TALLAHASSEE, Fla. – Nearly a decade after concerns emerged about “medically fragile” children being placed in nursing homes, a federal appeals court will not reconsider a decision that allowed the U.S. Department of Justice to pursue a lawsuit against Florida.
The 11th U.S. Circuit Court of Appeals on Wednesday declined to hear the case as a full court, according to News 6 partner News Service of Florida. A three-judge panel in 2019 backed the Justice Department’s authority to pursue a lawsuit under the federal Americans with Disabilities Act, prompting the state to request a hearing by the full court — known as seeking an en banc hearing.
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The issue of care for medically fragile children, who have severe health conditions, drew attention in 2012 after a Justice Department investigation found Florida was unnecessarily institutionalizing children with disabilities in nursing homes. The department also said the state’s Medicaid program placed other children at risk of institutionalization.
The Florida Agency for Health Care Administration, which runs much of the state’s Medicaid program, vehemently disputed the allegations.
Attorneys for a group of children filed a federal lawsuit alleging, in part, that the state was violating the Americans with Disabilities Act by failing to provide services that would allow children with severe medical problems to stay in their homes and communities. The Department of Justice tried to negotiate an agreement with the state but wound up filing a lawsuit.
A U.S. district judge in 2017 ruled against the group of plaintiffs because of changes Florida made in the Medicaid program and also said the Justice Department did not have standing to pursue the case. But the appeals-court panel in 2019 backed the Department of Justice’s ability to file lawsuits under what is known as Title II of the Americans with Disabilities Act.
Wednesday’s decision to reject the request for a full-court hearing did not provide an explanation and did not detail how many judges on the Atlanta-based court opposed or supported holding such a hearing.
But Judge Kevin Newsom, in a dissent joined by Judge Elizabeth Branch, disputed that Congress had given the Justice Department authority under Title II of the disabilities law to file such a lawsuit against the state. In part, he said the lawsuit was not based on any alleged violations of contracts.
“At the end of the day, there simply is no cause of action authorizing the government’s non-contract suit here,” Newsom wrote. “And we aren’t at liberty to conjure one, no matter how sympathetic the plaintiffs’ case.”
Newsom also wrote that he fears the 2019 panel decision “comes at real cost to core principles of federalism.”
“The upshot of the panel’s holding is that the attorney general can enforce Title II of the ADA by suing state governments,” the 25-page dissent said. “That’s a big deal.”
But Judge Jill Pryor, who was part of the 2019 panel, wrote a lengthy opinion supporting Wednesday’s decision to not hold a full-court hearing.
“Under the (dissent’s) interpretation, upon receiving a complaint that a non-federally-funded public entity has discriminated against a person with a disability, a federal agency pours resources into investigating the complaint and attempting to reach an informal settlement,” Pryor wrote. “But if that process ultimately proves unsuccessful, the federal government must give up — because it may not sue the public entity to enforce the law. Without any enforcement teeth, such a regulatory process would be utterly ineffectual.”
Pryor also rejected Newsom’s arguments about federalism.
“This argument rests entirely on the … assumption that Congress did not authorize the attorney general to sue states or state agencies for discrimination when the discrimination occurred in connection with a program or activity that did not receive federal funding,” Pryor wrote. “Because Congress did in fact authorize the attorney general to sue any public entity for discrimination in violation of Title II, there is no federalism problem here.”