IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION

CASE NO. 12-60460-CIV-ROSENBAUM

T.H., by and through her next friend, Paolo Annino; L.J., by and through his next friend, Paolo Annino; A.G., by and through his next friend Gamal Gasser; A.C., by and through his next friend Zurale Cali; A.R., by and through her next friend, Susan Root; C.V., by and through his next friends, Michael and Johnette Wahlquist; M.D., by and through her next friend, Pamela DeCambra; C.M., by and through his next friend, Norine Mitchell; B.M., by and through his next friend, Kayla Moore; and T.F., by and through his next friend, Michael and Liz Fauerbach; each individually, and on behalf of all other children similarly situated in the State of Florida,

Plaintiffs,

v.

SECOND AMENDED
CONSOLIDATED COMPLAINT -
CLASS ACTION FOR
DECLARATORY AND INJUNCTIVE
RELIEF

ELIZABETH DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration; HARRY FRANK FARMER, JR., in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health; KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Department of Health and Director of Children's Medical Services; and eQHEALTH SOLUTIONS, INC., a Louisiana non-profit corporation,

Defendants.

__________________________________________/

Plaintiffs, T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., B.M., and T.F. by and through their respective next friends, on behalf of themselves and all other children similarly situated in the State of Florida, sue the Defendants, ELIZABETH DUDEK ("DUDEK"), in her official capacity as Secretary for the Agency for Health Care Administration ("AHCA"); HARRY FRANK FARMER, JR. ("FARMER"), in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health ("FDOH"); KRISTINA WIGGINS ("WIGGINS"), in her official capacity as Deputy Secretary of the FDOH and Director of Children's Medical Services ("CMS"); and eQHEALTH SOLUTIONS, INC. ("eQHealth"), and allege as follows:

PRELIMINARY STATEMENT

1.

T.H., L.J., A.G., A.C., A.R., C.V., M.D., C.M., B.M., T.F., and Plaintiff Class members are medically fragile children or children who need skilled care services. Many are on tracheotomies, gastrostomy tubes and ventilators.

2.

A Medically Fragile Child is one who is

medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependant, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.

Rule 59G-1.010(165), Fla. Admin. Code.

3.

A Child who needs Skilled Care Services is one who is

classified as requiring skilled nursing or skilled rehabilitative services in the community or in a nursing facility, [who is] 1. Ordered by and remain under the supervision of a physician; 2. Sufficiently medically complex to require supervision, assessment, planning, or intervention by a registered nurse; 3. Required to be performed by, or under the direct supervision of, a registered nurse or other health care professionals for safe and effective performance; 4. Required on a daily basis; 5. Reasonable and necessary to the treatment of a specific documented illness or injury; and 6. Consistent with the nature and severity of the individual's condition or the disease state or stage.

Rule 56G-4.290(3), Fla. Admin. Code.

Institutionalized Plaintiffs and Sub-Class

4.

T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs are children who have been placed in nursing facilities.

5.

As of the date of the filing of this Complaint, there are approximately 250 children Medicaid recipients in Florida nursing facilities.

6.

T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs want to return home and to their communities.

7.

T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs are unnecessarily institutionalized and segregated in nursing facilities because of the Defendants' decision to exclude them from any meaningful access to Florida's system of community-based services and supports that they need to be able to reside in the community.

8.

Due to the Defendants' failure to provide medically necessary services in the community, T.H., L.J. and A.G., and members of the sub-class of institutionalized Plaintiffs are forced to be unnecessarily institutionalized in nursing facilities in order to receive medically necessary services.

9.

The Defendants have failed and continue to fail to provide specialized services to T.H., L.J., A.G., and members of the sub-class of institutionalized Plaintiffs, to which they are entitled to receive in nursing facilities.

At-Risk Plaintiffs and Sub-Class

10.

A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class live at home. They are members of families and communities.

11.

As of the date of this Complaint, there are approximately 3,300 child Medicaid recipients of private duty nursing at risk of being placed in Florida nursing homes.

12.

A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class are being taken care of by loving and caring parents.

13.

A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class need ongoing medical help, including private duty nursing services, to survive at home and to participate in a family and community.

14.

Due to the Defendants' failure to provide those medically necessary services, A.C., A.R., C.V., M.D., C.M., B.M., T.F., and members of the at-risk sub-class are at risk of unnecessary institutionalization in nursing facilities.

All Plaintiffs and Plaintiff Class Members

15.

Plaintiffs and Plaintiff Class members have been prescribed medical services by their primary care physicians, including private duty nursing care services, funded by Medicaid and administered by the Defendants, that would allow them to live and continue to live at home and in their communities.

16.

Private duty nursing services are "medically-necessary skilled nursing services that may be provided in a child's home or other authorized settings to support the care required by the child's complex medical condition." Agency for Health Care Administration, Home Health Services Coverage and Limitations Handbook, December 2011, at 2-17, incorporated by reference in Rule 59G-4.130, Fla. Admin. Code. (Hereinafter Handbook).

17.

Plaintiffs and Plaintiff Class members are qualified for the Defendants' system of community-based services and supports for individuals with mental retardation and mental illnesses. Each of the Plaintiffs and Plaintiff Class members is able to, and want to reside in an integrated, community-based placement, such as a family home, or a medical foster home.

18.

The Defendants are denying Plaintiffs and Plaintiff Class members the Medicaid services, including private duty nursing services, that they need to live and continue to live at home and in their communities

19.

Defendants have adopted uniform policies, practices, and regulations to reduce private duty nursing services.

20.

The Defendants have failed and continue to fail to provide medically necessary services in home and community settings to Medicaid recipient children in Florida.

21.

The Plaintiffs and Plaintiff Class members seek a declaration that the Defendants' policies, regulations, actions and omissions are unnecessarily institutionalizing Plaintiffs and Plaintiff Class Members or placing Plaintiffs at risk of being placed in segregated facilities, in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 ("ADA"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794

("Section 504"); Medicaid Act, 42 U.S.C. §§ 1396-1396v ("Medicaid"); The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r ("NHRA"); Early and Periodic Screening, Diagnostic, and Treatment Services, 42 U.S.C. § 1396d(r) ("EPSDT Provisions"); and 42 U.S.C. § 1983.

22.

The Plaintiffs and Plaintiff Class members seek for the court to enter a permanent injunction requiring the Defendants to stop segregating medically fragile and medically complex children in nursing facilities and to provide these children medically necessary Medicaid services in the most integrated setting appropriate in the community and to provide for their medically necessary services and to provide such services in the most integrated setting appropriate.

JURISDICTION AND VENUE

23.

The Plaintiffs' and Plaintiff Class members' claims arise under the laws of the United States. This court has jurisdiction over the claims pursuant to 28 U.S.C. §§ 1331 and 1343(a).

24.

Venue is proper in the Southern District of Florida pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred in the district.

PARTIES

Named Plaintiffs -- Institutionalized Sub-Class

25.

T.H. is a medically fragile 16-year-old child who has medical complications resulting from shaken baby syndrome. T.H. is institutionalized at Kidz Corner, a 72 bed children's wing of a 152 bed geriatric nursing facility called Plantation Nursing and Rehab Center in Plantation, Florida ("Kidz Corner"). T.H. is represented by her next friend, Paolo Annino, an Attorney ad litem appointed by the Seventeenth Judicial Circuit Court of the State of Florida, who resides in Tallahassee, Florida.

26.

L.J. is a medically fragile 15-year-old child primarily diagnosed with infantile cerebral palsy and anoxic brain damage. L.J. is institutionalized at Children's Center a 34 bed children's wing of Sabal Palms Health Care Center, a 233 bed geriatric nursing facility in Largo, Florida ("Sabal Palms"). L.J. is represented by his next friend, Paolo Annino, an Attorney ad litem appointed by the Tenth Judicial Circuit Court of the State of Florida, who resides in Tallahassee, Florida.

27.

A.G. is a 17-year-old child who requires Skilled Care Services as a result of a motor vehicle accident and a resulting traumatic brain injury when he was 15. He currently is able to speak but is dependent on a g-tube to meet his nutritional needs. Notwithstanding his abilities and improvement of his condition since recovering from his coma, A.G. is institutionalized at Lakeshore Villas Nursing Home in Tampa, Florida ("Lakeshore"). A.G. is represented by his next friend and father, Gamal Gasser, who resides in Tampa, Florida.

Named Plaintiffs -- At-Risk Sub-Class

28.

Plaintiff A.C. is a medically fragile five-year-old child who has medical complications resulting from a near drowning accident. A.C. lives with his next friend and mother, Zurale Cali, in Spring Hill, Florida.

29.

A.R. is a medically fragile 10-year-old child Medicaid recipient of private duty nursing services diagnosed with traumatic brain injury. A.R. lives with her next friend and mother, Susan Root, and her brother and sister, in Edgewater, Florida.

30.

C.V. is a medically fragile eight-year-old child Medicaid recipient of private duty nursing services diagnosed with Hurler Syndrome. C.V. lives with his next friends and legal guardians, Michael and Johnette Wahlquist, and their children, in Bristol, Florida.

31.

M.D. is a medically fragile 14-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy and Strider Syndrome. M.D. lives with her next friend and mother, Pamela DeCambra, and her brother, in Tallahassee, Florida.

32.

C.M. is a medically fragile four-year-old child Medicaid recipient of private duty nursing services diagnosed with chromosome deletion syndrome, chronic respiratory failure and severe cerebral palsy. C.M. lives with his next friend and mother, Norine Mitchell, and his father in Tallahassee, Florida.

33.

B.M. is a medically fragile five-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy and developmental delay. B.M. lives with his next friend and mother, Kayla Moore, and his father in Fountain, Florida.

34.

T.F. is a medically fragile 18-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy, mental retardation, and chronic lung disease. T.F. lives with his next friends and legal guardians, Michael and Liz Fauerbach, and his sister, in Miami, Florida.

Defendants

35.

