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Judge Deals Blow to Advocates for Old, Disabled

MATT SEDENSKY, Associated Press
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Nurses take care of a patient who was evacuated from a nursing home in Tomioka town, 60 km from the nuclear power plant in Fukushima prefecture, in Koriyama on March 18, 2011. (Photo credit: KEN SHIMIZU/AFP/Getty Images)

Nurses take care of a patient who was evacuated from a nursing home in Tomioka town, 60 km from the nuclear power plant in Fukushima prefecture, in Koriyama on March 18, 2011. (Photo credit: KEN SHIMIZU/AFP/Getty Images)

WEST PALM BEACH, Fla. (AP) — A federal judge struck a blow Tuesday to advocates for the elderly and disabled, removing class-action status from a lawsuit that had argued Florida illegally forces people into nursing homes when they are capable of living elsewhere.

U.S. District Judge Robert Hinkle ruled in favor of one of the institutionalized Medicaid patients who sued the state of Florida in 2008, saying they should be allowed to live in other settings. But by removing the suit’s class status, the ruling applies to just one person, Clayton Griffin, instead of the 8,500 plaintiffs estimated by attorneys to be in a similar situation.

“It is a limited victory,” said David Bruns, a spokesman for AARP, the nonprofit group for those 50 and over which took up the case up on the behalf of the plaintiffs. Southern Legal Counsel also joined AARP in that action.

Filed just shy of four years ago and argued in court early last year, the lawsuit has dragged on so long that of the original seven plaintiffs, five have died. A sixth, according to the judge’s written decision, said he no longer wished to leave a nursing home after relatives moved away.

Because of that, Hinkle vacated the class action he previously had granted, also citing changes to the state Medicaid program have ensured people can avoid nursing homes if they wish.

“Not a single Medicaid beneficiary who is in a nursing home,” wishes to be released, and could safely do so, “would not be approved for transition” under the current state system, Hinkle wrote.

But in the very same judgment, Hinkle acknowledges “the state apparently has made errors … in failing to transition a small number of nursing home residents.”

Among those mentioned by name is Marguerite Pace, a Sarasota woman who was deposed in the case and had been among the plaintiffs until she was granted a waiver by the state to receive support services outside a nursing home.

That waiver was granted last spring. She still remains institutionalized, waiting on a seemingly unending amount of bureaucratic hurdles.

Pace has no use of her legs and limited use of her arms. She is still hopeful she will be released by the time her 50th birthday comes on Jan. 14, but she called Tuesday’s decision disheartening.

“I’m sad. Again it’s saying that people with disabilities have no rights, that we are at the mercy of the state,” she said.

Americans who qualify for Medicaid and get sick or disabled enough to require substantial care typically have little problem gaining admission to a nursing home. But obtaining Medicaid-supported services at home, such as visits from an aide, is substantially harder and often involves a long waiting list, even though it may cost the government less.

Advocates for the elderly and disabled had hoped a 1999 Supreme Court case would change that. The Olmstead decision, as it is known, involved two Georgia women, both Medicaid beneficiaries with mental retardation who wanted community-based services, but were refused and were treated in institutions.

The high court ruled unjustified isolation of the disabled in institutions amounted to discrimination under the Americans with Disabilities Act. It said states must provide community services if patients want them, if they can be accommodated and if it’s appropriate. Medicaid is the state-federal partnership that provides health coverage and nursing home care to the poor.

The plaintiffs in the Florida case had sued citing the ADA. The case was put on hold for a year beginning in 2009, when the defendant, the Florida Agency for Health Care Administration, agreed to spend $27 million toward nursing home diversion programs.

When that ultimately failed to satisfy the plaintiffs, the case went to trial.

A spokeswoman for the Agency for Health Care Administration, said Tuesday night she could not immediately comment.

 Copyright 2012 The Associated Press.

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