08-002199RP Geraud L Moreland, (Ii), Through His Next Friend Geraud L. Moreland, Sr.; Kenneth Gibson, Through His Next Friend Dianna Mccullough, Collin Cone; And Advocacy Ctr For Persons With Disabilities, Inc. Et Al. vs. Agency For Persons With Disabilities Status: Closed DOAH Final Order on Wednesday, August 6, 2008.

Summary: Proposed rules to implement Medicaid Waiver Tiers are not invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERAUD L MORELAND, (II), )

THROUGH HIS NEXT FRIEND GERAUD )

L. MORELAND, SR.; KENNETH )

GIBSON, THROUGH HIS NEXT FRIEND )

DIANNA MCCULLOUGH; COLLIN CONE )

THROUGH HIS NEXT FRIEND SHERRY )

VARDAS; WILL BAKER, JR., BY AND )

THROUGH HIS NEXT FRIEND RICHARD )

MARTIN; AND THE ADVOCACY CENTER )

FOR PERSONS WITH DISABILITIES, )

INC., )

)

Petitioners, )

)

vs. ) Case No. 08-2199RP

)

AGENCY FOR PERSONS WITH ) )

DISABILITIES, )

)

Respondent. )

FINAL ORDER

The final hearing in this case was held on June 25 and 26,

2008, in Tallahassee, Florida, before Eleanor M. Hunter,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES:

For Petitioners: Gabriela Ruiz, Esquire

Jodi Siegel, Esquire

Southern Legal Counsel, Inc.

1229 Northwest 12th Avenue

Gainesville, Florida 32601

Martha Barrera, Esquire

Advocacy Center for Persons

with Disabilities

2728 Centerview Drive, Suite 102

Tallahassee, Florida, 32301-6298

For Respondents: Brian F. McGrail, Esquire

John D. C. Newton, II, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

Russell S. Kent, Esquire

Ashley Davis, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

ST ATEME NT O F THE ISS UES

Whether Proposed Florida Administrative Code Rules 65G-

4.0021, 65G-4.0022, 65G-4.0023, 65G-4.0024, and 65G-4.0025 are

invalid exercises of delegated legislative authority.

PRELIMINARY STATEMENT

On May 5, 2008, the Petitioners filed a challenge to

Proposed Florida Administrative Code Rules 65G-4.0021, 65G-

4.0022, 65G-4.0023, 65G-4.0024, and 65G-4.0025. During a

telephone conference, on May 13, 2008, the parties agreed to

have the final hearing on June 9 and 10, 2008, more than 30 days

after the assignment of the administrative law judge on May 6,

2008, as permitted by Section 120.56(1)(c), Florida Statutes

(2007). On May 28, 2008, the Petitioners filed a Motion for

Continuance, which was granted over objection. The final

hearing was re-scheduled for June 25 and 26, 2008.

At the beginning of the final hearing, the Respondent

announced its decision to withdraw Proposed Florida

Administrative Code Rule 65G-4.0021(3), that read as follows:

(3) The total billings in any quarter of

the state’s fiscal year for any service a

client is authorized to receive shall not

exceed twenty-five percent (25%) of the

total annual cost plan budget for that

service.

At the final hearing, Petitioners presented the testimony

of Sherndina Moreland; Celia S. Feinstein, an expert in needs

assessments for persons with developmental disabilities; Sherri

Vardas; Geraud L. Moreland, Sr.; Richard F. Martin; Janice

Phillips; Deborah J. Linton; and John Bartow Black.

Petitioners’ Exhibits 1 through 8 were received into evidence.

Petitioners requested that the deposition of J. B. Black be

admitted in their case-in-chief and it was admitted without

objection by the Respondent. On motion of Petitioners, official

recognition was taken of H.B. 5087 (2008); Florida

Administrative Code Rule 59G-1.010(166); Florida Administrative

Code Rule 59G-13.080; Conf. Rep. to H.B. 5001, pp. 61-67 (2008-

2009); Conf. Rep. to S.B. 2800, pp. 28-29 (2007-2008); Conf.

Rep. to S.B. 7009, pp.20-21 (2007-2008); Office of Program

Policy Analysis & Governmental Accountability (OPPAGA) Report

No. 08-15 (March 2008); Letter to State Medicaid Directors from

the Center for Medicaid and State Operations (Jan. 2001).

Respondent presented the testimony of Jim DeBeaugrine;

Linda Mabile; and J. B. Black, Ed.D., an expert in the

reliability and validity of assessment instruments.

Respondent's Exhibits 8, 9, 12 through 21, 18-A, 19-A, 22-A, 23-

A, 24 through 30, 32 through 34, 36 through 41, and 55 through

59 were admitted into evidence. Respondent's Exhibits 1 through

7, 10, 11, 22, 23, 31, 42 through 54 were withdrawn by the

Agency. Respondent's request for official recognition of the

items listed as numbers 5 and 6 was also granted.

The Transcript of the final hearing was received on July 8,

2008. Proposed Final Orders were filed on July 18, 2008.

FINDINGS OF FACT

1. The Agency for Health Care Administration (AHCA) is

designated as the single state agency authorized to make

payments for medical assistance and related services under Title

XIX of the Social Security Act, called the "Medicaid program."

