# Petition — Florida Department of Health & Rehabilitative Services v. Florida Nursing Home Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0547%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 147 ## Text i a Ce 8 0 ~ by 3 D) Flies S. IN THE OCT $ 1980 SUPREME COURT OF THE UNITED STATES MICHAEL RODAK, JR., CLERK OCTOBER TERM, 1980 NO. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, and A. J. TAYLOR, its Secretary, Petitioners, ¥. THE FLORIDA NURSING HOME ASSOCIATION, et al., Responcents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CULPEPPER, BEATTY & TURNEP. Post Office Box 10261 500 Lewis State Bank Bldg. Tallahassee, FL 32302 (904) 222-4945 | Counsel for Petitioners M. STEPHEN TURNER INDEX Question Presented for Review. Parties to the Proceeding. . . Goinions Below . .« ¢ + s:. ° Ll, 29 Arnold v. Shumpert, 217 So.2d 116, 119-20 (Fla. 1968) OO Wha wae eee Wa tamer 18 ‘ Dowd Box Co. v. spe U.S. 7 L.Ed.2d 483, 487, 82 S.Ct. SaF GLOSS) cleo eee « « 42 Edelman v. Jordan, 415 U.S. 641, é , 39 L.Ed.2d 662 (1974) o so ° * o — - 7 * * * ~ 7. 9,11 18,17 Farmers and Merchants Bank vs. pedere I Rese 262 U.S. Florida Health Care Ass'n v. Page 4, Leon Co. Circuit Ct. . 26 Ford Motor Co. v. Dept. ay 323 U.S. T55- = 39 65 S.Ct. 247 (1945) 7. ° e . * * . * ca . * . * 18, ii CITATIONS (cont.) eee Northern Ins. Co. v. -5. 47, 98 Cre. 1121, 64 §.Ct. 873 (1944). - . ° 2 ° . ° . ° o - 7° Gulesiar v. Dade School Board, O-« ae . o = Hereeon v. State Bd. of Educ., Oe Ds »: EBs BIR wEG. 742, 29 "$.ct. 458 (1909). «6 « iii PAGE 13 26 18 23 22 27 23 18 16 13 7% CITATIONS (cont.) Nevada v. Hall, 440 U.S. 410, Ed. 16, 99 S.Ct. New York State Ass'n for ~~Retarded Children v. Kerry, 596 F.2d 27, 39 (id Cire t xr. 1979). Owens v. Roberts, Case No. — = V-J=—= 1974) ° ° * ° ° ° . ° ° Palmer v. Ohio, 248 U.S. 32, ° » 29 8.Ct. 16 OR Ky Sang Pan American P. Corp. v. (M.D. Fla. Superior Court, oS. 656, eC 6 L.bd.2a 584, 589- 90, 81 S.Ct. 1303 (1961) Pharmacists Soc. of Milwaukee ~ Cty. V. Dept. of Human Services, 15 FR , 408-410 (E.D. Wisc. 1978) *- ee @« Quern v. Jordan, 440 U.S. 54 ’ -Ed. 2d 358, 99 8.Ct. 1139 (1979): « Spangler v. Florida State Tepe BOE 106 So.2da ae 8) 7 * e «© @«@ iv 332, 362, PAGE 16 31 30 18 22 . 16 12 18 CONSTITUTIONS and STATUTES U.S. Constitution: Amendment XI. « « «© © © © © « @ Florida Constitution: Article X, Sec. 13. « « e « e » Florida Constitution: Section 409.055 . « «© e e e e e 45 C.F.R. sec. 205.100 (a) (2) (ii) (1977) fe oe eee Ree ae oe Le ee oS 45 C.F.R. sec. 250.30(a) (3) (iv) (1976) ° + ° . oe o * - 7 7 - 42 U.S.C. sec. 1396a(a) (13) (E) sec. 249, P.L. 92-603 re a 42 U.S.C. sec. 1396(c). «. « « wo 28 U.S.C. sec. 1254(1). .« « « « « 28 U.S.C. sec. 1331 « « « © © @ P.L. 94-182, sec. lll. « »« « « « Pole 947552 we ee ewe ee ee OTHER AUTHORITIES Anno., 50 L.Ed.2d 928, sec. 15 at PP. 954-56 Ee Do ee ae i ee ee ee PAGE 24 16 QUESTION PRESENTED FOR REVIEW Whether by agreeing to abide by federal laws and regulations applicable to the Medicaid program, Florida waived its Eleventh Amendment immunity from suit in federal court for retroactive damages sought by Medicaid providers because Florida complied with a federal regulation later declared in violation of federal statute. PARTIES TO THE PROCEEDING Petitioners are the State of Florida Department of Health and Rehabilitative Services and its Secretary, A. J. Taylor, substituted for William Page, Jr. Respondents are the Florida Nursing Home Association, individual nursing homes located in the Southern District of Hinbiae. and Patricia Roberts Harris, as Secretary of the U.S. Department of Health and Human Services, formerly the Department of Health, Education and Wel- fare (HEW). OPINIONS BELOW The Opinion of the Fifth Circuit Court of Appeals is reported at 616 F.2d 1355 (5th Cir. 1980), and its text is reproduced in Appendix I. The Order denying Petition for Rehearing is repro- duced in Appendix II. L For a listing of these individual facilities, see Petition for Certiorari in A. J. Taylor v. Golden Isles Con- valescent Center, Inc., Case No. 80-85, now pending in this Court, at pp. i-ii. 2 The Fifth Circuit Opinion dealt with consolidated cases. The Golden Isles case concerned jurisdiction and venue in suits against states and is the subject of Petition for Certiorari in Case No. 80-85. This proceeding seeks review of the Florida Nursing Home Association case concerning Eleventh Amendment immunity. The opinion below reversed the Order of the U.S. District Court for the Southern District of Florida granting summary judgment in favor of the State on the claim by the nursing home plaintiffs for retroactive benefits. The District Court held such claim was barred in federal court by the Eleventh Amendment. The District Court's Memorandum Opinion and Order is repro- duced in Appendix III. 3 JURISDICTION | The Opinion the Fifth Circuit Court of Appeals sought to be reviewed was en- tered on May 6, 1980. Timely petition for rehearing was denied on July 22, 1980. This Court's jurisdiction is invoked un- der 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY ~~ PROVISIONS INVOLVED United States Constitution, Amendment XI: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the states by citizens of another state or by cit- izens or subjects of any foreign state. 42 U.S.C. sec. 1396a(a) (13) (E);: Sec. 249, P my 4 527-603: Sec. 1396a. State plans for medical assistance--Contents (a) A State plan for medical assis- ance must-- (13) provide-- (E) effective July 1, 1976, for payment of the skilled nursing facility and intermediate care facility services provided under the plan on a reasonable cost re- lated basis, as determined in accor- dance witlk methods and standards which shall be developed by the State on the basis of cost-finding methods approved and verified by the Secretary. 45 C.F.R. sec. 250.30 (a) (3) (iv) (1976): The State plan shall set forth the methods and standards used by the State to determine reasonable cost-related pay- ment rates, and shall set payment rates on the basis of such methods and stan- dards, to be effective no later than January 1, 1978. Article X, Section 13, Florida Constitu- tion: Suits against the state.-- Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating. Section 409.055, Florida Statutes (1977): The department...shall have the power to contract and be contracted with, to sue and be sued in actions ex con- tractu but not in torts, * * * 6 STATEMENT OF THE CASE This case originated in the United ‘States District Court for the Southern District of Florida under federal ques- tion jurisdiction, 28 U.S.C. sec. 133l. Florida nursing homes challenged the validity of a federal Yegulation con- cerning the time requirement for states participating in the Medicaid program to implement a reasonable cost-related plan for reimbursement of providers of nursing home services to welfare recip- ients. Public Law 92-603, sec. 249, 42 U.S.C. sec. 1396a(a) (13) (E), effective July 1, 1976, requires participating states to reimburse nursing home pro- -” viders on a "reasonably cost-related" basis. However, the Department of Health, Education and Welfare, by regu- lation codified as 45 C.F.R. sec. 250.30(A) (3) (iv) (1976), set January 1, 1978 as the ettéctive date of the stat- ute because HEW had been slow in prom- ulgating regulations and did not wish to penalize the states because of its ase On October 18, 1977, the District Court found the HEW regulation inconsis- tent with congressional mandate and ordered Florida to submit a new plan to HEW for approval and to reimburse under such approved (new) plan prospec- tively from the date of adjudication of invalidity. 