FORT LAUDERDALE, Fla. (AP) — Attorneys asked a federal judge Friday to grant class-action status to a lawsuit that says the state is unnecessarily institutionalizing about 200 disabled children in nursing homes and cutting services that would allow them to receive care at home.
The children are kept in cold, hospital-like facilities, rarely leave or go outside and share a common area with elderly patients, the lawsuit says. The children are not exposed to social, educational or recreational activities critical to development and many of the their families live hundreds of miles away, according to the lawsuit filed in 2012 on behalf of eight children.
It says the children could remain at home if the state paid for private duty nursing care or could live more comfortably in a group home setting but are unable to because Florida has systematically slashed in-home services leaving parents with no choice other than nursing homes. At the same time, the state implemented policies that expanded nursing home care, by offering facilities a $500 enhanced daily rate for caring for children, which is more than double than what the state pays for adults.
“Nursing homes are not being viewed as the last possible alternative to put a child,” said Matthew Dietz, an attorney for the children.
The state’s goal is to reduce the need for private duty nursing and to put most of the burden on the parents even though many of the children require ventilators, feeding tubes and other complicated machinery, he said.
Attorneys for the state argued that the children in the lawsuit represent individual cases and are not indicative of a broader state policy or “conduct that causes injury to every member of the class,” said attorney George Meros.
He said the state has granted the vast majority of requests for private duty nursing and noted the state is mandated to save money by not providing unnecessary services so that it can afford to care of as many people as possible.
U.S. District Judge Robin S. Rosenbaum questioned at which point the scale tips where enough individual cases accumulate to underscore a policy.
“Is there some threshold where you could concede it stops becoming a mistake and crosses that line to becoming a policy or unofficial policy,” she asked.
She planned to make a ruling in the next few weeks after further reviewing the cases.
Attorneys for the Justice Department also attended Friday’s hearing. The agency filed a similar lawsuit against Florida in July after visiting roughly 200 children in six nursing homes. The DOJ said the state is violating the federal Americans with Disabilities Act by unnecessarily institutionalizing children, often for long periods of time.
“This is a civil rights case…they should not be segregated from the community,” said attorney H. Justin Park.
Officials for the Agency for Health Care Administration have repeatedly said children should be cared for in the least restrictive setting as possible and that the parents ultimately decide to put their children in a facility.
Secretary Liz Dudek has said the state had recently improved an “already strong program” and that 31 children with disabilities have been discharged from nursing facilities this year.
She also chastised President Barack Obama’s administration for the lawsuit in a statement in July. She said it “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.”
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