See § 409.902, Fla. Stat. (2008). The Respondent, Agency for

Persons with Disabilities (APD), is the responsible agency, as

defined in Chapter 393, Florida Statutes (2008), for the

operation of the Medicaid Waiver program for developmentally

disabled persons.

2. The individual Petitioners are clients in the Medicaid

Waiver program. They are eligible for services because they

have a developmental disability, as defined in Subsection

393.063(9), Florida Statutes, which is as follows:

“Developmental disability" means a

disorder or syndrome that is attributable to

retardation, cerebral palsy, autism, spina

bifida, or Prader-Willi syndrome; that

manifests before the age of 18; and that

constitutes a substantial handicap that can

reasonably be expected to continue

indefinitely.

The other Petitioner, the Advocacy Center for Persons with

Disabilities, Inc., is a not-for-profit group that represents

persons with disabilities.

3. Typically, a person who meets the statutory definition

for eligibility has the assistance of a waiver support

coordinator (WSC), trained by APD, whose role is described in

the Agency for Health Care Administration's Developmental

Disabilities Waiver Services Coverage and Limitations Handbook

in Florida Administrative Code Rule 59G-13.080(12).

4. The WSC assesses the needs of the person for medical,

physical and functional services and assists the individual in

selecting the services in development of a support plan. The

support plan is individualized, based on the preferences,

interests, talents, attributes and needs of the recipient. From

the support plan, the WSC develops a proposed cost plan that

reflects the level, intensity, duration, and types of services

needed, and the cost of the services.

5. The WSC submits the proposed cost plan for Prior

Service Authorization review and approval, by one of the APD-

contract companies, MAXIMUS and APS Healthcare. If approved,

the eligible person with the documented "medical necessity" for

services becomes a waiver client with an approved cost plan for

one fiscal year. The WSC is supposed to conduct cost plan

reviews at least once a year to determine if a change in

circumstances necessitates a change in services and costs.

Rulemaking Authority

6. In 2007, the Florida Legislature amended Section

393.0661, Florida Statute (2008), related to home and community-

based services, which are available pursuant to the Medicaid

Waiver program, to provide, in part, as follows:

§ 393.0661. Home and community-based

services delivery system; comprehensive

redesign

The Legislature finds that the home and

community-based services delivery system for

persons with developmental disabilities and

the availability of appropriated funds are

two of the critical elements in making

services available. Therefore, it is the

intent of the Legislature that the Agency

for Persons with Disabilities shall develop

and implement a comprehensive redesign of

the system .

(1) The redesign of the home and

community-based services system shall

include, at a minimum, all actions necessary

to achieve an appropriate rate structure,

client choice within a specified service

package, appropriate assessment strategies ,

an efficient billing process that contains

reconciliation and monitoring components, a

redefined role for support coordinators that

avoids potential conflicts of interest, and

ensures that family/client budgets are

linked to levels of need.

* * *

(b) The agency, with the concurrence of

the Agency for Health Care Administration,

may contract for the determination of

medical necessity and establishment of

individual budgets.

(2) A provider of services rendered to

persons with developmental disabilities

pursuant to a federally approved waiver

shall be reimbursed according to a rate

methodology based upon an analysis of the

expenditure history and prospective costs of

providers participating in the waiver

program, or under any other methodology

developed by the Agency for Health Care

Administration, in consultation with the

Agency for Persons with Disabilities, and

approved by the Federal Government in

accordance with the waiver.

(3) The Agency for Health Care

Administration, in consultation with the

agency, shall seek federal approval and

implement a four-tiered waiver system to

serve clients with developmental

disabilities in the developmental

disabilities and family and supported living

waivers. The agency shall assign all

clients receiving services through the

developmental disabilities waiver to a tier

based on a valid assessment instrument ,

client characteristics, and other

appropriate assessment methods .

* * *

(e) The Agency for Health Care

Administration shall also seek federal

approval to provide a consumer-directed

option for persons with developmental

disabilities which corresponds to the

funding levels in each of the waiver tiers.

The agency shall implement the four-tiered

waiver system beginning with tiers one,

three, and four and followed by tier two.

The agency and the Agency for Health Care

Administration may adopt any rules necessary

to administer this subsection.

(f) The agency shall seek federal waivers

and amend contracts as necessary to make

changes to services defined in federal

waiver programs administered by the agency

as follows:

1. Supported living coaching services

shall not exceed 20 hours per month for

persons who also receive in-home support

services.

2. Limited support coordination services

shall be the only type of support

coordination service provided to persons

under the age of 18 who live in the family

home.

3. Personal care assistance services

shall be limited to no more than 180 hours

per calendar month and shall not include

rate modifiers. Additional hours may be

authorized for persons who have intensive

physical, medical, or adaptive needs if such

hours are essential for avoiding

institutionalization.

4. Residential habilitation services

shall be limited to 8 hours per day.

