Iliana Garrido, et al v. Secretary, Florida Agency for

Filing

Opinion issued by court as to Appellant Secretary, Florida Agency for Health Care Administration. Decision: Reversed and Remanded. Opinion type: Non-Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 09/15/2016

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13220
________________________
D.C. Docket No. 1:11-cv-20684-JAL

ILIANA GARRIDO,
K.G., by and through his next friend, et al.,

Plaintiffs-Appellees,
versus
SECRETARY, FLORIDA AGENCY FOR
HEALTH CARE ADMINISTRATION,
Elizabeth Dudek,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 15, 2016)

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Before JORDAN, ROSENBAUM, and SILER, ∗ Circuit Judges.
SILER, Circuit Judge:
Appellees K.G., I.D., and C.C. (“Plaintiffs”), three children diagnosed with
autism spectrum disorder and enrolled in Florida’s Medicaid program, filed suit
against Appellant Elizabeth Dudek, the Secretary of the Florida Agency for Health
Care Administration (“AHCA”), seeking to have the district court declare that
AHCA violated the Medicaid Act and to enjoin it from denying coverage for
applied behavioral analysis to Plaintiffs. Following a bench trial, the district court
issued a permanent injunction and declaratory judgment providing Plaintiffs with
relief. AHCA appealed the district court’s injunction and declaratory judgment,
and this court affirmed in part and reversed in part. Garrido v. Dudek, 731 F.3d
1152 (11th Cir. 2013). On remand, the district court awarded appellate attorney’s
fees to Plaintiffs under 42 U.S.C. § 1988, finding they were a “prevailing party” on
appeal.

AHCA now appeals the award of attorney’s fees.

For the reasons

explained below, we reverse and remand.
I.
Plaintiffs K.G., I.D., and C.C. were all diagnosed with autism spectrum
disorder (“ASD”) and prescribed applied behavioral analysis treatment 1 (“ABA”)

∗

Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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by their physicians. The Florida Medicaid Community Behavioral Health Services
Coverage and Limitations Handbook (the “Handbook”), incorporated by reference
by Florida Administrative Code rule 59G-4.050, dictates Florida’s Medicaid
coverage for behavioral health services. Prior to Plaintiffs’ suit, the Handbook
specifically excluded coverage for behavioral health services to treat ASD. After
Plaintiffs filed suit, AHCA determined that ABA was “experimental,” which
meant that Florida was not required to provide Medicaid coverage for ABA
because the treatment was not “medically necessary.” See Fla. Stat. §§ 409.905,
409.906; Fla. Admin. Code r. 59G-1.010(166)(a)3 (identifying under what
circumstances a good or service is “medically necessary”).
Plaintiffs filed suit to have the Handbook’s exclusion of coverage for ABA
declared in violation of the Medicaid Act. Plaintiffs also moved for a permanent
injunction that would direct AHCA: (1) “to delete the [Handbook’s] exclusion of
behavioral health services for treatment of autism and pervasive developmental
delay,” (2) to amend the Handbook “to include coverage of medically necessary
behavioral health services, including ABA, for treatment of Autism Spectrum
Disorders in children and youth under age 21,” and (3) to “[e]nsure that Plaintiffs
receive Medicaid coverage for medically necessary behavioral health services,

1

ABA is a type of treatment that “that uses a structured one-on-one program to treat
behavioral needs.”
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including ABA.” Following a bench trial, the district court found that Plaintiffs
had “established that Florida’s exclusion of ABA for Medicaid-eligible minors
diagnosed with autism or ASD violate[d] . . . the federal Medicaid Act.” K.G. ex
rel. Garrido v. Dudek, 864 F. Supp. 2d 1314, 1327 (S.D. Fla. 2012). Further, the
district court held that ABA was medically necessary, concluding specifically that
it was not experimental—thus overruling AHCA’s prior determination that it was.
Id. at 1320-21. The district court also found that both AHCA’s process and its
resulting decision that ABA was experimental were “arbitrary, capricious, and
unreasonable.”

