Q.H. c/o AMY HILL v. SUNSHINE STATE HEALTH PLAN, INC.

        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               Q.H. c/o A.H.,
                                 Appellant,

                                      v.

                SUNSHINE STATE HEALTH PLAN, INC.,
                            Appellee.

                               No. 4D20-741

                             [October 7, 2020]

  Appeal from the State of Florida, Agency                for   Health   Care
Administration, L.T. Case No. AHCA 20-FH0016.

  Morgan L. Weinstein of Weinstein Law, P.A., Fort Lauderdale, for
appellant.

  Craig H. Smith and Paige S. Comparato of Hogan Lovells US LLP,
Miami, for appellee.

   Nicholas A. Merlin, Senior Attorney, Tallahassee, for amicus curiae
Agency for Health Care Administration.

GROSS, J.

   Q.H., a 12-year-old girl, timely appeals a final administrative order of
the Agency for Health Care Administration (“AHCA”) upholding the denial
of Medicaid coverage for a growth hormone treatment, Norditropin Flexpro,
prescribed by her physician. We reverse because under the applicable
statutory framework, the Agency took too restrictive a view of what
constituted a necessary treatment for the child.

                                Background

   The child, who turned 12 years old in July 2020, is an enrolled member
of appellee Sunshine State Health Plan, Inc.’s Medicaid plan. In August
2019, Dr. Colette Meehan, a board-certified pediatric endocrinologist, first
evaluated the child for her “short stature.” Over the three years preceding
this initial visit, the child’s height dropped from the 45th percentile to the
25th percentile. Dr. Meehan diagnosed the child with growth hormone
deficiency and prescribed the growth hormone Norditropin to treat the
condition.

   In October 2019, Dr. Meehan submitted a Prior Authorization Request
to Sunshine Health for approval of the Norditropin medication. Evolved
Pharmacy Solutions, the pharmacy benefit manager for Sunshine Health,
denied the request on the ground that it was not medically necessary
because the child’s bone age was not “a minimum of one year behind
chronological age.” In denying the request, Evolved applied the AHCA’s
authorization criteria for growth hormone treatment in children.

   The AHCA’s criteria require that the child have an approved diagnosis
with supporting documentation, that the child be 16 years old or younger,
and that the treatment be prescribed by an endocrinologist, a pediatric
endocrinologist, or a pediatric nephrologist. Additionally, with respect to
the specific diagnosis of pediatric growth hormone deficiency, the AHCA’s
treatment criteria are as follows:

      Growth velocity: ≥ 2 standard deviations (SD) below the
      mean for age and gender (or at less than the 10th percentile)
      Present height: Less than the 5th percentile for age and sex,
      or the mid-parental height
      Bone age: Minimum of one year behind chronological age
      Epiphyses:     Confirmation    of    open        growth     plates
      Diagnostic Evaluation:
      • Two subnormal responses to GH provocation tests (e.g.,
      arginine, clonidine, glucagon, insulin and levodopa):
      Confirmation of stimulation test(s) with peak serum GH
      concentration less than 10 ng/ml; or . . . [listing other criteria]

   Sunshine Health issued a corresponding Notice of Adverse Benefit
Determination to the child, stating that the drug was not medically
necessary because she did not meet the coverage guideline that her “bone
age must be at a minimum of one year behind chronological age.”

  The child’s mother requested an expedited plan appeal.             Sunshine
Health denied the plan appeal as follows:

      Your child does not have a height that is less than 95% of
      children her age. Your child does not, on the x-ray of her wrist
      show that her bones are growing at a rate (speed) that is
      behind her actual (real) age by at least one year. The blood
      tests sent in with this plan appeal did not have enough


                                      2
      information, to support the criteria for needing treatment with
      this drug at this time.

   The denial of the plan appeal further stated that “[t]his decision was
made with regards to EPSDT,” referring to the Early and Periodic
Screening, Diagnostic, and Treatment benefit under Medicaid.

               Prehearing Administrative Proceedings

   The child requested a Medicaid Fair Hearing regarding the denial of
coverage. The AHCA issued a scheduling order, which set the hearing for
late January 2020.

   In compliance with the scheduling order, the child submitted a
statement of the case and a memorandum of law to support her position
on medical necessity. The child argued, among other things, that
Sunshine Health’s adverse benefit determination violated the EPSDT.

                              Peer Review

   In preparation for the Fair Hearing, Sunshine Health sent the child’s
prior authorization request for an “independent external review,” which
was conducted by a board-certified pediatric endocrinologist. The peer
review report concluded that the child “did not meet current policy
standards/criteria for growth hormone administration.”       The report
explained: “Member’s present height is below mid-parental height, growth
plates are open and she had 2 subnormal responses to GH provocative
tests. However, there is no clear demonstration of poor growth velocity
and bone age was not at least one year behind chronological age.”

                              Fair Hearing

    The matter proceeded to a Fair Hearing. During opening statements,
the child’s counsel elaborated on some of the arguments raised in her
memorandum of law.           The child’s counsel first contended that
prescriptions were mandated as a minimum benefit under section
409.973(1), Florida Statutes, and that the only limit on the use of
Norditropin under the Medicaid summary of drug limitations is that it
cannot be received after the age of 16. The child’s counsel further stated
that Sunshine Health’s denial of the treatment violated the EPSDT for the
following reasons: (1) the EPSDT allows limits to be placed on a
prescription, but a denial is not a limit; (2) the EPSDT required Sunshine
Health to consider “the particular needs of a child”; and (3) “prior
authorization cannot delay a child’s treatment.”

                                    3
   A. The mother’s testimony

   The child’s mother testified that the child had “just stopped growing”
about three years ago. The mother explained that the child had “stayed
basically the same height for three years, give or take a couple of
centimeters.” The mother noted that the child’s shoe size and clothing size
had not changed since the age of nine. The child’s pediatrician referred
the child to Dr. Meehan.

   B. Dr. Meehan’s testimony

   Dr. Meehan, the child’s pediatric endocrinologist, testified that she
diagnosed the child with “short stature” at the child’s initial visit in August
2009. Dr. Meehan testified that based upon the mother’s height of 5′5″
and the deceased father’s reported height of 6′0″, the child’s estimated
target mid-parental height was 5′6″, plus or minus two inches. Dr.
Meehan acknowledged that the child’s “bone age was not delayed,” but
explained that the child’s predicted height was between 60.7 to 61.8
inches, which was “about five to six inches less than her genetic potential.”

