Filed: Sep. 20, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 12-13785 Date Filed: 09/20/2013 Page: 1 of 19 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-13785 _ D. C. Docket No. 1:11-cv-20684-JAL ILIANA GARRIDO, K.G. by and through his next friend, et al., Plaintiffs-Appellees, versus INTERIM SECRETARY, FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Elizabeth Dudek, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 20, 2013) Before HULL, MARTIN, C
Summary: Case: 12-13785 Date Filed: 09/20/2013 Page: 1 of 19 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-13785 _ D. C. Docket No. 1:11-cv-20684-JAL ILIANA GARRIDO, K.G. by and through his next friend, et al., Plaintiffs-Appellees, versus INTERIM SECRETARY, FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Elizabeth Dudek, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 20, 2013) Before HULL, MARTIN, Ci..
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Case: 12-13785 Date Filed: 09/20/2013 Page: 1 of 19
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13785
________________________
D. C. Docket No. 1:11-cv-20684-JAL
ILIANA GARRIDO,
K.G. by and through his next friend, et al.,
Plaintiffs-Appellees,
versus
INTERIM SECRETARY, FLORIDA AGENCY FOR
HEALTH CARE ADMINISTRATION,
Elizabeth Dudek,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 20, 2013)
Before HULL, MARTIN, Circuit Judges, and BOWEN,* District Judge.
*
Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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HULL, Circuit Judge:
Plaintiffs-Appellees K.G., I.D., and C.C., through their next friends, sued
Defendant-Appellant Elizabeth Dudek, in her official capacity as Interim Secretary
for the Florida Agency for Health Care Administration. Plaintiffs alleged that
Dudek violated the Medicaid Act by denying Medicaid coverage of applied
behavioral analysis to treat Plaintiffs’ autism spectrum disorders. After a four-day
bench trial, the district court granted Plaintiffs a permanent injunction, concluding
that Medicaid covered this treatment for the Plaintiffs. K.G. ex rel. Garrido v.
Dudek, 864 F. Supp. 2d 1314 (S.D. Fla. 2012). The district court subsequently
granted Plaintiffs a declaratory judgment. K.G. ex rel. Garrido v. Dudek, 1:11-cv-
20684-JAL (D.E. 144) (S.D. Fla. June 14, 2012). This appeal concerns the scope
of the permanent injunction and declaratory judgment. After review and with the
benefit of oral argument, we affirm in part, but reverse and remand to the district
court for modification of the permanent injunction and declaratory judgment.
I. BACKGROUND
To understand the issues in this appeal, we briefly outline the Medicaid
program and its coverage of certain medically necessary services.
A. Regulatory Framework
Medicaid is a cooperatively funded federal-state program designed to help
states provide medical treatment to their needy citizens. States devise and fund
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their own medical assistance programs, subject to the requirements of the federal
Medicaid Act, and the federal government provides partial reimbursement. See 42
U.S.C. §§ 1396b(a), 1396d(b). A state’s participation in the Medicaid program is
voluntary, but once a state chooses to participate it must comply with federal
statutory and regulatory requirements. See Alexander v. Choate, 469 U.S. 287,
289 n.1,
105 S. Ct. 712, 714 n.1 (1985). All states, including Florida, participate in
the Medicaid program. Florida administers its Medicaid program through the
Agency for Health Care Administration (“AHCA”). See Fla. Stat. §§ 409.901(2),
409.902.
Under the Medicaid Act, participating states must provide “early and
periodic screening, diagnostic, and treatment services” (“EPSDT”) for Medicaid-
eligible minors under the age of 21. 42 U.S.C. § 1396d(a)(4)(B). The EPSDT
program mandates four specific categories of services: screening, vision, dental,
and hearing services. 42 U.S.C. § 1396d(r)(1)–(4). Additionally, the catch-all
EPSDT provision in § 1396d(r)(5)—the most relevant to this appeal— mandates
that participating states provide to Medicaid-eligible minors “[s]uch other
necessary health care, diagnostic services, treatment, and other measures described
in [§ 1396d(a)] to correct or ameliorate defects and physical and mental illnesses
and conditions discovered by the screening services, whether or not such services
are covered under the State plan.” Id. § 1396d(r)(5).
