Florida Medicaid Ruling

Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 1 of 153
IN THE UNITED STATE! DISTRICT COURT

FO R TH E SO U TH ER N D ISTR IC T O F FL O R ID A
CA SE N O.05-23037-ClV-JORDAN/O 'SULLIVA N
FL O R ID A PED IA TR IC SO C IET Y/T H E
FLOR IDA CHA PTER OF TH E AM ERICA N
ACADEM Y O F PEDIATRICS;FLO RIDA
A C A D EM Y O F PED IA TR IC D EN TISTR Y ,
IN C .,et al.,
Plaintiffs,
VS.
LIZ D U D E K ,et.aI.,
D efendants.
A M EN D ED FIN D IN G S O F FA C T A N D C O N C LU SIO N S O F LA W
This is a class and representative action in w hich plaintiffs seek declaratory
and injunctive relief from Florida officials responsible for the state's M edicaid
program . Plaintiffs contend that the Florida M edicaid program has failed to
provide Florida children w ith access to m edicaland dentalcare in accordance w ith
the EPSD T, R easonable Prom ptness, Equal A ccess, or O utreach requirem ents
undertheM edicaid Act,42 U.S.C.j 1396etseq.

1.PR O C E DU R AL H ISTO R Y
Thisaction w as initiated in 2005 by the Florida Pediatric Society,the Florida
A ssociation ofPediatric D entists,and on behalf ofa num ber of individualchildren
in the M edicaid program by their parents or legalguardians. The suitw as brought
against the Secretary of the Florida A gency for H ealth Care A dm inistration
($$AHCA''), the Secretary of the Florida Department of Children and Family

iA llam endm ents to the priorfindingsoffactand conclusions oflaw are in bold type.
Services(tDCF''),andtheSurgeon Generaland agency head oftheDepartmentof

Hea1th (DOH''),in theiroftscialcapacities.z AHCA tisdesignated asthe single
state agency authorized to m ake paym ents''for covered m edicalgoods and services
under Title X1X of the SocialSecurity Act,to the extent that such services are
provided to eligible individualsby qualified M edicaid providers. See Fla.Stat.j

409.902. D CF is responsible for m aking M edicaid eligibility determ inations under
Floridalaw. See Fla.Stat.j 409.963. DOH hasbeen delegatedtheresponsibility

to administer the Children's M edical Services (ttCM S'') program, which is
responsible for ensuring that M edicaid children w ith special health care needs
receiveM edicaid services.3 F1a.Stat jj391.016,391.021(3),391.026.

.
Plaintiffs' second am ended com plaint alleged various violations of the
federal M edicaid statutes, arguing those statutes provide them a private right of
action under 42 U.S.C. j 1983. Specifically,the second amended complaint
alleged violations of (1) 42 U.S.C. j 1396a(a)(8) and (a)(10), requiring that

children receive m edical and dental services know n as the Early Periodic
Screening Diagnosisand Treatment(CIEPSDT'')(tCEPSDT Requirements''),and to
do so with reasonable promptness (Count1) (ssReasonable Promptness'');(2) 42

U.S.C.j 1396a(30)(A),requiring thatrates for reimbursing medicaland dental
providers be set,inter alia,so as to secure access to care for children thatis equal
tothatofotherchildren inthesamegeographicalarea(Count1l)(sEqualAccess'');
(3) 42 U.S.C.j 1396u-2(b)(5) regarding l-IM os (Count111);and (4)42 U.S.C.
j 1396a(a)(43) requiring that the states conduct outreach programs to inform
individuals determ ined to be eligible for M edicaid of the availability of services
2For shorthand, 1w illsom etim es referto the agenciesasdefendants in this Order.
3 tttchildren w ith specialhealth care needs'm eans those children younger than 21 years
of age who have chronic physical,developm ental,behavioral,or em otionalconditions and w ho
also require health care and related services of a type or am ountbeyond thatw hich is generally
requiredbychildren.''Fla.Stat.j391.021(2)(2009).
and to insure such patients requesting those services are able to receive them
(Count1V)(outreach'').
D efendants filed a m otion to dism iss all four counts, arguing that the
M edicaid A ct did notprovide privately enforceable rights perm itting such actions
to beenforcedunder42U.S.C.j 1983. On January 11,2007,ldenied themotion

to dism iss as to three ofthe four claim s,dism issing C ount III because 1 found that
noenforceablerightexistsunderj 1396u-2(b)(5).D.E.40.
Follow ing discovery, the issue of class certification w as referred to U .S.
M agistrate Judge M cA liley for a report and recom m endation. O n July 30,2008,
M agistrate Judge M cA liley recom m ended that certain additional plaintiffs be
perm itted to intervene. I affirm ed thatruling as to K .V .,S.C.,K .S.,and S.B .only.
D .E.268. M agistrate Judge M cA liley,follow ing briefng and argum ent,found the
requirem entsofRule 23 satisfied in an extensive reportand recom m endation. D .E.
613. Afterfurtherbriefing and argument,loverruled defendants'objections and

certified a class for declaratory and injunctive relief consisting of allFlorida
children eligible for EPSD T services under the M edicaid A ct. D .E.671. A s part
of that decision,l found that at least one nam ed plaintiff had standing to advance
each of the three rem aining counts w ith respect to each of defendants. See Class
C ertification O rder. D .E .671,p.3-5. D efendants filed a request for interlocutory
review ofthe classcertification order,w hich w asdenied by the Eleventh Circuiton

D ecem ber 1,2009.
Priorto trial,defendantsfiled amotion forsummaryjudgmentarguing that

the M edicaid statutes failed to provide a private right of action and that none of
plaintiffs had standing. I denied this m otion on Septem ber 30,2009. D .E.672.
Trial began on D ecem ber 9, 2009, consisted of 94 trial sessions, and ended in
January of 2012. Follow ing the close of the evidence, the parties subm itted
proposed findings of factand conclusions of law and presented closing argum ents
on M arch 26-27,2012. These sndings relate to defendants'liability and plaintiffs'
entitlementto declaratory relief. Federaljurisdiction exists under 28 U.S.C.j

1331,j 1343(a)(3) and j 1343(a)(4),as this is a civilaction under 51983 for
declaratory and injunctive reliefunder Title X1X ofthe SocialSecurity Act,42
U S.C.jj 1396 c/seq.
4
.
ll.SUM M ARY O F PARTIES'PO SITIO N S ON ISSUES TRIED

Plaintiffs contend thatthe Florida M edicaid program has failed to provide
Florida children w ith access to m edical and dental care in accordance w ith the
EPSD T,R easonable Prom ptness, Equal A ccess, or O utreach requirem ents under
the M edicaid A ct. Plaintiffs allege that a num ber of structural, tinancial, and
adm inistrative barriers result in children notreceiving the access to care to w hich
they are entitled to underfederallaw . Plaintiffs categorize these violations into six
categories:
First, plaintiffs subm it that Florida's M edicaid reim bursem ent stnlcture is
fundam entally inconsistent w ith the Federal M edicaid A ct. Florida determ ines
reim bursem ent,plaintiffs argue,by a ttconversion ratio''w ith respectto the setting
of reimbursem ent rates for m ost m edical procedures so as to assure ddbudget

neutrality,'' w hile failing to consider whether such rates are suffcient to m eet
federalrequirem ents. Plaintiffs contend this is a per se stnlcturalviolation of the
guarantees ofaccessto EPSDT services,to receive required care with reasonable

prom ptness,and the rightto equalaccessto care.
Second,plaintiffscontend thatFlorida hasviolated the federalM edicaid Act

by wrongly term inating thousands ofyoung children from eligibility who were in
fact entitled to scontinuous eligibility.'' M oreover,when eligibility was restored,
these children w ere often itswitched''to a differentprim ary provider than the one
4A the partieshave agreed,
s
anadditionalhearingontheissueofinjunctivereliefwillbe
held ata laterdate.
4
whom the parenthad initially selected. Plaintiffs contend these issues affecttens
ofthousands ofM edicaid children each year,who are denied theirrightsto EPSD T
services and theirrightto receive such care w ith reasonable prom ptness.
Third, plaintiffs argue the children are not receiving the prim ary care to
w hich they w ere entitled under the EPSD T Requirem ents,as evidenced by the fact
that hundreds of thousands ofchildren do notreceive any preventative health care
according to the official EPSD T reports subm itted to the federal governm ent.
M oreover, the percentage of children receiving certain aspects of preventative
health care, such as lead blood screens, w as extrem ely low . Plaintiffs point to
legislative budgetrequests(LBRs'')thatAHCA has submitted to the legislature

calling for increases in reim bursem ent for child health check-ups, blood lead
screening and outreach,as evidence thatFlorida's program w as not in com pliance
w ith federallaw .
Fourth, plaintiffs m aintain that M edicaid children face long delays and
unreasonable obstacles in receiving access to specialist care in m any areas of the
states. Receiving specialistcare,plaintiffs argue,is a federalright as partofthe
EPSDT Requirementsunder42 U.S.C.j l396d(r)(5),the reasonable promptness

provisions, and under 42 U.S.C. j 1396a(a)(43) for children requesting such
services. Plaintiffs point to adm issions m ade by senior AH CA officials that
Florida M edicaid recipients face a criticallack ofaccess to specialistcare,surveys
of AH CA area offices reflecting acute shortage of specialists,and the testim ony of
both prim ary care physicians and specialists with respect to the difficulties and
delays in nding specialiststo treatchildren on M edicaid.
Fifth,plaintiffs contend that Florida fails to provide children w ith access to
dental care, w hich is one of the EPSD T Requirem ents under the M edicaid A ct.
They point to ofscial govem m ent reports show ing Florida w as ranked the w orst
state in the country w ith only 21% of children on M edicaid receiving dentalcare.
Plaintiffs argue that low reim bursem ent rates for Florida dentists w ho accept
M edicaid children w ere the principal reason for this failure. A s a result, they
argued,m any dentists refused to treatM edicaid children.
Sixth,plaintiffs contend thatthe state hasviolated j 1396a(a)(43)by using

an application form thatw as unnecessarily com plex and elim inating the statew ide
outreach program designed to infol'm M edicaid-eligible children of their rights to
services. Plaintiffs argue thatover 250,000 Florida children are eligible forbutnot
enrolled in the M edicaid program .
D efendants argue that the nam ed plaintiffs lack standing because they did
not have a problem receiving needed care and face no reasonable prospect of a
future denialofcare. Defendantsfurtherobjectto the certification ofa class on

m ultiple legal grounds, including that plaintiffs have failed to dem onstrate
adequate evidence ofinjury. Defendants also contend thatthe relevantfederal

M edicaid statutes do not create enforceable private rights of action. They argue
the statutes lack clarity as to the m eaning oftreasonable prom ptness''and ddm edical
assistance.''
A s to the m erits, defendants argue no system ic problem s existed in the

Florida s4edicaid prograna. D efendants m aintain that children w ho needed care
yvere able to receive it. Indeed,defendants argue, plaintiffs failed to prove any
injuriesforsome claimssuch asoutreach tothe uninsured,difficultiesin applying

for M edicaid, and issues w ith continuous eligibility or delays in activation of
new borns.
W ith regard to any delays in receiving m edicalcare,defendants argued that

delays w ere not closely connected to defendants' custom or policy,nor that the
delays w ere w idespread and pervasive enough to supporta fnding of a custom or

class-w ide liability. D efendants further contended that plaintiffs' position w as
based on overstated statisticaland unreliable anecdotalinform ation.
D efendants assert that plaintiffs failed to prove they w ere harm ed by low
providerreim bursem ents. They contend thatA H CA 'S priorLB RS are notadequate
evidence that program funding w as so low it violated federal law . D efendants

sim ilarly claim thatsurveys of the state's problem s in accessing specialist care are
inaccurate. They argue there is no reliable proofto show the availability ofcare in
a geographic region. They fault plaintiffs for failing to provide a quantitative
analysis or benchm arks againstw hich the courtcould com pare access to M edicaid
w ith access to private insurance. lnstead,they argue thatplaintiffs'proof consists
of isolated anecdotesthatfailto supporttheirclaim s.
In addition,defendants argued thatthe state now doesa betterjob through

m anaged care and other initiatives in m aking sure children receive access to care,
claim ing that the record show s abundant outreach by the state and its partners.
They argue im provem ents have occurred, such as a recent increase in dental
reim bursem ent.

111.T H E N A M ED PLA IN TIFFS A N D STA N D IN G
A .LegalR equirem ents for Standing
To prosecute a case as a class action, Sdthe nam ed plaintiffs m ust have
standingg.j'' Vega v.T-M obile USA Inc.,564 F.3d 1256,1265 (11th Cir.2009)
(citationsomitted).ForaplaintifftohaveArticlell1standing:
(1)ghemustprovethathehasjsuffered an injury in fact-an invasion
ofalegally protected interestwhich is(a)concreteand particularized
and (b)actualorimminent,notconjecturalorhypothetical;(2)there
must be a causal connection between the injury and the conduct
complained of-the injury hasto be fairly traceable to the challenged
action ofthe defendant,and notthe resultofthe independentaction of
some third pal'ty notbefore the court;and (3)itmustbe likely,as

opposed to merely speculative,thatthe injury willbe redressed by a
favorable decision.
Bloedorn v.Grube,631F.3d 1218,1228 (11th Cir.2011)(citationsomitted). $$1n

essence,the question of standing is w hether the litigantis entitled to have the court
decide the m erits ofthe dispute or ofparticular issues.'' W arth v.Seldin,422 U .S.
490,498(1975).
Plaintiffs bear the burden ofestablishing the elem ents of standing. Lujan v.
Defenders of Wildlfe,504 U.S.555,561 (1992). Since standing isnota ttmere

pleading requirementl)butratheran indispensablepartoftheplaintiffscase,each
elem ent m ust be supported in the sam e w ay as any other m atter on w hich the
plaintiff bears the burden of proof, i. e.,with the m anner and degree of evidence
required atthe successive stages ofthe litigation.'' 1d (citationsomitted).Thus,at
trial, plaintiffs m ust set forth specific facts to prove standing. 1d. A nd if
.
controverted,those facts ttm ust be supported adequately by the evidence adduced
attrial.''1d.(citation omitted).
W here a plaintiff seeks only prospective relief, as is the case here,he m ust
prove notonly harm,butalso t1a realand immediate threat'offuture injury in

orderto satisfy the injury in fact'requirement.'' Koziara v.City of Casselberry,
392F.3d 1302,1305 (11th Cir.2004)(citationsomitted).ln otherwords,heSsmust
show a suffcient likelihood that he w ill be affected by the allegedly unlaw ful
conductinthe future.''1d. t'ro belikely enough,thethreatened futureinjurymust

pose a irealistic danger'and cannotbe merely hypotheticalorconjectural. How
likely
enoughr,j is a necessarily qualitative judgment.'' Florida State
ConferenceOfNLA.A.C.P.v.Browning,522F.3d 1153,1161(11th Cir.2008).
An injury tdmay existsolely by virtue ofSstatutes creating legalrights,the
invasion of which creates standingl.l''' Warth,422 U.S.at 500. As 1 have
explained in my priornllings,D.E.541 and 671,the alleged injuriesin thiscase
are the delay and denialof healthcare and the lack access to m edicalservices and
information.D.E.541at6-7.Theseinjuries,1now find,resulted from defendants'

8
failure to satisfy their statutory obligations under the M edicaid A ct. Specifically,
as w ill be discussed m ore fully below in the findings of fact, defendants have
engaged in severalunlawfulpoliciesandpractices,including:(1)failing toprovide

children with continuouseligibilityasrequiredby law;(2)switching children from
one M edicaid program to anotherw ithouttheirparents'know ledge or consent;and
failing
com ply w ith M edicaid's equal access m andate by setting
reim bursem ent rates so low that doctors refuse to participate in the M edicaid
program .
Continued exposure to these policies and practices is sufficientto satisfy the
injury-in-factrequirement. To prove arealand immediatethreatoffuture injury,

plaintiffsneed only show thatttthe anticipated injury (willjoccurwithrinj some
tixedperiod oftimein thefuture,notthatit(willlhappenin thecolloquialsenseof
soon or precisely w ithin a certain num ber of days,w eeks or m onths.'' Browning,
522 F.3d at 116l.
M oreover,asthe Eleventh Circuithasrecognized,when future injuriesare

the resultofan injurious policy,asopposed to random unauthorized acts,ttitis
significantly more likely thatthe injury willoccuragain.'' 31 FosterChildren v.
Bush,329 F.3d 1255,1266 (11th Cir.2003);seealso Church v.Cit
y ofHuntsville,
30 F.3d 1332,1339 (11th Cir.1994)(holding thatplaintiffshad standing where
they talleged that it is the custom ,practice,and policy of the City to com m itthe
constitutional deprivations of which they complain''). Because plaintiffs are

unable to dtavoid future exposure to the challenged course ofconductin which the
(governmentj...engagesy''id.at1338,the injurpin-factrequirementofstanding
is satisfed.
Plaintiffs have also dem onstrated the second elem ent of standingcausation. To prove causation,plaintiffs m ust show that their prospective harm s
are fairly traceable''to defendants'non-com pliance w ith the M edicaid A ct. See
9
Sicar v.Chertoffi54l F.3d 1055,1059 (11th Cir.2008). llere,there isa direct

connection betw een defendants'failure to properly discharge their statutory duties
andplaintiffs'injuries.
The Florida legislature designated A H CA Ccas the single state agency
authorized to m ake paym ents form edicalassistance and related services under''the
M edicaid Program. Fla. Stat. j 409.902(1). It is responsible for assigning

m anaged care providers and prim ary providers to M edicaid patients. A H CA is
also tasked with setting reimbursement rates to M edicaid providers. 1d. at j

409.908. The reim bursem ents m ustbe tdconsistentw ith efficiency,econom y,and
quality ofcareand (mustbeqsufficientto enlistenough providerssothatcareand

services are available under the plan at least to the extent that such care and
services are available to the generalpopulation in the geographic area.'' 42 U .S.C .
j 1396a(a)(30)(A).
D CF is responsible ttfor M edicaid eligibility determ inations, including,but
not lim ited to, policy, rules, and the agreem ent w ith the Social Security
A dm inistration for M edicaid eligibility determ inations for Supplem ental Security
lncome recipients,aswellasthe actualdetenuination ofeligibility.'' Fla.Stat.j

409.902(1). In essence,DCF isresponsible forany changesmade to aM edicaid
recipients'eligibility status.
DOH,through its Children's M edical Services ((CM S'') program,must

tdgpjrovide essential preventive, evaluative, and early intervention services for
children at risk for or having special health care needs, in order to prevent or
reduce long-term disabilities.'' 1d.at j 391.016(2). ln administering the CM S

program,DOH'sdutiesare,among otherthings,to:(l)provideorcontractforthe
provision ofhealth servicesto eligibleindividualsi''(2)tdeterminethemedicaland
financialeligibility ofindividuals seeking health services from the program ,''id.at
j 391.026(1), (3), (9); and (3) dsreimburse healthcare providers for services
10
rendered through the (CM Sqnetworkl.q'' 1d.atj 391.045(1). LikeAHCA,DOH

m ust establish reim bursem ents rates that w ill encourage providers of health
servicestoparticipatein M edicaid.See42U.S.C.j 1396a(a)(30)(A).

A llthree defendants bearthe responsibility of inform ing M edicaid recipients
of their rights to certain services under the M edicaid program. See id. at j
1396a(a)(43)(A).
The factualrecord indicates thatplaintiffs'injuries are fairly traceable to
defendants'failure to satisfy these statutory obligations. 1 find that severalofthe
nam ed plaintiffs experienced delay in receiving, or com plete denial of, m edical
services because defendants did not provide continuous eligibility as required by
law . D efendants have also en-oneously ttsw itched''som e of the nam ed plaintiffs
from one M edicaid plan to another w ithout the patient's know ledge or consent,
w hich also caused delaysor denials in the provisioning ofhealthcare.
I further find that plaintiffs experienced insufficient access to m edicalcare
because A H CA 'S and D O H 's reim bursem ent rates are so low that they fail to
enlist enough providers so that care and services are available . ..at least to the
extent that (theyj are available''to those with private insurers. 42 U.S.C. j
1396a(a)(30)(A). M oreover,1 find thatdefendants did notinform plaintiffs of
servicesthatare available to them ,w hich resulted in severalofthe nam ed plaintiffs
being unable to take advantage ofm edicalservices to w hich they are entitled. The
evidence presented at trial makes clear that plaintiffs' injuries are directly
attributable to defendants'unlaw fulconduct.
W ith respectto redressability,tthere is ordinarily little question''thatw here
government action has caused a plaintiffs injury,1a judgment preventing or

requiring the action willredress it.'' Lujan,504 U.S,at 561-62. Redressability
here is inherentin a declaration,and ifnecessary,an injunction,against future

term inationsofcontinuouseligibility orsw itching,orrequiring the elim ination of
barriers to enrollm ent and receipt of service, such as in the Florida A CCESS
application orlow reim bursem entrates.
Previously,in a pre-trialruling,I found that plaintiffs do not have standing
tobring Count11(lack ofaccessto medicalcare)againstthehead ofDCF because

they failed to m eet the causation requirem ent. D .E . 541 at 8. D CF has no
authority to setor m odify M edicalreim bursem entrates. By law ,the responsibility
forsettingsratesresidesin AHCA andDOH.SeeFla.Stat.jj409.908;391.045.

1 further found thatplaintiffs do nothave standing to sue D O H for purposes
ofCountIV . D .E.541 at 18. D OH has engaged in extensive outreach activitiesto
ensure that eligible children living in each of the nam ed plaintiffs' counties w ere
referred to CM S fora determ ination ofclienteligibility.
In addition,l found that three nam ed plaintiffs have standing to assertthe
claimsalleged inthiscase.lconcludedthat:(1)S.M .hasstandingtoassertCounts

1againstAHCA and DCF and CountIV againstAHCA;(2)J.S.has standing to
raise Count 11 againstA H CA ;and (3)T.G.hasstanding to pursueCountsIand 11
againstD O H .D .E .541 and 671.
G enerally,if at least one nam ed plaintiff has standing to asserteach of the

claim s raised, a court need not analyze w hether the rem aining nam ed plaintiffs
have standing. See Florida cx rc/.Atty.Gen.v.U S.Dep'tof Health tt Human

Servs., 648 F.3d 1235, 1243-44 (11th Cir.2011) (finding that ttltlhe law is
abundantly clear that so long as at least one plaintiff has standing to raise each
claim - as is the case here- w e need not address w hether the rem aining plaintiffs
have standing''and collecting cases.),aff'd in part,rev'

d inpartsub nom.Nat'
l
Fed'
n oflndep.Bus.v.Sebelius,132S.Ct.2566(2012).
To preserve an adequate record for appeal, how ever, l w ill at this tim e
analyze standing forallthe nam ed plaintiffs in this case.
B .T he N am ed Plaintiffs
12
Previously, l ruled that S.M . had standing to proceed against A H CA

and D C F. D .E .541 at 4-9. I continue to adhere to m y ruling, except w ith
respect to C ount IV against D C F. l find that S.M .no longer has standing to
pursue CountIV againstDCF given the recentexpiration ofj 409.9122(2)($

of the Florida Statutes, w hich delegated to D C F certain outreach and
inform ationalresponsibilities.
S.M . w as dssw itched'' from one M edicaid program to another w ithout his
m other's know ledge or consent. Because his doctor w as not a participant in the
new M edicaid plan, S.M . w as unable to obtain his EPSD T screening, a critical
appointm ent,at 18 m onths of age. S.M .'S screening w as delayed for tw o m onths
w hile his m other attem pted to switch him back to his initial plan. This delay
exposed S.M .to health risks.
O n another occasion, S.M .w as unable to take a lead blood screening test
because the laboratory w ould take three hours to reach by bus,round trip. S.M .'S
m other w as unaw are that she w as entitled to free transportation services through
M edicaid. Furtherm ore,S.M .'S m other w as neverinform ed thatshe w as entitled to

dentalservices. S.M .'S doctorw as unable to recom m end a dentistthatw ould treat
S.M . S.M .'S m other called severaldentists w ho purported to accept M edicaid but
wasunableto find a dentistwilling to treatherson.
S.M .'S injurieswere the resultofdefendants'failure to comply with their

statutory duties and, due to his continuous exposure to defendants' policies and
practices,issubstantially likely to experience thesetypesofinjuriesin the f'uture.

A s such,he has standing to assertC ountI againstD C F and A H C A and C ount
IV againstA H CA only.
L .C .has standing to assert Count11 against A C H A . L.C .'S psychologist
recom m ended that he receive intense psychological services, including w eekly
play therapy,because of his severe behavioral issues. H is psychiatrist w ould not
provide the therapy because she did not acceptM edicaid. L.C .'S m other took him
to Peace RiverCenter(llpeace River''or$$PRC'')>the exclusive M edicaid mental

health providerin L.C .'S area. PRC ,how ever,w as unable to provide play therapy,
or any other type of therapy, on a w eekly basis because the clinic had an
unreasonable caseload.
L.C .'S m other had to pay out-of-pocket to provide her son w ith the proper
care. A H C A failed to satisfy its duty to ensure that a sufficient am ount of
psychologists thataccepted M edicaid w as available in L.C .'s area. A s a result,
A H C A is responsible for L .C .9s lack of access to m edical care. T here is a

realistic danger that L .C .w illnot have equalaccess to psychiatric services in
the future as com pared to those that are privately insured because A H CA has
a policy ofsetting inadequate reim bursem entrates.

K .K .has standing to bring C ountI againstD C F and A H C A and C ounts
11 and IV against A H CA . A fter discussing the advantages of Stayw ellw ith one
of its representatives,K .K .'S m other,A .D .,voluntarily sw itched K .K to Stayw ell's
insurance plan. Subsequently,A .D .took K .K .to the em ergency room because his
ear started to bleed. The em ergency room advised A .D .to take K .K .to his thencurrent EN T specialist,D r.John D onaldson,the follow ing day so that K .K 's ear
could be drained. Upon m aking an appointm entw ith the ENT specialist,A .D .was
infonned thatD r.D onaldson did notacceptStayw ell's insurance.
A .D .contacted Stayw ellto inquire about an EN T specialist in her area and
w as referred to a Stayw ell-affiliated doctor in Sarasota, w hich is located
approxim ately tw o hours aw ay from her hom e near FortM eyers. D r.D onaldson
agreed to see K .K .laterthatday,atthe risk ofnotreceiving paym ent. Stayw elldid
not have a suffcient am ount of EN T specialists on its panel in the m etropolitan
area of Fort M yers. T his is a result of A H C A 'S failure to set suffk ient
reimbursementratesasrequired by 42 U.S.C.j 1396a(a)(30)(A).
ln anotherexam ple,in 2010 K .K was noteligible forM edicaid because his
mother'sincomeexceeded eligibilityrequirements. ln 2011,A.D.lostherjob and

once again enrolled K .K .in M edicaid.A .D selected M edipass as her son's plan.
W ithout A .D .'S know ledge or consent, how ever, M edicaid assigned Stayw ell as
K .K.'Sprovider. Staywellwould notapproveK .K .forhisthen-currentm edication,

V yvance,a drug necessary to controlhisbehavioralissues. Before Stayw ellw ould
approve the prescription,itrequired thatK .K firsttry and failon A dderall.
A fter K .K .took A dderall,his conduct significantly deteriorated,w hich had
an adverse effect on his perform ance at school. Once A .D .w as able to get K .K
reassigned to M edipass,he w as able to resum e the proper m edication. AH CA and
D CF'S failure to properly assign K .K .to the correct M edicaid plan resulted in an
unreasonable delay in receiving the appropriate prescription. K .K is likely to
experience these injuries again because defendants have switched M edicaid

patientsw ithouttheir consent.
N .G .also has standing to pursue C ounts l and 11 againstD O H . M s.R ita
G orenflo,N .G .'s adoptive m other,tried to obtain an em ergency appointm ent for
N .G .because he had severe pain in his ear. ltw as im perative forN .G.to receive
treatm ent im m ediately due to his com prom ised im m une system ,w hich m ade him
susceptible to infection. lnitially, M s. Gorenflo w as inform ed that the next

available appointm ent w ould be in six m onths. A fter num erous phone calls, an
EN T tlnally treated N .G . five days after M s. G orenflo sought an appointm ent.
Thisunreasonable delay in the provision ofhealth servicesplaced N .G .'Shealth at

signifcantrisk. Justas the other nam ed plaintiffs in this case,N .G .is likely to
suffer this type of delay in the future because D O H frequently fails to provide
sufficient specialty services to M edicaid patients. Additionally, DO H fails to

provide M edicaid patients w ith equalaccess to care because privately insured
15
patients suffering from the sam e sym ptom s are able to see an EN T either the
sam e day or atthe Iatest,the follow ing day.
In m y prior ruling on J.S., I focused on w hether she had standing to
bring Count 11 against A H CA . l tind again that she does. The evidence,
sum m arized below in Part V l, Section E, show s that children on M edicaid
throughout Florida have difficulty accessing specialty care, and often m ust w ait
considerable periods or travel signifcant distances to obtain such care. J.S.'S
experiences w ith M edicaid are no different.
Three tim es in the last 10 years or so,J.S.has broken her ankle or wrist,
gone to the em ergency room ,and been directed to see an orthopedist for follow -up
care. In all three instances, she had diffculty, in varying degrees, locating an
orthopedist w ho w ould agree to treat her as a M edicaid patient. The evidence

adduced attrialshow sthatJ.S.faces a ttrealistic danger''ofnotbeing able to obtain
equalaccess to specialty care,as com pared to children w ith private insurance. See
Babbittv.United Farm WorkersNat'1Union,442 U.S.289,298 (1979). M any

specialty providers currently do not participate in Florida M edicaid or
sharply curtail their participation because of A H C A 'S low reim bursem ent
rates.
Likew ise, N .V . is likely to experience future delays or denial of m edical

services and thus has standing to raise Counts I and 11 against A H CA . N .V .w as
diagnosed w ith Shw achm an D iam ond Syndrom e, w hich causes pancreatic
insufficiency and t00th decay. N .V .'S dentist refused to continue treating him
because he needed caps. The dentistinform ed N .V .'S m other thatM edicaid w ould
notpay for a replacem ent ifhe losta cap and itw ould be difficultto find anyone to
perfonu the w ork through M edicaid. N .V .'S m other called several dentists in her
area but did not find anyone w ho w ould accept M edicaid to perform the w ork.
16
Eventually,one month later,shew asreferred to a dentisttwo hoursfrom herhom e

thatw asw illing to acceptM edicaid.
ln another instance,N .V .experienced trouble com prehending in school due
to hisillness. N.V.w asrefen-ed to two neuropsychologistswho accepted M edicaid

but w as not able to be treated untiltw o m onths after his m other first sought the
initialappointm ent. A gain,A H CA 'Spractice ofreim bursing doctorsatlow rates is
the cause for these delays in the receipt of m edical care. As long as N .V .is
eligible for M edicaid, there is a substantial likelihood that he w ill not receive
tim ely care.
1 also find thatJ.W .has standing to bring Count1 againstA H CA and D CF.5
J.W .'S oncologist recom m ended a CT scan for the purpose of detecting w hether
J.W .'S cancer had spread from his leg to his neck. A H CA and D CF sw itched
J.W .'S prim ary care physician, w hich prolonged J.W .'S ability to obtain
authorization for the C T scan.
Five w eeks after the initial request for
authorization,the oncologistconducted the CT scan. The scan revealed thatJ.W .'S
cancer had spread and infiltrated to his spinalcord. A s explained above,AH CA

and D CF are responsible forim propersw itching. J.W .is likely to be,and indeed
has been, sw itched again and experience signiticant delays in the provision of
healthcare.
I previously found that T.G .had standing to assert Counts l and 11 against
DOH.D.E.54lat13-17.T.G.isnow deceased,however,and isno longersubject

to futureinjury.SeeBowen v.FirstFamily Fin.Servs.,Inc.,233 F.3d 1331,1340
(11th Cir.2000)(finding thatplaintiffsonly have standing ifthey can allege the
5Previouslj,defendantsarguedthatJ.W .'Sclaimsweremootbecausehewastemporarily
ineligible forMedlcaid based on the factthathe wasincarcerated in a high risk facilitj in
Novem ber of 201l. Sce D.E. 1062. Since filing this m otion,the parties have filed a Joint
stipulation of facts stating thatJ.W .w as released from the high risk facility on April 16,2012
and wassubsequently approved forM edicaid.SeeD .E.1190.Thus,J.W .'Sclaim sarenotm oot.
possibility ofafutureinjuly).Becausethisisan action forprospectivereliefonly,

T.G .does nothave standing and isdism issed asa nam ed plaintiff.
l also find that N .A .does not have standing to sue defendants in this case.
N .A . has a history of significant respiratory issues and aw oke one m orning
coughing and congested. N .A .'S m other, C .R ., called N .A .'S pediatrician to
schedule an appointm ent but w as told that N .A . had been sw itched to a new
pediatrician under a different M edicaid plan. A lthough defendants im properly

sw itched N .A .,he did not suffer any m eaningfuldelay in receiving care as a result
of the reassignm ent. N .A .'S pediatrician agreed to treat him the sam e m orning,
despite the insurance issues. Sim ilarly,laterthatday C.R.had to pay $70 out-ofpocket because the pharm acy w as unable to process her M edicaid num ber. C .R .,
how ever,was reim bursed the nextbusiness day once the problem was resolved.
N .A .did notexperience any delay ordenialofservicesbecause he w as sw itched to
another provider. A ccordingly,he does not have standing and is dism issed as a
nam ed plaintiffin this case.

In sum ,ltind the follow ing nam ed plaintiffshave standing:
* S.M . has standing to assert C ount I against A H C A and D CF
and C ount IV againstA H CA ;
* L.C.hasstanding to assertCount11againstAH CA ;
@ K .K has standing to assert C ount I against D CF and A H C A
and C ounts 11 and IV againstA H C A ;
* N.G .hasstanding to assertCountsland 11againstDO H ;

* J.S.has standing to assertC ount11 againstA H C A ;
* N .V .has standing to assertCounts Iand 11 againstA H CA ;and
* J.W .has standing to assertCount1againstA H CA and D C F.6

lV .C ER T IFIC A TIO N O F TH E C LA SS
A s noted earlier, 1 certified a class under Rule 23 for declaratory and
injunctivereliefconsisting oftallchildren undertheageof21who now,orin the

future w ill,reside in Florida and w ho are, or w ill be,eligible under Title X 1X of
Social Security A ct for Early Periodic Screening D iagnosis and Treatm ent
Services.'' D .E. 671 at 8-9. W ith the benefit of a lengthy trial, having received
substantialdocum entary and testim onialevidence, 1reaffirm m y class certification
ruling.
First,asto num erosity,Ifind thatbetw een October 2009 and the tim e ofthe
trial's conclusion in 2012,anyw here betw een 1.5 m illion and 1.7 m illion children
w ere enrolled in the M edicaid program throughout Florida. A ccordingly, nothing
presented during the trialalters my earlierconclusion thatEjoinder ofunknown

individualplaintiffs is certainly im practicable,''ifnot im possible.See Jack v.A m .
Linen Supply Ct?.,498 F.2d 122,124 (5th Cir.1977)(finding numerosity existed

for a proposed class thatincluded unknow n, futureblackemployees).SeealsoFed.
R.Civ.P.23(a)(1).
Second, as
com m onality, throughout the trial, plaintiffs presented
evidence regarding the severallegalquestions that are com m on to the entire class
and thatM agistrate Judge M cA liley identified in her reportand recom m endation.
These include w hether defendants are com plying w ith their obligations under the
federalM edicaid Actto provide eligible recipientsw ith reasonably prom ptmedical
care and services, equal access to such care and services, and outreach and
inform ation aboutcare and services. Vega, 564 F .3d at 1268 (Commonality is
6 I do not see the need to address the standing of the Florida Pediatric Society, the Florida
Chapter of the Am erican Academ y of Pediatricians, or the Florida Academy of Pediatric
Dentistry atthis tim e.1,how ever,reserve the rightto do so in the future in a revised order.
satisfied when there isone question oflaw orfactthatiscom m on to the classasa
whole.).SeealsoHaitl'anRefugeeCtn,Inc.v.Nelson,694 F.Supp.864,877 (S.D.

Fla.1988)(slclassactionsseeking injunctiveordeclaratory relief...by theirvery
naturepresentcommonquestionsoflaw orfact.'')
Third,as to typicality,the evidence presented attrialdoes not disturb m y
earlierconclusion thatthe claims and alleged injuries ofthe individualplaintiffs

are typicalofthe class m em bers. The individualplaintiffs described their inability
to accessprom ptly orw ithout greatdifficulty m edicalservicesin a variety ofareas
of care throughout Florida,w hich they attribute to defendants' adm inistration of

Florida's M edicaid program . Even though their individual experiences in
accessing care and services are varied,typicality is not defeated because they all
share claim s that they have been denied reasonably prom pt and equal access to
m edical care and services due to defendants' failure to com ply w ith their federal
statutory obligations in adm inistering Florida's M edicaid program . See Prado
Steiman ex. rel.Prado v.Bush,221 F.3d 1266, 1279 n.14 (11th Cir.2000)
(citations omitted)(d$The typicality requirementcan tttbe satisfied even ifsome
factualdifferences exist betw een the claim s of the nam ed representatives and the
claim softhe class atlarge.'').The tstrong similarity ofgthesellegaltheories...
satisfliesqthetypicality requirementdespite ganyqsubstantialfactualdifferences.''

1d.
Fourth,the class nam ed plaintiffs and class counselcontinue to rem ain able
to adequately representthe interestsofal1classm em bers.

Finally,nothing thatwaspresented during the course ofthetrialchangesm y
conclusion thatthiscase istheprototypicalcaseforRule23(b)certificationin that

defendants are alleged to have acted or refused to acton the groundsthatapply
generally to the class, so that the final injunctive relief or corresponding
declaratoryrelief(wouldbejappropriaterespectingtheclassasawhole.''SeeFed.
R.Civ.P.23(b)(2).
V .A PPLIC A B LE L EG A L STA N D A R D S
A. CivilRightsAction Under42U.S.C.j 1983

In relevantpart,42 U.S.C.j 1983,providesaprivatecauseofaction against
state actors w ho deprive an individual of (dany rights, privileges, or im m unities
secured by the C onstitution and law s''of the U nited States. It is w ell-established
thatj 1983 providesa remedy forviolationsoffederalstatutory rightsaswellas

constitutionalrights. SeeM ainev.Thiboutot,448U.S.1,4 (1980).To maintain a
cause ofaction under j 1983 forviolationsoffederalstatutory rights,a plaintiff
first m ust establish that the pertinent federal statute provides an individually
enforceableright. SeeBlessing v.Freestone,520 U.S.329.340 (1997);Gonzaga

Univ.v.Doe,536 U.S.273,283-85(2002).
A s I have previously explained in m y prior orders, a court m ust analyze
three factors in deciding w hether the federal statute in question creates an
enforceable individualright:
First, Congress m ust have intended that the provision in question

benetst the plaintiff. Second,the plaintiff m ust dem onstrate that the
right assertedly protected by the statute is not so ddvague and
amorphous''that its enforcementwould strain judicialcompetence.

