                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

S. D. C/O CHERRI MARTINEZ,           NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-3916

AGENCY FOR HEALTH CARE
ADMINISTRATION,

      Appellee.


_____________________________/

Opinion filed October 4, 2016.

An appeal from an order of the Department of Children and Families.
Leslie Green, Hearing Officer.

Travis D Finchum of Special Needs Lawyers, P.A., Clearwater, for Appellant.

Amy Elizabeth Miles, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, S.D. c/o Cherri Martinez, appeals a Final Order of the Department

of Children and Families that approved the reduction of personal care and

homemaker services that Appellant receives through Medicaid.          As Appellant

argues, and as Appellee, the Agency for Health Care Administration, acknowledges,
Appellant’s right to due process was violated when the hearing officer, following

the hearing addressing Appellant’s reduction in services, held the record open for

the submission of additional evidence without seeking and obtaining the parties’

agreement and without providing each party the opportunity to address and rebut the

other side’s additional evidence. See Fla. Admin. Code R. 65-2.066(2) (“The Final

Order [of the Office of Appeal Hearings of the Department of Children and Family

Services] shall be based exclusively on evidence and other materials introduced at

the hearing or material submitted after the hearing upon agreement of all parties.”);

42 C.F.R. § 431.242(e) (providing that an applicant or beneficiary under Medicaid

must be given an opportunity to “[q]uestion or refute any testimony or evidence”);

45 C.F.R § 205.10(a)(13)(vi) (providing that a “claimant [for public assistance], or

his representative, shall have adequate opportunity” “[t]o question or refute any

testimony or evidence, including opportunity to confront and cross-examine adverse

witnesses”); 42 C.F.R. § 431.205(d) (providing that the hearing system employed by

the “Medicaid agency” “must meet the due process standards set forth in Goldberg

v. Kelly, 397 U.S. 254 (1970) [including the right to confront and cross-examine the

witnesses relied upon by the agency], and any additional standards specified in this

subpart”). We also agree with Appellant that the hearing officer erred in relying on

a February 2015 701B assessment when the only February 701B assessment

included in the record was from 2014, a fact also acknowledged by the Agency. See

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Fla. Admin. Code R. 65-2.066(2).

      Accordingly, we REVERSE the Final Order and REMAND for a new hearing.

LEWIS, BILBREY, and WINOKUR, JJ., CONCUR.




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