State Cites Nursing Shortage in Kids Care Fight

By Jim Saunders

The News Service of Florida

TALLAHASSEE — The state wants a federal judge to put on hold a ruling aimed at keeping children with complex medical conditions out of nursing homes, saying a shortage of nurses would make it “impossible” to comply with a key part of the decision.

Attorneys for the state filed a motion for a stay Friday, a week after U.S. District Judge Donald Middlebrooks ruled that Florida has violated the Americans with Disabilities Act and needs to make changes to help children receive care in their family homes and communities instead of nursing homes. The state is seeking a stay while it challenges Middlebrooks’ ruling at the 11th U.S. Circuit Court of Appeals.

A key part of Middlebrooks’ decision and an accompanying injunction would require the state to increase the availability of private-duty nursing that could help children receive care outside of nursing homes. The South Florida-based judge ordered the state Medicaid program to provide 90 percent of the private-duty nursing hours that are authorized for the children.   But the motion for a stay said complying with that requirement is not feasible during a nationwide nursing shortage. While about 140 children with complex medical conditions are in nursing homes, the case also involves children considered at risk of being institutionalized. The state’s motion said the private-duty nursing requirement could apply to about 2,750 children.

“Beyond the shadow of a doubt, the state will violate the injunction through no fault of its own, and despite its best efforts, because the provision of 90% of PDN (private-duty nursing) hours to 2,750 children in the midst of a nursing shortage is simply impossible,” the motion said. “If there is one fact that the parties, the court, and the witnesses all agreed upon at trial, it is that a critical nursing shortage currently exists across the country. The order and injunction do not deal with the undisputable nursing shortage that renders the 90% utilization rate flatly unachievable.”

Middlebrooks’ ruling came in a decade-long legal battle in which the U.S. Department of Justice alleged the state unnecessarily institutionalized children. The case focuses on children in the Medicaid program with conditions that often require round-the-clock care involving such needs as ventilators, feeding tubes and breathing tubes.

The ruling criticized the state for not doing more to ensure services such as private-duty nursing.

“Those who are institutionalized are spending months, and sometimes years of their youth isolated from family and the outside world,” Middlebrooks wrote in the July 14 decision. “They don’t need to be there. I am convinced of this after listening to the evidence, hearing from the experts, and touring one of these facilities myself. If provided adequate services, most of these children could thrive in their own homes, nurtured by their own families. Or if not at home, then in some other community-based setting that would support their psychological and emotional health, while also attending to their physical needs.”