RULE NO: RULE TITLE
65GER09-2: Tier Waivers
65GER09-3: Tier One Waiver
65GER09-4: Tier Two Waiver
65GER09-5: Tier Three Waiver
65GER09-6: Tier Four Waiver
SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: 1) The First District Court of Appeal found the Agency’s Rules 65G-4.0021, 0022, 0023, 0024, and 0025, F.A.C. invalid in Moreland v APD, 34 FLA L. Weekly D1715 (1st DCA, August 21, 2009) Reh.Den. October 8, 2009.
2) The Agency provides essential medical, adaptive and behavioral services through a Home and Community Based (HCBS) Medicaid waiver program to 31,000 individuals with developmental disabilities.
3) All 31,000 individuals served by the Agency meet a level of need qualifying them for placement in an institution. The HCBS waiver provides these individuals an opportunity to remain at home or other non-institutional community settings.
4) In 2007, the Florida Legislature amended Section 393.0661, F.S., to create a four-tiered waiver system to deliver the medicaid waiver services provided through the HCBS waiver by this Agency.
5) Paragraph 393.0661(3)(e), F.S., directed the Agency and the Agency for Health Care Administration (ACHA), the State Medicaid Administrator, to implement the four-tiered system and provided authority to adopt any rules necessary to administer the four-tiered waiver system.
6) Paragraph 393.0661(3)(e), F.S., also directed AHCA to seek federal waivers consistent with the four-tiered waiver system.
7) The federal waivers consistent with the four-tiered system of 393.0661 were approved by the Centers for Medicare and Medicaid Services. The waivers serve as the Agency’s authority to provide HCBS waiver services to individuals with developmental disabilities.
8) The population APD serves through its Home and Community Based Services Waivers (referred to as “HCBS”) program includes some of Florida’s most vulnerable citizens. The service needs of these individuals change over time, often increasing, and the service need can change rapidly.
The emergency rules adopted today by APD are of critical need for the preservation of the health, safety, and welfare of this vulnerable population because, without them, APD lacks the capability and legal authority to adequately respond to changes in service needs and, as a result, APD is unable to provide certain services that have been established to be medically necessary, and that would otherwise be available through the HCBS Waiver.
As mandated by Section 393.0661(3), F.S., the majority of the individuals served by the waiver program have been assigned to tiers. Three of the tiers have spending limitations. Although APD’s tier rules were invalidated by the First DCA in Moreland, the statutory tier system remains in place. Thus, APD has no rules for the day-to-day operations that are affected by the tier system. APD uses an emergency protocol for delivery of services, but this protocol cannot be used until an emergency for the client exists. Thus, APD cannot act until a client’s health, safety or welfare is in jeopardy. It is the waiting until a client is in an emergency situation to deliver essential services that creates a danger to the health, safety and welfare of the vulnerable clients served by APD.
This is a significant problem. To access additional waiver services, an APD client must apply for Prior Service Authorization which determines that (1) the service is medically necessary and (2) the cost of the service is within the client’s budget allocated within the tier system. If the service cannot be added within the budget of the client’s present tier assignment, that client’s tier assignment must be reevaluated to determine whether that service can be added within the parameters of the tier system.
There are more than 1,000 HCBS Waiver clients who have requested Prior Service Authorizations for new or additional services, which cannot be provided without reevaluating their tier assignment. Many of these services have been determined to be medically necessary. However, due to the absence of tier assignment rules in place, APD cannot consider whether to approve any of these services until the lack of their provision develops into an emergency situation, triggering APD’s emergency 30-day protocol. Further, if the emergency protocol is triggered, a client cannot retain those services if no emergency situation continues to exist at the end of the 30-days. APD will then have to wait for a new crisis or emergency situation to develop before those services can again be provided.
In sum, absent tier rules, these clients cannot get medically necessary services implemented. Those services are not available through the tier system unless and until the lack of provision of these services develops into a crisis requiring the agency to respond on an emergency basis. This means that individuals’ needs are not met and this creates a significant and immediate danger to their health and safety. The individuals whose needs are not served will have deterioration in their health and safety. Further, the inability of APD to respond to changes in circumstances poses an immediate danger to the welfare of every member of the population subject to expenditure or service limitations. Thus, APD’s present inability to make changes to a client’s services results in clients not receiving medically necessary services that would otherwise be available through the HCBS Waiver program and has therefore created a significant and immediate danger to the health, safety, and welfare of this vulnerable population that will continue until rules are in place.
As a specific example, one client served by the waiver recently lost his provision of personal care assistance (“PCA”), which had been provided to him through the state Medicaid program, as a result of his attaining the age of 21. He requires this service because he is totally disabled and is unable to bathe, toilet, or feed himself. Because the client was living at home and receiving PCA services through the state Medicaid plan, he was assigned to Tier 4. Because of the service limitations in Tier 4, this individual can no longer receive his necessary PCA services. Without tier rules in place, APD is without a framework to reevaluate the appropriate tier assignment for this individual in response to his change of circumstances. Thus, although he now has a life-long need for service, APD only has rules in place that authorize this service to the extent that it can be approved on a thirty-day emergency basis.
