12-003551RU Rosaida Healthcare, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Monday, February 18, 2013.

Summary: AHCA failed to incorporate document into rule. Its use of document rendered document an agency statement constituting a rule that was not adopted by the rulemaking procedure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSAIDA HEALTHCARE, INC. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3551RU

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Respondent . )

)

FINAL ORDER

On January 4, 2013, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings, conducted the

final hearing in Tallahassee, Florida.

APPEARANCES

Petitioner: Martin R. Dix, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Respondent: Tracie L. Hardin, Esquire

Assistant General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Building 3, Mail Stati on 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

The issues are:

1. Did the 2008 amendment of Florida

Administrative Code rule 59G - 13.082(2)

incorporate the Developmental Disabilities

Home and Community - Based Services Waiver

Billing Code Matrix (Billing Code Matrix)

when the amended rule explicitly

incorporated the Developmental Disabilities

Home and Community - Based Services Waiver

Procedure Codes and Maximum Units of Service

(Procedure Codes and Maximum Units of

Service) , but Respond ent filed, as the

incorporated document, the Billing Code

Matrix with the Joint Administrative

Procedures Committee (JAPC) , the Department

of State, and the Medicaid fiscal agent?

2. If the circu mstances described in Issue

1 did not result in the incor poration of the

Billing Code Matrix in the 2008 am endment of

rule 59G - 13.082(2), wa s the Billing Code

Matrix incorporated in the amended rule

w hen, four years after the amendment , the

Department of State revised the language of

the archived version of rule 59G - 13.082(2)

to incorporate explicitly the Billing Code

Matrix, even though the amended rule

submitted to the Department of State in 2008

explicitly incorporated the Procedure Codes

and Maximum Units of Service?

3 . If the circumstance s described in I ssues

1 and 2 did not result in the incorporation

of the Billing Code Matrix in the 2008

amendment of rule 59G - 13.082(2), is the

Billing Code Matrix an agency statement

constituting a rule that Respondent has not

adopted by the rulemaking procedure set

for th in section 120.54, Florida Statutes?

4 . If the circumstances described in Issue

1 or 2 result ed in the incorporation of the

Billing Code Matrix in the 2008 amendment of

rule 59G - 13.082(2), is the amended rule an

invalid exercise of delegated legislati ve

authority?

PRELIMINARY STATEMENT

The inception of this rule challenge is DOAH Case No.

12 - 2906MPI , which was filed with the Division of Administrative

Hearings on September 5, 2012 . As the petitioner in that case,

Respondent seeks to recoup Med icaid reimbursements and

associated charges totaling $418,563.87 , which Respondent

contends that it has overpaid Petitioner for compan ion services

for which Petitioner has submitted claims for reimbursement.

The undersigned Administrative Law Judge has co ntinued the

hearing in DOAH Case No. 12 - 2906MPI until after the issuance of

the Final Order in this rule challenge.

T his rule challenge commenced on November 1, 2012, when

Petitioner filed its Petition for Administrative Determination

that Agency State ment Violates Florida Statutes § 120.54(1) and

Is an Invalid Exercise of Delegated Legislative Authority

(Petition). The challenged agency statement is the Billing Code

Ma trix .

The Pet ition alleges that Respondent conducted an audit of

Petitioner's Medica id billings from December 4, 20 08, through

December 31, 2010 , and determined overpayments and associated

charges, as noted above, by applying the Billing Code Matrix to

Petitioner's billings . Specifically, the Petition alleges that

the Billing Code Matrix , as applied to companion services,

directs a Medicaid provider to include on a single billing claim

line no more than 24 quarter hours (QH) of service units of

companion services. The Petition explains that this is a

limitation on the form of the bill, n ot on the maximum hours of

companion services. In a similar vein, the P etition notes that

Respondent has not alleged that the billed services challenged

in DOAH Case No. 12 - 2906MPI were unnecessary or not provided .

