It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pennsylvania Rules of Criminal Procedure 490 and 790 are adopted and Pennsylvania Rule of Criminal Procedure 722 is rescinded all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in 90 days.
490. Procedure for Obtaining Expungement in Summary Cases; Expungement Order.
Rule 490. Procedure for Obtaining Expungement in Summary Cases; Expungement Order.
(1) Except as provided in Rule 320, an individual who satisfies the requirements of 18 Pa.C.S. § 9122 for expungement of a summary case may request expungement by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.
(j) a verification by the petitioner that facts set forth in the petition are true and correct to the best of the petitioner's personal knowledge or information and belief. The verification may be by a sworn affidavit or by an unsworn written statement that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crimes Code § 4904, 18 Pa.C.S. § 4904.
Additional information shall not be required by local rule or practice.
(3) A current copy of the petitioner's Pennsylvania State Police criminal record shall be attached to the petition. The copy shall be obtained from the Pennsylvania State Police within 60 days before filing the petition.
(4) A copy of the petition shall be served on the attorney for the Commonwealth concurrently with filing.
(1) Within 30 days after service of the petition, the attorney for the Commonwealth shall file a consent or objection to the petition or take no action. The attorney for the Commonwealth's consent or objection shall be filed with the clerk of courts, and copies shall be served on the petitioner's attorney, or the petitioner if unrepresented.
(2) Upon receipt of the attorney for the Commonwealth's response, or no later than 14 days after the expiration of the 30-day period in paragraph (B)(1), the judge shall grant or deny the petition or shall schedule a hearing.
(3) At the hearing, if any, the parties shall be afforded an opportunity to be heard. Following the hearing, the judge promptly shall enter an order granting or denying the petition.
(4) If the judge grants the petition for expungement, the judge shall enter an order directing expungement.
(a) The order shall contain the information required in paragraph (C).
(b) The order shall be stayed for 30 days pending an appeal. If a timely notice of appeal is filed, the expungement order is stayed pending the disposition of the appeal and further order of court.
(5) If the judge denies the petition for expungement, the judge shall enter an order denying the petition and stating the reasons for the denial.
(j) the criminal justice agencies upon which certified copies of the order shall be served.
(2) The clerk of courts shall serve a certified copy of the Order to each criminal justice agency identified in the court's Order.
This rule, adopted in 2010, provides the procedures for requesting and ordering expungement in summary cases. Any case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree is a court case (see Rule 103). The petition for expungement of the summary offense in such a case would proceed under Rule 790.
See also Rule 320 for the procedures for expungement following the successful completion of an ARD program in a summary case and Rule 790 for court case expungement procedures.
This rule sets forth the only information that is to be included in every expungement petition and order.
Paragraph (A)(3) requires the petitioner to attach a copy of his or her criminal record to the petition.
A form petition is to be designed and published by the Administrative Office of Pennsylvania Courts in consultation with the Committee as provided in Rule 104.
''Petition,'' as used in this rule, is a ''motion'' for purposes of Rules 575, 576, and 577.
The ''reason for expungement'' in paragraph (A)(2)(i) and (C)(1)(i) means, for example, acquittal, arrest or prosecution free for five years following the conviction for that summary offense, or age.
For the procedures for filing and service of petitions, see Rule 576.
For the procedures for filing and service of orders, see Rule 114.
For purposes of this rule, ''criminal justice agency'' includes police departments, county detectives, and other law enforcement agencies. See also 18 Pa.C.S. § 9102.
Concerning standing, see In Re Administrative Order No. 1-MD-2003, 594 Pa. 346, 936 A.2d 1 (2007); Commonwealth v. J.H., 563 Pa. 248, 759 A.2d 1269 (2000).
Official Note: Adopted September 22, 2010 effective in 90 days.
Final Report explaining the September 22, 2010 promulgation of new Rule 490 providing the procedures for expungements in summary cases published with the Court's Order at 40 Pa.B. 5740 (October 9, 2010).
Rule 722. [Contents of Order for Expungement] Rescinded.
(9) the criminal justice agencies upon which certified copies of the order shall be served.
This rule sets forth the information that must be included in every expungement order, but is not intended to be an exclusive list.
When a summons instead of an arrest warrant is issued pursuant to Rule 518, the date of the summons constitutes the ''date of arrest'' for purposes of paragraph (6).
Official Note: Rule 9017 adopted February 24, 1993, effective July 1, 1993; renumbered Rule 722 and Comment revised March 1, 2000, effective April 1, 2001; rescinded September 22, 2010, effective in 90 days, and replaced by new Rules 490(C) and 790(C).
Report explaining the provisions of the new rule published with the Court's Order at 23 Pa.B. 1134 (March 13, 1993).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B.  1478 (March 18, 2000).
Final Report explaining the September 22, 2010 rescission of Rule 722 published with the Court's Order at 40 Pa.B. 5740 (October 9, 2010).
Rule 790. Procedure for Obtaining Expungement in Court Cases; Expungement Order.
(1) Except as provided in Rule 320 and 35 P. S. § 780-119, an individual who satisfies the requirements for expungement may request expungement by filing a petition with the clerk of the courts of the judicial district in which the charges were disposed.
(1) Within 60 days after service of the petition, the attorney for the Commonwealth shall file a consent or objection to the petition or take no action. The attorney for the Commonwealth's consent or objection shall be filed with the clerk of courts, and copies shall be served on the petitioner's attorney, or the petitioner if unrepresented.
(2) Upon receipt of the attorney for the Commonwealth's response, or no later than 14 days after the expiration of the 60-day period in paragraph (B)(1), the judge shall grant or deny the petition or shall schedule a hearing.
This rule, adopted in 2010, provides the procedures for requesting and ordering expungement in court cases. Any case in which a summary offense is filed with a misdemeanor, felony, or murder of the first, second, or third degree is a court case (see Rule 103). The petition for expungement of the summary offense in such a case would proceed under this rule.
See also Rule 320 for the procedures for expungement following the successful completion of an ARD program in a court case, Rule 490 for summary case expungement procedures, and 35 P. S. § 780-119 for expungement procedures under The Controlled Substance, Drug, Device, and Cosmetic Act.
This rule sets forth the only information that must be included in every expungement petition and order.
An order for expungement under The Controlled Substance, Drug, Device, and Cosmetic Act, 35 P. S. § 780-119, also must include the information in paragraph (C).
''Petition'' as used in this rule is a ''motion'' for purposes of Rules 575, 576, and 577.
The ''reason for expungement'' in paragraph (A)(2)(i) and (C)(1)(i) means, for example, acquittal or age.
When a summons instead of an arrest warrant is issued pursuant to Rule 519, the date of the summons constitutes the ''date of arrest'' for purposes of paragraph (A)(2)(f).
Official Note: Adopted September 22, 2010, effective in 90 days.
Final Report explaining the September 22, 2010 promulgation of new Rule 790 providing the procedures for expungements in court cases published with the Court's Order at 40 Pa.B. 5740 (October 9, 2010).
On September 22, 2010, effective in 90 days, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted new Rules of Criminal Procedure 490 (Procedure for Obtaining Expungement in Summary Cases; Expungement Order) and 790 (Procedure for Obtaining Expungement in Court Cases; Expungement Order), and rescinded Pa.R.Crim.P. 722 (Contents of Order for Expungement). These new rules establish uniform procedures for petitioning and ordering expungement in summary and court cases.
When Act 134 became effective, the Committee received several communications asking us to consider rule changes that would provide the procedures for requesting expungement under the statute.2 The Committee was cognizant that the current Rules of Criminal Procedure only establish procedures for expungement following the successful completion of an Accelerated Rehabilitation Disposition (ARD) program (Rule 320) and provide the contents of an expungement order (Rule 722). The members also opined that many defendants in summary cases likely will proceed pro se in seeking expungement. In view of these considerations, and recognizing that without a uniform statewide rule, the procedures may vary significantly among the judicial districts, the members agreed to explore statewide uniform procedures for requesting expungement.
Initially, the Committee considered several options for how to proceed. The members considered merely retaining Rule 722 (Contents of Order for Expungement) and adding a reference to the summary expungement provisions in CHRIA in the Rule 722 Comment. The Committee also discussed adding to Rule 722 a section for procedures for summary case expungements; establishing a separate summary case expungement rule; or developing procedures for both summary and court case expungements. Ultimately, the Committee agreed (1) that the provisions for expungement following completion of ARD should continue to be handled separately under Rule 320; (2) offenses entitled to expungement under 35 P. S. § 780-119 (''Section 19'') would continue to proceed under the statute; and (3) there should be separate rules establishing the procedures for summary case expungements and for court case expungements. By retaining the separate procedures for ARD cases and for cases under Section 19 and having separate new rules for all other summary and court cases, it will be easier for the members of the bench, bar, and the public to utilize the correct procedures.
