15-003735RU A. R., L. R., A. S., And Y. S. vs. The Florida Department Of Health, State Of Florida Status: Closed DOAH Final Order on Tuesday, September 22, 2015.

Summary: The Department's Clinical Eligibility Screening Guide (Version 12), constitutes an unadopted rule whose existence violates section 120.54(1)(a), Florida Statutes, because the statement has not been adopted through formal rulemaking.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A. R., A. S., Y. S., D. S., AND

Q. J.,

Petitioners,

vs. Case No. 15 - 3735RU

THE FLORIDA DEPARTMENT OF

HEALTH, STATE OF FLORIDA,

Respondent.

_______________________________/

FINAL O RDER

This Order is entered pursuant to section 120.5 6 ( 4 ), Florida

Statutes (201 5 ). 1/

APPEARANCES

For Petitioner s : Paolo G. Annino, Esquire

Justin Karpf, Certified Legal Intern

Steven Reardon, Qualified Repres entative

Megan Shoemaker, Qualified Representative

FSU College of Law

Public Interest Law Center

425 West Jefferson Street

Tallahassee, Flori da 32306 - 1601

Matthew W. Dietz, Esquire

Law Offices of Matthew W. Dietz, P.L.

2990 Southwest 35th Avenue

Miami, Florida 33133

For Respondent: Jay Patrick Reyn olds, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

Donna Eliza beth Blanton, Esquire

Angela D. Miles, Esquire

Radey Law Firm, P.A.

301 South Bronough Street, Suite 200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Children ' s Medical Services Network ( " CMSN " )

Clinical Eligibility Screening Guide (Version 12) constitutes an

unadopted rule whose existence violates section 120.54(1) ( a),

because the statement has not been adopted through formal

rulemaking procedures .

PRELIMINARY STATEMENT

On June 25, 2015, Petitioners A.R., L.R., A.S., and Y.S.

filed with the Division of Administrative Hearings ( " DOAH " ) their

Petition for Administrative Determination of Invalidity of Agency

Statement s . The petition seeks a ruling th at the document known

as " CMSN Clinical Eligibility Screening Guide (Version 12), " is

an unadopted rule. On June 30, 2015, the undersigned was

assigned t his case.

On July 1, 2015, a telephonic status conference was held

with counsel for the parties . Du ring the conference, good cause

was established to allow for the set ting of the final hearing

date more than 30 days after the assignment of this matter to the

undersigned. On July 2, 2015, the undersigned set this matter

for final hearing in Tallahassee, Florida, on August 14, 2015.

On July 21, 2015, a Motion to Amend Petition was filed to

add two Petitioners , D.S. and Q.J., to this proceeding . On

July 29, 2015, the undersigned entered an Order Granting Motion

to Amend Petition , and the Amended Petition for Administrative

Determination of Invalidity of Agency Statements was deemed filed

by Petitioners A.R., L.R., A.S., Y.S., D.S., and Q.J.

On August 11, 2015, Respondent Department of Health

( " Department " ) filed its Unopposed Motion to Cancel Hearing and

Order Parties to Submit Proposed Final Orders. In the motion,

the Department represented that the parties agreed to stipulated

facts and exhibits and that the issues to be resolved by the

undersigned in this unpromulgated rule challenge case are solely

le gal in nature . The Department requested the undersigned to

resolve their dispute without a factual evidentiary hearing and

enter a final order . On August 12, 2015, the undersigned granted

the Department ' s motion and directed the parties to file their

sti pulated facts, stipulated exhibits, and proposed final orders

by no later than 5:00 p.m., on August 24, 2015.

On August 18, 2015, the parties filed their stipulated facts

and joint exhibits . On August 24, 2015, the Department filed its

proposed f inal o rder. On August 25, 2015, Petitioners filed

their proposed f inal o rder . On August 26, 2015, Petitioners

filed their Unopposed Motion to Accept Late Filing, which the

undersigned granted on August 26, 2015. On September 18, 2015,

Petitioners filed Petit ioners' Motion to Remove L.R. from Pending

Case. On September 21, 2015, the undersigned entered an Order

granting the motion.