Alleging that the Billing Code Matrix is a rule, within the

meaning of section 120.52(15), the Petition alleges that

Respondent adopted it without complying with the rulemaking

procedure , as set forth in section 120.54. The Petition also

alleges that the Billing Code Matrix enlarges, modifies , or

contravenes the specific provisions o f the law implemented.

On November 9, 2012, Petitioner filed a Motion to Amend the

Petition. The mo tion states that , after the Petition had been

filed , Respondent claimed that it had incorporate d the Billing

Cod e Matrix in Florida Administrative Code R ule 59G - 13.082, but

mistakenly referred to the Bill ing Code Matrix as the Procedure

Codes and Maximum Units of Service, version January 1, 2008.

The motion states that the Procedure Codes and Maximum Units of

Servi ce , version November 2003, was the name of the document

incorporated in rule 59 G - 13.082 (2) immediately prior to the 2008

amendment . The motion asks for leave to allow P etitioner to

amend its initial pleading to allege as additional grounds for

invalidatin g the Billing Code Matrix Respondent's failure to

specifically identify the incorporated material, as required by

rule 1 - 1.013(2) , and failure to conform to the rulemaking

procedure in attempting to incorporate by reference the Billing

Code Matrix.

On No vember 16, 2012, Respondent filed its Objection to

Petitioner's Motion to Amend the Rule Challenge Petition. On

the same date, Respondent also filed a Notice of Development of

Rulemaking, which references section 120.56(4)(b). This statute

provides that a notice of development of rulemaking shall stay

any pending challenge to an agency statement as an unadopted

rule. On November 16, the Administrative Law Judge thus entered

an Order Staying Case and Canceling Hearing.

On November 19, 2012, Petitioner f iled its Second Motion to

Amend the Petition and a Motion to Vacate Stay and Se t Rule

Challenge for Hearing. As amended by the Second Motion to

Amend, the amended Petition (Amended Petition) restates the

earlier allegations about the Billing Code Matrix: i.e., it is

an agency statement that is a rule that Respondent has adopted

without complying with the rulemaking procedure.

The Amended Petition also alleges that rule 59G - 13.082 --

actually, rule 59G - 13.082(2) -- is an invalid exercise of

delegated legisla tive authority. The Amended Petition alleges

that the rule failed properly to incorporate by reference the

Billing Code Matrix.

The Amended Petition requests attorneys' fees and costs

under section 120.595.

By Order entered on December 4, the Administra tive Law

Judge granted the motion for leave to amend and the motion to

vacate stay. Section 120.56(4)(b) authorizes the Administrative

Law Judge to vacate the stay for good cause. Militating against

the statutory stay were two other statutes requiring ex pedited

hearings. First, Petitioner was now also challenging a

promulgated rule in a proceeding in which it is entitled to a

hearing within 30 days of the filing of the petition, pursuant

to s ection 120.56(1)(c) . T he stay provided by section

120.56(4)(b) does not apply to the challenge to a promulgated

rule, and the challenges to the promulgated rule and

unpromulgated rule are obviously linked. Second , in DOAH Case

No. 12 - 2906MPI, Petitioner was entitled to a hearing within 90

days of the initial assign ment of an Administrative Law Judge.

Although this case had been continued indefinitely, the

statutory mandate of an expedited hearing militated in favor of

an early resolution of this rule challenge, so the recoupment

case could be heard relatively soon.

On December 21, 2012, Respondent filed a Notice of

Correction of Scrivener's Error. The notice acknowledges that,

after the 2008 amendment, rule 59G - 13.082(2) stated that it

incorporated by reference the Procedure Codes and Maximum Units

of Service, v ersion January 1, 2008 . The notice states that the

amended rule mistitled the incorporated document as a result of

a scrivener's error and the correct title was the Billing Code

Matrix. T he notice advises that the Department of State

official website had been altered so as to make it appear that

the archived version of rule 59G - 13.082(2) had explicitly

incor porated the Billing Code Matrix. T he notice concludes that

"the matters complained of in [the Amended] Petition are moot,"

and "[a]ny continuous purs uit of this matter will be a waste of

judicial resources."