   Dr. Meehan testified that the child underwent growth hormone
stimulation testing, which “confirmed growth hormone deficiency.” During
the stimulation testing, the child “only peaked to a growth hormone level
of 3.2.” Prescription of a growth hormone “is indicated when the growth
hormone peak is less than 10.” According to Dr. Meehan, delayed bone
age is not required to confirm a diagnosis of growth hormone deficiency:
“No, it is suggestive, but it is not required for the diagnosis, and that is
also part of the guidelines that we all follow as endocrinologists.” She
elaborated: “[I]t is not required for the bone age to be delayed to make the
diagnosis. Because children should not be judged on one thing. It is
looking at the entire picture . . . .”

   Dr. Meehan prescribed Norditropin since it was preferred by the child’s
Medicaid plan. Because the child had a 3.2 growth hormone level, Dr.
Meehan testified, there was “no question that she needs this medication.”
This treatment was within the standard of care. She acknowledged that
any growth hormone could be prescribed to the child, but emphasized that
“there is no other alternative to growth hormone” and that the child
“requires growth hormone to treat growth hormone deficiency.” Time is of
the essence because the treatment needs to be given before the child goes
through puberty and her growth plates fuse.



                                      4
   Dr. Meehan testified that she did not base her treatment
recommendation on the AHCA guidelines, but rather relied upon the
guidelines that were endorsed by the Pediatric Endocrine Society in 2015.
She reiterated that the guidelines she followed were the “substantive
standard of care for pediatric endocrinology patients.”

   When asked whether the child’s growth velocity was greater than two
standard deviations below the mean for her age and gender, Dr. Meehan
testified: “Well, her growth velocity would have stopped. If she fell from
the 45th to the 25th percentile, it is just a child who has maintained their
current height and not gained anything. There was minimal growth[].”

   Dr. Meehan admitted that: (1) the child was not less than the 5th
percentile in terms of height, as she was at the 20th percentile the last
time she was charted; and (2) the child’s bone age was not a minimum of
one year behind the chronological age. Dr. Meehan further conceded that
the child did not meet all of the AHCA guidelines, elaborating: “In this
policy statement that an endocrinologist did not write, yes.”

   Ultimately, Dr. Meehan suggested that following the AHCA’s insurance
guidelines would have violated the standard of care:

      Q. So would you consider if you followed, let’s say different
      insurance guidelines that were not within the standard of
      care, would that violate the standard of care?

      A. Yes, and my Hippocratic Oath.

   C. Sunshine Health’s pharmacist’s testimony

   Dr. Whitney Moore-Smith, a clinical pharmacist at Sunshine Health,
described the process leading up to the decision to deny Norditropin,
including the pharmacy benefit manager’s initial denial of the prior
authorization request “due to the unmet bone age requirement” and
Sunshine Health’s decision to uphold the denial in each review of the
request. Dr. Moore-Smith also noted that “an external review was
performed by a Board-certified pediatric endocrinologist who also
determined to uphold denial for unmet criteria of medical necessity.”

    During each review, the AHCA’s prior authorization criteria were used
to determine medical necessity. Dr. Moore-Smith testified that the AHCA’s
criteria were based upon a list of 15 credible references, including
guidelines from the American Association of Clinical Endocrinologists and
several other evidence-based sources. Dr. Moore-Smith explained that

                                     5
there were several bodies that create clinical guidelines, that the AHCA
policy used different clinical guidelines than Dr. Meehan, and that “we
have to abide by the criteria created by AHCA at the State Medicaid
Managed program.”

   Dr. Moore-Smith testified that medical necessity “requires a confirmed
diagnosis and clinical needs.” Further, she testified that the EPSDT was
used in each review of the child’s request. This means that “a decision is
based on medical necessity and is not based on state or Plan preference.”
She stated that “[t]he basis of the denial for the initial prior authorization
and the appeal are based on a confirmation of clinical diagnosis alone.”
She elaborated that the EPSDT takes factors such as cost-effectiveness
“out of consideration” and relies exclusively on whether the medication is
“medically necessary for the patient based on their diagnosis.” But, she
explained, the patients “do have to have that confirmed diagnosis in order
to do that.” She admitted, however, that she had never treated or
examined the child.

   Finally, Dr. Moore-Smith testified that the child received
“individualized” consideration under the EPSDT because “[e]ach criteria
point for this specific patient was referenced.”

    D. Medical Director’s testimony

   Dr. Wiggan, a medical director of Sunshine Health and the pediatrician
who conducted the review of the child’s plan appeal, testified that the child
did not meet the AHCA’s guidelines in the following ways: (1) the child’s
bone age was not delayed, which was a “very big” factor; (2) the child’s
growth velocity had not been calculated; and (3) the child’s present height
was not less than the 5th percentile for age, and for the mid-parental
height alternative, there was no confirmed height for the father—only an
estimated height. 1 Dr. Wiggan also testified that an independent external
review was done by a pediatric endocrinologist, who also concluded that
the child did not meet the AHCA criteria for the medication.




1 However, Dr. Wiggan later conceded that the child satisfied the mid-parental
height factor: “The mid-parental height was there, but because she also failed
two other criteria, I cannot use that alone and that is why there is more than one
criteria.” Dr. Wiggan appeared to criticize the mid-parental height factor itself as
not being an objective measure: “And although the mid-parental height, she is
less than the mid-parental height, her target potential height just as her
endocrinologist has stated, is an estimate. It’s not an objective measure.”

                                         6
   Dr. Wiggan testified that the guidelines that Dr. Meehan relied upon
are not the guidelines that are used by the AHCA. Dr. Wiggan confirmed
that the AHCA used 15 references to create the medical necessity criteria.
She stated that the determination of whether Norditropin was medically
necessary for the child was based exclusively on the AHCA guidelines and
that “[t]here was nothing else to be considered.”

    Dr. Wiggan admitted that she did not examine or treat the child herself,
emphasizing that Sunshine Health makes its decisions “based on the
clinical documentation that is submitted.” Dr. Wiggan also admitted that
delayed bone age was not necessary to confirm a diagnosis of growth
hormone deficiency, but explained that it was important as one of the
policy criteria to decide on treatment:

      The diagnosis of growth hormone deficiency . . . is based on,
      one, yes, she does have growth hormone deficiency by her
      blood investigation. The degree of her growth hormone
      deficiency as based on the policy criteria for us to decide on
      treatment, bone age is very important as one of those criteria.

Dr. Wiggan also testified that the AHCA’s medical necessity guidelines
complied with the EPSDT:

      Q. . . . [M]y next question is regarding the EPSDT, you stated
      that this complies, the medically necessary guideline complies
      with the EPSDT. Can you explain that?

