Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 37 No. 11, March 18, 2011 issue of the Florida Administrative Weekly.

65G-4.014 Eligibility for Agency Services – Definitions.

(1) Autism means a condition which meets the requirements of Section 393.063, F.S., that the condition is:

(a) Pervasive, meaning always present and without interruption;

(b) Neurologically based, meaning that the condition is not the result of physical impairment;

(d) With extended duration, meaning that the condition reasonably can be expected to continue indefinitely into the future;

(e) Causes severe learning disorders resulting in both severe communication disorders affecting both verbal and nonverbal skills, and severe behavior disorders. Autism is characterized by an individual evidencing at least six of the following twelve features from the following subparts 1 and 2:

1. Severe communication disorders, which may include:

i. A delay in, or total lack of, the development of spoken language (not accompanied by an attempt to compensate through alternative modes of communication such as gesture or mime);

ii. Stereotyped and repetitive use of language or idiosyncratic language;

iii. For those applicants with speech, marked impairment in the use of multiple nonverbal behaviors such as eye-to-eye gaze, facial expression, body postures, and gestures to regulate social interaction;

iv. Failure to develop peer relationships appropriate to developmental level;

v. A lack of spontaneous seeking to share enjoyment, interests, or achievements with other people (e.g., by a lack of showing, bringing, pointing out objects of interest, or achievements to others);

vi. Lack of social or emotional reciprocity;

vii. Marked impairment in the ability to initiate or sustain a conversation with others in individuals with adequate speech; or

viii. Impaired imaginative ability evidenced by a lack of varied, spontaneous make-believe play or social imitative play appropriate to developmental level.

2. Severe behavior disorders, which are restricted, repetitive and stereotyped patterns of behavior, interests, and activities which may include:

ix. Encompassing preoccupation with one or more stereotyped and restricted patterns of interest that is abnormal either in intensity or focus;

x. Apparently inflexible adherence to specific, nonfunctional routines or rituals;

xi. Stereotyped and repetitive motor mannerisms (e.g., hand or finger flapping or twisting, or complex whole-body movements); or

xii. Persistent preoccupation with parts of objects.

(2) Cerebral Palsy – means a group of disabling symptoms of extended duration that result from damage to the developing brain during the prenatal period and characterized by paralysis, spasticity, or abnormal control of movement or posture, such as poor coordination or lack of balance, which is manifest prior to three years of age. For purposes of the rule, cerebral palsy also means the presence of other significant motor dysfunction appearing prior to age 18 due to perinatal or external events such as anoxia, oxygen deprivation, or traumatic brain injury. Excluded from this definition is motor dysfunction caused by medical events, including stroke or progressive diseases such as muscular dystrophy. The impairment from cerebral palsy must constitute a substantial handicap which is reasonably expected to continue indefinitely.

(3) Mental Retardation or Intellectual Disability – is evidenced by the concurrent existence of:

(a) Significantly subaverage general intellectual functioning evidenced by an Intelligence Quotient (IQ) two or more standard deviations below the mean on an individually administered standardized intelligence test, and

(b) Significant deficits in adaptive functioning in one or more of the following areas:

1. Communication skills,

2. Self-care, home living,

3. Social and interpersonal skills,

4. Use of community resources and self-direction,

5. Functional academic skills,

6. Work, leisure, health and safety awareness and skills,

(d) Constitute a substantial handicap which is reasonably expected to continue indefinitely.

(4) Prader-Willi Syndrome – means a genetic disorder which is most often associated with a random deletion of chromosome 15. Commonly associated characteristics include insatiable appetite, chronic overeating, hypotonia, short stature, obesity, and behavioral issues. Individuals diagnosed with Prader-Willi syndrome generally have mental retardation; however, an individual with Prader-Willi syndrome can be determined as eligible for services without an accompanying diagnosis of mental retardation.

(5) Spina Bifida – For the purposes of agency eligibility, spina bifida refers to a confirmed diagnosis of spina bifida cystica or myelomeningocele.

(6) Down Syndrome – means a condition caused by the presence of extra chromosomal material on chromosome 21. This disorder is often associated with impairment in cognitive ability, characteristic physical growth and features, and congenital medical conditions.

(7) Eligibility Rules – Rules 65G-4.014 through 65G-4.017, Florida Administrative Code, inclusive, which apply to eligibility determinations for services provided through the Agency for Persons with Disabilities for individuals with developmental disabilities.

(8) DD Waiver – Home and Community-Based Services (HCBS) waiver authorized by 42 U.S.C. 1396n(c)(1) of the federal Social Security Act and Section 409.906, F.S., that provides a package of Medicaid-funded home and community-based supports and services to eligible persons with developmental disabilities who live at home or in a home-like setting.

(9) Agency Services – home and community based supports and services to eligible persons funded through general revenue allocations or sources other than the DD Waiver.

