United States v. State of Florida

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12331

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STATE OF FLORIDA,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:12-cv-60460-DMM

____________________

Before JORDAN, BRASHER, and ABUDU, Circuit Judges.

JORDAN, Circuit Judge:

This appeal arises from over a decade of litigation between

the United States and Florida regarding the institutionalization

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2 Opinion of the Court 23-12331

(and risk of institutionalization) of children with medically complex

conditions.

In 2013, the U.S. Department of Justice filed suit against Flor-

ida on behalf of hundreds of medically complex children alleging

discrimination under Title II of the Americans with Disabilities Act,

42 U.S.C. §§ 12131–12134. The United States alleged that Florida

discriminated against these children in violation of the ADA by fail-

ing to provide care for them in the most integrated setting appro-

priate to their needs. See Olmstead v. L.C. ex rel Zimring, 527 U.S.

581, 597 (1999) (“Unjustified isolation . . . is properly regarded as

discrimination based on disability.”). In other words, the United

States asserted that Florida was failing to provide families with the

at-home or group-home care they needed, causing some children

to be unnecessarily institutionalized and placing others at serious

risk of institutionalization. And once a child was institutionalized,

the United States claimed, Florida’s deficient care coordination and

transition planning services made it difficult for their families to

bring them back home. See id. (“In evaluating a State’s fundamen-

tal-alteration defense, [a] [d]istrict [c]ourt must consider, in view of

the resources available to the state, not only the cost of providing

community-based care to the [individual], but also the range of ser-

vices the state provides others with mental disabilities, and the

state’s obligation to mete out those services equitably.”). 1

1 For simplicity, we use the term “parents” for both guardians and parents.

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The lawsuit slowly made its way through the legal system,

including one previous trip to this court, before reaching trial. See

United States v. Florida, 938 F.3d 1221, 1244–45 (11th Cir. 2019)

(United States I) (holding that the Attorney General of the United

States had statutory authority to sue Florida for violations of Title

II of the ADA). The district court laid out the case’s procedural

history in detail, and we won’t repeat it here.

Following a two-week trial, the district court found that

Florida’s failure to provide adequate services to medically complex

children constituted an Olmstead violation under the ADA. See

United States v. Florida, 682 F. Supp. 3d 1172 (S.D. Fla. 2023) (Flor-

ida). The court separately entered a permanent injunction which,

among other things, requires Florida to improve its care coordina-

tion and ensure that all medically complex children receive at least

90% of the at-home nursing services for which they qualify. Florida

moved for a stay of the injunction pending appeal, and we granted

that motion in part as to some aspects of the injunction.

After a careful review of the lengthy record, and with the

benefit of oral argument, we hold as follows: (1) the United States

has the authority to sue Florida for injunctive relief for violations

of federal law (like the ADA) and can obtain relief that is not limited

to individual children who filed administrative complaints or oth-

erwise sued individually; (2) the district court generally did not err

in finding that the United States established the required Olmstead

elements; (3) the Olmstead violations were widespread and war-

ranted a system-wide injunction; and (4) the permanent injunction

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4 Opinion of the Court 23-12331

was within the court’s discretion, with the exception of a few pro-

visions. We therefore affirm the court’s liability determinations

and affirm in part and reverse in part the permanent injunction.

I. BACKGROUND

In Florida, hundreds of low-income children under the age

of 21 have disabilities or medically complex conditions that require

daily medical services. These services include the use of equipment

for communication, mobility, breathing, and eating, as well as the

use and maintenance of feeding tubes, breathing tubes, ventilators,

and wheelchairs. In order to receive such life-sustaining services,

these children—whom we refer to as medically complex children

or children with medical complexities—rely on Florida’s Medicaid

program.

Medicaid is a joint venture between the federal and state

governments: both entities pay, the state administers, and the fed-

eral government regulates and oversees. In Florida, the Agency for

Health Care Administration administers Medicaid. Individuals

with disabilities as defined by the ADA are eligible to receive health

care through Medicaid. Most children with medically complex

conditions are covered by Medicaid.

The Medicaid Act’s Early and Periodic Screening, Diagnos-

tic, and Treatment (EPSDT) provisions require participating states

like Florida to cover all services that: (a) are provided to recipients

under 21 years of age; (b) the Medicaid Act permits or requires a

state to cover under a Medicaid State Plan; and (c) are medically

necessary to correct or ameliorate defects and physical and mental

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illnesses and conditions. States define when Medicaid services are

“medically necessary.” If a state determines that a service is medi-

cally necessary, it must provide that service to Medicaid recipients.

Most Florida Medicaid recipients receive services through

the AHCA-administered statewide Medicaid managed-care pro-

grams. See generally Fla. Stat. § 409.965. Florida contracts with pri-

vate companies that provide managed care to enrolled Medicaid

recipients. It pays each managed-care plan a monthly amount for

each enrollee based on per-member-per-month capitated rates, and

managed-care plans pay enrollees’ providers according to rates

they negotiate with those providers. Most children with medical

complexities in Florida are covered by a managed-care plan.

Florida’s contracts with managed-care plans require the

plans to “take any and all necessary action to ensure that all medi-

cally necessary covered services are provided to enrollees with rea-

sonable promptness, including . . . [u]tilizing out-of-network pro-

viders,” and “[u]sing financial incentives to induce network or out-

of-network providers to accept an enrollee as a patient/client and

provide all medically necessary covered services with reasonable

promptness.” D.E. 840 at Part VI ¶ 13. They also set forth certain

provider network requirements, including the minimum number

of provider types, which is two home health agencies per county.

The managed-care plans negotiate contracts with service providers

to ensure that members have access to providers in all categories

of care, though AHCA has full responsibility for the

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implementation of managed-care plans. Managed-care plans can

raise their base rates to incentivize providers on an individualized

basis.

AHCA can use several contractual mechanisms if managed-

care plans do not fully comply, including a corrective action plan,

liquidated damages, and sanctions. AHCA also controls licensure

requirements for at-home providers and establishes fee-for-services

reimbursement rates for such providers. See Fla. Stat. §§ 400.062,

400.464, 409.908; Fla. Admin. Code § 59G-4.002(3)(a).

Medicaid reimburses nursing facilities at a rate of up to

$679.01 per day per child, whereas a managed-care plan reimburses

at the same or higher daily rate. Some Medicaid recipients receive

services on a fee-for-service basis under which AHCA pays a flat

rate to providers for each service. In a managed-care plan the pri-

vate company sets its own rates with AHCA’s oversight, while in a

fee-for-services program AHCA sets the provider reimbursement

rate.

As relevant to this appeal, Florida’s Medicaid program in-

cludes nursing facilities, private duty nursing, and care coordina-

tion. We discuss each of these programs, and some of the district

court’s findings, below.

A. NURSING FACILITIES

There are two options for medically complex children to re-

ceive required medical care: in a community setting (i.e., at home

or in a group home), or in a state facility (i.e., an institution).

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Children in assisted care facilities receive skilled nursing

from facility staff. Florida currently has three such institutions:

Children’s Center at Sabal Palms Health and Rehabilitation in

Largo; Kidz Korner (Plantation Nursing and Rehabilitation Center)

in Plantation; and Broward Children’s Center (Children’s Compre-

hensive Care Center) in Pompano Beach. Approximately 140 med-

ically complex children currently reside in one of these institu-

tions. 2

To admit a child to a nursing facility, Florida requires a Chil-

dren’s Multidisciplinary Assessment Team (CMAT)—comprised of

representatives from AHCA, the Department of Health, the

Agency for Persons with Disabilities, the Department of Children

and Families, and any managed-care plan—to decide whether a

child meets the admission care-criteria level and, if so, make a rec-

ommendation for admittance. See Fla. Admin. Code § 59A-

4.1295(3)(b). Florida’s internal procedures require CMATs to use

a family-centered approach and to provide information about alter-

natives to nursing facilities. Florida regulates care and discharge

planning for children residing in nursing facilities. See Fla. Admin.

Code § 59A-4.1295.

2 During the course of this lawsuit, three of the six state facilities shut down.

See Florida, 682 F. Supp. 3d at 1191 (noting that the Justice Department was

originally investigating six facilities); Carol Marbin Miller, ‘Just Another Baby for

Them.’ Parents, Feds Fight for Kids Stuck in Florida Nursing Homes, Miami Herald

(May 7, 2023), available at https://perma.cc/8Z8W-LHJ8; Carol Marbin Mil-

ler, Under Fire, Miami-Dade Nursing Home Closing Its Pediatric Unit, Miami Her-

ald (Jan. 31, 2013), available at https://perma.cc/DB8S-5KRC.

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The living conditions and quality of care at these facilities

vary. For example, a number of parents described, in testimony

and interviews, the neglect their children experienced at some of

these institutions. One parent reported that her child was abused,

causing his leg to fracture, while at Kidz Korner. Another parent

said that her child almost died because the facility had failed to re-

pair its generators in advance of a hurricane. Another parent stated

in an interview that her child was starved at the since-shuttered

Westminster Care of Orlando facility. Another parent alleged that

her child developed bedsores due to neglect at the Broward Chil-

dren’s Center. She sought to bring him home for fear that he

would die if he remained at the facility. Significantly, some parents

also testified that they wanted to bring their children home but

were prevented from (or delayed in) doing so due to the lack of

care available.

B. PRIVATE DUTY NURSING

Medically complex children who live at home or in commu-

nity settings rely on Medicaid-funded nurses who come to the

home and provide skilled care. This program, called Private Duty

Nursing (PDN), provides medically necessary, life-sustaining care

that can include monitoring and maintenance of feeding tubes,

breathing tubes, and ventilators, depending on the needs of the

child. Approximately 1,800 medically complex children currently

live in home or community settings and rely on Medicaid-funded

PDN.

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Once a provider indicates that a child needs PDN, a man-

aged-care plan reviews and authorizes the number of hours of PDN

a child requires (up to 24 hours per day for medically complex chil-

dren), and contracts with a home health agency to provide the

PDN at home.

At trial, the United States’ expert, Dr. Sara “Sally” Bachman,

evaluated how Florida provided PDN to children with medical

complexities by comparing the number of PDN hours children re-

ceived versus the number of hours they were authorized to receive

during the 2021 fiscal period. Her evaluation showed that:

• Almost 94% of the children with medical complexity re-

ceived fewer PDN hours than they were authorized to re-

ceive.

• Of the 1,956 children included in the data, only 6.5% (or 128

children) received all of their authorized PDN hours, while

almost 1,800 received fewer PDN hours than authorized by

the managed-care plans.

• On average, children received only 70–80% of their author-

ized PDN hours.

o About 58% of the children received less than 80% of

their authorized PDN hours.

o About 25% of the children received less than 60% of

their authorized PDN hours.

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• Only 6% of children received 24 hours/day of PDN even

though 22% of children were authorized for 24 hours/day

of PDN.

• Only up to 40% of the children received 90% or more of

their authorized PDN hours in a majority of counties.

• In two counties, 81–100% of the children received 90% or

more of their authorized PDN hours.

According to Dr. Bachman, there were no discernible geo-

graphic patterns, and the county-by-county data indicated that “a

national nursing shortage is not primarily responsible for the gaps

in providing PDN.” Florida, 682 F. Supp. 3d at 1211; D.E. 908 at

105–09. Florida’s Medicaid expert, Gary Jessee, agreed with this

conclusion. Dr. Bachman explained that not receiving medically

necessary care places those nearly 1,800 children who received less

than their authorized PDN “at risk” of institutionalization. See D.E.

909 at 100.

In addition to the fiscal-year-2021 reports, Dr. Bachman also

examined some June 2022 data covering about 2,000 children to see

if the COVID-19 pandemic had affected PDN provision. Her June

2022 analysis showed that:

• In a limited subset of counties, 80–100% of children received

80% or more of their authorized PDN hours.

• In two counties, some children received 0–20% of their au-

thorized PDN hours.

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• Statewide, more than 50% of authorized PDN hours were

not paid for.

Florida’s expert, Mr. Jessee, obtained the same results. See D.E.

1170 at 36; D.E. 912 at 36.

After hearing lengthy testimony from parents and experts

from both sides, the district court made two overarching factual

findings pertaining to PDN: (1) families of medically complex chil-

dren are being denied access to adequate PDN; and (2) the problem

is widespread. See Florida, 682 F. Supp. 3d at 1210–13. The court

concluded that “the main impediment to children leaving nursing

facilities is the lack of PDN . . . [and] the lack of PDN is a significant

factor that places children with medical complexity who are living

at home at risk of entering a nursing facility.” Id. at 1210.

C. CARE COORDINATION

Care coordination is an essential service provided by a

trained person—usually a nurse or social worker—to ensure that a

child’s care plan is delivered properly. All Florida children who re-

ceive nursing care through Medicaid, whether in a facility or

through PDN, receive care coordination. Florida “relies on care

coordinators to inform children’s families about available services

and how to access those services; assist families to transition their

children out of institutions, with needed services in place; and assist

families in accessing services necessary for their children to remain

safely in the community.” D.E. 840 at Part VI ¶ 94.

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The district court identified a number of problems with care

coordination in Florida, including care coordinators’ (1) inability to

facilitate adequate PDN access; (2) failure to inform parents about

alternatives to institutionalization; and (3) failure to effectively fa-

cilitate transition planning. See Florida, 682 F. Supp. 3d at 1213–14.

We describe these below.

1. INABILITY TO FACILITATE ADEQUATE PDN ACCESS

A number of care coordinators testified that their clients

consistently have staffing issues, and that they have few tools to

address those issues beyond repeatedly calling agencies to try and

fill open PDN shifts. The care coordinators also explained that pay-

ing better rates would mitigate the staffing issues. For instance,

one care coordinator testified that, when she worked in home

health and could not fill a shift for a patient for many weeks, “as

soon as we started offering more money, the shifts would start to

be covered.” D.E. 908 at 113. She added that, “on a regular basis,”

children’s families would need medical equipment, but could not

get it due to insurance coverage problems. See id. at 107.

