Full Opinion

Third District Court of Appeal State of Florida Opinion filed July 8, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-365 Lower Tribunal No. 18-FH1770 ________________ A.C. c/o V.R., Appellant, vs. Agency for Health Care Administration, Appellee. An Appeal from the Florida Agency for Health Care Administration, Office of Fair Hearings. Jacksonville Area Legal Aid, Inc., and James A. Kowalski, Jr. (Jacksonville); Florida Health Justice Project, Inc., and Katy DeBriere (Jacksonville), for appellant. Tracy Lee Cooper George, Chief Appellate Counsel, and Nicholas A. Merlin, Senior Attorney (Tallahassee), for appellee. Before SALTER, LINDSEY and MILLER, JJ. SALTER, J. A.C., a disabled 13-year-old child, through her mother and authorized representative below, V.R., appeals a final order of the Florida Agency for Health Care Administration (“AHCA”), which dismissed her request for a Medicaid fair hearing. A.C.’s request concerned AHCA’s termination of A.C.’s occupational therapy services. We reverse and remand the case for further proceedings because the final order is not supported by competent and substantial evidence in this record. Facts and Procedural Background A.C. has been enrolled in Florida’s Medicaid Prescribed Pediatric Extended Care (PPEC) program 1 and has received medically necessary benefits since June of 2015. 2 Her treating physician reported a diagnosis of “encephalopathy, left sided schizencephaly and cerebral palsy which is manifested by right sided weakness and motor impairments.” The occupational therapy services requested, and at issue in 1 As its full name implies, and as described on AHCA’s webpage, PPEC centers “allow Medicaid eligible children from birth through age 20 with medically-complex conditions to receive continual medical care in a non-residential setting. When approved, children can attend a PPEC center up to a maximum of 12 hours per day while receiving nursing services, personal care, developmental therapies, and caregiver training.” PPEC centers must be licensed pursuant to section 400.903, Florida Statutes (2019), and are governed by Chapter 59A-13 of the Florida Administrative Code. 2 “Infants and children considered for admission to a PPEC center must have complex medical conditions that require continual care. Prerequisites for admission are a prescription from the child’s attending physician and consent of a parent or guardian.” § 400.902(1), Fla. Stat. (2019). 2 this appeal, are to help her perform various motor skills and communicate effectively. On September 6, 2018, A.C.’s PPEC provider, Children’s Rehab Network 3 (CRN), submitted a request to eQHealth Solutions, Inc.—AHCA’s contractor for medical necessity determinations for Medicaid benefits—for occupational therapy services. On October 24, 2018, eQHealth denied A.C.’s request in part because of a “Technical Reason” and also because the information submitted “does not support the medical necessity for [the] requested services.” Specifically, the request for dates of service from September 6, 2018 through October 4, 2018, was denied because the request was submitted too late. The request for dates of service from October 5, 2018 through March 4, 2019, was denied because “no dated physician signature or clarification of the hours requested was submitted.” The notice informed A.C. of her right to reconsideration of the decision and her right to request a Medicaid fair hearing. The notice was signed by a physician who reviewed the request and made the decision “based on the information provided.” Two days later, A.C.’s medical provider CRN faxed a 17-page follow-up confirming that a total of 364 unit hours of therapy were requested. The documents faxed to AHCA included a dated physician signature authorization for the therapy services on the last page. 3 Children’s Rehab Network is a South Florida PPEC “program that provides nursing care, therapy, and education for medically fragile children.” 