DUDEK is the Secretary of AHCA, which is the single state agency responsible for administering the Medicaid program under Title XIX of the Social Security Act and for ensuring that the Medicaid program complies with federal law. See 42 U.S.C. § 1396a(a)(5); §§ 409.012(2), (14) & (15), Fla. Stat.; and § 409.902, Fla. Stat. As such, she has a duty to ensure that AHCA programs are administered in accordance with the law. DUDEK is sued in her official capacity only, as Secretary of AHCA.

36.

FARMER is the State Surgeon General and head of FDOH, which is the primary state agency responsible for administering the Children's Medical Services ("CMS") program for children who require long term care and which administers the Children's Multidisciplinary Assessment Team ("CMAT") program. FARMER has the duty to ensure that FDOH programs are administered in accordance with the law. FARMER is sued in his official capacity.

37.

WIGGINS is the Deputy Secretary of the Florida Department of Health and the Director of CMS. CMS, a division of the Florida Department of Health, is the lead agency of CMAT. CMAT is an inter-agency coordinated effort comprised of representatives from AHCA, the Department of Children and Families, the Agency for Persons with Disabilities and CMS. CMAT, under the leadership of CMS, makes recommendations for medically necessary services for children from birth to twenty-one who are medically fragile (65C-30.001, FAC). WIGGINS, as director of CMS, the lead agency of CMAT, has the duty to respond to the needs of each child and family and to guarantee the efficiency and effectiveness of support and services. WIGGINS is sued in her official capacity.

38.

eQHealth is a Louisiana non-profit corporation with its principal place of business in Baton Rouge, Louisiana and is engaged in business in, and serves as an instrumentality of, the State of Florida. eQHealth contracts with AHCA to provide services for Florida's Comprehensive Medicaid Utilization Management Program. (See Exhibit A, which is incorporated by reference into this Complaint).

STATUTORY AND REGULATORY BACKGROUND AND FRAMEWORK
The Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165

39.

In 1990, Congress enacted the Americans with Disabilities Act (ADA), which is the most comprehensive legislation geared toward the prohibition of discrimination based on disability. 42 U.S.C. §§ 12101-12213 (2000). When enacting the ADA, Congress noted "the nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals." Id. at 12101(a)(8).

40.

In signing the ADA into law, President George H.W. Bush stated: "The Americans with Disabilities Act presents us all with an historic opportunity. It signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life." Statement on Signing the Americans with Disabilities Act of 1990, 2 Pub. Papers 1070, 1071 (July 26, 1990).

41.

Congress found the following: (1) 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; (2) discrimination against individuals with disabilities persists in such critical areas as housing, public accommodations, education and institutionalization; (3) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusions, overprotective rules and policies, and segregation. See generally 42 U.S.C. §§ 12131-12165 (2000).

42.

The ADA prohibits discrimination against individuals with disabilities by public entities and by instrumentalities of states:

[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.

43.

Segregation of children with disabilities from their homes is discrimination under the ADA. See 42 U.S.C. § 12101(a)(5); Olmstead v. L.C., 572 U.S. 581 (1999).

44.

As public entities and instrumentalities of a state, Defendants are required to administer their services, programs and activities in "the most integrated setting appropriate" to the needs of Plaintiffs and Plaintiff Class members. See 28 C.F.R. § 35.130(d).

45.

As public entities and instrumentalities of the state, Defendants are prohibited from providing "a qualified individual with a disability with an aide, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided others." 28 C.F.R. 35.130(b)(1)(iii).

46.

As public entities and instrumentalities of the state, Defendants are prohibited from utilizing "criteria or methods of administration" that have the effect of subjecting Plaintiffs and Plaintiff Class members to discrimination on the basis of disability; or "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).

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794

47.

Section 504 provides:

No otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, be excluded from the 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).

48.

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 accomplishment of the recipients' program with respect to handicapped persons.

45 C.F.R. § 84.4(b)(4).

49.

The Civil Rights Restoration Act of 1987 amends Section 504 to provide that if any part of a program or activity receives federal financial assistance, all of the operations of the program are subject to Section 504. See 29 U.S.C. § 794(b)

50.

Disability discrimination claims brought under Section 504 are evaluated similarly to ADA claims. See Allmond v. Akal Sec., Inc., 558 F. 3d 1312, 1316 n.3 (11th Cir. 2009).

The United States Medicaid Act, 42 U.S.C. §§1396-1396v

51.

The Medicaid program is a cooperative federal/state program that provides health care services to specified categories of individuals meeting income and other criteria. See 42 U.S.C. §§ 1396-1396v.

52.

Florida participates in the Medicaid program. See § 409.902, Fla. Stat.

Medicaid's Early and Periodic Screening,
Diagnosis and Treatment ("EPSDT") Program

53.

Federal law lists 28 health care services which a state may provide through its Medicaid program. See 42 U.S.C. § 1396d(a)(1) - (28).

54.

Some of these services are mandatory, meaning that if a state participates in Medicaid it must provide those services (i.e., inpatient hospital services; outpatient hospital services; physician visits; lab & x-ray services; nursing home services; early and periodic screening, diagnosis, and treatment services for children; and family planning services). 42 U.S.C. § 1396a(a)(10)(A) (requiring states to provide the services listed at § 1396d(a)(1)-(5), (17) & (21)).

55.

Most of the services are optional (i.e., prescription drugs, hospice, dental services, vision/optometry services, hearing services, chiropractic services, and podiatric services).

56.

The package of mandatory and optional health care services that are provided by a state are known as the "State Plan."

57.

As part of its Early and Periodic Screening, Diagnosis and Treatment ("EPSDT") Program, a state must provide all 28 health care services listed at 42 U.S.C. § 1396d(a)(1) - (28) to eligible children, which include private duty nursing services.

58.

EPSDT requires screening, vision, dental, hearing and treatment services, and requires that such services include "such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).

59.

AHCA is required to

pay for early and periodic screening and diagnosis of a recipient under age 21 to ascertain physical and mental problems and conditions and all services determined by the agency to be medically necessary for the treatment, correction, or amelioration of these problems and conditions, including personal care, private duty nursing, durable medical equipment, physical therapy, occupational therapy, speech therapy, respiratory therapy, and immunizations.

§ 409.905(2), Fla. Stat.

60.

AHCA defines Medically necessary services as those that must:

1.

Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;

2.

Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs;

3.

Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;

4.

Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and

5.

Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.

Rule 59G-1.010(166)

61.

For inpatient hospital services to be deemed medically necessary, they cannot be services which, "consistent with the provisions of appropriate medical care, [could] be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type." Rule 59G-1.010(166)(b), Fla. Admin. Code.

62.

AHCA's policy regarding coverage of medically necessary services is found at Rule 59G-4.130 of the Florida Administrative Code, which incorporates by reference the Florida Medicaid Home Health Services Coverage and Limitations Handbook, December 2011 ("Handbook").

63.

The Handbook defines private duty nursing services as "medically-necessary skilled nursing services that may be provided in a child's home or other authorized settings to support the care required by the child's complex medical conditions."

64.

AHCA may authorize private duty nursing services where they are ordered by the child's attending physician, are documented as medically necessary, are provided by a registered

or licensed practical nurse, are consistent with the physicia[n] approved plan of care, and have been authorized before the services are provided.

65.

AHCA does not authorize private duty nursing Services "solely for the convenience of the child, the parents or the caregiver." (Handbook, at 2-18).

66.

AHCA will decrease private duty nursing services "over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or as the child's condition improves." (Handbook, at 2-21).

67.

The Handbook defines personal care services as "medically necessary assistance with activities of daily living that support a recipient's medical care needs." (Handbook, at 2-23). Personal care services may be provided to a child with complex medical problems who requires more individual and continuous care than can be provided through a home health aide visit. The services include bathing and grooming, toileting and elimination, oral hygiene, range of motion and positioning, and oral feedings and fluid intake.

68.

The patient's physician has a role in determining what treatment is medically necessary, see Moore ex rel. Moore v. Medows, 324 Fed. Appx. 773, 774 (11th Cir. 2009), and for developing the plan of care for the Medicaid recipient.

69.

Pursuant to section 409.905(4)(b), Florida Statutes, Florida created a "comprehensive utilization management program" to review and assess the need for Medicaid recipients' private duty nursing services.

70.

Prior to 2011, Keystone Peer Review Organization ("KePRO") served as the State's "comprehensive utilization management program" pursuant to a contract with AHCA.

71.

On February 24, 2011, eQHealth entered a Contract with AHCA to serve as the State's "comprehensive utilization management program"

72.

As Florida's "comprehensive utilization management program," eQHealth makes medical necessity determinations on behalf of AHCA and acts as a witness for AHCA in all fair hearing proceedings resulting from decisions and actions made by eQHealth.

73.

Pursuant to its contract with AHCA, eQHealth agreed to comply with Federal civil rights laws, including the ADA and the Rehabilitation Act. (Exhibit A, Page 5).

74.

Pursuant to the contract, eQHealth is required to apply AHCA criteria, guidelines, policies, procedures and processes in making medical necessity determinations. (Exhibit A, Attachment I, Page 12-18).

75.

Pursuant to the contract, eQHealth must have prior approval by AHCA for the clinical criteria it utilizes in reviewing prior authorization requests. (Exhibit A, Attachment I, Page 19).

76.

Pursuant to the contract, eQHealth is to comply with AHCA staffing requirements. (Exhibit A, Attachment I, Page 7-12).

77.

Pursuant to the contract, eQHealth received and receives federal financial assistance in excess of $100,000. (Exhibit A, Page 1 at I.B.1.-2).

78.

eQHealth has received federal financial assistance from the Federal Centers for Medicare & Medicaid Services.

79.

eQHealth has received federal financial assistance from the Federal Department of Health and Human Services.

80.

Pursuant to the contract, eQHealth received and receives funding in an amount not to exceed $50,073,958 from AHCA. (Exhibit A, Page 10 at II.A.).

81.

eQHealth is required to provide scheduled and periodic reporting on its services to AHCA.

82.

eQHealth's services under the contract are services which are traditionally performed by the state.

83.

eQHealth's services under the contract are performed as a state actor.

84.

Each Medicaid recipient is provided services for a specific certification period.

85.