The parties ' proposed final orders have been considered in

the preparation of this Final Order. The parties ' stipulated

facts an d joint exhibits have been incorporated in this Final

Order to the extent relevant.

FINDING S OF FACT

Parties and Statutory Background

1. C M S N is a st a t e wide m a n a g e d c a r e s y st e m f or c hild re n

with sp e c i a l h e a lth ca r e n ee ds . CMSN is p ar t of the C hild re n ' s

M e di c a l S er v i ce s p r o g r a m e st a blish e d b y t he D e p a r tm e nt.

§§ 391.021 and 391.025, F l a . S t a t.

2. Pursuant to section 391.021(2), Florida Statutes:

" Children with special health care needs "

means those children younger than 21 years of

age who have chronic and serious physical,

development al , behavioral, or emotional

conditions and who require health care and

related services of a type or amount beyond

that which is generally required by children.

3. Pursuant to section 391.021(4):

" Eligible individual " mean s a child with a

special health care need or a female with a

high - risk pregnancy, who meets the financial

and medical eligibility standards established

in s. 391.029.

4. Section 391.029 p rovides as follows :

391.029 Program eligibility. --

(1) Eligibili ty for the Children ' s Medical

Services program is based on the diagnosis of

one or more chronic and serious medical

conditions and the family ' s need for

specialized services.

(2) The following individuals are eligible

to receive services through the prog ram:

(a) A high - risk pregnant female who is

enrolled in Medicaid.

(b) Children with serious special health

care needs from birth to 21 years of age who

are enrolled in Medicaid.

(c) Children with serious special health

care needs from birth to 19 y ears of age who

are enrolled in a program under Title XXI of

the Social Security Act.

(3) Subject to the availability of funds,

the following individuals may receive

services through the program:

(a) Children with serious special health

care needs fr om birth to 21 years of age who

do not qualify for Medicaid or Title XXI of

the Social Security Act but who are unable to

access, due to lack of providers or lack of

financial resources, specialized services

that are medically necessary or essential

family support services. Families shall

participate financially in the cost of care

based on a sliding fee scale established by

the department.

( b) Children with special health care needs

from birth to 21 years of age, as provided in

Title V of the Social Se curity Act.

(c) An infant who receives an award of

compensation under s. 766.31(1). The Florida

Birth - Related Neurological Injury

Compensation Association shall reimburse the

Children ' s Medical Services Network the

state ' s share of funding, which must

thereafter be used to obtain matching federal

funds under Title XXI of the Social Security

Act.

(4) Any child who has been provided with

surgical or medical care or treatment under

this act prior to being adopted and has

serious and chronic special heal th needs

shall continue to be eligible to be provided

with such care or treatment after his or her

adoption, regardless of the financial ability

of the persons adopting the child.

5 . M e di ca id is the m e d i ca l a ssist a n c e p r o g r a m th a t

p r ovid e s a c ce ss to h ea lth car e f or low - in c ome fa mili e s a nd

individu a ls. The A g e n c y f o r H e a lth C ar e Administ ra tion ( " AH C A " )

is re sponsible f o r a dminist e r ing the M e d i ca id p r o g r a m in F lo r id a .

§§ 409.90 1 ( 2 ) , 409.902, and 409.963, F l a . S t a t.

6 . P e tition er s ar e M e di ca i d - e li g ible m inor c hild re n who

h a ve b ee n e n r oll e d in the C M S N.