Id. at 1321-22.

With respect to Plaintiffs’ request for an

injunction, the district court ordered the following:
1. As of 10:50 a.m. on March 26, 2012, Defendant is enjoined from
enforcing Florida Behavioral Health Rule 2-1-4 as it relates to autism,
Autism Spectrum Disorder, and Applied Behavioral Analysis
treatment.
2. As of 10:50 a.m. on March 26, 2012, the State of Florida is hereby
ordered to provide, fund, and authorize Applied Behavioral Analysis
treatment to Plaintiffs K.G., I.D., and C.C., as well as to all Medicaideligible persons under the age of 21 in Florida who have been
diagnosed with autism or Autism Spectrum Disorder, as prescribed by
a physician or other licensed practitioner.
3. Defendant shall notify all community behavioral health services
providers enrolled in the Medicaid program that ABA is now a
covered service for children who have been diagnosed with autism or
Autism Spectrum Disorder.
4. Defendant shall notify all physicians enrolled in the Medicaid
program who may provide [Early and Periodic Screening, Diagnosis
and Treatment] . . . screens that ABA is now a covered service for
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children who have been diagnosed with autism or Autism Spectrum
Disorder.
5. Defendant shall designate an authorization code for ABA treatment
and notify all persons in listed in numbers 3 and 4 of such designation.
6. Defendant shall take whatever additional steps are necessary for the
immediate and orderly administration of ABA treatment for
Medicaid-eligible persons under the age of 21 who have been
diagnosed with autism or Autism Spectrum Disorder.
7. Defendant shall certify in an affidavit filed with the Court within
seven (7) calendar days that numbers 3 through 6 of this Order have
been accomplished.
Id. at 1327-28.
AHCA appealed the district court’s order, raising three arguments:
I. Whether the district court abused its discretion in ordering Florida’s
Medicaid administrator to authorize and provide specific treatments to
all autistic Medicaid recipients under twenty-one with a prescription
for such treatment, without permitting the State to make
individualized medical-necessity determinations.
II. Whether the district court abused its discretion in ordering
injunctive relief to nonparties, when such relief was effectively classwide relief with no certified class, and when such relief was not
necessary to provide complete relief to Plaintiffs.
III. Whether the district court abused its discretion in entering
verbatim Plaintiffs’ proposed order for declaratory relief, which
purports to provide relief to nonparties.
In the months following the injunction, AHCA sent transmittals to its providers
explaining to them that while AHCA had been ordered to cover ABA, AHCA

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sought to reverse that ruling and would cease to provide ABA if its appeal was
successful.
On appeal, this court held that “the district court did not abuse its discretion
in issuing a permanent injunction that overrules AHCA’s determination that ABA
is experimental (and AHCA’s larger determination that ABA is never medically
necessary) and requires Medicaid coverage of this treatment.” Garrido, 731 F.3d
at 1160. But this court vacated the district court’s injunction in part and remanded
for modification, explaining that “the language in the injunction’s final section
[wa]s out of step with the district court’s analysis and what was actually decided.”
Id. As such, the district court was directed to make the following modifications to
the injunction order:
2. As of 10:50 a.m. on March 26, 2012, the State of Florida is hereby
ordered to provide, fund, and authorize Applied Behavioral Analysis
treatment to Plaintiffs K.G., I.D., and C.C.
....
6. Defendant shall take whatever additional steps are necessary for the
immediate and orderly administration of ABA treatment to Plaintiffs
K.G., I.D., and C.C.
Id. (footnotes omitted). Additionally, the district court was ordered to amend the
declaratory judgment to add two sections:
29. This declaration does not eliminate the Defendant’s authority to
make individual medical necessity determinations, in accordance with
governing law and regulations.
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....
43. This declaration does not eliminate the Defendant’s authority to
make individual medical necessity determinations, in accordance with
governing law and regulations.
Id. at 1160-61.
While still on appeal, Plaintiffs moved for an award of appellate attorney’s
fees pursuant to 42 U.S.C. § 1988. However, Plaintiffs’ motion for attorney’s fees
was remanded for review by the district court. On remand, adopting the magistrate
judge’s report and recommendation, the district court awarded Plaintiffs $209,999
in appellate attorney’s fees based on the determination that Plaintiffs at least
partially prevailed on appeal.