A certification period is the period covered by the recipient's plan of care or the time period for which services are provided. Services can be approved for up to 180 days (6 months). Thus, the review process takes place every six months.

86.

The review process begins when a home health agency (the provider of the medical services), submits a request for services, such as private duty nursing services with a skilled nurse, home health aide services, personal care assistant services, or home health visit services. When a request is submitted, an eQHealth nurse reviewer determines if the information submitted is sufficient to approve the request based on the medical necessity guidelines, the Handbook, and other relevant statutes and regulations.

87.

Nurse reviewers are not permitted to deny services; they are only permitted to approve services.

88.

If the information that is submitted is insufficient for a nurse reviewer to make an approval, the review then goes to a physician reviewer. The physician reviewer reviews the information and makes a judgment based on the information provided and based on the applicable rules and regulations. Once that decision is rendered, it goes to the family and the provider who can then accept the decision or request a reconsideration within ten days from the denial of services.

89.

If a reconsideration is requested, the provider then has an opportunity to provide additional information or clarification. The reconsideration then goes through the same process and is again reviewed by a nurse reviewer and if not approved by the nurse reviewer, to a second physician reviewer who is different from the original physician reviewer. The second physician reviewer renders a decision and can either uphold the denial or partial denial, approve the request as originally submitted, or modify the request and approve or deny something different.

Medicaid's Reasonable Promptness Requirement

90.

Federal Medicaid law provides that individuals eligible to receive medical assistance under the program shall receive it with "reasonable promptness." 42 U.S.C. 1396a(a)(8).

Florida's Nursing Facilities

91.

A nursing facility is an institution that primarily provides:

a.

Skilled nursing care;

b.

Rehabilitation services for those who are sick, injured, or disabled; and

c.

Health related care and services to individuals who, because of their mental or physical condition, require care and services that can only be provided in an institutional setting.

See 42 U.S.C. § 1396r(a)(1)(A-C).

92.

Nursing facility services are

services which are . . . required to be given an individual who needs . . . on a daily basis nursing care (provided by or requiring the supervision of nursing personnel) or other rehabilitative services which as a practical matter can only be provided in a nursing facility on an inpatient basis.

42 U.S.C. § 1396r(a)

The Nursing Home Reform Amendments to the Medicaid Act

93.

The Nursing Home Reform Amendments of 1987 to the Medicaid Act, 42 U.S.C. § 1396r(e) ("NHRA"), are part of a comprehensive remedial statute designed to address the widespread problem of warehousing people with developmental disabilities in the nation's nursing facilities. Congress enacted the Pre-Admission Screening and Resident Review ("PASRR") provisions of the NHRA to prevent and remedy the unnecessary admission and confinement of people with psychiatric and developmental disabilities in nursing facilities. See 42 U.S.C. § 1396r(e)(7). The regulations implementing the PASRR requirements are found at 42 C.F.R. §§ 483.100 to 483.138.

94.

Under federal Medicaid law, the State is required to screen incoming nursing facility patients for mental illness and mental retardation, determine whether placement in a nursing facility is appropriate and if specialized services are needed, and to provide the specialized services that are necessary.

95.

The Children's Multidisciplinary Assessment Team (CMAT) is responsible for conducting PASRRs in Florida pursuant to 42 U.S.C. § 483.112.

96.

CMAT is an inter-agency coordinated effort comprised of representatives from AHCA, the Department of Children and Families, the Agency for Persons with Disabilities and CMS. CMAT, under the leadership of CMS, makes recommendations for medically necessary services for children from birth to twenty-one who are medically fragile (65C-30.001, FAC).

97.

There are two levels of PASRR screening and review -- Level I and Level II. See 42 C.F.R. § 483.128(a). The Level I screen determines whether individuals being considered for admission to a nursing facility have a mental illness or mental retardation. For those persons whose Level I screen indicates the existence of a mental illness or mental retardation, a Level II review is performed. This includes an assessment and evaluation to determine:

a.

If they do, in fact, have a mental illness or mental retardation;

b.

Whether they satisfy the nursing facility level of care criteria;

c.

Whether their needs could be met in the community through the provision of appropriate supports and services; and

d.

Whether they could benefit from the provision of specialized services designed to maximize their ability for self-determination and independence.

42 C.F.R. §§ 483.128(a) & 483.132.

98.

The Level II review must include a psychosocial evaluation that analyzes current living arrangements and medical and social supports. The review must also include a functional assessment of the individual's ability to engage in activities of daily living and must document the level of support that would be needed to assist the individual to perform these activities while living in the community. See C.F.R. § 483.134(b)(5). The assessment must determine whether it would be possible to meet the individual's needs through the provision of services and supports in the community as an alternative to nursing facility placement.

99.

If the Level II review determines that a resident does not require nursing facility services, but instead requires specialized services in a non-institutional setting, the Defendants must provide or arrange for the provision of such specialized services to the resident in an appropriate community setting. See 42 U.S.C. §§ 1396r(e)(7)(C)(i)&(ii); 42 C.F.R. §§ 483.118(c) & 483.120(b).

100.

Specialized services consist of an active and continuous treatment program that includes aggressive, consistent implementation of specialized and generic training, treatment, and health services to allow the individual to function as independently and with as much self-determination as possible, and services designed to prevent or decelerate regression and loss of abilities. See 42 C.F.R. §§ 483.120 & 483.440(a). If an individual requires specialized services, under federal law, the state must provide those services with the frequency, intensity, and duration that meet the federal standard for active treatment. See 42 C.F.R. §§ 483.440(a)-(f).

101.

The PASRR reviewers must explain to the individual involved and, where applicable, his or her legal representative the results of the Level II evaluation, including information regarding the individual's ability to reside in a less restrictive community placement, and must provide the individual and legal representative with a copy of the PASRR report. See 42 C.F.R. §§ 483.128(k) & 483.130(l)(3).

102.

If the Level II review determines that an individual admitted to a nursing facility needs specialized services, it must then be determined if the nursing facility can provide all needed specialized services and active treatment. If the review concludes that the facility

cannot, the individual cannot be admitted to that nursing facility. See 42 C.F.R. § 483.126.

103.

If the individual is admitted to a nursing facility, periodic reviews must be conducted whenever there is a change in the person's condition to determine whether the individual continues to need a nursing level of care and to require confinement in a nursing facility. Periodic Level II evaluations must also determine whether specialized services are necessary to provide habilitation and active treatment. See 42 U.S.C. §§ 1396r(b)(3)(F)(i) & 1396r(e)(7)(A)&(B); 42 C.F.R. §§ 483.128, 483.132, 483.134, & 483.136.

104.

The nursing facility may not admit individuals whose PASRR determined that the individual does not require nursing facility level services. See 42 C.F.R. § 483.118(a).

105.

If a resident of a nursing facility who has resided in the facility for at least 30 months is determined to require specialized services, but not to require nursing facility level services, the State must offer the resident the option of remaining in the nursing facility or receiving services from the State in an alternative appropriate setting. See 42 C.F.R. § 483.118(c)(1).

106.

If a resident of a nursing facility who has resided in the facility for less than 30 continuous months is determined to require specialized services, but does not require nursing facility level services, the State must arrange for the discharge of the resident and provide for and arrange specialized services for the mental illness or mental retardation. See 42 C.F.R. § 483.118(c)(2).

107.

For individuals with mental illness, if specialized services are required, they must be services which

combined with services provided by the [nursing facility], results in the continuous and aggressive implementation of an individualized plan of care that -- (i) Is developed and supervised by an interdisciplinary team, which includes a physician, qualified mental health professionals and, as appropriate, other professionals. (ii) Prescribes specific therapies and activities for the treatment of persons experiencing an acute episode of serious mental illness, which necessitates supervision by trained mental health personnel; and (iii) Is directed toward diagnosing and reducing the resident's behavioral symptoms that necessitated institutionalization, improving his or her level of independent functioning, and achieving a functioning level that permits reduction in the intensity of mental health services to below the level of specialized services at the earliest possible time.

42 C.F.R. § 483.120(a)(1).

108.

For individuals with mental retardation, if specialized services are required, they must be services which

Include[] aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward --

(i)

The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and

(ii)

The prevention or deceleration of regression or loss of current optimal functional status.

42 C.F.R. §483.440(a)(1).

109.

An individual with a mental illness or mental retardation may only be placed in a nursing facility

where the individual's needs are such that he or she meets the minimum standards for admission and the individual's needs for treatment do not exceed the level of services which can be delivered in the [nursing facility] to which the individual is admitted either through [nursing facility] services alone or, where necessary, through [nursing facility] services supplemented by specialized services provided by or arranged for by the State.

42 C.F.R. § 483.126.

110.

National experience demonstrates that where PASRR reviews are properly performed, approximately 80 percent of individuals with mental illness or mental retardation who are referred for or temporarily admitted to nursing facility placement are determined to be able to reside in the community with appropriate services and supports and should, therefore, be diverted to a more integrated community placement prior to or shortly after admission to the nursing facility. In Massachusetts, where the state was required by court order to conduct comprehensive PASRR reviews of all individuals with developmental disabilities residing in nursing facilities, more than 90 percent of those individuals were found to need specialized services.

FACTUAL ALLEGATIONS

Institutionalized Plaintiff

T.H.

111.

T.H. is a 16-year-old child who has medical complications resulting from shaken baby syndrome. T.H. is institutionalized at Kidz Corner, a 72 bed children's wing of a 152 bed geriatric nursing facility called Plantation Nursing and Rehab Center in Plantation, Florida ("Kidz Corner").

112.

T.H. has medical complications resulting from Post-traumatic brain injury due to shaken baby syndrome. She is a medically fragile child with diagnoses including extensive retinal and brain hemorrhage; blindness; spastic quadriparesis; severe psychomotor retardation; skull fracture; hypertension; reactive airway disease; apnea; seizure disorder; and developmental delay. T.H. is on a gastrostomy tube (g-tube) and a tracheotomy tube and is ventilator dependent. She is non-verbal and non-ambulatory.

113.

T.H. is a qualified person with a disability within the meaning of the ADA and Section 504.

114.

T.H. meets the criteria for mental retardation on a Level I PASRR screen.