2 See Memorandum Opinion of District Court for Southern District of Florida, dated October 1, 1977, reported at 442 F.Supp. 201 (S.D. Fla. 1977) and repro- duced at Appendix IV. 7% On July 7, 1978 the District Court denied the motions of the nursing homes to require Florida to implement its new plan back to July 1, 1976. The District Court held this was a claim for retro- active damages for which federal court jurisdiction was barred by the Eleventh Amendment and this Court's ruling in Edelman v. Jordan, 415 U.S. 651 (1974). The District Court entered summary judg- ment in favor of the State and dismissed all claims by the nursing homes for retro- active benefits. The Fifth Circuit Court of Appeals reversed this judgment in favor of the State. The Fifth Circuit agreed that the nursing homes were seeking payment of state funds as a result of a past breach of legal duty, which was a claim for retroactive damages barred by the Eleventh Amendment unless consented to 9 by the State. However, the Fifth Circuit held that Florida had waived its con- stitutional immunity against being sued 6m this claim in federal court because as part of the standard provider agree- ment, Florida and Medicaid pro siders mutually agreed to abide by all state and federal laws, regulations and guide- idee. On September 16, 1978, after HEW had approved a new cost-related plan, the District Court ordered that payment be made under the new plan from October 1, 1977, reserving for trial the > The language appears in the sixth typewritten paragraph of a form agree- ment, containing two legal-sized pages in single space print. The paragraph reads verbatim: "Both the provider and the sin- gle state agency hereby agree to recognize and abide by all state and federal laws, regula- tions, and guidelines applicable to participation in and admin- istration of, the Title XIX Medicaid Program." 10 question of whether the new plan met the statutory criteria of reasonably cost- related. (Appendix V) Recently, on July 29, 1980, the District Court remanded the new plan back to HEW for reconsideration because HEW's previous review was deemed insuffi- cient under criteria recently announced by the Fifth Circuit in Alabama Nursing Home Ass'n. v. Harris, 617 F.2d 388 (5th Cir. 1980). (Appendix VT) REASONS FOR ALLOWANCE OF THE WRIT The opinion below effectively | nullifies this Court's iandmark decision of Edelman v. Jordan, 415 U.S. 65l, 39 L.Ed.2d 662, 94 S.Ct. 1347 (1974). This Court held in Edelman "that retroactive welfare benefits awarded by a Federal District Court to plaintiffs, 1l 7% by reason of wrongful denial of benefits by state officials prior to entry of the court's order determining the wrongful- ness of their actions, violated the Eleventh Amendment." Quern v. Jordan, 440 U.S. 332, 333-34, 59 L.Ed.2d 358, 362, 99 S.Ct. 1139 (1979). Edelman specifically recognized: 1) that Eleventh Amendment immunity extended to past violations of federal law related to a cooperative federal- state program under the Social Security Act comparable to the Medicaid program; 2) that a state's agreement to administer such program in compliance with federal law did not constitute consent for it to be sued for retroactive damages in federal court; and 3) that a state's consent to waive its FRleventh Amendment immunity must be clear and express: 12 -. "The Court of Appeals held that as a matter of federal law Illinois had 'construc- tively consented' to this suit by participating in the federal AABD program and agreeing to administer fed- eral and state funds in compliance with federal law. Constructive consent is not a doctrine commonly associated with the surrender of con- stitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated "by the most express language or by such overwhelming im- plications from the text as [will] leave no room for any other reasonable construc- tion.’ Murray v. Wilson Distilling Co., 213 U.S. 151, L?L¢ 5S UokGe T2y a9 8.Ct. 458 (1909). We see no rea- son to retreat from the Court's statement in Great Northern Insurance Co. v. Read, 322 U.S., at 54, 88 L.Ed. 1121 (footnote omitted) : '(Wlhen we are deal- ing with the sovereign 13 > exemption from judicial interference in the vital field of finan- cial administration a clear declaration of the state’s intention to submit its fiscal problems to other courts than those of its own creation must be found. ' The mere fact that a State participates in a program through which the Federal Government provides assist- ance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts.* * * The only language in the Social Security Act which pur- ported to provide a federal sanction against a State which did not comply with federal requirements for the distri- bution of federal monies was found in former 42 U.S.C. sec. 1384 [42 U.S.C.S. sec. 1384] (now replaced by sub- stantially similar provisions in 42 U.S.C. sec.804), which provided for termination of future allocations of federal funds when a participating State failed to conform with federal law. This provision by its terms did not authorize suit against anyone, and standing alone, 14 7% fell far short of a waiver by a participating State of its Eleventh Amendment immunity." Id., 415 U.S. at 673-74; 39 L.Ed.2d 678- 79. f[e.s.] Contrary to Edelman, the opinion below holds that a state may be sued in federal court for retroactive damages growing out of its participation in a welfare program because the administering state agency agreed to abide by federal law. In effect, the opinion below approves concepts of constructive consent and implied waiver which this Court explicitly rejected in Edelman. A state may not waive its Eleventh Amendment immunity by inference, and the State of Florida does not expressly consent to be sued in Federal Court because a state agency which can be sued in state court agrees to abide by federal law. 15 This Court hz.s consistently held that a state statute consenting to suit against the state constitutes consent to be sued ‘n state court,not federal cau A statute waiving a state's common law immunity against suit in its own courts is immaterial to consideration of whether the state waives its immunity from suit in 5 federal court under the Eleventh Amendment. 4 See authorities discussed in Anno., 50 L.Ed.2d 928, sec. 15 at pp. 954-56. Also see Medicenters of America, Inc. v. Virginia, 373 F.Supp. 305 (E.D. Va. 1574), and Pharmacists Soc. of Milwaukee Cty. v. Dept. of Human Services, 79 FRD 405, 408- 710 (E.D. Wisc. 1978), applying these authorities to bar federal court damage suits related to the medicaid program. 5 See Nevada vs. Hall, 449 U.S.410 , 59 L.Ed.2d 416, 99 S.Ct. 1182, 1186- 88 (1979), holding that a state's sover- eign immunity from suit in its own courts does not provide a basis for a claim of immunity in another sovereign's court. The basis for a state's immunity from suit in federal court is the Eleventh Amendment to the U.S. Constitution, and a state must waive the immunity given under that Amendment to be sued in federal court. 