- The Washington Times - Monday, July 22, 2013

The Justice Department on Monday accused the state of Florida of violating the Americans with Disabilities Act, saying 200 children with disabilities have unnecessarily been segregated in nursing facilities when they could be served in their family homes or other community-based settings.

In a lawsuit filed in U.S. District Court in Fort Lauderdale, Fla., the department said the state’s policies and practices place other children with significant medical needs at serious risk of institutionalization in nursing facilities. A recent Supreme Court decision requires states to eliminate unnecessary segregation of people with disabilities.

The department’s complaint seeks declaratory and injunctive relief, as well as compensatory damages for affected children.

“Florida must ensure that children with significant medical needs are not isolated in nursing facilities, away from their families and communities,” said Eve Hill, deputy assistant attorney general for the department’s Civil Rights Division. “Children have a right to grow up with their families, among their friends and in their own communities.”

Ms. Hill said this was “the promise” as articulated by the Supreme Court, noting that the violations the department has identified are “serious, systemic and ongoing and require comprehensive relief for these children and their families.”

Officials at the Florida Agency for Health Care Administration declined to discuss the lawsuit, saying it had not been formally served.

In September 2012, the Justice Department issued an extensive findings letter, accusing the state of violating the ADA. The letter found that the state’s failure to provide access to community services and supports was leading to unneeded institutionalization.

The letter identified the numerous ways in which state policies and practices have limited the availability of access to medically necessary in-home services for children with significant medical needs. Additionally, the state’s screening and transition planning processes have been plagued with deficiencies, noting that some children have spent years in a nursing facility before receiving the screenings required under federal law to determine whether they actually need to be there.

The department said the state has forced some families to face the “cruel choice of fearing for their child’s life at home or placing their child in a nursing facility.”

In one instance, the department said the state cut one child’s in-home health care in half. Her family could not safely provide care themselves to make up for this reduction in services, and they felt they had no choice but to place her in a nursing home. The department said another child who entered a nursing facility as a young child spent almost six years in a facility before the state completed her federally mandated screening.

Since late last year, the department said it has met with Florida officials on numerous occasions in an attempt to resolve the violations. It said that while the state has altered some policies that have led to unnecessary institutionalizations, ongoing violations remain. Nearly 200 children remain in nursing facilities.

Deficient transition planning, lengthy waiting lists for community-based services and a lack of sufficient community-based alternatives persist, the department said, noting that it determined that judicial action was necessary to ensure that the civil rights of Florida’s children were protected.

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