3 On the facsimile memo page, the provider included the following: “Reconsideration—Total units should be 364 units (units missing).” On October 28, 2018, eQHealth sent its notice of reconsideration determination upholding its denial of the requested services. The notice explained that, “[a] different eQHealth physician reviewed the materials submitted by your provider to decide whether the services requested . . . are medically necessary as part of eQHealth’s reconsideration review process. The reconsideration review does not rely in any way on the findings made by the first physician.” The “medical basis” for the reconsideration decision was that (1) records showed A.C. “was receiving [Occupational Therapy] services from another provider also,” (2) the provider was asked “to provide clarification” on the issue and did not provide such clarification, and (3) a proper review cannot be done.4 The notice again informed A.C. of her right to request a Medicaid fair hearing to challenge the decision. The reconsideration notice was signed by the same physician who made the initial decision to deny the occupational therapy services, despite the above-quoted language providing that a different physician had reviewed the materials as part of the reconsideration review process. 4 The record shows that A.C. was receiving therapy services at a different PPEC center prior to her enrollment with her current PPEC provider. The record further shows that, on or about August 24, 2018, V.R. “decided to transfer [A.C.] from [her prior PPEC provider] to Children’s Rehab Network . . . because [CRN] is closer to her house and [A.C.]’s school.” 4 On November 1, 2018, A.C., through her mother, V.R., filed a request for a Medicaid fair hearing to challenge AHCA’s denial of her request for occupational therapy services. Thereafter, on November 19, 2018, AHCA’s hearing officer, assigned to A.C.’s case, issued an order requesting “documentation to show cause why the request for Fair Hearing should not be dismissed for failure to file a written authorization” for designation of an authorized representative on A.C.’s behalf. V.R. timely complied with the order to show cause and faxed the requested written authorization designating herself as A.C.’s authorized representative. V.R. also faxed AHCA a “Letter of Appeal” from A.C.’s occupational therapist at CRN confirming A.C.’s numerous disabilities and that she is “an excellent candidate for continuation of skilled [Occupational Therapy] services.” On December 10, 2018, AHCA’s Office of Fair Hearings issued an order scheduling a telephonic hearing on January 29, 2019, at 9:00 a.m., regarding A.C.’s request for occupational therapy services. The order specified that the hearing will be governed by Rule 59G-1.100, Florida Administrative Code. It ordered AHCA to “send any documents they intend to present as evidence at the Fair Hearing.” The order provided information on rescheduling the hearing if the recipient or authorized representative cannot appear at the scheduled date and time. And it specified that, “[i]f the Recipient or Authorized Representative fails to appear for the hearing as scheduled in this Order, without good cause, the request for hearing will be 5 considered abandoned.” Lastly, the recipient or authorized representative was ordered “to send any documents they intend to present at the Fair Hearing to the Hearing Officer” at the mailing or e-mail address specified “no later than ten (10) days prior to the hearing date.” The record shows that, on December 12, 2018, two days after the hearing was scheduled, AHCA received a letter from a neurologist at Neuro Network Partners about A.C.’s medical diagnosis stating, “it is essential for her to receive occupational therapy.” The record also shows that eQHealth submitted 200 pages for the hearing on behalf of AHCA. The package included call- in instructions, notices of the hearing, A.C.’s prior authorization clinical information, documents of the initial and reconsideration decisions, and additional information in eQHealth’s file regarding A.C.’s request for therapy services. In eQHealth’s 200-page submission there is a letter from V.R. confirming that her daughter: (1) had been attending CRN since August 27, 2018, (2) had stopped attending her previous PPEC provider on August 17, 2018, and (3) was evaluated for occupational, physical, and speech therapy at CRN. V.R.’s letter concluded with a plea to have her daughter begin her therapy sessions “as soon as possible” at CRN for “the 6 month period beginning on 9/6/18 to 3/4/19.” V.R. signed and dated her letter October 11, 2018. While there is no stamped date of receipt by AHCA on the copy of V.R.’s letter in the record, it appears eQHealth received the letter since it was made part of the documents submitted for the hearing on behalf of AHCA. 6 V.R.’s letter appears to have been sent in response to eQHealth’s request for additional information prior to its reconsideration decision upholding its denial of the occupational therapy services. 