Third,the statute m ustunam biguously im pose a binding obligation on
the States. ln other w ords, the provision giving rise to the asserted
rightm ustbe couched in m andatory,ratherthan precatory,term s.
Blessing,520 U.S.at34l (citations omitted). The Supreme Courtsubsequently

clarified in Gonzaga that as to the first factor the statute m ust contain an
unambiguously conferred right''to support a cause of action under j 1983.

G onzaga, 536 U .S.at 283. The statutory provision m ust have trights-creating''
21
language,id at287,have an individual,not aggregate,focus,id.at288,and be

phrased in tenns ofthe persons benefitted.''1d.at284.
B . M edicaid Fram ew ork
tM edicaid is a cooperative federal-state program through w hich the Federal

governm entprovides financialassistance to States so thatthey furnish m edicalcare
to needy individuals.'' Wilder Ptz.Hosp.Ass'n,496 U.S.498,502 (1990).

Specifically, 42 U.S.C. j 1396a requires that states make medical services
available to categorically eligible needy children and adults. A state's participation
in the M edicaid program is voluntary,but if a state chooses to participate,itm ust
com ply w ith the requirem ents outlined in the M edicaid statute.1d. ln order to
qualify for federalM edicaid funds,a state m ust subm ita state M edicaid plan to a
federalagency,theCentersforM edicare& M edicaid Services(CM S),within the

DepartmentofHealth and Human Services.SeeDouglasv.Indep.Living Ctr.ofs.
Ca1.,lnc.,132 S.Ct 1204, 1208 (2012). Thatplan mustcomply with federal
M edicaid statutory and regulatory requirem ents. 1d.
Certain provisions ofthe federalM edicaid statutes are relevanthere. First,a
participating state plan form edicalassistance m ust:
provide that all individuals w ishing to m ake application for m edical
assistance under the plan shall have opportunity to do so, and that
such assistance shallbe furnished w ith reasonable promptness to all
eligible individuals.
42 U.S.C. j 1396a(a)(8) (emphasis added) (the Reasonable Promptness''

provision).
Second, states m ust provide isfor m aking m edical assistance available,
including atleastthecareand serviceslisted in paragraphs(1)through (5)...(of
jl 1396d(a)ofthistitle,to .allindividuals (who are eligiblel.'' 42 U.S.C.j

1396a(a)(10)(A).Inturn,j 1396d(a)(4)(B)definesmedicalassistance''to include
22
iearly and periodic screening, diagnostic, and treatment services gas defined
elsewhere in this section)forindividualswho are eligible underthe plan and are

underthe age of21(.j'' The specific EPSDT services thatmustbe provided are
listedat42U.S.C.j 1396d(r).
Third,a state plan m ustalso:
provide such m ethodsand proceduresrelating to the utilization of,and
the paym entfor,care and services available under the plan ...as m ay
be necessary
to assure that paym ents are consistent w ith
efficiency, econom y, and quality of care and are sufficient to enlist
enough providers so thatcare and services are available underthe plan
at least to the extent that such care and services are available to the
generalpopulation in the geographic area.
42U.S.C.j 1396a(a)(30)(A)(thetEqualAccess''provision).
Fourth,a state plan mustcontain provisions(dgijnforming allpersonsin the
State w ho are underthe age of2 1 and w ho have been determ ined to be eligible for
m edical assistance . .
of the availability of early and periodic screening,
diagnostic, and treatm ent services
and the need for age-appropriate
immunizations against vaccine-preventable diseasesg.l''

1396a(a)(43)(A)(theEffectiveOutreach''provision).
42 U.S.C. j
W ith this fram ew ork in m ind,Irevisitw hetherthese provisions create

enforceable rights.
1. R easonable Prom ptness & M edical A ssistance C lauses:42 U .S.C .
jj 1396a(a)(8)and (a)(10)
a.j 1396a(a)(8)
C ount I of plaintiffs' com plaint alleges a violation of the reasonable
promptness''clause ofj 1396a(a)(8).TheEleventh Circuit,in Doe v.Chiles,136

F.3d709,719(11thCir.1998),expressly heldthatj 1396a(a)(8)providesafederal
rightto reasonably promptprovision ofassistance,which isenforceable under j
23
1983.Looking to the firstfactor ofthe Suprem e Court's three-factorB lessing test,
the Eleventh Circuitnoted thatthe plain language ofj 1396a(a)(8)'sreasonable

promptness clause w as diclearly intended to benefit M edicaid-deligible
individuals.''' 1d.at715. Itfurther concluded thatj 1396a(a)(8)'srequirement

that assistance . . be furnished with reasonable prom ptness to all eligible
individuals'' presented <a sufsciently specific and definite standard'' that w as
treadily susceptible to judicial assessment,''thus satisfying Blessings' second

requirem ent. 1d.at 717. Finally,in holding thatthe reasonable prom ptness clause
metthe third factor ofthe Blessing test,the Eleventh Circuitnoted that ttltjhe
languageofthestatute gwasjundoubtedly castin mandatory ratherthan precatory
termsl,l'' and that ta state's receipt of federal M edicaid funds is expressly
conditioned onitscompliancewith provisionsofj 1396a.''1d.at718.
D oe is of course binding precedent. W hether D oe has been so eroded by
Gonzaga thatit should be overruled is for the Eleventh Circuitto decide.
M yjob,
asa districtjudge,isto follow Doe atthistime. See U S.Valladares,544 F.3d
1257,1264-65(11th Cir.2008);UnitedStatesv.Baxter,323 Fed.App'x 830,831
(11th Cir.2009)(EtBecauseM oore (apriorEleventh Circuitdecisionjhasnotbeen
overruled by thisC ourtsitting en banc orthe Suprem e C ourt,the districtcourtw as
bound to follow itsholding.''). Nevertheless,1do notbelieve thatDoe hasbeen

called into doubtby Gonzaga.
Asseveraldecisionsfollowing Gonzaga make clear,ttgjj 1396a(a)(8)meets

the standards set forth in G onzaga''as w ell. Rom ano v.G reenstein,721 F.3d 373,
379 (5th Cir.2013). As the Fifth Circuitnoted in Romano,the language of j

l396a(a)(8) is individually focused. 1d. ltis concerned with whether medical
assistance has been ftlrnished in a reasonably prom pt m anner to a particular class
ofindividuals those who are M edicaid-eligible. 1d. itltdoes not dspe4k only in
term s ofinstitutionalpolicy and practice,'nordoesithave an taggregate focus.'''
1d (quoting Gonzaga,536 U.S.at 288). The First,Third,Fourth,and Sixth

Circuitshave similarly held,post-Gonzaga,thatj 1396a(a)(8)providesa federal
rightthatisenforceableunderj 1983. See Bryson v.Shumway,308 F.3d 79,89
(1stCir.2002);Sabree cx rel.Sabree v.Richman,367 F.3d 180,193-94 (3d Cir.
2004);Doe v.Kidd,501 F.3d 348,357 (4th Cir.2007); Westside M others
Olszewski,454F.3d532,539-41(6th Cir.2006).
1 therefore conclude that the ireasonable Promptness'' provision of j
1396a(a)(8)providesafederalrightthatisenforceableunderj 1983.
b. j 1396a(a)(10)
Count1 also alleges a violation of j 1396a(a)(l0),which providesthata
State plan for m edical assistance m ust provide ttfor m aking m edical assistance
available,including atleastthe care and serviceslisted in paragraphs(1)through

(5),(17),(21),and (28)ofgjq 1396d(a)(,q''to allindividuals''meeting specifed
financialeligibility standards. TheEleventh Circuithasnotaddressed whetherj
l396a(a)(10)providesafederalrightthatisenforceableunderj 1983. 1therefore
draw upon the Suprem e C ourt's Blessing test, as m odied by G onzaga, to
determine whether j 1396a(a)(10) provides plaintiffs with a federal right

enforceableby j 1983.
The first prong of the Blessing test instructs that I look to whether j
1396a(a)(10)revealsa congressionalintentto create an individualized right. The

Suprem e C ourt in Gonzaga clarised that nothing short of an unam biguous
conferred rightcan supporta causeofaction underj 1983. Gonzaga,536U.S.at

283. The appropriate inquiry,the Suprem e Courtnoted,is tw hether ...Congress
intended to conferindividualrightsupon a classofbeneficiaries.'' 1d.at285. This

requiresthata statute be phrased in term softheperson orpersonsbenefited.f#.at
284. As an exam ple of such lrights-creating''language in a statute,the Suprem e
C ourtcited Title V I of the C ivilR ights A ctof 1964 and Title IX ofthe Education
Amendm ents of 1972,which were found to create individualrights because they

w ere plnrased dw ith an unm istakable focus on the benefited class.'' 1d.
ln my opinion,j 1396a(a)(10)'s requirement that medical assistance be

m ade available to allindividuals that m eet its eligibility standards is phrased in
term s of the individuals benefited. Its focus is on m aking m edical assistance
available to a specifc class ofbeneficiaries,nam ely those w ho,like plaintiffs here,
satisfy the financialeligibility standardsitsetsout.

D ecisions from
the Third, Fifth, and N inth C ircuits support m y
determ ination. See Sabree,367 F.3d at 190;S.D . cx rc/.D ickson v.H ood, 391
F.3d 581,602-03 (5th Cir.2004);Watson v.Weeks,436 F.3d 1152,1159-60 (9th

Cir.2006). lndeed,theFifth Circuitstatedthatthe languageof5 1396a(a)(10)ttis
precisely the sortof trights-creating' language identised in G onzaga as criticalto
dem onstrating a congressionalintentto establish a new right.'' D ickson,391 F.3d
at 603. The Third Circuit similarly concluded that it (isq diffcult, if not
im possible, as a linguistic m atter, to distinguish the im port of the relevant
language CA State Plan m ustprovide' from the iN o person shall' language of
TitlesVland1Xg,q''Sabree,367F.3dat190.lnotedearlier,TitlesV1andIX were
cited by the Suprem e Court in G onzaga as exam ples of statutes tw ith an
unmistakablefocuson thebenefited class.''1d.at187 (emphasisomitted).

M oving on to the second prong ofthe Blessing test,1conclude thatthe rights
soughtto be enforced by plaintiffsare nottsso vague and amorphousthat(theirq

enforcement would strain judicial competence.'' Blessing, 520 U.S. 340-41.
Plaintiffs seek to require that defendants m ake available the (tm edicalassistances''
including EPSDT services, that they are entitled to under j 1396a(a)(10) as

individuals satisfying the specifed financial eligibility standards listed. The
26
provision carefully details the specific services to be provided,and the services
soughtto be enforced by plaintiffsarespecifc and enum erated.7

Finally, the third prong of the Blessing test is easily satisfed because
l396a(a)(10)unambiguously imposes on the participating states the requirement

thatthey provide for making medicalassistance available. See j 1396a(a)(10)
(sstating that tgal State plan for medical assistance must provide for making
medicalassistanceavailable'').
Accordingly,Iconcludethatj 1396a(a)(10)providesa federalrightthatis
enforceableunderj 1983.
2.EqualAccess:42U.S.C.j1396a(a)(30)(A)
Statesarerequired,underj 1396a(a)(30)(A),to provideadequate funding to
ensure thatM edicaid beneficiarieshave equalaccess to m edicalservices and care
as available to the generalpopulation in their geographic area.Plaintiffshave sled
suitunderj 1983 becausedefendantshaveallegedly failed to satisfy thatmandate.
Atissueiswhetherj 1396a(a)(30)(A)confersaprivaterightofaction.
1To the extentdefendantsarguethatj 1396a(a)(10)isnotunambiguously worded,as
requiredtoconferaprivatelyenforceablefederalright,becausethetenntmedicalassistance''is
ttvagueand amorphous,''Idlsagree.Itlnd theterm to be suffciently defined in j 1396d(a)to
satisfy the second prong ofBlessing. SeeDoe,136 F.3d at711 (upholding a claim thatthe
Florida DepartmentofHealth & Rehabilitative Services violated j 1396a (a)(8)by failing to
providem edicalassistance,which consisted ofthettherapies,training and otheractive treatment
towhich gtheplan participantswereqentitled'').lrecognizethatacircuitsplitexistsconcerning

whether tm edicalassistance''encompasses only a rightto paym ent for the care and services
listed in j 1396d(a),orboth arightto paymentand arightto thecareand servicesthemselves.

CompareKatieA.exrel.Ludinv.fosAngelesCa/
y'
.,481F.3dat1154,withEqualAccessforEl
Paso,Inc.v.Hawkins,562 F.3d 724,728-29 (5th Cir.2009)(holding thatmedicalassistance
means payment for medical services); Westside Mothers, 454 F. 3d at 540-41 tsamel;
Bruggeman cx relBruggeman v.Blogojevich,324 F.3d 906,910 (7th Cir.2003) tsamel;
(dictum) OKAAP,472 F.3d at 1214 (same). Butthatdefendants'argumentregarding what
exadly iscovered by thetenn tlm edicalassistance''m oreaccurately addressesthe meritsofwhat
plaintiffs would need to show to establish thattheirrightshave been violated. Accordingly,I
addressthisargumentfurtherin the conclusionsoflaw.
ln 1990,the United StatesSupreme Courtheld thathealth careprovidershad

a private rightof action to challenge the m ethod by which the states reimbursed
them under the M edicaid Act. See W ilder,496 U .S.at498. The Courtfound a
private right of action w ithin the text of the Boren A m endm ent, w hich required
states to
provide ...for paym ent ...of the hospital services,nursing facility

services,and services in an interm ediate care facility for the m entally
retarded provided undertheplanthrough theuseofrates(determined

in accordance w ith m ethods and standards developed by the State ...
) which the State.#nJ5',and makes assurances satl'

sfactory to the
Secretary,are reasonable and adequate to m eetthatcosts which m ust
beincurred by ey cientl
y andeconomicall
y operatedfacilitiesinorder
to provide care and services in conform ity w ith applicable State and
Federal law s, regulations, and quality and safety standards and to
assure thatindividuals eligible form edicalassistance have reasonable
access ...to inpatienthospitalservices ofadequate quality.
1d.at502-03 (emphasisinoriginal).Health careproviderscould sueunderj 1983

to enforce the Boren A m endm ent,the Courtheld,because they w ere the Ssintended
beneficiaries''ofaprovision thatimposed abinding obligation''on statesto adopt

reasonable rates. See id.at510.
Since W ilder, the Suprem e C ourt has decided Blessing- ceating a threefactor testto determ ine w hether a federalstatute creates an enforceable right- and
Gonzlgl---expounding on the rstprong ofthe Blessing test,requiring the statute

to contain irights-creating'' language and clearly im part an Sindividual
entitlem ent''on plaintiffw ith an tunm istakable focus on the benefited class.'' See
Blessing,520 U .S.at 340-41;Gonzaga,536 U .S.at 287. Despite so doing,the

Courtin Gonzaga expressly preserved the Wilder Court's analysis,stating thatthe
Boren Am endm enttleftno doubtofitsintentforprivate enforcement...because
the provision required States to pay an tobjective' monetary entitlement to

individualhealth careprovidersl.j'' Gonzaga,536U.S.at280-81.
Thus, Gonzaga concluded that W ilder rem ains good law , and the Eleventh
Circuithasnotruled otherwise.SeeAgnostinl'v.Felton,521U.S.203,237(1997)
(reaffirming thatilijfaprecedentofthisCourthasdirectapplication in a case,yet
appearsto reston reasonsrejected in some other line ofdecisions,the Courtof
A ppeals should follow the case w hich directly controls,leaving to this Courtthe
prerogative ofoverruling its own decisions'')(internalquotation marksomitted).

A nd the Seventh C ircuithas concluded that W ilder rem ains binding precedent.See
Bontragerv.Ind.Family drSoc.Servs.Admin.,697 F.3d 604,607 (7th Cir.2012)

(Although wehaveacknowledged thatGonzaga may havetaken anew analytical
approach .. Wilder has not been overruled.'') (internal quotation marks and
citation omitted).
Thestatutory language in j 1396a(a)(30)(A)isnearly identicaltothetextof
the Boren A m endm entthat the C ourtin W ilder found to create a private right of
action.Underj 1396a(a)(30)(A),stateprogramsarerequired to:

Provide such m ethods and procedures relating to the utilization of,
and the paym entfor,care and services available under the plan ...as
m ay be necessary to safeguard against unnecessary utilization of such
care and services and to assure that paym ents are consistent with
effciency,economy,and quality ofcare and are suffcientto enlist

enough providers so thatcare and services are available under the
plan atleastto the extentthatsuch care and services are available to
thegeneralpopulation inthegeographictzrctlg.l
j 1396a(a)(30(A)(emphasisadded).
G iven the strikingly sim ilar trights-creating'' language that m im ics the test
oftheBorenAmendment,1concludethatj 1396a(a)(30)(A)imposesamandateon
the states. The Boren A m endm entrequired states to create program sthatprovided
reasonable payment to provide access to adequate medical assistance. And j
1396a(a)(30)(A)similarly requiresstatesto createprogramsthatprovidesufficient

paym ent to ensure that adequate access to m edical assistance is tavailable under
the plan.''
The only significantdistinction between thetwo provisionsisthatthe Boren
Amendment's beneficiaries were medicalproviders,while j 1396a(a)(30)(A)'s

benesciaries are M edicaid-enrolled individuals w ho utilize the care and services
available undertheplan.'' See Pa.PharmacistsAss'n v.H oustoun,283 F.3d 531,
538 (3d Cir. 2002) (en banc) (Alito, J.) (holding that j 1396a(a)(30)(A)'s
provisions for quality of care and adequate access were ltdraftgedj
with an
unmistakable focuson (M edicaid beneficiariesq''). Granted,health care providers
are explicitly m entioned within the text of the Boren Am endment, while plan
participantsarenotexpressly discussed in j 1396a(a)(30)(A). Butthisdistinction

does not compel a different conclusion. Under 1396a(a)(30)(A), plan
participants are given an enforcem entrightthrough the language requiring statesto
m ake services dtunderthe plan''available.
I acknowledge that- as defendants argue- the majority of circuits have

determined,vost-Gonzaga,that j 1396a(a)(30)(A) does notexpressly create an
enforceable individualright. SeeEqualAccessforE1Paso,v.Hawkins,509 F.3d
697,703-04 (5th Cir.2007);M andy R.ex rel.M r.(f M rs.R v.Owens,464 F.3d
1139,1148 (10th Cir.2006); Westside M others,454 F.3d at542;N lr Ass'n of
Homes tfrServs.for the Aging v.DeBuono,444 F.3d 147,148 (2d Cir.2006);
Sanchezv.Johnson,416F.3d 1051,1060 (9th Cir.2005);fong Term CarePharm.
Alliancev.Ferguson,362 F.3d 50,59(1stCir.2004).
These cases,how ever, are not persuasive or are distinguishable.D eB uono
and Long Term Care,for example,involved claim s by providers,not individual

M edicaid beneficiaries. A nd,w ith the exception ofLong Term Care and M andy
R ., the cases cited above fail to distinguish W ilder.
Long Term Care
acknowledged thatttheBoren Amendmentand subsection(30)(A)containljnearly

identicalsubstantive requirem ents,''but itdism issed the sim ilarity and concluded
that QGonzaga requires clear statutory language for the creation of private rights
enforceableundersection 1983(.1'' Long Term Care,362 F.3d at 58.8 M andy R
sim ilarly expressed incredulity that Gonzaga preserved W ilder and found that
G onzaga tltightened the first requirem ent'' of finding a private right to enforce
statutory violations and therefore no reliefw as available. See M andy R.,464 F.3d
at 1147. Long Term Care and M andy R.failto give due w eight to W ilder,a case
thatG onzaga expressly recognized rem ained good law .
1find the reasoning ofthe Seventh and Eighth Circuits m ore persuasive. See
PediatricSpecialty Care,Inc.v.Ark.Dep 'tofHumanSc?aw.,443 F.3d 1005,1015

(8thCir.2006)(holding thatj 1396a(a)(30)(A)sisintended to benefitboth CI'IM S
recipientsand providers,and createsenforceablerightsforboth groups''),vacated
in parton other grounds,l27 S.Ct.2000 (2007);Bontragers697 F.3d at607
(finding Wilderremainsgood 1aw vost-Gonzaga and reaffirming itspre-Gonzaga
ruling thata private right of action for individualbeneficiaries exists,albeit under
the medicalassistance statute). See also M eml'

sovskiv.M aram,No.92 C 1982,
2004 W L 1878332, at *8 (N.D. 111. Aug.
2004) (concluding that
1396a(a)(30)(A)createsindividually enforceablerights).
In light of the passage of tim e since m y earlier nllings, I have also
considered w hether any subsequent pertinent and binding decisions have called
into question my conclusions regarding the enforceability of j l396a(a)(30)(A).

M y updated research,how ever,reveals no Eleventh Circuitdecision addressing the
8fong Term CarecitestherepealoftheBoren Amendm entin l997 asareason to ignore
W ilder. See 362 F.3d at 58. Thatm akes no sense. The subsequentrepealof an am endm entto
increase tithe flexibility of the states''m ay shed light as to Congress' later view s as to private
enforcem ent ofthe Boren A m endm ent,butdoes not alterthe Suprem e Court's analysis that the
textoftheBorenAmendmentwassufficienttoconferarightsubjecttoprivateenforcement.
individual enforceability of j 1396a(a)(30)(A) under j 1983. Thus,l remain

convinced for the reasons expressed in m y ruling on defendants' m otion for
summary judgment that the Supreme Court's decision in Wilder compels the
conclusion that the statute is individually enforceable. W hile applying the
Gonzaga test to j 1396a(a)(30)(A) on a blank slate might possibly render a

different conclusion, 1 cannot ignore W ilder, w hich is directly on point and
binding.
D efendants directm y attention to the Suprem e C ourt's decision in D ouglas
v.IndependentLiving Center of Southern Calfornia, 132 S.Ct. 1204 (2012),

w hich w as decided after m y earlierrulings.A ccording to defendants,this decision
supportstheirposition againsttheindividualenforceability ofj 1396a(a)(30)(A).

In D ouglas, M edicaid providers and recipients in C alifornia asked the
SupremeCourttoconsiderwhetherj 1396a(a)(30)(A)wasenforceablethroughthe
Suprem acy C lause,in the w ake ofthe N inth C ircuit's holding in Sanchez thatthe
statute was not enforceable through j 1983. See Douglas, 132 S.Ct.at 1207.
G iven intervening events in the case after certiorari had been granted,the C ourt
declined to consider the Suprem acy Clause question and instead rem anded the case
back to the circuitcourtto consider w hether the case should be broughtunder the
Administrative ProceduresAct,5U.S.C.j 701. 1d.at1211. Although plaintiffs'

allegations in D ouglas- tUat C alifornia's M edicaid reim bursem ent rates did not
com ply w ith federal1aw because they w ere insufficientto enlistenough providers
to ensure adequate care and services- tracked plaintiffs'claim s here,the Suprem e
C ourtin D ouglas w as not asked to- nor did it---decide the legal question of the
individualenforceability ofj l396a(a)(30)(A)underj 1983,raised by defendants

in this case. Accordingly, Douglas does not impact my conclusion that j
1396a(a)(30)(A)isindividually enforceablethrough j 1983.
32
TheEleventhCircuit'srecentdecision in Martesv.ChiefExecutiveOf/zccof
South Broward HospitalDistrict, 683 F.3d 1323 (2012),which addressed the
individual enforceability of another M edicaid statute also does not alter m y
conclusion. In M artes, the Eleventh C ircuit concluded that a billing provision

w ithin the M edicaid statutes, 42 U.S.C. j 1396a(a)(25)(C),9 did not confer
individually enforceable rights on M edicaid recipients againstservice providers for
im proper billing. The Eleventh Circuitreached this conclusion,in part,because it

determ ined thatthe statutory provision's dfocus is proscription of certain conduct
by M edicaid service providers''as itrelatesto theirbilling practicesrather than the

rights on the individualM edicaid recipients. M artes,683 F.3d at 1328. ltpointed
to the Suprem e C ourt's acknow ledgem ent in Gonzaga that Ssstatutes that focus on
the person regulated rather than the individuals protected''do not intend to confer
individually enforceablerights. 1d.at 1328-29 (citing Gonzaga,536 U.S.at287).

Accordingly,because j 1396a(a)(25)(C)and itspreceding subsectionsprimarily
address the obligations of third party service providers, the Eleventh Circuit
concluded that the text and structure of j 1396a(a)(25)(C) did not speak to
9Thestatute,in pertinentpart, readsasfollows:

A State plan form edicalassistance m ust-
Provide ...thatin the case ofan individualwho isentitled to medicalassistance
undertheStateplanwithresyecttoaserviceforwhichathirdpartyisliablefor
palment,the person furnishlng the service may notseek to collectfrom the
indlvidual (or any financially responsible relative or representative of that
individual)paymentofan amountforthatservice(i)ifthetotaloftheamountof
the liabilities of third parties for that service is at least equal to the am ount
payableforthatselwiceundertheplan (disregardingsection 13060ofthistitle),or

(ii)in an amountwhich exceeds the lesserof (1)the amountwhich may be
collectedundersection 13960ofthistitle,or(11)theamountbywhichtheamount
payableforthatserviceundertheplan (disregarding section 13960 ofthistitle),
exceedsthetotaloftheamountoftheliabilitiesofthirdpartiesforthatservicel.j
42U.S.C.j1396a(a)(25)(C).
individual rights,but rather to the obligations of service providers vis--vis third

party liability. 1d.at 1330.
The sam e, how ever, cannot be said of the text and structure of
1396a(a)(30)(A),which requiresastateM edicaid plan to assurethatpaymentsfor

care and servicestare sufcientto enlistenough providers so thatcare and services
are available under the plan at least to the extent that such care and services are
availableto the generalpopulation in thegeographic areal.q'' First,the focusofj

1396a(a)(30)(A)ismaking sure thatttcare and services''are available to eligible
M edicaid recipients. The intended pum ose in enlisting a suflcient number of
providers is not for the sake ofthe m edicalproviders,butrather for the individual
benetk iaries of the M edicaid program so that these individuals have the
opportunity to receive m edicalcare in a m anner sim ilarto their counterparts in the
private insurance sector. The essence of this statutory provision is m aking sure
thata state's M edicaid program functions as Congress intended:ensuring eligible

individuals receive the m edicalcare and servicesthata state's plan entitles them to
receive. Second,when j 1396a(a)(30)(A)isread in contextwith j 1396d(a),the

subsection that details the individual tscare and services''that a state plan m ust
provide,itbecomes even more apparentthatthe focus of subsection (30)(A)'s

tsufficient''paym ent provision is on the individual's right to access m edicalcare
and services adequately.10
ln sum,Iagain conclude thatj 1396a(a)(30)(A)creates a private rightof

action forM edicaid benefciaries.
10 D efendants raise several other argum ents in their discussion of the individual
enforceability ofj 1396a(a)(30)(A),whichIfind aremoreacclzrately addressedtothemeritsof

whatplaintiffs would need to show to establish thattheirrights,assuming the statute confers
individualrights,havebeen violated by defendants. Accordingly,Iwilladdressthese arguments
laterw here relevantin the Gndings offactsand conclusions oflaw .
3. EffectiveOutreach:42 U.S.C.j 1396a(a)(43)(A)

ln regards to j 1396a(a)(43)(A),defendants raise no new arguments but
m aintain that the provision under Blessing as m odified by G onzaga, does not
EEunm istakably focus'' on a benefit class and is too am biguous and general to
contain an objectivestandard.1disagree.
Post-Gonzaga, the Eleventh Circuit intem reted the first Blessing factor,
w hich requires that Congress m ust have intended the relevant statute to benest
plaintiffs,to mean that the provision ttlmustj containl ) individually focused,

rights-creating language, (2) has an individual, rather than systemwide or
aggregate focus; and (3) lacks an enforcement mechanism for aggrieved
individuals.'' M artes 683 F.3d at 1326,citing Arrington v.H elm s,438 F.3d 1336,
1345(11th Cir.2006).ln my view,j 1396a(a)(43)(A)clearly satisfiesthistest.

Aspal4 ofa comprehensive M edicaid statute,j 1396a(a)(43)(A)requires
state plans to provide for inform ing ttall persons under the age of 21 w ho are
eligible for m edicalassistance''ofthe availability of early and periodic screening,
diagnostic,and treatm entservices and the need for age-appropriate im m unizations
againstcertain diseases. 42 U.S.C.j 1396a(a)(43)(A). Contrary to defendants'

contentions,this provision contains the requisite Sdrights-creating''term inology.ln
G onzaga, the statute at issue prohibited the Secretary
Education from
distributing funds to any educationalagency or institution thatm aintained a policy

or practice of perm itting the release of education records. Gonzaga, 536 U .S.at
287. The Courtfound thatthe provision failed to confer individualrights because
it focused on the regulated party as opposed to those w ho w ould benefit from the
statute. 1d. at 288. A dditionally, the Court determ ined that the statute's ttnon-
disclosureprovisionsgspokeqonly in termsofinstitutionalpolicy andpractice,not

individual instances of disclosure,''thereby giving it an aggregate focus. 1d. at
288.
35
ln contrast,here the Effective Outreach provision com m ands the State to

inform al1 eligible children under 21 about available m edical services. Its
em phasis,unlike the statute in Gonzaga,is on the individuals w ho w illreceive the
information ratherthan the regulated party.Thus,j 1396a(a)(43)(A)sufficiently

evincescongressionalintentto conferindividualrights. SeeBonnieL.v.Bush,180
F.supp.2d 1321,1346-47 (S.D.Fla.2001),aff'd on othergroundsand vacated in
part,31FosterChildren v.Bush,329F.3d 1255(11th Cir.2003).

The Effective O utreach provision also clearly m eets Blessing's second
requirem entthat the protected rightcannot be ttso vague or am orphous thatits
enforcementwould strainjudicialcompetence.'' Gonzaga,536 U.S.at282. This

provision is wholly differentfrom the am biguous provisions thatcourtshave found
to be too generalized to enforce. For exam ple,the Suprem e C ourthas found thata
statute imposes only a generalized duty when the tmeaning of gthe directive
wouldj obviously vary with the circumstances of each individual case'' and
com pliance w ith the directive w as largely leftup to the state. See Suter v.ArtistM ,
503 U.S.347,360-63 (1992). Thisisnotthe case here. Section 1396a(a)(43)(A)

im posesprecise requirem entson the state and leaves no room fordiscretion.
UnderthethirdBlessing factor,the questionsiswhetherj 1396a(a)(43)(A)

iunambiguously imposelsj a binding obligation on the Stategj.'' Blessing,520
U .S.at 341. t-f'he provision giving rise to the asserted right m ust be couched in
m andatory,rather than precatory,term s.'' 1d. The Effective O utreach provision
providesthatitgajStateplan formedicalassistance mustprovide forinforming all

persons in the State w ho are under the age of 21 and w ho have been determ ined to
be eligible for m edical assistance . . . of the availability of early and periodic
screening,diagnostic,and treatmentservices ....'' j l396a(a)(43)(A)(emphasis

added). The language of j l396a(a)(43)(A)is notprecatory butrequiresa state
like Florida to com ply w ith its com m and.
36
Defendantsareunableto identify any casesthathold thatj 1396a(a)(43)(A)

does notcreate a private rightofaction. ln fact,since G onzaga,at leastone circuit
courthas held that j l396a(a)(43)(A) creates enforceable rights. See Westside

M others,454 F.3d at 544. Likew ise,districtcourts,post-G onzaga,have also held
thatj 1396a(a)(43) confers individualrights. See e.g.,Hunter ex rel.Lynah v.

M edows,No.CIVA 108CV-2930-TW T,2009 W L 5062451,at *2-3 (N.D.Ga.
Dec.16,2009);Clark v.Richman,339 F.Supp.2d 631,640 (M .D.Pa.2004)4
M em isovski,2004 W L 1878332, at *5;A.M H ex rel.P.H v.H ayes,N o.C2-03-
778,2004W L 7076544,at*6 (S.D.Ohio Sept.30,2004).

ln lightofthisprecedent,and forthereasonsstated above,1concludethatj
1396a(a)(43)(A) is mandatory, precise, and suffciently individualized under

Blessing topermitaclaim underj 1983.
V l.FIN D IN G S O F FA C T
The fndings offactw hich follow are taken from director circum stantial
evidence presented attrialorfrom inferences draw n from such evidence.
A.
T he N am ed Plaintiffs
1. S.51.
1.
S.M . becam e eligible for M edicaid shortly after he w as born in
A ugust 2006. PX 583-2 at 7-1+ 02294-98,TPF02305-07. S.B .,Il s.M .,s m other,
11s B voluntarily sentS.M .to live w ith his father in A ugustof2011so she could devote
moretime and energy looking forajob and an apartmentwhereshe could live with herthree
m inor children. S.B .on 12/06/2011 Rough Tr.at 90, 135. Later,S.M .and S.B.'S tw o other
minor children were rem oved from her legal custody as the result of a court order and
proceedingsinitiated by DCF. Id at89-90,135. W hile S.M .is living with his fatherabout25
minutesoutsideTallahassee,S.B.continuesto seeherson every week.Id at136. Those weekly
visitsarenotsupervised by DCF.Id at154.
Even though S.B .currently does nothave legalcustody of S.M .,S.B.is stilla properand
appropriate next friend. A n individual m ay sel've as a snext friend''of a m inor as long as the
37
chose Dr. Simm ons, who practices with the Tallahassee Pediatric Foundation
(TPF'')andwhowasherpediatrician forabout16years,tobeS.M .'Sdoctor.S.B.

on 2/11/2010 FinalTr.at 1782:9-22. S.M .w ason M edipassand assigned to TPF
on O ctober 1,2006. PX 582 at5. Since thattim e,S.B .has experienced difficulty
obtaining m edicaland dentalcare forS.M .

2. On July 5,2007, S.B.received a letter from TPF,which stated that
S.M .'S M edicaid had been canceled on June 30,2007. PX 583-2 at 15. B ecause
S.M .w as only eleven m onths at the tim e of the sw itch, the cancellation w as in
violation ofhis rightto tw elve m onths ofcontinuous eligibility. 1d.;PX 583-2 at

TPF002308;S.B .on 2/11/2010 FinalTr.at 1787:1-2.
3. In response to the letter,S.B .called the M edicaid num berto inform the
agency that S.M .'S benefits had been improperly canceled. She requested that
S.M .'S M edicaid be reinstated. S.B . on 2/11/2010 Final Tr. at 1786:18-22.
M edicaid retroactively restored S.M .'S eligibility, m aking it appear as if his
linext friend's'' interests are not adverse to the minor and the next friend'' is sufficiently
dedicated to them inor's interest.Gonzalez cx rel.Gonzalezv.Reno,86 F.Supp.2d 1167,1185
(S.D.Fla.2000)affdsubnom.Gonzalezv.Reno,212F.3d1338(11thCir.2000).A jarentmay
sue asa tnextfriend''even ifhe orshe haslostcustody to the state and his or herrlghtshave
been terminated provided the parentisadvancing the child'sinterests,and nothisown. M iracle
by M iraclev.Spooner,978 F.Supp.l161,1163-64,1168 (N.D.Ga.1997). Thekey issue is

whetherthe nextfriend's interests are aligned with those ofthe m inor child. See Dolin cx rel.
N D.v.rr:,22F.Supp.2d 1343,1353(M .D.Fla.1998)(stparentmaynotsueonbehalfofachild

wheretheparent'sinterestsarenotaligned withthoseofthechild'),aff'
d subnom.Dolin v.I'
E,
207F.3d661(11thCir.2000).
S.B.hasno interestsantagonisticto S.M .'s,and hasno m otive to serve ashisnextfriend
otherthan to ensure that S.M .receives the M edieaid benefits to which he is entitled. S.M .'s
father,T.M .,isalso willing to serve as S.M 'snextfriend. See PX 788 (Declaration ofT.M .,
filed on 01/31/2012,D.E.1121). Hisson hasbeen living with him sinceAugust,and T.M .'S
onlyinterestinthislitigationistoprotecthisson.Id at!! 1-8.IfforanyreasonS.B.isnotable
to continue as nextfriend forS.M .,lfind thatT.M .isan appropriate,substitute nextfriend for
S.M .
beneftshad neverbeen canceled. PX 582 at5;St.Petery on 2/09/2010 FinalTr.at

1491:3-7.
4. S.M .w asagain on M edicaid and again assigned to TPF from Augustl,

2007 through Septem ber 30,2007. PX 582 at5;St.Petery on 2/09/2010 FinalTr.
at 1486:21- 1487:5, 1491:3-18. On,October 5,2007,S.B.received yetanother

letterfrom TPF,inform ing herthatS.M .'S M edicaid eligibility was terminated on
Septem ber 30, 2007. This cancelation w as tw o m onths after his M edicaid
eligibility started on A ugust 1,2007 and constituted a violation of his rightto 12
m onths of continuous eligibility. PX 582 at 5;St.Petery on 2/09/2010 FinalTr.at
1486:21 - 1487:5, 1491:3-18; 1494:2-179 M ccorm ick on 8/12/2010 Final Tr.at
4132:24 - 4133:8; S.B .on 2/11/2010 Final Tr.at 1787:9 - 1788:1;PX 583-2 at
TPF02295,TPF002310. Once again,hiseligibility wasretroactively restored. PX

582 at 5;St.Petery on 2/09/2010 FinalTr.at 1494:14 - 1495:11. Contrary to
defendants'suggestion,Ido notfind thatthe cancellation w as valid.
5. S.M . w as not assigned to M edicaid from Septem ber 30, 2007 until
N ovem ber 1,2007.PX 582 at5.S.B .'S M edicaid eligibility resum ed on N ovem ber
1,2007,w hen he w as reassigned to TPF. 1d.
6. S.M .w as scheduled to see D r.Sim m ons in February 2008 for his 18-
m onthsw ell- child check-up. S.B.on 2/11/2010 FinalTr.at 1788:11 - 1789:14.

