Florida Senate - 2023                                    SB 1594
       
       
        
       By Senator Brodeur
       
       
       
       
       
       10-01012-23                                           20231594__
    1                        A bill to be entitled                      
    2         An act relating to services for persons with
    3         disabilities; amending s. 393.065, F.S.; revising
    4         provisions related to the application for services for
    5         persons with disabilities; revising timeframes within
    6         which the Agency for Persons with Disabilities must
    7         make certain eligibility determinations; requiring the
    8         agency to request additional documentation from
    9         applicants if it determines such documentation is
   10         necessary to make an eligibility determination;
   11         specifying requirements for the agency’s eligibility
   12         determinations; revising procedures for admissions to
   13         intermediate care facilities for the developmentally
   14         disabled; requiring the agency to assign certain
   15         clients to a waiting list; revising provisions related
   16         to the prioritization of clients waiting for certain
   17         waiver services; requiring the agency to place certain
   18         clients on an agency registration list; providing that
   19         only agency clients are eligible for certain services;
   20         specifying eligibility criteria for such services;
   21         amending s. 393.0651, F.S.; conforming provisions to
   22         changes made by the act; providing an effective date.
   23          
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Section 393.065, Florida Statutes, is amended to
   27  read:
   28         393.065 Application and eligibility determination.—
   29         (1) Application for services must shall be made in writing
   30  to the agency, in the region service area in which the applicant
   31  resides. The agency shall review each application and make an
   32  eligibility determination applicant for eligibility within 45
   33  days after the date the application is signed for children under
   34  6 years of age and within 60 days after receipt of the signed
   35  application. If an applicant is requesting enrollment in the
   36  home and community-based services (HCBS) Medicaid waiver program
   37  for a person with developmental disabilities due to crisis, as
   38  specified in paragraph (5)(a), at the time of the application,
   39  the agency must complete an eligibility determination within 45
   40  days after receipt of the signed application.
   41         (a)If the agency determines additional documentation is
   42  necessary to make a proper determination on an applicant’s
   43  eligibility, the agency must request the necessary documentation
   44  from the applicant the date the application is signed for all
   45  other applicants.
   46         (b) When necessary to definitively identify individual
   47  conditions or needs, the agency shall provide a comprehensive
   48  assessment.
   49         (c)If the agency requests additional documentation from an
   50  applicant or provides a comprehensive assessment, the agency’s
   51  eligibility determination must be completed within 90 days after
   52  receipt of the signed application.
   53         (2)To be eligible for services under this chapter, the
   54  agency’s eligibility determination must find the applicant has
   55  satisfied all procedural requirements and eligibility criteria
   56  found in rule, which must include, but need not be limited to,
   57  the requirement that the applicant have a developmental
   58  disability and be domiciled in Florida Only applicants whose
   59  domicile is in Florida are eligible for services. Information
   60  accumulated by other agencies, including professional reports
   61  and collateral data, must shall be considered in this process
   62  when available.
   63         (2) In order to provide immediate services or crisis
   64  intervention to applicants, the agency shall arrange for
   65  emergency eligibility determination, with a full eligibility
   66  review to be accomplished within 45 days of the emergency
   67  eligibility determination.
   68         (3) The agency shall notify each applicant, in writing, of
   69  its eligibility determination decision. Any applicant or client
   70  determined by the agency to be ineligible for services has the
   71  right to appeal this decision pursuant to ss. 120.569 and
   72  120.57.
   73         (4) Any admission to an intermediate care facility for the
   74  developmentally disabled must be authorized by the agency. As
   75  part of the authorization, the agency, or its designee, shall
   76  conduct an assessment, including an assessment of medical
   77  necessity and level of reimbursement The agency shall assess the
   78  level of need and medical necessity for prospective residents of
   79  intermediate care facilities for the developmentally disabled.
   80  The agency may enter into an agreement with the Department of
   81  Elderly Affairs for its Comprehensive Assessment and Review for
   82  Long-Term-Care Services (CARES) program to conduct assessments
   83  to determine the level of need and medical necessity for long
   84  term-care services under this chapter. To the extent permissible
   85  under federal law, the assessments shall be funded under Title
   86  XIX of the Social Security Act.
   87         (5) The agency shall assign any client that meets the level
   88  of care requirement for an intermediate care facility for
   89  individuals with intellectual disabilities pursuant to 42 C.F.R.
   90  s. 435.217(b)(1) and 42 C.F.R. s. 440.150 to a waiting list, and
   91  shall provide priority to clients waiting for waiver services in
   92  the following order:
   93         (a) Category 1, which includes clients deemed to be in
   94  crisis as described in rule, shall be given first priority in
   95  moving from the waiting list to the waiver.
