vs. ) Case No. 85-2458
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 16, 1986, in Miami, Florida.
Petitioners Audrey Lillien and Rebecca Lillien were represented by Rena K. Magolnik, Esquire, Miami, Florida, and Leo Plotkin, Esquire, Clearwater, Florida; and the Respondent State of Florida, Department of Health and Rehabilitative Services was represented by Carmen Dominguez, Esquire, Miami, Florida.
In 1983 Respondent Department of Health and Rehabilitative Services granted to Petitioners a waiver of the fee for long-term residential care provided to Petitioner Rebecca Lillien. In early 1985 Respondent Department of Health and Rehabilitative Services denied Petitioners' application for such a waiver, assessed a reduced fee, and notified Petitioners that it was seeking retroactive reimbursement of formerly-waived fees.
Petitioners requested a formal hearing seeking a waiver and/or a reduction of fees and a denial of Respondent's claim for retroactive reimbursement plus interest. At the final hearing in this cause, Respondent stipulated that it was not entitled to retroactive reimbursement or interest on those moneys.
Accordingly, the issue for determination herein is the amount of fee, if any, to be assessed against Petitioners for the residential care of Petitioner Rebecca Lillien.
Petitioner Audrey Lillien testified on her own behalf and Petitioners further presented the testimony of Lillian Johnston, Oscar Martinez, and by way of deposition Linda Berkowitz. Helen
Smith and Ellison Shapiro testified on behalf of the Respondent. Additionally, Petitioners' Exhibits numbered 1-21 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.
Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. Petitioners' proposed findings of fact numbered 1-18, 24, 25, 27, 28, 31, 38, 40-42, and 44 have been adopted verbatim or in substance. The remainder of Petitioners' proposed findings of fact have been rejected as follows: 19 as not constituting a finding of fact; 20, 21, 23, 30, 32-37, 43, and 45-50 as being immaterial; 22, 26, and 39 as not being supported as competent substantial evidence; and 29 as being subordinate to the issues in this cause.
33 have been adopted verbatim or in substance. Respondent's proposed finding of fact numbered 12 has been rejected as not being supported by competent substantial evidence, and Respondent's proposed findings of fact numbered 14 and 15 have been rejected as not constituting findings of fact but rather as constituting a recitation of the testimony.
Rebecca Lillien is a 32-year-old developmentally disabled person who was involuntarily committed to the Department of Health and Rehabilitative Services' (hereinafter "HRS") Residential Care Program.
HRS has placed Rebecca Lillien at the Lyall Group Home in Opa Locka, Florida, under the Community Residential Training program. Rebecca Lillien also attends a day training program at United Cerebral Palsy in Miami, Florida.
Under contract, HRS pays Lyall Group Home $411 per month to provide residential care (room, meals, and supervision) for Rebecca Lillien.
Rebecca Lillien's total income consists of Social Security survivor's benefits and Supplemental Security Income (hereinafter "SSI") disability benefits totaling $345 per month. The SSI Program is a federal welfare program administered by the Social Security Administration. The SSI Program provides up to
$345 per month in cash benefits to elderly, blind, or disabled persons who also meet financial eligibility requirements (income less than $345 per month and countable resources of less than
$1,600).
Audrey Lillien is the mother of Rebecca Lillien and is the representative payee of Rebecca's Social Security and SSI benefit checks.
Audrey Lillien's total income consists of Social Security and SSI benefits totaling $345 per month.
Rebecca Lillien is an adult client. She is unmarried and is considered to be a family of one since she is over the age of 18, has not been declared legally incompetent, does not have a guardian, and has no dependents. The Social Security and SSI benefits she receives are legally hers.
