Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2: The Respondent had voluntarily surrendered the license for this assisted living facility and voluntarily closed this assisted living facility. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Ss The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially Filed November 3, 2014 4:29 PM Division of Admihistrative Hearings affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 6. The Respondent shall pay the Agency $6,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 7. The Agency’s Bureau of Central Services and the Assisted Living Unit shall maintain an alert on the Respondent’s controlling interest, Aida Salgueiro, in order to ensure compliance with the terms of the Settlement Agreement. ORDERED at Tallahassee, Florida, on this ro 2) day of Crctotecr _ , 2014. ek, Secretary alth Care Administration Elizabeth Agency for
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_cgpy of this Final Order was served-6n the below-named persons by the method designated on this 52>-day of TE , 2014. 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Catherine Anne Avery, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration Alba M. Rodriguez, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Aida Salgueiro Medicaid Contract Management Pretty Family Home Care Agency for Health Care Administration 2980 S.W. 103" Court (Electronic Mail) Miami, Florida 33165 (U.S. Mail) Ashley Jenkins Brian J. Perreault, Jr. Bureau of Central Services Lydecker Diaz Agency for Health Care Administration (Electronic Mail) 1221 Brickell Avenue, 19" Floor Miami, Florida 33131-3240 (U.S. Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether proposed amendments to Florida Administrative Code Rule 59G-8.200 are invalid exercises of delegated legislative authority.
Findings Of Fact AHCA is designated as the single state agency for administering the Federal/State Medicaid Program pursuant to Section 409.902, Florida Statutes (2003).2 The Florida Medicaid Developmental Services Home and Community-Based Services Waiver Program (HCBS or DS waiver services) is one of several Medicaid waiver programs. HCBS is designed to provide services to individuals with developmental disabilities to allow them to remain in the community and avoid placement in institutions. AHCA and DCF have entered into an agreement, by which DCF has agreed to implement the HCBS program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS program, and DCF is required to operate the program in accordance with those policies, rules, and regulations. The Florida Association of Rehabilitation Facilities, Inc. (FARF), is a not-for-profit 501(c)3 corporation, and a state-wide association of corporate organizations providing services to handicapped and developmentally disabled persons. Of the 61 members of FARF, 51 are Medicaid home and community- based waiver providers who provide services to developmentally disabled persons, who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. The Association for Retarded Citizens of Florida, Inc. (ARC), a not-for-profit corporation, is a state-wide association which works through advocacy, education, and training to reduce the incidence of mental retardation and other developmental disabilities. It has 43 affiliate chapters located throughout the state. Of those affiliate chapters, 40 are Medicaid providers, which provide Medicaid services to developmentally disabled persons who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. ARC also has approximately 1,500 individual members. Between 25 to 50 percent of the individual members are either self-advocate recipients of services from the HCBS waiver program or family members or guardians of HCBS waiver program recipients. On January 17, 2003, AHCA published a Notice of Rule Development concerning proposed amendments to Florida Administrative Code Rule 59G-8.200. The proposed amendments incorporated by reference changes to a handbook entitled "Developmental Services Waiver Services and Coverage and Limitations Handbook" (Handbook). AHCA published its Notice of Proposed Rule on July 25, 2003. A First Notice of Change was published on October 17, 2003, and a Second Notice of Change was published on November 26, 2003. A Notice of Additional Hearing was published on November 26, 2003, and a final public hearing on the proposed amendments was held on January 6, 2004. The Handbook's purpose is stated in the Handbook as follows: The purpose of the Medicaid handbooks is to furnish the Medicaid provider with the policies and procedures needed to receive reimbursement for covered services provided to eligible Florida Medicaid recipients. The Handbook provides that a provider must have a signed DS Waiver Services Agreement with DCF in order to be eligible to provide DS waiver services. The Developmental Disabilities Program Medicaid Waiver Services Agreement (DS Waiver Services Agreement) requires the provider to comply with all the terms and conditions contained in the Handbook for specific services rendered by the provider. During the rulemaking process, AHCA involved stakeholders in the development of the amendments to Florida Administrative Code Rule 59G-8.200, including changes to the Handbook. A stakeholder is an organization or individual who has a primary interest in the HCBS waiver program or is directly affected by changes