The next question the Committee considered was the placement of the new rules. Because an expungement request ordinarily will not occur until after sentencing, the new summary case expungement rule has been placed at the end of Chapter 4 as new Rule 490 and the new court case expungement rule has been placed at the end of Chapter 7 as new Rule 790. To distinguish both new rules from the rules immediately preceding these new rules, new subchapters have been added to Chapter 4 and Chapter 7 governing expungement.
• the clerk of courts must serve copies of the expungement order on the criminal justice agencies specified in the court's order.
New Rule 490 sets out the procedures for requesting and ordering expungement in all summary cases.
Paragraph (A)(1) and the second paragraph of the Comment make it clear that summary case ARD expungements are to proceed pursuant to Rule 320. Paragraph (A)(1) also requires the expungement petition to be filed with the clerk of courts in the judicial district in which the offenses were disposed.3 Although the requested expungement is of summary offenses that are within the jurisdiction of the magisterial district judges, the Committee believes the CHRIA contemplates that the judges of the courts of common pleas should order expungements, even though this is not spelled out specifically in the CHRIA. Furthermore, the expungement proceedings should be in the court of common pleas because (1) there is not a rule-governed motion practice in the summary case rules; and (2) the magisterial district courts are not courts of record.4 As a matter of uniform procedure, the term ''motion'' is used in the Criminal Rules whenever feasible.5 However, for these new expungement procedures, the term ''petition'' is used to avoid confusion because this is the term used in the statute and in many of the local rules providing expungement procedures. To clarify this variation further, a provision has been added to the Comment explaining that ''petition'' as used in this rule is a ''motion'' for purposes of Rules 575, 576, and 577.
Paragraph (A)(2) sets forth the contents of the petition. All the information required to be in the petition is necessary to aid the attorney for the Commonwealth and the court to identify accurately the defendant and the offense(s) the defendant is asking to have expunged. The contents are the mandatory contents and may not be supplemented or modified by local rule or practice. This prohibition against modification was added to the new rules in response to points raised in the publication responses concerning the importance of having uniformity in the expungement procedures. The correspondents noted that, if the counties are able to add to the information required on the petition, defendants will be hindered in their efforts to obtain expungement, and preclude the use of a statewide uniform form of petition that will be developed in conjunction with the adoption of these new rules. This prohibition is made clear in the last sentence of paragraph (A)(2).
Most of the required information is the same as the information that was required under Rule 722 for the expungement order. In paragaraph (A)(2)(a), the requirement of including ''any aliases that the petitioner has used'' has been added as an additional identifier. Paragraph (A)(2)(j) includes the requirement that the petitioner verify the facts set forth in the petition, which is consistent with all other motions. See Rule 575(2)(g).
Rule 722(1) required the defendant's social security number be included on the order for expungement. The Committee debated at length whether the social security number should be required on the petition and order in the new expungement rules. The members are aware that section 213.7 of the Court's new Public Access Policy governing the official case records of the magisterial district courts direct parties and their attorneys to refrain from including social security numbers on documents filed with the court. We also noted many other governmental agencies are taking the position that social security numbers should not appear on public documents, although as a compromise, some governmental agencies will require only the last four digits of the social security number. Furthermore, in their publication comments, the AOPC's automation staff reiterated the concerns about including social security numbers on the expungement petitions and orders.
Although the concerns about protecting a defendant's privacy and protecting the defendant from identity theft and other misuse of the social security number are legitimate concerns and worthy of consideration, in the context of the criminal justice system, the social security number continues to be a necessary identifier of defendants. In fact, communications from the AOPC and the Pennsylvania State Police indicate that the State Police and the FBI require the full social security number for purposes of ensuring accurate identification before these criminal justice agencies are able to expunge a defendant's criminal record. After carefully weighing the need to protect a defendant's privacy and to protect the defendant from misuse of the social security number against the stated need of various criminal justice agencies to continue to use the full social security number as an identifier, it was determined that the full social security number should be retained as an identifier in expungement cases, at least in the immediate future until such time as the social security number no longer is used as an identifier.
Paragraph (A)(3) requires the defendant to attach to the petition a copy of his or her Pennsylvania State Police criminal record. Two of the publication respondents suggested this addition because they believe providing the court with a copy of the criminal record maintained by the State Police will ensure the court has accurate information concerning the offenses the defendant is requesting be expunged. In addition, to ensure the information on the criminal record is accurate, the rule requires that the copy of the criminal record be obtained by the defendant within 60 days before filing the petition.
Paragraph (A)(4) requires that the defendant serve a copy of the petition on the attorney for the Commonwealth concurrently with filing. This requirement is consistent with Rule 576(B)(1). The requirement for concurrent service ensures the attorney for the Commonwealth receives timely notice of the petition.
Paragraph (B) sets forth the procedures for the attorney for the Commonwealth and the judge to follow after the petition is filed and served. Paragraph (B)(1) provides that after the attorney for the Commonwealth receives the petition, he or she has 30 days within which to exercise one of three options for how to proceed. Recognizing that most summary cases are not complicated and do not have extensive court records to be reviewed, the Committee reasoned a 30-day time period was an adequate amount of time for the attorney for the Commonwealth to determine if he or she is going to consent to or object to a petition for summary case expungement. The attorney for the Commonwealth, of course, may take action in less than 30 days in a given case.
The attorney for the Commonwealth may file a consent to the petition, file an objection to the petition, or take no action. During its discussions, the Committee noted that there will be cases in which the attorney for the Commonwealth will agree with the defendant that the case should be expunged. In these cases, the Committee reasoned the attorney for the Commonwealth would want to move the case along. Therefore, the ''Commonwealth consents'' language in the rules makes it clear that the attorney for the Commonwealth may affirmatively consent at any time after he or she receives the petition rather than allowing the full 30-day period to expire before proceeding. The ''take no action'' language also was added to the rule to address those cases in which the attorney for the Commonwealth determines that he or she is taking no position on the petition.
When the attorney for the Commonwealth takes action, he or she is required to file the consent or the objections with the clerk of courts. The attorney for the Commonwealth also must serve copies of the consent or objections on the petitioner's attorney, or the petitioner if unrepresented.
Paragraph (B)(2) sets forth the procedures the judge is to follow in these cases. The judge is required to take action upon receipt of the attorney for the Commonwealth's consent or objections, but in no case may the judge act later than fourteen days after the expiration of the 30-day time period in paragraph (B)(1). The issue of a time limit on the judge's action was raised in the publication responses. The Committee debated at length adding a time limit on the judge's action. Some members expressed concern that a time limit places too much of a burden on the judge. Other members expressed concern that without a time limit, these cases could languish. They also noted that the judge will have received a copy of the petition when the defendant files it, so the judge will be aware of the petition for at least 30 days before any time limit is applied. Ultimately, a 14-day time limit was included in the rule.
The judge has the discretion to enter an order granting the petition for expungement, to enter an order denying the petition, or to schedule a hearing. Although, in most cases, the judge will take action based on the petition and any response from the attorney for the Commonwealth without holding a hearing, the judge may identify issues with the petition or the attorney for the Commonwealth's response that warrant holding a hearing to resolve.
Paragraph (B)(3) requires that, when a judge schedules a hearing, the parties must be given an opportunity to be heard. At the conclusion of the hearing, the judge is required to enter an order granting or denying the petition.
Paragraph (B)(4) addresses the procedures when the judge grants the petition. The judge must enter an order and the order must contain the contents required in paragraph (C). Paragraph (B)(4)(b) provides for the stay of the expungement order during the 30-day time period within which the attorney for the Commonwealth may file an appeal. If the attorney for the Commonwealth does file an appeal, then the order will be stayed pending the disposition of the appeal and further order of the court. Although providing for the stay during the time for taking an appeal will delay the defendant's record being expunged, the stay is necessary, because, once the defendant's records are expunged, the records cannot be retrieved.
Paragraph (B)(5) addresses the procedures when the judge denies the petition. The judge is required to enter an order denying the petition. The order must state the judge's reasons for denying the petition. The judge's reasons for the denial are necessary to make a record for appeal.
The Comment provides further elaboration on the provisions of the new rule, including emphasizing the requirement in the rule that the list of information required in the petition and the order may not be modified by local rule or practice.
One of the concerns expressed to the Committee about the new summary case expungements under the CHRIA is that many defendants in summary cases will seek to have their records expunged without the assistance of counsel. Because of this, it was suggested that the new rule include the form of the expungement petition. The Committee, when considering this suggestion, noted that, except in a few cases in which the Committee agreed the identical form must be used in all judicial districts (e.g. Rule 632—juror information questionnaire), the Committee has not included the actual forms in the rules since the forms were deleted from the rules in 1985.7 The members agreed petitions to expunge a record do not fit into the category of forms that must be identical in all judicial districts, and declined to devise a form and include it in the rules. However, we did agree that having a form available for the use of petitioners is a sound idea. Accordingly, as explained in the Comment, the Administrative Office of Pennsylvania Courts will design a form, in consultation with the Committee as provided in Rule 104, that incorporates the required contents that are set forth in paragraph (A)(2). It is anticipated that this form will be easily accessible for petitioners.