Additional hours may be authorized for

persons who have intensive medical or

adaptive needs and if such hours are

essential for avoiding institutionalization,

or for persons who possess behavioral

problems that are exceptional in intensity,

duration, or frequency and present a

substantial risk of harming themselves or

others. This restriction shall be in effect

until the four-tiered waiver system is fully

implemented.

5. Chore services, nonresidential support

services, and homemaker services shall be

eliminated. The agency shall expand the

definition of in-home support services to

enable the provider of the service to

include activities previously provided in

these eliminated services.

6. Massage therapy and psychological

assessment services shall be eliminated.

7. The agency shall conduct supplemental

cost plan reviews to verify the medical

necessity of authorized services for plans

that have increased by more than 8 percent

during either of the 2 preceding fiscal

years.

8. The agency shall implement a

consolidated residential habilitation rate

structure to increase savings to the state

through a more cost-effective payment method

and establish uniform rates for intensive

behavioral residential habilitation

services.

9. Pending federal approval , the agency

is authorized to extend current support

plans for clients receiving services under

Medicaid waivers for 1 year beginning

July 1, 2007, or from the date approved,

whichever is later. Clients who have a

substantial change in circumstances which

threatens their health and safety may be

reassessed during this year in order to

determine the necessity for a change in

their support plan.

(4) Nothing in this section or in any

administrative rule shall be construed to

prevent or limit the Agency for Health Care

Administration, in consultation with the

Agency for Persons with Disabilities, from

adjusting fees, reimbursement rates, lengths

of stay, number of visits, or number of

services, or from limiting enrollment, or

making any other adjustment necessary to

comply with the availability of moneys and

any limitations or directions provided for

in the General Appropriations Act.

(5) The Agency for Persons with

Disabilities shall submit quarterly status

reports to the Executive Office of the

Governor, the chair of the Senate Ways and

Means Committee or its successor, and the

chair of the House Fiscal Council or its

successor regarding the financial status of

home and community-based services, including

the number of enrolled individuals who are

receiving services through one or more

programs; the number of individuals who have

requested services who are not enrolled but

who are receiving services through one or

more programs, with a description indicating

the programs from which the individual is

receiving services; the number of

individuals who have refused an offer of

services but who choose to remain on the

list of individuals waiting for services;

the number of individuals who have requested

services but who are receiving no services;

a frequency distribution indicating the

length of time individuals have been waiting

for services; and information concerning the

actual and projected costs compared to the

amount of the appropriation available to the

program and any projected surpluses or

deficits. If at any time an analysis by the

agency, in consultation with the Agency for

Health Care Administration, indicates that

the cost of services is expected to exceed

the amount appropriated, the agency shall

submit a plan in accordance with subsection

(4) to the Executive Office of the Governor,

the chair of the Senate Ways and Means

Committee or its successor, and the chair of

the House Fiscal Council or its successor to

remain within the amount appropriated. The

agency shall work with the Agency for Health

Care Administration to implement the plan so

as to remain within the appropriation.

[Emphasis added.]

7. The statute also continues to provide, as before, that

no monetary limit is set for the total budget in a cost plan

year for the Mental Retardation and Developmental Disabilities

Waiver, also known as the "DD Waiver" or "big waiver," now known

as Tier One. It establishes limits of $55,000, and $35,000 a

year for newly-created Tier Two and Tier Three Waivers,

respectively. Tier Four, also previously known as the Family

and Supported Living Waiver, continues to have an annual cost

budget limit of $14,792.

Federal Approval

8. AHCA, in consultation with APD, obtained federal

approval to implement the four-tiered waiver system to serve

clients with developmental disabilities. The Federal Center for

Medicaid and Medicare Services (CMS) approved the creation of

the Mental Retardation and Developmental Disabilities Waiver,

which is now Tier One, in 2003. CMS approved the creation of

the Family and Supported Living Waiver, which is now comparable

to Tier Four, with a limit on spending of $14,792.00, in 2005.

In February 2008, CMS approved Florida's request to implement

Tiers Two and Three with spending limits of $55,000 and $35,000,

respectively.

Rulemaking Requirements

9. On December 7, 2007, APD published a Notice of Rule

Development and Workshop, in Volume 33, Number 49, Florida

Administrative Weekly. On March 28, 2008, APD published the

Notice of Proposed Rule and Public Hearing, in Volume 34,

Number 13, Florida Administrative Weekly. On May 6, 2008, Joint

Administrative Procedures Committee issued the certification of

the tier rules, which are challenged in this proceeding.

10. During the rulemaking process, APD invited

stakeholders, including family members and organizations

representing various different interests in the developmental

disability community, to participate in the development of the

tier rules.

11. APD and AHCA conducted a Rule Development Workshop on

December 21, 2007, and a public hearing on April 24, 2008.

Representatives of waiver recipients and family members, WSCs

and other service providers, and associations and interest

groups for the developmental disabilities waiver community

attended the public hearing. At both the rule workshop and the

public hearing, APD received oral and written comments.