   96         (b) Category 2, which includes individuals on the waiting
   97  list who are:
   98         1. From the child welfare system with an open case in the
   99  Department of Children and Families’ statewide automated child
  100  welfare information system and who are either:
  101         a. Transitioning out of the child welfare system at the
  102  finalization of an adoption, a reunification with family
  103  members, a permanent placement with a relative, or a
  104  guardianship with a nonrelative; or
  105         b. At least 18 years but not yet 22 years of age and who
  106  need both waiver services and extended foster care services; or
  107         2. At least 18 years but not yet 22 years of age and who
  108  withdrew consent pursuant to s. 39.6251(5)(c) to remain in the
  109  extended foster care system.
  110  
  111  For individuals who are at least 18 years but not yet 22 years
  112  of age and who are eligible under sub-subparagraph 1.b., the
  113  agency shall provide waiver services, including residential
  114  habilitation, and the community-based care lead agency shall
  115  fund room and board at the rate established in s. 409.145(3) and
  116  provide case management and related services as defined in s.
  117  409.986(3)(e). Individuals may receive both waiver services and
  118  services under s. 39.6251. Services may not duplicate services
  119  available through the Medicaid state plan.
  120         (c) Category 3, which includes, but is not required to be
  121  limited to, clients:
  122         1. Whose caregiver has a documented condition that is
  123  expected to render the caregiver unable to provide care within
  124  the next 12 months and for whom a caregiver is required but no
  125  alternate caregiver is available;
  126         2. At substantial risk of incarceration or court commitment
  127  without supports;
  128         3. Whose documented behaviors or physical needs place them
  129  or their caregiver at risk of serious harm and other supports
  130  are not currently available to alleviate the situation; or
  131         4. Who are identified as ready for discharge within the
  132  next year from a state mental health hospital or skilled nursing
  133  facility and who require a caregiver but for whom no caregiver
  134  is available or whose caregiver is unable to provide the care
  135  needed.
  136         (d) Category 4, which includes, but is not required to be
  137  limited to, clients whose caregivers are 70 years of age or
  138  older and for whom a caregiver is required but no alternate
  139  caregiver is available.
  140         (e) Category 5, which includes, but is not required to be
  141  limited to, clients who are expected to graduate within the next
  142  12 months from secondary school and need support to obtain a
  143  meaningful day activity, maintain competitive employment, or
  144  pursue an accredited program of postsecondary education to which
  145  they have been accepted.
  146         (f) Category 6, which includes clients 21 years of age or
  147  older who do not meet the criteria for category 1, category 2,
  148  category 3, category 4, or category 5.
  149         (g) Category 7, which includes clients younger than 21
  150  years of age who do not meet the criteria for category 1,
  151  category 2, category 3, or category 4.
  152         (6) Within categories 3, 4, 5, and 6, and 7, the agency
  153  shall maintain a waiting list of clients placed in the order of
  154  the date that the client is determined eligible for waiver
  155  services.
  156         (7)The agency shall place on an agency registration list
  157  any client who meets the level of care requirement for an
  158  intermediate care facility for individuals with intellectual
  159  disabilities pursuant to 42 C.F.R. s. 435.217(b)(1) and 42
  160  C.F.R. s. 440.150 and is:
  161         (a)Younger than 21 years of age, requesting but not
  162  receiving waiver services, and not assigned to category 1,
  163  category 2, category 3, category 4, or category 5; or
  164         (b)An adult that resides in an institutional setting,
  165  including, but not limited to, a penal institution, an
  166  intermediate care facility for the developmentally disabled, a
  167  mental health hospital, a nursing home, or a forensic facility
  168  run by the agency pursuant to chapter 916.
  169         (8)(6) The agency shall allow an individual who meets the
  170  eligibility requirements of subsection (2) subsection (1) to
  171  receive home and community-based services in this state if the
  172  individual’s parent or legal guardian is an active-duty military
  173  servicemember and if, at the time of the servicemember’s
  174  transfer to this state, the individual was receiving home and
  175  community-based services in another state.
  176         (9)(7) The agency shall allow an individual with a
  177  diagnosis of Phelan-McDermid syndrome who meets the eligibility
  178  requirements of subsection (2) subsection (1) to receive home
  179  and community-based services.