Addressing one of the issues raised in the publication responses, the Comment includes a clarification about the procedures for expungement when a summary offense is joined with a misdemeanor or felony. Under the rules, when a summary offense is joined with misdemeanor or felony offenses, the case is a court case. Thus, in cases in which the summary offense has been joined with misdemeanor or felony charges, petitions to expunge these summary offenses must proceed under new Rule 790.
The Committee also discussed whether the rule should address standing to challenge expungement. The members agreed this was not something that should be addressed in the Criminal Rules, but thought it would be helpful if the Comment included a cross-reference to the cases on standing in the expungement context.
Except when modification of language is necessary to conform with procedures for court cases,8 the provisions in paragraphs (A)(2), (A)(3), (A)(4), and (C) in new Rule 790 are the same as paragraphs (A)(2), (A)(3), (A)(4), and (C) in new Rule 490 discussed above.
Paragraph (B) sets forth the procedures in court cases for the attorney for the Commonwealth to file a consent to the petition to expunge, any objections to the petition to expunge, and for the judge to take action. In court cases, the attorney for the Commonwealth is given 60 days to decide whether to file a consent, file objections, or to take no action on the petition. The attorney for the Commonwealth is afforded additional time in court cases because there may be more extensive records to review and more complicated issues to address. Paragraphs (B)(1) and (B)(2) incorporate the 60-day time period. In all other respects, paragraph (B) is the same as paragraph (B) in Rule 490 discussed above.
The Rule 790 Comment includes the same provisions that are in the Rule 490 Comment discussed above. One point the Committee discussed in the context of new Rule 790 is whether the order expunging a record under 35 P. S. § 780-119 must include the same contents as orders issued pursuant to new Rule 790. The AOPC representative to the Committee pointed out that currently, under Rule 722, these expungement orders do comply with Rule 722. Although cases under 35 P. S. § 780-119 are excluded from the application of the new rules, the Section 19 orders will continue to be required to include the same information as all other court case expungements, that is, the contents set forth in Rule 790(C) must be included in the Section 19 expungement order. To make this clear, a provision to that effect has been added to the fifth paragraph of the Rule 790 Comment.
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
2 The Committee received communications about summary case expungements from John Heaton, Secretary to the Board of Pardons, Representative Thomas R. Caltagirone, and private citizens.
3 Pursuant to Rules 575 and 576, the petition must be filed with the clerk of courts first rather than taking the petition to a judge or the court administrator before filing.
4 It should be noted, however, that under local procedures implementing Rules 300 and 301, some magisterial district judges may have the authority to expunge summary ARD records after successful completion in the same manner as common pleas judges under Rule 320.
6 See also Rule 114(D) prohibiting local rules requiring a party to file or serve orders and Rule 575(D) prohibiting any local rules requiring a party to attach a proposed order to a motion.
7 The Committee's Report explaining the deletion of the forms was published at 13 Pa.B. 3813 (December 10, 1983).
8 For example, in paragraph (A)(2)(b), the defendant is required to provide in the petition the name of the judge of the court of common pleas rather than the magisterial district judge, and paragraph (A)(2)(e) requires the OTN, a number not assigned to summary cases.
9 This point also is addressed in the second paragraph of the proposed new Rule 490 Comment.
10 Pursuant to Rules 575 and 576, the petition must be filed with the clerk of courts first rather than taking the petition to a judge or the court administrator before filing.


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Over more than 25 years, Dan has become one of the most prominent lawyers in the country in the areas of freedom of expression and media law, and has been lead counsel on landmark Supreme Court of Canada cases. Dan also practices a wide variety of civil litigation, including estate litigation, negligent misstatement and injunctions.
Dan was winning counsel on Supreme Court of Canada cases reshaping defamation law and internet issues. He was honoured to be appointed amicus curiae by the Supreme Court of Canada in the 2012 case of A.B. v. Bragg. Many of his cases, from trial through appeals, involve defamation, open courts, privacy, freedom of information, intellectual property and internet issues, and he handles a wide variety of other civil litigation.
He teaches extensively, and has been recognized by the BC Civil Liberties Association and Freedom of Information and Privacy Associations for his volunteer counsel work on public interest cases. Dan is consistently selected by peers for inclusion in “The Best Lawyers in Canada” and LEXPERT for defamation and media law.
Dan is also an adjunct professor at the University of British Columbia and past President of the Canadian Media Lawyers Association. In addition to his prominence in freedom of expression and media law, Dan maintains a wide practice as litigation counsel on important cases in other areas including estate law, contract litigation and negligent misstatement. In 2014, Dan was appointed a Queen’s Counsel (“Q.C.”).
Nazerali v. Mitchell, 2016 BCSC 810, acted for a plaintiff who was awarded one of the largest defamation awards in Canadian history against a US based internet smear site.
Taseko Mines v. Western Canada Wilderness Committee, 2016 BCSC 109 – successfully defended Wilderness Committee in defamation action over environmental criticisms of an open pit mining proposal.
Casses v. Canadian Broadcasting Corporation, 2015 BCSC 2150 – successfully defended CBC and its employees in a defamation action over a three part expose regarding a doctor.
Fouad v. Wijayanayagam, 2015 BCCA 272 – successful appeal against breach of privacy judgment arising from doctor’s inquiry regarding another doctor’s credentials.
Bragg Communications Inc., 2012 SCC 46, amicus curiae to the Supreme Court of Canada on the issue of whether a minor, seeking an order to obtain the identity of an anonymous poster of an allegedly defamatory Facebook profile, should be granted an anonymity order.
Canwest Publishing Inc. v. Wilson, 2012 BCCA 181, on protection for confidential journalist sources under the Wigmore privilege.
Crookes v. Newton (Supreme Court of Canada, 2011) lead counsel, acting pro bono, winning the Supreme Court’s first internet defamation case, holding that hyperlinking does not amount to publication for defamation purposes.
WIC v. Simpson (trial, appeal and Supreme Court of Canada, 2008 SCC 40) lead counsel on a landmark defamation case before the Supreme Court of Canada, which successfully redefined the defence of fair comment in the context of the Canadian Charter of Rights and Freedoms.
Buell v. Unger, 2011 BCSC 351, estate law, successful summary trial on issue of alleged common law spouse entitlement under intestacy.
Global BC v. British Columbia, 2010 BCCA 169 on entitlement to public and media access to a video exhibit at a murder trial.
Griffin v. Sullivan, 2008 BCSC 827, obtaining significant damages and a broad injunction for the plaintiff who was subjected to a 4‑1/2 year campaign of internet defamation and harassment.
Khan v. Interior Health Authority, 2008 BCSC 1637 awarding damages for negligent misstatement to a doctor recruited to a BC hospital without being told of a chance that his specialty area would be closed down.
R. v. Pickton, 2006 BCSC 1829, 2007 BCSC 78 and other rulings on publication bans and open court issues.
Hanisch v. Canada, trial and appeal, 2004 BCCA 539, in which the rescuer of a Parks Canada boat was falsely accused of retaining the vessel, arrested and taken 100 miles from his home in the Queen Charlotte Islands, ultimately winning compensation and punitive damages for false arrest, false imprisonment and defamation.
Civil Liberties Association, pro bono counsel on several cases, 2005‑2015.
Jack Webster Foundation – Trustee since 2008.
Civil Liberties Advisory Committee for Vancouver 2010 Olympics.
C. Freedom of Information and Privacy Association – Legislative Task Force member and pro bono counsel on several cases, 2003‑2011.

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Where an investor purports to rely on the arbitration clause contained in an investment treaty to refer a dispute to arbitration but the dispute is found to fall outside the scope of that clause, the award issued by the arbitral tribunal should be considered to deal with matters not contemplated by or not falling within the arbitration agreement, such that the court would have the jurisdiction to set aside the award pursuant to Art 34(2)(a)(iii) of the UNCITRAL Model Law on International Commercial Arbitration: at  and .
To qualify as an investment to be submitted to arbitration, an asset must both satisfy the definition of an “investment” provided in the investment treaty and have a territorial nexus with the host State. To satisfy the territorial nexus requirement, the investment must be made or located within the territory of the host State and, if and to the extent it is conceived of as a bundle of rights, those rights must exist and be enforceable under the domestic laws of the host State. Investors can only expect protection in relation to investments that are made within the host State because States generally have no extraterritorial jurisdiction and cannot purport to protect rights or property located outside their borders: at ,  and .
An investment is generally not limited to a single right, such as the primary right to exploit the investment; instead, it generally encompasses a bundle of rights which also includes the secondary right to seek remedies and to vindicate the primary right: at .
