              Case: 15-13220     Date Filed: 09/15/2016   Page: 1 of 24


                                                             [DO NOT PUBLISH]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)
                Case: 15-13220       Date Filed: 09/15/2016        Page: 2 of 24


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.
                                                2
               Case: 15-13220       Date Filed: 09/15/2016       Page: 3 of 24


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.”
                                               3
              Case: 15-13220     Date Filed: 09/15/2016   Page: 4 of 24


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 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.

      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
                                           4
             Case: 15-13220     Date Filed: 09/15/2016   Page: 5 of 24


      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 class-
      wide 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




                                         5
              Case: 15-13220    Date Filed: 09/15/2016   Page: 6 of 24


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.


                                          6
              Case: 15-13220     Date Filed: 09/15/2016    Page: 7 of 24


      ....

      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 1512-

13. 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


                                           7
             Case: 15-13220     Date Filed: 09/15/2016    Page: 8 of 24


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)


                                          8
              Case: 15-13220     Date Filed: 09/15/2016     Page: 9 of 24


(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


                                           9
              Case: 15-13220       Date Filed: 09/15/2016   Page: 10 of 24


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


                                            10
             Case: 15-13220     Date Filed: 09/15/2016    Page: 11 of 24


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 medical-

necessity 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 decision-

making 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.




                                          11
             Case: 15-13220     Date Filed: 09/15/2016   Page: 12 of 24


      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 rule-

making 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.


                                         12
             Case: 15-13220     Date Filed: 09/15/2016    Page: 13 of 24


      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




                                          13
                Case: 15-13220        Date Filed: 09/15/2016         Page: 14 of 24


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
                                                  14
               Case: 15-13220        Date Filed: 09/15/2016       Page: 15 of 24


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.


                                                15
             Case: 15-13220     Date Filed: 09/15/2016   Page: 16 of 24


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.




                                         16
              Case: 15-13220     Date Filed: 09/15/2016      Page: 17 of 24


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. 12-13785-

DD, 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.


                                           17
             Case: 15-13220    Date Filed: 09/15/2016   Page: 18 of 24


      To understand what AHCA indicated in its briefing in Case No. 12-13785-

DD 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


                                        18
             Case: 15-13220         Date Filed: 09/15/2016       Page: 19 of 24


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.


                                               19
             Case: 15-13220     Date Filed: 09/15/2016       Page: 20 of 24


“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.
                                           20
               Case: 15-13220       Date Filed: 09/15/2016       Page: 21 of 24


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.
                                               21
             Case: 15-13220    Date Filed: 09/15/2016   Page: 22 of 24


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.


                                         22
             Case: 15-13220     Date Filed: 09/15/2016    Page: 23 of 24


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.


                                          23
             Case: 15-13220      Date Filed: 09/15/2016   Page: 24 of 24


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.




                                          24
