14-004758RU Bayfront Medical Center, Inc.; Bethesda Health, Inc., D/B/A Bethesda Memorial Hospital; Cape Memorial Hospital, Inc., D/B/A Cape Coral Hospital; Cgh Hospital, Ltd., D/B/A Coral Gables Hospital, Et Al. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Wednesday, April 20, 2016.

Summary: Hospitals did not prove AHCA reliance on statues and rules was unadopted rule. Rules 59G-4.160(2) and 59G-5.020 were not invalid for exceeding authority or vagueness.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAYFRONT MEDICAL CENTER, INC.;

BETHESDA HEALTH, INC., d/b/a

BETHESDA MEMORIAL HOSPITAL;

CAPE MEMORIAL HOSPITAL, INC.,

d/b/a CAPE CORAL HOSPITAL;

CGH HOSPITAL, LTD., d/b/a CORAL

GABLES HOSPITAL , ET AL. ,

Petitioners,

vs. Case No. 14 - 4758RU

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER

Administrative Law Judge John D. C. Newton, II, with the

Division of Administrative Hearings heard this case on a

stipulated record on February 10, 2015, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joanne Barbara Erde, Esquire

Donna Holshouser Stinson, Esquire

Harvey W. Gurland, Esquire

Duane Morris LLP

Suite 3400

200 Sou th Biscayne Boulevard

Miami, Florida 33131

For Respondent: Joseph M. Goldstein, Esquire

Shutts and Bowen, LLP

Suite 2100

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE S

A. Is the practice of Respondent , Agency for Health Care

Administration (Agency), limiting Medicaid reimbursement for

services provided to undocumented aliens determined by the

Department of Children and Families (DCF) to be eligible for

Medicaid services for the duration of a medical em ergency an

" agency statement of general applicability that implements,

interprets, or prescribes law or policy or describes the

procedure or practice requirements of an agency " 1/ that section

120.54, Florida Statutes (2014), 2/ requires the Agency to adopt as

a rule?

B. Are Agency rule s 59G - 4.160(2) and 59G - 5.020 invalid

because they exceed the Agency ' s delegated authority and

contravene the statute which the rule implements? 3 / & 4 /

PRELIMINARY STATEMENT

This proceeding is the inevitable sequel to a dispute in

2012 between many of the Petitioners (Hospitals) and the Agency

in Bayfront Med ical C en t er , et al. v. Ag ency for Health Care

Admin istration , Case No. 12 - 2757RU (Fla. DOAH Dec. 21, 2012),

Ag ency for Health Care Admin istration v . Bayfront Med ical C enter ,

et al . , Case No. 1D13 - 224 (Fla. 1 st DCA 2013) (appeal voluntarily

dismissed July 16, 2014) ( Bayfront I ). In that case, the

Hospitals challenged the Agency ' s use of a " stabilization

standard " to determine whether to pay Medicaid claims for

emergency servi ces provided to undocumented aliens. The Final

Order of Bayfront I determined that the " stabilization standard "

was an un adopted rule and that the Agency could not use it unless

the Agency adopted it as a rule.

After dismissing its appeal of the Final Or der following

oral argument, the Agency embarked upon a course of action

plainly intended to be its best effort to conduct retrospective

and prospective reviews of hospital claims for Medicaid payments

for medical services provided undocumented aliens rely ing only on

existing statutes and rules. The Hospitals maintain that the

Agency ' s best is n o t good enough and that it is again using a

policy that amounts to a rule that should have been adopted.

They argue alternatively that the involved Agency ' s rule s are

invalid .

On October 13, 2014, the Hospitals, a group of 31 acute care

hospitals enrolled as providers in the Florida Medicaid p rogram,

filed a Petition for Determination of Invalidity of Non - Rule

Policy or in the Alternative for Determination of the I nvalidity

of a Rule. The Hospitals were permitted to amend their Petition.

The Amended Petition still challenged the Agency ' s interpretation

and application of an existing rule as an unadopted rule and

challenged the existing rule as invalid.

On October 21, 2014, the undersigned conducted a scheduling

conference. That same day , a notice setting the final hearing

for November 12 and 13, 2014 , issued.

On October 28, 2014, the Hospitals moved for a continuance.

The Agency filed its reply in opposition on October 29, 2014.

The Hospitals supplemented their motion on October 30, 2014.

Then, on November 4, 2014, the parties filed a Joint Notice of

Agreement to Continued Hearing. The hearing was continued to

November 24 and 25, 2014. A case status hearin g was held

November 21, 2014. As a result of the parties ' agreement during

the conference, the hearing was rescheduled to January 12 and 13,

2015 .

On January 6, 2015, the parties jointly moved to submit the

case on a record of exhibits (including depositi on transcripts) ,

followed by proposed orders and oral argument from the parties.

The motion was granted. The Hospitals filed eight notebooks

containing 1 7 0 exhibits, including deposition transcripts. The

Agency filed seven notebooks containing 109 e xhib its, including

deposition transcripts. The parties each noted objections to

many of the other party ' s exhibits. All objections by both

parties are overruled. The Hospitals ' Exhibits 1 through 1 7 0 are

accepted into evidence. The Agency ' s Exhibits 1 thro ugh 109 are

accepted into evidence. The parties ' exhibits and proposed

orders demonstrate, as had become apparent during the course of

proceedings, that their dispute was not so much about the

evidence , but about what to infer from the evidence and the

ap plication of the law to the facts established by the evidence.

The undersigned heard oral argument on February 10, 2015.

The Agency filed the T ranscript of the argument on February 19,

2015. The A gency filed a Notice of Supplemental Authority on

March 3, 2015. The parties also provided the undersigned with

USB flash drives with various documents , including authorities

cited, some exhibits, and a copy of the proposed order (on the

Hospitals ' flash drive) . The proposed orders and oral arguments

have been considered in the preparation of this Final Order.

FINDING S OF FACT

The Parties

1. Title XIX of the Social Security Act establishes

Medicaid as a collaborative federal - state program in which the

state receives federal financial participation (FFP) from th e

federal government for services provided to Medicaid - eligible

recipients in accordance with federal law. The state also

provides funding for the Medicaid program.

2. Section 409.902(1) designates the Agency to administer

Florida ' s Medicaid program. Th e p rogram provides medical care

for indigent people in Florida. Federal and state laws, federal

regulations, and state rules, including Medicaid handbooks

incorporated by reference into the rules, govern eligibility for,

participation in, and payment by t he program.