1 This was an appeal brought by the first to ninth appellants (collectively, “the Appellants”) against the decision of the High Court judge (“the Judge”) to grant an application (“the Setting Aside Application”) brought by the Kingdom of Lesotho (“the Kingdom”) to set aside a partial final award on jurisdiction and merits (“the Award”). The Award was issued by an ad hoc international arbitration tribunal constituted under the auspices of the Permanent Court of Arbitration (“the PCA”) and seated in Singapore (“the PCA Tribunal”). The Appellants had commenced arbitration proceedings (“the PCA Arbitration”), pursuant to Art 28 of Annex 1 to the Protocol on Finance and Investment of the Southern African Development Community (“the Investment Protocol”), against the Kingdom, which is a member of an intergovernmental socio-economic organisation known as the Southern African Development Community (“the SADC”).
2 The Appellants’ complaint in the PCA Arbitration was that the Kingdom had contributed to or facilitated the shutting down (or “shuttering”) of another tribunal (“the SADC Tribunal”), which is a dispute resolution body established pursuant to the Treaty of the Southern African Development Community (“the SADC Treaty”) read with the Protocol on Tribunal in the Southern African Development Community (“the Tribunal Protocol”), without providing for an alternative forum to determine disputes referred to the SADC Tribunal. This in turn caused a pending claim brought by the Appellants against the Kingdom (“the SADC Claim”) to remain unheard. The PCA Tribunal found in favour of the Appellants, and ordered the parties to constitute a new tribunal to hear the part-heard SADC Claim. The Kingdom then commenced the Setting Aside Application, which the Judge granted (“the Judgment”).
3 The first appellant, Swissbourgh Diamond Mines (Pty) Limited (“Swissbourgh”) is a Lesotho-incorporated company that is owned by the second to fourth appellants (ie, Mr Josias Van Zyl, and the representatives of the Josias Van Zyl Family Trust and the Burmilla Trust). In 1988, Swissbourgh was granted prospecting and mining leases (“the Mining Leases”) in five regions in the Kingdom. The fifth to ninth appellants (collectively, “the Tributees”) are Lesotho-incorporated companies which entered into and registered licensing agreements with Swissbourgh for the sub-lease of the Mining Leases, and served as operating companies responsible for the diamond mining operations in various areas in the Kingdom.
4 Subsequently, between 1991 and 1995, the Kingdom implemented various measures which allegedly hindered Swissbourgh from exercising its mining rights under the Mining Leases, resulting in losses of profit (“the Expropriation Dispute”).
5 In June 2009, the Appellants commenced proceedings against the Kingdom before the SADC Tribunal, claiming damages against the Kingdom on the ground that the Kingdom had allegedly breached its obligations under the SADC Treaty by wrongfully expropriating the Mining Leases (ie, the SADC Claim). However, between August 2010 and August 2015, the relevant governing organs of the SADC unanimously undertook a series of steps that left the SADC Tribunal unable to operate or function, which thus made it impossible for the Appellants to prosecute the SADC Claim. Also, no alternative forum was provided to hear and determine any of the pending claims before the SADC Tribunal (“the Shuttering Dispute”).
6 In June 2012, the Appellants commenced the PCA Arbitration against the Kingdom, alleging that the Kingdom had breached various obligations under the SADC Treaty, the Tribunal Protocol and the Investment Protocol by participating in the shuttering of the SADC Tribunal without providing an alternative means for the SADC Claim to be determined. The Kingdom challenged the jurisdiction of the PCA Tribunal. The PCA Tribunal found in favour of the Appellants, holding that it had jurisdiction to hear and determine the claim, and that the Kingdom had indeed breached its obligations under the various treaties. The PCA Tribunal granted relief by directing the parties to constitute a new tribunal to hear the Appellants’ expropriation claim, and ordered the Kingdom to pay the Appellants’ costs in the arbitration.
7 The Kingdom then filed the Setting Aside Application. The Judge allowed the application, and set aside the Award in its entirety on the ground that the PCA Tribunal lacked jurisdiction over the parties’ dispute. The Appellants appealed against the Judgment, submitting that the court had no jurisdiction to hear the Setting Aside Application, the PCA Tribunal did indeed have jurisdiction to render the Award, and the Appellants should be entitled to have the Expropriation Dispute heard by a new tribunal to be established by the parties. Conversely, the Kingdom submitted that the court did indeed have the jurisdiction to hear the Setting Aside Application, and that the Award had correctly been set aside by the Judge given the Appellants’ failure to satisfy the jurisdictional requirements under Art 28(1).
8 The appeal was dismissed. To this end, the court held that: (a) it did have jurisdiction to hear the Setting Aside Application and to set aside the Award under Art 34(2)(a)(iii) of the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”); (b) the Kingdom was not bound by the doctrines of estoppel or formal unilateral declaration to accept the PCA Tribunal’s jurisdiction in these proceedings; and (c) the Award should be set aside because the PCA Tribunal had no jurisdiction to hear and determine the claim referred by the Appellants, and the Appellants might not have exhausted their local remedies: at  and .
9 The court had jurisdiction to hear the Setting Aside Application pursuant to Art 34(2)(a)(iii) of the Model Law, which states that an award may be set aside if it “deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration”, even though the Kingdom was contesting the very existence of the PCA Tribunal’s jurisdiction to hear and determine the claim referred to it. Article 34(2)(a)(iii) covers situations where the award deals with matters not contemplated by or not falling within the arbitration agreement, and not merely situations where the award decides issues outside the scope of the parties’ submissions in the arbitration. When a State enters into an investment treaty that provides for the submission of disputes to arbitration, it effectively makes a unilateral offer to arbitrate, and binds itself to arbitrate a claim brought under and in accordance with the terms of this offer if an investor accepts the offer by initiating arbitration proceedings in accordance with those terms. Hence, where an investor purports to rely on the arbitration clause contained in an investment treaty to refer a dispute to arbitration, but the dispute is found to fall outside the scope of that clause, the court would have the jurisdiction to set aside the award issued by the tribunal on this ground: at , , ,  and .
10 The Kingdom was not bound to accept the PCA Tribunal’s jurisdiction. The Kingdom did not make any formal unilateral declaration expressing any intention to accept the PCA Tribunal’s jurisdiction or make any representation to that effect which it is estopped from resiling from. The Kingdom had only expressed its willingness to offer an alternative dispute resolution forum for the resolution of the part-heard SADC Claim: at ,  and .
11 Article 28(1) of Annex 1 sets out the requirements which have to be satisfied for the PCA Tribunal to assume jurisdiction over the claim, and thus serves as the yardstick against which the Appellants’ purported acceptance of the Kingdom’s consent to arbitration is to be measured. It contains at least three key jurisdictional requirements: (a) there must be an “investment”; (b) the investment must have been “admitted”; and (c) there must be a dispute which “concern[s] an obligation of the [Kingdom] in relation to [that] admitted investment”. These terms must be interpreted in the light of the object and purpose of the Investment Protocol, a cardinal objective of which is to increase the flow of investment into the SADC region by promoting and protecting investments in the SADC Member States: at  to .
12 To qualify as an “investment” for the purposes of Art 28(1) of Annex 1, an asset must both satisfy the definition of an “investment” found in Art 1(2) and have a territorial nexus with the host State. To satisfy the territorial nexus requirement, the investment must be made or located within the territory of the host State and, if and to the extent it is conceived of as a bundle of rights, those rights must exist and be enforceable under the domestic laws of the host State. This requirement is supported by not only the provisions of Annex 1, but also general principles of international investment law. Investors can only expect to enjoy guarantees of certain standards of treatment or protection in relation to investments that are made within the host State because States generally have no extraterritorial jurisdiction and cannot purport to protect rights or property located outside their borders. When making an investment, investors acquire property and/or rights that exist or are conferred as a matter of the host State’s domestic law. The extent and scope of those rights are also to be determined as a matter of domestic law. As a matter of international law, the host State undertakes certain obligations and may be liable if those domestic law rights within its jurisdiction are violated. When it is alleged that the host State has violated its obligations under the investment treaty, it may be necessary to identify the particular right that has been violated and consider whether that right has the requisite territorial nexus with the host State so as to implicate the obligations of the host State that arise as a matter of international law: at ,  to  and .
13 The Mining Leases, the shares in Swissbourgh and the Tributees held by Mr Van Zyl and the representatives of both the JVZF Trust and the Burmilla Trust, as well as the resources expended in pursuing the exploitation of the Mining Leases (collectively, “the Mining Leases”) qualified as an investment for the purposes of Art 28(1) of Annex 1. They satisfied the definition of an “investment” under Art 1(2) as “productive and portfolio investment assets”, as they fell squarely within para (e) of the definition of “investment” in Art 1(2), which refers to “licences to search for, cultivate, extract or exploit natural resources”. The Mining Leases also fulfiled the territorial nexus requirement as they consisted of rights created and conferred under the domestic laws of the Kingdom in respect of property situated within the Kingdom’s territory: at [111(a)] and  to .
