal care services which aer otherwise an optional benefit. Plaintiff’s claim requires no such finding. A determination that Plaintiff Haddad should b e provided the services at issue to avoid imminent institutionalization does not require a finding that states are required to provide personal care services as a mandatory Medicaid benefit. Indeed, Plaintiff is not seeking an order requiring Defendants to provide particular services through a waiver program, nor does she contend that the ADA prohibits states from imposing any limit on such programs. Instead, she cont ends that because Defendants have chosen to provide personal care services through the TB I/SCI Waiver to persons such as herself, Defendants must administer its provision of those services in compliance with the ADA. A state that chooses to provi de optional services, cannot defend against the discriminatory administration of those servicessimply because the state was notinitially required to provide them. Indeed, Defendants have provided no authority for the proposition that a state that chooses to provide Medicaid services, even if otherwise optional, would not be required to comply with the ADA in the provision of those services, just as it would have to comply with the ADA for any other “services, programs, or activities” provided by a public entity.
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The Court finds similarly unavailing Defendant s’ contention t hat Plaintiff’s claim requires the Court to invalidate 42 U.S.C. § 1396n(c)(1), (9) and (10), which make waiver programs voluntary and permit states to cap the enrollment in such programs.14 No such relief is sought in this action. Plaintiff’ s claim simply addresses the question of whether these Defendants, having opted to provide parti cular services via the mechanism of a Medicaid Waiver Program, maybe required, under the ADA, toprovide those same services to her if necessary to avoid imminent, unnecessary institutionalization. Defendants attempt to characterize such a finding as an invalidation of the Medicaid Act is without merit.
Having dispensed with Defendants’ general challenges to Plaintiff’s ability topursue the instant cause of action, the Court turns its attention to the determination set forth in the June 23, 2010 Order that Plaintiff has cle arly established that she has a substantial likelihood of prevailing on the merits of her claims. As per viously noted, the OlmsteadCourt determined that the ADA requires states to por vide community based treatment for persons with disabilities when: (1) the state’s treatment professionals have determined that community-based services are appropriate for an individual; (2) the individual does not

14

The Department of Health & Human Services, Center for Medicaid and State Operations

Olmstead Update No: 4 supports this determination:

May a state establish a limit on the tot al number of people who may receive services

under an [in-home services] waiver? Yes. . . . The State does not have an obligation

under Medicaid law to serve more people in the [in-home services] waiver than the

number requested by the State and approvedby the Secretary. If other laws (e.g., ADA)

require the State to serve more people, the State may do so using non-Medicaid funds

or may request an increase in the number of people permitted under the [in-home

services] waiver. Whether the State chooses to avail itself of possibleFederal funding

is a matter of the State’s discretion. Failureto seek or secure Federal Medicaid funding

does not generally relieve the State of an obligation that might be derived from other

legislative sources (beyond Medicaid), such as the ADA.

http://www.cms.gov/smdl/downloads/smd011001a.pdf (“Olmstead Update”); Reply at 9 (emphasis in

original omitted; underline supplied).

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oppose such services; and (3) the services can be reasonably accommodated, taking into account (a) the resources available to the sat te and (b) the needs of others with disabilities. See Olmstead, 527 U.S. at 602-604, 607.
It is undisputed that Defendants are public ent ities. Likewise, Defendants do not dispute that Plaintiff is a “qualified individual with a disability” who could be served in the community. Additionally, Plaintiff has provided ample evidence that she will have to enter an institution in order to receive the in-home services that would allow her to remain in the community and which Defendants provide through their TBI/SCI Waiver program. Indeed, Defendants have denied Plaintiff in-home services to date unless she first enters a nursing home so that funding for her services can be obatined from the Transition Plan. Thus, there is no dispute over the first two Olmsteadfactors. Plaintiff is on the waiting list as a qualified individual and Defendants admit sheis medically eligible for institutional and waiver program care. Not only does Plaintiff not oppose receipt of in-home services, she describes herself as desperately seeking t hem. T he only factor in question, then, is whether Plaintiff’s requested accommodation, receipt of in-homeservices, is a reasonable accommodation in light of Defendants’ resources and their obligations to other disabled individuals.
Defendants do not dispute that providing in-home services costs less than nursing home placement. As Plaintiff is qualified, anddesires, to receive in-home services, and the provision of in-home services is cost-neutral, 15 the Court turns to the question of whether Plaintiff’s requested accommodation would resultin a fundamental alteration of Defendant’s programs. See Radaszewski v. Maram , 383 F.3d 599, 614 (7th Cir. 2004) (reversing

15

Indeed, in-home services are cost-saving rather than merely cost-neutral.

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judgment in defendant’s favor and remanding for consideration of whether the reques ted relief “is unreasonable or would er quire a fundamental alteration ofthe State’s programs and services for similarly situated disabled persons.”); Townsend v. Quasim, 328 F.3d 511, 51920 (9th Cir. 2003) (reversing judgment and rem anding for consideration of whether the modification requested would fundamentally alter the nature of services provided by the state); see also Fisher, 335 F.3d at 1180-81; Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 323 (D. Conn. 2008).
Defendants argue that Plaintiff’s request ed relief would constitute a fundament al alteration of its program because providing se rvices to Plaintif f would c ost more than Plaintiff’s cost analysis indica tes, as there are costs in the form of expanding its waiver program provider network which would be in addition to the added burden on their budget. Defendants also assert that ht ey realize no savings unless anindividual first enters a nursing home for a sufficiently long period of time. However, Defendant provided no evidence to support these arguments.16 Beyond conclusory statements in the Response and at the hearing, Defendants have not shown how Plaintiff’s cost analysis is flawed, how much an expansion of their provider network would cost, or why an individual must enter a nursing home facility for a certain period of time before Defendants realiz e any savings. While Defendants may be able to support these contentions on a more developed recor d, they have not done so here.

16

In the May 25 Order originally scheduling thePreliminary Injunction Hearing, the Court

ordered the parties to submit all necessary evidence in advance of the hearing in accordance withRule

4.06(b), Local Rules, United States District Court, Middel District of Florida (Local Rule(s)). Indeed, the

hearing was continued in part to allow Defendants to obtain the necessary affidavits to pr esent to the

Court.

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Additionally, the Court notes that if it cosst less on a per day basis to provide in-home services instead of nursing facility care, it is unclear whyDefendants would not realize some savings from the start. Defendants’ cont ention appears to be based on the idea that if individuals are able to request and receive in- home services without f irst submitting to institutionalization, persons w ho are not truly at risk of in stitutionalization without s tate services, would nevertheless request provisi on of services at state expense. Thus , Defendants would be forced to spend funds fo r in-home services where no expenditure would otherwise be required. While this concern may have merit in the abstract, it has no application here. Based on the current record , Plaintiff has los t the provider of her necessary care. While her s on stepped in to provide that care due to the exigent circumstances, his home and responsibilities in Maimi, Florida will not permit him to continue to do so, and Plaintiff has no other source of care. While Defendants have suggested that they believe Plaintiff’s actual risk of institutionalization is somewhat speculative, see id. at 62-63, the only evidence in the record supports a finding that Plaintiff is, indeed, on the threshold of involuntary institutionalization, see Haddad Dec. at 4-5; JohnsDec. at 5. Thus, while Defendants may be able to present testim ony or evidence clarifying and supporting their concern, they have not done so at thistime, and the evidence before the Court strongly suggests that such a concern has no application as to this particular Plaintiff.17
Moreover, to the extent Defendants’ refusa l to provide services is based on its financial structure, the Court notes that budgetary constraints, taken alone, are not enough

17

The Court expresses no opinion as to the merit of su ch a challenge by others, under

different circumstances, or where the challenge to Defendants’ program is mounted on a more global

basis.

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to establish a fundamental alteration defense. SeePa. Prot. & Advocacy, Inc., 402 F.3d at 381. Factors relevant to a f undamental alteration defense certainly include the state’s available resources, as well as its responsibility to other individuals. SeeOlmstead 527 U.S. at 604; Pa. Prot. & Advocacy, Inc., 402 F.3d at 380. However, Defendants have pointed to no evidence, save for the single statement in the Russell Affidavit I that “[i]f the TBI/SCI Waiver Program were forced by court order toplace Ms. Haddad in the program, we would have to reduce services that others in the TBI/SCI Waiver Program are currently receiving.” Russell Aff. I at 2. However , where as here, the evidence is in conflict as to whether the TBI/SCI Waiver is actually full, this assert ion is insufficient to support a fundam ental alteration affirmative defense. Moreover, Defendants have failed to address other funding alternatives or to explain how being required to provide services to Plaintiff will undermine their ability to provide proper care to the st ate’s disabled population. Indeed, Defendants provided no evidence that providing services toPlaintiff would cause their programs to suffer or be inequitable given the state’s responsibility to provide for the care and treatment of its diverse population of persons with disabilities. Such evidence would certainly have been relevant to Defendants’ fundamental alteration defense.
Additionally, the Court finds that on t he current limited record, Defendants have simply failed to show that they have a comprehensive, effectively working plan in place to address unnecessary institutionalization. See id. at 381-82 (finding a c omprehensive effective plan to be a prerequisite to mount ing a f undamental alteration defense). In discussing the fundamental alteration defense, the Court in Olmstead recognized that if a state “had a comprehensive, effectively work ing plan for placing qualified persons with
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[disabilities] in less restrictive settings, and a waiting list that moved at a reasonable pace, not controlled by the state’s endeavors to k eep its institutions fully populated, the reasonable-modifications standard would be met” and the Court would have no reason to interfere. Olmstead, 527 U.S. at 605-606. Following this guidance, in Arc of Washington State Inc. v. Braddock, 427 F.3d 615, 621 (9th Cir. 2005), the Ninth Circuit determined that the state of Washington’s waiver program provided such an effective comprehensive plan such that the ADA required no modification. In doing so, the c ourt noted that the waiver program was full, had a waiting list with turnover, all eligible individuals had an opportunity to participate in the program once spacebecame available, slots had been increased when appropriate, expenditures more than doubled despitesignificant cutbacks or minimal budget growth in the agencies, andthe institutionalized population declined by 20%. Seeid. at 621.
The record before the Cour t contains no similar evidence. Defendants have only shown that the various waiver programs hav e increased in size and expenditures. See Hudson Aff. at 1-3; see also Makin ex rel. Russell v. Haw., 114 F. Supp. 2d 1017, 1035 (D. Haw. 1999) (only showing an effort to decr ease waiting list by increasing slots, without evidence of a plan, did not showthat the state was complyingwith the ADA). However, this does not address the effectiveness of the TB I/SCI Waiver program. Indeed, Defendant s were unable to provide the Court with even the most basic factual information in regard to the waiver program and its wait ing list. Defendants did not know Plaintiff’s place on the waiting list beyond the fact that she wa s not in the top forty-five. See Tr. at 51-52. Defendants provided no information as to the average time spent on the waiting list or the rate of turnover, see id. at 54, 102-03, although Plaintiffhas been waiting for approximately
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two-and-a-half years. Defendant s’ evidence was in conflict as to whether the TBI/SCI
Waiver program was full. See id. at 60-62; 96-98. While Defendants argued that they are
committed to decreasing the institutionalized population, they did not present evidence that it has steadily declined.18 Indeed, contrary to Defendants’ assertion of a comprehensive
effective plan, the evidence suggests that Defendants’ plan may well be ineffective given
that their last representation to Plaintiff advised:
[p]resently, the Department of Ch ildren and Families does not have funds available (or available openings) to serve additional individuals through these programs. . . . Placement on the waiting list does not ensure future eligibility. Funding is very limitedin these programs, and the amount of funding allocated to these programs has not been increased in many years . Unfortunately, moving individuals off the waiting list into these programs does not occur frequently, therefore, we encourage you to continue seeking services from other programs.
January 8, 2010 Letter at 1. Moreover, despitePlaintiff having informed Defendants of the
change in her circumstances in March 2010, Plaintiff has not been reassessed in regard to
her priority on the waiting list for the TBI/SCI Waiver. See Haddad Dec. at 4; Tr. at 115-16.
Instead of providing evidencethat they have in place anefficient comprehensive plan
to avoid institutionalization, Defendants offer the alternative that Pl aintiff enter a nursing
home for at least sixty days and then be transitioned out of the institution and provided in-
home services thereafter. See Tr. at 73-75. This proposal simply gives Defendants an
alternative funding source for provision of the services Plaintiff requires. Thus, to satisfy
Defendants’ budgetary structure, an individual must run the gauntlet of institutionalization
for at least sixty days in order to receive in-home services. See id. 105-07. Defendants

18

Counsel made some representations regarding numbers based on “hisunderstanding”

but presented no evidence in support of that understanding.

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have, on the current record, failedto show that such a deprivatoi n is necessary to effectively provide care and treatment for the diverse popul ation of persons with disabilities. Rather than providing for a proper assessment of needwhich may obviate the need for individuals to meet such a threshold, Defendants appear to be shifting the unnecessary burden of institutionalization onto Medicaidrecipients. Accordingly, on the current rceord, Defendants’ fundamental alteration defense isnot sufficiently supported, and Pal intiff established that the law and facts at this stage clearly indicate she is likely to prevail on the merits of her case.
B. IRREPARABLE INJURY Defendants argue that Plaintiff is unlikely to suffer irreparable injury because she will only be institutionalized temporarily. However, Defendants candidly acknowledge that they cannot assure the length of time in question, or that it is truly finite. Indeed, Defendants admit that upon the ex piration of the six ty-day period, Plaintiff, who has been living successfully in the community for the last two and a half years, would have to be assessed by the state and be foundto be safe for community placement. Accordingly, all Defendants can guarantee is that Plaintiff will face at least sixty days of institutionalization. See id. at 19, 73-75. The requi rement that P laintiff first enter a nursi ng home i n order to be transitioned out sometime thereafter presents Pl aintiff with exactly the kind of unc ertain, indefinite institutionalization that can constitute irreparable harm. See Katie A. v. L .A. County, 481 F.3d 1150, 1156-57 (9th Cir. 2007) (though it app lied an erroneous legal interpretation of the Medci aid statute, district court found unnecessary ni stitutionalization that would occur absent a preliminary in junction to be irreparable harm); Long , 2008 WL 4571903, at *2 (if preliminary injunction was not issued, plaintiff would have to re-enter
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nursing facility, which would inflict irreparable injury); McMillan v. McCrimon, 807 F. Supp. 475, 479 (C.D. Ill. 1992) (“possib ility that the p laintiffs would be forced to enter nursing homes constitutes irreparable harm that cannotbe prevented or fully rectified by a judgment later”). Moreover, Plaintiff’s physician has indicated that institutionalization will be detrimental to Plaintiff’s health and well-being. See Johns Dec. at 5 (“if [Plaintiff] were placed in a nursing home she would quicklybecome depressed and her health would most likely deteriorate”); see also Marlo M. v. Cansler, 679 F. Supp. 2d 635, 638 (E.D.N.C. 2010) (plaintiffs would suffer regressive consequences); Long, 2008 WL 4571903, at *2 (plaintiff would suffer “enormous psychological blow”). Therefore, Plaintiff clearly established that she is at risk of irreparable injury if required to enter a nursing home.
C. BALANCE OF HARMS Additionally, Defendants admit that “i f [Plaintiff] were to go i nto a nursi ng home tomorrow, okay, or today or next week or whatever, then clearly the balance of hardships would tip in her favor. . . . Hypothetically, thatif she were to enter a nursing home, then yes, the balance of hardships would tip in her favor.” Tr. at 65. But Defendants argue that Plaintiff’s entry into a nurs ing home is speculative, and therefor e, if Plaintiff would not be institutionalized for months ora year, the balance of harm would swing in Defendants’ favor. See id. However, as previously noted, the Court is satisfied that Plaintiff established that she is, indeed, on the threshold of unneecssary institutionalization. SeeHaddad Dec. at 4-5; Johns Dec. at 5; Tr. at 83. Accordingly, the balance of harms clearly lies in Plaintiff’s favor.
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D. THE PUBLIC INTEREST Likewise, the public interest favors preventing the discrimination that faces Plaintiff so that she may avoid unnecessaryinstitutionalization. See Olmstead, 527 U.S. at 599-01. The public interest also favors “upholding the law and having the mandates of the ADA and Rehabilitation Act enforced,” as well as in providing injunctive relief that “will cost less than the alternative care proposed by Defendants. Asthe funding originatesfrom tax dollars, the public interest clearly lies with maintaining Plai ntiffs in the set ting that not only fulfills the important goals of the ADA, but does so by spending less for Plaintiffs’ care and treatment.” See Marlo M., 679 F. Supp. 2d at 638-39; see also Long, 2008 WL 4571903, at *3. VI. CONCLUSION In consideration of the fo regoing, the Court determined that Plaintiff made a c lear showing that she has a significant and substantial likelihood of succeeding on the merits of her claim, that Defendants’ refusal to provide her with in-home based health care services for which she is financially and medically eligible, and which Defendants provide to others through the TBI/SCI Medicaid waiver program violates the ADA; that she will suffer irreparable injury unless the injunction is iss ued in that she is at imminent risk of being institutionalized in order to obtain the necessary services which Defendants refuse to provide her outside the institutional setting; that the threatened injury to Plaintiff outweighs the possible injury that the limited injunctvi e relief ordered here may cause Defendants; and
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Case 3:10-cv-00414-MMH-TEM Document 49 Filed 07/09/10 Page 39 of 39 PageID 877 that such an injunction would not disserve the public interest .19 Ac cordingly, the Court entered its June 23, 2010 Order granting preliminary injunctive relief in this action. DONE AND ORDERED in Jacksonville, Florida, this 9th day of July, 2010.
Copies to: Counsel of Record

19

Again, the Court cautions that its findings inthis Opinion are strictly limited to the unique

circumstances currently facing Plaintiff, Mic hele Haddad, and are based upon the limited record now

before the Court. Thus, thisCourt’s determination that preliminary injunctive relief is appropriate should

not be interpreted as suggesting that the Court will find such relief warranted under circums tances

different from those here, or that Defendants, on a more com plete record, cannot establish that such

relief would constitute a fundamental alteration of their programs or that they have a comprehensive,

effectively working plan for providing services to qualified individuals with disabilities obviating the need

for such relief.

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 </s> Case 3:10-cv-00414-MMH-TEM Document 69 Filed 04/15/11 Page 1 of 2 PageID 977

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

MICHELE HADDAD,

Plaintiff,

vs.

Case No. 3:10-cv-414-J-34TEM

ELIZABETH DUDEK, in her official capacity as Secretary, Florida Agency for Health Care Administration; and

DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health

Defendant(s). ______________________________________

JOINT STIPULATION OF DISMISSAL WITH PREJUDICE

Plaintiff Michele Haddad and Defendants Elizabeth Dudek, in her official capacity as the

Secretary of Florida Agency for Health Care Administration, and Dr. Ana Viamonte Ros, in her

official capacity as Surgeon General, Florida Department of Health, hereby file their Joint

Stipulation of Dismissal pursuant to Rule 41(a)(1)(A)(ii), Fed.R.Civ.P., and state:

1. It is hereby stipulated that the parties jointly stipulate to dismissal with prejudice of

this ADA and Section 504 of the Rehabilitation Act claims.

2. The parties request that the Court reserve jurisdiction regarding Plaintiff’s reasonable

attorneys’ fees and costs. If the parties are unable to resolve amicably the matter of attorneys’ fees

and costs by agreement within sixty (60) days from the date of dismissal, Plaintiff shall notify the

Court and file a motion in accordance with the Federal and Local Rules of Court within fourteen

(14) days of the parties’ failure to resolve the matter of attorneys’ fees and costs.

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CERTIFICATION

All parties certify that they are in agreement with the relief stated above.

