A.R. ex rel. Root v. Dudek

• Decision Date: 30 May 2014
• Docket Number: Case No. 13–61576–CIV.
• Parties: A.R., by and through her next friend, Susan ROOT, et al., Plaintiffs, v. Elizabeth DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al., Defendants. United States of America, Plaintiff, v. The State of Florida, Defendants.
• Court: U.S. District Court — Southern District of Florida

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A.R., by and through her next friend, Susan ROOT, et al., Plaintiffs
v.
Elizabeth DUDEK, in her official capacity as Secretary of the Agency for Health Care Administration, et al., Defendants.

United States of America, Plaintiff
v.
The State of Florida, Defendants.

Case No. 13–61576–CIV.

United States District Court, S.D. Florida.

Signed May 30, 2014.

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Edward J. Grunewald, Jamie Ito, Jill B. Zaborske, Tallahassee, FL, Paolo G. Annino, Tallahassee, FL, Matthew Wilson Dietz, Matthew W. Dietz, Miami, FL, Veronica Vanessa Harrell–James, United States Attorney's Office, Miami, FL, Joy Levin Welan, U.S. Department of Justice, Washington, DC, for Plaintiffs.

Michael Garrett Austin, DLA Piper LLP (U.S.), Miami, FL, Andrew T. Sheeran, Leslei Gayle Street, Stuart Fraser Williams, Agency for Health Care Administration, Tallahassee, FL, George N. Meros, Jr., Gray Robinson, Tallahassee, FL, Jennifer Ann Tschetter, Caryl Kilinski, Department of Health, Tallahassee, FL, Harry Osborne Thomas, Brittany Adams Long, Thomas Ames Crabb, Radey Thomas Yon & Clark, P.A., Tallahassee, FL, for Defendants.

ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS

ROBIN S. ROSENBAUM, District Judge.

This matter is before the Court on Defendant the State of Florida's Motion for Judgment on the Pleadings. [ECF No.

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28]. The Court has reviewed the Motion, all supporting and opposing filings, and the case file and is otherwise fully advised in the premises. After consideration, the Motion for Judgment on the Pleadings in denied for the reasons set forth below.

I. BACKGROUND

On July 22, 2013, the United States of America, through the Department of Justice, brought a single-count action against the State of Florida for violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”). See ECF No. 1. The Complaint alleges that nearly two-hundred children with disabilities are unnecessarily segregated in various nursing facilities, far from their communities. Id. ¶¶ 1–5. The Complaint further asserts that the State of Florida has reduced private-duty nursing and personal-care services provided to children who live in the community. Following a six-month investigation, the Department of Justice (“DOJ”) brought this action because it determined that the State of Florida was in violation of the ADA, 42 U.S.C. §§ 12131 –12134, because it unjustifiedly segregated institutionalized children, and it adopted policies and practices that place other children with disabilities at serious risk of similar institutionalization. See id. ¶ 5. According to DOJ, it made several attempts to resolve the alleged violations, but, after engaging in negotiations with the State, DOJ determined that compliance could not be achieved voluntarily. Id. Consequently, on July 22, 2013, on behalf of the affected children, the United States filed the instant action seeking injunctive and declaratory relief as well as compensatory damages (the “DOJ Action”). See ECF No. 1.

Prior to the filing of the DOJ Action, in March of 2012, various children who have been diagnosed as “medically fragile” and who qualify for services through Florida's Medicaid program filed a class-action lawsuit against certain State of Florida agency heads as well as against eQHealth Solutions, Inc., the non-profit corporation that has contracted with the State of Florida to provide prior authorization of home health services. The lawsuit is styled A.R. et al. v. Dudek et al., Case No. 12–CV–60460 (S.D.Fla.) (the “Children's Case”). The plaintiffs in the Children's Case brought claims similar to those made by DOJ—claims for violations of the ADA. The Children's Case also alleged other additional claims¹ and sought a declaration by the Court that the State's and eQHealth's policies, regulations, actions, and omissions are unnecessarily institutionalizing members of the Plaintiff Class or putting Plaintiffs at risk of being placed into segregated facilities. See A.R. v. Dudek, Case No. 12–60460 at ECF No. 62. After pretrial litigation ensued, Plaintiffs in the Children's Case filed a Motion to Consolidate Cases with the DOJ Action. See A.R. v. Dudek, Case No. 12–60460 at ECF No. 192. Determining that the DOJ Action and the Children's Case involved common, complex issues of fact and law, this Court granted the Motion to Consolidate on December 6, 2013. See ECF No. 34.

