K.G. v. Dudek

839 F.Supp.2d 1254

23 Fla. L. Weekly Fed. D 199

K.G., by and through his next friend, Iliana GARRIDO, Plaintiff,

v.Elizabeth DUDEK, in her official capacity as Secretary, Florida Agency for Health Care Administration, Defendant.

Case No. 11–20684–CIV.

United States District Court, S.D. Florida.

Nov. 1, 2011.

Miriam E. Harmatz, Florida Legal Services Inc. Miami Advocacy Office, Miami, FL, Monica Vigues-Pitan, Legal Services of Greater Miami, Neil David Kodsi, Alderman & Kodsi, for Plaintiffs.

Andrew T. Sheeran, Debora E. Fridie, Agency for Health Care Administration Office of General Counsel, Tallahassee, FL, for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE (D.E. 45) AND GRANTING PLAINTIFF'S FIRST AMENDED MOTION FOR PRELIMINARY INJUNCTION (D.E. 10)

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court on Plaintiff K.G.'s First Amended Motion for Preliminary Injunction (“Motion” or “Mot.,” D.E. 10), filed on March 10, 2011,¹ to which Defendant Elizabeth Dudek, in her official capacity as Secretary, Florida Agency for Health Care Administration, filed her Response in Opposition to Plaintiff's Motion for Preliminary Injunction (“Def.'s Resp.,” D.E. 17) on March 28, 2011. Plaintiff filed his Reply in Support of Motion for Preliminary Injunction (“Reply,” D.E. 21) on April 7, 2011. On June 21, 2011, the Court referred Plaintiff's Motion to Magistrate Judge John J. O'Sullivan ( see D.E. 32), who held a hearing on July 18, 2011 ( see D.E. 36, 44, 57). On July 22, 2011, the Magistrate Judge issued his Report and Recommendation (“Report,” D.E. 45), recommending the Court grant Plaintiff's Motion. On August 5, 2011, Defendant filed Objections to the Magistrate Judge's Report and Recommendation (“Objections,” D.E. 52), to which Plaintiff filed his response (“Response” or “Pl.'s Resp.,” D.E. 59) on August 19, 2011. After an independent review of the Report, the Objections, the Response, and the record, the Court finds as follows.

I. BackgroundA. Factual Background

K.G., a five-year old boy, is a Florida Medicaid recipient who has been diagnosed with autism. (Complaint, D.E. 1, ¶ 1.) K.G.'s mother, Iliana Garrido, asserts that when K.G. was an infant, be “appeared to meet all his early developmental milestones[,] such as [speaking his] first words at seven months and walking at twelve months.” (Declaration of Iliana Garrido (“Garrido Decl.”), D.E. 10–5, ¶ 4.) In addition, he was a “very social child” who “played and communicated well with others” and was eating solid table foods. ( Id. ¶ 5.) However, when K.G. was approximately 19 months old. his mother noticed a change in K.G.'s behavior and a regression in his development. ( See id. ¶¶ 5–8.) His mother describes K.G.'s behavior as follows:

[K.G.] became very withdrawn and extremely irritable. He stopped using his words and would just point to items that he wanted. When this did not work, he would become clearly frustrated, have severe tantrums, exhibit aggressive behavior, and withdraw even further.

He no longer had playful interactions with people. He did not display the same affectionate behavior and would avoid eye contact.

Additionally, [K.G.] stopped eating solids. He would no longer eat regular table food, and we had to puree all of his foods.

( Id. ¶¶ 6–8.) At present, “K.G.'s behavior patterns include: extreme irritability, hyperactivity, incessant screaming, frequent tantrums, and inappropriate aggression towards himself and others.” (Declaration of Elza Vasconcellos, M.D. (“Vasconcellos Decl.”), D.E. 10–4, ¶ 6; see also Garrido Decl. ¶¶ 11–12.)

K.G.'s treating neurologist, Dr. Elza Vasconcellos, has diagnosed K.G. with Autism Spectrum Disorder. (Vasconcellos Decl. ¶ 4.) Autism is a “developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 C.F.R. § 300.8(c)(1)(i) (2011).

On May 25, 2010, and again on September 3, 2010, Dr. Vasconcellos prescribed Applied Behavioral Analysis (“ABA”) therapy, including an evaluation and treatment, to K.G. ( See Prescriptions, D.E. 10–6, at 2–3; see also Vasconcellos Decl. ¶ 8.) “ABA is an intensive service which provides [a] one-on-one structured program that treats behavioral needs.” (Vasconcellos Decl. ¶ 8.) Dr. Vasconcellos emphasizes the necessity of ABA therapy for K.G. as follows:

[P]roviding K.[G.] with a sufficient amount of ABA services presents the best possible opportunity for reducing his problematic behaviors and preventing further deterioration of his condition. If left untreated, his current maladaptive behaviors will likely keep him out of regular school and unable to obtain the level of education that he may be capable of attaining.... [I]t is imperative that these services be provided as soon as possible.

