STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
A CHOICE FOR WOMEN, INC.; )
EDWARD WATSON, M.D.; and )
MONICA NAVARRETE, )
)
Petitioners, )
)
vs. ) Case No. 02-3079RX
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, a formal hearing was held in this case on August 27, 28, and 29, 2002, in Tallahassee, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Bonnie Scott Jones, Esquire1
Adrienne Lockie, Esquire2
The Center for Reproductive Law and Policy
120 Wall Street, 14th Floor New York, New York 10005
and
Larry Helm Spalding, Esquire ACLU Foundation of Florida
314 West Jefferson Street Tallahassee, Florida 32301
For Respondent: Jeffries H. Duvall, Esquire
Crista E. Calamas, Esquire George D. Shirejian, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Building 3
Tallahassee, Florida 32308-5403
STATEMENT OF THE ISSUE
Whether Rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida Administrative Code, and several sections of the Florida Medicaid Physician Coverage and Limitations Handbook and the Florida Medicaid Provider Reimbursement Handbook incorporated in these rules are invalid because they contravene the specific provisions of law implemented by the rules.
PRELIMINARY STATEMENT
On August 2, 2002, A Choice for Women, Inc., Edward Watson, M.D., and Monica Navarrete (referred to collectively as the "Petitioners") filed with the Division of Administrative Hearings a Petition to Determine Invalidity of Existing Rules, in which they seek to invalidate rules adopted by the Agency for Health Care Administration ("AHCA"). The Petitioners challenge the validity of AHCA Rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida Administrative Code, and of page 2-3 of the January 2001 edition of the Florida Medicaid Physician Coverage and Limitations Handbook, which is incorporated by reference in
Rule 59G-4.230, and pages 7-37 through 7-39 of the Florida Medicaid Provider Reimbursement Handbook, which are incorporated
by reference in Rules 59G-4.150, 59G-4.160, and 59G-4.230. The Petitioners allege the following as grounds for the invalidity of the challenged rules:
Collectively, these rules and handbook sections prohibit Medicaid funding for abortions except to prevent the danger of death to the pregnant woman or when the pregnancy is the result of rape or incest ("funding ban"). The funding ban carves out a discrete exception to the Florida Medicaid program's provision of virtually all medically necessary health services to the eligible poor, including all medical services needed to preserve men's reproductive health.
The challenged rules are an invalid exercise of delegated legislative authority because they contravene the specific provisions of law implemented by the rules. Fla. Stat. Ann. § 120.52(8)(c)(West 2002). Section 409.908 of the Florida Statutes, which is implemented by each of the three challenged rules, mandates that AHCA reimburse Medicaid providers in accordance with state and federal law. Despite this mandate, the challenged rules create a reimbursement exclusion that discriminates against women in violation of state law. Discrimination against women is prohibited by article I, section 2 of the Florida Constitution, which was amended in 1998 to include an equal rights amendment, and which provides that: All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty [and] to pursue happiness, . . ." Fla. Const. Art I, § 2.
This matter was assigned to the undersigned administrative law judge, and a hearing was held on August 27 through 29, 2002.
Prior to the hearing, AHCA filed a Motion in Limine to exclude the testimony of Dr. Stanley Henshaw, Dr. Lenore Walker, Dr. Patricia O'Campo, Dr. Linda Gordon, and Dr. Washington Hill, whose testimony was categorized by AHCA as relating to the "history, sociology, and psychology of women in modern society." AHCA asserted in its motion that the subject matter of the proposed testimony of these witnesses was irrelevant and immaterial to a determination of whether the rules challenged herein are invalid exercises of delegated legislative authority. A hearing on the motion was held on August 26, 2002, during which argument of counsel was presented.
The purpose of a motion in limine is to prevent a jury from hearing evidence that is not only inadmissible but is also clearly prejudicial to the moving party; see Dailey v. Multicon
Development, Inc., 417 So. 2d 1106, 1107 (Fla. 4th DCA 1982)("The purpose of a motion in limine is generally to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial."); such motions are rarely granted in the context of administrative proceedings because the trier of fact is an administrative law judge, who, as a result of the motion, is familiar with the subject matter of the evidence sought to be excluded. In addition, it was not clear from AHCA's argument in support of the motion that none of the testimony of these witnesses would be relevant to the
determination of the issue presented in the Petition to Determine Invalidity of Existing Rules. Accordingly, AHCA's Motion in Limine was denied.3
AHCA also filed a Motion to Dismiss the Petition to Determine Invalidity of Existing Rules on the grounds that none of the Petitioners have standing to maintain this rule challenge and that the Petitioners have failed to state a cause of action. Argument was heard on this motion on August 26, 2002. After considering the arguments of counsel and taking as true the allegations in the petition, see City of Gainesville v. State,
Department of Transportation, 778 So. 2d 519, 522 (Fla. 1st DCA 2001), the Motion to Dismiss was denied.4 The allegations in the petition are sufficient to state a challenge to the validity of AHCA's Rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida
Administrative Code, as an invalid exercise of delegated legislative authority. In addition, the facts alleged in the petition, taken as true, are sufficient to withstand a motion to dismiss the petition for lack of standing.
At the hearing, the Petitioners presented the testimony of the following witnesses: Monica Navarrete, who testified on her own behalf; Eileen Diamond, the administrator of A Choice for Women; Edward Watson, M.D., the medical director of A Choice for Women; Linda Gordon, Ph.D., a professor of history at New York University, who specializes in the history of social policy in
the United States, with an emphasis on issues of gender and family; Stanley Henshaw, Ph.D., a consultant with the Alan Guttmacher Institute, who specializes in the study of issues related to reproductive health services, primarily family planning and abortion services; Patricia O'Campo, Ph.D., a professor in the Department of Population and Family Health Sciences and in the Department of Epidemiology at Johns Hopkins University, who specializes in social epidemiology, with an emphasis on the health of low-income women; Lenore Walker, Ph.D., a professor of psychology at Nova Southeastern University and a forensic and clinical psychologist, who specializes in interpersonal violence; and Washington Clark Hill, M.D., the chairman of the Department of Obstetrics and Gynecology and the director of Maternal-Fetal Medicine and the Perinatal Center at Sarasota Memorial Hospital.5 Petitioners' Exhibits 1 through 16, 19, and 20 were offered and received into evidence; Petitioners' Exhibit 17 was offered into evidence but rejected, and the exhibit was not proffered; Petitioners' Exhibit 18 was withdrawn.
