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

G.B., Z.L., through his guardian     NOT FINAL UNTIL TIME EXPIRES TO
K.L., J.H., and M.R.,                FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellants,
                                     CASE NO. 1D13-4903
v.

AGENCY FOR PERSONS WITH
DISABILITIES,

      Appellee.

_____________________________/

Opinion filed July 21, 2014.

An appeal from an order of the Division of Administrative Hearings.

Gigi Rollini of Messer Caparello, P.A., Tallahassee, Cynthia A. Mikos of Allen
Dell, P.A., Tampa, for Appellants.

David A. Yon and Donna E. Blanton of Radey Law Firm, Richard D. Tritschler,
General Counsel and Brian McGrail of Agency for Persons with Disabilities,
Tallahassee, for Appellee.



VAN NORTWICK, J.

      G.B., Z.L., through his guardian K.L., J.H., and M.R., appellants, challenge

a series of rules (the Proposed Rules) promulgated by the Agency for Persons with

Disabilities (the Agency). See Fla. Admin. Code R. 65G-4.0210-65G4.027. The

Agency’s Proposed Rules implement the Legislature’s new iBudget Statute. See §
393.0662, Fla. Stat. (2010). The iBudget Statute redesigned Florida’s system

governing the amount, duration and scope of health and other services provided to

persons with developmental disabilities under Florida’s Medicaid Developmental

Disabilities Waiver funding system, known as the “D.D. Waiver Program.” Id.

An Administrative Law Judge found the Proposed Rules permissibly implemented

the iBudget Statute. Because we find the Proposed Rules contravene the specific

requirements of the Legislature in the iBudget Statute, we reverse.

                                    Background

      The record reflects that each of the four individual appellants receive

services under the DD Waiver. For example, appellant Z.L. is a 26-year-old male

who was born with Cri-du-Chat syndrome, a fifth chromosome abnormality. As a

result, Z.L. is low-functioning, with a non-measurable IQ level (below the level at

which mental retardation can even be designated). Z.L. speaks only a few words,

communicates with some sign language, and is ambulatory, but totally depends on

others for all aspects of daily living. Z.L. also has extreme behavioral issues,

including self-abuse and physical abuse of others.

      Z.L. lives at home with two other developmentally disabled men. The home

where they reside belongs to the family of K.L. (Z.L.’s father and legal guardian),

allowing Z.L. and the other two men with DD Waivers to rent the home at less

than its actual market value. The services Z.L. receives under the DD Waiver to

                                         2
live in this home and avoid more costly institutionalization include 24-hour

assistance with daily living activities; behavioral analysis through a certified

behavior analyst, and personal care assistance.

      Prior to the adoption of his iBudget, Z.L.’s cost plan (the amount paid under

the DD Waiver for services provided to Z.L., which services were determined by

APD to be medically necessary) totaled $61,824.22. The record shows that if the

iBudget system were implemented as set forth in the Proposed Rules, Z.L.’s cost

plan will be reduced by $8,175.98. Appellants assert that such a reduction would

prevent Z.L. from being able to afford to maintain his current level of services in

order to remain in his home. Appellants argue if Z.L. cannot remain in his home,

where he (like his roommates) is able to pay reduced rent because the home is

owned by a family member, Z.L. would have to be institutionalized. Z.L. cannot

live in his parents’ home because his mother suffered a closed head injury in a

bicycle accident, is incapable of defending herself in the event Z.L. acts

aggressively toward her, and another traumatic injury to her head could be fatal.

      If the rules are upheld, each appellant will be transitioned to the iBudget

system set forth in the Proposed Rules. Like Z.L., the other three individual

appellants have also received iBudget reduction notices. G.B.’s existing cost plan

reduction will be $5,376.40. M.R.’s proposed iBudget reduction is $6,524.16.

J.H.’s existing cost plan reduction will be $3,769.49.

                                          3
      Appellants timely filed their Petition for Administrative Determination of

Invalidity of Proposed Rules 65G-4.0210 through 65G-4.027 on May 16, 2013, ten

days following the final public hearing. See § 120.56(2)(a), Fla. Stat.

                                The iBudget Statute

      Section 393.0662, Florida Statutes, creates a new system to distribute funds

under the DD Waiver Program. 1 The Legislature created the new system based on

individual budgets, or “iBudgets” for each DD Waiver client for the express

purpose of affording greater flexibility for clients and families to choose services

within the limit of an established budget. § 393.0662, Fla. Stat. The statute

instructed the Agency to develop “an allocation algorithm and methodology” for

use in developing each client’s budget.        § 393.0662(1)(a), Fla. Stat.      The

Legislature mandated that the algorithm “use variables that have been determined

by the agency to have a statistically validated relationship to the client’s level of

need for services.” Id. Importantly, the Legislature then clearly required the

algorithm be the sole mechanism to set a client’s iBudget, with one exception: “A

client’s iBudget shall be the total of the amount determined by the algorithm and

1
  The iBudget Statute replaced a tier system design for delivering home and
community based services for persons with developmental disabilities. See §
393.0661, Fla. Stat. (2007). This Court invalidated the Agency’s proposed rules
for the tier system in Morehead v. Agency for Persons with Disabilities, 19 So. 3d
1009, 1012-13 (Fla. 1st DCA 2009). In Morehead, the Court determined the
Proposed Rules imposed criteria beyond that found in the enabling statute and
failed to assign clients to the correct DD Waiver budget tier based on the methods
set forth in the statute. Id. at 1012.
                                          4
any additional funding provided pursuant to paragraph (b).” § 393.0662(1)(c), Fla.

