Holland & Knight Attorneys Successfully Win Pro Bono Appeal

Tallahassee’s First District Court of Appeal Again Rules In Favor of The Advocacy Center for Persons with Disabilities

TALLAHASSEE, FL – October 9, 2009 – Holland & Knight appellate attorneys Stephen Grimes and Gigi Rollini prevailed yesterday in what is likely the final phase of a pro bono appeal on behalf of the Advocacy Center for Persons with Disabilities (the Advocacy Center).

Tallahassee’s First District Court of Appeal (DCA) denied the Florida Agency for Persons with Disabilities’ (APD) final round of motions filed in an appeal to determine the fate of APD’s current Medicaid Waiver tier assignment rules. APD’s motions included a motion for rehearing, a rehearing en banc and certification to the Florida Supreme Court.

APD filed the motions seeking to avoid the decision Holland & Knight attorneys Gigi Rollini and Christine Gay, and Steven Brannock of Brannock & Humphries, obtained against APD last month. That DCA decision struck down the rules APD was using to assign Medicaid Waiver clients to specific funding level tiers.

In 2008, the Advocacy Center filed an administrative action against APD. The challenge was to a set of APD rules that were supposed to explain how APD would assign Medicaid Waiver clients with developmental disabilities to one of four tiers. Which tier a client is assigned to is crucial because each tier represents a different level of funding available to that client for needed services. Under APD’s rules, many clients saw substantial reductions in funding for services — even where the services were medically necessary.

In July 2009, Rollini presented an oral argument to the DCA, arguing that Florida agencies like APD cannot adopt rules until the Legislature gives permission in state law; and even then, agencies cannot act contrary to or beyond that law. The challenged APD rules, however, contradicted Florida law and went beyond what the Legislature said was allowed.

“The law creating the tier system requires that APD accurately measure each client’s service needs, because service needs define a client’s funding level,” said Rollini, an associate in Holland & Knight’s Tallahassee office. “Without an accurate system for measuring service needs, clients could be assigned to — and permanently stuck in — a funding level that cannot possibly meet the client’s needs.”

APD has until early November to consider whether to file a petition for discretionary review with the Florida Supreme Court. However, with the DCA denying APD’s request for certification, the DCA’s decision striking APD’s assignment rules is likely the final word.
The DCA’s decision does not affect the four-tier system itself, or the level of funding attached to each tier. The decision does require APD to propose a new set of rules for assigning clients to Waiver tiers. In those new rules, APD will have to make clear how it will assign clients, require that tier assignments be based on a valid assessment instrument, and refrain from adding requirements that exceed those stated in the statute.

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Grimes is former Chief Justice of the Florida Supreme Court, and practices appellate law in Holland & Knight’s Tallahassee office.

Rollini is a litigator in Holland & Knight’s Tallahassee office. Her practice focuses on appellate law, particularly appeals to Florida’s District Courts of Appeal, and on all aspects of Florida administrative law, including health care litigation.