in the program. At the final hearing, Shelly Brantley, former bureau chief of AHCA's Medicaid Program Development, correctly described ARC and FARF as stakeholders for the HCBS waiver program. Petitioners conducted surveys of their membership to determine whether the proposed changes to the Handbook would adversely affect their members. Surveys were also conducted to determine whether any of the members were small businesses as that term is defined in Section 288.703, Florida Statutes. Of the 51 provider members in FARF, 15 qualified as small businesses having less than 200 employees and less than $5 million in total assets. Of ARC's 40 provider members, 38 met the small business definition of Section 288.703, Florida Statutes. Such surveys by associations provide the type of information that would be commonly relied upon by reasonably prudent persons in the conduct of their affairs. AHCA acknowledged that small businesses would be impacted by the changes to the Handbook, and the impact to small businesses was discussed and considered in developing the proposed rules. As of the date of the final hearing, AHCA had not sent a copy of the proposed rules to the small business ombudsman of the Office of Tourism, Trade, and Economic Development as required by Subsection 120.54(3)(b)2.b., Florida Statutes. Petitioners have alleged that AHCA failed to follow applicable rulemaking procedures by not having the Handbook available at the time of the publication of the notice of rulemaking on July 25, 2003, and the notices of changes published on October 17, 2003, and November 21, 2003. Although the Handbook was incorporated by reference as an amendment to Florida Administrative Code Rule 59G-8.200(12), the major purpose of the amendment was to make changes in the Handbook. The Notice of Rulemaking published on July 25, 2003, provided that the Handbook was available from the Medicaid fiscal agent. However, the revised Handbook was not generally available until August 2003. Further revisions to the Handbook were not readily available at the time the notices of changes were published. The lack of availability of the Handbook on the dates of the publication of the notices did not impair the fairness of the rulemaking proceedings or the substantial interests of Petitioners. Petitioners had an opportunity to review the handbook and to give input to AHCA concerning the proposed changes. Petitioners did get copies of the revised Handbook in time to meaningfully participate in the two public hearings which were held on the proposed rules, and Petitioners had an opportunity to provide written comments on the revisions to the Handbook. At the final public hearing held on January 6, 2004, AHCA provided the participants with a "clean copy" of the Handbook, meaning a copy in which the underlines and strike- throughs had been deleted and the text read as it would read when published in the Florida Administrative Code. This caused confusion among the attendees at the public hearing because "clean copy" Handbooks had not been available to the public prior to the final hearing. With one exception concerning residential habilitation services for children, which is discussed below, the "clean copy" of the Handbook was essentially the same as the version which had been available to the public, in which added language was underlined and deleted language was struck-through. The interests of Petitioners and the fairness of the rulemaking proceedings were not impaired by the use of a "clean copy" of the Handbook at the January 2004 final public hearing. A state Medicaid Agency is required to provide notice to a recipient ten days before the agency takes action to reduce a benefit pursuant to 42 CFR Section 431.200. The evidence did not establish whether AHCA provided notice to HCBS waiver recipients that the proposed changes to the rule would reduce certain benefits. Some of Petitioners' witnesses did not think that any of their individual members received notice, but there was no direct evidence to establish that no notice was provided. Petitioners challenged the following provision of the Handbook: Providers wishing to expand their status from a solo provider to an agency provider, or a provider desiring to obtain certification in additional waiver services must be approved by the district in order to expand. A provider must have attained an overall score of at least 85% on their last quality assurance monitoring conducted by the Agency, the Department, or an authorized agent of the Agency or Department in order to be considered for expansion. Petitioners argue that the language in this portion of the Handbook is vague and gives AHCA unbridled discretion when "considering" a provider for expansion. The language is not vague and does not give AHCA unbridled discretion when a provider is considered for expansion. In order for a provider to be considered for expansion, the provider must have scored at least 85 percent on their last quality assurance monitoring. The 85-percent score is a threshold which the provider must meet before AHCA will determine whether the provider meets other criteria for expansion, which are set out in the Handbook, statutes, and rules. Recipients have a freedom of choice in selecting their service providers from among enrolled, qualified service providers. Recipients may change service providers to meet the goals and