7 . I n 1993, the F lo r i d a L e g isl a tu r e p a ss e d l e g isl a tion

d ec l ar i n g its int e nt t h a t the M e di ca id p r o g r a m re qui r e , to t he

m a x imum e x t e n t p rac ti ca ble a nd p er mitt e d b y f e d e ra l l a w, th at a ll

M e di ca id r ec ipi e nts b e e n r oll e d i n a m a n a g e d c ar e p r o g ra m. This

int e nt l a n g u a g e w a s c odi f i ed in s ec tion 409.9121, F lo r ida

S t a tut e s, a nd h a s re m a in e d in e ff e c t a nd un c h a n g e d sin c e 1993.

8 . I n 2011, the F lo r ida L e g isl a tu r e cr e a t e d P ar t I V of

c h a pt e r 409, F lo r i d a S t a tut e s (c odi f i e d a s s ec tions 409.961

through 409.9841) , a nd di r ec t e d AH C A to cr e a te a st a t e wid e ,

int e g ra t e d m a n a g e d ca r e p r o g ra m f or a ll c o v ere d s er vi c e s u nd e r

the M e di ca id p r o g r a m, in c luding lo n g - t e rm car e s er vi c e s.

§ 409.964, F l a . S t a t.

9 . The st a t e wide M e d i ca id m a n a g e d c a r e p r o g r a m in c lud e s

the lon g - t e r m m a n a g e d car e p r o g ra m a nd the m a n a g e d m e di ca l

a ssist a n c e p r o g ra m. The l a w di rec t e d AH C A to b e g in

impl e m e nt a tion of the lon g - t e r m c a r e m a n a g e d ca r e p r o g r a m b y

J uly 1, 2012, with f ull impl e m e nt a tion in a ll r e gions of the

s t a te b y O c t o b e r 1, 2013. § 409.978, Fl a . St a t. B y J a nu a r y 1,

2013, AH C A w a s re qui re d to b e g in impl e m e nting the m a n a g e d m e di c a l

a ssis t a n c e p r og ra m, with f ull impl e m e nt a tion in a ll r e g ions of the

s t a te b y O c tob e r 1, 2014. § 409.971, F l a . S t a t.

10 . S er vi ce s in the M e di ca i d m a n a g e d c a r e p r o g r a m ar e

p r ovid e d b y e li g i ble pl a ns. § 409.966 ( 1 ) , F l a . S t a t . An

" eligible plan " means " a health insurer authorized under

chapter 624, an exclusive provider organization authorized

under chapter 627, a health main tenance organization authorized

under chapter 641, a provider service network authorized under

s. 409.912(2), or an accountable care organization authorized

under federal law. " § 409.962(6), Fla. Stat. For purposes of

the managed medical assistance progr am, the term " eligible plan "

also includes " the Children ' s Medical Services Network authorized

under chapter 391. " Id .

11. P u r su a nt to s ec tions 409.966 a nd 409.974 ( 1 ) , AH C A

s e l ec ts a limit e d numb e r of e li g i ble pl a ns to p ar ti c ip a te in the

M e di ca id p r o g r a m using invit a tions to n e g oti a t e . On c e s e l ec t e d,

the e li g ible pl a n b ec om e s a " m a n a g e d c a r e pl a n " in t he M e di ca id

p r og ra m. § 409.96 2 ( 9 ) , F l a . S t a t. ( d ef ini n g " m a n a g e d c a r e p l a n "

to m ea n " a n e li g ible pl a n und e r c ont r ac t with [ AH C A] to p r ovide

s er vi ce s in th e M e di ca id p r o g r a m " ) .

1 2 . M a n a g e d c ar e p l a ns in c l ude " sp ec i a l t y pl a ns " th a t s er ve

" M e di ca id r ec ipi e nts who m ee t sp ec i f i e d cr it er i a b a s e d on a g e ,

m e d i ca l c o n dition, or di a g nosis. " § 409.962 ( 14 ) , F l a . S t a t.