      A. Of course. EPSDT is based on medical necessity. . . . In
      this case, EPSDT was referenced.      She was not found
      (inaudible) based on the clinical documentation submitted,
      based on the policy guidelines by AHCA to meet medical
      necessity, and as such, EPSDT was considered.

   Dr. Wiggan testified that the child was denied the treatment because
the child did not meet the criteria for medical necessity under the AHCA
policy. Dr. Wiggan acknowledged that there was a denial of treatment,
rather than a limit on service or treatment. However, she reiterated that
EPSDT was considered, explaining that EPSDT was still based on medical
necessity. She explained: “I did not feel in my clinical judgment and based
on the guidelines . . . of the policy that [the child] meets the criteria of
medical necessity to get Norditropin.”




                                     7
                                   Final Order

    In the final order, the hearing officer framed the issue as whether the
child “proved by a preponderance of the evidence that [Sunshine Health’s]
decision to deny [her] request for Norditropin Flexpro was incorrect.” The
hearing officer noted that States must provide EPSDT services to Medicaid-
eligible children under age 21, and that the child was eligible for EPSDT
services. Quoting 42 U.S.C. § 1396d(r)(5), the hearing officer noted that
EPSDT services meant “[s]uch other necessary health care, diagnostic
services, treatment, and other measures . . . to correct or ameliorate
defects and physical and mental illnesses and conditions . . . .” The
hearing officer stated, however, that “a state may place medical necessity
limitations on EPSDT services,” citing 42 C.F.R. §§ 440.230(a), (b), (d). The
hearing officer also stated that section 409.905(2), Florida Statutes, limits
EPSDT services with a medical necessity standard.

   Turning to the instant case, the hearing officer concluded that the child
had not met AHCA’s prior authorization criteria for hormone treatment
because the child did not have a bone age of less than her actual age and
was not in the 5th percentile for her height. 2 Furthermore, citing the
definition of medical necessity incorporated in Florida Administrative Code
Rule 59G-1.010, the hearing officer found that the child had not shown
that the treatment was medically necessary because “all criteria of medical
necessity” had not been met. This appeal ensued.

                              Standard of Review

    In an appeal from final administrative action, this court reviews the
agency’s findings of fact for whether they are supported by competent
substantial evidence, while this court reviews the agency’s conclusions of
law de novo. Dorcely v. State Dep’t of Bus. & Prof’l Regulation, 

22 So. 3d 834

, 836 (Fla. 4th DCA 2009). “In interpreting a state statute or rule, a
state court . . . may not defer to an administrative agency’s interpretation
of such statute or rule, and must instead interpret such statute or rule de
novo.” Art. V, § 21, Fla. Const.



2 We note that a careful reading of AHCA’s guidelines shows that the present
height requirement can be met either if the child’s present height is less than the
5th percentile for age and sex, or if the child’s present height is less than the mid-
parental height. Here, the child presented unrebutted evidence that her present
height was less than the mid-parental height, a fact Dr. Wiggan ultimately
conceded.


                                          8
              Legal Background on Medicaid and EPSDT

   Medicaid is a cooperative federal-state program designed to assist
states with the cost of providing health care to needy individuals. 42
U.S.C. § 1396 et seq. Benefits are “administered through state agencies
pursuant to a Medicaid program that has been submitted to and approved
by the U.S. Department of Health and Human Services.” Pharm. Research
& Mfrs. of Am. v. Meadows, 

304 F.3d 1197

, 1199–1200 (11th Cir. 2002).
“A state’s participation in the Medicaid program is voluntary, but once a
state opts to participate it must comply with federal statutory and
regulatory requirements.” Moore ex rel. Moore v. Reese, 

637 F.3d 1220

,
1232 (11th Cir. 2011).

    A state plan for medical assistance must “include reasonable standards
. . . for determining eligibility for and the extent of medical assistance
under the plan which . . . are consistent with the objectives” of the
Medicaid Act. 42 U.S.C. § 1396a(a)(17)(A). “This language confers broad
discretion on the States to adopt standards for determining the extent of
medical assistance, requiring only that such standards be ‘reasonable’ and
‘consistent with the objectives’ of the Act.” Beal v. Doe, 

432 U.S. 438

, 444
(1977). Thus, “[w]hile states must meet the substantive requirements of
the federal Medicaid Act, they nonetheless retain discretion to design and
administer their Medicaid programs.” 

Moore, 637 F.3d at 1238

.

   Some categories of services are mandatory for a participating state to
include in its Medicaid plan, while others are discretionary, including a
prescription drug benefit. 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(12). The
State of Florida has elected to require all Medicaid managed care plans to
cover prescription drugs. § 409.973(1)(w), Fla. Stat. (2020).

   In 1989, Congress amended the Medicaid Act to mandate that
participating states provide “early and periodic screening, diagnostic, and
treatment” (“EPSDT”) services to all Medicaid-eligible persons under the
age of 21. 

Moore, 637 F.3d at 1233

. “The purpose of EPSDT is to ensure
that underserved children receive preventive health care and follow-up
treatment.” John B. v. Menke, 

176 F. Supp. 2d 786

, 790 (M.D. Tenn.
2001).

   The catch-all EPSDT provision in the Medicaid Act requires
participating states to provide Medicaid-eligible children with “[s]uch other
necessary health care, diagnostic services, treatment, and other measures
described in subsection (a) to correct or ameliorate defects and physical and
mental illnesses and conditions discovered by the screening services,
whether or not such services are covered under the State plan.” 42 U.S.C.

                                     9
42 U.S.C. § 1396d(r)(5) (emphasis added). Thus, “a state Medicaid agency
must provide, under the EPSDT program, (1) any medical assistance that
a state is permitted to cover under § 1396d(a) of the Medicaid Act, that is
(2) necessary to correct or ameliorate defects and physical and mental
illnesses and conditions discovered by screening.” S.D. ex rel. Dickson v.
Hood, 

391 F.3d 581

, 593 (5th Cir. 2004); accord Smith v. Benson, 703 F.
Supp. 2d 1262, 1269 (S.D. Fla. 2010).

    The Medicaid Act does not define the terms “necessary” or “medically
necessary.” See 42 U.S.C. § 1396d (listing definitions). However,
“[a]lthough the standard of ‘medical necessity’ is not explicitly denoted in
the Medicaid Act, it has become a judicially accepted component of the
federal legislative scheme.” 

Moore, 637 F.3d at 1232

. The EPSDT
amendment did not change the “medical necessity” limitation.

Id. at 1234.