12. Most speakers opposed the proposed tier rules. A

major concern was the potential lack of a mechanism for

"migration" or "transition" among tiers as a client's condition

and circumstances change. As a result, the following Subsection

(5) was added to Proposed Rule 65G-4.0021:

(5) The Agency will review a client’s

tier eligibility when a client has a

significant change in circumstance or

condition that impacts on the client’s

health, safety, or welfare or when a change

in the client’s plan of care is required to

avoid institutionalization. The information

identifying and documenting a significant

change in circumstance or condition that

necessitates additional or different

services must be submitted by the client’s

Waiver Support Coordinator to the

appropriate Agency Area office for

determination.

13. APD presented evidence that the provision for review

of tier eligibility based on a "significant change in

circumstance or condition" is less onerous than the current

requirement for a client to be in "crisis." It also noted that

WSCs are well-trained to prepare assessments and to provide

appropriate documentation of significant changes in

circumstances and conditions.

14. Petitioners' expert testified that the phrase "when a

change in the client’s plan of care is required to avoid

institutionalization” is unnecessarily restrictive, in that it

fails to consider the need to maintain a person's quality of

life. That interpretation ignores the preceding phrase that

requires consideration of changes "that impact on the client’s

health, safety, or welfare."

15. Currently, clients who are receiving waiver services

have received notice that the tier system was in the process of

being implemented and that APD would be providing additional

information in the future. As of this time, APD has not made

any tier assignments, although preliminary analyses have been

conducted by APD and by some WSCs.

16. The evidence demonstrated that APD followed proper

rulemaking procedures, including taking into consideration the

comments suggesting a procedure for transitions between tiers

when warranted.

Tier Assignment Assessment Instrument

17. In addition to the requirement in Subsection

393.0661(3), Florida Statutes (2008), for a valid assessment

instrument for the assignment of clients to a tier, Subsection

393.0661(1)(a), Florida Statutes, more specifically provides

that:

(a) The agency shall use an assessment

instrument that is reliable and valid . The

agency may contract with an external vendor

or may use support coordinators to complete

client assessments if it develops sufficient

safeguards and training to ensure ongoing

inter-rater reliability . [Emphasis added].

18. Petitioners noted that the proposed rules lack a

provision requiring or designating any assessment instrument.

Petitioners also presented evidence that APD is using the

Questionnaire for Situational Information (QSI) as an assessment

instrument, and asserted that it has not been tested for

reliability and validity. APD is planning to test the QSI and

instructed WSCs to begin using it in January 2008, but APD plans

to use the Individual Cost Guidelines (ICGs) that were

administered through December 2007, not the QSI, as the

assessment instrument for use in the tier assignment process.

The ICG has been used since 2003, and is administered every

three years. WSCs and APD staff were trained, and WSCs

certified, after passing examinations, to administer the ICG.

The ICG is the approved assessment in the Handbook.

19. The "validity" of the ICG, meaning its usefulness as a

tool for its intended purpose and, in this case, the planning of

service utilization and costs, was established in a study by

Mercer Human Resource Consulting in March 2004.

20. The "reliability" of the ICG, the ability of different

raters over time to use it to achieve an acceptably similar

range of results was tested by MGT of America. The MGT report

of January 19, 2005, indicated an acceptable, fairly consistent

inter-rater reliability, after face-to-face interviews and a

sample size of 213 or 219, although an ideal sample size would

have been 250 or 260 subjects. APD staff and WSCs were trained

and certified on the ICG again, when it was revised as to cost

estimates, although the questions and scoring system were not

changed, in 2006.

21. Petitioners' expert testified that an assessment

instrument, to be valid and reliable for support planning,

should be administered every three years, as the ICG has been,

and that the ICG is reliable and valid to assess support needs.

Petitioners' expert expressed the opinion that the ICG has not

been validated for the purpose of making tier assignments.

22. By contrast, APD's expert reasonably testified that,

while not appropriate as the sole instrument to be used to

assign clients to tiers, the ICG is useful in the process of

assessing service needs and costs. Therefore, the ICG is useful

to the extent that costs are a factor and, in fact, it is

reasonable to conclude that the annual budgeted cost for

services is one of the most objective factors in the tier

assignment process.

23. Petitioners' argument is essentially that the failure

to designate an assessment instrument in the rule renders the

rule invalid. That argument ignores the inclusion of the

Handbook which does designate the ICG and which is incorporated

by reference in Rule 59G-13, the rule that is included in the

tier assignment criteria of Florida Administrative Code Proposed

Rule 65G-4.0021(1). See Findings of Fact No. 25.

Tier Assignment Process

24. Subsections 393.0661(1) and (3), Florida Statutes

(2008), require that appropriate assessment strategies and

methods be used in the redesign of the waiver system, and for

the assignment of clients to tiers. Petitioners' expert

testified that the tier assignment rules create a process that

is vague, and that creates arbitrary preconditions, including

residency, that take priority over the needs of clients.

