vs. ) Case No. 98-1178RP
Intervenor. )
JOHN F. HULL, D.O.; and )
ROBERT L. KAGAN, M.D., )
vs. ) Case No. 98-1183RP
Respondent. )
Notice was provided and on April 9, 1998, a formal hearing was held in this case. The hearing location was the office of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The authority for conducting the hearing is set forth in Section 120.56, Florida Statutes. The hearing was conducted by Charles C. Adams,
Administrative Law Judge.
John M. Knight, Esquire
Florida Medical Association, Inc.
David L. Miller, Esquire Broad and Cassell
Paul Vazquez, Esquire Gordon B. Scott, Esquire
Is proposed rule 59G-3.010(4)(b)2.c. an invalid exercise of delegated legislative authority, for reasons described in the respective petitions that formed the basis of this dispute? See Section 120.56(2), Florida Statutes.
The Petitioners in DOAH Case Nos. 98-1178RP and 98-1183RP brought petitions challenging the validity of proposed rule 59G- 3.010(4)(b)2.c. DOAH Case No. 98-1178RP was scheduled to be heard on April 2, 1998. That case was consolidated for hearing
with DOAH Case No. 98-1183RP. The hearing was continued until April 9, 1998, and heard on the latter date.
Florida Osteopathic Medical Association, Inc. petitioned to intervene in DOAH Case No. 98-1178RP. That motion was granted. The Intervenor did not participate in the hearing. Consequently its rights as Intervenor were not litigated and it is deemed to have waived the right to participate.
In defense of the allegations, Respondent presented the witnesses Richard T. Lutz and Gary James Clark. In support of its allegations, the Petitioners presented the witness Sheryl Billings. Sixteen joint exhibits were admitted. Respondent's Exhibit No. 1 was offered. Ruling was reserved on its admission. Respondent's Exhibit No. 1 is admitted to the extent that it formed the basis for action taken by the Respondent in promulgating the proposed rule. It is not accepted as legal support for rule adoption. The reason for that ruling is explained in the conclusions of law.
A transcript of the hearing was prepared and filed. The filing date was April 21, 1998. On May 1, 1998, the Petitioners and Respondent timely submitted proposed final orders.
Subsequently, Petitioners moved to strike Paragraph 30 and Exhibit A of Respondent's proposed final order. Respondent did not respond to the motion. The motion to strike is granted in that the information presented in Paragraph 30 and Exhibit A is not relevant.
The party Florida Medical Association, Inc., a not for
profit corporation is organized and maintained for the benefit of approximately 17,000 licensed physicians who are its members. It represents the common interests of those members. Some of its members provide services under the terms contemplated by proposed rule 59G-3.010(4)(b)2.c. Likewise, Robert Anthony Savona, D.O.; John F. Hull, D.O.; and Robert Kagan, M.D., as licensed physicians, provide services contemplated by a proposed rule 59G- 3.010(4)(b)2.c.
Respondent is the agency responsible for administering the state Medicaid Program under Title XIX of the Social Security Act, 42 U.S.C. Section 1396 et seq. and Section 409.901, et seq. Florida Statutes. This responsibility includes reimbursement of Medicaid providers. Respondent offered the proposed rule for adoption.
The services contemplated by proposed rule 59G- 3.010(4)(b)2.c., in which the rule describes a payment mechanism, are in association with patients who are Medicare and Medicaid eligible. The arrangement contemplated by the proposed rule is in relation to Medicaid reimbursable services which complement Medicare. Under the proposed rule, Medicare Supplemental Insurance (Part B) is paid for the deductible and coinsurance for the Medicare and Medicaid eligible recipients by the Medicaid fiscal agent, in accordance with a rate identified in the proposed rule.
The recipients of the services from physicians under the
proposed rule, eligible for both Medicare and Medicaid benefits, are also referred to as Qualified Medicare Beneficiaries (QMBs). QMBs are described as poor, elderly and disabled persons.
In pertinent part the proposed rule states:
59G-3.010 Medicaid Services Complementing Medicare.
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(4) Medicaid Reimbursable Services which Complement Medicare.
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(b) Medicare Supplemental Insurance (Part B).
