The purpose of the rules amendments is to update terminology, conform with statutory requirements, and update language regarding eligibility for services.

 

DEPARTMENT OF CHILDREN AND FAMILIES

Agency for Persons with Disabilities

RULE NOS.:RULE TITLES:

65G-4.014Eligibility for Services

65G-4.015Eligibility Criteria

65G-4.016Application Process

65G-4.017Establishing Eligibility

PURPOSE AND EFFECT: The purpose of the rules amendments is to update terminology, conform with statutory requirements, and update language regarding eligibility for services.

SUBJECT AREA TO BE ADDRESSED: The subject area to be addressed includes terminology, and eligibility for services.

RULEMAKING AUTHORITY: 393.065, 393.501

LAW IMPLEMENTED: 393.065

A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: October 10, 2018, 9:00 a.m.

PLACE: Agency for Persons with Disabilities, 4030 Esplanade Way, Room 301, Tallahassee, Florida 32399-0950.

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting: Lisa Kuhlman at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Lisa Kuhlman, Agency for Persons with Disabilities, 4030 Esplanade Way, Tallahassee, Florida 32399-0950, [phone], [e-mail].

 

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

 

Substantial rewording of Rule 65G-4.014, F.A.C. follows. See Florida Administrative Code for present text.

65G-4.014 Eligibility for Agency Services – Definitions.

(1) Agency Services include DD Waiver Services, Individual and Family Services, and Room and Board.

(2) DD Waiver means Home and Community-Based Services (HCBS) waiver authorized by 42 U.S.C. 1396n(c)(1) of the federal Social Security Act and Section 409.906, F.S., that provides a package of Medicaid-funded home and community-based supports and services to eligible persons with developmental disabilities who live at home or in a home-like setting.

(3) Eligibility Rules – Rules 65G-4.014 through 65G-4.017, F.A.C., inclusive, which apply to eligibility determinations for services provided through the Agency for Persons with Disabilities for individuals with developmental disabilities.

(4) Extended duration means that the condition can reasonably be expected to continue indefinitely into the future.

(5) Handicapping Conditions include ambulatory deficits, sensory deficits, chronic health problems, and behavior problems,

(6) Major Life Activities include self-care, understanding and use of language, learning, mobility, self-direction, and the capacity for independent living.

(7) Neurologically based means that the condition is not the result of physical impairment.

(8) Severe behavior disorder means behavior that is frequent, intense, and significantly impairs an individual’s functioning.

(9) Stereotyped and repetitive motor mannerisms are rhythmic ritualistic purposeless movements, including posturing, repetitive sounds or words, movement of objects as well as hand or finger flapping or twisting, or complex whole-body movements.

Rulemaking Authority 393.065, 393.501 FS. Law Implemented 393.065 FS. History–New 5-16-12.

 

65G-4.015 Eligibility Criteria.

(1) In order to be determined eligible for agency services the applicant must:

(a)(1) Be at least three years of age.

(b)(2) Be a resident of and domiciled in the state of Florida in accordance with Sections 393.064(14), 222.17(1) and (2), F.S. Domicile may not be established in Florida by a minor who has no parent domiciled in Florida, or by a minor who has no legal guardian domiciled in Florida, or by any alien not classified as a resident alien. Dependents of active duty military personnel stationed in the state of Florida are exempt from residency and domicile requirements.

(c)(3) Have a confirmed diagnosis of one of the following developmental disabilities that manifests before the age of 18, and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely, as defined in this these rules, Rules 65G-4.014, 4.015, 4.016 and 4.017, F.A.C.:

1.(a) Autism;

2.(b) Cerebral palsy;

3.(c) Mental retardation or Intellectual disability;

4.(d) Prader-Willi syndrome;

5.(e) Spina Bifida;

6.(f) Down Syndrome, or

7. Phelan-McDermid Syndrome, or

8.(g) Children between 3 and 5 years of age who are at high risk of later diagnosis of one of the disabilities listed above. Such high-risk children shall not be placed on the waiting list for waiver services until a confirmed diagnosis of a qualifying disability is given.