25. Proposed Rule 65G-4.0021(1) states that:

(1) The Agency for Persons with

Disabilities will assign clients of home and

community-based waiver services for persons

with developmental disabilities to one of

the four Tier Waivers created by Section

393.0661, Florida Statutes (2007). The

agency will determine the Tier Waiver for

which the client is eligible and assign the

client to that waiver based on the

developmental disabilities waiver criteria

and limitations provided in Chapters 393 and

409, F.S., Rule Chapter 59G-13, F.A.C., and

this rule Chapter and the Agency’s

evaluation of the following information:

(a) The client’s level of need in

functional, medical, and behavioral areas,

as determined through Agency evaluation of

client characteristics, the Agency approved

assessment process, and support planning

information;

(b) The client’s service needs as

determined through the Agency’s prior

service authorization process to be

medically necessary;

(c) The client’s age and the current

living setting; and

(d) The availability of supports and

services from other sources, including

natural and community supports.

26. The reference in the Rule to Florida Administrative

Code Chapter 59G-13, includes the Handbook that sets forth

specific conditions that, with a determination of medical

necessity, require specific services. Client characteristics

are assessed using APD worksheets reporting on clients' physical

abilities, handicapping conditions, and major life activities.

Support plan worksheets include data on strengths, communication

style, type of residence, goals, capabilities, adaptive or

assistive equipment, and medications or, in other words, a

rather comprehensive assessment of conditions, circumstances,

and needs. In addition, the need for Specialized Services may

also be documents by assessments by various health care

professional, such as doctor’s prescriptions, physical therapy

and mental health behavioral assessments. Strictly medical

services are, however, in general, provided under the Medicaid

state plan not the waiver plan.

27. The criteria in statutes and the Handbook when read,

in pari materia , with Proposed Rule 65G-4.0021(1) provide

comprehensive, appropriate strategies and methods for

implementing a tier assignment process that is not vague or

arbitrary. Repeated statutory references to residential

placements, residential facilities, and living situations single

out these factors as reasonable and important in making tier

assignments and, therefore, appropriate for inclusion in the

rules, unless a specific tier assignment rule contravenes the

statute that it purports to implement.

Specific Tier Assignments

28. Section 393.0661 and the rules implementing that

comprehensive redesign of the Waiver program expands the levels

of services from two to four tiers. The individual Petitioners

expressed concern that the application of the proposed tier

rules to them will arbitrarily cause a reduction in their

services. Those concerns are considered in understanding the

challenge to the rules, but the individual Petitioners are not

entitled to relief in this challenge to the facial validity of

the rules as they would be in a proceeding brought under

Sections 120.569 and 120.57, Florida Statutes.

29. Proposed Rule 65G-4.0021(2) provides for a

continuation of the existing DD Waiver services for Tiers One,

Two, and Three, but not for Tier Four, as discussed in Findings

of Fact 53 and 54.

(2) The services described by the

Developmental Disabilities Waiver Services

Coverage and Limitations Handbook, July 2007

(hereinafter referred to as the “DD

Handbook”), adopted by Rule 59G-13.080,

F.A.C. and incorporated herein by reference,

are available to clients of the

Developmental Disabilities Waiver

(hereinafter called “the Tier One Waiver”),

the Developmental Disabilities Tier Two

Waiver (hereinafter called “the Tier Two

Waiver”), and Developmental Disabilities

Tier Three Waiver (hereinafter called “the

Tier Three Waiver”).

30. APD does not take into consideration all available

services in making the tier assignments. For example, adult

dental services, emergency response needs, adult day training,

and supported employment are not considered. APD explained that

need for these types of services transcends tiers and are still

available to clients, although recipients admittedly will be

requires to prioritize their needs within the monetary caps,

established by statute.

31. Subsection 393.0661(3)(a) provides:

(a) Tier one shall be limited to clients

who have service needs that cannot be met in

tier two, three, or four for intensive

medical or adaptive needs and that are

essential for avoiding institutionalization,

or who possess behavioral problems that are

exceptional in intensity, duration, or

frequency and present a substantial risk of

harm to themselves or others.

32. Proposed Rule 65G-4.0022, intended to implement tier

one, provides:

2) Clients living in a licensed

residential facility receiving any of the

following services shall be assigned to the

Tier One Waiver:

(a) Intensive behavioral residential

habilitation services;

(b) Behavior focus residential habilitation

services at the moderate or above level of

support; or

(c) Standard residential habilitation at

the extensive 1, or higher, level of

support; or

(d) Special medical home care.

(3) Nursing service needs that can be met

through the Tier Two, Tier Three, or Tier

Four Waivers are not “services” or “service

needs” that support assignment to the Tier

One Waiver.

33. By describing both the residential settings and the

level of services required, Proposed Rule 65G-4.0022 describes

in logical and reasonable detail the clients, who based on these

circumstances, have the most intense needs for Tier One Waiver

services.

34. Although Proposed Rule 65G-4.0022 does not define the

criteria for intense medical and adaptive needs, by using the

Handbook, that is understood to mean an adult who needs personal

care assistance with feeding, toileting, and other activities of

daily living.

Petitioner Geraud Moreland

35. Petitioner Geraud Moreland II is a 34-year-old man who

lives with his parents who both work full-time. He receives

waiver services because he had a stroke when he was 18 months

old and now suffers from severe seizures. His ICG has not been

updated since September 2006. In the interim, he has had

significant changes in his medical condition. His epilepsy has

caused him to lose skills, including the ability to sign words.