115.

No Level II PASRR evaluation or review was ever performed.

116.

On February 25, 1996, T.H. was born.

117.

On November 16, 1996, at nine months old, T.H. suffered Shaken Baby syndrome, causing major brain damage.

118.

Subsequently, the Florida Department of Children and Families terminated T.H.'s parent's parental rights and T.H. became a foster child, a dependent of the State.

119.

On June 2, 1997, T.H. was placed in a Medical Foster Care home, pursuant to Florida Administrative Code Rule 65C-28.004(7)(f)3, where she resided with the same foster parents until 2006.

120.

On June 16, 2006, T.H. was hospitalized for the insertion of a tracheotomy tube and on July 25, 2006, T.H. was hospitalized again for the insertion of a ventilator.

121.

On August 1, 2006, T.H. was institutionalized at Kidz Korner, a 72 bed children's wing of a 152 bed nursing home facility, called Plantation Nursing and Rehab Center located in Plantation, Florida.

122.

On November 2, 2006, she was determined to be medically appropriate to continue in the Medical Foster Care program and her medical foster parents desired to have her return back home. Skilled nursing was provided upon T.H.'s return home to assist with her medical needs.

123.

Defendants failed to provide sufficient nursing services which directly resulted in T.H. being placed in a nursing facility.

124.

On March 23, 2007, T.H. was again institutionalized to Kidz Korner due to the lack of sufficient private duty nursing care and has been placed there ever since. T.H.'s medical foster parents were unable to care for T.H. at home because of the lack of nursing services available to them.

125.

T.H. lives in a hospital like room with another medically fragile child and no curtain or other barrier between them.

126.

Since institutionalized in March of 2007, T.H. has not been hospitalized nor had any major medical emergencies. She has been stable for the last five years. She is currently being weaned off her ventilator and is off of it for 8 hours a day.

127.

T.H. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting.

128.

T.H.'s former medical foster care parent would like to have T.H. back in her home.

129.

T.H. is segregated and institutionalized in a nursing facility because of Defendants' current policies and practices that fail to provide medically necessary services in the community and force her to be institutionalized in a nursing facility in Florida.

L.J.

130.

L.J. is a medically fragile 15-year-old child primarily diagnosed with infantile cerebral palsy and anoxic brain damage. L.J. is institutionalized at the Children's Center a 34 bed children's wing of Sabal Palms Health Care Center, a 233 bed geriatric nursing facility in Largo, Florida ("Sabal Palms").

131.

L.J. is a medically fragile child with primary diagnoses including infantile cerebral palsy and anoxic brain damage. His secondary diagnoses include severe spastic quadriplegia, seizure disorder, and developmental delay. L.J. is on a gastrostomy tube (g-tube), a tracheotomy tube, an apnea monitor and oxygen via mist collar. He is non-verbal and non-ambulatory.

132.

L.J. is a qualified person with a disability within the meaning of the ADA and Section 504.

133.

L.J. meets the criteria for mental retardation on a Level I PASRR screen.

134.

No Level II PASRR evaluation or review was ever performed.

135.

On December 3, 1996, L.J. was born.

136.

In March 1997, at three months old, L.J.'s mother and grandmother found him not breathing. He was air lifted to the hospital and it was determined that he had suffered septic shock.

137.

Subsequently, on April 30, 1997, the Florida Department of Children and Families removed L.J. from his mother's custody because she was not able to adequately care for the child due to his numerous medical problems.

138.

On May 9, 1997, L.J. was placed at Sabal Palms and has remained there ever since.

139.

On October 29, 1997, L.J.'s mother's and father's parental rights were terminated due to medical neglect and L.J. became a foster child, a dependent of the State.

140.

Defendants failed to provide sufficient nursing services which directly resulted in L.J. being placed in a nursing facility and continuing to remain in a nursing facility.

141.

L.J. lives in a hospital like room.

142.

L.J. has not been hospitalized nor had any major medical emergencies in the past two years.

143.

L.J. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting.

144.

L.J. is segregated and institutionalized in a nursing facility because of Defendants' current policies and practices that fail to provide medically necessary services in the community and force him to be institutionalized in a nursing facility in Florida.

A.G.

145.

A.G. is a 17-year-old child who requires Skilled Care Services as a result of a motor vehicle accident and a resulting traumatic brain injury when he was 15. He currently is able to speak but is dependent on a g-tube to meet his nutritional needs. Notwithstanding his abilities and his improved condition, he is institutionalized at Lakeshore Villas Nursing Home in Tampa, Florida ("Lakeshore").

146.

A.G.'s primary diagnoses is traumatic brain injury. His secondary diagnosis includes hypoxic ischemic encephalopathy. He requires skilled care services.

147.

A.G. was born in Cairo, Egypt on July 28, 1995. He moved to the United States in 2010 and began attending Freedom High School in Tampa, where he was an "A" student.

148.

In 2011, A.G. was in a car accident while riding in a vehicle with his older brother. He was in a coma at Tampa General Hospital for one and a half months after the car accident, and after waking was moved to Lakeshore.

149.

A.G. has a manual wheelchair but is unable to self-propel and requires an electric wheelchair, which has not been provided for him.

150.

A.G. requires all of his self-care and daily living needs to be met by his caregivers.

151.

Though A.G. speaks English, his primary language is Arabic, and there are no other Arabic speakers at Lakeshore.

152.

During the day, A.G. attends Gaither High School, but returns to Lakeshore in the afternoon.

153.

A.G. has not been hospitalized nor had any major medical emergencies since his transfer to Lakeshore.

154.

A.G. is a qualified person with a disability within the meaning of the ADA and Section 504.

155.

A.G. meets the criteria for mental retardation or mental illness on a Level I PASRR screen.

156.

No Level II PASRR evaluation or review was ever performed.

157.

Due to A.G.'s improving condition and reduction of funds paid to Lakeshore from Medicaid, Lakeshore is denying needed services, such as physical and speech therapies.

158.

A.G.'s primary language is Arabic, and contrary to Title VI of the Civil Rights Act of 1964, Lakeshore denied A.G. any language assistance with respect to its services, benefits, or encounters and as such, left A.G. further isolated and bereft of needed programs and services for any improvement.

159.

A.G. needs Medicaid services such as private duty nursing in order to be placed at home or in a community setting.

160.

A.G. is segregated and institutionalized in a nursing facility because of Defendants' current policies and practices that fail to provide medically necessary services in the community and force him to be institutionalized in a nursing facility in Florida.

Plaintiffs At Risk of Institutionalization

A.C.

161.

Plaintiff A.C. is a five-year-old child who has medical complications resulting from a near drowning accident. At the time of the filing of the original complaint, A.C. lived at Lakeshore Villas Nursing Home in Tampa, Florida ("Lakeshore"). He now lives with his parents in Spring Hill, Florida.

162.

Plaintiff A.C. nearly drowned as an infant and suffered significant hypoxic injury. A.C. now requires assistance with his daily life activities. He requires a ventilator and g-tube. He also has a permanent tracheotomy and is frequently subject to pneumonia. A.C. requires frequent assistance with positioning. A.C. requires at least 20 medications daily.

163.

A.C. is a qualified person with a disability within the meaning of the ADA and Section 504 of the Rehabilitation Act.

164.

A.C. meets the criteria for mental retardation on a Level I PASRR screen.

165.

Even though A.C. was determined to be mentally retarded, no Level II PASRR evaluation or review was ever performed.

166.

On September 14, 2011, a plan of care was made for A.C. which included daily physical therapy, including passive range of motion exercises and placement in a stander at least once a day for up to one hour. Lakeshore does not provide the physical therapy. As such, A.C.'s mother attempted to do physical therapy with her son each day at Lakeshore.

167.

A.C. requires speech therapy in order to improve spontaneous oral/facial movement, saliva management, and voicing for prefeeding purposes and quality of life. He was not provided speech therapy at Lakeshore.

168.

While A.C. was institutionalized, his mother drove one hour from her home to Lakeshore every day. On Mondays to Fridays, she arrived at or about 9:30 a.m., and she stayed with A.C. until at or about 2:30 p.m. On weekends, she stays with A.C. in the afternoon.

169.

A.C.'s mother wants to provide her son with a home a family life; to ensure that her son receives public educational benefits including a free and appropriate education, and related physical and occupational therapies; and to provide social events such as going to the park or with similarly aged peers who do not have disabilities.

170.

In May 2011, A.C.'s family bought a new house to accommodate A.C. and to bring him home. This house has a bedroom and bathroom for A.C.

171.

On August 5, 2011, A.C.'s doctor signed discharge orders for A.C. in which he stated: "To be discharged with Nursing Care: 24 hours per day; 7 days per week to be provided by Home Health Agency."

172.

A.C. was scheduled to be discharged on September 14, 2011; however, on September 6, 2011, A.C.'s mother learned that A.C. had been approved for only eight (8) hours of private duty nursing care. AHCA and eQHealth also granted eight (8) additional hours of private duty nursing per week for two weeks "for caregiver training."

173.

AHCA and eQHealth denied the requested hours even though it found that A.C. "has a complicated respiratory status and would benefit [sic] being at home with PDN to limit a possible exacerbation of his respiratory status."

174.

AHCA and eQHealth concluded that eight hours of nursing care was "reasonable . . . to allow the caregivers to sleep."

175.

As a basis for the denial, AHCA and eQHealth cited Fla. Admin. R. 59G-1.010(166), which defines "medical necessity" and states that services must be "furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider."

176.

A.C. requires more than eight (8) hours of private duty nursing each day. Without the provision of more private duty nursing hours, A.C. cannot receive appropriate care at home and his health and safety would be further compromised.

177.

A.C. appealed the denial of services. Since the filing of the original complaint and after negotiations with AHCA, A.C. received the requested and prescribed hours for this current six month recertification period.

178.

Without continued medically necessary services, A.C. will be forced back into institutionalization because his family will no longer be able to care for him at home.

179.

A.C. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants.

180.

The cost of institutionalization in a nursing facility is more than the cost of providing at-home care.

A.R.

181.