Similarly, another young individual became extremely physically aggressive at home. As a result, he cannot return home. Intensive behavior residential habilitation was recommended as the appropriate housing to address his behavior needs. This individual is currently assigned to Tier 3. Because of the spending limitation of Tier 3, he cannot receive the needed intensive behavioral residential habilitation. Without tier rules in place, he is only able to receive his necessary housing to the extent it can be approved on a thirty-day emergency basis.
Another specific example is an individual who recently had surgery. Her recovery for surgery is taking longer than expected. She cannot leave her home. She needs additional personal care assistance for this recovery period. Her health and safety are compromised without this additional service. However, her current tier assignment cannot accommodate this additional need. Without a tier rule in place, she can only get this additional service to the extent it can be approved on a thirty-day emergency basis.
The inability to approve medically necessary services in the regular course of APD’s operations threatens the health, safety and welfare of every one of the more than 20,000 individuals receiving services through the HCBS Waiver who have been assigned to tiers with spending limitations, as required by Section 393.0661(3), F.S. As explained above, individuals within this vulnerable population experience changing needs, and the absence of tier rules in place leaves APD helpless to respond to those changes unless and until changes in circumstances attain emergency status. APD’s inability to respond to changing circumstances for many members of this population endangers the health, welfare, and safety of every member of the population subject to limitations resulting from APD’s implementation of Section 393.0661(3), F.S.
There is a danger to the public welfare related to the appropriations for the operation of the HCBS Waiver services. APD was charged by state law with the duty to implement the Medicaid Waiver agreement between the state and CMS on behalf of the federal government. APD was directed by the Legislature to “mak[e] any other adjustment necessary to comply with the availability of moneys and any limitations or directions provided for in the General Appropriations Act.” Section 393.0661(7), F.S. Without tier rules the Agency cannot perform its statutory duties and its inability to act on any basis other than an emergency endangers the public welfare as described above.
9) Without administrative rules to operate the four-tiered waiver system, the State of Florida may have to provide institutional beds for thousands of individuals. This possibility contravenes the Legislative intent of Chapter 393, F.S.:
Section 393.62, F.S., Legislative findings and declaration of intent. – The Legislature finds and declares that existing state programs for the treatment of individuals with developmental disabilities, which often unnecessarily place clients in institutions, are unreasonably costly, are ineffective in bringing the individual client to his or her maximum potential, and are in fact debilitating to many clients. A re-direction in state treatment programs for individuals with developmental disabilities is necessary if any significant amelioration of the problems faced by such individuals is ever to take place. Such redirection should place primary emphasis on programs that prevent or reduce the severity of developmental disabilities. Further, the greatest priority shall be given to the development and implementation of community-based services that will enable individuals with developmental disabilities to achieve their greatest potential for independent and productive living, enable them to live in their own homes or in residences located in their own communities, and permit them to be diverted or removed from unnecessary institutional placements. . .
For the reasons stated above, the Agency finds that an immediate danger to the public health, safety, and welfare exists and requires immediate action.
REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: 1. The emergency action by the Agency uses the rules previously adopted and amends only those portions of rule specifically addressed by the Moreland case.
2. The proposed rules take only the action necessary to ensure that necessary services remain in place to protect the vulnerable, individuals with developmental disabilities served by the Agency.
3. Specifically, the following changes to the originally promulgated rules, consistent with the Moreland, opinion are contained in the emergency rules: Rule 65G-4.0021, F.A.C., identifies the Agency assessment instruments; Rule 65G-4.0024, F.A.C., no longer references any age limits; and Rule 65G-4.0025, F.A.C., deletes reference to client age limits, and no longer includes reference to clients who received services under the Family and Supported Living waiver prior to the implementation of the four-tiered waiver system, or clients who are dependent children residing in residential facilities licensed by DCF.
SUMMARY: These emergency rules replace recently invalidated rules. They are necessary for the administration and continued implementation of Subsection 393.0661(3), F.S., which created a four-tiered waiver system. These rules are essential for the public health, safety, and welfare because without rules in place, the delivery system of Medicaid services cannot provide medically necessary services to 31,000 affected individuals in the manner prescribed by statute.
THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Celeste Sanders, Agency for Persons with Disabilities, 4030 Esplanade Way, Tallahssee, Florida 32399, (850)922-0371

