Doe v. Bush, Nos. 99-14590

Decision Date14 August 2001
Docket NumberNos. 99-14590,00-12097
Citation261 F.3d 1037
Parties(11th Cir. 2001) John/Jane DOE, 1-13 by and through Mr./Mrs. DOE SR. No.'s 1-13 as natural guardians on and behalf of those similarly situated, Plaintiffs-Appellees, v. Jeb BUSH, in his official capacity as Governor of the State of Florida, Kathleen Kearney, in her official capacity as Secretary of the Department of Children and Family Services, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeals from the United States District Court for the Southern District of Florida.

Before ANDERSON, Chief Judge, CARNES, Circuit Judge, and NANGLE*, District Judge.

CARNES, Circuit Judge:

State officials charged with the administration of the Medicaid program in Florida appeal two separate orders arising out of the same litigation. The first appeal is from a contempt order entered on October 7, 1999, for their alleged failure to comply with the injunctive relief ordered in a 1996 final judgment involving the state's Medicaid program. The second appeal is from a class certification order entered on February 11, 2000, approximately three months after the defendants filed their notice of appeal from the contempt order and nearly four years after the entry of final judgment in the case. We consolidated the two appeals.

This litigation has been ill-fated since the district court entered its terse final judgment in 1996. The scope and reach of that judgment has been a source of contention between the parties leading to this point. There are a number of issues, all of which we will discuss in the course of this opinion. For the present introductory purposes, suffice it to say that we have concluded that the district court's finding of contempt, as well as its belated entry of the class certification order, are due to be reversed, and the case remanded to the district court which will then have an opportunity to more clearly define the obligations it intends to impose upon the defendants.


In 1992, thirteen unnamed developmentally disabled individuals ("plaintiffs") who had been placed on waiting lists for entry into intermediate care facilities ("ICF")1 brought a § 1983 action against officials of the Florida Department of Health and Rehabilitative Services2 ("defendants"). The suit alleged that defendants were allowing eligible individuals to languish on waiting lists for Intermediate Care Facilities for the Developmentally Disabled services ("ICF/DD services") for years in violation of the Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. In 1996, the district court granted summary judgment in favor of plaintiffs, determining that 42 U.S.C. § 1396a(a)(8) requires that defendants provide ICF/DD placement to all eligible individuals with "reasonable promptness." Accordingly, in a separate order entered on August 28, 1996, the district court entered the following final judgment:

ORDERED AND ADJUDGED that Defendants' shall, within 60 days of the date of this Order, establish within the State's Medicaid Plan a reasonable waiting list time period, not to exceed ninety days, for individuals who are eligible for placement in ICF/DD institutional care facilities.

On appeal, this Court affirmed the district court. See Doe v. Chiles, 136 F.3d 709 (11th Cir.1998).


On June 16, 1998, two months after this Court affirmed the district court's final judgment order, plaintiffs filed a motion for contempt arguing that defendants had not taken any steps to comply with the final judgment. On November 4, 1998, the district court conducted a show cause hearing on whether defendants should be held in contempt. At the hearing, defendants estimated that there were 600 developmentally disabled individuals in need of ICF/DD services who were not receiving them. That number represented an estimate of the individuals who had requested or were likely to request ICF/DD services, and was not based on individualized eligibility assessments.3

Following the show cause hearing, on November 10, 1998, the district court determined that defendants were not complying with the final judgment, but it did not hold them in contempt. Instead, the district court entered an order that allowed additional time to complete "specific acts of compliance." The defendants were ordered to provide Medicaid services to the "named members of the class," to identify and locate for immediate delivery of ICF/DD services the 600 persons whom defendants had estimated were eligible for those services, and to fully comply with the final judgment "as to all members of the numbered class."

On January 11, 1999, defendants filed their plan of compliance, setting forth the steps they had taken or intended to take in order to comply with the 1996 final judgment. On May 24, 1999, the district court conducted a three day hearing in order to determine whether the defendants were complying with the 1996 judgment. On October 7, 1999, the court held the defendants in contempt for failure to comply with that final judgment and it fined them $10,000 per day "until a comprehensive plan, which comports with the letter and spirit of the [final judgment] is submitted ready for implementation." The validity of the contempt order is the subject of the first half of the consolidated appeal.


Plaintiffs originally captioned their complaint as "Civil Complaint (class action)." The complaint stated repeatedly that it was filed on behalf of the named plaintiffs and those "similarly situated." On July 1, 1992, plaintiffs filed a motion to certify the class. The magistrate judge filed a report and recommendation ("R&R") on the certification issue on August 26, 1996, recommending that plaintiffs' motion to certify the class be granted. The R&R described the scope of the class as follows:

all developmentally disabled individuals in the State of Florida who are entitled to Intermediate Care Facilities for the Mentally Retarded ("ICF/MR") placement but have not received a placement with reasonable promptness.

Although the district court received the R&R two days prior to entering final judgment, and acknowledged as much, the court entered final judgment without addressing the class certification issue. In that same final judgment order, the district court denied as moot all pending motions, including presumably, plaintiffs' motion for class certification. The district court did not address the class certification issue again before entering its contempt order in 1999.

In their appeal of the district court's October 7, 1999 contempt order, one of the arguments the defendants made was that no class had ever been certified. Aware of that, the district court, on February 11, 2000, sua sponte and without notice to the parties, entered an order adopting the magistrate's four-year-old R&R and granting class certification. The district court's decision to certify a class at that late date was motivated by the defendants' appeal of the contempt order, as the court's Order Granting Class Certification acknowledged: "In a pending appeal the defendants have challenged the breadth of an order on grounds that it compels relief for a class of individuals beyond the named plaintiffs. This Order on class certification is germane to that issue and should be added to the record on appeal as a supplement." The district court modified the class that was originally proposed in the R&R to include:

Medicaid eligible individuals with developmental disabilities who have formally requested placement in an Intermediate Care Facility ("ICF/DD") and for whom the placement would be medically and otherwise appropriate but who have not received a placement with reasonable promptness. Specifically included in this class are the approximate 600 individuals the State of Florida had identified as eligible for ICF/DD placement who have been awaiting placement for more than 90 days. (footnote omitted).

The validity of the class certification order is the subject of the second half of the consolidated appeal.


Before discussing the district court's holding that defendants were in contempt of its 1996 final judgment, we need to set out in some detail precisely what the defendants did following the issuance of the 1996 final judgment and this Court's mandate affirming that judgment, see Chiles, 136 F.3d 709.

1. Defendants Amend the Florida State Medicaid Plan

On April 27, 1998, the Federal Health Care Financing Administration approved an amendment, which had been submitted by defendants in response to the final judgment, to the Florida State Medicaid Plan. Under the amended plan, an applicant is not deemed eligible for ICF/DD services unless it is first determined that such services are medically necessary. Specifically, the plan provides:

Intermediate Care Facility for the Developmentally Disabled (ICF/DD) Service


(1) The Recipient's need for ICF/DD services must be determined by the agency's designee[4] based on medical necessity.

(2) The agency's designee will maintain a waiting list for persons who have been determined by the agency's designee to be eligible for, require and have chosen ICF/DD placement. The time from placement on the waiting list until admission to an ICF/DD for such persons will not exceed 90 days.

See Florida Medicaid Plan, Attachment 3.1-A(15)(1).5

Medical necessity is defined in Florida Administrative Code § 59G-1.010(166), which provides that in order for a service to be considered "medically necessary," it must:

(a) Meet the following conditions:

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...

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