Rulemaking Authority 393.065, 393.501, 393.063 FS. Law Implemented 393.065 FS. History–New ________.

65G-4.015 Eligibility Criteria.

In order to be determined eligible for agency services the applicant must:

(1) Be at least three years of age.

(2) Be a resident of and domiciled in the state of Florida in accordance with Sections 222.17(1) and (2), F.S. Domicile may not be established in Florida by a minor who has no parent domiciled in Florida, or by a minor who has no legal guardian domiciled in Florida, or by any alien not classified as a resident alien. Dependents of active duty military personnel stationed in the state of Florida are exempt from residency and domicile requirements.

(3) Have a confirmed diagnosis of one of the following developmental disabilities as defined in this these rules, Rules 65G-4.014, 4.015, 4.016 and 4.017, F.A.C.:

(a) Autism,

(b) Cerebral palsy,

(d) Prader-Willi syndrome,

(e) Spina Bifida,

(f) Down Syndrome, or

(g) Children between 3 and 5 years of age who are at high risk of later diagnosis of one of the disabilities listed above. Such high-risk children shall not be placed on the waiting list for waiver services until a confirmed diagnosis of a qualifying disability is given.

(4) DD Waiver services are only available (conditioned upon the wait list) to persons who meet the requirements of 42 CFR § 435.217(b)(1) for receiving home and community-based services. It is mandatory that the determination is made that without DD Waiver services these individuals would otherwise require the level of care furnished in a hospital, nursing home, or an Intermediate Care Facility for People with Intellectual Disabilities (referred to in the CFR as an “ICF/MR”).

Rulemaking Authority 393.065, 393.501, 393.063 FS. Law Implemented 393.065 FS. History–New________.

65G-4.016 Application Process.

(1) Application for services from the agency shall be made by submitting an application by hand delivery, U.S. Postal Service, or facsimile to the agency office in the service area where the applicant resides. The application for services is available on the agency website at www.APD.myflorida.com, http://www.apd.myflorida.com/customers/application/ or by contacting the agency. The application is available in English and Spanish and is hereby incorporated by reference.

(2) Upon receipt of a completed, signed, and dated Application for Services, the area agency staff shall review the application and supporting documentation and, within 45 days for children under the age of 6 and 60 days for individuals 6 years of age and older, shall notify the applicant of the final determination of eligibility for agency services. If requests for collateral information or additional evaluations are necessary to determine eligibility, the time may be extended for no more than an additional ninety (90) days.

(3) If an applicant is unable to produce an existing evaluation that establishes eligibility or if there is concern that the information provided is inaccurate, incorrect, or incomplete, the agency area office will be responsible for obtaining an evaluation to establish eligibility. Professional diagnoses under Rule 65G-4.017, F.A.C., must document all criteria for eligibility as set forth in Rules 65G-4.014-.017, F.A.C. The evaluation process includes only those assessments necessary to determine eligibility that were administered by a person qualified to administer the instrument(s).

(4) When the eligibility determination is complete, the agency area office shall notify the applicant in writing within five (5) business days of the decision. If the applicant is determined ineligible for agency services, the agency area office shall notify the applicant of the right to appeal the decision in accordance with Chapter 120, F.S.

(5) If the applicant is determined to be ineligible to receive services from the agency, the agency area office shall offer suggestions regarding other programs, agencies, or services for which the applicant may be eligible.

(6) If a category of covered conditions in this rule is not also covered by the state’s Medicaid developmental disabilities waiver (DD waiver) at the time an individual is determined to be eligible, those individuals will be placed on the waiting list and may be provided services funded through general revenue allocations or sources other than the DD Waiver.

Rulemaking Authority 393.065, 393.501, 393.063 FS. Law Implemented 393.065 FS. History–New________.

65G-4.017 Establishing Eligibility.

(1) Establishing Eligibility – Autism. A diagnosis of autism, as defined by Rule 65G-4.014, F.A.C., may only be made by one or more of the following who has specific training and experience in making such diagnosis:

(a) A Florida-licensed psychiatrist,

(b) A Florida-licensed psychologist,

(d) A board-certified developmental pediatrician.

(e) Collateral information received from another state may be accepted if the evaluator is licensed through the same credentials required for licensure in Florida for the professions listed in paragraph (1)(a) above.