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2. The Medicare Part B deductible and coinsurance is paid for the Medicare and Medicaid eligible recipient by the Medicaid fiscal agent at the following rates:
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c. Physician services, including doctors of medicine, doctors of osteopathy, and providers of chiropractic and podiatric services are reimbursed 100 percent of the deductible and 100 percent of the coinsurance only to the extent that the total payment received does not exceed the Medicaid fee for the service provided. If there is no comparable Medicaid fee for the service, the Medicaid fee is calculated to be 50 percent of the Medicare approved charge for the service provided. In these situations, whether the physician did or did not receive a payment from Medicaid, by billing Medicaid he is bound to the Medicaid payment schedule as payment in full.
Other parts of proposed rule 59G-3.010(4)(b)2. at a.,
b., d., and e. address Medicare Part B deductibles and coinsurance for other providers as follows:
Part B patient hospital services are reimbursed 100 percent of the deductible and coinsurance.
Rural health centers, federally qualified health centers and county health departments are reimbursed their encounter rate minus the amount of Medicare's payment.
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Pharmacy providers are reimbursed 100 percent of the deductible and 100 percent of the coinsurance only to the extent that the total payment does not exceed the Medicaid fee for the service provided.
Other Part B suppliers are reimbursed 100 percent of the coinsurance and 100 percent of deductible.
Under Medicare Part B, 80 percent of reasonable costs or charges for the delivery of health care to Medicare eligible patient is paid through the Medicare program as a premium. That program is administered by the federal government under Title XVIII of the Social Security Act, 42 U.S.C., Section 1395 et seq. That payment is a form of insurance. The remaining 20 percent is anticipated to be paid by the patient as copayments or coinsurance, in addition to an annual deductible. The proposed rule in relation to physician services addresses the manner in which some portion of the 20 percent is "crossed-over" to be paid for potential payment through the Medicaid program administered
by Respondent using federal and state funding, pursuant to Title XIX of the Social Security Act, 42 U.S.C., Section 1396 et seq. and Section 409.901 et seq., Florida Statutes. Payment to the physicians for their services in relation to the deductible and coinsurance depends upon the application of the formula in the proposed rule. The formula contemplates reimbursement to the physicians at less than 100 percent of the deductible and 100 percent of the coinsurance because the Medicaid fee schedule is generally lower than the federal Medicare fee schedule for the same services. In fact, in most cases the physicians will receive no payment for the deductible or coinsurance above the 80 percent payment under the Medicare fee structure in relation to the basic Medicare premium.
By comparison to other health care and service providers discussed in the proposed rule, some other individuals and entities are reimbursed at 100 percent of the deductible and coinsurance and others are not guaranteed reimbursement at 100 percent.
The formulas for reimbursement for services provided under the proposed rule related to Medicare Part B deductible and coinsurance are influenced by the results of quarterly estimating conferences held between legislative and executive branch staff. Those estimators, within respective categories of services, examine the performance of the various categories of services concerning fiscal impact through a comparison of available
revenues against expenditures. This assists in the preparation of future budgets upon the recommendation of the governor to be passed by the legislature. Respondent assists in preparation of budget requests, to include recommendation for policy changes related to the amount of expenditures for the various services performed for the benefit of Medicare and Medicaid eligible recipients, QMBs, who are entitled to the payment of their deductible and coinsurance under Medicare Part B. However, the impetus for the reimbursement formula for physician services described in the proposed rule has a more precise origin, for reasons now explained.
A prior version of Rule 59G-3.010(4), Florida Administrative Code in effect on April 8, 1996, was challenged in an administrative proceeding before the Division of Administrative Hearings. That version limited the amount of reimbursement for physician services associated with Medicare Part B deductible and coinsurance in a different manner than the proposed rule. In the decision of Reynolds v. Agency for Health Care Administration, 18 F.A.L.R. 3474 (Fla. DOAH 1996) the rule was held invalid. Among the cases cited for this decision was Pennsylvania Medical Society v. Snider, 29 F.3d 886 (3d Cir. 1994) and Haynes Ambulance Service, Inc. v. State of Alabama, 36 F.3d 1974 (11th Cir. 1994).
The federal court cases refer to the recipients of cost reimbursement for deductibles and coinsurance as QMBs.
Essentially, they are the same persons who are described in the proposed rule as Medicare and Medicaid eligible.
Although the rule had been declared invalid, Respondent continued to exercise the policy of denying payment of Medicare deductibles and coinsurance on physician crossover claims at 100 percent of the deductible and 100 percent of the coinsurance as contemplated by the federal court cases.
