February 18, 2019

Open Government Failure: Vulnerable Children at Risk After State Agency Makes Change Without Public Hearing or Comment Period

This post was last updated on September 29, 2021. As new policies are announced, FPI will update this page.

As Florida’s response to COVID-19 takes front and center, concern grows for low-income families who struggle to take precautions against the spread of the virus. Although Congress has passed the Families First Coronavirus Response Act to address, at least in part,  the public health crisis and economic fallout from COVID-19, many barriers continue to keep struggling families from accessing the assistance they need during the pandemic. As Florida initiates policies implementing the Act and addressing other barriers to the safety net, FPI will update this form. When available, hyperlinks are provided to agency documents or statements that provide greater detail  about the new policy.

On March 22, 2020, FPI and 44 other organizations sent a letter to Governor DeSantis, leadership in the Legislature and agency heads to urge action on 47 specific policy changes to reduce unnecessary barriers for Florida’s safety net programs in response to the COVID-19 pandemic. See the letter here.

The Florida Policy Institute has previously blogged about the Agency for Health Care Administration’s (AHCA’s) troubling decision to transition early intervention services (EIS) and medical foster care (MFC) to Medicaid managed care.

EIS are critical developmental services for Florida infants and toddlers from birth to 36 months who have disabilities or delays. Medical foster care is similarly targeted to a very vulnerable group of children –those in the care and custody of the Department of Children and Families who have complex medical needs.

A statewide roll-out of this transition has been taking place since December 2018, and it’s not going smoothly. Many providers are not getting paid and some are even exiting these programs, which puts Florida’s most vulnerable children at risk of losing critical services.

It’s unclear what triggered this change. There was no instruction from the Legislature to do so.

Moreover, AHCA completely failed to provide public notice and the opportunity for public comment. This is the standard protocol AHCA follows whenever it seeks to amend the 1115 waiver terms, which authorize Florida’s Medicaid managed care program. Those terms previously excluded EIS and MFC from the managed care program. There were, and continue to be, sound policy reasons for doing so.

Instead, in October, AHCA secretly wrote to the federal Centers for Medicare and Medicaid Services (CMS) requesting this amendment, notably characterizing it as a “technical change.” On November 30, 2018, CMS approved the amended waiver terms, which no longer excluded EIS and MFC from managed care. CMS’s cover letter made no mention of this change, in contrast to the other amendments it approved.

This is a travesty of open government. Public notice, a hearing and an opportunity for comment are desperately needed before the state continues down this very risky path for kids.

AHCA’s Under-the-Radar Actions to Amend the Medicaid Managed Care Waiver: A Chronology

August 3, 2017 – Federal CMS approves AHCA request to extend the 1115 MMA Waiver from August 3, 2017, through June 30, 2022. EIS/MFC excluded from managed care (Special Terms & Condition – STC 77e)

March 2018 – AHCA publishes notice of proposed amendments to the 1115 waiver regarding the Prepaid Dental Program, the Low Income Pool (LIP) and elimination of Retroactive Medicaid eligibility (all changes were directed by the Florida legislature). Nothing is published about amending the waiver to move EIS/MFC services under managed care.Public hearings are held on the proposed amendments and a 30-day public comment period is provided.

June 8, 2018  Federal CMS approves 1115 waiver amendments requested by AHCA pertaining to federally qualified health centers and rural health centers. The new waiver terms continue to exclude EIS/MFC from managed care. (STC 79e)

October 10, 2018 – AHCA writes to federal CMS requesting “a technical change” to remove EIS/MFC from services excluded under the 1115 waiver. No public notice and comment period are provided by AHCA on this proposed change and there is no legislative direction to make this change. (Notably, this letter is not posted on federal CMS’s website or AHCA’s website as is all the other correspondence noted in this chronology.)

November 30, 2018 – Federal CMS approves amendments requested by AHCA. CMS’s cover letter specifically addresses the changes relating to the Prepaid Dental Program, LIP and retroactive Medicaid eligibility. There is no mention of the changes for EIS/MFC. However, the waiver terms have been changed to show that EIS/MFC are no longer included on the list of excluded services. (STC 87e)

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