               Case: 12-13785       Date Filed: 09/20/2013      Page: 1 of 19


                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 12-13785
                              ________________________

                          D. C. Docket No. 1:11-cv-20684-JAL


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

                                            versus

INTERIM SECRETARY, FLORIDA AGENCY FOR
HEALTH CARE ADMINISTRATION,
Elizabeth Dudek,

                                                                      Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                   (September 20, 2013)

Before HULL, MARTIN, Circuit Judges, and BOWEN,* District Judge.

       *
        Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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HULL, Circuit Judge:

      Plaintiffs-Appellees K.G., I.D., and C.C., through their next friends, sued

Defendant-Appellant Elizabeth Dudek, in her official capacity as Interim Secretary

for the Florida Agency for Health Care Administration. Plaintiffs alleged that

Dudek violated the Medicaid Act by denying Medicaid coverage of applied

behavioral analysis to treat Plaintiffs’ autism spectrum disorders. After a four-day

bench trial, the district court granted Plaintiffs a permanent injunction, concluding

that Medicaid covered this treatment for the Plaintiffs. K.G. ex rel. Garrido v.

Dudek, 864 F. Supp. 2d 1314 (S.D. Fla. 2012). The district court subsequently

granted Plaintiffs a declaratory judgment. K.G. ex rel. Garrido v. Dudek, 1:11-cv-

20684-JAL (D.E. 144) (S.D. Fla. June 14, 2012). This appeal concerns the scope

of the permanent injunction and declaratory judgment. After review and with the

benefit of oral argument, we affirm in part, but reverse and remand to the district

court for modification of the permanent injunction and declaratory judgment.

                                I. BACKGROUND

      To understand the issues in this appeal, we briefly outline the Medicaid

program and its coverage of certain medically necessary services.

A.    Regulatory Framework

      Medicaid is a cooperatively funded federal-state program designed to help

states provide medical treatment to their needy citizens. States devise and fund


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their own medical assistance programs, subject to the requirements of the federal

Medicaid Act, and the federal government provides partial reimbursement. See 42

U.S.C. §§ 1396b(a), 1396d(b). A state’s participation in the Medicaid program is

voluntary, but once a state chooses to participate it must comply with federal

statutory and regulatory requirements. See Alexander v. Choate, 469 U.S. 287,

289 n.1, 105 S. Ct. 712, 714 n.1 (1985). All states, including Florida, participate in

the Medicaid program. Florida administers its Medicaid program through the

Agency for Health Care Administration (“AHCA”). See Fla. Stat. §§ 409.901(2),

409.902.

      Under the Medicaid Act, participating states must provide “early and

periodic screening, diagnostic, and treatment services” (“EPSDT”) for Medicaid-

eligible minors under the age of 21. 42 U.S.C. § 1396d(a)(4)(B). The EPSDT

program mandates four specific categories of services: screening, vision, dental,

and hearing services. 42 U.S.C. § 1396d(r)(1)–(4). Additionally, the catch-all

EPSDT provision in § 1396d(r)(5)—the most relevant to this appeal— mandates

that participating states provide to Medicaid-eligible minors “[s]uch other

necessary health care, diagnostic services, treatment, and other measures described

in [§ 1396d(a)] to correct or ameliorate defects and physical and mental illnesses

and conditions discovered by the screening services, whether or not such services

are covered under the State plan.” Id. § 1396d(r)(5).


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      In turn, § 1396d(a) lists 29 covered categories of care and services, including

preventive and rehabilitative services. Id. § 1396d(a)(13). Thus, under

§ 1396d(r)(5), a state must provide a service listed in § 1396d(a) to a Medicaid-

eligible minor—even if the state does not provide that service to Medicaid-eligible

adults—if the service is necessary to “correct or ameliorate” a condition or defect

discovered during an EPSDT screen.

      Another relevant component of the federal Medicaid Act is its comparability

requirement provision, which ensures equitable treatment of beneficiaries. Under

this provision, “the medical assistance made available to any [eligible] individual

. . . shall not be less in amount, duration, or scope than the medical assistance made

available to any other such individual.” 42 U.S.C. § 1396a(a)(10)(B)(i); see also

id. § 1396a(a)(10)(B)(ii).

