J.M. v. Florida Apd

• Decision Date: 08 August 2006
• Docket Number: No. 1D06-0183.,1D06-0183.
• Citation: 938 So.2d 535
• Parties: J.M., Appellant, v. FLORIDA AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
• Court: Florida District Court of Appeals

938 So.2d 535

J.M., Appellant, v. FLORIDA AGENCY FOR PERSONS WITH DISABILITIES, Appellee.

No. 1D06-0183.

District Court of Appeal of Florida, First District.

August 8, 2006.

Rehearing Denied October 4, 2006.

Alan I. Mishael, Esquire of Alan I. Mishael, P.A., Miami, for Appellant.

Charlie Crist, Attorney General, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for Appellee.

BENTON, J.

J.M. appeals a "Final Order Denying Petition for Administrative Hearing" in which the Agency for Persons with Disabilities (APD) ruled that J.M. was not entitled to a hearing under section 120.57(1), Florida Statutes (2005), to resolve a dispute arising under section 393.0651, Florida Statutes (2005), stating:

The Office of Appeal Hearings, administratively located [not within the Agency for Persons With Disabilities but] within the Department of Children and Families, was created to provide administrative review of the denial, suspension, or reduction of benefits in those medical assistance and social services programs where a due process proceeding is mandated by federal law. The DD/HCBS Medicaid waiver, while allowing Florida to provide specific services under different circumstances than would be available under State Plan Medicaid, is nonetheless a Medicaid program authorized under Title XIX of the Social Security Act. The DD/HCBS waiver is, therefore, included within the section 120.80(7) exemption, and a Fair Hearing [in contradistinction to a section 120.57 hearing] is the appropriate forum to consider petitioner's challenge to the Agency's decision to reduce his benefits.

We reverse APD's order with directions that J.M. be granted a section 120.57(1) hearing either before APD's director (the agency head) or before "an administrative law judge assigned by the [D]ivision [of Administrative Hearings]." § 120.57(1)(a), Fla. Stat. (2005).

An autistic and mentally retarded child, J.M. lives in a group home where he receives benefits under a community-based Medicaid¹ waiver program, which APD administers. J.M. was receiving eighteen hours of "residential habilitation" daily when a private vendor² under contract to APD reviewed J.M.'s file. Thereafter, APD notified J.M.'s support coordinator that it would approve residential habilitation for J.M. for ten hours a day only. The substance of the parties' ensuing dispute is, J.M.'s petition alleges, factual: How many hours of "residential habilitation" does J.M. require?

I.

We have jurisdiction to review final agency action. See § 120.68(1), Fla. Stat. (2005) ("A party who is adversely affected by final agency action is entitled to judicial review."). As is plain from its tenor (and as APD's counsel confirmed at oral argument), the order under review was intended as the last action APD would take in J.M.'s case. Our jurisdiction is, moreover, routinely invoked to review agency orders denying section 120.57 hearings. See, e.g., Gopman v. Dep't of Educ., 908 So.2d 1118, 1120-21, 1123 (Fla. 1st DCA 2005) (reviewing denial of a request for formal hearing under section 120.57 where agency asserted other, statutorily prescribed hearing procedures sufficed); Sickon v. Sch. Bd. of Alachua County, 719 So.2d 360, 361 (Fla. 1st DCA 1998) (reviewing denial of a request for formal hearing under section 120.57); Yunker v. Univ. of Fla., 602 So.2d 557, 557 (Fla. 1st DCA 1992) (same). See also Fla. R.App. P. 9.190(b)(2)(2006).

The present case arrives in a very different procedural posture than that in which Ford v. Agency for Persons with Disabilities, 932 So.2d 294 (Fla. 4th DCA 2005), came to the Fourth District. In Ford, final agency action had not been taken: administrative proceedings were ongoing within the Department of Children and Family Services, when Ford filed a motion to transfer the case to the Division of Administrative Hearings. An interlocutory order denied Ford's motion for transfer. That interlocutory order (and perhaps the notice of a hearing within the Department of Children and Family Services) became the subject of Ford's appeal. The Fourth District ruled that it did not have jurisdiction to review the denial of the request to transfer because the order was interlocutory and contemplated further proceedings within the Department of Children and Family Services that might eventuate in an order that would render Ford's petition for review of intermediate agency action moot. Ford had applied directly and exclusively to the Department of Children and Family Services for relief, and never filed a petition with, or obtained any order from, APD.