AHCA now appeals the award of appellate

attorney’s fees and the reasonableness of those fees.
II.
A plaintiff may recover attorney’s fees under 42 U.S.C. § 1988 only if he or
she is deemed a “prevailing party.” Church of Scientology Flag Serv., Org., Inc. v.
City of Clearwater, 2 F.3d 1509, 1512 (11th Cir. 1993) (citation omitted). The
district court’s factual findings relevant to the determination of a “prevailing party”
are reviewed for clear error, but whether the facts are sufficient to render a plaintiff
a “prevailing party” is a legal question and thus reviewed de novo. See id. at 151213. Finally, “[w]e review a district court’s decision whether to award attorney’s
fees and costs for abuse of discretion.” Dionne v. Floormasters Enters., Inc., 667
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F.3d 1199, 1203 (11th Cir. 2012) (citing Sahyers v. Holliday & Karatinos, P.L.,
560 F.3d 1241 (11th Cir. 2009)).
III.
AHCA raises two issues on appeal. First, AHCA contends that Plaintiffs
could not have prevailed on appeal because AHCA received the exact relief it
sought when it appealed the district court’s order. Specifically, AHCA “appealed
the excessive portion of the order purporting to mandate that AHCA provide ABA
treatment to all Medicaid-eligible Florida residents under the age of 21 who have
been diagnosed with autism.” And, according to AHCA, because this court agreed
with its position on appeal, we “excised the challenged portion of the order,
directing the district court to enter a specifically modified order.” Second, AHCA
asserts that even if Plaintiffs prevailed on appeal, the district court abused its
discretion by entering an unreasonable award of attorney’s fees. However, because
Plaintiffs did not prevail in their previous appeal, we do not reach AHCA’s second
argument.
This appeal pertains only to Plaintiffs’ appellate attorney’s fees as the parties
have already settled attorney’s fees related to Plaintiffs’ success in the district
court. Plaintiffs may be awarded attorney’s fees under 42 U.S.C. § 1988 as a
“prevailing party” by “successfully defending an attack on the award in [their]
favor on appeal.”

Fewquay v. Page, 907 F.2d 1046, 1046 (11th Cir. 1990)
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(citations omitted). “[A] ‘prevailing party’ is one who prevails on ‘any significant
issue’ and thereby achieves some of the benefits sought by bringing suit.” Friends
of the Everglades v. S. Fla. Water Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir.
2012) (citing Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782,
791-92, 109 S. Ct. 1486 (1989)). “But when the defendant appeals and the plaintiff
incurs expenses in defending against the appeal that are reasonable even though
they are not crowned by complete success, ordinarily he should be entitled to
reimbursement of those fees; he had no choice but to incur them or forfeit his
victory in the district court.” Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.
1988).
Although the parties separately discuss each of the three issues AHCA raised
in the previous appeal, all of those issues were aimed at achieving one objective:
that this court “vacate the injunctive and declaratory relief and remand for entry of
a limited order affording relief only to Plaintiffs.” AHCA claims that it succeeded
on appeal because this court vacated portions of the permanent injunction and
inserted two paragraphs into the declaratory judgment. According to AHCA, this
court vacated the permanent injunction and declaratory judgement based on its
request for this court to find that “the district court abused its discretion in ordering
Florida’s Medicaid administrator to authorize and provide specific treatments to all
autistic Medicaid recipients under twenty-one with a prescription for such
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treatment, without permitting the State to make individualized medical-necessity
determinations.” Plaintiffs reject AHCA’s interpretation of this court’s opinion,
contending that AHCA “unsuccessfully requested an order to ‘vacate the injunctive
and declaratory relief and remand for entry of a limited order affording relief only
to Plaintiffs.’”

