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]

CORRECTED OPINION

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 
2

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 
3

tests sent in with this plan appeal did not have enough 

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 
4

Health to consider “the particular needs of a child”; and (3) “prior 

authorization cannot delay a child’s treatment.” 

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. 
5

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 
6

several other evidence-based sources. Dr. Moore-Smith explained that 

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.” 
7

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.” 
8

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 Medicaideligible 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 midparental height. Here, the child presented unrebutted evidence that her present 

height was less than the mid-parental height, a fact Dr. Wiggan ultimately 

conceded. 
9

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. 
10

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 
11

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
12

• 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. 

. . .
13

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.
14

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? 
15

In determining the meaning of the EPSDT, the starting point is the plain 

language of the statute. The EPSDT requires states to provide Medicaideligible 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. 

4 Individualized, Merriam-Webster’s Online Dictionary, https://www.merriamwebster.com/dictionary/individualized (last visited Oct. 5, 2020). 
16

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 
17

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).
18

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. 
19

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 own 
20

guidelines, 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 catchall 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 & Families, 934 So. 

2d 1 (Fla. 3d DCA 2005), is also misplaced. C.F. was a challenge to the 
21

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 nineyear-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). Here, we 

are not addressing a subsection (b) challenge to the duration of medically 

necessary services.

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. 
22

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 EPSDTeligible children with private duty nursing services, but only to the extent 

that they are medically necessary.” (emphasis added)). 

As noted above, 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 Quoting King v. Burwell, 576 U.S. 473, 507 (2015) (Scalia, J., dissenting). 
23

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 Circuit8 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 

8 Prior 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)). 
24

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 to 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.