objectives set out in the their support plans. Petitioners have challenged the following provision, which AHCA proposes to add to the freedom of choice section of the Handbook: Freedom of choice includes recipient responsibility for selection of the most cost beneficial environment and combination of services and supports to accomplish the recipient's goals. Petitioners contend that the language is vague, arbitrary, and capricious, fails to establish adequate standards for agency discretion, and vests unbridled discretion in AHCA. The term "cost beneficial" is defined in the Handbook to mean "economical in terms of the goods or services received and the money spent." The Handbook also contains the following definition for a support plan: Support plan is an individualized plan of supports and services designed to meet the needs of an enrolled recipient. This plan is based upon the preferences, interests, talents, attributes and needs of a recipient. The recipient or parent, legal guardian advocate, as appropriate, shall be consulted in the development of the plan and shall be receive a copy of the plan and any revisions made to the plan. Each plan shall include the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives and a specification of all services authorized. The plan shall include provisions for the most appropriate level of care for the recipient. The ultimate goal of each plan, whenever possible, shall be to enable the recipient to live a dignified life in the least restrictive setting, appropriate to the recipient's needs. The support plan must be completed according to the instructions provided by the Department. (emphasis supplied) The "most cost-beneficial" language is not new. It already exists in the current Handbook, which is incorporated by reference in Florida Administrative Code Rule 59G-8.200. The proposed amendment does not impose a new requirement on recipients, and it is not vague, arbitrary, or capricious. The "most cost beneficial" language is consistent with the Handbook provision defining the terms "medical necessity" or "medically necessary" as they relate to the determination of the need and appropriateness of Medicaid services for a recipient. One of the conditions needed for a determination that a service is a medical necessity is that the service "be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available, statewide." Petitioners have challenged the following provision of the Handbook: All direct service providers are required to complete training in the Department Direct Care Core Competencies Training, or an equivalent curriculum approved by the Department within 120 days from the effective date of this rule. Said training may be completed using the Department's web- based instruction, self-paced instruction, or classroom instruction. Providers are expected to have direct care staff who are competent in a set of direct care core areas. A curriculum has been developed to provide assistance to the providers in training their direct staff to become competent in these direct care areas. The training curriculum consists of two modules, with three different training formats. Petitioners contend that the curriculum was not completely developed, and would not be in existence at the time the rules are adopted. The Web-based format was completed in the fall of 2003, and the other two formats were completed in the spring of 2004. Thus, the Department's Direct Care Core Competencies Training is available. Petitioners have challenged the following provision of the Handbook: The current Department approved assessment, entitled Individual Cost Guidelines (ICG), is a tool designed to determine the recipients' resource allocations of waiver(s) funds for recipients receiving supports from the State of Florida, Department of Children and Families, Developmental Disabilities Program (DDP). The ICG is a validated tool that provides a rational basis for the allocation of the waiver funds to individuals with developmental disabilities. Waiver(s) funds refers to funds allocated through the Developmental Services HCBS waiver, the Supported Living Wavier, and the Consumer- Directed Care Plus waiver (CDC+). The instructions for the completion of this assessment is provided by the Department and is completed at least every three years or as determined necessary by the recipient and the waiver support coordinator, due to changing needs of the recipients. It is Petitioners' contention that the ICG, like the Direct Care Core Competencies Training, was not completed and would not be available to the providers prior to the adoption of the proposed rules. The ICG was completed in the fall of 2003. Its validity and reliability as an assessment tool for assessing needs of individual recipients has been tested. During September and October 2003, a three-day workshop was held in every district of DCF for the purpose of training workers to administer the ICG. The first day of the workshop provided an overview for interested persons. Hardcopies of the ICG were handed out for review by the participants, including providers. Petitioners have challenged the portion of the Handbook which provides, "[t]he primary live in support worker shall be named on the lease along with all other recipients." It is Petitioners' position that the proposed language is in conflict with unchallenged language in the proposed Handbook and is contrary to the guidelines in the State Medicaid Manual. The unchallenged portion of the Handbook at page 2-77 provides: The in-home support provider or the provider's immediate family shall not be the recipient's landlord of have any interest in the ownership of the housing unit as stated in Chapter 65B-11.005(2)(c), F.A.C.