14 The Judge erred by assuming that the Mining Leases could not have been the relevant investment just because the claim in the PCA Arbitration had been brought in respect of the Shuttering Dispute. The Mining Leases can in principle comprise a multitude of rights. An investment is generally not limited to a single right, such as the primary right to exploit the investment; instead, it generally encompasses a bundle of rights which also includes the secondary right to seek remedies and to vindicate the primary right. A dispute submitted to investment arbitration might concern the breach of a secondary rather than a primary right, provided that secondary right is part of the investment the host State has undertaken to protect and has the requisite territorial nexus with the host State. A secondary right need not accrue to the investor at precisely the same time as the acquisition of the investment for that secondary right to be protected under the investment treaty: at ,  and .
15 The right to refer a dispute to the SADC Tribunal (“the right to refer”) did not fall within the Mining Leases’ bundle of rights because it did not have the requisite territorial nexus with the Kingdom. It could only exist on the international law plane and its assurance was not a matter within the Kingdom’s control as it was entirely dependent on the existence and maintenance of a mechanism established under international law by the consent of the SADC Member States. Pursuant to Arts 35 and 36 of the SADC Treaty, the SADC Tribunal could have been dissolved at any time as long as three-quarters of all SADC Member States were to adopt a resolution implementing such a decision or amend the SADC Treaty to achieve a similar outcome. It would have been impossible for the Kingdom, acting alone, to have vetoed or prevented any such resolution which the rest of the SADC Member States had all agreed to pass. The right to refer was therefore not a right that could be guaranteed by the Kingdom acting unilaterally, and fell outside its enforcement jurisdiction: at ,  and .
16 In any event, the right to refer could not fall within the Mining Leases’ bundle of rights because it did not even exist at the time the SADC Claim was brought. The SADC Treaty and the Tribunal Protocol are not investment protection instruments, and do not confer upon the Appellants any enforceable right of access to the SADC Tribunal. In particular, Art 32 of the SADC Treaty only provides for a dispute resolution mechanism between SADC Member States in respect of inter-State disputes, and Arts 14 and 15 of the Tribunal Protocol only declare the scope of the SADC Tribunal’s jurisdiction in general terms and do not constitute an independent basis of consent by the SADC Member States to the submission of particular investment disputes by investors to the SADC Tribunal. The entry of force of the Investment Protocol in 2010 did not change this conclusion as the Expropriation Dispute had arisen long before the Investment Protocol entered into force, thus the SADC Claim would have fallen outside the SADC Tribunal’s jurisdiction ratione temporis under Art 28(4) of Annex 1: at , ,  and .
17 Even though a part-heard arbitration claim can in principle qualify as a stand-alone investment, the SADC Claim did not. The SADC Claim satisfied the Art 1(2) definition of an “investment” as it had economic value and fell within the ambit of a “productive and portfolio investment assets”, and more specifically, was a legal claim for a monetary remedy under para (c) of the definition of “investment” in Art 1(2). It might in principle also be considered a continuation or transformation of the original investment, which are the Mining Leases. However, the SADC Claim could not qualify as an investment because it failed the territorial nexus requirement. It only existed as a matter of international rather than domestic law, and fell outside the Kingdom’s enforcement jurisdiction and could not be a protected investment under the relevant treaties. The putative transformation of the Mining Leases into the SADC Claim was distinguishable from that found in other cases where the claimants’ original investments were replaced by the crystallisation of a domestic law right that fell within the investment’s bundle of rights. In contrast, the SADC Claim only existed as a matter of international law and lay beyond the Kingdom’s enforcement jurisdiction for the same reasons as the right to refer: at  to  and  to .
18 Having found that neither the right to refer nor the SADC Claim qualified either as investments or as inherent parts of a qualifying investment, this left the Mining Leases (without the right to refer or the SADC Claim in the constituent bundle of rights) as the only viable qualifying investment under Art 28 of Annex 1. The Mining Leases satisfied the requirement under Art 28(1) and Art 1(2) that an investment must be “admitted” in accordance with the Kingdom’s laws, as there was ample evidence of the Kingdom’s acceptance of the Mining Leases. Even if the Mining Leases were later found to be technically invalid, this would not mean that there was no valid admission: at ,  and .
19 There was no qualifying dispute “concerning an obligation of the [Kingdom] in relation to [the Appellants’] admitted investment”, which was the Mining Leases, as required under Art 28(1) of Annex 1. The Shuttering Dispute could not be the qualifying dispute because it was, in essence, about whether the Appellants had a right to have the SADC Claim heard by the SADC Tribunal. The correlative obligation to that right must be one owed by the Kingdom to guarantee the Appellants’ access to the SADC Tribunal or to establish an alternative forum for the SADC Claim to be heard. Because the right to refer did not fall within the Mining Leases’ bundle of rights, and the Mining Leases did not give rise to any corresponding obligation on the part of the Kingdom to guarantee that the SADC Claim would be heard, there was no obligation in relation to the Mining Leases which the Shuttering Dispute was concerned with, and therefore that dispute logically could not fall within the terms of Art 28(1). The Expropriation Dispute, on the other hand, fell outside of the PCA Tribunal’s jurisdiction ratione temporis. As there was no qualifying dispute which could fall within Art 28 and the scope of the Kingdom’s consent to arbitration before the PCA Tribunal, the PCA Tribunal lacked jurisdiction to hear and determine the Appellants’ claim: at  to .
20 Article 28(1) of Annex 1 and Art 15 of the SADC Treaty expressly require the Appellants to have exhausted all local remedies before submitting a dispute to international arbitration. The initial burden is on the Appellants to show that there are no reasonably available local remedies or where local remedies provide no reasonable possibility of effective redress. The Appellants’ argument that the Mining Leases are invalid would defeat the Kingdom’s objection on exhaustion of local remedies as they would not have suffered any wrong to be remedied, but this would in turn destroy their whole claim for investment protection. Accordingly, the court had to proceed with the exhaustion analysis on the basis that the Appellants did have a valid investment and rights in domestic law capable of protection. It would be premature to infer from the dearth of existing precedents alone that an Aquilian action, a claim in the law of delict for pure economic loss resulting from the wrongful conduct of the State, would not be reasonably available. There was no evidence that there is no possibility of effective redress in the Kingdom’s courts on the basis of intractable case backlog or a lack of judicial independence. There might therefore be a reasonably available and effective remedy in the way of an Aquilian action and this too would have foreclosed the Appellants’ claim and warranted a dismissal of the appeal in any event: at , ,  to ,  and .

matches:
Art 34
Art 28
Art 28
Art 34
Art 34
Art 28
Art 1
Art 28
Art 1
Art 1
Art 32
Art 28
Art 1
Art 1
Art 28
Art 28
Art 1
Art 28
Art 28
Art 28
Art 15


Jazmine Janine Dykes | J.D.
We want to thank those who contributed, including the National Health Law Program (NHeLP). In addition to preparing The Advocates Guide to the Medicaid Program, a voluminous and essential resource for any health lawyer, Jane Perkins and Sarah Somers also provided a template for individual state guides. And Sarah not only generously shared her Advocate’s Guide to the North Carolina’s Medicaid Program (much of which appears in this document), she took time to review and edit this Guide.
We also want to thank Margaret Kosyk and Jazmine-Janine Dykes. Thanks are also due to Anne Swerlick, Florida Policy Institute, who has encyclopedic knowledge of Florida’s Medicaid Program, and Laurie Yadoff, Coast to Coast Legal Aid of South Florida, an expert in Florida's disability/Medicaid application process. They both took the time to answer questions and locate policies that are not easily available on line.
Medicaid is a complex and frequently changing federal-state insurance program that covers medical expenses for eligible beneficiaries. Each state implements its own Medicaid plan in compliance with the federal Medicaid statute and regulations. While the federal statute and regulations prescribe the basic rules of the Medicaid program, states have significant flexibility and each state’s Medicaid program is unique.
When the Medicaid program was passed in 1965, coverage was limited to low-‐ income individuals who qualified for either the “disability” related coverage (aged, blind, or disabled) or family related coverage (children, pregnant women, parents).
Shortly after passage of the ACA, Florida and other states sued the federal government alleging, inter alia, that this “Medicaid expansion” was unconstitutional. In National Federation of Independent Business v. Sebelius (NFIB), the Court upheld the ACA’s individual mandate as constitutional. The Court also ruled, however, that requiring states to expand their Medicaid programs to cover low income adults who did not meet a categorical connection was “overly coercive.”4 The Court’s decision meant that each state would decide whether or not to extend coverage to this group. As of April 2018, Florida is one of 19 states that has refused federal funding for coverage of the Medicaid expansion population.
Federal law requires each state to administer its Medicaid program through a single state agency. The designated state agency in Florida is the Agency for Health Care Administration (AHCA).
Under federal law, states must cover specified mandatory coverage groups, and states may cover additional categories who meet eligibility requirements.
Eligibility requirements include financial (income and resources) as well as technical requirements, e.g. citizenship and residency. Different financial eligibility limits and methodologies apply depending on whether the individual’s categorical connection to Medicaid is disability or family Related.
Florida's mandatory and optional coverage groups are set forth below.
Under federal law, states have the option of providing continuous eligibility for children even if the family income exceeds allowable limits over the course of the eligibility period.
