Winick v. Dep't of Children & Family Servs.

• Citation: 161 So.3d 464
• Decision Date: 18 June 2014
• Docket Number: No. 2D13–2957.,2D13–2957.
• Parties: Robert M. WINICK, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
• Court: Court of Appeal of Florida (US)

161 So.3d 464

Robert M. WINICK, Appellant

v.DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.

No. 2D13–2957.

District Court of Appeal of Florida, Second District.

June 18, 2014.

Anne Swerlick and Cindy Huddleston of Florida Legal Services, Inc., Tallahassee, for Appellant.

Deanne Fields, Assistant SunCoast Region Counsel of SunCoast Region Legal Office, Tampa, for Appellee.

Opinion

LaROSE, Judge.

Robert M. Winick appeals a hearing officer's final order affirming the Department of Children and Family Services' (DCF) decision not to pay Mr. Winick's Medicare Part B premium under the “Qualified Individuals 1” (QI–1) Medicaid Program. We have jurisdiction. § 120.68, Fla. Stat. (2012) ; Fla. R. App. P. 9.030(b)(1)(C). DCF's methodology to determine Mr. Winick's eligibility violated federal guidelines. More specifically, DCF improperly assessed his application based on the income limit for a one-person household when he lives with his wife in a two-person household. Consequently, we reverse.

During 2012, Mr. Winick's Medicare Part B premiums were paid through a federally mandated program, administered by DCF, that pays the premiums for low-income Medicare Part A participants whose income is too high to obtain Medicaid benefits. The Ql–1 program is one of four types of “Medicare cost-sharing” or “Medicare buy-in (MBI)” programs available under 42 U.S.C. § 1396a(a)(10)(E) (2012). Ql–1 pays Medicare Part B premiums for qualified individuals with incomes ranging from 120 to 135% of the federal poverty level. See also 42 U.S.C. § 1396d(p)(1)(B), (2)(A), (3) (defining medical cost-sharing programs); Tex. Gray Panthers v. Thompson, 139 F.Supp.2d 66, 69–70 (D.D.C.2001) (discussing history of MBI programs), vacated on other grounds, 37 Fed.Appx. 542 (D.C.Cir.2002).

In late 2012, Mr Winick applied to recertify his eligibility for continued benefits. DCF denied benefits, asserting that his income was too high. At Mr. Winick's request, DCF sent him a copy of Florida Administrative Code Rule 65A–1.713, the purported basis for its decision. The rule did little to explain DCF's rationale. Accordingly, Mr. Winick requested a hearing to contest DCF's decision.

Mr. Winick appeared pro se at a telephone hearing in early 2013. A DCF “economic self-sufficiency specialist” testified that DCF used the ACCESS Florida Program Policy Manual to assess his eligibility. The Manual reflects DCF's interpretation of the federal statutory guidelines and Florida Administrative Code rules. The Manual described the Ql–1 Medicare cost-sharing programs in section 0240.0116:

This program allows eligible individuals to have Medicaid pay the Medicare Part B premiums. This is a program with limited funding. It is available on a first-come, first-serve basis.

To be eligible for QI–1, an individual must:

1. Be enrolled in Medicare Part A.

2. Meet all technical criteria, except being aged (65 or older requirement) or disabled.

3. Income Limit: Between 120% and 135% of Federal Poverty Level.

4. Asset Limit: Three times the SSI resource limit with annual increases based on the yearly Consumer Price Index....

DCF relied on the following Manual sections to assess Mr. Winick's income:

2240.0610 Couple/One Requests Medicaid....

....

If an individual is living with their spouse and only one is requesting or receiving Medicaid (or the spouse does not meet the technical criteria for the program), the income and assets must be deemed from the spouse who is not requesting assistance (or who does not meet the technical criteria). If there is not enough income to be deemed, the income standard for one is used.

2240.0611 Couple/Both Request Medicaid....

....

If an eligible individual is living with an eligible spouse, the income standard for two must be used. Eligibility as a couple must be determined using both spouses' income and assets.... If an eligible individual is living with their ineligible spouse, the income and assets must be deemed from the spouse who is not eligible for or requesting assistance. If there is not enough income to be deemed, the income standard for one must be used.

Mrs. Winick was “ineligible” for the QI–1 program; she was not a Medicare Part A recipient and had no income. Accordingly, because Mr. Winick's monthly income exceeded the $1293 income limit for a one-person household, DCF denied further benefits. DCF did not dispute that his income was within the eligibility limit for a two-person household. The hearing officer upheld DCF's denial based on the Manual. Mr. Winick appealed.

