Florida fires back at feds over kids in nursing homes

With hundreds of children still in adult nursing homes, state health administrators and federal civil rights lawyers remain deadlocked in a dispute over where the children should live.

09/28/2012 6:44 PM

09/28/2012 6:45 PM

The war of words between Florida health administrators and federal civil rights lawyers continued Friday as the administration of Gov. Rick Scott rebuffed the U.S. Justice Department’s offer to help remove hundreds of children from nursing homes.

In a letter to the Justice Department’s Civil Rights Division, Florida social service chiefs called “unfounded” the claim that the state needlessly warehouses disabled and medically fragile children in nursing homes meant to care for elders. Agency heads reached that conclusion after a two-week investigation in which they interviewed the parents or caregivers of many disabled children “to ensure that they were aware of the services available for them in the community.”

“In your letter, you express concern about the welfare of Florida’s children,” said the letter, signed by the lawyers for three state agencies — the Agency for Health Care Administration, the Department of Children & Families and the Department of Health. “The state assures you that the healthcare professionals at the Florida agencies charged with the daily responsibility of ensuring child welfare are equally concerned.”

“Indeed, these hardworking employees at [the three agencies] have dedicated their lives and careers to ensuring that this and other vulnerable populations receive necessary medical services” in community settings, the letter states.

Earlier this month, the Justice Department sent a scathing, 22-page letter to Florida Attorney General Pam Bondi that said state health regulators were violating the federal Americans with Disabilities Act, a 1990 law designed to protect frail and disabled people from being warehoused in large, isolated institutions. In all, more than 220 children — some of them infants and toddlers — are being housed in institutions along with frail elders. Many of the youngsters, the Justice Department said, get no education, and spend much of their time sitting in bed or in wheelchairs watching television. Some have lived almost their entire lives in nursing-home beds.

So many children are in nursing homes, the Justice Department said, because Florida has failed to set aside enough money to pay for in-home nursing care, therapy and other services that would allow parents to care for their children at home. Other states, the department contends, have done a better job of keeping children out of institutions.

Marge Evans, the head of Children’s Comprehensive Care, a rehab center in Broward, said she currently is caring for two small children who can — and should — be moved into their parents’ homes. One is a 9-year-old boy who lost his mother in a car wreck in which he nearly drowned. The boy’s father wants to care for him at home with his sister, who also suffered brain damage in a near-drowning during the crash. But the state has told the family that unless the little boy becomes “homeless,” he won’t qualify for nursing care at his family’s home and must remain at the rehab.

“He could be stuck there for life if they don’t get any money,” Evans said.

The second child is a 6-year-old girl who receives nutrition through a feeding tube. The tube fell out several times under the girl’s mother’s care, and Evans and others have recommended that the girl, who suffers from hydrocephaly, be released back to her mother with brief, daily visits from a nurse to maintain the tube. The state, Evans said, refused to pay for a single hour of nursing care — so the girl remains in a facility.

Friday’s two-page letter is in reply to a letter earlier this week from Thomas Perez, who heads the Justice Department’s Civil Rights Division. In it, Perez offered to send a team of lawyers to Florida so that federal civil rights leaders and the state “can begin working collaboratively to address the matters identified” in the federal report.

“Time is of the essence,” Perez wrote in his letter Tuesday. “Children in Florida are unnecessarily living in nursing facilities. Other children are at serious risk of the same fate. Families are being separated, and parents are being forced to confront the cruel choice of struggling daily to find a way to care for their child at home without necessary supports or placing their child in a nursing facility.”

The exchange of letters suggests the two governments remain far apart over the issue.

In his letter, Perez asked the state to “reconsider [its] unwillingness to cooperate” with the civil rights investigation: “Other states where we have identified similar concerns have cooperated with our investigations and, where we found violations, worked with us towards a mutually beneficial resolution.” Perez cited administrations in Virginia, North Carolina, Delaware and Georgia that worked toward moving children and adults out of institutions and into community settings.

For their part, the Florida agency heads accused the Justice Department of “posturing” and of refusing to cooperate with the state’s probe. The state complained that the Justice Department had yet to respond to a request from Tallahassee for the names of all Florida children whose plights were recounted in the federal report. As the Justice Department has insisted that the clock is ticking, “it is therefore unclear why you would wish to wait a single day to provide us with their identities,” the state wrote.

In their letter, state administrators offered to break the impasse by providing the Justice Department with a host of records filed in a civil lawsuit that makes identical claims as the federal probe. But Matthew Dietz, a Miami civil rights attorney whose lawsuit sparked the federal investigation, said the state has filed only legal pleadings, and no records pertaining to individual children who face medical complexities. Such pleadings, he added, already are public record.

Dietz said state health administrators continue to view the children in nursing homes as isolated cases, and not a system-wide problem.

“The state is picking a fight here, and they are turning this into a political issue, which is wrong,” he said.

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