Petitioner Moreland currently receives personal care assistance

for most activities of daily living, supported employment,

respite care, companion care, and support coordination services

that have been determined to be medically necessary under the DD

Waiver. These services total more than $70,000 per year.

36. Petitioner Moreland's supported employment services

enable him to work cleaning a school for four hours a day, two

days a week. He owns a vending machine business. He cleans his

22 machines, takes out the money, and refills the machines with

the assistance of his caregiver. There are no available

alternatives or natural supports available to substitute for

Petitioner Moreland's personal care assistance and supported

employment services, and those services are expected to be

unavailable if as his parents have been told, he is assigned

permanently to Tier Three, as he is already preliminarily

assigned.

37. Despite his change in circumstances since 2006,

Petitioner Moreland’s family and WSC have not requested a review

of his ICG.

38. If, in fact, Petitioner Moreland is assigned to Tier

Three, as his parents expect, APD takes the position that he can

decide to use the money up to the cap for his biggest outcome

goal, supported employment, even though it is not used as a tier

assignment criterion. Obviously, other services that he

receives would be reduced, but the monetary cap is set by

statute not rule.

Petitioner Collin Cone

39. Petitioner Collin Cone is a 14-year-old boy, who is

receiving services under the Consumer Directed Care Plus (CDC)

program. He lives with his mother and she provides his personal

care assistance that is included in his total cost plan of

approximately $60,000 a year. His last ICG was administered in

2006. Since that time he has been diagnosed with irritable

bowel syndrome, scoliosis, and worsening eyesight and leg

functions.

40. Based on his WSC's projections, Petitioner Collin's

mother believes that, because he lives at home, he will be

assigned to Tier Four, which has a cap of $14,792. That amount

would not be sufficient to allow her to stay home to provide the

personal care assistance that he needs, currently compensated at

the rate of $18.00 an hour. Although, APD has indicated that

Petitioner Collin's personal care assistance could be

transferred to the Medicaid State Plan program, the family has

received no information regarding the transfer, and understands

that the State Plan prohibits the primary care giver from being

the personal care assistance provider.

41. APD’s witness indicated that the CDC program for

personal care assistance by the primary care giver will continue

in the Waiver program. The cost is being limited, however, as

of July 1, 2008, to $15.00 an hour. The Medicaid State Plan is

expanding to include personal care assistance, but that would

require the use of a State plan provider.

Petitioner Will Baker

42. Petitioner Will Baker is a 77-year-old man, who

receives adult dental, support coordination, one-on-one adult

training, behavior analysis, incontinence supplies, and

residential habilitation services in the DD Waiver program. He

has lived in the same group home for at least 10 years and has

no family.

43. Petitioner Baker's total cost plan for services is

approximately $69,800 a year. His support coordinator expressed

the opinion that Petitioner Baker could be placed in Tiers One,

Two, or Three, but that he would be a candidate for

institutionalization if he is not in Tier One.

44. An APD witness testified that a client assessed with

the need for a behavior-focused program in a residential

habilitation setting will meet the criteria for intense needs in

Tier One. Until the assignments are made, any challenge to

Petitioner Baker's tier and services is premature and

inappropriate in this rule challenge case.

45. Subsection 393.0661(3)(b) describes Tier Two:

(b) Tier two shall be limited to clients

whose service needs include a licensed

residential facility and greater than 5

hours per day in residential habilitation

services or clients in supported living who

receive greater than 6 hours a day of in-

home support services. Total annual

expenditures under tier two may not exceed

$55,000 per client each year.

46. Proposed Rule 65G-4.0023 describes the Tier Two Waiver

as follows:

The total budget in a cost plan year for

each Tier Two Waiver client shall not exceed

$55,000. The Tier Two Waiver is limited to

clients who meet the following criteria:

(1) The client’s service needs include

placement in a licensed residential facility

and authorization for greater than five

hours per day of residential habilitation

services; or

(2) The client is supported living and is

authorized to receive more than six hours a

day of in-home support services.

47. Proposed Rule 65G-4.0023 matches the statutory

description of Tier Two and does not contravene, enlarge or

modify the statue. It is reasonable to include a description of

Tier Two to make the tier rules complete, even though the

statute has the requisite detail for implementation.

48. Subsection 393.0661(3)(c) creates Tier Three as

follows:

(c) Tier three shall include, but is not

limited to, clients requiring residential

placements, clients in independent or

supported living situations, and clients who

live in their family home. Total annual

expenditures under tier three may not exceed

$35,000 per client each year.

49. The proposed rule to implement the Tier Three

statutory provision is:

65G-4.0024 Tier Three Waiver.

