Agency for Persons with Disabilities

megan wall

Megan Wall, esq

Summary of the iBudget Rule Challenge Final Hearing before DOAH

Earlier this month, I attended the three day rule challenge hearing before the Division of Administrative Hearings (“DOAH), at which Holland & Knight attorneys Gigi Rollini, Karen Walker and Matthew Mears represented developmentally disabled consumers challenging the third version of proposed rules to implement the iBudget.  Like so many other consumers receiving services through Florida’s Developmentally Disability Services Waiver, all four Petitioners received significant proposed reductions under the iBudget further depleting their already inadequate funding.  Because this case impacts every Waiver consumer, I am summarizing what occurred for those who could not attend.

In response to the rule challenge, APD hired five private attorneys, in addition to two in-house lawyers. The team of seven lawyers had significant resources at their disposal to defend the rule.

In Florida, rule challenges are fast track cases meant to be heard within 30 days from the filing of the petition.  This hearing was scheduled the very first full week in July. The Holland & Knight lawyers fought hard (and succeeded) against APD’s attempts to delay the hearing. While it is difficult to go to a full-scale hearing so quickly, the Holland & Knight team was concerned that to give APD more time to prepare would drive up the expense of the case. Amazingly, despite the holiday weekend, the hearing began as originally scheduled, which was difficult but strategically important.

The case at its core is simple. The iBudget statute directs APD to set each client’s funding for services at an amount based on a statistically valid algorithm, and then consider if the person needs an increase to that amount because of extraordinary, one-time, temporary or changed needs.  Florida law prohibits APD from enacting rules that run contrary to, or expand the implementing statute. Despite these legal limitations, the evidence in the case showed that:

1.         APD used the algorithm only as a starting point for setting funding because, in APD’s own words, the algorithm APD designed produced “harsh results” for many. Because the algorithm does not result in an equitable allocation of the funds for DD waiver clients, APD created an elaborate and subjective “methodology” to decide whether or not to use the algorithm to set a client’s iBudget. This supplemental “methodology” treats some groups of people differently, even where clients in those groups have the exact same needs.  Most glaringly, APD’s “methodology” targets existing DD waiver clients and singles them out to receive lower budgets than a new client with identical needs. Given that the law requires an “equitable allocation” of funds based on “the client’s level of need,” the evidence showed at the hearing that APD’s actual system is not consistent with the system described in the iBudget statute.

2,         APD told the Florida Legislature that if it adopted an iBudget system for Florida, then 64% of existing Waiver clients would see an increase in their budgets as a result of the iBudget.   However, APD later made a “policy decision” that funding increases simply would not be given and the algorithm would be used only to reduce, not increase a client’s allocation of funds.

3.         Former University of Florida Professor Dr. McClave (an expert in statistics and econometrics who has written text books on these types of models and created successful Florida Medicaid models) reviewed and tested the APD algorithm and testified on behalf of the Petitioners that it was statistically unreliable, including that APD’s chosen algorithm had a margin of error of over 40%!  He said that this is not a model based on a valid statistics approach, and that the model was unacceptable in his field. He memorably testified that APD’s chosen model is as accurate as “throwing darts at a wall of numbers.”

4.         APD identified no specific legal authority that allowed it to implement the iBudget the way it is being done. APD could point to no legal authority to use a statistically unreliable algorithm, to reduce amounts determined by the algorithm, to use a “decision tree” process to reduce existing client’s budgets, to single out existing clients and assign them lower budgets, or to reduce budgets without any final rules at all.  Recognizing the shortcomings of its own position, APD admitted it asked the Florida Legislature in 2012 to change the iBudget statute to  conform to how APD was actually implementing the program.  The Legislature declined to make the revisions. Regardless, APD simply continued to implement the system using its system rather than one consistent with the statute.