At t he hearing, Petitioner called two witnes ses and offered

into evidence 16 exhibits: Petitioner Exh ibits 1 - 16 .

Respondent called two witnesses and off ered into evidence 15

ex hibits: Respondent Exhibits 1 - 15 . All exhibits were

admitted .

The court reporter filed the transcrip t on January 25,

2013. The parties filed proposed final orders on February 4,

2013.

FINDING S OF FACT

1. At all material times, Petitioner has been an enrolled

Medicaid pro vider. From 2002 through November 5, 2012 ,

Petitioner provided companion services to persons with

developmental disabilities , pursuant to the home and community -

based services waiver program. Companion services are personal

services to support the Medica id recipient in accessing

community activities

2. As is typical in the Medicaid program , Petitioner

submitt ed reimbursement claims to Respondent for covered

services that it provided to Medicaid recipients , and Respondent

promptly paid these claims , subje ct to later audit . As a result

of an audit conducted by Respondent for the period of

December 4, 2008, through December 31, 2010, Respondent

determined that it was entitled to recoup $418,563.87 in

overpayments and associated charges . As a result of this

proposed adjustment, Petitioner discontinued operations on

November 5. 1

3. However , Petitioner requested a formal hearing on

Respondent's recoupment claim . Respondent transmitted the file

to the Division of Administrative Hearings, which assigned it

D OAH Case No. 12 - 2906MPI. This overpayment case was assigned to

the undersigned Administrative Law Judge , who continued the

final hearing until after the issuance of the Final Order in

this rule challenge.

4 . During the two years covered by the audit, Pet itioner

served 89 recipients, of whom about two - third s rec eived

companion services . A substantial portion of the recoupment

claim, if not all of it, is attributable to Petit i oner's billing

of, and Respondent's reimbursing for, companion services.

5 . Resp ondent's recoupment claim is not based on

allegations that Petitioner billed companion services that were

not provided or necessary or billed companion services that were

in excess of the amount of services authori zed by law. T he

recoupment claim is based on allegations that , consistent with

past approved practice, Petitioner billed up to 40 QH s of

service units per claim line, but , relying on the Billing Code

Matrix , Respondent must disallow either the entire claim or at

least all QHs in excess of 24 QHs of service units per claim

line.

6 . In no way has Respondent singled out Petitioner for

audit and recoupment. After determining that it had adopted the

Billing Code Matrix in December 2008, Respondent audited every

provider that continued to bill mor e than 24 QH s of service

units of companion services per claim line. This amount ed to

about 700 providers. Respondent's auditor eventually opened 120

cases and found overpayments in every single case -- all of them

based on the providers' continuing to adh ere to the past

approved practice of billing more than 24 QHs -- but not more than

40 QHs -- of service units per claim line , thus placing at issue

hundreds of thousands, if not millions, of dollars of

reimbursements . At hearing, Respondent's auditor admitted the

obvious: providers were clearly continuing to bill companion

services under the "old" rule. 2

7 . Adopted in 2006, r ule 59G - 13.082(1) provided then, as

it does now, that it applies to all developmental disabilities

waiver service providers e nrolled in the Medicaid program.

Notwithstanding its references to rule 59G - 13.082, Petitioner

does not challenge rule 59G - 13.082(1).

8 . As adopted in 2006, rule 59G - 13.082(2) incorporated by

reference the Procedure Codes and Maximum Units of S ervice,

version November 2006, and advised that the incorporated

documen t wa s available from the Medicaid fiscal agen t or

Respondent, whose address wa s supplied. The Procedure Codes and

Maximum Units of Service, November 2006 version, allowed

Medicaid providers to bill, on a single billing claim line, up

to 40 QHs of service units of companion services .

