Judge rules against state in dispute over children's medical program

By MARGIE MENZEL
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, September 22, 2015..........An administrative law judge Tuesday ruled against the Florida Department of Health in a challenge involving the eligibility of children for a state program that provides specialized medical care.

Judge Darren Schwartz ordered the department to "immediately cease" using a new eligibility-screening tool to decide whether children continue to qualify for the Children's Medical Services Network, since the screening tool was not adopted through formal rule-making procedures.

"Because the screening tool determines clinical eligibility for all current and potential participants in the (Children's Medical Services Network) plan, the tool directly affects the rights of such persons," Schwartz wrote.

The dispute springs from the state's transition to Medicaid managed care, which was passed in 2011 and was completed last year. Under the new system, the CMS Network --- a program for kids with severe and chronic illnesses --- became a "specialty plan" serving Medicaid beneficiaries.

But the plaintiffs, represented by the Public Interest Law Center at Florida State University's College of Law, contended that about 6,000 children lost their places in the program due to the screening tool.

The tool involved a series of questions that parents were asked about their children's medical conditions. The plaintiffs argued that DOH should have adopted the instrument as a rule --- especially before using it to screen children out of the network. State agencies often have to adopt detailed rules to carry out broader policies.

"The undisputed facts demonstrate that the department created the screening tool to ensure that children enrolled in the CMSN plan meet the clinical criteria for participation in the plan," Schwartz wrote. "The screening tool sets forth specific criteria to determine eligibility. The screening tool is the primary instrument used to determine ongoing CMSN eligibility; yet, it has not been adopted through rule-making procedures."

The plaintiffs' petition, filed in June, sought the reinstatement of all children in the network until the department puts the new eligibility-screening tool through a standard rule-making process with public input. While children were screened out of the specialized network, they were able to get care through the regular Medicaid program.

"This decision ensures that the state of Florida can no longer sidestep the care that a child with a disability needs without ensuring that an evaluation of required care includes the input of that child's medical provider," Matthew Dietz of Disability Independence Group, Inc., one of the plaintiffs' attorneys, wrote in an email.

The Department of Health, which had argued that the screening tool was exempt from the rule-making process, said it would start that process immediately and will hold a rule-making workshop Oct. 16.

"We will do everything in our power to move through a transparent rule-making process as quickly and efficiently as possible to best serve this unique population," department spokeswoman Tiffany Cowie wrote in an email. "The department has worked in partnership with (the Florida Agency for Health Care Administration) to ensure children with the most severe diagnoses are able to enroll in the CMS plan during rule making. Children currently in the CMS plan will continue to receive care.”

The Department of Health oversees the Children's Medical Services program, while the Agency for Health Care Administration is in charge of contracts with Medicaid managed-care plans.