3. The Hospitals are acute care hospitals enrolled as

providers in the Florida Medicaid p rogram that provide emergency

medical services. They have obtained , and intend to seek in the

future, Medicaid compensation for emergency services provi ded to

undocumented aliens. To participate in the Medicaid p rogram, the

Hospitals have agreed to a Medicaid Provider Agreement with the

Agency. The agreement governs the terms under which the Medicaid

p rogram will compensate hospitals for services provid ed to

individuals. Those terms include multiple state and federal

statutes and rules discussed below. The Agency makes payments to

Hospitals subject to its right to later audit the claims for

payment and recoup payments if the Agency determines that they

were not authorized.

The Medicaid Program and Undocumented Aliens Until 2010

4. Federal law prohibits compensating a state through

federal financial participation under the Medicaid program " for

medical assistance furnished to an alien who is not lawfull y

admitted for permanent residence or otherwise permanently

residing in the United States under color of law [undocumented

aliens]. " 42 U.S.C. § 1396b(v)(1). I t permits federal financial

participation for services provided to otherwise eligible

undocumen ted aliens that " are necessary to treat an emergency

medical condition as defined in paragraphs (b)(1) and (c) , " if

the individual otherwise meets the conditions for participation

in the Medicaid program. 42 C.F.R. § 40.255(a). See also 42

U.S.C. § 1396b (v)(2).

5. For purposes of eligibility of undocumented aliens,

42 U.S.C. § 1396b(v)(3) defines " emergency medical condition " as:

[A] medical condition (including emergency

labor and delivery) manifesting itself by

acute symptoms of sufficient severity

( including severe pain) such that the

absence of immediate medical attention could

reasonably be expected to result in --

(A) placing the patient ' s health in serious

jeopardy, (B) serious impairment to bodily

functions, or (C) serious dysfunction of any

bodil y organ or part.

6. Florida statutes and rules, with minor variations,

incorporate the federal standards limiting the eligibility of

undocumented aliens to treatment for emergency medical

conditions. Federal laws and regulations do not impose a defined

endpoint or quantitative limit on the duration of the eligibility

due to the emergency medical condition. Sections 409.902 and

409.904 address Medicaid services for undocumented aliens.

Section 409.904(4) establishes the criteria for the limited

Medicaid eligibility of undocumented aliens. Section 409.902(1)

designates the Agency " as the single state agency authorized to

make payments for [Medicaid services]. " S ection 409.902(1) makes

[ DCF ] " responsible for Medicaid eligibility determinations . "

Section 409.902(2) restricts Medicaid eligibility to U nited

S tates c itizens and lawfully admitted noncitizens who meet the

Medicaid eligibility criteria for " qualified noncitizens " for

temporary cash assistance. 5 /

7. Section 409.902(2)(b) limits use of state f unds to

provide medical services to individuals who do not meet the

requirements of the subsection. It permits an exception for use

of state funds to provide medical services that are necessary " to

treat an emergency medical condition. "

8. The Florida M edicaid Hospital Services Coverage and

Limitations Handbook, June 2011 (Hospital Handbook) , incorporated

by reference into the Agency ' s r ule 59G - 4.160(2) , states on

page 2 - 7 the limits on reimbursement for services provided

undocumented aliens as follows:

The Medicaid Hospital Services Program

reimburses for emergency services provided

to aliens who meet all Medicaid eligibility

requirements except for citizenship or alien

status.

Eligibility can be authorized only for the

duration of the emergency. M edicaid will

not pay for continuous or episodic services

after the emergency has been alleviated.

9. The Florida Medicaid Provider General Handbook, 2012

(Provider Handbook) , incorporated by r ule 59G - 5.020, repeats this

limitation. Earlier versions of t he Handbooks have essentially

the same requirements and limitations.

10. Section 409.904(4) authorizes DCF to find an

undocumented alien eligible for Medicaid, but limits the duration

of the eligibility for undocumented aliens. It states:

A low - income person who meets all other

requirements for Medicaid eligibility except

citizenship and who is in need of emergency

medical services. The eligibility of such a

recipient is limited to the period of the

emergency, in accordance with federal

regulations.

1 1. From 2005 to 2012, the definitions of section 409.901

for " emergency medical condition " and " emergency services and

care " have remained unchanged , although the subsection numbering

for them has changed.

12. " Emergency medical condition " is defined as:

(a) A medical condition manifesting itself

by acute symptoms of sufficient severity,

which may include severe pain or other acute

symptoms, such that the absence of immediate

medical attention could reasonably be

expected to result in any of the following :

1. Serious jeopardy to the health of a

patient, including a pregnant woman or a

fetus.

2. Serious impairment to bodily functions.

3. Serious dysfunction of any bodily organ

or part.

(b) With respect to a pregnant woman:

1. That there is inade quate time to effect

safe transfer to another hospital prior to

delivery.

2. That a transfer may pose a threat to the

health and safety of the patient or fetus.

3. That there is evidence of the onset and

persistence of uterine contractions or

rupture o f the membranes.

13. " Emergency services and care " are defined as:

[M]edical screening, examination, and

evaluation by a physician, or, to the extent

permitted by applicable laws, by other

appropriate personnel under the supervision

of a physician, to d etermine whether an

emergency medical condition exists and, if it

does, the care, treatment, or surgery for a

covered service by a physician which is

necessary to relieve or eliminate the

emergency medical condition, within the

service capability of a hosp ital.

14. DCF ' s Emergency Medical Services for Aliens, r ule

65A - 1.715, provides:

(1) Aliens who would be eligible for

Medicaid but for their immigration status are

eligible only for emergency medical services.

Section 409.901(10), F.S., defines emerg ency

medical conditions.

(2) The Utilization Review Committee (URC)

or medical provider will determine if the

medical condition warrants emergency medical

services and, if so, the projected duration

of the emergency medical condition. The

projected dura tion of the emergency medical

condition will be the eligibility period

provided that all other criteria are

continuously satisfied.

(3) Emergency services are limited to

30 consecutive days without prior approval.

For continued coverage beginning with t he

31st day prior authorization must be obtained

from the Agency for Health Care

Administration (Medicaid Program Office).