During the hearing, AHCA renewed its objections to the relevance and materiality of the testimony of Dr. Henshaw, Dr. Walker, Dr. O'Campo, Dr. Gordon, and Dr. Hill. AHCA also objected on the grounds of relevance and materiality to
Petitioners' Exhibits 4 through 6 and 10 through 16, which were
offered through the testimony of these witnesses. After considering the arguments of counsel both in support of and in opposition to the relevance and materiality of the subject matter of the witnesses' testimony and of the referenced exhibits, the objections were overruled.
At the hearing, AHCA presented the testimony of the following witnesses: Lynn Metz, a registered nurse consultant employed by AHCA, who is responsible for Florida's Medicaid physician services program; John L. Barthelmess, M.D., an obstetrician/gynecologist, who acts as a part-time medical consultant for AHCA; and Harold Robert Sharpe, AHCA's Deputy Secretary for Medicaid. Respondent's Exhibits 1 through 7 were offered and received into evidence; Respondent's Exhibits 5 and
6 were admitted over hearsay objections and objections as to their relevance, and Respondent's Exhibit 7 was admitted over a hearsay objection.
The three-volume transcript of the record was filed with the Division of Administrative Hearings on September 10, 2002, and the parties timely filed proposed findings of fact and conclusions of law.
JURISDICTIONAL ISSUES
The Petitioners' challenge to the facial constitutionality of Rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida Administrative Code, together with the specified sections of the
Florida Medicaid Physician Coverage and Limitations Handbook and the Florida Medicaid Provider Reimbursement Handbook, was originally presented in a complaint filed in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. AHCA, which was represented in that action by the Office of the Attorney General, filed a Motion to Dismiss, asserting that the plaintiffs were required to exhaust their administrative remedies by initiating an administrative rule challenge pursuant to Section 120.56, Florida Statutes. The Honorable Janet E. Ferris entered a Final Order on April 4, 2002, in which she dismissed the action on the basis of the holding in Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So. 2d 153, 157 (Fla.
1982), that "[w]hen the facial constitutionality of an agency rule is the focus of an aggrieved party's constitutional claim, the administrative proceedings must be exhausted and the claim presented to the district court." (A copy of Judge Ferris's Final Order is attached as Appendix H to the Petition to Determine Invalidity of Existing Rules.)
The Petitioners present their challenge to the facial constitutionality of the subject rules in a petition seeking a determination pursuant to Section 120.56(1) and (3), Florida Statutes (2002), that existing agency rules are invalid. In Section I of the petition, the Petitioners allege that the
subject rules are invalid exercises of delegated authority because they contravene the specific provision of law implemented by the rules, in violation of Section 120.52(8)(c), Florida Statutes (2002). The Petitioners identify
Section 409.908, Florida Statutes (2002), as the specific provision of law that is contravened by the rules, specifically that portion of Section 409.908 that specifies that Medicaid providers shall be reimbursed "in accordance with state and federal law." The Petitioners claim that the challenged rules provide for Medicaid reimbursement that is not in accordance with Florida law because the rules limit Medicaid funding for medically necessary abortions in violation of the Florida constitutional right to equal protection under Article I, Section 2, of the Florida Constitution. The parties concur that the only substantive issue presented for resolution in this proceeding is a determination of the facial constitutionality of Rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida
Administrative Code, together with the specified sections of the Medicaid handbooks incorporated therein.
Pursuant to Section 120.56(1)(e), Florida Statutes (2002), the order of an administrative law judge in a challenge to existing agency rules is considered final agency action. It is, however, a settled principle of administrative law in Florida that an administrative law judge of the Division of
Administrative Hearings lacks jurisdiction to resolve constitutional issues involving existing rules of an executive agency. See Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So. 2d 695, 699 (Fla. 1978)("[An] administrative hearing officer lacks jurisdiction to consider constitutional issues."), citing Department of Revenue v. Young American
Builders, 330 So. 2d 864 (Fla. 1st DCA 1976); Department of Environmental Regulation v. Leon County, 344 So. 2d 297, 298 (Fla. 1st DCA 1977)("A hearing officer does not have the power to adjudicate the constitutionality of a rule, such power being a judicial rather than a quasi-judicial power."). Cf.
Communications Workers of America, Local 3170 v. City of Gainesville, 697 So. 2d 167, 168 (Fla. 1st DCA 1997)(PERC's general counsel erred in dismissing a case involving charges that the city engaged in unfair labor practices in violation of, among other things, employees' state and federal constitutional rights because "[t]o consider CWA's unfair labor practice charges, PERC did not need to adjudicate the constitutionality of any administrative rule, municipal ordinance, or statute."); Department of Environmental Regulation v. Leon County, 344 So.
2d 297, 298 (Fla. 1st DCA 1977)(A "hearing officer, in the exercise of quasi-judicial authority in furtherance of the administrative rule-making process, can determine whether or not a Proposed rule violates the Florida Constitution if adopted.").
It is also a settled principle of administrative law in Florida that "it [is] entirely proper for a district court of appeal to pass on the constitutionality of a statute or rule when that is necessary in reviewing agency action, though there has been no agency decision on the constitutional question nor could there have been." Rice v. Department of Health and
Rehabilitative Services, 386 So. 2d 844, 848 (Fla. 1st DCA 1980). In furtherance of this principle, Section 120.68(9), Florida Statutes (2002), provides that a petition in which the only issue is the constitutionality of an agency rule may be filed directly with a district court of appeal when there are no disputed issues of material fact. In this case, however, the parties did not stipulate to the facts material to a decision on the constitutional challenge. As a result, this action was properly filed with the Division of Administrative Hearings pursuant to Section 120.56(1) and (3), Florida Statutes, although the parties concur that the substantive issue presented in this rule challenge can only be decided by the district court of appeal on appeal from this Final Order.
