United States v. State

1

UNITED STATES OF AMERICA, Plaintiff, v. STATE OF FLORIDA, Defendant.

No. 12-60460-CIV-MIDDLEBROOKS/HUNT

United States District Court, S.D. Florida

April 11, 2023

REPORT AND RECOMMENDATION

PATRICK M. HUNT, UNITED STATES MAGISTRATE JUDGE

THIS CAUSE is before this Court on the State of Florida's Motion for Summary Judgment, ECF No. 771, and the United States' Motion for Partial Summary Judgment, ECF No. 773. The Honorable Donald M. Middlebrooks, United States District Judge, referred these Motions to the undersigned for disposition. ECF No. 812; see also 28 U.S.C. § 636(b); S.D. Fla. Mag. R. 1. Having carefully reviewed the Motions, the Responses, and Replies thereto, the argument of Counsel at an April 4, 2023 hearing, the entire record applicable law, and being otherwise fully advised in the premises, the undersigned respectfully RECOMMENDS that Florida's Motion be GRANTED IN PART and DENIED in PART and the United States' Motion be DENIED for the reasons outlined below.

BACKGROUND

This case concerns the United States' allegation that the State of Florida has violated Title II of the Americans with Disabilities Act (“ADA”). 42 U.S.C. §§ 1213112134. Specifically, the United States alleges that the State discriminates against children with disabilities by failing to administer its services in the most integrated setting appropriate to their needs, in violation of the ADA.

The United States accuses Florida of discriminatory administration of its service system for children with complex medical needs, and requests that the Court find that Florida fails to provide appropriate state services to these children. The children at issue here are children under twenty-one years old who have disabilities resulting in their need for medical services on a daily basis. The children often qualify for Medicaid, and often require help with activities of daily living. Necessary services include the use of technology or equipment for communication, mobility breathing, eating, and other tasks, as well as the use and maintenance of feeding tubes, breathing tubes, ventilators, and wheelchairs.

There are two kinds of children involved: those who are already institutionalized, and those who are at serious risk of institutionalization. There are approximately 140 institutionalized children, while the number of at-risk children totals more than 1,800. Some of the institutionalized children have been deemed eligible for community-based services, such as private duty nursing, Florida's so-called iBudget waiver program, and medical foster care. The United States alleges that all of these children have the ability to live in their homes and communities if they are provided with sufficient services.

Florida, on the other hand, asks this Court to find that its services are adequate. According to Florida, 99.8 percent of children in the state with complex medical needs live at home or in other settings besides nursing homes, at the cost of about $500 million per year. Florida argues that the United States has not presented to this Court the necessary evidence to proceed on its claim. Florida contends that the United States' claim also fails as a matter of law, and that the claim threatens to establish a situation where a state is liable when any child is institutionalized.

This case, now more than ten years old, has a long procedural history behind it that need not be recounted here. Both Parties make multiple arguments as to why their arguments should win the day at summary judgment. Given the significant overlap between the Parties' respective arguments, the undersigned will address both Parties' Motions together.

SUMMARY JUDGMENT STANDARD

For purposes of a motion for summary judgment, summary judgment shall be entered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

“The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (stating that there is no “requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim”). If that burden has been met, the burden shifts to the nonmoving party “to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark, 929 F.2d at 608. “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether there are any genuine issues of material fact, this Court may not weigh evidence or make any credibility determinations. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992). Instead, this Court is required to resolve all reasonable doubts in favor of the non-moving party. See Tolan v. Cotton, 572 U.S. 650, 660 (2014); Barnes v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (citing Williams v. City of Dothan, 745 F.2d 1406 (11th Cir. 1984)). Summary judgment is not appropriate where “a rational trier of fact could find a verdict for the nonmoving party under the substantive evidentiary standard.” Tipton, 965 F.2d at 999.

DISCUSSION

a. Olmstead v. L. C. ex rel. Zimring

This case is governed by Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999), which found that

public entities must provide community-based services to persons with disabilities when (1) the services are appropriate; (2) the affected persons do not oppose the services; and (3) the public entity can reasonably accommodate the community-based services.

Georgia Advoc. Off. v. Georgia, 447 F.Supp.3d 1311, 1322 (N.D.Ga. 2020) (citing Olmstead, 527 U.S. at 597-98, 607).

In essence, Olmstead requires that “if a state is found to have discriminated against disabled individuals through the administration of a program, it must modify the program to remedy the situation unless it can prove that any modification would fundamentally alter the program.” Makin ex rel. Russell v. Hawaii, 114 F.Supp.2d 1017, 1034 (D. Haw. 1999). The Olmstead ruling has been found to cover both institutionalized individuals as well as those who are at risk of institutionalization. See, e.g., Hunter ex rel. Lynah v. Cook, No. 1:08-CV-2930-TWT, 2011 WL 4500009, at *5 (N.D.Ga. Sept. 27, 2011) (“Title II of the ADA ‘would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.'”) (quoting Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003)).

At issue in these Motions are four major failings alleged by the United States.

According to the United States, Florida:

1) fails to adequately fund private duty nursing, despite being required to provide Medicaid-eligible children with all such services authorized as medically necessary;

2) limits access for both institutionalized and at-risk children to its Medicaid waiver program for persons with developmental disabilities (the iBudget waiver). According to the United States, 600 children with complex needs are on the waitlist, 19 of whom are institutionalized;

3) fails to maintain sufficient capacity in its medical foster care program to prevent the unnecessary institutionalization of children with disabilities; and

4) fails to provide families with the information they need to understand their home and community-based service options, and the assistance they need to access those services.

The United States contends that states are required by the Medicaid Act to provide all of these state plan services, when medically necessary, to all Medicaid- enrolled children, and that Florida need only expand its existing services to address these failures and give families a meaningful choice as to whether their children will receive services at home or in nursing facilities.

Florida argues that the United States mischaracterizes Olmstead by suggesting that an Olmstead violation exists whenever it is possible to hypothesize a home or community-based setting that would be “appropriate” to the child's needs, regardless of whether the setting actually exists. Florida also contends that the United States wants to twist Olmstead's requirements so they are met whenever parents, when presented with a hypothetical perfect world in which any real-world concerns are fully resolved, indicate they would want their children to live at home or in some other ill-defined “community setting.” Florida argues that this characterization of Olmstead would ensure that its elements are always satisfied as to any disabled person who resides in institutionalized care.

b. Procedural and general issues

Before wading into the waters of what Olmstead requires, the undersigned first needs to address a number of procedural issues advanced by Florida, as well as other issues that generally apply to a substantial number of arguments. The first issue to be addressed is whether the United States has standing to bring this litigation. The undersigned finds that the standing issue in this case has already been decided by the United States Court of Appeals for the Eleventh Circuit.

As the Eleventh Circuit explained, “[t]he United States has brought suits to...