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Justice Department Sues Florida Over Disabled Kids in Nursing Homes

The civil rights division says Florida's tea party budget cuts are harming vulnerable children.

| Tue Jul. 23, 2013 5:00 AM EDT
Abdel Rahman Gasser
Abdel Rahman Gasser is one of more than 200 kids stuck in Florida geriatric nursing homes. Gasser family

The Justice Department Monday sued the state of Florida over its longstanding practice of housing medically fragile and disabled children in geriatric nursing homes, alleging that the state is in violation of the Americans with Disabilities Act. The complaint has been a long time in coming. DOJ started investigating Florida's treatment of medically fragile and disabled kids in late 2011. It's been warning the state ever since that if it didn't change its practices and find a way for these kids to be cared for at home with their families or in better settings in the community, it would file suit and force the state to act.

Tea party-dominated Florida has been extremely reluctant to spend any money to provide care for this vulnerable population of children. The state even went so far as to turn down $37.5 million in federal money that would help move children out of nursing homes, all because the money was seen as part of Obamacare. Not even the threat of a civil rights lawsuit, apparently, was enough to get the state to do more. 

Monday's complaint was signed by Thomas Perez, the head of DOJ's civil rights division who is now taking over as US secretary of labor. During his time at the civil rights division, Perez has been quietly but firmly pushing states to deinstitutionalize the mentally disabled and medically fragile. Under his leadership, the Obama administration has been the first presidential administration to systematically use the Supreme Court's 1999 decision in Olmstead v. LC to advocate for this vulnerable population. That decision bans states from segregating disabled people in institutions or other settings.

Olmstead was a landmark decision, but it wasn't until Obama took office that DOJ really started using it aggressively. Since 2009, DOJ has filed suit against 11 states over the discrimination against the physically and mentally disabled, and prosecutors have either investigated or intervened in ongoing private litigation in some way in many others. As a result, for instance, the state of Virginia was forced to close down several "training centers" in which it had institutionalized thousands of people with mental disabilities. Those people are now being moved into community settings or back home with their families. Similar moves are underway in Georgia, Mississippi, and elsewhere thanks to intervention by DOJ. Florida is now the latest—and probably the last such case—to be brought by Perez.

The kids at the heart of the Florida suit are children who, for instance, suffered traumatic brain injuries and are reliant on ventilators, feeding tubes, and 24-hour nursing care because they could die in five minutes if a breathing tube came loose. Many of them also have cognitive deficiencies or are paralyzed in some way. In short, their families need a lot of help taking care of them. Rather than provide that support, Florida's response has been to push many kids into geriatric nursing homes, which are sometimes cheaper than home care but which also don't provide children nearly the sorts of developmental opportunities they get with their families or even in foster care.

The Justice Department complaint lays out just how stingy Florida has been in the past decade when it comes to taking care of these kids. According to the complaint, even after Florida supposedly took steps this year to move more out of institutions, nearly 200 children with disabilities are still living in them, where they have only limited interaction with non-disabled people and are often far from their families and friends.

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The complaint cites a March report from the Florida's Agency for Health Care Administration, which made unannounced visits to some of the nursing homes after federal prosecutors started making noise about the conditions. AHCA found that several pediatric residents of one facility were essentially neglected for long periods. The report cited a case of a teenager in a wheelchair who, after asking for help getting out of his room, was moved to another room with three babies and toddlers who were listening to nursery rhymes and given no other form of stimulation.

Other disturbing findings emerged from unannounced health official visits that are cited in the DOJ complaint, including one facility that had 17 kids in an activity area supervised by a single adult. Another report in December found, in the same facility, that a number of children had gone for many months without a face-to-face visit with a doctor, "placing the children in ongoing and immediate jeopardy." In response to the findings, the state of Florida simply moved the children to another nursing facility, rather than trying to place them in the community.

The DOJ lawsuit is harshly critical of Florida's budget moves to cut services to disabled children. The complaint points out that Medicaid home health care reimbursement rates in Florida haven't changed since 1987, a factor that has resulted in nursing shortages. Making matters worse, in 2010, the complaint says, the state cut funding for private duty nursing services by $6 million. Meanwhile, the state has raised the rates paid to nursing homes taking in medically fragile kids by more than 28 percent since 2004.

By cutting in-home care services, the state has also tried to shift the cost of care for medically fragile and disabled children onto their parents and grandparents, even older siblings, which hasn't worked out very well as overwhelmed caregivers have been forced to put their children in nursing homes. The reduction of in-home services, DOJ says, is one reason why the number of kids in Florida nursing institutions has swelled from 136 in 2004 to more than 200 today, with many adults who entered nursing homes as children still remaining there. The complaint doesn't say this, but many medically fragile children whose parents were forced to put them in nursing facilities have died shortly afterwards. The death rate for such children over the age of three is 50 percent higher in nursing homes than at home, according to the Miami Herald.

At least 10 percent of the disabled children in nursing homes are wards of the state and eligible for specialized foster care programs, but DOJ says the state hasn't attempted to make such arrangements for most of these kids. In 1997, the state placed one child highlighted in the complaint into a nursing facility at the age of one. The state didn't try to move the child in to the community until last fall, at the age of 16.  In short, DOJ says, "The State has acted with deliberate indifference to the injuries suffered by the Institutionalized and At-Risk Children."

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