US District Court finds Florida violated ADA with unjustifiable segregation of institutionalized children with medical complexity

In United States v. Florida (Case No. 12-cv-60460-MIDDLEBROOKS/Hunt), decided in the United States District Court for the Southern District of Florida on July 14, 2023, the Court found that unjustified institutionalization of individuals with disabilities is unacceptable.

The Court’s opinion included the following case overview:

The children at issue here are under 21 years old and have disabilities resulting in their need for medical services on a daily basis. As such, the children often qualify for Medicaid and require help conducting activities of daily living. Necessary services include: the use of technology or equipment for communication, mobility, breathing, eating, and other tasks, as well as the use and maintenance of feeding tubes, breathing tubes, ventilators, and wheelchairs.

Those who are institutionalized are spending months, and sometimes years of their youth isolated from family and the outside world. 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.

The United States filed this lawsuit against the State of Florida in 2013. The suit was brought on behalf of hundreds of children described as “medically fragile” or “medically complex.” See United States v. Florida, Case No. 13-61576-CV-Dimitrouleas. Some reside in pediatric nursing facilities (“Institutionalized Children”), and others reside in the community but are at serious risk of institutionalization due to lack of access to necessary services (“At-Risk Children”). There are approximately 140 Institutionalized Children. The number of At-Risk Children totals more than 1,800.

It has taken over a decade for this case to finally reach trial. But today, I conclude that the United States met its burden of proving that the State of Florida is administering its services in a way that discriminates against children with disabilities, in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134. The State of Florida must remedy this problem and must do so immediately.

The ADA prohibits discrimination. The United States sued Florida, seeking injunctive relief for alleged violations of the ADA. Following a two week bench trial, the Court held that the United States met its burden of proving Florida violated the Americans with Disabilities Act. Themes of lapses in care emerged during the trial, but the dominate one, which the Court found was at the heart of the case, related to shortfalls in meeting the need for private duty nursing.

Case Governed by Olmstead

The trial court found that the case was governed by Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176, 144 L. Ed. 2d 540 (1999). Under Olmstead, the State is required to provide disability services to children in the community, instead of in nursing facilities, when three conditions are met: (1) “the State’s treatment professionals have determined that community placement is appropriate”; (2) “the transfer from institutional care to a less restrictive setting is not opposed by the affected individual”; and (3) “the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Causation is not an element under Olmstead. The State must provide treatment options in the community if the three laments are met. Where a defendant fails to meet this affirmative obligation, the cause of that failure is irrelevant.

Olmstead applies to those in an institutional setting and those at-risk of institutionalization. The protections afforded under Olmstead would be meaningless if people with disabilities were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation. Thus a State program violates the ADA’s integration mandate if it creates the risk of segregation.

Initially, the trial court relied on the prior Eleventh Circuit decision to find that the United States could bring this action. It then rejected Florida’s argument that the United States did not have constitutional standing because it has failed to prove traceability and redressability. Florida argued that services were provided by third parties not before the court. However, the court found that was not relevant because it is the State that is choosing to comply with Title II of the ADA through contracted entities.

Dr. Sara “Sally” Bachman, one of the nations leading experts in Medicaid program policy, structure and financing, testified regarding how Florida runs its Medicaid program. She focused a large part of her research on evaluating the provision of Medicaid programs for children with medical complexity. She clearly explained how Florida runs its Medicaid program through its state agency—Florida’s Agency for Health Care Administration (“AHCA”)—and how AHCA interacts with other state agencies to provide services for Florida’s most vulnerable population, children with medical complexity. Florida delivers Medicaid services to most of its Medicaid recipients through its Statewide Medicaid Managed Care (SMMC) programs, which AHCA administers. A limited number of children receive care through a fee-for-services program. Still, despite contracting with managed care companies, Florida is ultimately responsible for ensuring the provision of Medicaid services.

The Medicaid Act’s Early and Periodic Screening, Diagnostic and Treatment (“EPSDT”) provisions require states who participate in the Medicaid Program, e.g., Florida, to cover all services that are: a) provided to recipients under 21 years of age, b) the Medicaid Act permits or requires the state to cover under a Medicaid State Plan, and c) are medically necessary to correct or ameliorate defects, physical and mental illnesses, and conditions. Based on witness testimony, the court found Florida was failing to meet its obligations. As part of her testimony, Dr. Bachman and a statistical data analyst, Emily Sisson, testified that of the 1,956 children included in the data, almost 1,800 received fewer private duty nursing hours than authorized by the managed care plans. Only 6.5% received all of their authorized private duty nursing hours. Fifty-eight percent received less than 80% of their authorized hours and 25% received less than 60% of their authorized hours. Dr. Bachman concluded that “Florida does not sufficiently serve children with medical complexity in the community in terms of the provision of private duty nursing services. Based on her testimony and that of other witnesses, the trial court concluded this was undoubtedly true.

The trial court found that Florida’s actions resulted in segregation and discrimination. Analyzing the testimony and other evidence, the court found that Florida failed to meet its obligations under the ADA and Olmstead. The trial court declined to take over Florida’s Medicaid program, instead issuing an injunction requiring Florida to do three things: (1) Require the managed care plans to ensure the provision of all covered and authorized PDN and develop methods to measure provider performance, including real time reporting of PDN provider issues; (2) Inform and facilitate the transition of children from nursing facilities; and (3) Improve the existing Care Coordination system to strengthen accountability and eliminate silos of care. The order provides that a monitor will be appointed for a limited period to assist the parties and the Court in ensuring compliance with the injunction.

Decision is available at 2023 U.S. Dist. LEXIS 121655.