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Judge Orders State to Provide Private Duty Nursing Care

Guest Article: Elizabeth E. Hogue, Esq.


On July 14, 2023, a Judge issued an opinion and order, in which he said that the State of Florida must provide services, including private duty nursing care, to medically fragile children who are living in nursing homes or threatened with institutionalization so that they can live at home [United States of America v. State of Florida, Case No. 12-cv-60460-MIDDLEBROOKS/Hunt, (U.S. District Court for the Southern District of Florida, July 14, 2023)]. This court decision is based on violations of the Americans with Disabilities Act (ADA) and Olmstead v. A.C. ex rel. Zimring [527 U.S. 581 (1999)], a decision of the U.S. Supreme Court. This decision is important for home care providers because, as a result, a significant number of additional children may receive private duty nursing care at home. Similar cases are pending in other states.

The children at issue in this case are under twenty-one years old and have disabilities resulting in their need for services on a daily basis. The children frequently qualify for Medicaid and require help with activities of daily living. Necessary services often include the use of technology or equipment for communication, mobility, breathing, eating, and other tasks along with the use and maintenance of feeding tubes, breathing tubes, ventilators, and wheelchairs.

Children who are institutionalized spend months and sometimes years isolated from family and the outside world. In this case, one hundred forty children were living in nursing homes already and approximately one thousand eight hundred children were threatened with institutionalization.

The Court said:

“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.”

Then the Court said:

“Several Medicaid services were put at issue, but there is little question that the shortfalls in meeting the need for private duty nursing (or “PDN”) was at the heart of this case – the subject was addressed by nearly every witness who took the stand. The lack of access to PDN was by far the most glaring and critical problem facing families with medically complex children. Most families are receiving nowhere near the number of hours they require…By the close of the evidence, I was convinced that the deficit of PDN in Florida is causing systemic institutionalization.”

The Court then acknowledged that the problem of the lack of adequate PDN services is likely based on staffing shortages. However, the Court refused to accept lack of staffing as a reason to not provide the services children need. The Court noted that many private duty staff members are paid $14.00 per hour on average nationally. The Court observed that increasing wages may result in appropriate availability of staff members. Regardless of the cause, however, the Court was clear that the Medicaid Program must meet the needs of children for private duty care at home in order to prevent unnecessary or threatened institutionalization.

Courts in other states are likely to issue decisions similar to this one. This means that private duty agencies must prepare for an influx of clients/patients. In fact, private duty agencies should take the initiative to partner with state Medicaid Programs to meet the needs of an increasing number of children for private duty services at home.  

The Judge quoted Nelson Mandela in the Conclusion of his opinion:

“There can be no keener revelation of a society’s soul than the way in which it treats its children.” 

We can only say, “Amen!”


©2023 Elizabeth E. Hogue, Esq. All rights reserved. No portion of this material may be reproduced in any form without the advance written permission of the author.

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