THE FULL TEXT OF THE EMERGENCY RULE IS:

65GER09-2 Tier Waivers.

(1) The Agency for Persons with Disabilities will assign clients of home and community-based waiver services for persons with developmental disabilities to one of the four Tier Waivers created by Section 393.0661, F.S. (2007). The Agency will determine the Tier Waiver for which each client is eligible and assign the client to that waiver based on the developmental disabilities waiver criteria and limitations contained in the following provisions: Sections 409.906(13) and 393.0661, F.S.; and Rules 59G-13.080 and 59G-13.083, F.A.C., and the following:

(a) The client’s level of need in functional, medical, and behavioral areas, as determined through Agency evaluation of client characteristics, the Agency approved assessment process, and support planning information;

(b) The client’s service needs as determined through the Agency’s prior service authorization process to be medically necessary;

(d) The availability of supports and services from other sources, including Medicaid state plan and other federal, state and local programs as well as natural and community supports.

(2) As part of the assessment process, the Individual Cost Guidelines (ICG) and the Questionnaire for Situational Information 4.0 (QSI) are hereby adopted by the Agency as valid and reliable assessment instruments. The ICG and the QSI are available at: http://apd.myflorida.com/waiver/qsi-version-4.pdf, or http://apd.myflorida.com/waiver/. The ICG is only valid through December 31, 2009. The QSI is valid in all other instances.

(3) The services described by the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, July 2007 (available at http://portal.flmmis.com/FLPublic/Portals/0/StaticContent/Public/HANDBOOKS/CL_08_070701_Waiver_DevSev_ver1%203%20(2).pdf or http://apd.myflorida.com/waiver/) (hereinafter referred to as the “DD Handbook”), adopted by Rule 59G-13.083, F.A.C. and incorporated herein by reference, are available to clients of the Developmental Disabilities Waiver (hereinafter called “the Tier One Waiver”), the Developmental Disabilities Tier Two Waiver (hereinafter called “the Tier Two Waiver”), and Developmental Disabilities Tier Three Waiver (hereinafter called “the Tier Three Waiver”). The following services described in the DD Handbook are available to clients assigned to the Tier Four Waiver (presently known as The Family and Supported Living Waiver):

(a) Adult Day Training;

(b) Behavior Analysis;

(d) Consumable Medical Supplies;

(e) Durable Medical Equipment;

(f) Environmental Accessibility Adaptations;

(g) In-Home Support Service;

(h) Personal Emergency Response System;

(i) Respite Care;

(j) Support Coordination;

(k) Supported Employment;

(l) Supported Living Coaching; and

(m) Transportation.

