21-001789RU Positive Behavior Support vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Friday, July 23, 2021.

Summary: Pet.?s challenge to problems with new EVV system are not to ?agency statements?--to AHCA?s positions intended to apply as law. Instead, Pet. alleged AHCA believes past system problems are fixed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P OSITIVE B EHAVIOR S UPPORT ,

Petitioner ,

vs. Case No. 21 - 1789RU

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

F INAL O RDER OF D ISMISSAL

This case is before the undersigned on the Agency's Motion to Dismiss

Amended Petition, filed by Respondent on June 29, 2021, and Petitioner's

Response, filed July 2, 2021. Upon consideration of the motion and response,

as well as the arguments made in Respondent's prior motion to dismiss ,

Petitioner's response , and during the telephonic motion hearing held on

June 15, 2021, the undersigned is persuaded that the Amended Petition must

be dismissed with prejudice . Accordingly, this i s a Final Order of Dismissal.

A PPEARANCES

For Petitioner: William D . Hall, Esquire

John L. Wharton, Esquire

Dean Mead and Dunbar

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

For Respondent: Bradley S tephen Butler, Esquire

Shen a L. Grantham, Esquire

Timothy Patrick Sparks, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

S TATEMENT O F T HE I SSUE

At issue is whether Petitioner has met the pleading requirements in

section 120.56(4), Florida Statutes (2020), 1 to allege " agency statement s " that

meet the definition of a "rule . "

P RELIMINARY S TATEMENT

Positive Behavior Support (PBS or Petitioner) filed a Petition Challenging

Agency Statements as Unpromulgated Rules, with four exhibits incorporat ed

by reference (Original Petition), on June 4, 2021 . The case was assigned to

the undersigned on June 7, 2021 , and a telephonic scheduling conference was

set for June 8, 2021. On June 8, 2021, s hortly before the scheduling

conference, t he Agency for Health Care Administration (AHCA or

Respondent) filed the Agency's Motion to Dismiss .

During the scheduling conference, counsel for PBS stated that he intended

to initiate substantial discovery , necessitating a waive r of the time limits for

commencing the hearing . Alternatively, he suggested that the just - filed

Agency's Motion to Dismiss should be addressed and resolved first . Counsel

for AHCA was not in a position to agree to waive time limits, but ultimately

it was agreed that the Agency's Motion to Dismiss would be taken up and

resolved first , before proceeding to discovery and scheduling a final hearing .

Petitioner agreed to file its response to the motion by June 14, 2021 , and a

telephonic motion hearing was scheduled for June 15, 2021 .

Petitioner filed its response on June 11, 2021 , arguing that the Original

Petition was sufficient, but that if it were found to be deficient, Petitioner

should be given leave to amend. T he telephonic motion hearing went forward

as scheduled.

1 References to Florida Statutes are to the 2020 codification, unless otherwise provided.

During the t elephonic motion hearing, the undersigned ruled that the

Original Petition would be dismissed without prejudice, and detailed

deficiencies in the Original Petition and how those deficiencies should be

addressed in an amended petition. An abbreviated summar y of th e detailed

discussion and ruling made during the hearing w as set forth in an Order of

Dismissal Without Prejudice , issued June 16, 2021.

Petitioner timely filed its Amended Petition Challenging Agency

Statements as Unpromulgated Rules (Amended Pe tition) on June 25, 2021.

The same four exhibits from the Original Petition were adopted by reference

in the Amended Petition and are considered a part thereof . No additional

exhibits were attached.

On June 29, 2021, AHCA filed the Agency's Motion to Dism iss Amended

Petition. Petitioner filed its response on July 2, 2021, asserting that the

"Amended Petition has cured what the ALJ [Administrative Law Judge]

determined to be the infirmities in" the Original Petition. Unlike i ts response

to the Agency's Moti on to Dismiss the Original Petition, Petitioner did not

request leave to further amend the petition if the undersigned disagrees with

Petitioner's claim of cured infirmities. Neither party requested oral argument

on the Agency's Motion to Dismiss Amended P etition, and the undersigned

finds that this matter may be disposed of based on the written submissions

and the arguments presented during the June 15, 2021, motion hearing.

F INDINGS O F F ACT

Accepting the well - pled allegations of fact in the Amended Peti tion

(including its exhibits ) as true for purposes of this Order, the following

findings of fact are made:

1. PBS i s the largest provide r of Applied Behavioral Analysis services in

Florida. Its principal place of business is 7108 South Kanner Highway,

Stu art, Florida 34997.

2. AHCA is an executive agency of the State of Florida, headquartered at

the Fort Knox Executive Center, 2727 Mahan Drive, Building 3, Tallahassee,

Florida 32308.

3. AHCA has promulgated the Florida Medicaid Provider Reimbursement

Hand book, CMS - 1500 (Handbook) , which is adopted by reference in Florida

Administrative Code Rule 59G - 4.001 . See Original Pet., Ex. A, a dopted by

reference in Amended Pet., Ex. A . T he Handbook, some two inches thick

when printed out on p aper , contains requireme nts and instructions f or many

different types of Medicaid providers regarding completing, submitting , and

processing claims for reimbursement for services provided to Medicaid

recipients.

4. AHCA has also promulgated the Florida Medicaid Behavior Analysis

Services Coverage Policy (BA Coverage Policy). See Original Pet., Ex. B ,

adopted by reference in Amended Pet., Ex. B . 2 The BA Coverage Policy

contains eight pages of detailed criteria, addressing eligibility f or recipients

and for providers, coverage, exc lusions, documentation requirements ,

authorization requirements , reimbursement criteria, and review criteria for

BA services.

5. As set forth in the BA Coverage Policy, "[ b ] ehavior analysis ( BA )

services are highly structured interventions, strategies, and approaches

provided to decrease maladaptive behaviors and increase or reinforce

appropriate behaviors." BA Coverage Policy at 1. BA services "are considered

as either the treatment of choice or as an adjunct treatment modality for a

2 The BA Coverage Policy attached as Exhibit B is undated ; it is identified a s a "Draft Rule."

It ap pears that the Draft Rule is substantively the same as the current promulgated BA

Coverage Policy (October 2017), incorporated by reference in r ule 59G - 4.125 . See link

available at : https://www.flrules.org/Gateway/reference.asp?No=Ref - 08679 (last visite d

July 10, 2021). Out of caution, citations herein to specific pages in the BA Coverage Policy

are to the October 2017 version, which is the official promulgated version.

variety of conditions and disorders where maladaptive behaviors are part of

the recipient's clinical presentation, including behavioral manifestations of

diagnoses such as Autism Spectrum Disorder and other behavioral health

conditions." BA Coverage Policy at 6.

6. Electronic V isit Verification (EVV) is a system which serves to capture

relevant information regarding the provision of services. The information

captured by the EVV system includes: (a) that an approved provider provided

the agreed - upon point - of - care service; (b) the time that a visit began and

ended; (c) the individual who received the service; and (d) the date and

location of the provided service.