[3] If renting, the name of the recipient receiving in-home support services must appear on the lease singularly or as a guarantor. The State Medicaid Manual provides at page 4-450, subsection 12, that "FFP for live-in care givers is not available in situations in which the recipient lives in a caregiver's home or a residence owned or leased by the provider of Medicaid services." AHCA contends that the purpose for requiring the live- in support worker to sign the lease is to prevent the live-in home support worker (worker) from taking advantage of the recipient by failing to contribute anything to the normal living expenses. Having the worker named on the lease does not guarantee that the worker will pay his or her portion of the rent. The recipient is still liable to the landlord whether the worker pays, and the worker would be liable whether the recipient paid. The unchallenged portion of the proposed changes to the Handbook provides that the worker must pay an equal share of the room and board for the home. Having the worker on the lease poses problems when the worker is no longer providing services. The landlord may not be willing to renegotiate the lease by substituting another worker on the lease. Additionally, the worker may not wish to vacate the premises just because he or she is no longer providing services, and, since the worker is a lessee of the property, the recipient may have to find new quarters if the recipient does not desire to share the home with the worker. Petitioners have challenged the portion of the Handbook which provides that "[t]he amount of respite services are determined individually and limited to no more than thirty (30) days per year, (720 hours) per recipient." Respite care is defined in the Handbook as "a service that provides supportive care and supervision to a recipient when the primary caregiver is unable to perform these duties due to a planned brief absence, an emergency absence or when the caregiver is available, but temporarily unable to care for or supervise the recipient for a brief period of time." Respite care services are designed to be provided for a short time. In determining the amount of time to limit respite care, AHCA reviewed historical data and did not find that many individuals used respite care service for more than two weeks. Stakeholders, family members of recipients, and recipients were involved in discussions with AHCA concerning the time limitation to 30 days. AHCA reviewed other waiver state agencies and found that waivers for individuals with developmental disabilities have similar limits on respite care. Individuals whose primary caregiver may become unavailable for a period of greater than 30 days may receive other types of services to assist them while their caregivers are absent. The types of services that may be available are determined on a case-by-case basis. Petitioners have challenged the portion of the Handbook which provides: III. FINES AND PENALTIES In accordance with the provisions of Section 402.73(7), Florida Statutes, and Section 65-29.001, Florida Administrative Code, penalties may be imposed for failure to implement or to make acceptable progress on such quality improvement plans as specified in Section II.A of this Agreement. The increments of penalty imposition that shall apply, unless the Department determines that extenuating circumstances exist, shall be based upon the severity of the non-compliance, non-performance or unacceptable performance that generated the need for a quality improvement plan. The penalty, if imposed, shall not exceed ten percent (10%) of the total billed by the provider for services during the period in which the quality improvement plan has not been implemented, or in which acceptable progress toward implementation has not been made. This period is defined, as the time period from receipt of the report of findings to the time of the follow-up determination that correction or progress toward improvement has not been made. Non-compliance that is determined to have a direct effect on individual health and safety shall result in the imposition of a ten percent (10%) penalty of the total payments billed by the provider during the period in which the quality improvement plan has not been implemented or in which acceptable progress toward implementation has not been made. Non-compliance involving the provision of training responsibilities or direct service to the individual not having a direct effect on individual health and safety shall result in the imposition of a five percent (5%) penalty. Non-compliance as a result of unacceptable performance of administrative tasks, such as policy and procedure development, shall result in the imposition of a two percent(2%) penalty. In the event of nonpayment, the Department will request the Agency for Health Care Administration deduct the amount of the penalty from claims submitted by the provider for the covered time period. This penalty provision is contained in the DS Waiver Services Agreement contained in Appendix B of the Handbook. The