On February 17, 1983, HRS granted a total waiver of fees for the residential care of Rebecca Lillien at the Lyall Group Home, retroactive to July 23, 1982. At the time the fee waiver was granted in 1983, Rebecca Lillien's only income was from Social Security and SSI benefits.,
From February 1983 until March 31, 1985, HRS did not bill Audrey Lillien for Rebecca's care. During that same time period, HRS did not require the annual submission of a completed Maintenance Fee Information Form, HRS Form 280, in order to determine the continued eligibility of Rebecca Lillien, for a total fee waiver or a reduced fee.
In 1983, the Fee Collection Review Committee, in determining whether to grant a fee waiver or reduction, improperly considered personal expenses paid by parents for adult children.
Due to serious fiscal impact and budget deficits in HRS District Eleven (the district within which Rebecca Lillien resides), the Pee Collection Unit was reorganized and received training on fee collections. It was discovered at that time that the Fee Collection Unit and the Fee Collection Review Committee were not following proper procedures for assessing a fee and were misinterpreting state law. Specifically, they were not requiring that a client's income based on benefit payments is to be applied first to the cost of care and maintenance of the client.
In 1985 fee collections began to be implemented by District Eleven in a uniform manner in strict accordance with the regulations and policies of HRS. The provision that required as priority that room, board, and maintenance be offset was strictly enforced. This change in interpretation and implementation of the fee collection regulations and policies is not in violation of or contrary to any existing statute, regulation, or rule; rather, it is in compliance with the existing statutes, regulations, and rules.
In March 1985, HRS assessed a monthly fee of $295 for the care and maintenance of Rebecca Lillien. The fee was
calculated on the total income of Rebecca Lillien minus $50 personal allowance. The fee was assessed against Audrey Lillien in her capacity as representative payee.
The personal allowance is an amount of $50 given to residential care clients for personal needs such as clothing, recreation, hygiene products, and miscellaneous needs. In March 1985 the personal allowance was $40 per month, but it was increased to $50 per month as of July, 1985.
If a client's personal needs exceed $50 per month, HRS is authorized to allow $28 more per month as an incidental allowance, payable to the group home.
In March, 1985, Audrey Lillien was notified by HRS that the monthly fee for Rebecca's maintenance would be $295. HRS further notified Audrey Lillien that Rebecca was responsible for that fee retroactively and interest would be assessed on the retroactive balance. At the final hearing in this cause, HRS properly waived any claim for retroactive payment and therefore any claim for interest.
HRS is required to develop an habilitation plan each year for Rebecca Lillien. This annual habilitation plan sets forth the treatment and therapeutic objectives for the coming year based upon the needs of Rebecca Lillien. On April 3, 1985, an habilitation plan was developed for her.
The HRS team that evaluated Rebecca Lillien determined that a group home was the most appropriate placement for her.
The evaluation team also determined that Rebecca Lillien should continue regular visitation with her mother as long as it remains beneficial to her and that she should continue to participate in activities she enjoys, such as musical programs, movies, and going to restaurants.
The evaluation team further determined that Rebecca Lillien needs training in daily living skills and in self-care skills. The daily-living goal is for Rebecca to be able to verbalize and demonstrate appropriate behavior in stores, and the goals for self-care skills include grooming and the ability to independently choose pieces of clothing that coordinate. There is no mention in the habilitation plan that any items must be purchased, however. Further, the daily living skills and self- care skills are part of the training Rebecca receives at the United Cerebral Palsy Program, the cost of which is paid by HRS. It is beneficial to Rebecca for her mother to reinforce the training that Rebecca receives in the day training program so as to support her continued progress in the development of those skills.
The habilitation plan also calls for routine medical and dental care and vitamin C supplements. HRS and Medicaid pay for all medical and dental expenses of the client, including prescriptions. Rebecca Lillien is a healthy person who has good teeth and, as such, does not have extraordinary or unusual medical or dental expenses. There is no evidence that Rebecca Lillien has required any dental or medical care at all over the last several years. Petitioners did introduce one bill for a "consultation" but presented no evidence as to the reason for that consultation and, therefore, no evidence that that charge should have been incurred. Although Audrey Lillien does purchase vitamin C for Rebecca Lillien, she does not purchase any prescription drugs for her.