7. An EVV system has been in place and is required to be used by

Medicaid providers of home health services. See § 409. 9132, Fla. Stat., and

Fla. Admin. Code R. 59G - 4 . 132. The EVV system for home health services

began as a pilot project in one county ( Miami - Dade ) , and then was expanded

to statewide use. The EVV system for home health services was developed,

and is operated , by a procured vendor with wh ich AHCA has contracted.

§ 409.9132, Fla. Stat. Rule 59G - 4.132 requires that Medicaid providers of

home health services use the EVV system and submit claims to be

reimbursed for services rendered through the EVV system .

8. AHC A has taken steps to ex tend the usage of the same kind of EVV

system for BA services. AHCA procured the services of a vendor, identified by

Petitioner as "Tellus," to create and operate an EVV system for BA services. 3

9 . The EVV system for BA services i s c urrently operative in a "Pilot

Region" only . BA service providers within the Pilot Region are currently

3 That AHCA operates an EVV system for BA services through its procured vendor, Tel lus, is

set forth in Exhibit C, attached to the Original Petition and adopted by reference in the

Amended Petition. Exhibit C is Petitioner's notice letter to AHCA of its claims of unadopted

rules that it seeks to challenge in this proceeding, as a precurs or to seeking attorney's fees

pursuant to section 120.595(4). See Amended Pet. at 7, ¶ 20, and at 11 (Relief requested).

Exhibit C notifies AHCA that the alleged unadopted rules "relate to AHCA's Electronic Visit

Verification ("EVV") system and the actions of AHCA's EVV vendor/agent, Tellus" and are

based on "AHCA's implementation of the EVV system (through its procured vendor,

Tellus) [ . ] " Ex. C at 1, 3.

required to use the EVV system . It was not disclosed how long the EVV

system has been in use in the Pilot Region, or if its use by BA providers has

been required since inception (versus being phased in). The Pilot Region

covers Medicaid regions 9, 10, and 11, which includ e the following counties:

Indian River, Martin, Okeechobee, Palm Beach, St. Lucie, Broward, Miami -

Dade, and Monroe. PBS provides BA serv ices in the Pilot Region . A fair

inference from Petitioner's allegations of having called problems to AHCA's

attention for " the past several months" is that th e transition to use of the

EVV system for BA services in the Pilot Region is relatively recent . S ee

Amended Pet . at 5 , ¶ 15 .

10 . AHCA has announced a plan to expand this EVV system to cover all

BA services provide d statewide , " by potentially as early as sometime this

summer. " Amended Pet. at 3, ¶ 10.

11 . Recently , AHCA published Notice of Rule Develo pment to amend rule

59G - 4.132, which is now called "Home Health Electronic Visit Verification

Program." Amended Pet., Ex. D. According to the Notice, t he rule

amendment s will include chang ing the name of the rule to "Electronic Visit

Verification Program," and expand ing the scope of the rule to add that

providers of BA services (in addition to home health service providers) must

render services to recipients and submit claims in accordance with rule 59G -

4.132. After publication of the Notice, a rule develop ment workshop was held

on May 28, 2021.

1 2 . PBS has made clear, in two different parts of the Amended Petition,

that it is not challeng ing as an unadopted rule the requirement that BA

service providers use the EVV system. "PBS does not allege that the use of

EVV, in and of itself, to verify data relating to ABA [ 4 ] services constitutes an

unpromulgated rule. In fact, PBS is a strong proponent of a functional EVV

4 PBS describes its services as "applied behavioral analysis," for which it uses the acronym

"ABA." Ho wever, AHCA's rules, such as the BA Coverage Policy, use the term "behavior

analysis" to describe these services, for which AHCA uses the acronym "BA."

system." Amended Pet . at 4, ¶ 11. "[A ] s stated herein, PBS does not contest

that EVV use is req uired." Amended Pet . at 9, n. 5.

1 3 . Instead, PBS seeks to challenge certain aspects of AHCA's

implementation (through its procured vendor, Tellus) of the EVV system in

the Pilot Region. In particular, PBS a rticulates the objects of its unadopted

rule chal lenge as follows:

The Agency is operating pursuant to two generally

applicable policies which fit the legal definition of

unpromulgated rules. First, it is denying

reimbursement for clean claims for ABA services,

contrary to the Handbook's promulgated assu rance

that such clean claims will be paid. Second, the

Agency is denying ABA providers the ability to

resubmit these claims for service reimbursement,

despite the Handbook's promulgated allowance for

such resubmission.

Amended Pet . at 9, ¶ 26. The allegat ions and exhibit provisions related to

Petitioner's claim of two unadopted "policies" are examined in turn.

Denying reimbursement for clean claims

1 4 . The Handbook requires that providers submit a "clean claim" in order

to be reimbursed for services (inclu ding BA services) to Medicaid recipients .

See Original Pet., Ex. A , adopted by reference in Amended Pet ., Ex. A at 1 - 4.

Clean claims are those that:

• have been completed properly according to Medicaid billing guidelines;

• are accompanied by all necessary do cumentation required by federal

law, state law, or state administrative rule for payment; and

• can be processed and adjudicated without obtaining additional

information from the provider or from a third party.

15. According to the Handbook , " [a] clean cla im includes a claim with

errors originating in the claim system." Id. By this provision, the Handbook

codifies a recognition that errors will sometimes occur because of an issue

originating within the claim system itself.

1 6 . According to PBS, despite the Handbook's assurance that clean claims

will be paid, the AHCA/Tellus EVV system is rejecting clean claims that meet

the Handbook's requirements. PBS did not quantify or otherwise characterize

the frequency of rejected clean claims; it is unknown whether th is happens

occasionally, frequently, or all the time. Likewise, since PBS does not

describe the claims that are rejected, it cannot be determined whether there

is any common denominator characterizing the claims that it alleges are

clean claims suffering r ejection. H owever, for purposes of this Order, PBS's

allegations are accepted as true: that some indeterminate number of clean

claims are being rejected by the EVV s ys tem.

1 7 . According to PBS, " [ t ] he only even potential errors in these claims as

submitte d stem from issues with the EVV system itself." Amended Pet. at 4,

¶ 14. This scenario fall s squarely within the Handbook provision recognizing

th at system - caused errors can occur .

18. Not only does the Handbook codify the recognition that system errors

ca n occur, but the Handbook also codifies a process , with an extended

timeframe, for providers to fix claims denied due to system errors . Petitioner

does not mention the following provision in its Handbook exhibit : " System

Error [:] If a clean claim is denied due to a system error, a fiscal agent

processing error, or any error that is the fault of Medicaid or the fiscal agent,

an exception may be granted [to the time limit for filing claims] if the

provider submits another clean claim along with documentation of the denial

to the area Medicaid office no later than 12 months from the date of the

original denial. " Ex. A at 1 - 7 (emphasis added) .

19 . The se Handbook provision s should mean that, on a claim - by - claim

basis, within 12 months of an improper denial of a clean claim, PBS's (or any

other provider's) proof that it timely submitted a clean claim, but that an

EVV system error caused the claim to be denied, would result in a

determination that a "clean claim" was timely filed and it would be paid.