9. As amended in 2008, rule 59G - 13.082(2) incorporated by

reference the Procedure Codes and Maximum Units of Service,

version January 1, 2008, and advised that the inc orporated

document was available from the Medicaid fiscal agent at its

cited website. However, no November 2006 version of the

document incorporated in the original rule appears ever to have

existed. When filing the "incorporated" document with JAPC, the

Department of State, and the Medicaid fiscal agent, Respondent

filed the Billing Code Matrix, which is the document that

Respondent now claims that it intended to incorporate in 2008.

As relevant to this rule challenge, the difference between the

Procedu re Codes and Maximum Units of Service, version

November 2006, and the Billing Code Matrix is that the latter

document reduces from 40 QHs to 24 QHs the maximum number of

service units that a provider may input onto a single claim line

when billing claims f or reimbursement for companion services.

10 . Apparently to minimize the number of claim lines,

providers routinely included the maximum of 40 QHs per claim

line when submitting bills for companion services, as the 2006

version of rule 59G - 13.082(2) allowe d. In fact, at least prior

to 2008, Petitioner received training to bill its companion

services with 40 QHs per claim line.

11. The reason for the purported 2008 change is not

completely clear. A rule allowing a provider to include 40 QHs

per claim li ne would allow a single claim line to span one day

and two - thirds of a second day, if the Medicaid recipient were

approved to receive the maximum of 24 QHs per day. A rule

allowing a provider to include only 24 QHs per claim line would

tend to limit a sin gle claim line to one day, again if the

Medicaid recipient were approved to receive the maximum of 24

QHs per day. But i f a recipient were approved to receive fewer

than the maximum of 24 QHs per day, the 24 - QH limitation would

not prohibit the provider f rom spanning more than day's

companion services on a single claim line. For instance, for a

recipient approved for a maximum of 8 QHs per day, a provider's

inclusion of 24 QHs of service units per claim line would span

three days of companion services.

12 . A uthoritative Medicaid documents did not prohibit

claim lines spanning more than one day of companion service s , at

least in 2008 . T he Developmental Disabilities Waiver Services

Coverage and Limitations Handbook, Ju ly 2007 version, referred

providers se eking "[s]pecific billing instructions and

procedures for submitting claims" to chapter 1 of the Florida

Medicaid Provider Reimbursement Handbook and the Florida

Medicaid Provider Reimbursement Handbook, CMS - 1500. T he Florida

Medicaid Provider Reimburseme nt Handbook, CMS - 1500 , version

July 2008 (Provider Reimbursement Handbook) clearly restricted a

provider to one cla im form per Medicaid recipient and one

procedure code per claim line , but did not restrict a provider

to one day's service per claim line . P rovid er Reimbursement

Handbook, p. 1 - 9.

13 . Instead, f or home and community - based waiver services,

the Provide r Reimbursement Handbook directed the provider to:

Enter the units of service rendered for the

procedure code. If multiple units of the

same p rocedure were performed on the same

date of service, enter the total number of

units. If the date of service covers a span

of time, i.e. [sic] a month, enter the total

number of units for that span of time

(emphasis added).

Id. at p. 1 - 29. (Because othe r spans of time, besides one

month, could apply, it would appear that the "i.e." should have

been an "e.g.")

14 . Interestingly , t he P rovider Reimbursement Handbook

touted electronic claim submission, over the submission of paper

CMS - 1500 claim forms , beca use the el ectronic claim submission

offered "the advantage of speed and accuracy in processing."

Id. at p. 1 - 47. Emphasizing the accuracy of electronic claim

submission, the Provider Reimbursement Handbook assured

providers that the electronic system wou ld "[c]orrect data entry

errors immediately." Id.

15 . Petitioner would probably disagree. D uring the audit

period, Petitioner submitted electronically its billing claims

for companion services , these claims routinely included 25 - 40

QHs of service unit s per claim line, and the electronic claim

program invariably accepted these claims . This fact alone

prevented the timely correction of the billing practices of

Petitioner and numerous other Medicaid providers or timely

recognition by Respondent that it h ad incorporated the wrong

document in its 2008 rule amendment.