      However, federal regulations provide that each service covered by Medicaid

“must be sufficient in amount, duration, and scope to reasonably achieve its

purpose” and the state Medicaid agency “may place appropriate limits on a service

based on . . . medical necessity.” 42 C.F.R. § 440.230. Although neither the

Medicaid Act nor its implementing regulations explicitly define the standard of

“medical necessity,” “it has become a judicially accepted component of the federal

legislative scheme.” Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1232 (11th

Cir. 2011). The Medicaid Act and its implementing regulations grant the authority


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to the states to set reasonable standards for the terms “necessary” and “medical

necessity.” See 42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 440.230(d); see also Moore,

637 F.3d at 1255. Thus, as permitted by the federal Medicaid Act, Florida statute

authorizes Medicaid coverage for only those services that are “medically

necessary.” Fla. Stat. §§ 409.905, 409.906. Under Florida’s regulatory scheme,

“medically necessary” or “medical necessity” means that

      the medical or allied care, goods, or services furnished or ordered
      must . . . [m]eet the following conditions:
      1. Be necessary to protect life, to prevent significant illness or
      significant disability, or to alleviate severe pain;
      2. Be individualized, specific, and consistent with symptoms or
      confirmed diagnosis of the illness or injury under treatment, and not in
      excess of the patient’s needs;
      3. Be consistent with generally accepted professional medical
      standards as determined by the Medicaid program, and not
      experimental or investigational;
      4. Be reflective of the level of service that can be safely furnished,
      and for which no equally effective and more conservative or less
      costly treatment is available statewide; and
      5. Be furnished in a manner not primarily intended for the
      convenience of the recipient, the recipient’s caretaker, or the provider.

Fla. Admin. Code r. 59G-1.010(166)(a).

      Accordingly, for a treatment to be “medically necessary” and covered by

Florida Medicaid, the treatment must be, inter alia, “individualized [and] specific,”

“not in excess of the patient’s needs,” and “not experimental.” Id. A treatment is

“experimental” when, for example, “[r]eliable evidence shows that the consensus

among experts regarding the drug, device, or medical treatment or procedure is that


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further studies or clinical trials are necessary to determine its maximum tolerated

dose, toxicity, safety, or efficacy as compared with the standard means of treatment

or diagnosis.” Fla. Admin. Code r. 59G-1.010(84)(a)3.

       Florida’s Medicaid coverage of behavioral health services is found at Florida

Administrate Code rule 59G-4.050, which incorporates by reference the Florida

Medicaid Community Behavioral Health Services Coverage and Limitations

Handbook (the “Handbook”). See Fla. Admin. Code r. 59G-4.050(2)(3). The

Handbook delineates the specific behavioral health services that are covered by

Florida’s Medicaid program. As relevant here, a portion of the Handbook, entitled

“Service Exclusions,” stated that “Medicaid does not pay for community

behavioral health services for treatment of autism [or] pervasive developmental

delay.” Handbook Rule 2-1-4.

B.     Factual Background

       Plaintiffs K.G., I.D., and C.C. are minors under the age of 21who receive

Florida Medicaid due to their disabling conditions and their parents’ income status.

All three Plaintiffs were diagnosed with autism or autism spectrum disorders

(“ASD”) 1 during EPSDT screens and were all prescribed applied behavioral

analysis (“ABA”) treatment by their treating physicians. ABA is a type of early
       1
         Full-blown autism “is a complex neurodevelopmental disability that generally appears
during the first three years of life and impacts the normal development of the brain, resulting in
impairments of social interaction, verbal and non-verbal communication, leisure or play
activities, and learning.” Autism is one condition in a spectrum of other pervasive development
disorders, collectively called autism spectrum disorders (“ASD”).
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intensive behavioral interaction health service that uses a structured, one-on-one

program to treat the behavioral problems associated with ASD.

      Because Plaintiffs’ conditions were discovered during EPSDT screens,

Florida Medicaid must provide any treatment “necessary” “to correct or

ameliorate” those conditions, whether or not the treatment is covered by the state’s

plan. See 42 U.S.C. § 1396d(r)(5). As noted above, such services were excluded

from Florida Medicaid coverage as memorialized in Handbook Rule 2-1-4.