15. DCF ' s r ule 65A - 1.702(2)(c), implementing Title XIX , in

its provisions for establishing a patient ' s date of eligibility,

states: " Coverage for individuals eligible for the Emergency

Medicaid for Aliens program begins the first day of a covered

emergency and ends the day following the last day of the

emergency medical situation. "

16. Until July 1, 2010, neither DCF nor the Agency ha d a

system, procedure, or practice for determining when the duration

of an undocumented alien ' s emergency ended or when the emergency

was alleviated, other than the initial determination of

eligibility.

17. DCF ' s consistent practice was to make its eligi bility

determination based upon a review of the information provided by

healthcare providers on DCF Form 2039 after discharge of the

patient. The providers usually provided additional information

and documents , including information about the diagnosis an d

treatment and the projected or actual duration of the emergency.

18. DCF ' s practice , since 2002 , has been to routinely

accept the information and documents submitted by the provider

and base the eligibility determination on them. DCF ' s consistent

prac tice was to not allow providers to submit any documentation

until after the patient was discharged. Consequently, the

information upon which DCF based its eligibility determination

for undocumented aliens was actual, not projected.

19. DCF notifies prov iders of the eligibility decision by

sending a completed DCF Form 2039 or making the information

available online. The information contains the specific period

of eligibility for the undocumented alien, including the

beginning and ending date of the eligi bility period. This is the

duration of the emergency medical condition.

20. Until July 1, 2010, under previous administrations, the

Agency did not make any consistent or meaningful effort to

determine if the services for which a hospital billed Medicaid

were for the emergency medical conditions that were the predicate

for DCF ' s determination of emergency eligibility.

21. The Agency ' s automatic process for reviewing Medicaid

claims kicked out claims for services to undocumented aliens

eligible because of an emergency medical condition. These claims

were manually reviewed by just two nurses. The system allowed

two choices , " approve " or " deny. " Sometimes the nurses reviewed

requests for Medicaid reimbursement from providers solely to

determine if the s ervices provided were medically necessary.

This is the same standard used to determine if Medicaid will pay

for services provided to citizens and documented aliens.

22. The process and the number of claims overwhelmed the

two nurses conducting the review . A huge claims backlog

developed. This resulted in the review becoming more minimal and

intermittent. Hospitals complained about the resulting payment

delay. The Agency worried about it , too.

23. On September 9, 2009, Dyke Snipes, d eputy d irector o f

Medicaid, released all the backlogged claims for payment without

review. Later , he sent the hospitals a memorandum stating the

claims would be paid without further review subject to later

audit and claims for recoupment. However, from July 1, 2005,

thr ough June 30, 2010, the Agency did not audit any of the claims

for payment for hospital services provided to undocumented

aliens.

24. In 2002, as required by statute, the Agency began a

prior authorization program for Medicaid inpatient hospital

services. The purpose was to determine, before payment, if

services were medically necessary.

25. The Agency contracted with KePRO to perform the prior

authorization reviews for medical necessity. In the case of

services to undocumented aliens, the prior authori zation review

and medical necessity determination was not made, despite the

name, until the patient was discharged.

26. The Agency ' s Bureau of Medicaid Services performed a

separate review of claims for payment of services to undocumented

aliens to determi ne if the services were for the treatment of an

emergency medical condition. The Bureau conducted this review

after the Department had determined that the patients were

eligible for Medicaid and after KePRO had authorized the

services.

27. Nurses employ ed by the Agency reviewed the claims and

accompanying records to determine if the services were for

treatment of an emergency medical condition. The review did not

include judgments about the number of days appropriate for

treatment, the relationship betw een services provided , and the

emergency or the duration of the emergency.

28. Before July 1, 2010, the Agency, to the extent that it

did anything, implemented and applied the rule, statute, and

regulation provisions permitting payment for emergency medi cal

services to eligible undocumented aliens by paying claims for the

period of eligibility determined by the Department for services

that KePRO determined were medically necessary and that the

Bureau had determined to be necessary for treatment of an

emer gency medical condition.

29. The Agency did not conduct a targeted review to

determine when the emergency ended or when the emergency was

alleviated.

30. Altogether , the Agency was just not enforcing the

statutory and rule limitations upon payment f or emergency medical

services to persons that DCF determined eligible.

Federal Audit

31. Eventually , Florida ' s failure to enforce the

limitations came to the attention of the federal government. On

August 25, 2009, the federal Centers for Medicare and Med icaid

Services (CMS) presented the Agency with the report of its

Financial Management Review of Florida ' s Medicaid Payments for

Emergency Services to Undocumented Aliens. The transmittal

letter asked Florida " to retroactively review claims for

emergency m edical services provided to undocumented aliens for

proper eligibility determinations. We will defer these claims

until the State has reviewed the claims. " The federal government

said that payment of the FFP to Florida for emergency medical

services for undocumented aliens was in question , b ut it would

delay deciding while Florida conducted the requested review. In

plainer words, the federal government said it would hold up on

recouping FFP paid for services to undocumented aliens.

32. CMS " determined that the Agency for Health Care

Administration (AHCA) claimed Federal Financial Participation

( FFP ) for emergency services to beneficiaries that did not meet

the Federal Definition of undocumented alien. In addition, AHCA

claimed FFP for additional medic al services that did not qualify

as emergency care after the patient was stabilized. "

33. Finding number 2 of the report stated: " AHCA is

claiming FFP for emergency medical services to undocumented

aliens provided beyond what Federal statutes and regul ations

define to be an emergency. "

34. Recommendation number five stated:

AHCA should review all emergency services

for undocumented alien amounts claimed for

FFP during Federal Fiscal Years 2005, 2006

and 2007 and re - determine allowability of

these cl aims utilizing the required Federal

criteria. Based on this review and

re - determination, AHCA should revise

previous FFP amounts claimed on the Fo r m

CMS - 64 quarterly statement of expenditures

report to reflect only emergency services to

undocumented alien s (supported by SAVE and

IVES research) up to the point of

stabilization. Upon completion, please

report the results of your review to CMS.

35. Recommendation number 6 state d that: " AHCA [should]

promptly implement the necessary system edits so that se rvices

provided as emergent care can be differentiated from services

provided after the point the patients are stable, and then bill

to the proper Federal programs . " 6/

36. The audit identified the Agency ' s electronic claims

system ' s lack of system edits needed to account and separate

claims for cost s incurred " during emergent care and costs past

stabilization " as a contributing factor.

