STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ) ) ) ) ) ) ) ) ) ) ) RECOMMENDED ORDER

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS vs. Petitioners, AGENCY FOR PERSONS WITH DISABILITIES, Respondent. Case Nos APD APD RECOMMENDED ORDER Pursuant to notice, a final hearing was conducted in this case on June 19, 2008, in, Florida. The hearing was held before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. APPEARANCES For Petitioners: (Address of record For Respondent: Gerald D. Siebens, Esquire Office of the Attorney General 501 East Kennedy Boulevard, Suite 1100 Tampa, Florida STATEMENT OF THE ISSUE The issue in this case is whether the nursing services sought by Petitioners are medically necessary. However, as will be seen below, the parties stipulated at final hearing to the requested services.

2 PRELIMINARY STATEMENT Petitioners each requested private duty nursing services. Respondent, Agency for Persons with Disabilities, agreed to provide certain services, but those services were perceived by Petitioners to be inadequate. Petitioners timely filed a request for an administrative hearing, and the case was assigned to the undersigned. At the final hearing in this matter, Respondent moved two stipulated exhibits into evidence prior to the commencement of Petitioners' case-in-chief. Petitioners' father then testified on behalf of Petitioners. During his testimony, Respondent's counsel interjected that Petitioners may be confused about Respondent's position. An off-the-record discussion was held between the parties. Then, Respondent's witness, Gary Reavis, offered testimony to clarify and explain Respondent's position. No transcript was filed. FINDINGS OF FACT 1. Petitioner, (DOAH Case No., is a -year-old male who was born with cortical blindness, spastic quadriplegia, seizure disorder, psychomotor retardation, and central nervous system dysplasia. lives at home with parents and five siblings. Each of his siblings also has developmental disabilities. 2

3 2. Petitioner, (DOAH Case No APD, is a -year-old male who is diagnosed with Glutaric Academia Type I. He has frequent seizures, severe scollosia, severe postering, and global developmental delays. also suffers from sleep apnea. lives at home with his parents and five siblings. Each of his siblings also developmental disabilities. 3. Due to the nature of their conditions, Petitioners are in need of a nurse in their home 24 hours per day. 4. Maximus is the entity who, under contract with Respondent, makes determinations as to eligibility and degree of services to be provided. In this case, Maximus has approved 12 hours per day of nursing care for each Petitioner (for a total of 24 hours per day to be shared by Petitioners on a 1-to-2, nurse-to-patient ratio. Each nurse on duty at Petitioners' home will be responsible for providing care to both Petitioners during that nurse's shift. 5. This degree of nursing care is acceptable to Petitioners. There are no further disputes of fact remaining in this case. CONCLUSIONS OF LAW 6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section and Subsection (1, Florida Statutes (

4 7. Petitioner, as the person requesting the service, has the burden of proof in this proceeding. Balino v. Department of Health & Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA At pages 2 through 63 of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, private duty nursing is allowed with certain limitations. In pertinent part, that section states as follows: Private duty nursing services are available through the Medicaid State Plan to... children and adults when determined medically necessary by the Medicaid program and related to the care of a medical condition. To be eligible for this service, a recipient must require active nursing interventions on an ongoing basis. This service is provided on a one-to-one basis to eligible recipients. If the service is provided with two or more recipients present, the amount of time billed must be prorated between the numbers of recipients receiving the service. 9. Petitioners have met their burden of proof in this matter. The service requested, i.e., a private duty nurse at their home 24 hours per day, is warranted. Each Petitioner, individually, is entitled to 12 hours of private duty nursing per day to be provided consecutively. Each nurse on duty will provide care to both Petitioners during the nurse's 12-hour shift. 4

5 Law, it is RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of RECOMMENDED that a final order be entered by Respondent, Agency for Persons with Disabilities, approving 12 hours of private duty nursing for each Petitioner for a total of 24 hours each day, with each nurse to be shared on a 1-to-2, nurse-topatient ratio. DONE AND ENTERED this 24th day of June, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida ( SUNCOM Fax Filing ( Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, COPIES FURNISHED: M. Catherine Lannon, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida

6 Gail Scott Hill, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida (Address of record (Address of record Gerald D. Siebens, Esquire Office of the Attorney General 501 East Kennedy Boulevard, Suite 1100 Tampa, Florida Jane E. Johnson, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida John Newton, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case. 6