/s/ Stephen F. Gold STEPHEN F. GOLD Pennsylvania Bar No.: 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 Telephone: (215) 627-7100, ext 227 Facsimile: (215) 627-3183 Email: stevegoldada@cs.com

/s/ Enoch Jonathan Whitney ENOCH JONATHAN WHITNEY Florida Bar No.: 130637 Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399 Telephone: (850) 414-3662 Facsimile: (850) 488-4872 Email: Jon.Whitney@myfloridalegal.com

Counsel for Defendant Department of Health

/s/ Jay M. Howanitz JAY M. HOWANITZ Florida Bar No.: 0020967 Spohrer & Dodd, P.L. 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com

/s/ Andrew T. Sheeran ANDREW T. SHEERAN Florida Bar No.: 0030599 Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 Telephone: (850) 922-0158 Facsimile: (850) 921-0158 Email: sheerana@ahca.myflorida.com

Counsel for Plaintiff

Counsel for Defendant Agency for Health Care Administration

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by CM/ECF to the following: Andrew T. Sheeran, Agency for Health Care Administration, Office of the General Counsel, 2727 Mahan Drive, Building 3, MS #3, Tallahassee, Florida 32308; Enoch Jonathan Whitney, Florida Department of Health, Office of the Attorney General, PL-01 The Capitol, Tallahassee, Florida 32399; Anne S. Raish, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 950 Pennsylvania Avenue, N.W. – NYA, Washington, D.C. 20530 this 15th day of April, 2011.

s/ Jay M. Howanitz Jay M. Howanitz, Esq. Florida Bar No. 0020967 SPOHRER & DODD, P.L. 701 West Adams Street, Suite 2 Jacksonville, Florida 32204 Telephone: (904) 309-6500 Facsimile: (904) 309-6501 Email: jhowanitz@sdlitigation.com

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 </s> Case 3:10-cv-00414-MMH-TEM Document 32 Filed 06/08/10 Page 1 of 25 PageID 439

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MICHELE HADDAD,

Plaintiff v.

Case No: 3:10-cv-414-J-99MMH-TEM

THOMAS W. ARNOLD, in his official Capacity as Secretary, Florida Agency for Health Care Administration, and
DR. ANA VIAMONTE ROS, in her official capacity as Surgeon General, Florida Department of Health,
Defendants
_________________________________________/
DEFENDANTS’ MOTION TO DISMISS COMPLAINT
The Defendants, THOMAS W. ARNOLD, in his official capacity as the Secretary of
the Florida Agency for Health Care Administration, and DR. ANA VIAMONTE ROS, in
her official capacity as Surgeon General, Florida Department of Health, by and through
undersigned counsel, hereby move pursuant to Rule 12(b)(1) and (6), Fed. R. Civ. P., to
dismiss this cause for lack of subject matter jurisdiction and for failure to state a claim upon
which relief can be granted. As grounds therefore, Defendants state as follows:
1. On May 13, 2010, Plaintiff Michele Haddad (Haddad) filed her Complaint,
which was served on Defendants on May 17, 2010. The Complaint alleges that Defendants
violate Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (ADA), and
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (Rehab Act) by denying in-home
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2. This Court should dismiss the Complaint pursuant to Rule 12(b)(1) and (6), Fed. R. Civ. P., because Plaintiff lacks standing to bring this action, Plaintiff fails to allege an clear violation of the ADA, Rehab Act, or the Medicaid Act, the implementing regulations of the ADA which form the basis of Plaintiff‟s claim are not enforceable by private right of action, the claim for provision of personal care services exceeds the scope of the ADA, the ADA neither abrogates nor amends the Medicaid Act, and Plaintiff‟s requested relief would constitute a fundamental alteration of the Florida Medicaid Program, which the ADA does not require.
3. As further support for this Motion, the Defendants submit the following Memorandum of Law, which is attached hereto and incorporated herein by reference
MEMORANDUM OF LAW I. The Complaint Should be Dismissed Because Plaintiff Lacks Standing.
Plaintiff lacks standing in this case because Plaintiff fails to allege discriminatory conduct. To state a claim under Title II of the ADA, a plaintiff must allege: (1) that she is a "qualified individual with a disability;" (2) who was "excluded from participation in or . . . denied the benefits of the services, programs, or activities of a public entity" or otherwise "discriminated [against] by such entity;" (3) "by reason of such disability." Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001). Plaintiff does not allege facts from which this Court could conclude that Plaintiff has been excluded from participation, denied benefits, or otherwise discriminated against by a public entity “by reason of …. disability.” Id. In fact, Plaintiff‟s Complaint takes special note that individuals just like Plaintiff receive services in the community for the same types of disabilities. (Complaint, p. 5.) The fact that persons
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just like Plaintiff are being served in the community shows that any disparate treatment is not “by reason of…disability.”
Plaintiff also fails to allege discriminatory treatment. Plaintiff is not a member of a suspect class so disparate treatment is analyzed using a rational basis test.1 Under such a test, disparate treatment is upheld if there is a rational basis for it; that is, “if any state of facts reasonably may be conceived to justify it.” D. W. v. Rogers, 113 F.3d 1214 (11th Cir. 1997). Here, Plaintiff fails to allege discriminatory treatment applying rational basis review, because Plaintiff fails to allege facts from which this Court could conclude that there is no rational basis for Defendants‟ actions.2 Because of the omission of critical elements necessary to maintain Plaintiff‟s action – an allegation of a violation of Title II of the ADA– Plaintiff does not have standing to maintain this lawsuit.
Plaintiff further lacks standing because she is a member of the class certified in Dubois v. Levine, Case No. 4:03-CV-107-SPM, in which the Federal District Court for the Northern District of Florida addressed a claim on behalf of a statewide class of persons with brain and spinal cord injuries that the State Defendants (the same defendants in the case sub judice) engaged in a “systemic and continuing failure to provide the named Plaintiffs and alleged class members (Plaintiffs) with medically necessary home and community based services” in violation of the ADA and Rehab Act. See Dubois Complaint, attached as
1 An equal protection claim predicated on disparate treatment of individuals with disabilities is subject to only rational basis review. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (U.S. 1985); and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 366-68, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001). 2 Plaintiff may argue that Title II of the ADA modifies the analysis of what constitutes “discriminatory treatment,” because of the interpretation of DOJ of a state‟s responsibilities thereunder as described in 28 C.F.R. § 35.130(b)(7). However, the provisions of 28 C.F.R. § 35.130(b)(7), exceed Congressional intent pertaining to the scope of Title II, as is discussed further below in Part III.
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Exhibit A. The Court certified as a class “all individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligible to receive services from Florida‟s Medicaid Waiver Program for persons with traumatic brain and spinal cord injuries and have not received such services.” (Emphasis added.) See Dubois Settlement, attached as Exhibit B. This Settlement was approved by the Court and the Court dismissed the action with prejudice pursuant to the Settlement‟s terms. See Order of Dismissal with Prejudice, attached as Exhibit C. The law is clear that the doctrine of issue preclusion (or collateral estoppel) bars a party from what is tantamount to a collateral attack on a settlement issued in a prior class action asserting essentially the same claims or issues. Reyn‟s Pasta Bella, LLC v. Visa USA, Inc., 442 F. 3d 741 (9th Cir. 2006); Carter v. Rubin, 14 F. Supp. 2d 22 (D.C. D.C. 1998). There are four issues that are addressed in applying issue preclusion or collateral estoppel: (1) identity of issues; (2) prior adjudication resulting in a final judgment on the merits; (3) whether Plaintiff here was a party or in privity with a party to the prior adjudication; and (4) whether that party had a full and fair opportunity to litigate the issue in the prior proceeding. 47 Am. Jur. 2d, Judgments, sec. 489. In the case at bar, the issues are identical. The prior adjudication in Dubois resulted in a final judgment on the merits. Further, the parties are identical because Plaintiff here is necessarily included as a future member in the definition of the class in Dubois. Federal courts generally follow a three-step process in determining whether issue preclusion applies: (1) the identification of issues in the two actions to determine whether the issues are sufficiently similar and material in both actions to justify invoking the doctrine; (2) the examination of the record of the prior case to decide whether the issue was litigated in the first case; and (3) the examination of the
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record in the prior proceeding to ascertain whether the issue was necessarily decided in the first case. Id. Here, the issues are sufficiently similar and material; and the issues were both litigated and decided in Dubois. Accordingly, the doctrine of issue preclusion (or claim preclusion or collateral estoppel) applies to bar this action. Based upon the lack of standing, the Complaint should be dismissed pursuant to Rule 12(b)(1), Fed. R. Civ. P. II. Plaintiff Fails to State a Claim Upon Which Relief Can be Granted Because
She Fails to Allege a Clear Violation of the ADA, Rehab Act, and Medicaid Act and Defendants’ Alleged Conduct Does Not Constitute Discrimination Under the ADA. A. Haddad does not allege a clear violation of the Medicaid Act or the
ADA. Plaintiff does not and cannot point to any violation of the Medicaid Act or of the ADA in bringing her claim. As will be shown, the federal Medicaid Act specifically makes the type of service Haddad seeks here, personal care assistance (PCA), an optional Medicaid service. The federal Medicaid Act also makes home and community-based waiver services (HCBS) (which can include PCA) optional, and allows states that opt to provide these services to cap the number of persons served. Thus, Florida has unquestionably followed federal Medicaid law in choosing not to provide PCA through its Medicaid program, and has followed the law in providing HCBS to a limited number of persons. In addition, Plaintiff does not point to any statutory provision of the ADA that supports her cause. Title II of the ADA, which pertains to public programs and services, generally states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42
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U.S.C. § 12132. The regulations to the ADA, moreover, state that the ADA “does not require a public entity to provide to individuals with disabilities … services of a personal nature including assistance in eating, toileting, or dressing.” 42 C.F.R. § 35.135. Accordingly, the Defendants‟ decision to generally exclude PCA services from Medicaid coverage complies with the black letter of the ADA and its implementing regulations.
B. Defendants’ Alleged Conduct Does Not Constitute Discrimination Under the ADA
Rather than point to the text of the federal Medicaid Act or the ADA, Plaintiff bases her case on the ADA implementing regulations. First, Plaintiff asks this court to enforce what is known as the ADA‟s “integration mandate” which is found at 28 C.F.R. § 35.130(d), and which states: “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” See Complaint, e.g., ¶¶ 49, 52, 74, Relief Requested. Second, Plaintiff essentially asks this Court to ignore the ADA‟s explicit exclusion of PCA services from its purview. This Court should reject both arguments. The ADA‟s implementing regulations do not create a private right of action, and this Court cannot ignore the plain meaning of the regulation excluding PCA from the ADA‟s reach.
Because Plaintiff does not allege violations of the ADA, Rehab Act, or Medicaid Act, and the Defendants‟ alleged conduct does not constitute discrimination under the ADA, Plaintiff fails to state a claim upon which relief can be granted and the Complaint should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. III. Plaintiff Fails to State a Claim Upon Which Relief Can be Granted Because
the Regulations Implementing Title II of the ADA, Including the “Integration Mandate”, are Not Enforceable by Private Right of Action
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The “integration mandate” in Title II of the ADA does not create a private right of action. As the Eleventh Circuit held in a recent decision, “[w]hile the ADA directed the Attorney General to promulgate regulations implementing Part II, 42 U.S.C. § 12134, the purpose of those 22 regulations is to provide standards for compliance with the ADA, id. § 12134(c), not to give individuals a right to sue if compliance with those standards is not met.” Am. Ass'n of People with Disabilities v. Harris, 2010 U.S. App. LEXIS 9615, at 28 (11th Cir. Fla. May 11, 2010) (emphasis added). Here, Haddad alleges that compliance with the “integration mandate” has not been met and that this confers on her the right to bring an action against the Defendants. As Am. Ass‟n of People with Disabilities demonstrates, this is not the case.
Plaintiff may argue that she is not seeking to independently enforce the “integration mandate,” but is rather attempting to enforce the ADA itself, the scope of which is interpreted and defined by the “integration mandate” regulation. However, the technical violation of the “integration mandate” that Plaintiff alleges here cannot constitute a violation of § 12132, as Plaintiff alleges. Section 12132 provides: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity” (emphasis added). Here, the program from which the Plaintiff alleges she has been “excluded from” or “denied the benefits of” (the TBI/SCI Waiver program) is only available to individuals with the same disability as the Plaintiff. By definition, therefore, any exclusion, denial, or discrimination cannot be “by reason of such disability.” Any such exclusion, denial, or discrimination would have to be for some
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other reason. The Plaintiff has therefore failed to allege a violation of § 12132, and cannot enforce the “integration mandate.” Because the “integration mandate” is not enforceable by private right of action, Plaintiff‟s Complaint fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P.
Additionally, had Congress intended to make the integration mandate part of Title II of the ADA, it knew how to do so. Title III of the ADA contains an express statutory integration mandate at 42 U.S.C. § 12182(b)(1)(B). Had Congress intended to provide similar coverage in Title II as it did in Title III, Congress could have included an integration mandate in the statutory body of Title II. It did not. The express integration mandate in Title III calls into question whether the integration mandate in Title II constitutes a valid exercise of delegated legislative authority. The U.S. Supreme Court in Olmstead did not answer this question, instead noting that “we cite [Title II's regulations, including the integration mandate] with the caveat that we do not here determine their validity.” Olmstead, 427 U.S at 592. The Eleventh Circuit issued this same caveat in Bircoll v. Miami-Dade County, 480 F.3d 1072, 1082 n.13 (11th Cir. 2007). Congress did not explicitly authorize any federal agency to create a privately enforceable integration mandate. To the extent the Department of Justice (DOJ) attempted to do so with respect to Title II, its actions were not authorized by Congress. Moreover, even if the regulation were somehow valid, a regulation cannot invalidate the provisions of a separate Congressional enactment, and the integration mandate thus cannot modify the Medicaid Act. The Complaint therefore fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P.
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IV. Plaintiff’s Claims for Community-Based Personal Care Services under the ADA and the Rehab Act Fail to State a Claim Upon Which Relief Can Be Granted Because the ADA Does Not Require a Public Entity to Provide Services of a Personal Nature In this case, Plaintiff seeks assistance transferring from her bed to her wheelchair and
from her wheelchair back to her bed, and assistance dressing, grooming, toileting, and with other activities of daily life. Complaint, ¶ 21-22. Plaintiff contends that the ADA requires the provision of such PCA. This is not the case. The ADA regulations specifically exclude PCA services from the ADA‟s purview.
Section 35.135 of the ADA‟s implementing regulations states that the ADA “does not require a public entity to provide to individuals with disabilities…services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). In its Statement of Interest in this case, the DOJ argues that 28 C.F.R. § 35.135 “affords no defense here.” Statement of Interest of the United States of America, p. 13. The DOJ contends that § 35.135 “simply makes clear that Title II does not require a State to provide personal services in a program that does not include such services. (For example, the Department of Motor Vehicles need not provide wheelchairs to those who wait in line for a driver‟s license.)” Id (emphasis in original). The DOJ implies that, because Florida allegedly provides PCA services to Medicaid recipients in the nursing home, it must also provide these services in the community under the “integration mandate.” Id. This is made clear, the DOJ contends, by its own “authoritative interpretation” of 28 C.F.R. § 35.135. Id. This “interpretation,” however, is entitled to no deference.
Simply stated, the DOJ‟s “interpretation” of 28 C.F.R. § 35.135 is not an interpretation at all. It is an attempt to carve out an exception to this regulation that is not
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present in the text. The DOJ wants this Court to say that the regulation contains an exception for public entities that provide PCA services. This is an improper attempt to amend the regulation without complying with the requirements of the federal Administrative Procedures Act.
Section 35.135 has a plain meaning and is unambiguous. It is not subject to “interpretation” as Courts cannot and do not interpret regulations that have a plain meaning. Nor do courts defer to agency “interpretations” of unambiguous regulations. As the United States Court of Appeals for the Eleventh Circuit stated in Charter Fed. Sav. & Loan Ass‟n v. Office of Thrift Supervision, 912 F.2d 1569, 1580-1 (11th Cir. 1990), “where the language selected by the drafters is clear and unequivocal, the courts are bound to give effect to the plain meaning of the chosen words [of a regulation] and no duty of interpretation arises.” Id., (citing KCMC, Inc. v. FCC, 600 F.2d 546, 549 (5th Cir. 1979)).
Likewise, the United States Supreme Court has held that “deference is warranted only when the language of the regulation is ambiguous.” Christensen v. Harris County, 529 U.S. 576, 588 (U.S. 2000). This regulation is not ambiguous. “To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” Id.
Section 35.135 could not be clearer: “This part does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing” (emphasis added). There is no ambiguity or need for interpretation, and there is
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no exception for public entities that provide PCA services. Indeed, the DOJ cannot identify a single ambiguous term or phrase in the regulation – and in the absence of ambiguity, federal courts prohibit interpretation.
In its Statement of Interest, the DOJ cites the ADA Title II Technical Assistance Manual, § II-3.6200, which, in reference to the provision in § 35.135, states: “Of course, if personal services or devices are customarily provided to the individuals served by a public entity, such as a hospital or nursing home, then these personal services should also be provided to individuals with disabilities.” This statement, which is not itself a regulation, says nothing about the provision of PCA in the community. On its face, it is clearly referring to the provision of PCA to individuals with disabilities in a context where such services are “customarily provided to the individuals served by a public entity, such as a hospital or nursing home” (emphasis added). The plain meaning of this provision is that a hospital or nursing home should not take § 35.135 to mean that they can deny PCA to individuals with disabilities who are in their custody.
Thus, § 35.135 and the Guidance that accompanies it exempt public entities from having to provide PCA outside of a custodial context such as a nursing home or hospital. The DOJ then employs a classic piece of circular logic. According to the DOJ, once a public entity follows its Guidance and provides PCA in a nursing home, its “interpretation” of § 35.135 takes effect and the public entity is required to provide personal care assistance in the community as well. Section 35.135 and its interpretive Guidance thus become a tautological trap. The Guidance requires nursing homes to provide PCA, but once they do
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the DOJ will “interpret” its regulations to require personal care in the community. This Court should not allow such games to be played with an unambiguous regulation.
This Court should also note that PCA services are not among the essential “services, programs, and activities” that the Florida Medicaid Program provides in nursing facilities. 42 C.F.R. § 35.130(d). The Florida Medicaid Program pays for “24-hour-a-day nursing and rehabilitative services for a recipient in a nursing facility licensed under part II of chapter 400.” § 409.905(8), Florida Statutes (emphasis added). No doubt, personal care services are provided in nursing facilities. However, nursing facilities provide these services incidentally from the custodial relationship between the nursing facility and the Medicaid recipient, in order to keep the residents in optimum health. Meals and snacks are also incidentally provided in nursing facilities. Under the DOJ‟s “interpretation” of its regulation, the “integration mandate” would mean that the Florida Medicaid Program has to provide meals and snacks to disabled Medicaid recipients in the community. The Florida Medicaid Program requires nursing facilities to provide “a clean comfortable mattress, pillows, clean linens and bedding appropriate to the weather and climate, towels and washcloths, functional furniture appropriate to the resident‟s needs, and individual closet space with clothes racks and shelves.” Florida Medicaid Nursing Facilities Coverage and Limitations Handbook, p. 2-9. The tautological interpretation of the “integration mandate” that the Plaintiff and DOJ espouse would require the Florida Medicaid Program to assure that all disabled Medicaid recipients in the community have these items in the community; including the requirement for adequate closet space. This clearly goes too far, but it is the same absurd logic that lies behind the Plaintiff and DOJ‟s claim that the “integration
