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Federal officials back a ruling on children in Florida nursing homes

A federal judge ordered Florida to make changes aimed at moving children with complex medical conditions out of nursing homes and bolstering home-based care for such children.
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A federal judge ordered Florida to make changes aimed at moving children with complex medical conditions out of nursing homes and bolstering home-based care for such children.

The Justice Department is urging a federal appeals court to uphold a ruling aimed at keeping children with complex medical conditions out of nursing homes.

With a hearing slated in January, the Biden administration is urging a federal appeals court to uphold a ruling aimed at keeping Florida children with complex medical conditions out of nursing homes, saying it would ensure they are "granted equality and freedom from unwarranted isolation."

The U.S. Department of Justice last week filed a 79-page brief at the 11th U.S. Circuit Court of Appeals as part of a decade-long dispute with Florida about care for children in the state Medicaid program.

U.S. District Judge Donald Middlebrooks in July sided with federal officials and issued an injunction that, in part, requires the state to provide more private-duty nursing to help children live with their families or in their communities, rather than in nursing facilities. The state quickly challenged the ruling at the Atlanta-based appeals court.

In the brief filed last week, Justice Department attorneys said Middlebrooks correctly ruled that the Medicaid program has violated part of the Americans with Disabilities Act.

“The district court properly concluded that Florida is operating its Medicaid system in a manner that leads to the unnecessary institutionalization of children with medical complexity and a serious risk that other such children will be unnecessarily institutionalized,” the brief, filed Wednesday, said. “The court acted well within its discretion in issuing a limited injunction to remedy that Title II (of the Americans with Disabilities Act) violation. Florida implausibly contends that the court erred in myriad ways, but the state ignores the court’s factual findings and supporting evidence; fails to grapple with the court’s discretion to fashion relief; and misunderstands governing law.”

The case involves children in the Medicaid program with conditions that often require round-the-clock care, including such things as ventilators, feeding tubes and breathing tubes. About 140 children are in nursing homes, while the case also involves a broader number of children considered at risk of going into nursing homes.

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, in a case known as Olmstead v. L.C., that said “undue institutionalization” of people with disabilities is a form of discrimination.

The state is challenging Middlebrooks’ ruling on a series of grounds, but a key issue 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.

In a brief filed in September, attorneys for the state called the injunction a “wildly overbroad and disproportionate response that violates principles of federalism” and called the private-duty nursing requirement “arbitrary and unprecedented.” The brief cited a nursing shortage that the state says would make it impossible to comply with the 90 percent requirement.

“A 90 percent utilization mandate is tantamount to a mandate to overcome the nursing shortage,” the state’s lawyers wrote. “No State has done so. The United States (Justice Department) offered no evidence that 90 percent utilization has ever been achieved anywhere, let alone during a critical nursing shortage. And even apart from the nursing crisis, 90 percent utilization for each child will never be achieved.”

But in the brief filed last week, the Justice Department disputed the state’s arguments about the nursing requirement, saying the lower court “properly exercised its discretion in finding Florida can meet the 90% benchmark.”

“Florida resists, arguing that the 90% benchmark is unachievable because of a nationwide nursing shortage,” the federal attorneys wrote. “But Florida points to no evidence that the shortage precludes it from expanding access to private-duty-nursing services.”

A panel of the appeals court is expected to hear arguments in the case during the week of Jan. 22 in Miami, though a specific date has not been set, according to a court docket.

Meanwhile, the state also has asked for a stay of the injunction while the appeal plays out. The Justice Department has opposed the request, and the appeals court has not ruled on it.

Federal officials 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.

Copyright 2023 WUSF 89.7

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