37. CMS concluded that it believed Florida ' s claims for

payment for emergency medical services were " significantly

over stated. " The report state d : " During our review, we found

that AHCA is claiming costs for emergency services for

undocumented aliens, during the patients ' entire hospital stay,

and beyond the emergency or stabilization point as defined by

Federal statutes and regulations. " It asked Florida to conduct

" re - reviews of claims for emergency medical services provided

undocumented aliens. "

38. CMS did not recommend that Florida change its statutes

or rules governing Medicaid eligibility of undocumented aliens.

It only recommended that Florida enforce existing law.

39. In September 2010, the Office of Inspector General for

the United States Department of Health and Human Services

released its " Review of Medicaid Funding for Emergency Services

Provided to Nonqua lified Aliens [by Florida]. " This review

observed that the Agency " relied upon two medical staff to review

approximately 4,000 such claims per month, and this limited

review was not sufficient to prevent some unallowable claims from

being paid. " The revi ew also noted the problem with the system

edit s that the Agency was using. The system just identified

claims for services to undocumented aliens and kicked them out

for review by the two nurses who were not capable of properly

reviewing the claims because of the overwhelming volume. T he

r eview observed that the system had an edit which could classify

claims under five options: emergency, urgent, elective, newborn,

and information not available. The r eview stated: " If active,

this edit may have ensured that the State Agency properly claimed

Federal reimbursements. "

40. The a udit and the r eview, as well as the testimony of

Johnnie Shepherd, the Agency administrator, convincingly

establish that up to 2010 , the Agency was not applying or

enforcing f ederal or Florida statutory and rule requirements

limiting medical services to undocumented aliens for emergency

conditions.

The Agency Reacts to the Audit and Review

41. The Agency began working to implement the

recommendations. KePRO presented a proposal to e xpand the scope

of its services that it described in this fashion:

It is our understanding that the Agency for

Health Care Administration used internal

resources to conduct such [emergency care

for undocumented aliens] reviews.

Previously, cases were auth orized for

payment using medical necessity criteria

verses [sic] " point of stabilization. "

Approximately 12,000 cases dating back to

2006 fall into this category. This presents

the Agency with an opportunity to recoup

payments for hospital days that exce eded the

" point of stabilization . "

42. The Agency amended its contract with KePRO to include

review of claims for emergency services to undocumented aliens to

determine if the services continued beyond the duration of the

emergency.

43. The Agency and KePRO began the review process. The

requirements are included in the Agency ' s contracts with KePRO ' s

successor, eqHealth Solutions.

44. The Agency began advising providers of the coming

changes in review and authorization of Medicaid services for

undocume nted aliens. The Agency ' s campaign incorporated use of

" stabilization " from the CMS reviews. " Stabilization " did not

appear in any pertinent Florida statutes or rules.

45. A July 1, 2010, letter to all Medicaid providers from

the c hief of the Bureau of Medicaid Services advised of upcoming

changes to the Agency ' s procedure and practice for reviewing

claims for undocumented aliens. It is representative of the

Agency ' s approach. The letter stated:

Beginning July 1, 2010, the Keystone Peer

Review Organiz ation (KePRO), Medicaid ' s

contractor for utilization management of

inpatient services, will implement revised

review processes for inpatient admissions for

undocumented aliens. KePRO will review these

requests to determine whether conditions

requiring hos pitalization are an emergency,

defined in 42 CFR 440.255 as follows:

The sudden onset of a medical condition

(including emergency labor and delivery)

manifesting itself by acute symptoms of

sufficient severity (including severe pain)

such that the absence of immediate medical

attention could reasonably be expected to

result in:

• Placing the patient ' s health in serious

jeopardy;

• Serious impairment to bodily functions; or

• Serious dysfunction of any bodily organ or

part.

Medicaid will not pay for conti nuous or

episodic care after the emergency has

subsided and the patient is stabilized.

46. The letter also stated:

Professional services provided to an

inpatient alien on or after the date that

the patient has been stabilized will not be

reimbursed by M edicaid. From the point of

patient stabilization, the patient may

continue to require medically necessary

treatment; however, Medicaid cannot

reimburse medically necessary treatment for

aliens, only emergency treatment.

47. Hospitals, including many of t he challengers here,

brought an action claiming the Agency was using a new

" stabilization " standard that amounted to a rule that had not

been adopted. They prevailed. That action was Bayfront I .

48. The Final Order in Bayfront I found that " the ' point of

stabilization ' standard was an interpretation or an

implementation of the existing statutes and rules and not merely

a restatement of them. " Bayfront I , DOAH Case No. 12 - 2757RU,

at ¶ 54. It concluded that the " Agency ' s ' stabilization '

standard for de termining which services to un - documented aliens

Medicaid will pay for is a statement of general applicability

meeting the definition of a rule that has not been adopted

pursuant to section 1 2 0.54(1) ( a). " Bayfront I , DOAH Case

No. 12 - 2757RU, at ¶ 74. The Final Order required the Agency to

" immediately discontinue all reliance upon the ' stabilization '

standard or any substantially similar statement as a basis for

agency action. "

Since Bayfront I

4 9 . The Agency complied with the Final Order by

discontinuin g all reliance on a " stabilization standard " (or any

other unadopted standard) as a basis for agency action. It did

not abandon its efforts to review past, present, and future

hospital claims for Medicaid payment for emergency services

provided to undocum ented aliens.

50 . The Agency developed new instructions for peer

reviewers evaluating claims and amended affected contracts. It

provided reviewers the language of the governing rules and

statutes to use in evaluations. The material included the

provis ions of the Florida Medicaid Handbooks that have been

incorporated by reference into the Agency ' s rules.

5 1 . The Agency emphasized, as Shevaun Harris, b ureau c hief,

Bureau of Medicaid Services, testified:

[Peer reviewers should] no longer use

stabiliz e, to use -- to use that terminology

anymore, and that they should follow the

policy. The policy -- the handbook provides

instruction to readers in terms of which

words they need to go back to the glossary.

And then words that are not defined are its

plain -- should be used -- should be applied

using its plain meaning.

(Pet. Ex. 130, pp . 29 & 30).

5 2 . The Agency expected the reviewers to apply their

education, clinical expertise, and experience to determine if

services provided were " emergency services or tr eatment , " as

defined in section 409.901(11) for an " emergency medical

condition , " as defined in section 409.901(10).

