5803236, 59GER08-2 - Florida Administrative Rules, Law, Code, Register

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Notice: 5803236

Notice of Emergency Rule

Department:

AGENCY FOR HEALTH CARE ADMINISTRATION

Division:

Medicaid

Overview

RULE:

59GER08-2	Developmental Disabilities Waiver Provider Rate Table
59GER08-3	Developmental Disabilities Residential Habilitation Services in a Licensed Facility Provider Rate Table

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:

These rules implement legislatively mandated reductions of provider rates. Proviso language following Specific Appropriation 263 of the 2008-2009 General Appropriations Act requires the Agency for Persons with Disabilities to cut provider rates by $43,544,549 effective July 1, 2008. The Legislature’s required rate reduction will result in a shortfall of funds available to continue critical services without full implementation of the rate reduction, as mandated, on July 1, 2008. In order to provide for the greatest possibility for continuation of all services and to avoid the danger to health, safety and welfare resulting from service disruption due to budget shortfalls, the Agency for Persons with Disabilities and the Agency for Health Care Administration have determined that there is an emergency as defined in Section 120.54, F.S., that supports adoption of Emergency Rules.
The Emergency Rules are necessary to ensure that funds are available for the continuation of critical, life sustaining services to persons with developmental disabilities who are among Florida’s most vulnerable. The purpose of the emergency rules is to manage the legislatively mandated rate reduction and appropriation for the protection of the public health, safety and welfare so that budget shortfalls do not force service disruptions.
The Agency for Persons with Disabilities (APD) administers the State of Florida’s Medicaid waiver programs for persons with developmental disabilities and advises the Agency for Health Care Administration (AHCA) on appropriate rates for waiver services. AHCA is designated as the “single state agency” for Medicaid with legislatively delegated authority to adopt the rates for Medicaid waiver services.
The Agency for Persons with Disabilities (APD) serves people diagnosed with mental retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome that manifest before the age of 18. Many of these individuals have complex medical problems. Many require assistance with eating, supervision during waking hours, enteral nutrition, and multiple medications. APD’s Medicaid waiver programs serve over 30,000 developmentally disabled persons. In addition, the Medicaid Developmental Disabilities Home and Community-Based Services Waiver has a waiting list of over 15,000 persons with disabilities who seek services that cannot be provided due to lack of available funds.
The proviso to the 2008 General Appropriations Act provides: Funds in Specific Appropriations 263 and 266 reflect a reduction of $19,394,742 from the General Revenue Fund and $24,149,807 from the Operations and Maintenance Trust Fund as a result of reducing provider rates, effective July 1, 2008. Personal Care Assistance is specifically excluded from this reduction target. The agency shall amend provider contracts, cost plans and rules as necessary to achieve this recurring reduction.
No reasonable rate reduction for any single provider group can generate the savings that rate reductions spread across most services will generate. Rates for some services are not governed by rule or rate schedule. Instead the rate is determined at the time of purchase depending on each situation. Consequently this rule does not reduce those rates. Rates for some other services have been recently reduced. The rate reduction in these rules for those services is 3 percent. The rates for the remaining services are reduced by 7.21 percent.
No one will be removed from the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program as a result of the Emergency Rules. Instead, effective July 1, 2008, the Emergency Rules reduce the rates paid to providers of Case Management Services (Limited Support Coordination), Daily Habilitation Services (Residential Habilitation Behavior Focus), Monthly Residential Care (Residential Habilitation Standard), Waiver Support Coordination, and Residential Habilitation services by 3 percent from the current rates. These rules do not change rates for Adult Dental Services, Consumable Medical Supplies, Durable Medical Equipment, and Environmental Modifications. All other rates for services are reduced by 7.21 percent.
The Agency for Persons with Disabilities (APD) and the Agency for Health Care Administration (AHCA) have determined that these rate reductions are necessary to meet the legislative requirement to reduce rates by amounts sufficient to achieve savings of $43,544,549, while providing funds to maintain services necessary to protect health, safety and welfare.
Without the savings achieved by the immediate implementation of the legislatively mandated rate reductions, APD will sustain a budget deficit of approximately $3.6 million for each month the rate reductions are delayed. The potential for this deficit creates an immediate danger to the public health, safety and welfare.
The danger results from future service disruptions that may be required in order for APD to remain within its approved budget. The potential service disruptions create an immediate and continuing danger to the persons with disabilities that APD serves. Thousands of Florida’s most vulnerable would lose vital, ongoing services as a result.
Halting enrollment would affect individuals deemed to be in crisis. Clients in crisis are the most vulnerable of persons with disabilities. Rules 65G-1.046 and 65G-1.047, Florida Administrative Code, establish the process and criteria for determining crisis eligibility and prioritizing those in crisis. The criteria included in the first priority classification are individuals who are currently homeless, living in a homeless shelter, or living with relatives in an unsafe environment whose health and safety are at risk without immediate provision of waiver services.
There is insufficient time to promulgate a rule through the regular rulemaking process as the amount reduced from the APD’s budget due to legislatively mandated rate reductions was calculated assuming July 1, 2008 implementation. Since the $43.5 million savings is a constant, anything less than full implementation over the entire fiscal year will require a larger percentage reduction to meet the Legislature’s requirements in the proviso.
The Florida Constitution (Article VII, subsection 1[c]) prohibits expenditure of state funds except pursuant to Legislative appropriation. Section 216.221, Florida Statutes further provides that appropriations are the maximum amounts that an agency is authorized to expend. In order to remain within appropriations as required by law, APD is mandated to develop a plan and is authorized to use any means available to cure a projected deficit in its waiver programs.
More specifically, subsection 393.0661(4), F.S. (2007), states as follows: Nothing in this section or in any administrative rule shall be construed to prevent or limit the Agency for Health Care Administration, in consultation with the Agency for Persons with Disabilities, from adjusting fees, reimbursement rates, lengths of stay, number of visits or number of services, or from limiting enrollment, or making any other adjustment necessary to comply with the availability of moneys and any limitations or direction provided for in the General Appropriations Act.
Subsection 393.0661(5), F.S. further requires (APD) to develop a plan to eliminate any projected deficit in a waiver program. A budget deficit created by delayed implementation of the rate reduction required by the FY 2008-09, General Appropriations Act would be subject to this requirement. Implementation of such a plan would likely result in greater rate reductions than currently contemplated in these emergency rules, service limitations, halting all new enrollment or some combination of these.
The Legislature specifically commanded (APD) to reduce provider rates to achieve a savings of $43,544,549.00. These emergency rules fulfill that requirement.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:

