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Florida wants to block court order in nursing home kids case


The state seeks a stay on an injunction that would require Florida's Medicaid program to provide 90% of the private-duty nursing hours to help children live in family homes instead of nursing homes.

The state wants a federal appeals court to put on hold an injunction that requires changes aimed at keeping children with complex medical conditions out of nursing homes, arguing that part of the injunction is “nothing less than a court-ordered takeover of Florida’s Medicaid program.”

Attorneys for the state filed a 29-page motion Monday seeking a stay of the injunction issued last month by U.S. District Judge Donald Middlebrooks in a decade-long battle between the state and the federal government over care for the children.

The state wants the 11th U.S. Circuit Court of Appeals to put the injunction on hold while an underlying appeal of issues in the case plays out.

Middlebrooks denied such a stay last month, warning against “foot-dragging” by the state.

The judge on July 14 issued an opinion and the accompanying injunction 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.

In siding with the Justice Department, 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.

A key issue in the state’s request for a stay is part of the injunction that requires the Medicaid program to provide 90 percent of the private-duty nursing hours that are authorized for the children to help them live in family homes or communities. While about 140 children with complex medical conditions are in nursing homes, the case also involves about 2,750 children who are considered at risk of being institutionalized.

In Monday’s motion, the state’s attorneys argued that the 90 percent requirement would be impossible to meet, largely because of a nationwide nursing shortage.

“Under the guise of ‘reasonable accommodations,’ the court entered a prescriptive, systemwide injunction that orders each child authorized to receive in-home nursing to receive an unprecedented 90 percent of all authorized hours — nothing less than a court-ordered takeover of Florida’s Medicaid program,” the motion said. “That mandate is patently unachievable for many reasons beyond Florida’s control, including a critical nationwide nursing shortage that limits the availability of in-home nursing throughout the country.”

The motion also argued that the requirement would force the state to increase payment rates to try to attract nurses, while forcing the Medicaid program to divert staff and resources from other needs.

“In effect, the injunction dragoons Florida into seeking (legislative) appropriations for a rate increase in hopes that higher rates will enable Florida to achieve the 90-percent mandate in the midst of a nursing shortage,” the motion said. “In pressuring Florida to make significant, new appropriations, and in encumbering its Medicaid program with layers of new, extra-statutory mandates, the injunction ignores comity and federalism.”

But in his July 25 decision rejecting a stay, Middlebrooks wrote 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 “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.”

The state made an initial attempt last month at seeking a stay from the Atlanta-based appeals court, but it became tangled in a procedural issue over the length of a proposed motion. That led to the state filing what it described as an “abridged” motion Monday.

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.

In a news release last month, 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.”

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