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Appeals Court Backs Dismissal Of CMS Challenge

Dec 29, 2017
Originally published on December 28, 2017 12:15 pm

A divided appeals court Wednesday sided with the Florida Department of Health in a dispute about the repeal of a regulation in the Children's Medical Services program.

The 3rd District Court of Appeal upheld a decision by an administrative law judge to dismiss a challenge filed on behalf of a child identified only by the initials K.M. The issue centers on a 2015 move by the department to repeal a rule that involved standards for facilities that provide pediatric cardiac services in the Children's Medical Services program, which provides care to children with complex health conditions.

The department contended that the rule's regulation of pediatric-cardiology facilities exceeded the agency's legal authority, according to Wednesday's ruling. Attorneys for K.M., who suffers from a serious heart condition, argued that repealing the rule would reduce the quality of care.

But a majority of a three-judge panel of the appeals court said Wednesday that K.M. lacked standing to challenge the repeal. The majority opinion, written by Judge Barbara Lagoa and joined by Judge Thomas Logue, said the “repeal of the rule, on its face, does not take away the benefit of quality cardiac care. Nor is it readily apparent that, in the absence of the rule, CMS-approved facilities and clinics will stop providing quality pediatric cardiac services.”

But Judge Kevin Emas dissented and said K.M. had standing to challenge the repeal. “K.M. and the petitioners did not seek to establish --- nor were they required to establish --- that `every facility in the CMS network would suddenly stop providing quality pediatric cardiac services immediately upon the repeal of the standards.' “ Emas wrote.

“Rather, they sought to establish (and did establish, through the unrebutted testimony of their experts), that it was reasonably foreseeable that the elimination of the quality assurance process (as set forth in the rule) could result in a material increase in the risk of morbidity and mortality associated with the provision of pediatric cardiac services. This showing was legally sufficient to confer standing on K.M.”