A.R. is a medically fragile 10-year-old child Medicaid recipient of private duty nursing services diagnosed with traumatic brain injury. A.R. lives with her mother in Edgewater, Florida.

182.

A.R. is diagnosed with traumatic brain injury.

183.

On January 24, 2010, at the age of 8 years old, A.R. was riding her scooter in front of her home and was hit by a vehicle. She was air lifted to Halifax Medical Center and it was found that she had severe brain trauma and that she was catastrophically injured.

184.

She also has hydrocephalus, increased fluid in the brain, and has a surgically implanted shunt in her brain. A.R.'s brain injury requires her to have a tracheotomy tube and a g-tube for feeding. She has severe seizures daily.

185.

A.R. cannot walk and is non-verbal. She uses a wheelchair for mobility.

186.

A.R. is a qualified person with a disability.

187.

A.R.'s single mother cannot work outside the home because she provides care to A.R., her nine-year-old son who has been diagnosed with post-traumatic stress disorder after witnessing A.R.'s accident, and her 17-year-old daughter. A.R.'s mother has anxiety attacks.

188.

Because of her health complications, A.R. has received Medicaid private duty nursing for approximately two years and is an ongoing Medicaid recipient of EPSDT Home Health Services.

189.

A.R.'s treating physician has prescribed the medically necessary services for A.R.

190.

A.R.'s condition has not improved and her need for services has remained the same.

191.

Since 2010, eQHealth and AHCA has denied A.R.'s prescribed and requested services at least four times. Every certification period, eQHealth and AHCA has reduced services to A.R.

192.

On August 25, 2011, A.R. received notice that eQHealth and AHCA was reducing A.R.'s prescribed nursing services from 12 hours day of private duty nursing and 12 hours a day of home health aide to just 10 hours of private duty nursing for six days and 14 hours for one day a week for the certification period of June 23, 2011 through December 19, 2011.

193.

eQHealth and AHCA's attempt to reduce A.R.'s services is not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and

AHCA's decision to reduce the services. This decision is not based on the individual need of A.R., is not justified by medical necessity, and does not reflect a professional judgment about A.R.'s condition. Rather, it is an administrative action made to save money.

194.

Without medically necessary services, A.R. will be institutionalized because her family will no longer be able to care for A.R. at home.

195.

A.R. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants.

196.

The cost of institutionalization in a nursing facility is more than the cost of providing at-home care.

C.V.

197.

C.V. is a medically fragile eight-year-old child Medicaid recipient of private duty nursing services diagnosed with Hurler Syndrome. C.V. lives with his legal guardians in Bristol, Florida.

198.

C.V. was a foster child, but has been living with the same family since March 2005; those parents are now his legal guardians.

199.

C.V.'s Hurler Syndrome causes a multitude of medical complications for him, most notably that he cannot breathe without a tracheotomy tube. His other conditions include esophageal reflux, intestinal infection due to clostridium difficile, enteritis due to adenovirus, acute myocardial infarction, asthma, acute respiratory failure, hemorrhage of the gastrointestinal tract, spinal kyphosis, other respiratory distress insufficiencies, moderate corneal clouding, and anomalies of the skull and face bones.

200.

C.V.'s tracheotomy tube must be cleaned every five minutes.

201.

C.V. cannot speak and requires constant supervision.

202.

C.V. is a qualified person with a disability.

203.

C.V.'s legal guardians both work full time jobs. Mr. Wahlquist owns and operates his business and is on call 24 hours a day, seven days a week, and works no less than 40 hours a week. In addition to caring for C.V., Ms. Wahlquist cares for her blind father and works at least 40 hours a week.

204.

Because of his health complications, C.V. has received Medicaid private duty nursing for approximately eight years and is an ongoing Medicaid recipient of EPSDT Home Health Services.

205.

C.V.'s physician has prescribed the medically necessary services for C.V.

206.

C.V.'s condition has not improved and his need for services has remained the same.

207.

Since June 2006, AHCA has denied C.V. prescribed private duty nursing ("PDN") care at least 13 times at certification reviews. Almost every request made to AHCA was originally denied and only after reconsideration or the fair hearing process, have the hours been approved.

208.

Since June 2006, for almost every certification period, eQHealth and AHCA has attempted to decrease services by increasing the amount of nursing hours denied. (e.g., for the certification period of March 31, 2008-September 26, 2008, eQHealth and AHCA denied 200 PDN hours; for the certification period of September 27, 2008-March 25, 2009, AHCA denied 696 PDN hours; for the certification period of March 26, 2009-September 9, 2009, AHCA denied 928 PDN hours).

209.

On September 16, 2011, C.V. received notice that eQHealth and AHCA were reducing the prescribed hours from 24 hours per day to 16 hours per weekday and eight hours for the whole weekend for the certification period of September 12, 2011 through March 9, 2012. This is a reduction of 8 hours of private duty nursing per weekday.

210.

eQHealth and AHCA's attempts to reduce C.V.'s services are not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA's decision to reduce the services. This decision is not based on the individual need of C.V., is not justified by medical necessity, and does not reflect a professional judgment about C.V.'s condition. Rather, it is an administrative action made to save money.

211.

Without medically necessary services, C.V. will be institutionalized because his family will no longer be able to care for C.V. at home.

212.

C.V. is at risk of institutionalization in a nursing facility based upon the current regulations, rules, policies, practices, acts, and omissions of the Defendants.

213.

The cost of institutionalization in a nursing facility is more than the cost of providing at-home care.

M.D.

214.

M.D. is a medically fragile 14-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy and Strider Syndrome. M.D. lives with her mother her brother in Tallahassee, Florida.

215.

M.D.'s Strider Syndrome causes a multitude of medical complications; most notably she has problems with breathing and has frequent seizures. Her other conditions include: esophageal spasms; inability to swallow, walk or talk; and a long history of frequent pneumonia. Because of her esophageal spasms, M.D. cannot swallow saliva and it accumulates in her throat. She must be bent over or moved to her side so the build-up can be removed. If she is not moved into the proper position, M.D. will suffocate. This experience usually sends her into a seizure and happens at least once per day. She cannot be left alone for any length of time.

216.

M.D. cannot speak and requires constant supervision.

217.

M.D. is a qualified person with a disability.

218.

M.D.'s mother is a single mother and works approximately 40-50 hours per week in a job which she has held for over 25 years.

219.

Because of her health complications, M.D. has received Medicaid private duty nursing for approximately 11 years and is an ongoing Medicaid recipient of EPSDT Home Health Services.

220.

M.D.'s physician has prescribed the medically necessary services for M.D.

221.

M.D.'s condition has not improved and her need for services has remained the same.

222.

Since 2008, eQHealth and AHCA has denied M.D. the prescribed private duty nursing hours on five occasions. Every request M.D. made to eQHealth and AHCA was originally denied and only after reconsideration or the fair hearing process, have the hours been approved or services maintained.

223.

On October 25, 2011, eQHealth and AHCA gave notice that they were reducing M.D.'s prescribed hours from 24 hours a day, seven days a week to 22 hours a day, seven days a week for the certification period of October 12, 2011 through April 11, 2012. eQHealth and AHCA's attempts to reduce M.D.'s services are not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA's decision to reduce the services. This decision is not based on the individual need of

M.D., is not justified by medical necessity, and does not reflect a professional judgment about M.D.'s condition. Rather, it is an administrative action made to save money.

224.

Without medically necessary services, M.D. will be institutionalized because her family will no longer be able to care for her at home. M.D. is at risk of institutionalization in a nursing facility based upon the current regulations, rules, policies, practices, acts, and omissions of the Defendants.

225.

The cost of institutionalization in a nursing facility is more than the cost of providing at-home care.

C.M.

226.

C.M. is a medically fragile four-year-old child Medicaid recipient of private duty nursing services diagnosed with chromosome deletion syndrome, chronic respiratory failure and severe cerebral palsy. C.M. lives with his mother and his father in Tallahassee, Florida.

227.

C.M.'s diagnoses cause a multitude of medical complications for him; most notably he requires constant use of a ventilator and oxygen concentrator. He also requires a tracheotomy tube and g-tube. His other conditions include epilepsy, dual sensory impairment, developmental delay, hypotonia, and hypothyroidism.

228.

C.M.'s severe respiratory problems require that his tracheotomy tube must be cleaned every four hours; however, constant supervision is needed as it disconnects frequently. C.M. cannot speak and is not ambulatory. C.M. is currently taking over 25 medications which need to be administered in various dosages every two hours.

229.

C.M. is a qualified person with a disability.

230.

C.M.'s father works a full-time job. C.M.'s mother is an educated professional and was recently hired as a first grade teacher.

231.

Because of his health complications, C.M. has received Medicaid private duty nursing for almost four years and is an ongoing Medicaid recipient of EPSDT Home Health Services.

232.

C.M.'s treating physician has prescribed the medically necessary services for C.M.

233.

C.M.'s condition has not improved and his need for services has remained the same.

234.

Since 2011, eQHealth and AHCA has denied C.M.'s requested and prescribed nursing hours at least once.

235.

On July 14, 2011, eQHealth and AHCA gave notice that they were reducing C.M.'s prescribed hours from 12 hours a day to eight hours a day, Tuesday through Sunday, and

12 hours on Monday for the certification period of July 1, 2011 through December 27, 2011.

236.

eQHealth and AHCA's attempts to reduce C.M.'s services are not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA's decision to reduce the services. This decision is not based on the individual need of C.M., is not justified by medical necessity, and does not reflect a professional judgment about C.M.'s condition. Rather, it is an administrative action made to save money.

237.

Without medically necessary services, C.M. will be institutionalized because his family will no longer be able to care for C.M. at home.

238.

C.M. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants.

239.

The cost of institutionalization in a nursing facility is more than the cost of providing at-home care.

B.M.

240.

B.M. is a medically fragile five-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy and developmental delay. B.M. lives with his mother and his father in Fountain, Florida.

241.

B.M.'s Cerebral Palsy causes a multitude of medical complications, most notably he is dependent on a tracheotomy. His other conditions include periods of apnea, deafness, tracheal stricture and immobility.