Another care coordinator, who testified as a witness for Flor-

ida, agreed that it is very difficult to get PDN and agreed that offer-

ing more money is a useful tool to solve shortages. She explained

that low pay impacts PDN staffing because “most people are going

to go where the money is unless they are extremely passionate

about what they do.” D.E. 899 at 116.

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Based on this testimony, the district court found that care

coordinators were unable to effectively facilitate the access of fam-

ilies to PDN. See Florida, 682 F. Supp. 3d at 1214–15.

Multiple care coordinators further testified that they under-

report parental dissatisfaction with PDN levels. The district court

found that the “reports do not accurately portray the extent of the

failure.” Id. at 1214.

2. FAILURE TO INFORM PARENTS ABOUT ALTERNATIVES TO

INSTITUTIONALIZATION

The district court found that “[t]here is a widespread failure

to affirmatively inform families that they have alternatives to plac-

ing their children in a nursing facility.” Florida, 682 F. Supp. 3d at

1215. The “[t]estimony at trial was replete with examples of par-

ents and caregivers being given no information or misinfor-

mation[.]” Id. For example, a number of parents testified that their

care coordinators had never discussed housing or other commu-

nity care settings, including the option of a group home. See id.

Florida’s witnesses acknowledged that parents need more infor-

mation. See id.

Witnesses on both sides agreed that institutionalization

should be a last resort. The district court accordingly found that

information about realistic alternatives is the first step to ensuring

that children “are residing in facilities only because they need to be,

or because their families made a knowing decision regarding their

placement there.” Id.

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3. FAILURE TO EFFECTIVELY FACILITATE TRANSITION PLANNING

Even in the best of circumstances, bringing a medically com-

plex child home from an institution is not an easy task—it requires

training, equipment, nursing, and arrangements for schooling and

therapy. The district court determined, based on the families’ tes-

timony, that the transition process was “fraught with hurdles that

should not exist.” Florida, 682 F. Supp. 3d at 1216.

Parents seeking to bring their children home testified that

they were discouraged or faced pushback. They were provided

with inaccurate information about whether their homes would be

suitable, and it was unclear to many how to effectively express their

preference to bring their child home. In addition to feeling ig-

nored, parents also lacked clarity about when and how the transi-

tion process begins. Florida attributed these concerns to parents’

failure to make “formal requests” to transition home. But the dis-

trict court rejected this contention, finding that “there was no indi-

cation that anyone ever explained to families what such a formal

request looked like, what form it took, or to whom it needed to be

communicated.” Id. at 1216. According to the court, the process

of training parents to provide care and safely operate equipment

also posed a barrier because Florida does not have procedures in

place to implement the training. See id.

The district court described parents’ “desperation in trying

to unite their family and bring their child with medical complexity

home.” Id. at 1179. Parents detailed how “[c]onfusing and incon-

sistent discharge requirements and [c]are [c]oordination, delays in

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obtaining necessary equipment, and most significantly, limited ac-

cess to prescribed private duty nursing presented a maze almost

impossible for parents to escape.” Id.

Ultimately, the district court found that “Florida should do

more to ensure that proper [c]are [c]oordination is delivered.” Id.

at 1216. The court found the care coordinators to be “dedicated,

competent, and genuinely concerned about the children and fami-

lies they serve.” Id. at 1214. And it noted that the care coordinators

generally “share the same frustrations as the parents and are pow-

erless to address them in any meaningful fashion.” Id.

D. THE DISTRICT COURT’S ULTIMATE FINDINGS

By the close of the two-week trial—which included testi-

mony from family members, pediatricians, nursing facility staff,

Medicaid experts, and state officials—the district court was “con-

vinced that the deficit of PDN in Florida is causing systemic insti-

tutionalization.” Florida, 682 F. Supp. 3d at 1183. The court char-

acterized this problem as systemic because the vast majority of

“children with medical complexity (1,800 out of 1,956 children) re-

ceived less than the PDN hours authorized by the managed[-]care

plans,” and the lack of access to PDN was the cause of institution-

alization. See id. at 1183, 1243 n.55. Moreover, as to the 139 insti-

tutionalized children, the district court found—relying on the ex-

pert testimony and visit to one institution—that these children are

“segregated from the community while they are institutionalized”

Id. at 1227.

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As discussed in greater detail below, the district court found

that the United States had established the three Olmstead criteria

necessary to show an ADA violation: (1) appropriateness; (2) non-

opposition; and (3) reasonable accommodation. See Olmstead, 527

U.S. at 601. The court concluded that Florida “is violating the

rights of children with medical complexity who rely upon the pro-

vision of vital Medicaid services and are trying, in vain, to avoid

growing up in nursing homes.” Florida, 682 F. Supp. 3d at 1180.

E. THE INJUNCTION

In July of 2023, the district court issued a permanent injunc-

tion “focused on remedying the failures shown at trial.” Id. at 1243.

The court initially set an anticipated term of 24 months for the in-

junction, but for the most part it has remained in effect past that

date.

Among other things, the injunction requires Florida to do

the following:

1. Ensure that 100% of children receive the “minimally neces-

sary PDN for integration”—90% of authorized PDN hours;

2. Set a maximum caseload for care coordinators, create a

training curriculum, and ensure that care coordinators are

adequately communicating with families and that families

can file complaints;

3. Develop and document transition plans for each child cur-

rently residing in or who “may be admitted to a Nursing Fa-

cility” and regularly discuss barriers to discharge;

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4. Collect data regarding PDN, care coordination, and nursing

facility patients; and

5. Appoint and pay for a monitor to review compliance.

See D.E. 1171 at 4–10.

In February of 2024, we granted in part Florida’s motion for

a stay pending appeal, and stayed several provisions of the district

court’s permanent injunction: Parts III.D (training curriculum for

care coordinators), III.E (reporting mechanism for failure to pro-

vide PDN hours), V.A.2 (data collection on care coordinators’ cur-

riculum completion and caseload), VI.C (enabling the monitor to

hire staff/consultants, requiring Florida to produce certain data

and facilitate production of documents by third parties, and ena-

bling the monitor to interview parties), VI.D (enabling ex parte

communication between the monitor and the parties), VI.E (re-

quiring bi-monthly reports by the monitor), and VI.F (requiring

Florida to pay for the monitor). 3

F. THE APPEAL

On appeal, Florida argues that the district court incorrectly

interpreted and applied the three Olmstead criteria by making the

inquiry more general and less individualized than it should have

3 While the appeal was pending, we relinquished jurisdiction on the parties’

motion to permit the district court to strike one of the permanent injunction’s

requirements—Part II.C, which required Florida to conduct transition plan-

ning meetings with parents of institutionalized children every three months

for an indefinite period of time. That aspect of the injunction is therefore no

longer at issue.

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been. First, Florida maintains that the district court inappropriately

found that all children currently residing in institutions could be

appropriately cared for in a community setting if Florida provided

adequate services. Second, Florida contests the court’s finding that

most parents are not opposed to bringing their children home, ar-

guing that the court mistakenly looked to parents’ “aspirations for

the future” rather than the “actual conditions.” Third, Florida con-

tends that the court ordered accommodations that were first dis-

closed after trial and thus not subject to evidentiary testing.

Florida also asserts that the district court’s systemwide in-

junction is an inappropriate remedy because the United States

failed to prove widespread unlawful institutionalization. It claims

that the injunction is overbroad, unachievable, and offends princi-

ples of federalism.

Finally, Florida submits that the United States lacks author-

ity to enforce the rights of children who never initiated the ADA’s

administrative enforcement process, despite our decision in United

States I, 938 F.3d at 1234–35. 4

In an appeal from a bench trial resulting in a permanent in-

junction, we review findings of fact for clear error, determinations

4 After a panel of this court held that the Attorney General could bring this

action, see United States I, 938 F.3d at 1244–45, Florida sought en banc review.

The court declined to take the case en banc. See United States v. Sec’y Fla. Agency

for Health Care Admin., 21 F.4th 730 (11th Cir. 2021) (United States II). Florida

then filed a petition for certiorari, which the Supreme Court denied. See Flor-

ida v. United States, 143 S. Ct. 89 (2022).

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of law de novo, and the provisions of the injunction for abuse of dis-

cretion. See U.S. Commodity Futures Trading Comm’n v. S. Tr. Metals,

Inc., 894 F.3d 1313, 1322 (11th Cir. 2018). Under the clear error

standard, a factual “finding that is ‘plausible’ in light of the full rec-

ord—even if another is equally or more so—must govern.” Cooper

v. Harris, 581 U.S. 285, 293 (2017). The abuse of discretion standard

is “deferential.” United States v. Tsarnaev, 595 U.S. 302, 323 (2022).

It therefore provides the district court with a “wide range of

choice.” BLOM Bank SAL v. Honickman, 605 U.S. 204, 217 (2025)

(quotation omitted). We therefore will not reverse unless the court

committed a “clear error of judgment.” United States v. Frazier, 387

F.3d 1244, 1259 (11th Cir. 2004) (en banc).

II. THE UNITED STATES’ AUTHORITY TO SUE

When this case was previously before us, we held that the

Attorney General of the United States had statutory authority to

sue Florida to enforce the provisions of Title II of the ADA. See

United States I, 938 F.3d at 1244–45. In its brief, Florida again reas-

serts its argument that the Attorney General does not have such

authority to sue. It does so to preserve that contention, under-

standing that we—as a later panel—are bound by the holding in

United States I. See Br. for Appellant at 51. We therefore do not

discuss the issue further.

Florida also argues that Congress “did not grant the United

States an unbounded, freestanding right to enforce the rights of

thousands of children.” Id. In its view, the United States cannot

sue on behalf of those individuals who “never initiated the

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enforcement process.” Id. at 52. It points out that only one child

(C.M.) ever filed an administrative complaint, and says that his

claim was resolved in a separate proceeding years ago. See id. (cit-

ing A.R. v. Fla. Agency for Health Care Admin., 769 F. App’x 718 (11th

Cir. 2019)).

Although this is one of the last arguments in Florida’s brief,

we address it first because it goes to the ability of the United States

to maintain this action and obtain injunctive relief. For a number

of independent reasons, we reject Florida’s contention.

First, Florida’s characterization of C.M.’s previous claim is

not quite correct. C.M. was a plaintiff in a separate action in which

the Olmstead claims were based on a different and narrow challenge

to certain state policies that were subsequently changed. As a re-

sult, those specific claims became moot. See A.R., 769 F. App’x at

721 (“In dismissing the case in its entirety, the district court ruled

that [Florida] had unambiguously terminated its use of the chal-

lenged policy—application of the ‘convenience standard’ in as-

sessing whether private-duty nursing treatment was medically nec-

essary—rendering the case moot, and that no remaining plaintiff

had standing to challenge [Florida’s] administration of its Pre-Ad-

mission Screening and Resident Review program. After careful

consideration and with the benefit of oral argument, we agree with

the district court and therefore affirm.”).

Here, C.M. is challenging other Florida policies and prac-

tices under Olmstead. So C.M., who filed an administrative com-

plaint, was a proper plaintiff in this case and the Attorney

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23-12331 Opinion of the Court 21

General—even on Florida’s view—could sue to enforce Title II of

the ADA. Indeed, in United States I, we held that the “legislative,

regulatory, and precedential background of the statutes that Con-

gress incorporated demonstrate that Congress intended to create a

system of federal enforcement for Title II of the ADA.” 938 F.3d at

1245.

Second, we are not persuaded by Florida’s contention that

the United States’ enforcement authority is limited to suing on be-

half of those individual children who filed administrative com-

plaints. When we held in United States I that the Attorney General

could sue to enforce the provisions of Title II of the ADA, we did

so in the same cause of action that is before us now—a suit in which

the United States was suing for the benefit of a large group of med-

ically complex children. And although the administrative enforce-

ment process may begin with the filing of a complaint by one or

more individuals, see United States II, 21 F. 4th at 733 ( Jill Pryor, J.,

concurring in the denial of rehearing en banc), nothing in our prior

opinion limits the United States to enforcing federal law on behalf

of only those individuals who submitted administrative com-

plaints. Congress “envisioned that, through the ADA, the federal

government would take ‘a central role in enforcing the standards

established in this chapter on behalf of individuals with disabilities,’

and invoked ‘the sweep of congressional authority, including the

power to enforce the [F]ourteenth [A]mendment and to regulate

commerce’ to ‘address the major areas of discrimination faced day-

to-day by people with disabilities.’” United States I, 938 F.3d at 1226

(citation omitted).

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22 Opinion of the Court 23-12331

It is “perfectly competent for Congress to authorize the

United States to be the guardian of th[e] public interest in a suit for

injunctive relief.” United States v. Raines, 362 U.S. 17, 27 (1960) (cit-

ing United Steelworkers of Am. v. United States, 361 U.S. 39, 43 (1959)).

And when the United States sues in its governmental capacity to

enforce federal law, the relief it can obtain is not limited to identifi-

able individuals whose experiences are used to prove the violations.

As we explained in an ADEA case, when the EEOC brings

an action, it is “normally entitled to [broad] injunctive relief where

it proves discrimination against one employee and the employer

fails to prove that the violation is not likely to recur.” EEOC v. Mas-

sey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1253 (11th Cir.

1997). Indeed, “there would be little point in [the Commission]

having the independent power to sue if it could not obtain relief

beyond that fashioned for the individual claimant”; the “EEOC rep-

resents the public interest when litigating claims, and, through in-

junctive relief, seeks to protect not only the rights of the individual

claimant, but those of similarly-situated employees by deterring

the employer from future discrimination.” Id. (citation omitted).

