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Suit Claims Injury Agency Shorting Caregivers

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By SHERRI ACKERMAN

The Tampa Tribune

Published: September 10, 2008

TAMPA - Magdalena Rodriguez spends at least 16 hours a day caring for her 17-year-old daughter, Noemi, who was deprived of oxygen at birth and is mentally disabled and confined to a wheelchair.

Diagnosed with cerebral palsy and severe mental retardation, Noemi relies on her mom to stand, sit or walk. Rodriguez changes her diapers, feeds her through a tube, bathes and dresses her and lifts her onto a wheelchair.

For that, a program created by Florida lawmakers pays the unemployed, single mom $15 an hour for 40 hours a week.

That's not enough, attorneys for Rodriguez say. They argue more than 100 parents and guardians caring for children participating in the plan are each owed thousands of dollars - and some have no idea they are due compensation.

The Florida Birth-Related Neurological Injury Compensation Association, known as NICA, has been underpaying these parents and misinforming them about their rights, contend lawyers Richard Gilbert and David Caldevilla of Tampa.

The case was assigned class-action status two weeks ago by Hillsborough County Circuit Judge Sam Pendino.

NICA was created in 1988 by the Florida Legislature as an alternative to costly malpractice litigation, but it is not a state agency. Caregivers of children born with catastrophic neurological injuries can qualify for benefits that will cover them for life in exchange for not suing care providers.

About 965 doctors pay $5,000 a year to participate in the plan; hospitals pay $50 per live birth. The money, which amounts to about $20 million a year, is invested and provides medical care not covered by other health insurance. So far, the program has covered 115 children.

NICA executive director Kenney Shipley said the program is one of two nationwide that has been successful.

"It provides a lifetime of care with no limitations," she said. "We pay anything medically necessary and reasonable."

Pay To Families A Sticking Point
Benefits include a one-time $100,000 payment and additional money to help cover the costs of equipment, medications, therapy and residential and custodial care, such as a private nurse. The plan also compensates family members who provide care above and beyond regular parental duties.

That's the sticking point for this lawsuit, which originally was filed in 2006 on behalf of another Tampa Bay area family.

NICA went to lawmakers in 2002 and asked that the compensation to parents who provide their children's medical care be eliminated, the lawsuit states. The fear was that NICA would have to stop accepting new claims because it wasn't adequately funded, the lawsuit said.

The original legislation prior to June 7, 2002, required NICA to provide compensation for residential and custodial care at a reasonable hourly rate, but legislators agreed to limit the compensation to 10 hours a day.

Some parents, such as Rodriguez, say they care for their children much more than 10 hours a day.

"I was only getting paid for eight hours a day," said the mother of three, who has worked as a day care provider, housekeeper and waitress. "I didn't even know about the 10 hours."

Rodriguez's attorneys argue that their client and the other families whose children were participating in the plan before the change should be exempt from the new law and reimbursed for any past care. That could total in the millions, the attorneys said.

They point to other families across the state who NICA agreed to compensate well after the new law went into effect, and they argue that the hours NICA compensates parents for are decided upon arbitrarily.

In Rodriguez's case, "She doesn't get weekends off," Caldevilla said. "If her daughter cries out in the middle of the night, she doesn't say 'Oh, well, I'm off now.'"

Shipley said the change, which was approved before she joined NICA, actually created a benefit for families that didn't exist.

"There was no such thing as family residential care," she said. "It made it easier for parents to receive benefits - if they asked" for them.

Panel Reviews Each Claim

An expert panel that includes a pediatric nurse and a parent who receives NICA benefits reviews each claim, Shipley said.

NICA received documentation from Rodriguez's doctor that said Noemi needed 40 hours of care, Shipley said. Court documents show Noemi's pediatrician testified in February that the teen needs constant care.

But Shipley contends NICA never received any claim from Rodriguez for additional compensation.

"I didn't even know she wasn't happy," the director said.

Rodriguez said no one told her she could provide Noemi's care herself until she asked in 2004. Later, she learned from lawyers that she wasn't receiving the full compensation available to her.

"It would have made a huge difference," said Rodriguez, who has two other daughters and has struggled to make ends meet.

"Every case we receive is a sad situation," Shipley said. "When you get into an emotional situation like this, you feel horrible for the parents."

Still, a class-action lawsuit goes against everything lawmakers intended when they created NICA, she said.

"The intent was never for families to have to file a lawsuit," she said. With NICA, caregivers go through an administrative judge with NICA paying for attorney fees "so more of the care goes to the child."

But the administrative judge can only rule on one case at a time, Caldevilla said, meaning some parents would never learn they're not getting what they're entitled to.

They wouldn't know to file a claim, he said, and that could leave children without the care they desperately need.

Researcher Melanie Coon contributed to this report. Reporter Sherri Ackerman can be reached at sackerman@tampatrib.com or (813) 259-7144.

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