242.

B.M.'s tracheotomy tube must be suctioned out seven times a day and changed once a week. His apnea requires monitoring and supplemental oxygen.

243.

B.M. is a qualified person with a disability.

244.

B.M.'s father has a full-time job and is also on-call 24/7. B.M.'s mother has Lyme Disease, which prevents her from working; however, she provides B.M. with overnight care. The family's location is at least three hours away from the nearest hospital.

245.

Because of his health complications, B.M. has received Medicaid private duty nursing for approximately five years and is an ongoing Medicaid recipient of EPSDT Home Health Services.

246.

B.M.'s physician has prescribed the medically necessary services for B.M.

247.

B.M.'s condition has not improved and his need for services has remained the same.

248.

Since 2011, eQHealth and AHCA have denied B.M.'s requested and prescribed nursing hours at least once.

249.

On August 3, 2011, eQHealth and AHCA gave notice that they were reducing B.M.'s prescribed hours from nine hours a day, Monday through Friday, and ten hours a day on the weekends to eight hours a day, Monday through Friday, and no hours on the weekends for the certification period of July 31, 2011 through January 7, 2012.

250.

eQHealth and AHCA's attempt to reduce B.M.'s services is not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA's decision to reduce the services. This decision is not based on the individual need of B.M., is not justified by medical necessity, and does not reflect a professional judgment about B.M.'s condition. Rather, it is an administrative action made to save money.

251.

Without medically necessary services, B.M. will be institutionalized because his family will no longer be able to care for B.M. at home.

252.

B.M. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants.

253.

The cost of institutionalization in a nursing facility is more than the cost of providing at-home care.

T.F.

254.

T.F. is a medically fragile 18-year-old child Medicaid recipient of private duty nursing services diagnosed with cerebral palsy, mental retardation, and chronic lung disease. T.F. lives with his legal guardians and his sister in Miami, Florida.

255.

T.F. was born with a variety of medical complications. T.F. has diagnoses of cerebral palsy, mental retardation, chronic lung disease, kyphoscoliosis, microcephalus, and gastroesophageal reflux. He has developmental delay, a seizure disorder, and cortical blindness. He requires the constant use of a ventilator and oxygen. T.F. has a g-tube and a tracheotomy tube.

256.

T.F.'s ventilator must be checked hourly for proper function and deliverance of prescribed settings. Additionally, T.F. cannot be left alone because a disconnection from his ventilator will result in death. T.F. is unable to speak.

257.

T.F. also requires frequent mechanical suctioning to help remove any obstruction from his airway. Due to T.F.'s involuntary movements, at least two people are required for suctioning. This procedure also stimulates T.F.'s gag reflex causing him to become distressed, oxygen saturation decreases, intense coughing attacks occur, increased heart rate and respiration occur.

258.

T.F. is a qualified person with a disability.

259.

T.F.'s mother is studying for her Certified Personal Accountant exam and caring for another child with a chronic gastrointestinal medical condition. T.F.'s father works overtime to financially provide for his family.

260.

T.F.'s treating physician has prescribed the medically necessary services for T.F.

261.

T.F.'s condition has not improved and his need for services has remained the same.

262.

eQHealth and AHCA reduced T.F's requested and prescribed nursing hours from nine hours per weekday, eight hours on Saturday and no hours on Sunday to eight hours per weekday with no hours on the weekends. This is a reduction from 1,370 private duty nursing hours to 688 hours for the total certification period.

263.

On July 25, 2011, eQHealth and AHCA gave notice that they were reducing T.F.'s prescribed services from a Registered Nurse to a Licensed Practical Nurse for the certification period of July 3, 2011 through December 24, 2011.

264.

eQHealth and AHCA's attempt to reduce T.F.'s services is not based on a change in the medical necessity of the services. There is no clinically sound reason for eQHealth and AHCA's decision to reduce the services. This decision is not based on the individual need of T.F., is not justified by medical necessity, and does not reflect a professional judgment about T.F.'s condition. Rather, it is an administrative action made to save money.

265.

Without medically necessary services, T.F. will be institutionalized and his family will no longer be able to care for T.F. at home.

266.

T.F. is at risk of residing in a nursing facility based upon the current policies and practices of the Defendants.

267.

The cost of institutionalization in a nursing facility is more than the cost of providing at-home care.

GENERAL ALLEGATIONS

268.

The Individual Plaintiffs, and the Plaintiff Class are individuals with physical and mental impairments that substantially limit one or more major life activity, such as self-care and interaction with others. They also have a record of such impairments and are regarded by Defendants as having such impairments.

269.

The Plaintiff Class members are qualified persons with a disability within the meaning of the ADA and Section 504.

270.

Plaintiffs and Class members are able to, and desire to, live in the community with the appropriate services and supports.

271.

It is the policy of the State of Florida to prevent the separation of children from their families and to reunify families who have had children placed in foster homes or institutions. See § 409.145, Fla. Stat.

272.

Defendants have available community-based services for children currently institutionalized in nursing facilities, including residential assistance services, habilitation services, and private duty nursing services, which would enable Plaintiffs and Class members to live and continue to live in their homes and in the community.

273.

Named Plaintiffs have been determined by healthcare professionals to be appropriate for community based services.

274.

The provision of appropriate services and supports in the community is a reasonable accommodation for the Plaintiffs and Class members.

275.

Nursing facilities are not integrated or appropriate settings for Plaintiffs and Class members.

276.

The Defendants have developed, implemented, and administered its community services programs in a manner that systematically or effectively denies children residing in nursing facilities access to those community based programs.

277.

Further, the Defendants have developed regulations, rules, customs, practices, policies, acts, and/or omissions of reducing the prescribed medically necessary services to medically fragile children to the point that the Plaintiffs' caregivers cannot provide safe and appropriate care to the Plaintiffs and Plaintiff class members. (e.g., Handbook at 2-17 & 2-21; & Rule 59G-1.010(166)(a), Fla. Admin. Code). For example:

a.

"Florida Medicaid does not reimburse private duty nursing services provided solely for the convenience of the child, the parents or the caregiver." Handbook at 2-18. This restriction is based on the regulatory definition of "medically necessary," found at Rule 59G-1.010(166)(a), Fla. Admin. Code, which states, in part, that medically necessary services must "[b]e furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider." Defendants adopted and have applied this policy without the authority of any similar federal Medicaid policy, rule or statute, giving Defendants a basis to deny private duty nursing service hours that have been prescribed by Plaintiff and Plaintiff Class members' treating physicians. eQHealth and AHCA's application of this policy has forced and is forcing parents and caregivers to institutionalize their children.

b.

"Private duty nursing services will be decreased over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or as the child's condition improves." Handbook at 2-21. Defendants adopted and have applied this policy without the authority of any similar federal Medicaid policy, rule or statute, giving Defendants a basis to deny private duty nursing services that have been prescribed by Plaintiff and Plaintiff Class members' treating physicians. Plaintiff and Plaintiff Class members' conditions will not improve over time, yet eQHealth and AHCA have routinely denied services even where Plaintiff and Plaintiff Class members' needs have not decreased. Instead, Defendants seek to force parents to provide life sustaining, medically necessary care, usually performed by licensed and trained nurses, to their own children.

c.

Parents and caregivers of Plaintiffs and Plaintiff class members are not capable of safely providing the required care because they are not medical professionals and/or are not available to provide the services at the required level or duration. Plaintiff and Plaintiff Class members have been placed in nursing homes and are at risk of being placed in a nursing home because Defendants have unlawfully shifted the burden for providing skilled nursing services to the parents or caregivers of children who are not skilled nurses. In contrast, there are not similar

regulations, rules, customs, practices, policies, acts, and omissions utilized to deny benefits and to unnecessarily institutionalize and segregate similarly situated adults with disabilities. Defendants' implementation of a definition of "medically necessary" that takes into account the mere availability of caregivers, regardless of their lack of medical training or qualification, is unreasonable and violates Federal law.

d.

eQHealth and AHCA have a pattern and practice of denying or reducing services at each certification period without regard to the child's condition.

278.

On June 25, 2012, AHCA adopted an updated version of the Home Health Services Coverage and Limitations Handbook. Agency for Health Care Administration, Home Health Services Coverage and Limitations Handbook, 2011, incorporated by reference in Rule 59G-4.001, Fla. Admin. Code.. The Updates to the Handbook further Defendants' development of regulations, rules, customs, practices, policies, acts, and/or omissions of reducing services and creating barriers to obtain the prescribed medically necessary services for medically fragile children and children in need of skilled nursing services, and leading to their institutionalization.

a.

The updates to the Handbook further promote institutionalization by restricting private duty nursing services only to those children who "are unable to attend a Pediatric Prescribed Extended Care (PPEC) Center."¹ Handbook at 2-19. The Defendants explicitly require a child who is medically able to attend a PPEC to receive PPEC services instead of private duty nursing services. See Handbook at 2-20 ("A recipient who is medically able to attend a prescribed pediatric extended care (PPEC) center and whose needs can be met by the PPEC shall be provided with PPEC services instead of private duty nursing services."). These updates to the Handbook will force children who would otherwise remain in their homes and integrated communities to be placed in a segregated facility entirely composed of other medically fragile children. Further, if an attending physician of a child

¹ A PPEC is a "non-residential facility" that provides "short, long-term, or intermittent medical care" to medically fragile children. Agency for Health Care Administration, Prescribed Pediatric Extended Care Services Coverage and Limitations Handbook, 2007, at 1-2, incorporated by reference in Rule 59G-4.260, Fla. Admin. Code (emphasis added).

Medicaid recipient finds that it is medical necessary for a child to receive PDN services at home, then the agency cannot, on its own, determine that it is medically appropriate for the child to be in a PPEC. See Moore ex rel. Moore v. Medows, 324 Fed. Appx. 773, 774 (11th Cir. 2009) (The patient's physician has a role in determining what treatment is medically necessary, and for developing the plan of care for the Medicaid recipient).

b.