The function of administrative law judges is to conduct an evidentiary hearing and to enter a recommended or a final order in cases involving disputed issues of fact. In cases in which we enter recommended orders, administrative law judges act primarily as triers of fact, and our responsibilities include
making rulings on the evidence and on other legal issues not within the substantive jurisdiction of the agency, assessing the credibility of the witnesses, resolving disputed issues of material fact, making findings of fact, presenting recommended conclusions of law on the substantive legal issues, and recommending appropriate penalties. Sections 120.569
and .57(1), Florida Statutes (2002). The responsibilities of administrative law judges in cases in which we have final order authority are much the same, except that the administrative law judge is the ultimate arbiter of both fact and law. The final order in a rule challenge is final agency action, and the final order may be directly appealed to a district court of appeal.
Sections 120.56(1)(e) and .68(9), Florida Statutes (2002). In a rule challenge in which constitutional issues are raised, an additional responsibility of administrative law judges is to give the parties the opportunity to prepare a record upon which the district court can consider, on appeal of the final order, the constitutional issues. See generally Rice, 386 So. 2d
at 846-48.
The undersigned administrative law judge has given considerable thought to the scope of her responsibility in this proceeding. As noted above, the parties did not stipulate to any facts. An evidentiary hearing was conducted, therefore, to allow the parties to present evidence on the disputed issues of
fact and to make a record on the constitutional issue to present to the district court of appeal. AHCA objected to much of the evidence presented by the Petitioners on the ground that the evidence was not relevant to the issues presented in the Petition to Determine Invalidity of Existing Rules. Because relevancy objections can be resolved only in the context of the legal issues presented, in this case, the facial constitutionality of the challenged rules, and because the undersigned cannot decide this legal issue, AHCA's objections on relevance were denied in deference to the district court of appeal's exclusive jurisdiction to decide the constitutional issue.
After a review of the record and of the Proposed Final Orders of the parties, the undersigned has determined that only one evidentiary fact is in dispute: Whether Ms. Navarrete was eligible for Medicaid at the time of her abortion. A finding of fact on this issue has been made herein. AHCA also disputes the standing of each of the Petitioners to maintain this rule challenge. The issue of whether the Petitioners are substantially affected by the challenged rules is an issue of ultimate fact that an administrative law judge must resolve in order to determine if the rule challenge should be decided on the merits. Accordingly, findings of fact and conclusions of law on the issue of standing have been included in this Final
Order. Finally, the issue of whether the challenged rules contravene the law implemented, to the extent that resolution of this issue does not involve the facial constitutionality of the rules, is an issue within the jurisdiction of an administrative law judge, and findings of fact and conclusions of law on this issue have been included in this Final Order.
The remaining disputes between the parties involve disputes of ultimate fact and disputes of mixed questions of law and fact related solely to the issue of the facial constitutionality of the challenged rules; for example, the description of the class of persons affected by the limitation on Medicaid reimbursement for medically necessary abortions, the interests of women in receiving Medicaid funding for medically necessary abortions, and the interests of the state in restricting Medicaid funding for medically necessary abortions. The credibility of the witnesses testifying on these issues is not at issue, and the facts presented in the testimony of the Petitioners' witnesses and in their exhibits related to these issues are uncontroverted, as are the facts related to these issues presented in the testimony of AHCA's witnesses and in its exhibits.
The responsibility of administrative law judges to make findings of fact related solely to the constitutional issues raised in a rule challenge has not yet, as far as the
undersigned is aware, been addressed by a Florida district court of appeal. As the undersigned prepared this Final Order, it became apparent that she faced the same dilemma in making findings of fact on the entire record of this proceeding as she did in making evidentiary rulings on relevance: The undersigned cannot know the facts that the district court of appeal will find relevant to its analysis of the constitutional issues presented by the Petitioners, and the process of deciding which findings of fact to include in this Final Order itself intrudes on the exclusive jurisdiction of the district court of appeal to decide the facial constitutionality of the challenged rules.
The undersigned has, therefore, limited the findings of fact contained in this Final Order to those necessary to a determination of the Petitioners' standing and to a determination of whether the challenged rules contravene any law implemented other than the right to equal protection set forth in Article I, Section 2, of the Florida Constitution. The parties may, therefore, identify for the district court of appeal those facts in the record that they consider relevant and material to the district court's constitutional analysis.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
AHCA is the state agency that administers the Medicaid program in Florida. The Florida Legislature has conferred this responsibility on AHCA in Section 409.902, Florida Statutes (2002), which provides in pertinent part:
The Agency for Health Care Administration is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. These payments shall be made, subject to any limitations or directions provided for in the General Appropriations Act, only for services included in the program, shall be made only on behalf of eligible individuals, and shall be made only to qualified providers in accordance with federal requirements for Title XIX of the Social Security Act and the provisions of state law. This program of medical assistance is designated the "Medicaid program.". . . .
Among those services included in the Medicaid program are physicians' services that are "medically necessary for the treatment of an injury, illness, or disease within the scope of the practice of medicine or osteopathic medicine as defined by state law." Section 409.905(9), Florida Statutes.
Statutes and rules at issue.
The Florida Legislature has directed the manner in which AHCA is to make payments on behalf of Medicaid recipients. Section 409.908, Florida Statutes (2002), provides in pertinent part:
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. . . .
In carrying out this mandate, AHCA has enacted Rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida
Administrative Code, which govern the procedures applicable to providers of inpatient and outpatient hospital services and physician services:
59G-4.150 Inpatient Hospital Services.
This rule applies to all hospital providers enrolled in the Medicaid program.
All hospital providers enrolled in the Medicaid program must comply with the Florida Medicaid Hospital [Services] Coverage and Limitations Handbook and the Florida Medicaid Provider Reimbursement Handbook, UB-92, both incorporated by reference in 59G-4.160. Both handbooks are available from the fiscal agent contractor.
59G-4.160 Outpatient Hospital Services.
This rule applies to all hospital providers enrolled in the Medicaid program.
All hospital providers enrolled in the Medicaid program must comply with the Florida Medicaid Hospital Services Coverage and Limitations Handbook, January 2001, and the Florida Medicaid Provider Reimbursement Handbook, UB-92, October 1998, both incorporated by reference in this rule. Both handbooks are available from the fiscal agent contractor.
59G-4.230 Physician Services.
This rule applies to all physician providers enrolled in the Medicaid program for physician services under
section 409.906, F.S.