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In turn, § 1396d(a) lists 29 covered categories of care and services, including
preventive and rehabilitative services. Id. § 1396d(a)(13). Thus, under
§ 1396d(r)(5), a state must provide a service listed in § 1396d(a) to a Medicaid-
eligible minor—even if the state does not provide that service to Medicaid-eligible
adults—if the service is necessary to “correct or ameliorate” a condition or defect
discovered during an EPSDT screen.
Another relevant component of the federal Medicaid Act is its comparability
requirement provision, which ensures equitable treatment of beneficiaries. Under
this provision, “the medical assistance made available to any [eligible] individual
. . . shall not be less in amount, duration, or scope than the medical assistance made
available to any other such individual.” 42 U.S.C. § 1396a(a)(10)(B)(i); see also
id. § 1396a(a)(10)(B)(ii).
However, federal regulations provide that each service covered by Medicaid
“must be sufficient in amount, duration, and scope to reasonably achieve its
purpose” and the state Medicaid agency “may place appropriate limits on a service
based on . . . medical necessity.” 42 C.F.R. § 440.230. Although neither the
Medicaid Act nor its implementing regulations explicitly define the standard of
“medical necessity,” “it has become a judicially accepted component of the federal
legislative scheme.” Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1232 (11th
Cir. 2011). The Medicaid Act and its implementing regulations grant the authority
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to the states to set reasonable standards for the terms “necessary” and “medical
necessity.” See 42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 440.230(d); see also Moore,
637 F.3d at 1255. Thus, as permitted by the federal Medicaid Act, Florida statute
authorizes Medicaid coverage for only those services that are “medically
necessary.” Fla. Stat. §§ 409.905, 409.906. Under Florida’s regulatory scheme,
“medically necessary” or “medical necessity” means that
the medical or allied care, goods, or services furnished or ordered
must . . . [m]eet 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
confirmed diagnosis of the illness or injury under treatment, and not in
excess of the patient’s needs;
3. Be consistent with generally accepted professional medical
standards as determined by the Medicaid program, and not
experimental or investigational;
4. Be reflective of the level of service that can be safely furnished,
and for which no equally effective and more conservative or less
costly treatment is available statewide; and
5. Be furnished in a manner not primarily intended for the
convenience of the recipient, the recipient’s caretaker, or the provider.
Fla. Admin. Code r. 59G-1.010(166)(a).
Accordingly, for a treatment to be “medically necessary” and covered by
Florida Medicaid, the treatment must be, inter alia, “individualized [and] specific,”
“not in excess of the patient’s needs,” and “not experimental.” Id. A treatment is
“experimental” when, for example, “[r]eliable evidence shows that the consensus
among experts regarding the drug, device, or medical treatment or procedure is that
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further studies or clinical trials are necessary to determine its maximum tolerated
dose, toxicity, safety, or efficacy as compared with the standard means of treatment
or diagnosis.” Fla. Admin. Code r. 59G-1.010(84)(a)3.
Florida’s Medicaid coverage of behavioral health services is found at Florida
Administrate Code rule 59G-4.050, which incorporates by reference the Florida
Medicaid Community Behavioral Health Services Coverage and Limitations
Handbook (the “Handbook”). See Fla. Admin. Code r. 59G-4.050(2)(3). The
Handbook delineates the specific behavioral health services that are covered by
Florida’s Medicaid program. As relevant here, a portion of the Handbook, entitled
“Service Exclusions,” stated that “Medicaid does not pay for community
behavioral health services for treatment of autism [or] pervasive developmental
delay.” Handbook Rule 2-1-4.
B. Factual Background
Plaintiffs K.G., I.D., and C.C. are minors under the age of 21who receive
Florida Medicaid due to their disabling conditions and their parents’ income status.
All three Plaintiffs were diagnosed with autism or autism spectrum disorders
(“ASD”) 1 during EPSDT screens and were all prescribed applied behavioral
analysis (“ABA”) treatment by their treating physicians. ABA is a type of early
1
Full-blown autism “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.” Autism is one condition in a spectrum of other pervasive development
disorders, collectively called autism spectrum disorders (“ASD”).
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intensive behavioral interaction health service that uses a structured, one-on-one
program to treat the behavioral problems associated with ASD.
Because Plaintiffs’ conditions were discovered during EPSDT screens,
Florida Medicaid must provide any treatment “necessary” “to correct or
ameliorate” those conditions, whether or not the treatment is covered by the state’s
plan. See 42 U.S.C. § 1396d(r)(5). As noted above, such services were excluded
from Florida Medicaid coverage as memorialized in Handbook Rule 2-1-4.
