Judge rules against Florida in fight to place children in nursing homes

TALLAHASSEE After a decades-long legal battle, a federal judge on Friday ordered Florida to make changes to keep children with complex medical conditions out of nursing homes and help them receive care in their homes or family communities.

US District Judge Donald Middlebrooks, siding with the US Department of Justice, ruled that Florida violated the Americans with Disabilities Act and the rights of children who rely on Medicaid to deliver vital services and are trying, unsuccessfully, to avoid growing up in nursing homes.

The unwarranted institutionalization of people with disabilities is unacceptable, especially given advances in technology and home care provision, Middlebrooks wrote in a 79-page decision. Any family that wants to take care of their child at home should be able to do so.

Middlebrooks criticized the state for not doing more to secure services such as private nursing care that could allow children to live outside nursing homes and help children at risk of being institutionalized. The case centers on children in the Medicaid program with conditions that often require around-the-clock care involving such needs as ventilators, feeding tubes and breathing tubes.

Those who are institutionalized spend months, and sometimes years of their youth isolated from family and the outside world, Middlebrooks wrote. They don’t need to be there. I’m convinced of this after hearing the evidence, hearing from the experts, and personally visiting one of these facilities. If provided with adequate services, most of these children could thrive in their own homes, fed by their families. Or if not at home, then in some other community setting that would support their psychological and emotional health while also attending to their physical needs.

The Justice Department filed the lawsuit in 2013, after conducting an investigation that concluded that the state’s Medicaid program was unnecessarily institutionalizing children in nursing homes. The state has vehemently fought the allegations and the lawsuit, with the US Supreme Court last year refusing to accept a state appeal aimed at preventing the case from moving forward.

Friday’s ruling said about 140 children in the Medicaid program are in three nursing homes in Broward and Pinellas counties. He also said more than 1,800 children are considered to be at risk of being institutionalised.

Middlebrooks wrote that the Americans with Disabilities Act requires the state to provide services in the most integrated environment appropriate to meet the needs of people with disabilities. You also cited an important 1999 US Supreme Court ruling that the undue institutionalization of people with disabilities is a form of discrimination.

Most Florida Medicaid beneficiaries receive services through managed care organizations. A key part of Middlebrook’s ruling was that the Medicaid program and managed care organizations did not provide adequate private nursing care that could allow children to receive care in their homes or family communities.

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By the end of the trials, I was convinced that Florida’s PDN (private nursing) deficit was causing systemic institutionalization, wrote Middlebrooks, a South Florida-based judge who was named to the bench by former President Bill Clinton.

As part of the ruling and an accompanying injunction, Middlebrooks ordered that the Medicaid program provide 90 percent of the licensed private nursing hours for the children. She also directed the state to improve so-called care coordination services and take steps to improve the transition of children out of nursing homes.

Middlebrooks, who held a two-week trial in May, also criticized the state’s oversight of managed care organizations and ordered a monitor to help carry out the order.

One of the most puzzling aspects of this case is the state’s apparent reluctance to enforce its contracts, he wrote. The state has contracted with managed care organizations to establish comprehensive networks of medical service providers to meet the needs of children with medical complexity. Part of the required network is to provide home health care to eligible members in a clinically appropriate and timely manner. Managed care organizations have made a commitment to provide, not an effort to provide, medical care to their members.

In an April 28 court document, state attorneys argued that the Medicaid program did not adequately provide services to children.

The US says parents are demanding the return of their children but cannot take them home because Florida is failing to provide Medicaid services, state attorneys wrote. This claim has no basis in evidence. Each child’s circumstances are different and individualized, and each lives in a nursing home for reasons that seemed compelling to their parents. The ADA (Americans with Disabilities Act) does not authorize the court to second guess such decisions even if the United States disagrees with them.

By Jim Saunders, Florida News Service

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