16. At the hearing, Respondent's auditor explained that

the electronic claim program , which was maintained by the

Medicaid fiscal agent, could only accommodate so many "edits , "

and, during t he audit period , the only relevant edit reject ed

claims only when they exceeded 40 QHs of service units per claim

line. In other words, the fiscal agent maintained the edit that

was in effect before the 2008 rule amendment. Obviously, the

auditor's expla nation misses the point that, at least on a

going - forward basis, a new edit was not required: after the

purported effective date of a new, lower limit , the 40 - QH edit

could have been reduced to a 24 - QH edit. In June 2012 , the

fiscal agent reprogrammed th e electronic claim program to do

just that.

1 7 . Not only did the Medicaid fiscal agent fail to

reprogram the edit in the electronic claim program to reflect

Respondent's 2008 rule amendment, but a major third - party

auditor participating in the Florida S tatewide Quality Assurance

Program also missed this change . In the middle of the audit

period, o n January 7, 2010, this third - party auditor, the

Delmarva Foundation, issued to Petitioner a "Collaborative

Outcomes Revie w and Enhancement Report" cover ing Pe titioner ' s

waiver services. Among the purposes of the report was to

identify any claims that might be subject to recoupment. The

report notes, among other things, that Petitioner was meeting

the requirements of "Service Authorization/Billing as

Authorize d."

18 . It is not hard to understand how numerous provider s ,

Respondent's Medicaid fiscal agent, and a major quality - control

auditor miss ed Respondent's decision, in 2008, to reduce from 40

QHs to 24 QHs the maximum number of service units that may be

inc luded on a claim line when billing companion services. The

2008 rule amendment incorporated what appeared to be only an

update of the existing document that governed the billing of

reimbursement claims. All affected parties continued to conduct

their bil ling bu siness in conformity with the past approved

pra ctice -- and the evidence does not suggest that Respondent and

its agents contemporaneously informed the providers of the new

limit of 24 QHs of service units that could be included in a

single claim line .

19. Arguing that the misidentification of the incorporated

document was only a "scrivener's error," Respondent contends

that the regulated community should be subjected, as of 2008, to

the document that Respondent filed with JAPC, the Department of

St ate, and the Medicaid fiscal agent -- the Billing Code Matrix.

This argument seems to focus upon the ease with which the

mistake could have been made, rather than focusing on the extent

to which Respondent's carelessness in preparing the 2008

amendment may have precluded effective notice of this change in

billing procedure to the provider community or the un fairness of

imposing the cost of Respondent's carelessness on the provider

community.

20. I t is understandable that the modern equivalent of a

scrivener -- say, a Clerk Typist II -- might keystroke "Procedure

Codes and Maximum Units of Service," in stead of "Billing Code

Matrix." To this extent, Respondent's error in preparing the

2008 amendment may be characterized as a "scrivener's error,"

but this characte rization does not receive much weight in

resolving the first two issues stated above .

21 . There are at least two problems with the scrivener's -

error argument. First, the discovery of the filed document -- the

Billing Code Matrix -- is not the equivalent of the discovery of

the new law governing the preparation of reimbursement claims.

A diligent provider that discovered the Billing Code Matrix at

JAPC, the Department of State, or the Medicaid fiscal agent

would learn only that Respondent had filed a differe nt document

than it had incorporated. If a diligent provider also learned

that the incorporated document did not exist, it is still

unclear how the provider would get from these facts to the

understanding that the Billing Code Matrix now governed.

Perhap s the language of the 2008 rule amendment reflected an

intent to incorporate the same document that was incorporated in

2006 or a revised document -- with a different revision date than

January 1, 2008 -- that may have made inconsequential changes to

the Novem ber 2006 version of the document. This flaw in

Respondent's argument effectively imposes upon the provider

community the responsibilities to complete Respondent's

unfinished rulemaking exercise from 2008.