1 3 . AH C A is r e qui re d to e n t e r into a f iv e - y e a r c ont r a c t

with e ac h m a n a g e d ca r e pl an s e l ec t e d t h r o u g h the p r o c u re m e nt

p r o c e ss. § 40 9 .967 ( 1 ) , F l a . S t a t. The L e g isl a tu r e g r a nt ed AH C A

st a tuto r y a utho r it y to " e st a blish su c h c o nt rac t re qui r e m e nts a s

a r e n e c e ss a r y f o r the op era tion of t h e st a t e wi d e m a n a g e d c ar e

p r o g r a m. " § 409.967 ( 2 ) , F l a . S t a t. AH C A ' s c on t rac ts with the

m a n a g e d c ar e p l a ns must c ont a in the st a tuto r i l y re qui r e d

p r ovisi o ns outlin e d in s ec tion 409.967 ( 2 )( a ) through ( m ) , a s

w e ll a s " a n y oth e r p r ovisio n s [ AH C A] m a y d ee m n e c e ss a r y . "

§ 409.96 7 ( 2 ) , F l a . S t a t.

1 4 . P ar t I V of c h a pt e r 409 r e qui re s a ll M e di ca id r e c ipi e nts

t o e n r o l l in a m a n a g e d ca r e pl a n , unl e ss th e y a r e sp e c i f i ca l l y

e x e mpt e d. § 4 09.969, F l a . S t a t. T h e l a w r e qui re s M e di ca id

rec ipi e nts to h a v e a c hoi c e of a v a il a ble pl a ns , unl e s s the p l a n

is r e st r i c t e d b y c ont rac t to a sp e c i f ic popul a tion th a t do e s not

in c lude the r e c ipi e nt. § 4 0 9.969 ( 1 ) , F l a . S t a t.

1 5 . P u r su a nt to s ec tion 409.974 ( 4 ) , C M S N ' s p ar ti c i p a tion

in the M e di ca id m a n a g e d car e p r o g r a m " sh a ll b e p u r su a nt to a

si n g l e , s t a t e wide c ont r ac t with [ AH C A] th a t is not subj ec t to the

p r o c u re m e nt re qu i r e m e nts or re g ion a l pl a n n umb e r limits of this

s ec t i on. The [ C M S N] mu s t m ee t a ll oth e r pl a n r e qui r e m e nts f or the

m a n a g e d m e di ca l a ssist a n c e p r o g r a m. "

The Department ' s Contract with AHCA

1 6 . I n a cc o r d a n c e with s ec tion 409.974 ( 4 ) , the F lo r ida

D e p ar tm e nt of H ea lth, C hild re n ' s M e di ca l S er vi ce s, e nt ere d into

AH C A C ont rac t No. F P 0 3 1 ( " C ont rac t " ) to s er v e c hild re n with

sp ec i a l h e a lth car e n ee ds th r ou g h t h e C M S N P l a n. The Contract

and its attachmen ts , as referenced in the Contract , contain all

the terms and conditions agreed upon by the parties.

1 7 . S ec tion I I I o f Att ac hm e n t I to the C ont rac t a dd re s s e s

e li g ibili t y a nd e n r ollm e nt in the C M S N P l a n . Section III(B)2. o f

Attachment 1 to the Contract, p rovides as follows :

2. Enrollment in the CMSN Plan as a

Specialty Plan

a. Specialty Population Identification

( 1) The [ AH C A] sh a ll id e nti f y t h e sp ec i a l t y

popul a tion e li g ible f or e n r ollm en t in the

C M S N P l a n b a s e d on the ni g ht l y ( Mond a y

th r ou g h Fr i day ) e l ec t ro nic e li g ibili t y d a ta

fr om D O H.