Further, Plaintiffs argue that AHCA premised its brief on a

misunderstanding of the district court’s orders and was inconsistent with what the
parties stipulated to prior to trial.
In determining that Plaintiffs at least partially prevailed on appeal, the
magistrate judge concluded that although this court modified the wording of the
district court’s orders, the “alterations were not the result of the Court of Appeals
accepting AHCA’s legal arguments. Instead, the language modifications were
made in recognition of AHCA’s erroneous interpretation of the District Court’s
ruling upon which AHCA’s arguments were based.”

Likewise, adopting the

magistrate judge’s report and recommendation, the district court concluded that
this court “made clear that Issue I was premised on a misinterpretation of the
Court’s Injunction and Declaratory Judgment.” Additionally, the district court
suggested that AHCA’s objection to the language of the injunction “could have
been dealt with by a motion for clarification to this Court.”
Plaintiffs and AHCA agreed on a fundamental starting point in the previous
appeal: that “the question of individual medical necessity determinations—other
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than those of Plaintiffs K.G., I.D., and C.C.—was explicitly not before the district
court.” Garrido, 731 F.3d at 1160. Not only did the parties stipulate to that fact
prior to the bench trial, but the district court also explicitly stated that it “did not
enjoin the State from performing individual medical necessity determinations.”
Where the parties diverged, however, was on their respective understandings of the
effect of the district court’s injunction and declaratory judgment.
AHCA believed that, despite the parties’ agreement to the contrary, the
district court’s injunction eliminated its ability to make individualized medicalnecessity determinations.

Plaintiffs argued that “[t]he trial court did no such

thing.” In making this claim, Plaintiffs pointed to the absence of language in the
injunction explicitly revoking AHCA’s ability to make individual determinations
as evidence that AHCA was not removed from the decision-making process. In
response, AHCA directed the prior panel’s attention to the language of the
injunction—specifically the statement that “ABA is ‘medically necessary’ and is
not ‘experimental’”—as evidence that AHCA was not left any kind of role,
implicit or otherwise. In essence, AHCA contended that its role in the decisionmaking process could not simultaneously coexist with the language authorizing
AHCA to provide ABA. Despite these differing interpretations, however, both
parties claimed victory based on the resolution of this court’s prior opinion.

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Early in its brief for the previous appeal, AHCA stated that it “respectfully
disagree[d] with the district court’s conclusion that ABA is medically necessary
and not experimental as to Plaintiffs,” but that it “ha[d] elected not to appeal
Plaintiffs’ present entitlement to ABA services.” Further, AHCA clarified that it
was not appealing the part of “the Injunction that invalidated the portion of the
Behavioral Health Handbook, Fla. Admin. Code R. 59G-4.050, that stated
‘Medicaid does not pay for community behavioral health services for treatment of
autism . . . .’” In fact, AHCA later stated in its brief that it had initiated a rulemaking process to “guide medical-necessity determinations in future cases” in
direct response to the district court’s criticism of AHCA’s determination that ABA
was experimental.
Although AHCA objected to the injunction’s statement that “ABA is
‘medically necessary’ and is not ‘experimental’” in its brief, it did so for the sole
purpose of demonstrating that the injunction “express[ly] direct[ed] that [it]
authorize ABA to a broad class—without any qualification for medical necessity.”
On that point, AHCA explained that the injunction “could not have at once
‘implicitly’ left it to AHCA to determine medical necessity and expressly ordered
that ‘ABA is medically necessary.’”