   Under federal Medicaid regulations, “[e]ach service must be sufficient
in amount, duration, and scope to reasonably achieve its purpose.” 42
C.F.R. § 440.230(b). However, a state “may place appropriate limits on a
service based on such criteria as medical necessity or on utilization control
procedures.” 42 C.F.R. § 440.230(d). The Centers for Medicare and
Medicaid Services (“CMS”), a federal agency, has instructed participating
states that “[a]ppropriate limits may be placed on EPSDT services based
on medical necessity,” and that “[y]ou make the determination as to
whether the service is necessary.” CMS Medicaid Manual §§ 5110, 5122.F.

   Likewise, cases interpreting federal Medicaid law have held that “a state
may adopt a definition of medical necessity that places reasonable limits
on a physician’s discretion.” Rush v. Parham, 

625 F.2d 1150

, 1154 (5th
Cir. 1980). In other words, “a state may establish standards for individual
physicians to use in determining what services are appropriate in a
particular case.”

Id. at 1156.

“A state may also limit required Medicaid
services based upon its judgment of degree of medical necessity so long as
such limitations do not discriminate on the basis of the kind of medical
condition.” 

Moore, 637 F.3d at 1255

.

   The treating physician has “the primary responsibility of determining
what treatment should be made available to his patients.” 

Rush, 625 F.2d at 1156

. “[A] state Medicaid agency can review the medical necessity of
treatment prescribed by a doctor on a case-by-case basis.”

Id. at 1155.

Accordingly, “[b]oth the treating physician and the state have roles to
play,” and the treating “physician’s word on medical necessity is not
dispositive.” 

Moore, 637 F.3d at 1255

(internal quotation mark omitted);
but see Pinneke v. Preisser, 

623 F.2d 546

, 550 (8th Cir. 1980) (“The
decision of whether or not certain treatment or a particular type of surgery

                                     10
is ‘medically necessary’ rests with the individual recipient’s physician and
not with clerical personnel or government officials.”).

   In short, “the Medicaid Act does not give the treating physician
unilateral discretion to define medical necessity so long as the physician
does not violate the law or breach ethical duties any more than it gives
such discretion to the state so long as the state does not refuse to provide a
required service outright.” 

Moore, 637 F.3d at 1259

–60 (emphasis added).

   Under the Florida statute governing mandatory Medicaid services, the
AHCA is authorized to determine which EPSDT services are “medically
necessary”:

      (2) EARLY AND PERIODIC SCREENING, DIAGNOSIS, AND
      TREATMENT SERVICES.—The agency shall pay for early and
      periodic screening and diagnosis of a recipient under age 21
      to ascertain physical and mental problems and conditions and
      all services determined by the agency to be medically
      necessary for the treatment, correction, or amelioration
      of these problems and conditions, including personal care,
      private duty nursing, durable medical equipment, physical
      therapy, occupational therapy, speech therapy, respiratory
      therapy, and immunizations.

§ 409.905(2), Fla. Stat. (2020) (emphasis added).

  The AHCA has defined “medically necessary” or “medical necessity” for
purposes of Medicaid coverage as follows:

      2.83 Medically Necessary or Medical Necessity
      The medical or allied care, goods, or services furnished or
      ordered must meet the following conditions:

      • Be necessary to protect life, to prevent significant illness or
      significant disability, or to alleviate severe pain
      • Be individualized, specific, and consistent with symptoms or
      confirmed diagnosis of the illness or injury under treatment,
      and     not     in    excess      of     the    patient’s  needs
      • Be consistent with generally accepted professional medical
      standards as determined by the Medicaid program, and not
      experimental or investigational
      • Be reflective of the level of service that can be safely
      furnished, and for which no equally effective and more
      conservative or less costly treatment is available statewide

                                     11
      • Be furnished in a manner not primarily intended for the
      convenience of the recipient, the recipient’s caretaker, or the
      provider

      The fact that a provider has prescribed, recommended, or
      approved medical or allied care, goods, or services does not,
      in itself, make such care, goods or services medically
      necessary or a medical necessity or a covered service. . . .

Fla. Admin. Code R. 59G-1.010(2) (2020) (incorporating by reference the
Florida Medicaid Definitions Policy, August 2017, available on the AHCA’s
website at http://ahca.myflorida.com/Medicaid/review/index.shtml).

   Significantly, Florida courts have held that the AHCA’s definition of
“medical necessity” is “overly restrictive” in the context of a claim for
EPSDT services. See C.F. v. Dep’t of Children & Families, 

934 So. 2d 1

(Fla.
3d DCA 2005). In C.F., the Third District held that a hearing officer “erred
when he applied definitions of medical necessity and personal care
assistance that are overly restrictive and violate federal Medicaid law.”

Id. at 5.

There, the hearing officer relied upon the definition of “medical
necessity” in Rule 59G–1.010 to uphold the Department’s decision to
reduce the personal care assistance hours for a nine-year-old Medicaid
recipient who suffered from brain damage.

Id. at 2–5.

On appeal, the
Third District reversed and remanded for the Department to provide the
child with the number of personal care assistance hours prescribed by his
physician:

      The language used in the Final Order shows that the hearing
      officer improperly applied a more restrictive definition of
      “medical necessity” than that outlined by federal Medicaid
      law. The Department used the same definition of medical
      necessity that it uses for both adults and children and failed
      to incorporate the EPSDT requirements.

      ...

      The state definition of medical necessity is a narrower view
      that does not encompass the assistance a caretaker would
      need in taking care of a disabled child. The federal definition,
      on the other hand, encompasses a more expansive view,
      allowing for services that sustain or support, as opposed to
      actually treating the disability.

      ...

                                     12
      We conclude that the Department incorrectly used more
      restrictive definitions of “medical necessity” and “personal
      care assistance” than federal law requires. The hearing officer
      also failed to give the proper weight to the opinion and
      recommendation of C.F.’s treating physician.

Id. at 5–7.

   Similarly, in E.B. v. Agency for Health Care Administration, 

94 So. 3d 708

, 708–09 (Fla. 4th DCA 2012), this court cited C.F. with approval and
reversed an administrative order disallowing some of a Medicaid-eligible
child’s requested hours of home service, where the hearing officer failed to
consider the EPSDT standard in making the determination “as to which
services requested by [the child] were covered by the Medicaid HHA
Program.”

   Under federal law, “states can implement prior authorization
requirements and other utilization review mechanisms before approving
covered items to children under 21.” 

Smith, 703 F. Supp. 2d at 1277

. For
example, in Florida, the AHCA has the statutory authority to require prior
authorization for Medicaid-covered prescribed drugs.         See, e.g., §
409.912(5)(a)14., Fla. Stat. (2020) (“The agency may require prior
authorization for Medicaid-covered prescribed drugs.”).