Breast and Cervical Cancer Treatment (BCC).
The initial comment period to AHCA ended April 19, 2018. This Guide will be updated following the full comment period and a decision by CMS.
In Florida, the Department of Children and Families determines eligibility,51 and there should be “no wrong door” for applicants.
Individuals who are applying for Medicaid and Social Security Disability benefits, need to apply through a Social Security Administration office or the SSA website. SSI recipients will automatically be routed to the Division of Disability Determinations (DDS), which reviews applications for Medicaid.59 SSDI recipients whose income is too high for Medicaid will need to apply directly to DCF for Medically Needy.
Applicants for family related Medicaid, should apply online with DCF, rather than through the health care marketplace.
Generally, only information that is subject to change, such as income, household composition and disability, must be re-evaluated. Items that are not usually subject to change, such as citizenship and residence, need not be reevaluated unless a change has been reported.
Given the improved databases available post ACA, DCF is better able to perform the renewal based on information that is already available and make redeterminations of eligibility without requiring additional information from the beneficiary.
If DCF does not have the information needed in order to renew eligibility, they will send a notice to the individual giving at least 30 days to provide the necessary information. The preferred method for reporting changes is via the individual’s on-line My ACCESS Account. Individuals can report changes over the phone at the DCF statewide call center (866-762‐2237), by mail or in person.
· An individual’s SSI is and cancelled.
Eligibility disputes, unlike disputes over coverage of services, (see Section Five on Managed Care), are conducted at the DCF Office of Appeal Hearings pursuant to Florida Administrative Code Rules 65-2.
Litigation has arisen when there is a difference of opinion between the state Medicaid agency and beneficiary(ies) over whether a specific service or item fits under one of those categories in 1396d(a).
These governing principles are discussed more fully below.
As discussed below, the Medicaid managed care regulations require access standards, thus providing advocates and beneficiaries with a basis thus for addressing service delays.
Individual states have significant flexibility in setting amount, duration and scope standards. Thus, for example, Florida has limited coverage for inpatient hospital stays to 45 days per year. This is a “reasonable" limit because it is sufficient in amount to cover the inpatient hospital needs of most adult beneficiaries.87 By contrast, Florida (and other states) cannot limit the coverage of services for recipients under 21, as long as the service is medically necessary for the individual child. Accordingly, the state rule for hospital services allows for coverage of medically necessary services of up to 365 days for recipients under age 21.
The Early and Periodic Screening, Diagnosis and Treatment (EPSDT) is a comprehensive set of benefits that is mandatory for children and youth under age 21 who are enrolled in Medicaid. EPSDT covers four separate types of screening services and includes immunizations, laboratory tests and health education. Each screen must be furnished at pre-set intervals and when a problem is suspected.
The treatment component of EPSDT includes any necessary health care, diagnostic services and other measures described in the Medicaid Act necessary to “correct or ameliorate” physical and mental conditions. Also required are outreach and informing, appointment scheduling and transportation assistance.
Screens, or well-child check-ups, are a basic element of the EPSDT program. As noted above, four separate types of screens are required: medical, vision, hearing, and dental.
Health education and anticipatory guidance.
EPSDT recipients are also entitled to periodic vision, hearing and dental examinations, as well as diagnosis and treatment for vision, hearing and dental problems.
Vision services must include vision screens and diagnosis and treatment of vision defects, including eyeglasses.
Hearing services must include hearing screens and diagnosis and treatment for defects in hearing, including hearing aids.
Dental services must include dental screens, relief of pain and infections, restoration of teeth, and maintenance of dental health.
That support services, specifically transportation and appointment scheduling assistance, are available on request.
If the child or family has difficulty reading or understanding English, then the information needs to be conveyed in a format that can be understood.
Florida was one of the first states to mandate enrollment in managed care plans. In 2006, the state received approval for a section 1115 Waiver96 that shifted Medicaid beneficiaries out of a fee-for-service delivery model (also referred to as “traditional” or “straight” Medicaid) into a managed care system.
The initial managed care program, which was known as “Medicaid Reform,” was piloted in five counties. After years of negotiations with the Center for Medicaid and Medicare Services (CMS), the State received permission to expand managed care statewide. The shift was completed in 2014, and most Florida Medicaid recipients are now enrolled in a program referred to as the Managed Medical Assistance Program (MMA).
Almost all Florida Medicaid recipients now receive their health care services through their MMA plan. Broadly speaking, the goal of managed care is to ensure better health outcomes with lower costs. Florida’s program is intended to improve the access standards that were available under traditional fee-for-service Medicaid. Additionally, managed care makes it easier to predict costs.
Because MMA plans control access to services for Medicaid beneficiaries, consumer advocates should be aware of the relevant authority governing Florida’s managed care program. For example, when assisting clients who may experience delays in receiving appointments, it is important to know the access standards prescribed in the managed care contract between the plans and AHCA.
As noted, most Medicaid recipients are required to receive their covered services through a managed care health plan.98 The voluntary enrollment population for MMA program, as well as the population excluded from the entire SMMC managed care program, are bulleted below.
Be given the opportunity to indicate a plan choice selection if they are prepared to do so.
If an individual is determined to be eligible for Medicaid and a health plan has not been selected during the application process, they will be enrolled into a plan through auto-assignment.
Through this process, also referred to as “ Express Enrollment, ” health plan enrollment will be effective the same day that the recipient’s eligibility application is approved.
Choice counselors are available for questions and advice on which plan best suits each recipient’s particular health care needs Choice counselors can be contacted at 1-877-711-3662. Recipients with special needs have the option of requesting an in-person visit.
Recipients are encouraged to find a plan in which the individual’s doctors are in network in order to maintain continuity of care.
What services must be covered?
After enrollment into a health plan, recipients should receive a Member Handbook from their particular managed care provider detailing the services they are entitled to receive and information on how to contact the plan if a problem arises. The member handbook can also be found online or by calling the customer service representative for the particular plan.
Certain Medicaid services are not covered by MMA health plans, but are still available to eligible recipients through traditional fee-for-service Medicaid. Some important non-MMA services include Applied Behavioral Analysis (ABA), Early Intervention Services (EIS), and Medical Foster Care.
What access standards apply to the health plans?
Accordingly, “Network Adequacy Standards,” require all health plans to maintain a provider network that is “sufficient in numbers to meet the access standards for specific medical [and behavioral] services for all recipients enrolled in the plan” … in both urban and rural geographic areas.
For good cause, at any time.
Without cause, for voluntary enrollees at any time.
After 120 days, recipients may only change plans for “good cause.” After the 12-month period, recipients may change plans during the open enrollment period.
To change their plan, beneficiaries can speak with choice counselors, who are available to assist recipients in selecting a plan that best fits their needs.
A Florida Medicaid recipient enrolled in a statewide MMA plan may request to change managed care plans at any time for good cause reasons. Requests are made by phone to the choice counselor at 1-877-711-3662.
The enrollee does not live in a region where the Managed Care Plan (MCP) is authorized to provide services.
A substantiated marketing violation has occurred.
The enrollee is prevented from participating in the development of his/her treatment plan/plan of care.
The enrollee has an active relationship (has received services from the provider within the six months preceding the disenrollment request) with a provider who is not on the MCP’s panel but is on the panel of another MCP.
The enrollee is in the wrong MCP as determined by the Agency.
The MCP no longer participates in the region.
The state has imposed intermediate sanctions upon the MCP, as specified in 42 CFR § 438.702(a)(4).
The enrollee needs related services to be performed concurrently, but not all related services are available within the MCP network, or the enrollee’s PCP has determined that receiving the services separately would subject the enrollee to unnecessary risk.
The MCP does not, because of moral or religious objections, cover the service the enrollee seeks.
The enrollee missed open enrollment due to a temporary loss of eligibility.
Enrollees who are having trouble accessing services or who are encountering other problems with their SMMC services can file an official complaint.
A complaint may be filed either online at https://apps.ahca.myflorida.com/smmc_cirts/ or by speaking with a Medicaid representative by calling toll free 1-877-254-1055 to speak to a Medicaid representative.
AHCA's online portal gives those filing a complaint the option to remain anonymous. However, if there is an issue that needs to be resolved, the person filing the complaint should provide their name and an email address or phone number.
First, under the Complainant Information section, the complainant must choose whether they are the Medicaid recipient or healthcare provider, or filing on behalf of the recipient or provider. The complainant can choose to either enter their name, email (if available), and phone number, or leave it blank.
Next, under the 'Who is the complaint/issue about?' section, the complainant will enter the recipient’s name, gold card, SSN, or Medicaid number, the county of residence, whether a previous complaint has been filed with AHCA, the type of managed care plan, the name of the managed care plan, and whether the complainant has contacted the plan.
Finally, under the 'Please complete all choices that relate to your issue' section, the complainant can indicate the type of complaint, e.g. having trouble obtaining a specific service.
This last section allows the complainant to describe in detail the issue and why a complaint is being filed.