(2)(4) DD Waiver services are only available (conditioned upon the waiting list) to clients of the Agency persons who meet the eligibility requirements set forth in subsection (1) above and the requirements of 42 CFR §435.217(b)(1) for receiving home and community-based services. It is mandatory that the determination is made that without DD Waiver services these individuals would otherwise require the level of care furnished in a hospital, nursing facility home, or an Intermediate Care Facility for Individuals People with Intellectual Disabilities (referred to in the CFR as an “ICF/IICMR”). The Agency will document its findings for each client’s eligibility under the DD waiver using the iBudget Florida HCBS Waiver Eligibility Work Sheet, Form #_______,effective_________, incorporated by reference here, which may be found at _____________________ or http://apd.myflorida.com/ibudget/users.htm.  The specific level of care criteria for determining waiver eligibility are:

(a) The client’s primary disability is Intellectual Disability with an intelligence quotient (IQ) of 59 or less,

(b) The client’s primary disability is Intellectual Disability with an intelligence quotient (IQ) of 60 to 69 inclusive and the individual has at least one handicapping conditions, OR the client’s primary disability is Intellectual Disability with an intelligence quotient (IQ) of 60 to 69 inclusive and the client has severe functional limitations in at least three major life activities, or

(c) The client is eligible under the category of Autism, Cerebral Palsy, Down Syndrome, Prader-Willi Syndrome, Spina Bifida, or Phelan-McDermid Syndrome and the client has severe functional limitations in at least three major life activities.

(3) The Agency shall document major life activities and handicapping conditions utilizing the Questionnaire for Situational Information identified in Rule 65G-4.0213(18), F.A.C. or through evidence identified in adaptive tests listed in Rule 65G-4.017(3)(d), F.A.C.

Rulemaking Authority 393.065, 393.501 FS. Law Implemented 393.065 FS. History–New 5-16-12, Amended_____.

 

65G-4.016 Application Process.

(1) Application for services from the agency shall be made by submitting an application by hand delivery, U.S. Postal Service, or facsimile to the regional agency office in the service area where the applicant resides. The Application for Services (Form 10-007, 2007), is available on the agency website at www.APD.myflorida.com, http://www.apd.myflorida.com/customers/application/ or by contacting the agency. The application is available in English, Haitian Creole, and Spanish and is hereby incorporated by reference, http://www.flrules.org/Gateway/reference.asp?No=Ref-01203. and may be obtained at __________________.

(2) Upon receipt of a completed, signed, and dated Application for Services, the area agency regional office staff shall review the application and supporting documentation and, within 45 days for children under the age of 6 and 60 days for individuals 6 years of age and older, shall notify the applicant of the final determination of eligibility for agency services. If requests for collateral information or additional evaluations are necessary to determine eligibility, the time may be extended for no more than an additional ninety (90) days from the initial receipt of the completed, signed, and dated Application for Services.

(3) If an applicant is unable to produce an existing evaluation that establishes eligibility or if there is concern that the information provided is inaccurate, incorrect, or incomplete, the agency area regional office will be responsible for obtaining an evaluation to establish determine eligibility. Pursuant to Professional diagnoses under Rule 65G-4.017, F.A.C., the professional diagnosis must document all criteria for eligibility as set forth in the Eligibility Rules 65G-4.014-.017, F.A.C. The evaluation process includes only those assessments necessary to determine eligibility that were administered by a person qualified to administer the instrument(s).

(4) When the eligibility determination is complete, the regional office staff agency area office shall notify the applicant in writing within five (5) business days of the agency’s decision. If the applicant is determined ineligible for agency services, the regional office staff agency area office shall provide a Notice of Ineligibility for Services to the applicant, which shall notify the applicant of his or her right to an administrative hearing or judicial review pursuant to ss. 393.125, 120.569, and 120.57, F.S. of the right to appeal the decision in accordance with Chapter 120, F.S.