( 2) The C M S N P l a n sh a ll e nsu r e th a t on l y the

f ollow i ng c hild re n ar e sub m itt e d to

[ AH C A] a s c hild re n with c h r onic c onditions:

(a ) C hild re n id e nti f i e d b y D OH a s h a vi n g m e t

the c lini ca l cr it er ia s pec i f i ed th r ou g h a n

[ AH C A ] - a pp r ov e d clinical s cree ni n g tool o r

h a ving m e t the c lini ca l cr it er ia f or

e n r ollm e nt in a noth e r C hild ren ' s M e d ica l

Ser vi ce s p ro g ra m p r ovid e d the [ A C HA] h a s

a pp r ov e d the enr ollm e nt cr it er ia a s

a pp r op r i a te f or enr ollm e nt in the C M S N P l a n.

(b) If a r ecipient is enrolled in Medicaid

under an SSI eligibility assistance category,

DOH shall ensure that the clinical screening

is still performed for enrollment in the CMSN

Plan. The clinical screening must be

completed in full and cannot be waived.

( 3) T he agency shall update FMMIS to

indicate recipient eligibility for the CMSN

Plan on the penultimate Saturday of each

month.

b. Plan - Specific Verification and

Eligibility

(1) The CMSN Plan shall have policies and

procedures, subject to [AHCA] approval, to

verify the eligibility criteria of each

enrolled recipient.

(a ) The C M S N P l a n sh a ll s u bmit po l i c i e s a nd

p r o ce du re s regar ding s cree ni n g f or c lini ca l

e li g ibili t y p r ior t o impl e m e nt a tion of su c h

poli c i e s a nd p roce du re s a nd an y c h an g e s in

the [ AH C A ] - a pp r ov e d c lini ca l scree ning tool.

( b) The DOH s ha ll submit its c lini ca l

s cree ni n g t o ol a nd referra l poli c i e s a nd

p r o ce du r e s f or re vi e w b y the [ AH C A] b y

A p r il 1 of eac h year . I f no c h ange s h a ve

b ee n m ad e to the scree ni n g tool o r the

referra l poli c i e s a nd p r oce d ure s, DOH sh a ll

in c lude a st ate m e nt to th a t effec t.

(2) Policies and procedures regarding

screening for clinical eligibility must

include:

(a) Timeframes for verification of clinical

eligibility criteria;

(b) Mechanisms for reporting the results of

the clinical eligibility screening to the

[AHCA];

(c) Mechanisms for submitting disenrollment

requests for enrollees that do not meet

specialty population eligibility criteria ;

and

(d) Such other verifications, protocols, or

mechanisms as may be required by the [AHCA]

to ensure enrolled recipients mee t defined

eligibility criteria.

The Department ' s CMSN Clinical Eligibility Screening Guide

( Version 12 )

1 8 . The subject of this proceeding is Joint Exhibit No. 5:

CMSN Clinical Eligibility Screeni ng Guide (Version 12) ( " Screening

Tool " ) . The D e p ar tm e nt c r ea t e d the Screening Tool to e nsu r e th a t

c hild re n e n r oll e d in the C M S N P l a n m ee t t he c lini ca l cr it e r ia f or

p a r ti c ip a tion in the pl a n.

19 . C M S N subm i tt e d the S c r ee ni n g Tool to AH C A f o r a pp r ov a l,

a nd it w a s a pp r ov e d f or use pu r su a nt to the C ont rac t.

2 0 . The Screening Tool became effective subsequent to the

effective date of Section III of Attachment 1 to the Contract.

2 1 . The Screening Tool does not reference the Contract, and

the Screening Tool is not part of the Contract.

2 2 . The D e p a r tm e nt b e g a n u sing the S c r ee ni n g Tool in

M a y 2015.

2 3 . P u r su a nt to the C ont rac t, a ll 77,990 c u rre nt

p ar ti c ip a nts a n d a ll pot e nti a l p ar ti c ip a n t s in t h e C M S N P l a n mu s t

be s cree n e d to d e t er mine th e ir c lini ca l e li g ibili t y f or the C M S N

P l a n using the S cree ni n g Tool.

2 4 . All P e tition er s in this p r o cee di n g h a v e b e e n s c r ee n e d

th r o u g h use of t h e S c r ee ni n g Tool . Respondent stipulates that

each Petitioner has sta nding to bring this proceeding.