D r.Sim m ons'oftice told S.B .notto bring her son in for his appointm ent because
S.M had been assigned ortsw itched''to a M edicaid l4M O ,an insurance plan that
S.M .'S doctor did notaccept. S.B .on 2/11/2010 FinalTr.at 1788:11-1789:14;St.
Petery on 12/10/2009 Final Tr. at 1389:17 - 1391: 25; see also PX 658 at
Sim m ons000002.
ln February of 2008,som etim e after her visitto D r.Sim m on's office,

S.B. received a package from Universal, alerting her of the change. S.B . on
2/11/2010 FinalTr.at 1805:8-16. S.B .called M edicaid to resolve the issue.
8. An employee of M edicaid Options,which handled plan assignm ents

forM edicaid in non-Reform counties,noted in S.M .'S recordsthat S.B received a
letter in February stating that S.M .w as switched to another M edicaid plan and
called to change the plan back to M edipass. PX 583-2 at TPF02312; S.B . on
2/11/2010 Final Tr. at 1790:4-25. A FM M IS print screen show s S.M . w as
assigned to a M edicaid 1-1M 0 from February 1, 2008 through M arch 31, 2008.
M ccorm ick on 8/12/2010 FinalTr.at4136:25- 4138:21;PX 583-2 atTPF02319.

9. The M edicaid O ptions em ployee also noted that M edicaid sent S.B.a
letter,which gave her the option to choose a M edicaid plan but S.M .was autoassigned to a M edicaid 11M 0 when S.B .allegedly failed to m ake a choice. PX
583-2 at TPF02312-13. There is no evidence, how ever, that such a letter w as

actually sent. S.B .did not receive a selection letter from M edicaid or any other
state agency prior to Februaly of2008. S.B .on 2/11/2010 Final Tr.at l789:15 1790:3.12
10. S.M .w as not sw itched back to M edipass untilM arch 31,2008. S.B .
on 2/11/2010 Final Tr. at 1790:23-25, 1804:24
1805:7, 1817:18 - 1818:7.
D uring thatinterval,S.B.wasnotableto take herson to see Dr.Simm onsand was

concerned abouther son'shealth. S.B .on 2/11/2010 FinalTr.at 1791:9 - 1792:7.
'2D efendants suggestthatS.B.did notreceive the letterbecause she failed to update her
m ailing addresswith AHCA. SeeDefs.Corrected Proposed FindingsofFactand Conclusionsof
Law at 74. S.B .testitied thatshe m oved severaltim es during the firsttw o years of S.B.'S life.
S.B.on 2/11/2010 Final Tr.at 1783:12 - 178427. S.B.adm itted that she updated her address
with TPF butneverinform ed AHCA . During thattim e,S.B.received correspondencefrom TPF
ather grandmother's address.S.B.on 2/11/2010 FinalTr.at 1784:15-18. Her grandmother
would contactherifshe received any m ail. S.B.on 2/11/2010 FinalTr.at1784:19-21. Despite
thistestimony,Istilltlnd thatdefendants are responsible forthe switch. First,defendantshave
not subm itted proof that the selection letter w as actually sent to S.B . Second,S.B .w ould not
have had to apply forreinstatementor selecta M edicaid plan ifM edicaid did notim properly
tenninate S.M .'S benefhs shortof the required 12 m onths of continuous eligibility. S.B.on
2/11/2010 FinalTr.at 1821:23 - 1822:7.
40
O n another occasion,D r.Sim m ons referred S.M .to a laboratory for a
lead blood screening test. S.B.was not able to get her son's blood tested for
exposure to lead because it w ould have taken her an hour and a half each w ay,
traveling by bus,to getto the laboratory's location. S.B .on 2/11/2010 FinalTr.at
1793:17 - 1794:11,1798:19 - 1799:17;S.B .on 12/06/201l R ough Tr.at 111,143,
146. She also m issed appointm ents w ith D r.Sim m ons because of transportation
problem s. 1d.at 145-46. She did notknow she w as entitled to free transportation
through M edicaid. 1d.at 144-46.
2. L .C .
12.
w as hospitalized for seizures w hen he w as about 15 m onths old
and had seizures later in life as w ell. PX 655 at Tridas Center 000008;PX 65l at
Peace R iver 000016. L .C .m oved into S.C .'S hom e as a foster child w hen he w as
tw o years,eight m onths old,and S.C .later adopted him . S.C .on 1/11/2010 Final
Tr.at 1319:21 - 1320:1;1322:1-3. A s a child adopted through foster care,L.C.is
eligible forM edicaid regardless ofincom e. 1d.at 1322:4-9.

13. In A ugustof 2004,w hen L.C .w as about7 years old,S.C .took him to
be evaluated by a developm entalpediatrician because ofhisdevelopm entaldelays

and anxiety,which m anifested itselfin panic attacks and other extrem e behavior.
1d.at 1327:13 - 1329:15;PX 655 atTridasCenteroooool,000003,000007. The
doctor recom mended intense psychologicalservices. S.C.on 1/11/2010 FinalTr.
at 1331:21- 1332:1;PX 655 atTridasC enterooool1.
14. Based on her doctor'srecom m endation,S.C .took L .C .to see Elizabeth
Craig, who had an extensive history working w ith children w ith attachm ent
disorder. S.C .on 1/11/2010 FinalTr.at 1332:19 - 1333:10. M s.Craig,w ho does
not take M edicaid,recom m ended w eekly play therapy. PX 652 at C raig000105;
S.C.on l/11/2010 FinalTr.at 1336:20-21. ln Septem ber of2004,S.C.took her

41
son to PRC,the exclusive M edicaid m ental health provider in her area. 1d. at
1336:22 - 1338:12;PX 651 atPeace River 000009. Peace River,however,was
notable provide play therapy,and wasnotable to provide w eekly therapy. 1d.at
1338:13-17;1338:20 - 1341:25;PX 740 atD efendants 011707.
Peace Riverreferred S.C.to Dr.Jackie Reycraftfortherapy. S.C.on

l/11/2010 FinalTr.at 1342:19 - 1343:25. D r.R eycraftinform ed S.C .thatshe w as
leaving Peace R iver because, am ong other things, she had a case load of 110
patients. 1d. at47-48. A caseload ofthis m agnitude is unreasonable and w ould
hinder a therapist from proving adequate care to children. Sarkis on 1/19/2012

R ough Tr.at48-49,52-53,79-80.
16. D r.R eycraftalso stated that she could not deliver w eekly therapy to
1d. D r.Reycraftdeveloped a treatm entplan offering tw ice m onthly therapy
from C hristy B ishop. 1d.at 1333,1345. B ecause herson could notgetthe care he
needed atPeace R iver,L .C .paid for herson to attend w eekly play therapy sessions
w ith M s.Craig. 1d.at 1345:18 - 1346:6. A lthough these sum s w ere ultim ately
reim bursed,M edicaid could notprovide accessto the care thatL .C .needed.
ln 2005, a developm ental pediatrician recom m ended that L.C .begin
taking certain m edications. D r.H elen H ubbard m anaged L.C .'S m edication but in
2007 was unw illing to continue m onitoring the drugs. 1d.at 1355:2 - 1357:24.
There is no evidence to supportthat D r.H ubbard's unw illingness w as related to
the fact that S.C.w as on M edicaid. S.C.returned to Peace River because she
needed a psychiatristto prescribe and m onitor L.C.'S m edications, one of which
w as D epakote. 1d. at 1357:12-15; PX 651 at Peace R iver 000053; S.C . on
1/11/2010 Final Tr.at 1357:16-18;PX 651 at Peace River 000054 (ticurrent

M entalHealth M edications''include tr epakote 500 m.g.''). S.C.informed PRC
that she needed a psychiatrist to m anage her son's m edication because abrupt
rem oval from D epakote could cause seizures. S.C . on 1/11/2010 Final Tr. at
42
1357:19-24. PR C 'S records do not retlect that S.C. ever advised PRC that the
m atter w as urgent. Instead,PR C characterized the appointm ent as a routine visit.
PX 651 atPeace R iver 000053-000056.
18. PRC required that L.C.go through the intake process and be evaluated
by a therapistw ho w ould then determ ine w hetherL .C.needed a psychiatrist. S.C .
on 1/11/2010 FinalTr.at 1358:3-7. A s a result,PRC could not schedule L.C .for
an appointm ent for a psychiatrist for a period of tw o m onths or m ore. 1d. This
w ait w as reasonable because PRC w as not aw are of the urgency of the situation.
See Testim ony ofD r.Sarkis,1/19/12 ES 13-14,62-64,66-70,72-78,80-83,86-87,

89-91,104.
19. U nw illing to w ait tw o or m ore m onths for an appointm ent,S.C .paid
D r. H ubbard out-of-pocket to m onitor her son's psychotropic m edications for

about tw o years. 1d. at 1358:17-25; 1359:7-9. Eventually,M edicaid reim bursed
S.C.forthese out-of-pocketexpenses. 1d.at 1349:13-14.

20. W ith the help of D CF, S.C .w as later able to get her son in to see a
psychiatrist at The Sw eet C enter in W inter H aven,w ho continued to m onitor his
m edications. 1d.at 1361:9 - 1362:23.

K .K .
A .D .is the m other of K .K .,one of the nam ed plaintiffs in this action.

A .D .on 8/12/2010 FinalTr.at4046:22 - 4047:13. K .K w as born in D ecem berof
2003. A tthe tim e,A .D .w as living in Lehigh A cres,nearFt.M yers. 1d.at4049:8-
9. K .K .becam e eligible forM edicaid atbirth. 1d.at4050:5-6.

A .D .periodically has to renew her son's M edicaid. To do so,she can
either call and get a packet by m ail or fill out the renew al form online.In either
case,she has to figure outhow to com plete the form on her own. Som etim es she
had to callfive tim es perday for assistance. 1d.at4069:5-11;4072:1-14.
43
23. O ne day w hile visiting the D CF office, A .D . m et a Stayw ell

representative w ho discussed the benests of M edipass over Stayw ell. 1d. at
4055:8-23. The representative followed A.D .to her car and convinced herthat
Stayw ellhad m ore advantages than M edipass. 1d.at 4074. O n January 1,2005,
A .D . m ade a phone call to M edicaid to change K .K .'S M edicaid plan from
M edipass to Stayw ell. 1d.at4074-4075. The change becam e effective on M arch
1,2005. D X 49 atD efendants 10106;D X 54 atD efendants 10125.
24. Less than tw o w eeks later, on M arch 9, 2005, K .K . w ent to the
em ergency room atCape CoralHospitalbecause hisear started to bleed. The ER

physician characterized K .K .'S ear as itnon-urgent'' and treated him . The ER
physician consulted w ith D r. Liu, the EN T w ho previously put tubes in K .K .'S
ears,andnotedthatDr.John Donaldson,Dr.Liu'spartner,twgouldjseethepatient
tom orrow ...to suction outthe ear canals and evaluate the tym panic m em branes.''
K .K .w as discharged from the hospital in the early m orning hours on M arch 10,
2005. D X 56 p Cape Coral6,9-10;A .D .on 8/12/2010 at4082-83.

25. Thatm orning,A .D .called and m ade an appointm entw ith the office of
D r.Liu. 1d. at 4059:1-13. She soon received a callback, inform ing her that the
doctor could not see K .K .because he w as on Stayw ell,one ofthe M edicaid plans
thatthe doctordid notaccept. 1d.at4059:14-21;4087:8-15.
26. A .D .called the Stayw ell representative that convinced her to sw itch
from M edipass to Stayw ell and com plained that her current doctor did not accept
Stayw ell. 1d. at 4060:14-25. The Stayw ell representative referred her to a
Stayw ell-affiliated EN T specialistin Sarasota. 1d.at4059:22 - 4060:25;4061:1-6;
4081:3-7. A .D .did not ow n a car atthe tim e and w as not able to go to Sarasota
because it w as located an hour and 45 m inutes to tw o hours aw ay. 1d.at 4061:120.
44
27. D r.D onaldson agreed to see K .K .later that day,despite the insurance
problem . PX 612 at K K EL 00006; D onaldson D epo.D esig.at 78:18 - 80:18;
206:21-25. Because D r.D onaldson w as not a Stayw ell provider, he risked not
getting reim bursed for his treatm ent ofK .K . B ecker on 2/1/2012 R ough Tr.at30,
59-61. Dr.Donaldson determ ined thatK .K .had pussrunning outofhis leftear,a

displaced tube in hisrightear,and an effusion behind the m iddle ear. PX 612 atK
K EL 00006.
28. 1 find thatdefendants did notim properly sw itch A .D .from M edipass to
Stayw elland thatA .D .requested the change. l find,how ever,that defendants did
not provide suffcient access to EN T specialists under the Staywell plan. Ear,
nose, and throat diseases such as otitis m edia, sinusitis, and tonsillitis are
frequently encountered illnesses w ithin the pediatric population, and Stayw ell
should have had an EN T on its panel in a m etropolitan area such as Ft.M yers.
B ecker on 2/1/2012 Rough Tr. at27.13
29. Children on privateinsurancewould notbesubjectedtothehardship of

traveling to a differentm etropolitan area to obtain routine EN T care.14 u .at28.
The m other of a child w ith private insurance would not have experienced such
difficulty in obtaining care. 1d.at30-31.
13D r. M arie Beckeris a board certified otolaryngologistw ho hasbeen in private practice
since 1995,treating children and adultscovered by both private insurance and M edicaid. Becker
on 2/1/2012 Rough Tr.at9-10. Ifind her credible and knowledgeable and certify her as an
expertinotolaryngology. DefendantshaveobjectedtoDr.Beckerandtheotherwitnesseswho
havegiven experttestim ony asto thenam ed plaintiffs'lack ofadequateand promptcare. Ihave
considered these m otionsto exclude the expertw itnesstestim ony and deny them as each ofthese
expertsiscompetentto testify asan expertbased on areview ofthem edicalrecordsand thetrial
testim ony. Further, I find their testimony m ore credible than the conclusory opinion of
defendants' expert,M s.Catherine Sreckovich (who is a non-physician),regarding the care

afforded each ofthe nam ed plaintiffs.
14 Defendantsproduced evidence, which show ed that Stayw ell had EN T providers near
Ft.M yerson itspanelasofM ay 2009,see DX 65A . Thisevidence,however,is insufficientto
establish that Staywellhad available ENT specialist on its panelin 2005,the tim e that K.K.
needed m edicalattention.
45
30. D efendants also failed to infonn A.D .of her rights under M edicaid.
A .D . did not know that K .K . w as entitled to dental coverage through M edicaid
untilafter she becam e a plaintiff. A .D .on 8/12/2010 FinalTr.at4063:13-21. She
did notrealize,even after receiving a letter dated D ecem ber 12,2007 from A H CA
regarding w ell-child check-ups,thatM edicaid covered dentalcare for A.D . 1d.at

4064:11-25;4106:17 - 4108:2;4066:13 - 4067:1;PX 612 atK 1G 1-,00097.
ln November of 2009,K .K 's doctor prescribed Adderall to treat his

attention hyperactivity disorder. D X 55C at A ssociates in Pediatrics000366-67.
A .D .on 1/25/2012 Rough Tr.at54. A .D .and K .K .'S pediatrician w entthrough a
process oftrialand error lasting severalm onths to find outw hatm edication and at
whatdosage wasm ostbenefcialforK.K . A .D.on 1/25/2012 at55-56;DX 55C at

A ssociates in Pediatrics 000278,295-96, 300,322,324. Eventually,they settled
on V yvance at about 50 m .g.a day. A .D .on 1/25/2012 R ough Tr.at 56. A tthat
dosage,K .K .,w ho failed kindergarten the yearbefore,becam e a straightA student.
1d.at56-57.
32. K .K .w as noton M edicaid fora few m onths in late 2010 through early
2011 because A .D .did notm eetthe econom ic eligibility requirem ents during that
time. f#.at70. A.D.lostherjob in January of2011 and in February K.K.was,

once again,eligible M edicaid. 1d.at70. M edicaid asked A .D .to selecta plan for
K .K . and she chose M edipass. 1d. at 71-72. K .K ., how ever, w as assigned to
Stayw ell, w ithout A .D .'S consent. 1d. at 58. A .D . did not know that K .K w as
assigned to Stayw ell. 1d.at58.15
33. The result of the sw itch w as harm ful to K .K . Stayw ell denied the
prescription for Vyvance because
first required K .K . to fail on
15 K K was also sw itched on another occasion to a M edicaid H M O that K .K 's

pcdiatrician'soffice did notaccept. A .D .on 1/25/2012 Rough Tr.at73.
D extroam phetam ine, the key ingredient in A dderall. D X 55C at A ssociates in

Pediatricsoooo76.
W hile appealing Stayw ell's denial,id.;A .D .on 1/25/2012 Rough Tr.at
57-59,the pediatrician putK .K.back on Adderallasa fsubstitute''because itw as

the only m edication that Stayw ell w ould approve. D X 55C at A ssociates in
Pediatrics000076-77;A .D .on 1/25/2012 Rough Tr.at59-60,63. A fterK .K .began
taking A dderall,his teacher com plained abouthis conductand his m other also saw
a signifcant deterioration in his conduct. 1d.at 64-65;D X 55C at A ssociates in
Pediatrics000076-77.
K .K . w as changed back to M edipass, and began retaking V yvance
about m id-M ay. A .D .on 1/25/2012 R ough Tr.at 75. The doctor had to increase
the dosage ofV yvance to getitto w ork as ithad before. 1d.at65.
4. N athanielG orenflo
36. Rita Gorenflo is the m other ofN athanielG orentlo,one of the nam ed
plaintiffs in this action. Gorentlo on 5/18/2010 FinalTr.at2290:23 to 2291:2.
The G orenfloslive in Palm B each County 1d.at2298:3-4.16
.
37. M s.Gorenflo is a registered nurse who spent 18 years working in the

em ergency departm entatdifferenthospitalsin Ohio and Florida. 1d.at2289:19 2290:7;2290:11-13. She has adopted seven children w ith specialhealth care needs
who were in foster care. 1d.at2291:3-6,2291:15-16;2292:1-8. Allthe children

are enrolled in CM S and allare eligible for M edicaid regardless of the fam ily's
incom e because they w ere adopted through foster care. 1d at 2291:17-21;
2291:22-25.
16 M S. Gorenflo has agreed to allow hername and her children's nam es to be used in
these proceedings. f#.at2288:21-23.
38. Nathaniel's birth m other was on cocaine at the tim e Nathaniel was
born. 1d. at 2293:16-21. H e later developed A ID S. 1d.at 2293:20-22;2294:11-
He is developm entally delayed,hasm ultiple psychiatric issues,id.at2294:610, and sees a num ber of different m edical providers and specialists. 1d. at
2294:20-22.
39. ln 2005, M s. G orenflo w as unable to obtain tim ely EN T care for

N athaniel. The incident began on July 13, 2005,w hen M s.G orentlo called her
nurse coordinator atCM S and said N athanielneeded to see an EN T physician right
aw ay.1d.at2295:23 - 2296:23;PX 617 atNG CM S000756. M s.Gorenflo called

CM S because she did not know ofany EN TS in Palm Beach C ounty that accepted
M edicaid otherthan through CM S. 1d.at2297:24 - 2298:4.
40. W hen M s.G orentlo called CM S on July 13,2005,to request an EN T

appointm ent for N athaniel,her son w as in pain. 1d. at 2299:2-23. M s.G orentlo
told CM S that her son w as in pain and needed to be seen right aw ay. 17 u at
2300:7-13. She explained that her son could not tellher w here the pain w as but
w ould tscream and bang hishead''and putthe w hole house in tttotalchaos.'' 1d.at
2299:24 - 2300:6.
41. M s. Gorenflo wanted her son to be evaluated by the doctor quickly

because of his com prom ised im m une system and history of ear problem s and
chronic sinusitis. 1d.at2311:24 - 2312:5;2294:17-19;231l:14-23.
171 find M s. G orenflo to be a credible witness and credither testim ony thather son w as
in pain and thatshe infonned CM S ofthe same when she called CM S and theENT'Soffice in
July of 2005 and asked for a prom pt appointm ent for N athaniel. Typically, the person w ho
spends m osttim e w ith the child is m ost know ledgeable about w hether the child's behavior is
norm al,and because N athanielwas developm entaldelayed and could notexpressthrough words
whetherhewasinpain,whathismothersaid abouthiscondition wasparticularly im portant.See
Beckeron 2/1/2012 Rough Tr.at15-16.
Furthermore,Paula Dorhout,a nursing directoratthe Children M edicalService'soffice
thatservesPalm Beach Count,agreed thatM s.Gorentlo isavery dutifulcaregiverandthatifshe
said herson wasinpain,M s.Dorhoutwould acceptMs.Gorentlo'sjudgment. SeeDorhouton

4/4/2011Rough Tr.at3,144.
48
42. M s.G orentlo w as inform ed thatthe nextavailable appointm entw as in

six m onths. 1d. at 2300:14-18.18 M s.G orenflo said a six-m onth w ait w as not
acceptable because N athaniel w as in pain and needed an EN T evaluation
im m ediately. 1d.at 2302:10-20.19 A fter num erous phone calls stretching outover
several days,an EN T fnally evaluated N athanielon July l8 - fve days after his
m other said he needed an im m ediate appointm ent. 1d. at 2303:13 - 2304:8;
2305:11 - 2306:4; 2310:4-8; 2310:15 - 2311:13; PX 617 at N G CM S00756.
Proper procedure dictates thata child w ho is in a greatdealofpain in his ear m ust
see an EN T physician im m ediately. See D orhouton 4/4/2011 R ough Tr.at 145.
43. N athaniel has a history of chronic sinusitis, as evidenced by his
m edicalrecords. Becker on 2/1/2012 R ough Tr.at 12;DX 43 N .G . CM S000717,
-
731,and 734. Thathistory m akes itm ore likely he w illsuffer from sinusitisagain.
Becker on 2/1/2012 Rough Tr. at
B ecause N athaniel has A ID S, he w as
im m une-com prom ised and susceptible to infection. 1d.at 15. The factthathe had
A ID S m ade it im portant that he be seen and diagnosed quickly, before any

infection could spread. 1d. at 14-15, 19-21. Pain is one of the key signs an
infection is progressing. 1d. at 15. G iven his sym ptom s,the fact that he w as in
pain,and suffered from A ID S,N athaniel should have been evaluated by an EN T
physician the day his m other requested an appointm ent or atthe latest on the next
day. 1d.at 19-21.
18The July 14, 2005,entry in the CM S ntlrsing notes,which indicates thatM s.G orenflo
called on July 13 and asked for an EN T appointm ent for N athaniel A SA P, does not say M s.
G orenflo was offered an appointm entin six m onths. H ow ever,the notes are incom plete and in
factthere is a 16 or 17 m onth gap atone pointbetween entries even though M s.Gorenflo never
went that long w ithout taking N athanielto a CM S clinic. Gorenflo on 5/18/2010 FinalTr.at
2300:23- 2302:7,
*PX 617 atN G CM S 000756.
19M s. Gorenflo also called CM S in February of2008 to seehow long thewaitwould be
foranother ofherchildren to get into a CM S EN T clinic;the w aitw as four m onths.'' Gorenflo
ON 5/18/2010 FinalTr.at2315:3- 2316:5. M s.Dorhout,the CM S nursing supervisorin Palm
Beach County, testified that in April of 2011 the w aiting list for the CM S EN T clinic w as
probably two tothreem onths. Dorhouton 4/4/2011Rough Tr.at52.
49
44. A patientwith the sam e symptom s and private insurance would have
been seen by an EN T either the sam e day or atthe latest,the follow ing day. 1d.at
21-22.20
45. N athaniel experienced m uch greater diffculty accessing care than
would a sim ilarly situated child with private insurance. 1d. at 23. Having
N athanielw aitfive days for an EN T evaluation w as ttunreasonable.'' 1d.at25. H e
should have received an EN T evaluation the sam e day his m other called or at the
very the latest,the nextday. 1d.at25.
5. J.S.
46. K .S.isthe m otherand nextfriend ofJ.S.,one ofthe nam ed plaintiffsin

this action and lives in Jupiter. K .S. on 5/17/2010 Final Tr. at 1953:24-25;
1955:23 - 1956:5. J.S.hasbeen on M edicaid since birth. 1d.at 1957:13-14.
47. J.S. has variable im m une defciency, w hich m eans she lacks an
im m une system and can get sick very easily. 1d.at 1958:11-19;1958:23 - 1959:2.
J.S.sees D r.G ary K leiner at the U niversity ofM iam ifor her im m une defciency.
1d. at 1959:16-2 1. D r. K leiner restricts patients w ith M edicaid to Thursday
appointm ents only. 1d.at 1959:22 - 1960:4. Dr.Kleiner,however,sees patients

w ith privateinsurance on otherdaysofthew eek.1d.at1960:13-18. Attim es,J.S.
has had to w aitup to a m onth for an appointm ent. 1d.at 1960:19-21.
48. J.S.has broken her ankle on several occasions. The first tim e w as in
2000. 1d.at 1961:10-l3. K .S.took her daughterto Jupiter M edicalC enter,w here
they splinted herankle,and referred herto an orthopedist. 1d.at1961:10-19. The

20 In her practice, Dr.Becker makes sure to see a child in pain the same day or atthe
latestthe next day,regardless of w hether the child is H IV positive orhas A ID S. 1d.at22. The
factthata child isHIV positive orhasAIDS addsto the im portanceofseeing theehild quickly.
1d.at22. She also m akes sure,ifshe receive a callabouta child in pain on a Friday,to see the
child thatday so the child doesnothave to w aituntilM onday foran appointm ent. f#.at22-23.
orthopedistdid nottakeM edicaid. Forseveraldays,K .S.called orthopedistsin the

phone book to find one to treatJ.S. 1(L at 1961:20 - 1962:5.
49. J.S.injured herankle a second time in 2003 on a Saturday when she

wasseven yearold and slipped on som e waterin a W izm D ixie. 1d at 1962:6-13;
PX 743 atJM C000152. Shetook herdaughterto theJupiterM edicalCenteragain,
and again,they puton a splint,gave her crutches,and referred her to an orthopedist
for follow -up care. Id. at 1962:14-214 PX 743at JM C000147-157. That
orthopedist agreed to see her daughter but only if she paid for the visit. K .S.on
5/17/2010 FinalTr.at 1962:19 - 1963:4. The initialvisitalone w as going to cost
about$300.16L
50. K .S. then called a 1-800 M edicaid num ber for suggestions for an
orthopedist. 1d.at 1965:17-22. She called allthe doctors she w as given butno one
w ould agree to treather daughter because she w as on M edicaid. 1d.at 1965:23 1966:5; 1967:10-13. She also called orthopedists listed in the Y ellow Pages for
Palm B each C ounty w ithoutsuccess. 16l at 1966:6-18; 1967:10-13. She called St.
M ary's H ospitalfora referralbutcould notfind an orthopedistthatw ay either. 1d.
at 1966:19-22. N one of the orthopedists she called would agree to treat her
daughter as a M edicaid patient. 1d at 1967:17-19; 1996:22 - 1997:13;2023:18 2024:1.
51. Finally,w ith help from a 1aw firm ,she obtained an appointm ent w ith
an orthopedist. 1d.at 1967:20 - 1968:7;2024:2-3.
52. In 2007,J.S.injured herwrist,K.S.on 5/17/2010FinalTr.at1971:1-6;

2001:4-12,and w as given a splint in the E.R .and referred to an orthopedist. 1d.at
1971:7-13. K .S.called the orthopedistthatthe em ergency room recom m ended,but
shew asunableto getan appointm ent,despiteherdiligentefforts. 1d.at1971:141973:6.
51
53. Eventually,theUniversity ofM iam igave K.S.som e suggestionsforan

orthopedic doctor.1tL at 1973:7-14. Two ofthose doctorstold herthatthey could
notsee J.S.for a couple ofweeks,even though K.S.explained thather daughter
had a broken w rist and needed follow -up care. 1d. at 1973:15-16; 1973:22 1974:3. The third doctor,D r.A ileen D anko,agreed to see J.S.three days after she
broke her w rist. 1d. at 1973:20-21; 1974:14 - 1975:9; 2023:1-3; PX 746 at
D A N K O 000001 to 000020. D r.D anko's offce isin CoralSprings and is aboutan

hour and a half drive each w ay from K .S. 's hom e.21 Id. at 1975:10-15. K .S.took
herdaughterto see Dr.D anko aboutfourto five tim es.1d.at1975:16-18.

54. The dentist,w ho used to treatJ.S.and billM edicaid for her treatm ent,
refused to continue seeing her w hen she turned 14. 1d.at 1976:25 - 1977:5. K .S.
called a num berof dentists trying to find a dentistw ho w ould acceptM edicaid and
treat her,but could not find a M edicaid dentist. 1d.at 1977:6-11. Eventually,
J.S.'S form erdentistagreed to continue seeing her.
55. To m aintain J.S.'S M edicaid,K .S.has to go through a recertification
processevery six m onths. 1d.at 1977:14 to 1987:4. W hen shehastried to callthe

M edicaid office,she had difficulty getting through because the line w as busy. 1d.
at 1978:5-17.
6. N .V .
56. N .V .wasbom in Febnlary of2004,in New Jersey. K .V.on 8/13/2010

Final Tr. at 4228:16-17. N .V . suffers from hydrocephalus and w as ultim ately
21Itakejudicialnoticeofthedistance and purporteddriving time,accordingto Google

and M apouest,from Jupiterto Dr.Danko'softice.D.E.1127,1136,and 1137. GA Courtmay
take judicialnotice ofthe driving distance between two points located in the record using
m apping serviceswhose accuracy cannotreasonably bequestioned.'' United States v.Williams,
476F.Supp.2d 1368,1378(M .D.Fla.2007)(citingFed.R.Evid.201(b);Gordonv.fewistown

Hosp.,272F.Supp.2d393,429(M .D.Pa.2003),
*Richardv.BellAtl.Corp.,209F.Supp.2d23,
27n.2 (D.D.C.2002)). Both thedistanceand drivingtime arefartherifone startsfrom K.S.'S
actualhom e address,notsim ply from Jupiter.
diagnosed with Shw achm an Diam ond Syndrom e, which causes pancreatic
insufficiency. 1d.at4229:6-20;4243:3-9. Propernutrition is therefore criticalto
N .V .'Shealth.1d.at4242:23 - 4243:2.
K .V .applied forM edicaid forN .V .while the fam ily wasstillresiding
in N ew Jersey. Id. at 4230:3-16. N .V .is disabled,by social security standards,
and thus entitled to receive M edicaid. 1d.
58. K .V . and her fam ily m oved to Florida in 2005. 1d. at 4246:22
4247:1. W hen N .V .w as aboutthree,he developed t00th decay,w hich he is prone
to aspartofShw achm an D iam ond Syndrom e. 1d.at4243:17-25.

59. K .V .took N .V .to D r.Charles M .Robbins,w ho treated N .V . for his
t00th decay and adm inistered his cleanings from January to Septem ber of 2007.
16L at 4236:18-20. In Septem ber of 2007, how ever, D r. R obbins advised that
because N .V .needed caps,he w ould no longertreathim . 1d.at 4238:18-22.22 o r.
R obbins further explained that if N .V .lost a cap,M edicaid w ould notpay for a
replacem ent; thus, it w ould be iivel'y hard'' to find som eone w ho w ill accept
M edicaid to do thatw ork.'' 1d.at4278:11-23.
60. Using the M edicaid handbook,K .V .m ade calls to m ultiple officesbut

could not find a dentist in her area w illing to treat N .V . 1d.at 4240:10-16. She
said nothing about N .V .'S com plex m edical condition; she did,how ever,identify
M edicaid asthe fol'm ofpaym ent. 1d.at4241:13-16.
U ltim ately,she was referred to Dr.Howard Sclmeider who is located

office is tw o hours from her hom e. 1d.at 4231:11-16,
.4242:8-19;4243:22-25. A
m onth later,N .V .had his firstappointm entw ith D r.Schneider. 1d.at4242:13-17;
PX 673. By thistim e,N .V .'S appetite had dim inished because ofthe t00th decay
22Though Dr. Robbins'notesinclude a notation thathe doesnotdo Glwhite''fillings,PX
672,K.V.recalled the only reason Dr.Robbins told her for refusing to treat N.V.was that
M edicaid would notpay for a second cap in the eventthe child lostone. Id.at 4239:3-15.
U ltim ately N .V .gotboth stainless and white caps. ld at 18-20.
53
to the pointthathe w as only drinking m ilk. 1d.at4243:15-19. D r.Schneiderw as

the only dentist K .V .could find w ho w as w illing to treat N .V . 1d. at 4279:7-10,
.
4279:18-25. N .V .continues to see D r.Schneider. fJ.at423 1:11-20. K .V .takes
N .V .to see D r.Schneider fourtim es a year due to hisproclivity to t00th decay. 1d.
at4243:22-25.
62. In the fall of 2011,N .V .'S neurosurgeon,D r.O livera,referred him to

see a neuropsychologist after N .V .began to experience difficulty com prehending
in school. K .V .on 2/1/2012 R ough Tr.at 73,75. D r.O livera explained to K .V .
that learning problem s are a com m on issue for children w ith hydrocephalus and
recom m ended thatN .V .be evaluated by a neuropsychologistbefore the startofthe
schoolyear. 1d.
63. D r. O livera referred N .V .
neuropsychologist group w ith tw o
offices:one in O rlando,near N .V .'S hom e,and the other in M elbourne. 1d at74.
75. In early Septem ber,K .V .attem pted to m ake an appointm ent,explaining that
her son w as on M edicaid. 1d. at 74-75. The O rlando office did not have any
available appointm ents and the M elbourne office could only offer an appointm ent
in January w ith D r.Lyons. 1d. at 76-77. M oreover,D r.Lyons's office did not
com m itto seeing N .V .in January,butinstructed K .V .to callback forconfirm ation
of whetherN .V .could be seen. f#.at 76. K .V.called back to the oftsce every
w eek for the next six w eeks to find out w hether or not D r.Lyons w ould agree to
treat N .V . 1d.at 77-78. D uring this period,K .V .asked both D r.Lyons and D r.
O livera for a referral for a neuropsychologist w ho w ould accept M edicaid, but
neither could provide one. 1d.at 77. Finally,w ith assistance from D r.O livera,
K .V .w as seen by D r.Lyons in N ovem ber of 2011,about tw o m onths after N .V .
firstsoughtan appointm ent. 1d.at77-79.
7. J.W .
64. ln 2004 and until otherwise specified, J.W . resided in Pensacola,

Florida with his grandmother,E.W .,who serves as his next friend in this action.
On D ecem ber 2l,2004,E .W .took J.W .to see his pediatrician because he w as
com plaining of a pain in his thigh. PX 629 at W hibbs 000008. The pediatrician
ordered x-rays of his knee and fem ur,and found a tum or on J.W .'S thigh. E.W .
6/16/2010 D epo.D esig.at 11:24 - 12:10.

65. The pediatrician referred J.W .to an oncologistatthe N em oursH ospital
in Pensacola for an urgentconsult. The oncologistexam ined J.W .a few days later
and,because itwasalm ostChristm as,agreed to letJ.W .go hom e forthe holiday.

The oncologist began treatm ent im m ediately thereafter.
PX
630 at
JW C M S000027.23 O n D ecem ber27,2004,less than a w eek from the tim e when

J.W .w ent to his pediatrician, the oncologist operated on and rem oved a tum or
from his leftthigh. PX 630 at JW CM S00003l;E .W .6/16/2010 D epo.D esig.at
12:11- 14:14.
66. On July 20, 2005, E .W . took J.W . to his previously scheduled
appointm entatNem ours to see Dr.Chatchaw in Assanasen. EW 6/16/2010 Dep.

D esig.at 134:1 - 135:7. J.W .com plained of pain in his neck that resem bled the
pain in his thigh six m onths earlier. E.W . 6/16/2010 D epo. D esig. at 19:22 20:17. D r.A ssanasen suspected a recurrence of his tum or,saying the com plaints
of tneck pain'' ttw ere highly concerning of new disease,'' PX 634 at N em ours
000145,and w anted to perform an im aging study,either a CT scan or an M R I,to
see ifthe tum orhad returned. 1d.at000l57.
23 The adm ission history states the x-ray was made on 10/22/047PX 630 atJW CM S
000027,butthatis clearly a typographicalerrorbecause the x-ray w asdone on 12/22/04.
- .
67. The sam eday,Dr.A ssanasen'soffice soughtauthorization from Hea1th

Ease to perform an im aging study. 1d.at000145;000157. Atthattim e,J.W .w as
on M edicaid, and assigned to H ealth Ease,a M edicaid l-1M O . O n A ugust 2,the
requestw as stillpending and D r.A ssanasen personally called the 11M 0 to try to
expedite authorization for the CT scan. 1d.at 000157 (8/2/2005 note at 11:45
a.m .). Authorization was stilldelayed. Nemours 000145 Csdifficulty obtaining
authorization for imaging studies''); 1d. at 000065 (tdifficulty abtaining (sicq
imaging studies'');E.W .on 6/16/2010 Depo.Desig.at26:22-25;31:6-19;36:1724;137:2-24; 195:5-22.
68. E.W . and the rest of the fam ily w ere deeply concerned, PX 634 at
N em ours 000157, as J.W .'S pain w as getting w orse. E .W . on 6/16/2010 D epo.
D esig.at27:6 - 28:15. E.W .called D r.A ssanasen's office every day to see ifhe
had been able to obtain authorization for an im aging study. 1d.at 27:25 - 28:15;
29:9-20.
69. Partof the delay in approving the im agining study apparently resulted
from the fact that the M edicaid 11M 0 had sw itched J.W .'S prim ary care provider
w ithout the know ledge or consentof E .W . J.W .'S prim ary care provider w as D r.
W illiam J.W hibbs, PX 629 at W hibbs 000008; PX 630 at JW CM S 000003;
E.W .6/16/2010 Depo.Desig.at 46:16 - 47:8,but he sw itched to Dr.Patrick

M urray.E.W .6/16/2010 Depo.Desig.at49:23- 50:23.
70. A s partofthe process of getting H ealth Ease to approve the im agining
study to see if the tum or had spread to J.W .'S neck, E.W .had took J.W .to be
evaluated by D r.M urray on A ugust 10,2005. PX 632 atM urray 00001-3;E.W .
6/16/2010 D epo.Desig.at51:21 - 52:16. Dr.M urray,again,recomm ended the

C.T. scan for J.W . The study w as finally com pleted on A ugust 24, about five
56
w eeks after D r. A ssanasen's offce initially sought authorization from the

insurance com pany.24 PX 634 atN em ours()()():jq.aa.
71. The study revealed that the tum or had spread to E.W .'S neck and
caused tisignificantbony disruption and tum orinfiltration to the spinalcanal.'' PX
634 atN em ours 000143. ft-l-he site of this new lesion w as highly concerning for
cervicalinstability asw ellas risk ofspinalcord depression ifthe m ass w asallow ed
to spread.'' PX 634 at N em ours 000145. J.W .w as ddem ergently adm itted'' for
evaluation by both oncology and pediatrics. f#. The doctors began treating J.W .
w ith chem otherapy and placed him in a Philadelphia collar to stabilize his neck.
1d.at000149.
72. H is oncologist w anted to adm inister the chem otherapeutic agents
through an infusaportbecause the agents are caustic and could burn his skin,but
dueto delay in receiving approval,thiswasnotdone. 1d.at000146 (stherapeutic

agentswhich can ifextravasated into peripheralskin cause significantburns''),
'id.
24 D efendants suggestthatthe delay in authorization was due to the factthatD r. M urray,
who was responsible for arranging and approving specialist care w as notcontacted tm tilA ugust
10. See Defs.'Corrected Proposed FindingsofFactand Conclusions ofLaw at87-88. E.W .
testifed that Dr. Assanasen infonned her that he would handle the authorization. E.W .
6/16/2010 D epo.D esig.at 136:15 - 138:12. She stated thatshe relied on Dr.A ssanasen because
shelfiguredthathe'dknow morethan (sheldid aboutwhototalkto,so gshelleftituptohim.''