16 Indeed, Edelman v. Jordan, supra, addresses this very point in footnote 19, 415 U.S. at 678, stating that whether Illinois had abolished its common law sovereign immunity in its state courts was not determinative of whether it had relinquished its Eleventh Amendment immunity in the federal courts. Moreover, the State of Florida has not waived its Eleventh Amendment immunity by statute as required under Florida law. The state agency's agreement is immaterial to consideration of whether Florida has consented to suit in federal court since no overriding federal law or policy pertaining to the medicaid program mandates such consent by agree- ment. Under decisions of this Court, where no overriding federal law or policy exists, state law determines 17 -y whether the state has consented to suit in federal sciaiht Florida's Constitution (Art. X, sec. 13) requires that consent to suit against the state as to any liability be given by general law. By virtue of this provision, no part of the state's immunity may be waived except by general law (statute) that is clear and unequivocal, and waiver may not occur 7 by special act. In Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 89 L.Ed. 389, 65 S.Ct. 347 (1945), this 6 Palmer v. Ohio, 248 U.S. 32, 63 L.Ed. 108, 39 S.Ct. 16 (1918); Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 89 L.Ed. 389, 5 eGes (1945). ton v. State Bd. of Educ., 105 So. eeeiry angler v. Florida State Turnpi ke Auth.» = ao-7a 421 (Fla. 1558); aoe ee hu RiepsEt, 217 So.2d 116, 119-20 Manaece a v. Town of bbe Bainrys | Boat bee ° tong Court examined a similar provision of the Indiana Constitution and held that Indiana required statutory waiver of its Eleventh Amendment immunity and that its executive branch was not authorized to consent to suit in federal court in particular cases: "We interpret this pro- vision as indicating a policy prohibiting state consent to suit in one particular case in the absence of a general con- sent to suit in all sim- ilar causes of action. Since the state legislature may waive state immunity only by general law, it is not to be presumed in the absence of clear language to the contrary, that they conferred on administrative or executive officers dis- cretionary power to grant or withhold consent in indi- vidual cases." 323 U.S. at 468. No statute in Florida consents to suit against the state in federal court, and the state agency may not 19 7% contract away the state's Eleventh Amendment immunity, even if it had attempted to do so in this Ey Eleventh Amendment immunity may not be waived by the state agency for a particular class of persons in a particular kind of case. Either Florida has waived its Eleventh Amendment immunity by appropriate statute, or it has not. Finally, even if the state agency could waive the state's immunity as to particular cases, its agreement to abide by federal law is not consent to suit against the state in federal court and 8 Whether the state agency could waive Eleventh Amendment immunity under Florida law by instituting suit in federal court or by failing to raise its immunity as a defense is not germane to the issues in this case. 20 _- is not a clear waiver of Eleventh Amendment immunity, for the following reasons: 1. The Eleventh Amendment is part of federal law. A constitutional right cannot be waived by agreeing to abide by federal law which confers that right. Constitutional rights are not foregone by an affirmation of their existence. If this be the law, then medicaid providers, who also agree to abide by federal law, thereby waive their constitutional right against self- incrimination regarding their participa- tion in the program. And welfare recipients whose application acknowledges compliance with federal law thereby waive their constitutional right to due process. And so on. 21 2. Agreement to be bound by federal law is not the equivalent of consent to a damage suit in federal court for breach of federal law duty. State judges are required by Article VI of the United States Constitution to follow federal law. This Court presumes state courts will properly adjudicate claims arising under federal bgt involving questions 10 of federal law. 5 Hoffman v. Pursue, Ltd., 420 U.S. 592, 611, 43 L.Ed.2d 482, 496, 95 S.Ct. 1200 (1975); Dowd Box Co. v. Courtney, 368 U.S. 502, 508, 7 LeEd.20 483, 487, 62 S.Ct. 519 (3962). 10 Pan American P. corr: v. Superior Court, 366 U.S. ’ -64, 6 L. - d 584, 589-90, 81 S.Ct. 1303 (1961). 22 % 3. The state agency's agreement to abide by federal law is an acknow- ledgment of the obligation already imposed by operation of law. States electing to participate in the Medicaid program must comply with the requirements of Title XIX of the Social Security ee and their plans must conform with the hic cael of federal law and regulations. States are also required to enter provider agreements Ll Harris v. McRae, U.S. , 65 L.Ed.2d 704, 794, 799 (1980). 12 See King v. Smith, 392 U.S. 309, 317, 20 L.Bd.20 Lilo, 1125, 88 S.Ct. 2128, note 12. Unless HEW (HHS) approves the plan, federal funds will not be made available 42 U.S.C. 1396; and if the state fails to comply with the plan, HHS may terminate federal payments. 42 U.S.C. sec. 1396(c). These provisions are comparable to those in the AFDC and AABD programs discussed in King v. Smith and Edelman v. Jordan, supra. 23 7% that set out the relationship and responsibilities of the ee ie Since the state's agreement to abide by federal law as part of the plan does not consent to suit in federal court (Edelman, supra), a state agency's recognition of that obligation in a provider agreement required to carry out the plan has no greater consequence. All applicable federal requirements necessarily are part of the provider 14 agreement. T3 See 45 CFR sec. 205.100 (a) (2) (ii) (1977). 14 See Farmers and Merchants Bank vs. Federal Reserve Bank, 202 U.S. 049, 67 L.Ed. 1145, 1104 (per Justice Brandeis): "Laws which existed at the time and place of the making of a contract...form a part of it, as fully as if they had been expressly referred to or incurred in its terms." 24 -» | - | The practical effect of the opinion below is that any time a state agency expresses its intent to abide by federal law, the State waives its Eleventh Amendment immunity. Since the State must comply with federal law as a condition to participation in the Medicaid program, this expression is inevitable and might occur in a state regulation, in correspondence, or in a handbook about the program. It is no longer necessary for a state statute to waive Eleventh Amendment immunity, and the requirements of state law regarding waiver of immunity may be completely ignored. 25 7% If the Eleventh Amendment is properly respected, respondent nursing homes can seek recourse against Florida by suit in state court, and they now have an action pending in state court to recover the same retroactive benefits being sought in this Seas Under Florida law, equitable principles will control whether retroactive benefits are awarded for the period prior to court- ordered clarification of the state's 16 duty under federal law. I5 Florida Health Care Ass'n v. Page, Case No. 79-2504, Circuit Court for Leon County, Florida. 