Prior to consolidation of these cases, a third party, Disability Rights Florida, Inc., sought to intervene as a Plaintiff in the DOJ Action. The State opposed the Motion to Intervene, contending that Disability Rights Florida's interests were adequately represented by the existing parties

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to the litigation. See ECF No. 25. More specifically, the State averred that “[t]he United States of America has ample resources, institutional experience, and all possible incentives to prosecute this case with vigor.” Id. at 2.² In denying the Motion to Intervene, the Court noted that although its Complaint included additional facts that resulted from its own investigation, Disability Rights Florida's proposed complaint contained the same claims brought by DOJ and Plaintiffs in the Children's Case. The proposed complaint also sought the same relief sought by the parties to the pending action. See ECF No. 39. Finding that all of the plaintiffs' rights were adequately represented in the consolidated matter, the Court denied the Motion to Intervene.

Pending before the Court now is the State's Motion for Judgment on the Pleadings [ECF No. 28]. In the State's words, the motion presents “a single, dispositive question of law: has Congress authorized the Attorney General to sue under Title II of the Americans with Disabilities Act?” See ECF No. 28 at 2. The State contends that the answer to this question is “no” because the United States lacks standing to sue under Title II. In this regard, the State now makes a complete about-face from the position that it took in opposing the Motion to Intervene. Indeed, in seeking to have the Court declare that DOJ has no authority to bring its action under Tile II of the ADA, it espouses the opposite of its prior argument that intervention by Disability Rights Florida was not necessary because Plaintiffs' rights were adequately represented by the United States of America.

In support of its current position that DOJ lacks standing, the State notes that although Congress specifically authorized the Attorney General to sue under Titles I and III of the ADA, such express authorization is absent from Title II of the ADA. Nor, the State asserts, does Title VI of the Civil Rights Act of 1964, whose enforcement provision Title II incorporates, authorize suit by the Attorney General. Ultimately, as the State acknowledges, this issue implicates three statutes: Title II of the ADA, which incorporates enforcement provisions of the Rehabilitation Act of 1973, which in turn, incorporates provisions of Tile VI of the Civil Rights Act of 1964. According to the State, because no provision in Title II sets forth explicitly the authority of the Attorney General to sue, this fact alone is conclusive of the issue of standing. The State further contends that the statutes that Title II incorporates demonstrate that Congress did not authorize the Attorney General to seek enforcement of Title II of the ADA through litigation.

DOJ opposes the motion, arguing that the State's reading of the ADA is “wholly unsupported by the statute's text, structure, purpose, and history.” See ECF No. 226 at 2. According to DOJ, in enacting Title II of the ADA, Congress expressly incorporated the remedies and regulatory procedures used in the enforcement of Section 504 of the Rehabilitation Act of 1973 (codified at 29 U.S.C. § 794 ). And, those remedies, in turn, were derived from Title VI of the Civil Rights Act of 1964, which proscribes discrimination on the basis of race, color, or national origin by state and local government entities receiving federal funds. In further support of its position, DOJ points out that “Section 504 and Title VI was (and is) coordinated by the Attorney General through regulations

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directing agencies that administer federal funds to secure prompt and full compliance from funding recipients through (1) denial or termination of funding, and/or (2) referral to the Department of Justice to initiate litigation.” See ECF No. 226 at 2 (citing 28 C.F.R. §§ 42.401 –.415 ; 50.3 (Title VI); 28 C.F.R. § 41.5 (Section 504)). According to DOJ, Title II of the ADA thus incorporates the ability of the federal government to bring enforcement litigation.

DOJ also emphasizes the fact that, as directed by Congress, DOJ adopted regulations implementing Title II by establishing investigative and compliance procedures. See ECF No. 226 at 2 (citing 28 C.F.R. §§ 35.170 –.173 ). According to DOJ, the regulations of Title II provide that when voluntary compliance is not possible, the Attorney General can “take action to secure an appropriate remedy, including filing a lawsuit.” See id. (citing 28 C.F.R. § 35.174 ). In this regard, 28...