LGH NOTE:  Motion of Great public importance official papers filed with courts:

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

GERAUD L. MORELAND, (I I) , CASE NO.: ID08-4353 et al., L.T. Case No.: 08-2199RP

Appellants,

v.

AGENCY FOR PERSONS WITH DISABILITIES,

Appellee.

_______________________1

MOTION FOR CERTIFICATION AS TO QUESTIONS OF GREAT PUBLIC IMPORTANCE

The Agency for Persons with Disabilities (APD) moves this Court to certify certain questions passed upon in its opinion of August 21, 2009, to be of great public importance. This Motion is based on Rule of Appellate Procedure 9.030 (a) (2) (A) (v) .

Although numerous issues were argued, t.he most important questions of public importance were whether t.his Agency was actually required by a statute listing criteria to base an Agency decision on to adopt an “assessment instrument,” in an Administrative Rule and in the alternat.ive whether Proposed Rule 65G-4 . 0021 (1) constituted an assessment instrument even if one was not required by the statute.

Rule 65G-4. 0021 (1) provided that the Agency would assign clients to tiers based on a list of criteria, including designated Florida St.atutes, designated Administrative Rules,

and other specifically list.ed information in subsections (a)

through (d) which would be considered by the Agency.

The Agency contends that the statute in question

These five rules are all of the Administrative Rules governing tier assignments under section 393.0661, Florida Statutes (2007) In 2002 the Florida Legislature required the Department of Children and Family Services to begin a comprehensive redesign of the entire Developmental Disability Program in Florida. Ch. 2002-400

393.0661) did not. expressly require the adoption of an “assessment instrument” by rule and that, in fact, the Agency used a previously adopted assessment instrument in the form of the Individual Cost Guidelines (ICGs). The Administrative Law Judge who tried this contested rule challenge specifically found the ICG was being used as the “assessment instrument.” The ICG was found by the ALJ to be both “valid” and “reliable.” (ALJ order p.15). These findings were based on the evidence below and were not reversed or even addressed by this Court. They rest on the fact that the rule requires consideration of “the client’s service needs as determined through the Agency’s prior service authorization process.” That process, the evidence established, included consideration of the ICG. § 39, Laws of Fla. The waiver system at t.hat time had one waiver without a cap and another, the Family and Support.ed Living Waiver with a $14,792 spending 2

cap. In 2007, the Legislature amended the statute to create a

new four tier system. Ch. 2007-64, Laws of Fla. This version of section 393.0661 involved a four tier system with spending caps on three of the tiers for all persons in Florida with developmental disabilities pursuant to a federally approved waiver program. According to section 393.0661 (3), as amended, the APD was required to assign all of its client.s to t.he four tier system. Tiers

Out. of the 21,307 tier assignments APD made in 2008, some 5,555 clients request.ed administrative hearings t.o dispute their tier assignment.s because each assert.ed t.hat all of the services they had been receiving in previous years were “medically

As stated in this Court’s August 21, 2009, decision, the Legislat.ure required that APD “shall assign all clients … to a tier based on

2, 3 and 4 have spending caps per year of $55,000, $35,000 and $14,792, respectively. According t.o this new st.atute, the benefits for many of APD’ s 21,307 clients will have to be reduced. This spending reduction was the purpose of the new statut.e. necessaryl! and that the APD incorrectly denied them an administrative hearing. According to the 2007 legislation, benefits to everyone in t.iers 2, 3 and 4 had to be reduced for budgetary reasons and new “cost plans” for these persons were required. a valid assessment instrument, client 3

characteristics, and other appropriate assessment methods.” See

§

tier assignments.

However, if the decision stands as written, then the questions passed upon should be certified for Supreme Court review as matt.ers of great public importance under Rule

9.030 (a) (2) (A) (v) . The questions to be certified should be:

(1) WHETHER THE AGENCY FOR PERSONS WITH DISABILITIES WAS REQUIRED BY

(2) WHETHER PROPOSED RULE 65G-4.0021(1), QUOTED BELOW, SHOULD BE ACCEPTED AS A VALID AND RELIABLE ASSESSMENT INSTRUMENT?

Proposed Rule 65G-4.0021 provides:

393.0661. However, this Court ruled that the Agency had failed to demonstrate in the rule challenge proceedings that it had adopted a “valid, reliable assessment instrument as required by § 393.0661.” The APD disagrees with this conclusion. It has filed a Motion for Rehearing cont.ending that the statute did not require adoption of an “assessment instrument” rule and in the alternative t.hat it did, in fact, adopt and use a “valid assessment. instrument” pursuant t.o Proposed Rule 65G-4.0021. This “assessment. instrument” was used in all of its thousands of § 393.0661(3) AS AMENDED IN 2007, TO ADOPT A VALID AND RELIABLE ASSESSMENT INSTRUMENT IN AN ADMINISTRATIVE RULE? ..

.The agency will determine the Tier Waiver for which the client is eligible and assign the client to t.hat waiver based on the 4

developmental disabilities waiver criteria and limitations provided in Chapter 393 and 409, F.S., Rule Chapter 598-13, F.A.C., and this rule Chapter and the Agency’s evaluation of the following information:

(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)

(c) The client’s age and the current living set.ting; and

(d) The availability of supports and services from ot.her sources, including natural and communit.y supports.

The client’s service needs as determined t.hrough the Agency’s prior service authorization process to be medically necessary;  

Conclusion

This case presents issues of great public importance

because it will have a major st.atewide impact. The decision

direct.ly affect.s the lives and services of over 31,000 people

receiving services and indirectly affects 18,000 more waiting

for services. It exacerbates a multi-million dollar Agency

deficit that is about $25.5 million for fiscal year 2008-2009.

The decision affects over one hundred appeals pending before t.he

district courts of appeal and approximately 1,430 cases or tier

In 2006-2007 the Agency deficit required a non-recurring appropriation of $54 million. (Trans. Vol. III, pp 259-260. The Agency’s appropriation that year was linked to the bill creating the tiers becoming law.

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change requests before the Agency and the Division of Administ.rative Hearings.

The Agency has attempted in good faith to follow the Legislature’s directives t.o spend fewer public dollars on t.housands of persons with serious developmental disabilities. Therefore, t.his case should be certified for discretionary review by the Florida Supreme Court..

I hereby certify that a copy of the foregoing has been

furnished by mail t.o the following this

day of September,

2009.

Gigi Rollini, Esquire Steven Brannock, Esquire Holland & Knight. LLP Brannock & Humphries PO Drawer 810 100 N. Tampa Street, Suite 4100 Tallahassee, Florida 32303 Tampa, Florida 33602

Christine Fuqua Gay, Esquire Cynthia Mikos, Esquire Holland & Knight LLP Allen Dell 50 N. Laura Street., Suite 3900 Amicus Curiae of ARC of Florida Jacksonville, Florida 32202 202 South Rome Avenue, Ste 100

Tampa, Florida 33606 HB

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