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mandate” requires the provision of PCA in the community simply because it can be received in a nursing facility.
The regulations implementing Title II of the ADA are clear. Florida is required to administer its services “in the most integrated setting appropriate,” but this cannot be read to require the Florida Medicaid Program to provide “services of a personal nature,” which is precisely what Plaintiff is requesting here. The ADA does not require the provision of PCA services. Plaintiff‟s Complaint therefore fails to state a claim upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. V. The ADA Neither Abrogates nor Amends the Black Letter Provisions of the
Medicaid Act The fundamental question that lies at the heart of this lawsuit relates to the relationship between the ADA and the Medicaid Act. To resolve this case, this Court will need an understanding of both laws.
1. Medicaid Medicaid is a joint federal-state venture created by federal statute, Title XIX of the Social Security Act of 1965, as amended. 42 U.S.C. § 1396 et seq. In order to participate in Medicaid, a state must submit a plan to the federal government outlining its program to fund medical services for the poor and needy in accordance with the federal Medicaid Act. If the federal government approves the plan, it then subsidizes the costs. Currently, with the addition of stimulus funds pursuant to the American Recovery and Reinvestment Act of 2009, the federal government provides approximately 68% of the money in Florida‟s Medicaid Program.
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The federal Medicaid Act defines “medical assistance” to mean payment for all or part of the services listed in 42 U.S.C. § 1396d(a)(1) through (28). 42 U.S.C. § 1396d(a). Only seven of the twenty-eight services listed are mandatory, meaning that a state must provide these seven services to participate in Medicaid. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services for adults over the age of 21 include inpatient hospital services, outpatient hospital services, laboratory and x-ray services, nursing facility services, nursemidwife services, and certified nurse practitioner services. See 42 U.S.C. § 1396a(a)(10)(A) (requiring state plans to provide at least the services listed in § 1396d(a)(1) through (5), (17) and (21)). Thus, Florida is required by federal law to make nursing facility services available and, if these services are medically necessary for Plaintiff, she is entitled to them as a matter of federal law. See e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).
Florida may include any of the other twenty-one services listed in 42 U.S.C. § 1396d(a), including PCA services. However, it is essential to note that Florida is not required to provide such services to comply with the Medicaid Act, and, to the extent that Florida opts not to provide any of these twenty-one other services, Florida‟s Medicaid recipients to do not have an entitlement to those services.
In addition to the Medicaid services offered under a state‟s Medicaid State Plan, a state may also enter into an agreement with the federal government to offer services under a waiver program, such as the HCBS waivers. See 42 U.S.C. § 1396n(c). Under waiver programs such as the TBI/SCI Waiver, the federal government agrees to “waive” certain requirements of the Medicaid Act without jeopardizing federal financial participation. 42 U.S.C. § 1396n(c)(3). Most importantly for the purposes of this case, the Medicaid Act
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permits waiver of the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B). Id. This provision requires state plans to offer the services in 42 U.S.C. § 1396d(a) to all Medicaid recipients in the same amount, duration and scope. 42 U.S.C. § 1396a(a)(10)(B). By providing for a waiver of the comparability requirement, the Medicaid Act permits states to discriminate on the basis of disability. Indeed, as a result of the various waivers, the Florida Medicaid Program currently provides increased services to persons with certain disabilities while simultaneously offering no enhanced services to persons with other types of disabling conditions.
The Medicaid Act also permits waiver of Medicaid requirements with respect to limiting the number of persons receiving waiver services and eliminating the statewideness requirement. While a state must provide services under its State Plan to everyone who meets the state‟s Medicaid eligibility requirements, the waiver law specifically allows states to “cap” the number of persons receiving waiver services. 42 U.S.C. § 1396n(c)(9)-(10). Waiver of statewideness means that states can limit the provision of HCBS services to certain parts of the state as opposed to persons living throughout the state. 42 U.S.C. § 1396n(c)(3).
While the federal Medicaid Act permits states to create HCBS waiver programs, it does not require states to do so. As the Medicaid Act states, “a State plan approved under this subchapter may include as „medical assistance‟ under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by” the federal government. 42 U.S.C. § 1396n(c)(1) (emphasis added). Neither does the Medicaid Act require the federal government to approve states‟ HCBS waiver programs.
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The Secretary of the Department of Health and Human Services “may by waiver” allow states to create HCBS programs. Id. (emphasis added).
It is not disputed that the Florida Medicaid program does not provide in-home PCA for adults like Plaintiff. While Florida does provide in-home PCA through its TBI/SCI Waiver, Florida has opted to place a cap on the number of persons enrolled in this program. The TBI/SCI Waiver program had no available opening at the time Plaintiff applied and she was thus placed on a waiting list. In the Complaint, Plaintiff does not allege that Florida has violated the Medicaid Act by failing to provide her with in-home PCA. However, Plaintiff is requesting the Court to order Defendants to provide her with such services. Such an order would effectively nullify one or more provisions of the Medicaid Act.
2. Analysis of Interplay Between the ADA and the Medicaid Act To grant the relief requested in the Complaint, the Court will have to hold that the ADA has invalidated one or more provisions of the Medicaid Act. For example, the Court would have to invalidate the Medicaid Act‟s explicit statement that the only mandatory services are those found at 42 U.S.C. § 1396d(a)(1) through (5), (17), and (21) by converting PCA from an optional service to a mandatory service. 42 U.S.C. § 1396a(a)(10)(A). In the alternative, an injunction order would invalidate the provision in 42 U.S.C. § 1396n(c)(1) declaring that HCBS waiver programs are optional for states and that states can cap enrollment in such programs. As such, the only way that Plaintiff‟s claims could be sustained is if the ADA were interpreted to amend (or partially repeal) the Medicaid Act by implication, by either amending/repealing 42 U.S.C. § 1396a(a)(10)(A), or by converting “may” in 42 U.S.C. §
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1396n(c)(1) to “shall” . It is clear that an inherent assumption of Plaintiff‟s claim is that the Medicaid Act has been impliedly amended by the ADA. However, the criteria for statutory amendment by implication are not met here. The Supreme Court has held that “[a]mendments by implication, like repeals by implication, are not favored.” United States v. Welden, 377 U.S. 95, 103 (U.S. 1964). In a case where “two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (U.S. 1974). The Medicaid Act and the ADA are clearly capable of co-existence, and the ADA contains no clear congressional intent to amend the Medicaid Act.
Moreover, as to the administration of the Medicaid program, the Medicaid Act is a more specific statute than the ADA. The ADA generally prohibits discrimination, while the Medicaid Act ordinarily prohibits discrimination but waives this prohibition in a specific, public health policy context. According to the Supreme Court, “it is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (U.S. 1976). The more specific statute controls “regardless of the priority of enactment.” Morton, at 551. See also Ardestani v. United States Dep't of Justice, INS, 904 F.2d 1505, 1513 (11th Cir. 1990) (“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one”).
The ADA does not amend the Medicaid Act. In fact, however, the Plaintiff is not even alleging that the ADA has amended the Medicaid Act, but rather that a DOJ regulation
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has amended the Medicaid Act. Essentially Plaintiff is arguing that the “integration mandate” changes the entire structure of the Medicaid Act. But as noted above, § 12132 does not go nearly as far as the “integration mandate.” Lacking this regulatory provision, no court would find that a state providing nursing facility services to individuals with disabilities through its Medicaid program, as the Medicaid Act requires states to do, constitutes discrimination. Of course, no regulation can amend a statute.
Even if it were found that the ADA, or more specifically, the “integration mandate” in the ADA regulations, does in fact amend the Medicaid Act by implication, there is no basis in law or logic to support Plaintiff‟s position as to the nature of that amendment. The Plaintiff wants the ADA‟s prohibition of discrimination to change, or remove a word or two here and there in the Medicaid Act, leaving the overall structure and the HCBS waiver programs intact. The Plaintiff, however, fails to provide a rational basis for why the TBI/SCI Waiver program itself comports with the ADA, as the TBI/SCI Waiver program is a service that blatantly discriminates on the basis of disability. The TBI/SCI Waiver program is only available to persons with a traumatic brain injury or a spinal cord injury. It is not available to persons with any other sort of disability, nor is it available to individuals who have no disabilities at all.
In fact, all HCBS waiver programs discriminate in the class of persons they serve. The Medicaid Act permits and contemplates such discrimination. 42 U.S.C. § 1396n(c)(1), (2), (3), (4), and (7). Regulations of the Centers for Medicare and Medicaid Services (CMS) implementing the Medicaid Act require discrimination on the basis of diagnosis (or disability) in the provision of HCBS services. CMS requires that if a State “furnishes home
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and community-based services… under a waiver granted under this subpart, the waiver request must…[b]e limited to one of the following target groups or any subgroup thereof that the State may define: (i) Aged or disabled, or both. (ii) Mentally retarded or developmentally disabled, or both. (iii) Mentally ill.” 42 C.F.R. § 441.301(b)(6) (emphasis added).
The HCBS waiver programs discriminate based on disability in order to provide persons with disabilities services that would not otherwise be available to them. But they still discriminate on the basis of disability. As a result, there are persons with disabilities who are excluded from or denied benefits of HCBS waiver programs that are targeted to persons with other disabilities. If the ADA‟s prohibition of discrimination “by reason of…disability” amends the Medicaid Act, then surely the HCBS waiver programs would not survive.
A grant of the relief requested in the Complaint will essentially require a finding that the ADA amends the Medicaid Act by prohibiting a certain kind of discrimination (i.e., institutionalization of persons with disabilities) while permitting another kind of discrimination (i.e., creating an HCBS waiver program exclusively for persons with a spinal cord injury). But this makes no sense. If the ADA trumps Medicaid, it must do so in a comprehensive and coherent way. If the ADA indeed prohibits Florida from denying PCA in the community, then it must necessarily also prohibit Florida from offering an inherently discriminatory program like the TBI/SCI Waiver program. Because the ADA neither abrogates nor amends the Medicaid Act, the Plaintiff‟s Complaint fails to state a cause of
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action upon which relief can be granted and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. VI. Plaintiff’s Claim Fails to State a Claim Upon Which Relief Can Be Granted
Because It Would Result in an Impermissible Fundamental Alteration to the Florida Medicaid Program in Violation of the ADA The regulations implementing Title II of the ADA provide that a “public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). Here, any interpretation that allows the ADA (or its regulations) to trump the Medicaid Act would involve a fundamental alteration of the Medicaid Program. If, contrary to the Medicaid Act, this Court uses the ADA to convert PCA into a mandatory service, it will create federal entitlement to PCA in all 2.7 million Medicaid recipients in Florida. If, contrary to the Medicaid Act, this Court uses the ADA to make waiver services mandatory and removes states‟ ability to cap the waivers, it will destroy the states‟ reasonably delegated responsibility to ensure the adequacy of its provider networks and to create other safeguards prior to providing community-based services. As far as Defendants are aware, no other court has required a state Medicaid program to expand a waiver based on the ADA or Rehab Act. Finally, if this Court strikes down waivers entirely, it will fundamentally alter Medicaid. Even if the Court were to interpret the ADA to uphold the HCBS waiver programs but prohibit institutionalization of certain disabled individuals, such would still constitute a fundamental alteration of the Florida Medicaid Program, because Florida would be required
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by the Medicaid Act to provide assurances to CMS that it will provide “necessary safeguards” for a greatly increased number of recipients and “financial accountability for funds expended” for a greatly increased amount of services. 42 U.S.C. § 1396n(c)(2)(A).
In addition, as demonstrated in the Affidavit of Kristen Russell dated April 29, 2010, and attached to this Response as Exhibit D, if the State of Florida were forced to place Ms. Haddad on the TBI/SCI Waiver program, they would be forced to reduce services that others on the TBI/SCI Waiver program are currently receiving. As those individuals on the TBI/SCI Waiver program are entitled to the services they are receiving, this would surely constitute a fundamental alteration. Such a modification is not reasonable.
The case law Plaintiff cites in her Motion for Preliminary Injunction regarding reasonable modifications is instructive here. In Alexander v. Choate, 469 U.S. 287 (U.S. 1985), the U.S. Supreme Court made clear that while state Medicaid programs may not discriminate against the disabled, neither are such programs bound to provide specialized services to the disabled that are not available to other Medicaid recipients, “as long as care and services are provided in „the best interests of the recipients.‟” Alexander v. Choate, 469 U.S. 287, 303 (U.S. 1985) (Citing 42 U. S. C. § 1396a(a)(19)). The Rehab Act, the Court held, does not require states to alter the “definition of the benefit being offered simply to meet the reality that the handicapped have greater medical needs.” Id., at 304.
1. Florida’s Comprehensive, Effectively Working Plan Plaintiff‟s requested relief would also constitute a fundamental alteration in that it would disrupt Florida‟s “comprehensive, effectively working plan” to provide HCBS to those qualified individuals who desire such services. See Olmstead, at 606 (“If, for example,
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[a] State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with…disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met”). In Arc of Wash. State Inc. v. Braddock, 427 F.3d 615 (9th Cir. Wash. 2005), the Ninth Circuit held that Washington was not required by the ADA to expand its waiver program because Washington‟s HCBS program “(1) [was] sizeable, with a cap that ha[d] increased substantially over the past two decades; (2) [was] full; (3) [was] available to all Medicaideligible disabled persons as slots become available, based only on their [health needs] and position on the waiting list; (4) ha[d] already significantly reduced the size of the state's institutionalized population.” Arc of Wash. State Inc., at 622.
Florida has a “comprehensive, effectively working plan” to provide HCBS to those qualified individuals who desire such services. As shown in the Affidavit of Elizabeth Y. Kidder, dated June 2, 2010, the Florida Medicaid Program administers 14 HCBS waiver programs. These programs began in the 1980s, and have consistently expanded since that time. Florida added new HCBS waiver programs in 1982, 1985, 1989, 1991, 1995, 1998, 1999, 2004, 2006, and 2008. As shown in the Affidavit of S. Michele Hudson, dated June 2, 2010, the following HCBS waivers all expanded over the past four years: the Adult Cystic Fibrosis Waiver, the Alzheimer‟s Disease Waiver, the Developmental Disabilities Waiver (Tier 1), the Family Dysautonomia Waiver, the Family Supported Living Waiver, the Nursing Home Diversion Waiver, and the TBI/SCI Waiver. The Florida Medicaid Program now serves more nursing home-eligible persons outside of nursing homes than in them in any
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given month. See Affidavit of S. Michele Hudson, dated June 2, 2010. The TBI/SCI Waiver program in particular has grown. Implemented in 1999, the TBI/SCI Waiver program expanded from an average monthly caseload of 245 persons (Fiscal Year 2005-06) to 309 persons (FY 2008-09). Id. In addition, TBI/SCI Waiver program expenditures have increased from $5,874,815 (FY 2005-06) to $10,066,381 (FY 2008-2009). Id.
A look at three waivers in particular over the past four years illustrates the growth of Florida‟s HCBS waiver programs. Between Fiscal Year 2005-06 and Fiscal Year 2008-09, the total average monthly caseload of the Family Supported Living Waiver (Tier 44 of the Developmental Disabilities Waiver), the Nursing Home Diversion Waiver, and the TBI/SCI Waiver program increased by more than 224%. During this time, the total expenditures for these three waivers increased by more than 219%.
As shown in the April 29, 2010, Affidavit of Kristen Russell (attached to this Motion as Exhibit A), the TBI/SCI Waiver program is full, with no funded slots available. In addition, the TBI/SCI Waiver program is available to all Medicaid eligible individuals with a traumatic brain injury or spinal cord injury based only on their health needs and position on the waiting list. What is more, the vast majority of the SSI population in the Florida Medicaid Program are currently in the community and not in institutions. In Fiscal Year 2008-09, the Florida Medicaid Program had an average monthly caseload of about 311,000 SSI persons. Id. Of those, only about 45,000, or 14%, were residing in nursing facilities in any given month. Id.
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Because Florida has a “comprehensive, effectively working plan” to provide HCBS to qualified individuals who desire such services, interference with that plan would constitute an impermissible fundamental alteration.
2. Costs Plaintiff alleges that the requested relief constitutes a “reasonable modification” because the provision of services would be less expensive in the community than in a nursing facility. See e.g., Motion for Preliminary Injunction, p. 20-21. However, the cost analysis is not so simple. As the Affidavit of Kristen Russell, dated June 2, 2010, demonstrates, less than 10% of the individuals on the waiting list for the TBI/SCI Waiver program currently reside in a nursing facility, yet they all seek to be placed in the TBI/SCI Waiver program. Defendants realize no cost savings by placing such individual in the TBI/SCI Waiver program unless the individual would have entered a nursing facility but for the waiver program. Because the relief requested under the ADA would fundamentally alter the Florida Medicaid Program, it is not required by the ADA and Plaintiff has failed to state a claim upon which relief can be granted. This Court should dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R. Civ. P.
CONCLUSION For the reasons stated above, this Court should dismiss Plaintiff‟s Complaint pursuant to Rules 12(b)(1) and (6), Fed. R. Civ. P. Respectfully submitted this 8th day of June, 2010.
AGENCY FOR HEALTH CARE ADMINISTRATION
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BY: /s/ Andrew T. Sheeran Andrew T. Sheeran Fla. Bar No. 0030599 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: Andrew.Sheeran@ahca.myflorida.com
BY: /s/ William M. Blocker II William M. Blocker II Fla. Bar No. 295700 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building MS#3 Tallahassee, Florida 32308 (850) 922-5873; (850) 921-0158 Fax E-mail: William.blocker@ahca.myflorida.com
DEPARTMENT OF HEALTH
BY: /s/ Enoch Jonathan Whitney Enoch Jonathan Whitney Fla. Bar No. 13063 Office of the Attorney General 400 S Monroe St # PL-01 Tallahassee, Florida 32399-6536 (850) 414-3672; (850) 488-4872 Fax Email: Jon.Whitney@myfloridalegal.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by the Notice of Electronic Filing, and was electronically filed with the Clerk of the Court via the CM/ECF system, which generates a notice of the filing to the following: Stephen F. Gold, 1709 Benjamin Franklin Parkway, Second Floor, Philadelphia, PA 19103, and Jay M. Howanitz, SPOHRER & DODD, P.L., 701 West Adams Street, Suite 2, Jacksonville, Florida 32204 this 8th day of June, 2010.
/s/ Andrew T. Sheeran ANDREW T. SHEERAN ATTORNEY
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MICHELE HADDAD,
Plaintifl:
V.
THOMAS ARNOLD, in his official capacity as Secretary, Florida Agency for Health Care Administration
Dr. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants.