( Id. ¶ 9.)

Due to the family's limited income, K.G.'s parents cannot afford the cost of his prescribed ABA services. (Compl. ¶ 20; see Garrido Decl. ¶ 20.) Medicaid is K.G.'s only source of health care coverage. (Compl. ¶ 13; Garrido Decl. ¶ 20.) Florida's Medicaid program, which is administered by the Florida Agency for Health Care Administration (“AHCA” or “the Agency”), does not cover ABA therapy unless the child has obtained a waiver. SeeFla. Admin.Code Ann. r. 59G–4.050 (incorporating by reference The Florida Medicaid Community Behavioral Health Services Coverage and Limitations Handbook); see also The Florida Medicaid Community Behavioral Health Services Coverage and Limitations Handbook, D.E. 10–2, at 2 (stating that “Medicaid does not pay for community behavioral health services for treatment of autism” and informing that “[r]equests for exceptions to service limits may be made for recipients under age 21 through Medicaid's prior authorization process”); 42 U.S.C. § 1396n(c) (2006) (discussing waivers). K.G.'s mother has applied for a waiver, for which K.G. was found eligible based on his autism, and K.G. is now on a waiting list. (Garrido Decl. ¶ 17.)

Because Medicaid does not cover ABA and K.G. has not yet obtained a waiver, Dr. Vasconcellos has had to prescribe medications for K.G. that have “potentially adverse side effects” in an attempt to manage K.G.'s behavior. (Vasconcellos Decl. ¶ 11.) Despite taking these medications, K.G. “is still exhibiting inappropriate and aggressive behavior.” ( Id.) Dr. Vasconcellos believes that if K.G. does not receive ABA services, he “could lose the ability to communicate altogether,” which “could result in the need for supervision for the rest of his natural life and greatly increase his risk of institutionalization.” ( Id. ¶ 15.) She further opines that ABA “will provide [K.G.] with the greatest opportunity to reduce his disability and restore him to his best functional level.” ( Id. ¶ 16.)

B. Procedural History

Plaintiff seeks a mandatory preliminary injunction requiring the Agency to provide Medicaid coverage for K.G.'s ABA therapy pending the outcome of this case. (Mot. 1–2.) Additionally, Plaintiff requests that the Court waive the requirement that he post a bond pursuant to Rule 65(c) of the Federal Rules of Civil Procedure. ( Id. at 17–18.)

The Magistrate Judge concluded that Plaintiff satisfies the four requirements for a preliminary injunction and has recommended that Plaintiff's Motion be granted. (Report 23.) First, the Magistrate Judge found that Plaintiff “has made a clear showing of likelihood of success on the merits” that Defendant is required to provide coverage for K.G.'s ABA therapy, and therefore, Florida Administrative Code Rule 59G–4.050 excluding ABA coverage for qualified Medicaid recipients under the age of 21 violates the federal Medicaid Act. ( Id. at 17.) Second, citing the declaration of K.G.'s treating neurologist, who described the possible health risks K.G. may face without ABA therapy, and the declaration of Dr. James A. Mulick, who described the effectiveness of ABA therapy, the Magistrate Judge found that Plaintiff has established that an irreparable injury will occur if no preliminary injunction is issued. ( Id. at 18–19.) Third, in balancing the harms between the parties, the Magistrate Judge found that the harm to K.G.'s health outweighed the fiscal harm to the State of paying approximately $22,000 to $33,000 for ABA services for K.G. (assuming an eight month duration of the preliminary injunction). ( Id. at 19–21.) Fourth, the Magistrate Judge found that the public interest would be served by the issuance of a preliminary injunction because providing K.G. with necessary medical services would further the purpose of the Medicaid program. ( Id. at 21.) Finally, the Magistrate Judge recommended that the Court waive the requirement that Plaintiff post a bond under Rule 65(c) of the Federal Rules of Civil Procedure because Plaintiff is indigent and Defendant did not oppose the Motion. ( Id. at 22.)

Defendant objects to the Magistrate Judge's Report and asks that this Court deny Plaintiff's Motion because Plaintiff does not have a substantial likelihood of prevailing on the merits and because the balance of harms and the public interest factors favor Defendant.² (Objections1.) Defendant argues that Plaintiff does not have a substantial likelihood of prevailing on the merits because the state is entitled to define the scope of services covered by the Medicaid Act, the state has determined that ABA is not within that scope because ABA is experimental, and the Court can overturn the state's determination only if it is unreasonable. ( Id. at 11.) Defendant further contends that Plaintiff has failed to provide the Court with any scientific evidence that ABA is effective as a medical treatment for autism, and the...