Simply put, nothing in AHCA’s brief

suggested that it was appealing anything other than the portion of the injunction
and declaratory judgment stripping it of its ability to determine medical necessity.
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Our present reading of the issues raised by AHCA in its previous appeal
comports with the scope of the appeal considered by the prior panel. In the
previous opinion, this court framed AHCA’s request for relief as follows:
At the outset we note that Defendant [AHCA] does not challenge
either Plaintiffs’ entitlement to ABA treatment as a covered Medicaid
service or that section of the permanent injunction invalidating the
Handbook Rule excluding ABA treatment from Medicaid coverage.
Rather, [AHCA] appeals the scope of the permanent injunction and
declaratory judgment, contending that both go beyond what was
necessary to afford Plaintiffs complete relief. [AHCA] argues that the
district court entered an injunction that impermissibly provides that all
autistic Medicaid recipients under the age of 21 with a prescription for
ABA are automatically entitled to ABA treatment, regardless of the
medical necessity of ABA treatment in any individual case. Thus,
[AHCA] contends, the injunction interferes with Florida’s policy
decision to limit Medicaid coverage to medically necessary services,
and it deprives AHCA of its statutory responsibility to assess the
medical necessity of prescribed services in individual cases.
Garrido, 731 F.3d at 1158. Plaintiffs took a position in opposition to that of
AHCA, arguing that “the permanent injunction and declaratory judgment d[id] not
eliminate individual medical necessity determinations.” Id. To this end, Plaintiffs
specifically asserted in their brief that “the scope of th[e] injunction [was] no
broader than necessary for the Plaintiffs’ complete relief.” This court, however,
noted that “the language of the district court’s ruling made it appear that the district
court had made a wholesale determination that ABA is always medically necessary

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to treat a Medicaid-eligible minor’s ASD.” Garrido, 731 F.3d at 1160.2 As a
result, the panel concluded that the district court’s orders were overbroad—though
referring to them euphemistically as “out of step”—and therefore required
modification to prevent misinterpretation

Id. at 1160. Whether Plaintiffs or the

court below call the change to the orders a “clarification” or “wordsmithing,” it
does not change the fact that AHCA sought the modification, Plaintiffs opposed it,
and this court awarded it. This result leaves Plaintiffs unable to articulate any part
of the appeal they successfully defended. 3
Finally, if the permanent injunction and declaratory relief had accurately
reflected the parties’ understanding of AHCA’s remaining role, the panel would
have affirmed without taking any other action. The panel instead determined that
the district court’s orders were incongruent with its own findings and method of
enforcement and therefore modified them to rectify the overbreadth.4 Moreover,

2

As evidence of the ambiguous nature of the permanent injunction, even before this court
issued its decision, pro se nonparties had already moved to hold AHCA in contempt based “on
the misunderstanding that the district court’s permanent injunction order automatically entitled
those nonparties to Medicaid coverage of ABA treatment.” Garrido, 731 F.3d at 1160.
3
It is insufficient to solely rely on this court’s prior statement that the “the district court
did not abuse its discretion” in claiming victory when that statement did not actually relate to any
matters actually being challenged by AHCA on appeal. Even the magistrate judge struggled to
relate the abuse-of-discretion statement to an issue being appealed, deciding instead to conclude
that the “strong wording from the Court of Appeals” must mean that the Plaintiffs partially
prevailed ipso facto. Where the test for a prevailing party asks whether the party succeeded on a
significant issue, it is not enough to shoehorn this court’s agreement with an uncontested issue
into a victory.
4
Adopting the position of the magistrate court, the district court suggested that AHCA’s
appeal was unnecessary because AHCA could have resolved the problem with a motion for
clarification. This contention disregards the fact that the district court stated in its order denying
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had Plaintiffs conceded that the injunction and declaratory judgment were overly
broad, the parties could have just reached an agreement to modify without the
expense of an appeal or jeopardizing the relief Plaintiffs obtained from the district
court.5

In other words, this case did not present Plaintiffs with a Hobson’s

choice—either defend on appeal or forfeit their success in the district court—
because Plaintiffs would not have lost any ground by conceding to AHCA on
appeal and in fact did not lose any successes gained in the district court when this
panel reversed.