5 On January 29, 2019, the hearing officer issued an order to show cause after V.R. failed to appear at the scheduled telephonic hearing. The hearing officer ordered V.R. to “submit . . . on or before February 8, 2019, an explanation to show cause why the request for a Fair Hearing should not be dismissed for failure to appear at the scheduled Fair Hearing.” The order specified that failure to comply would result in dismissal of the case. On February 8, 2019, V.R. provided the requested explanation by e-mail. She explained that she had become disabled and had a Supplemental Security Income appointment “at the very same hour and day and was not notified.” A stamp appears on a copy of the e-mail message in the record showing that it was received by AHCA on February 11, 2019. Florida Administrative Code Rule 59G-1.100(5)(a) provides that, “[a]ny pleading or paper received by the Office before 5:00 p.m. on a business day shall be filed as of that day.” V.R. sent her explanation by e-mail on a business 5 On October 9, 2018, eQHealth requested additional information to clarify an overlap in services from A.C.’s prior PPEC provider. It specifically requested a discharge letter be submitted within two business days with the: (1) parent/guardian’s name, (2) recipient’s name, date of birth, and beneficiary identification, (3) name of the other provider, (4) exact date when the therapy stopped and the date treatment commenced with the current provider, and (5) parent/guardian’s signature and date. 7 day before 5:00 p.m. and thus, it is deemed timely filed and in compliance with the hearing officer’s order to show cause. On February 18, 2019, the hearing officer issued a final order concluding that A.C.’s fair hearing request was deemed abandoned and closing the case. The final order specifies that, “[o]n February 11, 2019, the Office received a written communication from [A.C.]’s authorized representative [V.R.] that she had another appointment on the same date and time of the hearing.” The hearing officer concluded that V.R.’s explanation did not establish “good cause” under Rule 59G- 1.100(2)(n), Florida Administrative Code. This appeal followed. On July 31, 2019, before the case was fully briefed, AHCA filed a motion to determine whether A.C.’s mother, V.R., is legally authorized to represent A.C. in the instant appeal. On September 11, 2019, the Court issued an order on AHCA’s motion concluding that V.R. was authorized to proceed on behalf of her disabled minor child “absent further order or guidance from The Florida Bar or Florida Supreme Court.” A.C. v. Agency for Health Care Admin., 44 Fla. L. Weekly D2279 (Fla. 3d DCA Sept. 11, 2019). The Court also abated the case for sixty days “to allow a non-profit legal service provider or Florida-licensed attorney to volunteer pro bono assistance” to A.C. Id. Analysis Our standard of review of an agency’s conclusions of law is de novo. Estrada 8 v. Mercy Hosp., Inc., 121 So. 3d 51, 54 (Fla. 3d DCA 2013); see also § 120.68(7)(d), Fla. Stat. (2019). “The record is reviewed to determine whether competent and substantial evidence supports an administrative agency’s decision.” Brennan v. City of Miami, 146 So. 3d 119, 123 (Fla. 3d DCA 2014); see also § 120.68(7)(b), Fla. Stat. “If supported by competent, substantial evidence, an appellate court must accept those findings.” Mobley v. State, 181 So. 3d 1233, 1236 (Fla. 1st DCA 2015). “However, if the agency’s decision is not supported by substantial, competent evidence established in the record of the administrative hearing, it will be overturned.” Wise v. Dep’t of Mgmt. Servs., Div. of Ret., 930 So. 2d 867, 870–71 (Fla. 2d DCA 2006). Lastly, and pursuant to a recent constitutional adoption, we give no deference to agency interpretations of statutes or rules. 6 Florida Administrative Code Rule 59G-1.100(18)(d) provides that a final order rendered by a hearing officer “shall include . . . a statement of the issues 6 “In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.” Art. V, § 21, Fla. Const.; see also MB Doral, LLC v. Dep’t of Bus. & Prof’l Regulation, Div. of Alcoholic Beverages & Tobacco, 45 Fla. L. Weekly D999 (Fla. 1st DCA Apr. 27, 2020) (“With the passage of article V, section 21 of the Florida Constitution, the previously afforded deference to the agency’s interpretation of the statutes it implements has been abolished; our review is de novo.”); VMOB, LLC v. Dep’t of Revenue, 292 So. 3d 23, 27 n.2 (Fla. 2d DCA 2020) (same). 