) ) ) ) )
) Case No. 3:10-CV-414-J-99MMH-TEM
) ) ) ) )
) ) )
)

SUPPLEMENTAL STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
The United States respectfully submits this Supplemental Statement of Interest, pursuant to 28 U.S.C. § 517, in further support of Plaintiff Michele Haddad's Motion for Preliminary Injunction. As noted in the United States' first Statement of Interest in this matter, this case involves the proper interpretation and application of Title II of the Americans with Disabilities Act (ADA) and Title II's integration mandate. See 42 U.S.C. § 1213 I et seq.; Olmstead v. L. C., 527 U.S. 58 I (1999). The Department of Justice has authority to enforce Title II and to issue regulations implementing the statute. See 42 U.S.C. §§ 12133-34. The United States thus has a strong interest in this matter.
ARGUMENT Defendants' arguments in their Response and Memorandum of Law in Opposition to Plaintiffs Motion for Preliminary Injunction are insufficient to overcome Plaintiff's

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showing that she meets the requirements for a preliminary injunction. 1 The United States
emphasizes the emergency nature of the relief sought by Ms. Haddad, the absence of
which will irreparably harm her through unnecessary institutionalization, and the fact that
this Court is being asked to provide that remedy for a single individual in this case.
Accordingly, Ms. Haddad's Motion for Preliminary Injunction should be granted.
I. Ms. Haddad is Likely to Succeed on the Merits of Her Title II Claim
A. Ms. Haddad May Enforce the Integration Mandate of Title II by Private Right of Action.
The Defendants correctly assume that Ms. Haddad is not attempting to
independently enforce the "integration regulation" without its statutory foundation.
(Defs.' Mem. in Opp'n to Pl.'s Mot. for Prelim. Inj. at 5-6). Indeed, Ms. Haddad is
relying on the ADA's broad prohibition of discrimination, authoritatively interpreted by
the Attorney General's integration regulation, 28 U.S.C. § 35.130(d), and by the Supreme
Court in Olmstead. 527 U.S. at 607. The integration mandate is an authoritative
interpretation of Title II of the ADA, and therefore is enforceable through a private right ofaction. SeeAiexanderv. Sandoval. 532 U.S. 275 (2001).2
1 The Defendants' argument that Ms. Haddad seeks relief that is beyond the status quo is misguided. (Defs. Mem. in Opp'n to Pl.'s Mot. for Prelim. lnj. at 2) Ms. Haddad seeks to remain in the community and receive services that she would otherwise be entitled to receive in a more expensive and restrictive settinga nursing home. An order from this court granting the relief that Ms. Haddad seeks would therefore impose no new affirmative or mandatory obligations on the Defendants and, as discussed more fully below, would be less costly to the Defendants than providing the care in a nursing home. 2 The Eleventh Circuit's recent decision in American Association ofPeople with Disabilities v. Harris, 2010 U.S. App. LEX IS 9615 ( 11'11 Cir. Fla. May II. 2010) is not controlling. There, the panel held that 28 C.F.R. § 35.151 was not enforceable as a private right of action. The panel's overly broad ruling applied Sum/Ol·ul where such a discussion was patently unnecessary. There, as here, the regulation at issue is fully consistent with, and an authoritative interpretation of, a statutory provision that is enforceable through a private right of action. Indeed, the Court in Sandoval recognized that "[a] Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well." 532 U.S. at 284 (internal citations omitted).
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The United States outlined the statutory and regulatory framework ofTitle Il's integration mandate in its initial Statement of Interest. (See Statement of Interest ofthe United States at 3-5, 8-11 ). Congress recognized in enacting the ADA that "institutionalization" was one of the "critical areas" in which discrimination against individuals with disabilities persists, and that discrimination in the fonn of"isolat[ion]" and "segregat[ion]" of these individuals "continue[s] to be a serious and pervasive social problem." 42 U.S.C. § 1210l(a)(2), (3). Congress directed the Attorney General to issue regulations implementing Title II, 42 U.S.C. § 12134, and consistent with the goals of eliminating the fonns of discrimination identified by Congress, the Attorney General has done so. See 28 C.F.R. Part 35. The "integration regulation" requires public entities to administer services to individuals with disabilities in the most integrated setting appropriate to their needs. 28 C.F.R. § 35.130(d).
The Supreme Court in Olmstead examined the scope of a state's obligations under the ADA and recognized that the discrimination forbidden under Title II of the ADA includes "unnecessary segregation" and "[u]njustified isolation." See 527 U.S. at 600-01. Where an individual is "qualified" for community placement and the affected individual does not oppose community placement, the state must provide community-based services. !d. at 601-03. This obligation may be excused only where a state can demonstrate that the relief sought would result in a "fundamental alteration" ofthe state's service system. /d.
The Defendants nonetheless argue that the state escapes the ADA's integration mandate because the Traumatic Brain Injury I Spinal Cord Injury (TBIISCI) Waiver program is only available to individuals with one particular disability. (Defs.' Mem. in
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Opp'n to Pl.'s Mot. for Prelim. lnj. at 5). The Defendants assert that because the TBI/SCI Waiver is only open to individuals with the same disability, their failure to provide Ms. Haddad this service cannot be "because of' her disability under the text of Title II. (ld. at 5-6). This argument amounts to nothing more than the Defendants' attempt to extract the integration mandate from its firmly rooted foundation in Title II of the ADA and to limit the breadth of discrimination expressly targeted by Congress. The Supreme Court squarely rejected such an argument in Olmstead, recognizing that "Congress had a more comprehensive view of the concept of discrimination" when it crafted the ADA. See 527 U.S. at 598, n. I0 (noting that in other contexts the Court had recognized discrimination between members of the same class).
The discrimination contemplated by Congress in enacting Title II, and recognized in Olmstead-unnecessarily relegating individuals with disabilities to segregated facilities-is exactly what Ms. Haddad faces. But for Ms. Haddad's disability, she would not be seeking the services under the TBIISCI Waiver or any other Medicaid program. And she is "qualified" for community placement- the Defendants have admitted that she is "medically eligible for [Home and Community-Based Services.]" (Kidder Affidavit~ I0). The Defendants thus cannot shirk their responsibility under Title II to provide Ms. Haddad services in the most integrated setting appropriate to her needs merely because the services that she seeks are available to other individuals with a similar disability.
B. The Defendants' Provision of Personal Care Services Must Comply with Title Il's Integration Mandate. The Defendants further argue that applying the requirements of the Olmstead
integration mandate in this case would require the court "to hold that the ADA has
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invalidated one or more provisions of the Medicaid Act." (Defs.' Mem. in Opp'n to Pl.'s Mot. for Prelim. lnj. at 14). Neither the Plaintiff nor the United States have argued that the ADA's integration mandate in any way modifies or alters the substantive requirements of the Medicaid Act itself. To the contrary, the ADA stands entirely apart from the Medicaid Act and establishes its own independent requirement that, when a state provides any services to individuals with disabilities, it must do so in the most integrated setting appropriate to the individuals' needs unless doing so would fundamentally alter the nature of the service. See Olmstead, 527 U.S. at 607. Indeed, nothing in the Medicaid Act would bar requirements set forth in the ADA, and the state can easily comply with the requirements of both statutes. See Morton v. Mancari, 417 U.S. 535, 551 (1974).
C. The ADA Personal Devices and Services Regulation Does Not Conflict With the State's Duty Under Olmstead to Provide Ms. Haddad Services in the Community The Defendants next assert that the ADA's Personal Devices and Services
Regulation, 28 C.F.R. § 35.135, exempts Florida from having to provide "services of a personal nature." (Defs.' Mem. in Opp'n to Pl.'s Mot. for Prelim. lnj. at 7-9). As the United States explained in its initial Statement of Interest, this regulation merely establishes that Title II does not require a state to provide personal services where such services are not "customarily provided." See U.S. Dept. of Justice, ADA Title II Technical Assistance Manual § 11-3.6200.
The case law examining this regulatory provision supports this interpretation. Indeed, courts that have held that §35.135 imposes any limits on a state's duty to provide reasonable accommodations have only done so, as the Department's interpretation
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contemplates, where such devices or services are not "customarily provided." See, e.g..
McCauley v. Winegarden, 60 F.3d 766, 767 (II th Cir. 1995) ("environmental filtering" device in a courtroom); Kerry M. v. Manhattan School Dist. #114, 2006 WL 2862118, at *I 0 (N.D. Ill. 2006) (collapsible wheelchair in school district's bus service); Blatch ex rei. Clay v. Hernande=. 360 F. Supp. 2d 595, 630 (S.D.N.Y. 2005) (expert representatives
in tenancy tem1ination proceedings); Rivera v. Delta Air Lines, Inc., 1997 WL 634500, at * 1-2 (E. D. Pa. 1997) (wheelchair to board airplane); Adelman v. Dunmire, 1996 WL 107853, *3 (E.D. Pa. 1996) (wheelchair in courtroom).3
Thus, where, as here, the services sought by a plaintiff are customarily provided
in the institutional setting into which she will be relegated absent a reasonable modification of the Defendants' waiver admission policies, the limitation expressed by 28 C.F.R. § 35.135 has no bearing.
D. The State Failed to Demonstrate that Ms. Haddad's Request Would Fundamentally Alter the Nature of Services Being Provided The Defendants have not shown that Ms. Haddad's request would constitute a
fundamental alteration of the nature ofFlorida's Medicaid program. The Olmstead
3 Other courts have interpreted § 35.135 very broadly. For example, in A.P. ex ref. Peterson ''· AnokaHennepin lndependem School Disrict No. II, 538 F. Supp. 2d 1125, 1152-53 (D. Minn. 2008),the court held that § 35.135 does not bar a diabetic child's parents from requesting that school district staff be trained and authorized to provide glucagon injections to the child. The judge observed, "(f]rankly, the Court has difficulty understanding the purpose and reach of §35.135, as many otherwise reasonable accommodations requested by disabled persons--and routinely provided by school districts and other public entities-- could be considered 'services of a personal nature."' /d. Similarly, in Purcell v. Pennsylvania Departmem ofCorrections, 1998 WL I0236, at *9 (E. D. Pa. 1998), the court rejected the state's argument that it was not required under the ADA to provide a plastic chair for support in shower to accommodate plaintitrsjoint disease. The court explained "[i]fthe terms ofthe regulations requiring "reasonable accommodations in policies," .... arc to have any effect at all, defendants should have "accommodated" Purcell's joint disease by allowing him to remain in a handicapped-accessible cell or have a chair in his cell
and the shower room." lei. 6

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plurality explained that a state can establish a fundamental alteration defense by demonstrating that it has a
comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated. Olmstead, 527 U.S. at 605-06. See also. e.g.. Pennsylvania Prot. & Advocacy, Inc. v. Dep 't ofPub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (requiring the state to demonstrate the existence of a plan before it may even raise a fundamental alteration defense); Disability Advocates, Inc. v. Paterson, 635 F. Supp. 2d 184,271 (E.D.N.Y. 2009) (rejecting state's fundamental alteration defense where it does not "have a comprehensive or effective plan to enable [segregated] residents to receive services in more integrated settings, but instead was committed to maintaining the status quo); Frederick L. v. Dep 't ofPub. Welfare, 422 F.3d 151 (3d Cir. 2005) (vacating district court ruling in favor of state defendants where fundamental alteration defense was premised on vague assurance of future deinstitutionalization rather than a meaningful commitment with measurable goals for community integration). The Defendants claim that the state of Florida has a "comprehensive, effectively working" Olmstead plan. However, the Defendants point to no evidence of the plan's name, its implementation date, any administrator(s) or supervisor(s), or stated and measurable goals for the deinstitutionalization of persons with disabilities. Instead, in a piecemeal and post hoc fashion, the Defendants offer a parade of affiants outlining the Florida Medicaid program's various Medicaid Waivers. This evidence falls far short of what is required to demonstrate that a state has a comprehensive, effectively working
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plan under Olmstead. See, e.g.. Frederick L. v. Dep 't of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004) (rejecting defense premised on the state's limited economic resources).
Here, Ms. Haddad seeks the personal care services that are only offered under the TBI/SCI Waiver program and, without which, she will have no choice but to enter a nursing home. The Defendants assert that the TBIISCI Waiver has "expanded" in monthly caseload and expenditures over the past four years, (Defs.' Mem. in Opp'n to Pl.'s Mot. for Prelim. Inj. at 20), but they do not refute that the program has remained capped at 375 persons and will remain at this cap until at least 2012.4 Any assessment of the relative merits of a state's efforts to deinstitutionalize individuals with disabilities must be viewed not in "dollar" terms, but in actual evidence that the plan is effectively moving individuals from institutions and preventing them from becoming at risk of institutionalization. The Defendants have thus offered no measurable evidence of "expansion" in view of the number of individuals on the TBI/SCI waiting list, or the length of time that these individuals remain on the waiting list.
The Defendants also mischaracterize Ms. Haddad's request as one that seeks to "displace" other persons on the TBI/SCI Waiver waitlist. (Defs.' Mem. in Opp'n to Pl.'s Mot. for Prelim. lnj. at 21 ). Ms. Haddad is not attempting to circumvent any of the Defendants' requirements to receive the services that she needs to remain in the
4 As the United States suggested in its initial Statement of Interest, and as the Centers for Medicare and Medicaid Services (CMS) has indicated in technical assistance to the states. the mere fact that a state is permitted to "cap" the number of individuals it serves on a panicular waiver under the Medicaid Act does not by itself determine whether a requested modification would result in a fundamental alteration under the ADA. See CMS. Olmstead Update No. 4, at 4 (Jan. I0, 200 I), available at ::nr \I 11 ' , 11 , IL1, ,,,,1 ,111dl 'ln11 nl<~;hl' ,1ndlll 111111 d,pdl ("If other laws (e.g., ADA) require the State to serve more people, the State may ... request an increase in the number of people permitted under the HCBS Waiver).
8

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community. Ms. Haddad in fact followed these procedures, but her efforts were to no avail. Ms. Haddad remains on the waiting list despite her first joining it in 2007.
Indeed, as Ms. Haddad has learned, the only way to extract herself from Florida's immovable TBI/SCI waitlist is, per the Defendants' suggestion, to first suffer irreparable harm by entering an institution for at least sixty days. Services that would allow Ms. Haddad to remain in the community are, by the Defendants' own admission, less costly than services provided in an institutional setting. (Hudson Affidavit~ 15). Thus, Ms. Haddad's request-- that the state provide her with less-costly community-based services, without requiring her to first enter a nursing home, until the court can complete a full evaluation of Defendants' fundamental alteration defense- is eminently reasonable. II. Ms. Haddad Satisifies the Requirements For a Preliminary Injunction
The Defendants have not presented evidence sufficient to overcome Ms. Haddad's showing that she meets the requirements for a preliminary injunction. The harm to Ms. Haddad from even temporarily entering a nursing home will be irreparable. The Defendants argue that "even if Plaintiff did enter a nursing home, this harm would not be "irreparable" as Ms. Haddad would be eligible after 60 days for the Nursing Home Transition Program." (Defs.' Mem. in Opp. to Pl.'s Mot. for Prelim. lnj. at 23). This characterization discounts the Supreme Court's rationale in Olmstead, in which it recognized that institutional placement "perpetuates unwarranted assumptions" that institutionalized individuals are "incapable or unworthy of participating in community life." 527 U.S. at 600. Even temporary institutionalization can rise to the level of irreparable harm warranting injunctive relief. See, e.g., Marlo M. v. Cansler, 679 F.
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Supp. 2d 635,638 (E.D.N.C. 2010) (recognizing that plaintiffwould "suffer regressive consequences if moved [to a nursing home] even temporarily.") (emphasis added).
The balance of hardship also tips strongly in Ms. Haddad's favor. The Defendants assert that the plaintiff is asking the court to "uncap" the TBIISCI Waiver. (Defs.' Mem. in Opp. to Pl.'s Mot. for Prelim. Inj. at 24). As noted above, Ms. Haddad is asking the court for relief of an emergency nature for the purpose of this preliminary injunction- that the Defendants reasonably modify their policies to accommodate her in view of her extreme and urgent needs. In any event, should the Defendants not provide services to Ms. Haddad in the community they will most assuredly have to provide them to her in an institution - which they have admitted is a more costly setting. (See Hudson
,I Affidavit 15). Thus, in the absence of injunctive relief in this matter, it is only Ms.
Haddad who will bear a significantly added burden. Should the narrow, emergency relief that Ms. Haddad seeks be granted, both parties may in fact be better off.
Lastly, issuing the preliminary injunction that Ms. Haddad seeks is in the public interest. As noted above, the ADA identifies unnecessary segregation as discrimination. See Olmstead, 527 U.S. at 600. In addition to the public interest in eliminating this type of discrimination, the public would benefit in seeing the services that Ms. Haddad seeks provided in a less-expensive community-based setting, rather than an institution, at greater expense. For the foregoing reasons the Court should grant Ms. Haddad's Motion for Preliminary Injunction.
Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
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SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief BETH ESPOSITO, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W.- NYA Washington, D.C. 20530 Telephone: (202) 305-1130 Facsimile: (202) 305-9775
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CERTIFICATE OF SERVICE I hereby certify that on June 10, 201 0, I electronically filed the foregoing with the Clerk ofthe Court by using the CM/ECF system. Notice of this filing will be sent by email to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF System.
Is/ Beth A. Esposito BETH A. ESPOSITO Trial Attorney Disability Rights Section Civil Rights Division U.S. Department ofJustice 950 Pennsylvania Avenue, N.W.- NYA Washington, D.C. 20530 Telephone: (202) 305-8454 Facsimile: (202) 616-6862 beth.esposito@usdoj .gov
Counsel for United States

 </s> Case 3:10-cv-00414-MMH-TEM Document 63 Filed 03/16/11 Page 1 of 34 PageID 921

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

MICHELE HADDAD,
Plaintiff,
vs.
ELIZABETH DUDEK, in her official capacity as Interim Secretary, Florida Agency for Health Care Administration,1 and
DR. ANNA VIAMONTE ROSS, in her official capacity as Secretary, Florida Department of Health,
Defendants. _____________________________

Case No. 3:10-cv-414-J-34TEM

ORDER This case is before the Court on Defendants’ Motion to Dismiss Complaint (Doc. 32; Motion to Dismiss), filed on June 8, 2010. In this case, pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12132 and 12133 (“ADA”), and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Rehab Act"), Plaintiff Michele Haddad seeks declaratory and injunctive relief, ordering the State of Florida, through its agencies, to provide her with home and

1 Plaintiff originally named Thomas Arnold, in his official capacity as Secretary of the Florida Agency for Health Care Administration (FAHCA), as a Defendant in this case. Thomas Arnold is no longer serving in that position, and Elizabeth Dudek (“Dudek”) is currently serving as Interim Secretary of the FAHCA. (See Doc. 60; Joint Motion at 1 (referring to Elizabeth Dudek as the interim Secretary of the Florida Agency for Health Care Administration)). Pursuant to Rule 25(d), Federal Rules of Civil Procedure (Rules(s)), Dudek is automatically substituted as the named Defendant as successor in office to Thomas W, Arnold.
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community-based Medicaid services as part of the Traumatic Brain Injury/Spinal Cord Injury waiver program (“TBI/SCI Waiver Program” or “waiver program”). Plaintiff, a quadriplegic, alleges in her two-count Complaint that Defendants’ failure to provide her with home and community-based Medicaid services pursuant to its TBI/SI Waiver Program would force her into an institutionalized nursing care facility. Plaintiff alleges that Defendants’ actions violate the ADA and the Rehab Act and their implementing regulations, which require that state services and programs, including Medicaid, be administered “‘in the most integrated setting appropriate’ to the needs of the individual with disabilities.” (Doc. 1; Complaint ¶ 49). Defendants’ have filed a response in Opposition to the Motion to Dismiss, (Doc. 35; Response), and the matter is ripe for review.
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I.

Standard of Review2

A motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

(Rules(s)), is a motion attacking the legal sufficiency of a complaint. In ruling on a Rule

12(b)(6) motion to dismiss, the Court must accept the factual allegations set forth in the

complaint as true. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med. Ctr.,

Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences should be

drawn in favor of the plaintiff. See Omar ex. rel. Cannon v. Lindsey, 334 F.3d 1246, 1247