Nevertheless, Plaintiffs defended the language of the orders,

incurred expenses without real risk of forfeiting any victory in the district court,
and lost. Therefore, Plaintiffs were not a prevailing party on appeal and are not
eligible for appellate attorney’s fees.
IV.
AHCA previously appealed for the sole purpose to have this court vacate
and remand the district court’s permanent injunction and declaratory judgment for

AHCA’s motion for partial stay that its injunction “did not enjoin the State from performing
individual medical necessity determinations.” Since the district court did not interpret the
injunction as being overbroad, why is it reasonable to believe that the court would have granted a
motion to clarify it?
5
Plaintiffs contend that they “repeatedly expressed that they had no objection to
modifications that would clarify the district court’s orders.” This is not supported by the record.
At most, Plaintiffs suggested that the district court could act sua sponte to modify the orders, not
that they necessarily consented to the modification. Moreover, if Plaintiffs had actually agreed
to modify, then they could have stated on appeal that while they do not believe the district
court’s order to be overbroad, they do not oppose any modifications to clarify that point. As
AHCA notes, such a course of action would not have resulted in Plaintiffs’ requesting more than
$200,000 for their work on appeal.
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entry of a narrower order to make clear that AHCA retained the ability to make
individualized medical-necessity determinations for Medicaid participants seeking
ABA treatment. This court granted the relief AHCA sought by amending the
district court’s orders to remedy their overbreadth. Therefore, Plaintiffs were not a
prevailing party on appeal and were not entitled to appellate attorney’s fees.
REVERSED AND REMANDED.

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ROSENBAUM, Circuit Judge, dissenting:
Hindsight is 20/20. But sometimes things look very different from the front
end. That is the problem here. The Majority holds that Plaintiffs were not the
prevailing party in the earlier appeal before this Court (Case No. 12-13785-DD)
because “[the Florida Agency for Health Care Administration (“AHCA”)] sought
the modification [to the injunction that the district court entered], Plaintiffs
opposed it, and this court awarded it.” Maj. Op. at 15. But while this retrospective
summary has the virtue of brevity, I respectfully disagree that it tells the whole
story. Looking at events from the front end of the appeal in Case No. 12-13785DD, as Plaintiffs necessarily did when they had to decide whether to defend the
injunction, AHCA’s position in its appellate briefing in that case could fairly be
understood to seek significantly broader modifications to the injunction than we
ended up directing.
Plaintiffs argued against the breadth of relief AHCA sought, and, in
substantial part, we accordingly limited the scope of relief we ordered. That
AHCA now characterizes itself as having sought only the relief we actually
ordered does not change the fact that AHCA did not obtain the breadth of relief it
appeared in its briefing to seek.

And Plaintiffs’ successful defense of the

challenged parts of the injunction from AHCA’s attempts to modify them renders
Plaintiffs a prevailing party entitled to attorneys’ fees.
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To understand what AHCA indicated in its briefing in Case No. 12-13785DD that it was appealing, we must start with what AHCA expressly stated it was
not appealing. AHCA specified that it was not appealing the district court’s order
to the extents that the district court concluded that “[Applied Behavioral Analysis
(“ABA”)] is medically necessary and not experimental as to Plaintiffs” and that
the injunction “invalidated the portion of the Behavioral Health Handbook, Fla.
Admin. Code R. 59G-4.050, that stated ‘Medicaid does not pay for community
behavioral health services for treatment of autism . . . .’” AHCA’s Opening Brief
in Dudek v. K.G., Case No. 12-13785-DD (11th Cir.) (“AHCA’s Dudek Br.”) at 12
(emphasis added).
After carving out that relief, however, AHCA stated without qualification
that it was challenging “the district court’s grant of additional relief, which was
impermissibly overbroad and an abuse of discretion.” Id. (emphasis added). It
then went on to take issue with the “Injunction’s express finding that ‘ABA is
“medically necessary” and is not “experimental” as defined under Florida
administrative law and federal law,” id. at 18 (emphasis added) (modification by
AHCA omitted); to assert that “an injunction directing AHCA to cover the ABA
services of Plaintiffs would have been sufficient to provide complete relief to the
parties,” id. at 29 (emphasis added); and to repeat that it was not appealing “the
district court’s determination that ABA services are medically necessary and not
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experimental as to Plaintiffs at the time the Injunction was entered,” id. at 32
(emphasis added). And it did all of this against the background of having issued a
Health Care Alerts & Provider Alerts Message, which said, “[A] federal judge
ordered Florida Medicaid to cover [ABA] for the treatment of autism spectrum
disorders for children under the age of 21, effective April 2, 2012. Please note that
[AHCA] intends to appeal this ruling. If the ruling is overturned, Medicaid will
cease to cover these services for the treatment of autism spectrum disorders.”
So, AHCA’s statements in its briefing may be fairly read to indicate that,
among other things, AHCA was challenging the district court’s order to the extent
that the order concluded generally, as opposed to finding in Plaintiffs’ case only,
that ABA is not experimental under Florida administrative law and federal law. If
successful, this argument would have resulted in a modification to paragraphs 2
through 6 of the injunction 1 because if, as generally applied, ABA remains

