Dad of disabled teen in Florida wins fight over reimbursement for diapers

From the Miami Herald:

Severely disabled, Sharett Smith, 17, needed one thing in order to leave behind her green-and-white plush doggie and her brown teddy bear and go out with her family to church or the park: diapers.

At a price tag of $200 to $300 per month, her widowed father could not afford them. And the state's Medicaid program, which pays for Sharett's care, refused to help.

This week, a federal judge ruled that, for Florida children like Sharett, diapers are a medical necessity -- not a ``convenience'' -- and ordered the state Agency for Health Care Administration to pay for them. The ruling could affect thousands of sick or disabled children throughout the state.

In the 28-page ruling, U.S. District Judge Alan S. Gold said he understood the state's plight in an unforgiving budget year. ``Florida has limited resources, particularly in an economic downturn, and must make tough choices about where to invest those limited resources.''

But he added: ``While I doubt neither the gravity nor the difficulty of funding Medicaid obligations, such concerns do not excuse a violation of federal law.''

``I am very happy with the decision,'' said Floyd Smith, 53, Sharett's father. ``When I approached Legal Services with this problem, I said it was not only for Sharett, but for other less-fortunate children -- children in the same situation, or maybe even worse.''

Court records say about 12,000 Florida children could be affected by Gold's ruling, at a potential cost of $19 million a year, about two-thirds of which would come from federal grants.

In a statement e-mailed to The Miami Herald, the state agency said it is examining its legal options.

``In the last legislative session [before this lawsuit was filed], the Agency asked for funding for diapers for children between 3 and 21 who suffered from medical conditions that lead to incontinence. The Governor's current proposed budget also asks for this funding. Legislators have been receptive to these requests, but severe budgetary constraints have made it difficult to fund them,'' the statement said.

Smith, of Miami, is raising Sharett and two other young children on about $1,000 a month in Social Security disability and survivor's benefits. His wife of 26 years died of a brain tumor. The $200 to $300 he spent each month for diapers for Sharett represented 20 percent or more of his budget.

The money, he said, can be used for school supplies, clothes and other items for Sharett's 5- and 9-year-old sisters.

Diagnosed with cerebral palsy and severe mental retardation, Sharett cannot talk, and cannot even watch television, which she does not understand.

Sharett's world already is painfully small. Smith takes her to church, but trips to the park or elsewhere draw unwelcome attention.

``Other kids in the area where I live look at her in a funny way,'' Smith said. ``Her sisters say, `Daddy, let's go. Look at how they're looking at Sharett.'

``We don't go out a lot.''

Smith testified at trial that he had tried a number of times to toilet-train his daughter, but to no avail. The girl's longtime pediatrician testified that with Sharett's cognitive abilities, toilet training is not really possible.

Without diapers, Smith would have been forced to consign his daughter to life inside his very modest home. She cannot attend school without diapers because of sanitary concerns, and she could not attend church or other activities in the community either, said attorney Monica Vigues-Pitan with Legal Services of Greater Miami.

On behalf of his daughter, Smith sued the Agency for Health Care Administration on June 8, 2009, arguing that, under federal law, the state cannot simply refuse to provide briefs for Medicaid recipients who needthem.

If a state chooses to participate in Medicaid, a joint state-federal insurance program for the needy or disabled, it must provide all the care and services the program requires, the judge wrote.

``Because Florida participates in the Medicaid Program,'' Gold wrote, ``it must comply with the Medicaid Act and corresponding regulations.''

Smith's doctor, Audrey Ofir, a pediatrician at the University of Miami, had testified that ``if left on her own, Sharett would spend hours playing with one stuffed toy.'' Diapers, she added, allow her ``to engage in necessary life activities such as socializing with others, attending school and participating in public events with her family.''

If forced to do without briefs, Ofir testified, Smith would constantly soil herself and her clothes. This would ``harm her physical and mental health,'' Gold wrote in his order.

The state had suggested Smith could get help for his daughter in other ways, such as placing her in a nursing home or institution, or from a community-based care program for disabled Floridians -- though that option is not available since Smith is already on a waiting list, along with about 17,000 others.

Smith's plight was detailed in a Miami Herald story in June 2009. Dozens of readers donated diapers and other supplies to the family, and another state department, the Agency for Persons with Disabilities, agreed to pay for the briefs while the lawsuit was pending.

But with Gold's ruling, the Agency for Health Care Administration will be forced to provide briefs for all children whose disability or medical condition leave them incontinent.