The procedure for adoption of these emergency rules is “fair under the circumstances” as required by Section 120.54(4), F.S., and provides the procedural protection required for adoption of emergency rules. Section 393.0661(4), F.S. (2007), mandated APD to reduce the deficit by all means including limiting services, reducing rates, or limiting the number of people provided services. The Conference Report on House Bill 5001, General Appropriations Act for Fiscal Year 2008-2009 specifically required APD to reduce services rates by $43,544,549.00.
The Agency for Persons with Disabilities (APD) gave the provider community timely advance notice that the APD was considering rate adjustments to meet the Legislature’s mandate. APD hosted an open meeting for providers of services on Friday May 9, 2008 for the purpose of identifying means of achieving the required reduction in rates. Along with staff from APD and AHCA, participants in the process included providers and provider associations, waiver support coordinators, representatives from advocacy groups including Florida Association for Rehabilitation Facilities (FARF), the Family Care Council, Arc of Florida, Florida Association of Support Coordinators, Sunrise (a provider agency), and Mentor (a provider agency).
After the initial introduction summarizing the legislative requirement to reduce rates, APD received comments and suggestions from all who chose to speak or provide written information. (APD) also distributed information about rates and the effects of alternative rate reduction approaches. In developing these emergency rules, (AHCA) and (APD) have considered, and in some cases incorporated, suggestions from the provider community.
Constitutional and statutory due process requirements are met as an opportunity for judicial review of the emergency rules is provided by Section 120.54(4)(a)3., F.S., and an opportunity to contest the emergency rules is provided by Section 120.5615, F.S.

SUMMARY:

The emergency rules implement the mandate of the Florida Legislature in the budget proviso requirements of the 2008 General Appropriations Act. They supersede any prior inconsistent rules. Funds in Specific Appropriations 263 and 266 reflect a reduction of $19,394,742 from the General Revenue Fund and $24,149,807 from the Operations and Maintenance Trust Fund as a result of reducing provider rates, effective July 1, 2008. Personal Care Assistance is specifically excluded from this reduction target. The agency shall amend provider contracts, cost plans and rules as necessary to achieve this recurring reduction.
The Emergency Rules establish the rates paid to providers for services provided to developmentally disabled individuals enrolled in Medicaid waiver programs. The purpose of Rules 59GER08-2 and 59GER08-3 is to achieve the legislatively mandated reduction in rates to achieve the required total savings of $43,544,549.00.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

Pamela Kyllonen, Medicaid Services, 2727 Mahan Drive, Mail Stop 20, Tallahassee, Florida 32308-5407, (850)414-9756, Kyllonep@ahca.myflorida.com

PRINT PUBLISH DATE:

6/27/2008 Vol. 34/26

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=59GER08-2&PDate=6/27/2008&Section=4

REFERENCE MATERIALS:

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