5.         APD’s statistics expert (Dr. Niu), who designed the algorithm, testified that he did what his client (APD) asked him to do and he did his best.  He did not consider other state’s algorithms. His reason was that he did not need to because he “only relies on [him]self.”  He used a very few variables (about seven), and assumed he could drop out some variables (such as the entire physical status portion of the QSI) on the basis that other, similar variables (such as the behavioral status portion of the QSI) tended to measure about the same thing—not realizing that every DD client doesn’t have both physical and behavioral needs, or does not have them in equal force. The result—those with significant physical needs, but no significant behavioral needs, will get substantially lower budgets than those with equally costly behavioral needs.

Also, it was shocking to learn that Dr. Niu “meant to do testing” to ensure the validity of the model, but then just did not get around to performing the type of testing necessary to ensure the validity of the model.  He did no testing against other years’ budgets (as is commonly done in statistics, apparently), or “log” method testing (as is typically done in statistics, apparently, when the model is a budget allocation or distribution model).  This was the case even though Dr. Niu has done a much simpler distribution model for the Florida Department of Transportation, and he did do “log” method testing for that model.

Dr. Niu also had no response to the UF Professor’s testimony that the algorithm was not statistically valid.  In fact, he said complimentary things about the other expert, Dr. McClave, and hoped his model “would get better over time.”

NoteAPD testified that it will analyze each client’s iBudget every 12 months to determine what further cuts can be made.  When APD decides it is appropriate, it may (or may not) re-run the inaccurate algorithm in any year it wants.  Under the proposed rules, APD has authority to use the proposed subjective methods in the rule to further reduce client services at its discretion. However, for future years, the processes which permit increases for extraordinary, one-time, temporary and changed needs will no longer be available to the person whose services are being reduced.  Of course, if the algorithm dictates an increase for a DD client, APD will still have the ability to find that award is “really just not medically necessary,” since APD continues to be the sole determiner of what is and what is not medically necessary.

APD’s arguments in response to Petitioners’ case were as follows: We worked really hard on this system; the Tier system has expired and, if this new system is thrown out, APD cannot return to the Tier system; we did our best; we do have authority to do what we did (without specific reference to any law or statute); and, mainly, the Florida Legislature is very happy with APD because APD has substantially cut the cost of the DD waiver program with APD’s interpretation of the iBudget system!  In fact, APD testified that the Legislature “rewarded” APD as a “thank you” for doing such a good job with two additional appropriations totaling $60 million, which APD used internally and to bring people off the waitlist.  [The judge asked if APD should have put that into the iBudget calculations and reappropriated the money to the existing DD clients, and APD said no; the Judge asked if APD had re-run the algorithm since APD first did it (one time) based upon each years’ new appropriation, and APD said, “No, and we are not going to.”]

And, finally, there was the real client example offered at the hearing: An amazing and articulate father of a DD 26-year-old came in and told his son’s story—with a 20 IQ, he lives in a home inherited by his father, which permits his son and two other DD clients to have extremely reduced rent.  All need 24-hour supervision, which they can barely piece together between the three of them—with less and less money each year, less and less of a rate of payment each year.  And, now, all three have been given iBudget reduction notices (his son’s, alone, is an over $8,000 reduction under iBudget).  They were barely making it since their budget is already to the bone (even with the father’s substantial assistance). With the cuts now proposed, there is no hope and nowhere for them to live, except an institution were these cuts to be implemented.

With that, the story of this proposed iBudget system was told.  The agency admitted it was not following the statute to implement the system and the model being used cannot be shown to be statistically reliable.  They agreed that cuts may continue each year. Even if every client could bring into an individual hearing an expert statistician to object to algorithm used to calculate the proposed reduction, the DCF Fair Hearing Officers lack the authority to find the rules invalid. Only DOAH has that authority.  Thus, the reason why this case is before DOAH for a decision, and why it is so crucial a test case.