providers are required to complete the agreement to provide services to recipients and are required to comply with the terms and conditions of the agreement. Although the agreement is between the Developmental Disabilities Program of DCF and the providers, DCF is entering into the agreement pursuant to an interagency agreement between DCF and AHCA that DCF will operate the waiver program on behalf of AHCA. AHCA establishes the rules, policies, procedures, regulations, manuals, and handbooks under which DCF operates the program. The inclusion of the penalties provision in the agreement is done based on the authority of Subsection 402.73(7), Florida Statutes, and Florida Administrative Code Rule 65-29.001, which govern the authority of DCF, not AHCA. If AHCA seeks to impose penalties on providers relating to the waiver program, it can do so only based on its statutory authority. DCF merely stands in the shoes of AHCA and has only the authority for the operation of the waiver program that AHCA would have if AHCA were operating the program itself. Petitioners have challenged the portion of the Handbook which reduces the maximum limits of residential habilitation services from 365 days to 350 days. AHCA contends that the reduction of days is merely a reduction in the maximum number of days that a provider can bill for residential habilitation services. The rate at which the provider is being compensated includes a 15-day vacancy factor. The State Medicaid Manual from the Center for Medicare and Medicaid allows for this type of reimbursement and provides: FFP [federal financial participation] is not available to facilities providing services in residential settings on days when waiver recipients are temporarily absent and are not receiving covered waiver services (sometimes called reserve bed days). Medicaid payment may be made only for waiver services actually provided to an eligible recipient. Since providers incur fixed costs such as rent, staff salaries, insurance, etc., even when a waiver recipient is temporarily absent, you may account for such continuing costs when developing payment rates for these providers. For example, rent is generally paid for a period of 1 month. However, day habilitation services are generally furnished only 5 days per week. You may take the entire month's rental cost into consideration in setting the rate paid for services furnished on the days the recipient is present. Similarly, if data shows that a recipient is served in residential habilitation an average of 325 days per year and the slot is held open when the recipient is on a leave of absence, you may consider the entire yearly cost to the provider when establishing its rate of payment. However, in the rate setting process, it must be assumed that a facility will not have a 100 percent utilization rate every day of the year. Consequently, payment rates are established by dividing the provider's total allowable costs by the number of Medicaid patient days you estimate recipients will actually utilize. The change from 365 days to 350 days is not a reduction in service, it is a reimbursement method which utilizes a 15-day vacancy factor. The number of days chosen was based on information furnished by the providers to AHCA during a survey completed in July 2003. Based on the survey, it was concluded that the providers billed for services for 345 to 350 days per year. Contrary to its present position, Petitioner FARF took the position early in the rulemaking procedure that billing on a 365-day year would be harmful to the providers. In a letter to AHCA dated February 4, 2003, Terry Farmer, CEO of FARF, advised: Attached is a compilation of written comments from Florida ARF members on the proposed rule #59G-8.200, titled "the Home and Community Based Services Waiver." * * * Going to the 365 day billing schedule will create hardships for consumers, families and providers because it discourages weekly home visits and doesn't address frequent hospitalizations or vacations. The 15 day down factor is very low for consumers who want to go home 2-3 times a month and would also like a yearly vacation. Recommendation: Increase the down factor to 5 days per month (60 days per year) to accommodate for absences in order to reduce the negative impact of home visits and vacations upon both the consumer and group home provider. This is particularly important when the focus is on meeting Personal Outcomes that may result in the consumer being away from the group home. Petitioners have challenged the portion of the Handbook which deleted the following provision: Residential habilitation services may be provided to children residing in a licensed facility or children with severe behavioral issues living in their family home. The child must have a written behavior analysis service plan that is written and monitored by a certified behavior analyst, in order for the services by a behavior assistant to be reimbursed under residential habilitation. The focus of the service is to assist the parents in training and implementing the behavior analysis services plan. At the final hearing, AHCA conceded that it was in error when it deleted the language relating to the provision of residential habilitation services to children and stated that the language would be reinstated. Section 409.908, Florida Statutes, provides: 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. AHCA