(4) For all Tiers client must utilize all available State Plan Medicaid services including, but not limited to, personal care assistance, therapies, and medical services, that duplicate the waiver services proposed for the client. A client shall not be provided waiver services that duplicate available State Plan Medicaid Services including, but not limited to, personal care assistance, therapies, and medical services.

(5) The Agency will review a client’s tier eligibility when a client has a significant change in circumstance or condition that impacts on the client’s health, safety, or welfare or when a change in the client’s plan of care is required to avoid institutionalization. The information identifying and documenting a significant change in circumstance or condition that necessitates additional or different services must be submitted by the client’s Waiver Support Coordinator to the appropriate Agency Area office for determination.

Rulemaking Authority 393.0661(3) FS. Law Implemented 393.0661(3) FS. History–New 11-16-09.

65GER09-3 Tier One Waiver.

(1) The Tier One Waiver is limited to clients that the Agency has determined meet at least one of the following criteria:

(a) The client’s needs for medical or adaptive services cannot be met in Tiers Two, Three, and Four and are essential for avoiding institutionalization, or

(b) The client possesses behavioral problems that are exceptional in intensity, duration, or frequency with resulting service needs that cannot be met in Tiers Two, Three, and Four, and the client presents a substantial risk of harm to themselves or others.

(2) Clients living in a licensed residential facility receiving any of the following services shall be assigned to the Tier One Waiver:

(a) Intensive behavioral residential habilitation services;

(b) Behavior focus residential habilitation services at the moderate or above level of support; or

(d) Special medical home care.

(3) Nursing service needs that can be met through the Tier Two, Tier Three, or Tier Four Waivers are not “services” or “service needs” that support assignment to the Tier One Waiver.

Rulemaking Authority 393.0661(3) FS. Law Implemented 393.0661(3) FS. History–New 11-16-09.

65GER09-4 Tier Two Waiver.

The total budget in a cost plan year for each Tier Two Waiver client shall not exceed $55,000. The Tier Two Waiver is limited to clients who meet the following criteria:

(1) The client’s service needs include placement in a licensed residential facility and authorization for a moderate level of support for standard residential habilitation services or a minimal level of support for behavior focus residential habilitation services; or

(2) The client is in supported living and is authorized to receive more than six hours a day of in-home support services.

Rulemaking Authority 393.0661(3) FS. Law Implemented 393.0661(3) FS. History–New 11-16-09.

65GER09-5 Tier Three Waiver.

The total budget in a cost plan year for each Tier Three Waiver client shall not exceed $35,000. A client must meet at least one of the following criteria for assignment to the Tier Three Waiver:

(1) The client resides in a residential facility licensed by the Agency and is not eligible for the Tier One Waiver or the Tier Two Waiver; or

(2) The client resides in their own home and is authorized by the Agency to receive In-Home Support Services and is not eligible for the Tier One Waiver or the Tier Two Waiver and the need for these services cannot be met in Tier Four; or

(3) The client is authorized by the Agency to receive Personal Care Assistance services at the moderate level of support as defined in the DD Handbook.

(4) The client is authorized by the Agency to receive Skilled or Private Duty Nursing Services and is not eligible for the Tier One Waiver or the Tier Two Waiver; or

(5) The client is authorized by the Agency to receive services of a behavior analyst and/or a behavior assistant and the need for these services cannot be met in Tier Four.

(6) The client is authorized by the Agency to receive at least one of the following services:

(a) Occupational Therapy; or

(b) Physical Therapy; or

(d) Respiratory Therapy.

Rulemaking Authority 393.0661(3) FS. Law Implemented 393.0661(3) FS. History–New 11-16-09.

65GER09-6 Tier Four Waiver.

(1) The total budget in a cost plan year for each Tier Four Waiver client shall not exceed $14,792 per year.

(2) Clients who are not eligible for assignment to the Tier One Waiver, the Tier Two Waiver, or the Tier Three Waiver, shall be assigned to the Tier Four Waiver.

Rulemaking Authority 393.0661(3) FS. Law Implemented 393.0661(3) FS. History–New 11-16-09.