Stat. Pursuant to paragraph (b), the algorithm could be increased if a client had

one or more particular needs that could not be accommodated within the funding as

determined by the algorithm. § 393.0662(1)(b), Fla. Stat. (listing extraordinary

need, significant need for one-time or temporary support or services, and

significant increase in need for services after the beginning of the service plan year

as the three paragraph (b) additions).

                                The Proposed Rules

      The Proposed Rules promulgated by the Agency created an algorithm. Fla.

Admin. Code R. 65G-4.0210(2)-(2)(b). The Proposed Rules also created a review

process whereby each client’s algorithm amount could be adjusted.            See Fla.

Admin. Code R. 65G-4.0210(3), (7), (19), 65G-4.0212. This independent review

process involved an allocation of algorithm amounts, further target allocations,

allocation implementation meetings, and extraordinary needs reviews. See Fla.

Admin. Code R. 65G-4.2012. The Proposed Rules also called for a reduction of

the algorithm amount where the amount exceeded an existing client’s former

annualized cost plan amount; if this occurred, the algorithm amount was reduced to

the former cost plan. See Fla. Admin. Code R. 65G-4.2012(2)(a). And, finally,

the Proposed Rules created supplemental funding when a client showed significant

need or significant increase in need for services since the beginning of the plan

                                          5
year. Fla. Admin. Code R. 65G-4.027(2)-(5). As the Agency witnesses testified

below, the algorithm the Agency created was just the beginning of its allocation

process.

                                       Analysis

        An agency may not propose or create a rule that “enlarges, modifies, or

contravenes the specific provisions of . . . the language of the enabling statute.” §

120.52(8)(c), (9), Fla. Stat. It is not enough that the Agency’s rule is “reasonably

related” to the Legislature’s purpose or statutory provisions. § 120.536(1), Fla.

Stat.    The Agency’s rule and interpretation must comport with the specific

authorizing statute. § 120.536(1), Fla. Stat.; State, Dep’t of Children & Family

Servs. v. I.B., 891 So. 2d 1168, 1171 (Fla. 1st DCA 2005) (“No agency shall have

authority to adopt a rule only because it is reasonably related to the purpose of the

enabling legislation . . . or [] within the agency’s class of powers and duties.”).

The rule must comply with the Legislature’s particular requirements. Moreland,

19 So. 3d at 1011-13.

        Here, the Legislature was clear: the algorithm is the sole mechanism to set a

client’s iBudget, save for three exceptions specifically delineated by statute. §

393.0662(1)(c), Fla. Stat. In contravention of this clear requirement, the Proposed

Rules use the algorithm, instead, as merely a starting point. The algorithm amount

is then put through various modification mechanisms—none of which are

                                          6
contemplated by the clear statutory mandate that the “iBudget shall be the total of

the amount determined by the algorithm and any additional funding provided

pursuant to paragraph (b).” Id.

        Further, the use of the review mechanisms to decrease the algorithm amount

contravenes the iBudget Statute. Nowhere in the statutory language does the

Legislature contemplate decreasing the algorithm amount.           The Legislature

directed the algorithm be the floor and then permitted increases to that algorithm

amount based on three delineated circumstances. Id. (“A client’s iBudget shall be

the total of the amount determined by the algorithm and any additional funding

provided pursuant to paragraph (b).”). For sure, clients are required to “use all

[other] available services” prior to “using funds from his or her iBudget to pay for

support and services.” § 393.0662(4), Fla. Stat. But this does not decrease a

client’s iBudget by the amount of other services; instead, it merely requires clients

use those other services before paying for them with their already-allocated

iBudget funds. And finally, the Proposed Rules provide for a one-time assessment.

The iBudget Statute contemplates more, as it intends for an ongoing process and

assessment of client needs.

        In sum, the Proposed Rules directly conflict with and contravene the

Legislature’s clear language.2    We recognize the difficulty in adhering to the


2
    Based on this resolution, we need not address appellants’ issues regarding the
                                        7
Legislature’s command to create an algorithm solely capable of determining each

client’s level of need.   Further, we accept that APD is attempting to find a

reasonable way to administer funds to the tens-of-thousands of people in need that

it assists. However, when, as here, the Legislature is clear, there is no room for

deviation.

      Accordingly, because the Proposed Rules conflict with the requirements of

the statute, we REVERSE the ALJ’s order finding the Rules valid.

BENTON and OSTERHAUS, JJ., CONCUR.




$1,000 buffer and Statement of Estimated Regulatory Costs.
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