16 See Gulesiar v. Dade County School Board, 281 So.2d 325 (Fla. CLEP 26 i Congress has recognized the propriety of requiring Medicaid providers to seek recourse elsewhere than federal court. On the same day as it was to go into effect, Congress repealed a statute requiring states in the medicaid program to waive their federal court immunity as 17 to hospital provider suits. Hospital Ass'n. of New York, Inc. v. Toia, 577 F.2d 790, 796 (2d Cir. 1978) explains that repeal of this mandatory waiver eliminated the ability of hospital pro- viders to seek redress in federal court. But it was emphasized that this was only one form of remedy and that hospital pro- viders still had recourse to state courts and HEW administrative proceedings. b Be See P.L. 94-182, sec. 111 and P.L. 94-552. Apparently, the mandatory waiver was passed initially in response to Edelman v. Jordan, supra. 27 7% There are literally thousands of federal statutes, regulations and guidelines which states administering the various welfare programs can violate in good faith. The opinion below could have an immense budgetary impact on the states if federal courts are insensitive to their fiscal problems. The nursing home industry is attacking the validity of current reimbursement plans around the country because federal executives failed to properly implement federal statutes. Millions and millions of dollars are potentially involved, even if the attacks are restricted to the issues raised in this case. For states which followed the January 1978 federal time regulation, there is the potential cost of imple- 28 menting current plans back to July l, 1976. And for states whose current Plans will have to be re-reviewed because HEW review standards were insufficient under Alabama Nursing Home Ass'n v. Harris, 617 F.2d 388 (5th Cir. 1980), there is the potential cost of implementing revised plans developed under current standards back to July l, 1976. Finally, the opinion below results in an anomalous distinction between persons to whom the State owes a duty to comply with federal law. Welfare recipients in Florida cannot sue the State for retroactive benefits in 29 73 18 federal court, but service providers are allowed access to federal court for that purpose. The respondent nursing homes in related Case No. 80-85 triumph this as the important issue in the case. They indicate by letter to the Court dated August 15, 1980, that this Petition would address "...the extremely important and crucial issue of retroactive Eleventh Amendment immunity as regards private business service providers." Florida submits that health care providers have no special exemption 1s See Owen v. Roberts, Case No. 73- 423-Civ-J-S (M.D. Fla. 1974) (3-judge panel), applying Edelman v. Jordan, supra, to deny retroactive benefits in a suit by welfare recipients against Petitioner to declare certain state eligibility regulations in conflict with federal law. 30 from the Eleventh Amendment. Whether recipients or providers are involved, Florida is entitled to have its own courts decide whether damages should be awarded against it for breach of 19 legal duty not clarified by court order. 19 The opinion below cites New York State Ass'n for Retarded Children v. Kerry, 596 F.2d 27, 39 (2a Cir. 1979), as Tedicatane basis for federal juris- diction. That case dealt with prospec- tive damages awarded to enforce compliance with a federal court order which the state failed to follow. Retroactive damages were not involved. 31 | CONCLUSION The opinion below clearly departs from controlling precedent of this Court and creates serious potential consequences for states participating in the Medicaid program. Summary disposition should be made on the merits to reinstate the judgment of the District Court. See Supreme Court Rule 23.1 and Alabama v. Pugh, 483 U.S. 783, 98 S.Ct. 3057, 57 L.Ed.2d 1115 (1978). Respectfully submitted, CULPEPPER, BEATTY & TURNER Post Office Box 10261 600 Lewis State Bank Bldg. Tallahassee, FL 32302 (904) 222-4945 Counsel for Petitioner 32 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2nd day of October , 1980, three copies of the Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit were mailed, postage prepaid, to ELLIOTT SHAW, ESQUIRE, Suite 611, New World Tower, 100 N. Biscayne Blvd., Miami, FL 33132; A. THOMAS MIHOK, ESQUIRE, 5458 Wood- crest Drive, North, Orlando, FL 32807; and THE SOLICITOR GENERAL, Department of Justice, Washington, D.C. 20530. CULPEPPER, BEATTY & TURNER Post Office Box 10261 600 Lewis State Bank Bldg. Tallahassee, FL 32302 Counsel for Petitioner 33 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1980 CASE NO. FLORIDA DEPARTMENT OF HEALTH and REHABILITATIVE SERVICES, et al., Petitioners, Vv. THE FLORIDA NURSING HOME ASSOCIATION, et al., Respondents. APPENDIX 34 APPENDIX NO. I II IiIr IV vi INDEX TO APPENDIX ITEM DESCRIPTION Decision of Fifth Circuit Court of Appeals dated May 6, 1980. Order of Fifth Circuit Court of Appeals Denying Rehearing, dated July 22, 1980. Order of District Court for Southern District of Florida dated July 7, 1978 (granting judgment in favor of the State on all questions regard- ing Plaintiff's entitle- ment to retroactive benefits). Memorandum Opinion and Order of District Court for Southern District of Florida dated October 18, 1977. Order of District Court of Southern District of Florida dated September 16, 1978. Order of District Court for Southern District of Florida dated July 28, 1980. APPENDIX I | IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Nos. 78-2745, 77-3467 7. FLORIDA NURSING HOME ASSOCIATION, et al., Plaintiff-Appellants, Ve WILLIAM PAGE, JR., et al., Defendants-Appellees. GOLDEN ISLES CONVALESCENT CENTER, INC., et al., Plaintiffs-Appellants, Ve PATRICIA ROBERTS HARRIS, etc., et al., Defendants-Avpellees.. Appeal from the United States District Court for the Southern District of Florida May 6, 1980 Before AINSWORTE and HENDERSON, Circuit Judges, HUNTER, District Judge. 1 °,*% AINSWORTH, Circuit Judge; These consolidated appeals arise from separate orders of the United States District Court for the Southern District of Florida. The orders resulted from partial adjudications in two suits brought by several Florida nursing homes against the Florida Department of Health na Rehabilitative Services (DHRS) and its secretary and the secretary and regional director of Health, Education and Welfare (HEW) concerning plaintiffs’ rights to receive payments on a "reasonable cost- related basis" for services rendered under the Medicaid program of the Social Security Act (the Act). 