Play Live Radio
Next Up:
0:00 0:00
Available On Air Stations

Judge denies the state's request for a stay after ruling to remove kids from nursing homes

The US District Court for the Southern District of Florida is based at the Wilkie D. Ferguson Jr. United States Courthouse in Miami.
Wilfredo Lee
The US District Court for the Southern District of Florida is based at the Wilkie D. Ferguson Jr. United States Courthouse in Miami.

The federal judge wrote that he is “not persuaded that Florida will suffer irreparable damage without a stay," but that noncompliance can bring substantial harm to institutionalized children.

Warning against “foot-dragging,” a federal judge has rejected a request by the state to put on hold a ruling that requires Florida’s Medicaid program to make changes aimed at keeping children with complex medical conditions out of nursing homes.

U.S. District Judge Donald Middlebrooks issued a seven-page order Tuesday denying the state’s request for a stay of a ruling and an accompanying injunction that he issued July 14. The state wanted the stay while it appeals the ruling to the 11th U.S. Circuit Court of Appeals.

A key part of the ruling and injunction ordered the state to increase the availability of private-duty nursing that would allow children to receive care in their family homes and communities instead of in nursing homes. In seeking the stay, attorneys for the state argued that carrying out the requirement would be “impossible” amid a nationwide shortage of nurses.

Middlebrooks wrote Tuesday that he is “not persuaded that Florida will suffer irreparable damage without a stay, but I am firmly convinced that if compliance with the injunction is delayed, the institutionalized children, and those at risk of imminent institutionalization, will suffer substantial harm. The public interest would not be served by issuing the stay.”

The South Florida-based judge also wrote that the case, which has lasted more than a decade, “has devolved into obstruction for obstruction’s sake, without regard to the consequences for these children with medical complexity and their families.”

“There is no basis or reason for a stay,” Middlebrooks wrote. “These children deserve better, as do those whose taxes are already paying for these services. I caution the state against foot-dragging in complying with the injunction. This issue is too important. And for the families involved, the stakes are too high.”

Middlebrooks’ July 14 ruling came in a lawsuit filed by the U.S. Department of Justice, which alleged the state Medicaid program was improperly institutionalizing children. The case involves children with conditions that often require round-the-clock care involving such needs as ventilators, feeding tubes and breathing tubes.

The judge 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.

Attorneys for the state on July 17 filed a notice of appealing Middlebrooks’ ruling to the 11th U.S. Circuit Court of Appeals. They followed Friday by filing the motion for a stay.

The motion focused heavily on part of Middlebrooks’ ruling that required the Medicaid program to provide 90 percent of the private-duty nursing hours that are authorized for the children — a requirement the state said is not feasible. 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.”

But in his order Tuesday, Middlebrooks wrote that the state had a “full and fair opportunity” during the case to raise issues about being unable to comply with increased requirements for private-duty nursing. He wrote that the state “chose not to put on such a defense.”

“Despite its suggestions to the contrary, the state was not blindsided,” the judge wrote. “Indeed, the state’s failure to provide adequate PDN was the cornerstone of this case from its inception. It was certainly foreseeable that a finding of liability would necessitate a plan for the state to fix that problem, i.e., provide more PDN, and likely significantly more. That the state did not know what precise percentage of PDN hours it would eventually be ordered to deliver is irrelevant. It knew that some threshold amount would be set, and it was.”

In the motion asking Middlebrooks for a stay, attorneys for the state also indicated they would seek a stay at the Atlanta-based appeals court. An online docket did not indicate Wednesday morning that a motion had been filed at the appeals court.

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