20 . As one example of an EVV system - created error, PBS alleges:

In some instances, the EVV system (or some party

who the Agency has granted access to it) [sic] is

modifying claims post - submission, therefore

rendering otherwise clean claims to be invalid. [ 5 ]

The o nly opportunity that providers such as PBS

ha ve to correct such an improper modification prior

to the reimbursement filing deadline is to

personally monitor these submissions and attempt

to manually restore them within the EVV system to

their original stat us.

Amended Pet . at 4 - 5, ¶ 14.

2 1. In the same paragraph, Petitioner add ed the following : " This goes far

beyond the process and puts providers such as PBS in jeopardy of having

claims improperly denied if they do not have the time or resources to monitor

and manually edit the system in this way. Remedying errors that the system

itself has caused falls outside of the Agency's promulgated requirements for

providers, and results in improper delay in reimbursement for their services. "

This allegation is not a ccepted as true ; it is contradicted by the "System

Error" Handbook provision quoted above in paragraph 18 . 6 W hile system

errors are not ideal, and putting providers in the position of having to remedy

5 In Exhibit C, attached to the Original Petition and adopted by reference in the Amended

Petition, Pe titioner was more direct, asserting that " either Tellus or the EVV system itself are

[sic] modifying claims post - submission, therefore rendering otherwise clean claim s invalid."

Ex. C at 4 (emphasis added) . Thus, Petitioner's reference in the Amended Petit ion to "some

party" is to Tellus, the vendor that developed and operates the EVV system.

6 Petitioner's allegations are properly considered together with the exhibits adopted by

reference in the Amended Petition. Where, as here, the exhibit contradicts t he allegation, the

exhibit controls. See, e.g. , Ginsberg v. Lennar Fla. Holdings, Inc. , 645 So. 2d 490, 494 (Fla. 3d

DCA 1994) ("When a party attaches exhibits to the complaint those exhibits become part of

the pleading and the court will review those exhi bits accordingly [in ruling on whether there

are pleading deficiencies]. È The conclusions of the pleader, as to the meaning of the exhibits

attached to the complaint, are not binding on the court. Exhibits attached to the complaint

are controlling, where the allegations of the complaint are contradicted by the exhibits, the

plain meaning of the exhibits will control.") (internal citations omitted); followed in Viverette

v. State, Dep't of Transp. , 227 So. 3d 1274, 1277 (Fla. 1st DCA 2017). The same princip les

apply in administrative proceedings. See Altee v. Duval Cty. Sch. Bd. , 990 So. 2d 1124, 1129

(Fla. 1st DCA 2008) (in ruling on a motion to dismiss, the administrative law judge consider s

facts drawn from the petition, any amendments, and any incorporat ed attachments).

system - caused errors is also no t ideal , the y are codifi ed as part of the claims

process in the promulgated Handbook.

2 2 . PBS alleges that it repeatedly made AHCA aware of th e problem it is

experiencing with having clean claims denied "throughout the past several

months , " but that up to this point, AHCA has no t remedied this improper

rejection of clean claims. PBS further alleges: "This is a generally occurring

issue" for BA service providers in the Pilot Region, and "there is nothing

specific to PBS that is causing its clean claims to be improperly denied."

Am ended Pet . at 5, ¶ 15.

2 3 . In new paragraph 16 in the Amended Petition , PBS added this

allegation:

Further, despite being made repeatedly aware of

this problem, the Agency contends that the EVV

system is functioning as intended. Although the

Agency concede s that some technical issues with the

system may have occurred previously, it incorrectly

believes that all such issues have been resolved. The

Agency has also taken the incorrect position that

any provider having problems with the EVV system

simply needs more training on how to use it.

However, the industry - wide problems described

herein stem from the system itself, not from a lack

of training. Further, the Agency is so confident in

the EVV system, as it currently exists, that the

Agency has announced its intention to roll that

system out statewide at some point this summer.

Accordingly, the only even possible inference that

can be drawn from the Agency's defense of the

system and plan to expand it is that the EVV

system as it is currently operating impleme nts,

interprets, or prescribes the Agency's policies,

procedures, and/or practice requirements for EVV

and claim reimbursement. (emphasis added).

Denying ability to resubmit claims

2 4 . The Handbook provides a 12 - month filing limit: "A clean claim for

serv ices rendered must be received by Medicaid or its fiscal agent no later

than 12 months from the date of service." Accordingly, the Handbook

encourages providers to submit claims immediately: "Medicaid providers

should [ 7 ] submit claims immediately after pro viding services so that any

problems with the claim can be corrected and the claim resubmitted before

the [12 - month] filing deadline." See Ex. A at 1 - 4.

2 5 . PBS characterized this Handbook provision as follows: "To the extent

that providers may make inadv ertent errors in submitting otherwise clean

claims [ i.e., claims that are not clean because of a provider - made error ] , the

Handbook creates a process to remedy that. È [I]f a provider such as PBS

promptly submits an ABA service reimbursement claim in the E VV system,

then the Handbook grants it the legal right to resubmit th at claim within a

specified time period to fix any errors that might prevent payment." Amended

Pet . at 6, ¶ 17. ( As set forth in the Handbook at 1 - 4 , the " specified time

period " for corre cting claims with provider - made errors is within 12 months

from the date of service .)

2 6 . PBS describe d the claim resubmittal problem as follows:

However, the Agency's EVV system is not allowing

PBS and other providers [in the Pilot Region] to

resubmit cla ims as permitted in the Handbook.

Instead, it is deeming any such resubmitted claims

to be duplicates of the originals, and then denying

payment for that reason. Further, the EVV system

has repeatedly gone down, been updated without

notice, and otherwise f ailed to process resubmitted

claims. Although technical glitches are generally

understandable, the Agency has been repeatedly

made aware of these problems, they have been

ongoing, and the resulting delays have caused

claims to be rejected without the oppor tunity to

amend. The Agency has failed to or refused to

7 PBS inaccurately characterized this Handbook suggestion as a requirement, alleging that

the Handbook requires that claims be submitted immediately so that problems can be

corrected and claims resubmitted before the filing deadline.

address this issue and that failure or refusal has

served to negate providers' resubmission rights as

promulgated in the Handbook.

Amended Pet . at 6 - 7, ¶ 18.

2 7 . As with the first alleged policy, t he following allegation was added

regarding the second alleged policy, in paragraph 19 of the Amended Petition:

Much like with the processing of claims, the Agency

incorrectly contends that the EVV system is not

preventing the resubmission and/or correctio n of

claims and that any even potential issues result

from a lack of training . Further, as stated, the

Agency is preparing to drastically expand the scope

of its EVV system despite being made repeatedly

aware of these problems. Therefore, the only

reasonab le inference is that the EVV system in its

present state implements, interprets, or prescribes

the Agency's policies, procedures, and/or practice

requirements for EVV and claim reimbursement.

(emphasis added).