What is the difference between a grievance and an appeal?
What is the Adverse Benefit Determination (ABD)?
In addition, ABDs include the denial of an enrollee’s request for an out of network service if the enrollee lives in a rural area and there is only one plan.
What is the time standard for filing a grievance or appeal?
Is there a statutory right to a fair hearing?
Under the federal Medicaid statute, Medicaid beneficiaries have the right to a fair hearing if a claim for medical assistance is denied or not acted on with reasonable promptness.
Is there a requirement that the plan appeal process be exhausted before filing a fair hearing?
Are there any exceptions to exhaustion requirement?
What time standards apply to various notices?
If the action concerns a termination, suspension, or reduction of a benefit - written notice must be sent 10 days before the date of action.
If the action concerns a denial of payment - notice must be sent at time of action affecting claim.
If the action concerns a standard service authorization decision that denies or limits services - notice must be sent within 14 days.
If an expedited service authorization has been requested - notice must be sent within 72 hours.
notice was not sent within 10 days of a termination, suspension or reduction of previously authorized benefits. (violates 42 C.F.R. § 438.404(c)(1)).
Is there a right to an expedited appeal?
Where to file fair hearings and who are the parties?
Pursuant to 2016 legislation, Medicaid appeals related to services for persons enrolled in a managed care plan and which are filed on or after March 1, 2017, are directed to AHCA. Fla. Stat. § 409.285(2).
How to ensure continuation of benefits pending appeal and state fair hearing if the ABD is a termination, reduction, or suspension of current services?
Suspension, or reduction of a previously authorized medical service, he or she has the right to receive continued coverage of the medical service pending the outcome of an appeal and fair hearing. The importance of the right to “aid pending” for low income individualized was recognized by the United States Supreme Court in the seminal case of Goldberg v. Kelly, 397 U.S. 254, 261 (1970).
What are enrollee rights in grievances and appeals?
Review medical records and case file free of charge and in advance.
Expedited appeals – file written appeal within 10 days of oral must be resolved within 72 hours.
Note: these time frames can be extended if the enrollee requests an extension. However, if the plan requests an extension, the plan must demonstrate to the state the need for additional time and why the extension would be in the best interests of the enrollee.
There are multiple authorities enumerated below which relate to Florida’s MMA program, including federal and state regulations (rules); Florida statutory provisions, contractual provisions between AHCA and the plans and the Special Terms and Conditions (STC) agreement between the state and federal government in the Section 1115 Waiver.
The federal Medicaid Managed Care regulations represent a significant development for Medicaid beneficiaries. After receiving voluminous comments from advocates, providers, and state governments, CMS issued final regulations in April 2016.
In 2011, the Florida Legislature created Part IV of Chapter 409, Florida Statutes directing the Agency to create the Statewide Medicaid Managed Care (SMMC) program. The SMMC program has two key components: the Managed Medical Assistance program (MMA) and the Long-Term Care program (not included in this Guide).
Attachment II, Exhibit II-A re: MMA Program, February 1, 2018, http://ahca.myflorida.com/Medicaid/statewide_mc/pdf/Contracts/2018-02-01/EXHIBIT_II-A_MMA_Managed_Medical_Assistance_(MMA)_Program_Feb_1_2018.pdf.
Under § 1115 of the Social Security Act, states can request authority to waive some, but not all portions of the Medicaid Act. The request is made to CMS through an 1115 Waiver request. CMS has discretion to approve or deny the waiver request, and if the Waiver is approved, the Special Terms and Conditions (also referred to as STCs) set forth the nature of CMS’ involvement and the state’s obligations throughout the waiver period.
The state’s relevant administrative rules pertaining to various covered medical services are found at Fla. Admin. Code Rule (or F.A.C.) 59G-4.010 et seq.
Also relevant is the state rule pertaining to plan disenrollment at F.A.C. 59G-8.600.
Finally, fair hearings related to Medicaid managed care are conducted by AHCA as described at 59G-1.100.
1 This document is intended to provide guidance on basic questions related to applications, eligibility, services, managed care and appeals. It does not address multiple components of the Medicaid program including, e.g. Institutional Care Medicaid, Home and Community Based Waivers, Medicare Savings Programs.
2 26 U.S.C. § 36B (c)(1)(A).
3 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII).
6 Centers for Medicare & Medicaid Services, CMS Regional Offices, (Mar. 20, 2018), https://www.cms.gov/About-CMS/Agency-Information/RegionalOffices/index.html.
7 Federal Financial Participation in State Assistance Expenditures; Federal Matching Shares for Medicaid, the Children's Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2017 Through September 30, 2018, 81 FR 80078-0, https://www.gpo.gov/fdsys/pkg/FR-2016-11-15/pdf/2016-27424.pdf.
9 42 U.S.C. §1396a(a)(10)(A); 42 U.S.C. § 1396a(e)-(f); 42 C.F.R. §435.4; 42 C.F.R. Part 435, Subpart B; 42 C.F.R Part 435, Subpart C; See CMS, STATE MEDICAID MANUAL §§3300-3493, §§3500-3596; Fla. Stat. § 409.903; Fla. Stat. §409.904.
10 42 U.S.C. §1396a(a)(10)(C); 42 CFR 435.4; 42 CFR Part 435, Subpart D; See CMS, STATE MEDICAID MANUAL §§3600-3645.6; Fla. Stat. 409.904(2); Fla. Admin. Code 65A-1.703(6).
11 42 U.S.C. §1396a(a)(10)(A)(i), Fla. Stat. Fla. Stat. § 409.903,, Fla. Code Admin. Code 65A-1.703; Fla. Admin. Code 65A-1.710 .
12 Screening for Medicaid Eligibility Under the Pickle Amendment, http://povertylaw.org/clearinghouse/pickle.
13 42 U.S. Code § 1396b(v); 42 C.F.R. §435.406(b); 42 C.F.R. § 440.255; Fla. Stat. §§ 409.902(2)(b); 409.904(4); Fla. Admin. Code R. 65A-1.301(1); Fla. Admin. Code R. 65A-1.702(c); Fla. Admin. Code R. 59G-1.050(4).
14 42 U.S.C. §1396a(a)(10)(A)(ii); Fla. Stat. § 409.904; Fla. Admin. Code R. 65A-1.710.
NOTE: The income chart is accurate in terms of numeric income levels. However, the chart’s inclusion of two columns for different disregards: i.e. the “standard disregard” and the MAGI disregard” is not technically correct. Under the federal regulation, MAGI is only one disregard. The pre-ACA “standard disregard” was essentially incorporated into the eligibility standards when Florida and other states converted to MAGI and established new eligibility levels.
20 42 C.F.R. § 435.603(e); 26 U.S.C. § 36B(d)(2)(B); See 26 U.S. Code § 911 (citing exclusions which are added back in for MAGI under 26 U.S.C. § 36B(d)(2)(B)(i)). What to Include as Income, https://www.healthcare.gov/income-and-household-information/income/.
23 42 C.F.R. § 435.603(e).
25 As of the date of publication of this Guide, Florida has not yet amended the state administrative rules to conform to the federal regulation. Compare Fla. Admin. Code R. 65A-1.702, .703, .704, .705, .707, .708, .716 with 42 C.F.R §435.603(d)-(f).
26 Fla. Admin. Code R. 65A-1.710, see also SSI RELATED MEDICAID PROGRAMS FACT SHEET at 6-7, http://www.dcf.state.fl.us/programs/access/docs/ssifactsheet.pdf.
27 Fla. Admin. Code R. 65A-1.716(5)(a).
28 Fla. Admin. Code R. 65A-1.712.
29 Fla. Admin. Code R. 65A-1.712(1)(a); SSI-Related Programs - Financial Eligibility Standards: April 1, 2018, https://www.dcf.state.fl.us/programs/access/docs/esspolicymanual/a_09.pdf.
30 20 C.F.R. § 416.1201(a).
32 “Consider the resource value of a life insurance policy to be its cash surrender value (CSV), not its face value (FV).” SSA, POMS, SI 01130.300 C.1 (November 14, 2013).
33 “If an individual (claimant, recipient, or deemor) has legal authority to revoke or terminate the trust and then use the funds to meet his food or shelter needs, or if the individual can direct the use of the trust principal for his or her support and maintenance under the terms of the trust, the trust principal is a resource for SSI purposes. Additionally, if the individual can sell his or her beneficial interest in the trust, that interest is a resource.” SSA, POMS, SI 01120.200 D.1.a. (Dec. 11, 2013); This Guide is not addressing other resource related provision including e.g. special needs trusts.
34 20 C.F.R. § 416.1201(a)(1).
35 8 U.S.C. §1641(b); Fla. Stat. 409.902(2); DCF Policy Manual § 1430, § 1440.
36 8 U.S.C. § 1613(a); 42 C.F.R. § 435.406 (a)(2).
