Medically Fragile Children Sue Florida

     FT. LAUDERDALE (CN) – Florida’s boneheaded attempt to save money by sending medically fragile children to nursing homes instead of providing care at their homes will cost the state more money in the long run, six families say in a federal class action.



     The families say Florida violated the American Disability Act because it “unlawfully shifted the burden for providing skilled nursing services to the parents or caregivers of children who are not skilled nurses.” The defendant state agencies are forcing sick children to go to nursing homes, though “the overall costs to institutionalize all of the plaintiffs and plaintiff class members in nursing facilities is more than the overall costs of providing at home care,” according to the complaint.
     Many of the six medically fragile child plaintiffs “are on tracheotomies, gastrotomy tubes and ventilators,” according to the complaint. Citing the Florida Administrative Code, the complaint states: “A Medically Fragile Child is one who is medically complex and whose medical condition is of such a nature that he is technologically dependent, requiring medical apparatus or procedures to sustain life, e.g., requires total parenteral nutrition (TPN), is ventilator dependant, or is dependent on a heightened level of medical supervision to sustain life, and without such services is likely to expire without warning.”
     There are about 250 child Medicaid recipients in Florida nursing facilities, and another 3,300 child Medicaid recipients at risk of being placed in Florida nursing homes, and “defendants have adopted uniform policies, practices, and regulations to reduce private duty nursing services,” according to the complaint.
     Named as defendants are Secretary of the Agency for Health Care Administration Elizabeth Dudek, State Surgeon General and Secretary of the Florida Department of Health Dr. Harry Frank Farmer Jr., Deputy Secretary of the Florida Department of Health and Director of Children’s Medical Services Kristina, and eQHealth Solutions, a Louisiana nonprofit that contracts with Florida to make “medical necessity decisions.”
     The families say: “The defendants have developed regulations, rules, customs, practices, policies, acts, and omissions of reducing the prescribed medically necessary services to medically fragile children to the point that the plaintiffs’ caregivers cannot provide safe and appropriate care to the plaintiffs and plaintiff class. For example:
     “‘Florida Medicaid does not reimburse private duty nursing services provided solely for the convenience of the child, the parents or the caregiver.’ This restriction is based on the regulatory definition of ‘medically necessary,’ found at Rule 59G-1.010(166)(a), Fla. Admin. Code, which states, in part, that medically necessary services must ‘[b]e furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.’ Defendants adopted this policy without the authority of any similar federal Medicaid policy, rule or statute, giving defendants a basis to deny private duty nursing service hours that have been prescribed by plaintiff and plaintiff class members’ treating physicians. eQHealth and AHCA’s application of this policy is forcing parents and caregivers to institutionalize their children.
     “‘Private duty nursing services will be decreased over time as parents and caregivers are taught skills to care for their child and are capable of safely providing that care or as the child’s condition improves.’ Defendants adopted this policy without the authority of any similar federal Medicaid policy, rule or statute, giving defendants a basis to deny private duty nursing services that have been prescribed by plaintiff and plaintiff class members’ treating physicians. Plaintiff and plaintiff class members’ conditions will not improve over time, yet eQHealth and AHCA have routinely denied services even where plaintiff and plaintiff class members’ needs have not decreased.
     “Parents and caregivers of plaintiffs and plaintiff class members are not capable of safely providing the required care because they are not medical professionals and/or are not available to provide the services at the required level or duration. Plaintiff and plaintiff class members are at risk of being placed in a nursing home because defendants have unlawfully shifted the burden for providing skilled nursing services to the parents or caregivers of children who are not skilled nurses. In contrast, there are not similar regulations, rules, customs, practices, policies, acts, and omissions utilized to deny benefits and to unnecessarily institutionalize and segregate similarly situated adults with disabilities.
     “eQHealth and AHCA have a pattern and practice of denying or reducing services at each certification period without regard to the child’s condition.
     “The overall costs to institutionalize all of the plaintiffs and plaintiff class members in nursing facilities is more than the overall costs of providing at home care.
     “Defendants have and continue to make cuts in plaintiffs’ and class members’ services which have placed them at risk of unnecessary institutionalization in nursing facilities.” (Citations to Florida’s Agency for Health Care Administration “Handbook” omitted.)
     The families seek declaratory judgment that Florida is refusing “to provide medically necessary services and reasonable accommodations” and want the state ordered to reinstate private nursing services.
     Their lead counsel is Matthew Dietz of Miami.

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