2 5 . CMS N n urse c are c oordinators have called parents of

children who participate in the CMSN P lan and have asked those

parents the questions in the S creening T ool to determine their

CMSN eligibility.

2 6 . The Screening Tool is the primary screening tool used

to determine clinical eligibi lity , and the questions in the

Screening Tool are not to be altered or amended in any way by the

n urse c are c oordinators .

2 7 . In determining CMSN c linical e ligibility, a

" [p]ar ent/guardian must answer yes to all parts of question 3

(functional limitations and chronicity) . . . AND [a]

[p]arent/guardian must answer yes to all parts of at least one

other question (dependency or service usage and chronicity). "

2 8 . Following the screening of P etitioners, a CMSN n urse

c are c oordinator orally informed P etitione rs ' parents about their

child ' s continued eligibility based on the responses to the

S creening T ool.

29 . Since the implementation of the S creening T ool, at

least 5,922 children have been determined to be clinically

ineligible for the CMSN Managed Medical A ssistance specialty

plan.

3 0 . The S creening T ool does not contain any language that

instructs n urse c are c oordinators to orally inform the parents of

the option to hav e an additional screening tool.

3 1 . The S cree ni n g T ool h a s not b ee n a dopt e d b y the

D e p a r tm e nt a s a r ule pu r su a nt to se ction 120.54.

32. No evidence was presented that rulemaking is not

feasible or practica ble .

CONCLUSIONS OF LAW

3 3 . DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to section 120.56(4 ) , Florida

Statutes.

3 4 . Section 120.56(4)(a) authorizes any person who is

substantially affected by an agency statement to seek an

administrative determination that the statement is actually a

rule whose existence violates section 120.54(1)(a) because the

a gency has not formally adopted the statement. Section

120.54(1)(a) declares that " [r]ulemaking is not a matter of

agency discretion " and directs that " [e]ach agency statement

defined as a rule by s. 120.52 shall be adopted by the rulemaking

procedure prov ided by this section as soon as feasible and

practicable. "

35 . Section 120.52(16) defines the term " rule , " in

pertinent part, as :

each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

p rocedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by s tatute or by an

existing rule.

3 6 . To be a rule, a statement of general applicability must

operat e in the manner of a law. Thus, a n agency statement is

" generally applicable " if it is intended by its own effect to

create rights, or to require compliance, or otherwise to have the

direct and consistent effect of law. Coventry First, LLC v. Off .

of Ins . Reg . , 38 So. 3d 200 , 203 (Fla. 1st DCA 2010); Jenkins v.

State , 855 So. 2d 1219 , 1225 (Fla. 1st DCA 2003) .

37. Section 120.56(4)(c) authorizes the administrative law

judge ("ALJ") to enter a final order determining that all or part

of a challenged state ment violates section 120.54(1)(a). The ALJ

is not authorized to decide, however, whether the statement is an

invalid exercise of delegated legislative authority as defined in

section 120.52(8)(b) through (f). Thus, in a section 120.56(4)

proceeding, it is not necessary or even appropriate for the ALJ to

decide whether an unadopted rule exceeds the agency ' s grant of

rulemaking authority, for example, or whether it enlarges,

modifies, or contravenes the specific provisions of law

implemented, or is otherwi se " substantively " an invalid exercise

of delegated legislative authority.

3 8 . Section 120.56(4) is forward - looking in its approach.

It is designed to prevent future or recurring agency action based

on an unadopted rule, not to provide relief from final agency

action that has already occurred. Thus, if a violation is found,

the agency must, pursuant to section 120.56(4)(d), " immediately

discontinue all reliance upon the statement or any substantially -

similar statement as a basis for agency action. " See, e.g. , Ag.

for Health Care Admin. v. HHCI Ltd. , 865 So. 2d 593, 596 (Fla.

1st DCA 2004).