Furthermore, after the lawsuit was filed, AHCA determined that community

behavioral health services like ABA were experimental and thus not medically

“necessary” for the treatment of ASD. See Fla. Admin. Code r. 59G-

1.010(166)(a)3. In accordance with its policy at that time, AHCA denied

Plaintiffs’ requests for Medicaid coverage of ABA treatment.

C.    Procedural History

      Plaintiff K.G., through his next friend, Iliana Garrido, filed his complaint on

February 28, 2011 against Elizabeth Dudek, the Secretary of AHCA and the State

of Florida’s Medicaid administrator. K.G. alleged that, under 42 U.S.C. § 1983,

AHCA’s denial of ABA treatment violated the Medicaid Act’s EPSDT provision

and comparability provision.

      In his complaint, K.G. sought: (1) a declaration that the Handbook’s

exclusion of behavioral health services for treatment of ASD violates the Medicaid


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Act; and (2) a preliminary and permanent injunction directing AHCA to: (a) amend

the Handbook “to delete the exclusion of behavioral health services for treatment

of autism and pervasive developmental delay”; (b) amend the Handbook “to

include coverage of medically necessary behavioral health services, including

ABA, for treatment of autism spectrum disorders in children and youth under age

21”; and (c) “[e]nsure that Plaintiff receives Medicaid coverage for ABA therapy

consistent with the recommendations of his treating physician.”

      On March 10, 2011, K.G. filed his First Amended Motion for Preliminary

Injunction. After a hearing, a magistrate judge issued a report recommending the

district court grant the motion. On November 1, 2011, the district court adopted

the magistrate judge’s report and directed the Secretary to “provide Medicaid

coverage for K.G.’s ABA therapy as prescribed by his treating physician.” K.G.

ex rel. Garrido v. Dudek, 839 F. Supp. 2d 1254, 1268 (S.D. Fla. 2011). This

preliminary injunction only addressed K.G.’s claims.

      Meanwhile, on September 12, 2011, K.G. filed his First Amended

Complaint, in which I.D. and C.C. were added as plaintiffs seeking the same relief

as K.G.

      On October 21, 2011, the parties filed cross-motions for summary judgment.

The district court denied the motions, finding disputed issues of fact concerning

AHCA’s determination that ABA treatment was experimental, and set the case for


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a bench trial.

        Evidence adduced at the bench trial included testimony from AHCA

employees concerning the agency’s process for determining whether a certain

treatment or service should be covered under Florida’s Medicaid plan. K.G. ex

rel. Garrido v. Dudek, 864 F. Supp. 2d 1314, 1322 (S.D. Fla. 2012). AHCA

employees testified further that the standard process was not followed in the

agency’s determination of whether ABA was experimental. Id. at 1322–24.

Plaintiffs presented evidence from numerous experts that ABA is the standard

means of treating ASD. Id. at 1325–26. Plaintiffs also presented evidence

concerning the necessity of ABA treatment in Plaintiffs’ individual cases. Id. at

1327.

        After trial, the district court announced from the bench that it would grant

Plaintiffs a permanent injunction. The district court concluded that ABA falls

within the scope of 42 U.S.C. § 1396d(a)(13) as a preventive or rehabilitative

service, and thus the state of Florida is required to provide that service to

Medicaid-eligible minors under age 21 if necessary to correct or ameliorate a

condition discovered in an EPSDT screen under § 1396d(r)(5). Further, the

district court found “that applied behavioral analysis is medically necessary and

not experimental, as defined under Florida statutory and administrative law and

federal law.” Consequently, the “determination by AHCA that ABA is


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experimental was unreasonable in its process, was arbitrary and capricious and

unreasonable in its conclusion.”