A decision will be issued around the end of August or early September.  The lawyers for the Petitioners agreed to file this case without sufficient cash in hand on the hope that once the DD community knew the truth about the proposed iBudget system, they would join together to support efforts to compel APD to use an algorithm that is statistically reliable  and a process that follows the law. The Petitioners’ lawyers brought this David and Goliath case, did it in an unbelievably short period of time and, as a result, kept the costs to a bare minimum ($225,000).  Our team, led by Gigi Rollini, presented a clear, articulate, and persuasive case.  And, now, we have to pay her!  [And did I mention that in addition to APD’s seven attorneys and the work they all created, there was also surprise evidence sent by APD at 8:30 am the final day of trial, and surprise witnesses on the final day of witness disclosure—less than one week before hearing—including an expert APD brought in at the last minute and paid $85,000 for his service. And despite the additional work and expense tied to this surprise witness, he ultimately did not even testify because he had nothing to say after hearing Dr. McClave.]

Please contribute now to help us to meet our $125,000 goal!  To get there, we are asking that you consider donating at least at the $10,000 level.  We also specially thank those increasing this to the $20,000 level—we could not do this without you!

Please be a part of the solution!  There are two easy ways to contribute to the APD iBudget Proposed Rule Challenge:

(1)       Checks may be made out to Holland & Knight LLP, and sent to ATTN:  Gigi Rollini, Post Office Drawer 810, Tallahassee, Florida32302; or

(2)          Payment by wire transfer to:

Wells Fargo Bank N.A.

420 Montgomery Street

San Francisco, CA 94104-1207

ABA # 121000248

Account # 2090002390441

For Credit to: Holland & Knight, LLP

Please indicate “APD iBudget Proposed Rule Challenge” as the Beneficiary Reference in the wire.

Thank you!

–Megan Wall, Managing Attorney, St. Johns County Legal Aid

ImageFeds: Florida dumping disabled kids in nursing homes
More than 3,300 children with disabilities are at risk of being pushed into adult nursing homes because the state is slashing nursing and other services that would otherwise keep them at home with their families, according to a lawsuit filed against state health officials.

The lawsuit mirrors a letter sent this week by federal officials to Florida Attorney General Pam Bondi alleging the state is violating federal law by allowing more than 200 children with disabilities and even babies to be kept in nursing homes, often for years.

The suit and federal regulators say children languish in facilities, sharing common areas with elderly patients and having few interactions with others, rarely leaving the nursing homes or going outside. After visiting children in six nursing homes, investigators noted the children are not exposed to social, educational and recreational activities that are critical to child development. Educational opportunities are limited to as little as 45 minutes a day, according to a detailed letter sent Tuesday by U.S. Department of Justice officials.

Barbara Palmer to Lead Agency for Persons with Disabilities

Today, Governor Rick Scott named Barbara Palmer as director of the Agency for Persons with Disabilities, effective August 22, 2012.

She has served as the agency’s chief of staff since 2011.  “Throughout her distinguished career, Barbara has been widely recognized for her leadership and advocacy work on behalf of individuals seeking equal opportunities, and she has demonstrated that same high energy on behalf of Floridians with disabilities,” Governor Scott said.  “The agency and the customers it serves will benefit from her broad range of experience and expertise.”

Previously, Palmer served as assistant secretary for administration with the Florida Department of Children and Families from 2009 to 2011. Among her private-sector experience, she was president and CEO of Palmer, Musick and Associates from 1993 to 2009 and CEO of Illuminactive Multimedia Inc. from 1995 to 1997.

She served as director of the division of hotels and restaurants within the Florida Department of Business and Professional Regulation from 1989 to 1991. At Florida State University, she was associate vice president for governmental relations from 1985 to 1989 and director of women’s intercollegiate athletics from 1977 to 1985.

Nationally recognized for her efforts to secure passage of Title IX and ensure equity in sports for women in school athletic programs, Palmer was inducted into the Florida Women’s Hall of Fame in 1982. In the 1970’s, Palmer began her career as executive director and vice president of IMPACT Enterprises Inc., a company serving individuals with developmental, mental and physical disabilities transitioning from institutional settings to community placements. She received bachelor’s and master’s degrees from Florida State University.