(2) Establishing Eligibility – Cerebral Palsy. Diagnosis is confirmed by written documentation from one or more of the following:

(a) A medical doctor;

(b) A doctor of osteopathy; or

(3) Establishing Eligibility – Mental Retardation or Intellectual Disability. To establish that an individual has mental retardation the following criteria shall be applied:

(a) A single test or subtest should not be used alone to determine eligibility. If a person has significantly different (statistically defined) scores on different scales of a test or tests, or a great deal of variability on subtest scores of an IQ test, the full-scale score may not indicate mental retardation and should not be relied on as a valid score. In that instance, closer scrutiny is required to make an appropriate differential diagnosis. This may include review of school records, school placement, achievement scores, medical records, medication history, behavior during testing and the psychosocial situation at the time of testing. Closer scrutiny must also be required when there is a great deal of variability between IQ scores on different IQ tests or different administrations of the same IQ test. Nothing here is intended to preclude clinical judgment from appropriately determining that a single full-scale IQ score of 70 or below, or two or more standard deviations below the mean, on an individually administered intelligence test is sufficient to establish eligibility.

(b) The performance measures for this category of adaptive functioning deficits must be validated by the professional judgment of a psychologist who is experienced in working with people who have retardation, who has specific training and validation in the assessment instrument that is used, and who is one of the following:

1. A Florida-licensed psychologist,

2. A Florida-licensed school psychologist,

3. A certified school psychologist.

(c) Any standardized test may be submitted as proof. However, the applicant must demonstrate that any test not presumptively accepted by the agency is valid. The following are presumptively accepted standardized tests of intelligence to establish eligibility for mental retardation:

1. Stanford-Binet Intelligence Test (all ages),

2. Wechsler Preschool and Primary Scale of Intelligence (under six years of age),

3. Differential Ability Scales – Preschool Edition (under six years of age),

4. Wechsler Intelligence Scale for Children (WISC) (children up to 15 years, 11 months),

5. Differential Ability Scales (children up to 15 years, 11 months),

6. Wechsler Adult Intelligence Scale (WAIS),

7. Test of Nonverbal Intelligence-3 (TONI-3),

8. Comprehensive Test of Nonverbal Intelligence-2 (C-TONI 2),

9. Universal Nonverbal Intelligence Test (UNIT),

10. Leiter International Performance Scale-Revised (Leiter-R).

(d) The following tests of adaptive functioning are presumptively accepted in the determination:

1. Vineland Adaptive Behavior Scales,

2. AAMR Adaptive Behavior Scale,

3. Adaptive Behavior Assessment System (ABAS),

4. Adaptive Behavior Evaluation Scale (ABES).

5. Scales of Independent Behavior – Revised

(e) In all cases, assessments or evaluations for eligibility should be obtained from appropriately licensed professionals with experience and training in the instruments and population for whom eligibility is to be determined.

(4) Establishing Eligibility – Prader-Willi Syndrome. Diagnosis is confirmed by written documentation from one or more of the following:

1. A medical doctor;

2. A doctor of osteopathy; or

3. Medical records that document a diagnosis of Prader-Willi syndrome before the age of 18.

(5) Establishing Eligibility – Spina Bifida. Diagnosis is confirmed by written documentation from one or more of the following:

a. A medical doctor;

b. A doctor of osteopathy; or

c. Medical records that document a diagnosis of spina bifida cystica or myelomeningocele before the age of 18.

(6) Establishing Eligibility – Down Syndrome. Evidence under this category requires medical records documenting a chromosome analysis (also referred to as a karyotype) finding the individual has an extra genetic material on their number 21 chromosome.

(7) Establishing Eligibility – High-Risk Children, 3 to 5 years of age. Evidence under this category requires a determination by an APD area office that a medical diagnosis of developmental delay evidenced by the child indicates a high probability that the child is likely to have an eventual diagnosis of a qualifying condition under Rule 65G-4.014, F.A.C., if early intervention services are not provided, or the child has one or more physical or genetic anomalies associated with a developmental disability, such as:

a. Genetic or chromosomal disorders (such as Down syndrome or Rett syndrome);

b. Metabolic disorders (such as phenylketonuria);

c. Congenital malformations (such as microcephaly or hydrocephaly);

d. Neurological abnormalities and insults;

e. Congenital and acquired infectious diseases;

f. Chronic or catastrophic illnesses or injuries;

g. A parent or guardian with developmental disabilities who requires assistance in meeting the child’s developmental needs; or

h. Other conditions or genetic disorders generally associated with developmental disabilities, such as tuberous sclerosis, congenital syphilis, fetal alcohol syndrome, or maternal rubella, as documented by a physician.

i. If a child between three and five years of age already has been determined to have a developmental disability in one of the five categories identified in Chapter 393, F.S., that child shall be eligible for services from the agency under the appropriate diagnosis and shall be added to the waiting list.

j. If a child served under the category of high risk does not have a confirmed diagnosis by his or her fifth birthday, they shall be given a notice of case closure and the case will be closed at the agency. The agency shall make the child’s parent or guardian aware of appropriate agencies, programs or school programs which the agency is aware of which might be able to assist the child.

Rulemaking Authority 393.065, 393.501, 393.063 FS. Law Implemented 393.065 FS. History–New________.