A dditionally, J.W .'S PCP w as sw itched to D r. M unuy on A ugust 1, 2005, w ithout E.W .'S
consent. Id. at 46:16 - 47: 8. l find that E.W .reasonably relied on D r. A ssanasen to obtain
authorization forthe C .T.scan. Ifurther find thatE.W .did notcontribute to the delay ofthe CT
scan by notcontacting Dr.M urray.
Defendants also suggestthatthe CT scan wasnoturgentbecause Dr.M urray noted that
ta Heating pad gwasla11thatisusually needed to make gthe pain in J.W .'Sneck)go away.''
Defs.'Corrected Proposed FindingsofFactand ConclusionsofLaw at88. Thatthe pain could
be treated with a heating pad does not negate the factthatthe scan was urgentto determine
whether J.W .'S cancer had returned. ltind thatthe five w eek period ittook to authorize the CT
scan constituted an unreasonable delay. A child w ith private insurance w hose physician ordered
an im aging testbecause he suspected the child had a tum orwould likely be able to obtain an
imaging study within a day or two,and in no event would have to wait m ore than a week.
Having to waitfive w eeks for a study w as below the standard of care. M iddlem as on 1/31/2012
Rough Tr.at5-6.
57
at000150 (t-lahe chemotherapy wasgiven tlzrough a peripheralvein,aswe have

not yet received approval from H ealth Ease to have a surgical consultation for
Port-A-cath placement.'') The doctors began administering the chemotherapy

intravenously,through a syringe in late A ugust,so there w ould notbe a delay. 1d.
at000149;E.W .6/16/2010 D epo.D esig.at57:5-15;58:2 - 59:15; 149:8-19. The
infusaport w as subsequently approved by the M edicaid 1-IM O , and installed on
Septem ber l5,2005,m ore than tw o w eeks afterthe chem otherapy began. PX 631
atSacred H eart000117.
73. J.W .was later switched fora second time,thistim e from Hea1th Ease
to straight M edicaid''in about M arch of 2007. E.W .6/16/2010 D epo.D esig.at
64:23 - 66:2;67:22 - 69:3. E.W .did not requestthe switch and had to pay for
J.W .'S psychologist herself because the psychologist w ould not accept straight
M edicaid.'' 1d.
74. E.W .later had trouble obtaining dental care for J.W . and there w as a
period ofseveralm onths w hen he did nothave dentalcare untilE.W .heard abouta
new dentalclinic atSacred H eartH ospital. 1d.at74:2-24.
75. Stilllater,E.W .had trouble renew ing J.W .'S M edicaid and had to call
the 800 num ber to tly to fix the problem . Every tim e she called the 800 num ber
shehad to spend two hourson hold.1d.at76:16 - 77:15. J.W .w asnotenrolled in

M edicaid for aboutsix weeks before E.W .w as able to negotiate the bureaucracy
and get his M edicaid renew ed. 1d.at 79:2-9. She had to pay out of pocket for
J.W .'S A D I'ID m edicine because he could notgo w ithoutthe m ediation. Since she
did nothave the m oney her daughterpaid forthe m edication forher. 1d.at80:24 81:25. E.W . has had repeated problem s w ith the M edicaid application. 1d. at
199:11-19.
B. FloridaM edicaid ReimbursementRates(FeeforService)

76. M -ICA is responsible for setting the reim bursem ent rates paid to
physicianswhoprovideM edicaidservices.SeeFla.Stat.j409.902.
77.
A H CA sets M edicaid rates for physicians' services as a fraction of
M edicare rates,w hich are determ ined by the federalgovernm ent. See PX 128A ,
1/3/08 M em orandum from B .K idder to C. Snipes;PX 685,11B 329 A H CA B ill
A nalysis at AH CA 00755762; PX 495,D r. Sam uel Flint Report at 13-14. The

dtM edicare fee schedule is derived and updated through a com plex process done in
collaboration w ith
m edical provider groups as w ell as health policy
researchers.'' PX 495, Flint Report at 13. That process results in the R esource
Based Relative Value System ($dRBRVS''),by which allhealth care services are
assigned a code and a total relative value based on physician w ork, practice
expense, and m alpractice expense. See PX 128A ; PX 685 at A H CA 00755762.
The federalgovem mentadjusts the M edicare rates for each procedure code to
account for geographicalpractice cost variations. See PX 495,FlintReportat 13.
Even though the resulting M edicare rates dshistorically have been below private
m arketratesl,q''they are intended to providecurrent,fairrelative reimbursement

ratesthrough (ajquasi-public utility modeldriven by production costtheory and
tem pered by realw orld data and clinician review .'' f#.at 13.
78.
A H C A determ ines Florida M edicaid rates for physician services,
exceptfor certain codes thatare held apartfrom the norm albudgetary process,by
applying a conversion factorto the M edicare ratesso thattotalexpected outlays for
M edicaid services fit w ithin the program 's appropriations from the Florida
Legislature. See PX 128A ;PX 685. ln other w ords,to achieve budget-neutrality,

A H CA uses a conversion factor to convert M edicare's reim bursem ent rates into
low er rates for use in the Florida M edicaid program . A s an internal State
m em orandum explains'
.
59
The A gency determ ines physician fees using the M edicare R esource
Based R elative V alue System ....The relative value is m ultiplied by
a conversion factorto determ ine the fee. The Agency forHealth Care
A dm inistration calculates a conversion factor to m aintain budget
neutrality,unless the legislature provides additional funding for the
physician servicesbudget.
PX 128A .See also PX 685.
In 2008,the conversion factor w as 34.0682 for M edicare,com pared
with just 19.6332 for M edicaid. See PX 128A atAHCA 00981413;Snipes on

12/9/2009 FinalTr.at 357:7-23. Generally speaking,this m eans thatM edicaid
rates for children's prim ary care services are about 40% less than M edicare rates
forcom parable services,both in the fee-for-service and the m anaged care contexts.
See PX 128A;PX 495,FlintReportat 14 (comparing FloridaM edicaid ratesfor
primarycareand specialty careservicestoM edicarerates).

80. ln discharging its responsibility to setphysician reim bursem entrates,
A H CA does not consider w hether the reim bursem entrates are sufficient to ensure
thatchildren on M edicaid have access to health care services equalto thatof other
children in the generalpopulation. See Snipeson 12/9/2009 FinalTr.at360:9-20;

K idder on 5/19/2010 Final Tr.at 2492:14 - 2494:19. N or does A H CA consider
whether the ratesare sufficientto ensure thatEPSDT services are m ade available
with reasonable prom ptness. 1d. Throughout this litigation, defendants have
disavowed any legalresponsibility forensuring thathealth care servicesare m ade
available to children on M edicaid, arguing that their duty is to provide paym ent
w ith reasonable prom ptnessw hen such services are rendered. See,e.g.,D .E .548-3
(Def.M ot.forSumm .J.at5).

81. A H CA has not conducted studies as to w hether physicians' fees are
sufficient to com ply w ith the law . See, e.g., Snipes on 12/9/2009 Final Tr. at
360:21- 362:23.See also Kidderon 5/19/10 FinalTr.at2649:2-18 (AHCA has
notconducted any studies sincethatreferenced in a 2003 LBR stating thatA HCA
had(foundcriticalshortagesofM edicaidparticipatingphysiciansinthestate.'').
82.Although certain codes for office-based and preventative health care
visits are held outside the budget neutrality'' and conversion factor analysis,an
overwhelm ing num berofcodesare not. See W illiam son 10/17/2011Rough Tr.at
133-134;K idder on 5/19/2010 Final Tr. at 2502:5-14; D X 470. Even for those
codes,trial testim ony show s that cun-ent Florida reim bursem ent for M edicaid is
substantially below the level provided for M edicare reim bursem ent for the sam e
office-based services that are the m ost com m only billed codes. See K idder on
5/19/2010 FinalTr.at2497:16 - 2499:1.221.Plaintiffspresented credible evidence
thatfor areas in Florida outside ofM iam iand Ft.Lauderdale,office-based services
underM edicaid for prim ary care physicians serving children are compensated at
ratesthatfor m ostcodes are lessthan halfofthe M edicaid rate. See PX 781,Louis
St.Petery Demonstrative ExhibitA.223.Thecostofliving adjustmentsto M iami

and Ft. Lauderdale M edicare rates are higher in those areas, w hereas M edicaid
reim bursem entis the sam e statew ide. Thus,the differentialbetw een M edicaid and
M edicare reim bursem ent is greater in the M iam iand Ft.Lauderdale areas,with
M edicaid paying an even low er percentage of M edicare reim bursem ent. See PX
780(M edicareRates);PX 781(M edicaidRates).

83.M edicaid reimbursement in Florida is even less than levels of private
reim bursem ent program s. A ndrew A gm m obi, form er Secretary of A H CA ,
acknowledged thatGGonething isvery clear: gpjrovidersarein generalunderpaidin

contrast to com m ercial insurance and M edicaid.'' PX 126a at 6. A num ber of
prim ary care providers testified that M edicaid reim bursem ent is substantially
below private insurer reim bursem ent for the sam e procedures in the sam e
geographicalareas.
84. The difference betw een M edicaid reim bursem ent and private
reim bursem entis also true for specialists.
85.Prim ary care feesw ere increased in 2000 by a totalof$1.8 million for3
office visit codes;in 2002,the Florida legislature authorized a 4% increase for al1
providers treating children. N o other increases for prim ary care providers for
children have occurred since 2000.25 px 128A . R ather, in O ctober of 2008,the
legislature cutby one-third from $3 to $2,the m onthly per child fee paid prim ary
care providers participating in the M edipass system for m anaging the care
provided to children on M edicaid. St.Petery on 12/10/2009 FinalTr.at625:1115;W illiam s on 10/17/2011 Rough Tr.at 141.
86. C ertain specialists received an increase in 2004 of 24% for treating
children on M edicaid. See PX 128A. This isthe only adjustmentin nearly 10

years, and it leaves specialist reim bursem ent substantially below the current
M edicare levels for office-based services.
87.The difference betw een M edicaid reim bursem ent levels and those for
M edicare w illlikely increase in com ing years asM edicare reim bursem entaccounts
for cost-of-living changes, while Florida's M edicaid program does not. See
W illiam s on 10/17/2011 Rough Tr.at 13 1.
88.Florida's M edicaid reimbursem ent level was in the low est quintile of
states in the United States as of 2003 and ithas continued to decline relative to
otherstates. Flinton 8/5/2010 FinalTr.at3521:2-20.
89. In LBR S over a num ber of years, A H CA has requested increases in
M edicaid reim bursem ent rates.
These LBRS included an increase in the
com pensation paid for healthy kid check-ups as w ell as for specialist care. A s
25 M inor budget neutral changes have been made, both increases and decreases, in
reim bursem ent rates for individual codes based on the annual Resources Based Relative Value
System adjustments.
62
explained by Carlton Snipes,form erDeputy Secretary ofM edicaid and M edicaid
Director for AHCA,the agency singled out 4 specialty areas (dermatologists,

neurologists, neurosurgeons, and orthopedists) for modest fee increases, not
because these w ere the only areas in w hich an increase w as needed,but in hopes
that a m odest request w ould be m ore politically acceptable. N one of these
proposed increases w ere enacted. The LB RS from A H C A m ade in each legislative
year from the 2005-2006 legislative session through the 2009-2010 legislative
session called for an increase in child-health check-up fees. PX 92-96;PX 702703;PX 734. In addition,A H CA proposed increases in the 2008-2009 and 2009-
2010budgetsof40% forfourspeeialty areas.Those,too,wererejected each year.

PX 89-90;PX 727;Snipes on 12/9/2009 FinalTr.at405:21 - 406:14. Finally,a
$2 fee proposalm adeto incentivizephysiciansto collectlead blood specim enswas

also m ade but failed to pass each year for each legislative year from 2005-2006
through 2009-2010. PX 97-98;PX 704-705.
90.D efendants,and certain of their w itnesses, claim that these LBR S w ere
predicated on unsupported inform ation. See W illiam s on 10/17/2011 R ough Tr.at
163-164; K idder on 10/3/201l Rough Tr.at 77. I find defendants' explanations
unpersuasive. The LBR S w ere prepared by offcials w ho recognized their
obligation to be accurate and honestin presenting the view s oftheir agency to the
governor and the legislature. M oreover,these very w itnesses adm itted under oath
as agency representatives during their depositions thatthe LBR S w ere truthfuland
correct. At trial, A H CA adm itted that they never told the legislature that their
LBRS were wrong. In addition,the agency itself repeatedly acknowledged the

im portance of reim bursem ent increases in subm issions to the legislature. A s M r.
Snipesacknow ledged,these requestswere indicative notofsim ply wanting to pay

doctorsm ore butofa substantialproblem in currentreim bursem entlevels. Snipes
on 12/9/2009 FinalTr.at380:4 - 381:10;Snipes on 1/8/2010 FinalTr.at 1243:6-
23. See also PX 701; PX 727.
find the agency's ow n testim ony during
depositions regarding their reasons forrequesting budgetincreases is evidence that

M edicaid reim bursem ent rates for prim ary and specialist care w ere inadequate.
See also Cockrum v. Calfano, 475 F.Supp. 1222, 1227 n.1 (D.D.C. 1979)
(Secretary ofHealth,Education and W elfare estopped from asserting claimants
responsibility for delays in adm inistrative hearings by his adm issions elsew here
thatthedelay problem wasnationwidein scope.)

91.Experttestim ony attrial com petently supported the proposition that the
Florida M edicaid reim bursem entlevels are notsufficient for Florida M edicaid to
be a com petitive purchaser for m edical services. D r. Sam uelFlint,an A ssistant
Professor of Public A ffairs at Indiana U niversity N orthw est w ho has published

extensively on health econom ics, studied the health care m arket in Florida and
concluded that sthe Florida M edicaid program is not a com petitive purchaser for
pediatric care atthis tim e.'' PX 495,FlintR epol'

tat20.See also id.at2.
92.D r.Flint m easured the difference in 2008 rates betw een M edicaid and
M edicare for com m on office based procedure codes and concluded: tdFlorida
M edicaid reim burses prim ary care physicians at slightly m ore than one-half of
w hat M edicare pays,and specialists receive about tw o-thirds of M edicare rates.''
1d.at2.See also PX 782.
93.D r.Flint also com pared Florida M edicaid rates against cost m easures,
finding thatta prim ary care practice comprised of 75% M edicaid patients could
notrem ain solvent,even ifthe physician w orked for free.'' PX 495,FlintR eportat
19.
94. D efendants' expert w itness, Catherine Sreckovich, adm ittedly did not
conductany analysis of the adequacy of Florida reim bursem ent rates. Sreckovich
on 1/10/2012 R ough Tr.at 140-141.
64
C.
1.
N ew borns,C ontinuous Eligibility,and Sw itching

C ontinuous Eligibility
95.Florida m ust provide children under the age of five w ith 12 m onths of
continuous eligibility and children betw een the agesof 5 and 18 w ith six m onthsof
continuous eligibility. PX 712 at FL-M ED 08336. C hildren should not lose
eligibility w ithin that period unless they m ove out of the state or die. Lew is on
10/20/2010 FinalTr.at 4654:10 - 4655:4. Every tim e a child is detenuined orredeterm ined to be eligible for M edicaid, a new period of continuous eligibility
begins. 1d.at4661:11 - 4662:1.

96.Thousands ofchildren lose their eligibility during their firstyear of life
w hen they should have continuous eligibility.
97.M s.Sreckovich's initial reportexam ined the period betw een 2004 and
2008 and focused on children under five years of age. The num bers in M s.
Sreckovich's reportretlected only children w hose eligibility w as term inated and
subsequently reinstated during a single fiscal year. Sreckovich on 1/12/2012

R ough Tr. at 96-97. Those fgures are an underestim ate since, am ong other
reasons, they exclude children who never regained eligibility. St. Petery on
2/2/2012 R ough Tr.at 75-76.
98. A ccording to M s. Sreckovich's report, the M edicaid eligibility of

children under one year of age for M edicaid w as term inated 2.1% to 2.9% ofthe
time. DX 607 at! 22.Becausethosechildren had theireligibilityreinstated,they

could nothave died orm oved outofthe state. Sreckovich on 1/12/2012 Rough Tr.
at 97. M s. Sreckovich acknow ledged that for children under one all those
term inations w ere im proper. 1d. at 98. That m eans, based on the range of
improper terminations (2.1 to 2.9% ) and the number of children enrolled in

M edicaid,from 3,234 to 4,466 children w ere im properly term inated in one fiscal
year in violation oftheirrightto continuous eligibility. 1d.at98-99.
99.Forchildren one to five yearsofage,theireligibility wasterm inated 6.8
% to 7.0 % ofthe time. DX 607 at! 22. M s.Sreckovich acknowledged thatfor

these older children,som e ofthose tenuinations w ere im proper. 1d.97-98. In the
case ofchildren ages one to five,this would be approxim ately 65,000 children in
the course ofa year. 1d.at93-96.
100.D C F acknow ledged thatfor each federalfiscalyear from 2003 to 2007,
atleast25,000 (and sometimesmorethan 31,000)children underfiveyearsofage

had their eligibility term inated before they had received 12 m onths of continuous
eligibility. PX 737 at answ er to Interrogatory N o. 1. By DCF'S own adm ission,

the percentage of children under five enrolled in M edicaid w hose M edicaid
eligibility w as term inated ranged each year from approxim ately 3.5% to 5% . 1d.
B ecause those figures do not include children w hose eligibility w as retroactively
restored m aking it seem as if they had not lost eligibility,they underestim ate the
num ber of im proper term inations. St.Petery on 12/10/2009 FinalTr.at 593:19 594:19;PX 688.
10l.M r.N athan Lewis,D CF bureau chief,acknow ledged a ttrem endous

problem with the issue ofm aintaining continuous eligibility.'' He stated thattthe
problem was that (DCF'SI eligibility system rdidqnotautomatically ltnow what

period ofcontinuouseligibility a child''was entitled to so thattiitisdependenton
staff'to recognize ithatthere'sachild ...who may be entitled to (a1continuous

period of eligibility and should notbe term inated.'' Lew is on 10/20/2010 FinalTr.
at4656:2-4;4657:18 - 4658:22. M r.Lew is acknowledged attrial:<<-fhatproblem

continues to this day.'' 1d.at4658:23-24.
102.D CF conducted a M edicaid eligibility quality controlanalysis in 2010

for federal CM S, and reported, in a Sept.20, 2010 letter to the acting regional
adm inistrator of CM S,that based on a review of 1200 cases,7% of cases existed
in which the M edicaid coverage was not provided through the entitlem ent
period.'' DX 169a at2;Lew is on 10/20/2010 FinalTr.at4660:24 -4664:8. M r.

Lewisconceded thatisnotan dsacceptable''errorrate. Lew ison 11/29/2011Rough
Tr. at 16-17. Som e of these w rongful term inations resulted from a M edicaid
category being closed w ithouta new one being sim ultaneously opened. Lew is on
10/20/2010 FinalTr.at4666:14-25.
103.D C F in the sam e analysis also looked m ore generally atw hether ornot
there had been w rongfuldenialsofcoverage orterm inations and found that29% of
the term inations for both children and adults w ere erroneous. D X 169a at 3-4;
Lew is on 10/20/2010 FinalTr.at4667:16-25,4671:1-12. M r.Lew is knew of no
reason w hy adults or children w ould have different term ination rates. 1d. at
4671:13-18.
104.D C F states ithas been trying since 2002 to fix the problem s thatcause
som e children to be term inated in violation oftheirrights to continuous eligibility.
Poirier on 10/5/2011 R ough Tr.at 71-72. For years,D C F has been considering
im plem enting a com puterized system for m onitoring continuous eligibility of
M edicaid Children, but has not done so- even though there is no technical
problem thatwould preventDCF from instituting an autom atic system forensuring
continuouseligibility. Lew is on 10/21/2010 FinalTr.at4800:10 - 4801:15.
105.D CF offcials have repeatedly acknowledged that young infants are

som etim es im properly term inated. A D CF em ployee acknow ledged receiving ta
string ofinquiries''from CarolM ccorm ick,the adm inistrator and nursing director
of the Tallahassee Pediatric Foundation,concerning ddnewbol'ns being cut from

theirM edicaid coverage too soon.'' PX 345 atL-STP-R 000496. The DCF worker
toldhercolleagues,tEach onethatIhavelooked into wasjustthat.''1d Shesaid

she had received about 32 such inquiries in the last tw o m onths. 1d. See also
M ccorm ick on 8/12/2010 FinalTr.at4123:13 - 4125:19. AnotherD CF official

adm itted to D r.St.Petery that itw as notuncom m on thatD CF case w orkers w ould
inadvertently term inate a child'seligibility when the m other'spregnancy M edicaid

term inated. St.Petery on 12/10/2009 FinalTr.at 572:18 -573:10.
106.Prim ary care providers regularly see children w ho lose their M edicaid
eligibility in theirfirstyear oflife. Cosgrove on 5/19/2010 FinalTr at 2586:16 .
2587:10;Silva on 5/20/2010 FinalTr.at2804:10 - 2805:9;St.Petery Depo. D esig.

on 11/11/2008 at 194:6-13;R itrosky,D epo.D esig.on 11/10/2008 at 97:4 - 98:2,
98:15 - 99:25.
107. W hen a child's M edicaid eligibility is incorrectly term inated, the
child'sdoctorhasthechoiceoftreatingthechild and likely notgetting paid(unless

eligibility is retroactively restored,the physician's office finds out about it, and
incurstheexpense ofresubm itting itspriorbill)orrefusing to treatthechild. St.

Petery on 12/10/2010 FinalTr.at594:20 - 596:6.
108.Asthe executive directorofTallahassee Pediatric Foundation (TPF),

D r. St. Petery has access to FM M IS print screens w hich provide certain
inform ation regarding a child's eligibility and assignm ent to a prim ary care
provider. St.Petery on 12/10/2009 FinalTr.at554:19 - 555:10. D r.St.Petery has
personally seen cases of improper term ination of continuous eligibility w ith

patients of TPF by studying those patients'FM M IS print screens from which he
could tell their eligibility had been incorrectly term inated and then restored
retroactively.1d.at555:1-21,575:18- 576:11.
2.
Sw itching
109. ddsw itching'' occurs when a child has been switched to a different
M edicaid plan. O ften tim es this is discovered w hen the child goes to their
pediatrician's office forcare,and the pediatrician queriestheM edicaid system and

determ ines that the child, w ithout the parent's know ledge or consent, has been
switched to a differentM edicaid plan forwhich thatphysician is nota provider
St. Petery on 12/10/2009 Final Tr. at 548:13-19. Improper term ination is a

68
com m on cause of sw itching. Children w hose eligibility has been term inated and
then reinstated w ithin a 60 day period are required to be reassigned back to the
plan they originally chose. This requirem ent,how ever, is not alw ays follow ed,
leading to m ore tdsw itching.'' M ccorm ick on 8/12/2010 Final Tr. at 4148:3
4149:14.
1l0.G etting a child sw itched back to the originalprim ary care provider can
be a tim e-consum ing process because the system only allow s a change once a
m onth. 1d. at 562:14 - 563:15.iM any tim es the provider's staff spends a lot of
tim e trying to fix the problem so that the child can com e back to their practice.''
1d. at 558:1-4. A prim ary care doctor from w hom a child has been sw itched no
longer can authorize a referral for further care, even for an x-ray. 1d.at 559:6 -
560:9. G enerally,ifa child has been sw itched to an l1M O ,the 11M 0 w illnotpay
the physician to w hom the child w aspreviously assigned. 1d.at558:5-19.
111.Sw itching is an obstacle to M edicaid children's access to care. 1d.at
560:18-20. Because sw itching m oves children from one m edicalhom e to another,
it interferes w ith continuity of care,m ay delay care,and can lead to children not
receiving care at all. 1d. at 560:23 - 56l:10. Privately-insured patients do not

experience sw itching. 1d.at561:1-6.
112.Sw itching is nota new problem . D r.St.Petery has been com plaining
to A H CA and D CF about sw itching for 20-25 years, but the problem still
continues. 1d.at572:7-19.
1l3.RobertSharpe w as A H C A M edicaid D irector from 2000 to 2004 and

assistant M edicaid D irector from 1998 to 2000. Sharpe on 11/16/10 Final Tr.at
4926:19 - 4927:2;4929:24 - 4930:8. M r.Sharpe testised thatduring his tim e as
AH CA M edicaid D irector he received a low num ber of com plaints about
sw itching. D r.St.Petery,how ever,m etw ith him on m ultiple occasions to discuss
sw itching. 1d. at 4932:22 - 4933:2. M r. Sharpe had his staff investigate cases
69
broughtto him by Dr.St.Petery,and they determ ined thatthe children were indeed
sw itched w ithout the parent requesting a change of provider. 1d. at 4933:2:2 4933:12.
114.Phyllis Sloyer,then A ssistantD irector ofCM S,also com plained to M r.
Sham e about sw itching and how it affected continuity of care for children in the
C M S program . 1d. at 4933:13 - 4935: 9. M r.Sharpe w as not able to elim inate
sw itching, w hich rem ained a problem during his tenure. f#. at 4935:10-15;
4936:13-15.
3. R easons for Sw itching

115.O ne w ay sw itching occurs is w hen D CF,w hich determ ines eligibility,
incorrectly term inates a child's eligibility and then, realizing the error, reestablishes the child's eligibility. Since eligibility inform ation is transported
nightly from D CF'S com puter to A H CA 'S FM M IS com puter system ,these actions
cause A H CA 'S FM M IS system to send a letter to the child's parent,as it does to
any new M edicaid beneficiary,telling the parentthathe or she m ustchoose a plan

forthe child.
116.Som etim es the parents do notreceive the letters because as m any as

40% of the letters directing M edicaid benesciaries to choose a m anaged care plan
com e back as undeliverable. Brown-W oofter on 11/8/2011 Rough Tr.at149-151.

A tleastin som e instances w hen A H CA investigated exam ples of sw itching,itw as
not able to confirm that a choice letter w as indeed sent to the beneficiary. D epo.
D esig.ofH am ilton on 11/6/2008 at 184:9 - 186:12. Som etim es the parents do not
understand the letter,perhapsbecause the parentdoesnoteven know the child w as
term inated and reinstated. St.Petery on 12/10/2009 FinalTr.at565:10 - 566:6. ln
eitherevent,the parentdoesnotrespond.
1l7.W hen AH CA does not hear back from the child's parent w ith a plan
choice w ithin the allotted tim e,it auto-assigns the child to a plan. Brow n-W oofter
70
on 11/8/2011 Rough Tr. at 148. By statute, 65% of the assignm ents are to
M edicaid 14M Os,which m ay notbe a plan in which the child's pediatrician is
enrolled. St.Petery on 12/10/2009 FinalTr.at570:1-25;Plaintiffs'D em onstrative
ExhibitC on Sw itching used w ith D r.St.Petery.
118. There are m ultiple eligibility categories for children on M edicaid.

Lew is on 10/20/2010 Final Tr. at 4649: 8-10. W hen a parent m akes a change,
isuch as applying for food stam ps or cash assistance, this can also cause
sw itching''. St.Petery on FinalTr.at 57l:3-18. This occurs because w hen D CF
m akes such a change,even though the child does not lose M edicaid eligibility in
D CF'S com puter system , the child som etim es loses eligibility in A H CA 'S
FEM M IS system .
119.D uring the course ofthis litigation,D CF discovered thatw hen itdeletes
the M edicaid eligibility category code for a child and places the child in a new
eligibility category,A H CA som etim es interpreted that change as a term ination of

the child's M edicaid eligibility,even though the second M edicaid categoly began
im m ediately after the first category w as term inated. Lew is on 10/20/2010 Final
Tr.at 4645:15 - 4646:22. DCF learned this notonly during the course of this
litigation,butbecauseo/thislitigation.Lewison 11/29/2011RoughTr.at12-13.
120.To avoid thatsituation,DCF case workers were instructed to close the
old category and open a new category simultaneously so thatAH CA would not
confuse a category change w ith an eligibility termination. Lewis on 10/20/2010
FinalTr.at4646:23 - 4647:6.
121.D CF has nottaken any steps to m easure w hat im pact their change in
practice has had on (sw itching.'' Lew is on 10/20/2010 FinalTr.at4654:7-9.

4.
Evidence ofsw itching
122.Severalof the nam ed plaintiffs in this case- S.B ,K .K .J.W .- w ere

sw itched, som e m ultiple tim es, and their sw itching led to delayed or interrupted
71
care. S.B .'S l8-m onth check-up w as delayed. Because K .K .w as sw itched,he had
to change from V yvance,an A D I-ID dnlg that w orked for him ,to A dderall,one
thatdid not. ln J.W .'S case,on one occasion sw itching contributed to a five-w eek
delay in perform ing an im aging study to see ifa tum or had reappeared on his neck,
and in another, it caused his fam ily to have to pay out of pocket for his A D I'ID
m edication. See supra at55-58.
123.Testim ony at trial also show ed that sw itching is a regular occurrence
for prim ary care providers. D r.Lisa Cosgrove is a prim ary care physician w ho
practices in M errittlsland,Florida,in Brevard County. Cosgrove on 05/19/2010

FinalTr.at2550:8-9,2552:15-25. D r.Cosgrove's M edicaid patients are sw itched
to other plans on a tregular basis''; it occurs on a daily basis. 1d. at 2575:16 2577:19. Som e of D r. Cosgrove's patients w ho get sw itched end up in the
em ergency room . 1d. at 2579:1-4, 2580:14-20. Sw itching interferes w ith her
patients' continuity of care. 1d.at 2581:15 - 2582:13. Sw itching also consum es
the tim e of office staff w ho try to assist patients in getting sw itched back to her
practice,for w hich there is no com pensation. 1d.at2583:13 - 2584:5.
124. D r.N ancy Silva is a pediatrician w ho practices in B randon,Florida.
Silva on 5/20/2010 Final Tr. at 2767:19-21; 2768:1-2.
D r. Silva's M edicaid
patientsare sw itched tallthe tim e''from one prim ary care providerto anotherand
one insurer to another. 1d. at 2796:11-21. Seldom does the child's new doctor
authorize D r. Silva's office to see the child unless there is an acute signifcant
illness. W ithout authorization from the new doctor,D r.Silva cannot getpaid for
any care provided. 1d.at 2798:16 - 2799:3. Thus,sw itching interferes w ith her
patients' continuity of care. 1d.at 2799:4-20. Sw itching also results in lost staff
tim e forpediatricians and is a deterrentto participating in M edicaid. 1d.at2799:21
-
2800:11. Ittakes approxim ately six w eeksto geta M edicaid child w ho has been
72
switched to anotherproviderreassigned to herpractice. Silva on 1/19/2012 Rough

Tr.at 147-48.
125. D r. Jerom e lsaac is a pediatrician w ho practices in Sarasota and

Bradenton. lsaac on 8/11/2010 FinalTr.at 3852:13-14;3853:20-21. Dr.lsaac's
M edicaid patientsare som etim essw itched aw ay from hispractice. 1d.at3894:1220. Generally,after a couple of m onths they return to his practice after getting
sw itched back. 1d.at3895:8-25. Sw itching generally leads to delayed care forhis
patients. 1d.at3896:15-24.
126.D r.D elores Falcone Tam er is a pediatric cardiologistatthe U niversity

of M iam i M edical School. Tam er on 10/19/2010 Final Tr. at 4494:13-23. D r.
Tam er currently has a CM S clinic, a private clinic, and a clinic for the Jackson
M em orialH ospital. 1d.at4496:8 - 4497:5. D r.Tam er encounters sw itching w hen
a child is referred to her by a prim ary care doctor w ho lacks authorization to m ake
the referral. 1d.at4531:9-18;4532:21 - 4533:13. W hen such sw itching occurs,it
usually m eansthe proceduresare postponed a m onth. 1d.at4533:14-17. Com m on
diagnostic tests that are delayed for a m onth by sw itching are: echocardiogram s
and electrocardiogram s,which testthe competency,anatom y,and function ofthe

heart. 1d.at4533:25 - 4434:12.
127.D r.Tom m y Schechtm an is a pediatrician w ho practices atthree offces

in Palm B each County: Palm B each G ardens,Jupiter,and Boca. Schechtm an on
5/20/2010 Final Tr. at 2832:8-13; 2833:7-14; 2833:18-22.
D r. Schechtm an's
M edicaid patients are frequently,and w ithouttheirknowledge,sw itched from one

prim ary care provider to another or from one M edicaid product to another. 16l at
2847:6-20. D r.Schechtm an encounters sw itching severaltim es a day and he hasa
ltperson in his business office who spends 50% ofhertim e dealing with M edicaid
eligibility, M edicaid sw itching and issues along those lines.'' 1ti at 2847:21 2848:4. A ccording to D r. Schechtm an, sw itching causes a num ber of adverse
consequences on the health and well-being of the switched child including:

interrupting continuity of care and delaying check-ups and vaccinations. 1d.at
2848:5
2849:8. A lthough D r. Schechtm an's figures have som e reliability
problem s,they are consistent w ith the testim ony of other doctors w ith respect to
sw itching.
128.O therdoctors regularly encountersw itching as w ell. D onaldson D epo.
D esig. on 10/15/2008 at 140:9 - 141:4; K nappenberger D epo. D esignation on
11/20/2008 at 93:8 -94:12,95:4-6;R itrosky,D epo.D esignation on 11/10/2008 at
97:4 - 98:2,98:15 - 99:25;W eber D epo.D esig.on l1/6/2008 at 24:22 - 25:2;J.

St. Petery D epo. D esig. on 11/11/2008 at 81:19
82:1; 84:22
85:7; W .
K nappenberger D epo. D esig. on 11/20/2008 at 95:23 - 96:7, 116:15
R itrosky, D epo. D esig. on 11/10/2008 at 105:5
117:1;
106:22, 107:7-1l;
K nappenberger D epo.D esig.on 11/20/2008 at 115:20 - 16:9;J.St.Petery D epo.

105:21; K nappenberger D epo. D esig. on
D esig. on 11/11/2008 at 104:9
11/20/2008 at 117:5-21; Ritrosky, D epo. D esig. on 11/10/2008 at 103:12-14,

107:16-18.
129.ln the practiceD r.St.Petery sharesw ith hisw ife,switching is%alm ost
an everyday occurrence.'' St.Petery on 12/10/2009 Final Tr.at 561:11 - 562:5;
D r. Julia St. Petery D epo. D esig. on 11/11/2008 at 108:2-12. A s executive
director ofTPF,D r.St.Petery sees a higherrate ofsw itching am ong the m ore than
7,000 TPS patients. St.Petery on 12/10/2009 FinalTr.at561:24 - 562:5.
5.
130.
eligibility
iBaby 0 f9Process
spresum ptively eligible'' new born
a child w hose M edicaid
presum ed by D CF based on the pregnant m other's M edicaid
eligibility. Lew is on 10/20/2010 Final Tr. at 4650:12-21. The purpose of

tpresumptive eligibility,''also known as the (ibaby of'process,isto m ake a child
eligible for M edicaid as soon as possible. St.Petery on 12/10/2009 Final Tr.at
602:3-15. ltis called the tbaby of'process because itdescribesthe practice ofa
pregnantm otherapplying to DCF foraM edicaid num berforherunbol'n child.1d.
at 601:1-11. W hen the child is born,the M edicaid num ber is supposed to be
activated. 1d.at602:16 - 603:1.
131.Dr.St.Petery hasobserved three problem swith the tbaby of'process;
(1)the motherisnotprovided with the opportunity to pre-register;(2)even ifthe

m other pre-registers, there are delays in activating the child's M edicaid num ber;
and (3) children are sometimes issued two M edicaid numbers. This becomes
problem atic because w hen DCF realizes there are two num bers it cancels one;if
the physician has been using the cancelled num ber, all the services billed are
denied even though the child is actually eligible. 1d.at603:2-25.
132. U nder the applicable periodicity schedule, children are supposed to
visita physician w hen they are five days old. D CF'S failure to activate the child's
M edicaid eligibility can cause a delay in the child obtaining care or the provider
receiving paym ent. 1d.at 604:1-14;605:19-22. Prim ary care providers find that
the activation process forpresumptively eligible newbornsis often delayed. lsaac
on 8/11/2010 FinalTr.at 3892:16 - 3893:24;Schechtm an on 5/20/2010 FinalTr.
at2849:9 - 2850:7. Cosgrove on FinalTr.on 5/19/2010 at2584:6 - 2586:15.
133. C arol M ccorm ick is the adm inistrator and nursing director of TPF.
M cconnick on 8/12/2010 FinalTr.at 4110:9-19. At the tim e ofhertestim ony,

TPF had about 7,400 children enrolled,7,300 ofw hom w ere enrolled in M edicaid.
Id. at 4114:22-25.
Nurse case managers at TPF frequently encounter
presum ptively eligible new borns whose M edicaid is not activated or w hose
eligibility has been term inated in less than a year's tim e. f#.at 4118:8-24. In the
fallof2008,w hen a subpoena for docum ents w as served on TPF,M s.M ccorm ick
instructed herstaffto provide herw ith allthe chartsofchildren w ho w ere currently
experiencing eligibility problem s. In response, she received 90 charts. 1tL at

75
4120:8 - 4121:20. Tw enty-four of those charts involved an issue of continuous

eligibility, 15 concerned presum ptive eligibility,and 47 w ere cases in w hich the
parent's choice of health care plan had not been im plem ented or had been
sw itched. 1d.at4121:21 - 4122:25. Som e of these files retlected m ore than one
problem .1d.at4123:1-5.
134.Priorto 2008,a m other w as assigned a differentpersonalidentifcation
num ber and case num ber than her baby.
U nder this system , babies w ere
som etim es given tw o personal identification num bers because it w as difficult to
m atch the baby of' application w ith the subsequent new born child. Poirier on
10/5/2011 R ough Tr.at39;43.See also PX 738. A s soon as D CF found outthere
w ere tw o num bers for a child,itw ould cancelone. St.Petery on 12/10/2009 Final
Tr.at603:18-25. If,how ever,a num ber thata provider w as billing under w as the
num ber that w as cancelled,A H CA w ould deny paym ent for the services billed
underthatnum ber. 1d.
135.In 2008,D CF reprogram m ed its com puters to allow a pregnantw om an
applying for M edicaid for herself and her unborn child to be assigned the sam e
case num ber,even though the m other and eventually the child would each be
assigned a separate M edicaid personalidentification num ber. The new policy w as
set forth in a July 2008 m em orandum to D CF w orkers. PX 738. U nder that

policy, w orkers m ust m anually input data at 12 different steps. Poirier on
10/5/201l Rough Tr. at 43-45. lf a worker m akes a m istake in that m anual

process,achild m ay be im properly term inated.1d.at45-47,68-69.
136.DCF'Snew procedurehasnotresolved theproblem sw ith the ttbaby of'
process. St. Petery on 12/10/2009 Final Tr. at 607:2 - 607:9. M oreover, the
change of placing new borns into the m other's tcase''has the potentialto increase
the am ount of sw itching because it increases the chances that a change in the
76
m other's eligibility category atD C F w illtrigger A H CA 'S FM M IS system to deem
thechild'seligibility cancelled. St.Petery on 2/2/2012 Rough Tr.at82-83.