37 42 U.S.C. § 1396b(v)(2)‐(3); 42 C.F.R. § 435.406(b); 42 C.F.R. 440.255; Fla. Stat. § 409.902(2); Fla. Admin. Code R. 59G-‐1.050(4).
39 8 U.S.C. § 1613(a); 8 U.S.C. § 1641; Fla. Stat. § 409.902(2).
Manual §1430.0300; DCF Policy Manual § 1440.0300.
the residency requirement. Residency is not contingent on the length of the stay. If the individual/household states an intent to return but has no plans to do so in the foreseeable future, they can be considered a resident of Florida. Residency does not exist if the evacuee states they are temporarily staying in Florida and have plans to return to Puerto Rico; and, therefore the individual/household is not eligible for Medicaid. All other financial and technical criteria must be met when determining eligibility for Medicaid."
435.910. Note: The federal regulation policy allows for an exception based on a “well established religious objection,” 42 C.F.R. § 435.910(h); the state rule allows for ”good cause “ failure to provide SSN Fla. Admin. Code R. 65A-1.302 (3); however the DCF program manual does not provide for any exceptions. See 1430.0200; 1430.0204.
46 42 U.S.C. § 1396d (r )(5); Fla. Admin. Code R. 65A-1.702(6).
47 Fla. Admin. Code R. 65A-1.702(5).
48 42 U.S. C. § 1396a(a)(34); 42 C.F.R. § 435.914, Fla. Admin. Code R. 65A-1.702(2)(9).
50 See, Schweiker v. Gray Panthers, 453 U.S. 34, 36-37 (1981).
53 42 C.F.R. §435.911(a)(1); Fla. Admin. Code R. 65A-1.205(1)(b).
54 Fla. Admin. Code R. 65A-‐1.205, 42 U.S.C. §18083; 42 U.S.C. §1396w–3; Frequently Asked Questions, Department of Children and Families, http://www.myflfamilies.com/service-programs/access-florida/faq.
55 42 C.F.R. §435.911(a)(1); Fla. Admin. Code R. 65A-1.205(1)(b).
57 See, Pond v. Dep't of Health & Rehab. Servs. Dist. 7, (Fla. Dist. Ct. App. 1987(where "a caseworker is presented with specific and revealing information regarding the applicant's eligibility for benefits, that caseworker has an affirmative duty under 45 C.F.R. § 206.10(a)(2)(i) to inform that applicant at least orally of the conditions relevant to her eligibility.
58 See, Kurnik v. Department of Health and Rehabilitative Services, 661 So. 2d 914 (Fla. Dist. Ct. App. 1995)(holding that the Appellant’s right to apply for Medicaid and have her application processed in timely fashion was “inexplicably and inexcusably delayed” by the agency. The court stated that the appellant's "experience with that agency was characterized by no information, misinformation, unanswered letters, unreturned phone calls, unfulfilled promises, and classic bureaucratic runaround the sum total of which amounted almost to studied indifference if not purposeful neglect on the part of the agency."
60 Fla. Admin. Code R. 65A-1.205(1)(b).
61 Fla. Admin. Code R. 65A-2.042.
62 42 C.F.R. §435.541(c) (2)-(4).
64 Fla. Admin. Code Rule 65A-1.704(1); 42 CFR § 435. 916.
65 42 CFR § 435. 916.
69 U.S. CONST. amend .XIV, § 1; 42 U.S.C. §1396a(a) (3); 42 C.F.R. §§ 431.200-431.246; Fla.
Admin. Code R. 65-2; .Goldberg v. Kelly, 397 U.S. 254 (1970).
73 42. C.F.R. § 431.220 (b).
74 42 U.S.C. § 1396d(r)(5).
75 42 U.S.C. § 1396d(a).
77 As discussed in the Guide’s Section on Medicaid Managed Care, virtually all Florida Medicaid recipients are enrolled in a managed care organization (MCO). Thus, they receive their services through the MCO. The services both mandatory and options which are covered under Florida’s Managed care plan contracts are listed in the Appendix.
82 42 U.S. C §1396a(a)(10)(B)(i); 42 C.F.R. §§ 440.230(c), 440.240(b)(1).
83 K.G. ex rel. Garrido v. Dudek, 981 F. Supp. 2d 1275 (S.D. Fla. 2013), aff’d in part and modified in part, 731 F. 3d 1152 (11th Cir. 2013)(Court entered declaratory judgment finding that AHCA’s rule excluding coverage of any behavioral treatments for children with certain diagnoses, including autism violated Medicaid comparability requirements. Court of Appeals ordered that previously unpublished Declaratory Judgment, including ruling on comparability not addressed in the permanent injunction, be published. ).
85 42 C.F.R. § 1396a(a)(25)(C); 42 C.F.R. § 447.15, 447.20 ;Fla. Admin. Code R. 59G-1.050 (c)(8).
86 42 C.F.R. § 440.230.
88 Fla. Admin. Code R. 59G-‐1.010, Definitions Policy, section 2.83 at 7.
89 42 U.S.C. § 1396d (r )(5)(1); AHCA’s website specifies the state’ s schedule for health checkups at the following website, which also specifies that Florida follows the Bright Futures/ American Academy of Pediatrics recommendations. http://ahca.myflorida.com/medicaid/childhealthservices/chc-up/index.shtml.
90 42 U.S.C. § 1396d (r )(2)-‐(4); https://www.aap.org/en-us/professional-resources/practice-transformation/managing-patients/Pages/Periodicity-Schedule.aspx.
92 42 U.S.C. § 1396d (r )(5).
No time limits, like hourly or daily limits.
95 42 U.S.C. § 1396a(a)(43).
96 Sec. 1115 of the Social Security Act allows the Secretary of HHS to waive some requirements of the Medicaid Act so that states can test novel approaches to improving medical assistance for low-income people.
99 Fla. Stat. §409.972, AHCA Model Contract, Attachment II at 47-8, Section III. A. 2.
100 AHCA Model Contract, Attachment II at 47-8, at 48, Section III A. 3.
101 Services covered by MMA plans, See Appendix at 1.
102 See Fla. Admin. Code R at 59G-4.013-59G-4.330; AHCA Model Contract, Attachment II, Exhibit II-A at 9-51.
104 Model Contract, Attachment II, Exhibit II-A at 56-62.
110 42 C.F.R. § 438.400(b); Fla. Admin. Code 59G-1.100(2)(b) (definition of “adverse benefit determination”).
111 42 C.F.R. § 438.402(c)(2); Model Contract, SMMC, section IV, (C)(4)(a).
112 42 C.F.R. § 438.402; Fla. Admin. Code R. 59G-1.100 (3)(b)1; Model Contract, SMMC, at 86 Section IV, (C)(4)(a).
113 42 C.F.R. § 438.402 (c)(1)(A); 42 C.F.R. § 438.408(c)(3); Fla. Admin. Code R. 59G-1.100 (3)(b)2-3.
114 42 C.F.R § 438.10, Fla. Admin. Code R. 59G-1.100(2)(t); http://www.fdhc.state.fl.us/medicaid/statewide_mc/smmc_plan_comunications_archive.shtml, linking to a February 24 Policy Transmittal requiring that plans use a template notice. (available on the FLAdvocate Health Law website. https://www.fladvocate.org/healthandsenior/).
115 42 C.F.R. § 438.404(c).
116 42 C.F.R. § 438.410; Model Contract, Attachment II, Exhibit II Core Contract Provisions at 88, Section IV.C.5.m.
117 Model Contract, Attachment II, Exhibit II Core Contract Provisions at 87, Section IV, C. 5. B. (2); see also 42 C.F.R. § 438.406(b)(3).
118 42 C.F.R. § 438.406.
119 Model Contract, Attachment II, Exhibit II Core Contract Provisions, at 86, Section IV.C.4.b.; see also, 42 C.F.R. § 438.406 (b)(1).
120 Fla. Admin. Code R. 59G-1.100 (4).
121 Model Contract, Attachment II, Exhibit II Core Contract Provisions, at 91, Section IV. C.6.i.. 42 C.F.R. § 438.420.
122 Model Contract, Attachment II, Exhibit II Core Contract Provisions, at 91, Section IV. C.5.h; Section IV. C.6.k. see also 42 C.F.R. § 438.420(d).
123 42 C.F.R. § 438.406(b)(4)(5); compare Model Contract, Attachment II, Exhibit II Core Contract Provisions, Section IV.C. 5.d. at 87. (contract includes all of the provisions in federal regulation except the right to review of medical records and file free of charge).
124 Fla. Admin. Code R. 59G-1.100 (13).
125 Sample discovery is available on the FLAdvocate Health Law website. https://www.fladvocate.org/healthandsenior/.
126 Model Contract, Attachment II, Exhibit II Core Contract Provisions, Section IV C. 5,6; 42 C.F.R. 438.408.
127 See Appendix 2, AHCA chart of Filing and Resolving Time Frames.
128 42 C.F.R. § 438.408(e); Model Contract, Attachment II, Exhibit II Core Contract Provisions, at 89 Section IV. C. 6.n.