  180         (10)Only a client may be eligible for services under the
  181  HCBS Medicaid waiver program. To receive services under the HCBS
  182  Medicaid waiver program, there must be available funding
  183  pursuant to s. 393.0662 or other legislative appropriation, and
  184  a client must:
  185         (a)Meet the eligibility criteria as provided in subsection
  186  (2), which must be confirmed by the agency;
  187         (b)Be eligible for the state Medicaid program under Title
  188  XIX of the Social Security Act or the Supplemental Security
  189  Income program;
  190         (c)Meet the level of care requirements for an intermediate
  191  care facility for individuals with intellectual disabilities
  192  pursuant to 42 C.F.R. s. 435.217(b)(1) and 42 C.F.R. s. 440.150;
  193  and
  194         (d)Meet the requirements set forth in the approved federal
  195  waiver authorized under s. 1915(c) of the Social Security Act
  196  and 42 C.F.R. s. 441.302.
  197         (11)(8) Agency action that selects individuals to receive
  198  waiver services pursuant to this section does not establish a
  199  right to a hearing or an administrative proceeding under chapter
  200  120 for individuals remaining on the waiting list.
  201         (12)(9) The client, the client’s guardian, or the client’s
  202  family must ensure that accurate, up-to-date contact information
  203  is provided to the agency at all times. Notwithstanding s.
  204  393.0651, the agency shall send an annual letter requesting
  205  updated information from the client, the client’s guardian, or
  206  the client’s family. The agency shall remove from the waiting
  207  list any individual who cannot be located using the contact
  208  information provided to the agency, fails to meet eligibility
  209  requirements, or becomes domiciled outside the state.
  210         (13)(a)(10)(a) The agency shall provide the following
  211  information to all applicants or their parents, legal guardians,
  212  or family members:
  213         1. A brief overview of the vocational rehabilitation
  214  services offered through the Division of Vocational
  215  Rehabilitation of the Department of Education, including a
  216  hyperlink or website address that provides access to the
  217  application for such services;
  218         2. A brief overview of the Florida ABLE program as
  219  established under s. 1009.986, including a hyperlink or website
  220  address that provides access to the application for establishing
  221  an ABLE account as defined in s. 1009.986(2);
  222         3. A brief overview of the supplemental security income
  223  benefits and social security disability income benefits
  224  available under Title XVI of the Social Security Act, as
  225  amended, including a hyperlink or website address that provides
  226  access to the application for such benefits;
  227         4. A statement indicating that the applicant’s local public
  228  school district may provide specialized instructional services,
  229  including transition programs, for students with special
  230  education needs;
  231         5. A brief overview of programs and services funded through
  232  the Florida Center for Students with Unique Abilities, including
  233  contact information for each state-approved Florida
  234  Postsecondary Comprehensive Transition Program;
  235         6. A brief overview of decisionmaking options for
  236  individuals with disabilities, guardianship under chapter 744,
  237  and alternatives to guardianship as defined in s. 744.334(1),
  238  which may include contact information for organizations that the
  239  agency believes would be helpful in assisting with such
  240  decisions;
  241         7. A brief overview of the referral tools made available
  242  through the agency, including a hyperlink or website address
  243  that provides access to such tools; and
  244         8. A statement indicating that some waiver providers may
  245  serve private-pay individuals.
  246         (b) The agency must provide the information required in
  247  paragraph (a) in writing to an applicant or his or her parent,
  248  legal guardian, or family member along with a written disclosure
  249  statement in substantially the following form:
  250  
  251                        DISCLOSURE STATEMENT                       
  252  
  253  Each program and service has its own eligibility requirements.
  254  By providing the information specified in section 395.065(13)(a)
  255  393.065(10)(a), Florida Statutes, the agency does not guarantee
  256  an applicant’s eligibility for or enrollment in any program or
  257  service.
  258         (c) The agency shall also publish the information required
  259  in paragraph (a) and the disclosure statement in paragraph (b)
  260  on its website, and shall provide that information and statement
  261  annually to each applicant placed on the waiting list or to the
  262  parent, legal guardian, or family member of such applicant.
  263         (14)(11) The agency and the Agency for Health Care
  264  Administration may adopt rules specifying application
  265  procedures, criteria associated with the waiting list
  266  categories, procedures for administering the waiting list,
  267  including tools for prioritizing waiver enrollment within
  268  categories, and eligibility criteria as needed to administer
  269  this section.
  270         Section 2. Section 393.0651, Florida Statutes, is amended
  271  to read:
  272         393.0651 Family or individual support plan.—The agency
  273  shall provide directly or contract for the development of a
  274  family support plan for children ages 3 to 18 years of age and
  275  an individual support plan for each client. The client, if
  276  competent, the client’s parent or guardian, or, when
  277  appropriate, the client advocate, shall be consulted in the
  278  development of the plan and shall receive a copy of the plan.