         Based on these findings, the district court concluded that Plaintiffs had

clearly established that Florida’s exclusion of ABA for Medicaid-eligible minors

with ASD violated the EPSDT and comparability provisions of the federal

Medicaid Act. The district court stated that “[t]he Medicaid population of children

diagnosed with autism and/or autism spectrum disorder [is] deserving and will be

given ABA treatment in the state of Florida.” The district court found further

         that there is irreparable injury if the Plaintiffs and all persons under 21
         who receive Medicaid assistance in the state of Florida do not receive
         applied behavioral analysis treatment, those persons under 21 who
         have been diagnosed with autism and/or autism spectrum disorder.
                Therefore, as of this moment, I enjoin the Defendants from
         enforcing the [Handbook] Rule 2-1-4 as it relates to autism, and the
         State of Florida is hereby ordered to provide ABA treatment when it is
         appropriately prescribed by a medical professional immediately.

The district court said that its oral ruling would be supplemented by a written

order.

         A few days later, the district court entered an order issuing the permanent

injunction. In that order, the district court restated its findings that “ABA is

‘medically necessary’ and is not ‘experimental’ as defined under Florida

administrative and federal law,” K.G. ex rel. Garrido, 864 F. Supp. 2d at 1320, and

“that the determination by AHCA that ABA is experimental was arbitrary,

capricious, and unreasonable both in its process and in its conclusion,” id. at 1321–
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22.

      In light of its findings, the district court concluded that Plaintiffs had

satisfied all four factors necessary to obtain a permanent injunction, because: (1)

Plaintiffs had established AHCA’s exclusion of ABA coverage violated the

Medicaid Act; (2) “there is no adequate remedy at law for the violation of this

right”; (3) “there would be irreparable injury to Plaintiffs and all Medicaid-eligible

minors in Florida who have been diagnosed with autism or ASD if these children

do not receive ABA pursuant to this injunction”; and (4) the public interest

weighed in favor of issuing the injunction and further, “paying for the cost of ABA

for autistic children will ultimately save public funds.” Id. at 1327; see also Angel

Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008)

(describing four-factor test for obtaining a permanent injunction).

      The district court ordered the following relief:

      1.    As of 10:50 a.m. on March 26, 2012, Defendant is enjoined
      from enforcing [Handbook] Rule 2-1-4 as it relates to autism, Autism
      Spectrum Disorder, and Applied Behavioral Analysis treatment.

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

      3.    Defendant shall notify all community behavioral health services
      providers enrolled in the Medicaid program that ABA is now a
      covered service for children who have been diagnosed with autism or
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      Autism Spectrum Disorder.

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

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

      6.    Defendant shall take whatever additional steps are necessary for
      the immediate and orderly administration of ABA treatment for
      Medicaid-eligible persons under the age of 21 who have been
      diagnosed with autism or Autism Spectrum Disorder.

      7.    Defendant shall certify in an affidavit filed with the Court
      within seven (7) calendar days that numbers 3 through 6 of this Order
      have been accomplished.

K.G. ex rel. Garrido, 864 F. Supp. 2d at 1327–28.

      The district court also stated that “[t]he [c]ourt will address Plaintiffs’ claims

regarding a declaratory judgment in a forthcoming Order.” Id. at 1327 n.28.

      Two months later, the district court directed the parties to file status reports

concerning their respective positions on a declaratory judgment, and the parties

complied. Plaintiffs’ status report included a 42-paragraph proposed declaratory

judgment order. Three days later, the district court marked through the word

“proposed” in the heading of Plaintiffs’ proposed declaratory judgment order and

signed and entered that document as an order of the court.




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                           II. STANDARD OF REVIEW

      “We review the decision to grant an injunction and the scope of the

injunction for abuse of discretion,” Angel Flight of Ga., Inc., 522 F.3d at 1208, but

we “review the district court’s underlying legal conclusions de novo,” Am. Fed. of

State, Cnty., & Mun. Emps. v. Scott, 717 F.3d 851, 862 (11th Cir. 2013).

Similarly, we review the district court’s grant of declaratory relief for an abuse of

discretion. See Frulla v. CRA Holdings, Inc., 543 F.3d 1247, 1251 (11th Cir.

2008). Under that abuse-of-discretion standard, “we will leave undisturbed a

district court’s ruling unless we find that the district court has made a clear error of

judgment, or has applied the wrong legal standard.” Ameritas Variable Life Ins.

Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005).

                                 III. DISCUSSION

      At the outset we note that Defendant Dudek does not challenge either

Plaintiffs’ entitlement to ABA treatment as a covered Medicaid service or that

section of the permanent injunction invalidating the Handbook Rule excluding

ABA treatment from Medicaid coverage.

