Judge slaps Florida for purging sick kids from treatment program

A Florida administrative law judge has tossed out a controversial screening tool state health regulators have used to purge thousands of impoverished children from a program that coordinates medical care for chronically sick and disabled children, ruling the eligibility tool was never formally approved by the state.

The 23-page order by Administrative Law Judge Darren A. Schwartz of Tallahassee hands a significant victory to thousands of children who were removed from the state’s Children’s Medical Services Network, or CMS, program after the screening tool concluded they no longer met criteria. Children eligible for CMS generally require specialized healthcare to treat serious conditions such as heart and kidney disease, asthma, sickle cell disease, cleft palates and facial deformities, as well as the virus that causes AIDS.

In his order, signed Tuesday, Schwartz said the screening tool was invalid because it was a governmental “rule” that had not been “adopted through rulemaking procedures.”

“Because the Screening Tool determines clinical eligibility for all current and potential participants in the CMSN Plan, the tool directly affects the rights” of children with special health needs, the judge wrote.

The judge added: “The Department of Health is hereby ordered to immediately cease using the Screening Tool as a method of determining eligibility.”

The health department released a statement Tuesday saying it will “immediately” begin the process of formally implementing the screening tool as a new rule. A workshop on the proposal is expected to be held Oct. 16, said an agency spokeswoman.

“Our number one priority is the health of all Floridians, especially children. We will do everything in our power to move through a transparent rulemaking process as quickly and efficiently as possible to best serve this unique population . . .  Children currently in the CMS Plan will continue to receive care.”

Around May, CMS began rescreening children already enrolled in the program with a new eligibility tool that consisted of five questions for a child’s parent. One of the questions gauged whether parents believed their child could live a normal life. Children’s advocates say the question was designed to screen-in children who otherwise would be excluded from care. But, they say, CMS used the question to remove youngsters instead.

Children’s advocates claim many parents failed the test because the parent wanted desperately to believe their child could grow up just like other kids.

As a consequence, records show, perhaps one in four of the 60,000 or so children originally enrolled in CMS were being removed. Those kids then were enrolled in Medicaid, the state’s much-maligned insurer for needy families. Last December, a federal judge slammed the state in a 153-page ruling, saying children insured by Medicaid were receiving such substandard care that it violated federal law.

Louis St. Petery, a pediatric cardiologist and former head of the state’s Pediataric Society who has become the health department’s nemesis in recent years, called the order “a great day for children.”

“CMS will have to stop their inappropriate use of this screening tool and thereby will no longer be able to stop serving already enrolled children with special healthcare needs, forcing them into Medicaid HMOs woefully inadequate in delivering care to these fragile children,” St. Petery said.