The same is true here.

Third, in United States I, 938 F.3d at 1250, we held that Title

II of the ADA adopts the remedial mechanisms of the Rehabilita-

tion Act and Title VI. And under those federal laws, the United

States is not limited to suing on behalf of, and seeking relief for,

only those who have complained through administrative channels.

See 14 Wright & Miller, Fed. Prac. & Proc. Juris. § 3652 (4th ed. 2017

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23-12331 Opinion of the Court 23

& Sept. 2025 supp.) (“When the United States is seeking injunctive

relief to restrain violation of a statute, it is recognized that the bal-

ancing of the equities is a different one from that of the court when

weighing claims of two private litigants. . . . [T]he United States

has broader rights vis-à-vis the states than would a private litigant.”)

(internal quotation marks omitted).

For example, in United States v. Marion County School District,

625 F.2d 607 (5th Cir. 1980), the United States filed suit under Title

VI against a local school district to compel specific assurance that it

would not continue its “policy of racial discrimination against

[B]lacks in the assignment of students in [its] public schools.” Id. at

608. The district court dismissed the complaint, ruling that the

United States had no authority to institute the suit, but we reversed

on that point. See id. at 609–13. In closing, we explained that the

United States could seek broad remedies—like the busing of stu-

dents—to prevent racial discrimination: “[W]e conclude that the

United States is entitled to sue to enforce contractual assurances of

compliance with Title VI’s prohibition against discrimination in the

operation of federally-funded schools, and that the United States is

entitled to whatever relief is necessary to enforce such assurances,

including ‘transportation relief.’” Id. at 617.

And in United States v. Board of Trustees, 908 F.2d 740 (11th

Cir. 1990), the United States filed suit under the Rehabilitation Act

against the University of Alabama at Birmingham for denying aux-

iliary aids to certain handicapped students. Even though only one

complaint against UAB had been filed with the Department of

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24 Opinion of the Court 23-12331

Health, Education, and Welfare—by a deaf student whose request

for services of a sign language interpreter at UAB’s expense was

initially denied—at the time of trial there were 175 handicapped

students at UAB, and eight of them suffered from a severe hearing

impairment. See id. at 742. The district court found that UAB vio-

lated the Rehabilitation Act by failing to “provide interpreter ser-

vices to deaf students who were unable to procure such services

elsewhere free of charge and who were not eligible for financial aid

for such services[,]” and by failing to “provide any auxiliary aids to

students in non-degree programs[.]” Id. at 743. Based on these li-

ability findings, the court permanently enjoined “UAB from deny-

ing students auxiliary aids based on financial ability, and from re-

fusing to grant auxiliary aids to non-credit or non-degree students,”

and “also ordered UAB to reimburse one family for money they

spent on interpreter services.” Id. at 743–44. Although the injunc-

tion provided relief to a number of handicapped students at UAB,

and not just the single deaf student who had filed a complaint with

the Department, we affirmed the broad grant of injunctive relief.

See id. at 752. The scope of the injunction was not at issue in Board

of Trustees, but the case is additional confirmation that when the

United States sues as sovereign and proves a violation of federal

law, the relief it obtains can benefit a group of persons, and not just

those who have pursued administrative remedies or have filed indi-

vidual actions of their own.

We note that the Supreme Court addressed the bounds of

“the equitable authority that Congress has granted to federal

courts” to award injunctive relief after this case was briefed and

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23-12331 Opinion of the Court 25

argued. See Trump v. CASA, Inc., 606 U.S. 831, 837 (2025). The dis-

trict court did not have the benefit of the Supreme Court’s deci-

sion, but the reasoning in CASA supports state-wide relief in this

context because “[t]he equitable tradition has long embraced the

rule that courts generally may administer complete relief between

the parties.” Id. at 851 (emphasis in original) (internal quotation

marks and citation omitted). Thus, when the United States asserts

its sovereign interest to remedy a state’s violation of federal law,

and proves state-wide violations, complete relief may be state-

wide. See id.

Fourth, Florida seems to misunderstand the general princi-

ples that govern the ability of the United States to sue in its sover-

eign capacity to enforce federal law. The United States generally

has standing to sue when it alleges an “injury to its sovereignty aris-

ing from violation of its laws[.]” Vermont Agency of Nat. Res. v.

United States ex rel. Stevens, 529 U.S. 765, 771 (2000). See also United

States v. Missouri, 114 F.4th 980, 984 (8th Cir. 2024) (“The United

States has a legally protected interest in enforcing federal law.”);

Stauffer v. Brooks Bros., 619 F.3d 1321, 1325 (Fed. Cir. 2010) (“[A] vi-

olation of [the] [federal] statute inherently constitutes an injury to

the United States . . . . The parties have not cited any case in which

the government has been denied standing to enforce its own law.”);

United States v. Arlington Cnty., 669 F.2d 925, 929 (4th Cir. 1982)

(“The United States can sue to enforce its policies and laws, even

when it has no pecuniary interest in the controversy.”). Accord 13B

Wright & Miller, Fed. Prac. & Proc. Juris. § 3531.11 (3d ed. 2010 &

Sept. 2025 supp.) (“Standing to pursue the general interests of the public

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26 Opinion of the Court 23-12331

is easily recognized when federal officials responsible for enforcing

specific statutory schemes bring suit under the aegis of the stat-

ute.”) (emphasis added); United States v. Brittain, 319 F. Supp. 1058,

1060–61 (N.D. Ala. 1970) (“[T]his case is one brought by the United

States as plaintiff—to protect and assert a substantial interest which

it has in the invalidation of these [Alabama anti-miscegenation]

laws— and in which the particular complaint of the Voyers [the

mixed-race couple which was denied a marriage license] stands

more as an example of the problems than as the source upon which

general relief can be grounded . . . . A judgment will be entered,

declaring null, void and violative of the Fourteenth Amendment of

the Constitution the Alabama laws in question; enjoining the State

of Alabama, its officers, agents, employees, and their successors,

and all those acting in concert or participation with them from en-

forcing or giving any effect to such laws; and requiring the Attorney

General of the State of Alabama to advise the Judges of Probate of

the several counties of Alabama of the invalidity of Title 14, Sec-

tion 361, 1940 Code of Alabama under the decision of this

Court.”).

III. THE OLMSTEAD VIOLATIONS

A. GENERAL LEGAL STANDARD

The ADA’s “sweeping purpose” is to “eliminate discrimina-

tion against disabled individuals, and to integrate them ‘into the

economic and social mainstream of American life.’” PGA Tour, Inc.

v. Martin, 532 U.S. 661, 675 (2001) (first quoting S. Rep. No. 101-

116, at 20 (1989), and then quoting H.R. Rep. No. 101-485, pt. 2, at

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23-12331 Opinion of the Court 27

50 (1990), U.S. Code Cong. & Admin. News 1990, pt. 2, at 303,

332)). Historically, disabilities were stigmatized, and those with

disabilities were regularly placed in institutions with little to no

contact with the outside world. See 42 U.S.C. § 12101(a)(2). Con-

gress therefore identified “isolat[ion] and segregat[ion]” of disabled

persons by society as a “for[m] of discrimination,” and noted that

discrimination against the disabled “persists in such critical areas

as . . . institutionalization[.]” 42 U.S.C. §§ 12101(a)(2), (3)–(5).

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by

any such entity.” 42 U.S.C. § 12132. As Congress instructed, the

Attorney General issued Title II regulations, including an “integra-

tion regulation,” directing that “[a] public entity shall administer

services, programs, and activities in the most integrated setting ap-

propriate to the needs of qualified individuals with disabilities.” 28

C.F.R. § 35.130(d) (emphasis added). The most integrated appro-

priate setting is the “setting that enables individuals with disabilities

to interact with nondisabled persons to the fullest extent possible.”

28 C.F.R. Pt. 35, App. B at 703.

Olmstead, the landmark Supreme Court case defining a

state’s obligation to provide care in the most integrated setting, in-

volved two women with psychiatric conditions who had a history

of treatment in institutional settings. See 527 U.S. at 593. The

women’s treating physicians had determined that a community

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28 Opinion of the Court 23-12331

setting would be appropriate for each one. See id. Despite these

medical determinations, both women remained in an institutional

setting for an additional two to three years (and one was not moved

to a community setting until after the district court issued judg-

ment in the case). See id.

A majority of the Supreme Court held in Part III.A that

“[u]njustified isolation . . . is properly regarded as discrimination

based on disability.” Id. at 597. The Court explained that “institu-

tional placement of persons who can handle and benefit from com-

munity settings perpetuates unwarranted assumptions that per-

sons so isolated are incapable or unworthy of participating in com-

munity life,” and that “confinement in an institution severely di-

minishes the everyday life activities of individuals, including family

relations, social contacts, work options, economic independence,

educational advancement, and cultural enrichment.” Id. at 600–01.

Accordingly, these assumptions result in dissimilar treatment be-

cause “[i]n order to receive needed medical services, persons with

mental disabilities must, because of those disabilities, relinquish

participation in community life they could enjoy given reasonable

accommodations, while persons without mental disabilities can re-

ceive the medical services they need without similar sacrifice.” Id.

at 601. 5

5 In Olmstead, a majority of Justices joined Parts I, II, and III.A of the main

opinion. Justices Stevens and Kennedy filed separate concurring opinions.

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23-12331 Opinion of the Court 29

The Court concluded that a person with disabilities must be

placed in a community setting if:

(1) the state’s “treatment professionals have determined that

community placement is appropriate”;

(2) “the transfer from institutional care to a less restrictive

setting is not opposed by the affected individual”; and

(3) “the placement can be reasonably accommodated, taking

into account the resources available to the [s]tate and the

needs of others with mental disabilities.”

Id. at 587. These three Olmstead criteria are referred to as (1) ap-

propriateness, (2) non-opposition, and (3) reasonable accommoda-

tion.

B. DISCUSSION

Again, we review legal conclusions de novo and factual find-

ings for clear error. See Jones v. Governor of Fla., 975 F.3d 1016, 1028

(11th Cir. 2020) (en banc).

1. RISK OF INSTITUTIONALIZATION

Florida challenges whether the 1,800 children in community

settings—as opposed to the approximately 140 institutionalized

children—suffer the sort of harm that Title II and Olmstead address.

That is, before reaching the three Olmstead criteria to determine

whether institutionalization is unjustified (and thus constitutes dis-

ability discrimination), Florida asks us to hold that a risk of unjusti-

fied institutionalization is not discrimination under the ADA.

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30 Opinion of the Court 23-12331

Although Florida advances this argument as its first chal-

lenge to liability in its reply brief, in its opening brief it frames this

argument as going to the scope of the injunction. As a result, the

liability argument that Florida has reframed in its reply brief is not

properly before us. We have repeatedly declined to review issues

or arguments raised for the first time in a reply brief. See Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014). Such

“arguments come too late.” Id. (citations omitted).

We note, moreover, that Florida’s argument as to children

at risk of institutionalization, even if accepted, does not affect the

district court’s liability findings and conclusions as to the 139 chil-

dren who are institutionalized. The court specifically found an

Olmstead violation based on the families which testified their chil-

dren were institutionalized “as a direct consequence of lack of

PDN.” Florida, 682 F. Supp. 3d at 1212. That is, children eligible

for medical foster care were unnecessarily institutionalized because

of Florida’s lack of effort “to match specific children now in nursing

facilities with parents.” Id. at 1219.

We also alternatively reject Florida’s untimely at-risk liabil-

ity argument on the merits as set out below. 6

6 Florida also argues that allowing at-risk children to prevail on an Olmstead

claim runs afoul of Article III’s requirement that an injury be certainly impend-

ing. To be clear, we reject all three versions of this argument and endeavor

not to “confuse [Florida’s claims of] weakness on the merits with absence of

Article III standing.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n,

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23-12331 Opinion of the Court 31

Six of our sister circuits have allowed similar ADA claims by

individuals at risk of institutionalization (but not yet institutional-

ized). See Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v.

Delia, 709 F.3d 307, 322 (4th Cir. 2013); Waskul v. Washtenaw Cnty.

Cmty. Mental Health, 979 F.3d 426, 460 (6th Cir. 2020); Steimel v.

Wernert, 823 F.3d 902, 911 (7th Cir. 2016); Radaszewski ex rel.

Radaszewski v. Maram, 383 F.3d 599, 608, 615 (7th Cir. 2004); M.R.

v. Dreyfus, 663 F.3d 1100, 1118 (9th Cir. 2011), amended by 697 F.3d

706 (9th Cir. 2012); Fisher v. Okla. Health Care Auth., 335 F.3d 1175,

1181 (10th Cir. 2003). One has not. See United States v. Mississippi,

82 F.4th 387, 393 (5th Cir. 2023) (holding that the risk of institution-

alization was not an Olmstead violation). 7

576 U.S. 787, 800 (2015) (alteration adopted) (internal quotation marks omit-

ted).