22. Second, the notice to providers was insuffici ent even

to impose upon them any duty to find the filed Billing Code

Matrix. Perhaps due to the near - identity in titles between the

originally incorporated document and the revision of this

document that the 2008 rule amendment explicitly incorporated,

as noted above, much of the provider community, as well as the

fiscal agent and third - party quality - assurance auditor , missed

the 2008 change in their discharge of important

responsibilities. The three repositories do not appear to have

noticed the discrepa ncy between the incorporated document and

the filed document. Even Respondent apparently failed to notice

the obvious flaw in its own rule for four years while it

prosecuted numerous, large reimbursement cases based on the

Billing Code Matrix.

23 . If R espondent had properly identified the Billing Code

Matrix in the 2008 rule amendment, the provider community would

not have objected, bu t would have quickly complied with the new

billing procedure, because the change -- if it had been

implemented prospective ly with no tice to providers -- would have

had no real financial impact on providers. Because of

Respondent's carelessness in its exercise of its rulemaking

responsibilities in 2008, the change now would effectively be

imposed retroactively upon, and at cons iderable expense to,

providers. Unfortunately, i n trying to achieve this result,

Respondent is engaged , not in a valiant effort to oppose

rapacious Medicaid providers from defraud ing the program , but

only to assist Respondent, in overpayment cases , in opp osing

otherwise - legitimate reimbursement claims for companion services

on the sole ground that these claims violated a purported rule

change that reduced the number of service units that could be

included on a single claim line by 4 0%.

CONCLUSIONS OF LAW

24 . The Division of Administrative Hearings has

jurisdiction. Section 120.56(4) applies to an agency statement

that constitutes a rule, but which the agency has adopted

without complying with the rulemaking procedure. Section

120.56(1) applies to an exi sting rule.

25 . Section 120.56(4) authorizes any person "substantially

affected by an agency statement [to] seek an administrative

determination that the statement violates s. 120.54 (1)(a)."

Petitioner is "substantially affected" by Respondent's

applic ation of the Billing Code Matrix. If incorporated by the

2008 amendment of rule 59G - 13 .082(2), the Billing Code Matrix

would cause Petitioner a real and sufficiently immediate injury

in fact and an injury that would be within the zone of interest

that wou ld be protected or regulated. Ward v. Bd . of Trustees ,

651 So. 2d 1236, 1237 (Fla. 4th DCA 1995) (per curiam). It is

irrelevant that Petitioner has discontinued business operations.

Greynolds Park Manor, Inc. v. Dep't of Health & Rehab. Services ,

491 So . 2d 1157 (Fla. 1st DCA 1986).

26. Petitioner must prove the material allegations by a

preponderance of the evidence. § 120.56(4)(b), Fla. Stat.

27 . The first two issues stated above pose the sam e

threshold question -- whether Respondent successfully inco rporate d

the Billing Code Matrix in t he 2008 amendment of rule

59G - 13.082(2).

28 . The first issue addresses the questi on of whether rule

59G - 13 .082(2), as amended in 2008 , incorporated the Billing Code

Matrix. T he choices are among a document th at existed, but was

unmentioned in the rule itself; a document that did not exist,

but bore, in name, a close resemblance to the document that had

been incorporated two years earlier and had governed past

approved practice up to the 2008 rule amendment ; ne ither

document ; and perhaps even the document that had been

incorporated two years earlier .

29 . Section 120.54(1)(i)1. (2008) allows a rule to

incorp orate material by reference. It is axiomatic that the

attempt to i ncorporate a document by referen ce in to another

document requires the identification of the incorporated

document. 3 BGT Group, Inc. vadewinds Engine Services , LLC ,

62 So. 3d 1192, 1194 - 95 (Fla. 4th DCA 2011). The rulemaking

process emphasizes notice, so as to provide the regulated

commu nity an opportunity for informed participation in the

process, see, e.g. , section 120.54(2) - (3), and an opportunity to

challenge to a proposed rule on the ground that it is an invalid

exercise of delegated legislative authority. § 120.56(1) - (2).

