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Citing nursing shortage, state seeks stay of judge's order on kids with 'complex' conditions

A child with special needs due to chromosome 8P inversion duplication syndrome with a doctor.
The judge ordered the state Medicaid program to provide 90 percent of the private-duty nursing hours that are authorized for the children. That state says applying that standard to as many as 2,700 children isn't feasible.

A key part of the decision would require the state to increase the availability of private-duty nursing that could help children receive care outside of nursing homes. The state says complying is "impossible."

The state wants a federal judge to put on hold a ruling aimed at keeping children with complex medical conditions out of nursing homes, saying a shortage of nurses would make it “impossible” to comply with a key part of the decision.

Attorneys for the state filed a motion for a stay Friday, a week after U.S. District Judge Donald Middlebrooks ruled that Florida has violated the Americans with Disabilities Act and needs to make changes to help children receive care in their family homes and communities instead of nursing homes. The state is seeking a stay while it challenges Middlebrooks’ ruling at the 11th U.S. Circuit Court of Appeals.

A key part of Middlebrooks’ decision and an accompanying injunction would require the state to increase the availability of private-duty nursing that could help children receive care outside of nursing homes. The South Florida-based judge ordered the state Medicaid program to provide 90 percent of the private-duty nursing hours that are authorized for the children.

But the motion for a stay said complying with that requirement is not feasible during a nationwide nursing shortage. While about 140 children with complex medical conditions are in nursing homes, the case also involves children considered at risk of being institutionalized. The state’s motion said the private-duty nursing requirement could apply to about 2,750 children.

“Beyond the shadow of a doubt, the state will violate the injunction through no fault of its own, and despite its best efforts, because the provision of 90% of PDN (private-duty nursing) hours to 2,750 children in the midst of a nursing shortage is simply impossible,” the motion said. “If there is one fact that the parties, the court, and the witnesses all agreed upon at trial, it is that a critical nursing shortage currently exists across the country. The order and injunction do not deal with the undisputable nursing shortage that renders the 90% utilization rate flatly unachievable.”

Middlebrooks’ ruling came in a decade-long legal battle in which the U.S. Department of Justice alleged the state unnecessarily institutionalized children. The case focuses on children in the Medicaid program with conditions that often require round-the-clock care involving such needs as ventilators, feeding tubes and breathing tubes.

The ruling criticized the state for not doing more to ensure services such as private-duty nursing.

“Those who are institutionalized are spending months, and sometimes years of their youth isolated from family and the outside world,” Middlebrooks wrote in the July 14 decision. “They don’t need to be there. I am convinced of this after listening to the evidence, hearing from the experts, and touring one of these facilities myself. If provided adequate services, most of these children could thrive in their own homes, nurtured by their own families. Or if not at home, then in some other community-based setting that would support their psychological and emotional health, while also attending to their physical needs.”

The state on July 17 filed a notice of appealing Middlebrooks’ decision to the 11th U.S. Circuit Court of Appeals. The motion for a stay filed Friday asks Middlebrooks to put the ruling on hold, but it also indicated the state plans to seek a stay at the Atlanta-based appeals court.

In addition to citing the nursing shortage, Friday’s motion made a series of other arguments, including that the “administrative personnel and resources necessary to accomplish the sweeping programmatic changes that the injunction compels are staggering.”

“AHCA (the Agency for Health Care Administration), the state Medicaid agency responsible for implementing the injunction, already faces a staff vacancy rate of approximately 30%,” the motion said. “The staff that AHCA does have is responsible for administering numerous health-care programs for the state’s most needy populations, a small percentage of which are PDN children and nursing-facility children. The state will be forced to divert extraordinary resources away from administering programs for needy children and adults alike, many with serious disabilities and medical hardships of their own, and instead favor the population that the United States deemed most fit for litigation.”

But in his ruling, Middlebrooks took issue with AHCA’s oversight of managed-care organizations that have contracts to oversee services for Medicaid beneficiaries.

“One of the most perplexing aspects of this case is the apparent unwillingness of the state to enforce its contracts,” he wrote. “The state has contracted with managed care organizations to establish complete medical provider networks to service 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. The managed care organizations have contracted to deliver, not endeavored to deliver, medical treatment to their members.”

The Justice Department filed the lawsuit in 2013, after conducting an investigation that concluded the state was unnecessarily placing children in nursing homes. The state has vehemently fought the allegations and the lawsuit, with the U.S. Supreme Court last year declining to take up a state appeal aimed at preventing the case from moving forward.

Middlebrooks wrote that the Americans with Disabilities Act requires the state to provide services in the most “integrated setting appropriate” to meet the needs of people with disabilities. He also cited a major 1999 U.S. Supreme Court ruling that said “undue institutionalization” of people with disabilities is a form of discrimination.

In a news release last week, the Justice Department described Middlebrooks’ ruling as a “major turning point in the treatment of children with disabilities in Florida and vindicates their right to community integration.”

“This important ruling will help Florida families of disabled children keep and care for their children at home by requiring increased access to medical support and services,” U.S. Attorney Markenzy Lapointe for the Southern District of Florida said in a prepared statement. “We look forward to seeing the systematic changes in Florida needed to prevent the unnecessary institutionalization of children with complex medical needs.”

Jim Saunders is the Executive Editor of The News Service Of Florida.