    Under the EPSDT, however, “[t]he assessment of medical need for
treatment of a given condition . . . cannot be limited to a predefined list of
criteria.” 3 Jacobus v. Dep’t of PATH, 

857 A.2d 785

, 792 (Vt. 2004). “While
States may use prior authorization and other utilization controls to ensure
that treatment services are medically necessary, these controls must be
consistent with the preventive thrust of the EPSDT benefit.” H.R. Rep. No.
101-247, at 399 (1989). Accordingly, Medicaid recipients under the
EPSDT program “are entitled to individualized review of their specific
conditions.” 

Jacobus, 857 A.2d at 792

. “Simply reapplying the listed
criteria is not an individualized review.”

Id. at 789.

   Similarly, the CMS has instructed states that the determination of
medical necessity for an individual child covered under EPSDT must be
made on a case-by-case basis, taking into account the particular needs of
the child:

3 Although the Vermont Supreme Court’s ruling was based in part on the court’s
interpretation of Vermont’s own regulations, the ruling was also based on the
court’s interpretation of the EPSDT.

                                     13
      Services that fit within the scope of coverage under EPSDT
      must be provided to a child only if necessary to correct or
      ameliorate the individual child’s physical or mental condition,
      i.e., only if “medically necessary.” The determination of
      whether a service is medically necessary for an individual
      child must be made on a case-by-case basis, taking into
      account the particular needs of the child. . . . States are
      permitted (but not required) to set parameters that apply to
      the determination of medical necessity in individual cases,
      but those parameters may not contradict or be more
      restrictive than the federal statutory requirement.

Centers for Medicare & Medicaid Services, U.S. Dep’t of Health & Human
Services., EPSDT – A Guide for States: Coverage in the Medicaid Benefit for
Children and Adolescents (June 2014).

    Finally, under the Florida Medicaid Authorization Requirements Policy,
if services cannot be approved at the first review level, a peer review
physician is not limited to prior authorization criteria in determining
medical necessity:

      The QIO may use a national standardized set of criteria, or
      other set of criteria, approved by AHCA, as a guide for
      authorizations performed at the first review level. If services
      cannot be approved at the first level review, the QIO’s
      physician peer reviewer will determine medical necessity
      using his or her clinical judgment, acceptable standards
      of care, state and federal laws, and AHCA’s medical
      necessity definition.

Fla. Admin. Code R. 59G-1.053(2) (incorporating by reference the Florida
Medicaid Authorization Requirements Policy, available on the AHCA’s
website at http://ahca.myflorida.com/Medicaid/review/index.shtml)
(emphasis added).

    The Final Order and the AHCA’s Prior Authorization Criteria
            Violated the EPSDT as Applied to this Case

   Many of the child’s arguments on appeal boil down to a single issue—
whether the final order and the AHCA’s prior authorization criteria violated
the EPSDT under the facts of this case?



                                    14
    In determining the meaning of the EPSDT, the starting point is the plain
language of the statute. The EPSDT requires states to provide Medicaid-
eligible children with “[s]uch other necessary health care, diagnostic
services, treatment, and other measures . . . to correct or ameliorate defects
and physical and mental illnesses and conditions discovered by the
screening services . . . .” 42 U.S.C. 42 U.S.C. § 1396d(r)(5) (emphasis
added). While a state may adopt standards for determining medical
necessity, such standards must be reasonable and congruous with the
purpose of the EPSDT. See 

Moore, 637 F.3d at 1244

, 1255. Under the
EPSDT, the state’s assessment of medical need for a child’s treatment
“cannot be limited to a predefined list of criteria.” 

Jacobus, 857 A.2d at 792

.

   Here, the child’s failure to satisfy each of the prior authorization criteria
should not have been dispositive. While a state may adopt prior
authorization criteria, those criteria cannot be applied in a way that is
incongruous with the EPSDT. Indeed, Florida’s Medicaid regulations
recognize this. Under Rule 59G-1.053(2), the prior authorization criteria
are designed to serve “as a guide for authorizations performed at the first
review level.” But, if a service cannot be approved at the first review level,
a peer review physician is not limited to the prior authorization criteria,
but instead “will determine medical necessity using his or her clinical
judgment, acceptable standards of care, state and federal laws, and
AHCA’s medical necessity definition.”

Id. (emphasis added). Notably,

the EPSDT contemplates individualized review of a child’s
condition. “Individualized” means “to adapt to the needs or special
circumstances of an individual.” 4 As explained in the EPSDT Guide, the
determination of medical necessity for an individual child covered under
EPSDT must be made on a case-by-case basis, taking into account the
particular needs of the child.

   At each stage of review in this case, the child was denied the treatment
based upon the prior authorization criteria. However, simply reapplying
the prior authorization criteria was not an individualized determination of
the child’s needs. Medical diagnosis is both an art and a science. For a
given child, one authorization criterion could outweigh the others in the
determination of necessity. The physicians at Sunshine Health incorrectly
viewed the EPSDT as something that is “invoked” only if a child meets all
the prior authorization criteria for treatment.


4Individualized, Merriam-Webster’s Online Dictionary, https://www.merriam-
webster.com/dictionary/individualized (last visited Oct. 5, 2020).

                                      15
    While a treating physician’s opinion of medical necessity is not
dispositive, the state also does not have unilateral discretion to define
medical necessity under the EPSDT. Moore instructs that both the treating
physician and the state have a role to play. Furthermore, C.F. teaches that
“[a] state agency must give considerable and substantial weight to the
opinions of treating 

physicians.” 934 So. 2d at 7

. Here, the treating
physician—the only witness at the hearing who was a pediatric
endocrinologist—testified that following the AHCA’s prior authorization
criteria would have violated the standard of care. But the treating
physician’s opinion of medical necessity was disregarded entirely, with her
opinion being rejected in favor of the prior authorization criteria and the
definition of medical necessity set forth in the Florida Administrative Code.

   At the Fair Hearing in this case, the child proved that the prior
authorization criteria were unreasonable as applied to her. More to the
point, the child proved that the treatment was necessary to “correct or
ameliorate” her physical condition.

   In this case, the treating physician’s testimony established that the
child had a defect or physical condition—namely, short stature caused by
growth hormone deficiency. Moreover, there was evidence that the child
had essentially stopped growing for the preceding three years. Although
the child did not meet the bone age requirement of the AHCA criteria, Dr.
Meehan testified that delayed bone age is not required to confirm a
diagnosis of growth hormone deficiency. Notably, Sunshine Health’s
testifying pediatrician did not dispute the diagnosis itself, which was
confirmed based on the child’s blood tests: “[Y]es, she does have growth
hormone deficiency by her blood investigation.”

