A.C. v. Agency for Health Care Admin.

• Decision Date: 11 September 2019
• Docket Number: No. 3D19-365,3D19-365
• Parties: A.C. c/o V.R., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
• Court: Florida District Court of Appeals

322 So.3d 1182

A.C. c/o V.R., Appellant,

v.AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.

No. 3D19-365

District Court of Appeal of Florida, Third District.

Opinion filed September 11, 2019.

A.C. c/o V.R., in proper person.

Tracy Lee Cooper George, Chief Appellate Counsel and Nicholas A. Merlin, Senior Attorney (Tallahassee), for appellee.

Before SALTER, LINDSEY and MILLER, JJ.

ORDER ON AHCA'S MOTION TO DETERMINE WHETHER THE MOTHER IS AUTHORIZED TO APPEAR ON BEHALF OF HER DISABLED MINOR CHILD

SALTER, J.

The appellee, State of Florida, Agency for Health Care Administration ("AHCA"), has moved the Court to determine whether the mother, appellant V.R., of a disabled 13 year-old child (A.C.), is legally authorized to represent A.C. in her appeal from administrative rulings in a Medicaid benefits case.¹ AHCA points out that Florida's "unauthorized practice of law" restrictions and two reported appellate decisions indicate that "a pleading filed in court by a nonlawyer on behalf of another is considered a nullity."

This issue was not a concern when V.R. represented her daughter before AHCA's Office of Fair Hearings, culminating in the order under appeal here. The applicable administrative rules, Rule 59G-1.100(7), Florida Administrative Code, and 42 C.F.R. sections 431.221(a) and 435.923, specifically allowed V.R. to be her daughter's "non-attorney authorized representative."

The Florida Bar has not promulgated a Rule Regulating the Florida Bar to address this specific question, but authority for V.R.'s pro se representation of her disabled daughter can be discerned from various sources:

• A parent's status as natural guardian, and the parent's duties to care for and protect a minor child are well-settled. Section 744.301(1), Florida Statutes (2019). "Each parent has a fundamental obligation to support his or her minor or legally dependent child." § 61.29(1), Fla. Stat. (2019).

• V.R.'s status as an interested party and intervenor would be assured even if the Medicaid benefits are claimed by and for the minor child. V.R.'s status before this Court is as an individual, natural person—not in some special or limited capacity as a trustee, personal representative, or corporation, for example.

• Nor is V.R. a family member authorized by a power of attorney for another adult, as in a case cited by AHCA, Forman v. State Department of Children & Families , 956 So. 2d 476, 477 (Fla. 4th DCA 2007). The other decision cited by AHCA on this question, Magnolias Nursing and Convalescent Center v. Department of Health & Rehabilitative Services , 428 So. 2d 256 (Fla. 1st DCA 1982), is also inapposite. In that case, a Minnesota attorney who was not licensed to practice in Florida filed a notice of appeal from an administrative order on behalf of a corporation. The Department of Health and Rehabilitative Services moved to strike the notice "since a corporation cannot represent itself and must have a licensed Florida attorney representing it in court ...." Id. at 257.

• By virtue of her physical and intellectual limitations, A.C. was unable to represent herself in the administrative proceeding and is unable to represent herself here. Her treating physician reported a diagnosis of "encephalopathy, left sided schizencephaly and cerebral palsy which is manifested by right sided weakness and motor impairments." The therapies at issue in her appeal are to help her perform various motor skills and communicate effectively. Florida Rule of Judicial Administration 2.540(a) addresses the duties of Florida's courts to provide qualified persons with disabilities "with accommodations, reasonable modifications to rules, policies, or practices, or the provision of auxiliary aids and services, in order to participate in programs or activities provided by the courts of this state." Such accommodations are intended to assure compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. section 12101, et. seq.

• AHCA's Office of Fair Hearings granted the petition of "A.C. c/o V.R." for a determination of civil indigent status, approving an application declaring that V.R. has three dependents (including A.C.), is not married, has net income of $750.00 per month, and has no other assets. This Court has received a certified copy of that order and waived the otherwise-applicable filing fee. It seems apparent that V.R. lacks the resources to retain and pay for an attorney.²

• If this Court is to be "open to every person for redress of any injury,"³ A.C. should be allowed her day in Court. It is illogical to provide A.C. an administrative hearing by allowing her non-attorney mother, V.R., to be her authorized advocate, but to then bar V.R. from appearing in, or prosecuting, an appeal from that administrative ruling to this Court unless she can apply her scant resources to hiring an attorney.