7 Judge Brasher says that we have overstated the circuit split. We fail to follow

the line that he draws—that is between whether a plaintiff can bring a pre-

institutionalization Olmstead claim and whether a plaintiff can proceed with an

Olmstead claim for injunctive relief based on inadequate community care caus-

ing a serious risk of institutionalization. See, e.g., Steimel, 823 F.3d at 914–18

(allowing the plaintiffs to proceed past summary judgment in a suit for injunc-

tive relief because “the integration mandate is implicated where the state’s

policies have either (1) segregated persons with disabilities within their homes,

or (2) put them at serious risk of institutionalization”). We also believe we

have counted the circuits correctly, and scholars agree with our math. See

Craig Ismaili, Adrienne Langlois, & Bren Pramanik, Defending Olmstead: Strat-

egies for Combatting Institutional Bias to Improve Access to Mental Health Services in

the Least Restrictive Setting, 34 Annals Health L. 139, 169 (2025) (“Six different

circuits have allowed ADA/Olmstead claims based on the risk of institutional-

ization.”); Zachary E. Shapiro, Chaarushena Deb, Caroline Lawrence, Allison

Rabkin Golden, Jaclyn Wilner, Allison Durkin, Zoe M. Adams, Wenqing

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32 Opinion of the Court 23-12331

For example, analyzing injury in the context of assessing ir-

reparable harm for a preliminary injunction, the Ninth Circuit con-

cluded that a regulation resulting in reduced home care hours “ex-

acerbate[d]” the risk of institutionalization and “therefore in-

flict[ed] cognizable irreparable injury[.]” M.R., 663 F.3d at 1111.

And the Sixth Circuit explained that the fact that none of the three

plaintiffs had been institutionalized during the course of the litiga-

tion “sa[id] nothing about whether [they] have been compelled to

forgo necessary medical services in order to remain in the commu-

nity during that time.” Waskul, 979 F.3d at 461 (citation omitted).

“Nor does it reflect on the actual imminence of Plaintiffs’ institu-

tionalization—indeed, that could happen at any moment that

Plaintiffs are unable to sustain their own care.” Id. See also M.G.

through Garcia v. Armijo, 117 F.4th 1230, 1244–45 (10th Cir. 2024)

(ruling that “a continued shortage of allotted PDN hours will very

likely subject M.G. and C.V. to medical harm, institutionalization,

or death” for the medically vulnerable child plaintiffs in a Medicaid

Act case). We agree with the reasoning in these cases and the oth-

ers setting out the majority view.

Moreover, we disagree with Florida’s rigid reading of the

ADA. See Reply Br. for Appellant at 1 (“Nothing in the ADA’s text

Zhao, Keturah James, Adam Pan, Megan S. Wright, & Joseph J. Fins, Olmstead

Enforcements for Moderate to Severe Brain Injury: The Pursuit of Civil Rights Through

the Application of Law, Neuroscience, and Ethics, 95 Tul. L. Rev. 525, 569 (2021)

(grouping Pasby, 709 F.3d at 322, and Fisher, 335 F.3d at 1881–82 with M.R.,

663 F.3d at 1102, to support the proposition that Olmstead’s “holding also pro-

tects individuals at risk of institutionalization”).

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23-12331 Opinion of the Court 33

supports the ‘at risk’ theory.”). In our view, the text and structure

of Title II (and Olmstead) confirm its applicability to the children

currently in community care here. See 42 U.S.C. § 12132. As the

Supreme Court has explained, Congress’ use of broad language in

Title II “demonstrates breadth” in its reach. See Pennsylvania Dep’t

of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (citation omitted). See also

A. Scalia & B.A. Garner, Reading Law: The Interpretation of Legal

Texts 101, 104–05 (2012) (utilizing Title II as an exemplar of the

general-terms canon—the “traditional” principle of interpretation

that provides “the presumed point of using general words is to pro-

cedure general coverage—not to leave room for courts to recog-

nize ad hoc exceptions”). 8

Further, the statutory and regulatory innerworkings of Title

II impose an obligation to at-risk children; a public entity must con-

tinually “administer services, programs, and activities in the most

integrated setting appropriate to the needs of qualified individuals

with disabilities[,]” while also ensuring those individuals are not ex-

cluded from, denied the benefits of, and discriminated against by

its services and programs. See 28 C.F.R. § 35.130(d). See also 42

U.S.C. § 12132. We thus decline to read Title II to exclude disabled

children, who are continually participating in these covered ser-

vices, from Olmstead’s protection against undue

8 Judge Brasher attempts to distinguish Yeskey. But we do not suggest that

Yeskey is on all fours with this case; we cite Yeskey, 524 U.S. at 212, only for the

proposition that Title II is broad in its reach.

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34 Opinion of the Court 23-12331

institutionalization, and hold that the risk of institutionalization

may constitute discrimination.

We also disagree with the reasoning in Mississippi, 82 F.4th

at 392–98. The Fifth Circuit’s fundamental premise—that

“[n]othing in the text of Title II, its implementing regulations, or

Olmstead suggests that a risk of institutionalization, without actual

institutionalization, constitutes actionable discrimination”—as-

sumes that there must be statutory or constitutional provisions that

contain a specific “at risk” clause enabling prospective relief to ad-

dress imminent harm. See id. at 392. That is not the case. Injunc-

tive relief, both preliminary and permanent, is meant to prevent the

occurrence of harms that the relevant statute prohibits. See United

States v. W. T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of

an injunction is to prevent future violations[.]”) (citing Swift & Co.

v. United States, 276 U.S. 311, 326 (1928)).

Whether a statute has rights-imbuing language is a separate

question from whether a particular plaintiff has submitted proof

of a substantial risk of imminent harm. In other words, once we

(or the Supreme Court) determine that a statute creates a right and

remedy, there is no legal basis for imposing a distinct requirement

that the text must specifically protect plaintiffs “at risk” of an im-

minent statutory violation beyond the confines of Article III. That

is why the law generally allows pre-enforcement challenges to im-

minent violations of statutory rights. See, e.g., Havens Realty Corp.

v. Coleman, 455 U.S. 363, 374 (1982) (holding that the Fair Housing

Act allows plaintiffs lacking “any intention of buying or renting a

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23-12331 Opinion of the Court 35

home” to sue discriminatory realtors for injunctive relief based on

the “statutorily created right to truthful housing information”); Ho-

nig v. Doe, 484 U.S. 305, 321 (1988) (under the EHA (now the IDEA),

a court may grant prospective relief based on the risk of future stat-

utory violations where “the lack of a state policy governing local

school responses to disability-related misconduct had led to, and

would continue to result in, EHA violations”); Fla. State Conf. of

NAACP v. Browning, 522 F.3d 1153, 1158 (11th Cir. 2008) (allowing a

pre-enforcement challenge to a Florida voter registration statute

based, in part, on “statutory claims” under § 303 of HAVA, § 2 of

the Voting Rights Act of 1965, Title I of the Civil Rights Act of

1964, and the National Voter Registration Act, in addition to con-

stitutional claims). Accord Pickern v. Holiday Quality Foods Inc., 293

F.3d 1133, 1138 (9th Cir. 2002) (in the Title III public accommoda-

tions context, “a plaintiff who is threatened with harm in the future

because of existing or imminently threatened non-compliance with the

ADA” may bring a claim) (emphasis added); Braidwood Mgmt. v.

EEOC, 70 F.4th 914, 926 (5th Cir. 2023) (allowing “an as-applied pre-

enforcement challenge to how RFRA interacts with Title VII and

Bostock” to proceed). Thus, it is plain to us that a family need not

wait until a child is institutionalized to sue for prospective relief to

prevent Title II discrimination under Olmstead when that family can

prove substantial risk of imminent harm. 9

9 Additionally, Mississippi is factually distinguishable.There, the Fifth Circuit

said that “a theory framed on the ‘risk of unjustified institutionalization’ [was]

particularly inapt” because the “only way to be admitted to a state mental

health hospital in Mississippi is through a judicial commitment proceeding.”

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36 Opinion of the Court 23-12331

Finally, we see no clear error in the district court’s factual

findings regarding the risk of institutionalization and its holding

that the United States established the threshold injury (i.e., harm)

in this case. See Florida, 682 F. Supp. 3d at 1185, 1219–20. The med-

ically complex children in question are on Medicaid. Their fami-

lies—whose income is necessarily below the Medicaid threshold—

tend to be in a financially precarious situation and face housing in-

security. See id. at 1199–1206. When skilled care workers (like

nurses) do not show up, the parents must fill these care gaps them-

selves. See id. For those in or near poverty, this can be a particu-

larly heavy burden; parents may miss shifts at work or be forced to

give up their jobs. See id. at 1201–02, 1214. The lost income in turn

can affect a family’s ability to make rent, therefore placing its mem-

bers at risk of eviction. For example, one mother testified that due

to persistent gaps in PDN, she was forced to care for her son her-

self, causing her to miss work, which ultimately reduced her in-

come to such an extent that she lost her home—and her son had to

be placed in a nursing home. See id. at 1204–05. Given this evi-

dence, it is difficult for us to understand Florida’s broad contention

that there is a discernible and manageable line between institution-

alization and the risk of institutionalization. If the child described

above had been provided resources when he was at risk of

82 F.4th at 393. Here, “[t]o admit a child to a nursing facility, Florida requires

that a Children’s Multidisciplinary Assessment Team (CMAT) meet, decide

whether a child meets the level of care criteria for admission to a nursing fa-

cility, and if so, make a recommendation to admit the child.” Florida, 682 F.

Supp. 3d at 1209. No judicial determination is required.

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23-12331 Opinion of the Court 37

institutionalization, he likely would not have been institutional-

ized. Florida’s crabbed view ignores the realities of life on the

ground.

Moreover, certain medically vulnerable children—for exam-

ple, those who require specialized care like breathing tubes—re-

quire around-the-clock care or they may sustain significant injuries

and even die. One witness testified regarding a baby who had a

tracheotomy and was supposed to receive 24-hour PDN. Because

of PDN staffing gaps, the mother was left alone with her baby. Ac-

cording to the witness, the mother left the room to do laundry, and

when she returned, the baby had pulled his trach out, causing him

to die. See id. at 1213. Another parent described staying awake all

night, setting alarms every 15 to 20 minutes, to ensure that her

daughter’s trach remains in place and that she is still breathing. See

id. at 1201.

That so many of these families have found ways to keep

their children at home—often at great personal sacrifice—does not

lessen the imminence of the future risk they face. Placing one’s

child in an assisted care facility is not a choice that families take

lightly. And, as set out earlier, some parents may justifiably fear

that their children will face neglect at such a facility.

With only three facilities now open in Florida, children may

end up hundreds of miles away from their families, making it diffi-

cult for parents and relatives to visit. Many parents have therefore

made incredible and Herculean efforts to keep their children at

home with them. See id. at 1182. Thus, Florida’s failure to provide

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38 Opinion of the Court 23-12331

consistent coverage and services forces some families to make the

untenable choice between losing income to fill PDN gaps (which

as noted may result in eviction) and placing their children in insti-

tutions. Olmstead applies to the at-risk children in this case.

Florida also invokes Article III’s injury-in-fact requirement

as to at-risk children. We conclude that this requirement was

met. 10

In a lawsuit seeking prospective relief, “[i]t need not be ‘lit-

erally certain’ that the injury will come about” so long as there is a

“substantial” risk. See In re Equifax, 999 F.3d 1247, 1262 (11th Cir.

2021). See also Murthy v. Missouri, 603 U.S. 43, 69 (2024) (explaining

that “substantial risk” is the relevant standard); Dream Defs. v. Gov.

of Fla., 57 F.4th 879, 888 (11th Cir. 2023) (finding that the plaintiffs

satisfied the injury-in-fact requirement by showing a “substantial

risk” of future harm). Thus, in In re Equifax, 999 F.3d at 1262, we

had “no hesitation” in finding a substantial risk of harm where

hackers had obtained the consumers’ personal information, even

10 Again, we note that Florida’s arguments tend to conflate the standing ques-

tion with the resolution of the merits. Whether the United States proved that

there was “institutional isolation of persons with disabilities” is the corner-

stone of the Olmstead injury. See Olmstead, 527 U.S. at 600. We nevertheless

take seriously a plaintiff’s obligation to show “the irreducible constitutional

minimum of standing” to sue: injury-in-fact, causation, and redressability. See

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1991). These elements are “an

indispensable part of the plaintiff’s case” that “must be supported . . . with the

manner and degree of evidence required at the successive stages of the litiga-

tion.” Id. at 561. And so we address Florida’s Article III argument.

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23-12331 Opinion of the Court 39

though it was not certain that each specific consumer would be the

victim of identity theft.

Florida’s actions place children who are at home or in com-

munity settings at substantial risk of institutionalization. This risk

is not hypothetical, nor does it rely on the “highly attenuated chain

of possibilities” the Supreme Court rejected in Clapper v. Amnesty

International USA, 568 U.S. 398, 410 (2013). See also Murthy, 603 U.S.

at 70 (finding no cognizable injury where the future harm alleged

relied on a “speculative chain of possibilities”). Based on the district

court’s well-supported factual findings, the United States satisfied

the substantial risk standard. Given the strong incentives for fami-

lies to keep their children in community settings and the testimony

describing their heroic efforts to do so despite the strain placed on

them by PDN shortages, the risk is not insubstantial.

2. APPROPRIATENESS

Having established that the district court did not err as to the

threshold Olmstead showing of institutionalization or the substan-

tial risk of institutionalization, we turn to the three Olmstead crite-

ria. We begin with appropriateness.

The Supreme Court majority in Olmstead explained that, in

determining whether community-based care is appropriate for an

individual, the state “generally may rely on the reasonable assess-

ments of its own professionals in determining whether an individ-

ual ‘meets the essential eligibility requirements’ for habilitation in

a community-based program.” 527 U.S. at 602 (majority opinion).

With a parenthetical, the Court cited School Board of Nassau County

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40 Opinion of the Court 23-12331

v. Arline, 480 U.S. 273, 288 (1987), for the proposition that “[c]ourts

normally should defer to the reasonable medical judgments of pub-

lic health officials.” The Court “emphasize[d] that nothing in the

ADA or its implementing regulations condones termination of in-

stitutional settings for persons unable to handle or benefit from

community settings.” Olmstead, 527 U.S. at 601–02 (majority opin-

ion).

