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EXCLUSIVE INVESTMENT MANAGEMENT & CONSULTANTS, INC., d/b/a NEW DIRECTION COUNSELING, a Florida Corporation, Petitioner/Appellant, v. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent/Appellee. 1st District. Case No. 96-4473. Opinion filed September 18, 1997. An appeal from an order of the Agency for Health Care Administration. Counsel: James A. Burzee, Orlando, for Petitioner/Appellant. Gordon B. Scott, Senior Attorney, Agency for Health Care Administration, Tallahassee, for Respondent/Appellee. (PER CURIAM.) This is an appeal by Exclusive Investment Management & Consultants (EIMC), d/b/a New Directions Counseling, a mental health services provider, from a final order entered by the Agency for Health Care Administration (AHCA) canceling EIMC's Medicaid provider numbers on the ground that EIMC, contrary to AHCA's interpretation of section 409.906(8), Florida Statutes (1995),1 did not have an annual contract with the Alcohol, Drug Abuse and Mental Health (ADM) program office within the Department of Health and Rehabilitative Services (HRS). We reverse as to the issue asserting that AHCA erred in construing the statute to require that a mental health services provider have an annual contract with ADM, in that such interpretation constituted incipient, nonrule agency policy which AHCA did not explain during the formal hearing, but we affirm as to the remaining points. Since August 3, 1994, as the administrative law judge (ALJ) found, EIMC had been under contract with HRS pursuant to short-term performance and rate contracts with ADM and Child Protective Services. Beginning in October 1995, AHCA sent Medicaid cancellation letters to EIMC and numerous other providers, stating that providers must have a contract with ADM, rather than simply any form of contract with HRS. Although AHCA's Medicaid handbook did not previously require providers even to have a contract with HRS, AHCA amended the handbook in December 1995 to require such contract, and thereafter construed the amendment to require an annual contract with ADM. Because AHCA only began imposing the annual ADM contract requirement in October 1995, when it sent the Medicaid cancellation letter to EIMC and the other providers, AHCA was required to explicate this emerging policy. McDonald v. Department of Banking & Fin., 346 So. 2d 569, 582 (Fla. 1st DCA 1977) (any deviation from prior agency practice must be explained). In its final order, AHCA contends that it has consistently construed the statute as requiring providers such as EIMC to have annual contracts with ADM, and in support of this position, it refers to the deposition testimony of AHCA and HRS officials, as well as ``discoverable precedent.'' In regard to the testimony of agency officials, such evidence established only that the agency now requires mental health providers to have contracts with the ADM office. As to its reliance on discoverable precedent, AHCA cited three of its prior orders, which, similar to the testimony AHCA relied on, decided only that mental health providers must have a contract with ADM to be in compliance with section 409.906(8). Southeastern Counseling Ctr., Inc. v. Agency for Health Care Admin., 18 F.A.L.R. 3520 (Fla. Agency for Health Care Admin. 1996); Forest Hill Counseling Ctr. v. Agency for Health Care Admin., 18 F.A.L.R. 3516 (Fla. Agency for Health Care Admin. 1996); and Alpha House of Tampa, Inc. v. Agency for Health Care Admin., 18 F.A.L.R. 3511 (Fla. Agency for Health Care Admin. 1996).2 Each of the above orders involved mental health providers which, like EIMC, received letters from AHCA dated October 15, 1995, canceling their Medicaid provider numbers, because they did not have current contracts with ADM. In each, however, the agency merely held without explanation that termination of the Medicaid numbers was appropriate based upon AHCA's interpretation of section 409.906(8) that providers must have a current contract with ADM. There was no indication in any of these cases that the providers previously had contracts with HRS, rather than with ADM. Nor was there any indication therein that the requirement of an ADM contract was a change from the agency's prior policy. Consequently, there was no acknowledgment that the ADM requirement was incipient policy, and thus no discussion was advanced or explanation given for such policy. These cases, therefore, should not provide a means for AHCA to evade the requirement stated in McDonald, that an agency explicate incipient policy in a hearing pursuant to section 120.57(1), Florida Statutes. Cf. Meridian, Inc. v. Department of Health & Rehab. Servs., 548 So. 2d 1169 (Fla. 1st DCA 1989) (agency may rely upon discoverable precedent without further explicating policy, when prior decisions fully explicate such policy). Accordingly, the final order canceling the Medicaid provider number is reversed and the case remanded for the purpose of permitting AHCA either to explain its incipient policy requiring a mental health services provider to have an annual contract with ADM as a precondition to the provider's maintenance of its Medicaid provider number, or for AHCA, in turn, to remand for further proceedings as to this issue. AFFIRMED in part, REVERSED in part and REMANDED. (ERVIN and DAVIS, JJ., CONCUR. BENTON, J., DISSENTS WITH OPINION.) -- -- -- -- 1Section 409.906(8) authorizes AHCA to make Medicaid payments to community mental health services providers as follows:
