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Monday, August 6, 2007 News: Medicaid The Florida agency that administers the state's Medicaid program improperly eliminated two weeks of 24-hour companion care for a quadriplegic beneficiary without providing an adequate explanation for the change in policy, a Florida court of appeals ruled July 31 (Courts v. Agency for Health Care Administration, Fla. Dist. Ct. App., No. 1D06-0012, 7/31/07). If an agency changes a non-rule-based policy, it must either explain its reasons for the discretionary action--based on agency expert testimony, documentary opinion, or other appropriate evidence--or it must implement its new policy or interpretation through formal rule making, Judge William A. Van Nortwick Jr. said, writing for a unanimous Florida District Court of Appeal, First District. The Florida Agency for Health Care Administration's decision in 2005 to deny James Courts two weeks of as-needed 24-hour care, when it had approved those benefits for the three previous years, "was simply a change in its established policy" that was made "without rule-making or explication in the record," Van Nortwick said. Court Orders Benefits Reinstated Florida participates in a Medicaid waiver program, the Brain and Spinal Cord Injury Waiver Program (BSCIP), which allows individuals who have suffered a brain or spinal cord injury to remain in their homes rather than be institutionalized. James Courts, who was rendered a quadriplegic in a 1995 accident, has been enrolled in the BSCIP waiver program since 2001. Courts's care plan from July 1, 2002, to June 30, 2004, provided him with 50 hours of companion care per week for 52 weeks, plus 236 hours (roughly 10 days, or two weeks excluding weekends) of 24-hour companion care on an as-needed basis, which Courts used when his wife had to leave him to care for her terminally ill father. For the 2004-2005 year, AHCA reduced Courts's companion care to 42 hours per week, and eliminated the as-needed 24-hour care. At a Medicare fair hearing, an agency official said the 24-hour care was eliminated because it was being used to allow his wife to attend to family matters, and therefore constituted unapproved "respite" care rather than allowable "companion" care under the waiver program. But Van Nortwick called the change unlawful, noting that any agency cannot change its standards at the personal whim of a bureaucrat. "[T]he care now denied [Courts] was considered companion services under AHCA's interpretation of the BSCIP waiver, and the record contains no evidence that [the federal government] believed that the Florida program was out of compliance with the waiver obligations related to the provision of companion care," the judge said. "Since it is clear that the AHCA policy change was made as to [Courts] without rule-making or an explication of the new policy during the hearing process, the change is contrary to law," Van Nortwick said. The judge then remanded the case to AHCA with instructions to reinstate Courts's previous care plan provisions. Cindy Huddleston and Anne Swerlick, Florida Legal Services Inc., Tallahassee, Fla.; and Andrea Costello, Southern Legal Counsel Inc., Gainesville, Fla., represented Courts. Tracy Lee Cooper, assistant general counsel for the Agency for Health Care Administration; John Slye, acting general counsel for the Department of Children and Families; and Florida Assistant Attorney General Garnett Chisenhall, Tallahassee, represented the state. Full text of the decision is available.
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