The Court also noted that appropriateness can change over

time. For example, some people may temporarily need institu-

tional care to “stabilize,” while for others “no placement outside

the institution may ever be appropriate.” Id. at 605 (plurality opin-

ion).

In his concurrence, Justice Kennedy cautioned that the ADA

must not be “interpreted so that States had some incentive, for fear

of litigation, to drive those in need of medical care and treatment

out of appropriate care and into settings with too little assistance

and supervision.” Id. at 610 (Kennedy, J., concurring in the judg-

ment). He agreed with the plurality that “[t]he opinion of a respon-

sible treating physician in determining the appropriate conditions

for treatment ought to be given the greatest of deference.” Id.

The district court ruled that “appropriateness” refers to

whether community placement would be medically appropriate

for children, based on the specifics of their conditions, rather than

other practical concerns like the current housing available to their

families. See Florida, 682 F. Supp. 3d at 1221–22. The court found

that many “of [the] barriers that might exist to home

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23-12331 Opinion of the Court 41

placement . . . are outside the families’ control but often within the

State’s control.” Id. at 1221 (emphasis omitted).

For example, Florida’s iBudget program, which is intended

to help people with disabilities obtain medical equipment and ac-

cessibility adaptations for their homes and vehicles, has years-long

waitlists that render it “useless” to many families. See id. The dis-

trict court found that Florida’s failure to provide adequate re-

sources through its existing programs has helped create the hous-

ing conditions that Florida now claims render community place-

ment inappropriate for the medically complex children. The court

reasoned that “[i]t would defeat the purpose of the law if a defend-

ant could use the effects of its discriminatory conduct against a

plaintiff who is suing for discrimination.” Id. An appropriateness

analysis that relies on practical issues like housing details would

render the process “overly subjective” and “unfair” because “fami-

lies with less means who live in smaller homes are more likely to

find that their children are not appropriate to live in the commu-

nity.” Id.

Florida contends that appropriateness means that the “ac-

tual care setting” the child would be moved to is appropriate to her

needs, not just a “paper review of medical records.” Br. for Appel-

lant at 18, 22. For example, Florida points to a child whose mother

rented a single room without sufficient space to accommodate her

daughter as an example of someone for whom community-based

care should not be deemed appropriate. See Reply Br. for Appellant

at 5.

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42 Opinion of the Court 23-12331

A plurality of the Supreme Court in Olmstead warned in dicta

against a state discharging patients to “inappropriate setting[s],

such as a homeless shelter[.]” 527 U.S. at 605 (plurality opinion).

And Justice Kennedy, in his concurrence, said it would be unrea-

sonable and tragic if the ADA were interpreted in a way that states

“had some incentive, for fear of litigation, to drive those in need of

medical care and treatment out of appropriate care and into set-

tings with too little assistance and supervision.” Id. at 610 (Ken-

nedy, J., concurring in the judgment). But that one line from the

Olmstead plurality—directed at the state’s previous attempt to dis-

charge one of the plaintiffs into a homeless shelter against her ex-

press wishes—represents the only time where the Court men-

tioned housing details with respect to appropriateness.

As the district court correctly discerned, the rest of the

Olmstead analysis focuses on “determining whether an individual

meets the essential eligibility requirements for habilitation in a

community-based program.” Id. at 602 (majority opinion) (empha-

sis added) (internal quotation marks omitted). The analysis fo-

cused on “persons who can handle and benefit from community

settings”—rather than on persons whose families are currently

equipped to provide an adequate setting themselves. See id. at 600

(majority opinion). The Court explained that the state “generally

may rely on the reasonable assessments of its own professionals,”

and clarified in a parenthetical that it was referring to the medical

judgments of State public health officials. See id. at 602 (majority

opinion) (citing Arline, 480 U.S. at 288).

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23-12331 Opinion of the Court 43

The district court here heeded Justice Kennedy’s warning

against pressuring states to discharge patients into “settings with

too little assistance and supervision.” Olmstead, 527 U.S. at 610

(Kennedy, J., concurring in the judgment). But it also appreciated

his emphasis that “[t]he opinion of a responsible treating physician

in determining the appropriate conditions for treatment ought to

be given the greatest of deference.” Id.

We agree with the district court that, in assessing appropri-

ateness under Olmstead, a court must look to determinations made

by medical providers based on a child’s medical conditions. Com-

munity placement is deemed appropriate under Olmstead if the in-

dividuals in question “could live in the community with sufficient

services for which they would be eligible.” Florida, 682 F. Supp. 3d

at 1221. Although a family’s actual living situation may be (and

often will be) relevant, it is not determinative on the matter of ap-

propriateness, and we share the court’s concern that under Flor-

ida’s proposed standard states could decline to provide adequate

services to enable otherwise eligible children to live in community

settings, then use the lack of services to establish that community

placement is inappropriate. See id. Indeed, the record suggests that

the transition planning process, when administered properly, is de-

signed to assist families who wish to do so in addressing barriers to

safely bringing their eligible children back into a community set-

ting, including housing-related issues. See D.E. 906 at 157–58, 213.

Significantly, community-based care can also be provided outside

a family’s personal home, for example in a group home. See Florida,

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44 Opinion of the Court 23-12331

682 F. Supp. 3d at 1223 n.38. So a family’s home situation is not

and cannot be dispositive as to appropriateness.

The district court made the factual determination that the

institutionalized children are capable of community living, based

on evidence that such children do not receive significantly more

frequent attention from doctors than in a home setting; that the

skill level for nurses who serve institutionalized and home care pa-

tients is the same; that trained parents can handle medical emer-

gencies; that institutionalized children would benefit from commu-

nity-based care; and the expert testimony that all 139 institutional-

ized children could be treated in a community setting if appropriate

accommodations were made. See id. at 1223–27. We find no clear

error in these individual or overall factual determinations.

Based on its factual findings, the district court concluded that

appropriateness under Olmstead had been established in two ways.

First, a number of institutionalized children had already been

deemed eligible for community care, and a number of them had

previously lived in community settings (but were institutionalized

because Florida failed to provide adequate PDN staffing). See id. at

1227. As for the group of children at risk of institutionalization,

they are currently receiving community care, meaning that this

type of care is appropriate for them. See id. at 1228. See also

Radaszewski, 383 F.3d at 608 (“There is little doubt that [the plain-

tiff] can be cared for appropriately at home; he has been receiving

care at home since 1994[.]”). Second, the institutionalized children

could live in community settings if Florida provided adequate

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23-12331 Opinion of the Court 45

services. See Florida, 682 F. Supp. 3d at 1228. We agree with the

district court’s reasoning on the first ground, and need not reach

the second ground (though we doubt it was error).

3. NON-OPPOSITION

Next, we address non-opposition under Olmstead, which is

meant to ensure that “the affected persons do not oppose” the

transfer. See Olmstead, 527 U.S. at 607 (plurality opinion). This re-

quirement is based on an ADA provision stating that “[n]othing in

this chapter shall be construed to require an individual with a disa-

bility to accept an accommodation . . . which such individual

chooses not to accept.” 42 U.S.C. § 12201(d). See also 28 C.F.R.

§ 35.130(e)(1). The Supreme Court in Olmstead explained that com-

munity-based treatment need not “be imposed on patients who do

not desire it.” 527 U.S. at 602 (majority opinion) (citation omitted).

The choice to leave an institution is the individual’s and he or she

“must be provided the option of declining.” Id. (quoting 28 C.F.R.

§ 35.130(e)(1) & Pt. 35, App. A, p. 450).

The district court found that, in determining opposition or

non-opposition, “[t]he relevant question is whether service recipi-

ents with disabilities would choose community-based services if

they were actually available and accessible . . . not whether persons

with disabilities (or, in this case, their parents or guardians) would

accept discharge to the community today, with inadequate access

to community-based services.” Florida, 682 F. Supp. 3d at 1232.

The court concluded that “[i]f a service recipient with disabilities

would be open to choosing community based services if such

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46 Opinion of the Court 23-12331

services were available and accessible, then that person is ‘non-op-

posed’ within the meaning of Olmstead.” Id. at 1236.

In order to determine whether parents of currently institu-

tionalized children generally opposed or did not oppose moving

their children to community care settings, the district court relied

on the testimony of three experts for the United States. Those ex-

perts conducted semi-structured interviews with 45 families of the

139 institutionalized children. 11

Based on these interviews, the experts divided the families

into four groups, finding that:

(1) “many families [were] actively seeking to bring their chil-

dren home” from the nursing facilities;

11 Florida claims in a footnote that some of this expert testimony was hearsay

because it presented a synthesis of out-of-court statements made by parents.

But Florida does not cite any controlling or convincing authorities in support

of its assertion, and caselaw explains that experts can rely on hearsay in form-

ing their opinions. See, e.g., Carrizosa v. Chiquita Brands Int’l, Inc., 47 F.4th 1278,

1322–23 (11th Cir. 2022) (“Under Rule 703, an expert may rely on inadmissible

evidence in forming his opinion, but the facts or data must be of the kind that

‘experts in the particular field would reasonably rely on . . . in forming an opin-

ion on the subject.’”) (quoting Fed. R. Evid. 703); Factory Mut. Ins. Co. v. Alon

USA L.P., 705 F.3d 518, 524–26 (5th Cir. 2013) (holding that the district court

did not abuse its discretion in allowing an expert to testify relying on solely on

an estimate made in an out-of-court statement). Florida does not explain why

this principle is inapplicable here. Indeed, the district court overruled Florida’s

hearsay objection, explaining that the United States’ expert applied her exper-

tise to draw inferences from the families’ statements. That evidentiary ruling

was not an abuse of discretion.

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23-12331 Opinion of the Court 47

(2) some families wanted their children home but felt appro-

priate home and community-based services were not suffi-

ciently available to make this preference a reality;

(3) some families were not opposed to their children transi-

tioning to a community-based setting other than their own

homes; and finally

(4) one family was opposed to “transitioning their two chil-

dren from a nursing facility[.]”

See id. at 1233 n.49 (internal citations omitted). Thus, the United

States’ experts concluded that the institutionalized children’s fami-

lies “‘overwhelmingly’ do not oppose community placement for

their children.” Id. at 1233.

Florida asserted below that a number of parents who were

interviewed signed Freedom of Choice forms indicating that they

wanted their children to remain at a nursing facility. The district

court found this factual assertion unpersuasive, reasoning that

checking a box on a form authorizing a child to remain in an insti-

tution does not constitute opposition, because this selection is mo-

tivated by the precise ADA violations being challenged here, in-

cluding Florida’s failure to provide adequate PDN and transition

counseling. See id. at 1235–36.

This factual finding was not clearly erroneous. See Messier v.

Southbury Training Sch., 562 F. Supp. 2d 294, 331–32 (D. Conn.

2008) (finding that a survey asking parents if they would like their

children to remain at a facility was not a proxy for opposition). The

district court reasoned that even if parents are not currently ready

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48 Opinion of the Court 23-12331

to bring their child home due to personal circumstances outside of

Florida’s control, this does not mean that they are opposed to mov-

ing their child to community-based care. See Florida, 682 F. Supp.

3d at 1235–36. The court concluded that the “overall sentiment of

the larger group of parents” constituted non-opposition to commu-

nity-based care. See id. at 1236. And it noted that many families

were actively in the process of getting their children discharged.

See id.

We agree with the district court that if non-opposition re-

quired parents to accept immediate discharge to a home setting

without adequate access to community-based services—the very

violations asserted here—“it would defeat the purpose of the inte-

gration mandate.” Id. at 1232. The ADA’s implementing regula-

tions require states to administer services in the most integrated

setting appropriate to needs. See 28 C.F.R. § 35.130(d). If a state

fails to provide adequate services to enable children to safely live at

home, many families will understandably choose to keep their chil-

dren in a nursing facility, even if they would prefer to bring them

home.

These parents also cannot be deemed opposed to transfer

because they would opt for community-based care if Florida were

fully complying with the ADA—that is to say, if it were providing

access to reliable PDN, effectively facilitating discharge, and

providing complete and accurate information regarding commu-

nity care options. See D.E. 907 at 203, 209, 229. As one district

court has thoughtfully explained, “the meaningful exercise of a

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23-12331 Opinion of the Court 49

preference will be possible only if an adequate array of community

services are available.” Kenneth R. v. Hassan, 293 F.R.D. 254, 270

n.6 (D.N.H. 2013) (emphasis in original).

We therefore concur with the district court that “[i]f a ser-

vice recipient with disabilities would be open to choosing commu-

nity based services if such services were available and accessible,

then that person is ‘non-opposed’ within the meaning of Olmstead.”

Florida, 682 F. Supp. 3d at 1236. And we find no clear error in the

court deeming unopposed those parents who would choose com-

munity care if adequate state services were available to them. That

finding is plausible in light of the record. See Cooper, 581 U.S. at 293.