(5) If the applicant is determined to be ineligible to receive services from the agency, the regional office staff agency area office shall offer suggestions regarding other programs, agencies, or services for which the applicant may be eligible.

(6) If a category of covered conditions in this rule is not also covered by the state’s Medicaid developmental disabilities waiver (DD waiver) at the time an individual is determined to be eligible, those individuals will be placed on the waiting list and may be provided services funded through general revenue allocations or sources other than the DD Waiver.

Rulemaking Authority 393.065, 393.501 FS. Law Implemented 393.065 FS. History–New 5-16-12, Amended____.

 

65G-4.017 Establishing Eligibility.

(1) Establishing Eligibility – Autism.

(a) A diagnosis of autism, as defined by Rule 65G-4.014, F.A.C., may only be made by one or more of the following who has specific training and experience in making such diagnosis:

1.(a) A Florida-licensed psychiatrist;

2.(b) A Florida-licensed psychologist;

3.(c) A board-certified pediatric neurologist who is qualified by training and experience to make a diagnosis of autism;

4.(d) A board-certified developmental pediatrician, or

5.(e) Collateral information received from another state, which may be accepted only if the evaluator is licensed through the same credentials required for licensure in Florida for the professions listed in paragraph (1)(a), above.

(b) In order to qualify for eligibility, the condition must:

1. Be:

a. Pervasive, meaning always present and without interruption;

b. Neurologically based, meaning that the condition is not the result of physical impairment;

c. A developmental disability with age of onset during infancy or childhood;

2. Have an extended duration;

3. Cause severe learning disorders resulting in both severe communication disorders affecting both verbal and nonverbal skills, and severe behavior disorders.

4. Evidence at least six of the following twelve features from the following subparts (1)(b)4.a. and (1)(b)4.b, with at least one feature from subpart (1)(b)4.b:

a. Severe communication disorders, which may include:

i. A delay in, or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime),

ii. Stereotyped and repetitive use of language or idiosyncratic language,

iii. For those applicants with speech, marked impairment in the use of multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate social interaction,

iv. Failure to develop peer relationships appropriate to developmental level,

v. A lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, pointing out objects of interest, or achievements to others),

vi. Lack of social or emotional reciprocity,

vii. For those applicants with speech, marked impairment in the ability to initiate or sustain a conversation with others, or

viii Impaired imaginative ability evidenced by a lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level.

b. Severe behavior disorders, which may include:

i. Encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity, focus, or developmental level,

ii. Apparently inflexible adherence to specific, nonfunctional routines or rituals,

iii. Stereotyped and repetitive motor mannerisms, or

iv. Persistent preoccupation with parts of objects.

(2) Establishing Eligibility – Cerebral Palsy.

(a) Diagnosis is confirmed by written documentation from one or more of the following:

1.(a) A medical doctor;

2.(b) A doctor of osteopathy, or

3.(c) Medical records documenting a diagnosis of cerebral palsy before the age of 18.

(b) In order qualify for eligibility, the condition must:

1. Constitute a substantial handicap which is reasonably expected to continue indefinitely.

2. Consist of disabling symptoms of extended duration that result from damage to the developing brain during the prenatal period and characterized by paralysis, spasticity, or abnormal control of movement or posture, such as poor coordination or lack of balance, which is manifest prior to three years of age; or

3. Include the presence of other significant motor dysfunction appearing prior to age 18 due to perinatal or external events such as anoxia, oxygen deprivation, or traumatic brain injury.

(c) The condition does not include motor dysfunction caused by medical events, including stroke or progressive diseases such as muscular dystrophy.

