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I.B., ex rel. R.B. v. State, Agency for Health Care Admin.

Florida Court of Appeal, Third District

February 29, 2012

I.B., by and through his next friend and parent, R.B., Appellant,
v.
STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.

Rehearing Denied May 11, 2012.

Page 7

Christopher T. White, for appellant.

Tracy Lee Cooper, for appellee.

Before SHEPHERD, LAGOA, and FERNANDEZ, JJ.

FERNANDEZ, J.

I.B. appeals the final order of the Florida Department of Children and Families' Office of Appeal Hearings, affirming the Agency for Health Care Administration's decision to reduce Medicaid-funded personal care assistance hours based on a Medicaid regulation in Florida that prohibits the hours be used for transporting recipients. We reverse and remand, concluding that the hearing officer erroneously relied upon an incorrect and inapplicable rule from the Florida Administrative Code to determine medical necessity and that the final order was not supported by competent, substantial evidence.

I.B. is five years-old. He is autistic, non-verbal, and requires assistance with activities of daily living (ADL) including

Page 8

meal preparation, feeding, dressing, hygiene, and incontinence care/diaper changes. He lives with his mother, R.B., and five year-old sister. I.B. attends school on weekdays and Medicaid-paid one-hour speech and occupational therapy sessions Monday through Thursday.

In July 2010, I.B.'s pediatrician, Dr. Valeria Salinas-Sanchez, signed an order for I.B. to receive home health services, including " unskilled nursing for personal care assistance and to assist with ADL." Her order recommended six hours a day, Sunday through Friday, and thirteen hours on school holidays for one-hundred eighty days. I.B. is eligible for Medicaid and the single state agency in Florida for administering Medicaid is the Agency for Health Care Administration (" AHCA" ). Keystone Peer Review Organization South (" KePRO" ) is contracted by AHCA to review incoming prior authorization requests.

On October 12, 2010, a board-certified, Florida-licensed physician consultant under contract with KePRO determined that I.B.'s personal care assistance (" PCA" ) hours should be limited to four hours Monday through Friday, six hours on Sunday, and eleven hours on school holidays (denying hours to, from, and during I.B.'s therapy sessions). I.B. exercised the right to a re-consideration by a second KePRO physician consultant. On November 13, 2010, the second physician reduced I.B.'s PCA hours to two hours Monday through Thursday, three hours on Friday, and eight hours on school holidays (denying the hours to, from, and during I.B.'s therapy sessions; and denying R.B.'s Sunday church and work hours). I.B. exercised the right to a Fair Hearing on the matter.

On December 16, 2010, Hearing Officer Robert Akel from the Department of Children and Families Office of Appeal Hearings presided over the hearing and placed the burden of proof on AHCA. The hearing officer affirmed the second KePRO physician consultant's hours, citing testimony and evidence presented by Dr. Jeffrey N. Nathanson (KePRO's medical director for Florida operations) and Nurse Savia Smith (AHCA's representative). The two expert witnesses presented a mixture of confusing and erroneous testimony, to which AHCA has conceded, and those statements are directly related to the hearing officer's ruling.

The hearing officer relied upon a mixture of Florida Administrative Code Rules, relying on Florida Administrative Code Rule 59G-1.010, which defines " medical necessity." [1] He also ...


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