(11th Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some minimal

2 Defendants assert that their Motion to Dismiss is brought pursuant to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure, for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. Motion at 1. A motion to dismiss pursuant to Rule 12(b)(1) is a motion challenging the subject matter jurisdiction of the court. Jurisdiction may be attacked facially or factually. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). In a facial challenge, a court assumes the allegations in the complaint are true and determines whether the complaint sufficiently alleges a basis for subject matter jurisdiction. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). On the other hand, factual attacks challenge the “‘existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.’” Id. (citation omitted).
Defendants apparently base their Rule 12(b)(1) motion on their assertion that Plaintiff “lacks standing.” Motion at 2, 3; see AT&T Mobility, LLC v. Nat’l Ass’n for Stock Car Auto Racing, Inc.,494 F.3d 1356, 1359 (11th Cir. 2007)(“[s]tanding . . . ‘is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party’s claims’”)(citation omitted)). Defendants contend that Plaintiff “lacks standing” because she “fails to allege discriminatory treatment,” an essential element of Plaintiff’s claim of a violation of the ADA. Motion at 2-3. This argument, however, does not go to Plaintiff’s standing, but is addressed directly to the merits of Plaintiff’s claims. As such, this challenge is more properly brought pursuant to Rule 12(b)(6). Indeed, Defendants have asserted the same challenge under Rule 12(b)(6). Id. at 5-6. Additionally, Defendants argue that Plaintiff “lacks standing” because her claims are collaterally estopped by a class settlement in a prior case, Dubois v. Levine, Case No. 4:03-CV-107-SPM (N.D. Fla.) Motion at 3-6. Such a challenge is not brought pursuant to Rule 12(b)(1). Instead, a collateral estoppel challenge brought by a motion to dismiss is made pursuant to Rule 12(b)(6). See e.g. Concordia v. Bendekovic, 693 F.2d 1073, 1075-76 (11th Cir. 1982); Stephens v. State Farm Fire and Cas. Co., No. 1:03-CV-3094-JTC, 2004 WL 5546250, at *1-3 (N.D. Ga. 2004), aff’d 149 F. App’x 908 (11th Cir. 2005); see also Ishler v. Internal Revenue, 237 F. App’x 394, 397 (11th Cir. 2007)(“preclusion doctrines do not go to ‘jurisdiction,’ but rather ‘provide affirmative defenses once a court exercises jurisdiction over a civil action’” (quoting Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 707 n.4 (10th Cir. 2004)). Accordingly, Defendants’ Motion to Dismiss will be considered in accordance with the legal standards applicable to consideration of motions brought pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.
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pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary,” the complaint should “‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). The “plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations omitted); see also Jackson, 372 F.3d at 1262 (explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” which simply “are not entitled to [an] assumption of truth.” See Iqbal, 129 S. Ct. at 1949, 1951. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to
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‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting Twombly, 550 U.S.
at 570).3
II. Background
A. Underlying Facts4
According to her Complaint filed May 13, 2010, Plaintiff is a 49 year old woman who,
on September 7, 2007, when she was 47 years old, was in a motorcycle accident caused by
3 Both parties have included exhibits in their briefing directed to the Motion to Dismiss. See Doc. 32-1-32-4 (Exhibits to Motion to Dismiss); Doc. 35; Response at 1 (incorporating Doc. 29; Reply re: Preliminary Injunction (which has 10 exhibits (Docs. 29-1-29-10)). When a party moves to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and matters outside of the pleadings are presented to and not excluded by the court, the motion is to be treated as if it were a motion for summary judgment under Rule 56. SFM Holdings, Ltd. v. Banc of Amer. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); Jones v. Automobile Ins. Co. of Hartford, 917 F.2d 1528, 1531-32 (11th Cir. 1990); Concordia, 693 F.2d at 1075. However, if a court converts a motion to dismiss into a motion for summary judgment, it must give the parties ten days notice in order to allow them to present all material pertinent to a motion for summary judgment. Jones, 917 F.2d at 1532; Fed. R. Civ. P. 12(d), 56(c).
The Eleventh Circuit has instructed that a district court may consider extrinsic evidence in ruling on a motion to dismiss “if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd., 600 F.3d at 1337; see also Brown v. Brock, 169 F. App’x 579, 582 (11th Cir. 2006)(“[f]irst, judicially noticed facts will not give rise to conversion. . . Second, a document outside the pleadings may be considered if it is essential to the plaintiff’s claim and not in dispute. . . . Third, conversion even without notice, will be deemed harmless if the record shows the parties understood conversion would take place and submitted all the documents they would have even with sufficient notice. . . . (citations omitted); Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267-68 (11th Cir. 2002); Peterson v. Atlanta Housing Auth., 998 F.2d 904, 913 (11th Cir. 1993). The Court, in its discretion, declines to consider any documents beyond those listed in the above exceptions, and thus, Defendants’ Motion to Dismiss will not be converted to a motion for summary judgment. Harper v. Lawrence County, Ala., 592 F.3d 1227, 1232 (11th Cir. 2010); Jones, 917 F.2d at 1531-32.
4 In considering the Motion to Dismiss, the Court must accept all factual allegations in the Complaint as true, consider the allegations in the light most favorable to Plaintiff, and accept all reasonable inferences that can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). While the Court did consider factual evidence submitted by the parties beyond the four corners of the Complaint, as it must, in rendering its decision to issue a Preliminary Injunction, see Doc. 49; Opinion at 6, 31, the Court recognized on several occasions the limitation of the record at that stage of the proceedings, and the possibility that additional factual evidence would be available on summary judgment or at trial. See Opinion at 6, 31, 33-35. As this matter is currently before the Court on Defendants’ Motion to Dismiss brought pursuant to Rule 12{b)(6), the Court’s review is limited to the “four corners of the complaint” and those excepted documents appropriate for consideration on a motion to dismiss. See Long v. Slaton, 508 F.3d 576, 578 n.3 (11th Cir. 2007); Bickley v. Caremark Rx, Inc., 461 F.3d 1325, 1229 n.7 (11th Cir. 2006).
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an intoxicated driver. Complaint ¶¶ 10, 11. She remained hospitalized in a rehabilitation hospital until January, 2008. Id. ¶ 12. As a result of the accident, Plaintiff became a quadriplegic, paralyzed from her chest down, and having minimal manual dexterity. Plaintiff uses a motorized wheelchair for ambulation. Id. ¶¶ 14-16.
In November 2007, while she was still hospitalized, Plaintiff “applied to Defendants,” specifically the State of Florida, Florida Agency for Health Care Administration and the Florida Department of Health, to receive home health care through the TBI/SCI Waiver Program. She has remained on the “wait list” for services through the filing of her Complaint in May, 2010. Id. ¶ 13.
Plaintiff was married for 24 years and has two adult sons. In November, 2009, Plaintiff’s husband divorced her. However, he continued to reside with her until March 2010, when one of her adult sons was able to move into her home. Id. ¶¶ 18-19.
Between January 2008 when she was discharged from the hospital, and March 2010 when her husband left the house, Plaintiff’s husband was her primary caregiver. Id. ¶¶ 20. This caregiving included lifting her out of bed, transferring her to a wheelchair, bathing her, helping her with personal hygiene needs, dressing her, shopping for food, preparing meals, assisting Plaintiff with eating, and repeating these functions at the end of the day to assist her in getting into bed. As caregiver, Plaintiff’s husband also assisted her with her use of a catheter, and bowel program. Since March 2010 when her husband left the house, Plaintiff’s son has performed these functions for Plaintiff. However, Plaintiff’s son, who resides in Miami, desires to return to Miami as soon as Plaintiff obtains appropriate assistance with her activities of daily living from another source. Id. ¶ 21-25.
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Plaintiff does not want to go into a nursing home. Instead she wishes to continue residing in the community, where she maintains an active life attending church, going to movies, visiting friends, exercising at the rehabilitation hospital gymnasium, and shopping. Id. ¶¶ 26-28. She owns a home that is accessible with a ramp, a roll-in shower, and a hoyer lift. However, her sole source of income is her monthly Social Security Disability Insurance. Although she is eligible for, and receives, both Medicare and Medicaid, see id. ¶ 29, Plaintiff alleges that “[w]ithout community-based Spinal Cord Waiver services, [she] is at risk of being institutionalized, even though she desperately does not want to reside in a nursing facility.” Id. ¶ 30.
In March, 2010, the TBI/SCI Waiver Program was contacted by telephone and informed of Plaintiff’s changed home-care circumstances. As of the time of filing the Complaint, Plaintiff had not received any TBI/SCI Waiver Program services, and “Defendants’ employee did not know when, or if, Ms. Haddad would receive Waiver services.” Id. ¶¶ 31, 32. Plaintiff remained on the “wait list” and was told “to be ‘eligible’ for these services, she will have to enter a nursing home for 60 days.” Id. ¶ 41.
Plaintiff alleges that at-home community based services would cost Defendants less than her institutionalization in a nursing home to obtain those same services. Id. ¶¶ 34, 35. She alleges that the same Medicaid-funded personal-care services available in a nursing facility could be provided in the community, and indeed, are provided by Defendants “without conditioning receipt of such services on placement in a nursing facility” to “a very limited number of people who are similar to Ms. Haddad.” Id. ¶¶ 37, 38.
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Many persons who have spinal cord injuries, paralysis, and quadriplegia and who have the same or similar daily living activity impairments and needs as Ms. Haddad reside in the community and their own apartments, with appropriate community-based, Medicaid-funded long-term care services.
Id. ¶ 36. Plaintiff further alleges:
Since July 1, 2007, Defendants have provided community-based Medicaid services to 375 people with spinal cord injuries. Defendants will continue to limit those services to 375 people through June 30, 2012.
Id. ¶ 43. Additionally, she asserts that the number of persons with spinal cord injuries on the
“wait list” for Medicaid-funded community-based services increased from 434 to 554 in 2008,
and “Defendants have recently stated that there are ‘no funded slots open’ in the spinal cord
waiver program [TBI/SCI Waiver Program].” Id. ¶¶ 44, 46-48, 67. Noting that she has been
on the waiting list for the Medicaid-funded community-based TBI/SCI Waiver Program for two
and a half years, since November 2007, Plaintiff alleges:
Ms Haddad has never been informed about her rank or numerical position on the waiting list, whether her rank or numerical position has even changed, when approximately she will receive Waiver services, what if anything she might do to increase her position, or any other information regarding how slowly or quickly the waiting list might be moving.
Id. ¶ 66.
B. Plaintiff’s Claims for Relief
In her two-count Complaint, Plaintiff contends that Defendants have violated Title II
of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 130.51(d)
(Count I), id. ¶¶ 70-75; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and its
implementing regulation, 28 C.F.R. § 41.51(d) (Count II). Id. ¶¶ 76-78. Plaintiff alleges that
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she is a “qualified person” with disabilities, and that with “reasonable modifications,” Defendants could increase the number of spinal cord injury waiver slots in the TBI/SCI Waiver Program or expand the provision of personal care option services to individuals in their homes instead of only in an assisted living facility, “allocating the same funds Defendants would pay for [Plaintiff] in a nursing home to provide services for Ms. Haddad in the community.” Id. ¶¶ 71, 72, 76. Plaintiff alleges that Defendants’ denial of Medicaid funding for the community-based services she requires to avoid segregation in an institution and remain in the integrated home setting appropriate to her needs, and Defendants’ requirement conditioning receipt of community-based services on her entering a nursing home for 60 days against her will, constitute unlawful discrimination in violation of the ADA and the Rehab Act. Id. ¶¶ 49, 73-75, 77-78.
Plaintiff seeks declaratory and injunctive relief requiring Defendants to provide “Medicaid services which will allow her to continue to reside in the community and not require her institutionalization.” Id. ¶ 50 and at 13-14. She also seeks costs and attorney’s fees pursuant to the ADA and the Rehab Act.
C. Procedural History Concurrent with the filing of her Complaint, Plaintiff filed a Motion for Preliminary Injunction and Expedited Hearing. (Doc. 2; Motion for Preliminary Injunction). The Court directed Plaintiff to serve the Motion for Preliminary Injunction on Defendants (Doc. 4; 5/13/10 Order).5 Plaintiff accomplished service of process on Defendants, (Docs. 11, 12; Return of
5 The United States filed a motion seeking leave to submit a brief in this action, (Doc. 6; United States’ (continued...)
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Service, filed May 25, 2010), and the Court set an expedited briefing schedule due to the urgency of the matter. (Doc. 13; 5/25/10 Order).6 Pursuant to the 5/25/10 Order, the parties
submitted briefs and supporting evidence, in the form of declarations, affidavits and exhibits
(see Docs. 24, 25, 26, 27, 29). On June 15, 2010, the Court conducted a hearing on the
Motion for Preliminary Injunction. (Docs. 39; 47), and subsequently received additional
briefing from the parties. (Docs. 41, 43).
1. Order Granting Preliminary Injunctive Relief
On June 23, 2010, the Court entered an Order Granting Preliminary Injunctive Relief.
(Doc. 46; 6/23/10 Order). The Court’s Order resolved Plaintiff’s request that the Court
preliminarily “enjoin Defendants from denying her in-home health care services in order to
prevent her from being forced into unnecessary institutionalization in a nursing home.”
6/23/10 Order at 1.
In support of her request, Plaintiff, a quadriplegic, contends that she has continuously lived in the community and could continue to do so if Defendants would provide her with the services she is eligible to receive through the state’s Traumatic Brain Injury/Spinal Cord Injury (TBI/SCI) Medicaid waiver program. [Footnote omitted.] . . . To date, she has been denied those services due to a limitation on the number of persons who can participate in the program. . . . Thus, although eligible for the services, Plaintiff has remained on a waiting list for nearly two and a half years. . . . Having lost her caregiver, Plaintiff now
5(...continued) Motion for Leave to Appear Specially), and the Court granted that request. (Doc. 9; 5/21/10 Order). The United States filed its brief on May 24, 2010, in which it urged the Court to grant a preliminary injunction in favor of Plaintiff, and provided exhibits, including copies of briefs filed in other similar cases. (Doc. 10; United States’ Statement of Interest).
6 A detailed recitation of the briefing with regards to the Motion for Preliminary Injunction can be found in the Court’s prior Opinion. (Doc. 49; Opinion at 2-4).
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faces institutionalization if not provided in-home health care services such as those provided under the TBI/SCI waiver which she is otherwise medically and financially eligible to receive.
Id. at 1-2 (citations omitted). In the Order, the Court noted that it had been advised that
Plaintiff was hospitalized at the time of the June 15, 2010 hearing due to medical
complications unrelated to the alleged denial of services. Id. at 3-4. However, Plaintiff’s
counsel also advised that upon discharge, Plaintiff “ would be unable to go home without the
provision of the services she seeks to compel Defendants to provide.” Id. at 3. Although on
the day of the hearing, counsel informed the Court that Plaintiff was due to be discharged
from the hospital “in two to three weeks,” id. at 3-4, on June 21, 2010, Plaintiff’s counsel filed
a Notice stating that Plaintiff was to be discharged from the hospital on June 24, 2010. (Doc.
40). Thus, due to the “exigency of Plaintiff’s current circumstances,” the Court issued its
6/23/10 Order “in advance of Plaintiff’s impending release from the hospital,” indicating that
a more “thorough written analysis” would follow. Id. at 5. In the 6/23/10 Order, having
considered the evidence and legal argument presented, the Court granted the Motion for
Preliminary Injunction, determining that
Plaintiff has made a clear showing that she has a significant and substantial likelihood of succeeding on the merits of her claim that Defendants’ refusal to provide her with in-home based health care services for which she is financially and medically eligible, and which Defendants provide to others through the TBI/SCI Medicaid waiver program violates the ADA and the Rehab Act; that she will suffer irreparable injury unless the injunction is issued in that she is at imminent risk of being institutionalized in order to obtain the necessary services which Defendants refuse to provide her outside the institutional setting; that the threatened injury to Plaintiff outweighs the possible injury that the limited injunctive relief ordered here may cause Defendants; and that this injunction will not disserve the public interest.
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Id. at 8. The Court waived the requirement that Plaintiff post a bond, and ordered Defendants to immediately re-assess Plaintiff’s eligibility and placement on the waiting list for services in the TBI/SCI Waiver Program, and enjoined Defendants from refusing to provide Plaintiff services consistent with those that would be authorized by the TBI/SCI Waiver Program. Id. at 8-9.
2. Court’s Preliminary Injunction Opinion The Court issued its more lengthy analysis, setting forth the Court’s reasoning, on July 9, 2010. (Doc. 49; 7/9/10 Opinion).7 The factual findings set forth in the 7/9/10 Opinion were based upon the evidence submitted by the parties, including declarations, affidavits, and documents, as well as representations made by counsel for the parties at the June 15, 2010 hearing. Id. at 6-13. The Court first determined that Plaintiff has standing to pursue the claims raised in this action, and then addressed Defendants’ arguments challenging Plaintiff’s ability to succeed on the merits of her claims. Id. at 14-16. The Court specifically addressed, analyzed, and rejected the following arguments made by Defendants: (1) Plaintiff cannot state a claim of discrimination under the ADA, id. at 18-21; (2) Plaintiff’s claims are barred by collateral estoppel, based upon the settlement in the Dubois litigation, id. at 21-24; (3) Plaintiff fails to state a claim for relief because the ADA regulations do not create a private right of action, id. at 24-26; (4) the ADA regulations provide that a public entity need not provide personal care services, id. at 26-27; and (5) Plaintiff’s claims fail to state a claim
7 Neither the 6/23/10 Order nor the 7/9/10 Opinion addressed Plaintiff’s contention that she should be provided personal care services otherwise provided to persons in assisted living facilities. The Court’s Preliminary Injunction addressed the TBI/SCI Waiver Program. 6/23/10 Order at 2 n.1; 7/7/10 Opinion at 9 n.8.
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because they would abrogate or amend the Medicaid Act by making personal care services mandatory or by requiring Defendants to un-cap the TBI/SCI Waiver Program. Id. at 27-29. The Court also specifically addressed whether Plaintiff’s claims met the requirements necessary to state a claim of discrimination under the ADA pursuant to the Supreme Court’s decision in Olmstead v. Zimring, 527 U.S. 581 (1999). 7/9/10 Opinion at 29-39. Focusing on the disputed factors, the Court determined, based upon the limited record before it, that Plaintiff had a substantial likelihood of establishing that her requested accommodation - the receipt of community-based services - was a reasonable accommodation in light of the Defendants’ resources and their obligations under the law, and that Defendants failed to establish that providing Plaintiff’s requested accommodation would result in a “fundamental alteration” of Defendants’ programs. Id. at 30-36. Completing its analysis, the Court further found that the prospect of “uncertain, indefinite institutionalization” which would result if relief were not ordered would cause irreparable injury to Plaintiff. Id. at 36-37. Additionally, the Court found that Plaintiff had established that “she is, indeed, on the threshold of unnecessary institutionalization” and that the “balance of harms” lies in Plaintiff’s favor. Id. at 37. And finally, the Court found that the “public interest favors preventing the discrimination that faces Plaintiff so that she may avoid unnecessary institutionalization.” Id. at 38 (citing Olmstead, 527 U.S. at 599-601).
In ruling on the Motion for Preliminary Injunction, the Court repeatedly acknowledged that it was making its determination based upon the limited record before it at the time, and the “unique circumstances currently facing Plaintiff Michele Haddad.” Id. at 39 n.19. The Court anticipated further development of the evidentiary record, noting that its determination
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that preliminary injunctive relief is appropriate should not be interpreted as suggesting that the Court will find such relief warranted under circumstances different from those here, or that Defendants, on a more complete record, cannot establish that such relief would constitute a fundamental alteration of the programs or that they have a comprehensive, effectively working plan for providing services to qualified individuals with disability obviating the need for such relief.
Id.; see also id. at 6 n.6 (based on the expedited schedule, the Court noted that “the factual record contained herein may not be completely developed” and that the findings of fact and conclusions of law on preliminary injunction “do not necessarily reflect what may be established on a record more fully developed following trial on these issues”); id. at 31 (“Defendants may be able to support these contentions on a more developed record”).
3. Proceedings Following Preliminary Injunction In accordance with the Court’s 6/23/10 Order, Defendants, on August 5, 2010, submitted the Affidavit of Kristen Russell Regarding Plaintiff’s Status In The Waiver. (Doc. 56-1; Russell Aff.).8 Ms. Russell stated that Plaintiff was “assessed” by the State on June 24, 2010. Id. ¶ 4. Although Plaintiff’s “prioritization score” placed her 88th on the TBI/SCI Waiver Program waiting list, she was placed in the TBI/SCI Waiver Program on July 29, 2010, in order to comply with the 6/23/10 Order. Id. ¶ 6. Under the TBI/SCI Waiver Program,
Ms. Haddad receives four hours per day of in-home personal care services and six hours per day of companion care services. She is also receiving nursing services to complete her bowel care. Furthermore, [Defendants have] arranged with Ms. Haddad’s physician to prescribe additional home health care
8 Ms. Russell is the Medicaid Waiver Administrator for the State of Florida’s TBI/SCI Waiver Program. Russell Aff. ¶ 1.
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visits to be paid by Medicare for the administration of medication for breathing treatments. Id. ¶ 7. The parties have submitted no further reports regarding Plaintiff’s status.9 This case is currently scheduled for a Bench Trial during the trial term commencing August 1, 2011. (Doc. 55). The parties have proceeded with discovery in this matter. (See Docs. 55, 60, 61, 62). III. Discussion A. Defendants’ Motion to Dismiss Defendants have moved to dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6) for failure to state a claim under the ADA and the Rehab Act for the following reasons: (1) Plaintiff cannot state a claim of discrimination under the ADA because Defendants’ alleged conduct is not discriminatory, Motion to Dismiss at 2-3, 5-6; (2) Plaintiff’s claims are barred by collateral estoppel, based upon the settlement in the Dubois litigation, id. at 3-5; (3) the ADA regulations do not create a private right of action, id. at 6-8; (4) the ADA does not require a public entity to provide services of a personal nature, id. at 9-13; (5) the relief requested would result in the ADA amending or abrogating the Medicaid Act, id. at 13-20; and (6) the relief requested would result in a “fundamental alteration” to the Florida Medicaid Program, in violation of the ADA, id. at 20-24.
9 Despite the fact that Plaintiff is currently assigned to the TBI/SCI Waiver Program, her claims are not moot. Defendants assert that plaintiff’s “prioritization score” does not entitle her to placement in the program, and that the “only way” Defendants could comply with the Court’s 6/23/10 Order granting a preliminary injunction was to “immediately place Ms. Haddad in the TBI/SCI Waiver Program, despite her technical ineligibility.” Russell Aff. ¶¶ 4, 5. Thus, Plaintiff’s injury is “capable of repetition.” Olmstead, 527 U.S. at 594 n. 6.
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B. Applicable Law Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.10 “To state a claim under Title II of the ADA, a plaintiff must allege: (1) that [s]he is a ‘qualified individual with a disability;’ (2) that [s]he was ‘excluded from participation in or . . . denied the benefits of the services, programs, or activities of a public entity’ or otherwise ‘discriminated [against] by such entity;’ (3) ‘by reason of such disability.’” Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001)(quoting 42 U.S.C. § 12132)). In the Olmstead decision, the Supreme Court considered the application of this public services antidiscrimination provision in circumstances comparable to those presented by this case:
we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions. Id. at 587. The Court answered this question with a “qualified yes.” See id. In doing so, the Court held that the unjustified institutional isolation of persons with disabilities is a form of discrimination by reason of disability. See id. at 597, 600-01. The Court explained: Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable
10 Plaintiff’s Rehab Act claim is essentially the same as her ADA claim, and discrimination claims of this kind are analyzed similarly under the two acts. See Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009) (“Because the same standards govern discrimination claims under the Rehabilitation Act and the ADA, we discuss those claims together and rely on cases construing those statutes interchangeably.”). Accordingly, the Court will refer primarily to the ADA for the sake of brevity.
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or unworthy of participating in community life. . . . Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.
Id. at 600-01 (internal citations omitted). To avoid the discrimination inherent in the
unjustified isolation of disabled persons, public entities are required to make reasonable
modifications to policies, practices, and procedures for services they elect to provide.
Nevertheless, the Olmstead Court recognized that a state’s responsibility, once it determines to provide community-based treatment, is not without limits. See id. at 603.11 Rather, the
regulations implementing the ADA require only “reasonable modifications” and permit a state
to refuse alterations to programs that will result in a fundamental alteration of the program
or service. See id.
In considering whether a proposed modification is a reasonable modification, which
would be required, or a fundamental alteration, which would not, the Olmstead Court
determined that a simple comparison showing that a community placement costs less than
an institutional placement is not sufficient to establish reasonableness because it overlooks
11 “‘[W]hile “[t]he section of Justice Ginsburg’s opinion discussing the state’s fundamental alteration defense commanded only four votes . . . [b]ecause it relied on narrower grounds than did Justice Stevens’ concurrence or Justice Kennedy’s concurrence, both of which reached the same ultimate result, Justice Ginsburg’s opinion controls.”’” Arc of Washington State Inc. v. Braddock, 427 F.3d 615, 617 (9th Cir. 2005) (quoting Sanchez v. Johnson, 416 F.3d 1051, 1064 n.7 (9th Cir. 2005), quoting Townsend v. Quasim, 328 F.3d 511, 519 n.3 (9th Cir. 2003)).
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other costs that the state may not be able to avoid. See id. at 604. The Court explained,
Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.
Id. Indeed, the Court recognized that the fundamental alteration defense must be understood
to allow some leeway to maintain a range of facilities and services. See id.
If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. . . . In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the communitybased treatment waiting list by individuals lower down who commenced civil actions.