What Petitioner d oes n ot a llege

2 8 . Petitione r does not allege that AHCA has stated or adopted , as its

position , that clean claims for BA services submitted through the EVV

system shall be denied. Petitioner does not allege that AHCA has stated or

adopted , as its position , that resubmittals of BA ser vice provider claims to

correct provider errors shall be rejected by the EVV system.

2 9 . Rather than alleging that these two problems are occurring because

AHCA intends for them to be occurring Ð because AHCA's position is that

clean claims must be denied an d resubmittals must be rejected Ð Petitioner's

new allegations in the Amended Petition admit that the opposite is true.

Petitioner admits by its own allegations that AHCA believes that the EVV

system h ad technical issues in the past, but that AHCA "incorrect ly believes

that all such issues have been resolved." Petitioner, itself, has alleged that

AHCA "incorrectly believes," "incorrectly contends," and "has taken the

incorrect position" that the EVV system is not improperly denying clean

claims or preventing resubmission of corrected claims, and that any problems

still being experienced are the result of user error, not caused by the EVV

system. Petitioner allege s the opposite of AHCA policy s tatements . 8

30 . Petitioner plainly disagrees with AHCA's "incorrect" belief s that EVV

technical issues have been corrected , bristling at the suggestion that the

problems are, in effect, user error that would be resolved by more training.

But accepting Petitioner's allegations as true that AHCA is mistaken in its

beliefs do es not transform those mistaken beliefs into statements of policy

that are the opposite of what AHCA mistakenly believes.

31 . By failing to allege that AHCA h as asserted the position s that clean

claims are to be denied and that attempts to resubmit claims are to be

rejected, Petitioner has failed to allege agency statements. As admitted at the

motion hearing and in its written response to the pending motion to dismiss,

and as acknowledged in the new paragraphs added to the Amended Petition ,

Petitioner canno t allege that AHCA intends for these problems with the EVV

system to occur . In fact, as Petitioner acknowledges, AHCA believes that the

problems are a thing of the past and have been fixed.

C ONCLUSIONS O F L AW

3 2 . The Division of Administrative Hearings has jurisdiction over the

subject matter and parties, pursuant to sections 120.56, 120.569, and 120.57,

Florida Statutes.

3 3 . Petitioner seeks to challenge alleged "agency statements" that it

contends are unadopted rules. The pleading requirements for pet itions

8 At the June 15, 2021, motion hearing, the undersigned addressed deficiencies in the

Original Petition to allege that the described EVV system problems were based on AHCA

statements of policy Ð that AHCA's position was that the EVV system must operate so that

c lean claims are denied and resubmitted claims are rejected. In response, counsel for

Petitioner stated he could not in good faith allege that AHCA was intentionally denying

payment of claims. But he added that he did not think allegations of intent were ne cessary,

and that it was enough to allege that this was the effect of the EVV system. At page 10 of its

response to the motion to dismiss the Amended Petition, Petitioner reiterated: "PBS does not

believe that the Agency is some sort of bad actor or is ope rating with nefarious intent."

initiating such challenges are set forth in s ection 120.56(4) (a), providing as

follows:

Any person substantially affected by an agency

statement that is an unadopted rule may seek an

administrative determination that the statement

violates s. 120.54 (1)(a). The petition shall include

the text of the statement or a description of the

statement and shall state facts sufficient to show

that the statement constitutes an unadopted rule.

3 4 . 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 provided by this

section as soon as feasible and practicable. "

3 5 . "Unadopted rule," as used in section 120.56(4)(a) , is defined in section

120.52(20) as " an agency statement that meets the definition of the term

' rule, ' but that has not been adopted pursuant to the requirements of

s. 120.54."

3 6 . Section 120.52(16) defines "rule" to mean "each agency statement of

gener al applicability that implements , interprets, or prescribes law or policy

or describes the procedure or practice requirements of an agency and includes

any form which imposes any requirement or solicits any information not

specifically required by statute or by an existing rule. The term also includes

the amendment or repeal of a rule. " The statutory definition provides several

exceptions, but none that is applicable here.

3 7 . Therefore, petitions invoking section 120.56(4) must allege facts that

are suffic ient to demonstrate, first, that the object of the challenge is "an

agency statement" and , second, that the agency statement meet s the

definition of a "rule" that has not been a dopted pursuant to section 120.54.

3 8 . This case presents a threshold issue th at has not often been in

question in unadopted rule challenges: whether the objects of the challenge

here are "agency statements."

3 9 . An agency statement can be in the form of a declaration, expression, or

communication . It does not need to be in writing. See Dep't of High. Saf. &

Motor Veh. v. Schluter , 705 So. 2d 81, 84 (Fla. 1st DCA 1997). To be a rule,

however, the statement or expression must be an "agency " statement, that is,

a statement that reflects the agency's position with regard to law or polic y.

Therefore, the offhand comment of an agency employee, without more, is not

an "agency statement"; rather, the statement must be "attributable to [the

agency head] or some duly authorized delegate." 9 Id. at 87 (Benton, J.,

concurring and dissenting) .

40 . Agency statements subject to challenge as unadopted rules are those

that reflect the agency's policy statements, in that they were "issued by the

agency head for implementation by subordinates with little or no room for

discretionary modification" and "we re applied and were intended to be applied

9 Even more attenuated than offhand statements of an agency employee are statements or

actions of a vendor or contractor. DOAH ALJs have consistently ruled that statements by an

entity contracting with an agency are not attri butable to the agency so as to support an

unadopted rule challenge to those statements, because of the lack of allegations or proof that

the agency adopted those statements or at least affirmatively reviewed and approved them.

See, e.g., Brooks v. Dep't of Health, Case No. 18 - 705RU (Final Order of Dismissal, Fla. DOAH

May 31, 2018) (unadopted rule challenge directed to various aspects of the impaired

practitioner program, including drug screening requirements, failed to allege agency

statements where the pr ogram was operated by Professionals Resource Network, Inc.,

pursuant to contract with the Department of Health, and Petitioner could not allege that the

Department adopted or specifically approved the challenged program requirements);

Carswell v. Fla. Stat e Univ. Schools, Inc., et al. , Case No. 13 - 3388RU (Final Order of

Dismissal, Fla. DOAH Nov. 26, 2013) (charter schoolÔs Student Code of Conduct could not be

challenged as an unadopted rule by attribution to Florida State University (FSU) through

the contra ct between the charter school and FSU as its sponsor; even though the charter

contract required that student dismissals occur in accordance with the policies and

procedures in the charter schoolÔs Student Code of Conduct, FSU could not be said to have

adop ted the Code as its own); Fla. AssÔn for Child Care Mgmt., Inc. v. Early Learning

Coalition of Duval, et al. , Case No. 08 - 1717RU (Fla. DOAH Aug. 26, 2008) (rejecting

attempted unadopted rule challenge to a quality rating improvement system developed by an

Early Learning Coalition (ELC), a non - profit corporation providing school readiness services

pursuant to a grant agreement with the Agency for Workforce Innovation (AWI); even

though the challenged system was part of the ELCÔs school readiness program whic h was

approved by AWI, the system itself was not reviewed and approved by AWI, and even if it

had been, review and approval of an ELCÔs school readiness program does not transform that

program into an agency statement subject to challenge as an unadopted r ule); cf. Vey v.