Furthermore, after the lawsuit was filed, AHCA determined that community
behavioral health services like ABA were experimental and thus not medically
“necessary” for the treatment of ASD. See Fla. Admin. Code r. 59G-
1.010(166)(a)3. In accordance with its policy at that time, AHCA denied
Plaintiffs’ requests for Medicaid coverage of ABA treatment.
C. Procedural History
Plaintiff K.G., through his next friend, Iliana Garrido, filed his complaint on
February 28, 2011 against Elizabeth Dudek, the Secretary of AHCA and the State
of Florida’s Medicaid administrator. K.G. alleged that, under 42 U.S.C. § 1983,
AHCA’s denial of ABA treatment violated the Medicaid Act’s EPSDT provision
and comparability provision.
In his complaint, K.G. sought: (1) a declaration that the Handbook’s
exclusion of behavioral health services for treatment of ASD violates the Medicaid
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Act; and (2) a preliminary and permanent injunction directing AHCA to: (a) amend
the Handbook “to delete the exclusion of behavioral health services for treatment
of autism and pervasive developmental delay”; (b) amend the Handbook “to
include coverage of medically necessary behavioral health services, including
ABA, for treatment of autism spectrum disorders in children and youth under age
21”; and (c) “[e]nsure that Plaintiff receives Medicaid coverage for ABA therapy
consistent with the recommendations of his treating physician.”
On March 10, 2011, K.G. filed his First Amended Motion for Preliminary
Injunction. After a hearing, a magistrate judge issued a report recommending the
district court grant the motion. On November 1, 2011, the district court adopted
the magistrate judge’s report and directed the Secretary to “provide Medicaid
coverage for K.G.’s ABA therapy as prescribed by his treating physician.” K.G.
ex rel. Garrido v. Dudek, 839 F. Supp. 2d 1254, 1268 (S.D. Fla. 2011). This
preliminary injunction only addressed K.G.’s claims.
Meanwhile, on September 12, 2011, K.G. filed his First Amended
Complaint, in which I.D. and C.C. were added as plaintiffs seeking the same relief
as K.G.
On October 21, 2011, the parties filed cross-motions for summary judgment.
The district court denied the motions, finding disputed issues of fact concerning
AHCA’s determination that ABA treatment was experimental, and set the case for
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a bench trial.
Evidence adduced at the bench trial included testimony from AHCA
employees concerning the agency’s process for determining whether a certain
treatment or service should be covered under Florida’s Medicaid plan. K.G. ex
rel. Garrido v. Dudek, 864 F. Supp. 2d 1314, 1322 (S.D. Fla. 2012). AHCA
employees testified further that the standard process was not followed in the
agency’s determination of whether ABA was experimental. Id. at 1322–24.
Plaintiffs presented evidence from numerous experts that ABA is the standard
means of treating ASD. Id. at 1325–26. Plaintiffs also presented evidence
concerning the necessity of ABA treatment in Plaintiffs’ individual cases. Id. at
1327.
After trial, the district court announced from the bench that it would grant
Plaintiffs a permanent injunction. The district court concluded that ABA falls
within the scope of 42 U.S.C. § 1396d(a)(13) as a preventive or rehabilitative
service, and thus the state of Florida is required to provide that service to
Medicaid-eligible minors under age 21 if necessary to correct or ameliorate a
condition discovered in an EPSDT screen under § 1396d(r)(5). Further, the
district court found “that applied behavioral analysis is medically necessary and
not experimental, as defined under Florida statutory and administrative law and
federal law.” Consequently, the “determination by AHCA that ABA is
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experimental was unreasonable in its process, was arbitrary and capricious and
unreasonable in its conclusion.”
Based on these findings, the district court concluded that Plaintiffs had
clearly established that Florida’s exclusion of ABA for Medicaid-eligible minors
with ASD violated the EPSDT and comparability provisions of the federal
Medicaid Act. The district court stated that “[t]he Medicaid population of children
diagnosed with autism and/or autism spectrum disorder [is] deserving and will be
given ABA treatment in the state of Florida.” The district court found further
that there is irreparable injury if the Plaintiffs and all persons under 21
who receive Medicaid assistance in the state of Florida do not receive
applied behavioral analysis treatment, those persons under 21 who
have been diagnosed with autism and/or autism spectrum disorder.