(Emphasis added.) 2In its brief on appeal, AHCA includes a more recent decision as additional ``discoverable precedent.'' I.M.P.A.C.T. Inst., Inc. v. Agency for Health Care Admin., 18 F.A.L.R. 4768 (Fla. Agency for Health Care Admin. 1996). -- -- -- -- (BENTON, J., dissenting.) I would affirm because it is not clear that remanding for explication of why the agency ``constru[ed] the statute to require that a mental health service provider have an annual contract with ADM'' will serve a useful purpose. As far as can be told from this record, the contracts between appellant and the Department of Health and Rehabilitative Services would not have complied with statutory requirements, even if they had been ``annual contract[s] with ADM.'' In a footnote to the finding that appellant ``provides rehabilitative services pursuant to performance and rate contracts with ADM and CPS,'' the recommended order draws a conclusion of law: ``This is a finding that Petitioner's contracts with CPS satisfy the statutory requirement to be under contract with HRS.'' But the final order's contrary conclusion of law -- that statutory requirements have not been met -- is entitled to judicial deference, and the final order should be affirmed, if supportable on any basis. Specifically, unless the ``performance and rate contracts'' appellant entered into with the Department of Health and Rehabilitative Services -- each of which was ``for a term of 90 to 120 days and typically authorize[d] services in the amount of $480'' -- met the requirements of section 409.906(8), Florida Statutes (1995), and Florida Administrative Code Rule 59G-1.010(1)(c)4., the order under review ought to be affirmed. See I.M.P.A.C.T. Inst., Inc. v. AHCA, 18 F.A.L.R. 4768 (AHCA 1996); Southeastern Counseling Ctr., Inc. v. AHCA, 18 F.A.L.R. 3520 (AHCA 1996); Alpha House of Tampa, Inc. v. AHCA, 18 F.A.L.R. 3511 (AHCA 1996); Forest Hill Counseling Ctr. v. AHCA, 18 F.A.L.R. 3516 (AHCA 1996). To be sure, the recommended order did not find that appellant contracted with the Alcohol, Drug Abuse, and Mental Health Program Office in the Department of Health and Rehabilitative Services (as opposed to Children and Families or Child Protective Services) after October of 1994. (There is no evidence that appellant had a contract with the Alcohol, Drug Abuse, and Mental Health Program Office that ran later than May of 1995.) But it is not clear that statutory requirements would have been met, even if all of the contracts that appellant and the Department did enter into had been with the Alcohol, Drug Abuse, and Mental Health Program Office, rather than with Children and Families or Child Protective Services. Whatever their duration, moreover, the contracts between appellant and the Department of Health and Rehabilitative Services met the requirements of section 409.906(8), Florida Statutes (1995), only if they called for ``rehabilitative services provided to a recipient in a mental health, drug abuse, or alcohol abuse center . . . which are psychiatric in nature and rendered or recommended by a psychiatrist or which are medical in nature and rendered or recommended by a physician or psychiatrist.'' ``Each provider agreement shall require the provider to comply fully with all state and federal laws . . . .'' § 409.907(1), Fla. Stat. (1995). The record does not establish that services under the contracts were psychiatric or medical in nature or that these services were recommended by a psychiatrist or another physician. The ``performance and rate contracts'' in the record call for ``Family Outpatient Treatment,'' ``family counseling services,'' and ``marriage counseling,'' as well as, in one instance, ``Individual Outpatient Treatment.'' There is no other indication of the nature of the services contracted for, and nothing in the record that suggests that anybody other than the case workers, counselors, and administrators whose names appear on supporting documentation recommended the services. Nor does anything of record indicate that a psychiatrist or any other physician actually rendered the services or contracted to do so.
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