04-1147 C.F. V. DCF

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04-1147 C.F. V. DCF

State: Florida

Court: Florida Third District Court

Docket No: 04-1147 C.F. V. DCF

Case Date: 12/28/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2005

** C.F., ** Appellant, ** v. ** DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. ** ** LOWER TRIBUNAL NO. 03-3583 CASE NO. 3D04-1147

Opinion filed December 28, 2005. An Appeal from the State of Florida Department of Children and Families, Office of Appeal Hearings. Lizel Gonzalez; and Miriam Harmmatz; and Anne Swerlick, for appellant. Charles J. Christ, Jr., Attorney General, and Charles M. Fahlbusch, Assistant Attorney General, for appellee.

Before LEVY, GREEN, and RAMIREZ, JJ. RAMIREZ, J. C.F. appeals the final agency decision of the Department of Children and Families' Office of Appeal Hearings, affirming the

decision of the Department of Children and Families to reduce Medicaid-funded personal care assistance for C.F. from six to four hours per day and finding that the request exceeded medical necessity or that there was no determination that the services were medically necessary. We reverse and remand, finding that

the hearing officer applied overly restrictive definitions of "medical necessity" failed to and "personal its care of assistance" proof for and the

Department

meet

burden

reducing

C.F.'s personal care assistance services from six to four hours per day. FACTUAL AND PROCEDURAL BACKGROUND At the time of the Department's decision, C.F. was a nineyear-old boy with severe disabilities, including mental

retardation, hyaline membrane disease (a form of brain damage), bronchopulmonary dysplasia, gastroesophageal reflux,

retinopathy, asthma, glaucoma in the left eye, and attention deficit hyperactivity disorder. 1 C.F. lives with his mother and

sister, both of whom the Social Security Administration found to be disabled. C.F. therapies: psychological. treated
1

receives

Medicaid speech, also

coverage

for

the

following and is

language, Medicaid

physical, covers his

occupational, tutoring. disease He

by

a

pulmonologist,

infectious

specialist,

C.F. is currently eleven years old.

2

gastrointestinal

specialist,

nephrologists,

two

neurologists,

and an opthamologist.

C.F.'s pediatrician coordinates his care.

As a Medicaid recipient under twenty-one years of age, C.F. is eligible for Early and Periodic Screening, Diagnosis and

Treatment Services ("EPSDT"), a comprehensive benefit for all Medicaid-eligible children which includes necessary health care treatment and other treatments to correct physical and mental conditions whether or not such services are covered under the state Medicaid plan for adults. the Medicaid-funded Home and C.F. has also been enrolled in Community Based Developmental He receives

Services waiver program since November 1, 1999.

personal care assistance ("PCA") services, six hours per day, seven days per week, as part of his waiver services. C.F. cannot bathe, brush his teeth or feed himself without assistance. functions. unattended. care His personal care assistant helps him with these During the day, C.F. can use the bathroom

During the night, he wears a diaper. changes his diapers. C.F.'s

His personal personal care

assistant

assistant also picks him up at school with his mother and then drives him to multiple weekly therapies, including physical and occupational therapy and psychiatrist and tutoring sessions, The

because his mother's sleep apnea prevents her from driving.

personal care assistant participates in the therapies as they require the participation of an adult caretaker, which C.F.'s

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mother is unable to do because of her disabilities, including sleep apnea and depression. C.F. is then driven back home.

C.F.'s long-time treating physician provided the Department with medical evidence that all of the services C.F. receives, which include the six hours per day of personal care assistance, are medically necessary. To reduce the Developmental Services waiver costs, the

Department contracted with Maximus, Inc., a private, for-profit entity that evaluates services for eligible recipients, to

review the waiver files to determine whether certain prescribed services, including the PCA services, met the state's

definitions of those services and "medical necessity," according to the Florida Waiver Administrative Services Code and the Developmental Coverage and

Services

Florida

Medicaid

Limitations Handbook, July 2002.

See Fla. Admin. Code R. 59G-

1.010(166) and Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, July 2002,

incorporated by reference in Fla. Admin. Code R. 59G-8.200(12). C.F.'s file was selected for review, and the Department proposed reducing his PCA services from six to four hours per day.

Although according to his treating physician, C.F.'s condition had not improved that and his needs had not diminished, could be Maximus

concluded

C.F.'s

assistance

needs

adequately

completed in four hours per day.