Formal Rulemaking Not Required

Mr. Winick argues that the hearing officer erred in affirming DCF's use of the one-person-household income limit. We note that DCF has not adopted the Manual as a rule.¹ Formal rulemaking is required if an interpretive rule “purports in and of itself to create certain rights ... or to require compliance, or otherwise to have the direct and consistent effect of law.” Dep't of Natural Res. v. Wingfield Dev. Co., 581 So.2d 193, 196 (Fla. 1st DCA 1991) ; cf. S.D. v. Ubbelohde, 330 F.3d 1014, 1028 (8th Cir.2003) (“Where a policy statement purports to create substantive requirements, it can be a legislative rule regardless of the agency's characterization.” (citing Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94 (D.C.Cir.1997) )). Formal rulemaking is not required when an agency issues an interpretive rule that “d[oes] not create any new law, right, duty, or have any effect independent of the statute,” but instead “ ‘reflects an agency's construction of a statute that has been entrusted to the agency to administer’ and does not ‘modif[y] or add [ ] to a legal norm based on the agency's own authority. ’ ” Warshauer v. Solis, 577 F.3d 1330, 1337 (11th Cir.2009) (quoting Syncor, 127 F.3d at 94–95 ).

[A]n agency interpretation of a statute which simply reiterates the legislature's statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rulemaking.

St. Francis Hosp., Inc. v. Dep't of Health & Rehabilitative Servs., 553 So.2d 1351, 1354 (Fla. 1st DCA 1989) ; see also Couch v. Div. of Family Servs., 795 S.W.2d 91, 93 (Mo.Ct.App.1990) (holding Income Maintenance Manual was not a compilation of rules, but a guide reflecting policies division used in determining eligibility for benefits including medical assistance); accord J.P. v. Family Support Div., 318 S.W.3d 140, 143 n. 4 (Mo.Ct.App.2010) ; Rennich v. Dep't of Human Servs., 756 N.W.2d 182, 188 (N.D.2008) (holding Department's manual explaining federally-mandated Medicaid eligibility criteria did not have to be promulgated as formal rules).²

DCF represented the Manual as an interpretative aid;³ the Manual created no substantive requirements. As the hearing officer concluded without DCF objection, the Manual “is not going to be necessarily administratively noticed as it is an interpretation of what is believed to be statutory and Administrative Code Rules.”

Formal Rule Challenge Not Required

DCF's only argument on appeal is that we lack jurisdiction because Mr. Winick did not challenge the Manual as an unpromulgated rule. See § 120.56, Fla. Stat. (2012).⁴ Curiously, DCF does not concede that the Manual is an unpromulgated rule. It merely attempts to oust our jurisdiction. We are not swayed.

Mr. Winick's argument at the telephonic hearing that the eligibility requirements were unreasonable, improper, and unsupported by statutory authority, sufficiently challenged the Manual. See Dep't of Revenue v. Vanjaria Enters., 675 So.2d 252, 254 (Fla. 5th DCA 1996) (rejecting Department's argument that Vanjaria failed to properly challenge assessment procedure as unpromulgated rule because Vanjaria's argument that the formula was unreasonable, “unauthorized by any rule,” and improper, was sufficient). We also note that DCF gave Mr. Winick no notice prior to the hearing that it relied on the Manual to deny benefits.

Even if Mr. Winick's argument were inadequate, the applicable statute provides that “[f]ailure to proceed under this section shall not constitute failure to exhaust administrative remedies.” § 120.56(1)(e) ; see also United Health, Inc. v. Dep't of Health & Rehabilitative Servs., 579 So.2d 342, 342–43 (Fla. 1st DCA 1991) (holding no requirement to exhaust rule challenge before contesting Medicaid reimbursement rate determination and requesting monetary relief).

Additionally, exhaustion of administrative remedies is not required where none are adequate or available to provide the requested relief. Coastal Recovery Ctrs. v. Matthews, 696 So.2d 1364, 1364 (Fla. 2d DCA 1997). Mr. Winick seeks monetary relief, continued benefits, which is not available in a rule challenge proceeding. See United Health, 579 So.2d at 343.

Exhaustion of administrative remedies is also not required “where ‘an agency acts without colorable statutory authority that is clearly in excess of its delegated powers.’ ” Fla. Dep't of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 546 (Fla. 4th DCA 2001) (quoting Fla. Dep't of Envtl. Reg. v. Falls Chase Special Taxing Dist., 424 So.2d 787, 796 (Fla. 1st DCA 1982) ).

The most widely recognized exception to the general rule against judicial consideration of interlocutory agency rulings is the class of cases where an agency has exercised authority in excess of its jurisdiction or otherwise acted in a manner that is clearly at odds with the specific language of a statute.

Falls Chase, 424 So.2d at 794 n. 16 (quoting Coca–Cola Co. v. FTC, 475 F.2d 299, 303 (5th Cir.1973) ); see also Wingfield, 581 So.2d at 196 (holding that agency statement that “imposes requirements ... not specifically required by statute ... constitute[s] an invalid exercise of delegated...