These im portant rights that the legislature has vested in the

regulated community cannot be sacrificed, in the name of

correcting a scrivener's error, to enable Respondent to shift to

this community the costs of its carelessness in amending rule

59G - 13 .082(2) in 2 008.

30 . T he more obvious means of identifying an incorporated

document is its identification in the rule. This is the first

identifier that an interested person will find. No one would

know to refer to a document repository, unless the rule itself

no tifies the reader that a document has been incorporated by

reference. For statutes, there is not even a requirement to

file an incorporated document in some repository, virtual or

otherwise.

31 . It is impossible to conclude, on these facts, that

Respon dent incorporated the Billing Code Matrix in the 2008 rule

amendment that explicitly incorporated a different document . T o

relieve Respondent of the consequences of its carelessness and

incorporate the Billing Code Matrix would be an exercise in

rulemakin g, not rule interpretation. Cf. USAA Casualty Ins. Co.

v. Threadgill , 729 So. 2d 476, 478 (Fla. 4th DCA 1999) (no

insurance contract to reform in case of unilateral mistake).

Courts may sometimes judicially repeal statutory language to

lend meaning to a statute. See, e.g. , Greenberg v. Cardiology

Surgical Assoc. , 855 So. 2d 234, 238 (Fla. 1st DCA 2003) (court

concluded that legislature inadvertently failed to omit from

statute "or $5," so court did it for legislature). Obviously,

an Administrative Law J udge is not a court, but, more

importantly, the myriad restrictions imposed by the legislature

on agencies in their exercise of rulemaking in chapter 120 may

account for the absence from the reported case law of courts

performing similar repairs to obvious ly faulty rules.

32 . Respondent's failure to have incorporated the Billing

Code Matrix in the 2008 amendment of rule 59G - 13 .082(2) is not

remedied by the recent alteration of the "archived" rule

maintained on the Department of State official website. T he

record does not reveal how Respondent managed to cause this

revision to the archived rule on the Department of State

official website. But the change was ultra vires , i f it was

m ade by the Department of State , which would appear to have been

necessary given the fact that the website is sponsored by the

Department of State .

33 . F ormer section 120.55(1)(e) authorized the Department

of State to "[c]orrect grammatical, typographical, and like

errors not affecting the construction or meaning of the rules,

after having obtained the advice and consent of the appropriate

agency, and insert history notes." But this statute would be

inapplicable in the present case. T he substitution of the

Billing Code Matrix for the Procedure Code and Maximum Units of

Servic e is not a grammatical error. Nor is it a typographical

error, notwithstanding a fairly generous view of typographical

errors found in Int'l Union of Operating Eng'rs v. Long , 388 572

(Fla. 3d DCA 1980) (dictum) (tortious acts of "Edward Walker"

replaced with tortious acts of " local union members " ). The

better practice is to reserve t ypographical errors for numbers,

which can be easily transposed -- s ee, e.g. , Katz v. Katz , 90 So.

3d 909 (Fla. 2d DCA 2012); Chetram v. Singh , 984 So. 2d 614

(Fla. 5th DCA 200 8) ; Rooney v. Rooney , 750 So. 2d 118 (Fla. 2d

DCA 1999) -- or other brief notations. See, e.g. , Stevens v.

State of Florida , 502 So. 2d 99 (Fla. 5th DCA 1997) ("F2" typed

instead of "F3" for level of felony). A refreshingly precise

definition of the term, "typographical error" is "an error in

printed or typewritten matter resul ting from striking the

improper key of a keyboard, from mechanical failure, or the

like." Webster's New Universal Unabridged Dictionary (1996).

34 . Nor is replacing one document w ith another document

"like" correcting a grammatical or typographical error on the

grounds discussed above in connection with scrivener's errors .

The error at issue clearly affects the construction or meaning

of the rule that Respondent amended in 2008.