5 3 . A January 28, 2013, memorandum to peer reviewers from

Johnnie Shepherd, AHCA Administrator, Medicaid Program Integrity ,

is a represent ative example of the Agency ' s instructions to peer

reviewers . It told the reader of the result of Bayfront I and

stated that the Agency " will cease to rely upon the

' stabilization ' standard or any substantially similar statement

as a basis for determining the duration of the emergency. " The

Agency attached applicable excerpts from statutes and rules. It

also advised the importance of reports " of sufficient detail and

complexity to clearly support any claims payment adjustments

based upon the medical dete rmination and the application of

Medicaid rules. " (P. Ex. 130, AHCA Bates No. 463).

5 4 . Similarly , the Agency advised other " vendor[s] to make

sure that they were using terminology as found in the rules that

are promulgated and that their determinations are consistent with

the rules as they are promulgated. " (Pet. Ex. 130, p. 15). The

vendors advised their employees and agents accordingly.

5 5 . Exhibit 2 to the desposition 7/ of Carol Roberts, p rogram

m anager for the Fee for Service Rules Unit, is a re presentative

example of these instructions. The Power Point slides for a

presentation reproduced the statutory definition for " emergency

medical condition " and " emergency services and care. " A March 7,

2013, internal eqHealth e - mail from Naveen Gande to Mary McPhee

demonstrates that the vendors followed the instructions. It

states that the " stabilization " standard should not be used and

that reviewers should refer to the Agency h andbooks.

5 6 . Likewise an e - mail exchange between Mr. Shepherd and

Eileen Bechkes of V endor Health Integrity demonstrates the

Agency ' s reliance upon statute s and rule s . Ms. Bechkes relayed a

question from Winter Haven Hospital asked during an audit

entrance conference. It asked to " explain the difference between

the standard of ' stabilization of the emergency condition ' and

the standard of ' emergency condition is relieved or eliminated. '"

(Pet. Ex. 119[B], p . 3). 8/

5 7 . Mr. Shepherd ' s response states the Agency position

frankly.

Thanks for this question. Our positon is to

di rect the provider to the Medicaid

Provider ' s general Handbook and the other

references mentioned in the audit letters.

Since this question has been brought up

prior to the other letters conveying the

references to the provider, we should simply

tell them to read the Medicaid policy

reference for the limited coverage category

that pertains to Medicaid for Aliens as

found in the Medicaid Provider General

Handbook. Also, the General Handbook

includes definitions for Emergency Services

and Care and Emergency Medical Condition.

Finally, we are asking the peer reviewers to

apply their education, experience and

judgment in reviewing the respective medical

records to determine if an emergency medical

condition existed, and if it did at what

point was the emergenc y medical condition

alleviated or eliminated per the definitions

found in the Medicaid references.

5 8 . The instructions to Agency or vendor employees

reviewing the claims for payment for emergency medical services

to undocumented aliens consistently emph asized that all

participants were to apply only the applicable statutes and rules

and that " stabilization " was not a criteri on .

5 9 . The Hospitals rely heavily upon the wording of the

post - Bayfront I amendment to the eqHealth c ontract (P. Ex. 89)

and Ms. Harris ' s testimony about it . (P. Ex. 130, p. 117, ll.

19 - 22). These things , the hospitals argue , prove that the Agency

is still attempting to determine the length of the period of

eligibility and that this is a new interpretation of the rules

and statute s.

60 . The existing language provided that the vendor would

review the cases to time the point at which the emergency no

longer existed and the patient ' s condition was stable. The

amendment said : " The Vendor shall review these cases to

determine the po int at which the emergency no longer exists, in

accordance with state and federal statutes. " Ms. Harris ' s

testimony on page 119 of Petitioner ' s Exhibit 30 clarifies that

the amendment was referring to " the Agency ' s obligation to pay

for services for undoc umented aliens or individual who met all

other requirements for Medicaid, except citizenship. " The weight

of the evidence, including training materials and written

communications, proves that despite poor wording in the

amendment, the parties to the contr act stayed focused on

determining whether the Agency was being asked to pay for

services that state and federal law permitted it to, not

determining the length of the emergency medical condition.

6 1 . The Agency was resolute in its commitment to only apply

the standards and definitions of statutes and rules in the

evaluation of claims for payment for emergency medical services

to undocumented aliens. The Agency ' s resolve was tested in

meetings with provider representatives, inquiries from vendors,

and inte rnal questions. Agency representatives repeatedly said

that the rules and statutes determine the standards and people

should apply the plain meaning of their words. Agency documents

did the same. The Agency did not succumb to the temptation, as

it did w ith " stabilization, " to explain in different words the

words of statute and rule.

6 2 . The weight of the evidence convincingly established

that after entry of the Final Order in Bayfront I , the Agency ' s

statements of general applicability implementing th e law

governing Medicaid reimbursement for emergency medical services

to undocumented aliens were only quotes from or references to

governing statutes and rules.

CONCLUSIONS OF LAW

6 3 . The Division of Administrative Hearings has

jurisdiction over the parti es and the subject matter of this

proceeding pursuant to sections 120.56(1)(c), 120.56(4), 120.569

and 120.57(1), Florida Statutes.

Un adopted Rule Challenge

6 4 . An " un adopted rule challenge " under section 120.56(4)

presents a narrow , limited issue. The is sue is whether an agency

has , by declaration or action , established a statement of general

applicability that is a " rule, " as defined in section 120.52(16),

without going through the required public rulemaking process

required by section 120.54. The Hospi tals bear the burden of

proving by a preponderance of the evidence both the terms of the

alleged A gency statement and that the challenged A gency statement

is an un adopted rule. See D ravo Basic Material Co., Inc. v.

Dep ' t of Transp. , 602 So. 2d 632 (Fla. 2 d DCA 1992); Fla. Dep ' t

of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

The Hospitals have not carried that burden.

6 5 . The Hospitals have not proven by quotation, text, or

description a statement that they contend is an un adopted rule.

The y argue the fact that the Agency is now enforcing the law when

its past practice was to not enforce it , amounts to a statement

meeting the definition of rule. To support their argument the

Hospitals cite: Coventry First , LLC v. Office of Insurance

Regula tion, 38 So. 3d 200 (Fla. 1st DCA 2010); Department of

Revenue v. Vanjaria Enterprises , 675 So. 2d 252, 255 (Fla. 5th

DCA 1996); Cleveland Clinic v. A gency for Health Care

Administration , 679 So. 2d 1247 (Fla. 1st DCA 1996) ; and Courts

v. Agency f or Health Care Admin istration , 965 So. 2d 154, 159

(Fla. 1st DCA 2007). The cases do not support the Hospitals '

position.