All physician services providers enrolled in the Medicaid program must be in compliance with the Florida Medicaid Physician Coverage and Limitations Handbook, January 2001, which is incorporated by reference, and the Florida Medicaid Provider Reimbursement Handbook, HCFA 1500 and Child Health Check-Up 221, which is incorporated by reference in Rule 59G-5.020, F.A.C. Both handbooks are available from the Medicaid fiscal agent.
Section 409.919, Florida Statutes, is cited in each of these rules as specific authority for AHCA to adopt the rules; and Sections 409.905, .908, and .9081, Florida Statutes, are cited as the laws implemented by the rules.
The following is included on page 2-56 of the Florida Medicaid Physician Coverage and Limitations Handbook,
January 2001,6 which is incorporated by reference into Rule 59G-4.230:
* * *
Abortions Federal regulations allow payment for abortions only for specific reasons and require the physician to certify the reason for the abortion.
Medicaid reimburses for abortions for one of the following reasons:
The woman suffers from a physical disorder, physical injury, or physical illness, including a life endangering physical condition caused or arising from the pregnancy itself, that would place the woman in danger of death unless an abortion is performed;
When the pregnancy is the result of rape as defined in Section 794.011, F.S.; or
When the pregnancy is the result of incest as defined in Section 826.04, F.S.
Abortion procedures are reimbursed for only the following diagnoses:
635.00 through 635.92. These diagnosis codes require a fifth digit for reimbursement.
An Abortion Certification Form must be completed and signed by the physician who performed the abortion. The form must be attached to the HCFA-1500 claim form.
The physician must record the reasons for the abortion in his medical records for the recipient.
Note: See Chapter 7 of the Florida Medicaid Provider Reimbursement Handbook, HCFA-1500 and Child Health Check-Up 221, for a copy of the Abortion Certification Form and the instructions for completing the form.[7]
Illustration 7-10 appears on page 7-39 of the Florida Medicaid Provider Reimbursement Handbook, HCFA-1500 and Child Health Check-up 221, July 1999,8 which is incorporated by reference into Rule 59G-5.020.9 Illustration 7-10 is the Abortion Certification Form for the State of Florida. A physician is required to complete Section I of the form with the recipient's name, address, and Medicaid identification number; in Section II, the physician must sign the following statement:
4. On the basis of my professional judgment, I have performed an abortion on the above-named recipient for the following reason:
_ The woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused or arising from the pregnancy itself that would place the woman in danger of death unless an abortion is performed.
_ Based on all the information available to me, I concluded that this pregnancy was the result of an act of rape.
_ Based on all the information available to me, I concluded that this pregnancy was the result of an act of incest.
I have documented in the patient's medical record the reason for performing the abortion; and I understand that Medicaid reimbursement for this abortion is subject to recoupment if medical record documentation does not reflect the reasons for the abortion as checked above.
Instructions for completing the form are found on page 7-40.
Physicians must file Medicaid claims in Florida with AHCA's Medicaid fiscal agent, ACS Consultec, either by paper or electronically. The Medicaid fiscal agent is responsible for processing and paying claims.
Medicaid reimburses physicians who are Medicaid providers for all medically necessary procedures except for certain organ transplants and for abortions that do not meet the criteria set forth on page 2-56 of the Florida Medicaid Physician Coverage and Limitations Handbook, January 2001.
Under Florida's Medicaid rules, Medicaid reimbursement for a medically necessary abortion is denied unless a completed State of Florida Abortion Certification Form signed by the physician is included with the reimbursement request. In addition, pre-authorization for Medicaid funding for a medically necessary abortion is denied unless a completed State of Florida Abortion Certification Form signed by the physician is included with the pre-authorization request.
Petitioners.
Edward R. Watson, M.D.
Dr. Watson is a medical doctor who is board-certified in obstetrics and gynecology. Dr. Watson began performing abortions in 1982, and he performs several thousand abortions each year. He has been the medical director of A Choice for Women since 1993, where he performs abortions and provides other
obstetric and gynecological medical care. Dr. Watson has been registered as a Medicaid provider since 1982, and he is the Medicaid provider for A Choice for Women.
Dr. Watson is currently on the staff of the University of Miami medical school, training third and fourth year medical students in reproductive health services, including abortions.
It is Dr. Watson's understanding that the Florida Medicaid program reimburses physicians for abortions if the woman's life is in danger unless she has an abortion or if the pregnancy is the result of rape or incest. Dr. Watson also understands that he must send a completed and signed State of Florida Abortion Certification Form with all claims for Medicaid reimbursement for medically necessary abortions.
Approximately 10-to-20 percent of Dr. Watson's abortion patients have a medical condition that complicates their pregnancies, conditions which include, but are not limited to, Type I diabetes, HIV or AIDS, renal disease, mental illness, morbid obesity, and heart disease. In Dr. Watson's medical opinion, an abortion is medically necessary for many of his patients with these and other medical conditions, even though the lives of the women are not in danger if they continue their pregnancies. Dr. Watson does not, therefore, submit claims for Medicaid reimbursement for medically necessary abortions when he cannot provide the certification required on the State of
Florida Abortion Certification Form that, in his medical opinion, the patients are in danger of death unless they have an abortion.
Dr. Watson, in his practice at A Choice for Women, sees patients each week who are seeking abortions because the fetuses they are carrying have been diagnosed with significant birth defects or with birth defects incompatible with life. Dr. Watson considers abortions in these cases medically necessary, even though the lives of the women are not in danger if they continue their pregnancies. Dr. Watson does not, however, submit claims for Medicaid reimbursement for medically necessary abortions performed on these patients because he cannot provide the certification required on the State of Florida Abortion Certification Form that, in his medical
opinion, the patients are in danger of death unless they have an abortion.
Dr. Watson experiences adverse financial consequences when patients seeking medically necessary abortions cannot qualify for Medicaid funding because they are not in danger of death without an abortion. Many of Dr. Watson's patients are unable to afford medically necessary abortions without Medicaid funding, and, as a result, Dr. Watson does not perform as many medically necessary abortions as he would were Medicaid funding available. In addition, Dr. Watson discounts the cost of
medically necessary abortions for Medicaid-eligible patients who do not qualify for Medicaid funding, with the result that these patients pay less than patients who are not eligible for Medicaid and also pay less than the amount Medicaid would reimburse for the procedure if the patient were in danger of death or the pregnancy the result of rape or incest.