(3) Establishing Eligibility – Mental Retardation or Intellectual Disability. To establish that an individual has intellectual disability mental retardation the following criteria shall be applied:

(a) A single test or subtest should not be used alone to determine eligibility. If a person has statistically significantly discrepancies between the Standard Index scores on different (statistically defined) scores on different scales of a test or tests, or a great deal of variability on subtest scores of an IQ test, or if no IQ score could be obtained due to the conditions manifested by the individual such as altered mental states, absence of cooperation, or other extenuating circumstances one during testing, the full-scale score (or absence of) may not indicate intellectual disability mental retardation and should not be relied on as a valid score. In that these instances, closer scrutiny is required to make an appropriate differential diagnosis. This may include a longitudinal review of school records, school placement, achievement scores, medical records, medication history, family history, behavior during testing, and the psychosocial situation at the time of testing, or interviews of individuals close to the applicant. Closer scrutiny must also be required when there is a great deal of variability between IQ scores on different IQ tests or different administrations of the same IQ test. Nothing here is intended to preclude clinical judgment from appropriately determining that a single full-scale IQ score of 70 or below, or two or more standard deviations below the mean, on an individually administered intelligence test is sufficient to establish eligibility.

(b) The performance measures for this category of adaptive functioning deficits must be validated by the professional judgment of a psychologist who is experienced in working with people who have intellectual disability retardation, who has specific training and validation in the assessment instrument that is used, and who is one of the following:

1. A Florida-licensed psychologist,

2. A Florida-licensed school psychologist,

3. A certified school psychologist.

(c) Any standardized test may be submitted as proof. However, the applicant must demonstrate that any test not presumptively accepted by the agency is valid. The following are presumptively accepted standardized tests of intelligence to establish eligibility for intellectual disability mental retardation:

1. Stanford-Binet Intelligence Test (all ages),

2. Wechsler Preschool and Primary Scale of Intelligence (under six years of age),

3. Differential Ability Scales – Preschool Edition (under six years of age),

4. Wechsler Intelligence Scale for Children (WISC) (children up to 15 years, 11 months),

5. Differential Ability Scales (children up to 15 years, 11 months),

6. Wechsler Adult Intelligence Scale (WAIS),

7. Test of Nonverbal Intelligence-3 (TONI-3),

8. Comprehensive Test of Nonverbal Intelligence-2 (C-TONI 2),

9. Universal Nonverbal Intelligence Test (UNIT),

10. Leiter International Performance Scale-Revised (Leiter-R).

(d) The following tests of adaptive functioning are presumptively accepted in the determination:

1. Vineland Adaptive Behavior Scales,

2. AAMR Adaptive Behavior Scale,

3. Adaptive Behavior Assessment System (ABAS),

4. Adaptive Behavior Evaluation Scale (ABES).

5. Scales of Independent Behavior-Revised

(e) In all cases, assessments or evaluations for eligibility should be obtained from appropriately licensed professionals with experience and training in the instruments and population for whom eligibility is to be determined.

(f) In order to qualify for eligibility, the condition must:

1. Exhibit significantly subaverage general intellectual functioning evidenced by an Intelligence Quotient (IQ) two or more standard deviations below the mean on an individually administered standardized intelligence test; and,

2. Exhibit significant deficits in adaptive functioning in one or more of the following areas:

a. Communication skills,

b. Self-care, home living,

c. Social and interpersonal skills,

d. Use of community resources and self-direction,

e. Functional academic skills,

f. Work, leisure, health and safety awareness and skills,

3. Manifest prior to age 18; and,

4. Constitute a substantial handicap which is reasonably expected to continue indefinitely.

(4) Establishing Eligibility – Prader-Willi Syndrome. Diagnosis is confirmed by written documentation from one or more of the following:

(a) A medical doctor;

(b) A doctor of osteopathy, or

(c) Medical records that document a diagnosis of Prader-Willi syndrome before the age of 18.