   The child’s treating physician also testified that the child
unquestionably needed the medication because, without growth hormone
treatment, the child would fail to reach her estimated mid-parental height
by about five or six inches. Sunshine Health’s witnesses did not rebut this
testimony.

   Importantly, the hearing officer found that “credible evidence
established that [the child] would not meet her estimated mid-parental
height.” Still, the hearing officer found that the treatment was not
medically necessary because there was no evidence that Norditropin was
necessary “to protect life, to prevent significant illness or significant
disability, or to alleviate pain.” However, the hearing officer applied the
wrong standard. Under the reasoning of C.F. and E.B., the hearing officer
erred in applying the “overly restrictive” definition of medical necessity set
forth in the Florida Administrative Code, rather than the more expansive

                                     16
EPSDT standard of whether the treatment was necessary to “correct or
ameliorate” the child’s condition. Here, under the plain language of the
EPSDT, the child established that the treatment was necessary to “correct
or ameliorate” her physical condition. This is all the EPSDT statute
requires.

    The dissent invokes a “hyperbolic metaphor” from Justice Scalia and
likens our decision to a proverbial “wolf” that violates principles of
separation of powers and federalism. This is, to borrow another phrase
from Justice Scalia, “pure applesauce.” 5 As the Eleventh Circuit has
explained, “[w]hile Congress could have conferred the ‘final arbiter’ role to
the state, it did not.” 

Moore, 637 F.3d at 1259

. “When a state Medicaid
agency has exceeded the bounds of its authority by adopting an
unreasonable definition of medical necessity or by failing to ensure that a
required service is ‘sufficient in amount, duration, and scope to reasonably
achieve its purpose,’ aggrieved Medicaid recipients have recourse in the
courts.”

Id. (quoting 42 C.F.R.

§ 440.230(c), (d)).

   Indeed, it is the dissent’s approach that would fail to uphold Congress’s
intent in the administration of the EPSDT program, thereby implicating
principles of separation of powers and federalism. The purpose of the
EPSDT is to prevent the onset or worsening of medical conditions in
Medicaid-eligible children before it is too late. By treating the prior
authorization criteria as conclusive on the question of medical necessity,
the dissent undermines Congress’s intent for the EPSDT to be an
expansive and comprehensive program.

   While we agree with Moore that a state may adopt a reasonable
definition of medical necessity, any such definition must be consistent
with the EPSDT’s “necessary to correct or ameliorate” standard. See
Collins v. Hamilton, 

349 F.3d 371

, 376 n.8 (7th Cir. 2003) (“[A] state’s
discretion to exclude services deemed ‘medically necessary’ by an EPSDT
provider has been circumscribed by the express mandate of the statute.”).
And Florida courts have held that the AHCA’s definition of medical
necessity applicable to adult Medicaid recipients is narrower than the
EPSDT standard. See 

C.F., 934 So. 2d at 6

; 

E.B., 94 So. 3d at 708

–09.
The dissent’s approach provides less coverage than the EPSDT statute
requires.

   For these reasons, we reverse and remand for further proceedings
consistent with this opinion.


5   See King v. Burwell, 

576 U.S. 473

, 507 (2015) (Scalia, J., dissenting).

                                          17
CIKLIN, J., concurs.
ARTAU, J., dissents with an opinion.

ARTAU, J., dissenting.

      Frequently an issue of this sort will come before the Court
      clad, so to speak, in sheep’s clothing: the potential of the
      asserted principle to effect important change in the
      equilibrium of power is not immediately evident, and must be
      discerned by a careful and perceptive analysis. But this wolf
      comes as a wolf.

Morrison v. Olson, 

487 U.S. 654

, 699 (1988) (Scalia, J., dissenting).

   Of course, this is not just an ordinary metaphor. It is hyperbole.
Perhaps one might call it a hyperbolic metaphor. But it makes the point
that even when a well-intentioned request comes “clad” in “sheep’s
clothing,” it is still a proverbial “wolf” if the result is an unconstitutional
change to the balance of our separate constitutional powers. 6

   I dissent because the Agency for Health Care Administration’s (AHCA’s)
prior authorization criteria for growth hormone treatment are reasonable
utilization controls that are consistent with federal statutes and
regulations. By establishing and implementing its own criteria, the AHCA
has not categorically or impermissibly denied prescription drug coverage
or growth hormone treatment. Rather, Q.H. (the child) is ineligible for this
type of treatment because her growth delay has not become severe enough
to meet the criteria.

   The Florida Legislature expressly designated the AHCA as the single
state agency authorized to administer and provide stewardship over
taxpayer dollars used to cover Medicaid program expenses. See generally
§§ 409.902, 409.908, and 409.963, Fla. Stat. (2019). In addition, the
Legislature charged the AHCA with oversight responsibility over the
Florida Medicaid program and designated it as “the final arbiter of medical
necessity.” See § 409.913(1)(d), Fla. Stat. (2019). As long as the
limitations on Medicaid services, including Early and Periodic Screening,

6  The use of the Morrison v. Olson “wolf” reference is not intended to be taken
literally, nor does it attribute anything awry or improper about the legal
arguments or opinions of the majority, or that of any of the parties to this action.
Instead, it is being used as a hyperbolic metaphor in the manner employed by
the late Justice Scalia to emphasize the significance of protecting our
constitutional form of government.

                                        18
Diagnosis, and Treatment (EPSDT) services, are lawfully and reasonably
applied, it is not the role of this court to instruct the AHCA how it should
better apply the criteria to determine medical necessity. To do so would
result in an unconstitutional encroachment by the judicial branch on the
executive branch of government. See Dep’t of Children & Family Servs. v.
I.C., 

742 So. 2d 401

, 404 (Fla. 4th DCA 1999) (“The court cannot ‘micro
manage’ a facility operated by DCF. Nor can the court order DCF to
provide specific treatment or placement of a child.” (citations omitted)).

    In I.C., we reversed the trial court on separation of powers grounds
when it precluded the executive branch, through the Department of
Children and Families (DCF), from placing disabled children in a particular
facility.

Id. at 405.

In doing so, we concluded: “All of these are executive
agency decisions which implicate policy development and prioritizing of
funding. These matters are not assigned to the judiciary to resolve.”

Id. at 404

(emphasis added). Likewise, the creation and implementation of
authorization criteria are executive branch decisions which implicate
policy development and funding priorities. These matters are not assigned
to the judiciary to resolve.