Id. at 605-06. Thus, having considered the ADA as well as the applicable regulations, the
Court concluded that the ADA requires states to provide community based treatment for
persons with disabilities when: (1) the state’s treatment professionals have determined that
community-based services are appropriate for an individual; (2) the individual does not
oppose such services; and (3) the services can be reasonably accommodated, taking into
account (a) the resources available to the state, and (b) the needs of others with disabilities.
See id. at 602-04, 607; Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d
374, 379-80 (3d Cir. 2005); Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of
Pa., 364 F.3d 487, 493 (3d Cir. 2004); Fisher v. Okla. Health Care Auth., 335 F.3d 1175,
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1181 (10th Cir. 2003). When these requirements are met, states must provide services to individuals in community settings rather than in institutions. See Fisher, 335 F.3d at 1181.
C. Defendants’ Arguments 1. Plaintiff Fails to State A Claim For Relief Under the ADA Because She Fails To Allege Discriminatory Conduct
Defendants argue that Plaintiff has not alleged that she was excluded from services “‘by reason of . . . disability’” and indeed alleges that individuals with her disability receive community-based services. Motion to Dismiss at 2.12 Defendants’ argument was summarily rejected by the Supreme Court in Olmstead. There, the state argued that plaintiffs encountered no discrimination“by reason of” their disabilities because they were not denied community placement on account of their disabilities, and because no similarly situated individuals received preferential treatment. 527 U.S. at 598. The Court responded that “[w]e are satisfied that Congress had a more comprehensive view of the concept of discrimination advance by the ADA.” Id. As such, the Court held that “[u]njustified insolation . . . is properly regarded as discrimination based on disability” under the ADA. Id. at 597. Moreover, this Court considered the same argument at the preliminary injunction stage of this litigation and similarly rejected it. 07/09/10 Opinion at 21. Defendants’ argument is
12 Defendants incorrectly contend that failure to allege a critical element of a claim means that Plaintiff does not have “standing.” Motion to Dismiss at 3. A challenge that a complaint fails to sufficiently allege the essential elements of a claim does not implicate the Court’s jurisdiction, but is more properly brought pursuant to Rule 12(b)(6). Cf. Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006)(“‘at minimum, notice pleading requires that a complaint contain inferential allegations from which we can identify each of the material elements necessary to sustain a recovery under some viable legal theory’” (citation and emphasis omitted)); see also Frazile v. EMC Mortgage Corp., 382 F. App’x 833, 836-37 (11th Cir. 2010)(same).
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again, not well-taken.13 2. Plaintiff’s Claims Are Collaterally Estopped
Defendants contend that Plaintiff “lacks standing because she is a member of the class certified in Dubois v. Levine, Case No. 4:03-CV-107-SPM.” Motion to Dismiss at 3. Attached to the Motion to Dismiss are a copy of the Complaint for Declaratory and Injunctive Relief filed on April 11, 2003, in the United States District Court for the Northern District of Florida in the Dubois case (Doc. 32-1; Exhibit A); the Court approved Settlement from the Dubois case, filed in October 2006, and covering a class defined as “all individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligible to receive services from Florida’s Medicaid Waiver Program . . . and have not received such services,” and prescribeing conduct through June 2009 (Doc. 32-2; Exhibit B at 1); and the Order of Dismissal With Prejudice of the Dubois case, dated January 4, 2007. (Doc. 32-3; Exhibit C).
A party may raise an affirmative defense, such as collateral estoppel, in a Rule 12(b)(6) motion, where the existence of the defense can be judged on the face of the complaint. Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982); Stephens v. State Farm Fire and Cas. Co., No. 1:03-CV-3094-JTC, 2004 WL 5546250, at *1 (N.D. Ga. June 23, 2004), aff’d, 149 F. App’x 908 (11th Cir. 2005). In considering such a challenge,
13 Defendants’ argument that plaintiff fails to allege discriminatory treatment because she “is not a member of a suspect class so disparate treatment is analyzed using a rational basis test,” Motion to Dismiss at 3, is likewise without merit. Plaintiff does not bring an equal protection constitutional claim, but rather challenges Defendants’ conduct as a violation of the ADA and the Rehab Act. The Court’s review is confined to resolving the case on statutory grounds. See Olmstead, 527 U.S. at 588. Moreover, as previously noted, the Court’s conclusion regarding the ADA applies equally to Plaintiff’s claim under the Rehab Act.
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the Court may take judicial notice of and consider documents which are public records, that are attached to the motion to dismiss, without converting the motion to dismiss into a motion for summary judgment. This is based on the fact that such documents are “public records that [are] ‘not subject to reasonable dispute’ because they [are] ‘capable of accurate and ready determination by resort to sources whose accuracy [can] not reasonably be questioned.’” Horne v. Potter, 392 F. App’x 800, 802 (11th Cir. 2010)(quoting Fed. R. Evid. 201(b)). Moreover, “a court may take notice of a another court’s order . . . for the limited purpose of recognizing the ‘judicial act’ that the order represents or the subject matter of that litigation.” United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).
Here, the parties do not dispute the fact that the proffered Dubois documents accurately reflect the Dubois proceedings, nor do they appear to dispute that the Court should take judicial notice of the documents. See Motion to Dismiss at 3–5; Response at 2-5; see also United States v. Jones, 29 F.3d at 1553; Fed. R. Evid. 201(b). Thus, the Court takes judicial notice of documents filed in the Dubois proceedings because they are in the public record, capable of accurate and ready determination, and not reasonably questioned, without converting the Defendants’ Motion to Dismiss into a motion for summary judgment. See Horne, 392 F. App’x at 802 (holding that district court properly took judicial notice of documents in plaintiff’s first discrimination case and affirming dismissal of the complaint based on res judicata); Universal Express, Inc. v. SEC, 177 F. App’x 52, 53-54 (11th Cir. 2006)(district court could take judicial notice of complaint filed in the Southern District of New York without converting motion to dismiss into a motion for summary judgment); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1279-80 (11th Cir. 1999)(court at motion to dismiss
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stage was authorized to take judicial notice of relevant public record documents required to be filed with the SEC).
Having considered the Dubois documents attached to the Motion to Dismiss, the Court finds that Defendants’ Motion to Dismiss based upon the doctrine of collateral estoppel is due to be denied. See 7/9/10 Opinion at 21-24. Indeed, this Court rejected Defendants’ same collateral estoppel argument based upon the Dubois settlement in granting Plaintiff’s Motion for Preliminary Injunction. At that time, the Dubois settlement and supporting documents were before the Court and examined. The Court determined that the Dubois Settlement document was insufficient to establish that the first three prerequisites for collateral estoppel - namely that the issue at stake in Dubois was identical to the issues raised here; that the issue was “actually litigated” in Dubois; and that the determination of the issue was a “‘critical and necessary part’” of the judgment in Dubois - and indeed raised significant questions about Defendants’ ability to satisfy the second and third elements. 7/9/10 Opinion at 22 (citing Christo v. Padgett, 223 F.3d 1324, 1339 (11th Cir. 2000)). Moreover, the Court found that the Dubois Settlement unequivocally established that Plaintiff did not have a full and fair opportunity to litigate the issues raised by her claims in the Dubois proceeding, and thus Defendants failed to satisfy the fourth essential element required for collateral estoppel to apply. 7/9/10 Opinion at 23. Specifically, because Plaintiff did not suffer her injury until September 7, 2007, which was after the Dubois action was filed and after the Dubois Settlement was signed and approved by the Court, Plaintiff was not a party to the Dubois litigation, and did not have an “‘opportunity to litigate’” her claims. Id. at 23-24 (citation omitted). For this additional reason, Defendants’ Motion to Dismiss based
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upon collateral estoppel is due to be denied. 3. Plaintiff Fails To State A Claim Because The Regulations Implementing The ADA Are Not Enforceable By A Private Right Of Action
Defendants argue that the so-called “integration mandate” found in ADA implementing regulation 28 C.F.R. § 35.130(d), which provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” does not provide a private right of action, and thus, Plaintiff fails to state a claim. Motion to Dismiss at 6-8. As support, Defendants cite to the recent Eleventh Circuit case Am. Ass’n of People With Disabilities v. Harris, 605 F.3d 1124 (11th Cir. 2010), in which the court held that ADA regulation 28 C.F.R. § 35.151(d), which deals with nondiscrimination on the basis of disability in state and local services, 605 F.3d at 1129, standing alone, did not create a private right of action enabling visually impaired and disabled voters to sue state and county election officials to provide handicapped-accessible voting machines. 605 F.3d at 1132, 1135. In Harris, the court vacated the district court’s decision which granted recovery based on a violation of the regulation alone.
This Court rejected Defendants’ same argument in granting the Preliminary Injunction in this case, finding that the Harris decision presented no bar to Plaintiff’s claims because Plaintiff is alleging a violation of the ADA, which does afford a private right of action. See 7/9/10 Opinion at 24-26. Indeed, Plaintiff specified in her Complaint that she is alleging a violation of the ADA, 42 U.S.C. § 12132, (and of the Rehab Act. 29 U.S.C. § 794(a)), as
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required by Harris. Complaint ¶¶ 71, 74, 77. Compare Harris, 605 F.3d at 1131 (questioning how the district court ordered the defendant to comply with § 35.151(b) without first determining whether the defendant violated the ADA or whether the ADA authorized the relief sought). The relevant provision of the ADA, 42 U.S.C. § 12132, requires all public entities to refrain from discrimination, including “unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’” Olmstead, 527 U.S. at 600 (citing 42 U.S.C. §§ 12101(a)(2) and (5) as support); see also 29 U.S.C. § 794 and 45 C.F.R. § 84.12 (a Rehab Act regulation). Thus, under Olmstead, the failure to provide Medicaid services to a qualified individual such as Plaintiff in a community-based setting, may constitute a form of discrimination under the relevant statutory scheme. Plaintiff’s citation to the ADA’s and Rehab Act’s implementing regulations in her Complaint merely amplified her statutory claims, inasmuch as “the purpose of those regulations is to provide standards for compliance with the” statutes. Harris, 605 F.3d at 1134-35.
Plaintiff’s Complaint sufficiently states a claim under Title II of the ADA, and the Rehab Act. The Complaint alleges that Defendants administer Florida’s Medicaid Program, that the TBI/SCI Waiver Program is part of the Medicaid Program, Complaint ¶¶ 4, 8, 33, 36, 37, 38, 42, 43, and that Defendants are required to administer their Medicaid Programs, including the TBI/SCI Waiver Program, in compliance with the ADA and the Rehab Act. Id. ¶ 49. Plaintiff adequately alleges that she is a “qualified individual” with a disability, so as to qualify for the protections afforded by the ADA and the Rehab Act, id. ¶¶ 10-30, and that without the declaratory and injunctive relief sought, she is at risk of being institutionalized against her will. Id. ¶¶ 30-32. Moreover, Plaintiff has alleged that the relief requested, that
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is, placement in the TBI/SCI Waiver Program, can be “reasonably accommodated” by Defendants and could be accomplished without “fundamental alteration” of Defendants’ program. Id. ¶¶ 31-38, 42. Accordingly, for purposes of resolving the Motion to Dismiss, the Court finds that Plaintiff has adequately alleged that Defendants have violated the ADA, 42 U.S.C. § 12132, and the Rehab Act, 29 U.S.C. § 794(a). See Olmstead, 527 U.S. at 587, 597, 600, 602-07.
4. Plaintiff Fails To State A Claim Because The ADA Does Not Require A Public Entity To Provide Plaintiff With Personal Services
Defendants next contend that Plaintiff’s claims under the ADA and the Rehab Act fail because the ADA regulations exclude personal care services sought by Plaintiff from the purview of the ADA. Defendants cite to regulation 28 C.F.R. § 35.135, which states that the ADA “does not require a public entity to provide to individuals with disabilities . . . services of a personal nature, including assistance in eating, toileting, or dressing.” 28 C.F.R. § 35.135. Motion to Dismiss at 9-13. Thus, to place Plaintiff in the TBI/SCI Waiver Program, would, according to Defendants, be declaring “an exception for public entities that provide [personal care] services.” Id. at 10.
The Court rejected Defendants’ argument in the proceedings on the Motion for Preliminary Injunction, finding that while “[t]he ADA does not require states to provide a level of care or specific services, . . . once states choose to provide certain services, they must do so in a nondiscriminatory fashion. 7/9/10 Opinion at 27 (citing Olmstead, 527 U.S. at 603 n.14 (“States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide”); Fisher, 335 F.3d at 1182 (state may not amend option
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programs so as to violate the ADA)). The Court concluded: Here, Defendants have elected to provide the services that Plaintiff requests through the TBI/SCI Waiver program. Having done so, they must provide them in accordance with the ADA’s anti-discrimination mandate. Therefore, if Plaintiff is entitled to Medicaid services and is otherwise qualified for, desires, and requires TBI/SCI Waiver services in order to avoid unnecessary institutionalization, the ADA may, indeed, require Defendants to provide Plaintiff with such services if doing so would not result in a fundamental alteration of its programs.
Id. Regulation Section 35.135 states that public entities that are not already providing
personal services are not required to do so. However, when public entities do provide personal services, the ADA’s general prohibition against discrimination requires that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services . . . of a public entity, or be subjected to discrimination by any such entity,” 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a), and that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The clear implication is that the ADA requires a public entity to administer its existing programs in a nondiscriminatory manner and “in the most integrated setting appropriate.” See id.
Plaintiff alleges in her Complaint that Defendants have undertaken to provide personal care services in nursing homes and in the community, but refuse to provide them to her in the community unless she first enters a nursing home. Complaint, ¶¶ 8, 9, 33, 36, 38, 42, 43. Thus, nothwithstanding 28 U.S.C. § 35.135, under the facts as alleged, Plaintiff
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has stated a statutory claim for declaratory and injunctive relief under the ADA and the Rehab Act.
5. Plaintiff Fails To State A Claim Because Her Claim For Relief Would Require Amending or Abrogating The Medicaid Act
Defendants assert that the relief sought by Plaintiff would require a finding that the ADA invalidates one or more provisions of the Medicaid Act, and since the ADA did not amend the Medicaid Act, Plaintiff has failed to state a claim upon which relief can be granted. Motion to Dismiss at 13-20. Defendants argue that while Medicaid mandates nursing facility services, it does not require community-based personal services. Id. at 1316. Defendants contend that while a state may voluntarily provide additional non-mandatory services under a “waiver” agreement with the federal government, such as the TBI/SCI Waiver Program, it may “cap” the number of persons receiving waiver services. Id. at 14-15. Defendants reason that requiring them to provide in-home personal care services to Plaintiff would “nullify” provisions of the Medicaid Act. Id. at 16.
The Court addressed this same argument before, and held that Plaintiff’s claim does not require a finding that the ADA invalidates or amends the Medicaid Act by mandating the provision of community-based personal care services to Plaintiff which is an otherwise optional benefit under Medicaid, 7/9/10 Opinion at 28. Indeed, the Court observed that “[a] state that chooses to provide optional services, cannot defend against the discriminatory administration of those services simply because the state was not initially required to provide them.” Id. at 28. In addition, the Court held that Plaintiff’s claims do not seek to invalidate the “cap” Defendants have placed upon the TBI/SCI Waiver Program, or to in any other way
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invalidate any provisions of the Medicaid Act. Id. at 29. Plaintiff here is simply seeking to
require Defendants to comply with the non-discrimination provisions of the ADA and the Rehab Act in the programs Defendants offer. Id.14 Indeed, “States must adhere to the
ADA’s nondiscrimination requirement with regard to the services they in fact provide.”
Olmstead, 527 U.S. at 603 n.14. Defendants’ Motion to Dismiss based on this invalidation
argument is due to be denied.
6. Plaintiff Fails To State A Claim Because Her Claim For Relief Would Result In A Fundamental Alteration To The Florida Medicaid Program In Violation Of The ADA
The Supreme Court has instructed that “the proscription of discrimination may require
placement of persons with . . . disabilities in community settings rather than in institutions”
when 1) “the State’s treatment professionals have determined that community placement
is appropriate”; 2) the “transfer from institutional care to a less restrictive setting is not
opposed by the affected individual”; and 3) “the placement can be reasonably
accommodated, taking into account the resources available to the State and the needs of
others with mental disabilities.” Olmstead, 527 U.S. at 587 (emphasis added).
The State’s responsibility, once it provides communitybased treatment to qualified persons with disabilities, is not boundless. The reasonable-modifications regulation speaks of “reasonable modifications” to avoid discrimination, and allows States to resist modifications that entail a “fundamenta[l] alter[ation]” of the States’ services and programs.
14 In this regard, the Supreme Court has provided a framework of analysis to determine whether state-run Medicaid home and community-based care for the disabled, provided through a waiver program, discriminates against a qualified individual in violation of the ADA, without invalidating any provisions of the Medicaid Act. See Olmstead, 527 U.S. at 601 (“Medicaid has provided funding for state-run home and community-based care through a waiver program” and holding that mentally disabled respondents were qualified for community-based personal care).
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. . . Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with . . . disabilities. Id. at 603-04 (citing (citing 28 C.F.R. § 35.130(b)(7)). “Fundamental-alteration” is an affirmative defense. See id. at 597 (“evaluating a State’s fundamental-alteration defense”), 603 (“cost-based defense”), 605 (“fundamental-alteration defense”). A complaint may be dismissed for failure to state a claim “when its allegations . . . show that an affirmative defense bars recovery on the claim.” Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001). “If the complaint contains a claim that is facially subject to an affirmative defense, that claim may be dismissed under Rule 12(b)(6). LeFrere v. Quezada, 582 F.3d 1260, 1263 (11th Cir. 2009). Looking at the four corners of the Complaint, as the Court must when considering a Rule 12(b)(6) Motion to Dismiss, Plaintiff has alleged that she has been on the TBI/SCI Waiver Program waiting list for two and a half years. Complaint ¶¶ 13, 40, 41, 65. When Plaintiff contacted Defendants to report her changed circumstances in March, 2010, “Defendants’ employee did not know when, or if, Ms. Haddad would receive waiver services.” Id. ¶ 32. In the Complaint, Plaintiff alleges that the TBI/SCI Waiver Program “community-based Medicaid services” is limited to 375 participants through 2012, that the number of persons with spinal cord injuries on the “‘wait list’” increased from 434 to 554 in 2008, that Defendants have not increased the number of people with spinal cord injuries
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who will receive community-based waiver services, and that Defendants “have recently stated there are ‘no funded slots open’ in the spinal cord waiver program.” Complaint ¶ 43, 44, 46, 48, 64, 67. Additionally,
Ms. Haddad has never been informed about her rank or numerical position on the waiting list, whether her rank or numerical position has even changed, when approximately she will receive Waiver services, what if anything she might do to increase her position, or any other information regarding how slowly or quickly the waiting list might be moving. Id. at ¶ 66. Plaintiff alleges that Defendants have told her that to be “‘eligible’” for TBI/SCI Waiver Program, “she will have to enter a nursing home for 60 days” first, id. ¶ 41, although a “very limited number of people” similar to plaintiff receive the community-based services without first entering a nursing home. Id. ¶ 38. Plaintiff alleges that the cost to Defendants of providing her community-based personal services would be less than providing those same services in the institutionalized setting, to which Defendants are requiring her to submit. Id. ¶ 34, 35. Defendants argue first that Plaintiff’s claims would “allow” the ADA to “trump” the Medicaid Act resulting in a “fundamental alteration” of the state’s Medicaid Program. Motion to Dismiss at 20. As confirmed by the Supreme Court in Olmstead, and as set forth above, see supra at 15-18, Plaintiff’s claims do not seek to alter any Medicaid program; instead Plaintiff seeks relief alleging that the Medicaid TBI/SCI Waiver Program offered by the state violates the ADA and the Rehab Act because it would result in her involuntary isolation and segregation in a nursing home, which the Supreme Court has said may be contrary to the ADA’s proscription against discrimination.
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Next, Defendants contend that placing Plaintiff in the TBI/SCI Waiver Program would result in their being “forced to reduce services that others in the TBI/SCI Waiver program are currently receiving.” Motion to Dismiss at 21. As support, Defendants cite to the Affidavit of TBI/SCI Medicaid Waiver program administrator Kristen Russell, attached as an exhibit to their Motion to Dismiss. (Doc. 32-4 (Russell Aff.)). On this Motion to Dismiss, the Court’s review is limited to the four corners of the Complaint which does not include the Russell Affidavit. Long, 508 F.3d at 578 n.3; Bickley, 461 F.3d at 1229 n.7. Defendants also argue that ordering the relief sought by Plaintiff would cause a fundamental alteration and disruption of Defendants’ “‘comprehensive, effectively working plan’” to provide communitybased services to disable persons such as Plaintiff. Motion to Dismiss at 21-23 (citing Olmstead, 527 U.S. at 606). Again, Defendants cite to the Russell Affidavit, attached as an exhibit to their Motion to Dismiss, and to affidavits submitted in opposition to Plaintiff’s Motion for Preliminary Injunction.15 The Court has declined to consider Defendants’ affidavits for purposes of resolving the instant motion.
Recognizing that a State must have some “leeway” to administer services to disabled persons in community settings “with an even hand,” the Supreme Court discussed the “fundamental-alteration defense.” Olmstead, 527 U.S. at 605-06.
If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by
15 Affidavit of Elizabeth Y Kidder, Bureau Chief for Medicaid Services, Florida Agency for Health Care Administration (Doc. 24-1), and Affidavit of Susan Michele Hudson, Bureau Chief for Medicaid Program Analysis, Florida Agency for Health Care Administration. (Doc. 26-1).
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the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. Id. This defense, raised by Defendants in a motion to dismiss, cannot succeed given the allegations of the Complaint which the Court must accept as true. After a thorough review of Plaintiff’s Complaint, the Court readily concludes that Defendants’ fundamental alteration defense is not established as a matter of law on the face of Plaintiff’s Complaint. For example, as part of this defense, Defendants argue that they would be forced to reduce services to others and that their “comprehensive plan” would be disrupted, if they were to be forced to provide Plaintiff with the services she requests. However, Plaintiff alleges that Defendants have told her she could receive community-based services if she would enter a nursing home facility first. It is not at all apparent from the Complaint how Defendants’ program would be “fundamentally altered” if Plaintiff were granted the relief requested and placed in the TBI/SCI Waiver program immediately rather than 60 days hence. Plaintiff also alleges that the community-based services cost less than institutionalized services, and that Plaintiff would receive community-based services if she first submits to involuntary institutionalization. These allegations, accepted as true, undermine Defendants’ argument that providing Plaintiff with relief would force Defendants to reduce services to others. Additionally, Plaintiff alleges that she has been on the waiting list for the TBI/SCI Waiver Program for two and a half years, that she has communicated to Defendants that her circumstances are such that she faces immediate institutionalization absent placement in the TBI/SCI Waiver Program, and that Defendants are unable to certify that she will ever be placed in the community-based Waiver Program, unless she first
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submits to mandatory 60-day institutionalization. These allegations belie Defendants’ current contention that the state has a comprehensive effectively working plan. Indeed, the allegations of the Complaint concerning the delay and uncertainty surrounding placement on, and movement off of, the TBI/SCI Waiver Program waiting list, and the requirement that Plaintiff submit to involuntary institutionalization in order to receive services, do not begin to establish the existence of a “comprehensive effectively working plan” or a waiting list that moves at a reasonable pace. In sum, Defendants’ affirmative defense that it has “comprehensive, effectively working plan,” and “a waiting list that move[s] at a reasonable pace” is not apparent from the face of the Complaint. Accordingly, Defendants’ Motion to Dismiss based upon its “fundamental-alteration defense” is due to be denied.16
Upon due consideration, it is hereby ORDERED: 1. Defendants’ Motion to Dismiss Complaint (Doc. 32) is DENIED.
16 The Court, in considering the same evidence proffered by Defendants in support of their Motion to Dismiss, held that Plaintiff was entitled to a Preliminary Injunction, based, in part, on her likelihood of success on the merits. Opinion at 30-35. The Court determined that based on the evidence submitted, “it is unclear why Defendants would not realize some savings from the start,” given the fact that the evidence established that Plaintiff is “on the threshold of involuntary institutionalization.” Opinion at 32. Additionally, the Court determined that, based upon the limited record, there was no evidence that placement of Plaintiff in the TBI/SCI Waiver Program would undermine Defendants’ ability to serve other similarly qualified disabled individuals. Id. at 33. Finally, the Court held that Defendants had not submitted sufficient evidence to establish that the state had a comprehensive working plan in place to address unnecessary institutionalization, finding that Defendants’ “plan” was to require Plaintiff to enter a nursing home for at least 60 days and then be transitioned out of the institution to home services, in order to provide Defendants an alternative funding source for the communitybased services. Id. at 33-35. On this record, the Court held that Defendants’ fundamental alteration defense was not sufficiently supported, and that Plaintiff established at that stage of the litigation, that she was likely to prevail on the merits of her case. Id. at 36.
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Order (Doc. 55) remain in effect. DONE AND ORDERED in Jacksonville, Florida, this 16th day of March, 2011.
lc12 Copies to: Counsel of Record
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 </s> Case: 3:10-cv-414 As of: 10/12/2012 01:57 AM EDT 1 of 10
U.S. District Court Middle District of Florida (Jacksonville) CIVIL DOCKET FOR CASE #: 3:10−cv−00414−MMH−TEM