(5) Establishing Eligibility – Spina Bifida. Diagnosis is confirmed by written documentation from one or more of the following:

(a) A medical doctor;

(b) A doctor of osteopathy, or

(c) Medical records that document a diagnosis of spina bifida cystica or myelomeningocele before the age of 18.

(6) Establishing Eligibility – Down Syndrome.

(a) Evidence under this category requires medical records documenting a chromosome analysis (also referred to as a karyotype) finding the individual has an extra genetic material on their number 21 chromosome.

(b) In the absence of a chromosome analysis, a diagnosis of Down Syndrome can be accepted from a health care provider qualified to certify the diagnosis if the provider certifies the physical signs of the syndrome.  A diagnosis could also be verified from review of medical records that document a diagnosis of Down Syndrome before the age of 18, if the diagnosis was completed by a health care provider qualified to certify the diagnosis at the time of diagnosis. 

(c) A prenatal diagnostic test may also be accepted as proof of diagnosis.

(d) The term “qualified to certify the diagnosis” means that the health care provider providing the diagnosis is:

1. A medical doctor; or

2. A doctor of osteopathy,

(7) Phelan-McDermid Syndrome. Evidence under this category requires documentation from a physician which provides the diagnosis of Phelan-McDermid Syndrome as derived from genetic testing.

(8)(7) Establishing Eligibility – High-Risk Children, 3 to 5 years of age. 

(a) A child qualifies for eligibility as a high-risk child, if he or she is 3 to 5 years of age and has:

1. Evidence supporting under this category requires a determination by an APD Agency regional area office that the child has one of the following characteristics:

a. A medical diagnosis of developmental delay in cognition, language, or physical development, where the diagnosis reflects evidenced by the child indicates a high probability that the child is likely to have an eventual diagnosis of a qualifying condition under Rule 65G-4.014, F.A.C., if early intervention services are not provided, or the child has one or more physical or genetic anomalies associated with a developmental disability, such as:

i.(a) Genetic or chromosomal disorders (such as Down syndrome or Rett syndrome);

ii.(b) Metabolic disorders (such as phenylketonuria);

iii.(c) Congenital malformations (such as microcephaly or hydrocephaly);

iv.(d) Neurological abnormalities and insults;

v.(e) Congenital and acquired infectious diseases;

vi.(f) Chronic or catastrophic illnesses or injuries;

(g) A parent or guardian with developmental disabilities who requires assistance in meeting the child’s developmental needs, or

vii.(h) Other conditions or genetic disorders generally associated with developmental disabilities, such as tuberous sclerosis, congenital syphilis, fetal alcohol syndrome, or maternal rubella, as documented by a physician;

2. Survived a catastrophic infectious or traumatic illness known to be associated with developmental delay;

3. A parent or guardian with developmental disabilities who requires assistance in meeting the child’s developmental needs.

4. A physical or genetic anomaly associated with a developmental disability, such as:

a. Genetic or chromosomal disorders (such as Down syndrome or Rett syndrome);

b. Metabolic disorders (such as phenylketonuria);

c. Congenital malformations (such as microcephaly or hydrocephaly);

d. Neurological abnormalities and insults;

e. Congenital and acquired infectious diseases;

f. Other conditions or genetic disorders generally associated with developmental disabilities, such as tuberous sclerosis, congenital syphilis, fetal alcohol syndrome, or maternal rubella, as documented by a physician.

5.(i) If a child between three and five years of age Already has been determined to have a developmental disability in one of the seven five categories identified in Chapter 393, F.S., that child shall be eligible for services from the agency under the appropriate diagnosis and shall be added to the waiting list.

(b)(j) If a child served under the category of high risk does not have a confirmed diagnosis by his or her fifth birthday, they shall be given a notice of case closure and the case will be closed at the agency. The agency shall make the child’s parent or guardian aware of appropriate agencies, programs or school programs which the agency is aware of which might be able to assist the child.

Rulemaking Authority 393.065, 393.501 FS. Law Implemented 393.065 FS. History–New 5-16-12, Amended____.