15018042, 65GER14-2 - Florida Administrative Rules, Law, Code, Register

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Notice: 15018042

Notice of Emergency Rule

Department:

DEPARTMENT OF CHILDREN AND FAMILIES

Division:

Agency for Persons with Disabilities

Overview

RULE:

65GER14-2	Definitions
65GER14-3	Allocations algorithm
65GER14-4	General Provisions
65GER14-5	Establishment of the iBudget Amount
65GER14-6	iBudget Cost Pan

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

1.  The Agency for Persons with Disabilities (Agency) serves approximately 30,000 individuals with developmental disabilities through the Home and Community-Based Services (HCBS) Waiver program with approximately 21,000 individuals on a waitlist for services.  All of the individuals the Agency serves, as well as those on the waitlist for services, through its HCBS waiver program meet the level of care for institutionalization.  This includes some of the most vulnerable Floridians. Many of these individuals require extensive supervision, or have medical and behavioral needs that are likely to place the individual or others in immediate serious jeopardy or danger without waiver services.
2.  The HCBS waiver program is implemented by the iBudget system as set forth in section 393.0662, F.S., which requires the use of an algorithm to set an iBudget amount for each individual.  Each individual served must have a properly established iBudget amount based on a properly established algorithm amount. The algorithm the Agency utilized to operate the iBudget system was promulgated in the iBudget rules.  
3.  The Agency’s iBudget rules were invalidated by the First District Court of Appeal (DCA) in G.B. v. Agency for Persons with Disabilities,  2014 WL 3565435 (Fla. 1st DCA, July 21, 2014).   A substantial number of individuals relying on assistance from the Agency were receiving less than their algorithm amount. These emergency rules will immediately address this issue.    
4.  The Agency regularly receives requests for increases to individual iBudget amounts based on Significant Additional Needs.  These rules create an algorithm amount, without which no additional funding can be calculated and this vulnerable population faces immediate danger to their health, safety, and welfare.  Any increase of the iBudget amount begins with a calculation of the algorithm amount.   
5.  The Agency also regularly receives applications for eligibility for services from new individuals in crisis and in the absence of properly enrolling these individuals on the waiver, this vulnerable population faces immediate serious danger to their health, safety, and welfare as well as the risk of unnecessary institutionalization.
6.   Furthermore, there is a constant need for individuals in crisis to be transitioned from the waitlist to the waiver.  The 2014-15 General Appropriations Act specifically provided funds and instructions for these individuals to be taken off of the waitlist and placed into the HCBS Waiver iBudget program.  See Ch. 2014-51, item 268, at 66 Laws of Fla.; Ch. 2014-53, § 9, at 8-9, Laws of Fla. These are individuals such as children in the child welfare system at the time of adoption, reunification or permanent placement with a relative in a family home; individuals with intensive behavioral or medical needs; individuals with caregivers over age 70; and individuals transitioning out of Intermediate Care Facilities for the Developmentally Disabled. The 2014-2015 General Appropriations Act went further and specifically provided funds and instructions for additional individuals to be enrolled into the HCBS Waiver iBudget program.   See Ch. 2014-51, items 239-241, at 61-63, Laws of Fla.  These individuals include people transitioning out of Intermediate Care Facilities for the Mentally Retarded, Intermediate Care Facilities for the Developmentally Disabled and out of nursing home care into the community.  The iBudget rules are necessary to properly enroll these individuals into the waiver as directed by the General Appropriations Act. 
7.  An immediate need for these rules exists in order to continue to protect the health and safety of the individuals with the needs and requests listed above.  In order to properly address individual needs and requests and those with an iBudget amount below the algorithm amount, the Agency has set its processes in motion to notify the individuals affected and their waiver support coordinators of the increases to their respective iBudget amounts.  The Agency anticipates distributing the additional funds in the iBudget accounts of the affected individuals by September 5, 2014.  The increased amounts will be effective as of August 1, 2014.

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

1. This emergency action taken by the Agency provides the rules necessary to comply with its legislatively mandated responsibilities described above.  The procedure used for these emergency rules is fair under the circumstances because the emergency rules set forth the statistically validated algorithm that was previously subject to scrutiny and public comment in a lengthy rulemaking process and successfully relied upon by the Agency during the phase in of the iBudget system.   The rules set forth the same algorithm that was also scrutinized and upheld by an Administrative Law Judge at the Division of Administrative Hearings.  See, G.B., et. al. v. A.P.D., Case No. 14-1849RP (DOAH Sept. 9, 2013).  Moreover, the same algorithm was reviewed but not invalidated by the DCA in G.B. v. APD.
2. The population served by the Agency depends on help from the Agency to meet critical needs.  This rule adopts an algorithm which is necessary to accomplish that goal and which is the only choice immediately available to the Agency.

SUMMARY:

These emergency rules replace the iBudget process contained in the rules recently invalidated by the Court.  They are necessary for the administration and continued implementation of Section 393.0662, F.S., and to effectuate the legislative appropriations provided in the 2014-15 General Appropriations Act, Ch. 2014-51, items 239, 241, and 268, at 61-63 and 66, Laws of Fla.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

David De La Paz, at (850) 922-9512 or david.delapaz@apdcares.org.

PRINT PUBLISH DATE:

9/4/2014 Vol. 40/172

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=65GER14-2&PDate=9/4/2014&Section=4

REFERENCE MATERIALS:

Ref-01050 Developmental Disabilities Waiver Services Coverage and Limitations Handbook

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