CLOSED

Haddad v. Arnold et al Assigned to: Judge Marcia Morales Howard Referred to: Magistrate Judge Thomas E. Morris Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 05/13/2010 Date Terminated: 02/03/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Michele Haddad

represented by Jay M. Howanitz Spohrer &Dodd, PL Suite 2 701 W Adams St Jacksonville, FL 32204 904/309−6500 Fax: 904/309−6501 Email: jhowanitz@sdlitigation.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. Gold Law Office of Stephen F. Gold 2nd Floor 1709 Benjamin Franklin Pkwy Philadelphia, PA 19103 215/627−7100 Fax: 215/627−3183 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Thomas Arnold in his official capacity as Secretary, Florida Agency for Health Care Administration
Defendant

represented by Andrew T. Sheeran Florida Agency for Health Care Administration Bldg 3 − MS 3 2727 Mahan Dr Tallahassee, FL 32308−5407 850/412−3630 Fax: 850/921−0158 Email: sheerana@ahca.myflorida.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Michael Blocker , II Agency for Health Care Administration Mail Stop 3 2727 Mahan Dr Tallahassee, FL 32308−5407 850/421−3634 Fax: 850/921−0158 Email: blockerw@ahca.myflorida.com TERMINATED: 08/06/2010 ATTORNEY TO BE NOTICED

Case: 3:10-cv-414 As of: 10/12/2012 01:57 AM EDT 2 of 10

Doctor Anna Viamonte Ross in her official capacity as Secretary, Florida Department of Health

represented by Enoch Jonathan Whitney Office of the Attorney General* PL−01 − The Capitol Tallahassee, FL 32399−1050 850/414−3672 Fax: 850/488−4872 Email: Jon.Whitney@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Elizabeth Dudek

represented by Andrew T. Sheeran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Enoch Jonathan Whitney Office of the Attorney General PL−01 − The Capitol 107 W. Gaines St Tallahassee, FL 32399−1050 850/414−3672 Fax: 850/488−4872 Email: Jon.Whitney@myfloridalegal.com ATTORNEY TO BE NOTICED

Defendant
Surgeon General Harry Frank Farmer, Jr., M.D.

represented by Enoch Jonathan Whitney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant USA

represented by Beth A. Esposito US Department of Justice − Civil Rights Division 1425 NY Ave NW − Ste 4038 PO Box 66738 Washington, DC 20035 202/305−1130 Fax: 202−616−6862 Email: beth.esposito@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

John L. Wodatch US Department of Justice − Civil Division 950 Pennsylvania Ave NW Washington, DC 20530 202−305−8454 Fax: 202−616−6862 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip L. Breen US Department of Justice − Civil Division 950 Pennsylvania Ave NW Washington, DC 20530 202/305−8454 Fax: 202/616−6862 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:10-cv-414 As of: 10/12/2012 01:57 AM EDT 3 of 10
Renee M. Wohlenhaus US Department of Justice − Civil Division 950 Pennsylvania Ave NW Washington, DC 20530 202/305−8454 Fax: 202/616−6862 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/13/2010 05/13/2010 05/13/2010 05/13/2010 05/13/2010
05/14/2010 05/17/2010 05/19/2010 05/20/2010 05/21/2010 05/24/2010 05/25/2010 05/25/2010 05/25/2010
05/26/2010 05/26/2010

# Docket Text
1 COMPLAINT against Thomas Arnold, Anna Viamonte Ross (Filing fee $ 350 receipt number J035096) filed by Michele Haddad.(PAM) (Entered: 05/13/2010)
2 MOTION for preliminary injunction and MOTION for Expedited Hearing by Michele Haddad. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(PAM) (Entered: 05/13/2010)
Summons issued as to Thomas Arnold, Anna Viamonte Ross. (PAM) (Entered: 05/13/2010)
3 AMENDED STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Divisional Judges on 5/25/2005. (PAM) (Entered: 05/13/2010)
4 ORDER taking under advisement 2 Motion for preliminary injunction. Plaintiff is directed to promptly effect service of process on Defendants and file proof of such service. See Order for details. Signed by Judge Unassigned Judge MMH on 5/13/2010. (BMR) (Entered: 05/13/2010)
5 NOTICE of designation under Local Rule 3.05 − track 2. Signed by Deputy Clerk on 5/14/2010. (Attachments: # 1 Case Management Report Form, # 2 Consent Letter and Form)(JW) (Entered: 05/14/2010)
6 MOTION for miscellaneous relief, specifically Leave to Appear Specially by United States. (MHH) (Entered: 05/17/2010)
7 NOTICE of Appearance by Andrew T. Sheeran on behalf of Thomas Arnold (Sheeran, Andrew) (Entered: 05/19/2010)
8 NOTICE of Appearance by William Michael Blocker, II on behalf of Thomas Arnold (Blocker, William) (Entered: 05/20/2010)
9 ORDER granting 6 United States' Motion for Leave to Appear Specially. The United States may file a brief in this action no later than 6/4/2010. Signed by Judge Marcia Morales Howard on 5/21/2010. (BMR) (Entered: 05/21/2010)
10 RESPONSE re 9 Order on Motion for Miscellaneous Relief STATEMENT OF INTEREST filed by United States. (Attachments: # 1 Exhibit)(Esposito, Beth) (Entered: 05/24/2010)
11 RETURN of service executed on May 17, 2010 by Michele Haddad as to Thomas Arnold. (Howanitz, Jay) (Entered: 05/25/2010)
12 RETURN of service executed on May 17, 2010 by Michele Haddad as to Anna Viamonte Ross. (Howanitz, Jay) (Entered: 05/25/2010)
13 ORDER taking under advisement 2 Motion for Preliminary Injunction. This matter is set for a hearing on Monday, June 7, 2010, at 3:00 p.m. See Order for details and briefing schedule. Signed by Judge Marcia Morales Howard on 5/25/2010. (BMR) (Entered: 05/25/2010)
14 NOTICE of Appearance by Enoch Jonathan Whitney on behalf of Anna Viamonte Ross (Whitney, Enoch) (Entered: 05/26/2010)
15 MOTION for Stephen F. Gold to appear pro hac vice by Michele Haddad. (Howanitz, Jay) Motions referred to Magistrate Judge Thomas E. Morris. (Entered: 05/26/2010)

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05/26/2010 05/26/2010 05/27/2010 05/27/2010
05/27/2010 05/27/2010
05/27/2010
05/28/2010 06/02/2010 06/02/2010 06/02/2010 06/02/2010 06/04/2010 06/06/2010 06/07/2010

16 Emergency MOTION for leave to file excess pages in Defendants' Response to Preliminary Injunction by Thomas Arnold, Anna Viamonte Ross. (Sheeran, Andrew) (Entered: 05/26/2010)
17 ORDER granting 16 Emergency Motion for Leave to Exceed Page Limit. See Order for details. Signed by Judge Marcia Morales Howard on 5/26/2010. (BMR) (Entered: 05/26/2010)
18 ENDORSED ORDER granting 15 motion to appear pro hac vice. Signed by Magistrate Judge Thomas E. Morris on 5/27/2010. (JE) (Entered: 05/27/2010)
19 Joint MOTION for extension of time to complete discovery and expert witness disclosure deadlines and memorandum of law by Michele Haddad. (Howanitz, Jay) Motions referred to Magistrate Judge Thomas E. Morris. Modified on 5/28/2010 Notified by counsel document inadvertently added to incorrect case (MHH). (Entered: 05/27/2010)
20 Emergency MOTION for extension of time to file response/reply as to 2 MOTION for Hearing MOTION for preliminary injunction by Thomas Arnold, Anna Viamonte Ross. (Sheeran, Andrew) Motions referred to Magistrate Judge Thomas E. Morris. (Entered: 05/27/2010)
21 ORDER scheduling telephone conference on May 27, 2010 at 4:30 p.m. re 20 Emergency MOTION for extension of time to file response/reply as to 2 MOTION for Hearing MOTION for preliminary injunction filed by Anna Viamonte Ross, Thomas Arnold. See Order for details. Signed by Judge Marcia Morales Howard on 5/27/2010. (DH) (Entered: 05/27/2010)
22 Minute Entry. Proceedings held before Judge Marcia Morales Howard: re 20 Emergency MOTION for extension of time to file response/reply as to 2 MOTION for preliminary injunction filed by Anna Viamonte Ross, Thomas Arnold. Motion Hearing held on 5/27/2010; granting 20 Motion for extension of time to file response/reply as to 2 MOTION for preliminary injunction (Responses due by 6/2/2010; Replies due by 6/6/2010). Court Reporter: Shelli Kozachenko. (DH) Modified text on 5/28/2010 (DH). (Entered: 05/28/2010)
23 NOTICE of Hearing on Motion 2 MOTION for Hearing MOTION for preliminary injunction: Motion Hearing set for 6/15/2010 at 02:00 PM in Jacksonville Courtroom 10 B before Judge Marcia Morales Howard. (DH) (Entered: 05/28/2010)
24 NOTICE by Thomas Arnold Notice of Filing Affidavit of Elizabeth Y. Kidder (Attachments: # 1 Affidavit Affidavit of Elizabeth Y. Kidder, # 2 Exhibit Ex. I: Draft Nursing Home Transition Plan, # 3 Exhibit Ex. II: Long v Benson Settlement Agreement)(Sheeran, Andrew) (Entered: 06/02/2010)
25 NOTICE by Thomas Arnold Notice of Filing Affidavit of Kristen Russell (Attachments: # 1 Affidavit Affidavit of Kristen Russell, 6−2−2010)(Sheeran, Andrew) (Entered: 06/02/2010)
26 NOTICE by Thomas Arnold Notice of Filing Affidavit of Michele Hudson (Attachments: # 1 Affidavit Michele Hudson, 6−2−2010)(Sheeran, Andrew) (Entered: 06/02/2010)
27 RESPONSE in opposition re 2 MOTION for Hearing MOTION for preliminary injunction filed by Thomas Arnold. (Attachments: # 1 Affidavit Kristen Russell, 4−29−2010)(Sheeran, Andrew) (Entered: 06/02/2010)
28 Emergency MOTION for leave to file excess pages by Michele Haddad. (Howanitz, Jay) (Entered: 06/04/2010)
29 REPLY to response to motion re 2 MOTION for Hearing MOTION for preliminary injunction. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Gold, Stephen) (Entered: 06/06/2010)
30 ORDER granting 28 Motion for Leave to File Excess Pages. See Order for details. Signed by Judge Marcia Morales Howard on 6/7/2010, nunc pro tunc to 6/4/2010. (BMR) (Entered: 06/08/2010)

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06/08/2010 06/08/2010
06/08/2010 06/09/2010 06/09/2010 06/10/2010 06/10/2010 06/14/2010 06/15/2010
06/15/2010 06/21/2010 06/21/2010 06/21/2010 06/21/2010
06/21/2010 06/23/2010 07/08/2010

31 SUPPLEMENT re 10 Response STATEMENT OF INTEREST by United States. (Esposito, Beth) Modified on 6/10/2010 STRICKEN pursuant to Order #36 (MHH). (Entered: 06/08/2010)
32 MOTION to dismiss Complaint by Thomas Arnold, Anna Viamonte Ross. (Attachments: # 1 Exhibit A − Dubois Complaint, # 2 Exhibit B − Dubois Settlement, # 3 Exhibit C − Dubois Order of Dismissal, # 4 Exhibit D − Affidavit of Kristen Russell dated 4/29/10)(Sheeran, Andrew) (Entered: 06/08/2010)
33 CERTIFICATE OF SERVICE by United States re 31 Supplement Statement of Interest (Esposito, Beth) Modified on 6/9/2010 Counsel notified to refile document with case style and case number(MHH). (Entered: 06/08/2010)
34 AMENDED CERTIFICATE OF SERVICE by United States re 31 Supplement (Esposito, Beth) Modified on 6/9/2010 to edit text only(MHH). (Entered: 06/09/2010)
35 MEMORANDUM in opposition re 32 Motion to dismiss complaint filed by Michele Haddad. (Gold, Stephen) (Entered: 06/09/2010)
36 ORDER directing the Clerk of the Court to strike 31 Supplemental Statement of Interest of the United States. See Order for details. Signed by Judge Marcia Morales Howard on 6/10/2010. (BMR) (Entered: 06/10/2010)
37 MOTION for miscellaneous relief, specifically Leave to File a Supplemental Statement of Interest by United States. (Esposito, Beth) (Entered: 06/10/2010)
38 NOTICE of Appearance by Anne S, Raish on behalf of United States (Carter, Ronnie) Modified on 6/14/2010 (PAM). [Counsel notified to use correct case number on future pleadings] (Entered: 06/14/2010)
39 Minute Entry for proceedings held before Judge Marcia Morales Howard: Motion Hearing held on 6/15/2010 regarding 2 Plaintiff's Motion for Preliminary Injunction; granting 37 the United States' Motion for Leave to File a Supplemental Statement of Interest. The Clerk of the Court is directed to file the Supplemental Statement of Interest of the United States of America which is attached as Exhibit A to the motion. Court Reporter: Shelli Kozachenko (JW) (Entered: 06/16/2010)
45 SUPPLEMENTAL Statement of Interest re 10 Response by United States. (MHH) Modified on 6/23/2010 to edit docket text (SMS). (Entered: 06/22/2010)
40 NOTICE by Michele Haddad Notice of Status Re Hospital Discharge (Gold, Stephen) (Entered: 06/21/2010)
41 MEMORANDUM in support re 40 Notice (Other) Preliminary Injunction Relief filed by Michele Haddad. (Gold, Stephen) (Entered: 06/21/2010)
42 MEMORANDUM in opposition re 2 Motion for HearingMotion for preliminary injunction Memorandum of Law on Mandatory Nature of Requested Injunction filed by Thomas Arnold. (Sheeran, Andrew) (Entered: 06/21/2010)
43 NOTICE by Thomas Arnold re 42 Memorandum in opposition Notice of Substituted Filing (Attachments: # 1 Main Document Ex.A − Amended Memorandum of Law on Standard for Preliminary Injunction)(Sheeran, Andrew) (Entered: 06/21/2010)
44 MEMORANDUM in support re 2 Motion for HearingMotion for preliminary injunction Memorandum of Law Regarding Preliminary Injunction Standard filed by United States. (Raish, Anne) (Entered: 06/21/2010)
46 ORDER granting 2 Plaintiff Michele Haddad's Motion for Preliminary Injunction, Memorandum in Support Thereof, and Expedited Hearing. Signed by Judge Marcia Morales Howard on 6/23/2010. (JW) (Entered: 06/23/2010)
47 TRANSCRIPT of Preliminary Injunction Hearing held on June 15, 2010, before Judge Marcia Morales Howard. Court Reporter/Transcriber Shelli Kozachenko,Telephone number 904.301.6842. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be

