A district court in Florida denied a motion to dismiss class action litigation challenging a lengthy waiting list for Medicaid funding for Florida’s Home and Community Based Services Waiver program. The court found that many claims depend upon whether there are available slots in the program, which was a disputed question of fact. Dykes v. Dudek, No. 4:11 Civ. 00116-RS-WCS, 2011 WL 3860022 (N.D. Fla. Aug. 30, 2011). Judge Richard Smoak, a George W. Bush nominee, wrote the opinion. Disability Rights Florida represents the plaintiffs.
The suit was brought by a group of individuals with developmental disabilities who are eligible to receive Medicaid either in intermediate care facilities for the developmentally disabled or in the community through the waiver program. The plaintiffs alleged that the waiting list for community services exceeds five years in some cases and that the state had limited funding for the program, resulting in a portion of institutionalized persons never being enrolled.
Defendants sought to dismiss the claim alleging a violation of the reasonable promptness provision of Medicaid, 42 U.S.C. § 1396a(a)(8), by arguing that the provision is inapplicable to a waiver program. Nevertheless, the defendants conceded that plaintiffs are entitled to enrollment with reasonable promptness if there are available slots. Since plaintiffs contended that enrollment was not at capacity, this created a factual dispute, warranting denial of the motion to dismiss.
Similarly, defendants’ argument that they were not required to inform individuals about the availability of the waiver program pursuant to the freedom of choice provision, 42 U.S.C. § 1396n(c)(2)(C), turned on whether there were available slots. Defendants further contended that the freedom of choice provision is not enforceable through the cause of action in 42 U.S.C. § 1983. Noting that the Sixth and Ninth Circuits had held the freedom of choice provision confers enforceable rights, the court stated, “[a]t this stage, I find no reason to disagree.”
The court summarily stated that the claims under the Americans with Disabilities Act and Rehabilitation Act depended on factual determinations “inappropriate at this stage.”
Finally, plaintiffs alleged that defendants had violated their procedural due process right to a fair hearing right under 42 U.S.C. § 1396a(a)(3). Defendants responded that plaintiffs were not eligible for the waiver program, because there were no available slots. The court denied the motion to dismiss, since the availability of slots was in dispute. The court quickly disposed of the claim that this Medicaid provision was not enforceable under 42 U.S.C. § 1983, citing a Third Circuit case.