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

WILLIAM LOONEY,                     NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D15-1960

FLORIDA DEPARTMENT OF
CHILDREN AND FAMILIES,

      Appellee.


_____________________________/

Opinion filed February 29, 2016.

An appeal from the Department of Children and Families.

Robert W. Pass, Martha Harrell Chumbler, and Christine Davis Graves of Carlton
Fields Jorden Burt, P.A., Tallahassee, for Appellant.

Camille Larson, Assistant Region Counsel, NW Region, Department of Children
and Families, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, William Looney, challenges a hearing officer’s final order

affirming a decision by the Department of Children and Families (the Department)

regarding the calculation of Looney’s patient responsibility amount (PRA) under
Medicaid’s Institutional Care Program (ICP). Looney argued that his substantial

interests were determined when the Department, in reliance on an agency policy

which had not been promulgated by rule, denied his request to reduce his PRA by

deducting expenses he had previously incurred for nursing home care. The hearing

officer declined to consider whether the Department’s denial of Looney’s request

was based on a policy which should have been promulgated as a rule, concluding

that such an argument must be raised before an administrative law judge in a

proceeding conducted pursuant to section 120.56, Florida Statutes. Consistent with

our opinion in Saunders v. Florida Department of Children and Families, 1D15-1959

(Fla. 1st DCA 2015), we hold that the hearing officer was authorized to consider

Looney’s argument that the Department erred in determining his substantial interests

by relying on an unpromulgated rule. We, therefore, REVERSE the final order and

REMAND for further proceedings consistent with this opinion.           We decline to

address the merits of whether the Department relied on an unpromulgated rule when

it denied Looney’s request as the hearing officer has not yet ruled on this issue.

ROWE, RAY, and SWANSON, JJ., CONCUR.




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