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Florida Wants Rehearing In ‘Fragile’ Kids Case

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel

Florida is asking a full federal appeals court to take up a dispute about whether the U.S. Department of Justice can pursue a lawsuit against the state over alleged violations of the Americans with Disabilities Act --- a case stemming from concerns about “medically fragile” children being placed in nursing homes. 

Lawyers for the state last week asked for a rehearing before the full 11th U.S. Circuit Court of Appeals, a request known as seeking an “en banc” hearing. The request came after a three-judge panel of the court in September backed the authority of the Department of Justice to pursue the lawsuit.

“(The) panel majority’s expansion of the attorney general’s power to sue states also raises exceptionally important questions about the allocation of powers between the federal and state governments,” the state’s rehearing petition said. “The federal government asserts a sweeping authority to coerce systemic changes to state healthcare policies under a statutory enforcement provision that makes no mention of the United States exercising any enforcement power whatsoever. The panel majority’s disregard for these federalism concerns --- particularly in a field as complex as healthcare administration --- has upended the balance of powers that Congress intended and demands the full court’s consideration.”

The issue of care for medically fragile children, who have severe health conditions, drew attention in 2012 after a Department of Justice investigation found Florida was unnecessarily institutionalizing children with disabilities in nursing homes. The department also said the state’s Medicaid program placed other children at risk of institutionalization.

The Florida Agency for Health Care Administration, which runs much of the state’s Medicaid program, vehemently disputed the allegations.

Attorneys for a group of children filed a federal lawsuit alleging, in part, that the state was violating the Americans with Disabilities Act by failing to provide services that would allow children with severe medical problems to stay in their homes and communities. The Department of Justice tried to negotiate an agreement with the state but wound up filing a lawsuit in July 2013.

A federal district judge ruled in 2017 against the group of plaintiffs because of changes Florida made in the Medicaid program, a ruling that was upheld by the Atlanta-based appeals court.

But a panel of the appeals court in September overturned a district judge’s decision that rejected the Department of Justice lawsuit. The majority, in a 2-1 decision, pointed to other laws that had been incorporated into what is known as Title II of the American with Disabilities Act and that allow the Department of Justice to pursue lawsuits.

“The express statutory language in Title II adopts federal statutes that use a remedial structure based on investigation of complaints, compliance reviews, negotiation to achieve voluntary compliance, and ultimately enforcement through ‘any other means authorized by law’ in the event of noncompliance,” Judge Danny Boggs wrote in an opinion joined by Judge Jill Pryor. “In the other referenced statutes, the attorney general may sue. The same is true here.”

But Florida’s attorneys, in the petition filed last week, disputed that reasoning.

“Congress must affirmatively grant federal agencies the right to sue,” the petition said. “And where, as here, that right threatens to upset the balance of power under our federalism, Congress’s intention to expand federal enforcement must be ‘unmistakably clear,’ ” the petition said, quoting a 1991 U.S. Supreme Court decision. “Here, it is unmistakably clear that Congress did not intend the government to sue the states under Title II. That statute permits enforcement only by a ‘person alleging discrimination,’ and Supreme Court precedent dictates that the government is not such a ‘person.’ ”