The undisputed evidence supports a finding that
Dr. Watson has established a real and immediate injury to his financial interests as a result of the Rule 59G-4.230, Florida Administrative Code, because the rule places a restriction on the circumstances in which Medicaid funding is available to physicians for medically necessary abortions. The evidence establishes that Dr. Watson has suffered economic harm because he offers a substantial discount to Medicaid-eligible women seeking medically necessary abortions and that Dr. Watson performs fewer abortions because Medicaid-eligible women seeking medically necessary abortions cannot afford to pay even the discounted cost of an abortion.
A Choice for Women
The staff of A Choice for Women provides counseling to women regarding the various alternatives to abortion. The staff also spends a great deal of time providing financial counseling to Medicaid-eligible patients seeking abortions and working with them to secure private funding. A Choice for Women receives
little or no compensation for these services when Medicaid- eligible patients cannot obtain Medicaid funding for medically necessary abortions.
A Choice for Women has failed to prove that it has suffered a real and immediate injury to financial interests that are independent of the financial interests of Dr. Watson as a result of the challenged rules. A Choice for Women did not present any evidence to establish that it is entitled to Medicaid reimbursement for any of the services provided to a patient seeking medically necessary abortions by employees other than Dr. Watson, and it did not, therefore, establish that it suffered a direct financial injury as a result of the restriction on Medicaid funding in the challenged rules.
Monica E. Navarrete
Ms. Navarrete is a thirty-two-year-old woman with three children. At the time of the hearing, Ms. Navarrete was receiving public assistance in the form of Aid to Families with Dependent Children, food stamps, and Medicaid.
Ms. Navarrete was diagnosed as a child with petit mal seizures.
In 1999, Ms. Navarrete had an abortion in Connecticut, after she was told that the fetus was brain-dead. Ms. Navarrete was advised that the baby died because she had seizures during
the pregnancy; although she was put on anti-seizure medication, it was too late to save the baby.
In 2000, Ms. Navarrete gave birth to a son. After her experience in 1999, she took anti-seizure medication during this pregnancy. Her child was born with osteogenesis imperfecta, a severe bone disorder.
When Ms. Navarrete became pregnant in 2001, she was told that she would have to take Dilantin to control her seizures. Because she was afraid that the medication would make the baby ill, she chose to have an abortion.
Ms. Navarrete went to A Choice for Women for an abortion and was seen by Dr. Watson. According to Dr. Watson, Ms. Navarrete's seizure disorder is long-standing, and it is complicated by grand mal seizures. Dr. Watson was aware that Ms. Navarrete had taken anti-seizure medication during a previous pregnancy and that her baby had a serious birth defect.
When Dr. Watson first examined Ms. Navarrete, she was in the early stage of her pregnancy and had stopped taking her anti-seizure medication. Dr. Watson would not perform the abortion until Ms. Navarrete had been given medical clearance; after she received this clearance, Dr. Watson terminated
Ms. Navarrete's pregnancy by abortion.
In Dr. Watson's opinion, Ms. Navarrete's abortion was medically necessary, but it was not life threatening because she
could have taken her anti-seizure medication and continued the pregnancy without the risk of having grand mal seizures.
Consequently, Dr. Watson was unable to certify on the State of Florida Abortion Certification Form that Ms. Navarrete was in danger of death unless she had an abortion. Dr. Watson did not, therefore, submit either a pre-authorization request for Medicaid funding for Ms. Navarrete's abortion or a claim for Medicaid reimbursement after he performed the abortion.
Ms. Navarrete was told by a member of the staff at
A Choice for Women that Medicaid would not pay for her abortion, and she was charged $200.00 for the abortion, on the sliding scale used by A Choice for Women.10
Ms. Navarrete did not have the funds to pay for the abortion, so she obtained part of the money by not paying her utility bills on time; the remainder of the $200.00 was paid by an abortion fund to which she had been referred by staff at
A Choice for Women.
At the time she had the abortion, Ms. Navarrete was working five to six hours per week, and she earned between
$40.00 and $60.00 per week. She had been working full-time at the airport, but her hours were cut substantially after September 11, 2001.
According to Mr. Sharpe, who is AHCA's deputy secretary for Medicaid and is familiar with the eligibility
categories for Medicaid, a pregnant woman earning $60.00 per week would be eligible for Medicaid unless she had substantial assets.
At the time of the abortion, Ms. Navarrete was enrolled in what she described as the "shared cost Medicaid" program. Each month, she took her medical bills to her caseworker at the Department of Children and Family Services, where, if she had satisfied her deductible, her Medicaid coverage would be activated and she would be reimbursed.
The undisputed testimony of Mr. Sharpe and of
Ms. Navarrete supports a finding that Ms. Navarrete was eligible for Medicaid when she had the abortion in October 2001.11
Ms. Navarrete suffered a real and immediate injury in fact as a direct result of the Medicaid funding restriction imposed by the challenged rules. The undisputed evidence supports a finding that Ms. Navarrete's October 2001 abortion was medically necessary because of her seizure disorder but that, because Dr. Watson could not certify that Ms. Navarrete's life was in danger if she did not have an abortion, any pre- authorization request for Medicaid funding for the abortion and any claim for Medicaid reimbursement for the abortion would have been denied under the challenged rules as incomplete.
Ms. Navarrete was, therefore, required to pay the $200.00 cost
of the abortion, which she did using her own funds and funds she obtained from a private organization.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.56(1) and (3), Florida Statutes (2002).
Section 120.56, Florida Statutes (2002), provides in pertinent part:
1) GENERAL PROCEDURES FOR CHALLENGING THE VALIDITY OF A RULE OR A PROPOSED RULE.--
Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
The petition seeking an administrative determination must state with particularity the provisions alleged to be invalid with sufficient explanation of the facts or grounds for the alleged invalidity and facts sufficient to show that the person challenging a rule is substantially affected by it, or that the person challenging a proposed rule would be substantially affected by it.
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CHALLENGING EXISTING RULES; SPECIAL PROVISIONS.--
A substantially affected person may seek an administrative determination of the
invalidity of an existing rule at any time during the existence of the rule.