3 5 . Additionally, s ection 120.55(1)(e) was repeal ed,

effective October 1, 2012 . Ch. 2012 - 63, § 5, Laws of Fla.

Nothing in the record suggests that Respondent secured the

Departm ent of State's cooperation in an under - the - wire exercise

of its former author ity .

36 . Having resolved the first two issues in the negative,

the third issue stated above is whether the Billing Code Matrix

is an agency statement is a rule that Respondent did not adopt

in compliance with the rulemaking procedure. Respondent does

no t dispute this issue. The Billing Code Matrix, as applied by

Respondent, is a rule within the meaning of section 120.52(16),

which defines a rule as a " statement of general applicability

that implements, interprets, or prescribes law or policy or

describe s the procedure or practice requirements of an agency

. . .." For the reasons noted above, Respondent failed to

conform to the rulemaking procedure in adopting, or trying to

adopt, the Billing Code Matrix. Respondent has not argued that

rulemaking is not feasible or practicable, as provided by

section s 120.54(1)(a) and 120.56(4)(b) , nor could it .

37 . Having resolved the third issue in the affirmative, it

is unnecessary to consider the fourth issue stated above .

ORDER

Based on the foregoing,

It is

ORDERED that:

1. Because the 2008 amendment to Florida Administrative

Code R ule 59G - 13 .082(2) failed to incorporate by reference the

Billing Code Matrix, the Billing Code Matrix, as applied by

Respondent since December 3, 2008, is not an adopted rule, but

is an agency statement that constitutes a rule and that

Respondent has not adopted by the rulemaking procedure set forth

in section 120.54.

2. Pursuant to section 120.56(4)(b), Respondent " must

immediately discontinue all reliance upon the Billing Code

Matrix o r any substantially similar statement as a basis for

agency action ."

3. The Administrative Law Judge reserves ruling on the

request for attorneys' fees and costs, pursuant to section

120.595 (4)(a) and (b) . If Petitioner still wishes to pursue

this claim, it shall file a petition to this effect with the

Division of Administrative Hearings, bearing the case number of

this rule challenge , within 20 days from the date of this Final

Order , or else the Administrative Law Judge shall conclude that

Petitioner has withdrawn and waived this claim . If Petitioner

files a petition, it will be assigned a new DOAH Case Number and

processed as a fee case.

DONE AND ORDERED this 18th day of February , 2013 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Div ision of Administrative Hearings

this 18th day of February , 2013 .

ENDNOTE S

1/ The evidentiary record is silent on this point, but

§ 409.913(27), Fla. Stat., authorizes Respondent to withhold

medical assistance reimbursement payments, once it determines

and that there is probable cause that an overpayment to a

provider has occurred and has alleged same .

2 / About one - third of these opened cases remained open as of

the final hearing in this rule challenge. Two of these cases

were in litigation -- DOAH Cas e No. 12 - 2906MPI and DOAH Case No.

12 - 2594MPI -- and the remainder await the outcome of this rule

challenge.

3 / This axiom is reflected in Florida Administrative Code rule

1 - 1.013(2)(a), as Petitioner argues. T he predecessor to this

rule, rule 1B - 30.005 , which was in effect in 2008, did not

require the rule to identify specifically identify the

incorporated material, but the statute did so.

COPIES FURNISHED :

Martin R. Dix, Esquire

Akerman Senterfitt, P.A.

106 East College Avenue, Suite 1200

Post Off ice Box 1877

Tallahassee, Florida 32302 - 1877

Tracie L. Hardin, Esquire

Agency for Health Care Administration

Building 3, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

Daniel Lake, Esquire

Agency for Health Care Administration

Fort Knox Bui lding 3, M ail Station 3

Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308

William Michael Blocker, II, Esquire

Agency for Health Care Administration

Fort Knox Building 3, Mail Stop 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Elizabet h Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(e - served)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(e - served)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee , Florida 32399

(e - served)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(e - served)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affe cted 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 administrat ive appeal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.