42 U.S.C. § 1396 et seg. Both suits sought to have a regulation issued by HEW, 45 C.F.R. § 250.3(a) (3) (iv) (1976), declared invalid. This regulation establishes January 1, 1978 as the date by > . which states participating in the Medicaid rogram were required to implement a plan to reimburse providers of services on a reasonable cost-related basis. Section 249 of the Social Security Act, 42 U.S.C. § 1396a(a) (13) (E), bowever, fixes July l, 1976 0 the effective date for implement- ing such a plan for reimbursement. In the first suit, brought by Golden Isles Convalescent Center, Inc. and other licensed nursing homes in Dade and Broward Counties, Florida (referred to collectively as Golden Isles), the district court upon plaintiffs’ motion for summary judgment held the administrative regulation invalid as inconsistent with the congressional mandate provided for in the Act. In partially granting Golden Isles’ motion for summary judgment, the court held that plaintiffs were entitled to payment from the state on > 7% a reasonable cost-related basis prospectively from the date of its ruling, October 18, 1977. It also ordered Florida DHRS to submit a plan effective October 18 and approved by How in compliance with the Act's mandate for providing a cost-related reimbursement plan. The court reserved ruling on the question of plaintiffs’ entitlement to reimbursement retroactively from July 1, 1976, the date set out in the statute. In its order the court also ruled that its exercise of juris- diction and venue were proper, despite ob- jections by defendants that exclusive. juris- Giction lies in the United States Supreme Court and that venue was proper only in the Northern District of Florida, the location of the main offices of the DHRS. Defendant Florida DHRS appealed the court's order. The issues raised by appellant constitute the substance of the first appeal before us, which appeal will be referred to as the Golden Isles case (No. 77-3467). In the second suit, the court also granted a partial summary judgment in favor of plaintiffs, Florida Nursing Home Associa- tion and its nursing home members (collect- ively referred to as Florida Nursing Home). In its order the court incorporated its | opinion in the Golden Isles case invalidating the HEW regulation and requiring the state to " peinburse plaintiffs on a reasonable cost- related basis from October 18, 1977 | prospectively. Once again, a ruling on plaintiffs' right to retroactive relief was reserved by the district court until it considered. written memoranda submitted by the parties. No appeal was taken by defendants from this order. While Florida's appeal from the partial summary judgment in the Golden Isles case 7% was still pending in this court, the — district court consolidated for trial the Golden Isles and Florida Nursing Home cases for a determination whether the current approved plan submitted by Florida DHRS complies with the applicable Social Security statute. In its order the court also entered judgment in favor of defendant - Plorida DHRS denying plaintiffs Golden Isles and Florida Nursing Home retroactive reim- bursement from the state on a reasonable cost-related basis for services rendered prior to October 18, 1977. Plaintiffs appealed the court's ruling regarding their right to retroactive payments. The issue of plaintiffs-appellants' entitlement to reimbursement from the state on a reasonable cost-related basis prior to October 18, 1977 constitutes the substance of the second appeal to be addressed by us, which we will refer to as the Florida Nursing Home case. (No. 78-2745) . Gdlden Isles Case’ (No. 77-3467) In its appeal of the court's partial granting of’ Golden Isles’ motion for sum- Mary judgment, appellant Florida DHRS asserts the district court erred in four respects. We disagree and affirm the court's ruling. I. [1] Appellant first contends that the district court was without jurisdiction to hear this controversy because cristina’ and exclusive jurisdiction lies in the United States Supreme Court. Florida argues that since this action constitutes a controversy between a state and its own citizens under axtiste III, section 2, clause 2 of the United States Constitution, the Supreme Court has original and exclusive jurisdiction. 7 Appellant's contention is erroneous. It is well established that the United States Constitution grants neither original nor exclusive jurisdiction to the United States Supreme Court over controversies between a state and its own citizens. C. Wright, Law of Federal Courts 557 (3d ed. 1976). The first paragraph of section 2 of article III of the constitution provides in pertinent part: The judicial Power shall extend ee to Controversies to which the United States shall be a Party;—to contro- versies between two or more States;— between a State and Citizens of another State;—between citizens of different States ..-.. The second clause, which appellant relies on here, states: In all Cases .. . in which a State ' shall be a Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned the supreme Court shall have appellate jurisdiction ‘oes In interpreting these provisions, the Supreme Court several years ago in California v. Southern Pacific Co., 157 U.S. 229, 258, 15 S.Ct. 591, 602, 39 L.Ed. 683 (1895), made it clear that the language of clause 2 "{ijJn all Cases... - in which a State shall be [a] Party," means in all the cases enumerated in clause 1 of article III, section 2. Nowhere in clause 1 is there mention of a controversy between a state and its own citizens. As the Supreme Court fixmly stated: "By the Constitution stg this court has exclusive jurisdiction of all controversies of a civil nature where a state is a party, but not of controversies between a state and its own citizens ...." Id. at 258, 15 S.Ct. at 602. See Texas v. Interstate Commerce Commission, 258 U.S. 158, 163, 42 S.Ct. 261, 263, 66 L.Ed. 531 (1922); Minnesota v. Northern Securities Co., 184 U.S. 199, 245-46, 22 S.Ct. 308, 325-26, pa eeeme 2 «. © 46 L.Ed. 499 (1902). This rule has been codified in the statutory provision which describes the original jurisdiction of the Supreme Court. See 28 U.S.C. § 1251. Although section 1251(b) (3) provides for the Supreme Court's original, but not exclusive, jurisdiction of all actions by a state against the citi- zens of another state, there is no provision for controversies between a state and its own citizens. Golden Isles brought this suit alleging violations by Florida of 42 U.S.C. § 1396a. The district court's ruling that it had jur- isdiction over this action pursuant to 28 U.S.C. § 1331(a), which provides for the district court's jurisdiction of all actions arising under the laws of the United States wherein the amount in controversy exceeds $10,000, was thus proper. 10 Ss, Appellant Florida DHRS next contends that venue was proper only in the Northern District of Florida where the principal offices of DHRS and its secretary are located. It asserts that when a state officer or agency is sued for the purpose of compelling official action, venue lies only in the district wherein the agency and its executive officers maintain their official residences. Our review of the statute and the important considerations underlying the choice of a proper forum lead us to conclude that appellant's assertion that venue is im- proper in the Southern District of Florida is erroneous.. Venue is governed by the federal venue statute, 28 U.S.C. § 1391(b), which provides: A civil action wherein jurisdiction is not founded solely on diversity of citi- zenship may be brought only in the ju- dicial district where all defendants 11 7% reside, or in which the claim arose, except as otherwise provided by law. | The general rule in suits against public officials is that a defendant's residence Zor venue purpose is the district wherein he performs his official duties. 