Following Respondent's return to the policy of not paying the deductible and coinsurance at 100 percent for physician services, Petitioner's Savona, Hull, and Kagan brought
a lawsuit in federal count to compel payment for physician services to QMBs at the Medicare rate.
On March 3, 1997, the United States District Court for the Northern District of Florida granted a final injunction that required Respondents to pay the physician class in the lawsuit at the Medicare rate for services provided to QMBs. See Savona v. Cook, Case No. 4:96CV14-WS (N.D. Fla. 1997).
After the decision in Savona, Respondent pursued a policy of paying the deductible and coinsurance at 100 percent of the Medicare rate. This policy lasted from March 3, 1997 until October 1, 1997.
To facilitate the payment for physician services at 100 percent of the Medicare rate for the crossover claims related to the deductible and coinsurance, Respondent amended its state
Medicaid plan, with the federal Health Care Financing Administration (HCFA).
In addition, Respondent sought an appropriation through the legislature to fund the increase in copayments to assure that physician services were reimbursed at 100 percent of the Medicare rate for the deductible and coinsurance. This led to the passage of Chapter 97-152, Laws of Florida, Item 248, the 1997-98 General Appropriations Act, which set aside monies from the General Revenue Fund and from the Medical Care Trust Fund, totaling $87 million for Medicare Part B copayment for reimbursement of physician services for the dually eligible recipients. This refers to recipients eligible for services under Medicare and
Medicaid. The 1997-98 fiscal year for that appropriation began July 1, 1997, and continues until June 30, 1998.
The amount appropriated has proven more than adequate to meet the copayment for physician services at the 100 percent Medicare rate.
Another document, prepared by persons unknown, was associated with the appropriations process for 1997-98. That document is referred to as Respondent's Ex No. 1 and is entitled 1997-98 General Appropriations and Summary Statement of Intent. It sets out the exact language in Chapter 97-152, Laws of Florida, Item 248, related to the $87 million for full Medicare Part B copayment for physician services. It also sets out a
summary statement of intent that is not found within the General Appropriations Act. The language in that summary statement of intent is as follows:
It is the intent of the Legislature that the funds in Specific Appropriation 248 which are provided to pay the full Medicare part B co- payment for physician services to clients who are dually eligible for Medicare and Medicaid, be expended only to the extent currently required by federal law. In the event that changes in federal law relating to reimbursement for these services occurs, the Agency for Health Care Administration shall directly submit to the federal Health Care Financing Administration any amendments to the state Medicaid Plan which are necessary to realize cost savings options permitted by and in compliance with federal law.
As anticipated by the summary statement of intent, federal law relating to reimbursement for physician services did
change in August of 1997 when Congress enacted the Congressional Balanced Budget Act of 1997, Section 4714. In pertinent part it stated:
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(2) In carrying out paragraph (1), a State is not required to provide any payment for any expenses incurred relating to payment for deductibles, coinsurance or copayments for medicare cost-sharing to extent that payment under title XVIII for the service would exceed the payment amount that otherwise would be made under the State plan under this title for such service if provided to an eligible recipient other than a medicare beneficiary.
That law became effective October 1, 1997. By its terms it created the option for states to reduce payments on crossover claims to the state Medicaid rate, although it did not mandate that outcome. The payment option created by the congressional enactment had application to all categories of providers.
In view of the Congressional Balanced Budget Act of 1997, Respondent decided to change its payment policy to disallow payment for physician services at the 100 percent Medicare rate in all instances for physician services related to the deductible and coinsurance for dually eligible recipients. The effective date of the change in policy was October 1, 1997, coinciding with the effective date of the Congressional Budget Act.
Respondent implemented its policy change without the benefit of rule adoption. The failure to implement the payment policy by rule adoption was challenged in the case of Savona v. Agency for Health Care Administration, DOAH Case No. 97-5909RU (Fla. DOAH 1998). On January 16, 1998, Respondent gave notice of rule development, to include the preliminary text of the rule. For this reason, the February 12, 1998, order entered in DOAH Case No. 97-5909RU denied the petition for determination of invalidity of the non-rule policy brought in accordance with Section 120.56(4), Florida Statutes.