Standing
AHCA has questioned the Petitioners' standing to maintain a challenge to the validity of the subject rules, and, therefore, the Petitioners have the burden of establishing by a preponderance of the evidence that they are each substantially affected by the challenged rules. See State, Department of Health and Rehabilitative Services v. Alice P., 367 So. 2d 1045, 1052 (Fla. 1st DCA 1979)(The person challenging a rule not only has the burden of proving that the rule is invalid, "[t]he burden is also upon the challenger, when standing is resisted, to prove standing."); Section 120.57(1)(j), Florida Statutes (2002)("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, . . .").
Pursuant to Section 120.56(1), Florida Statutes (2002), only a "substantially affected person" may challenge the validity of a proposed or existing rule, which is a less demanding standard than that required to maintain an action at law. See Cole Vision Corp. v. Department of Business and Professional Regulation, 688 So. 2d 404, 407 (Fla. 1st DCA 1997).
The court in Lanoue v. Florida Department of Law Enforcement, 751 So. 2d 94, 96-97 (Fla. 1st DCA 1999), set forth the requirements that must be met by a person seeking an administrative determination that an agency rule is an invalid exercise of delegated legislative authority:
"In order to meet the substantially affected test . . . , the petitioner must establish:
a real and sufficiently immediate injury in fact; and (2) 'that the alleged interest is arguably within the zone of interest to be protected or regulated.'" Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995)(quoting All Risk Corp. of Fla. v. State, Dep't of Labor & Employment Sec., 413 So. 2d 1200, 1202 (Fla. 1st DCA 1982); see Cole Vision Corp. v. Department of Bus. & Prof. Reg., 688 So. 2d 404, 407 (Fla. 1st DCA 1997)("A petitioner who establishes a substantial injury in fact that is within the 'zone of interest to be protected or regulated' by the promulgating statute or other related statutes meets the standing requirement."); . . .
"To satisfy the sufficiently real and immediate injury element, the injury must not be based on pure speculation or conjecture." Ward v. Board of Trustees of the Internal
Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995). "The general rule regarding the zone of interest element of the substantially affected test is that such element is met where a party asserts that a statute, or a rule implementing such statute, encroaches upon an interest protected by a statute or the constitution." Id. at 1238.
Ms. Navarrete
Ms. Navarrete has established by a preponderance of the evidence that she is substantially affected by the challenged rules, and, therefore, she has standing to challenge AHCA's Rules 59G-4.150, 59G-4.160, and 59G-4.230, Florida Administrative Code, together with the portions of the Medicaid handbooks cited in the Petition to Determine Invalidity of Existing Rules.
Based on the findings of fact herein, Ms. Navarrete has proved by a preponderance of the evidence that she suffered a "real and immediate injury in fact" as a result of the restriction on Medicaid funding for medically necessary abortions contained in the challenged rules. Ms. Navarrete has established that she was eligible for Medicaid at the time of the abortion, yet she was required to pay for the abortion with her own funds and funds she obtained from a private organization because of the funding restriction. Ms. Navarrete, therefore, has a stake in this rule challenge because, if the challenged rules are ultimately found to be facially unconstitutional, her October 2001 abortion would qualify for Medicaid reimbursement.12 Ms. Navarrete has, therefore, satisfied the first element of the Lanoue/Ward "substantially affected" test.13
Ms. Navarrete has also satisfied the "zone of interest" element of the Lanoue/Ward "substantially affected"
test. Ms. Navarrete has asserted in the Petition to Determine Invalidity of Existing Rules that, as a person eligible for Medicaid, she was entitled to have payment for medically necessary services made on her behalf to Dr. Watson and that the challenged rules violated her right to equal protection under Article I, Section 2, of the Florida Constitution, because they denied payment to Dr. Watson on her behalf for a medically necessary abortion.14 As noted by the court in Ward, "[i]n the context of a rule challenge, the protected zone of interest need not be found in the enabling statute of the challenged rule itself"; it may be based on an interest protected by the constitution. 651 So. 2d at 1238.
Edward Watson
Dr. Watson has established by a preponderance of the evidence that he is substantially affected by Rule 59G-4.230, Florida Administrative Code, and, therefore, he has standing to challenge the facial constitutionality of the rule, together with the relevant portions of the Medicaid handbooks cited in the Petition to Determine Invalidity of Existing rules, on the grounds that it violates his constitutional rights. Dr. Watson is not, however, substantially affected by the challenged rules to the extent that he seeks to assert the constitutional rights of third parties, and he does not, therefore, have standing to
challenge the facial constitutionality of Rule 59G-4.230, Florida Administrative Code, on behalf of his patients.
Based on the findings of fact herein, Dr. Watson has proved by a preponderance of the evidence that he has suffered a "real and immediate injury in fact" as a result of the restriction on Medicaid funding for medically necessary abortions contained in Rule 59G-4.230, Florida Administrative Code. The funding restriction prevents Dr. Watson from receiving Medicaid reimbursement for medically necessary abortions, and, therefore, he has a personal stake in the outcome of this rule challenge because Florida 59G-4.230 deprives him of the level of compensation that he would receive if Medicaid funding were available for medically necessary abortions. Consequently, Dr. Watson has satisfied the first element of the Lanoue/Ward "substantially affected" test.
In addition, Dr. Watson meets the "zone of interest" element of the Lanoue/Ward "substantially affected" test to the extent that he asserts in the Petition to Determine Invalidity of Existing Rules that Rule 59G-4.230 violates his right to receive Medicaid reimbursement for medically necessary abortions, assuming he can establish that this right is protected by statute or by the constitution. Cf. Alice P., 367 So. 2d at 1048, 1052`, 1053, n. 2 (A physician established that he was substantially affected by a proposed agency rule to limit
Medicaid funding for elective non-therapeutic abortions challenged as constituting an impoundment of funds appropriated by the Legislature and as containing an incorrect summary of the estimate of the economic impact of the proposed rule on the basis of testimony that he had been a Medicaid provider for five years; that he had been Director of an abortion clinic for the previous four and one-half years; that approximately 13 percent of the clinic's abortions during that period were funded by Medicaid; and that the Medicaid funding cutoff had caused the number of patients patronizing the clinic to decline significantly.) Therefore, Dr. Watson has standing to assert that his own statutory or constitutional rights are violated by Rule 59G-4.230.