The updates to the Handbook also reduce the period during which Plaintiffs can appeal a denial of services from ten to five days. See Handbook at 2-33 ("A reconsideration review of the denial decision must be requested via the Medicaid QIO internet system within five business days of the date of the final denial or modified approval determination."). There can be no justification for the reduction of Medicaid recipients' review rights other than to make it more difficult to retain services.

c.

Further, the updates to the Handbook expand the definition of caregiver to include "family member who attends to the needs of a child." Handbook at 1-5. The physical availability of siblings, other children in the home, grandparents, and other family members of the Medicaid recipients, will play a role in the certification process. As discussed extensively above, reliance on parents and caregivers for medical services is improper and to expand this definition to include any family member is also improper and unreasonable as it could include such persons even less equipped (children and grandparents) to handle the needs of medically fragile children.

279.

The overall costs to institutionalize all of the Plaintiffs and Plaintiff class members in nursing facilities is more than the overall costs of providing at home care.

280.

Defendants have and continue to make cuts in Plaintiffs' and Class members' services which have forced them to be unnecessary institutionalized in nursing facilities in order to receive the medically necessary services or have placed them at risk of unnecessary institutionalization in nursing facilities.

281.

The Defendants have failed to operate the PASSR program in accordance with federal law, resulting in T.H., L.J., and members of the sub-class of institutionalized Plaintiffs

residing in nursing homes not receiving the specialized services to which they are entitled.

282.

Most of the approximately 250 Plaintiff Class members with mental illness or mental retardation who are confined in nursing facilities should have been diverted to a more integrated community placement if their PASRR reviews had been properly performed.

283.

Of the approximately 250 Plaintiff Class members who remain in nursing facilities, most of them could be appropriately transitioned to the community with appropriate supports and services.

284.

The overwhelming majority of the sub-class of institutionalized Plaintiffs would, if properly assessed during the PASRR review, be identified as needing and qualifying for specialized services.

285.

The Defendants' regulations, rules, customs, practices, policies, acts, and omissions of reducing the prescribed medically necessary services to medically fragile children below what the children require subjects them to and favors unnecessary institutionalization and is discriminatory under Olmstead and its progeny.

286.

The Defendants' actions were taken under the color of law and the Defendants knew or should have known that the policies, practices, acts, and conditions alleged herein has resulted or would result in the unnecessary institutionalization of the Plaintiffs and Plaintiff class members in nursing facilities.

287.

As a result of the Defendants' rules, regulations, policies, practices, customs, actions, and inactions, the Plaintiffs and the Plaintiff Class members remain unnecessarily institutionalized or are at risk of unnecessary institutionalization in segregated nursing facilities.

CLASS ACTION ALLEGATIONS

288.

Plaintiffs seek to bring this case as a class action, pursuant to Fed. R. Civ. P. 23(a) & (b)(2), and S.D. Loc. R. 23.1(b), on behalf of themselves and for similarly situated Florida children (birth through 21) who are Medicaid recipients and who are institutionalized or at risk of institutionalization.

289.

The first proposed sub-class consists of all children who are Medicaid recipients that are currently institutionalized in a nursing home. Such children are either medically fragile,

in need of skilled nursing care or intermediate care who are able and want to live in the community with appropriate supports and services,

290.

The second proposed sub-class consists of all children who are Medicaid recipients that are medically fragile and are at risk of unnecessary institutionalization in nursing facilities or Pediatric Prescribed Extended Care facilities due to the denial of medically necessary private duty nursing services.

NUMEROSITY

291.

The proposed Class of medically fragile child Medicaid recipients is so numerous that joinder of all members is impractical. On information and belief, more than 3,500 medically fragile child Medicaid recipients fall within the definition of the class.

Institutionalized Sub-Class

292.

The proposed sub-class of institutionalized Plaintiffs is so numerous that joinder of all members is impractical. On information and belief, approximately 250 children, who are medically fragile, or in need of skilled nursing or intermediate care, are unnecessarily institutionalized in Florida nursing facilities. Although the exact number is known to the Defendants and is ascertainable, the Plaintiffs do not know the exact number of individuals in the class.

At-Risk Sub-Class

293.

The proposed sub-class of at-risk Plaintiffs is so numerous that joinder of all members is impractical. On information and belief, approximately 3,300 medically fragile children who receive private duty nursing fall within the definition of the class.

COMMON QUESTIONS OF LAW AND FACT

294.

There are questions of law and fact common to the class including:

a.

Whether Defendants violated Plaintiffs' and class members' rights under the ADA, in specific:

i.

Whether the Defendants' uniform practices and policies have violated the ADA by segregating members of the sub-class of institutionalized Plaintiffs in nursing facilities and by failing to provide medically necessary services in an integrated community setting; and

ii.

Whether the Defendants' uniform practices and policies have violated the ADA by placing members of the sub-class of at-risk Plaintiffs at risk of

being institutionalized in nursing homes or daytime institutionalization in Pediatric Prescribed Extended Care facilities by the denial of medically necessary private duty nursing services;

b.

Whether Defendants violated Plaintiffs' and class members' rights under Section 504 of the Rehabilitation Act, in specific:

i.

Whether the Defendants' uniform practices and policies have violated § 504 of the Rehabilitation Act by segregating members of the sub-class of institutionalized Plaintiffs in nursing facilities and by failing to provide medically necessary services in an integrated community setting; and

ii.

Whether the Defendants' uniform practices and policies have violated §504 of the Rehabilitation Act by placing members of the at-risk sub-class of Plaintiffs at risk of being institutionalized in nursing homes or daytime institutionalization in Pediatric Prescribed Extended Care facilities by the denial of medically necessary private duty nursing services;

c.

Whether Defendants violated Plaintiffs' and Plaintiff Class members' right under the Medicaid Act, in specific:

i.

Whether the Defendants violated the institutionalized sub-class Plaintiffs' rights under the Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. §1396r, by failing to perform adequate PASRR reviews;

ii.

Whether the Defendants' uniform practices and policies have violated Medicaid's EPSDT and reasonable promptness requirements by failing to provide Plaintiffs and members of Plaintiff Class with medically necessary private duty nursing services;

d.

Whether Plaintiffs and class members are entitled to declaratory and injunctive relief by virtue of Defendants' violations of law.

TYPICALITY

295.

The Plaintiffs' claims are typical of the claims of the Plaintiff Class members because they are based on the same factual, legal and remedial theories as the claims of the Plaintiff Class, who qualify for supports and services to live in the community, but have been deprived or are being deprived such supports and services, and have been forced to be segregated in nursing facilities or are at risk of being segregated.

296.

The Plaintiff Class members are qualified persons with a disability under the ADA and Section 504 of the Rehabilitation Act.

ADEQUACY OF REPRESENTATION

297.

The Plaintiffs can and will fairly and adequately represent and protect the interests of the Plaintiff Class members because the Plaintiffs are similarly situated with, and have suffered similar injuries as, the members of the class the Plaintiffs seek to represent.

298.

The Plaintiffs have no interests that conflict with or are antagonistic to the interests of the entire Plaintiff Class.

299.

The Plaintiffs have retained attorneys who are skilled and knowledgeable about civil rights litigation, Medicaid law, the practice and procedures in federal courts and management of class action litigation, and who will vigorously prosecute this litigation.

COUNT 1
Title II of ADA
(ALL DEFENDANTS)

300.

The Plaintiffs repeat the allegations in paragraphs 1 through 299 of the Complaint as if fully set forth herein.

301.

Count 1 is a claim under Title II of the ADA, 42 U.S.C. §§ 12131-12165.

302.

Plaintiffs are qualified individuals with disabilities within the meaning of the ADA.

303.

AHCA, FDOH, and CMS are public entities, and eQHealth is an instrumentality of a state within the meaning of the ADA.

304.

The ADA requires 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.

305.

Further, the regulations implementing the ADA require 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).

306.

Public entities "shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered." 28 C.F.R. § 35.130(b)(8).

307.

As public entities and instrumentalities of the state, Defendants are prohibited from providing "a qualified individual with a disability with an aide, benefit or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided others." 28 CFR 35.130(b)(1)(iii)

308.

Defendants have discriminated against Plaintiffs and Plaintiff Class members in violation of the ADA on the basis of their disabilities by denying Plaintiffs and Plaintiff Class members medically necessary services in the community as a reasonable accommodation, resulting in Plaintiffs and Plaintiff Class members being unnecessarily institutionalized or at risk of unnecessary institutionalization in nursing facilities.

309.

The Defendants have discriminated against the Plaintiffs and the Plaintiff Class members in violation of the ADA on the basis of their disabilities by:

a.

Segregating or placing the Plaintiffs and Plaintiff class members at risk of segregation and by failing to provide Plaintiffs and Plaintiff class members with appropriate community based services;

b.

Denying the Plaintiffs and the Plaintiff Class members medically necessary services resulting in the Plaintiffs' and Plaintiff Class members' institutionalization or placing them at risk of institutionalization;

c.

Denying the Plaintiffs and the Plaintiff Class members access to existing community programs and by requiring them to be confined in or at risk of being confined in segregated institutional settings in order to receive the care they require;

d.

Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class have been inappropriately admitted to nursing facilities;

e.

Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class are not provided the necessary specialized services to which they are entitled while residing in nursing facilities.

This violation entitles Plaintiffs and Plaintiff Class members to injunctive and declaratory relief under the ADA.

310.

As a result of the Defendants' ongoing violations, the Plaintiffs and the Plaintiff Class members continue to be harmed.

COUNT 2
Section 504 of the Rehabilitation Act
(ALL DEFENDANTS)

311.

The Plaintiffs repeat the allegations in paragraphs 1 through 299 of the Complaint as if fully set forth herein.

312.

Count 2 is a claim under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a).

313.

Plaintiffs are handicapped individuals under the Rehabilitation Act and are qualified to receive medically necessary services through Medicaid.

314.

Defendants Dudek, Farmer and Wiggins are directors of agencies that receive federal financial assistance.

315.

eQHealth receives Federal financial assistance.

316.