Consistent with its notice of rule development, Respondent published notice of proposed rulemaking pertaining to the rule under challenge here. That publication was made on
February 13, 1998, through the Florida Administrative Weekly, Volume 24, No. 7. The specific authority for rule promulgation was Section 409.919, Florida Statutes, and the law to be implemented was Section 409.908, Florida Statutes. No mention was made of the summary statement of intent associated with the 1997-98 General Appropriations Act in Florida and the Congressional Balanced Budget Act of 1997. The testimony of Richard T. Lutz, Director of the Division of State Health Purchasing, Agency for Health Care Administration, at hearing established his reliance upon those latter two items as authority for promulgating the proposed rule in relation to the copayment for physician services under Medicare Part B, for the deductible and coinsurance. Mr. Lutz was principally responsible for the promulgation of the rule as policymaker for the Respondent.
In addressing the difference in the reimbursement policies for physician services, contrasted with other services detailed in the proposed rule, Mr. Lutz indicated that changes in relation to reimbursement policies, other than for physicians, would be the product of an estimating conference showing the financial impact of the changes, followed by a budget item to effect the changes. In the absence of that impetus, Mr. Lutz described that he had been instructed that the methodologies that were in place for various services under Medicare Part B utilizing established methodologies for the reimbursement practices would remain in effect.
Unlike the circumstances existing in the proposed rule, for classes of providers other than physicians, Mr. Lutz in behalf of Respondent took the initiative in dealing with reimbursement for physicians care under Medicare Part B when promulgating the proposed rule. He concluded that the terms of the federal court order in Savona were subject to the language in the summary statement of intent, and with the advent of the Congressional Balanced Budget Act of 1997 Respondent was at liberty to change its reimbursement scheme for physician services effective October 1, 1997. In making the policy choice to promulgate the proposed rule, Mr. Lutz recognized the option which Florida had to either limit copayments or continue copayments at the Medicare rate for physician services under Medicare Part B.
In promulgating the proposed rule Mr. Lutz identified that the Agency did not consider language in Section 409.908(13), Florida Statutes. He did indicate in his testimony the belief that the preamble to Section 409.908, Florida Statutes, creates authority for promulgation of the proposed rule in its comment about the Respondent's ability to make payments in accordance with methodologies that are set forth in its rules, manuals, and handbooks, consistent with limitations placed in the General Appropriations Act and any statement of legislative intent.
Mr. Lutz in promulgating the proposed rule recognized that the physician services under Medicare Part B copayment for
deductible and coinsurance would eventuate in no payment beyond the 80 percent premium in many instances.
Although Mr. Lutz expresses the opinion that the proposed rule for payment of physician services under Medicare Part B has retroactive application to October 1, 1997, he acknowledges that the language in the proposed rule makes no reference to its retroactivity to that date.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this subject matter and the parties of this proceeding pursuant to Section 120.56(1), Florida Statutes.
Petitioners' standing to challenge proposed rule 59G- 3.010(4)(b)2.c., was uncontested. Absent a contest, the pleadings are sufficient to show Petitioners' standing.
Petitioners are substantially affected by the proposed rule and are entitled to seek an administrative determination of the invalidity of the rule on the grounds that the proposed rule is an invalid exercise of delegated legislative authority. See Section 120.56(1)(a), Florida Statutes.
The grounds for alleged invalidity of the proposed rule, according to DOAH Case No. 98-1178RP are as follows:
8.(a) To the extent that Proposed Rule 59G- 3.010(4)(b)2. Provides that the Medicare Part B deductible and coinsurance amounts paid to physicians for providing physician services to QMBs cannot exceed the Medicaid fee for the service provided, the Proposed Rule is invalid pursuant to Section 120.52(8)(b) and (c), Florida Statutes. Section 409.908(13),
Florida Statutes, requires that the Medicare Part B deductibles and coinsurance for Medicare services rendered to Medicaid eligible persons, including QMBs, be reimbursed in accordance with fees established by the Medicare Program, not the Medicaid Program. The Agency does not have the authority to limit the amount paid to physicians providing services to QMBs to the amount paid by Medicaid for the service provided.
(b) To the extent that Proposed Rule 59G- 3.010(4)(b)2. provides that the Medicare Part B deductible and coinsurance amounts paid to physicians for providing physician services cannot exceed the Medicaid fee for the service provided and that the Medicare Part B deductible and coinsurance amounts paid for Part B outpatient hospital services are reimbursed 100 percent of the deductible and coinsurance amount without being limited by the amount of the Medicaid fee for the service provided, Proposed Rule 59G-3.010 is unconstitutional because it denies physicians their right to equal protection of the laws under the Florida and United States constitutions.
