Smith v. Benson

703 F.Supp.2d 1262

Sharett SMITH, by and through her next friend, Floyd Smith, Plaintiff,v.Holly BENSON, in her official capacity as Secretary of the Florida Agency for Health Care Administration, Defendant.

Case No.: 09-21543-CIV.

United States District Court S.D. Florida.

Jan. 28, 2010.

COPYRIGHT MATERIAL OMITTED

Miriam E. Harmatz, Lead Counsel, Florida Legal Services Inc. Miami Advocacy Office, Jose Francisco Fons, Monica Vigues, Legal Services of Greater Miami, Miami, FL, for Plaintiff.

Justin M. Senior, Gainesville, FL, L. William Porter, II, Agency for Health Care Administration Office of General Counsel, Tallahassee, FL, for Defendant.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; ISSUING DECLARATORY JUDGMENT AND PERMANENT INJUNCTION; CLOSING CASE

ALAN S. GOLD, District Judge.

This CAUSE is before the Court on Plaintiff's Motion for Summary Judgment [DE 26]. Plaintiff Sharett Smith, incontinent due to cerebral palsy, brought suit against Defendant the Secretary of the Florida Agency for Health Care Administration (AHCA),¹ pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief. Plaintiff alleges that the federal Medicaid Act, 42 U.S.C. § 1396 et seq. (“The Medicaid Act or the Act”), requires the State of Florida to provide her with incontinence supplies as prescribed by her treating physician. The parties are in agreement that this case rests on an issue of law appropriate for resolution on summary judgment. Oral argument was initially heard on October 23, 2009, and I heard re-argument on January 22, 2010. For the reasons set forth below, I grant Plaintiff's Motion for Summary Judgment [DE 26] and issue the declaratory and injunctive relief requested.

I. FACTUAL BACKGROUND ²

Sharett Smith (“Plaintiff”) is a seventeen-year old Medicaid recipient with severe disabilities, including mental retardation and cerebral palsy.³ [DE 81, ¶¶ 1, 7; DE 53-1 ¶ 2; Ofir Decl. ¶¶ 5-7.] Cerebral palsy is a disorder that affects the development of motor areas in the brain and disrupts the brain's ability to adequately control movement and posture. [Ofir Decl. ¶ 5]. Because of her severe disabilities, Plaintiff is non-verbal and incontinent, incontinent meaning Plaintiff cannot control bladder or bowel movements. [DE 81, ¶ 9; Ofir Decl. ¶ 7-8.] Incontinence is a common complication of cerebral palsy which interferes with muscular function and sensations that trigger bowel control. [DE 81, ¶ 10; Ofir Decl. ¶ 9.]

Dr. Audrey Ofir-Assistant Professor of Clinical Pediatrics at the University of Miami Miller School of Medicine; Board Certified in Pediatrics; and Director of the Continuity Clinic for the Pediatric Residency Program at Jackson Memorial Hospital-has treated Plaintiff “since shortly after her birth”. [ See DE 26-4; Ofir Decl. ¶¶ 1-4.] In November 2008, Dr. Ofir wrote Plaintiff a prescription for incontinence diapers to ameliorate her condition “physically, mentally and socially.” [ Id. at ¶¶ 10-15.] Dr. Ofir testified that “diapers are medically necessary for [Plaintiff] since they draw moisture from [Plaintiff's] skin and prevent skin irritation, rashes, skin breakdown, and infections which can result without adequate incontinence supplies.” [Ofir Decl. ¶ 10.] ⁴ Dr. Ofir further testified that, as an aggravating factor, Plaintiff is “nonverbal,” and, consequently, she cannot “tell her caretaker that she is sitting in soiled clothes or diapers or report any incipient rash or infection.” [Ofir Decl. ¶ 11; see also Floyd Smith Decl. ¶ 6 (“She can make some sounds but does not use words.”).] Moreover, according to Dr. Ofir, without diapers, Plaintiff could not engage in public activities such as general socializing and attending school and church activities. [ Id. at ¶ 12 (diapers “allow [Plaintiff] to engage in necessary life activities such as socializing with others, attending school and participating in public events with her family”); see also Floyd Smith Decl. ¶ 7 (“If left on her own, [Plaintiff] would spend hours playing with one stuffed toy. But, I want [her] to be around other people as much as she can.”); Id. at ¶ 9 (“Without diapers, I would not be able to take her to [ ] public activities.”).] Finally, Dr. Ofir concluded that a situation in which Plaintiff constantly soiled and changed her clothes at school or elsewhere would harm her physical and mental health, [Ofir Decl. at ¶ 13 (“It would be detrimental to both [Plaintiff's] physical and mental health to wet and soil her clothes and then require changing her clothes at school or other activities.”); DE 82, ¶ 26.]