1

Paragraphs 2 through 6 of the injunction provide,

2.

As of 10:50 a.m. on March 26, 2012, the State of Florida is
hereby ordered to provide, fund, and authorize Applied
Behavioral Analysis treatment . . . to all Medicaid-eligible
persons under the age of 21 in Florida who have been
diagnosed with autism or Autism Spectrum Disorder, as
prescribed by a physician or other licensed practitioner.

3.

Defendant shall notify all community behavioral health
services providers enrolled in the Medicaid program that
ABA is now a covered service for children who have been
diagnosed with autism or Autism Spectrum Disorder.
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“experimental” under Florida administrative law and federal law, it cannot be
“provide[d], fund[ed], and authorize[d]” treatment for Autism and Autism
Spectrum Disorder, and it cannot be a “covered service.”
By stating an intent to appeal all relief except as related to Plaintiffs and the
striking of the handbook provision, AHCA’s statements in its Dudek briefing
further suggested that it sought to invalidate those parts of the injunction that
provided that all community behavioral health services providers and physicians
enrolled in the Medicaid program had to be notified that ABA is a “covered service
for children who have been diagnosed with autism or Autism Spectrum Disorder”
(paragraphs 3 and 4) and that an authorization code for ABA treatment must be
designated and communicated to community behavioral health services providers
and physicians enrolled in the Medicaid program who may provide [early and

4.

Defendant shall notify all physicians enrolled in the
Medicaid program who may provide EPSDT screens that
ABA is now a covered service for children who have been
diagnosed with autism or Autism Spectrum Disorder.

5.

Defendant shall designate an authorization code for ABA
treatment and notify all persons in listed in numbers 3 and
4 of such designation.

6.

Defendant shall take whatever additional steps are
necessary for the immediate and orderly administration of
ABA treatment for Medicaid-eligible persons under the age
of 21 who have been diagnosed with autism or Autism
Spectrum Disorder.
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episodic screening, diagnostic, and treatment services (“EPSDT”)] screens
(paragraph 5).
Not surprisingly, that’s how Plaintiffs construed AHCA’s briefing in Dudek.
Indeed, in response, Plaintiffs defended ABA as a “covered benefit,” and argued
that the injunction properly “provide[d], fund[ed], and authorize[d] prescribed
ABA for EPSDT eligible individuals [not just Plaintiffs] with autism spectrum
disorders; . . . designate[d] authorization code(s); and . . . inform[ed] relevant
providers that ABA is a covered benefit for EPSDT eligible children.” 2