      Rather, Dudek appeals the scope of the permanent injunction and declaratory

judgment, contending that both go beyond what was necessary to afford Plaintiffs

complete relief. Dudek argues that the district court entered an injunction that


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impermissibly provides that all autistic Medicaid recipients under the age of 21

with a prescription for ABA are automatically entitled to ABA treatment,

regardless of the medical necessity of ABA treatment in any individual case. Thus,

Dudek contends, the injunction interferes with Florida’s policy decision to limit

Medicaid coverage to medically necessary services, and it deprives AHCA of its

statutory responsibility to assess the medical necessity of prescribed services in

individual cases. Plaintiffs respond that the permanent injunction and declaratory

judgment do not eliminate individual medical necessity determinations.

      It is axiomatic that “[i]njunctive relief should be limited in scope to the

extent necessary to protect the interests of the parties.” Keener v. Convergys

Corp., 342 F.3d 1264, 1269 (11th Cir. 2003). “That rule dovetails with the

requirement of Federal Rule of Civil Procedure 65(d) that every injunction state in

specific terms and reasonable detail the conduct that it restrains or requires.” Alley

v. U.S. Dep’t of Health & Human Servs., 590 F.3d 1195, 1205 (11th Cir. 2009)

(citing Fed. R. Civ. P. 65(d)). “[T]he specificity requirements of Rule 65(d) are

‘designed to prevent uncertainty and confusion on the part of those faced with

injunctive orders, and to avoid the possible founding of a contempt citation on a

decree too vague to be understood.’” S.E.C. v. Goble, 682 F.3d 934, 950 (11th

Cir. 2012) (quoting Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 715

(1974)). “But, we will not apply Rule 65(d) rigidly, and we determine the


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propriety of an injunctive order by inquiring into whether the parties subject

thereto understand their obligations under the order.” Id. (internal quotation marks

omitted).

      We turn to the text of the permanent injunction. It is true that the district

court’s order for injunctive relief is broadly worded and is not explicitly limited to

the provision of “medically necessary” ABA treatment for eligible recipients. In

the final section of the injunction, Paragraph 2 states that “the State of Florida is

hereby ordered to provide, fund, and authorize Applied Behavioral Analysis

treatment to Plaintiffs K.G., I.D., and C.C., as well as to all Medicaid-eligible

persons under the age of 21 in Florida who have been diagnosed with autism or

Autism Spectrum Disorder, as prescribed by a physician or other licensed

practitioner.” K.G. ex rel. Garrido, 864 F. Supp. 2d at 1328 (emphasis added).

Likewise, Paragraph 6 states that “Defendant shall take whatever additional steps

are necessary for the immediate and orderly administration of ABA treatment for

Medicaid-eligible persons under the age of 21 who have been diagnosed with

autism or Autism Spectrum Disorder.” Id. (emphasis added).

      Despite this broad language in the district court’s published ruling, we must

also consider the context in which this relief was ordered. Alley, 590 F.3d at 1208

n.12 (“Although the parties to an injunction must be able to ascertain from the four

corners of the order precisely what acts are forbidden, that rule does not preclude


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an examination of context.” (citations omitted)). Earlier in the order, the district

court found that “ABA is ‘medically necessary’ and is not ‘experimental’ as

defined under Florida administrative law and federal law.” K.G. ex rel. Garrido,

864 F. Supp. 2d at 1320. After this statement, the district court cited Florida’s

administrative rule delineating what is required for a treatment to be “medically

necessary,” and specifically cited subsection 3 stating that a medically necessary

treatment may not be experimental. Id. (citing Fla. Admin. Code r. 59G-

1.010(166)(a)(3) (in order to be “medical necessary” or a “medical necessity,”

treatment must “[b]e consistent with generally accepted professional medical

standards as determined by the Medicaid program, and not experimental or

investigational”)). Moreover, the district court followed this finding and citation

with the statement that “[t]he role of the [district c]ourt is to decide whether

AHCA’s determination that ABA is experimental was reasonable.” Id. at 1321

(emphasis added). Plainly, despite the district court’s broad order of relief at the

end of the permanent injunction, the district court appeared to confine its analysis

to a determination of whether ABA is experimental—one consideration, among

many, to be used in AHCA’s determination of whether a treatment is medically

necessary in an individual patient’s case. See Fla. Admin. Code r. 59G-

1.010(166)(a).