Bradford Union Guidance Clinic, Inc. , 399 So. 2d 1137, 1139 (Fla 1st DCA 1981) (holding

that a private entity that contracts to provide services for a state agency, for which the entity

receives public funds, does not thereby become a stat e agency itself).

with the force of a rule of law." Dep't of Admin. v. Stevens, 344 So. 2d 290,

296 (Fla. 1st DCA 1977) (emphasis added).

4 1 . A statement made in error does not, without more, constitute a n

agency statement subject to challenge as an unadopted rule . If, however, the

agency takes ownership of the statement, by knowingly allowing the

erroneous statement to operate as a rule , then the statement may become the

agency's position, despite its origin . See Filippi v. Dep't o f Educ. , Case No. 07 -

4783RU (Fla. DOAH June 20, 2008).

4 2 . In this case, Petitioner has alleged, in its Amended Petition and

exhibits adopted by reference, that the EVV system, as it is being operated by

AHCA's procured vendor Tellus, is improperly denying clean claims and

improperly rejecting resubmission of corrected claims. Petitioner has failed,

in two attempts, to allege that AHCA's position is that the EVV system must

be operate d so as to deny clean claims and reject resubmitted claims. To the

contrar y, Petitioner concedes that there have been technical problems with

the EVV system (such as the system going down and updating without

notice), which may be to blame for the results of which it complains. And in

the Amended Petition, the new allegations un de rmine, rather than support,

Petitioner's attempt to plead the existence and application of age ncy

statements , by admitting that AHCA believes the past technical problems

have all been fixed.

4 3 . Petitioner 's Amended Petition attempts to parlay its alleg ations of

technical problems into a predicate of AHCA policy , by alleging that it has

repeatedly informed AHCA of the EVV system problems " throughout the past

several months," but that AHCA has "failed to or refused to address [these

issues]." Amended Pet. at 5, ¶ 15, and 7, ¶ 18 (emphasis added). Petitioner 's

argument is , in effect, that technical problems with electronic systems

developed and operated b y contracted vendors become agency statements of

policy with the passage of time. Petitioner adds the po int that AHCA has

stated it plans to expand required use of the EVV system to all BA service

providers statewide. From these facts, Petitioner offers the conclusion that

the only reasonable inference is that the EVV system , in its current form,

complete wi th problems, is the equivalent of an agency statement.

4 4 . There are several problems with Petitioner's attempted leaps in logic .

The biggest problem stems from Petitioner's own alleg ations that while

AHCA has acknowledge d there were technical problems pr eviously , AHCA

" incorrectly " believes that the past technical problems have been fixed.

Petitioner's own allegations refute any suggestion that AHCA has knowingly

allowed technical problems to continue unabated , or endorsed a flawed

system. 10 Having admitte d that AHCA believes the past technical problems

have been fixed, Petitioner saps any logic from its self - proclaimed "reasonable

inference" of n efarious intent by reason of AHCA 's plan t o expand the

require d use of the EVV system to BA providers statewide. In fact, Petitioner

admits the opposite is true: "PBS does not believe that the Agency is some

sort of bad actor or is operating with nefarious intent." Petitioner's Response

to Respondent's Motion to Dismiss Amended Petition at 1 0.

4 5 . The Amended Peti tion also suffers from another key inconsistency.

Petitioner repeatedly claims in the Amended Petition that it is not

10 Petitioner's allegations vacillate between conclusory (e.g., parroting the definition of a

"rule"), and contradictory. For example, in paragraph 18, Petitioner tempers its allegations to

only state that AHCA has " failed to or refused to " address the problems that Petitioner has

called to AHCA's attention, but by paragraph 24, the allegation became: "Further the Agency

has endorsed this flawed system by refusing to fix it and planning to expand it, despite

having knowledge of the problems described herein." As the more tempered allegation in

paragraph 18 implicitly concedes, to say that AHCA has "refused" to fix problems is flatly

inconsistent with the new allegations in paragraphs 16 and 19 that AHCA incorrectly

believes the problems have all been fixed. Thus, the most that Petitioner can fairly allege

(without contradicting itself) is that AHCA has failed to fix problems because AHCA

mistakenly believes they are already fixed. AHCA cannot be said to refuse to fix problems

that AHCA believ es do not exist. So too, Petitioner cannot fairly allege that AHCA has

endorsed a flawed system by planning to expand it, when Petitioner admits that AHCA

believes the past system flaws have been eliminated. In the ultimate example combining

both contradic tory and conclusory, Petitioner ends with this allegation: "Finally, the Agency

has manifestly adopted and endorsed the EVV system, as it is currently operating despite

the problems raised, showing that this system implements, interprets, and prescribes th e

Agency's current policy, procedures, and practice requirements in this area." Amended Pet.

at 9, ¶ 26. Petitioner's inability to meet the pleading requirements is clear from the strained

e ffort, so riddled with contradictions.

challenging as an unadopted rule the requirement that BA providers use the

EVV system. Yet many of the allegations are directed to the EVV system,

itself. Indeed, all of the alleged Disputed Issues of Material Fact are stated in

terms of whether the EVV system is doing or not doing certain things.

Amended Pet. at 10. Perhaps Petitioner intended to say that it does not

challenge a requirement to use a theoretical, utopian EVV system, but does

challenge the actual EVV system developed and operated by Tellus, because

it has allegedly been problem - ridden for the past several months. But

Petitioner's attempt to use section 120.56(4) as a vehicle t o push AHCA to fix

technical problems that AHCA believes are already fixed is also problem -

ridden.

4 6 . To illustrate the fallacy in Petitioner's claim that the problematic

results of the EVV system constitute agency statements that must be adopted

as rule s, consider what Petitioner's claim means: Petitioner is actually

suggesting that AHCA engage in rule promulgation to adopt in rule form its

alleged policies that clean claims submitted by BA providers shall be denied

and that resubmitted claims shall be r ejected. Yet Petitioner admits that

AHCA is not taking that position. Instead, the most Petitioner has alleged

and can allege is that AHCA is mistaken in its belief that the problems with

the EVV system have all been corrected. AHCA is not relying on the a lleged

statements (deny clean claims; reject resubmitted claims) now, by Petitioner's

own allegations. Perhaps AHCA is misinformed about whether its vendor's

operation of the EVV system continues to result in the specific problems

alleged by Petitioner. Th ese issues may be redressable in other ways, in other

forums 11 ; but Petitioner's own allegations establish that the objects of

Petitioner's challenge are not "agency statements."

11 In Petitioner's notice t o AHCA of its unadopted rule claims asserted in this proceeding,

Petitioner added the following: "Further, PBS wishes to provide AHCA notice that it is likely

to, at or around the same time as any unadopted rule challenge, seek other legal redress

relating to the AHCA/Tellus EVV system in other legally appropriate forums. Specifically,

PBS believes it is entitled to monetary damages relating to all clean claims it has submitted

which have been improperly denied." Ex. C at 5.