(1) The total budget in a cost plan year

for each Tier Three Waiver client shall not

exceed $35,000. A client must meet at least

one of the following criteria for assignment

to the Tier Three Waiver:

(a) The client resides in a licensed

residential facility and is not eligible for

the Tier One Waiver or the Tier Two Waiver;

or

(b) The client is 21 or older, resides in

their own home and receives Live-in In-Home

Support Services and is not eligible for the

Tier One Waiver or the Tier Two Waiver; or

(c) The client is 21 or older and is

authorized to receive Personal Care

Assistance services at the moderate level of

support as defined in the DD Handbook.

(d) The client is 21 or older and is

authorized to receive Skilled or Private

Duty Nursing Services and is not eligible

for the Tier One Waiver or the Tier Two

Waiver; or

(e) The client is 22 or older and is

authorized to receive services of a behavior

analyst and/or a behavior assistant.

(f) The client is under the age of 22 and

authorized to receive the combined services

of a behavior analyst and/or a behavior

assistant for more than 60 hours per month

and is not eligible for the Tier One Waiver

or the Tier Two Waiver.

(g) The client is 21 or older and is

authorized to receive at least one of the

following services:

(i) Occupational Therapy; or

(ii) Physical Therapy; or

(iii) Speech Therapy; or

(iv) Respiratory Therapy.

50. Tier Three is intended for people who do not qualify

for Tier One and Two services, but who live in a residential

facility. APD deemed that essential because residential

habilitation is not permitted in Tier Four. Subsections (a) and

(f) may also include children, and (f) may include children who

live in the family home.

51. APD justified the age limits in Tier Three based on

the alternative availability of services through the Medicaid

State Plan for persons under the age of 21, from the Department

of Education for persons under the age of 22 who attend public

schools, as well as some vocational rehabilitation services.

The exceptions in Subsections (a) and (f) are for any client in

a residential facility or one in need of behavioral

interventions and assistance for more than 60 hours a month but

not at the intensity levels for Tiers One and Two.

52. Section 393.0661(3)(d), Florida Statutes, is a

restatement of the existing, most limited level of waiver

services.

(d) Tier four is the family and supported

living waiver. Tier four shall include, but

is not limited to, clients in independent or

supported living situations and client who

live in their family home. An increase to

the number of services available to clients

in this tier shall not take effect prior to

July 1, 2008. Total annual expenditures

under tier four may not exceed $14,792 per

client each year.

53. With regard to Tier Four, Proposed Rules 65G-4.0021

and 65G-4.0025 provide:

The following services described in the DD

Handbook are available to clients assigned

to the Tier Four Waiver (presently known as

The Family and Supported Living Waiver):

(a) Adult Day Training;

(b) Behavior Analysis;

(c) Behavior Assistance;

(d) Consumable Medical Supplies;

(e) Durable Medical Equipment;

(f) Environmental Accessibility

Adaptations;

(g) In-Home Support Service;

(h) Personal Emergency Response System;

(i) Respite Care;

(j) Support Coordination;

(k) Supported Employment;

(l) Supported Living Coaching; and

(m) Transportation.

65G-4.0025 Tier Four Waiver.

(1) The total budget in a cost plan year

for each Tier Four Waiver client shall not

exceed $14,792 per year.

(2) Clients who are not eligible for

assignment to the Tier One Waiver, the Tier

Two Waiver, or the Tier Three Waiver shall

be assigned to the Tier Four Waiver. The

criteria for the Tier 4 Waiver includes, but

is not limited to:

(a) Clients who are currently assigned to

receive services through the Family and

Supported Living Waiver unless there is a

significant change in condition or

circumstance as described in subsection 65G-

4.0021(4), F.A.C.; or

(b) Clients who are under the age of 22

and residing in their own home or the family

home, or

(c) Clients who are dependent children

who reside in residential facilities

licensed by the Department of Children and

Families under Section 409.175 F.S.;

54. Tier Four has been in existence in Florida since the

State received federal approval in 2005. Petitioners question

the logic of placing most children in Tier Four, although, as

APD explained with regard to Tiers Three and Four, children are

eligible for comparable services through other programs.

55. Petitioners asserted that DD Waiver services are not

available in Tier Four in contravention of the last sentence in

Subsection 393.0661(3), which states:

(3) The Agency for Health Care

Administration, in consultation with the

agency, shall seek federal approval and

implement a four-tiered waiver system to

serve clients with developmental

disabilities in the developmental

disabilities and family and supported living

waivers. The agency shall assign all

clients receiving services through the

developmental disabilities waiver to a tier

based on a valid assessment instrument,

client characteristics, and other

appropriate assessment methods. All

services covered under the current

developmental disabilities waiver shall be

available to all clients in all tiers where

appropriate, except as otherwise provided in

this subsection or in the General

Appropriations Act. (Emphasis added.)

56. That Subsection also directs that the Family and

Supported Living Waiver clients be included in the tier system,

and the services listed in the rule are the same as those that

have always been available in the Family and Supported Living

Waiver program.

CONCLUSIONS OF LAW

57. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.56, Fla. Stat.

58. Respondents stipulated to the standing of each

individual Petitioner and to that of the Advocacy Center for

Persons with Disabilities.