    Here, the AHCA criteria do not violate the Medicaid program’s mandate
to provide EPSDT services to the covered children. The authorization
criteria simply serve as a screening device for the AHCA to determine
whether a child’s growth delay or condition qualifies based on medical
necessity for growth hormone treatment. And as the Medicaid insurer’s
clinical pharmacist testified, the criteria are based upon a list of fifteen
credible references, including guidelines from the American Association of
Clinical Endocrinologists and several other evidence-based sources.

   The Medicaid insurer’s pediatrician testified that the child did not meet
the criteria because (1), her bone age was not delayed more than one year
behind her chronological age, (2), her growth velocity had not been
calculated, and (3), her height was not less than the fifth percentile for her
age and sex.      Moreover, a board-certified pediatric endocrinologist
performed an external review and concluded that the child did not meet
the AHCA’s criteria for the treatment. Indeed, the child’s treating
physician agreed that the child does not have a bone age of less than her
actual age and that the child is not less than the fifth percentile for her
age and sex. Instead, the treating physician testified that the child’s
growth rate well exceeded that percentile, and that she is “not a minimum
of one year behind the chronological age rate.” Simply put, the child’s
doctor conceded that his patient does not meet the criteria for Medicaid
coverage of growth hormone treatment as “medically necessary” at this
time, but rather advocated for the AHCA to adopt or accept her guidelines

                                     19
which she believed to be the preferred recommended care for the child.
Notably, if the child’s condition changes (i.e., a manifested bone age delay
and she becomes sufficiently behind the chronological age rate to qualify),
she can request Medicaid coverage of the growth hormone treatment at
that time.

   Medicaid is a cooperative federal-state program. Within broad federal
guidelines, each state may place certain limitations on coverage pursuant
to uniformly applied eligibility criteria. See Moore Ex Rel. Moore v. Resse,

637 F.3d 1220

, 1232–33 (11th Cir. 2011) (“Accordingly, even if a category
of medical services or treatments is mandatory under the Medicaid Act,
participating states must provide those medical services or treatments for
Medicaid recipients only if they are ‘medically necessary.’”).

   While the majority relies upon Moore as one of the seminal cases on
this subject, the Eleventh Circuit acknowledged there that: “(1) a treating
physician is not the sole arbiter of medical necessity; (2) the state may
review the medical necessity of a treating physician's prescribed treatment;
[and] (3) the state may adopt a reasonable definition of medical necessity,
even if it places some limits on a treating physician's discretion . . . .”

Id. at 1248

(citing to Rush v. Parham, 

625 F.2d 1150

, 1154–55 (5th Cir.
1980)). Clearly, federalism principles provide for participating states to
play an important role in defining medical necessity.

    The majority relies on a Vermont case, Jacobus v. Dep't of PATH, 

857 A.2d 785

(Vt. 2004), in concluding that the AHCA failed to conduct an
individualized review here. Their reliance, however, is misplaced because
Jacobus turned on Vermont’s own regulations which incorporated a catch-
all provision requiring the Medicaid provider to cover orthodontic
treatment if it was determined, upon an individualized review, that
treatment was “otherwise necessary.”

Id. at 792.

The Vermont Supreme
Court ruled that the assessment of medical need for treatment cannot be
limited to a predefined list of criteria because the catch-all provision there
mandated an individualized review of whether the treatment sought was
“otherwise necessary” as required by “its own regulations” for the
orthodontic services sought.

Id. Florida’s regulations do

not incorporate
an “otherwise necessary” catch-all provision which would require an
individualized review for growth hormone treatment outside of the listed
criteria. Unlike the majority, I do not agree that the AHCA failed to
conduct an individualized review of the child’s case by basing its decision
on the authorization criteria.

   The majority’s reliance on C.F. v. Dep’t. of Children and Families, 

934 So. 2d 1

(Fla. 3d DCA 2005), is also misplaced. C.F. was a challenge to

                                      20
the state agency’s action in reducing the duration of medical services that
were determined to be medically necessary under the state agency’s
established criteria.

Id. at 2–3.

Thus, C.F. was governed by subsection (b)
of the applicable federal regulation. See 42 C.F.R. § 440.230(b) (subsection
(b) provides that “[e]ach service must be sufficient in amount, duration,
and scope to reasonably achieve its purpose.” (emphasis added)). The
issue in C.F. was whether the state agency had met its burden of proof to
reduce the duration or number of hours that had previously been approved
as medically necessary for personal care services to a brain-damaged nine-
year-old boy. 

C.F., 934 So. 2d at 2

–3. Unlike here, personal care services
were undisputedly covered as medically necessary for the young boy
pursuant to the Medicaid program’s EPSDT services.

Id. at 5–6.

C.F. held
that reduction of the duration of personal care hours that had previously
been determined to be medically necessary for the young boy was not
supported by competent substantial evidence.

Id. at 7.

Accordingly, C.F.
held that “[t]he hearing officer’s interpretation directly conflicts with
federal Medicaid law authorizing [personal care services] when prescribed
by a physician in accordance with a treatment plan.”

Id. at 6.

    Likewise, the majority’s reliance on E.B. v. Agency for Health Care
Admin., 

94 So. 3d 708

(Fla. 4th DCA 2012), is misplaced. In remanding
for a determination of whether the twelve-year-old autistic girl in E.B. was
appropriately limited in duration to four hours per day of home health aide
services—rather than the requested twelve hours—we relied upon C.F. in
determining the challenge there to the duration of the services that had
been determined to be medically necessary under the state agency’s
established criteria.

Id. at 708–09

(citing 

C.F., 934 So. 2d at 6

). We are
not addressing a subsection (b) challenge to the duration of medically
necessary services here.

    Notably, the seminal Eleventh Circuit case relied upon by the majority,
Moore, found the “EPSDT-required service at issue in C.F.” to be
“inapposite” to its holding that a state has “authority to ‘place appropriate
limits on a service based on such criteria as medical necessity,’ 42 C.F.R.
§ 440.230(d), or to ‘include reasonable standards . . . for determining . . .
the extent of medical assistance’ . . . 

.” 637 F.3d at 1261

& n.66. Moore
further distinguished C.F. because “the EPSDT-required service at issue
in C.F.—‘personal care services’—contained a statutory qualifier that does
not similarly apply to [other services].”

Id. (citing 42 U.S.C.

§ 1396d(a)(24))
(states are required to furnish the “‘personal care services’ that are
‘authorized for the individual by a physician in accordance with a plan of
treatment’”). No such statutory qualifier is at issue here.



                                      21
    Moreover, the Eleventh Circuit in Moore rejected any notion that C.F.,
or its progeny, E.B., control here. 

Moore, 637 F.3d at 1261

& n.66.
Instead, Moore upheld the authority of the states under principles of
federalism to establish their own reasonable authorization criteria for
medical necessity.