But we conclude that the district court clearly erred when it

deemed unopposed those parents who, even if Florida provided ad-

equate services, would still be opposed to transfer for unrelated,

personal reasons. Although nearly all of the interviewed families

expressed a desire to eventually discharge their children, three said

they would still opt for their child to remain in a nursing home

even if they had assurance that they would receive adequate com-

munity-based services. See, e.g., United States’ Ex. 5219; United

States’ Ex. 5229. The position of these families constitutes opposi-

tion, and the United States concedes this point. See Br. for Appellee

at 20–21 (“[O]pposition is established when parents do not want

their child transferred for personal reasons that would control even

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50 Opinion of the Court 23-12331

if Florida provided all community-based services sought in a law-

suit.”). 12

This leaves us with the question of whether, applying the

proper legal standard and deeming parents who would reject com-

munity care even if provided with adequate state services to be op-

posed, the non-opposition element is satisfied. Olmstead provides

no guidance regarding group consensus, as that case involved just

two individuals, whereas this case involves 139 institutionalized

children and 1,800 children at risk of institutionalization. Compare

Olmstead, 527 U.S. at 588, with Florida, 682 F. Supp. 3d at 1182. Our

sister circuits have not addressed this question directly, for non-op-

position has been an uncontested issue in the majority of cases. See,

e.g., Davis, 821 F.3d at 263; Pashby, 709 F.3d at 322; Waskul, 979 F.3d

at 460; Steimel, 823 F.3d at 911; M.R., 663 F.3d at 1118; Fisher, 335

F.3d at 1181. Where circuits have discussed this issue, it has been

in the context of class certification. See Ligas ex rel. Foster v. Maram,

478 F.3d 771, 775 (7th Cir. 2007) (analyzing a group where some

individuals opposed discharge and others did not in the context of

class certification); Benjamin ex rel. Yock v. Dep’t of Pub. Welfare of Pa.,

701 F.3d 938, 949 (3d Cir. 2012) (same).

District courts which have analyzed non-opposition in a het-

erogenous group have not required unanimity. One example is

Disability Advocates, Inc. v. Paterson. 653 F. Supp. 2d 184, 262–63

(E.D.N.Y. 2009) (finding the non-opposition prong satisfied where

12 Judge Brasher does not seem to acknowledge our ruling on this point.

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23-12331 Opinion of the Court 51

56% of residents expressed a desire to move to community care

and the district court found that more would be deemed non-op-

posed if adequate services were provided), vacated on other grounds

sub nom. Disability Advocs., Inc. v. N.Y. Coal. for Quality Assisted Liv-

ing, Inc., 675 F.3d 149 (2d Cir. 2012). See also Messier, 562 F. Supp.

2d at 332–34, 339–42 (finding the plaintiffs not opposed to commu-

nity services where the majority, but not all, of the guardians ex-

pressed “interest” in, or would consider, community placement).

Looking to the group of children as a whole requires us to

consider the families of both currently institutionalized children

and children at risk of institutionalization. Olmstead, as noted, did

not address at-risk individuals. See Olmstead, 527 U.S. at 593. But

the central holding of Olmstead was that the ADA requires states to

provide community-based treatment unless any one of three situa-

tions applies (medical professionals deem community-based care

inappropriate; the affected individuals oppose community-based

treatment; or the care cannot be reasonably accommodated). This

holding therefore encompasses those children who receive some—

and whose families are seeking adequate provision of—commu-

nity-based treatment. Implicit in our sister circuits’ overwhelming

affirmation that these at-risk individuals can bring an Olmstead chal-

lenge is the determination that these families can be deemed unop-

posed to community-based treatment. See Davis, 821 F.3d at 263;

Pashby, 709 F.3d at 322; Waskul, 979 F.3d at 460; Steimel, 823 F.3d at

911; M.R., 663 F.3d at 1118; Fisher, 335 F.3d at 1181. Contra Missis-

sippi, 82 F.4th at 393. Were we to exclusively consider the families

of currently institutionalized children and find them opposed as a

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52 Opinion of the Court 23-12331

group—a matter we need not address—we would deny relief for

those families fighting to keep their children at home or in a com-

munity setting despite Florida’s failure to provide adequate com-

munity-based treatment as mandated by the ADA—simply because

those families had not yet ceded to the pressures to place their chil-

dren in institutions. This result would be both inconsistent with

Olmstead and untenable.

The 1,800 families who have opted to keep their children in

community care despite the many challenges (including inade-

quate and unreliable PDN) are properly deemed to “not oppose

[community-based] treatment[.]” Olmstead, 527 U.S. at 607. These

families—along with the seven children who have been institution-

alized due to inadequate in-home nursing, the families currently in

the process of getting their children discharged, the two families

amenable to placing their children in a “community dwelling”

other than their own home, and the many families which would

not oppose bringing their families home were they to receive ade-

quate state services—constitute a majority. The district court did

not clearly err in concluding that the great majority of parents are

not opposed to community-based treatment. See Florida, 682 F.

Supp. 3d at 1232. 13

13 The parties dispute the precise number of families which face personal bar-

riers to transfer that would not be surmounted even if Florida were to provide

adequate services. The United States’ expert, Dr. Amy Houtrow, identified—

based upon her interviews of a sample of 45 families of institutionalized chil-

dren—only one family that was opposed to its child receiving community-

based care. See Florida, 682 F. Supp. 3d at 1233 n.49. Florida argues, however,

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23-12331 Opinion of the Court 53

That the group of nearly two thousand families is not unan-

imous in its non-opposition does not concern us for purposes of

Olmstead. The non-opposition prong of Olmstead ensures that indi-

viduals not be forced out of institutions should they prefer to stay.

See Olmstead, 527 U.S. at 602 (majority opinion); id. at 610 (Ken-

nedy, J., concurring in the judgment). The majority’s language re-

flects that the non-opposition element is met where “the transfer

from institutional care to a less restrictive setting is not opposed by

the affected individual[s.]” Id. at 587 (majority opinion) (emphasis

added). See also id. at 607 (plurality opinion) (describing non-

that Dr. Houtrow erroneously deemed “un-opposed” 18 of the 45 families

who cited housing—a factor Florida says is outside of its control—as their rea-

son for not seeking to bring their children home. See Br. for Appellant at 26;

Reply Br. for Appellant at 7–8. Assuming that Florida is correct that these

families would oppose transfer even if they received adequate state services

like housing assistance through Florida’s iBudget program, this would mean

that roughly 40% of families of the 140 institutionalized children were improp-

erly deemed un-opposed. These families, along with the one family that Dr.

Houtrow deemed opposed for other reasons, see Florida, 682 F. Supp. 3d at

1233 n.49, would make 57 opposed families out of 140 (just over 40%). This

number is still less than 3% of the families affected by Florida’s allegedly inad-

equate provision of community-based services (the families of the approxi-

mately 140 institutionalized children and over 1,800 children at risk of institu-

tionalization at the time of trial), whose stances we must also take into ac-

count. See id. at 1182. So, even accepting Florida’s contention, about 60% of

families of currently institutionalized children and 97% of all affected families

(of both currently institutionalized and at-risk children) remain unopposed to

community-based care—a majority of the first group, and an overwhelming

majority of the latter. The district court’s finding that most families were not

opposed to community-based services is therefore plausible even if we accept

Florida’s contention. See Cooper, 581 U.S. at 293.

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54 Opinion of the Court 23-12331

opposition as where “the affected persons do not oppose such treat-

ment”) (emphasis added).

To prove its case, the United States needed to show only

that Florida is violating Olmstead for some families whose children

are institutionalized or at risk of being institutionalized. The

United States did not need to prove that Florida violated Olmstead

with respect to every single family and/or individual. 14

As the district court rightly noted, the decisions of families

which choose to place their children in nursing facilities “should be

honored and supported.” Florida, 682 F. Supp. 3d at 1226. But

providing relief for the majority of families who wish to care for

their children in community settings would not require discharge

for those who oppose community care. See Benjamin ex rel. Yock,

701 F.3d at 949 (finding that the relief enabling a choice of commu-

nity placement to unopposed patients did not warrant intervention

by those who were opposed); Benjamin v. Dep’t of Pub. Welfare of Pa.,

432 F. App’x. 94, 98 (3d Cir. 2011) (same). Indeed, nothing in the

court’s decision or injunction requires such parents to transfer their

children from nursing facilities if they prefer to keep them there.

One final note on the non-opposition element. Citing Wal-

Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011), Judge Brasher

contends that the United States’ proof of non-opposition trans-

formed this case into a “trial by formula.” Florida, however, does

14 Of course, the relative number of non-opposed families can impact the ap-

propriate relief.

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not make this argument in its brief. In our adversarial system, we

decline to raise and address sua sponte a non-jurisdictional issue that

a party has not presented to us. See Clark v. Sweeney, 607 U.S. 7, 9

(2025). In any event, an expert may extrapolate information from

qualitative samples and surveys. See U.S. Pat. & Trademark Off. v.

Booking.com B.V., 591 U.S. 549, 561 n.6 (2020); Jellibeans, Inc. v. Skat-

ing Clubs of Ga., Inc., 716 F.2d 833, 844 (11th Cir. 1983). Sampling is

far different from the formula used to calculate class recovery de-

scribed in Dukes, 564 U.S. at 367.

4. REASONABLE ACCOMMODATION

We now address the reasonable accommodation prong of

Olmstead. Public entities must make reasonable modifications

when necessary to avoid discrimination (including unnecessary in-

stitutionalization), unless “the modifications would fundamentally

alter the nature of the service, program, or activity.” 28 C.F.R.

§ 35.130(b)(7)(i). “Sensibly construed, the fundamental-alteration

component of the reasonable-modifications regulation . . . allow[s]

the [s]tate to show that, in the allocation of available resources, im-

mediate relief for the plaintiffs would be inequitable, given the re-

sponsibility the [s]tate has undertaken for the care and treatment

of a large and diverse population of persons with mental [or physi-

cal] disabilities.” Olmstead, 527 U.S. at 604 (plurality opinion).

We begin by assessing whether the United States established

reasonable accommodations that are necessary. The United States’

expert, Dr. Bachman, identified a number of possible accommoda-

tions to address gaps in PDN service—that Florida “(1) conduct

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56 Opinion of the Court 23-12331

more robust data collection and analysis, (2) investigate what kinds

of network adequacy standards would improve access to PDN, and

(3) examine reimbursement rates.” Florida, 682 F. Supp. 3d at 1237.

The United States also suggested accommodations related to care

coordination, the iBudget waiver program, medical foster care, and

overall monitoring and accountability. See id. at 1239–40.

If a state “were to demonstrate that it had a comprehensive,

effectively working plan for placing qualified persons with mental

[or physical] disabilities in less restrictive settings, and a waiting list

that moved at a reasonable pace not controlled by the [s]tate’s en-

deavors to keep its institutions fully populated, the reasonable-

modifications standard would be met.” Olmstead, 527 U.S. at 605–

06 (plurality opinion). Like the D.C. Circuit, we think the Olmstead

plurality’s formation of the fundamental alteration defense “makes

good sense,” and we apply it here. See Brown v. District of Columbia,

928 F.3d 1070, 1077–78 (D.C. Cir. 2019). Once treatment profes-

sionals have determined that community placement is appropriate,

and a less restrictive setting is not opposed by the affected family

or individual, and the plaintiff proposes an accommodation to rem-

edy the violation, the burden shifts to the state to show that the

proposed accommodation is unreasonable. See id. at 1077–78.

The district court found that the United States had met its

initial burden of establishing that its suggested accommodations

were reasonable, because they “call for expanding access to State

services that already exist, and for using existing State programs

and tools of program administration to expand such access.”

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Florida, 682 F. Supp. 3d at 1241 (citing United States v. Mississippi,

400 F. Supp. 3d 546, 576 (S.D. Miss. 2019) (finding provision of com-

munity-based services reasonable where United States showed that

the state “already has the framework for providing the[] services

and can more fully utilize and expand that framework to make the

services truly accessible”)). This determination was consistent

with Justice Kennedy’s observation in Olmstead that “a state may

not be forced to create a community-treatment program where

none exists.” Olmstead, 527 U.S. at 613 (Kennedy, J., concurring in

the judgment).

The district court found these proposed modifications to be

inherently reasonable because they “comport with Florida’s own

standards and obligations[,]” including Florida’s obligation under

Medicaid law to “make medically necessary services accessible to

all Medicaid-enrolled children with medical complexity[.]” Florida,

682 F. Supp. 3d at 1241 (citing 42 U.S.C. §§ 1396a(a)(43), 1396d(a),

(r)(5)). See also Henrietta D. v. Bloomberg, 331 F.3d 261, 280–81 (2d

Cir. 2003) (finding that modifications that align with the jurisdic-

tion’s own stated plans and obligations are reasonable); Messier, 562

F. Supp. 2d at 344–45 (same). As discussed in greater detail below

in the context of the injunction, the court made numerous factual

findings suggesting that each of these accommodations is necessary

to prevent unnecessary institutionalization and facilitate discharge

from institutions. 15

15 As discussed later, we express uncertainty as to whether the statutory pro-

visions cited by the district court require delivery of 100% of PDN.

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58 Opinion of the Court 23-12331

We agree with the district court that the United States met

its initial burden to identify a reasonable, necessary accommoda-

tion—a burden that is not a “heavy one.” Henrietta D., 331 F.3d at

280. And we concur with our sister circuits that where appropri-

ateness and non-opposition are established, the requested accom-

modations are presumed to be reasonable unless the state estab-

lishes a fundamental alteration defense. See Brown, 928 F.3d at 1077

(“[T]he State bears the burden of proving the unreasonableness of

a requested accommodation once the individual satisfies the first

two [Olmstead] requirements[.]”); Steimel, 823 F.3d at 914–16 (if a

disabled individual desires community-based treatment and medi-

cal professional determines that such placement is appropriate, “[i]t

is the state’s burden to prove that the proposed changes would fun-

damentally alter their programs”); Townsend v. Quasim, 328 F.3d

511, 517 (9th Cir. 2003) (“Because [the State] does not allow [the

disabled individual] to receive the services for which he is qualified

in a community-based, rather than nursing home, setting, [the dis-

abled individual] can prove that the [State] has violated Title II of

the ADA, unless [the State] can demonstrate that provision of com-

munity-based services to [him] and members of the class would

fundamentally alter the nature of the services [it] provides.”). We

reserve a detailed analysis of whether each of the proposed accom-

modations is warranted for our discussion of the permanent injunc-

tion.