• AHCA observes that V.R. is a "nonlawyer" under the Rules Regulating the Florida Bar, and Florida policy is intended to prohibit the unlicensed practice of law (UPL). We find no reported opinion prosecuting a nonlawyer parent for UPL in a case involving the parent's claims on behalf of his or her child. Rule Regulating the Florida Bar 10-9.1 permits the Bar's Standing Committee on Unlicensed Practice of Law to issue formal advisory opinions regarding UPL questions. If AHCA continues to be concerned with V.R.'s authorization to advocate for A.C. in the present case, it can pursue such an opinion. To date, no such advisory opinion has been issued.

To AHCA's credit, AHCA merely raised the question rather than moving to strike V.R.'s notice of appeal or preclude V.R. from filing a brief or other pleading on behalf of A.C. in this Court. We address AHCA's motion in this opinion in order to advise V.R. that, absent further order or guidance from The Florida Bar or Florida Supreme Court, she is not precluded from filing papers in this case.

Noting that no initial brief has yet been filed in the case by, or on behalf of, V.R. and A.C., we take the further step of abating this case for sixty days to allow a non-profit legal service provider or Florida-licensed attorney to volunteer pro bono assistance to the appellant in this case, in the event one steps forward after reading this opinion. We express no present opinion regarding the merits or outcome of the case.

It is so ordered.

A.C., a disabled 13-year-old child, through her mother and authorized representative below, V.R., appeals a final order of the Florida Agency for Health Care Administration ("AHCA"), which dismissed her request for a Medicaid fair hearing. A.C.’s request concerned AHCA's termination of A.C.’s occupational therapy services. We reverse and remand the case for further proceedings because the final order is not supported by competent and substantial evidence in this record.

Facts and Procedural Background

A.C. has been enrolled in Florida's Medicaid Prescribed Pediatric Extended Care (PPEC) program¹ and has received medically necessary benefits since June of 2015.² Her treating physician reported a diagnosis of "encephalopathy

, left sided schizencephaly and cerebral palsy which is manifested by right sided weakness and motor impairments." The occupational therapy services requested, and at issue in this appeal, are to help her perform various motor skills and communicate effectively.

On September 6, 2018, A.C.’s PPEC provider, Children's Rehab Network³ (CRN), submitted a request to eQHealth Solutions, Inc.—AHCA's contractor for medical necessity determinations for Medicaid benefits—for occupational therapy services. On October 24, 2018, eQHealth denied A.C.’s request in part because of a "Technical Reason" and also because the information submitted "does not support the medical necessity for [the] requested services." Specifically, the request for dates of service from September 6, 2018 through October 4, 2018, was denied because the request was submitted too late. The request for dates of service from October 5, 2018 through March 4, 2019, was denied because "no dated physician signature or clarification of the hours requested was submitted." The notice informed A.C. of her right to reconsideration of the decision and her right to request a Medicaid fair hearing. The notice was signed by a physician who reviewed the request and made the decision "based on the information provided." Two days later, A.C.’s medical provider CRN faxed a 17-page follow-up confirming that a total of 364 unit hours of therapy were requested. The documents faxed to AHCA included a dated physician signature authorization for the therapy services on the last page. On the facsimile memo page, the provider included the following: "Reconsideration—Total units should be 364 units (units missing)."

On October 28, 2018, eQHealth sent its notice of reconsideration determination upholding its denial of the requested services. The notice explained that, "[a] different eQHealth physician reviewed the materials submitted by your provider to decide whether the services requested ... are medically necessary as part of eQHealth's reconsideration review process. The reconsideration review does not rely in any way on the findings made by the first physician." The "medical basis" for the reconsideration decision was that (1) records showed A.C. "was receiving [Occupational Therapy] services from another provider also," (2) the provider was asked "to provide clarification" on the issue and did not provide such clarification, and (3) a proper review cannot be done.⁴ The notice again informed A.C. of her right to request a Medicaid fair hearing to challenge the decision. The reconsideration notice was signed by the same physician who made the initial decision to deny the occupational therapy services, despite the above-quoted language providing that a different physician had reviewed the materials as part of the reconsideration review process.

On November 1, 2018, A.C., through her mother, V.R., filed a request for a Medicaid fair hearing to challenge AHCA's...