Therefore, as of this moment, I enjoin the Defendants from
enforcing the [Handbook] Rule 2-1-4 as it relates to autism, and the
State of Florida is hereby ordered to provide ABA treatment when it is
appropriately prescribed by a medical professional immediately.
The district court said that its oral ruling would be supplemented by a written
order.
A few days later, the district court entered an order issuing the permanent
injunction. In that order, the district court restated its findings that “ABA is
‘medically necessary’ and is not ‘experimental’ as defined under Florida
administrative and federal law,” K.G. ex rel. Garrido, 864 F. Supp. 2d at 1320, and
“that the determination by AHCA that ABA is experimental was arbitrary,
capricious, and unreasonable both in its process and in its conclusion,” id. at 1321–
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22.
In light of its findings, the district court concluded that Plaintiffs had
satisfied all four factors necessary to obtain a permanent injunction, because: (1)
Plaintiffs had established AHCA’s exclusion of ABA coverage violated the
Medicaid Act; (2) “there is no adequate remedy at law for the violation of this
right”; (3) “there would be irreparable injury to Plaintiffs and all Medicaid-eligible
minors in Florida who have been diagnosed with autism or ASD if these children
do not receive ABA pursuant to this injunction”; and (4) the public interest
weighed in favor of issuing the injunction and further, “paying for the cost of ABA
for autistic children will ultimately save public funds.” Id. at 1327; see also Angel
Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008)
(describing four-factor test for obtaining a permanent injunction).
The district court ordered the following relief:
1. As of 10:50 a.m. on March 26, 2012, Defendant is enjoined
from enforcing [Handbook] Rule 2-1-4 as it relates to autism, Autism
Spectrum Disorder, and Applied Behavioral Analysis treatment.
2. As of 10:50 a.m. on March 26, 2012, the State of Florida is
hereby ordered to provide, fund, and authorize Applied Behavioral
Analysis treatment to Plaintiffs K.G., I.D., and C.C., as well as to all
Medicaid-eligible persons under the age of 21 in Florida who have
been diagnosed with autism or Autism Spectrum Disorder, as
prescribed by a physician or other licensed practitioner.
3. Defendant shall notify all community behavioral health services
providers enrolled in the Medicaid program that ABA is now a
covered service for children who have been diagnosed with autism or
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Autism Spectrum Disorder.
4. Defendant shall notify all physicians enrolled in the Medicaid
program who may provide EPSDT screens that ABA is now a covered
service for children who have been diagnosed with autism or Autism
Spectrum Disorder.
5. Defendant shall designate an authorization code for ABA
treatment and notify all persons in [sic] listed in numbers 3 and 4 of
such designation.
6. Defendant shall take whatever additional steps are necessary for
the immediate and orderly administration of ABA treatment for
Medicaid-eligible persons under the age of 21 who have been
diagnosed with autism or Autism Spectrum Disorder.
7. Defendant shall certify in an affidavit filed with the Court
within seven (7) calendar days that numbers 3 through 6 of this Order
have been accomplished.
K.G. ex rel. Garrido, 864 F. Supp. 2d at 1327–28.
The district court also stated that “[t]he [c]ourt will address Plaintiffs’ claims
regarding a declaratory judgment in a forthcoming Order.” Id. at 1327 n.28.
Two months later, the district court directed the parties to file status reports
concerning their respective positions on a declaratory judgment, and the parties
complied. Plaintiffs’ status report included a 42-paragraph proposed declaratory
judgment order. Three days later, the district court marked through the word
“proposed” in the heading of Plaintiffs’ proposed declaratory judgment order and
signed and entered that document as an order of the court.
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II. STANDARD OF REVIEW
“We review the decision to grant an injunction and the scope of the
injunction for abuse of discretion,” Angel Flight of Ga., Inc., 522 F.3d at 1208, but
we “review the district court’s underlying legal conclusions de novo,” Am. Fed. of
State, Cnty., & Mun. Emps. v. Scott, 717 F.3d 851, 862 (11th Cir. 2013).
Similarly, we review the district court’s grant of declaratory relief for an abuse of
discretion. See Frulla v. CRA Holdings, Inc.,
543 F.3d 1247, 1251 (11th Cir.
2008). Under that abuse-of-discretion standard, “we will leave undisturbed a
district court’s ruling unless we find that the district court has made a clear error of
judgment, or has applied the wrong legal standard.” Ameritas Variable Life Ins.