Case: 3:10-cv-414 As of: 10/12/2012 01:57 AM EDT 6 of 10

07/09/2010
07/09/2010 07/09/2010 07/12/2010 07/12/2010 07/22/2010 07/30/2010 08/04/2010
08/05/2010 08/06/2010 08/12/2010 08/16/2010 12/01/2010 12/17/2010

obtained through PACER or purchased through the Court Reporter. Redaction Request due 7/29/2010, Redacted Transcript Deadline set for 8/9/2010, Release of Transcript Restriction set for 10/6/2010. (SMK) (Entered: 07/08/2010)
48 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Shelli Kozachenko, telephone number 904.301.6842. (SMK) (Entered: 07/09/2010)
49 OPINION regarding 2 Plaintiff Michele Haddad's Motion for Preliminary Injunction. Signed by Judge Marcia Morales Howard on 7/9/2010. (JW) (Entered: 07/09/2010)
50 ORDER reassigning this case from the unassigned docket to the docket of the undersigned for all further proceedings. Signed by Judge Marcia Morales Howard on 7/9/2010. (JW) (Entered: 07/09/2010)
51 Case Reassigned to Judge Marcia Morales Howard. New case number: 3:10−cv−414−J−34TEM. Judge Unassigned Judge MMH no longer assigned to the case. (PAM) Modified on 7/12/2010 (PAM). [Incorrect: See Doc. 52] (Entered: 07/12/2010)
52 AMENDED Case Reassigned to Judge Marcia Morales Howard. New case number: 3:10−cv−414−J−34TEM. Judge Unassigned Judge MMH no longer assigned to the case. (PAM) Modified on 7/12/2010 to edit text (PAM). (Entered: 07/12/2010)
53 MOTION for William M. Blocker II to withdraw as attorney by Thomas Arnold. (Blocker, William) Motions referred to Magistrate Judge Thomas E. Morris. Modified on 7/23/2010 (PAM). [Counsel notified to use correct case number on future pleadings] (Entered: 07/22/2010)
54 CASE MANAGEMENT REPORT. (Howanitz, Jay) (Entered: 07/30/2010)
55 CASE MANAGEMENT AND SCHEDULING ORDER AND REFERRAL TO MEDIATION: Discovery due by 3/11/2011. Dispositive motions due by 4/1/2011. Conduct mediation hearing by 5/2/2011. Pretrial statement due by 7/11/2011. Final Pretrial Conference set for 7/18/2011 at 10:00 AM in Jacksonville Courtroom 10 B before Judge Marcia Morales Howard. Bench Trial set for trial term commencing on 8/1/2011 at 09:30 AM in Jacksonville Courtroom 10 B before Judge Marcia Morales Howard. Signed by Judge Marcia Morales Howard on 8/4/2010. (JW) (Entered: 08/04/2010)
56 NOTICE by Thomas Arnold, Anna Viamonte Ross Notice of Filing Affidavit of Kristen Russell, dated August 5, 2010 (Attachments: # 1 Affidavit Affidavit of Kristen Russell, dated August 5, 2010)(Sheeran, Andrew) (Entered: 08/05/2010)
57 ORDER granting 53 Motion to withdraw as attorney. See Order for details. Signed by Magistrate Judge Thomas E. Morris on 8/6/2010. (JE) (Entered: 08/06/2010)
58 CERTIFICATE of interested persons and corporate disclosure statement by Thomas Arnold, Anna Viamonte Ross. (Sheeran, Andrew) (Entered: 08/12/2010)
59 CERTIFICATE of interested persons and corporate disclosure statement by Michele Haddad. (Howanitz, Jay) (Entered: 08/16/2010)
60 Joint MOTION for extension of time to complete discovery and Memorandum of Law by Thomas Arnold, Michele Haddad, Anna Viamonte Ross. (Howanitz, Jay) Motions referred to Magistrate Judge Thomas E. Morris. (Entered: 12/01/2010)
61 ORDER granting 60 Motion for extension of time to complete discovery. Plaintiffs Disclosure of Expert Reports due February 4, 2011; Defendants Disclosure of Expert Reports due March 11, 2011; Deadline for Discovery is May 10, 2011. Signed by Magistrate Judge Thomas E. Morris on 12/17/2010. (JE) (Entered:

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02/03/2011 03/16/2011
03/25/2011 03/25/2011 04/07/2011 04/08/2011 04/11/2011 04/15/2011
04/15/2011 04/19/2011 04/20/2011 06/20/2011 06/22/2011 07/06/2011
07/08/2011
07/22/2011

12/17/2010)
62 NOTICE of compliance by Michele Haddad (Howanitz, Jay) (Entered: 02/03/2011)
63 ORDER denying 32 Defendants' Motion to Dismiss Complaint. The deadlines and settings in the Court's Case Management and Scheduling Order remain in effect. Signed by Judge Marcia Morales Howard on 3/16/2011. (JW) (Entered: 03/16/2011)
64 AFFIDAVIT of Kristen Russell Notice of Filing by Elizabeth Dudek. (Attachments: # 1 Affidavit Kristen Russell)(Sheeran, Andrew) (Entered: 03/25/2011)
65 MOTION to dismiss Complaint as Moot by Elizabeth Dudek. (Sheeran, Andrew) (Entered: 03/25/2011)
Mail returned as Undeliverable re: 63 Order on motion to dismiss. Mail not resent to Philip L. Breen per phone conversation that counsel has retired. (MHH) (Entered: 04/07/2011)
66 Unopposed MOTION to extend time to respond to Defendant's Motion to Dismiss by Michele Haddad. (Howanitz, Jay) (Entered: 04/08/2011)
67 ORDER granting 66 Agreed Motion for Extension of Time to Respond to Defendants' Motion to Dismiss. Response due April 20, 2011. Signed by Judge Marcia Morales Howard on 4/11/2011. (JW) (Entered: 04/11/2011)
68 STIPULATION of Dismissal With Prejudice by Thomas Arnold, Elizabeth Dudek, Michele Haddad, Anna Viamonte Ross. (Howanitz, Jay) INCORRECT PDF, COUNSEL REFILED DOCUMENT, REFER TO DOC. 69. Modified on 4/15/2011 (EAM). (Entered: 04/15/2011)
69 AMENDED STIPULATION of Dismissal With Prejudice by Thomas Arnold, Elizabeth Dudek, Michele Haddad, Anna Viamonte Ross. (Howanitz, Jay) Modified text on 4/15/2011 (EAM). (Entered: 04/15/2011)
70 ORDER dismissing case with prejudice. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 4/19/2011. (JW) (Entered: 04/19/2011)
71 AMENDED ORDER dismissing case. Signed by Judge Marcia Morales Howard on 4/20/2011. (JW) (Entered: 04/20/2011)
72 Unopposed MOTION to reopen Case by Michele Haddad. (Howanitz, Jay) (Entered: 06/20/2011)
73 ORDER granting 72 Plaintiff's Unopposed Motion to Re−Open Action. The Clerk of the Court is directed to re−open this case. Signed by Judge Marcia Morales Howard on 6/21/2011. (JW) (Entered: 06/22/2011)
74 MOTION for attorney fees and litigation expenses by Michele Haddad. (Attachments: # 1 Exhibit Gold declaration, # 2 Exhibit Howanitz declaration, # 3 Exhibit Gold resume, # 4 Exhibit Howanitz resume, # 5 Exhibit Gold fees and costs, # 6 Exhibit Howanitz fees and costs, # 7 Exhibit Coker declaration, # 8 Exhibit Alexander declaration)(Howanitz, Jay) Motions referred to Magistrate Judge Thomas E. Morris. (Entered: 07/06/2011)
75 ORDER referring motion for report and recommendation: 74 Plaintiff's Motion for Attorneys' Fees and Litigation Expenses. Signed by Judge Marcia Morales Howard on 7/8/2011. (JW) Motions referred to Magistrate Judge Thomas E. Morris. (Entered: 07/08/2011)
76 RESPONSE in opposition re 74 MOTION for attorney fees and litigation expenses (Defendants' Response and Memorandum of Law in Opposition to Plaintiff's Motion for Attorneys' Fees and Litigation Expenses) filed by Thomas Arnold, Elizabeth Dudek, Anna Viamonte Ross, Harry Frank Farmer, Jr., M.D.. (Attachments: # 1 Exhibit "A" (Order denying Plaintiff Haddad's Motion for Preliminary Injunction in Jones v. Arnold), # 2 Exhibit "B" (Stipulation of Dismissal of Class Action Claims in Jones v. Arnold), # 3 Exhibit "C" (attorney

Case: 3:10-cv-414 As of: 10/12/2012 01:57 AM EDT 8 of 10

07/22/2011 07/29/2011 08/03/2011
08/12/2011 08/19/2011
08/23/2011 08/26/2011 08/26/2011 08/29/2011 09/02/2011
09/08/2011 09/14/2011

Gold's disallowed hours related to Jones case), # 4 Exhibit "D" (attorney Howanitz' disallowed hours related to Jones case), # 5 Exhibit "E" (Plaintiff Haddad' Motion for Preliminary Injunction, etc., filed in Jones v. Arnold), # 6 Exhibit "F" (Motion for Leave to Amend First Amended Class Action Complaint in Jones v. Arnold), # 7 Exhibit "G" (Complaint filed in Cruz and De la Torre v. Arnold), # 8 Exhibit "H" (Amended Complaint filed in Robledo v. Dudek), # 9 Exhibit "I" (Defendants' Rsponse and Memorandum of Law in Opposition to Plaintiff Haddad's Motion for Preliminary Injunction filed in Jones v. Arnold), # 10 Exhibit "J" (Hours claimed by attorney Gold with objections), # 11 Exhibit "K" (Hours claimed by attorney Howanitz with objections))(Whitney, Enoch) (Entered: 07/22/2011)
77 NOTICE of Appearance by Enoch Jonathan Whitney on behalf of Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. (Whitney, Enoch) (Entered: 07/22/2011)
78 Unopposed MOTION for leave to file reply brief to Deft's response and memorandum of law in opposition to plaintiff's motion for attorneys' fees and litigation expenses by Michele Haddad. (Howanitz, Jay) (Entered: 07/29/2011)
79 ENDORSED ORDER granting 78 Motion for leave to file a reply to Defendant's response and memorandum of law in opposition to Plaintiff's motion for attorneys' fees and litigation expenses. Reply may not exceed 15 pages, conforming to requirements of Local Rule 1.05(a). Reply due by the close of business day on 8/12/2011. Signed by Magistrate Judge Thomas E. Morris on 8/3/2011. (NTM) (Entered: 08/03/2011)
80 REPLY to response to motion re 74 MOTION for attorney fees and litigation expenses filed by Michele Haddad. (Attachments: # 1 Exhibit Hours of S Gold, # 2 Exhibit Hours of J Howanitz)(Howanitz, Jay) (Entered: 08/12/2011)
81 MOTION for Hearing re 76 Response in opposition to motion, 80 Reply to response to motion, 74 MOTION for attorney fees and litigation expenses (Defendants' Request for Oral Argument upon Plaintiff's Motion for Attorney's Fees and Litigation Costs and Defendants' Response in Opposition), MOTION to extend time to request oral argument by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D.. (Whitney, Enoch) (Entered: 08/19/2011)
Mail returned as Undeliverable re: 79 Order on motion for leave to file. Mail not resent to John L. Wodatch, phoned office informed attorney has retired. (MHH) (Entered: 08/23/2011)
82 RESPONSE in opposition to Defendant filed by Michele Haddad. (Howanitz, Jay) (Entered: 08/26/2011)
83 Unopposed MOTION for leave to file a reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Request for Oral Argument by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D.. (Whitney, Enoch) (Entered: 08/26/2011)
84 ORDER granting 83 Motion for leave to file reply. Reply may not exceed five pages, conforming to requirements of Local Rule 1.05(a). Defendant's reply due 9/6/11. Plaintiff's sur−reply, if desired, due 9/13/11. Signed by Magistrate Judge Thomas E. Morris on 8/29/2011. (NTM) (Entered: 08/29/2011)
85 REPLY to response to motion re 83 Unopposed MOTION for leave to file a reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Request for Oral Argument (Defendants' Reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Request for Oral Argument) filed by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D.. (Whitney, Enoch) (Entered: 09/02/2011)
86 REPLY to response to motion Plaintiff's Sur−Reply Regarding Defendants' Request for Oral Argument filed by Michele Haddad. (Howanitz, Jay) (Entered: 09/08/2011)
87 ORDER granting 81 Motion for Hearing; granting 81 Motion to extend time to request oral argument. Oral argument set for 10/3/11 at 2:00 p.m. in Courtroom 5B. Signed by Magistrate Judge Thomas E. Morris on 9/14/2011. (NTM) (Entered: 09/14/2011)

Case: 3:10-cv-414 As of: 10/12/2012 01:57 AM EDT 9 of 10

09/19/2011 09/20/2011 09/23/2011 10/03/2011 10/10/2011
10/20/2011 11/01/2011 11/02/2011 11/03/2011 11/04/2011
01/12/2012
01/28/2012

Mail returned as Undeliverable − marked Moved Left No Address, Unable to forward re: 79 Order on motion for leave to file. Mail not resent to Philip L. Breen. (MHH) (Entered: 09/19/2011)
88 NOTICE of supplemental authority by Michele Haddad (Attachments: # 1 Exhibit)(Howanitz, Jay) (Entered: 09/20/2011)
89 NOTICE of supplemental authority re 76 Response in opposition to motion for attorneys' fees and litigation expenses, by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit A,, Dionne v. Floormasters Enterprises, Inc., 2011 WL 3189770 (C.A.11 (Fla.) July 28, 2011))(Whitney, Enoch) (Entered: 09/23/2011)
90 Minute Entry. Proceedings held before Magistrate Judge Thomas E. Morris: Motion Hearing held on 10/3/2011 re 74 MOTION for attorney fees and litigation expenses filed by Michele Haddad. (DIGITAL) Court Reporter: Shannon Bishop, Official Court Reporter (CJH) (Entered: 10/03/2011)
91 NOTICE of supplemental authority re 76 Response in opposition to motion for attorneys' fees and litigation expenses, by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit A, Long v. Morton Plant Hospital Association, Inc., 265 Fed. Appx. 798, 2008 WL 383808 (C.A. 11 (Fla.) 2008), # 2 Exhibit B, Notice of Settlement filed in Long v. Morton Plant Hospital Association, Inc., Case No. 05−0613−CIV−JSM−TBM)(Whitney, Enoch) (Entered: 10/10/2011)
92 REPORT AND RECOMMENDATION re 74 MOTION for attorney fees and litigation expenses filed by Michele Haddad. Signed by Magistrate Judge Thomas E. Morris on 10/20/2011. (NTM) (Entered: 10/20/2011)
93 OBJECTION re 92 REPORT AND RECOMMENDATION re 74 MOTION for attorney fees and litigation expenses filed by Michele Haddad. (DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION REGARDING RESOUTION OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND LITIGATION EXPENSES). (Whitney, Enoch) (Entered: 11/01/2011)
94 REQUEST for oral argument re 93 Objection (DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION REGARDING RESOLUTION OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND LITIGATION EXPENSES), by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D.. (Whitney, Enoch) (Entered: 11/02/2011)
95 RESPONSE re 93 Objection filed by Michele Haddad. (Howanitz, Jay) (Entered: 11/03/2011)
96 NOTICE of supplemental authority re 93 Objection (DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION REGARDING RESOUTION OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND LITIGATION EXPENSES), by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit A, Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 573−74 (1992),)(Whitney, Enoch) (Entered: 11/04/2011)
97 NOTICE of supplemental authority re 93 Objection (DEFENDANTS' OBJECTIONS TO REPORT AND RECOMMENDATION REGARDING RESOUTION OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND LITIGATION EXPENSES), by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D. (Attachments: # 1 Exhibit "A", Higher Taste v. City of Tacoma, Case No. C10−5252BHS, 2011 WL 5864665, (U. S. District Court, W.D. Wash., Nov. 22, 2011))(Whitney, Enoch) (Entered: 01/12/2012)
98 NOTICE to the Courts to take judicial notice regarding 92 REPORT AND RECOMMENDATION re 74 MOTION for attorney fees and litigation expenses filed by Michele Haddad. by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D.. (Attachments: # 1 Exhibit "A", on−line docket for Petition for Writ of Certiorari in the United States Supreme Court in the case of David J. King, In His Official Capacity as Chair of the Kansas Commission on Judicial Qualifications, et al., Petitioners, v. Kansas Judicial Watch, et al., No. 11−829, filed December 28, 2011.)(Whitney, Enoch) (Entered: 01/28/2012)

Case: 3:10-cv-414 As of: 10/12/2012 01:57 AM EDT 10 of 10

01/31/2012
02/02/2012 02/03/2012
03/26/2012 03/28/2012 04/05/2012

99 SUPPLEMENT re 98 Notice to the Courts to take judicial notice by Elizabeth Dudek, Harry Frank Farmer, Jr., M.D.. (Attachments: # 1 Exhibit "A", Petition for Writ of Certiorari in the United States Supreme Court in the case of David J. King, In His Official Capacity as Chair of the Kansas Commission on Judicial Qualifications, et al., Petitioners, v. Kansas Judicial Watch, et al., No. 11−829, filed December 28, 2011)(Whitney, Enoch) (Entered: 01/31/2012)
100 ORDER adopting, as modified by the Order, 92 Report and Recommendation; granting, in part, 74 Plaintiff's Motion for Attorneys' Fees and Litigation Expenses. The Clerk of the Court is directed to enter judgment in accordance with this Order and close the file. Signed by Judge Marcia Morales Howard on 2/2/2012. (JW) (Entered: 02/02/2012)
101 JUDGMENT that pursuant to this Court's Order, entered February 2, 2012, Judgment is entered in favor of Plaintiff Michele Haddad, and against Defendant Elizabeth Dudek, in her official capacity as Secretary, Florida Agency for Health Care Administration, Defendant Dr. Harry Frank Farmer, in his official capacity as Surgeon General, Florida Department of Health, in the amount of $75, 641.16, for attorneys' fees and costs. Signed by Deputy Clerk on 2/3/2012. (ZSF) (Entered: 02/03/2012)
Mail returned as damaged by the United States Postal Service re: 101 Judgment. Mail resent to John L. Wodatch. (ZSF) (Entered: 03/26/2012)
Mail returned damaged by U.S. Postal Service re: 100 Order Adopting Report and Recommendations. Mail resent to Philip L. Breen. (ZSF) (Entered: 03/28/2012)
Mail returned as damaged by U.S. Postal Service re: 101 Judgment. Mail resent to Philip L. Breen. (ZSF) (Entered: 04/05/2012)


[CONTENT] 2007 ||| daily ||| Florida Medicaid's | Traumatic Brain Injury/Spinal Cord | TBI/SC) Waiver Program ||| early 2010 | Plaintiff ||| Waiver | 60 days ||| May 13, 2010 | the U.S. District Court | the Middle District | Florida | Americans | the Rehabilitation Act | 1973 |||  ||| The U.S. Department of Justice | a Statement of Interest | Plaintiff ||| June 15, 2010 | Plaintiff | Plaintiff | TBI | SC ||| the District Court | Marcia Morales Howard | June 23, 2010 ||| July 9, 2010 ||| March 2011 | Defendants | Plaintiff | ADA ||| Plaintiff | several months ||| Defendants ||| April 19, 2011 [SUMMARY] The Plaintiff in this case has been paralyzed from the chest down ever since an accident in 2007.  She has limited mobility and manual dexterity, and thus requires some assistance in caring for herself carrying out daily activities. After her accident, she placed herself on the waitlist for Florida Medicaid's Traumatic Brain Injury/Spinal Cord (TBI/SC) Waiver Program.  

In early 2010, Plaintiff's husband and primary caregiver left her home following a divorce. She then contacted the state in the hope of receiving Waiver services but was told she would need to spend 60 days in an institution to then be eligible for community-based services to meet her needs. She then filed this lawsuit on May 13, 2010 in the U.S. District Court for the Middle District of Florida challenging this condition for receipt of services as a violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. She filed a concurrent complaint and motion for preliminary injunction, asking the court to order the state to immediately provide services that will allow her to remain in the community.  The U.S. Department of Justice filed a Statement of Interest supporting the Plaintiff's motion for preliminary injunction. 

At a June 15, 2010 hearing, the Plaintiff's counsel informed the court that the Plaintiff had been hospitalized due to an unrelated issue, but that she would not be able to return home without the services that the TBI/SC waiver provides.  After additional briefing, the District Court (Judge Marcia Morales Howard) granted the motion for preliminary injunction and ordered that the Plaintiff begin to receive services on June 23, 2010 so that she could be discharged from the hospital.  The court issued its full analysis in granting the preliminary injunction on July 9, 2010.  

In March 2011, the court denied the Defendants' motion to dismiss, finding that the Plaintiff had stated a claim under the ADA. At this time, the Plaintiff had been enrolled in the waiver program for several months. Thus, the parties stipulated to settle the claims with no further obligations for the Defendants. After some dispute over attorney's fees, the parties agreed to dismiss the matter on April 19, 2011.  