Warning of a "substantial detrimental impact on the children at the heart of this case," the U.S. Department of Justice urged an appeals court to reject Florida's attempt to halt an injunction requiring changes aimed at keeping children with complex medical conditions out of nursing homes.

The Justice Department, in a 33-page brief filed Thursday, said the 11th U.S. Circuit Court of Appeals should turn down Florida's request for a stay of an injunction issued in July by U.S. District Judge Donald Middlebrooks. The injunction, in part, requires the state to provide more private-duty nursing to help children live with their families or in their communities, rather than in nursing facilities.

"Florida will not suffer irreparable harm without a stay, but any stay will seriously injure the children at the center of this case, who should not have to wait any longer to be reunited with their families and communities," the Justice Department brief said. "Indeed, there is a strong public interest in promptly providing these children the equality and freedom from isolation to which they are entitled."

Florida went to the Atlanta-based appeals court after Middlebrooks sided with the Justice Department in a decade-long legal battle about whether the state Medicaid program was improperly institutionalizing children. The case involves children with conditions that often require round-the-clock care involving such needs as ventilators, feeding tubes and breathing tubes.

Middlebrooks wrote that the Americans with Disabilities Act requires the state to provide services in the most "integrated setting appropriate" to meet the needs of people with disabilities. He also cited a major 1999 U.S. Supreme Court ruling that said "undue institutionalization" of people with disabilities is a form of discrimination.

As it challenges Middlebrooks' underlying ruling, the state is seeking a stay of an accompanying injunction. A major issue is part of the injunction that requires the Medicaid program to provide 90 percent of the private-duty nursing hours that are authorized for the children to help them live in family homes or communities.

While about 140 children with complex medical conditions are in nursing homes, the case also involves more than 1,800 children who are considered at risk of being institutionalized, according to the Justice Department brief.

In an Aug. 21 motion seeking a stay, the state's attorneys argued that the 90 percent requirement would be impossible to meet, largely because of a nationwide nursing shortage.

"Under the guise of 'reasonable accommodations,' the court entered a prescriptive, systemwide injunction that orders each child authorized to receive in-home nursing to receive an unprecedented 90 percent of all authorized hours — nothing less than a court-ordered takeover of Florida's Medicaid program," the motion said. "That mandate is patently unachievable for many reasons beyond Florida's control, including a critical nationwide nursing shortage that limits the availability of in-home nursing throughout the country."

The motion also argued that the requirement would force the state to increase payment rates to try to attract nurses, while forcing the Medicaid program to divert staff and resources from other needs.

"In effect, the injunction dragoons Florida into seeking (legislative) appropriations for a rate increase in hopes that higher rates will enable Florida to achieve the 90 percent mandate in the midst of a nursing shortage," the motion said. "In pressuring Florida to make significant, new appropriations, and in encumbering its Medicaid program with layers of new, extra-statutory mandates, the injunction ignores comity and federalism."

But in Thursday's brief, Justice Department attorneys disputed such arguments and said that after "considering extensive evidence, the court (Middlebrooks) determined that Florida has numerous tools at its disposal for expanding access to private-duty nursing."

"Rather than grapple with the court's factual findings, Florida argues that the 90% benchmark is unachievable because of a nationwide nursing shortage," the Justice Department brief said. "But Florida points to no evidence that the shortage precludes it from expanding access to private-duty-nursing services."

The brief also said the "strong public interest in remedying the discriminatory isolation of vulnerable children with disabilities far outweighs the amorphous interests Florida invokes."

"A stay would have a substantial detrimental impact on the children at the heart of this case," the brief said. "The district court found that most of the 140 children with medical complexity living in nursing facilities are being unnecessarily institutionalized. And it found that another 1,800 or more face a serious risk of such institutionalization."

Jim Saunders reports for the News Service of Florida. 

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