Next, we assess whether Florida established that these ac-

commodations constituted a fundamental alteration. Again, the

fundamental alteration defense requires the state “to show that, in

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23-12331 Opinion of the Court 59

the allocation of available resources, immediate relief for the plain-

tiffs would be inequitable, given the responsibility the State has un-

dertaken for the care and treatment of a large and diverse popula-

tion of persons with mental [or physical] disabilities.” Olmstead, 527

U.S. at 604 (plurality opinion). The Supreme Court in Olmstead ex-

plained that a state could, for example, establish a fundamental al-

teration by showing a “comprehensive, effectively working plan,”

and “a waiting list that moved at a reasonable pace not controlled

by the State’s endeavors to keep its institutions fully populated[.]”

Id. at 606–07 (plurality opinion). See also Sanchez v. Johnson, 416 F.3d

1051, 1067–68 (9th Cir. 2005) (concluding that California had estab-

lished a fundamental alteration defense by demonstrating an “a

comprehensive deinstitutionalization scheme” with “a reasonable

rate” of deinstitutionalization); Arc of Wash. State Inc. v. Braddock,

427 F.3d 615, 621 (9th Cir. 2005) (holding that Washington had es-

tablished a fundamental alteration defense by demonstrating a

“commitment to deinstitutionalization [that] is . . . genuine, com-

prehensive and reasonable[.]”) (internal quotation marks omitted);

Frederick L. v. Dep’t of Pub. Welfare of Pa., 422 F.3d 151, 158–59 (3d

Cir. 2005) (ruling that Pennsylvania had failed to establish a funda-

mental alteration defense where its deinstitutionalization plan

lacked metrics, was not being timely implemented, and the state

offered only “general assurances and good faith intentions to effec-

tuate deinstitutionalization”).

At summary judgment, the district court found that the

United States’ requests that Florida seek additional iBudget waivers

and eliminate the parental rights requirement for Medical Foster

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60 Opinion of the Court 23-12331

Care constituted a fundamental alteration. Significantly, Florida

chose not to present a fundamental alteration defense at trial for

the remaining modifications the United States sought.

In its post-trial briefing on remedies, Florida argued that the

United States did not disclose the proposed modifications during

discovery or trial, and thus denied it an opportunity to prove that

these modifications would cause a fundamental alteration. The

district court, however, found that Florida had “ample opportunity

to present a substantial modification defense” and chose not to do

so, and alternatively concluded that none of the United States’ pro-

posed remedies fundamentally altered the State’s programs. See

Florida, 682 F. Supp. 3d at 1242. We discern no error in the district

court’s first conclusion and need not address the second. “A de-

fendant can forfeit an affirmative defense by failing to raise it, and

‘[a]n affirmative defense, once forfeited, is excluded from the

case.’” Patel v. Hamilton Med. Ctr., Inc., 967 F.3d 1190, 1195 (11th

Cir. 2020) (quoting Wood v. Milyard, 566 U.S. 463, 470 (2012)). 16

Florida complains that it did not know with sufficient speci-

ficity what the United States would be seeking in terms of a rem-

edy. Florida contends that several portions of the injunction—

16 Florida has made no attempt to show “that one of our Access Now forfeiture

exceptions applies.” United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022)

(en banc). See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir.

2004). Moreover, if Florida views the fundamental alteration defense as a re-

medial defense rather than a liability defense, we note that Florida never asked

to present evidence during the post-trial, remedial briefing stage to meet its

burden.

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23-12331 Opinion of the Court 61

including those relating to minimum PDN delivery, care coordina-

tion, and the transition planning process—were not mentioned at

trial. But, as the district court correctly noted, see Florida, 682 F.

Supp. 3d at 1242, Florida conflates the reasonable accommodation

issue with the analysis of the appropriateness of the specific injunc-

tive relief ordered. The two are not equivalent. In an ADA case,

the plaintiff first bears the burden of proposing a reasonable modi-

fication that is necessary to avoid discrimination on the basis of dis-

ability. See Schaw v. Habitat for Human. of Citrus Cnty., Inc., 938 F.3d

1259, 1266 (11th Cir. 2019); 28 C.F.R. § 35.130(b)(7). If the request

is “facially reasonable,” the burden shifts to the defendant (here

Florida) to prove that the accommodation would result in a funda-

mental alteration of its program. See Schaw, 938 F.3d at 1266. If the

court determines that the plaintiff has established a reasonable

modification and the state has not established that the accommo-

dation is a fundamental alteration, liability has been established and

the court may then craft an appropriate remedy. See Brown, 928

F.3d at 1083 n.10.

The accommodations initially requested by the United

States addressed, albeit with less specificity than the ultimate in-

junction, all of the types of remedies ultimately addressed in the

injunction: gaps in PDN service, shortfalls in care coordination, and

overall monitoring and accountability. And the central provision

of the injunction—the requirement to deliver 90% of authorized

and desired PDN—was a “central issue in the case from the begin-

ning.” Florida, 682 F. Supp. 3d at 1242. The district court correctly

observed that these initial requests provided sufficient information

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62 Opinion of the Court 23-12331

“to put [Florida] on notice and enable it to plan its defense,” even

though the injunction was more detailed. See id.

We therefore conclude that Florida had ample opportunity

to establish a fundamental alteration defense at trial, but opted not

to do so, thereby forfeiting the defense. We also reject the argu-

ment that the United States was relieved of any evidentiary burden

to establish the reasonableness of its proposed accommodations be-

cause it amply supported its proposals with trial testimony and ev-

idence.

IV. THE INJUNCTION

Next, we address the appropriateness of the injunction’s var-

ious provisions. We primarily affirm the district court’s injunction,

but we vacate Part III.B, partially vacate Parts IV.A and V.A.2, and

vacate a portion of the order appointing the monitor (the portion

that modifies Parts VI.C and VI.D).

As noted, we review injunctions for abuse of discretion. See

Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004).

“The abuse of discretion standard allows a range of choices for the

district court, so long as any choice made by the court does not

constitute a clear error of judgment.” Collegiate Licensing Co. v. Am.

Cas. Co. of Reading, 713 F.3d 71, 77 (11th Cir. 2013) (citation omit-

ted).

A. SYSTEM-WIDE INJUNCTIVE RELIEF

In order to prescribe system-wide injunctive relief, a court

must find that the violations are widespread or pervasive. See Lewis

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v. Casey, 518 U.S. 343, 349, 359 (1996); Doe 1–13 by & through Doe,

Sr. 1–13 v. Chiles, 136 F.3d 709, 722 n.23 (11th Cir. 1998). The dis-

trict court here held that a “serious risk” of institutionalization is

actionable and found Florida’s ADA violations (including those as

to institutionalized children) to be widespread. See Florida, 682 F.

Supp. 3d at 1212–19.

Florida contends that its statutory violations were not wide-

spread enough to justify systemwide relief under Lewis, 518 U.S. at

359. It argues that while unjustified institutionalization violates the

ADA, placing children at risk of institutionalization does not. It

reasons that because only seven to nine children have been institu-

tionalized over the past ten years due to inadequate services, there

is no widespread violation.

As discussed earlier, although we have yet to address this is-

sue, six of our sister circuits have concluded that Title II and its ac-

companying integration regulation prohibit not only the unneces-

sary institutionalization of individuals with disabilities, but also the

“serious risk” of such institutionalization. See Davis, 821 F.3d at

263; Pashby, 709 F.3d at 322; Waskul, 979 F.3d at 460–61; Steimel,

823 F.3d at 914; M.R., 697 F.3d at 734–35; Fisher, 335 F.3d at 1181–

82. Only the Fifth Circuit has broken from this consensus. See Mis-

sissippi, 82 F.4th at 392. We reiterate that we agree with the ma-

jority view that because states “shall administer services” in the

“most integrated setting appropriate to the needs of qualified indi-

viduals with disabilities,” 28 C.F.R. § 35.130(d), and this mandate

does not require institutionalization as a prerequisite to

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64 Opinion of the Court 23-12331

enforcement, this legal obligation extends to families regardless of

whether their children are in nursing facilities or community-based

care. See Davis, 821 F.3d at 263; Radaszewski, 383 F.3d at 607–08,

611, 614–15. 17

The Supreme Court in Olmstead concluded that unnecessary

institutionalization is a form of unlawful discrimination because

“to receive needed medical services,” individuals with disabilities

must “relinquish participation in community life they could enjoy

given reasonable accommodations,” while persons without disabil-

ities “can receive the medical services they need without similar

sacrifice.” 527 U.S. at 601 (majority opinion). This is precisely the

prospect faced by families which do not receive adequate PDN. See

Waskul, 979 F.3d at 460 (explaining that children at serious risk of

unnecessary institutionalization face discrimination because, un-

like children without disabilities, they must “choose between for-

going necessary medical services while remaining in the commu-

nity or receiving necessary medical services while institutional-

ized”). The ADA’s integration mandate’s “protections would be

meaningless if plaintiffs were required to segregate themselves by

entering an institution before they could challenge an allegedly

17 Some of our sister circuits’ opinions relied in part on Department of Justice

guidance interpreting the ADA’s integration mandate and accompanying reg-

ulations, see, e.g., Pashby, 708 F.3d at 322. We need not decide whether this

guidance is entitled to any deference, because we agree with other aspects of

our sister circuits’ reasoning.

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discriminatory law or policy that threatens to force them into seg-

regated isolation.” Fisher, 335 F.3d at 1181.

Again, Florida contends that the violations are not wide-

spread because the United States presented evidence of only seven

to nine children (out of 1400) who have been institutionalized over

the past ten years due to the inadequate services. Florida suggests

that only those seven to nine families are entitled to relief because

there is no evidence that other families face this same risk. But, as

we explained when addressing standing, the fact that families have

found ways to keep their children at home—often at great personal

sacrifice—does not lessen their future risk. Florida’s assertion that

trained parents can provide a similar level of care as PDN nurses

fundamentally misunderstands the reality that many of these par-

ents face. When PDN nurses fail to show up, parents often need

to call out of work in order to stay home and care for their chil-

dren—causing them to lose income and even their jobs. See Florida,

682 F. Supp. 3d at 1199–1205, 1214. Inconsistent PDN places some

families in the untenable position of choosing between continuing

to miss work to supplement gaps in home care—thereby losing out

on income and potentially facing eviction—and sending their child

to a nursing home where state-funded care is more reliable. See id.

We have no trouble in concluding that these children face a serious

risk of institutionalization. See Section III.B.1.

The evidence demonstrated that 94% of families receive less

PDN than authorized and 25% receive less than 60% of authorized

hours. See id. at 1210–11. There was also the evidence that at least

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66 Opinion of the Court 23-12331

seven to nine children have been institutionalized for this reason,

and that at least two children’s transfers to community-based care

were delayed due to the lack of PDN. This evidence, taken to-

gether, leads us to conclude the district court did not clearly err in

finding these violations to be widespread and thus meriting system-

wide relief. 18

B. BREADTH OF THE INJUNCTION

1. PART II: PRIVATE DUTY NURSING

The first substantive section of the injunction (Part II) ad-

dresses gaps in PDN coverage. As discussed above, the district

court made a number of factual findings about how private duty

nursing (PDN) impacts children with medical complexity.19

The district court credited expert testimony from the United

States stating that almost 94% of the children with medical com-

plexity received fewer PDN hours than they were authorized to re-

ceive—70–80% of their authorized hours on average, with 25% of

18 Relatedly, Florida argues that as a “matter of Article III standing,” the district

court ordered the accommodations without evidence of redressability. See Br.

for Appellant at 30–34. This contention simply reformulates the requirement

that the court fashion the injunctive relief such that it is specifically tailored

“to protect the interests of the parties.” Keener v. Convergys Corp., 342 F.3d

1264, 1269 (11th Cir. 2003) (citing Gibson v. Firestone, 741 F.2d 1268, 1273 (11th

Cir. 1984)). Thus, while we don’t doubt the United States’ satisfaction of the

constitutional minimums for Article III standing, whether the ordered relief

redresses the harms proved at the liability stage is encompassed by our discus-

sion of each provision of the injunction and its evidentiary support.

19 Part I of the injunction provides definitions.

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the children receiving less than 60% of their authorized PDN

hours. Four of the families who testified at trial had children who

“were institutionalized for some period of time as a direct conse-

quence of lack of PDN.” Florida, 682 F. Supp. 3d at 1212. Two

other children experienced delays in discharge from nursing facili-

ties due to a lack of PDN. The director of nursing from one of the

facilities, Sabal Palms, testified that three of the children were at

the facility “as a direct result” of the lack of reliable PDN, and “con-

firmed that the lack of around-the-clock nursing was the biggest

obstacle to discharging children with a medical complexity home.”

Id. Finally, one care coordinator recounted the story of a baby who

had died as a consequence of inadequate PDN.

The district court concluded that inadequate PDN is both “a

significant factor that places children with medical complexity who

are living at home at risk of entering a nursing facility” and “the

main impediment to children leaving nursing facilities[.]” Id. at

1210.

To remedy PDN gaps, Part II of the injunction requires Flor-

ida to:

A. Ensure that 100% of children receive 90% of authorized

PDN hours, the “minimally necessary PDN for integration”;

B. Collect data on PDN authorized, delivered, refused, not de-

livered due to hospitalization, and reimbursement rates;

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68 Opinion of the Court 23-12331

C. Collect data on nurses providing PDN, where they are lo-

20

cated, and with whom they work;

D. Consider using the below optional tools to ensure the pro-

vision of 90% of authorized PDN hours:

(1) Raise fee-for-service PDN reimbursement rates;

(2) Require managed-care organizations to pay providers

minimum PDN reimbursement rates;

(3) Require managed-care organizations to satisfy net-

work adequacy standards that accurately reflect how

many providers and private duty nurses are needed to

provide 90 of PDN to all enrolled children;

(4) Require providers to pass PDN reimbursement rate

increases on to their private duty nurses; and

(5) Incentivize providers to work together in delivering

shares of the same PDN Child’s PDN hours.

