Judge Ends Legal Battle Over Care For Disabled Children

With the state pointing to changes it has made, a federal judge Friday dismissed a long-running legal battle about whether Florida's Medicaid program provided proper services to children with severe medical conditions.

The case drew attention when it was filed in 2012, at least in part because it included children who had been placed in nursing homes.

Attorneys for the plaintiffs argued that Florida had violated the Americans with Disabilities Act and other laws by failing to provide services so that children could receive care at home and in their communities. But Senior U.S. District Judge William Zloch on Friday ruled in favor of the state, approving the recommendation of a magistrate judge who focused on changes the Medicaid program made to address the allegations.

In his March 22 recommendation, U.S. Magistrate Judge Patrick Hunt wrote that the plaintiffs could no longer show they were in danger of being denied medically necessary private-duty nursing services — a key issue in the case — or that they were at risk of institutionalization.

“In sum, the undersigned (magistrate judge) concludes that plaintiffs' claims are moot,” Hunt wrote. “By any fair reading of the complaint, the success of the remaining plaintiffs' claims each depends exclusively on the existence and application of the identified policies leading to the reduction or denial of PDN (private-duty nursing) services. It was the existence and application of those policies that gave them standing to allege an imminent risk of being denied medically necessary PDN services and, thus, a risk of undue institutionalization.”

The lawsuit was filed on behalf of children who had been placed in nursing homes or who were considered at risk of going into nursing homes. The children had complex medical conditions that required highly intensive care.

For example, at the time of Hunt's March recommendation, the case involved three plaintiffs. One of them had Hurler Syndrome, which required the use of a tracheotomy tube, while the other two had cerebral palsy and conditions that affected their breathing, the magistrate wrote.

In a motion for summary judgment filed in January, attorneys for the and the wrote that the state had made changes in policies and formal rules to address the allegations in the case.

“The state has abandoned the challenged policies through a formal and elaborate administrative process — a process that cannot be undone without a similarly formal and elaborate administrative process — and represents to the court that it will not reinstate those policies,” the motion said. “Indeed, plaintiffs have no evidence that the state intends to revive those policies.”

That included adopting a rule in November 2016 preventing the use of what is known as the “convenience standard” in determining the medical necessity of private-duty nursing for children. Under that standard, a service would not be considered medically necessary unless it is “furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.” The plaintiffs alleged that the state used the standard as a basis to deny private-duty nursing hours, Hunt wrote.

But in an April document responding to Hunt's recommendation, attorneys for the plaintiffs questioned the state's policy changes, saying they were an attempt to “manipulate jurisdiction” in the case. Also, the plaintiffs' attorneys argued the recommendation too narrowly focused on the issue of private-duty nursing.

“Until the defendants have demonstrated that they will administer the state's Medicaid system in a way that provides services to plaintiffs at a tangible, concrete level, it cannot be said that they have unambiguously terminated the offending policies identified in the complaint,” the plaintiffs' attorneys argued.

But in his recommendation, Hunt wrote that the plaintiffs had been successful in spurring changes.

“Of course, the present inability to establish harm is not necessarily a bad thing for plaintiffs,” Hunt wrote. “To the extent plaintiffs filed this lawsuit seeking to improve Florida's administration of Medicaid services to disabled children, plaintiffs have succeeded.”

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