The current director, Mike Hansen, has accepted a position with the Florida Senate. With more than 30 years of experience with health and human services policy and budgeting, Hansen has spent the past year working to continue increased efficiencies at the agency with the goal of balancing the agency’s budget and ensuring the continuation of services to Florida’s persons with disabilities.

“Mike’s extensive experience with Medicaid services and budgeting have been a tremendous help as we continue to work to ensure the availability of services to one of Florida’s most vulnerable populations,”  Governor Scott said. “I wish him all the best in his future endeavors.”

APD Communications Wants Your Opinion

The Communications Office of the Agency for Persons with Disabilities wants to ensure that it is meeting the communication needs of all its stakeholders which include employees, customers, and providers.

The Communications Office is responsible for all agency media relations, program marketing, brochures, posters, the Champion newsletter, websites, displays, constituent correspondence, agency customer service inquiries, Disability Employment Awareness Month activities, presentations, and other related activities.

Let APD know what you think!

Please spend two minutes completing this online survey ( to help APD improve it’s communication with you.

Dykes v. Dudek Settlement Agreement Summary

On July 2, 2012, the Dykes v. Dudek lawsuit was settled. Under the settlementagreement the Agency for Persons with Disabilities (APD) and the Agency for Health Care Administration (AHCA) will engage in the activities described in this Settlement Agreement Summary. The agreement addresses five key areas:

  • Residents of ICF/DDs and Nursing Homes
  • Crisis
  • Individual Family Support (IFS) Funds
  • Waitlist Strategic Planning Workgroup
  • Employment

Visit our Newsroom to read the

Settlement Agreement Summary.

Thanks to guest columnist and Executive Director of Special Gathering, Richard Stimson for this article

Many people within the mentally challenged community are receiving phone calls about the iBudgets.  This is a new thing from the Agency for Persons with Disabilities (APD).

One of the major differences is that APD may ask you to give up some money.  Perhaps they want you to give up $3,000 from your home-care services for which they will pay.  Under the iBudget, you can say back to them, “What about $1,000?  What if you give me $1,000, instead of $3,000?”  Then you must wait to see what APD says.

APD calls this a negotiation.  You will still be able to appeal; but APD is hoping they can find an amount you can agree to give up through these negotiation.  If you ask for an appeal, it will mean that you might win your appeal and you will get everything for which you have asked.  However, if you lose, then you will get nothing.

I have been to two of these negotiations.  These meetings feel like buying a car.  When you want to purchase a car, once you get a price from the sales person, you can ask for a lower price.  Then the sales person has to go and get their boss to sign off on the amount.

I really do not have any good advice.  If you just say, “No,” to the cuts and decide to appeal them it is all or nothing.  You may want to negotiate with APD and try to get something rather than chance getting nothing.

EmployME First Forum

You are invited to participate in a discussion about community employment for people with intellectual and developmental disabilities in Florida. Join us for a presentation on the Florida
Developmental Disabilities Council’s EmployME First project, a project to develop ways to increase access to community employment for people with intellectual and developmental disabilities.  Participants will have the opportunity to ask questions about the project and provide feedback on the current state of employment for people with IDD in Florida.

  • Pensacola July 11, 2012 11:00am-1:00pm
  • J. Earle Bowden Building Conference Room
  • 1 120 Church St.
  • Pensacola, FL 32502
  • Jacksonville Friday, July 13, 2012 1:00-3:00pm
  • APD office 3631 Hodges Blvd. Building B
  • Jacksonville, FL 32224
  • Orlando Tuesday, July 24, 2012 2:00-4:00pm
  • Goodwill Industries of Central Florida
  • 7531 S. Orange Blossom Trail
  • Orlando, FL 32809
  • Sarasota, Wednesday, July 25, 2012 11:00 am-1:00pm
  • Selby Public Library 1331 First Street
  • Sarasota, FL 34236
  • Ft. Lauderdale Thursday, July 26 2:00-4:00pm
  • Workforce One/ Broward County
  • 6301 NW 5th Way, Suite 3000
  • Fort Lauderdale, FL 33309

Please RSVP at
Space is limited so please register early!

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