6 6 . Coventry held that statements which create rights

require compliance with the statement or otherwise have the

direct and consistent eff ect of law meet the definition of rule.

The Agency ' s statements and actions are not creating rights. The

rights and obligations already exist. Statutes and rules created

them long ago. The Agency is just requiring compliance with the

statutes and rules . These facts are much like those of Coventry

where the Office of Insurance Regulation ' s internal guidelines

includ ed an outline that tracked the language of the statute.

The Agency is doing the same here, only more so. It consistently

offers the statut es and rules as the guidelines.

6 7 . The Hospitals maintain that Cleveland Clinic stands for

the proposition that if an agency abruptly changes its

established practice, going from non - enforcement to enforcement,

it must engage in rulemaking. First , descr ibing the Agency ' s

actions as abrupt is not accurate. It provided notice of its

plans many times in many ways.

6 8 . Cleveland Clinic involved extraordinary review of

decisions on efforts of other hospitals to require that the

Cleveland Clinic ' s replaceme nt hospital ' s certificate of need

application for Broward County be competitively reviewed with

their hospital certificate of need applications for Broward

County. It was not an unadopted rule case. For years the Agency

had interpreted a statute exemptin g certain capital expenditures

from batched certificate of need review with other applications

to include replacement hospitals , so long as the licensed bed

capacity did not change. The Agency changed its interpretation

and determined that the Cleveland C linic replacement hospital had

to be competitively reviewed in a batch with other applicants

proposing a hospital in Broward County. The court described this

as a radical turnabout from the Agency ' s previous interpretations

of the statute. It held that t he Agency could not change its

interpretation and application of sta tute without going through

rule making.

6 9 . The facts here do not fit the facts or holding in

Cleveland Clinic . The Agency is not changing an interpretation

or way of applying a statute o r its rules. It is just starting

to enforce them, as they are written, after years of neglecting

to enforce them.

70 . Courts involved an appeal from an Agency decision

eliminating an award of two weeks of 24 - hour companion care

ap proved under a Medicaid waiver and denying a request for an

additional two weeks. This was a manifestation of the Agency

implementing a new policy limiting the service an individual

could receive to six hours per day. Before that , the Agency

interpreted the waiver statutes and rules to allow 50 hours of

companion care to Courts per week , plus an additional 236 hours

on an as - needed basis. The Agency explained its actions by

saying it had changed its mind. Once again , the facts here

differ. The Agency is not changing its mind about what the

statutes and rules require. It is just finally enforcing them.

7 1 . Vanjaria Enterprises involved the Department of

Revenue ' s use of a square - footage - based formula to allocate

property revenue to taxable or nontaxable categories. The

statu te directed the Department to determine the portion of a

property ' s rental revenue that was exempt from taxation. The

Department ' s decision to use a square - footage formula , rather

than another method, such as a revenue - percentage formula, was

not direct a pplication of the statute. It was a statement

interpreting and applying the statute which had to be adopted as

a rule. In this instance , the Agency is directly applying the

statutes and rules. Vanjaria Enterprises supports determining

that the Agency ' s actions do not amount to an unadopted rule.

See also , Ag . for Health Care Admin. v. Custom Mobility, Inc. ,

995 So. 2d 984 (Fla. 1st DCA 2008) .

7 2 . The Agency is simply now enforcing statutes and rules

that it had not been enforcing. Its actions are cons istent with

the statu t es and rules. For that reason, the Hospitals have not

proven the Agency has or is using an unadopted rule. See State

Bd. of Admin. v. Huberty , 46 So. 3d 1144, 1147 (Fla. 1st DCA

2010); St. Francis Hosp., Inc. v. Dep ' t of HRS , 553 So . 2d 1351,

1354 (Fla. 1st DCA 1989).

Challenge to Existing Rules as Unauthorized

7 3 . The Hospitals assert that the Agency ' s rules exceed its

grant of rulemaking authority and contravene the specific

provisions of the law implemented. §§ 120.52(8)(b) an d (c) , Fla.

Stat . The Hospitals bear the burden of proving the challenged

rules invalid by a preponderance of the evidence. § 120.56(1)(e)

and (3)(a) , Fla. Stat. ; Vuong, et al. v. Fla. Dep ' t of Law Enf . ,

149 So. 3d 174 (Fla. 4th DCA 2014).

7 4 . The chall enge here is to two Agency rules. The first

is rule 59G - 4.160(2) that adopts the Hospital Services Coverage

Handbook , 2011 , through an internet link. The challenged

language appears on page 2 - 7 beneath the heading , " Emergencies:

Medicaid for Alien. " Th e pertinent part states with emphasis

supplied:

The Medicaid Hospital Services Program

reimburses for emergency services provided to

aliens who meet all Medicaid eligibility

requirements except for citizenship or alien

status.

Eligibility can be authorize d only for the

duration of the emergency. Medicaid will not

pay for continuous or episodic services after

the emergency has been alleviated. Dialysis

is considered an emergency service.

7 5 . The second is r ule 59G - 5.020 , which adopts the Florida

Medicai d Provider Handbook, 2012, through an internet link. The

challenged language appears on page 3 - 22 under the heading ,

" Emergency : Medicaid for Aliens. " The language is identical ,

except that the Hospital Services Handbook refers to the

" Medicaid Hospital Services Program " and the Provider General

Handbook refers to " program. " They are the same.

7 6 . The recent opinion in United Faculty of Fl orida v.

Fl orida State B oard of Educ ation , 2015 Fla. App. Lexis 2037,

at * 3; 157 So. 3d 514 (Fla. 1st DCA 2015) , n eatly summarizes the

standards for a rule challenge under section 120.52(8)(b)

claiming an agency has exceeded its grant of rulemaking

authority.

A rule is invalid under section 120.52(8)(b)

if the agency " exceed[s] its grant of

rulemaking authority. " A g rant of rulemaking

authority is the " statutory language that

explicitly authorizes or requires an agency

to adopt [a rule]. " § 120.52(17), Fla. Stat.