See

Plaintiffs’ Response Brief in Dudek v. K.G., Case No. 12-13785-DD (11th Cir.)
(“Plaintiffs’ Dudek Br.”) (emphasis added).
In the end, we did not disturb the district court’s finding that ABA is not
experimental with respect to all eligible children with autism spectrum disorders.
And we neither modified nor struck paragraphs 3 through 5 of the injunction,
which apply generally throughout Florida’s Medicaid program and not just to
Plaintiffs. See Garrido v. Dudek, 731 F.3d 1152, 1157-58 (11th Cir. 2013). In

2

Plaintiffs never took the position that the injunction prohibited AHCA’s ability to make
individualized medical-necessity determinations, even after the entry of the injunction. See
Plaintiffs’ Dudek Br. at 13. In fact, to respond to AHCA’s concerns, Plaintiffs proposed
modifying paragraph 2 to state, “[T]he State of Florida is hereby ordered to provide, fund, and
authorize ‘medically necessary’ Applied Behavioral Analysis treatment . . . .” Id. at 22. The
district court likewise construed its own injunction to allow AHCA to continue to make
individualized determinations of medical necessity, dismissing a case that sought to hold AHCA
in contempt for not automatically authorizing ABA for Medicaid claimants without an
individualized determination of medical necessity.
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other words, Plaintiffs successfully defended these aspects of the injunction from
AHCA’s claims on appeal.
Under these circumstances, Plaintiffs were a “prevailing party” for purposes
of awarding attorneys’ fees. Here, Plaintiffs acted essentially as “private attorneys
general,” defending an injunction that benefited not just themselves but all eligible
children in Florida with autism spectrum disorders. See Newman v. Piggie Park
Enters., Inc., 390 U.S. 400, 401-02, 88 S. Ct. 964, 966 (1968). “If successful
plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved
parties would be in a position to advance the public interest by invoking the
injunctive powers of the federal courts.” Id. For this reason, “when the defendant
appeals [in a civil-rights action] and the plaintiff incurs expenses in defending
against the appeal that are reasonable even though they are not crowned by
complete success, ordinarily he should be entitled to reimbursement of those fees;
he had no choice but to incur them or forfeit his victory in the district court.”
Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir. 1988).
That is precisely what happened in this case. Though AHCA succeeded in
obtaining a modification of the injunction to reflect that it retained authority to
make individualized medical-necessity determinations, Plaintiffs did not contest
this aspect of the relief that AHCA requested, and they successfully defended the
injunction from the further modifications that AHCA’s briefing indicated it sought.
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And it was perfectly reasonable for Plaintiffs to have defended on appeal
challenges to, among other things, the generally applicable aspects of the
injunction, including the third through fifth paragraphs of it, in light of AHCA’s
statements in its Dudek briefing that are fairly construed as seeking broader relief
than AHCA now claims. Indeed, Plaintiffs could not realistically be expected to
stand idly by and hope for the best, under the circumstances. Having forced
Plaintiffs to defend on appeal challenges to these aspects of the injunction, AHCA
should not now be able to escape the natural consequences of its actions—
Plaintiffs’ incurrence of attorneys’ fees. For this reason, I respectfully dissent from
the Majority’s view that Plaintiffs were not entitled to attorneys’ fees incurred in
defending the appeal in Case No. 12-13785-DD.
I would therefore reach the second issue that AHCA raises on appeal: the
reasonableness of the fee award to Plaintiffs. But AHCA did not object to the
amount of attorneys’ fees recommended by the magistrate judge and ultimately
granted by the district court, even though the magistrate judge’s report and
recommendation expressly cautioned that “[f]ailure to file timely objections shall
bar the Parties from a de novo determination by the District Court of an issue
covered in this Report and Recommendation[] and bar the Parties from attacking
on appeal the factual findings contained herein.” As a result, AHCA has forfeited
the right to challenge the reasonableness of the fees now. Resolution Trust Corp.
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v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (per curiam).
AHCA itself appears to implicitly concede this point, since it did not respond in its
reply brief to Plaintiffs’ argument to this effect. For these reasons, I would affirm
the award of attorneys’ fees to Plaintiffs.

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