39. In Jenkins v. State , 855 So. 2d 1219 (Fla. 1st DCA

2003) , the Florida Department of Law Enforcement ' s ( " FDLE " )

certificate of accuracy ( " COA " ) form that contained standards for

the proper concentrations of alcohol breathalyzer testing

solutions was challenged as an unadopted rule. The court held

that the creation and use of the COA form was an unadopted rule

because it included definitive policies of general appli cation

utilized by FDLE in determining the accuracy of stock solutions

which, in turn, affect ed the rights of DUI defendants. Id . at

1225.

40 . In Dep artment of Bus iness Reg ulation v. Martin County

Liquors , 574 So. 2d 170 (Fla. 1st DCA 1991), the Departme nt of

Business Regulation, Division of Alcoholic Beverages and Tobacco

( " DABT " ), required applicants for an alcoholic beverage license to

complete an application, consisting of eight questions which could

be answered yes or no regarding the type of busines s premises, its

location and ownership. The application also required the

submission of information regarding any rental, lease, or sublease

agreements and documents to support the financial arrangements for

the premises at which the license would be util ized.

4 1 . Although a statute gave DABT the authority to

investigate applications both as to the qualifications of

applicants and as to the premises and location to be licensed,

there was no specific stat utory authority explicitly requiring an

applicant to provide right - of - occupancy information or submit

documentation supporting financial arrangements. Id . at 173.

Accordingly, the court held that DABT ' s requirement that an

applicant file right - of - occupancy information and submit

documentation verifying any financial arrangements met the

definition of a rule, and was illegal because it was not adopted

through formal rulemaking procedures. Id .

4 2 . In Dep artment of Rev enue v. Vanjaria Enters , 675 So. 2d

252 (Fla. 5th DCA 1996), the Department of Revenue ( " DOR " )

purported to subject a taxpayer to sales tax based on calculations

pursuant to a procedure set forth in its sale s and use tax

training manual. The court held that DOR ' s tax assessment

procedure was a " rule " because it was a " statement of general

ap plicability that implements, interprets, or prescribes law or

policy. " Id . at 255. Specifically, the court found that DOR ' s

tax assessment procedure created its entitlement to taxes while

adversely affecting property owners, with the training manual

bein g the sole guide for auditors in their assessment of multiple -

use properties. In determining exempt versus nonexempt uses of

multiple - use properties, DOR ' s auditors strictly complied with the

procedure set forth in the training manual for all audits

perfo rmed. Moreover, DOR auditors were not afforded any

discretion to take action outside the scope of the training

manual . Id .

4 3 . Turning to the instant case, the undisputed facts

demonstrate that the Screening Tool meets the definition of a

rule because i t is a statement of general applicability that

implements, interprets, or pr e scribes law or policy. Th e

undisputed facts demonstrate that the Department created the

Screening Tool to ensure that children enrolled in the CMSN Plan

meet the clinical criteri a for participation in the plan. The

Screening Tool sets forth specific criteria to determine

eligibility. The Screening Tool is the primary instrument used

to determine ongoing CMSN eligibility ; yet , it has not been

adopted through rulemaking procedures .

4 4 . A ll current and potential participants in the CMSN Plan

must be screened to determine their clinical eligibility for the

CMSN Plan using the Screening To o l . The questions in the

Screening Tool cannot be altered or amended in any way by the

n urse c a re c oordinators.

4 5 . Because the Screening Tool determines clinical

eligibility for all current and potential participants in the

CMSN Plan, the tool directly affects the rights of such persons.

4 6 . In its P roposed Final Order, t he Department does not

ar gue that the Screening Tool is not a rule . Nor does the

Department contend that rulemaking is not feasible or

practica b l e .

4 7 . Instead, the Department contends there is no need for

it to engage in rulemaking , because the Screening Tool is exempt

from the rulemaking requirements in c hapter 120.