  279  Each plan must include the most appropriate, least restrictive,
  280  and most cost-beneficial environment for accomplishment of the
  281  objectives for client progress and a specification of all
  282  services authorized. The plan must include provisions for the
  283  most appropriate level of care for the client. Within the
  284  specification of needs and services for each client, when
  285  residential care is necessary, the agency shall move toward
  286  placement of clients in residential facilities based within the
  287  client’s community. The ultimate goal of each plan, whenever
  288  possible, shall be to enable the client to live a dignified life
  289  in the least restrictive setting, be that in the home or in the
  290  community. For children under 6 years of age, The family or
  291  individual support plan shall be developed within the timeframes
  292  45-day application period as specified in s. 393.065(1); for all
  293  applicants 6 years of age or older, the family or individual
  294  support plan shall be developed within the 60-day period as
  295  specified in that subsection.
  296         (1) The agency shall develop and specify by rule the core
  297  components of support plans.
  298         (2) The family or individual support plan shall be
  299  integrated with the individual education plan (IEP) for all
  300  clients who are public school students entitled to a free
  301  appropriate public education under the Individuals with
  302  Disabilities Education Act, I.D.E.A., as amended. The family or
  303  individual support plan and IEP shall be implemented to maximize
  304  the attainment of educational and habilitation goals.
  305         (a) If the IEP for a student enrolled in a public school
  306  program indicates placement in a public or private residential
  307  program is necessary to provide special education and related
  308  services to a client, the local education agency shall provide
  309  for the costs of that service in accordance with the
  310  requirements of the Individuals with Disabilities Education Act,
  311  I.D.E.A., as amended. This shall not preclude local education
  312  agencies and the agency from sharing the residential service
  313  costs of students who are clients and require residential
  314  placement.
  315         (b) For clients who are entering or exiting the school
  316  system, an interdepartmental staffing team composed of
  317  representatives of the agency and the local school system shall
  318  develop a written transitional living and training plan with the
  319  participation of the client or with the parent or guardian of
  320  the client, or the client advocate, as appropriate.
  321         (3) Each family or individual support plan shall be
  322  facilitated through case management designed solely to advance
  323  the individual needs of the client.
  324         (4) In the development of the family or individual support
  325  plan, a client advocate may be appointed by the support planning
  326  team for a client who is a minor or for a client who is not
  327  capable of express and informed consent when:
  328         (a) The parent or guardian cannot be identified;
  329         (b) The whereabouts of the parent or guardian cannot be
  330  discovered; or
  331         (c) The state is the only legal representative of the
  332  client.
  333  
  334  Such appointment shall not be construed to extend the powers of
  335  the client advocate to include any of those powers delegated by
  336  law to a legal guardian.
  337         (5) The agency shall place a client in the most appropriate
  338  and least restrictive, and cost-beneficial, residential facility
  339  according to his or her individual support plan. The client, if
  340  competent, the client’s parent or guardian, or, when
  341  appropriate, the client advocate, and the administrator of the
  342  facility to which placement is proposed shall be consulted in
  343  determining the appropriate placement for the client.
  344  Considerations for placement shall be made in the following
  345  order:
  346         (a) Client’s own home or the home of a family member or
  347  direct service provider.
  348         (b) Foster care facility.
  349         (c) Group home facility.
  350         (d) Intermediate care facility for the developmentally
  351  disabled.
  352         (e) Other facilities licensed by the agency which offer
  353  special programs for people with developmental disabilities.
  354         (f) Developmental disabilities center.
  355         (6) In developing a client’s annual family or individual
  356  support plan, the individual or family with the assistance of
  357  the support planning team shall identify measurable objectives
  358  for client progress and shall specify a time period expected for
  359  achievement of each objective.
  360         (7) The individual, family, and support coordinator shall
  361  review progress in achieving the objectives specified in each
  362  client’s family or individual support plan, and shall revise the
  363  plan annually, following consultation with the client, if
  364  competent, or with the parent or guardian of the client, or,
  365  when appropriate, the client advocate. The agency or designated
  366  contractor shall annually report in writing to the client, if
  367  competent, or to the parent or guardian of the client, or to the
  368  client advocate, when appropriate, with respect to the client’s
  369  habilitative and medical progress.
  370         (8) Any client, or any parent of a minor client, or
  371  guardian, authorized guardian advocate, or client advocate for a
  372  client, who is substantially affected by the client’s initial
  373  family or individual support plan, or the annual review thereof,
  374  shall have the right to file a notice to challenge the decision
  375  pursuant to ss. 120.569 and 120.57. Notice of such right to
  376  appeal shall be included in all support plans provided by the
  377  agency.
  378         Section 3. This act shall take effect July 1, 2023.