Co. v. Roach,
411 F.3d 1328, 1330 (11th Cir. 2005).
III. DISCUSSION
At the outset we note that Defendant Dudek does not challenge either
Plaintiffs’ entitlement to ABA treatment as a covered Medicaid service or that
section of the permanent injunction invalidating the Handbook Rule excluding
ABA treatment from Medicaid coverage.
Rather, Dudek appeals the scope of the permanent injunction and declaratory
judgment, contending that both go beyond what was necessary to afford Plaintiffs
complete relief. Dudek argues that the district court entered an injunction that
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impermissibly provides that all autistic Medicaid recipients under the age of 21
with a prescription for ABA are automatically entitled to ABA treatment,
regardless of the medical necessity of ABA treatment in any individual case. Thus,
Dudek contends, the injunction interferes with Florida’s policy decision to limit
Medicaid coverage to medically necessary services, and it deprives AHCA of its
statutory responsibility to assess the medical necessity of prescribed services in
individual cases. Plaintiffs respond that the permanent injunction and declaratory
judgment do not eliminate individual medical necessity determinations.
It is axiomatic that “[i]njunctive relief should be limited in scope to the
extent necessary to protect the interests of the parties.” Keener v. Convergys
Corp., 342 F.3d 1264, 1269 (11th Cir. 2003). “That rule dovetails with the
requirement of Federal Rule of Civil Procedure 65(d) that every injunction state in
specific terms and reasonable detail the conduct that it restrains or requires.” Alley
v. U.S. Dep’t of Health & Human Servs.,
590 F.3d 1195, 1205 (11th Cir. 2009)
(citing Fed. R. Civ. P. 65(d)). “[T]he specificity requirements of Rule 65(d) are
‘designed to prevent uncertainty and confusion on the part of those faced with
injunctive orders, and to avoid the possible founding of a contempt citation on a
decree too vague to be understood.’” S.E.C. v. Goble,
682 F.3d 934, 950 (11th
Cir. 2012) (quoting Schmidt v. Lessard,
414 U.S. 473, 476,
94 S. Ct. 713, 715
(1974)). “But, we will not apply Rule 65(d) rigidly, and we determine the
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propriety of an injunctive order by inquiring into whether the parties subject
thereto understand their obligations under the order.” Id. (internal quotation marks
omitted).
We turn to the text of the permanent injunction. It is true that the district
court’s order for injunctive relief is broadly worded and is not explicitly limited to
the provision of “medically necessary” ABA treatment for eligible recipients. In
the final section of the injunction, Paragraph 2 states that “the State of Florida is
hereby ordered to provide, fund, and authorize Applied Behavioral Analysis
treatment to Plaintiffs K.G., I.D., and C.C., as well as to all Medicaid-eligible
persons under the age of 21 in Florida who have been diagnosed with autism or
Autism Spectrum Disorder, as prescribed by a physician or other licensed
practitioner.” K.G. ex rel. Garrido, 864 F. Supp. 2d at 1328 (emphasis added).
Likewise, Paragraph 6 states that “Defendant shall take whatever additional steps
are necessary for the immediate and orderly administration of ABA treatment for
Medicaid-eligible persons under the age of 21 who have been diagnosed with
autism or Autism Spectrum Disorder.” Id. (emphasis added).
Despite this broad language in the district court’s published ruling, we must
also consider the context in which this relief was ordered. Alley, 590 F.3d at 1208
n.12 (“Although the parties to an injunction must be able to ascertain from the four
corners of the order precisely what acts are forbidden, that rule does not preclude
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an examination of context.” (citations omitted)). Earlier in the order, the district
court found that “ABA is ‘medically necessary’ and is not ‘experimental’ as
defined under Florida administrative law and federal law.” K.G. ex rel. Garrido,
864 F. Supp. 2d at 1320. After this statement, the district court cited Florida’s
administrative rule delineating what is required for a treatment to be “medically
necessary,” and specifically cited subsection 3 stating that a medically necessary
treatment may not be experimental. Id. (citing Fla. Admin. Code r. 59G-
1.010(166)(a)(3) (in order to be “medical necessary” or a “medical necessity,”
treatment must “[b]e consistent with generally accepted professional medical
standards as determined by the Medicaid program, and not experimental or
investigational”)). Moreover, the district court followed this finding and citation
with the statement that “[t]he role of the [district c]ourt is to decide whether
AHCA’s determination that ABA is experimental was reasonable.” Id. at 1321
(emphasis added). Plainly, despite the district court’s broad order of relief at the
end of the permanent injunction, the district court appeared to confine its analysis
to a determination of whether ABA is experimental—one consideration, among
many, to be used in AHCA’s determination of whether a treatment is medically
necessary in an individual patient’s case. See Fla. Admin. Code r. 59G-
1.010(166)(a).