      Indeed, the question of individual medical necessity determinations—other


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than those of Plaintiffs K.G., I.D., and C.C.—was explicitly not before the district

court. In the parties’ amended joint pretrial stipulation, the parties agreed that a

settled issue of law was that “[f]or any individual Medicaid recipient, the recipient

has the burden of proving that a service is medically necessary.” Instead, the focus

of the evidence at the bench trial and the district court’s findings was whether

ABA treatment is experimental and consequently whether AHCA could

categorically deny this form of treatment as being, in its judgment, medically

unnecessary. Still, the language of the district court’s ruling made it appear that

the district court had made a wholesale determination that ABA is always

medically necessary to treat a Medicaid-eligible minor’s ASD.

      However, in denying Dudek’s motion for a partial stay pending this appeal,

the district court said that its permanent injunction did not eliminate individual

medical necessity determinations. We accord some weight to the fact that the

district court charged with enforcing the injunction is enforcing the injunction in

the way that Dudek advocates. See Alley, 590 F.3d at 1202 (“[G]reat deference is

due the interpretation placed on the terms of an injunctive order by the court who

issued and must enforce it.’” (quoting Williams v. City of Dothan, Ala., 818 F.2d

755, 760 (11th Cir. 1987))). In fact, the district court has already denied one

motion for contempt filed by pro se nonparties and premised on the

misunderstanding that the district court’s permanent injunction order automatically


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entitled those nonparties to Medicaid coverage of ABA treatment.

       In sum, the district court did not abuse its discretion in issuing a permanent

injunction that overrules AHCA’s determination that ABA is experimental (and

AHCA’s larger determination that ABA is never medically necessary) and requires

Medicaid coverage of this treatment. And it is apparent that the district court is

enforcing the injunction in that manner. However, because the language in the

injunction’s final section is out of step with the district court’s analysis and what

was actually decided, we vacate the injunction in part and remand to the district

court to modify Paragraphs 2 and 6 to read as follows:

       2.     As of 10:50 a.m. on March 26, 2012, the State of Florida is
       hereby ordered to provide, fund, and authorize Applied Behavioral
       Analysis treatment to Plaintiffs K.G., I.D., and C.C.. 2
       ....
       6.     Defendant shall take whatever additional steps are necessary for
       the immediate and orderly administration of ABA treatment to
       Plaintiffs K.G., I.D., and C.C.. 3

       For the same reasons described above, we vacate in part and remand the

declaratory judgment with directions that the district court amend the declaratory

judgment as follows:


       2
          This modification deletes the part of paragraph 2 that formerly stated: “as well as to all
Medicaid-eligible persons under the age of 21 in Florida who have been diagnosed with autism
or Autism Spectrum Disorder, as prescribed by a physician or other licensed practitioner.”
        3
          This modification deletes the part of paragraph 6 that formerly stated: “for Medicaid-
eligible persons under the age of 21 who have been diagnosed with autism or Autism Spectrum
Disorder.”


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       On page 6 of the declaratory judgment, the following should be added to the

declaration concerning EPSDT:

       29. This declaration does not eliminate the Defendant’s authority to
       make individual medical necessity determinations, in accordance with
       governing law and regulations.

       On page 7 of the declaratory judgment, the following should be added to the

declaration concerning comparability:

       43. This declaration does not eliminate the Defendant’s authority to
       make individual medical necessity determinations, in accordance with
       governing law and regulations.

                                      IV. CONCLUSION

       For the reasons set forth above, we affirm in part, but reverse and remand to

the district court for modification of the injunction and declaratory judgment in the

manner prescribed above. The district court should publish the permanent

injunction order, as revised, in its entirety and the declaratory judgment order, as

revised, in its entirety so that each of the complete orders is available in one

document.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART. 4




       4
        Plaintiffs’ motion for leave to file supplemental briefing, or, alternatively, to strike
portions of Dudek’s reply brief, carried with the case, is DENIED.
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