set out its rate methodology for Developmental Services Home and Community Based Services rate reimbursement in Appendix A of the Handbook. Petitioners have challenged the rate methodology, stating that it was vague, failed to establish standards for agency discretion and vested unbridled discretion in AHCA's determination of rate reimbursement. The rate of reimbursement cannot be determined based on rate methodology. However, based on a reading of the introductory language to the rate methodology, it does not appear that it was the intent of AHCA to be able to determine the rates by using the rate methodology in Appendix A, and staff of AHCA readily admit that a specific rate for a specific service cannot be determined using the language in the methodology alone. The first paragraph of the methodology states: The following section describes key aspects of the Developmental Services (DS) Home and Community Based Services (HCBS) rate reimbursement structure. Specifically the cost items for each rate component are listed, agency and independent contract status is defined, and the rate structure for various services is described. It appears that the methodology set out in Appendix A is an overview of the process that was used in determining the rates. AHCA is in the process of developing rules that set out the actual rates that will be used. Petitioners have challenged the portion of the Handbook which provides that the maximum limit for adult day training is 240 days, a reduction from 260 days. The reduction of adult day training days is a limitation on services and a limitation on billing. The rate for providing adult day training contains a similar vacancy factor as contained in the rate for residential habilitation services. The purpose of adult day training is to provide training for skills acquisition. Adult day training is provided five days a week, meaning that the maximum time any recipient could spend in adult day training is 260 days a week. However, adult day training is not provided 260 days a year. No training is provided on holidays such as Christmas, Thanksgiving, Memorial Day, Labor Day, and other normal holidays. Generally, individuals do not attend training 260 days a year for other reasons such as hospitalizations. In determining that 240 days would be sufficient in amount, duration, and scope, AHCA contacted providers and learned that recipients generally do not receive adult day training more than 240 days per year.
Conclusions Having reviewed the Notice of Intent to Deny (hereinafter "NOID"), and all other matters of record , the Agency for Health Care Administration finds and concludes as follows: . The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing status and administrative code provisions. The Agency issued the attached NOID and Elections of Rights form to the Petitioner with respect to its license renewal application. (Ex. A) The Election of Rights form advised of the right to an administrative hearing. The Petitioner received the NOID and timely filed the Election of Rights form with the Agency Clerk. (Ex. B) On September 30, 2011, the Agency filed a motion to dismiss with the Agency Clerk, citing the mootness of the NOID due to the revocation of the underlying assisted living facility license. (Ex. C) The Agency Clerk granted the motion and directed the entry of a final order. (Ex. D) Based upon the foregoing, it is ORDERED: The Agency's NOID is withdrawn as moot due to the revocation of the underlying license to operate the assisted living facility in question. ORDERED in Tallahassee, Florida, on this L2_ day of , 2012. Eliza Agency for are Administration Filed February 21, 2012 2:15 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of.Jhis Final Order was served on the below- named persons/entities by the method designated on this ZL_ y of u,:v.../ ,2012. 7 Richard Shoop, Agency C e Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Shaddrick Haston, Unit Manager Assisted Living Facility Unit Agency for Health Care Administration (Interoffice Mail) Tria Lawton-Russell Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) John D.C. Newton, II Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lawrence Bessser, Esquire Samek and Besser 1200 Brickell Avenue, No. 1950 Miami, Florida 33131 (U.S. Mail) 2
Conclusions Having reviewed the Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (hereinafter " NOIW") , and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing status and administrative code provisions. The Agency issued the attached NOIW and Elections of Rights form to the Petitioner with respect to its change of ownership (hereinafter "CHOW") application. (Ex. A) The Election of Rights form advised of the right to an administrative hearing. The Petitioner received the NOIW and timely filed the Election of Rights form with the Agency Clerk. (Ex. B) On September 30, 2011, the Agency filed a motion to dismiss with the Agency Clerk, citing the mootness of the NOIW due to the revocation of the underlying assisted living facility license. (Ex. C) The Agency Clerk granted the motion and directed the entry of a final order. (Ex. D) Based upon the foregoing, it is ORDERED: 1. The Agency's NOIW is withdrawn as moot due to the revocation of the underlying license to operate the assisted living facility in question. ORDERED in Tallahassee, Florida, on this -1