59. Subsection 120.56(2)(b), Florida Statutes, provides

that Petitioners in a challenge to a proposed rule have the

burden of going forward. The Agency has the burden to prove by

a preponderance of the evidence that the proposed rule is not an

invalid exercise of delegated legislative authority. Florida

Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc. ,

808 So. 2d 243, 251 (Fla. 1st DCA 2002).

60. “Invalid exercise of delegated legislative authority”

is defined in Subsection 120.52(8), Florida Statutes, as

follows:

8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54 (3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54 (3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

61. A rule must be authorized by a grant of rulemaking

authority and must implement specific powers and duties provided

by the enabling legislation. Southwest Fla. Water Mgt. Dist. v.

Save the Managee Club, Inc. , 773 So. 2d 594 (Fla. 1st DCA 2000).

62. Section 393.0661, Florida Statutes (2008),

specifically grants rulemaking authority to APD to implement the

Tier Waiver system and it must be given some meaning regardless

of other provisions of state or federal law.

63. APD has established that it complied with the

rulemaking procedures of Section 120.54, Florida Statutes

(2007), including having received, with AHCA, the necessary

federal approval to implement the statute.

64. The proposed rules are not invalid because they do not

designate an assessment instrument for tier assignments. The

assessment instrument is identified in the Handbook that is

listed in the rule as providing additional criteria for tier

assignments. The ICG questions and scoring have not been

modified, although costs reflecting group home rates were

adjusted in 2006. The argument that any change in the

assessment instrument would not be subject to challenge, because

it is not designated by rule, is not supported by the fact that

the Handbook designation of ICG was previously challenged, when

the ICG was held valid and reliable. Florida Association of

Rehabilitation Facilities, Inc. v. Dep't of Children and Family

Services, etc ., DOAH Case Nos. 04-0216RP and 04-0258RP (F.O.

4/29/05).

65. As an instrument that is valid and reliable for

predicting costs, the ICG can be used reasonably and logically

as a part of the tier assignment process. With the ICG

information and other comprehensive parts of the assessment

process, APD established that it has developed appropriate

strategies for making tier assignments that are not vague.

66. Petitioners allege that the proposed rules are

not supported by logic or the necessary facts. A rule is

“capricious” if it is adopted without thought or reason or is

irrational. See § 120.52(8)(e), Fla. Stat. (2007).

67. APD demonstrated by a preponderance of the evidence

that it is logical to consider some but not all available

services in making tier assignments. Those services that are

excluded were explained to be reasonably those that may be

needed by people in all tiers.

68. Some criteria are repeated or duplicated in various

parts of the rule or in the documents it references, including

natural and community supports, and the support plan. There has

been no legal authority cited for the proposition that a rule

that is repetitive is invalid.

69. Petitioners’ argument that “all developmental

disabilities waiver services must be available in all tiers” is

not supported by a reading of Subsections 393.0661(3) or (3)(d),

Florida Statutes. The services listed in Tier Four are

consistent with the statute.

70. Proposed Rule 65G-4.0021, that includes references to

the DD Handbook, other criteria for tier assignments, a list of

Tier Four services, and the ability to review tier eligibility

if circumstances or conditions change, is not invalid.

71. Tier Four age limitations were logical and valid

considering other available services. There is no irrational

age limitation as found in Esteban v. Cook, et al. , 77 F. Supp.

2d 1256 (US Dist. Ct. SD Fla. 1999).

72. The levels of needs and services for Tiers One, Two,

and Three are described in detail in the Handbook. The rule

criteria for tier assignments are consistent with the statute

and are not vague, even though WSCs and APD staff have to be

trained to apply the criteria with reasonable consistency. See

Florida East Coast Industries Inc., et al. v. State, Dep’t. of

Community Affairs , 677 So. 2d 357 (Fla. 1st DCA 1996).

73. The Tier Rules, 65G-4.0021, 65G-4.0022, 65G-4.0023,

65G-4.0024, and 65G-4.0025, based on a preponderance of the

evidence presented by APD, are not invalid exercises of

delegated legislative authority.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

APD’s Proposed Rules 65G-4.0021, 65G-4.0022, 65G-4.0023,

65G-4.0024, and 65G-4.0025 are not invalid exercises of

delegated legislative authority.

DONE AND ORDERED this 6th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August, 2008.

COPIES FURNISHED :

Gabriela M. Ruiz, Esquire

Southern Legal Counsel, Inc.

1229 Northwest 12th Avenue

Gainesville, Florida 32601

John Campbell Newton, II, General Counsel

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

Brian F. McGrail, Esquire

Agency for Persons With Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399

Dana Baird, Esquire

Advocacy Center for Persons with

With Disabilities, Inc.

2728 Centerview Drive, Suite 102

Tallahassee, Florida 32301

Russell Scott Kent, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Martha F. Barrera, Esquire

The Advocacy Center for Persons

With Disabilities, Inc.

2728 Centerview Drive, Suite 102

Tallahassee, Florida 32301-6298

Gail Scott Hill, Agency Clerk

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0700

Jim DeBaugrine, Interim Executive Director

Agency for Persons With Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0700

Scott Boyd, Executive Director

Joint Administrative Procedures Committee

120 Holland building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliot Building, Room 201

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.