NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2003
JOSELYN RAPERTO,
**
Appellant, vs. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
** ** CASE NO. ** LOWER TRIBUNAL NO. ** 3D02-1143
01F-4194
Appellee. **
Opinion filed April 2, 2003. An Appeal from the State of Florida, Department of Children and Family Services. Lizel Gonzalez, for appellant. Linda Ann Wells, and Sandra Piligian, for appellee. Before COPE, and RAMIREZ, JJ., and NESBITT, Senior Judge. RAMIREZ, J. Joselyn Raperto appeals a final order denying his
application for Medicaid related benefits.
Because the hearing
officer improperly interpreted Florida Administrative Code Rule 65A-1.711, we reverse. It is undisputed that Raperto is disabled and a recipient of Social Security Security disability Disability Income Insurance benefits and The to
Supplemental supplemental
disability also
benefits. Raperto
benefits
entitled
Medicaid related benefits. On October 4, 2000, the Florida Department of Children and Families notified Raperto that he would no longer be eligible for supplemental disability benefits after October 31, 2000 because his income exceeded the
supplemental disability eligibility criteria. Raperto appealed the Department’s termination of
supplemental disability benefits, arguing that the Department terminated his benefits on the basis of an incomplete ex parte review of his eligibility for other Medicaid benefits, including the Home and Community Based Services Medicaid waiver program. On August 7, 2001, the administrative appeals hearing officer found that the Department had failed to conduct a full review of Raperto’s Medicaid Code eligibility and as required policy, by and the Florida the and
Administrative Department to
Department Raperto’s
ordered for Home
determine
eligibility
Community Based Services Medicaid (HCBS) waiver.
2
On September 5, 2001, the Department denied Raperto’s claim for HCBS and cancelled his Medicaid benefits because he did not follow through in establishing eligibility and he did not meet the medical need for HCBS. After Raperto appealed the
Department’s decision, the hearing officer affirmed the denial of benefits finding that United Home Care Agency had determined that Raperto was eligible for the program, but had not enrolled him because there were no funds to provide such services for
individuals less than 60 years of age. Florida Administrative Code Rule 65A-1.711(4) provides that: (4) To be eligible for HCBS, an individual must: (a) Be at least 65 years of age and meet the requirements of rule subsection 65A-1.701(6) to participate in the Channeling waiver; (b) Be determined disabled in accordance with SSI disability criteria set forth in 42 C.F.R. §§ 435.540 and 435.541 and meet the requirements of subsection 65A-1.701(22) to participate in the Project AIDS Care waiver; (c) Be age 65 or older or disabled in accordance with SSI disability criteria set forth in 42 C.F.R. §§ 435.540 and 435.541 and meet the requirements of subsection 65A-1.701(1) to participate in the ADA/HCBS waiver program or subsection 65A-1.701(10) to participate in the Developmental Services waiver program; (d) Be age 60 or older and meet the requirements in rule subsection 65A-1.701(3) to participate in the Assisted Living waiver; (e) Be determined to be in medical need accordance with Rule 59G-8.200(4)(b), F.A.C.; 3 in
(f) Be receiving HCBS as certified by a case manager in accordance with the provisions of the waivers. On appeal, the Department concedes that an individual does not have to meet all six of the criteria, but only one of the six. Likewise, it is undisputed that Raperto qualifies under
subsection (4)(c) because he is disabled.
The hearing officer,
however, determined that Raperto was ineligible because he did not satisfy the requirements of subsection (4)(f). The hearing
officer never considered the fact that Raperto was eligible under subsection (4)(c). Rule 65A-1.711 implements section 409.903, Florida Statutes (2001), entitled “Mandatory payments for eligible persons.”
Under section 409.903(2), Raperto qualifies as a low income person “considered to be permanently and totally disabled.” Thus, Raperto is eligible for HCBS. The Department does not
dispute that Raperto is permanently and totally disabled as he has end-stage renal disease and undergoes dialysis three days a week. We therefore reverse the decision of the hearing officer.
4
