Procedure
Appeal has no foundation unless Petitioner suffered loss of benefits. If medically necessary services can be accomplished in one visit, no loss of benefits was suffered when respondent denied Petitioner’s request for 4 visits a day, Fla. Admin. Code 65-2.056- 09F-04641
Premature twins appealing cancellation of personal care services could be considered together, where they received care from the same nurse during the same hours, Fla. Stat. §409.9132(d), F.S. §409.905, Fla. Admin. Code 59G-1.010(166), Florida Medicaid Home Health Services Coverage and Limitations Handbook (July 2008), pg. 2-22- 09F-07953 and 09F-07954
Record was held open to allow parties to submit proposed final orders. Respondent’s counsel submitted supplemental argument instead and Petitioners moved to add a rebuttal argument. Respondent’s and Petitioner’s additional arguments were stricken from the record for being outside the scope of the request for proposed orders.- 09F-07732
Administrative hearings are part of the decision process, during which, the agency makes the final determination of medical necessity. The hearings are used to make a final decision, not to revisit a preliminary one. The final order must defend that decision based on what the agency knew at the time of the order. 42 U.S.C. §1396d(r)(5), 42 U.S.C. §1396d(d)(8), Fla. Stat. §409.913(1)(d), F.S. §409.905(4)(b), Fla. Admin. Code 65-2.060(1)(3), F.A.C. 59G-1.010(166), Moore v. Medows, 324 Fed. Appx. 773 (11th Cir. 2009), McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), Couch Construction Company, Inc. v. Dep’t of Transporation, 361 So.2d 172 (Fla. 1st DCA 1978), Home Health Services Coverage and Limitation Handbook (July 2008), pg. 2-2, 2-10, 2-15- 09F-07732
Standard of Review
Administrative fair hearings review the agency’s decision de novo meaning, new and relevant evidence, not previously considered by the agency may be heard by the hearing officer- 09F-03333
There must be a conclusion of good cause to overcome the customary weight given the treating physician’s opinion, C.F. v. Department of Children of Families, 934 So.2d 1(2005)- 09F-05017
Appeal denied. The agency moved to reduce PDN services and, therefore, has the burden of proof. Hearings are de novo and the Hearing officer credits additional weight to the treating physician’s testimony, when there is a conflict concerning petitioner’s condition. However, on the issue of medical necessity, the hearing officer will consider the treating and reviewing physician’s testimony equally. Petitioner’s care was not no so complex as to preclude grandmother, caregiver, from providing care while PDN or HHA was not working, 42 U.S.C. §1396d(r)(5), 42 U.S.C. §1396d(a)(8), Fla. Stat. §409.913, F.S. §409.905(4)(b), Fla. Admin. Rule 65-2.060(1)(3), Fla. Admin. Code 59G-1.010(166), Home Health Services Coverage and Limitations Handbook, pg. 2-17- 09F-07465
Burden of Proof
Party asserting the affirmative of an issue bears the burden of proof, Fla. Admin. Code 65-2.060, 09F-03108
The nursing home has the burden of proof by clear and convincing evidence when discharging petitioner for failure to pay, Fla. Stat. §400.0255(15)(b)- 09N-00081
Nursing home must prove by clear and convincing evidence that Petitioner failed to pay for nursing home services rendered after reasonable and appropriate notice to pay.- 09N-00142
Appeal denied. The agency moved to reduce PDN services and, therefore, has the burden of proof. Hearings are de novo and the Hearing officer credits additional weight to the treating physician’s testimony, when there is a conflict concerning petitioner’s condition. However, on the issue of medical necessity, the hearing officer will consider the treating and reviewing physician’s testimony equally. Petitioner’s care was not no so complex as to preclude grandmother, caregiver, from providing care while PDN or HHA was not working, 42 U.S.C. §1396d(r)(5), 42 U.S.C. §1396d(a)(8), Fla. Stat. §409.913, F.S. §409.905(4)(b), Fla. Admin. Rule 65-2.060(1)(3), Fla. Admin. Code 59G-1.010(166), Home Health Services Coverage and Limitations Handbook, pg. 2-17- 09F-07465
Evidence
Grabau v. Department of Health, Bd. Of Psychology, 816 So.2d 701 (Fla. 1st DCA 2001), controls because of factual similarities. Testimony introduced by depositions is hearsay and does not meet a hearsay exception, therefore it is excluded except for the purpose of supplementing or explaining other evidence. Hearsay evidence is not sufficient to support a finding, Fla. Stat. § 90.803(22), F.S. §120.57, Fla. Admin. Code 65-2.057- 09F-04105