137.Despite the issuance in 2009 by DCF ofa m em o directing thatbabies
be keptin theiroriginalM edicaid category for 13 monthsregardlessofhousehold
circum stances,interruptions of eligibility for such children continue to occur. 1d.
at 136.
138.Prim ary care providers continue to see problem s w ith sw itching, and
term inations in violation of the right to continuous eligibility. Cosgrove on
1/31/2012 Rough Tr.at 154-155;Silva on 1/19/2012 R ough Tr.at 149-150.
D.
Provisionfutilization ofPrimary Care(e.g.,EPSDT)
139.The purpose of EPSD T is to identify and correct m edicalconditions in

children and young people before the conditions becom e serious and disabling;to
provide entry into the health care system and access to a m edical hom e for each
child;and to provide preventative/w ell-child care on a regularly scheduled basis.
PX 31 atA H CA 00963753;St.Petery on 12/10/2009 FinalTr.at 518:11- 519:8.
140.M edicaid eligible children are entitled to check-ups from birth through
age 20 in accordance w ith Florida's periodicity schedule. They should receive

check-ups at2 to 4 days, 1 m onth,2 m onths,4 m onths, 6 m onths, 9 m onths, 12
m onths,15 m onths,18 m onths,and then once peryear from 2 to 6,one at8,one at
10,and one peryearfrom l1to 20. A check-up includesacom prehensive medical

history, a dental screening, vision screening, hearing screening, appropriate
im m unizations, and other services. PX 31 at A H CA 00963754
A H CA
00963757;St.Petery on 12/10/2009 FinalTr.at519:9 - 522:6.

141.Children w ho do notreceive check-ups are m ore than tw ice as likely to
require em ergency room care. PX
at A H CA 00963773; St. Petery on
12/10/2009 Final Tr. at 522:11-23. As defendants have stated in one of their
77
LBRS, m ore child check-ups im ay increase the early identifcation of m edical

conditionsbefore they becom e serious and disabling.'' PX 95.
1.
T he C M S 416 R eports
142.M ore than 380,000 children on M edicaid in Florida w ho should have

received at least one screening exam ination according to Florida's periodicity
schedule did notreceive any preventative care in the federal fiscalyear ending on
Sept.30,2007. See PX 8 atAHCA 0000087 (compare Line 9,the totaleligibles

w ho should have received at least one initial or periodic,w ith Line 10,the total
eligibles receiving at least one initialorperiodic screen); Snipes on 12/9/2009

FinalTr.at 369:4 - 370:8. The 380,000 figure represents,not sim ply the num ber
of children enrolled in M edicaid w ho did notreceive a w ell-child check-up during
the year,but rather the num ber of children w ho w ere expected to receive a checkup- given the length of their enrollm ent in M edicaid and the periodicity schedule
for children their age butdid notreceive one. Snipes on 1/8/2010 FinalTr.at
1261:7- 1264:19;PX 8 atAHCA 0000087;PX 25 (seeinstructionsforline4 and

line8).
143.These fgures com e from a form alreport,the CM S 416 report,which
Florida and all other states m ust subm it arm ually to the federal Centers for
M edicare and M edicaid Services. See 42 U.S.C.1396a(a)(43)(D)and Snipeson

1/7/2010 Final Tr.at 1146:25 - 1147:7. The reportfor the federal sscal year
ending Sept.30,2007 isthe m ostrecentCM S 416 reportin the record.
144.The fgures expressed in the CM S 416 reportare participation ratios''
-
the totaleligible children receiving at leastone initial or periodic screen divided
by the total eligible children w ho should receive at least one initial or periodic
screen.PX 25 (see instructionsforline 10). Forthe federalfiscalyearending on

Septem ber 30, 2007, Florida had a participation ratio of 68% . PX 8 at A H CA
0000087; Snipes on 12/09/2009 FinalTr.at 370:10-14. That m eans 32% of the

78
children enrolled in M edicaid w ho w ere expected to receive at least one

preventative screen did not receive any. The federal governm ent has a goalof an
80% participation ratio. Snipeson 12/09/2009 FinalTr.at370:15-17.

145.The percentage of children in M edicaid l-lM o s who received a w ellchild check-up w as even low er. For the fiscal year ending Sept. 30, 2007,the
combined participation ratio forallFloridaM edicaid 14M oswas55.10% .PX 16.

146.W hile there is som e criticism of the m ethodology underlying the CM S
416 report, and som e evidence that the data underlying the reports are not
com plete,the CM S 416 reportis w idely considered the bestdata source available
regarding the num ber of children on M edicaid w ho receive preventative care as
w ellas the num ber ofchildren eligible for preventative care through M edicaid but
w ho do not receive such care.The CM S 416 reports are considered reliable by the
federal governm ent and by the health services research com m unity, and
defendants'attacks on the reports are notgenerally convincing. Flinton 1/24/2012
R ough Tr.at 154.
147.M s.Sreckovich and other defense w itnesses contend thatthe CM S 416
reportsunderreportthe care delivered to children in Florida. They claim the CM S
416 reportsdo notinclude somewell-child check-upsbecause: (1)thereisatime

1ag in reporting some claimsdata;(2)some doctorsprovidechild health check-up
servicesbutthen billforthoseservicesunderanotherCPT code;and(3)encounter
data from FlM o s is not complete. These contentions are speculative and not
supported by the record. Seeid.at154-155.
148.A s to potentialdelay w ith reporting claim s,the federalfiscalyear ends
on Septem ber 30,and the CM S 4 16 reportis not due untilA pril of the follow ing
year,providing atleastfive m onths forsubm ission ofclaim s orencounterdata for

servicesprovided on Septem ber30,and proportionally m ore,for servicesprovided
earlierin the year. Flinton 1/24/2012 Rough Tr.at162.
79
149.W hile physicianscompensated on a fee forservicebasishaveup to one

yearfrom the date ofservice to subm ita claim forreim bursem entto AH CA ,there
is no evidence that physicians w ait to subm it their claim s, and it w ould be
econom ically irrationalfor them to do so. 1ti at l6l. Tellingly,while AH CA

could subm it an am ended CM S 416 report to account for any claim s om itted
during the initialsubm ission because ofa so-called (Iclaim s lag,''A H CA has never
done so,though itis in its clear interest,especially during this litigation,to do so if
thatw ould im prove its perform ance on the CM S 416 report. Snipes on 12/9/2009
Final Tr. at 368:15-21; Snipes on 1/8/2010 Final Tr.at 1275:23-25, 1276:7-15,
.
Flinton 1/24/2012 R ough Tr.at 161.
150.For physicians to provide w ell-child screenings and then billunder an
alternative CPT code would be econom ically irrational because alm ost al1 the
alternative codespay lessthan theCH CUP codes. Flinton 1/24/2012 Rough Tr.at
155-58.26 O ften the com pensation for the physician is tw ice as high under the
EPSD T code than under the alternative codes M s.Sreckovich claim s the doctors
actually billed. 1d.at 158. In any event,defendants have provided no evidence

thatsuch m iscoding is system ic orw idespread. M s.Sreckovich adm itted she could
not quantify any such alleged coding errors. Sreckovich on 1/10/2012 R ough Tr.
at43-44.
l51.Defendants also claim thatthe CM S 416 reports underreportthe wellchild check-up services provided because the encounter data that Florida l'IM o s
provide to AHCA isincom plete and does notcapture allthe w ell-child check-ups
perform ed by l1M O s. There is no quantification, how ever, of any signiscant
problem s w ith the reporting of encounter data in Florida or that any such alleged
26w hile one new child code, 99205,paysm ore than well-child codes,a new child code
can only beused onceperproviderperchild.
80
problem s 1ed to underreporting on the CM S 416 reportfor the federal fiscalyear

ending on Septem ber 30,2007.
152.D efendants do notrely upon any Florida specific studies or analyses to
support the assertions that Florida I4M Os' encounter data suffers from
underreporting or that such underreporting has led to failure to reportwell-child
check-ups on the CM S 416 report. The 2007 G A O report, Concerns Rem ain
R egarding Sufficiency of D ata for O versightof Children's D ental Services,noted
that the quality and com pleteness of encounter data had im proved since 2001.
Flinton 1/30/2012 R ough Tr.at 103-104.
153.Florida I-lM O s, as partof their contractual requirem ents w ith AH C A ,
are required to provide a m iniCM S 416 report. Brow n-W oofter 10/26/11 Rough
Tr. at 43. They are also required to have that report audited and to provide a
certitication thatthe inform ation on thatreportis tnle and correct. B rown-W oofter
on 10/18/2011 R ough Tr. at 121-122; Boone on 10/22/2008 D epo. D esig. at

153:10-18. D efendants have not provided any basis for calling into question the
accuracy of the audited results, w hich are incom orated into the final CM S 4l6
reports. ln fact, they tout the accuracy of other reporting perform ed by the
M edicaid l4M o s and do not provide any basis for singling out the 1-IM o s' 416
reports as inaccurate orunreliable. Flinton 1/24/2012 R ough Tr.at 154-155.
154.If anything,as explained by D r.Tom D arling,the results in the C M S
416 reportsoverstate the num berofchildren who getcare,especially with respect

to the screening ratios thatcom pare the totalnum ber ofhealthy kid check-ups to
the num ber of expected exam inations. D r.D arling is an associate professor atthe
U niversity of Baltim ore's School of Public A dm inistration and a director of
governm ent technology for the Schaefer Center for Public Policy. D arling on
1/6/2010 FinalTr.at813:24 - 814:9. H e hasa Ph.D .in public adm inistration and
policy from the U niversity ofA lbany. 1d.at 815:21 to 816:6. D r.D arling has also
81
senred as an expertwitness in other cases involving children's M edicaid and has

consulted forthe State ofM aryland's state agencies. 1d.at817:3 to 819:24. H e is
qualified and w as accepted as an expert,id.at 819:25 - 821:10,and l again accept
him as an expertand tsnd his testim ony to be credible.27
l55.First,Florida doesnothave separate encounterdata thatwould allow it

to ensure thatchildren are notdouble-counted ifthey m ove betw een tw o I-1M o s in
a year or betw een fee-for-service and an 11M O . That m eans Florida's reported
participation rate is likely inflated as a resultofdouble counting som e children. 16l
at852:13 - 854:5;873:14 - 876:16.
156. Second, the federal instructions for com piling the CM S 416 report
results in over-reporting of screening ratios forthe tlless than one''and ttone to tw o
year''age groups because the periodicity schedule does not require screenings at
set intervals,but the CM S reporting requirem ents assum e that the schedule does.
D arling on 1/6/2010 Final Tr.at 850:5-17, 857:25 - 859:10. The screening ratio
thatFlorida reports is 28.92% higher than w hat it should be because the error in
reporting results in the expected num berofscreeningsbeing too low . 1d.at 859:11
-
865:21;PX 461 at32-33.
157.Third,because screenings tdtlow w ith the child,''i.e.,are reported in the
age category thatcorrespondsto the child'sage atthe end ofthe federalscalyear,

there is a 45% over-reporting for the 1-2 year category. D arling on 1/6/2010 Final
Tr.at866:12 - 868:15.
158.Once the data are adjusted to accountforDr.Darling'srecommended

corrections,the screening ratios go dow n to .62,.61,.62,.66,and .68 for 2003 to
27 I recognize that Dr. D arling w as not able to conduct an analysis based on services
adually provided ashe did in M emisovskiex rel.M emisovskiv.M aram,No.92 C 1982,2004
W L 1878332 (N.D.111.Aug.23,2004),which isthe better approach,because he was not

provided with the necessary claim s data. l also recognize that Dr.Darling was not able to
com pare how children in the private m arketare treated.
82
2007 instead of.67,.66,.73.,.78,and .81. 1d.at869:5-20;PX 461 (Table 2-8).

These results retlect that Florida children on M edicaid consistently receive
substantially few er screens than they should underthe state periodicity schedule.
159. D efendants contest these statistics. In her analysis, M s. Sreckovich
purported to analyze the w ell-child care that M edicaid beneficiaries in Florida
received by com bining the totalnum ber of well-child exam inations provided to
children on M edicaid w ith certain sick child or tEproblem -oriented''exam inations.
Sreckovich on 1/10/012 Rough Tr.at35.
160.There are serious problem s w ith this analysis. First,the credibility of

M s.Sreckovich and her reportw ere underm ined by the factthat her initialreport
w rongly confused ttvisits''w ith tservices.'' Sreckovich 1/10/2012 R ough Tr.at23-
She m ade the identicalerror in her analysis ofdentalcare provided to children

on M edicaid. 16l Because, as M s. Sreckovich adm itted, it is custom ary for
m ultiple services to be perform ed during a child'svisitto a doctor ordentists,id.at
23,the result signifcantly overstate how m uch care children in M edicaid w ere
receiving. 1d.30-35. She did notlearn ofthis error untilshe read Dr.Darling's
rebuttalreport. 1d.at 23-24. She did notknow how she m ade such a significant
errorthatw as repeated throughoutthe report. 1d.at 26-27. She also adm itted that
she did notrealize thather analysis,which purported to include only claim sdata,
also im properly included som e encounter data,untilshe read D r.D arling's rebuttal
report. Id. at 22-23. R epeated errors such as these underm ine M s.Sreckovich's
credibility.
161. Second, even in her revised tables, M s. Sreckovich continued to
com bine the total num ber of w ell-child exam inations w ith certain sick child
exam inations. She calls the com bined services itpreventative assessm ent and
evaluation services,''a category she created,which lacks a basisin the CPT codes.
Flinton 1/24/2012 Rough Tr.at163.Shejustifiedthatapproach by sayingthatfor
those sick child visits,the children received at leastsom e components of a wellchild exam ,even though they did notreceive allcom ponentsofa well-child exam .
Sreckovich on 1/17/2012 Rough Tr.at 109. She acknow ledged that she is not
aw are ofany peerreview study thathasendorsed such an approach. Sreckovich on

1/10/2012 Rough Tr.at 38-40. D r.D arling,w ho w orks extensively w ith CM S 416
reports,has not seen anyone com bine w elland sick child visits as M s.Sreckovich
did. D arling on 0 1/23/2012 R ough Tr.at40-42.
162. Plaintiffs' experts, D rs. Flint and D arling, criticized that approach,
stating that a sick visit w as usually focused around a particular presenting
condition, and there w as no evidence that during such visits children receive
preventative care. They further stated that such visits w ere not a substitute or
proxy for w ell-child visits. D arling on 1/23/2012 R ough Tr.at 35-38; Flint on
1/24/2012 Rough Tr.at 163-67.
163.I agree w ith plaintiffs that sick child visits are nota proxy or substitute
for w ell-child visits and do notplace any w eight on this partof M s.Sreckovich's
analysis.
164.M s.Sreckovich,in her analysis,also looked at the average num ber of

visits per M edicaid child. N ot only did she include both w ell-child visits and
certain sick child visits,she did notcap the m axim um num ber of visits per child at
the num ber set by Florida's periodicity schedule;rather she included allvisits,no
m atter how m any there w ere. D arling on 1/23/2012 R ough Tr.at 37;Sreckovich
on 1/10/2012 R ough Tr.at46-47.

165. B ecause of M s. Sreckovich's m ethodology, sick or ill child care
provided to certain children can m ake it seem as if other children obtained care,
w hen in actuality they did not. Sreckovich on 1/12/212 R ough Tr.at46-47. Both
D r. D arling and D r. Flint are strongly critical of M s. Sreckovich's averaging
approach, w hich they claim presents a m isleading picture of how m uch care
children on M edicaid are receiving. D arling on 1/23/2012 R ough Tr. at 36-38;

Flinton 1/24/2012 R ough Tr.at 163-65. 1agree thatw hen itcom es to determ ining
the scope ofpreventative care provided to children in Florida,an average approach
is m isleading, and l do notplace w eighton it.28

166.The consensus view am ong health care researchers and others in the
field is that the CM S 416 reports are reliable. Flint on 1/30/2012 R ough Tr.at
105-06. The C M S 416 report is the ttbest yardstick w e have now ''and is tw hat
CM S relies on.'' Crall on 1/26/2012 Rough Tr. at 155. 1 agree that CM S 416
reports are reliable and an im portantindicator ofaccess to care. In addition,lfind

D r.D arling's testim ony persuasive and conclude that the CM S 416 reports m ore
likely than not overstate the am ount of EPSD T screening services actually
received.
2.
H ED IS R eports
167.The CM S 416 reportis notthe only reportthatshow s children enrolled
in Florida M edicaid do not receive the prim ary care to w hich they are entitled
under federal law . A H CA requires its M edicaid I4M O s, in accordance w ith 42
C.F.R.j 438.358,to collectand reporton certain performance measures on an

annualbasis. PX 733 at
A H CA chose to use H ealthcare Effectiveness D ata
and lnformation Set($$I4EDIS'')measures,asetofperformancedatathatisbroadly

accepted in the m anaged care environm entas the industry standard to com pare and
28 A s partof her analysis, M s. Sreckovich focused on the care provided to the nnm ed
plaintiffs. W hile som e of the nam ed plaintiffs w ith chronic m edical conditions received a
significant am ount of specialty care,they did notalways receive al1their w ell-child check-ups.
Forinstance,J.W .did notreceive num erous well-child check-ups,according to M s.Sreckovich's
own analysis. Her analysis shows he should have received 5 well-child visits during certain
years when he w as enrolled in M edicaid,butonly received one such visit. D X 410 atTable 2B .
Sim ilarly,J.S.should have received 6 well-child visitsbutonly received three. DX 418 atTable
2B . A nd S.M .did notreceive his l8-m onth w ell-child check-up on tim e because he had been
switched.Seesupra!!1-11.
85
m easure health plan perform ances. 1d. ECAHCA expects its contracted I'IM os to
support health care claim s system s, m em bership data, provider files, and
hardw are/softw are m anagem ent tools, w hich facilitate accurate and reliable
reporting of I-IED IS m easures.'' 1d. The agency contracts w ith H ealth Services
A dvisory G roup,its externalquality review organization,to evaluate how Florida
M edicaid's I4M o s perform against certain I-IED IS m easures. Brow n-W oofter on
11/8/2011 Rough Tr.at 12;PX 733 at 1-1.

168. A ll Florida H'M o s are required to have their results confirm ed by a
FIED IS com pliance audit. PX 733 at 2-4. The results are w ithin a 5 point
sam pling error atthe 95% confidence level. 1d. I-IED IS m easures track the care
provided to beneficiaries w ho are continuously enrolled in M edicaid for a certain
period oftim e- typically eleven m onths in a year. Crall on 2/7/2011 FinalTr.at
5213:2-6.
169. For all the I-IED IS m easures at issue in this action, M -ICA allow ed
I4M o s to determ ine theirresults using the hybrid m ethod w here claim srecords and
adm inistrative data is supplem ented by a chartreview for benefciaries for w hom
encounter data is m issing. Brown-W oofter on 11/8/2001 Rough Tr.at 24-26.

Thus,the hybrid m ethod does not depend on the completeness of the encounter
data. 1d.
170. A l1 the H ED IS m easures involve an apples-to-apples com parison
because Florida M edicaid l'lM o s are com pared to M edicaid I-lM o s nationally.
B row n-W oofteron 11/8/2001 Rough Tr.at20-21. O ne HED IS m easure tracksthe
num ber ofchildren w ho do notreceive any w ell-child screenings in the frstfifteen
m onths oftheirlives.
l7l.Ofthe 12 Florida 14M os operating in non-reform counties,11 lIM os

scored below the nationalm edian,and six scored below the 1ow perform ing level.
B rown-W oofter on 11/8/2011 R ough Tr.at 19. For H ealthy Palm B eaches,5.9%
86
ofthe infantsreceived no well-child screeningsin the first15 m onthsoftheirlives;

for Preferred M edical Plan,lnc.6.0% ; for Hum ana Fam ily c/o Hum an M edical
Plan, lnc. 6.724; for V ista H ea1th Plan Inc.-v ista South Florida 7.6% ; for V ista
H ealth Plan,lnc.-B uena V ista M edicaid 7.7% ; and for Jackson M em orial H ealth
Plan 9.2% . PX 733 at 3-4. For 2007,six of the l-lM o s had 5% or m ore of the
infants receiving no w ell-child check-ups in the frst fifteen m onths of life. D X
361 at D efendants 022774. These fgures indicate that m any infants received no
preventative care atall.
172.W hilewell-childcheck-upsareimportantforchildren ofallages,ltjhe

need for appropriate im m unizations and health check-ups has ever greater
im portance and significance at younger ages.
lf undetected in toddlers,
abnorm alities in grow th,hearing, and vision im pact future learning opportunities
and experiences. Early detection of developm ental difficulties provides the
greatest opportunity for intervention and resolution so that children continue to
grow and learn free from any health-related lim itations.'' PX 733 at3-1.
173.O ther I'
IED IS m easures also show that in both reform and non-reform
counties children on M edicaid l'IM o s receive less prim ary care than children
enrolled in the average 11M 0 nationally. A 1l 13 M edicaid 1-1M o s operating in non-
reform counties fellbelow that nationalm ean in 2007. DX 361 at Defendants

022775. Five ofthe I4M os had resultsthatclustered around the 25th percentile,
and eight ofthem had results around the 10th percentile. 1d. In reform counties,
for the sam e year,seven of nine Florida M edicaid 14M o s fellbelow the national
m ean.DX 334 atDefendants021293.

174. A s for adolescent preventative care, Florida M edicaid 14M o s again
generally ranked below thenationalmean with only 43.6% ofenrolled m embers 12
to 21 years of age w ith atleastone w ell-child visit w ith a prim ary care provider or
an OB /G Y N practitioner during the m easurem ent year. D X 36 1 at D efendants
022757. Five ofthe 13 I-1M o s in Florida operating in non-reform counties w ere at

or above the m ean,eight w ere below it,w ith six clustered near the 25th percentile
and two nearthe tenth percentile. 1d. ln reform counties,the resultswere sim ilar.
Six M edicaid l'
IM o s scored above the nationalm ean;nine w ere below it. 17X 334
atD efendants 021277.
175. A nother FIED IS study looked at the w ell care provided to children
betw een 1l to 20 years of age and found that only 19.6% received one or m ore
w ell-child visitduring the study period;PX 689 at Sum m ary of Findings;Brow n-
W oofteron 11/9/2011 R ough Tr.at 14.

176.Florida M edicaid 14M o s also scored low in tel'm s ofthe percentage of
pregnant w om en w ho received prenatalcare. Som e of these pregnant w om en on
M edicaid are teenage m others. For these m others, prenatal care is a type of
prim ary care. Seven of Florida's M edicaid l'lM o s have m ore than one-third of
pregnantw om en failing to receive a single prenatalvisitduring the study period.

177.The I-IED IS data show that Florida's I4M o s, both in reform and nonreform counties, rank below the national m ean on a num ber of m easures of
preventative child care.
E.
Prim ary C are Providers Participation in M edicaid
178.There is generally a shortage of pediatricians in Florida. See D X 290c

at 1. The shortage givespediatriciansthe ability to treathigherpaying patients and
eithernottreatorlim itthe numberofM edicaid patientsthey treat. The shortageof

pediatricians in ruralareas is especially acute. There are 10 Florida counties w ith
no pediatricians,and seven m ore counties w ith only one pediatrician. D X 290c at
Swanson Rivenbark on 11/15/2011 Rough Tr.
50. This shortage
disadvantages children on M edicaid w ho m ustcom pete w ith higherpaying patients

forthe services ofpediatricians in othercounties.
88
179.The num ber of children on the M edicaid rolls has grow n sharply,but
the num ber of pediatricians w illing to treat them has not. The num ber of Florida
children enrolled in M edicaid increased from 713,540 in O ctober of 1998 to

approxim ately 1.2 m illion in Octoberof2005.By D ecem berof2008,1,272,342 of
children w ere enrolled in M edicaid. PX 682 atFL-M ED 07816;D X 262; Snipes
on 1/8/2010 FinalTr.at1274:15 - 1275:5. Asof2011,the enrollm enthad risen to

1.7 m illion children. Lew is on 11/29/2011 R ough Tr. at 48-49. Thus, the
percentageofchildren on M edicaid hasincreasedby more than 33% injustunder

three years,from D ecem ber of 2008 to N ovem ber of2011. There is no indication
that the num ber of prim ary care providers has increased at all, let alone
proportionately,thus placing an increased dem and on existing providers. See PX
682 at FL-M ED 07816; D X 262. ln fact, Florida has an overall shortage of
physicians per 100,000 residents,com pared to the U nited States as a w hole, PX
742 at D efendants 026980, and a shortage of pediatricians,D X 290c;PX 742 at

D efendants 026979,thereby placing m ore dem and on Florida physicians to treat
children on M edicaid,even though M edicaid paysfarlessthan otherpayors.
180. M ore than 20% of pediatricians in Florida w ere accepting no new

M edicaid patients, according to a 2009 physician w orkforce survey. PX 742 at
D efendants 027039;Sw anson Rivenbark on 11/15/2011 R ough Tr.at40-41. M ore
than 60% offam ily practitioners w ere notaccepting a single new M edicaid patient.
1d. This issignificantbecause fam ily m edicine practitionersprovide wellcare for

olderchildren. St.Petery on 2/9/2010 at 15 14:9-13.29
29 The percentage of physicians w ho accept no new M edicaid patients is 46% . This is

significantly larger than the percentage that accepts no new M edicare patients,w hich is 22% .
Thisdisparity furtherillustrates the inadequacies ofM edicaid reimbursem entrates. PX 742 at
D efendants027033,D efendants 027037.
89
181.In addition,num erous pediatricians lim it the num ber of children on

M edicaid thatthey w illaccept. See Cosgrove on 5/19/2010 FinalTr.at2553:15 -
2557:12 (limiting practice for financial reasons to about 20% children on

M edicaid);Silva on 5/20/2010 FinalTr.at2768:23 - 2775:23 (only two ofthe
non-for-profit com pany's seven pediatric sites accept new children on M edicaid,
and for D r. Silva's site, the com pany has lim ited the num ber of new M edicaid
patients by (1)not accepting M edicaid I4M Os;(2)only accepting new patients

under 5;and (3) further limiting new patients to newborns,siblings ofexisting
patients,orexisting patients w ho go on M edicaid;about20% ofher patients are on
M edicaid comparedto 50% in 2001).

,Isaac on 8/11/2010 FinalTr.at3855:13-17;
3856:4-12;3861:5-25(lim itsnumberofM edicaidpatientsheaccepts;doesn'ttake
any M edicaid 14M O s; approves new M edipass patients on a case-by-case basis'
,
aboutone-third ofhis patients are on M edicaid);Ritrosky on 11/10/2008 Depo.

Desig.at8:13 - 9:12.
,11:1-11 (to remain economically ttviable''practice,limited
number of M edicaid patients by only accepting as new M edicaid patients (1)
siblingsofexisting patients;(2)existing patientswho lose private insurances;and
(3)limited numberofnewbornsl;Orellana on l1/23/2008Depo.Desig.at99:24 100:11(hadto stop acceptingM edicaidpatientsin hisGainesvillebutnothisLake

Citylocation).
182.The principalreason pediatricians do notparticipate in M edicaid (or
limit their participation in the program) is because of M edicaid's low
reimbursement rates. Flint on 8/3/2010 FinalTr.at 2949:21 - 2950:5 (d$The
fundam ental issue that drives participation,that determ ines physician,physicians'
decisionsto participate in the program atall,or to lim ittheirparticipation,is the
rate ofreimbursement.'');Tamer on 10/19/2010 FinalTr.at 4512:21 - 4518:9

(describing aconsensusexpressedby CM S officemedicaldirectorsthroughoutthe
90
state that ddM edicaid rates were so low that specialists were reluctant to take
patientswhoweresponsoredundertheM edicaidprogram .'').

183.D efendants have pointed to the availability of care at county health
departments (C14Ds)and federalqualifed health centers (FQHCS). The Clo s,

while providing som e prim ary care,are not an altem ative to private pediatricians.
Collectively,CHD S only em ployed 27 pediatricians and no pediatric subspecialist
as of 2009. Sw anson R ivenbark on 11/15/2011 R ough Tr.at 57-58. Sim ilarly,
FQHCShadjust32pediatriciansandonepediatricsubspecialist.1d.M oreover,all
well-child visits provided by Cl'
lDS and FQHCS are included on the CM S 416
repol't. C rallon 2/8/2011 R ough Tr.at83-84. There is no reason to believe Clo S
w illprovide increased care in the future. Indeed,the Florida Legislature reduced
the budget for the Clo s by $30 m illion as of July 2011,leading to 300-400
positionsbeing cutatthe ClD s. Sentm an on 10/6/2011R ough Tr.at 11-13.
F. C hild H ealth C heck-u p R ate lncreases
184. A n increase in the reim bursem ent rate for w ell-child, check-up
exam inationsresulted in an increase in thenumberofchildren receiving well-child
check-ups. ln 1995,AH CA increased thereim bursem entrate forw ell-child check-
ups ifrom $30 to $64.82,and the participation rates increased from 32 percentto
64 percent.'' PX 734. A H CA has m ade that sam e assertion repeatedly in form al
budgetsubm issions to the governor and legislature,see PX 734,PX 92,PX 93,PX

95,and in internalLBR S,PX 94,PX 96,PX 702,PX 703. See also D X 600.
185. A H CA highlighted the effect of the 1995 w ell-child check-up rate
increase on the participation rate when it proposed a child health check-up rate
increase from $71.59 to $90.97 for the 2007-2008 budget year. W illiam s on
10/13/2011 Rough Tr.at 88-89;PX 734. A H CA then predicted thatsam e pattern
w ould hold in the future. lncreasing the Child H ea1th Check-up reim bursem ent
rate w ill increase access to service,w hich w ill increase the early identification of
m edicalconditions before they become serious and disabling,thereby decreasing

future costly treatm entservices.'' PX 734. A H CA noted that since 1995,provider
fees for well-child check-ups thave increased only a few dollars due to the
Resource Based Relative Value System''and said,tlaqn increase willalso more

accurately reflect the cost of providing and docum enting this com prehensive,
preventive service and w ill encourage provider participation and retention in the
C hild H eath Check-u p Program .'' 1d.

186.In 2007, that sam e proposal w as one of A H CA 'S top three priorities.
PX 720.See also PX 92;Snipes on 12/9/2009 FinalTr.at387:10 - 388:12;Snipes

on 1/7/2010 FinalTr.at 1094:24 - 1095:10. A gain,the agency told the governor
and legislature that increasing the C hild H ealth Check-u p rate iiw ill increase
access to service,w hich w illincrease the early identifcation ofm edicalconditions
before they becom e serious and disabling, thereby decreasing future costly
treatment.'' PX 92 (emphasisadded);Kidderon 5/19/2010 FinalTr.at2512:4 2514:13;K idderon 10/3/2011 Rough Tr.at28.

187.W hile continuing to supportLB R Sto increase the Child H ealth Check-
Up rate,AHCA changed the language ofitsproposalto indicate thata fee increase

tm ay,'' not w ill increase access to services, w hich m ay increase the early
identification of m edicalconditions.'' PX 96.See also D X 600. Thatchange w as

m ade during the course ofthis litigation and w as notbased on any study or form al
analysis. K idderon 5/19/2010 FinalTr.at2519:21 to 2520:5. M r.Snipes,never

reached a different conclusion than that set forth in the w ill increase''language.
Snipes on 12/9/2009 FinalTr.at351:3-9;382:11-24.
188. Even w ith the m odified language, how ever, the LBR S continued to
state:itln 1995,there wasa feeincrease from $30 to $64.82 and the (Child Health
Check-upqparticipationrateincreased9om 32percentto 64percent.''PX 96.See
also D X 600. The A gency used that sam e language in LB R S for five consecutive
years. K idder on 10/3/2011 R ough Tr. at 33-35. Tw o senior level agency

adm inistrators testitied in depositions that the statem ents in the 2007 final LBR
regarding the proposed increase in reim bursem entrates for child health check-ups
were true and correct. One w itness,Beth K idder,wasBureau Chief forM edicaid
ServicesatAHCA,and had held thatposition since 2005. M s.Kiddertestified ata
deposition in 2008,tlu-ee yearsafterthis action began. K idder on 10/3/2011 Rough
Tr. at 28-30. A t trial, she acknow ledged her prior testim ony, including her
testim ony that the language in the LBR w as m eant to indicate itcausation, a
causative effect here, that if you increase the rates,you w ill increase physician
participation and in turn that w illresult in m ore kids receiving checkups.'' 1d. at
189.The second w itness,M elanie Brow n-W oofter,A H CA 'S designee under
FED.R.Clv.P.30(b)(6),testifiedthatthefollowing statementwastl'ueand correct:

Siln 1995,there was a fee increase 9om $30 to $64.82 and the (Child Hea1th
Check-upqparticipation rate increased from 32 percentto 64 percent.'' BrownW oofter on 11/9/2011 R ough Tr.at2-3;PX 96.
190.Attrial,M s.Kidder changed hertestimony when she was called as a

defense w itness,but not w hen she w as called as an adverse w itness by plaintiff.
She testified that the 1995 fee increase from $30 to $64.82 did not cause the
increasein theparticipation rate from 32% to 64% ,because the feeincreasedid not
lead to an im m ediate increase in the participation rate and because the increased
participation rate m ight have resulted from other factors,such as better reporting
by M edicaid 14M O s. K idder on 6/1/2011 R ough Tr.at 118-19. She changed her
testim ony based on inform ation she was provided by defense counsel after
testifying in M ay of 2010,as an adverse w itness in plaintiffs' case. K idder on
l0/3/2011Rough Tr.at39-43. Generally,given herchange in testim ony,1did not

find M s.K idder's testim ony as a defense w itness credible.
191. M s. Brow n-W oofter sim ilarly changed her view s and on redirect
exam ination provided an am ended answ er sim ilar to M s.K idder's. See Brow nW oofter on 11/9/2011 R ough Tr. at 122-26.30 She too,w as notvery credible as to
this m atter.
192.W hileaRule30(b)(6)witnessmaymodifyhisorhertestimony because

itdoesnotconstituteajudicialadmission,acourtmay considerany such changein
assessing the credibility ofthe testim ony. D efendants'only explanation to support
admission of(and to credit)M s.Kidder's and M s.Brown-W oofter'sundisclosed

and untim ely decision to contradict their prior testim ony,is thatthey had further
tim e to scrutinize certain LBR S. M s.K idder w as deposed on A ugust 27,2008,
m ore than tw o and one-half years after this action com m enced. M s. Brow n-
W oofterwasdeposed on Novem ber24,2008. D efendantshad adequatetim e and a
duty topreparethesewitnessesonthedesignatedtopicspriorto theirRule30(b)(6)

deposition.
193.1 find the statem ents in A H CA 'S LBR s- repeated over five years w ith
different secretaries and staff in place and repeatedly reported to the govem or and
Florida Legislature- credible and illustrative of A H CA 'S belief that there w as a

cause and effect relationship betw een an increase in the reim bursem ent rates for
well-child check-ups and the percentage of children eligible for M edicaid who
received a w ell-child check-up. 1 find M s.K idder's and M s. Brow n-W oofter's
trialtestim ony does not m eaningfully callinto question A H CA 'S belief as to this
cause-and-effectrelationship.
30O n cross exam ination, she said the increase in the participation rate m ay have been due
to increased outreach,see Brown-W oofter on 11/9/2011 Rough Tr. at 4, a w holly different
answ erthan thatelicited by defense counselon redirect.
G . A H CA 'S R eports and D efendants'L ay O pinion T estim ony
194. Several of defendants' witnesses- particularly M s. Sreckovich, M s.

K idder,and M s.Brow n-W ooftertestified regarding the variousprocessesA H CA
has in place to monitor and evaluate primary care providers (PCP) enrolled in
M edipassandmanagedcareorganizations(M CO).
195.AHCA devotesconsiderable resourcesto m onitoring. Thismonitoring,
however,doesnotdemonstrate thatchildren are receiving the care to which they
are entitled underfederallaw .
196.First,though there w as extensive testim ony regarding the m onitoring

processes, there is little in the record about the substantive results of those
processes. lndeed,m uch of the m onitoring took place during the very tim e that
A HCA 'Sow n docum entsdemonstratethatchildren were notreceiving care.

197.Second,there is little evidence in the record that any PC PS or M CO s
w ere Gned, sanctioned, or expelled from the M edicaid program for failure to
provide care to children on M edicaid orm eetany contractualrequirem ents relating
to the provision ofcare.
198. Third, process-oriented m onitoring does not establish that children

receive care. For instance, the fact that a PCP does not have m ore than 1,500
children on M edicaid as patients and does not work m ore than 30 m iles from
where hisorherpatientslive,doesnotdem onstrate thatthose children are ableto
see thatPCP on a tim ely basis. A H CA 'S m onitoring show s the system could w ork
on paper,butitdoes notprove thatitw orks in practice.
199.There is nothing persuasive in M s.Sreckovich's testim ony to establish
that tim ely care and access to the appropriate array of pediatric doctors was
actually provided ratherthan theoretically available. This isespecially true ifPCPS
affliated w ith M edipass or an 14540 chose to treat a large num ber of children on
M edicaid, despite the low M edicaid reim bursem ent rates. Flint on 1/24/2012
R ough Tr.at 153. Further,M s.Sreckovich's generalopinion that she has notseen
evidence of a system atic problem ,Sreckovich on 1/12/2012 Rough Tr.at54-55,is
contradicted by statem entsm ade by AHCA in LBRSand CM S 4l6 reports,aswell

as by the testim ony ofplaintiffs'experts. 1 do notfind M s.Sreckovich's opinions
persuasive.
200.A num ber ofA H CA w itnesses,including M s.B row n-W oofter and M s.
K idder,offered lay opinions regarding access.
20l.M s.Brow n-W oofter offered a lay opinion thatthere are enough PCPS
enrolled in M edipass to com ply w ith the contractualrequirem ent that no provider
have m ore than 1,500 children on M edipass. Brow n-W oofter on 10/24/2011
Rough Tr.at 67-69. H ertestim ony does not indicate w hether children are actually
receiving care from PC PS, w ho are not obligated to accept any children on
M edicaid m erely because they enrolled as a M edipass provider. N or does her

testim ony indicate w hether that care is tim ely and com parable to care provided to
children on private insurance. M oreover,defendants failed to show thatthe 1,500to-l ratio w as actually m et in practice. M s.B row n-W oofter did not know the
average num ber of M edicaid patients that a typical PCP enrolled in M edipass
accepts.Brow n-W oofter on 11/8/2011 Rough Tr.at 81. Thus, if the num ber is
substantially sm aller than 1,500, then the 1,500-to-1 ratio
effectively
m eaningless. ln sum ,1am notpersuaded by M s.Brow n-W oofter's lay opinions.

