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September 15, 2013
Lawyers ad litem help medically fragile kids leave nursing homes

By Jan Pudlow
Senior Editor

The medically fragile infant was housed in a wing of a nursing home designed for geriatric patients in Tampa, and the child’s parents lived more than 400 miles away in Pensacola.

Paolo Annino Guardian ad Litem Executive Director Alan Abramowitz asked Paolo Annino, the Glass Professor of Public Interest Law at Florida State University’s College of Law, to serve as the baby’s attorney ad litem.

Now, the infant has been moved to a loving medical foster home in Pensacola, where the baby gets held and hugged a lot more, and his parents are able to visit often and are working toward a chance at reunification.

“This is a case where everyone worked together. The amount of work the GAL did was amazing in this case,” Annino said. “Everyone was focusing on the child, and everyone realized the appropriate place for this baby was not in a nursing home.”

Though the infant is a “DCF [Department of Children and Families] child,” where there have been findings of abuse or neglect, Annino said, parental rights have not been severed. Bringing the baby back to Pensacola, he said, “will help the possibility of reunification” and, if that happens, the parents would need to receive a tremendous amount of help to care for their child.

Important right now, Annino said, is the one-on-one attention the baby receives from medical foster parents, where medically fragile children are given “lots of hugs and rubbing heads and hands. With really young children, tactile attachment is so important.”

Annino, who handles such cases pro bono, praised Abramowitz for his efforts at receiving funding from the Legislature to hire attorneys ad litem for medically fragile children and coordinating their legal representation.

Because of a $325,000 legislative appropriation, the number of medically fragile foster children in DCF’s custody has been winnowed down from 35, before the law was passed, to the current 11 living in skilled nursing homes.

Personally visiting each medically fragile foster child housed in Florida’s nursing homes, Abramowitz has witnessed tiny bodies hooked up to ventilators and felt voiceless children’s eyes track him as he moved across the room.

“These children are special. It stays with you when you see them,” Abramowitz said, noting that three Florida nursing homes have closed down or stopped taking kids, leaving the state with only four nursing homes handling medically fragile children.

“In fact, DCF doesn’t want these children there either,” Abramowitz said. “We want them in a homelike setting.”

Abramowitz wants to place the children in medical foster homes, but there aren’t enough of them. He said it takes a “special, caring person willing to commit to a child who is so fragile, and needs a lot of time. You have to be patient. These are top-tier foster parents,” he said, adding that retired nurses make great medical foster parents. “They are out there, and we need to connect with them.”

In an August 22 letter to Sen. Tom Lee, R-Brandon and Rep. Neil Combee, R-Auburndale, Abramowitz thanked the sponsors of the bill to appropriate $325,000 for attorneys ad litem.

“Because of your support in ensuring dependent children with disabilities who are living in skilled nursing facilities are given an attorney ad litem, these children will now have an effective advocate who will ensure that their medical needs are met, the services they need are supplied, and a more suitable placement is provided,” Abramowitz wrote.

Because many of these children are placed in nursing homes away from their “county of jurisdiction,” Abramowitz said, “the GAL Program and the new attorneys ad litem work closely together for the child.”

“When you see the faces of the children impacted by this initiative,” Abramowitz wrote to the lawmakers, “you cannot help but want to move heaven and earth to ensure that they are not only advocated for, but that they obtain permanency.”

With GALs and attorneys ad litem working together, Abramowitz said, “We believe this advocacy team can reach the common goal of the GAL Program, the DCF, and the Florida Legislature of reducing the number of disabled children living in skilled nursing facilities . . . to zero. We all want disabled children to be reunified with their families, in medical foster homes, or placements that are better suited for children — with more activity, social interaction, permanency, and joy.”

Abramowitz notes that attorneys at the GAL Program, who are experts in dependency law, have caseloads as high as 200. That’s why well-trained attorneys ad litem, who can advocate for long-term guardianships and deal with administrative law hearings, are so essential.

For the FY 2014-15, Abramowitz is asking for a modification of the proviso language to allow excess funds to be “used to reimburse attorneys in other matters which have been court-ordered or for training on matters pertaining to children with disabilities.”

Abramowitz explained that this would allow the GAL Program to “maximize dollars, utilizing pro bono attorneys where available, and attorneys ad litem for children who require guardianships, are considered or are placed in residential treatment centers, or children who are victims of human trafficking.”

The attorneys ad litem on the cases are working.

“Once we put a flashlight on these hidden children, we see they are kids that can work with present services in the community and remove them from nursing facilities, which is inappropriate,” said Annino.

“In my case with the infant, there was no litigation. We were able to negotiate and everyone worked together. Sometimes, there is no litigation because the attorney ad litem is there facilitating, and keeps asking: ‘Why?’ I don’t go in saying, ‘I’m going to sue you.’ I say: ‘Why can’t this happen?’ The role of the attorney is to be an advocate, and what that means is asking the different stakeholders, ‘Why can’t this child be in the community?’ The goal is not to litigate.”

But, for a group of nearly 200 medically fragile children and almost 5,000 at risk, litigation is the vehicle aimed at systemic change. Beyond the 11 foster children currently in nursing homes, there are about another180 medically fragile children in Florida’s nursing homes, sparking two lawsuits that are still pending in the U.S. Southern District.

Annino is using his clinical law students to help in a class-action lawsuit pending in federal court in the Southern District of Florida (Case No. 12-60460-CIV; T.H. et al. v. Elizabeth Dudek, secretary of the Agency for Health Care Administration, et al.)

(See October 1, 2012, Bar News story, “Law students fight to bring the ‘hidden children’ home.”)

“The good nursing homes at least do a good job of taking care of the child’s body,” Annino said. “But they do a terrible job of taking care of the child’s soul. That’s the substantive matter. Nursing homes are not a good place for children. The state disagrees with that. They also disagree with the law. For me, the law is black letter law.”

Since that lawsuit was filed by Annino’s Public Interest Law Center, Miami disability rights attorney Matthew Dietz, and The Northern Florida Center for Equal Justice, Inc., the U.S. Department of Justice filed a separate lawsuit in July 2013 against the State of Florida. The DOJ alleges that “nearly 200 children with disabilities in Florida are segregated unnecessarily in nursing facilities.”

On August 13, the State of Florida filed its answer, with its first affirmative defense that Florida does not have to comply with the Americans with Disabilities Act: “In enacting Title II of the ADA, Congress exceeded the scope of its enforcement authority under Section 5 of the Fourteenth Amendment to the United States Constitution. Title II of the ADA is therefore invalid and unenforceable.”

State health leaders have gone on the offensive to counter the lawsuits, announcing that they have taken action to improve the care of the children in nursing homes, and changed protocol to help make sure the children are living in the right places to serve their needs.

While the lawsuits are pending in federal court, Abramowitz is on a separate, passionate mission to reduce the medically fragile foster children in nursing homes, by enlisting the expertise of attorneys ad litem.

Ideally, Abramowitz said, these children need to be adopted into forever families.

“It’s the individual attention, the love, just the need for a child to have a family like everybody else,” Abramowitz said. “Just because you have a disability doesn’t mean you shouldn’t be part of a family. We want children to be part of a family. Every child is adoptable.”

[Revised: 11-21-2014]