In contrast, J.M. exhausted the possibility of administrative remedies he (unlike Ford) sought at APD. J.M. presumably had the same opportunity to litigate before a hearing officer at the Department of Children and Family Services as Ford,³ but any possibility that J.M. might obtain a favorable order from another agency (the Department of Children and Family Services)⁴ does not render the unfavorable order he in fact received from APD interlocutory. APD has announced that it will take no further action in the case, unless the order under review is reversed. Administrative proceedings within APD concluded when APD's final order denied J.M.'s request for a section 120.57 hearing.

II.

"The Administrative Procedure Act presumptively governs the exercise of all authority statutorily vested in the executive branch of state government." Gopman, 908 So.2d at 1120. An agency within the meaning of the Administrative Procedure Act, APD is responsible for administering services related to developmental disabilities as set forth in chapter 393, Florida Statutes. See § 20.197(2), Fla. Stat. (2005) ("The agency shall be responsible for the provision of all services provided to persons with developmental disabilities pursuant to chapter 393, including the ... programmatic management of Medicaid waivers established to provide services to persons with developmental disabilities."). In particular, APD is responsible for creating an individual support plan for each of its clients, see § 393.0651, Fla. Stat. (2005), and for annual review of these plans. See § 393.0651(7), Fla. Stat. (2005). These obligations encompass responsibility and authority for making determinations of eligibility for clients to receive developmental disability services. See § 393.065(1), Fla. Stat. (2005).

APD's original determination that J.M. was eligible for developmental disability services is not at issue. After furnishing such services initially, APD conducted a review—acting through a physician employed by Maximus (with which APD contracts to review support plans to ascertain which services are and remain medically necessary)—and then completed a "Determination of Reconsideration Review," adopting the reduction in J.M.'s residential habilitation hours Maximus proposed. In response to the Determination of Reconsideration Review and the proposed reduction, J.M. filed his request for a formal hearing with APD, asserting that his substantial interests were affected by proposed agency action, and that the validity of the proposed agency action depends on disputed issues of material fact.

Any person substantially affected by an APD decision, concerning eligibility for developmental disability services initially, or concerning subsequent changes in a support plan regarding such services arising from annual reviews thereafter, has the right to a hearing pursuant to section 120.57.

Any client, or any parent of a minor client, or guardian, authorized guardian advocate, or client advocate for a client, who is substantially affected by the client's initial family or individual support plan, or the annual review thereof, shall have the right to file a notice to challenge the decision pursuant to ss. 120.569 and 120.57. Notice of such right to appeal shall be included in all support plans provided by the agency.

§ 393.0651(8), Fla. Stat. (2005) (emphasis added). With respect to initial eligibility determinations at least, the statute also provides: "Any applicant determined by the agency to be ineligible for developmental services has the right to appeal this decision pursuant to ss. 120.569 and 120.57." § 393.065(3), Fla. Stat. (2005).

Here, as below, APD contends that, these clear statutory directives⁵ notwithstanding J.M. is not entitled to a section 120.57(1) hearing because the exemption from the obligation to conduct formal administrative hearings set out in section 120.80(7), Florida Statutes, applies. The language creating the exemption provides:

Notwithstanding s. 120.57(1)(a), hearings conducted within the Department of Children and Family Services in the execution of those social and economic programs administered by the former Division of Family Services of the former Department of Health and Rehabilitative Services prior to the reorganization effected by chapter 75-48, Laws of Florida, need not be conducted by an administrative law judge assigned by the division.

120.80(7), Fla. Stat. (2005). We need not decide in the present case the precise scope of the exemption section 120.80(7) creates, because chapter 393 unambiguously calls for administrative hearings pursuant to section 120.57 in cases like J.M.'s. We therefore leave for another day mapping the exemption's exact contours.

The specific statutes in chapter 393 necessarily control over any general exemption in section 120.80(7), even assuming the exemption provided in 120.80(7) could be read to apply to APD. See §§ 393.065.0651, Fla. Stat. (2005). See also, e.g., Stoletz v. State, 875 So.2d 572, 575 (Fla. 2004) ("`[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.'") (quoting McKendry v. State, 641 So.2d 45, 46 (Fla. 1994)).

The exemption that section 120.80(7) creates applies generally to "hearings conducted within the Department of Children and Family Services in the...