Wednesday, August 7, 2013

DOJ’s ADA Lawsuit Regarding Children in Nursing Homes. Information Bulletin #383 (8/2013) The U.S. Department of Justice, Disability Rights Section, filed a very important ADA/Olmstead lawsuit against the State of Florida on behalf nearly 200 children with disabilities. USA v. The State of Florida These children “entered nursing facilities as children and grew up in these institutions” and were “unnecessarily segregated from their communities.” This lawsuit also claimed that “children with significant medical needs who reside in the community” face “serious risk of unnecessary institutionalization” because of “repeated service reductions and lengthy and unduly burdensome recertification processes.” While the lawsuit focused on children, DOJ’s legal claims apply as well to adults in nursing facilities and at risk of institutionalization. Also, because many States have very similar ADA/Olmstead issues, we will point out some very important handles you might want to consider. 1. “Denial or Reduction of Medically Necessary Services.” DOJ asserted that Florida “in recent years unduly restricted the availability of many in-home services … through a state regulation that requires Medicaid services to ‘be furnished in a manner not primarily intended for the convenience of the recipient or recipient’s caretaker.” DOJ asserted that there were children in nursing facilities as a result of Florida’s limits on in-home services and/or a failure to provide such services. 2. “Stagnant Reimbursement Rates for Home Health Services.” DOJ noted that many people were unable to access home health services due to the low Medicaid rates paid for such services. One comparison that is very helpful was DOJ noting that the rate paid to nursing homes for these children increased in the last 9 years by 28%, but home health rates have not increased comparably. 3. “Insufficient Capacity in HCBS Waiver Programs.” After pointing out that most of these children are eligible for Waiver services in the community, due to lengthy waiting lists children have been forced to enter nursing homes. Even with additional State Waiver funds in 2013, more than95% of the people on waiting lists will not receive community-based services. 4. “Lack of Sufficient Community-Based Alternatives.” DOJ stated there were “very few providers of care to children with significant medical needs” in non-institutional settings. 5. “Failure to Offer Meaningful Opportunities to Move to the Community.” DOJ stated that “many of the Institutionalized Children remain in facilities for very long periods of time, even when it is apparent that their medical conditions would permit return to the community with appropriate supports. The continued stay of most of these children is the direct result of the State’s failure to actively identify more integrated service options for them.” Related to the ADA/Olmstead arguments and claims, DOJ noted that “providing services in integrated settings can be accommodated through reasonable modifications to the State’s existing services.” These five problems exist in many other States and cause adults (and children) to be unnecessarily segregated in nursing homes and other institutional settings, as well as to be at serious risk of institutionalization. Steve Gold, The Disability Odyssey continues Back issues of other Information Bulletins are available online at with a searchable Archive at this site divided into different subjects. Information Bulletins will also be posted on my blog located at To contact Steve Gold directly, write to or call 215-627-7100. Ext 227.

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