K.G. ex rel. Garrido v. Dudek

• Decision Date: 26 March 2012
• Docket Number: Case No. 11–20684–CIV.
• Citation: 864 F.Supp.2d 1314
• Parties: K.G., by and through his next friend, Iliana GARRIDO, I.D., by and through his next friend, Nilda Rivera, and C.C., by and through his next friend, Rachelle Crawford, Plaintiffs, v. Elizabeth DUDEK, in her official capacity as Secretary, Florida Agency for Health Care Administration, Defendant.
• Court: U.S. District Court — Southern District of Florida

864 F.Supp.2d 1314

K.G., by and through his next friend, Iliana GARRIDO, I.D., by and through his next friend, Nilda Rivera, and C.C., by and through his next friend, Rachelle Crawford, Plaintiffs,

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.

March 26, 2012.

Miriam E. Harmatz, Florida Legal Services Inc, Miami, FL, Monica Vigues–Pitan, Betsy Ellen Havens, Legal Services of Greater Miami, Neil David Kodsi, Alderman & Kodsi, Miami Shores, FL, for Plaintiffs.

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

AMENDED PERMANENT INJUNCTION ORDER

JOAN A. LENARD, District Judge.

THIS CAUSE is before the Court following a four-day bench trial. Plaintiffs K.G., I.D., and C.C., by and through their next friends, Iliana Garrido, Nilda Rivera, and Rachelle Crawford, respectively, brought suit against Defendant Elizabeth Dudek, in her official capacity as Secretary, Florida Agency for Health Care Administration (“AHCA” or “the Agency”). Plaintiffs seek, inter alia, a permanent injunction ensuring that Medicaid-eligible minors under the age of 21 in Florida who have been diagnosed with autism or Autism Spectrum Disorder (“ASD”) receive Medicaid coverage for medically necessary behavioral health services, including Applied Behavioral Analysis (“ABA”).¹ ( See First Am. Compl., D.E. 63, at 11–12.) Florida's Medicaid program does not cover ABA or any community behavioral health services to treat autism or ASD. 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 Rule 2–1–4, D.E. 63–1, at Exhibit A (stating that “Medicaid does not pay for community behavioral health services for treatment of autism”).² Plaintiffs argue that Defendant's rule regarding behavioral health services violates the federal Medicaid Act that requires certain services be provided to Medicaid recipients under the age of 21 and violates the federal Medicaid Act's comparability requirement. Defendant argues that the Medicaid Act does not require states to cover ABA because ABA is not a “rehabilitative service [ ] ... for the maximum reductionof physical or mental disability and restoration of an individual to the best possible functional level.” See42 U.S.C. § 1396d(a)(13). Defendant further argues that even if ABA could be covered under § 1396d(a)(13), the State of Florida still is not required to cover ABA under its Medicaid plan because AHCA has reasonably determined that ABA is experimental and not medically necessary for children with autism and ASD. Finally, Defendant argues that the process AHCA used to determine that ABA is experimental was not arbitrary and capricious.

Plaintiff K.G. filed his Complaint on February 28, 2011. (D.E. 1.) On March 10, 2011, Plaintiff K.G. filed his First Amended Motion for Preliminary Injunction. (D.E. 10.) Magistrate Judge John J. O'Sullivan held a hearing on the motion July 18, 2011 ( see D.E. 36, 44, 57) and issued a report recommending the Court grant the motion (D.E. 45). On November 1, 2011, the Court adopted the Report and Recommendation of Magistrate Judge O'Sullivan and directed Defendant to “provide Medicaid coverage for K.G.'s ABA therapy as prescribed by his treating physician.” (Preliminary Injunction Order, D.E. 74.) The Court denied Defendant's motion for reconsideration (D.E. 82) of the Court's Preliminary Injunction Order on February 10, 2012 (D.E. 97).

On September 12, 2011, Plaintiff K.G. filed his First Amended Complaint, in which I.D. and C.C. were added as Plaintiffs. (D.E. 63.) Because I.D. and C.C. were added as Plaintiffs after Plaintiff K.G. filed his motion for a preliminary injunction and the Magistrate Judge issued his Report and Recommendation on Plaintiff K.G.'s motion, Plaintiffs I.D. and C.C. were not included in the Court's Preliminary Injunction Order.

On October 21, 2011, the Parties cross-moved for summary judgment. (D.E. 70, 72.) The Court denied the Parties' motions on March 7, 2012, concluding that “because the question of whether the Agency was reasonable in its determination that ABA is experimental is a fact-intensive inquiry, and because material issues of fact exist regarding the efficacy of ABA and whether ABA is medically necessary, summary judgment must be denied.” (D.E. 105.)