4 7 . In arguing that its Amended Petition should be accepted as

sufficiently pl ed, Petitioner contended that it has effectively distinguished a

case heavily relied on by AHCA, Aloha Utilities, Inc. v. Public Service

Commission , 723 So. 2d 919 (Fla. 1st DCA 1999). Petitioner is wrong.

4 8 . In Aloha , an amended petition challenged the Public Service

Commission's (PSC) reliance on "Commission audit procedures," without

describing or reciting the text of any of the individual statements challenged.

Indeed, the challenger admitted to not having seen or read the Commission

audit procedures. T he administrative law judge (ALJ) denied a motion

challenging the sufficiency of the amended petition. The parties proceed ed

with "extensive" discovery and a n evidentiary hearing. In the final order, the

ALJ determined that two specific Commission audit procedures proven at

hearing were unadopted rules, but that dozens of other Commission audit

procedures did not meet the definition of a "rule."

4 9 . On appeal, the court concluded that the "amended petition did not

meet threshold pleading requirements laid down by section 120.56(4)(a)" and

reversed the final order's invalidation of two audit procedures. Id . at 920. As

the court put it, the two invalidated procedures "were but two among dozens

of possible ' Commission audit procedures ' nebulously referenced i n the

amended petition." Id. at 921. The court went even further, by vacating the

ALJ's denial of the PSC's request for attorney's fees and costs. The court held

that "the amended petition wholly lacked legal merit," and remanded for

reconsideration of an award of attorney's fees under section 120.569(2)(c),

Florida Statutes (1997), now in section 120.569(2)(e). Id. at 920. (The Aloha

decision was before the adoption of section 120.595(4)(d), Florida Statutes,

specifically applicable to unadopted rule chall enges . )

50 . Petitioner argues that Aloha does not dictate dismissal of its Amended

Petition, because the allegations describing the challenged agency statements

there were much less detailed than those in the Amended Petition. Petitioner

is partially corr ect, in that unlike in Aloha , the Amended Petition described

what Petitioner is challenging as unadopted rules: the denial of clean claims

and the rejection of resubmitted claims. But the Amended Petition suffers

from a different deficiency not present in Aloha . Here, Petitioner failed to

allege "agency" statements, whereas in Aloha , the petition alleged that the

PSC relied on "Commission audit procedures," albeit that the specific

procedures challenged were not described. Moreover, unlike in Aloha , the

Ame nded Petition here contains allegations directly at odds with the pleading

requirement that the challenged statements are AHCA 's statements Ð

that they represent AHCA 's policies and positions and are intended by AHCA

to have the force and effect of law.

5 1 . The court in Aloha made clear that the "threshold pleading

requirements" unique to unadopted rule challenges should be met before the

challenger is permitted to engage in substantial discovery and be afforded an

evidentiary hearing , reversing the result t hat followed discovery and an

evidentiary hearing because the challenger failed to meet the threshold

pleading requirements . Aloha , 723 So. 2d at 920. Aloha plainly supports a

threshold determination of the sufficiency of pleading all elements of an

unadop ted rule challenge before the parties engage in extensive discovery.

5 2 . More recently, in P.F. - G. v. Department of Education, Division of

Vocational Rehabilitation , 252 So. 3d 304 (Fla. 5th DCA 2018), cited by

AHCA but not mentioned by Petitioner, the cou rt affirmed an ALJ's dismissal

of an initial petition challenging an alleged unadopted rule, with leave to

amend, followed by a final order of dismissal when an amended petition was

filed one day late. The court held that the ALJ properly dismissed the ini tial

petition because it failed to allege facts sufficient to establish the challenged

statements constitute unadopted rules: "Despite Appellant's assertion that

she alleged sufficient facts to challenge the unadopted rule, the original

petition was riddle d with conclusory statements, without any factual basis to

support her claims." Id. at 306. The court also held that the ALJ did not err

in dismissing the amended petition as untimely, and was free to dismiss it

with prejudice, having afforded petitioner o ne opportunity to amend as

required by section 120.569(2)(c). P.F. - G . supports the threshold

determinations and action taken here.

5 3 . Pet itioner's strain ed effort to fit its complaints within the framework

of an unadopted rule challenge is perhaps most ap parent in its attempt to

analogize its challenge to one recently decided and affirmed on appeal ,

Florida Quarter Horse Racing Association, Inc. v. Department of Business and

Professional Regulation , Division of Pari - Mutuel Wagering , Case No. 11 -

5796RU (Fla . DOAH M a y 6, 201 3 ) , affirmed , 133 So. 3d 1118 (Fla. 1st DCA

2014). There, Administrative Law Judge John Van Laningham determined

that the DivisionÔs decision to issue an annual operating license to Gretna

Racing, authorizing pari - mutuel wagering on " Gret na - style barrel match

racing , " was an agency statement of policy that was an unadopted rule .

5 4 . Judge V an L aningham 's order set forth the requirements for an

u nadopted rule challenge, similar to those stated here. As for the Ñagency

statementÒ requiremen t, he repeated that "to be a rule, È the statement or

expression must be an ' agency statement, ' that is, a statement which

reflects the agency's position with regard to law or policy. " Florida Quarter

Horse Racing , Case No. 11 - 5796RU at 32 - 33, ¶ 57. As app lied to those facts,

there was no question that the Division intended to approve barrel match

racing by its decision to issue the license. The Division did not argue

otherwise. Instead, the Division argued that its decision to approve barrel

match racing w as a direct application of the statute to the facts.

Alternatively, it argued that its licensing decision approv ing barrel match

racing for Gretna Racing was a matter between the agency and licensee.

Judge Van Laningham rejected both arguments. He determin ed that t he

Division had, by its decision, adopted a new interpretation of the law to

extend allowable pari - mutuel wagering on quarter horse racing to include

barrel match racing . Further , he de termined that the decision to issue the

license approving barr el match racing was a statement of general

applicability because the Division 's new interpretation of allowable pari -

mutuel wagering on horseracing would have to be applied to all other

applicants seeking the same extended authority .

5 5 . In its response t o the motion to dismiss the Amended Petition,

Pet itioner offered a false analogy in an attempt to suggest that the Florida

Quarter Horse decision supports its unadopted rule challenge here. Pet itioner

suggested the decision would apply equally if the Divis ion had mistakenly

issued a license approving barrel racing, but then failed to act to revoke the

license upon realizing its mistake ; Petitioner then suggested this was similar

to what it has alleged. Petitioner conceded that the comparison was not

Ñapples to apples.Ò In fact, a more apt description would be apples to dentures

made for someone elseÔs mouth: the scenario suggested by Petitioner neither

fits the Florida Quarter Horse decision nor provid es fitting support for

Petitioner ' s allegations. Prominen t in the Florida Quarter H orse decision was

the fact that the Division intended to approve barrel match racing by

its decision to issue the license : " [T] he Division's decision to permit gambling

on [barrel match racing] was not a mistake È . Rather, this w as an

intentional, knowing, and informed decision È ." Florida Quarter Horse , Case

No. 11 - 5796RU at 72, ¶ 134. Here, Petitioner has not alleged that AHCA

intends for the EVV system to deny clean claims or reject resubmitted claims;

Petitioner has alleged t he opposite: AHCA believes these problems occurred

in the past due to technical problems and have been fixed. The Florida

Quarter Horse decision supports the analysis here.