Upon receiving a prescription, Plaintiff's father, Floyd Smith, attempted to fill it at two Medicaid Durable Medical Equipment / Medical Supply providers. [Floyd Smith Decl. ¶¶ 12-13; Floyd Smith Depo. Tr. P. 24:11.] Representatives at both entities informed him-without any written documentation, such as a denial notice-that Medicaid does not cover diapers. [ Id.] ⁵ The representatives were following prescribed rules. [ See Lichtenstein Decl. ¶¶ 9-10.] Florida Administrative Code Rule 59G-4.070 governs Medicaid coverage of durable medical equipment and medical supplies in Florida, and that Rule incorporates Florida's Durable Medical Equipment and Medical Supply Services Coverage and Limitations Handbook (Limitations Handbook). [DE 82, ¶ 29.] Medicaid providers look to the Limitations Handbook to determine both policies and procedures concerning reimbursement for covered services and items that Medicaid does not cover. [ Id. at ¶ 30.] Limitations Handbook Rule 2-96 excludes Medicaid reimbursement for diapers and incontinence supplies of any kind, with no exceptions, even for recipients under the age of 21. [DE 53-1 (Stipulated Facts), ¶ 4.] ⁶ Several days after filing this law suit, Plaintiff received a temporary supply of diapers from the Florida Agency for Persons with Disabilities (APD). [Floyd Smith Decl. ¶ 15].⁷

Plaintiff brought suit on June 8, 2009, alleging that “Defendant's policies and procedures for administering home health services [ ] violate the [Early and Periodic Screening, Diagnosis and Treatment (EPSDT) ] provisions” of the federal Medicaid statute, “[which] entitles Plaintiff to relief under 42 U.S.C. § 1983.” (Am. Compl. at ¶ 32). Specifically, Plaintiff alleges that Limitations Handbook Rule 2-96-which excludes diapers and incontinence briefs from reimbursement by Florida Medicaid, even for recipients under the age of 21-conflicts with the EPSDT program, and thus federal law preempts that rule pursuant to the Supremacy Clause of the U.S. Constitution, U.S. Const. art. VI, cl. 2. ( Id. at ¶ 33). Accordingly, Plaintiff seeks declaratory and injunctive relief.

II. JURISDICTION & STANDARD OF REVIEW

This Court has original jurisdiction over the federal claims presented here, 28 U.S.C. § 1331, and further has original jurisdiction under 28 U.S.C. § 1343(a)(3-4), because Plaintiff seeks to redress an alleged state law deprivation of a purported right secured by an act of Congress.

Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment when the pleadings and supporting materials show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it hinges on the substantive law at issue and it might affect the outcome of the nonmoving party's claim. See id. (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). The court's focus in reviewing a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Bishop v. Birmingham Police Dep't, 361 F.3d 607, 609 (11th Cir.2004).

The moving party bears the initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). Once the moving party satisfies this burden, the burden shifts to the party opposing the motion to go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.” Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is genuine only if the evidence is such that a reasonable fact finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Denney v. City of Albany, 247 F.3d 1172, 1181 (11th Cir.2001).

In assessing whether the movant has met its burden, the court should view the evidence in the light most favorable to the party opposing the motion and should resolve all reasonable doubts about the facts in favor of the non-moving party. Denney, 247 F.3d at 1181. In determining whether to grant summary judgment, the court must remember that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

On this motion for summary judgment, Plaintiff seeks both declaratory and injunctive relief. The Declaratory Judgment Act, 28 U.S.C. § 2201 (“DJA”), provides that “any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). The Eleventh Circuit has held that in actions brought under the DJA, “the threshold question is whether a justiciable controversy exists.” Cummings v. State Farm Mut. Auto. Ins. Co., 323 Fed.Appx. 847 (11th Cir.2009) (citing Atlanta Gas Light Co. v. Aetna Cas. and Surety Co., 68 F.3d 409, 414 (11th Cir.1995)) (citations omitted). In declaratory judgment actions, to show a justiciable controversy, the party invoking...