Indeed, the question of individual medical necessity determinations—other
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than those of Plaintiffs K.G., I.D., and C.C.—was explicitly not before the district
court. In the parties’ amended joint pretrial stipulation, the parties agreed that a
settled issue of law was that “[f]or any individual Medicaid recipient, the recipient
has the burden of proving that a service is medically necessary.” Instead, the focus
of the evidence at the bench trial and the district court’s findings was whether
ABA treatment is experimental and consequently whether AHCA could
categorically deny this form of treatment as being, in its judgment, medically
unnecessary. Still, the language of the district court’s ruling made it appear that
the district court had made a wholesale determination that ABA is always
medically necessary to treat a Medicaid-eligible minor’s ASD.
However, in denying Dudek’s motion for a partial stay pending this appeal,
the district court said that its permanent injunction did not eliminate individual
medical necessity determinations. We accord some weight to the fact that the
district court charged with enforcing the injunction is enforcing the injunction in
the way that Dudek advocates. See Alley, 590 F.3d at 1202 (“[G]reat deference is
due the interpretation placed on the terms of an injunctive order by the court who
issued and must enforce it.’” (quoting Williams v. City of Dothan, Ala., 818 F.2d
755, 760 (11th Cir. 1987))). In fact, the district court has already denied one
motion for contempt filed by pro se nonparties and premised on the
misunderstanding that the district court’s permanent injunction order automatically
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entitled those nonparties to Medicaid coverage of ABA treatment.
In sum, the district court did not abuse its discretion in issuing a permanent
injunction that overrules AHCA’s determination that ABA is experimental (and
AHCA’s larger determination that ABA is never medically necessary) and requires
Medicaid coverage of this treatment. And it is apparent that the district court is
enforcing the injunction in that manner. However, because the language in the
injunction’s final section is out of step with the district court’s analysis and what
was actually decided, we vacate the injunction in part and remand to the district
court to modify Paragraphs 2 and 6 to read as follows:
2. As of 10:50 a.m. on March 26, 2012, the State of Florida is
hereby ordered to provide, fund, and authorize Applied Behavioral
Analysis treatment to Plaintiffs K.G., I.D., and C.C.. 2
....
6. Defendant shall take whatever additional steps are necessary for
the immediate and orderly administration of ABA treatment to
Plaintiffs K.G., I.D., and C.C.. 3
For the same reasons described above, we vacate in part and remand the
declaratory judgment with directions that the district court amend the declaratory
judgment as follows:
2
This modification deletes the part of paragraph 2 that formerly stated: “as well as to all
Medicaid-eligible persons under the age of 21 in Florida who have been diagnosed with autism
or Autism Spectrum Disorder, as prescribed by a physician or other licensed practitioner.”
3
This modification deletes the part of paragraph 6 that formerly stated: “for Medicaid-
eligible persons under the age of 21 who have been diagnosed with autism or Autism Spectrum
Disorder.”
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On page 6 of the declaratory judgment, the following should be added to the
declaration concerning EPSDT:
29. This declaration does not eliminate the Defendant’s authority to
make individual medical necessity determinations, in accordance with
governing law and regulations.
On page 7 of the declaratory judgment, the following should be added to the
declaration concerning comparability:
43. This declaration does not eliminate the Defendant’s authority to
make individual medical necessity determinations, in accordance with
governing law and regulations.
IV. CONCLUSION
For the reasons set forth above, we affirm in part, but reverse and remand to
the district court for modification of the injunction and declaratory judgment in the
manner prescribed above. The district court should publish the permanent
injunction order, as revised, in its entirety and the declaratory judgment order, as
revised, in its entirety so that each of the complete orders is available in one
document.
AFFIRMED IN PART; VACATED AND REMANDED IN PART. 4
4
Plaintiffs’ motion for leave to file supplemental briefing, or, alternatively, to strike
portions of Dudek’s reply brief, carried with the case, is DENIED.
19