1 Moore's Federal Practice 40.142[5.-1-2], at 1396 (2d ed. 1979). See, e. g., Butterworth v. Eill, 114 U-sS. 128, 132, 5 S.Ct. 796, 798, 29 L.Ed. 119 (1885); O'Neill v. Battisti, 472 F.2d 789, 791 (6th Cir. 1972), cert. denied sub nom. Heitzler v. O'Neill, 411 U.S. 964, 98 S.Ct. 2142, 36 L.Ed.2d 685 (1973). A number of the cases applying this principle. have involved federal officials or agencies and have found only one official residence. See, e.g., Ernst v. Secretary of the Interior, 244 P.2d 344, 17 Alaska 133 (9th Cir. 1957); Trueman Fertilizer Co. v. Larson, 196 F.2d 910 (5th Cir. 1952); Hartke v. Federal Aviation Administration, 369 F.Supp. 471 (E.D.N.Y¥.1973). 12 It has been held, however, that a state agency or official does not necessarily have a single residence. See Buffalo Teachers Federation, Inc. v. Helsby, 426 F.Supp. 828 (S.D.N.Y¥.1976). In Buffalo Teachers Federation the court noted that in suits against federal agencies, the federal govern- ment would be faced with serious difficulties if it were forced to answer complaints in a multitude of forums and forum shopping would be greatly encouraged if nine could be brought in any district where a subordinate departmental officer resides. Such problems, however, "are significantly less serious in the context of a suit against a state govern- mental entity or official." Id. at 829. In the state context, there is little threat of inconvenience or even forum shopping, at least sufficient “to warrant a blanket rule that there may never be more than a single residence.™ Id. In Buffalo Teachers 13 _- Federation the-court determined that although the state agency involved had its central headquarters in the Northern District of New York, venue was not lacking in the Southern District: where the suit was brought. The agency involved maintained a field office in the Southern District and a significant portion of its business was conducted from that office. : | Here, Florida DHRS, though headquartered in the Northern District of Florida, maintains a large office in the Southern District and much of its business is transacted from that office. ‘Purthermore, the venue statute makes it clear that the residence of defendants does not provide the only basis for venue. Venue is also proper in the district where the claim arose. Though the legislative history of section 1391(b) fails to suggest what the draftsmen thought about the question of where 14 —s — on a claim arises, 1 Moore's Federal Practice 40.142[5.-2], at 1423 (24 ed. 1979), when the statute was amended to extend venue to a district "in which the etnies arose," the purpose was'to “facilitate the disposition : of . . . Claims by providing a more convenient forum to the litigants and witnesses involved.” H.R.Rep.No. 1393, 89th Cong., 2d Sess 2 (1966). Thus, "where the claim arose” should be "ascer- tained by advertence to events having operative significance in the case, and a comnon-sense appraisal of the implications of those events for accessibility to we enenees and records." Lamont v. Haig, 590 P. 2d 1124, 1134 (D. C.Cir.1978) | This is not to suggest that only a “single district can satisfy the statutory standard with respect to any given claim. Often, the factors deemed determinative might well indi- cate the suitability of several forums. See, e.g., Commercial Lighting Products, Inc. v. 15 '* . United States District Court, 537.F.2d 1078,. 1080 (9th Cir. 1976); Tefal, S.A. v. Products International Co., 529 F.2d 495, 496-97 (3d Cir. 1976); Gardner Engineering Corp. v. Page Engineering Co., 484 F.2d 27, 32-33 (8th Cir. 1973). In any case, the court should not oppose the plaintiffs' choice of venue if the activities that transpired in the district where suit is brought were not insubstantial and the forum is a convenient one balancing the equities and fairness to each party. Lamont v. Haig, supra, 590 F.2d at 1134 n. 62; _— Weil v. New York State Department of trans- - portation, 400 F.Supp. 1364, 1365 (S.D.N.Y. 1975). Applying this standard, then, it is clear that venue properly lies in this matter in the Southern District of Florida. Not _ only does appellant maintain a large office: there but the payments which Golden Isles is--. - 16 seeking were allegedly due it within the Southern District where Golden Isles and the other plaintiffs-appellees are seated. This is sufficient in the circumstances of this case to justify the placing of venue in the Southern District of Florida. Tit. Appellant's third contention is that the Eleventh Amendment to the United States Constitution bars the district court's direc- tive that the Florida disdain wolead® a plan for reimbursing Golden Isles in accordance with the requirements of the Medicaid statute. Appellant argues that the court's order con- stitutes a prohibited ruling against the state itself, binding the state in contravention of the Eleventh Amendment to a particular course of conduct. Florida's argument is without merit. The Supreme Court held in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 39 662 (1974), that a federal court decree mandating that a state officer or agency administering a federal entitlements program comply with the requirements of the federal act creating the program is not void by vir- tue of the Eleventh Amendment, even though the state official will inenast ve be recuired to spend money from the state treasury to carry out the court's order. Id. at 667-68; 94 S.Ct. at 1357-58. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, | 52 L.Ed. 714 (1908). This is a well- established principle and has been applied consistently by courts in cases involving matters similar to that confronting us here. See Rothstein v. Wyman, 467 F.2d 226, 236 Qd@ Cir. 1972), cert. denied. 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973); Hempstead General Hospital v. Whalen, 474 F.Supp. 398, 406 (E.D.N.¥.1979); Alabama 18 Nursing Home Association v. Califano, 433 F.Supp. 1325, 1330-31 (M.D.Ala.1977); Pharmacists Society of Milwaukee County, Inc. v. Department of Health and Social Services, 79 F.R.D. 405, 408 (E.D.Wis.1978). Here, the district court's order does no more than require Florida DHRS, pro- spectively from the date of its order, to comply with the Social Security Act's mandate that it reimburse providers of skilled nursing services on a reasonable cost- related basis. Judicial enforcement of the statute's requirements is therefore appro- priate, see Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), and the Eleventh Amendment is no bar where by its terms the court's decree is prospective in nature. Edelman, supra, 415 U.S. at 667- 68, 94 S.Ct. at 1358. 