Nearly a year after issuing a scathing investigative report, the U.S. Justice Department on Monday filed a lawsuit alleging that Florida has violated the Americans with Disabilities Act by unnecessarily placing children with disabilities in nursing homes.
The 23-page complaint contends that the state should have taken greater steps to provide services to children in their family homes and communities instead of placing them in nursing facilities. It said the Justice Department has tried to negotiate with the state to resolve the issues, but it determined that "compliance cannot be achieved through voluntary means."
"The state discriminates against children and young adults with disabilities by administering and funding its programs and services for these individuals in a manner that has resulted in their prolonged and unnecessary institutionalization in nursing facilities or placed them at risk of such institutionalization in violation" of the Americans with Disabilities Act, said the lawsuit, filed in federal court in South Florida.
But Liz Dudek, secretary of the Florida Agency for Health Care Administration, said the state has taken steps this year that, in part, led to 31 children being discharged from nursing facilities and others being diverted. Dudek has repeatedly disputed the Justice Department allegations stemming from last year's investigative report.
"Florida has made many improvements in its already strong program of caring for medically complex children and helping their families cope with their everyday challenges," Dudek said in a prepared statement Monday. "Today?s Obama Administration action shows that Washington is not interested in helping families improve but instead is determined to file disruptive lawsuits with the goal of taking over control and operation of Florida?s Medicaid and disability programs.?
The issue centers on children who have costly, complex medical needs and are eligible for Medicaid assistance. As examples, the state said last year that many of the children in nursing homes have what are known as tracheostomy tubes to help them breathe, and many others are on ventilators.
The Americans with Disabilities Act, a landmark law that seeks to prevent discrimination against people with disabilities, led to requirements that public agencies "administer services, programs and activities in the most integrated setting appropriate" to the people's needs.
In the new lawsuit and in the investigative report issued last year, the Justice Department contended that the state has failed to meet those requirements and has not provided adequate services and funding to help children live with their families and in their communities. The lawsuit said nearly 200 children are in nursing homes.
"The institutionalized children spend most of their days residing in shared rooms with other individuals with disabilities, participating in meals and activities with other individuals with disabilities, and having only limited interaction with individuals without disabilities,'' the lawsuit said. "Many of the residents' families live in other areas of the state, leaving the children hundreds of miles from family and loved ones."
The lawsuit seeks a declaration that the state has violated the Americans with Disabilities Act, along with an injunction that would effectively force the state to provide "appropriate, integrated community-based services and supports" to meet the children's needs. Also, it seeks damages to compensate children in nursing homes for injuries they have suffered because of the state's alleged lack of compliance with the federal act.
Federal officials argue, in part, that the state has failed provide sufficient money for in-home nursing services that would allow the children to live with their families. Also, it points to a massive waiting list for services at the state Agency for Persons with Disabilities, which it says has led to children going into nursing homes.
The Justice Department started its investigation in December 2011. Also, in March 2012, a separate civil lawsuit was filed against the state on behalf of children in nursing homes, and that lawsuit remains pending.
In its statement Monday, AHCA said it has taken steps during the past year such as improving care coordination for families. It said enhanced services are helping "in transitioning children out of pediatric nursing facilities as well as keeping children who are being served in the community, in the community."
But critics say the state has not done enough to comply with the Americans with Disabilities Act and to prevent children from living in nursing homes.
"Little kids, especially, need interaction,'' said Paolo Annino, .an attorney for the plaintiffs in the civil lawsuit and a professor of public-interest law at Florida State University. "And they need someone who cares for them. I hope the state does the right thing."