A federal judge in Fort Lauderdale, Fla. has tossed out of court a lawsuit filed three years ago by the U.S. Department of Justice that claimed Florida health administrators had acted with “deliberate indifference to the suffering” of children with disabilities who were being warehoused in nursing homes for lack of more appropriate accommodations with family members or in the community.

U.S. District Judge William J. Zloch never tackled the substantive dispute between federal civil rights lawyers and state health regulators. Rather, Zloch concluded the Justice Department lacked “standing” to sue the state. Zloch’s order said that, when Congress passed the landmark Americans with Disabilities Act in 1990, it did not grant the Justice Department authority to sue states or other “public entities” that it believes are violating the legislation.

Zloch’s order effectively guts a years-long effort by the DOJ and Florida civil rights attorneys to remove children with severe disabilities from nursing homes, where advocates claimed — and a good bit of the state’s own inspections showed — youngsters were being segregated with little access to education, socialization or family. Zloch neutered a similar lawsuit filed in 2012 by a Miami civil rights attorney when he declined to certify that children in nursing homes represented a “class.”

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In an email, a publicist for the Tallahassee lawyers who represented Florida health regulators said Florida was the only state that “refused” to settle a civil rights suit claiming children with disabilities in institutions were being discriminated against. “A handful of states have settled such suits,” the statement said.

Matthew Dietz, the Miami lawyer whose suit prompted the DOJ to intervene, said in an email that Zloch’s order had “eviscerated 26 years of federal enforcement” of laws designed to end discrimination against people with disabilities by states or municipalities. He said hundreds of youngsters with disabilities now will either die, or grow up, in nursing homes along with frail elders. “This renders the rights of these kids with disabilities a sham.”

In his order, Zloch said that the intent of the ADA was to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

But, the judge added, the portion of the law pertaining to other governments never explicitly granted the Justice Department the authority to sue other governments. Without such a mandate, Zloch wrote, the DOJ overstepped its bounds when it sued the Florida Agency for Health Care Administration, and other departments.

Zloch dismissed a host of arguments from the Justice Department, including its contention that affirming the DOJ’s lack of authority to sue states and municipalities will leave such governments free to openly discriminate. “Not so,” Zloch wrote. Private parties still may sue governments, making each of them a “private attorney general,” Zloch wrote.

© 2016 The Miami Herald
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