5 6 . Moving beyond decisions addressing unadopted rule challenges,

Petitioner mispla ces reliance on c ase law providing that in ruling on a motion

to dismiss, all well - pled allegations of fact and reasonable inferences

there from must be accepted as true. The reasonable inferences t o be ac cepted

as true are those arising from well - pled alleg ations of fact, not Petitioner's

own suggestion of a " r easonable inference ." The self - styled "reasonable

inference " offered up by Petitioner in its Amended Petition does not flow from

the well - pled allegations of fact . Instead, it is an unreasonable infere nce,

inconsistent with Petitioner's allegations of fact , and rejected for that reason .

5 7 . Petitioner also argues for application of a pr inciple borrowed from in

inapposite contexts that "intent" is a matter of ultimate fact to be resolved by

the factfinde r only after an evidentiary hearing. That principle was stated in

S.T.N. v. State , 474 So. 2d 884, 885 - 886 (Fla. 4th DCA 1985), in which a

convicted defendant claimed on appeal that his motion to dismiss before trial

should have been granted , where the mot ion had argued there would be no

evidence to prove felonious intent, an element of the crime charged . See also

State v. Garantiva , 603 So. 2d 135 (Fla. 3d DCA 1992), following S.T.N. (issue

of knowledge and intent, as part of the crime charged in the infor mation, is

an ultimate question of fact). Other equally inapposite cases address the

propriety of granting summary judgment on discrimination complaints in

which discriminatory intent is alleged, but may or may not be proven by

circumstantial evidence. See , e.g., Zahn v. City of San Diego , 2007 WL

9734495 (S.D. Cal. 2007). The issue here is whether the Amended Petition

alleges "agency" statements , to meet the threshold pleading requirement for

an unadopted rule challenge. No case offered by Petitioner addr esses the

sufficiency of pleading intent as a threshold pleading requirement . 12

12 At the June 15, 2021, motion h earing, Petitioner asked to brief the issue of whether it had

to allege AHCA intended for the EVV system to deny clean claims and reject resubmittals.

Petitioner argued that cases like State Department of Administration, Division of Personnel

v. Harvey , 35 6 So. 2d 323 (Fla. 1st DCA 1977), stood for the proposition that it was enough to

allege that the effect of the EVV system was to deny clean claims and reject resubmittals. As

the undersigned noted then, in Harvey , as is true in many unadopted rule challen ges, there

was no question that the agency adopted the statements at issue. The court in Harvey

addressed w hether an admitted agency statement met the definition of a rule , holding:

"Whether an agency statement is a rule turns on the effect of the statemen t, no on the

agency's characterization of the statement by some appellation other than 'rule.'" Id. at 325.

In other words, an agency cannot avoid promulgating its policy statements that are intended

to have the effect of rules by calling the m something ot her than rules. Petitioner had the

chance to brief this issue i n responding to the motion to dismiss its Amended Petition , but

offer ed no authority for its original view that it need not allege AHCA intends for the claimed

policies to be applied as law . In stead, Petitioner shifted to argue , unpersuasively , that

consideration of intent should be deferred until after it engages in substantial discovery and

after an evidentiary final hearing. To get there, Petitioner must first meet the "threshold

pleading req uirements" in section 120.56(4). See Aloha , 723 So. 2d at 920.

5 8 . There are additional pleading problems with the Amended Petition,

but they are subsidiary to the primary pleading failure : that the well - pled

allegations of fact themselves establish that the objects of Petitioner's

challenge are not "agency" statements. The additional pleading problems are

noted below for completeness, having been raised in the Agency's Motion to

Dismiss Amended Petition.

5 9 . The Amended Petition contains o nly conclusory allegations as to the

"general applicability" element. AHCA noted as much, arguing that

Petitioner only asserts the conclusion that the same problems it has

experienced with attempted claims submittal and resubmittal have also been

experienc ed by similarly - situated BA providers in the Pilot Region. No facts

are set forth to support these conclusory allegations. AHCA pointed out that

there are no co - petitioners , which is obviously true . W hile the undersigned

agrees with Petitioner's response t hat there is no such requirement in order

to assert "general applicability , " the absence of other similarly - situated BA

providers or provider - representing organizations is a point of emphasis that

underscores the lack of factual detail in the conclusory al legations.

60 . "Sufficient facts," not just conclusory allegations, are required to show

th at the challenged statements are statements of general applicability. 13

13 Petitioner made a sweeping and incorrect statement in its response, claiming the

undersigned rejected AHCA's argument that the Original Petition "should be dismissed for

lack of detail," and characterizing AHCA's argument directed to the "general applicability"

allegations as an "already - rejected request for additional specificity." See July 2, 2021,

Response at 3, 11. To the contrary, the undersigned only disagreed with AHCA's argument

that t he Original Petition did not adequately describe the challenged statements because it

failed to identify the specific clean claims and attempted resubmittals that were rejected by

the EVV system. The undersigned summarized this ruling in the Order of Dismi ssal Without

Prejudice, ruling that the failure to allege "agency statements" was a pleading deficiency that

"would not be cured by detailing specific claims," and referring generally to the discussion

during the motion hearing describing how the pleading deficiencies could be addressed, i.e.,

by alleging that AHCA has asserted as its position that clean claims are to be denied and

resubmitted claims rejected. Notably, AHCA did not raise in its motion to dismiss the

Original Petition, and the undersigned di d not address, the issue of whether the allegations

regarding "general applicability" were sufficient or conclusory. But AHCA raised this point in

its motion to dismiss the Amended Petition; Petitioner responded and did not request leave

to further amend t o provide facts underlying its conclusory allegations.

See P.F. - G , 252 So. 3d at 306 (unadopted rule challenge petition was properly

dismissed wher e the petition "was riddled with conclusory statements,

without any factual basis È Appellant failed to allege facts to establish that

the challenged statements constitute unadopted rules."). Not only are

Petitioner's allegations of general applicability c onclusory, the context in

which they are made raises concerns about whether such facts are or could be

known to Petitioner. Petitioner's complaints are with the actions taken by t he

EVV system in response to individual claims submitted by Petitioner, or

in dividual claims that P etitioner attempt ed to resubmit to correct errors . As

to the first alleged problem (denial of clean claims), Petitioner has allege d

that the claims it submit ted a re "clean claims." T o make this allegation,

Petitioner necessarily asses sed its claims pursuant to var ious criteria,

including eligibility of the recipient, services authorized, and services

provided, among other things. These are case - specific, claim - specific,

Medicaid recipient - specific criteria. As such, Petitioner's failur e to articulate

facts underlying its conclusory allegations that other providers are similarly

situated and are experiencing the same issues is more than just oversight.