The scope of an agency ' s rulemaking authority

is constrained by section 120.536(1) and the

so - called " flu sh - left paragraph " in section

120.52(8), which provide that an agency may

only adopt rules to " implement or interpret

the specific powers and duties granted by the

[agency ' s] enabling statute " ; that an agency

may not adopt rules to " implement statutory

pro visions setting forth general legislative

intent or policy " or simply because the rule

" is reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency ' s class of

powers and duties " ; and that " [s ]tatutory

language granting rulemaking authority or

generally describing the powers and functions

of an agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

enabling statute. "

Sec tion 120.536(1) and the flush - left

paragraph in section 120.52(8) require a

close examination of the statutes cited by

the agency as authority for the rule at issue

to determine whether those statutes

explicitly grant the agency authority to

adopt the rule . As this court famously

stated in Save the Manatee Club , [773 So. 2d

the question is

" whether the statute contains a specific

grant of legislative authority for the rule,

not whether the grant of authority is

specific enough . Eit her the enabling statute

authorizes the rule at issue or it does not. "

773 So. 2d at 599 (emphasis in original).

Accord Bd. of Trs. of the Internal

Improvement Trust Fund v. Day Cruise Ass ' n,

Inc. , 794 So. 2d 696, 700 (Fla. 1st DCA 2001)

( " [A]gencies have rulemaking authority only

where the legislature has enacted a specific

statute, and authorized the agency to

implement it . . . . " ); see also Fla.

Elections Comm ' n v. Blair , 52 So. 3d 9, 12 - 13

(Fla. 1st DCA 2010) (explaining that the

definition of " rulema king authority " in

section 120.52(17) does not further restrict

agency rulemaking authority beyond what is

contained in the flush - left paragraph in

section 120.52(8), as construed by this court

in Save the Manatee Club and subsequent

cases).

7 7 . Both rul es identify section 409.919 as providing

rule m aking authority for the handbooks. And both identify

section 409.902, among others, as the law implemented by the

handbooks.

7 8 . Section 409.919 states:

The agency shall adopt any rules necessary to

compl y with or administer ss. 409.901 - 409.920

and all rules necessary to comply with

federal requirements. In addition, the

Department of Children and Families shall

adopt and accept transfer of any rules

necessary to carry out its responsibilities

for receivi ng and processing Medicaid

applications and determining Medicaid

eligibility, and for assuring compliance with

and administering ss. 409.901 - 409.906, as

they relate to these responsibilities, and

any other provisions related to

responsibility for the deter mination of

Medicaid eligibility .

7 9 . Sections 409.901 to 409.920 are most , but not all , of

the sections of c hapter 409, Part III , titled " Medicaid. "

Section 409.919 does not include the other five parts of

c hapter 409 in its grant of rulemaking authori ty. It is specific

to the Medicaid p rogram.

80 . Section 409.902(1) states: " The Agency for Health Care

Administration is designated as the single state agency

authorized to make payments for medical assistance and related

services under Title XIX of t he Social Security Act. " The plain

meaning of these provisions is that AHCA is to determine what

medical services to pay for undocumented aliens who DCF has

determined eligible for Medicaid services because of an emergency

medical condition.

8 1 . Sectio n 409.902(2)(b) prohibits using state funds " to

provide medical services to individuals who do not meet the

requirements of this subsection unless the services are necessary

to treat an emergency medical condition . . . . Such services

are authorized only to the extent provided under federal law and

in accordance with federal regulations as provided in 42 C.F.R.

s. 440.255 . "

8 2 . The limitations on using state funds to provide medical

services to undocumented aliens , " unless the services are

necessary t o treat an emergency medical condition , " can only be

fairly interpreted as a mandate to the Agency to review the

medical services provided to an undocumented alien eligible for

Medicaid because of an emergency medical condition. It must do

that to determi ne if state funds may be used to pay for the

service s . Section 409.902 is one of the statutes for which

section 409.919 authorizes rulemaking. The plain words of the

grant of authority in section 409.919 require the Agency to adopt

rules that comply with and administer section 409.902. The grant

is explicit and specific. The challenged rules pass the test

articulated in United Faculty .

8 3 . The certainty of this conclusion is demonstrated by

comparing this case to the opinion in Lamar Outdoor Adver tisin g

v. Fl orida D ep artment of Transportation , 17 So. 3d 799 (Fla. 1st

DCA 2009). The court found that the challenged rules of the

Department of Transportation , governing the height above ground

level of outdoor signs , exceeded the scope of the rulemaking

aut hority granted. The authority was to " do all things necessary

to cooperate . . . in the construction of roads. " Lamar at 803.

The grant was specific to road construction. Signs were not road

construction. Therefore , the rule was invalid. Here , the gr ant

is specific to administering identified Medicaid statutes. The

rules are within the authority the Legislature granted the

Agency. The Hospitals did not carry their burden.

8 4 . Section 120.52(8)(c) defines invalid rule as one that

enlarges , modifies, or contravenes the specific provisions of the

law implemented. The Hospitals maintain that the rules are

invalid under this definition. The foregoing analysis disposes

of that proposition. The Agency ' s rules link directly to the

statutes that they admi nister. The Hospitals have not proven

that the challenged rules enlarge, modify, or contravene the

statutes implemented.

Are the Rules Vague?

8 5 . The Hospitals maintain that the rules are invalid

because they are vague, fail to establish adequate standar ds for

A gency decisions, and vest unbridled discretion in the A gency.

§ 1 20.52(8)(d) , Fla. Stat . The issue is the facial validity of

the rules not whether they are or will be properly applied in a

factual or hypothetical situation. Fairfield Communities v. Fl a.

Land and Water Adjudicatory Comm ' n , 522 So. 2d 1012, 1014 (Fla.

1st DCA 1988) ( " An administrative rule is invalid under section

120.52(8)(d), Florida Statutes, if it forbids or requires the

performance of an act in terms that are so vague that per sons of

common intelligence must guess at its meaning and differ as to

its application. Generally, where words or phrases are not

defined, they must be given their common and ordinary meaning.

The plain and ordinary meaning of a word can be ascertained b y

reference to a dictionary. " ). Dep ' t of Fin . Servs . v. Peter

Brown Construction, Inc. , 108 So. 3d. 723, 728 (Fla. 1 st DCA

2013) (citations omitted). The Hospitals focus their vagueness

arguments on the rules ' use of the word " alleviate. "

8 6 . " Allev iate " has a plain and ordinary meaning . For

instance, Merriam - Webster Dictionary defines it as " to reduce the

pain or trouble of (something); to make (something ) less painful,

difficult, or severe. " Merriam - Webster Dictionary ,

http://www.merriam - webster. com/dictionary/alleviate. Cambridge

Dictionaries Online defines " alleviate " as " to make pain or

problems less severe. " Cambridge Dictionaries Online ,

http://dictionary.cambridge.org/us/dictionary/american -

english/alleviate . The Medicaid Program statutes use " alleviate "

frequently without explication. See , e.g. , § 409.913(1)(d) , Fla.