(g) To the extent that Proposed Rule 59G- 3.010(4)(b)2. provides that the Medicare Part B deductible and coinsurance amounts paid to physicians for providing physician services cannot exceed the Medicaid fee for the service provided and that the Medicare Part B deductible and coinsurance amounts paid for Part B outpatient hospital services are reimbursed 100 percent of the deductible and coinsurance amount without being limited by the amount of the Medicaid fee for the service provided, Proposed Rule 59G-3.010 is invalid pursuant to Section 120.52(8)(e), Florida Statutes. There is no rational basis for treating physicians and hospitals differently.
The grounds for alleged invalidity of the proposed rule, according to DOAH Case No. 98-1183RP are as follows:
The proposed rule modifies or contravenes substantive law in Section 409.908(13), Florida Statutes, which requires AHCA to pay all providers' crossover claims at the full Medicare rate;
The proposed rule modifies or contravenes the current state appropriation act in Ch.
97-152, item 248, Laws of Florida, which requires AHCA to pay all providers' crossover claims at the full Medicare rate for fiscal year 1997-98.
The proposed provision allowing AHCA to pay one-half the Medicare rate for services not covered by the Medicaid program modifies or contravenes both state law cited in paragraphs (A) and (B) above, and federal law as amended by the Balanced Budget Act of 1997.
To the extent that AHCA seeks to apply its proposed rule retroactively to the period between October 1, 1997, and the date the proposed rule is adopted, it is invalid as arbitrary and unauthorized retroactive rulemaking which divests payment rights, and violates the rulemaking procedures requires in Section 120.54, Florida Statutes.
The proposed rule arbitrarily and unlawfully singles out physicians for discriminatory reduction in payment that is not imposed on other provider groups, without statutory authority or rational basis.
The petitions having set forth with particularity the objections to the proposed rule and the reasons why the Petitioners believe that the proposed rule is an invalid exercise of delegated legislative authority, Respondent has the burden to prove that the proposed rule is not an invalid exercise of delegated legislative authority in the face of the objections raised. See Section 120.56(2)(a), Florida Statutes.
The grant of rulemaking authority to Respondent is controlled by Section 120.536(1), Florida Statutes, where it states:
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.
Based upon the allegations by the Petitioners, the issue of the validity of Respondent's exercise of delegated legislative authority is also controlled by Section 120.52(8)(b) and (c), Florida Statutes, which states:
(8) 'Invalid exercise of delegated legislative authority' means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
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The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
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Section 120.52(8), Florida Statutes, goes on to describe the limits on rulemaking authority using the same language found in Section 120.536(1), Florida Statutes.
Section 120.54(3)(a)1., Florida Statutes, makes it incumbent for agencies adopting rules to refer to the specific rulemaking authority for rule adoption and to refer to the Section or Subsection of Florida Statutes or the Laws of Florida that are being implemented, interpreted, or made specific by the rules adoption. This is the required citation addressed in Section 120.52(8)(b) and (c), Florida Statutes.
When Respondent published its notice of rule adoption on February 13, 1998, it set forth Section 409.919, Florida Statutes, as its specific rulemaking authority and Section 409.908, Florida Statutes, as the law implemented.
Section 409.919, Florida Statutes states:
Rules. - The department shall adopt any rules necessary to comply with or administer ss.
409.901-409.920 and all rules necessary to comply with federal requirements.
This provision establishes the predicate for rulemaking, subject to a showing of permission from the legislature concerning a law
to be implemented by the proposed rule.
The law to be implemented, according to the notice, is Section 409.908, Florida Statutes, dealing with the reimbursement of Medicaid providers. Its preamble states:
Subject to specific appropriations, the agency shall reimburse Medicaid providers, in accordance with state and federal law, according to methodologies set forth in the rules of the agency and in policy manuals and handbooks incorporated by reference therein. These methodologies may include fee schedules, reimbursement methods based on cost reporting, negotiated fees, competitive bidding pursuant to s. 287.057, and other mechanisms the agency considers efficient and effective for purchasing services or goods on behalf of recipients. Payment for Medicaid compensable services made on behalf of Medicaid eligible persons is subject to the availability of moneys and any limitations or directions provided for in the General Appropriations Act or chapter 216. Further, nothing in this section shall be construed to prevent or limit the agency from adjusting fees, reimbursement rates, lengths of stay, number of visits, or number of services, or making any other adjustments necessary to comply with the availability of moneys and any limitations or directions provided for in the General Appropriations Act, provided the adjustment is consistent with legislative intent.