E. Continue to authorize services deemed medically necessary

under the existing definition;

20 The district court struck this requirement on October 11, 2024, noting that

“[b]arely half of the providers responded, rendering the data virtually useless.”

D.E. 1227 at 7. The court expressed frustration that Florida lacked “strong

motivation or effort . . . to focus on better data collection procedures, despite

the very serious lapses that became apparent during trial” and concluded that

continuing to require Florida “to gather incomplete information that it ulti-

mately can’t or won’t utilize is wasteful.” Id. at 8.

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F. Extend the above requirements to any child in a nursing fa-

cility who is moved to a community setting during term of

injunction.

Florida contends that this provision as to PDN is overbroad

and violates federalism principles by improperly “coerc[ing] Flor-

ida into seeking appropriations” to increase pay for PDN nurses.

See Br. for Appellant at 45. But the injunction allows Florida to use

any tools to attain the 90% benchmark, and provides a number of

possible methods, including incentivizing providers to work to-

gether in delivering shares of the same PDN Child’s PDN hours.

Even if the injunction pressured Florida to seek an appropriation,

this would not necessarily violate federalism principles. See Milli-

ken v. Bradley, 433 U.S. 267, 288–91 (1977) (holding that an injunc-

tion requiring a state to expend funds prospectively to comply with

federal law was consistent with federalism principles). Nor do in-

adequate funds excuse a state’s violation of federal law. See Doe 1-

13, 136 F.3d at 722. As the Seventh Circuit explained, in the context

of the fundamental alteration defense, allowing increased expendi-

tures alone to justify ADA noncompliance “would eviscerate the

integration mandate.” Steimel, 823 F.3d at 915. See also Fisher, 335

F.3d at 1183 (“If every alteration in a program or service that re-

quired the outlay of funds were tantamount to a fundamental al-

teration, the ADA’s integration mandate would be hollow in-

deed.”).

Florida’s legislature has already “recognized the need to im-

prove the delivery of [private-duty nursing] and attempted to take

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70 Opinion of the Court 23-12331

steps to address it.” D.E. 117 at 4. See Florida, 682 F. Supp. 3d at

1246. This portion of the injunction is therefore aligned with state

goals, which reduces federalism concerns. See Trueblood v. Wash.

State Dep’t of Soc. & Health Servs., 822 F.3d 1037, 1045 (9th Cir. 2016)

(explaining that, in crafting injunctive relief, “federal courts have

often looked to a state’s own policies for guidance because ‘appro-

priate consideration must be given to principles of federalism’”)

(quoting Rizzo v. Goode, 423 U.S. 362, 379 (1976)).

Florida also argues that the United States failed to establish

that the mandate to provide children 90% of all authorized and de-

sired PDN hours is achievable and failed to specify how it could

achieve this goal. See Br. for Appellant at 48 (citing Hughey v. JMS

Dev. Corp., 78 F.3d 1523, 1532 (11th Cir. 1996)). Florida suggests that

the injunction is not achievable because there is a nursing shortage.

The problem for Florida is that the district court found that both

sides’ experts agreed that the national nursing shortage was not re-

sponsible for Florida’s gaps in providing PDN. See Florida, 682 F.

Supp. 3d at 1211; D.E. 908 at 105–09; D.E. 897 at 42.

Moreover, the district court did not abuse its discretion by

leaving it up to Florida how to achieve the mandate and listing pos-

sible methods. Indeed, this flexibility demonstrates a respect for

federalism principles. As for achievability, the district court noted

that the state’s own contracts already require 100% provision of

PDN. See Florida, 682 F. Supp. 3d at 1242, 1246. See also D.E. 965-

1 at 133 (providing that the Sunshine State Health Plan Inc. must

meet certain network adequacy standards, including to “[t]ake

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23-12331 Opinion of the Court 71

necessary action to ensure that all medically necessary covered ser-

vices are provided to the enrollee with reasonable promptness”).

Again, the district court credited Dr. Bachman’s testimony (agreed

to by Florida’s expert) that “a national nursing shortage is not pri-

marily responsible” for PDN gaps in Florida, and found that chil-

dren with medical complexity already receive 70–80% of author-

ized private-duty-nursing hours on average. See Florida, 682 F.

Supp. 3d at 1211, 1243 n.55. And as the United States notes, three

managed-care plans have succeeded in delivering an average of 84–

89% of authorized hours. Florida has failed to convince us that

compliance is unachievable. 21

21 The district court also stated that federal Medicaid laws require Florida to

provide all medically necessary services to these children. Although the par-

ties stipulated that the statutory provisions cited by the court require Florida

to “cover all” medically necessary PDN, see D.E. 840, Pretrial Stip., VI ¶ 6, we

cannot readily identify a statutory requirement that the state ensure that 100%

of the PDN that the state covers (i.e., pays for) is ultimately delivered. See 42

U.S.C. § 1396a(a)(43) (providing that, for children, a “State plan for medical as-

sistance must . . . arrang[e] for (directly or through referral to appropriate

agencies, organizations, or individuals) corrective treatment the need for

which is disclosed by such child health screening services”); § 1396d(a) (defin-

ing the term “medical assistance”); § 1396d(r)(5) (defining the term “early and

periodic screening, diagnostic, and treatment services”). As Florida points out,

42 U.S.C. § 1396a(a)(30)(A), which applies to Medicaid recipients generally ra-

ther than children specifically, provides that the state must ensure “that care

and services are available under the plan at least to the extent that such care

and services are available to the general population in the geographic area[.]”

Because we find that Florida has failed to demonstrate that the 90% mandate

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As for Part II.B’s requirement to collect basic data on PDN

delivery and reimbursement rates, this mandate is not onerous and

is directly tied to Florida tracking and reporting its compliance with

the 90% PDN delivery mandate. We do not find it overly broad,

and we note that the district court already struck the more onerous

requirement to collect data on PDN nurses (Part II.C).

The district court did not clearly err in making its underlying

factual findings regarding the inadequate PDN delivery and its ef-

fects on unnecessary institutionalization. And given these factual

findings, the court’s remedies are sufficiently tailored to address the

inadequate provision of PDN. We conclude that the court did not

abuse its discretion in ordering Part II’s injunctive remedies.

2. PART III: CARE COORDINATION

The second substantive section of the injunction (Part III)

addresses care coordination. As explained above, the district court

found four main problems related to care coordination. First, care

coordinators have difficulty identifying and effectively delivering

contracted services to families. Second, care coordinators fail to

provide families with information about alternatives to institution-

alization. Third, families face substantial barriers in understanding

what is required for discharge. And fourth, Florida fails to provide

necessary tools and reporting to ensure delivery of services. The

court found the coordinators to be “dedicated, competent, and

is not achievable for other reasons, we need not definitively resolve this ques-

tion of statutory interpretation.

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23-12331 Opinion of the Court 73

genuinely concerned about the children and families they serve,”

but that they “share the same frustrations as the parents and are

powerless to address them in any meaningful fashion.” Florida, 682

F. Supp. 3d at 1214.

One care coordinator reported that, in her experience, 90%

of her cases have staffing issues, and that families struggle “on a

regular basis” to get needed medical equipment because of difficul-

ties with insurance. See id.; D.E. 908 at 107. She also noted that

when more money was offered, shifts would be covered more eas-

ily. Another care coordinator discussed issues with pay and staffing

as it related to switching agencies, or having agencies work to-

gether to provide PDN, noting that she only reported parent dissat-

isfaction if it had reached the level of wanting to switch agencies

even though parents reported having trouble keeping their jobs

without adequate PDN. Consequently, the district court found

that “[t]he monthly reports do not accurately portray the extent of

the failure,” and that care coordinators “lack[ ] a mechanism to re-

quire performance” by agencies. Florida, 682 F. Supp. 3d at 1214–

15.

Moreover, the district court found that “[t]here is a wide-

spread failure to affirmatively inform families that they have alter-

natives to placing their children in a nursing facility.” Id. at 1215.

As the court highlighted, both parties agree that institutionaliza-

tion should be the last resort and therefore providing information

about “real and viable alternatives to institutionalization is the first

step in ensuring that the Institutionalized Children are residing in

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74 Opinion of the Court 23-12331

facilities only because they need to be, or because their families

made a knowing decision regarding their placement there.” Id.

Trial testimony was “replete” with evidence of parents and care-

givers lacking information or being given misinformation, includ-

ing the State’s witness who was a nursing director and three parents

who testified for the State that no one had ever mentioned the op-

tions available to them. See id.

Part III of the injunction requires Florida to:

A. Ensure that care coordination is “person-centered and indi-

vidualized”;

B. Set a maximum caseload for care coordinators that must not

exceed 15 children residing in a nursing facility, or 40 chil-

dren living in a community setting;

C. Ensure that care coordinators are communicating with fam-

ilies at the contractually agreed upon frequency;

D. Establish a training curriculum for care coordinators to help

remove barriers to transitioning to community-based care;

E. Require managed-care organizations to create a path for par-

ents to promptly report providers’ failure to provide any au-

thorized and requested PDN hours. Care Coordinators

must share any reported failures with their supervisor, the

designated State agency, and the court-appointed monitor;

F. Allow families to submit complaints about Care Coordina-

tors to the State and ensure that the monitor receives a copy

of these complaints. Any complaints must be investigated

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23-12331 Opinion of the Court 75

and adjudicated within 30 days of submission and the results

must be submitted to the monitor every month;

G. Outline care coordinator responsibilities and develop clear

lines of authority and communication between coordina-

tors, facilities, and managed-care organizations.

Florida contends, generally, that the care coordination por-

tion of the injunction is overly broad and offends federalism prin-

ciples. But it does not elaborate on why the care coordination pro-

visions go so far as to constitute an abuse of discretion, nor does it

argue that the court plainly erred in any of the factual findings

upon which it based Part III of the injunction.

We address each provision of Part III in turn. Parts III.A and

C are narrowly tailored and require minimal action from Florida—

they simply require care coordinators to fulfill existing responsibil-

ities by providing individualized care and communicating with

families at an agreed upon frequency. Parts III.E and F likewise

require limited state effort. These provisions require Florida to en-

able parents to report undelivered PDN and submit complaints,

and for any complaints to be communicated and investigated. Sim-

ilarly, Part III.G requires the state to delineate responsibility and

communication procedures between various actors, without or-

dering the state to adopt specific procedures. Each of these reme-

dies is sufficiently and narrowly tailored to address the care coordi-

nation shortfalls identified by the district court.

Part III.D requires Florida to create and implement a train-

ing curriculum for care coordinators on a number of subjects. We

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76 Opinion of the Court 23-12331

are wary of requiring a state to create entirely new programs where

none exist. See Olmstead, 527 U.S. at 612–13 (Kennedy, J., concurring

in the judgment) (cautioning against the judiciary reviewing a

state’s choices in “establishing or declining to establish new pro-

grams”). But requiring that certain topics be covered during train-

ing—for an existing, specialized role that undoubtedly already re-

quires some amount of training—is not tantamount to the creation

of a new program. We also note that injunctions requiring the cre-

ation of training curricula do not necessarily constitute an abuse of

discretion. See, e.g., Gluth v. Kangas, 951 F.2d 1504, 1511 (9th Cir.

1991) (finding no abuse of discretion where the district court man-

dated the creation of a training program for prisoner legal assis-

tants). Given the district court’s findings that trial testimony was

“replete” with evidence of parents and caregivers lacking infor-

mation or being given misinformation regarding community care

options, we find it within the court’s discretion to order the State

to implement a training curriculum focused on reducing barriers

to de-institutionalization.

Part III.B sets a maximum caseload for care coordinators,

presumably to ensure that they are able to fulfill their responsibility

of providing individualized care. But the district court made no

specific factual findings that case workers are currently under-

staffed or that high caseloads are contributing to shortfalls in care

coordination. We therefore conclude that this provision consti-

tutes an abuse of discretion. See Swain v. Junior, 961 F.3d 1276,

1292–93 (11th Cir. 2020) (explaining that an injunction must be sup-

ported by factual findings).

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23-12331 Opinion of the Court 77

We affirm Parts III.A and C–G of the injunction as within

the district court’s discretion. We set aside Part III.B.

3. PART IV: NURSING FACILITY AND TRANSITION PLANNING

Part IV of the injunction addresses transition planning to as-

sist families in bringing their children with medical complexity

home. The district court found that “the ‘transition planning’ pro-

cess at the nursing facilities is fraught with hurdles that should not

exist.” Florida, 682 F. Supp. 3d at 1216. The court credited evidence

that families were sometimes discouraged, faced pushback, pro-

vided with inaccurate information about the suitability of their

homes, faced confusion about how to communicate to staff a desire

to bring their child home, and felt ignored. See id. Florida asserted

that families needed to make a formal request in order to initiate

discharge, but the district court found that “there was no indication

that anyone ever explained to families what such a formal request

looked like, what form it took, or to whom it needed to be com-

municated.” Id.

To redress shortfalls in the transition planning process, Part

IV of the injunction requires Florida to:

A. Develop an individualized transition plan for each child cur-

rently residing in or who “may be admitted to a Nursing Fa-

22

cility”;

22 The injunction initially required Florida to update the transition plan for

each child every three months. The district court modified this requirement

in its order of September 5, 2024, instead requiring Florida to reinitiate the

transition planning process every three months until the parents had

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78 Opinion of the Court 23-12331

B. In each meeting held for a child residing in a nursing care

facility, the child’s care team must discuss the above infor-

mation regarding transition planning and how any barriers

to returning to community-based care can be addressed;

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