Stat. (defining " medical necessity " as " goods or services

necessary to palliate the effects of a terminal condition, or to

prevent, diagnose, correct, cure, alleviate , or pr eclude

deterioration of a condition that threatens life, causes pain or

suffering, or results in illness or infirmity, which goods or

services are provided in accordance with generally accepted

standards of medical practice " ) (emphasis added);

§ 409.906(1) (a) , Fla. Stat. (authorizing AHCA to pay for

" medically necessary, emergency dental procedures to alleviate

pain or infection " ) (emphasis added); § 409.9131(2)(b) , Fla.

Stat. (defining " medical necessity " or " medically necessary " as

" any goods or services necessary to palliate the effects of a

terminal condition or to prevent, diagnose, correct, cure,

alleviate , or preclude deterioration of a condition that

threatens life, causes pain or suffering, or results in illness

or infirmity, which goods or services are provided in accordance

with generally accepted standards of medical practice " ) .

(emphasis added).

8 7 . The Hospitals ' contention that Agency representatives

Harris and Shepherd cannot explain the meaning of " alleviate " is

not supported by the citat ions to their deposition transcripts.

The questioning cited involved repeated efforts to tie the

representatives to the " stabilization " standard rejected as an

unadopted rule. When the meaning of " alleviated " was not tied to

the Agency ' s previous positio n , the witnesses were consistent

that the dictionary meaning should apply.

8 8 . Transcripts of the depositions of various peer

reviewers demonstrate some differences in individual

interpretations of the provisions of the rules and statutes,

particularly o f when an emergency condition is alleviated.

Individual variances by the number of people applying the rules

and statute are predictable. They do not, however, change the

fact that the Agency is striving to apply the rules and statutes.

Individual discr epancies may be addressed through the rights

created by section 120.57 if they are not resolved in the audit

process.

8 9 . The Hospitals also argue that " alleviate " is vague

because the Agency is bound by the losing argument it made in

Bayfront I that " a lleviate " and " stabilize " were interchangeable.

The argument is not persuasive. That was a legal theory which

has been rejected. If the argument were valid, it would cut both

ways. In Bayfront I , the Hospitals based their successful

arguments on the pr oposition that " alleviate " and " stabilize "

were not the same.

90 . The Hospitals have not proven that the rules are vague.

Standing

9 1 . Paragraph 26 of the Agency ' s proposed order states:

The parties have stipulated to Petitioners '

standing to chall enge AHCA ' s existing rules

under section 120.56(3). As enrolled

Medicaid providers, Petitioners are persons

" substantially affected " by AHCA ' s existing

rules.

9 2 . Standing is not an issue in this proceeding.

ORDER

Based on the foregoing Findings of Fa ct and Conclusions of

Law, it is ORDERED that :

A. T he Petitioner Hospitals have not proven that the Agency

for Health Care Administration has made or is enforcing a

statement that should have been adopted as a rule , but was not.

B. The Petitioner Hospi tals have not proven that the

handbook provisions adopted by the Agency for Health Care

Administration, rules 59G - 4.160(2) and 59G - 5.020, are invalid due

to exceeding or contravening the rulemaking authority granted the

Agency.

C. T he Petitioner Hospital s have not proven that the

handbook provisions adopted by the Agency for Health Care

Administration , r ules 59G - 4.160(2) and 59G - 5.020 , are invalid due

to vagueness.

D . The Division of Administrative Hearings reserves

jurisdiction to determine if the Agen cy for Health Care

Administration is entitled to an award of reasonable costs and

reasonable attorney ' s fees, and, if so, how much.

E . The Amended Petition is denied.

D ONE AND ORDERED this 20th day of April , 2015 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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

Division of Administrative Hearings

this 20th day of April , 2015 .

ENDNOTE S

1/ Section 120.52 (16), Fla. Stat. (2014).

2/ All references to the Florida Statutes are to the 2014

codification.

3/ This issue is gleaned from the Petitioners ' arguments and

statements that fulfill the requirement of section 120.56(1)(b)

that rule challenges " must state with particularity the provisions

alleged to be invalid. "

4 / This language appears in two agency rules. The first is

Florida Administrative Code Rule 59G - 4.160(2) , which adopts the

Florida Medicaid Hospital Services Coverage and Limitations

Handbook , 2011 , through an internet link. The challenged language

appears on page 2 - 7 beneath the heading , " Emergencies: Medicaid

for Alie n s . " The second is r ule 59G - 5.020 , which adopts the

Florida Medicaid Provider General Handbook, 2012, through an

internet link. The challenged language appears on page 3 - 22 under

the heading , " Emergency Medicaid for Aliens. "

5/ The criteria are found a t section 414.095(3) , Florida

Statutes .

6 / The report also found fault with the Department ' s eligibility

determinations. It said : " DCF was not able to support their

eligibility/immigration determinations as required by f ederal

regulations. This conditi on occurred because DCF : (1) did not

ensure that DCF employees conducted due diligence in determining

Medicaid eligibility and/or immigration status ; (2) did not

document ; and (3) did not maintain eligibility files with all the

required documentation. "

7 / P. Ex. 133.

8/ Mr. Shepherd ' s e - mail, like many Agency - generated documents,

refers to the probability of litigation involving determinations

and instructions about emergency services. He emphasizes the

importance of using caution in statements and wr itings. This is

not an indication of deceit or subterfuge. It is a prudent,

realistic observation about a likely development.

COPIES FURNISHED:

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Fraser Williams, General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care A dministration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Ernest Reddick, Chief

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Alexandra Nam

Department of State

R. A. Gr ay Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrat ive Procedure s Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Joseph M. Gold stein, Esquire

Shutts and Bowen, LLP

Suite 2100

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Daniel Elden Nordby, Esquire

Shutts and Bowen, LLP

Suite 804

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Joanne Ba rbara Erde, Esquire

Duane Morris LLP

Suite 3400

200 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

Harvey W. Gurland, Esquire

Duane Morris, LLP

Suite 3400

200 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

Donna Holshouser Stinson, Es quire

Duane Morris, LLP

Suite 3400

200 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

N OTICE 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 administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days o f 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 resid es or

as otherwise provided by law.