In the Petitioners' Proposed Final Order, however, Dr. Watson does not contend that the interest he seeks to protect is his own economic interest. Rather, he asserts that the interest he seeks to protect is the constitutional right of his Medicaid-eligible patients to equal protection under the Florida Constitution. Dr. Watson does not, however, satisfy the "zone of interest" element of the Lanoue/Ward "substantially affected" test when he seeks to assert the rights of third parties, and he does not have standing to challenge the facial constitutionality of Rule 59G-4.230 on behalf of his patients.
The "injury in fact" element of the Lanoue/Ward "substantially affected" test is derived from the "case or controversy" requirement of Article III of the United States Constitution: In a federal case, the first question that must be resolved is "whether the plaintiff-respondents allege 'injury in fact,' that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Art. III jurisdiction." Singleton v. Wulff, 428 U.S. 106, 112 (1976). The "zone of interest" element of the Lanoue/Ward "substantially affected" test is derived from the federal jurisprudential requirement that, except under very limited circumstances, a person must litigate his or her own rights: In a federal case, the second question that must be resolved is "whether, as a prudential matter, the plaintiff- respondents are proper proponents of the particular legal rights on which they base their suit." Id.; id. at 123 (Powell, J., concurring in part and dissenting in part.)
In deciding whether a party should be allowed to litigate the rights of third parties, the courts consider two factual elements: "[T]he relationship of the litigant to the person whose right he seeks to assert," and "the ability of the third party to assert his own right." Id. at 114-16.15 The court in Singleton recognized that the relationship between a physician and a woman seeking an abortion is sufficiently close
that "[a]side from the woman, herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State's interference with, or discrimination against, that [abortion] decision." Id. at 117. Therefore, Dr. Watson's relationship with his patients is sufficiently close that he is qualified to litigate the constitutional rights of his patients to Medicaid funding for medically necessary abortions.
The Supreme Court's qualification of the holding that a physician is uniquely qualified to litigate the constitutional rights of his or her patients recognizes that the woman herself is the person best qualified to litigate her own constitutional rights in the context of the abortion decision. As recognized by the Court in Singleton, however, numerous impediments may exist to a woman's asserting her own rights, such as the loss of privacy and the imminent mootness, when the challenge is to restrictions on the right to an abortion, of an individual woman's claim. Id.
In this case, however, neither privacy concerns nor imminent mootness has interfered with Ms. Navarrete's ability to assert her constitutional right to equal protection under Article I, Section 2, of the Florida Constitution, in this rule challenge. See Renee B. v. Florida Agency for Health Care
Administration, 790 So. 2d 1036, 1038 (Fla. 2001)(The petitioners therein all received abortions that were not covered
by Medicaid using non-state funds.) Accordingly, Dr. Watson may not assert the constitutional rights of his patients in this rule challenge; there is no impediment to Ms. Navarrete's asserting her own right to Medicaid funding for her October 2001 medically necessary abortion, and she is, therefore, the most qualified person to litigate her own constitutional rights.16 Cf. State, Department of Health v. North Florida Women's Health and Counseling Services, Inc., 26 Fla. L. Weekly D419 (Fla. 1st DCA Feb. 9, 2001), review granted, 799 So. 2d 218 (Fla.
2001)(Physicians had standing to assert the privacy and other constitutional rights of their minor patients in a challenge to the constitutionality of the Florida statute requiring physicians to provide notice to the parent(s) of a minor prior to performing an abortion because "experience has taught that they [minors] cannot count on being able to litigate the question to a final resolution.").
A Choice for Women
Because A Choice for Women has failed to establish an injury in fact, it has not satisfied the first element of the Lanoue/Ward "substantially affected" test and, therefore, does not have standing to challenge the subject rules.
Rule Invalidity
Section 120.52(8), Florida Statutes (2002), provides in pertinent part:
"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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(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
In the Petition to Determine Invalidity of Existing Rules, the Petitioners allege that the challenged rules contravene Section 409.908, Florida Statutes (2002), which requires, in pertinent part, that Medicaid providers be reimbursed in accordance with state law. Ms. Navarrete and Dr. Watson have not cited any "state law" that is violated by the challenged rules except the right to equal protection in
Article I, Section 2, of the Florida Constitution. Accordingly, Ms. Navarrete and Dr. Watson have failed to establish grounds on which the challenged rules may be declared an invalid exercise of delegated legislative authority by an administrative law judge of the Division of Administrative Hearings.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:
A Choice for Women, Inc., is dismissed as a Petitioner; and
The Petition to Determine Invalidity of Existing Rules is dismissed.
DONE AND ORDERED this 17th day of October, 2002, in Tallahassee, Leon County, Florida.
PATRICIA HART MALONO
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2002.
ENDNOTES
1/ Appearing as qualified representative pursuant to the order entered August 12, 2002.
2/ Appearing as qualified representative pursuant to the order entered August 12, 2002.
3/ With the concurrence of the parties, a separate order was not issued, and this shall serve as the written denial of AHCA's Motion in Limine.
4/ With the concurrence of the parties, a separate order was not issued, and this shall serve as the written denial of AHCA's Motion to Dismiss.
5/ The testimony of Dr. Hill was presented in the form of written and videotape transcripts of a deposition taken August 23, 2002, which transcripts were received into evidence
as Petitioners' Exhibit 1. The testimony of Ms. Navarrete, Dr. Henshaw, Dr. Gordon, and Dr. Walker was presented via telephone, and affidavits from the notaries swearing these witnesses were provided subsequent to the hearing.
6/ Respondent's Exhibit 3.
7/ This language is virtually identical to that set forth on page 2-3 of the Florida Medicaid Hospital Services Coverage and Limitations Handbook, which is incorporated by reference into Rules 59G-4.150 and 59G-4.160. A copy of page 2-3 of this handbook was included in Appendix D to the Petitioner's Petition to Determine Invalidity of Existing Rules, but, for some reason, no excerpt from the Florida Medicaid Hospital Services Coverage and Limitations Handbook was introduced into evidence at the hearing.
8/ Respondent's Exhibit 4.