A visual demonstration, solely for the hearing officer’s viewing, does not establish the functional capabilities of the feeding tube and “ambu” bag for the record. The items and their function should be described orally or in writing to be duly entered into the record.- 09F-07294
I-Exchange Program
09F-04303, 09F-04641, 09F-04315, 09F-05407, 09F-02664, 09F-03369, 09F-02705, 09F-02748, 09F-03488, 09F-05908, 09F-07293, 09F-06773, 09F-07294, 09F-08159
The fields in which the provider can submit information are limited. Since, the provider could not include all the petitioner’s diagnoses, treatments, medications or caregiver schedules, the determination was invalid, Fla. Admin. Code 59G-1.010, Home Health Services Coverage and Limitation Handbook pg. 2-14, 2-15- 09F-02664
Appeal rendered moot
By Prior Resolution
Agency reviewed the decision prior to and during the appeal hearing and proposed a compromise which the the Petitioner accepted, Fla. Admin. Code 59G-1.010- 09F-05758
All requested hours were approved before the hearing, upon respondent’s reconsideration. Therefore, appeal is dismissed- 09F-05410
Denial of a portion of requested hours, based on information from service provider, occurred before Respondent presented testimony about a rule change. Parties arrived at a compromise at hearing and appeal was granted, Fla. Admin. Code 59G-4.130, Home Health Services Coverage and Limitations Handbook, Ch. 2- 09F-03425
Settlement agreement was reached at a pre-hearing conference outside the presence of the hearing officer. As per the agreement, Petitioner withdrew her request for a hearing on the record. Appeal is dismissed- 09F-05906
Respondent offered to approve certain PDN hours and Petitioner accepted offer. Respondent sent hearing officer a letter confirming the agreement and appeal was dismissed, Fla. Admin. Code 59G-4.130, Home Health Services and Limitations Handbook, Ch. 2- 09F-05335
Respondent reconsidered original denial and approved all requested hours. Respondent sent hearing officer a letter confirming the agreement and appeal was dismissed, Fla. Admin. Code 59G-4.130, Home Health Services and Limitations Handbook, Ch. 2- 09F-05243
Respondent offered Petitioner the requested 24-hour PDN care on the condition that training must be conducted and documented. Petitioner accepted terms and appeal is dismissed, Fla. Stat. §120.80- 09F-06853
An agreement was reached pre-hearing. Respondent rescinded their denial of private duty nursing hours and agreed to provide all services Petitioner requested. Appeal dismissed.- 09F-08310
Respondent and Petitioner reached an agreement where 10 hours of PDN services would be provided to Petitioner six days a week. And, caregiver could select hours. Appeal granted.- 09F-06774
After the discharge notice was issued, Petitioner was approved for Medicaid ICP and Petitioner’s son significantly reduced outstanding debt. The parties agreed on a payment plan, which rendered the discharge moot, 42 C.F.R. §483.12- 09N-00186
The Final Order of Dismissal was issued in error. Prior to the Final Order, a hearing had been held and a settlement was reached between the parties during the hearing. Therefore, the Final Order was vacated and the agreement was incorporated.- 09F-06731
Petitioner accepted respondent’s offer of PDN services in the amount originally requested. No further issue is present. Appeal is dismissed.- 09F-08643
At the hearing, Respondent offered PDN services for 10 hours a day, 6 days a week. This was in lieu of the previous decision to reduce Petitioner’s PDN hours to 8 hours a day for 6 days a week, from 10 hours a day 5 days a week and 8 hours a day for two days a week.- 09F-06774
Appeal moot. During the hearing, the parties entered into a repayment agreement, which was later entered into the record.- 10N-00011
Appeal dismissed. At an agency conference at the hearing, the agency and petitioner agreed to continue PDN services at their previous level, 24 hours a day, seven days a week.- 10F-00875
By Additional Information
Appeal was granted. The agency failed to issue a notice rescinding the original decision after additional evidence was offered at the supervisory review. The new evidence would have rendered the original reduction of PDN services improper, Fla. Admin. Code 65-2.049, F.A.C. 65-2.056, F.A.C. 65-2.060- 09F-03108