19 IV. | Appellant's final contention is that the court improperly granted in part Golden Isles’ motion for summary judgment since there exists a material issue of fact as to whether the state's current Medicaid plan meets the requirements of section 249 of the Social Security Act. Florida's contention misperceives the court's ruling. | In its order the district court did not rule that the wade Florida Medicaid plan .. was not in conformity with the Act's require- ment that the agency reimburse providers of services on a reasonable cost-related basis. Rather, the court's order merely directed HEW, in accordance with section 249, to determine whether the current Florida plan is in con- formity with the statute. If HEW's determi- ~ nation was adverse to the state, Florida ~ sas" BHRS was directed to submit a conforming plan- 20 to be approved by HEW. Once HEW approved the plan, the final determination whether the plan meets the requirements of section 249 was reserved for trial. Thus, the court's order was not dispositive of any factual dispute. The district court did not err, there- fore, in partially granting Golden Isles' motion for summary judgment as there were only issues of law presented and plaintiffs were entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Nunez v. Superior Oil Co., 572 F.2d 1119, 1123 (5th Cir. 1978). Accordingly, this judgment is AFFIRMED. - Florida Nursing Home Case (No. 78-2745) In this consolidated case, appellants Florida Nursing Home and Golden Isles appeal from the court's order denying their claim 21 for veimbursement on a reasonable cost- related basis for qurelon senvices provided by appellants prior to October 18, 1977, the date of the court's entry of a partial sum- mary judgment in the Golden Isles litigation. This appeal presents one basic issue: whether the Eleventh Amendment to the United States Constitution operates as a bar to the retro- active relief sought by appellants. We find | that under the circumstances of this case, . _. Florida has waived its Eleventh Amendment immunity by consenting to be sued in federal. court under the terms of its contracts with ~~ appellants. Under the Eleventh Amendment an unconsent- .-. ing state is immune from suits brought in federal court by her own citizens. Hans v.. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.2d 842 (1890); Parden v. Terminal Railway, 377 U.S.'184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). . 22 It is well established that suits brought against an agency of the state are in fact suits against the state and covered by the Eleventh Amendment. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 462, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Employees v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). Defendant-appellee Florida Department of Health and Rehabilitative Services is an agency of the Florida state government created by the Legislature. See Fla.Stat.Ann. § 409.016 et seq. (West 1973 & Supp.1979). The relief sought by appellants is reimbursment from the state agency on a reasonable cost- related basis as required by section 249 of the Social Security Act for nursing services rendered from July l, 1976, the effective date of the Act. As noted earlier, the 23 - district court's order denied such relief for any services provided prior to October 18, 1977, the date of the court's ruling. Th2 effect of an award granting Golden Isles and Florida Nursing Home their requested relief will require the payment of state funds as a result of a past breach of a legal duty on the part of the state. ‘Since this relief is retroactive in nature, if not consented to by the state, plaintiffs’ ) - action in federal court is barred by the Eleventh Amendment. Edelman, supra, 415 U.S. at 668, 94 S.Ct. at 1358. Thus, the sole issue reduces itself to a determination whether the State of Florida has consented to this action and effected a waiver of its sovereign immunity under the Eleventh So pie &mendment. , : ; For the purposes of this suit, the Florida Department of Health and Rehabilitative Services : 24 is governed by Fla.Stat.Ann. § 402.34 (West Supp.1979). This section provides in pertinent part: The department is a body corporate « « ee It shall have the power to contract and be contracted with, to sue and be sued in actions ex contractu but not in torts, and to have and to possess corporate powers for all pur- poses necessary to administer this chapter. ... By creating this department with authority to sue and be sued the State of Florida has expressly waived its sovereign immunity. This language, standing alone, however, does not constitute a waiver by the state of its constitttional immunity under the Eleventh Amendment from suit in federal court. See Smith v. Reeves, 178 U.S. 436, 441, 20 S.Ct. 919, 921, 44 L.Ed. 1140 (1900); Scott v. Boaré of Supervisors, 336 F.2d 557, 558 (5th | Cir. 1964). Nevertheless, the state has done more here than merely waive its general immunity 25 °-'. from suit in its own state courts. .Pursuant . ' to its corporate powers as outlined in section 402.34, Florida DHRS drafted and executed a contract with each appellant which outlines the precise’ obligations of the agency and the provider of services and which each pro- vider signed as a prerequisite to its par- ticipation in the Medicaid program. The sixth paragraph of the agreement which Florida entered into with appellants states: Both the provider and the Single State Agency hereby agree to recognize and abide by all State and Federal Laws, Kener Regulations, and Guidelines applic- able to participation in and admin- istration of, the Title xIX Medicaid Program. By contracting with appellants to be bound by all federal laws applicable to the ae Medicaid program, the state has expressly waived its Eleventh Amendment immunity and consented to suit in federal court regarding-----. any action by providers alleging a breach -- -:-: 26 of these laws. While it is true that waiver of immunity under the Eleventh Amendment is not to be lightly inferred, Edelman, supra, 415 U.S. at 673, 94 S.Ct. at 1361, the "overwhelming implication,” id. 94 S.Ct. at 1361, of the state's agreement with appellants is that it constitutes a waiver of Florida's constitutional immunity by requiring the DHRS to recognize and abide by all federal laws in participating in the Medicaid program. To bar federal court jurisdiction in this case could operate to immunize state officers and the agency from their contractual duty to adhere to federal statutory requirements. See generally New York. State Association for Retarded ‘Children v. Carey. 596 F.2d 27, 39 (2d Cir. 1979). A contrary holding in the circum- stances of this case, where appellants 27 — vy | Golden Isles and Florida Nursing Home have . provided nursing services in accordance with their contractual and statutory obli- gations since July 1, 1976, would achieve an inequitable result. Accordingly, we reverse this judgment of the court. AFFIRMED, as to Golden Isles Case (No. 77-3467). REVERSED, as to Florida Nursing Home Case (No. 78-2745). 28 APPENDIX II IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Nos. 78-2745, 77-3467 FLORIDA NURSING HOME ASSOCIATION, et al., Plaintiff-Appellants, Ve WILLIAM PAGE, JR., et al., De fendants~Appellees. GOLDEN ISLES CONVALESCENT CENTER, INC., et al., Plaintiffs-Appellants, Ve PATRICIA ROBERTS HARRIS, etc., et al., De fendants~Appellees. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion May 16, 1980, 5 Cir., 1980, F.2d ) (July 22, 1980) Before AINSWORTH and HENDERSON, Circuit Judges, and HUNTER, District Judge. 29 >» 7% PER CURIAM: The Petition for Rehearing of defendant-appellee Florida Department of Health and Rehabilitative Services is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) its Petition for Rehearing En Banc is DENIED. ENTERED FOR THE COURT: /s/ Robert A. Ainsworth, Jr. . United States Circuit Judge. 