Respondent disavows reference to Section 409.908(13), Florida Statutes, as constituting authority to promulgate the proposed rule. That provision states:
(13) Premiums, deductibles, and coinsurance for Medicare services rendered to Medicaid eligible persons shall be reimbursed in accordance with fees established by Title XVIII of the Social Security Act.
The preamble to Section 409.908, Florida Statutes,
deals with reimbursement of Medicaid providers on behalf of Medicaid eligible persons. It creates no authority to establish rules which address the reimbursement of providers who provide services to persons participating under Medicare Part B who are Medicare and Medicaid eligible.
Section 409.908(13), Florida Statutes, does address Medicare Part B premiums, deductibles, and coinsurance for Medicare services that are rendered to persons who are also Medicaid eligible. For the dually eligible persons, to include services from physicians, that reimbursement is in accordance with a fee structure established by Title XVIII of the Social Security Act, the Medicare program administered by the federal government. The source of payment of those fees is not described in Section 409.908(13), Florida Statutes, only the fee schedule is established. However, an 80 percent premium is paid to Medicare eligible recipients in accordance with the Medicare program operated by the federal government. The remaining costs of the deductible and the coinsurance for the dually eligible recipients were addressed in the 1997-98 General Appropriations Act at Chapter 97-152, Item 248, Laws of Florida. For that fiscal year $87 million was set aside to pay for the full Medicare Part B copayment deductible and coinsurance for the dually eligible recipients.
Language found in the document described as 1997-98 General Appropriations and Summary Statement of Intent, which
qualifies the payment for physician services to clients who are dually eligible, by allowing the funds in item 48 to be expended only to the extent currently required by federal law, is arguably part of the "approved operating budget." See Section 216.011(2)(a), Florida Statutes. But see Martinez v. Florida Legislature, 542 So. 2d 358 (Fla. 1989), which reached a contrary result in discussing a prior version of Chapter 216, Florida Statutes. For purposes of this case it does not matter that the summary statement of intent language be considered. That language reserves to the Florida Legislature the opportunity to deviate from the course that it has pursued in appropriating the
$87 million. This is an outcome that the legislature anticipates with the enrollment of CS/CS/SB 484, which is supplemented into this record based upon Petitioners' motion. The pending legislation CS/CS/SB 484 is intended to take effect on July 1, 1998, beyond the current fiscal year. Unlike the legislative opportunity, the summary statement of intent does not grant authority to Respondent to change its course of action through rule adoption for the period between July 1, 1997 and June 30, 1998, equating to fiscal year 1997-98. The only responsibility contemplated for the Respondent under the terms of the summary statement of intent is that it submit to HCFA any necessary amendments to the state Medicaid plan that are permitted by and in compliance with federal law. That is an administrative function not a legislative function. Respondent has no authority
to promulgate a rule pursuant to that requirement to coordinate an administrative change to the Medicaid plan, only the Florida Legislature has the authority to change the payment requirements for Medicare Part B deductible and coinsurance for physician services with the advent of the passage of the Congressional Budget Act of 1997, effective October 1, 1997.
Respondent's attempt to change the course of policy by promulgation of proposed Rule 59G-3.010(4)(b)2.c., is action in excess of its grant of rulemaking authority, even if reasonably related to the purpose of the 1997-98 General Appropriations and Summary Statement of Intent. For this reason the proposed rule must fail.
That proposed rule 59G-3.01(4)(b)2.c., is an invalid exercise of delegated legislative authority.
DONE AND ORDERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Division of Administrative Hearings this 29th day of May, 1998.
John M. Knight, Esquire Jeffery J. Scott, Esquire Francesca Plendl, Esquire
Florida Medical Association, Inc.
M. Stephen Turner, Esquire David K. Miller, Esquire Broad & Cassell
Paul Vazquez, Esquire Gordon B. Scott, Esquire
Morton J. Morris, Esquire Post Office Box 291690 Davie, Florida 33329-1690
Paul J. Martin, General Counsel Agency for Health Care Administration Building 3, Suite 3431
Douglas M. Cook, Director
Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