Petitioner’s mother supplied testimony to correct information submitted by provider. Thereafter, reviewer rescinded denial and appeal was rendered moot, Fla. Admin. Code 65-2.056- 09F-4313
The matter was resolved at the hearing when Petitioner provided information not previously provided by Provider. Respondent reconsidered PDN hours and appeal was granted, Fla. Admin. Code 59G-4.130, Home Health Services and Limitations Handbook ch. 2- 09F-02939
Agency action is not upheld where additional information renders the prior decision invalid and the agency acknowledges the need for reconsideration, Fla. Admin. Code 65-2.056, F.A.C. 65-2.049, F.A.C. 65-2.060- 09F-03779
Upon receiving additional information, request for prior authorization for inpatient stay was approved.- 10F-00342
During the hearing, new information arose concerning Petitioner’s family situation. Father works in construction and must travel on short notice. Mother provides care to Petitioner and his two siblings. Respondent withdrew previous decision. It was agreed that Respondent would provide 22 hours of PDN services a day while both parents were home and 24 hours of care a day when only one parent was home. Flexibility of father’s schedule was not addressed.- 09F-08478
Jurisdiction
Petitioner claims the services for personal care have not been provided by the provider since Petitioner and his mother returned from a lengthy visit with family. This matter is a contractual one and does not involve a dispute with the Department over the denial of personal and companion care benefits to Petitioner, therefore the appeal is denied, Fla. Stat. §408.301, Fla. Admin. Code 65-2.042, F.A.C. 65-2.057, F.A.C. 65-2.056- 09F-3261, 09F-3621
Florida Medicaid law does not conflict with Federal Medicaid law. 42 C.F.R. §440.230, 42 U.S.C. §1396d(r)(5), Fla. Admin. Code 58G-1.010(149), F.A.C. 59G-1.010(166), F.A.C. 59G-4.130(2), Fla. Stat. §409.905, F.S. §409.913, Florida Medicaid Child Health Check-up Coverage and Limitations Handbook (Oct. 2003) pg. 1-1, Florida Medicaid Home Health Services Coverage and Limitations Handbook pg. 2-14, 2-15, 2-19- 09F-03369
Department could not produce the ICP denial letter explaining that income was in excess of program limits. Record was left open for 14 days to allow the Department to make a determination of eligibility before the hearing could proceed- 09F-03735
Agency never approved or denied request for medical equipment and supplies prior to hearing. Hearing officer lacks jurisdiction to hear appeal until agency makes decision, Fla. Admin. Code 65-2.056- 09F-01722
Agency denied prior authorization for prescription medication where Petitioner failed to provide documentation explaining the alleged unsuitability of the generic version for treatment. Petitioner also requests reimbursement of copying costs and an award for pain and suffering for being without Oxycontin for 9 days. These claims are denied, as there is no basis for a hearing unless Medicaid benefits have been denied, Fla. Stat. §409.912, Fla. Admin. Code 59G-1.010(166), F.A.C. 59G-1.010(226)- 09F-06238
Petitioner received corrected notice of discharge for endangering the safety of others. Petitioner was involuntarily discharged, under the Baker Act, before the discharge date on the notice had passed. The Baker Act admission invalidates the need for 30-day advance notice. Hearing officer had no administrative authority for readmission to discharging facility, therefore decision is upheld, 42 C.F.R. §483.12, 09N-00182
Petitioner applied for Supplemental Security Income-Related Medicaid in the form of ICP benefits. Because the SS decision is binding on an agency, the Respondent could not make an independent determination and had to adopt the SS decision. Appeal denied, 20 C.F.R. §416.905, 42 C.F.R. §435.540(a), 42 C.F.R. §435.541, Fla. Admin. Code 59G-4.290, F.A.C. 65A-1.711, F.A.C. 65A-1.710- 09F-07634
Appeal is denied as non-jurisdictional because it was requested more than 90 days after the denial of Medicaid benefits, Fla. Admin. Code 65-2.046- 09F-08695
Qualified Medicare Beneficiaries
If double payments were made for Medicare Part B premiums, an individual’s remedy is through the SSA, not AHCA, the state agency. Since there was no state agency action or failure to act, a hearing is improper, 42 C.F.R. §431.241, Fla. Admin. Code 65-2.056- 09F-02672