4 8 . According to the Department , because the Contract is

exempt from rulemaking pursuant to section 409.961, and the

Contract requires the creation and use of an AHCA - approved

screening tool for determining Medicai d eligibility for the CMSN

Plan , it therefore follows that the Screening Tool is exempt from

rulemaking.

49 . The Department ' s reliance on section 409.961 is

misplaced. Section 409.961 provides as follows:

409.961 Statutory construction;

applicability ; rules . --

It is the intent of the Legislature that if

any conflict exists between the provisions

contained in this part and in other parts of

this chapter, the provisions in this part

control. Sections 409 . 961 - 409.985 apply only

to the Medicaid managed medical assistance

program and long - term care managed care

program, as provided in this part. The

agency shall adopt any rules necessary to

comply with or administer this part and all

rules necessary to comply with federal

requirements. In addition, the department

shall adopt and accept the transfer of any

rules necessary to carry out the department ' s

responsibilities for receiving and processing

Medicaid applications and determining

Medicaid eligibility and for ensuring

compliance with and administering this part,

as those rules relate to the department ' s

responsibilit ies, and any other provisions

related to the department's responsibility

for the determination of Medicaid

eligibility. Contracts with the agency and a

person or entity, including Medicaid

providers and managed care plans, necessary

to administer the Medicaid program are not

rules and a re not subject to chapter 120.

5 0 . Co ntrary to the Department ' s contention, the exemption

from rulemaking with regard to the C ontract itself does not

extend to statements of general applicability (which meet the

definition of a rule) required to be created by th e C ontract.

There is a distinction between a rule and a contract, which the

Legislature envisioned when it enacted section 409.961. 2/

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Children ' s Medical Services Network

( " CMSN " ) Clinical Eligibility Screening Guide (Version 12)

constitutes an unadopted rule whose existence violates

section 120.54(1) ( a), Flori da Statutes, because the statement has

not been adopted through formal rulemaking procedures.

Respondent, D epartment of Health , is hereby ordered to

immediately cease using the Screening Tool as a method of

determining eligibility.

DONE AND ORDERED this 2 2nd day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of September , 2015.

ENDNOTE S

1/ Unless otherwise indicated, all citations to the Florida

Statutes ar e to the 201 5 version.

2/ The Department ' s reliance on OBS Co. v. Pace Construction

Corp. , 558 So. 2d 404 (Fla. 1990) , and Management Computer

Controls, Inc. v. Charles Perry Construction , 743 So. 2d 627

(Fla. 1st DCA 1999), is misplaced. Neither case involved a

c hapter 120 proceeding. Moreover, the Contract in the instant

case does not describe the specific eligibility criteria or adopt

the specific eligibility criteria by reference. Likewise, the

Screening Tool does not reference the Contract. Indeed, the

S creening Tool had not been approved by AHCA when the Contract

became effective.

COPIES FURNISHED:

Paolo G. Annino, Esquire

Just in Karpf

S teven Reardon

Megan Sho emaker

FSU College of Law

Public Interest Law Center

425 West Jefferson Street

Tallahassee, F lorida 32306 - 1601

(eServed)

Matthew W. Dietz, Esquire

Law Offices of Matthew W. Dietz, P.L.

2990 Southwest 35th Avenue

Miami, Florida 33133

(eServed)

Jay Patrick Reynolds, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

(eServed)

Donna Elizabeth Blanton, Esquire

Angela D. Miles, Esquire

Radey Law Firm, P.A.

301 South Bronough Street , Suite 200

Tallahassee, Florida 32301

(eServed)

Shannon Revels, Agency Clerk

Department of He alth

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1703

(eServed)

Daniel Hernandez, Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

John H. Armstrong, M.D., F.A.C.S.

St ate Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A - 00

Tallahassee, Florida 32399 - 1701

(eServed)

Ernest Reddick, Chief

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Alexand ra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures

Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appella te

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 of rendition

of the order to be reviewed, and a copy of the notice,

accompa nied 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.