202.A ccording to M s.K idder's 1ay opinion,A H CA is able to deliver the
care children on M edicaid need,w hen they need it,and close to w here they need it
(with limited exceptions),for both primary care and specialty care. She also
opined that the increased num ber of children enrolled in M edicaid has not
im pacted A H CA 'S ability provide such care. K idder on 10/3/2011 Rough Tr.at
122-123, 150. H er opinion,however,is based largely on what she was told by

others. ltis also contradicted by A H CA 'S ow n statem ents in num erous LBRS,her
96
ow n testim ony ather deposition,the testim ony ofvarious other A H CA w itnesses
(including former Secretary,Dr.Agm m obi,and former M edicaid Directors M r.

Snipes and M r.Sham e),the testimony ofpediatricians,and numerous AHCA
docum ents. A ccordingly, 1 do not find M s.K idder's lay opinion credible or
persuasive.
H . Children'sM edicalServices(CM S)
203.CM S isa branch oftheD OH dedicated to helping children w ith special
health care needs. C onsistent w ith the problem s experienced by children on
M edicaid in accessing prim ary care, CM S has experienced problem s in finding
prim ary care providersto treatCM S children on M edicaid.
204.ln 2004,D O H conducted a Provider A ccess Survey,w hich show ed that
treqvery CM S area office or regional office reported that some CM s-enrolled

private prim ary care practices w ere closed to new CM S patients during calendar
year 2003.'' PX 319 atD O H 00077968;St.Petery on 12/8/2009 FinalTr.at228:5
-
229:12.
205.Thatsame survey showed thatigljow reimbursementratesand lack of

capacity w ere the top tw o reasons cited forthe closure ofprim ary care practices to
new CM S patients,follow ed by CM S patients'health conditions being considered
too complex forprim ary carepractice and adm inistrativeburden/paperwork.''1d.
206.Thesurvey also showed that'tlelvery CM S providerrecruitmentoffice

attem pted to recruitprim ary care practitioners to becom e CM s-enrolled providers
during calendaryear2003. Almostthree-fourths (72% )ofthe contacted private

prim ary care providers declined to enrollas CM S providers. Low reim bursem ent
rates and lack ofcapacity w ere the m ain reasons cited for declining to participate.''
1d. There is no indication in the record that these problem s have disappeared or
have been substantially am eliorated.
1. B lood Lead Screening
207.A s partofan EPSD T exam ,children on M edicaid m ustbe screened for

blood lead poisoning at 12 and 24 m onths,and if they did not have a test earlier,
they m ustbe screened for blood lead poisoning betw een 36 and 72 m onths. PX 71
at AHCA 00148486. Doctors can comply w ith the blood lead screening
requirem ents by either doing the testing them selves or referring their patients to a
laboratory fortesting. Snipes on 12/9/2009 FinalTr.at391:12 - 393:2.

208.There is no safe levelof lead in the blood. PX 77 atFL-M ED 07068.
The higher the lead level,the m ore severe the consequences. 1d. H igher levels
have an even greater im pact on the health and cognitive developm ent of children,
including lower1Q,behavioralproblems,hearing loss,neurologicalimpairments,

and death. 1d
209. Screening children for blood lead poisoning at an early age is
important. As defendants have stated,ilsjcreening for blood lead can lead to

effective early interventions,decreasing overalltreatm entcosts later.'' PX 98.
210.According to the CDC,Florida ranks 8th in the nation forthe num ber
ofestim ated children with elevated blood lead levels. PX 71atAH CA 00148485;
Snipes on 12/9/2009 FinalTr.at399:12-16. Jacksonville and M iam irank 21stand
32nd respectively am ong large cities in the U nited States,w ith an estim ated 1,900
children w ith lead poisoning. PX 71 atA H CA 00148485.
211. A prim ary source of lead exposure in children is lead-based paint,
which w as used in m any hom es builtprior to 1978. PX 77 at FL-M ED 07070.

H om es builtpriorto 1950 pose an even greatestrisk for children,as the am ountof
lead in paint from that era is generally greater and the structural condition of the
hom es often facilities greater risk of lead exposure. f#. The portion of pre-1950
homesinFloridavariesby countyfrom 3% tojustover15% .1d.

98
212.Florida's diverse population of im m igrants,refugees,and foreign-born

children are at further risk for lead poisoning because of specific high-risk
behaviors and custom ary use of foreign products containing unsafe levels of lead.
PX 71 atA H CA 00148485;Snipes on 12/9/2009 FinalTr.at399:8-11.
The CM S 416 report subm itted in A pril of 2008 show ed that only
60,000 blood lead screenings had been conducted forthe 250,000 eligible children
betw een the ages of 1 and 2. PX 8 atA H CA 0000087-88. M r.Snipestestified,ttl
w ould say personally to m e that's not acceptable.'' Snipes on 12/9/2009 FinalTr.
at372:5-11.
214.ln 2006,the m ost recentyear for w hich there is fgures in the record,
there w ere 389 new reported cases of blood lead poisoning in Florida,w ith 20 or
m ore new cases reported in Brow ard,D uval,H illsborough,M iam i-D ade,O range,
Pinellas,and Polk counties. PX 77 atFL-M ED 07073.
For fiscal years 2005-06, 2006-07, 2007-08, and 2009-10, A H CA
requested an increase in reim bursem entrates forblood lead screening for children,
stating:tdB ecause physicians are not reim bursed for the collection and handling of
1ab specim ens during an office visit, M edicaid children are being referred to a
laboratory for the required blood lead test rather than the physician collecting the
specim en and forw arding itto the laboratory for analysis. Lack of reim bursem ent
has fragm ented care, due to the fact that m any recipients do not follow through
w ith the lab trip.,,31 px 7044PX 705;PX 97;PX 98;Snipes on 12/9/2009 FinalTr.
at391:12 - 397:8.
216.M r.Snipes supported the agency's request for an increase in fees for
handling blood and believed that it w ould im prove beneciaries' ability to get
31 One of the nam ed plaintiffs,S.M .,hasnotbeen tested for blood lead exposure,because the
firsttim e hism othertook him to the lab itw as closed,and she subsequently w asnotable to take
him backbecauseofdifficultiesin securingtransportation.Seesupra at! 11.
Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 100 of
153
blood lead tests. Snipes on 2/9/2009 Final Tr. at 397:2-8. H e consistently
proposed increases in reim bursement rates for blood lead testing, because he
believed thatthere w asa problem thathad to be addressed. 1d.at399:22 - 400:2.
J. Provision/u tilization/Tim eliness ofSpecialistC are
U nder the EPSD T requirem ents, children on M edicaid should have

access to preventative care screenings and treatm ent for the conditions identified.
42U.S.C.j l396a(a)(43)(C).Often specialistcareisrequired.Brown-W oofteron

10/18/2011 R ough Tr.at 135.
2 18. D r. A gw unobi, speaking as Secretary of A H CA at the tim e,

acknow ledged the problem of access to specialists for the Florida M edicaid
population,including children:
1 personally have traveled to a1l of our different areas - our l1 area
offices, and l found that by far, the single biggest problem facing
A H C A today is access to specialty care for M edicaid recipients. The
single biggest problem . W e have m any problem s, but that's the
biggest.
PX . 126A at 5. D r.A gw unobi,in the sam e speech,referred to the problem as ($a

crisis in access to specialty coverage forthispopulation.'' 1d.at6.
219.Defendantsobjecttothesestatementsonthegroundsthattheywerenot
applicable to children. D r.A gm m obi,how ever,expressly stated in his speech that
he w as speaking aboutaccess for specialty care forchildren as w ellas adults: W e
have children and people rightnow thatneed access to specialty care.'' PX 126A .
H e illustrated the pointby stating:
So w hat this m eans is that w hen a child goes to the em ergency room
w ith a broken arm ,they can't find an orthopedic surgeon to follow up
w ith. A bscess teeth, can't get care. U sually through m any hours of
w ork and basically pleading on bended knee,w e have actually found
care for that patient. H ow ever,there are unacceptable delays w hich
translate into poor quality and som etim es patients have to travel for
m iles. So all of that is to say yes, the service indicates and our
153
experience confirm s that w e have a serious access to healthcare

problem in the state ofFlorida and,we have to addressit.
1d.at5.
220.Dr.A gw tm obisaid thatw hile there are m any reasons forthe problem of
accessto specialists,tonething isvery clearg,pqrovidersarein generalunderpaid

in contrastto com m ercialinsurance and M edicare.'' 1d.at6.See also PX 305 atLSTP 012841.
221. 1 find D r. A gw unobi's adm issions regarding insufficient access to
specialty care to be highly probative. D r. A gw unobi w as the highest ranking

individual in the agency prim arily responsible for M edicaid, and he w as not
testifying in the m idst of litigation. H e could nothave been m ore clear as to the
seriousness ofthe issue,characterizing itas a crisis.'' This adm ission is sufficient
evidence ofan accessproblem w ith respectto specialists.
222. O ther A H CA secretaries presented sim ilar view s in docum ents.

Secretary Tom A rnold observed thattw e have a system that is grow ing by double
digits,whereprovidersarepaid lessand lesseach year,accessislim ited,outcom es

are notm easured,racialdisparities in health access continue,and participants are
stigmatized. l'd say that'sabad system.'' PX 277A. Seealso PX 195 (emailof

M r.Arnold,then Deputy Secretary for M edicaid and later Secretary of AHCA ,
asking dican w e do anything that m ay reduce the reluctance of specialists in
participatingin M edicaid?'').
223.D r.A gw unobi's view s are reinforced by a 2007 survey of the A H CA
regionaloffices,which showed amajority ofregionalofficesreporting an acute

shortage''ofspecialists form ostspecialty types:
101
153
'
AREA OFFIC ES - ListofM ost Com m on Specialty Shortages *

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PX 205.
224. The survey responses from a num ber of the A H C A area offices
confirm ,and in certain instances,provide m ore detailthan the statew ide sum m ary.
SeePX 200 (Area 10;Broward County);PX 201(Area 1 shortages- Pensacola);

PX 202 (Area 9 specialist shortages - Palm Beach county);PX 203 (Area 6
specialistshortages- Tampa);PX 204 (Area 7;CentralFlorida);PX 722 (Area2;
Florida panhandle counties);PX 708 (Area 8;SouthwestFlorida). Forexample,
the response form A rea 11, w hich includes M iam i-D ade and M onroe counties,
statesthatthere is a shortage ofpediatric specialists ofevery kind''and thatd%there
are no specialists of any kind w illing to treat M edicaid recipients'' in M onroe
county. PX 199. A H CA ,through tw o agency representatives,testified thatthere
w as no reason to believe that the problem s identified in the survey w ere problem s
for adults,but not for children. Kidder on 5/19/2010 Final Tr.at 2529:20 2530:10;B row n-W oofteron 10/25/2010 FinalTr.at83-96.
102
153
225.AHCA ranked the differentspecialty practicesexperiencing shortages.

PX 710. These lpriority rankings''ofshortagesw ere applicable to children asw ell
asadults. Nieveson 5/17/2010 FinalTr.at2068:9-11.
226.Other internalAH CA docum ents and com m unications are consistent

w ith the existence ofdifficulty in accessing specialists forthe M edicaid population
throughout the state. See e.g.,PX 210 (October 2007 letter from Secretary
A gm m obi inviting providers to a M edicaid A ccess to Specialty Care Sum m it,
noting he had traveled the state,speaking aboutFlorida M edicaid w ith providers,
com m unity-based organizations, and A H CA staff, and stating: W ith rare
exception,w hen asked w hatthe m ost critical issue facing the program w as,they
identified the increasing lack of access to specialty m edical care for M edicaid
beneficiaries.''); PX 181 (shortage of dermatologists, neurologists and

neurosurgeonsforkidsand adultsin Jacksonville);PX 182A (documenting access
problem s for children seeking orthopedics gastroenterologists, neurologists, and
cardiology in Area 2);PX 188 (2006 AHCA survey showing lack of readily
availablespecialistcare);PX 211at7-11(relativenumberofspecialistsproviding
M edicaid services to total specialists);PX 221 (2000 survey of access to care
show s relative lack of access for M edicaid population and also geographic
differencesin access);PX 187 (Area 38 Ocala area servicesnotreadily available

in number of specialty types); PX 319 (no or very limited access to certain
specialty care for M edicaid children in CM S); PX 338 (tsignificant crisis in
PanamaCity areawith orthopediccoverage'').

227. The diffculty in access to specialist care found in the 2007 survey
corroborates an earlier A H CA study entitled tA ccess to M edicaid Physician
Specialists.'' PX 563. This survey m easured access by dividing the totalnum ber
of M edicaid arm ual visits in 2003-2004 by the national average of visits per
specialist physician and then com pared this Sestim ated M edicaid access''figure to
lO3
153
low est and highest estim ate of needs based on the literature. Each physician
specialty w as then given an access score from 1 to 5. The follow ing services
ranked eithert$1 (indicating accessunder50% ofthe lowestestimate ofneed);or

(access under the low estimate of need''): allergy,dentists,dermatology,
endocrinology,hem atology,infectious disease,nephrology,neurology, oncology,
orthopedic surgery,pulm onary disease,rheum atology,and urologicalsurgery. PX
563 at Flint 0113 1, 01135. This survey also show ed the com parative lack of
accessper county.
228.SeveralAH CA area adm inistratorsnonethelesstestified thatthey either

never had or no longer w ere facing diffculties w ith respect to access to specialty
care forM edicaid recipients in their areas. See e.g.,N ieves on 5/18/2010 FinalTr.
at 2260:5-18;A lbury on 11/15/2011 Rough Tr.at 107;K im bley-cam panaro on

10/6/2011 R ough Tr.at 98-103. 1 tind their testim ony unpersuasive for a num ber
ofreasons.
229. First, som e of these w itnesses directly contradicted their ow n sw orn
deposition testim ony or prior written statements. For exam ple, M s. Kidder
testitied attrialthat she did not believe the shortages noted in the A H CA survey
were assystematic asthey appearon thatchart(PX 2051.5' Kidderon 5/20/2010

Final Tr. at 2751:1-6. At deposition,however, M s.K idder testifying as the
A H cA -designated agency representative on these issues- acknow ledged that the
agency believed there w as a critical access to care problem in these specialty
types''as to which a LBR was m ade,and that remained true atthe tim e ofher
deposition. 1tL at2751:7 - 2752:5. Serious credibility issues existw hen a w itness
signiticantly changes her testimony from that given as a sworn Rule 30(b)(6)
w itness. Sim ilarly,testim ony by M s.K im bley-cam panaro,A H CA 'S Tam pa-area
program director, directly contradicted her em ail, PX 203, w hich found
l04
153
tchallenges'' in her area for ten different areas of specialists. tichallenges''
connotesdifsculty in finding sufficientspecialistproviders.

230.Second,som e ofthistestim ony w as based on unreasonable assum ptions
as to w hat constituted reasonable access to care. For exam ple,M s.Fran N ieves
testified that there were no difficulties securing access to specialists in area 8,

despite the factthat 14 areas of shortage w ere identified in 2007 for her area. See
PX 205. H er opinion assum ed thatifa single specialistw as available forM edicaid
recipientsin thatareaoran adjoining area,then sufficientaccessexisted. Nieves

on 5/18/2010 Final Tr. at 2264:7-15; id. at 2265:1-5 (stating that tif (a1
derm atologist in dow ntow n M iam iw as accepting som e children on M edicaid,that
w ould m ean for pum oses of Area 8 over in Sarasota you w ould have an available
dermatologisf').
23 1.Third,A H CA area adm inistrators'testim ony w as based on com plaints
they received about difficulties in accessing care. If they did not receive
com plaints,because beneficiaries orproviders did notcontactthe area offce,they
w ould notknow aboutdifficultiesin accessing care.See,e.g.,Gray on 11/28/2011

atRough Tr.29;N ieves on 5/l8/2010 FinalTr.at2268:6-22;K idder on 5/20/2010
Final Tr. at 2753:2-19. The area office also does not follow up to determ ine
whether care w as received, or if received, whether it was unduly delayed or

involved extensive travel. See, e.g., Gray on 11/28/2011 Rough Tr.at 30-32;
A lbury on 11/16/2011 Rough Tr.at48;Fulleron 11/29/2011 Rough Tr.at87,119-
120. Sim ilarly,the inability ofan AH CA employeeto recallany discussionsin the

office concerning a child going w ithout specialty care is w eak evidence at bestof
the lack of a specialty access problem . A lbury on l1/15/2011 R ough Tr.at 121.
This is especially true given docum entary evidence from the sam e area office
attesting to a shortage ofspecialists. Albury on 11/15/2011Rough Tr.at121. See
aslo PX 202 (specialist needs in Area 9 where M r.Albury works); PX 198

105
153
(shortageofpediatricspecialistsofeverykind in Area 11whereM s.Gray works).

A s one A H CA w itness acknow ledged, he could not say w hether or not children
were actually denied care,justthathe wasnotmade aware thatcare wasdenied.

Albury on 11/16/2011Rough Tr.at46.
232. Fourth, when pressed, these same w itnesses often conceded the
existence of a specialist care problem . For exam ple, Rhea Gray, the A rea
adm inistrator,testified she personally was not aware of complaints about access
problem s and thatan adequate num ber ofspecialists w ere enrolled in the M edicaid
program . But M s.Gray adm itted on cross exam ination that she had correctly
w ritten thatthe realissuesw ere the w illingness ofthose specialiststo see M edicaid
patients,and thatlow pay and billing difsculties w ere the reported reasons fortheir
unwillingness. Gray on 11/28/2011 Rough Tr.at43-44. Further,while she had

not experienced m ore than a tw o-w eek delay in having patients seen at M iam i
Children's H ospital or Jackson M em orial H ospital in M iam i, she acknow ledged

thatfrequently the w aittim e forM edicaid children to be seen by a specialistatone
of those hospitals w as from six to nine m onths. f#. at 45. Finally, M s. Gray
subm itted a report,which w as approved by her colleagues,indicating that there

w ere no specialists tof any kind''w illing to see M edicaid recipients in M onroe
County and thatthe A rea 11 ofce had difficulty in fnding specialty care in eleven
differentfields,including ttpediatric specialists ofevery kind.'' PX 199.
233. Fifth, none of the testim ony provides an explanation to support
defendants'argum entthatthe sacute shortages''in mostspecialty areas statewide

has suddenly disappeared. There have been no changes in reim bursem entrates for
specialists during this tim e period,Nieves on 5/18/2010 Final Tr.at 2262:7-16,

although dem and forservicescontinued to increase.
l06
153
234.Forallofthese sam e reasons,Iplace little weighton the conclusory lay

opinions offered by M s. K idder and other AH CA w itnesses that there w as no
difsculty with regard to accessto specialistcareforchildren on M edicaid.

235. The existence of a severe problem in access to specialists is also
reiected in AHCA 'S LBRS submitted to the governor and legislature to increase
the reim bursem entrates for derm atology,neurology,neurosurgery and orthopedic
surgery,each ofwhich are specialists thatchildren utilize. K idder on 5/19/2010

FinalTr.at2528:12-17. The given reason for the requested increase w as a critical
access to care problem in those areas. PX 89;PX 90,PX l0;K idderon 5/19/2010
FinalTr.at2527:8 - 2528:7. O ne AH CA LBR stated: tt-l-he M edicaid area offices
have identifed a physician specialty provider shortage and criticalaccess to care
problem''in these specialty areas. Ex.727 (emphasisadded). These areaswere

selected because a m odest proposal w as believed to have the best chance
politically for passage. Snipes on 12/9/2009 Final Tr. at 405:6-13; lsaac on
8/11/2010FinalTr.at3883:4-24(testifying to statementofSec.Agwunobi).
236. M r. Snipes confirm ed that these LBRS retlected the views of the
agency. Snipes on 12/9/2009 Final Tr. at 403:11-22. He testified: %(W )e

supported the issues;w e feltthe issuesw ere im portant,even critical.'' fJ.at459:110.
237.The LB RS requested increases in specialist reim bursem ent for several

years. A n A H C A w itness testified thatthey take the statem ents in those requests
extremely seriously'' and dsdo their best to give (the legislatureq accurate
inform ation.'' K idder on 5/20/2010 FinalTr.at2741:4-6. The LB R S w entthrough
a review process by a num ber ofindividuals and bureaus inside A H CA ,including
the secretary. They were then reviewed by the governor'soffice and were listed as
one ofthe priorities for legislative action. PX 719 (for 2009-2010 fiscalyear,
physician specialty fee increase w as num ber one A H CA priority in G overnor
107
153
Crist's recommendations). 1 find the agency's consistentposition expressed in

these LB RS persuasive evidence as to the conditions in M edicaid relating to access
to specialty care.
238.Evidence from the D OH dem onstrates that CM S children on M edicaid

also lack access to specialty care. CM S reported in a 2004 CM S survey ofthe 17
CM S area and regional offices widespread problem s with regard to accessing
specialty care.The pediatric specialties for which no access was m ostfrequently

encountered w ere derm atology,neurological surgery,orthopedics,psychiatry,and
urology. PX 319. ln O ctober of 2008,V ickie Posner,testifying as a designee of
D OH , w as asked w hether D O H w as aw are of any difference in the ability of
children on M edicaid to access specialty care as com pared to children w ith other
types of insurance. She replied: SsA necdotally w e know that som e- if you are
going to include all of insurances in that question- private paying, private
insurance children have access to services that M edicaid children do not have.1
think that's fairly w idely recognized in the State ofFlorida.'' Posner on 10/28/2008
Depo.Design.at83:20- 84:12 (limitedbycourtorderto CM S childrenonly).

239.A num ber ofpediatricians throughoutthe state also gave consistentand
persuasive testim ony as to the difficulties they faced in refening children on
M edicaid to specialist. Dr.Cosgrove,whose practice consists of approxim ately

20% M edicaid patients, has difficulty referring children on M edicaid to
derm atologists,allergists,orthopedic surgeons,neurologists,and endocrinologists,

difficulties she does not face with privately insured patients. Cosgrove on
5/19/2010 Final Tr. at 2563:12-17, 2566:11-15, 2569:11 - 2571:14, 2573:1-6.
These difficulties have continued with regard to referring M edicaid children to
108
153
rheum atologists, orthopedics, and derm atologists; C osgrove on 1/31/2012 R ough

Tr. at 149-152.32
240.D r. Silva,w ho had approxim ately 20% of her practice w ith M edicaid
patients, also testified that she has trouble referring M edicaid patients to
derm atologists, EN T S, ophthalm ologists, orthopedists, endocrinologists, general
surgeons, rheum atologists,and infectious disease specialists,am ong others. Silva
on 5/20/2010 FinalTr.at2779:6-15. M edicaid children have to waitthree to five

m onths in B randon and one to three m onths in Tam pa, w hereas com m ercial-
insurance patients can be seen w ithin one to tw o w eeks. 1d.at 2779:17 - 2780:8.
In rebuttal testim ony, D r. Silva confrm ed recent difficulties and travel tim es
experienced by M edicaid patients she refers to specialists, such as allergists,
derm atologists, and endocrinologists, difculties not experienced by her private
patients. Silva on 1/19/2010 Rough Tr.at 140.
241.D r.Schechtm an,w hose practice consists of23% children on M edicaid,

sim ilarly testised that it is ttm uch m ore difficultto find a specialistw ho is w illing
or has an open panel to see M edicaid patients.'' Schechtm an on 5/20/2010 Final
Tr.at2836:1-5. Forexample,a child with a potentially precancerousm ole could

not see a dennatologist for at least six m onths. 1d. at 2838:2-13. Orthopedic
surgeons w ould only see M edicaid patients w ith lim ited diagnoses.1d.at2839:311. By contrast,there w ere ddno barriers'' w ith respect to com m ercially-insured
patients. 1d. There w ere no pediatric neurologists in Palm B each C ounty w illing
to accept M edicaid patients, requiring those patients to travel to M iam i to seek
care. 1d.at2840:16 - 2841:12. O n one occasion,D r.Schechtm an had to adm it a
child on M edicaid into the hospitalto receive cardiac care that could have been
m anaged in a low-cost outpatientsetting if the child's M edicaid 11M 0 plan had
32IrecognizethatDr. Cosgroveusual
lycalledthefirstthreetofoursgecialistsonherlist,
and havetaken thislim itation into accountin assessing theweightofhertestlmony.
109
153
been accepted by pediatric cardiologists. f#.at2842:25 - 2844:14. Access for

M edicaid patients to ENT specialists is also ttextrem ely lim ited,'' although
privately insured patientshave Sino problem ''being seen. 1d.at2844:15 - 2845:17.
Dr.Schechtman'srebuttaltestimony show ed thatthe obstaclesin providing access

to specialty care for children on M edicaid continue. Schechtm an on 1/26/2012
Rough Tr.at 14-21,30-33.
242.D r.lsaac testified that orthopedic care is not available to children on

M edicaid in the ilreasonable area''around his practice. C onsequently,he has seen
children w hose broken lim bs w ere only put in a splint and not a cast,w hich D r.
Isaac characterized as im edicalneglect.'' lsaac on 8/11/2010 FinalTr.at3869:1020. O ver the past few years,D r.Isaac has been unable to refer M edicaid patients
to specialists in orthopedics, neurosurgery, derm atology, or psychiatry. 1d. at
3873:3-23.
243. O ther PCPS have also experienced trouble referring children on
M edicaid to specialists- an issue that those w ith private insurance do not face.
See e.g.,Seay D epo.D esig.on 11/14/2008 at 15:9 - 16:24,20:2-9,57:7-21,103:7-
10;St.Petery D epo.Desig.on 11/11/2008 at 191:1-4,195:7 - 196:11,197:15-25,

198:21- 199:10;Ritrosky D epo.D esig.on l1/10/2008 at 17:17 - 18:14,27:18-22,
3929 - 40:3,45:2 - 47:7,50:8-23,50:8 - 51:1;Curran D epo.D esig.on 10/7/2008
at 30:4 - 31:8,32:16 - 34:14,37:13 - 38:11,55:8 - 56:4; Chiu D epo.D esig.on
11/25/2008 at 103:19 - 106:1;K nappenbergerD epo.D esig.on 11/20/2008 at32:9
-
33:5,99:12 - 100-8.
244.Barriers to access to specialistcare w ere confirm ed by testim ony from

various m edicalspecialists. D r.D uncan Postm a,w ho is the supervising partner at
Tallahassee EN T ,testified that their practice lim its the geographical area from
w hich they acceptM edicaid patients,declining to accept patients from outside the
7 county area and lim iting the num ber of new M edicaid patients to tw o new
153
patientsperweek,per doctor. Postma on 8/4/2010 FinalTr.at3152:2-19. A sa

result,M edicaid patients requiring non-em ergency ENT care face a two-m onth
delay,as opposed to the two-week delay experienced by non-M edicaid patients.
1d.at 3153:7-23,3155:7-16. These lim itations are im posed because Tallahassee
ENT dtlosegsqmoney on M edicaid patientsand can only afford to lose so much.''

1d. ln 2006,the average costofan ENT patientencounterwas $138,butM edicaid
paid approxim ately $88 per encounter;in 2007,the average encounter cost was
$135,and M edicaid paid approxim ately $85.1d.at3187-89. ForaM edicaid child
patient,Tallahassee ENT lostan average of$45-$50 perpatientin 2006 and 2007.
1d.at3190:5-17.
245.D r.Brett B aynham is an orthopedic surgeon in Palm Beach C ounty,

whose practice is 95% children. Tw enty-five percentto 30 percentofhis patients
used to be children on M edicaid. ln 2004, how ever,he lim ited the num ber of
M edicaid patientshe w ould see because ofthe low reim bursem entrates. Baynham
on 1/24/2012 Rough Tr.at8-9,12.See also PX 770 (M arch 2010 em ailfrom

pediatric otolaryngologist, stating he is the only pediatric EN T in the W est Palm
Beach area seeing M edicaid patients in an offce setting and thathe is presently
schedulingM edicaid patientsmorethan2-3monthsout.).

246.Dr.A dam Fenichel,an orthopedic surgeon in the Orlando area,testifed
similarly. W hile 80% ofhis patients are children,only 5% are on M edicaid. Dr.
Fenichelsees 2,000 new patients a year,buthe lim its his practice to only a couple
hundred M edicaid patients,becausetthe reim bursem entforM edicaid islow erthan

our cost to care for patients.'' Fenichel on 10/18/2010 Final Tr. at 4301:20 -
4302:4,4306:2-24.See also PhillipsD epo.Desig.on 11/24/2008 at 14:9-17,33:210,34:2-16,83:8-18;.
247.Dr.Ricardo Ayala,aspecialistin pediatricneurology,testifiedthat:(1)

he lim its the num ber ofnew M edicaid patients he sees in his Tallahassee practice;
153
(2)helosesmoney on treating thesechildren;and (3)thesechildren faceafourto

five m onth wait,as opposed to a two-week wait for privately insured children.
Ayala on 8/9/2010 Final Tr. at 3569:21
3570:1, 3580:4-16, 3589:2-11.
Furtherm ore,w hen he needsto refer children on M edicaid to other specialists,such

as orthopedists, psychiatrists, sleep disorder specialists, and rheum atologists, the
referrals are notaccepted. 1d.at3594:1-14;3615:6 - 3620:24.
248. Plaintiffs also presented the testim ony of D r. R ex N orthup, w ho in

addition to being a critical care pediatrician,served as the CM S regionalm edical
director for N orthw estFlorida. Though he does not know of any CM A child w ho
has been denied access to specialty care,there are a num ber of areas w ithin that
region w here there is an inability to obtain access to care w ithout augm enting or
supplem enting the M edicaid rate.'' N orthup on 2/10/2010 FinalTr.at 1598:13-21.

C M S has supplem ented the M edicaid rate so as to obtain derm atology care,
because no providers routinely see children for the M edicaid rate. N orthup on
2/10/2010 Final Tr.at 1617:8-25.See also Curran D epo.D esig.on 10/7/2008 at
45:1 - 46:9; K nappenberger D epo. D esig. on 11/20/2008 at 22:17-25; Seay on
11/12/2008 D epo.D esig. at 106:14 - 108:6. There are no orthopedists to treat
children on M edicaid in the Panam a C ity area,exceptin the em ergency departm ent
of the hospital. 1d. at 1620:17-20, 1622:6-22. Children requiring orthopedic
specialty care m usttravelto other areas,such asJacksonville or Gainesville,w hile
there are orthopedists w illing see privately-insured patients in the area. 1d. at
1630:19 - 1631:23.33 EN TS in the area lim itthe num ber ofM edicaid children they
will see,requiring these patients to drive three hours or m ore for care. 1d.at
1638:2-12. For pediatric neurology care,the w ait for M edicaid patients is tw o to
33 Dr. N orthup's testim ony on these points is notdependenton the residualexception to

the hearsay rule,as to w hich another aspects of Dr.N orthup's testim ony concerning rates w as
adm itted.Tr.at 1636:22 - 1637:9.
153
three m onths,asopposed to a couple ofweeksforotherpatients. 1d.at1643:23 1645:18.

K . Provision/u tilization/T im eliness ofD entalC are
249.Dentalcare is especially important for children on M edicaid because

low -incom e children are at substantially higherrisk fordentaldisease,and prim ary
t00th decay,and have higher levelsofuntreated dentaldisease. PX 85,PX 707.
250. States are required to provide eligible children w ith dental services
including dsrelief of pain and infections,restoration of teeth,and m aintenance of
dentalhealth.''42U.S.C.j 1396d(r)(3)(B).They are alsorequired to reporton the

num ber of children receiving dental services. The CM S 416 report fulfills that
reporting requirem ent.
251. For FY 2007, of the approxim ately 1.6 m illion children eligible for
dental services through Florida M edicaid,only 343,000 received any dental care,
according to the CM S 4 16 reportA H CA subm itted in A pril of 2008. See PX 8
(compare lines 1 and 12a). M r.Snipes,acknowledged,tg-flhat'snotacceptable.''

Snipes on 12/9/2009 FinalTr.at373:1-8;see id.at442:17-23. Thatequatesto a
dentalutilization of21% (343,529/1,611,397),PX 440 at52-53,which meansthat

79% ofthe children on M edicaid in Florida w ere notreceiving any dentalcare. PX
440 at 52-53. Thattied Florida for the low est M edicaid dentalutilization rate in
the nation. PX 440 at 52-53. Fiscal year 2007 w as not an aberration. For FY
2006,Florida's M edicaid dental utilization rate w as also 21% , w hich tied it for
second low estin thenation. PX 440 at52-53.Seealso PX 418 atp.9.

252.Children on private insurance receive dental care at a far higher rate.
N ationally,55% ofchildren with private insurance visited a dentistwithin a given

year,w hile only 37% ofthe children on M edicaid visited a dentist over the sam e
time period,according to a 2008 GA O report. PX 452 at Cra1101734;Crall on

11/17/2010 at Tr. 5093:20 - 5094:9; 5161:9 - 5162:25. O nly 49% of children
153
under 18 from fam ilies w ith incom es above the poverty line had a dentalvisit at
leastonce during a lz-m onth period. Thatfigure rose to 26% and perhaps as high
as 73% for fam ilies w ith incom es above 200% of the poverty line,according to a
2001 reportby the federalD FIH S. PX 447 atCrall000750.

253.A H C A ,in a seriesofLBR Sand otherdocum ents,has acknow ledged for
nearly a decade that access to dentalcare for children on M edicaid is inadequate
and thatratesmustbe increased. A HCA,through itsLBRS,furtheracknow ledged

that:
* D ental participation in the Florida M edicaid program is declining,

c.g.,PX 82,PX 83,PX 84,PX 85,PX 88,PX 109,PX 726.See
also Sharpe on 11/16/2010 Final Tr.at 4947:1-8; Cerasoli on
8/11/2010 FinalTr.at3934:18-25;
* Florida's M edicaid reim burses dentists at less than 40% of their
usualand custom aly costs,e.g.,PX 80,PX 81,PX 82,PX 83,
PX 109, PX 715, PX 718, PX 726. See also C erasoli on
8/11/2010 FinalTr.at3935:12 - 3939:14;
@ Florida's M edicaid reimbursem ent rates are very low com pared to
other states,c.g.,PX 80,PX 85;PX 88,PX 155;PX 718.See
also C erasoli on 8/11/2010 Final Tr. at 3957:16 - 3961:18;

Sham e on 11/16/2010 FinalTr.at4954:8-21;and
* Florida dentists say the state's M edicaid rates do not cover their
costs.PX 80,PX 81,PX 82,PX 83,PX 84,PX 88,PX 109.
254.The LB R S repeatedly called for a rate increase,and state,in alm ostthe
exactsam e language,year after year:(dA fee increase forchildren's dentalservices
isneeded ifservice isto be available.'' PX 78.See also PX 80 (same),PX 82

(same),PX 83,PX 109 (same). TheLBRSalso statethatEllaqn increaseoffeesis
expected to increase provider participation, and subsequently, increase access to
153
dental care.'' PX 80. The testim ony about these LB RS is consistent. See, e.g.,
Sharpe on 11/16/2010 FinalTr.at 4945:18 - 4949:8;4952:16 - 4953:19;4956:16
-
4963:19;at4964:19 - 4966:19;4968:5- 4970:25;Snipeson 12/9/2009 at411:15
414:10;at415:10 - 416:8;K idder on 5/19/2010 FinalTr.at2534:12-24.

255. N one of the above recom m endations to increase dental fees w as
adopted by the legislature. Snipes on 12/9/2009 FinalTr.423:20-22. For every

sscalyear since 2005-2006,the K idcare Coordinating Councilhas recognized the
inadequacy of Florida's dental rates and recom m ended increases in dental
reim bursem entrates. PX 697,698,699,349,350,682. From 1987 through 2010,
Florida M edicaid dentalrates w ere increased once,by 13% in 1998. Cerasoli on

8/11/10 FinalTr.at3951:10-25. M eanw hile,children's enrollm ent in the Florida
M edicaid program rose by approxim ately 78% from 1998 to 2008,thus w idening
the gap betw een the services needed and the services available. PX 682 at 12;
K idderon 5/19/2010 FinalTr.at2485:4 - 2486:4.

256.D efendants claim that som e sgures in the LBR S show ing a decline in
the num ber of dentists participating in M edicaid w ere sim ply copied w ithout
verification from one year to the next. Even if true,how ever, it is clear that the
percentage of licensed dentists enrolled in and participating in Florida M edicaid
has declined. A H CA 'S ow n interrogatory responses dem onstrate thatthe num ber
ofgeneraldentists w ith 100 orm ore paid claim sfortreating children declined from
616 to 377,a drop ofm ore than 3824,from FY 2003 to FY 2007. PX 739 atTable
During the sam e tim e period,the number oforalsurgeons with 100 or m ore
paid claim s for children fell m ore than 30% and the catchall category of other
dentists plum m eted from 130 to 42,a decline of67% . f#.
257. The reason for these declines
Florida's inadequate dental
reim bursem ent rates. A 2004 study by the A m erican D ental A ssociation, w hich
A H CA relied upon w hen drafting its LBR S,show ed thatFlorida ranked 48th in the
153
nation forpreventative services and 49th in the nation fortreatm entservices. PX

155 at 13-14;Cerasolion 8/10/10 FinalTr.at3960:22 - 3961:18.Thatsam e study
show ed that for 15 dental procedures, Florida's M edicaid reim bursem ent rates
ranked at or below the 5th percenti1e nationally. For ten procedures, Florida's
reim bursem ent rates w ere below the first percentile nationally. PX 155 at 6;PX
109 atAHCA 00719087 to 88(showing reimbursementrateswerebelow dentists'
costs for6 of7 procedures analyzed);Cerasolion 8/10/1lFinalTr.at3957:3 3959:24.
258.ln 2001,the H ealth Care Financing Agency,the predecessorto federal

CM S, stated;iln general,H CFA believes that significantshortfalls in beneficialy
receipt of dental services, together w ith evidence that M edicaid reim bursem ent
falls below the 50th percentile of providers' fees in the m arketplace, create a
presum ption of noncom pliance w ith both these statutory requirem ents. Lack of
access due to 1ow rates is not consistent w ith m aking services available to the
M edicaid population to the sam e extent as they are available to the general
population,and w ould be an unreasonablerestriction on the availability ofm edical

assistance.'' PX 447 at Crall00751. Significantly,M s.Kidder adm itted that if
M edicaid reimbursements fordentistswere below the 50thpercenti1e (which they
were),then Floridawaspresumptively outofcompliance with the M edicaid Act.