This amount was approved as

4

medically

necessary. definition

The of

Maximus "medical

reviewer

applied and

the "PCA

Department's

necessity"

services" in making her determination, which contradicted the opinion of C.F.'s treating physician. Accordingly, on June 24, 2003, the Department reduced the amount of personal care assistance as a Development Disabilities Medicaid Waiver service for C.F. from six hours per day to four hours per day. C.F. appealed the decision to the Department's

Office of Appeal Hearings. In March 2004, an administrative hearing was held. The

Department employee responsible for the waiver testified that personal care assistance can be provided through Medicaid. Maximus consultant reviewer, Dr. Emma Guillarte, who The a

has

doctorate in special education, also testified telephonically at the hearing. She stated that she reviewed C.F.'s file to

document the medical necessity for the service. Developmental Services Waiver Services Medicaid

She used the Coverage and

Limitations Handbook, which defined personal care assistance. Dr. Guillarte stated that the Handbook defined personal care assistance "as a service that assists a beneficiary with eating, meal preparation, of such bathing, dressing, The with personal service meals, hygiene also and

activities activities

daily as

living." assistance

included bed

preparation,

making, vacuuming, when these activities are essential to the

5

health and welfare of the beneficiary and when no on else was available to perform them. Dr. Guillarte further quoted the

Handbook stating, "[p]ersonal care assistance in the family home should be provided only to assist the parent or primary

caregiver of children in meeting the personal care needs of the child." She found that personal care assistance was being used

to transport C.F. to his different services or therapies, which was not allowed by the developmental were disabilities hours Medicaid the

waiver.

Furthermore,

there

several

where

personal assistant was being used for laundry, cleaning, helping him to get ready, supervising him at church, which were not personal care activities. Thus, she recommended that his hours

be reduced from six to four. Dr. Guillarte testified that she is not a licensed health care provider. She never examined C.F. She never spoke to

C.F.'s mother or any of C.F.'s doctors, nor did she make any request for information regarding C.F. or his mother's medical condition. She made her recommendation to reduce C.F.'s PCA

hours solely upon a "desk review" of C.F.'s DS waiver support plan and cost plan. Adela Fiallo, was C.F.'s necessary no mother, to get testified C.F. to that his the

transportation appointments available or

therapy were care

and

that

other

transportation that a

services personal

offered.

She

explained

6

assistant

was

necessary

when

C.F.

was

attending

a

therapy

session because C.F. needed assistance with his personal care needs during the time he is going to and from the therapies and during the therapies themselves. The centers where C.F.

receives treatment do not allow patients who are minors to be dropped off; a guardian must be present at all times. Mrs.

Fiallo testified that while she occasionally is able to go to a therapy session, she stated that without a personal care C.F.'s

attendant, C.F. could not participate in his therapies. mother also testified about her own medical

conditions,

including morbid exogenous obesity and obstructive sleep apnea with very pronounced daytime somnolence that prevents her from driving. Dr. Guillarte admitted that she did not take the

mother's medical conditions into consideration when she decided whether the mother could transport C.F. The Department argued that other types of transportation were available to C.F. However, C.F.'s mother testified that For example, C.F.

these options were not feasible for C.F.

cannot use school transportation because the school will only transport him to and from school, not to the therapies. Also,

C.F. must leave school before the end of the school day to attend his therapies. for transportation The school transportation does not allow the end of the school day. In

before

addition, the Department employee who testified at the hearing

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admitted on cross-examination that none of the transportation options suggested by the Department provide for assistance with activities of daily living or assistance with personal care and would not allow for a guardian to remain during the therapies. Another option suggested by the Department, Special

Transportation Services, had the same limitations in terms of providing coverage for an adult to remain with C.F. during the therapies and costs $5.00 per person per round-trip. The Department also disagreed with Dr. Romero-Bolumen,

C.F.'s pediatrician, who prescribed six hours per day of PCA services. Maximus had never requested information from any of

C.F.'s treatment sources, thus Dr. Guillarte was unaware that C.F.'s doctor determined that six hours per day of PCA services was medically necessary. The hearing officer subsequently denied C.F.'s appeal and affirmed the Department's decision to reduce the amount of

personal care assistance hours available to C.F.

The hearing

officer determined that C.F.'s six hours per day of personal care assistance exceeded medical necessity or there was no

determination that the service was medically necessary.

In the

Final Order, the hearing officer stated that C.F.'s treating physician did not carry more weight because "though the

petitioner's physician showed extensive medical knowledge of the petitioner's medical conditions and knowledge of PCA services in

8

general, he did not indicate an awareness of the Department's Medicaid Waiver Program limitations, etc [sic], related to PCA's services." The definition of personal care assistance given in

the Final Order is, "[p]ersonal care assistance in the family home should be provided only to assist the parent or primary caregiver of children in meeting personal care needs of the child." The hearing officer continued: As shown in the Findings of Fact, the petitioner's treating physician indicated that PCA services are necessary for the petitioner to be utilized for supervision, transportation and for service coverage out of the family home, all of which do not comply with the definition noted in the above referenced Department Development Services Waiver Services Medicaid Coverage and Limitations Handbook. Thus, the hearing officer finds the treating physician's medical necessity definition does not conform or meet the Department's definition as per the above cited authorities for the PCA services. LEGAL ANALYSIS First, we review this case de novo because an agency's final order based on a conclusion of law is subject to de no review. See Steward v. Dep't of Children & Families, 865 So. 2d In addition, this Court may set it finds that the agency has

528, 530 (Fla. 1st DCA 2003). aside an agency action when

erroneously interpreted a provision of law.

See Metropolitan

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Dade Cty. V. Dep't of Envtl. Prot., 714 So. 2d 512, 515 (Fla. 3d DCA 1998). See also

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