30 APPENDIX III IN THE UNITED STATES DISTRICT COURT IN AND FOR THE SOUTHERN DISTRICT OF FLORIDA NO: 76-1810-CIV-WMH 77-559-CIV-WMH GOLDEN ISLES CONVALESCENT CENTER, INC., et al., Plaintiff, VS. JOSEPH A. CALIFANO, JR., etc., et al., Defendants. FLORIDA NURSING HOME ASSOC, et al., Plaintiff, vs. WILLIAM J. PAGE, JR., et al., Defendants. THIS CAUSE having come on to be heard upon pending motions and for status conference, it is ORDERED AND AJUDGED that this cause and the case of Florida Nursing Home v. 31 -» 77> Page, #77-559-CIV-WMH, be consolidated for trial insofar as the issues as to "reasonable cost related basis" are con- cerned. ” * * As to the plaintiffs' petition, ore tenus, to review the Court's order on the retroactivity recovery claims, the Court being advised of an ambiguity in this Court's order denying the retroactive relief dated February 13, 1978 in the Golden Isles case, #76-1810-CIV-WMH, now consolidated for trial with the Florida Nursing Home, as stated above, and hav- ing considered additional argument on the question of retroactive relief, it is ORDERED AND ADJUDGED that judgment be and it is hereby entered in favor of the state defendants and against the plaintiffs' entitlement to retroactive benefits prior to October 18, 1977, on 32 the basis that such claims are barred by the llth Amendment. See Edelman v. Jordan, 415 U.S. 651 (1974). DONE AND ORDERED in Chambers at Miami, Dade County, Florida this 7th day of July, 1978. /s/ William M. Hoeveler U.S. DISTRICT JUDGE 33 >, APPENDIX IV IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA NO. 76-1810-Civ-WMH GOLDEN ISLES CONVALESCENT CENTER, INC., d/b/a HALLANDALE REHABILITATION CENTER, et al., Plaintiffs, vs. JOSEPH A. CALIFANO, JR., individually, and as Secretary of Health, Education and Welfare, et al., Defendants. i! MEMORANDUM OPINION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT October 18, 1977 Before HOEVELER, United States District Judge HOEVELER, District Judge: Certain nursing home operations located 34 ~~ in this District have brought suit against the State Department of Health and Rehabilitative Services, the Federal Department of Health, Education and Welfare, and their respective executive officers to require implementation of Public Law 92-603, Sec. 249, 42 U.S.C. Sec. 1396a(13) (E), here- inafter Sec. 249). Jurisdiction is invoked pursuant to ae U.S.C. Sea. i331. Venue, though ob- jected to by the State defendants, lies in this district. At the present time, the plaintiffs’ Motion for Summary Judgment is before this Court. As will be set out more fully in this opinion, the Court is unable to adjudi- cate the whole case upon the present state of the pleadings and will therefore treat Plaintiffs’ Motion as one brought under Rule 56(d), Federal Rules of Civil Procedure. 35 Plaintiffs are providers of skilled nursing facility services to the State of Florida which participates in the Medicaid Program with the Federal Government. Under the program, payments are made by the desig- nated State agency to qualified benefici- aries, including Plaintiffs. These payments come from State and Federal. sources and are made in accordance with vemuiactinn approved by the Secretary of Health, Education and Welfare. This dispute centers around the regula- tions issued by HEW (45 C.F.R. Sec. 250.30 (a) (3) (iv)) requiring the State participants to provide reimbursements "on a reasonable cost related basis” to skilled nursing home facilities. The regulation sets an effect- ive date of January 1, 1978. However, Section 249 sets an effective date of July l, 1976. HEW contends that it was slow in 36 promulgating regulations and that it did not wish to -eenanaentel State Aideeenige ge for its own delay. Since this case was commenced, the opinion of Judge Frank M. Johnson, Jr., in Alabama Nursing Home Association v. Califano, 433 F. Supp. 1325 (M.D. Ala. 1977) has been filed. Many of the same arguments brought before this Court by plaintiffs and defend- ants were addressed by Judge Johnson in some detail. This Court is in substantial agreement with Judge Johnson that the portion of 45 C.F.R. Sec. 250.30(a) (3) (iv) setting an effective date of January 1, 1978, ‘for imple- mentation of Section 249 is inconsistent with the Congressional mandate. Therefore, the regulation is invalid insofar as it sets an effective date other than July 1, 1976. The State of Florida has a present ability to calculate nursing home reimburse- ment rates on a cost related basis within the 37 meaning .of Section 249.. The deposition. of Hugo Jordan, Reimbursement Supervisor, Nursing Home Program,’ State Department, Florida Department of HRS establishes that the State has the necessary data to promul- gate a plan conforming to Section 249 on cost related basis effective immediately. There is some dispute as to whether or not the present plan conforms to Section 249, but the mandate of Congress clearly calls on the Secretary of HEW to make this determination administratively. Accordingly, the Department of HEW is hereby directed to determine whether the plan of the State of Florida is in present conformity’ with the requirements of Section. 249. The Department must determine whether the current Florida plan provides for reim- bursement on a reasonable cost related basis to skilled nursing care providers. 38 -- . The Department is cirected to advise this Court of its determination within ten (10) days of the date of this Order. If the >present plan (as is strongly urged by Plaintifis) is not conforming, in the opin- ion of the Secretary, the State defendants are cirected to submit a plan for approval to the Secretary no later than thirty (30) days =ronm the date of this Order. Addi- tionally, any plan submitted to the Depar=ment of H=W for approval by the State must make provision for the reimbursement +o dlainti=fs on a reasonalble cost related basis for services rendered from the date of this Irder proszectively. The Department of SEW is prohidited ané enjoined from acororine any: State dlan nut providing for b. This order is without pre- judice to Plaintiffs" right to challenge the payment rates on remand should the Department, in the proper exercise of its agency duties, determine that the Florida Plan meets federal standards. c. HHS shall have one hundred thirty-five (135) days from the date of this order within which to fully comply with this order and with the decision of the Fifth Circuit. Extensions will be considered only upon a showing of extreme hardship and unforeseeable change in circumstances, as the time now allot- ted, in addition to that which has al- ready elapsed since the decision, is more than sufficient. 5. Both State and federal Defen- dants shall file with the Court status reports indicating the progress being made toward compliance with this order. 46 The first status reports shall be filed thirty (30) days from the date of this order, and thereafter reports shall be filed at 30-day intervals until comple- tion of the actions required by this order. DONE AND ORDERED in Chambers at Miami, Dade County, Florida this 28th day of July, 1980. /s/ William M. Hoeveler D 47 UDGE --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0547%3A01. Public record. Not legal advice.