9/ The most recent version of Rule 59G-5.020, Florida Administrative Code, provides as follows:
All advanced registered nurse practitioners; ambulatory surgery centers; audiologists; birthing centers; child health check-up providers; chiropractors; community mental health services providers; county health departments; county health department certified match providers; dentists (when submitting claims on the HCFA-1500 claim form); durable medical equipment and medical supply providers; early intervention service providers; federally qualified health centers; freestanding dialysis centers; hearing aid specialists; home health agencies; independent laboratories; licensed midwives; Medicaid certified school match providers; medical foster care providers; opticians; optometrists; physicians; physician assistants; podiatrists; portable x-ray providers; prescribed pediatric extended care centers; registered nurse first assistants; rural health clinics; therapists; and visual services providers enrolled in the Medicaid program and their billing agents must comply with the
provisions of the Florida Medicaid Provider Reimbursement Handbook, HCFA-1500 and Child Health Check-Up 221, updated May 2001, which is incorporated by reference and available from the fiscal agent.
10/ A first trimester abortion normally costs $380.00, and the price increases $100.00 each week after the first 12 weeks.
11/ Ms. Navarrete was a client of the Department of Children and Families in October 2001, and, in August 2002, she was the mother of three children and was receiving public assistance.
It may reasonably be inferred from these facts that she did not have substantial assets in October 2001.
In addition, counsel for AHCA asked Ms. Navarrete during cross-examination whether she was enrolled in the Medicaid program between June 2001 and March 2002, to which she replied that she was enrolled in the "cost sharing Medicaid." (Tr. at 32.) AHCA did not, however, elicit any evidence in its case-in- chief with respect to the status of Ms. Navarrete's Medicaid eligibility or enrollment status in October 2001.
12/ Although claims for Medicaid reimbursement must be filed within one year of the service, the Petition to Determine Invalidity of Existing Rules was filed on August 2, 2002, well within the one-year limitation.
13/ AHCA argues in its Proposed Final Order that Ms. Navarrete did not suffer an injury in fact because she did not request that Dr. Watson or A Choice for Women file either a pre- authorization request for Medicaid funding for the abortion or a claim for Medicaid reimbursement after she had the abortion and because she did not directly submit a reimbursement request to Florida Medicaid. According to AHCA, "ergo, no claim existed to be denied under the challenged rule," and Ms. Navarrete should be dismissed as a Petitioner for lack of standing. (Paragraph 7 of AHCA's Proposed Conclusions of Law.) This argument is rejected.
It is undisputed that Medicaid funding will not be provided in Florida for an abortion unless a pre-authorization request or reimbursement claim is accompanied by a completed and signed State of Florida Abortion Certification Form in which a physician certifies that the abortion is necessary because the life of the woman would be in danger without the abortion or
because the pregnancy is the result of rape or incest. It is also undisputed that, in Dr. Watson's medical opinion,
Ms. Navarrete's life was not in danger without the abortion and that he could not sign the State of Florida Abortion Certification Form required by the challenged rules as a predicate for receiving Medicaid reimbursement for medically necessary abortions. It would, therefore, have been futile for Dr. Watson or Ms. Navarrete, assuming she could do so on her own account, to file a pre-authorization request or claim for reimbursement because both would have been incomplete and would have been denied. Accordingly, the fact that no claim for Medicaid funding for the October 2001 abortion was made by or on behalf of Ms. Navarrete does not render her injury speculative or conjectural. See Times Publishing Co. v Department of Corrections, 375 So. 2d 307, 309-10 (Fla. 1st DCA 1979)(A newspaper had standing to challenge a rule governing access to prisoners for interviews even though the newspaper failed to seek access under the challenged emergency rule, where a request for access would have been futile.)
Nevertheless, AHCA contends that, had Ms. Navarrete filed a pre-authorization request for Medicaid funding for the abortion, the request would have been approved and would not, therefore, have been futile. AHCA bases this assertion on the testimony of its medical consultant in the area of obstetrics and gynecology, Dr. John Barthelmess. Dr. Barthelmess testified that, had he been asked to review a pre-authorization request for Medicaid funding for Ms. Navarrete's abortion, he would have approved the request. There is, however, no evidence that Dr. Barthelmess has the authority to approve Medicaid reimbursement requests or pre-authorization requests for Medicaid funding. In addition, Lynn Metz, AHCA's coordinator of Medicaid physician services, testified unequivocally that both a pre-authorization request for Medicaid funding for an abortion and a request for Medicaid reimbursement for an abortion would be denied unless the request or claim was accompanied by a State of Florida Abortion Certification Form completed and signed by the physician.
14/ AHCA concedes in its Proposed Recommended Order that
Ms. Navarrete would meet the "zone of interest" element of the test if she had been eligible for Medicaid in October 2001.
15/ For an extensive discussion of federal and Florida law of jus tertii, or third party, standing, see Alterra Healthcare Corp. v. Estate of Francis Shelley, 27 Fla. L. Weekly S735 (Fla. Sept. 12, 2002).
16/ The assertion in the Petitioners' Proposed Final Order that the Court in Singleton found that the physicians had standing to assert the constitutional rights of their patients is incorrect. Only a plurality, consisting of Justices Blackmun, Brennan, White, and Marshall, found that the physicians had the right to litigate the constitutional rights of their patients; Justice Stevens concurred only with the holding that the physicians had the right to assert their own constitutional rights, and Justice Stevens, together with Justice Powell, who was joined in a dissent by Justices Burger, Steward, and Rehnquist, comprised the majority of the Court that refused to recognize the standing of the physicians to assert the constitutional rights of their patients.
COPIES FURNISHED:
Bonnie Scott Jones, Esquire
The Center for Reproductive Law and Policy
120 Wall Street, 14th Floor New York, New York 10005
Larry Helm Spalding, Esquire ACLU Foundation of Florida
314 West Jefferson Street Tallahassee, Florida 32301
George D. Shirejian, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Building 3
Tallahassee, Florida 32308-5403
Carroll Webb
Executive Director and General Counsel Joint Administrative Procedures Committee Holland Building, Room 120
Tallahassee, Florida 32399-1300
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116
2727 Mahan Drive
Tallahassee, Florida 32308
Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive
Tallahassee, Florida 32308
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 07, 2004 | Mandate | |
| Apr. 21, 2004 | Opinion | |
| Oct. 17, 2002 | DOAH Final Order | Petitioner failed to prove that the challenged rules contravened the statute implemented by the rules and the Petition was dismissed. |