K idderTestim ony on 5/20/2010 FinalTr.at2733:5-1l.
259.N um erous otheragency officials,including the AH CA secretary,have

acknow ledged substantial problem s w ith Florida's M edicaid dental program .
Form er A H CA Secretary, A lan Levine, sent an em ail lam enting that tonly 16
percentofourchildren in M edicaid fee-for-service gotany preventative dentalcare
lastyear.'' PX 277A . Form er D eputy Secretary and later Secretary of A H CA ,M r.
Arnold,gave a speech atthe 2007 M edicaid Accessto Specialty Care Summ it,in
which he presented charts showing thata sm allfraction ofdentists participated in
116
153
M edicaid and even fewer actually billed for M edicaid services. St.Petery on
12/8/2009 Final Tr. at 240:3 - 245:15. D ocum ents show that only 7.8% of the
9,021licensed dentistsin Florida wereenrolled in M edicaid,and only 502 or5.6% ,

actually billed M edicaid.PX 218 at4.Seealso PX 211atp.9.
260.M r.Sham e testified thathe did notbelieve AH CA w as in com pliance
w ith the reasonable prom ptness standard as to dentalcare. 1d.at4976:15 - 4977:9.
H e testified:$W ell,w e're acltnow ledging that for a federally required service,at
least for the children's portion of dental care,that the state is not even m eeting
federalrequirem ents for the provision ofthatcare.'' 1d.at4970:20-25;PX 108.

H e said he could not have m ade a stronger statem ent w ithout being fired. 1d. at
4962:11- 4963:19;4941:8-25.
261. M ore recently, AHCA recognized that even excluding the children
enrolled in prepaid dentalplans,M edicaid 14M O s,and PSN S that provided dental
care, 834,651 children enrolled in Florida M edicaid had not received any dental
care in atleast six m onths,even though the periodicity schedule calls forthem to
have a dentalcheck-up every six m onths. PX 150,PX 790.
262.M s.K idder acknow ledged ia significant shortfallin beneficiary receipt

of dentalservices.'' K idder on 5/20/2010 FinalTr.at2756:21 - 2757:5;2728:20-
22;2730:6-9. In a Novem ber of2006 em ail,she wrote M edicaid reim bursem ent
rates w ere llextrem ely low ''and stated: S-l-his is a serious barrier to dentalcare and
is causing problem s with accessto dentalcare acrossm uch ofthe state ....'' PX
167.See also Cerasolion 8/11/2010 FinalTr.at3966:13-24.M s.M arcy Cerasoli,

AH CA 'S agency witness on dentalissues,acknowledged thatFlorida's M edicaid
reim bursem ent rates iare am ong the low est in the U nited States.'' Cerasoli on
8/11/2011 FinalTr.at3932:13-15. The m ain reason m any Florida dentists w illnot
provide services to M edicaid recipients is because of M edicaid's low
153
reim bursem entrates. 1d.at 3933:7-11. Few er and few er dentists are enrolling in
Florida M edicaid and treating M edicaid beneficiaries. 16L at3934:18-25.
263. The D OH also acknowledged that ta comm on barrier to access to

servicesisa lack ofspecialty and dentalproviders,prim arily attributableto the low
M edicaid reimbursem entrates.'' PX 315 atDOH 00079770.
264. Florida M edicaid 1-1M o s in R efol'm and non-R eform counties m ust
reporttheir HED IS results for annualdentalvisits for m em bers age 2 through 21.
Florida M edicaid l'lM o s in both program s score poorly com pared to M edicaid
l'
IM o s nationally. The w eighed m easure of the Florida R eform lIM o s is
15.1955% and the national m easure for llM o s is 42.5% , according to a 2007
reporq the m ostrecentin the record. DX 334 at2;Brown-W oofteron 11/8/2011

Rough Tr.at32-33.
265.The first large 1-1M 0 to provide dental care to M edicaid beneGciaries
was Atlantic Dentallnc.(AD1''). From FY 2003 through FY 2007,the most

recent year for w hich there is data in the record,A D l never provided m ore than
23.12% ofeligible recipientsw ith any dentalservices. PX 14,PX 15,PX 16,PX

R eports from individual dental providers, covering 2007 and 2008 in six-
month blocks,show thatforeach period,the majority ofproviderstreated fewer

than 15% of the children assigned to them . Several provided no dental care
w hatsoever for the children assigned to them . DX 519.
266.Testim ony from providers underscores the lack ofaccess to dentalcare.
ln the Tallahassee area,dentalcare is readily available to children with private

insurance,butnotchildren on M edicaid. Patients w ith cardiac issues m ustbe sent
to the University ofFlorida dentalclinic in G ainesville w here there is a six-m onth
w ait for treatm ent. St.Petery on 12/8/2009 FinalTr.at 260:19 - 261:17;263:5 266:13.
118
153
267.D r.Cosgrove testified thatittakes six m onths to refera M edicaid child

enrolled in M edipass or in the W ellcare 11M 0 to a dentist.Cosgrove on 5/19/2010
FinalTr.at2573:7 - 2574:2. She had a patienton M edicaid w ith an abscess that
could notgetan appointm entw ith a dentistfor three m onths. 1d.at 2574:3-23. ln
rebuttal testim ony, she testified that these problem s continued. C osgrove on
1/31/2012 Rough Tr.at 147-152.
268.D r.Silva testifed that he does not know of any dentists w ho w ill see
M edicaid kids for bottle rot or deep cavities. Silva on 5/20/2010 Final Tr. at
2768:1-2;2794:16 - 2796:9. N or does she know of any dentists in H illsborough
County accepting new M edicaid patients. 1d.at2819:20-24;2820:1-18.
269.D r.Schechtm an testified thatm ostofhis M edicaid patients do notsee a
dentist. 1d.at2845:18 - 2846:5;2846:6-18.
270. D r.N orthup testified that there are w aiting lists of several m onths'
tim e''forC M S children to receive specialized dentalcare at Sacred H eart's dental

clinic. 1d. at 1600:9 - 1601:6; 1602:19 - 1603:9. A t the tim e D r. N orthup
testifed,the clinichadjustbecome operable again afterattseveralmonths'period

of seeing no patients,''because there w as no dentist available. 1d. There is high
dem and for services at the clinic, because it ttis the only dental clinic or dental
provider in the four-county area specifically seeing pediatric patients thatw illtake
M edicaidl.l'' 1d.at 1603:12-18. Other dentists in the area acceptchildren on

private insurance. fJ.at 1603:19-21.
271.D r.N orthup som etim es pays dentists rates above the M edicaid rates to
treat CM S children because that ddis essentially the only w ay w e've been able to
obtain access to dentalcare for those children.'' 1d.at 1605:20-22; 1606:1-4. D r.
N orthup supplem entsthe M edicaid ratespaid to dentists w hen a child needsurgent
care and calm ot w ait the tw o to three m onths it otherw ise w ould take to see a
dentist. 1d.at 1607:18 - 1608:1.
153
272. Other PCPS also have trouble referring children on M edicaid to

dentists. See e.g., St. Petery D epo.D esig. on 11/11/2008 at 197:15-25; Curran
Depo.D esig.on 10/7/2008 at39:21- 41:1,41:22 - 42:3,42:16 - 43:5;Chiu Depo.

D esig.on l1/25/2008 at 87:21 - 89:1;Ritrosky Depo.Desig.on l1/10/2008 at
49:9 - 50:7.
273.D r.N atalie Carr is a pediatric dentist who practices outside of Tam pa.
Carr on 8/10/2010 FinalTr.at3787:10-13. She practiced in Texas,w here 99% of

herpatients w ere on M edicaid. ln Florida,how ever,she did not accept M edicaid,
because Stthe reim bursem entin Florida w as m uch low erthan itw as in Texas atthe
tim e.'' 1d.at3789:25 - 3790:2. Som etim es,parents of M edicaid children com e to
her offering to pay herbecause they cannottsnd a M edicaid dentist. 1d.at3791:24
-
3792:8. She has difficulty m aking referrals because there are so few dentists in
the area w ho accept M edicaid, and m ost of those dentists do not accept new
patients. 1d.at 3793:3-20;3808:17-24.D r.Cal'rtestified thatshe w ould notaccept
M edicaid patients in hernew practice because even with a 48% increase,the gap
betw een the fees she charges and the reim bursem ent rate is too great. Carr on
1/23/2012 Rough Tr.at7:2-19.

274.D r.RobertPrim osch is a ProfessorofPediatric D entistry and A ssociate
D ean of Education at the College of D entistry at the U niversity of Florida. A s
Chairm an of the D epartm ent of Pediatric D entistry,D r.Prim osch ran the dental
clinic for children,80% ofw hom w ere on M edicaid. Prim osch on 8/10/2010 Final
Tr. at 3721:15-20; 3722:24 - 3723:4; 3725:9-16. The clinic saw about 14,000
patients a year, and the dem and for its services exceeded its capacity. 1d. at
3732:25 - 3733:4; 3725:17 - 3726:20. W hen D r.Prim osch ran the clinic,there
w as a six-m onth w aiting period for children w hose dental needs required
hospitalization,and thatwaiting period hasnotshortened since forchildren whose

care he has supervised. 16L at3731:4 - 3732:1.
120
153
275.Dr.James Crallis a professor of pediatric dentistry atUCLA,and a

form erchairofUCLA 'Spediatric dentistry section. Crallon 11/17/2010 FinalTr.
at 5069:21-23,5070:2-3; 5071:1-13. From 2000 to 2008,he w as director of the
NationalOralHealth Policy Center,which is funded by the Health Services and
ResourcesAdministration II4RSAI.1d.at5070:11-21. Overthelast25years,Dr.

C rall has held a variety of positions w ith num erous national and federal
govem m entbodies dealing with oralhealth policy. 1d.at5072:21- 5073:20. Dr.

Crallhas tw ice testifed before Congressional com m ittees and tw ice before state
legislatures. 1d. at 5073:22 - 5074:7. H e has published 60-65 articles in peer
reviewedjournals,id.at5075:14-19,including many on the relationship between

rates and participants by dentists in M edicaid program s. I accept D r.Crall as an
experton public policy w ith respectto the provision ofdentalcare to low -incom e
children.
276.Dr.Cralltestified that: (a)children'saccessto dentalcare in Florida's

M edicaid program
quite low, declining, and inadequate; (b) dentists'
participation in Florida'sM edicaid program islow,inadequate,and declining;(c)
Florida M edicaid rates are low as compared to m arket based fees charged by
dentists and far below the average overhead costofproviding dentalservices;and
(d)M edicaid ratesneedtobeincreased atleasttothe50th percentileofprevailing

fees charged by Florida dentists to significantly im prove access. Crall on
11/17/2010 Final Tr.at 5078:15 - 5079:5; 5079:12 - 5081:149 5081:15-23; PX
4 18.
277.D r.Crall's conclusion regarding access was based on Florida's CM S

4l6 reports show ing thatonly 21-23% ofeligible children received any dentalcare,
and even few erchildren received preventative dentalcare ortreatment. PX 418 at

p.9;Crallon 11/17/2010 FinalTr.at 5082:8 - 5084:3;PX 447. By contrast,m ore
than half of privately insured children receive dentalcare in the course of a year.
153
Crallon 11/17/2010 FinalTr.at5093:20 - 5094:9;5161:9 - 5162:24;PX 452 at

13.
278.D espite defendants'm ultiple attacks on the use of the CM S 416 report
data to m easure access to dentalcare,the reportrem ains the m ethod w hich CM S
uses to m easure state perform ance. Crallon 2/7/2011 FinalTr.at 5208:1-22;PX

440 at3;C rallon 1/26/2012 Rough Tr.at 155. I-IED IS data are available only for
managed carecompanies(Crallon 2/7/2011FinalTr.at5243:12-14)andarebased

on survey data,w hile the CM S 416 reportrelies on allthe data. Crallon 2/7/2011
FinalTr.at 5243:12-22. Defendants suggested that Clo s and FQHCS were

sufficient to com pensate for the lack of dental providers accepting M edicaid
patients. B ased on the instructions for the C M S 416, how ever, a1l dental care
provided to children by CHD Sand FQHCSare counted on the CM S 416 report.

Crall on 2/8/2011 Rough Tr. at 82-83. Thus,1 find that the num ber of children
receiving dentalcareateitherCl-lDsorFQHCS,which ranged from about65,000

children in FFY 2003 to about 103,000 children in FFY 2007,asshown on 17X739
(lastpage,table 3),are included in thetotalnumberofchildren receiving dental

care as shown on the CM S 416 reports for those years. And the num bers on the
C M S 416 reports dem onstrate that,notw ithstanding the im portant role played by
ClD sand FQHCS,79% ofthechildren on M edicaid inFloridadidnotreceiveany

dentalcare in FFY 2007.
279. D efendants' expert M s. Sreckovich confused dental procedures w ith

dental visits, despite her ow n back-up m aterials show ing she w as counting
procedures. Sreckovich 1/10/2012 R ough Tr.at 23-24,26-27. This significantly
underm ines her analysis because dentists often perform severalprocedures during
one visit,id.at23,and heranalysis m ade itappear as ifchildren on M edicaid w ere

receiving tw ice as m uch care,ifnotm ore,than they really w ere. 1d.at31-34. M s.
Sreckovich also com puted an average num ber of dental visits am ong a1lpatients
122
153
thatobscured the factthatthe vastmajority ofchildren received no dentalvisits.

2/8/2011 Rough Tr.at 102-03.
280.l conclude that Dr.Crallisjustised in relying upon the CM S 416

reports,and thatthe figures in those reports are m ore telling than M s.Sreckovich's
average dentalvisitanalysis.
281.D r.Cralldeterm ined thatFlorida M edicaid rates w ere far below m arket
ratesand dentists'costs. He compared Florida M edicaid paym entratesin each of

the 14 procedure codes to the 51st and 70th percentiles of 2008 charge data
provided to him by M etLife,a comm ercialdental insurer. Crall on 11/17/2010

Final Tr. at 5119:24 - 5120:13, 5122:5-22; 5126:3-4. D r. Crall also obtained
charge data from the $$2008 N ationalD entalA dvisory Service C om prehensive Fee
Report''(theNDAS report),which usesa system likeM edicare'sRBRVS system

to make geographicaladjustments. 1d.at 5126:9 - 5127:20. Florida M edicaid
rates equal only 22% to 41% of the 50th percentile N D A S charges and 22% to
45% of the 51stpercentile of M etLife charges. 1d.at 5131:7 - 5132:20;PX 418
(Table5andpageE11oftheAppendix).
282.D r. Crall considered the dental service com ponent of the Consum er
Price lndex and detennined that since 2003, inflation w as about 40% , at a
com pound rate,id.at 5138:19 - 5139:15,and thatthe literature show sthat60-68%
ofdentaloffice revenues,exclusive ofany compensation to the dentists,are spent

on overhead. 1d.at 5139:17 - 5140:6.
283.D r.Crallexam ined notonly the 50th percentile ofdentists'charges,but
also 70t14-75th percentile ofdentists'chargesbecause ofthe use ofthatpercentile

as a benchm ark for M edicaid rates in Indiana,South Carolina,Corm ecticut,and
Tennessee and in connection w ith settlem ent of litigation. 1d. at 5140:15
5141:20; PX 418 at 11. A sizeable increase in dentists' participation follow ed

M edicaid dental rate increases to at least the 75th percentile of charges. 1d.at
153
5141:11 - 5144:19; PX 418 at 11. D r. Crall know s of no state w hich had an
increase of 58% or m ore in dental participation w ithout a contem poraneous

increase in M edicaid ratesto atleastm arketlevels. 1d.at5145:6-12.
284. D efendants criticize D r.Crall's use ofcharge data ratherthan paym ent
data. D r. Crall used charge data rather than paym ent data because reports,
including a G A O report,reflectthatdentists'collection rates are close to 95% . 1d.
at 5121:2-22; id. on 2/8/2011 R ough Tr. at 75:21 - 76:14. M oreover, m aking
comparisons using payment data from commercialinsurers (if it were readily

available)would beproblematic dueto variablessuch asco-paysand deductibles.
Crallon 2/8/2011 R ough Tr.at82:7-17.
285.M ichigan had a 300% increase in dentalparticipation w ithin a year in
the counties w here rates w ere increased. 1d.at 5147:1-7. In those counties,the
num ber of children receiving dental services increased about 32.3 % in the first
year.1d.at5148:23-25;Crallon 1/26/2012 Rough Tr.at 106-107.
286.D r.Crall also exam ined the effect of the rate increases from 1998 to
2003 in A labam a, D elaw are, Indiana, South C arolina, and Tennessee on the
num berofchildren reported asreceiving dentalcare in the respective states'CM S

416 reports. Crall on 11/17/2010 Final Tr.at 5147:12 - 5148:2; PX 418 at 11.
The num ber of M edicaid children receiving any dental service over the period
from 1998 to 2003 for these five states increased by 168% to 446% ,according to
the states' respective C M S 416 reports. C rall on 2/8/2011 Rough Tr.at 70-74.
Those results are illustrated by a chartin his report:
153
At
DE
1&
.
@C
TN
FY1998
FY2X 1 2001vs.1
F72* 3 29:3 v*.1998
CM S 416
CMS 416
CMS 416
CMS 416
CMS 416
I/ew ith
% w ith
% with
% w ith
% w itb
DontalViNlts Dfm talVllils DentAlVjsttl A ntalVl*R$ DpntalVlsits
41.659
105,522
253%
1$1.534
3O %
8.428
15.43
1:3*/.
18 269
21PA
47.73
16.$627
337%
212.* 9
446%
9.
9,599
148.i
88.523
141.140
92%
95%
24*,19.,
1...
249.252
2*%
168%
PX 418 at 12. (The tsrst,second,and fourth columns should read tdnumberwith
DentalVisits,''not$$% with DentalVisits.'').The2007 Connecticutsettlement1ed

to an increase to the 70th percentile ofdentists'charges,and thatin turn resulted in
a tripling of dentist participation in M edicaid and an increase of 38-45% in
utilization in the m ostrecent two year period. Crallon 11/17/2010 FinalTr.at

5140:15 - 5141:10,5150:12-24.
287.D r.Crallconcluded thatin orderto increase the num berofdentistsw ho

participate in the M edicaid program to an am ount com parable to the increases
achieved in these states, it w ould be necessary to increase the rates Florida

M edicaid pays dentists atleastto the 50th percentile ofdentists'chargesin Florida.
1tL at5149:15 - 5150:7. CM S has also used the 50th percentile as a benchm ark of
the adequacy ofdentalfees.PX 447 atCRALL00751.

288. M s. Sreckovich's contention that increases in dental rates do not
increase dentists'participation is belied by the num erous exam plesDr.Crallcited
in his initialreport. PX 418. Crallon 1/26/2012 Rough Tr.at 104. As Dr.Crall
opined, a significant increase w ould induce m ore dentists to participate in
M edicaid.
289. D entists cite as the prim ary reason for their not treating m ore
M edicaid patients that paym ent rates are too low .'' Crallon 2/7/20 11 Final Tr.at
5341:3-13;5380:15-16;PX 450 at Crall01638. D efendants argue that 1ow dental
provider participation is the result of other factors,such as high rates of m issed
l25
153
appointm ents and higher rates of dental disease. W hile this m ay be tnle,such
factors do not detractfrom plaintiffs'contention,rather they favor dentists being
given fnancialincentives to see M edicaid children. Crallon 2/8/201l Rough Tr.
at77-78.
290. D r. Crall also considered the num ber of dentists participating in
M edicaid. Crallon 2/8/2011Rough Tr.at81;PX 418 at8-9.H e concluded,based

on data from the CD C and from a State of Florida w ebsite,thatabout 1,000 active
M edicaid dentists w as insufficient to serve a M edicaid population of 1,600,000.
Crallon 11/17/2010 FinalTr.at5089:13 - 5099:18. ln a rebuttalreport,Dr.Crall

am plified his analysis,using the 700 M edicaid children peractive M edicaid dentist
benchm ark developed in the Tennessee M edicaid Litigation Settlem ent. Crallon
2/8/2011Rough Tr.at63;PX 439 atpp.7-8;Crallon 1/26/2012 Rough Tr.at188.
291.ln the vastmajority ofthecountiesofFlorida,thereare aconsiderable

num ber of dentists not actively participating in M edicaid. Even if only half the
dentists in each Florida county participated in M edicaid, there w ould be 35
counties,including those with the largestpopulation of M edicaid children,with
fewerthan 700 M edicaid children perparticipating dentist. PX 439 (Appendix A,

far right colum n show ing num ber of M edicaid kids per active dentist is less than
350).
292.Defendants suggested thatDr.Crallfailed to take into accountthat a
num ber of Florida counties are designated health shortage areas. But D r.Crall's
analysis is consistent w ith the FederalH ea1th Resources Services A dm inistration
I11RSAI,which considers as dentalshortage areas those areas where population

per dentist ratio exceeds 3,000 to
Crall on 2/7/2011 Final Tr. at 5348:21 -
5349:17. B ased on the data on I'IRSA 'S w ebsite,only 15 % ofFlorida'spopulation
livesin an area considered underserved. Crallon 2/7/2011FinalTr.at5349:10-22.
126
153
293.D efense counselalso suggested Dr.Crallshould have included adults

seeking dental care in his w orkforce analysis. Crall on 1/31/2012 R ough Tr.at
121-122. 1 agree w ith D r.Crallthat the appropriate com parison for a w orkforce
survey is betw een the access for children on M edicaid and the access for children
in general because he w as analyzing children's access to dental care. Crall on

2/8/2011 Rough Tr.at59.
294. Effective July 1, 2011, follow ing an appropriation by the Florida

Legislature, A H CA increased the rates paid by Florida's M edicaid Program for
dental services by 48% . D .E.962,p.2. D r.Crallprepared a supplem entalreport
dated M ay 24,2011,in w hich he assessed the im pact ofFlorida's 48% increase in
rates.PX 786,Crallon 1/26/2012 R ough Tr.at 87. D r.C rallconcluded thatthe
increase of48% stillleaves Florida dentalM edicaid rates severely below adequate
m arket-based rates,''and he continuesto believe these rates m ustbe increased. 1d.
at 88. D r.Crall took the increased rates and com pared them to tw o of the three
m easures w hich he used to evaluate the charges in his initialexpertreporti.e.,the
2008 N D A S com prehensive fee survey and the 2008 data he obtained from the
comm ercial dental plan. 1d. at 88. The follow ing chart shows that after
considering the 48% increase,Florida's dental reim bursem ent is still very 1ow as
compared to normaldentistry charges,even withoutaccounting for intlation since

2001.
127
153
Procedure
Code
0012
D0150
D0210
/0272
17033:
01120
(71203
(
71351
:2150
(72331
D2751
(72930
03220
D3310
07140
FL Medicaid
FL Medicald
Rates w/
Rato vs. FL Mediqald 48% Int v%.
2901ADA S Rates Based 2:0$ADA S
FLMedicald Attantk %- onProposed Atlantie%v
G tes
Iles
48% Ine
Iles
$15
5th
$22
33rd
S16
$32
$9
S3O
S14
<1st
<1st
<1st
1st
<1st
$24
$47
$13
$44
$21
5th
4tl1
2nd
4th
<1st
S11
S13
Sdl
S39
N/A
S68
4th
<1st
<1st
*1st
S16
$19
$61
$58
20th
3rd
4th
1st
2nd
3rd
1st
*1st
$101
$74
$219
$40
loth
18th
3rd
1st
$50
$148
S2'
/
D .E.964-6. Comparing Florida's increased rates to Southeast Atlantic Region

percentiles from the A m erican D ental Survey in 2001 show s a1l 14 of those new
Florida M edicaid enhanced rates fallbelow the 331-d percentile and l1 ofthe new
ratesare in the 10th percentile or low er. f#.at92-93. PX 786,ExhibitE.
295.From 2001 to 2010 the dentalcom ponent ofthe Consum erPrice lndex
increased 51% . f#. at 93. PX 786, par. 15. D r. Crall in his supplem ental
declaration concluded that:Sgiven the w oeful inadequacy of the current rates, a
48% increase in Florida's M edicaid dental reim bursem ent rates m ight slow the
exodus of providers from Florida's M edicaid program , but is not sufticient to
induce a significant num ber of providers to enter or re-enter the program ,or to
stim ulate current providers to substantially increase the num ber of children on
M edicaid thatthey are w illing to treat. As lpreviously indicated,doing so would

require raising reim bursem ent rates to a least the 50th percentile of dentists'
prevailing charges.''1d.at93. PX 786 par.16.
l28
153
296. ln his initial report, D r. Crall also analyzed capitation rates. H e
considered threeactuarialstudiesdone in 1998,1999,and 2004 ofperm em ber,per
month (PM PM )amountnecessary to coverdentalcare forchildren on M edicaid.

These studies,w hich on average are m ore than a decade old,found thatan increase
from about $17 to $26 PM PM was necessary. Crallon 11/17/2010 FinalTr.at

5133:7 - 5160:10,PX 418 at 6-8. By contrast,A H CA 'S 2009 contract w ith the
com pany thatacquired AD1called fora PM PM am ountbetw een $5.53 and $7.86,
depending on age and status. D X 355 at 88. Even w ith the 48% dental fee
increase, M CNA 'S blended capitation rate was $11.88, Brown-W oofter on
11/10/2011 Rough Tr. at 66-67, still far below the am ount necessary to provide
adequate dental care for children on M edicaid. These three studies cited by D r.
Crallare the only such studies in the record.
297. M s. Sreckovich has not done any analysis on the effect of the 48%
increase in dental rates. Sreckovieh on 1/17/2012 R ough Tr. at 45-46. M s.

Sreckovich's analysis of w hether Florida's M edicaid rates m ay be sufticient to
cover the variable costs oftreating a M edicaid patient is unpersuasive because she
did not address the dentists' opportunity cost or consider whether actual rates
above variable costs but below average costs w ould m otivate dentists to see
M edicaid patients. Crallon 2/7/2011 FinalTr.at 5334:19 - 5337:6;5342:4-6. ln
heranalysisofthe Florida dentalrates,M s.Sreckovich reached no conclusion asto

w hether the rates paid to dentists by the Florida M edicaid program w ere adequate
to ensure children had accessto care. Sreckovich on 1/17/2012 Rough Tr.at3334.
298.The Florida Legislature authorized A H CA to expand M edicaid prepaid

dental plans statew ide. Brow n-W oofter on 10/25/2011 Rough Tr.at 50-52. The
prepaid dentalplans w illbe required to passalong to providersthe 48% increase in
dentalfees. Brow n-W oofteron 11/8/2011 Rough Tr.at 126-127. M s.Sreckovich
153
know s ofno evidence and offered no opinion regarding the likely effects ofthe
prepaid dentalplan,which Florida is putting into effectin 2012. Sreckovich on
1/17/2012 Rough Tr. at 48. D efendants did not subm it any evidence by M s.
Sreckovich or otherw ise that the 48% increase in dental rates or the statew ide
prepaid dentalplan willbe sufficient(a)to raiseFlorida'sM edicaiddentalratesto

privatemarketrates;(b)induce substantialadditionalnumbersofFlorida dentists
to offerservicesto children enrolled in M edicaid;or(c)increasethepercentageof
children enrolled in M edicaid to the 30% level, w hich C M S has considered a
m inim um threshold for com pliance. See PX 447 at3. D efendants did notcallany
dentists to testify.
299.A fter review ing the evidence and w eighing the expertopinions,1 find
that until the recent 48% increase, Florida's M edicaid reim bursem ent rate w as
am ong the low est in the nation, and not surprisingly, Florida's M edicaid dental
utilization rate w as also am ong the very low estifnotthe low estin the country.
300.I find that w hile a num ber of different factors affect dentists'decision
as to w hether to participate in M edicaid,the adequacy of reim bursem entrates is
the m ostim portant ofthose factors. A significant increase in rates w illresultin a
signifcant increase in provider participation, w hich, in turn, w ill lead to a
substantialim provem entin children'saccessto care.
301.D efendants have offered no evidence to contestD r.Crall's opinion that

even w ith a 48% increase Florida's M edicaid reim bursem ent rates are inadequate.
I find D r.Crall's opinion credible,especially given the lack of any contradictory
evidence.
L. Provider Enrollm ent
302. W hile benefciaries and not providers hold the rights provided by
federal law , any analysis of benefciaries' ability to access care m ust take into
130
153
accountthe relationship betw een providerreim bursem entrates and participation by

providers in the program .
303. Subsection
(a)(30)(A) itself retlects an understanding that
reim bursem ent is directly related to access to m edical care by directing thatrates
be set so as to ensure equal access to care for M edicaid children- a statutory

provision w hich w ould m ake no sense in the absence of a relationship betw een the
tw o.
304. Plaintiffs' expert, Dr. Flint, opined that tthe fundam ental issue that
drives participation, that determ ines physician's decisions to participate in the

program , or to lim it their participation is the rate of reim bursem ent.'' Flint on
8/3/2010 Final Tr. at 2949:21 - 2950:5. D r. Flint testified that 27 of 30 peerreview ed studiesthathe review ed supported thisview . 1d. This academ ic research
cam e from different parts of the country, using different research m ethods,
different tim e fram es, and different populations. 1d. at 2951:5-7. W hile this
academ ic research did notdeny the presence of other factors,in D r.Flint's view ,
the professional literature suppol'ts his opinion that doctors w ill put up'' w ith
adm inistrative hassles,patient difficulties,and other concerns if they are paid a

satisfactory fee. 1d.at2951:2-4.
305.Both sides spentconsiderable tim e attrialreviewing specific studiesin

this academ ic literature. D efendants quote passages from som e studies,w hich they
claim casts doubt on the strength or the universality of the causal relationship
betw een fee levels and provider participation. The consensus of academ ic
literature,how ever,reflects a causalrelationship betw een reim bursem entrates and
physician participation. See e.g.,PX 498.
,PX 501.
,PX 504;PX 505;PX 512,
.PX
513; PX 524. M s. Sreckovich adm itted that she had identified no professional
literature thatD r.Flinthad noteonsidered.Sreckovich on 1/10/2012 R ough Tr.at
116. Reliance on peer-review ed studies,especially from m ultiple sources, is the
153
gold standard and far m ore reliable than non-peerreviewed work comm issioned
forlitigation.
306.Both sidestreated the work by PeterCunningham asauthoritative. M r.

Cunningham reported that 84% of physicians surveyed identified low M edicaid
reim bursem ent as a m oderate or very im portant reason for not accepting new
M edicaid patients. PX 512 at Flint 01123,Flint 8/3/2010 Final Tr. at 2960:4 -
2961:2. M r.Cunningham also conducted a regression analysisthatshowed that

higher M edicaid fees relative to M edicare w ere associated w ith a higher
probability of accepting new M edicaid patients.''PX 513 at Flint 00152*

,Flint at
2961:16-25. A third study by M r. Cunningham considered com m unity norm s,
professional attitudes, and other factors,nonetheless identified physician fees as
the sdriving force''in physician decision-m aking. PX 514;Flinton 8/3/2010 Final
Tr.at2963:3-21,3514:11- 3515:23. M r.Cunningham studied a projected 20%

increase in M edicaid reim bursem entrelative to M edicare. H e found a signifcant
relationship am ong all com m unities studied,one of w hich w as M iam i,w here he
projected an increase of11.8 % in providerparticipation. PX 514 atFlint00155

Flint; Flint on 1/24/2012 R ough Tr. at 173. The Cunningham study of 12,000
physicians and 60 com m unities also show ed thathigher reim bursem entrates w ere
associated w ith a statistically significantreduction in unm et m edicalneeds of the

M edicaid population,increased satisfaction w ith choice of specialists,and reduced
use ofem ergency care. PX 5 13,
.Flinton 1/24/12 R ough Tr.at 174-75.
307.These resultsare consistentwith the surveysand em piricaldatathatDr.

Flint relied upon. A survey of Florida physicians w ho w ere m em bers of the
A m erican A cadem y of Pediatrics reported a significant num ber of physicians
w ould increase their w illingness to take M edicaid patients w ith higher
reim bursem ents. PX 535. W hile this sunrey is m ethodologically lim ited by a
sm all sam ple, it is consistent w ith the other evidence presented. The m ore
153
providerswho participate in M edicaid,the m ore accesschildren on M edicaid will

have to care. Flint on 8/4/2010 Final Tr. at 3348:17 - 3350:13; Crall on
11/17/2010 FinalTr.at5106:23 - 5107:15.
308. The relationship between fees and provider participation is also

illustrated by D efendants'2009 survey ofFlorida'sphysicians. According to that
survey,46% ofFlorida physicians w ere accepting no new M edicaid patients,w hile
only 22% w ere accepting no new M edicare patients.PX 742 at 62,66. M edicaid
pays significantly m ore than M edicaid.

309. In Polk County, Florida, physician reim bursem ent for treating
uninsured patients w as increased to M edicare levels during FY 2007-2008. The
resultw as a substantialincrease in access to care. Flinton 1/24/2012 R ough Tr.at
182-184. W hile this occurred among a population ofuninsured individuals,the

exam ple rem ains relevantfor ourpum oses. Flint,R ough Tr.1/3012 at 113-114.
310. Even M s. Sreckovich did not opine that there w as no relationship
betw een rates and provider participation. Instead,she pointed to other factors-
including physician attitudestoward M edicaid patientsand adm inistrative issuesas underm ining thatrelationship. Sreckovich on 1/6/2012 Rough Tr.at83-84. M s.
Sreckovich,how ever,could notdeny- indeed,she adm itted- thatfor a significant
num ber ofphysicians,those obstacles can be overcome by higherreimbursement

levels. Sreckovich on 1/9/2012 R ough Tr.at l19-120.
311.These studies are confirm ed by AH CA 'S LBR S,w hich soughtincreased
reimbursem ent for physicians and dentists. The LBRS relied upon the causal
relationship betw een increased reim bursem ent rates and increased provider
participation on the one hand,and increased providerparticipation and increased
access on the otherhand. See PX 92 (tlncreasing the Child Health Check-up

reimbursement rate will increase access to services''); PX 93 (same);PX 94
(same). AHCA repeatedly observed that when reimbursem ent rates for child
153
health check-ups doubled in 1995,the participation rate doubled as w ell. See PX

734;PX 92;PX 93;PX 94;PX 95', PX 96;PX 702.
PX 703.34
,
3 12.ln addition,A H C A ,in m ultiple LBR S over severalyears,proposed a
fee increase for certain specialists as a solution for a tspecialty provider shortage''
and the tcritical access to care problem .''
The LBR S recognize the obvious
existence ofa relationship am ong reim bursem entrates,physician participation,and
M edicaid participantaccess.
313.Federal CM S also recognized the relationship betw een reim bursem ent
rates, provider participation, and access. It declared in a D ear State M edical

D irector letter: dlsack of access due to 1ow rates is not consistent w ith m aking
services available to the M edicaid population to the sam e extent as they are
available to the general population,and w ould be an unreasonable restriction on
the availability ofm edicalassistance.'' PX 447 atCrall00751.
M . M anaged C are
A s of O ctober of 2009, m ore than 1.5 m illion children w ere on
M edicaid in Florida. A pproxim ately 650,000 w ere assigned to an 1-1M 0 in a non-
R eform County, and approxim ately 120,000 w ere assigned to an 14M 0 in a

R eform county. D X 262a.
A H CA rem ains ultim ately responsible as the designated agency that

adm inisters Florida's M edicaid program , regardless of w hether it chooses to
provide care for children on M edicaid through a fee-for-service arrangem ent or
through a M edicaid H M O .
34 Attrial5defendants soughtto question this relationship, even though it was repeatedly
submitted to the legislature and acknowledged ascorrectunderoath in depositions. Defendants
claim there w as a certain tim e lag before the higher rates had the observed effect. Such a tim e
1ag betw een raising rates and an effect on participation and rate of check-ups is not surprising.
D efendants also claim that certain other steps m ay have contributed to increased participation
rates,butno onesuggeststhoseotherfactors,such aseducationalefforts,weretheprincipalcase.
See PX 524;Flinton 1/24/2012 Rough Tr.at 186-93,GA O Reportciting increase as exam ple of
effectofincreased reim bursem entrates.
153
315.A H CA pays 14M o s on a capitated basis and determ ines how m uch to
pay M edicaid I4M oson an annualbasis. The am ountofAHCA 'S M edicaid 14M 0
paym ents is driven in substantialpartby the am ountpaid to providers on a fee-forservice basis through the M edipass system and historical rates of utilization.
W illiam s on 10/12/2011 Rough Tr. at 101-03; Brown-W oofter on 11/8/2011

Rough Tr.at 124-26;id.at 11/9/2011 at25. A H CA discounts aggregate paym ents
to I'IM o s to account for the 1-1M o s' presum ed efficiencies.3s w illiam s on
10/17/2011 Rough Tr.at 171-73.
316.Florida is one of the low est paying states in term s of its m anaged care
com pensation. 1d.at2999:20 - 3000:4.
ln 2005, A H CA obtained federal and state approval for a M edicaid
Reform pilot project. Brown-W oofter on 10/20/2011 Rough Tr. at 96-98.

M edicaid R eform w as instituted in July of 2006 in Brow ard and D uval Counties
and expanded in 2007 to B aker,Clay,and N assau Counties. 1d.at97. M edicaid
Reform allow s A H CA to use m anaged care alm ost exclusively for services
provided to M edicaid recipients. Brow n-W oofter on 10/18/2011 R ough Tr.at9.