Id. at 1259

(“A state is obligated to provide EPSDT-
eligible children with private duty nursing services, but only to the extent
that they are medically necessary.” (emphasis added)).

    This is not a subsection (b) case. Unlike C.F. and E.B., the child here
does not challenge a reduction in the duration of medically necessary
services. Instead, the child challenges the state agency’s established
criteria or utilization control procedures for determining whether the
requested service is medically necessary for her condition.           Thus,
subsection (d) is the dispositive federal regulation here. Recognizing a
state’s autonomous role in Medicaid’s cooperative federal-state program,
subsection (d) expressly provides that in our system of federalism: “The
agency may place appropriate limits on a service based on such criteria as
medical necessity or on utilization control procedures.” 42 C.F.R. §
440.230(d) (emphasis added).

    Although the majority refers to the dissent’s approach as “pure
applesauce,” 7 it is the majority’s approach that includes Moore in its
bushel of cited apples, so to speak, despite its contrary interpretation of
the controlling federal regulation here. The majority’s approach disregards
subsection (d) while stripping away the state agency’s regulatory authority,
upsetting the balance of power, and converting this federal-state program
into something that was never contemplated by Congress or the states
when they agreed to participate in the Medicaid program. As explained by
the Eleventh Circuit in Moore: “While the 1989 Amendment took away
participating states’ discretion to provide certain EPSDT services, it did not
strip those states of their regulatory authority to ‘place appropriate limits’
on such required services ‘based on such criteria as medical 

necessity.’” 637 F.3d at 1259

(citing 42 C.F.R. § 440.230(d)) (emphasis added). The
majority’s approach rejects Moore’s interpretation and strips away what
Congress left intact.

   In Beal v. Doe, 

432 U.S. 438

(1977), the U.S. Supreme Court upheld
Pennsylvania’s regulation which excluded nontherapeutic abortions from
Medicaid coverage.

Id. at 447.

The Supreme Court explained that while
“a State [is] free to provide such coverage if it so desires[,]” it is not required
to do so.

Id. In its interpretation

of the statutory text, the Court held that
“nothing in the [Medicaid] statute suggests that participating States are

7   Citing King v. Burwell, 

576 U.S. 473

, 507 (2015) (Scalia, J., dissenting).

                                          22
required to fund every medical procedure that falls within the delineated
categories of medical care.”

Id. at 444

. In sum, Beal held that the
statutory language expressly “confers broad discretion on the States to
adopt standards for determining the extent of medical assistance,
requiring only that such standards be ‘reasonable’ and ‘consistent with
the objectives' of the Act.”

Id. at 444

(quoting Social Security Act § 1902,
42 U.S.C. § 1396a(a)(17) (Supp. V 1970)). The Supreme Court reasoned
that “it is hardly inconsistent with the objectives of the Act for a State to
refuse to fund unnecessary—though perhaps desirable—medical
services.”

Id. at 444

–45.

    In Rush, where the patient sued Georgia and federal officials to secure
funding for gender reassignment surgery, the old Fifth Circuit 8 concluded
that since a state has discretion to establish standards under the Medicaid
program and shape its own definition of medical necessity, “Georgia's
definition of medically necessary services can reasonably exclude
experimental 

treatment.” 625 F.2d at 1156

. There, the patient’s treating
physician had recommended surgical change of Rush’s anatomical sex.

Id. at 1152–53.

However, the Rush court ultimately reversed the district
court’s decision which had ordered Georgia to pay for the surgery,
upholding the “valid exercise of Georgia’s discretion to set standards under
the Medicaid statute.”

Id. at 1156–58.

   And in Lorenzo v. Agency for Health Care Admin., 

985 So. 2d 703

(Fla.
4th DCA 2008), this court acknowledged the executive branch’s rightful
role to determine medical necessity when we affirmed the AHCA’s decision
denying Medicaid coverage of hyperbaric oxygen treatment.

Id. at 703.

As we correctly concluded in Lorenzo, it is “[t]he State of Florida through
the Agency for Health Care Administration [that] determines whether such
treatment is medically necessary” for the patient’s condition.

Id. In sum, assessing

medical necessity by applying standard
authorization criteria is not incongruous with the requirement to provide
EPSDT services, nor is it inconsistent with addressing this child’s growth
delay or medical condition as required by the Medicaid program. While
the majority asserts that the hearing officer applied the wrong standard
for medical necessity, the hearing officer cited the correct EPSDT standard
from section 409.905(2), Florida Statutes (2019), and acknowledged that
because the child is under the age of 21, “Florida Medicaid would cover
the request if it were medically necessary.” As reasoned in the seminal

8Prior to the establishment of the U.S. Court of Appeals for the Eleventh Circuit
pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, Pub.
L. No. 96-452, 94 Stat. 1994 (1980) (codified at 28 U.S.C. §§ 1, 41 (Supp. V 1981)).

                                        23
case from the Eleventh Circuit, Moore, “[i]t is unclear how a state Medicaid
agency could effectively discharge its § 440.230(d) authority if the treating
physician were the only actor effectively placing a ‘medical necessity’
limitation on a required 

service.” 637 F.3d at 1259

(citing 42 C.F.R. §
440.230(d)). Likewise, in determining that the AHCA’s authorization
criteria should be overridden by the treating physician’s preferred
recommended care, the majority has reweighed the evidence by adopting
the physician’s opinion as dispositive, stripping the AHCA of its lawful
regulatory authority to place appropriate limits on growth hormone
treatment.

   Pursuant the 42 C.F.R. § 440.230(d), the AHCA has authority to adopt
a definition of medical necessity that places appropriate limitations on
covered services based on medical necessity criteria or other utilization
control procedures. And because the Legislature has designated the AHCA
as “the final arbiter of medical necessity” in section 409.913, our review
should be limited to whether competent substantial evidence supports the
AHCA’s lawful and reasonable application of its authorization criteria.
Undoubtedly, competent substantial evidence supports the AHCA’s
decision here.

    As declared in what may be the most important opinion in American
constitutional law, Marbury v. Madison: “It is emphatically the province
and duty of the judicial department to say what the law is.” 5 U.S. (1
Cranch) 137, 177 (1803). It is not, however, the province and duty of the
judicial branch to tell the legislative branch what the law should be, nor
to tell the executive branch how it should better execute or carry out the
laws it administers. It is also not the province of this court to tell the AHCA
how it should better execute or carry out the Medicaid program it is
lawfully administering. Accordingly, I respectfully dissent.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                      24
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