9 addressed, findings of fact, conclusions of law, and, the resolution of the issues.” (Emphasis added). “The statutory and regulatory provisions’ requirement of factual findings is ultimately based on principles of due process.” Borges v. Dep’t of Health, 143 So. 3d 1185, 1187 (Fla. 3d DCA 2014) (reversing and remanding final order “to the Board so that it can refer this matter to the administrative law judge to make sufficient findings”); 7 see also Edlin v. Dep’t of Health & Rehab. Servs., 633 So. 2d 1185, 1186 (Fla. 1st DCA 1994) (reversing and remanding order denying medically needy benefits “[b]ecause the hearing officer’s application of the five step evaluation process is not sufficiently detailed to enable us to review the conclusion reached in this case”). The final order before us lacks specific findings of fact to enable us to properly review the legal conclusion reached by the hearing officer that V.R. did not establish good cause for her nonappearance at the hearing. Rule 59G-1.100(2)(n) defines “good cause” as “[a]n incident or occurrence which is beyond the control of the movant and which prevents compliance.” The rule further provides that a hearing officer “will determine good cause based on the facts and circumstances the movant 7 “‘It has been repeatedly held by the courts of this state that in order to assure due process and equal protection of the law, every final order entered by an administrative agency in the exercise of its quasi-judicial functions must contain specific findings of fact upon which its ultimate action is taken.’” Borges, 143 So. 3d at 1187 (quoting Gentry v. Dep’t of Prof’l & Occupational Regulations, State Bd. of Med. Exam’rs, 283 So. 2d 386, 387 (Fla. 1st DCA 1973)). 10 presents in support of the application for the relief sought.” The hearing officer did not ascertain the “facts and circumstances” presented by V.R. in her written explanation, and as such, departed from the essential requirements of the law. See State v. Murciano, 163 So. 3d 662, 665 (Fla. 1st DCA 2015). The record does not show the hearing officer engaged in the required analysis because he simply did not request any additional information from V.R. about her explanation for her nonappearance. In her written communication to AHCA of February 8, 2019, V.R. explained: “As of 1/1[,] I myself, have been disabled and had a SSI appointment at the very same hour and day and was not notified. If there is a letter from the SSI needed as proof, please feel free to notify me and I will research them asap.”8 (Emphasis added). V.R. signed the e-mail message with her name and contact number. Arguably, V.R.’s statement that she became disabled as of January 1, 2019, could constitute good cause since a “disabling accident” is one of the examples listed under Rule 59G-1.100(9)(b)(5)(b), Florida Administrative Code (“[E]xamples of good cause include but are not limited to a disabling accident, illness, or declared emergency.”). The record on appeal, however, is lacking as to how or why V.R. became disabled, and that is precisely what the hearing officer should have inquired before making his determination as to good cause in the final order. 8 AHCA acknowledges that the hearing officer made a factual or scrivener’s error regarding the date of receipt by AHCA of V.R.’s written communication. 11 AHCA asserts that V.R. “chose to attend another appointment,” and that “she chose to keep a conflicting appointment.” However, on this factually bare record, these are only unfounded assumptions. AHCA also fails to address the fact that V.R. claimed that she “was not notified” of the other appointment, so how could she have chosen to attend the other appointment without prior notice? Again, without competent and substantial evidence in the record, containing the facts and circumstances of V.R.’s nonappearance at the hearing, we cannot make assumptions as to why V.R. did not participate at the hearing, whether she in fact attended the other conflicting appointment, or even how or why she became disabled. “When the entity charged with finding facts upon the evidence presented, the hearing officer, has, for whatever reason, failed to perform this function, the appropriate remedy is not for the agency (or the court of appeal) to reach its own conclusion, but rather to remand for the officer to do so.” Cohn v. Dep’t of Prof’l Regulation, 477 So. 2d 1039, 1047 (Fla. 3d DCA 1985). Reversed and remanded for further agency proceedings. 12