The Defendants have discriminated against the Plaintiffs and Plaintiff Class members in violation of Section 504 of the Rehabilitation Act on the basis of their disabilities by denying the Plaintiffs and Plaintiff Class members medically necessary services, as a reasonable accommodation, resulting in the Plaintiffs and Plaintiff Class members being unnecessarily institutionalized or at risk of unnecessary institutionalization in nursing facilities.

317.

The Defendants have discriminated against the Plaintiffs and the Plaintiff Class members in violation of Section 504 of the Rehabilitation Act on the basis of their disabilities by:

a.

Segregating or placing the Plaintiffs and Plaintiff class members at risk of segregation and by failing to provide Plaintiffs and Plaintiff class members with the appropriate community based services;

b.

Denying the Plaintiffs and the Plaintiff Class members medically necessary services resulting in the Plaintiffs' and the Plaintiff Class members' institutionalization or placing them at risk of institutionalization;

c.

Denying the Plaintiffs and the Plaintiff Class members access to existing community programs and by requiring them to be confined in or at risk of being confined in segregated institutional settings in order to receive the care they require;

d.

Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class of Plaintiffs have been inappropriately admitted to nursing facilities;

e.

Administering the PASRR program in such a way that the institutionalized Plaintiffs and members of the institutionalized sub-class of Plaintiffs are not provided the necessary specialized services to which they are entitled while residing in nursing facilities.

This violation entitles Plaintiffs and Plaintiff Class members to relief under Section 504 of the Rehabilitation Act.

318.

As a result of the Defendants' ongoing violations, the Plaintiffs and the Plaintiff Class members continue to be harmed.

COUNT 3
42 U.S.C. § 1983 -- United States Medicaid Act -- EPSDT Violations
(ALL DEFENDANTS)

319.

The Plaintiffs repeat the allegations in paragraphs 1 through 299of the Complaint as if fully set forth herein.

320.

Count 3 is a 42 U.S.C. § 1983 claim against the Defendants for violation of Plaintiff's rights under the EPSDT provisions of the United States Medicaid Act, 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4)(B); and 42 U.S.C. § 1396d(r).

321.

AHCA's definition of "medical necessity", see Rule 59G-1.010(166) (incorporated through the Handbook), is preempted by federal law and is invalid pursuant to the Supremacy Clause of the United States Constitution. See U.S. Const. Art VI, § 2.

322.

Defendants' regulations, rules, policies, procedures, customs and practices for providing private duty nursing, below the level that is medically necessary, violate the EPSDT provisions of the federal Medicaid statute at 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4)(B); and 42 U.S.C. § 1396d(r). This violation entitles Plaintiffs to relief under 42 U.S.C. § 1983.

323.

As a result of the Defendants' violations, the Plaintiffs and Plaintiff class have been damaged.

COUNT 4
42 U.S.C. § 1983 -- United States Medicaid Act -- Reasonable Promptness
(ALL DEFENDANTS)

324.

The Plaintiffs repeat the allegations in paragraphs 1 through 299 of the Complaint as if fully set forth herein.

325.

Count 4 is a claim under 42 U.S.C. § 1983 against the Defendants for violation of Plaintiff's rights under the Reasonable Promptness provision of the United States Medicaid Act, 42 U.S.C. § 1396a(a)(8).

326.

Defendants' regulations, rules, policies, customs, and practices, which limit the provision of medically necessary community-based services and supports, as well as medically necessary specialized services, result in extended delays and outright denials of medically necessary care to the Plaintiffs and members of the Plaintiff class.

327.

The residential support, habilitation and other specialized services that Plaintiffs and the Plaintiff Class need are not provided with reasonable promptness, in violation of 42 U.S.C. § 1396a(a)(8).

328.

As a result of the Defendants' violations, the Plaintiffs and Plaintiff class have been damaged.

COUNT 5
42 U.S.C. § 1983 -- The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r
(DUDEK, FARMER, WIGGINS)

329.

The institutionalized Plaintiffs reallege paragraphs 1 through 299 of the Complaint as if fully set forth herein.

330.

Count 5 is a § 1983 claim for the Defendants' violation of The Nursing Home Reform Amendments to the Medicaid Act, 42 U.S.C. § 1396r.

331.

Under federal Medicaid law, Florida's CMAT is required to screen patients under the age of 21 for mental illness and mental retardation, determine whether placement in a nursing facility is appropriate and if specialized services are needed, and to provide the specialized services that are necessary. See 42 U.S.C. § 1396r(e)(7).

332.

The Defendants' PASRR program does not adequately screen applicants to nursing facilities to determine if they have a mental illness or mental retardation. As a result, many children with a mental illness or mental retardation that can be served in the

community are wrongfully admitted to nursing facilities and are never provided a Level II PASRR evaluation and determination, as required by federal law. 42 C.F.R. § 483.112.

333.

The Defendants' PASRR program does not adequately or appropriately assess whether a child with mental illness or mental retardation who needs an institutional level of services can be served in another specialized facility, as required by federal law. 42 C.F.R. § 483.118.

334.

The Defendants' PASRR program does not adequately or appropriately assess whether a child with mental illness or mental retardation needs any specialized habilitative services and, if so, what those specific needs and services are. 42 C.F.R. § 483.112(b).

335.

As a result of the Defendants' ongoing violations, the institutionalized Plaintiffs and members of the sub-class of institutionalized Plaintiffs continue to be harmed.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for relief as follows:

(1)

Declare that the Defendants violated the Americans With Disabilities Act when they refused to provide medically necessary services, and reasonable accommodations to the at risk Plaintiffs and members of the at-risk Plaintiff sub-class, resulting in the at risk Plaintiffs and members of the at-risk Plaintiff sub-class being at risk of unnecessary institutionalization in nursing facilities;

(2)

Declare that the Defendants violated the Americans with Disabilities Act when they segregated the institutionalized Plaintiffs and members of the institutionalized Plaintiff sub-class and failed to provide them with integrated community services;

(3)

Declare that the Defendants violated Section 504 of the Rehabilitation Act of 1973 when they refused to provide medically necessary services and reasonable accommodations to the at risk Plaintiffs and members of the at risk Plaintiff sub-class, resulting in the at risk Plaintiffs and members of the at-risk Plaintiff sub-class being at risk of unnecessary institutionalization in nursing facilities;

(4)

Declare that the Defendants violated Section 504 of the Rehabilitation Act of 1973 when they segregated the institutionalized Plaintiffs and members of the institutionalized subclass and failed to provide integrated community services;

(5)

Declare that the Defendants have violated the Medicaid Act: 42 U.S.C. § 1396a(a)(43); 42 U.S.C. § 1396d(a)(4)(B); 42 U.S.C. § 1396d(r); and 42 U.S.C. 1396a(a)(8);

(6)

Declare Defendants deprived the institutionalized Plaintiffs and members of the institutionalized sub-class of their rights to be properly screened under the Nursing Home Reform Amendments to the Medicaid Act and of specialized services once they were placed in a nursing facility;

(7)

Order the Defendants to provide private duty nursing services that will allow the Plaintiffs and Plaintiff class members to live in their homes and communities;

(8)

Order the Defendants to cease the practice of denying or reducing Plaintiff and Plaintiff Class members' services at recertification where there has been no change in the medical necessity of such services;

(9)

Enter a permanent injunction requiring the Defendants to stop segregation of medically fragile children who are unnecessarily institutionalized in nursing homes and to provide integrated community services;

(10)

Enter a permanent injunction requiring the Defendants to perform adequate Level I and Level II PASSR reviews to institutionalized children and to provide such services as determined by the Level II screening;

(11)

Award compensatory services to the Plaintiffs and the Plaintiff Class members to ameliorate or remediate the conditions resulting from the Defendants' failure to provide the medically necessary services;

(12)

Award attorneys' fees and costs pursuant to 42 U.S.C. § 1988; 42 U.S.C. § 12133; and 29 U.S.C. § 794a; and

(13)

Grant such other and further relief as this court may deem just and proper.

Respectfully Submitted on this 15th day of August, 2012,

Law Offices of Matthew W. Dietz, P.L.

2990 SW 35th Ave.
Miami, FL 33133
Phone: (305) 669-2822
Fax: (305) 442-4181
Email: Matthewdietz@usdisabilitylaw.com
Lead Trial Attorney

By: s/ Matthew W. Dietz

Matthew W. Dietz

Fla. Bar No. 84905

FSU College of Law Public Interest Law
Center

425 W. Jefferson Street
Tallahassee, FL 32306
Phone: (850) 644-9928/F: (850) 644-0879
Email: Pannino@law.fsu.edu

By: s/ Paolo G. Annino

Paolo G. Annino

Florida Bar No. 0379166

The North Florida Center For Equal Justice, Inc.
2121 Delta Blvd.
Phone: (850) 701-3980
Fax: (850) 701-3985
Co-counsel

By: s/ Jamie Ito

Jamie Ito

Fla. Bar No. 13553

jamie@nfcfej.org

By: s/ Edward J. Grunewald

Edward J. Grunewald

Fla. Bar No. 612472

egrunewald@nfcfej.org

By: s/ Jill B. Zaborske

Jill B. Zaborske

Fla. Bar No. 621005

jill@nfcfej.org

Tallahassee, FL 32303

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies of the foregoing were served upon the following via CM/ECF and U.S. Mail on this 15th day of August, 2012.

BY: s/ Matthew Dietz

Matthew W. Dietz

Stuart F. Williams
General Counsel
Andrew T. Sheeran
Assistant General Counsel
Beverly H. Smith
Assistant General Counsel
Agency for Health Care Administration
2727 Mahan Drive
Building 3, MS #3
Tallahassee, FL 32308

Jennifer A. Tschetter
General Counsel
Florida Department of Health
4052 Bald Cypress Way, Bin A02
Tallahassee, Florida 323 99-1703

Lisa M. Raleigh
Special Counsel
Florida Bar No. 0858498
PL-01, The Capitol
Tallahassee, FL 32399-1050
Ph. (850) 414-3300
Fax (850) 414-9650
Email: lisa.raleigh@gmail.com

Lisa Scoles
Harry Osborne Thomas
Radey Thomas Yon & Clark, P.A.
301 S. Bronough Street
Suite 200
Tallahassee, FL 32301