Petitioner cannot make these judgments as to other providers without being

able to ass ess whether the claims submitted by other providers a re "clean

claims." So too, for attempted resubmittals to correct provider errors,

Petitioner cannot make the judgment that the attempted resubmittals by

other providers correct errors to turn the claims into clean claims that should

not be rejected. But it would be a violation of patient privacy laws for

Petitioner to assess other providers' claims to know they are "clean claims."

As AHCA argues, the lack of factual allegations underlying these conclusory

claims is more than just a cosmetic lack of detail; it is a real problem. The

Amended Petition's allegations of "general applicability" are inadequate.

6 1 . AHCA has also argued in its motions to dismiss that Petitioner's claim

is actually a contractual ma tter , 14 i.e., seeking relief for the improper denial

of individual claims for reimbursement for BA services provided to Medicaid

recipients. Petitioner's notice letter to AHCA (Exhibit C) lends credence to

this view. In addition, a phrase added by Petitione r in the Amended

Petition's request for relief adds further credence to AHCA's view .

6 2 . The only remedy available in an unadopted rule challenge is a

declaration that the challenged statement is an unadopted rule that violates

section 120.54(1)(a). From t hat point forward, the agency must discontinue

reliance on the unadopted rule as a basis for agency action. § 120.56(4)(d),

Fla. Stat. In the Original Petition, the request for relief was for entry of a

final order "determining that the agency statements d escribed herein are

invalid, unpromulgated rules and directing the Agency to immediately cease

reliance on them." In addition, Petitioner asked that jurisdiction be reserved

to address its entitlement to attorney's fees and costs pursuant to section

120.59 5(4) and the notice letter attached as Exhibit C .

6 3 . In its Amended Petition, Petitioner requested expanded relief , as

follows :

Accordingly, the Agency must "immediate ly

discontinue all reliance upon " these unadopted

rules and take all necessary steps to ensure that

PBS' promulgated rights discussed herein are given

full effect . See § 120.56(4)(e), Fla. Stat.

Amended Pet. at 10, ¶ 27 ( emphasis added ). Although Petitioner cites section

120.56(4)(e) to support this requested relief, onl y the language that Petitioner

put in quot ation marks appears in section 120.56(4)(e). The italicized

14 Petitioner rather coyly argues i n its response that it can avoid addressing this argument

because it did not allege in the Amended Petition that it has a Medicaid provider contract

with AHCA. But AHCA cited the statute providing , as a matter of law , that the relationship

between AHCA and Medicaid providers is a voluntary contractual relationship. See

§ 409. 907 , Fla. Stat. Petitioner does not refute AHCA's argument that DOAH would not have

jurisdict ion to adjudicate contract claims , if this case had been presented as such.

language in th e above quote from paragraph 27 of the Amended Petition

e xceeds the scope of relief available in an unadopted rule challenge. 15

6 4 . In short, whether considere d a contractual claim to be asserted in a

different forum or an action to adjudicate entitlement to payment on a claim -

by - claim basis, the gravamen of Petitioner's complaints is that, as a Medicaid

provider of BA services, it has individual claims that it believes should be

reimbursed, but they have been denied, claim by claim, by the EVV system.

An unadopted rule challenge is plainly not an action to adjudicate individual

claims .

6 5 . Viewed as an inartful attempt to present individual claims for

adjudicat ion, the Amended Petition can be disposed of on the basis of the

following sentiment expressed in Environmental Trust v. State, Department

of Environ mental Protection , 714 So. 2d 493 , 498 (Fla. 1st DCA 1998):

A n agency statement explaining how an existing

rule of general applicability will be applied in a

particular set of facts is not itself a rule. If that

were true, the agency would be forced to adopt a

rule for every possible variation on a theme, and

private en tities could continuously attack the

gover nment for its failure to have a rule that

precisely addresses the facts at issue. Instead,

these matters are left for the adjudication process

under section 120.57, Florida Statutes.

6 6 . Equally untenable would be to allow private entities to utilize the

unadopted rule challenge process, with its attendant provision for attorney's

fees, to attack government for technical errors arising during a transition to a

15 In Petitioner's response to the m otion to d ismiss the Amended Petition, it disclaimed any

intent to expand its request for relief and inaccurately claimed that all it asked for i n

paragraph 27 was that AHCA discontinue reliance upon the alleged unadopted rules.

Without actually addressing, much less explaining, why it added the italicized phrase,

Petitioner argued that it is entitled to enforce compliance with AHCA's promulgated r ules.

"Specifically, as promised in the Handbook, the Agency must ensure that the EVV system

pays clean claims and allows, when necessary and applicable, for resubmission." Pet. Resp.

at 11. Although Petitioner might be entitled to enforce compliance with AHCA's promulgated

rules in a different kind of proceeding, but requiring an agency to take action in compliance

with its adopted rules is not an available remedy in a section 120.56(4) proceeding.

new electronic system developed and operated by a vendor. No doubt such

errors are frustrating to Petitioner and interfere with the smooth operations

of its business. But system errors are part of the promulgated claim process,

subject to a promulgated resolution process, and should be dealt with

accordingly, by seeking the allowable relief as to the improperly denied

claims.

O RDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that the Amended Petition Challenging Statements as

Unpromulgated Rules is DISMISSED, with prejudice.

D ONE A ND O RDERED this 23rd day of July , 2 021 , in Tallahassee, Leon

County, Florida.

S

E LIZABETH W. M CARTHUR

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administr ative Hearings

this 23rd day of July , 2021 .

C OPIES F URNISHED :

William D. Hall, Esquire James D. Varnado, General Counsel

Dean Mead and Dunbar Agency for Health Care A dministration

106 East College Avenue , Suite 1200 2727 Mahan Drive, M ail S top 3

Tallahassee, Florida 32301 Tallahassee, Florida 32308

Bradley Stephen Butler, Esquire Shena L. Grantham, Esquire

Agency for Health C are Administration Agency for Health Care Administration

2727 Mah an Dr ive, Mail Stop 3 Building 3, Room 3407B

Tallahassee, Florida 32308 2727 Mahan Drive

Tallahassee, Florida 32308

Timothy Patrick Sparks, Esquire

Agency for Health C are Administration John L. Wharton, Esquire

2727 Mahan Drive , Mail Stop 3 Dean Mead and Dunbar

Tallahassee, Florida 32308 106 East College Avenue , Suite 1200

Tallahassee, Florida 32301

Thomas M. Hoeler, Esquire

Agency for Health Care Administration Simone Marstiller, Secretary

2727 Mahan D rive, Mail Stop 3 Agency for Health Care Administration

Tallahassee, Florida 32308 2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

Ken Plante, Coordinator

Joint Admin istrative Proce d u re s Anya Grosenbaugh , Program

Committee Administrator

Room 680, Pepper Building Margaret Swain

111 West Madison Street Florida A dministrative Code & Register

Tallahassee, Florida 32399 - 1400 Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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

review pur suant 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 Administr ative Hearings within 30 days of

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

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintains its head quarters

or where a party resides or as otherwise provided by law.