In the United States Court of Appeals For the Eleventh Circuit

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No. 17-13595 ____________________ UNITED STATES OF AMERICA, Interested Party-Appellant, versus SECRETARY FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, in her official capacity, STATE SURGEON GENERAL, in his official capacity as the State Surgeon General and Secretary of the Florida Department of Health, KRISTINA WIGGINS, in her official capacity as Deputy Secretary of the Florida Depart- ment of Health and Director of Children's Medical Services, STATE SURGEON GENERAL JOHN ARMSTRONG, MD, DEPUTY SECRETARY DR. CELESTE PHILIP, et al., USCA11 Case: 17-13595 Date Filed: 12/22/2021 Page: 2 of 64

2 17-13595

Defendants-Appellees.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:12-cv-60460-WJZ ____________________ Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges. ∗ BY THE COURT: A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting rehearing en banc, it is ORDERED that this case will not be reheard en banc.

∗Judge Robin Rosenbaum recused herself and did not participate in the en banc poll. USCA11 Case: 17-13595 Date Filed: 12/22/2021 Page: 3 of 64

17-13595 JILL PRYOR, J., respecting denial of reh’g en banc 3 JILL PRYOR, Circuit Judge, respecting the denial of rehearing en banc: I was a member of the panel majority. We held that the At- torney General of the United States may bring a lawsuit against the State of Florida to enforce Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–65. Judge Newsom dissents from the denial of rehearing en banc because, in his view, nothing in the ADA authorized the Attorney General to sue Florida in this case. Judge Branch dissented from the panel majority opinion on one of the two grounds Judge Newsom raises today. I write to respond to my dissenting colleagues’ arguments that the panel erred in inter- preting the statutory scheme. *** The United States maintains that Florida administers its Medicaid program in a way that forces children with severe medi- cal conditions into nursing homes to receive medical services nec- essary for their survival. As a result, these medically-fragile children often are placed in institutions hours away from their families, where they allegedly “spend most of their days languishing in bed or in their wheelchairs, with no one interacting with them and nothing to do.” 12-cv-60460 Doc. 509 at 3. 1

1When the Attorney General initially filed this action, it was assigned case number 0:13-cv-61576. The case later was consolidated with a separate civil action filed by several medically-fragile children, A.R. v. Dudek, and assigned case number 0:12-cv-60460. I use “13-cv-61576 Doc.” to refer to the district USCA11 Case: 17-13595 Date Filed: 12/22/2021 Page: 4 of 64

4 JILL PRYOR, J., respecting denial of reh’g en banc 17-13595

The United States Attorney General filed this lawsuit against the State of Florida under Title II of the ADA to vindicate the med- ically-fragile children’s rights. The Attorney General claimed that Florida discriminated based on the children’s disabilities because, although it would be possible for