3 18.The M edicaid Reform pilotw as required to be budgetneutral,m eaning
that itw ould notcostm ore to operate w ith the w aiver than itw ould have w ithout.
Brow n-W oofter on 10/18/2011 R ough Tr.at9-10.
319. Florida's O ffice of Program Policy A nalysis & G overnm ental
Accountability (SOPPAGA'')in Juneof2009reported ontheprogressofM edicaid

Reform through D ecem berof2008 and found the data did notshow thatM edicaid
R eform had im proved access,quality ofcare,or saved the state m oney. PX 683:1.
O PPA G A recom m ended the legislature not expand M edicaid Refonn until m ore
data w as available to evaluate claim s of its success. 1d. Thatw as the m ostrecent
35Typically the discounthas been about8 percent. W illiam son 10/7/2008 D epo.Desig.
at59:13 - 61:17.
135
153
OPPA GA reportconcerning M edicaid Reform . Copa on 4/5/2011 Rough Tr.at

127-29. ln Septem ber of 2007,AH CA 'S O ffice of the lnspector G eneralm ade a
sim ilar recom m endation,after form er Secretary ofAH CA Dr. Agw unobicalled
for an iindependent,objective and thorough analysis''to delay the expansion of

M edicaid Reform . AH CA adopted that recomm endation.A gm m obi 2/13/2009
D epo.D esig.at 183:7 - 187:1.
320.The three largestM edicaid l-1M O 's operating through M edicaid Reform
in Brow ard County in 2008 had approxim ately 50% ofthe M edicaid enrollm ent in
that county. Buttw o years later,none ofthe three plans rem ained in operation in
the county. 1d.at 182-85.
321.A H CA 'S application to extend the w aiver for M edicaid Reform w ithin
the five counties in which it is currently operating was granted for three years.
Sreckovich on 1/18/2012 R ough Tr.at 51-52. B utFlorida's application to expand
M edicaid Reform statew ide has not at the present tim e been approved by the
federalgovernm ent. Copa on 4/5/201l R ough Tr.at 128.
322. Children enrolled in M edicaid HM O s suffer from the sam e lack of
access to care as children in M edipassor fee forservice M edicaid. As discussed

above,LIED IS reports show that children in both reform and non-reform counties
on m anaged care do not receive adequate preventative health care. PX 6894 PX
733;D X 361;D X 334.
323.Som e m edicalprovidersdo notacceptM edicaid 14510 patients. lsaac
on 8/11/2010 FinalTr.at3856:4-12;Ayala on 8/9/2010 FinalTr.at 3570:2-17;

Fenichelon 10/18/2011 FinalTr.at4301:22 - 4302:1. O thers lim itw hich l'IM o s
they w ill accept. Postm a on 8/4/2010 Final Tr. at 3149:1-3; St. Petery on
11/11/2008 Depo.Desig.at 176:8-23;Donaldson on 10/15/2008 D epo.D esig.at

78:18 - 80:18;206:21-25.
l36
153
324.A H CA 'S m onitoring process of 1-IM o s fails to show that children are
receiving the care to which they are entitled under federal law for three
fundam ental reasons. First, though there is extensive testim ony regarding the
m onitoring process in the record, there is very little in the record about the
substantive results of that m onitoring,and nothing to indicate that children are

receiving tim ely or adequate care. Flinton 1/24/2012 R ough Tr.at153.
325.Second,m ost of the m onitoring focuses on process,and even if the

m onitoring results w ere in the record, they w ould not dem onstrate the children
w ere getting the requisite care. For instance,the fact that an 14M 0 has no m ore
than 1,500 children per PC P,or has a num ber of specialists on its paneldoes not
dem onstrate thatthe doctorsw illsee the children atall,1etalone prom ptly.
326. Third, there is virtually no evidence and certainly no system atic
evidence in the record that any M C O s w ere hitw ith a substantialfine,or expelled
from the M edicaid program for failure to provide care to children on M edicaid or
m eetany contractualrequirem ents relating to the provision of care. Thus,there is
virtually no evidence thatA H CA has used its pow er to sanction 14M o s to ensure
children receive adequateand promptcare.

327.M s.Brow n-W oofter,A cting A ssistant D eputy Secretary for M edicaid
operations,did notknow whetherAH CA had everissued any nancialsanctionsto
a M edicaid 14M 0 for having a low percentage of enrollees w ho received a blood
lead screening exam . B row n-W oofteron 10/18/2011 R ough Tr.at l16-18;B row n-
W oofter on 11/8/2011 Rough Tr.at 131-32. W hile she testified thatAHCA had
issued some finesagainstI-1M os forfailing to m eeta state requirem entfora 60 %
screening ratio forchildren continuously enrolled in the 14M 0 forsix m onths,she
had no infonuation regarding the am ounts ofthe fines. 1d.at118. AHCA did not
issue any fnes against1-1M os for low child health check-up screening ratesuntil
2008,years after this action began. Brow n-W oofter on 10/18/2011 Rough Tr.at
153
131-32. M s.Brown-W ooftertestified thata financialsanction w as levied against

Universalin 2011,butwas not even sure why the sanction w as levied. BrownW oofter on 10/20/2011 R ough Tr.at60.
328. M s.B row n-W oofter offered a lay opinion that children in M edicaid
l-IM os do not have trouble accessing prim ary or specialty care, and that any
trouble w ith specialty care is lim ited to a few individuals. Brow n-W oofter on
10/19/2011 R ough Tr. at 38-40, 74-77. l find her unsupported conclusions

unpersuasive. H er opinions also contlictw ith earlier testim ony that she gave as a
30(b)(6)witnessattheend ofthediscovery period,and,in rendering heropinion,

she did not consider num erous A H CA docum ents regarding shortages of
providers.36 See Brow n-W oofter on 10/25/2011 R ough Tr. at 88-97,95-97, 100,
103-07,109-22,126-38;PX 205;PX 188;PX 186;PX 90;PX 101;PX 199.
N . O utreach and M edicaid A pplication Process
329. U ndisputed evidence at trial established that an estim ated 268,000
Florida children are eligible for but not enrolled in the M edicaid program . 2009
Florida K idcare C oordinating C ouncil Report. PX 682 at 2. Tw enty percent of
Florida children are uninsured,compared to a nationalaverageof10% .Id.

330.B etw een 2004 and 2006,Florida m oved to a largely online system of
applications, elim inating m ost of the offce locations at w hich individuals can
apply in person for M edicaid coverage. PX 238. Fifty-seven percent of D CF
services centers w ere elim inated betw een 2004 and 2006. N ieves on 5/17/2010
FinalTr.at 2098:20 - 2099:1. These changes,accom panied by cuts in personnel,
36 w hile her deposition testim ony focused on the fee-for-service com ponentofM edicaid
not the HM O com ponent, there is overlap betw een the providers enrolled in fee-for-service
M edicaid and M edicaid H M O s,testim ony of Brown-W oofter on 10/25/2011 Rough Tr.at 100,
and no testim ony as to w hy M edicaid HM Os,whose per capita com pensation rate is driven by
the fee-for-service rates,w ould be able to provide bettercare than the M edipassprogram .
138
153
were enacted not because they were viewed as improvem ents but rather due to
budgetcuts. Lew is on 10/20/2010 FinalTr.at4602:25 - 4603:14.
ln 2007, an analysis by A H CA of the revised application system
reported:(a)thattheonline system willtimeoutin 20 minutesleadingto 350 lost

sessionseach day;(b)25% ofapplicantsare unableto complete theirapplication
on theirfirstattempt;(c)soften,fornumerousreasons,applicantsareunawarethat
they have not subm itted the required additional infonuation and their case is
closedi''and (d) that 17 to 20% ofthe applicantpopulation due to language

baniers and other factors- cannotsuccessfully com plete one or a1lof the steps in
the new A CC ESS M edicaid eligibility process. PX 238; N ieves on 5/17/2010

FinalTr.at2106:9 - 2111:20.
332.If assistance is required,it is difficult to obtain. The Tam pa regional

center reported 40% of incom ing calls abandoned or receiving busy signals in
2007. Tw o other regional centers reported: 20% in M iam i and 19%
Jacksonville. PX 238at3. Atthetimeofthetrial,M r.Lewis,DCF bureau chietl

testified thathe believed that40% ofthe incom ing callsto the Tam pa regionalcall
centerwere stilleitherabandoned orreceiving busy signals.Lew ison 10/20/2010

FinalTr.at4638:3 - 4634:8.
333.ln addition,D CF data indicated thatbetw een June 1,2004 and M arch 1,
2005,applications w ere consistently processed above the designated tim e standard.
PX 238 at7.
334.The A ccess M edicaid application has purportedly been sim plified,but

itrem ainsa form idable challenge to com plete. The application,reprinted as partof
the application guide (DX 160), runs in excess of 50 pages of screens that
M edicaid applicants m ust navigate. N ieves on 5/17/2010 Final Tr. at 2105:2 -
2106:4. Because it is a com bined application in which fam ilies m ay apply for
m ultiple cash and in-kind assistance program s,there are lengthy sections requiring
139
153
answers on assets and expenses not needed for the determ ination of a child's
M edicaid eligibility. Complex term s,for example,are found in questions asking
about liquid assets''and ilife estates.'' An applicant must gather a significant
am ountofrecordsto com plete the application. And,by virtue ofbeing an online
application,basic com puterliteracy isrequired
335.By eontrast,theFloridaKidcareapplication (DX 181)istwo-pagesfor

children seeking M edicaid or SCH IP assistance. The K idcare application,
how ever,provides sufficient inform ation for D CF to m ake a M edicaid eligibility
determination. Lew ison 11/29/2011 Rough Tr.at31. Although AHCA added an

online link to the K idcare application during the course ofthe trial in this action,
the K idcare application is an alternative to the prim ary A CCE SS application
w hich individuals m ust first find online- a feat that even M s. Sreckovich,
defendants' expert w itness, had difficulty accom plishing unassisted by counsel.
Sreckovich on 1/l7/2012 R ough Tr.at 4-l8. A pplicants m ust then indicate that
they w ant to apply solely for their children's M edicaid eligibility and no other
potentialprogram s. 1d.
336.N o reason w as offered into evidence as to why the simple Kidcare

application could not serve as the default application for children seeking
M edicaid. St.Petery on 2/2/2012 R ough Tr.at86-87.
337.Even though D CF'S online application is the prim ary vehicle by w hich
applicants are encouraged to apply for M edicaid,D CF does not attem ptto identify
individuals who start the online application and do not complete it, collect
dem ographic inform ation on them , or determ ine why they fail to complete the
application. Poirier 10/5/2011 Rough Tr.at3-7,6-7 33. D CF doesnotknow how
m any people startbutfailto finish the application.1d.at 12.
338.ln addition to the com plex application and the difficulties in obtaining
help to com plete the application, Florida has elim inated its prim ary outreach
l40
153
program for M edicaid. U ntil 2003, Florida dhad an aw ard-w inning outreach
program ''recognized by federalCM S as a m odelfor other states. PX 700 atD O H
10000478. Before funding wasterminated in 2003,approxim ately $4 m illion was

spent on outreach program s annually, m ore than half of w hich cam e from the
federalgovernm ent. f#. The outreach program included: statew ide m ulti-m edia
cam paigns in English, Spanish, and Creole on television, radio, bus cards, and
billboards;free distribution ofapplicationsand prom otionalbrochures,posters,and
booklets; 17 regional outreach program s responsible for recruiting and training
com m unity partners; data driven m arket research, county level enrollm ent data
reporting, and tracking; assistance for fam ilies w ith enrollm ent and coverage
issues;and statewide training and technicalassistance.1d atD OH 10000478-479;

St.Petery on 12/10/2009 FinalTr.at 526:3 - 531:9. Since 2003,direct outreach
funding has been lim ited to a one-tim e non-recurring $1 m illion authorization in

2006. PX 700 at D O H 10000479. A s A H CA acknow ledged in its 2007-2008
budgetrequest,this leveloffunding w illprobably notprovide the am ountneeded
m ake an im pact on signifcantly decreasing the rate of uninsurance for
childrenl,q''even ifitwererecurring.PX 711atAHCA 01095027.

339.W hile a variety of outreach efforts continue to exist,A H CA does not
assess the effectiveness of its w ritten m aterials. B oone on 10/21/2008 D epo.
D esig.at58:21-60:2 A nd there has been no show ing that these ad hoc efforts are
an adequate substitute for the organized statew ide program that existed before
funding w asterm inated. There are atleastfourstrong indicationsthatthey are not.

340.First,the difference betw een the outreach conducted before the budget
cuts and that perform ed now is stark. Statew ide m ulti-m edia cam paigns in
English,Spanish,and Creole including public service announcements (PSAS)on

television and radio,as w ellas bus cards and billboards w ere elim inated. PX 700
at D O H 10000478-479. A nne B oone, who w as A H CA 'S child health check-up
153
coordinator when she was deposed in 2008,w as not aware of any PSA airing
recently anyw here in the state on either radio or television. B oone on 10/21/2008
Depo.D esig.at65:3-67:8. Rather,allshe knew concem ing whetherany PSA Shad

been aired in the lastseveralyears on radio or television is thata single PSA about
blood lead poisoning ddm ighthave been on a radio station.'' 1d. Thathypothetical
PSA is the only one in existence in the volum inous record in this action. D X 492.
Rather than airing on the radio or television, A H CA 'S PSA S are show n on
television sets at booths at health fairs. B oone on 8/28/2008 D epo. D esig. at

163:14-164:1;B oone on 10/21/2008 D epo.D esig.at 309:21-310:6,311:18-312:2.
Sim ilarly,M s. Boone knew of only one instance in recent years in w hich there
w ere child health bus billboards,and even then,the billboards only appeared on
busses in one city. B oone on 10/21/2008 D epo.D esig.at67:9-20.
341.Second,the K idc are C oordinating Council,w hich has representatives

draw n from a variety of govem m ental and private organizations interested in
m edicalcare for children,stated as follow s:
Unless fam ilieslearn aboutFlorida K idcare,how to apply and where

to seek assistance if they need it,the program w illnotfully reach the
population it is intended to serve. Florida Kidcare enrollment
significantly declined in 2004 ...Enrollm entstarted to increase again
in 2007 as a result of increased emphasis on outreach. However,
except for a non-recun-ing $1 m illion appropriation to Healthy Kids

for com m unity based outreach and m arketing m atching grants in
FiscalY ear 2007-08,other activities w ere undertaken w ithin existing
resources and w ith non-recurring funds, m aking a large scale and
ongoing initiative unsustainable w ithoutadditionalresources.
PX 682 at25.The K idcare C oordinating Councilrecom m ended by a vote of 22 to
zero that outreach funding for program s for unenrolled children be restored. PX
682 at20. The Councilhasbeen m aking thisrecom m endation foryears. See PX
142
153
349 atDOH 00078171;PX 350 at19-20;PX 682 at2;PX 697 at16;PX 699 at18;
PX 700 atD O H 10000478.
342.Third,AH CA has also urged thatoutreach funding be restored in its

LB RS. PX 711.
343.Fourth,the existence of over a quarter m illion children eligible for

M edicaid but not enrolled as of 2008 is com pelling evidence that additional
outreach program s are required. Indeed,an AHCA staff analysis indicated that
approxim ately 75% of children from fam ilies w ith incom es under 200% of the
federal poverty level w ere ideal candidates for outreach efforts to increase
enrollm entin existing program s. PX 240.
344. O ne exam ple of A H C A 'S inadequate com m itm ent to outreach is its
dentalrem inder letter. A H CA used to send letters rem inding parents w ho had not
taken their M edicaid child to a dentist for som e tim e to do so. A H CA stopped
doing thisin 2000. Boone on 2/24/2012 D epo.D esignation at31:10-19,PX 441 at
6. AH CA discontinued sending the lettersbecause so few dentistsparticipated in

the program that itw as hard forparents to find a dentist close to w here they lived.
Parents becam e upset when they could not find a dentist willing to see their
children. B oone on 8/28/2008 D epo.D esig.at33:3-12. A H CA even told federal
CM S that ithad not actively m arketed its dentalprogram to recipients for four to
five years because of the few num bers ofdentists participating in M edicaid and
because itw as often difficultforthose seeking treatm entto find a provider nearby.
Sharpe on 2/8/2011 Rough Tr.at 184.
345.M s.B oone adm itted thatthe letters did help increase utilization. Boone
on 8/28/2008 D epo.D esignation at 32: 14-19. But for years,A H CA did notsend
outdentalrem inderletters,despite the dentalprogram 's extrem ely low utilization

rate,an intentionalreduction ofoutreach efforts.
143
153
346.ln February of2008,federalCM S conducted an on-site visitin Florida

as partof its decision to review states w ith dentalutilization rates at or less than
30% on the CM S 416 reportforthe FY 2006. PX 440 at3. ln its reportfrom that
visit, federal CM S noted that Florida had sent reminder letters until 2000 and
recom m ended that Florida again send dental rem inder letters to tparents of
beneficiaries w ho have not received periodic dental services.'' PX 441 at 6-7.
A H C A stated in its response that M edicaid's new fiscal agent began on July 1,
2008,and in Ssthe very nearfuture''ittsw illw ork w ith the new fiscalagent''to send
outdentalrem inderletters.1d.at7.
347. Several years later, how ever, w hen M s. K idder testified on M ay 31,
2011, she acknow ledged that AH CA had still not begun sending out dental
rem inder letters. K idder on 5/31/2011 R ough Tr.at 107-108. She said the letters
w ould likely go out soon.
M s. Cerasoli, w ho had testifed as A H CA 'S
designated agency representative on dental issues at deposition,testified that the

dental letters w ere not sent because the agency did not view this as a priority.
Cerasolion 8/11/20 10 FinalTr.at3980:12 - 3981:1.

348.W hen A H CA analyzed its claim s data in M ay of2011 to see how m any
children enrolled in M edicaid had notreceived any dentalservices,they found that
834,651 children had notreceived dentalservices in the lastsix m onths. PX 790.

That fgure did not include children enrolled in AD I,Reform 1-1M Os,and nonreform I-1M o s offering dentalservices.
349.G iven defendants'lim ited outreach,it is,perhaps,not surprising that

A .D .did not know until she becam e a next friend in this action that her son w as
entitled to dentalcare through M edicaid. See supra at! 30. And S.B.did not
know that she was entitled to free transportation to doctor's appointm ents and
laboratoryvisits.Seesupra at! 11.
153
V Il.C O N C LU SIO N S O F LA W
1 conclude that Florida's M edicaid program has not com pensated prim ary
physicians or specialists at a com petitive rate as com pared with either that of
M edicare orprivate insurance payors.
further conclude that Florida's stnlcture for setting physician
reim bursem ent fails to account for statutorily m andated factors in the M edicaid
A ct, including the level of com pensation needed to assure an adequate supply of
physicians so as to discharge the m andate to provide EPSD T servicesor setratesat
a levelthat w illprom ote quality of care or equalaccess to care as required under
42 U.S.C.j 1396a(a)(30)(A). Exceptforcertain codes held outside the normal

budgetary process,Florida'sconversion ratio and budget-neutrality m andates result
in artiticially set rates for m any services w ithout any consideration of physician
incurred costs or w hat is needed for com petitive rates thatare sufficient to attract
m edicalproviders.
A system w hich m andatesbudgetneutrality asthe determ ining factorin ratesetting, w ithout consideration of the factors required by federal law , does not
satisfy the EqualAccessrequirementof j l396a(a)(30)(A).Codes setby statute

outside the nonnalbudgetary process are also notevaluated to ensure thatthe rates
are sufficient to attract prim ary and specialist physicians to treat M edicaid
children.
There also is no process to adjustthose rates for increases in the costof

living.W hile the m edicalcostofliving index has increased overthe pastdecade,
there has been no com m ensurate increase in M edicaid reim bursem ent, and
accordingly, the gap betw een M edicaid reim bursem ent and M edicare
reim bursem enthasw idened form ostcodes and w illcontinue to do so.
V iolations of continuous eligibility deprive children w ho are im properly
term inated from M edicaid oftheirrights to EPSD T care and any needed follow -up
153
care under j 1396a(a)(10) and jj 1396a(a)(43)(B) and (C) and their rights to
m edical care under the R easonable Prom ptness and Equal A ccess provisions of
Title X IX .
The im proper sw itching of children from one provider to another w ithout

their parents' know ledge or consent deprives children of their rights to EPSD T
care and any needed follow-up care underj1396a(a)(10)and jj 1396a(a)(43)(B)

and (C) and theirrights to medicalcare under the Reasonable Promptness and
EqualA ccessprovisions ofTitle X IX .
The failure of A H CA or D CF to prom ptly m ake the M edicaid eligibility of
presumptively eligible newborns (i.e. ltbabies of'') operatively deprives those

babies of their rights to EPSD T care and any needed follow -up care under
j1396a(a)(10) and jj 1396a(a)(43)(B) and (C) and their rights to medicalcare

underthe R easonable Prom ptnessand EqualaccessprovisionsofTitle X IX .
D efendantsresponsible for Florida's M edicaid program have failed to assure

thatplaintiff class received the preventative health care required underthe EPSD T
R equirem ents. I conclude,sim ilar to other courts facing such evidence,see H ea1th
CareforAI1,lnc.v.Romney,No.Civ.A.00-10833RW Z,2005 W L 1660677,*1011(D.M ass.July 14,2005)(finding violation ofEPSDT requirementsasto dental

carel; M emisovski ex.rel.M emisovski M aram,No.92 C 1982,2004 W L
1878332, at *50-56 (N.D. 111. Aug. 23, 2004) (finding violation of EPSDT
provisions),thattheEPSDT Requirementsthatchildren receivesuch carehavenot
been m et w hen,as show n above,approxim ately one-third of Florida children on
M edicaid are not receiving the preventative m edical care they are supposed to
receive. This is true both for children on fee-for-service as w ell as in m anaged
care, w here screening rates are potentially low er. In addition, an unacceptable
percentage ofinfants do notreceive a single w ell-child visitin the first 18 m onths
oftheir lives.
146
153
Because one-third of the enrolled children are not receiving any of their
expected preventative care each year,I also conclude thatthey have not received
care in accordance w ith the Reasonable Promptness requirem ents ofthe M edicaid
Act. See OAWWP v.Fogarty,366 F.Supp.zd 1050, 1109 (N .D.Okla.2005)

(fnding violation ofreasonable promptnessprovision asto medicalcare);Hea1th
Care ForAll,Inc.,2005 W L 1660677,at*10-11(finding violation ofreasonable
promptnessprovision asto dentalcare);Clark v.Kizer,758 F.Supp.572,575-79
(E.D.Cal.1990)(fndingviolation ofreasonablepromptnessprovision astodental
care),aff'd inrelevantpartsub.nom.Clarkv.Coyle,967F.2d585(9th Cir.1992).
Ialsoconcludethattherewasaviolation ofSection 30(a),becauseM edicaid
children lack equalaccess to prim ary care.
I also conclude that m any pediatricians and fam ily practitioners refuse to
take any new M edicaid patients and otherpediatricians sharply lim itthe num ber of
new M edicaid patientsthey w illaccept.

l also conclude thatthe percentage of children in Florida w ho receive blood
lead screenings is extrem ely low ,notw ithstanding the factthatpartofFlorida has
an aging housing stock,w hich m eans children are m ore likely exposed to leadbased paint.
l agree w ith A H CA 'S statem ents in repeated LBR S that if A H C A increased

the M edicaid reim bursem ent rates for w ell-child check-ups,m ore children w ould
receive w ell-child check-ups.I conclude that the testim ony of these pediatricians
and specialists is credible, They are testifying based on their own personal
experience and actions. D efendants did not call a single prim ary physician or
specialistto counter this testim ony. The testim ony ofplaintiffs'm edicalw itnesses
is consistent w ith the survey evidence and A H CA 'S adm issions that there is a
serious problem faced by M edicaid children in receiving prom pt and equalaccess

to m edicalspecialists.
153
I conclude that children on M edicaid have not been provided the EPSDT
guarantee of access to care for treatm ent of conditions identifed based on the
A H CA surveys show ing serious shortages ofspecialistcare forM edicaid,A H CA 'S
adm issions,the LBR S,and the testim ony ofa num ber ofm edicaldoctorspracticing
throughout the state. Children on M edicaid have to travel to other areas of the
state and/or w ait for several m onths to obtain care. W hile there are certain
specialists and certain locations w here issues of access- and reasonably prom pt
access- m ay not be a problem ,the evidence presented leads m e to find that the
issue extends throughoutthe state and across m any specialty types. M oreover,the
evidence retlects that w hile a particular specialty problem in a given area m ay
im prove w ith the arrival of a new doctor,the situation m ay change or another

problem m ay occur because of the dependency of the M edicaid population on a
relatively sm all num ber of providers. Further, those providers often lim it the
num ber ofpatients they are w illing to see. A ccordingly,I conclude w ith respectto
specialty care that during the tim e covered by this case,Florida has not m et the
obligations of the EPSDT Requirements in Section (a)(10) or the reasonable
promptnessrequirements in Section (a)(8). See O& z1W#,366 F.supp.zd at 1109

(finding violation of reasonable promptness provision as to medical care);
M emisovski, 2004 W L 1878332, at *50-56 (finding violation
EPSDT
provisions);Clarkv.Kizer,758F.Supp.at575-79 (fnding violation ofreasonable
promptnessprovision asto dentalcare),aff'd in relevantpartsub.nom.Clark,961
F.2d 585.
l sim ilarly conclude that children seeking specialist care have not received
that care as required under Sections 43(B) and 43(C) of the M edicaid Act.
M emisovski, 2004 W L 1878332, at *50-56 (finding violation of 42 U.S.C.
1396a(a)(43)(C)relatingto theprovisionofEPSDT correctiveservices).
153
l also conclude based on extensive record evidence that children on

M edicaid do not receive equal access to specialist care, com pared to insured
children in theirgeographicalareas. See,e.g.,PX 583.See also M emisovski,2004
W L 1878332,at*42-47 (finding violation ofequalaccessprovision asto medical

care);OIU AP,366 F.supp.zd at1107 (finding violation ofequalaccessprovision
asto medicalservices);Ark.M ed.Soc#,lnc.v.Reynolds,819 F.Supp.816,82526 (E.D.Ark.1993) (finding violation of equalaccess provision as to medical
care);Clark,758 F.Supp.at580 (Gnding violation ofequalaccessprovision asto
dentalcare). Rates are not setwith any consideration to the levelrequired to
provide such equal access, consistent w ith the other requirem ents of Section
(30)(A).
B ased on the fact that 79% ofthe children enrolled in M edicaid are getting
no dentalservicesatall,1agree w ith D r.CrallthatM edicaid children in Florida are
not receiving dental services w ith reasonable prom ptness. C rall on 1/26/2012
Rough Tr.at96-97. SeeHea1th CareforA11,Inc.,2005 W L 1660677,at*10-1l

(finding violation of EPSDT requirements and the reasonable promptness
provision as to dental care);M emisovskl'
, 2004 W L l878332,at *50 (finding
violation ofEPSDT provisions);Clark,758 F.Supp.at580 (fnding violation of
reasonablepromptnessprovisionastodentalcare).
1 conclude that Florida is also not in com pliance w ith the EPSD T
requirements. SeeHea1th CareforA1l,Inc.,2005 W L 1660677,at*14 (finding a

violation of42 U.S.C.j 1396A(A)(43)asto dentalcare);M emisovski,2004 W L
1878332,at*50-56 (fndingviolation ofEPSDT provisions).
Ialso agree with Dr.Crall'sopinion thatFlorida'sM edicaid dentalratesare
not sufscient enough to provide equal access in violation of 42 U.S.C. j

1396a(a)(30)(A)forFlorida'sM edicaid children in each ofAHCA'S 11regional
areas. Ibase m y conclusion on the lack ofdentistparticipating in Florida M edicaid
149
153
and on the 79% of children w ho receive no dental service. Crall on 1/26/2012

Rough Tr.at98:6-20. See H ea1th Care ForA 1l,Inc.,2005 W L 1660677,at*10-11
(finding violation ofequalaccessprovision asto dentalcare);Clark,758F.Supp.

at580(tindingviolation ofequalaccessprovision astodentalcare).
B ased on the evidence in this case, l conclude that w hile reim bursem ent
rates are notthe only factordeterm ining w hetherprovidersparticipate in M edicaid,
they are by far the m ost im portant factor, and that a sufficient increase in
reim bursem entrates w illlead to a substantialincrease in provider participation and
a corresponding increase in accessto care.
There w as also substantial support at trial that M edicaid reim bursem ent
rates- to have a significant effect- need to be increased som ew here close to the
levelpaid under the M edicare program . D r.Flinttestified to this opinion,and this
w as the increase in the Polk County exam ple. Flint on 1/24/2012 Rough Tr.at
182-186. A n increasing num ber of other states have setM edicaid reim bursem ent
rates at or very near M edicare reim bursem ent rates 1d. at 191-92. M oreover,
Congress,in recentlegislation,hasrequired foratw o-yearperiod thatprim ary care

providers receive com pensation at least at the M edicare rate. Sreckovich on
1/12/2012 R ough Tr.at49. Itis also logicalthatthe M edicare reim bursem entrates
are a good indication of com petitive m arketprices. Flint on 1/24/2012 Rough Tr.
at 191-92. There w as no evidence presented by defendants of any adequate

different rate level. G iven the record, 1 conclude that plaintiffs have show n that
achieving adequate provider enrollm ent in M edicaid- and for those providers to
m eaningfully open theirpractices to M edicaid children- requires com pensation to
be setatleastatthe M edicare level.
Based on the applicable statutesand case law ,Iconclude thatAHCA ,asthe

agency that adm inisters Florida M edicaid, is legally responsible to ensure that
153
children who obtain theircare through a M edicaid 1-N 0 (orthrough a Provider

ServiceNetwork)receivethecareto which theyareentitled underfederallaw.
1 further conclude thatthe fee-for-service reim bursem ent rates A H CA sets
forproviders is a key factor in determ ining the capitation rate paid to l-IM O s,and
for determ ining how m uch H M O s can,in turn,pay their providers. A ccordingly,
inadequate fee-for-service reim bursem ent rates result in inadequate com pensation
by M edicaid H M O sto theirproviders.
Based on the H ED IS reports,the m ini-cM s 416 reports, as w ell as other
docum ents and testim ony from providers,I also conclude that the sam e problem s
that plague fee-for-service M edicaid- failure to provide w ell-child check-ups, a
scarcity of specialists,excessive w aittim es and traveldistances for specialty care,

and a lack of dental care- infect the M edicaid l1M O s. Thus, A H CA 'S 11M 0
system fails to m eet the federal requirem ents for providing EPSD T care, in
violation of(a)(10);do notprovide carewith reasonable promptness,asrequired

by (a)(8);donotprovidecarewith equalaccessunderSection 30(A);andhavenot
complied with the obligation to provide careasestablished by sections43(b)and
43(c)oftheM edicaidAct.
There is also extensive record evidence that leads m e to conclude that
children on M edicaid HM Osdo notreceive equalaccessto specialistcare,and that

capitation rates paid to M edicaid H M O s are not setw ith consideration ofthe level
needed to provide equalaccess,consistentwith the other requirements ofSection
(30)(a)asrequiredundertheM edicaidAct.
Federal law requires states to effectively inform all EPSD T eligible
individuals or their fam ilies about the availability of EPSD T services,how those
services m ay be obtained, that those services m ay be obtained at no cost to the
child,and thattransportation is available. See 42 U.S.C.j 1396a(a)(43)(A);42

C.F.R.j 441.56(a). Florida hasdelegated to DCF,among otheragencies,certain
153
outreach and informationalresponsibilities. SeeFla.Stat.j 409.9122(2)(c)(DCF

mustprovide ikclear and easily understandable inform ation''about M edipass and
M edicaid l-W fo s,the plans through which m ostchildren are supposed to receive
EPSDT servicesin Florida).lpreviously held thatidDCF,aswellasAHCA and

D O H , have outreach responsibilities; they are required to fensure that each
M edicaid recipient receives clear and easily understandable inform ation'
about M edipass or m anaged care options. T his requirem ent arises from the
M edicaid A ct's outreach provision-'' 9/30/2009 O rder on C lass C ertification,
D.E.671at7 (citationsom itted). lreaffirm my holding hereasto AHCA and

DOH, but m odify my ruling with respect to DCF. I recognize that j
409.9122(2)(c),Fla.Stat-,hasexpired and DCF isno Iongertasked with these
outreach and inform ationalresponsibilities.
Defendantscontend that42 U.S.C.j 1396a(a)(43)doesnotrequirethem to

conduct outreach to children w ho are not enrolled but are eligible for M edicaid.
The plain language ofthe regulationsimplementing this section state thatttgtlhe

agency mustEpqrovide foracombination ofwritten and oralmethodsdesigned to
inform effectively al1 EPSDT eligible individuals (or their families) about the
EPSDT program.'' See 42 C.F.R.j 441.56(a)(1);FriendsofEvergladesv.S.Fla.

Water M gmt.Dist,570 F.3d 1210, 1227-28 (11th Cir.2009) (stating that an
agency's prom ulgation of regulations interpreting am biguous statutory language is
entitled to deference as long as the intem retation is reasonable). ttM edicaid's

implementing regulations(in specific,j441.564a(1 ...obligateparticipating States
to effectively' inform al1 eligible individuals.'' See Westside M others
Olszewski, 454 F.3d 532, 543 (6th Cir. 2006). The plain language of the
regulations,com bined w ith the case law supporting this interpretation,com pelthe
conclusionthatj l396a(a)(43)and 42 C.F.R.j441.56(a)(1)mandatethatthestate

conductoutreach to al1eligible individuals.
l52
153
Defendantshave failed to lpjrovide for a com bination ofwritten and oral

methods designed to inform effectively allEPSD T eligible individuals (or their
families) about the EPSDT program,'' and to conduct outreach in tclear and
nontechnical language'' that provides inform ation about the benests of
preventative care,the services available under the EPSDT program ,how those
services m ay be obtained,thatthe services are available atno costto children,and
thattransportation servicesare available. See 42 C.F.R.jj 441.56(a)(1)& 441.56

(a)(2)(emphasisadded).Seealso j 1396a(a)(43)(A).
I further conclude thatthe use of the Florida A ccess application in m any of
the circum stances in w hich it currently is utilized constitutes an unnecessary and
im perm issible barrier to the provision of the EPSD T services to children required
undertheEPSDT Requirem entsoftheM edicaid Act.

V lII.C O N C LU SIO N
These constitute m y findingsand conclusionsfollowing 90-plusdaysof

trial.
D ON E and O R D ERED in cham bers in M iam i,Florida,this 31Stday of

M arch,2015.
/>
A dalberto Jordan
United StatesD istrictJudge
Copy to:
A llcounselofrecord
153

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Case 1:05-cv-23037-AJ Document 1314 Entered on FLSD Docket 04/01/2015 Page 1 of 153

IN THE UNITED STATE! DISTRICT COURT

This is a class and representative action in w hich plaintiffs seek declaratory

undertheM edicaid Act,42 U.S.C.j 1396etseq.

($$AHCA''), the Secretary of the Florida Department of Children and Family

Services(tDCF''),andtheSurgeon Generaland agency head oftheDepartmentof

provided to eligible individualsby qualified M edicaid providers. See Fla.Stat.j

Floridalaw. See Fla.Stat.j 409.963. DOH hasbeen delegatedtheresponsibility

receiveM edicaid services.3 F1a.Stat jj391.016,391.021(3),391.026.

Plaintiffs' second am ended com plaint alleged various violations of the

action under 42 U.S.C. j 1983. Specifically,the second amended complaint

alleged violations of (1) 42 U.S.C. j 1396a(a)(8) and (a)(10), requiring that

Screening Diagnosisand Treatment(CIEPSDT'')(tCEPSDT Requirements''),and to

do so with reasonable promptness (Count1) (ssReasonable Promptness'');(2) 42

to beenforcedunder42U.S.C.j 1983. On January 11,2007,ldenied themotion

613. Afterfurtherbriefing and argument,loverruled defendants'objections and

review ofthe classcertification order,w hich w asdenied by the Eleventh Circuiton

Priorto trial,defendantsfiled amotion forsummaryjudgmentarguing that

on M arch 26-27,2012. These sndings relate to defendants'liability and plaintiffs'

entitlementto declaratory relief. Federaljurisdiction exists under 28 U.S.C.j

ll.SUM M ARY O F PARTIES'PO SITIO N S ON ISSUES TRIED

of reimbursem ent rates for m ost m edical procedures so as to assure ddbudget

guarantees ofaccessto EPSDT services,to receive required care with reasonable

Second,plaintiffscontend thatFlorida hasviolated the federalM edicaid Act

legislative budgetrequests(LBRs'')thatAHCA has submitted to the legislature

states. Receiving specialistcare,plaintiffs argue,is a federalright as partofthe

EPSDT Requirementsunder42 U.S.C.j l396d(r)(5),the reasonable promptness

Sixth,plaintiffs contend thatthe state hasviolated j 1396a(a)(43)by using

future denialofcare. Defendantsfurtherobjectto the certification ofa class on

adequate evidence ofinjury. Defendants also contend thatthe relevantfederal

A s to the m erits, defendants argue no system ic problem s existed in the

injuriesforsome claimssuch asoutreach tothe uninsured,difficultiesin applying

W ith regard to any delays in receiving m edicalcare,defendants argued that

delays w ere w idespread and pervasive enough to supporta fnding of a custom or

evidence that program funding w as so low it violated federal law . D efendants

In addition,defendants argued thatthe state now doesa betterjob through

reim bursem ent.

To prosecute a case as a class action, Sdthe nam ed plaintiffs m ust have

some third pal'ty notbefore the court;and (3)itmustbe likely,as

Bloedorn v.Grube,631F.3d 1218,1228 (11th Cir.2011)(citationsomitted). $$1n

Defenders of Wildlfe,504 U.S.555,561 (1992). Since standing isnota ttmere

controverted,those facts ttm ust be supported adequately by the evidence adduced

prove notonly harm,butalso t1a realand immediate threat'offuture injury in

conductinthe future.''1d. t'ro belikely enough,thethreatened futureinjurymust

information.D.E.541at6-7.Theseinjuries,1now find,resulted from defendants'

engaged in severalunlawfulpoliciesandpractices,including:(1)failing toprovide

com ply w ith M edicaid's equal access m andate by setting

Continued exposure to these policies and practices is sufficientto satisfy the

injury-in-factrequirement. To prove arealand immediatethreatoffuture injury,

M oreover,asthe Eleventh Circuithasrecognized,when future injuriesare

constitutional deprivations of which they complain''). Because plaintiffs are

Sicar v.Chertoffi54l F.3d 1055,1059 (11th Cir.2008). llere,there isa direct

M edicaid Program. Fla. Stat. j 409.902(1). It is responsible for assigning

also tasked with setting reimbursement rates to M edicaid providers. 1d. at j

quality ofcareand (mustbeqsufficientto enlistenough providerssothatcareand

lncome recipients,aswellasthe actualdetenuination ofeligibility.'' Fla.Stat.j

DOH,through its Children's M edical Services ((CM S'') program,must

reduce long-term disabilities.'' 1d.at j 391.016(2). ln administering the CM S

rendered through the (CM Sqnetworkl.q'' 1d.atj 391.045(1). LikeAHCA,DOH

servicestoparticipatein M edicaid.See42U.S.C.j 1396a(a)(30)(A).

government action has caused a plaintiffs injury,1a judgment preventing or

here is inherentin a declaration,and ifnecessary,an injunction,against future

Previously,in a pre-trialruling,I found that plaintiffs do not have standing

tobring Count11(lack ofaccessto medicalcare)againstthehead ofDCF because