The Court held a bench trial from March 20 through March 23, 2012. At trial, Plaintiffs called the following fact witnesses: Iliana Garrido, Plaintiff K.G.'s mother; Alexander Lorenzo, ABA provider to Plaintiff K.G.; and Dr. Roberto Lopez Alberola, Division Chief of Pediatric Neurology at Jackson Memorial Hospital in Miami, Florida, Associate Professor at the University of Miami Miller School of Medicine, and Plaintiff C.C.'s treating neurologist. Plaintiffs presented the transcripts of the deposition testimony for three additional fact witnesses: Michael Bolin, AHCA administrator in the Bureau of Medicaid Services; Darcy Abbot, AHCA administrator in the Bureau of Medicaid Services; and Karen Chang, Senior Management Analyst Supervisor for AHCA. In addition, Plaintiffs called three expert witnesses: Dr. Elza Vasconcellos, Director of the Autism Clinic, the Headache Center and Co–Director of the Neurogenetics Clinic at the Miami Children's Hospital in Miami, Florida, and the treating neurologist for Plaintiffs K.G. and I.D.; Dr. James Mulick, Professor in both the Department of Psychology and in the Department of Pediatrics at Ohio State University and a psychologist at The Children's Hospital in Columbus, Ohio; ³ and Dr. Jon Bailey, Professor Emeritus in the Department of Psychology at Florida State University and former editor of the Journal of Applied Behavior Analysis.

Defendant called Elizabeth Kidder, the AHCA Deputy Secretary for Medicaid, as the agency representative for AHCA. In addition, Defendant presented videotaped deposition testimony of its two expert witnesses: Dr. Robert Moon, the Chief Medical Officer and Deputy Commissioner Health Systems of the Alabama Medicaid Agency, and Dr. Alison Little, Evidence and Policy Advisor for the Center of Evidence-based Policy at Oregon Health and Science University.⁴

To obtain a permanent injunction, Plaintiffs must show by a preponderance of the evidence the following four factors: “(1) that [they have] prevailed in establishing the violation of the right asserted in his complaint; (2) there is no adequate remedy at law for the violation of this right; (3) irreparable harm will result if the court does not order injunctive relief; and (4) if issued, the injunction would not be adverse to the public interest.” Thomas v. Bryant, 614 F.3d 1288, 1317 (11th Cir.2010); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 n. 10 (11th Cir.2007) (stating that “[w]hether a permanent injunction is appropriate ... turns on whether the plaintiff can establish by a preponderance of the evidence that this form of equitable relief is necessary”).

Based on the following facts that were established at trial through testimony and exhibits and facts that were stipulated by the Parties in their Amended Joint Pretrial Stipulation (D.E. 98–1), and based on the following conclusions of law, the Court finds that a permanent injunction shall be issued for the following reasons: ⁵

The State of Florida has chosen to participate in the federal Medicaid program and therefore “must comply with federal statutory and regulatory requirements.” Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1232 (11th Cir.2011). Under the federal Medicaid act, states must provide “early and periodic screening, diagnostic, and treatment services” (“EPSDT”) for Medicaid-eligible children under the age of 21. 42 U.S.C. § 1396a(a)(10)(A); 42 U.S.C. § 1396d(a)(4)(B).

K.G., I.D., and C.C. are minors under the age of 21 who, due to their disabling conditions and their parents' income levels, are Florida Medicaid recipients. During EPSDT screens,⁶ K.G., I.D., and C.C. were all diagnosed with autism or Autism Spectrum Disorder (“ASD”) and were all prescribed ABA by their treating neurologists. Autistic disorder, the full-blown condition, is one of five disorders falling under the umbrella of AutismSpectrum Disorder.⁷Autism is a complex neurodevelopmental disability that generally appears during the first three years of life and impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal communication, leisure or play activities, and learning.⁸⁹ ABA is a type of early intensive behavioral interaction (“EIBI”) health service that uses a structured one-on-one program to treat the behavioral problems associated with autism and ASD.¹⁰

Because Plaintiffs' conditions were discovered during EPSDT screens, the State of Florida is required to provide the children with any service described in 42 U.S.C. § 1396d(a) that is necessary to correct or ameliorate the children's conditions, whether or not the service is covered for adults under the State's Medicaid plan. 42 U.S.C. § 1396d(r)(5)¹¹; Moore, 637 F.3d at 1233–34;Smith v. Benson, 703 F.Supp.2d 1262, 1269 (S.D.Fla.2010); Rosie D. v. Romney, 410 F.Supp.2d 18, 26 (D.Mass.2006). Thus, in determining if AHCA's decision not to cover ABA for children with autism and ASD violates the EPSDT provisions in the Medicaid Act, this statutory framework presents two questions: (1) is ABA among those services which can be covered under 42 U.S.C. § 1396d(a), and (2) is ABA necessary to correct or ameliorate an illness or condition for a Medicaid recipient under age 21?

ABA falls within the scope of 42 U.S.C. § 1396d(...