The habilitation plan developed on April 30, 1986, contains the same goals and recommendations as the 1985 plan.
HRS does not pay for Rebecca Lillien's clothes, personal care items, recreation needs (other than those provided by the group home), spending money, transportation to visit her mother, food, and shelter expenses not incurred at the group home, or medical and dental costs not covered by medicare or medicaid.
Audrey Lillien uses Rebecca Lillien's income to cover her own household expenses and transportation, as well as to provide Rebecca with the items enumerated in the preceding Finding of Fact.
Rebecca Lillien stays with her mother Audrey Lillien approximately every other weekend and on holidays.
Audrey Lillien purchases two different sets of clothing for Rebecca. One set is for use at the group home and the other is for use at Audrey Lillien's home. Based upon Petitioners' income and the totality of circumstances, duplication of wardrobes is excessive and unwarranted.
Rebecca Lillien has a hobby of making beaded jewelry. In a four-month period Audrey Lillien spent almost $300 on beads for Rebecca, including a total of $226 on a single day--March 6, 1986. 8ased upon Petitioners' income and the totality of circumstances, expenditures of this amount are excessive.
Audrey Lillien spends approximately $100 per month for groceries for Rebecca for the days that Rebecca is visiting her. In addition, she and Rebecca also dine at restaurants while Rebecca is visiting. Such a food expense is excessive.
Audrey Lillien claims-transportation expenses as expenses incurred on Rebecca's behalf. Audrey Lillien's testimony as to the expense of maintaining her personal automobile is conflicting, and her testimony that 98% of her automobile expenses are attributable to Rebecca's transportation is simply not credible. In view of Rebecca's regular visits with Audrey Lillien, however, allowance should be made for some reasonable expense of transporting Rebecca between the Lyall Group Home and her mother's home, with that expense being paid out of an incidental allowance.
Audrey Lillien has monthly household expenses of approximately $52 (mortgage on her condominium), $65 (condominium maintenance fee), and $100 (utilities). Her mortgage payment and maintenance fee are fixed and have no relationship to whether Rebecca is visiting. Although her utility bill may vary somewhat depending upon the frequency and duration of Rebecca's visits, no evidence was introduced to show what portion of Audrey Lillien's utilities bill might be attributable to Rebecca.
Audrey Lillien gives Rebecca Lillien $30 a month for "whatever she wants. n This amount is less than the standard personal allowance of $50 given by HRS to each of its residential clients and is, indeed, in addition to the $50 personal allowance paid by HRS.
Audrey Lillien pays for Rebecca Lillien's haircuts. These cost $8 every four to six weeks. She also pays for some special shampoo and skin cream which Rebecca needs. The evidence is unclear as to whether the shampoo and skin cream are medically required. If they are, it may be that these items should be billed to medicaid or to HRS as covered prescriptions.
Upon receiving notice in 1985 of the assessed fee of
$295 per month ($345-$50=$295), Audrey Lillien requested a review of that fee for purposes of being granted a reduction or a waiver of the fee.
The HRS Fee Collection Unit, which determines what fee is to be charged, does not have authority to assess a lower fee than the fee calculated by deducting the personal allowance from the total monthly income.
The HRS Fee Collection Review Committee may review an assessed fee and, based upon allowable expenses and other criteria, may grant a reduction or waiver of that fee. For example, the fee may be reduced or waived if the client can show severe, unusual and unavoidable expenses or obligations that warrant special consideration.
The personal need allowance of $50 per month is not sufficient to meet the personal needs of Rebecca Lillien in view of the fact that Rebecca spends a fair amount of her time residing with Audrey Lillien rather than at the Lyall Group Home where HRS pays for her support. Fifty dollars is the amount of personal allowance paid by HRS, apparently regardless of whether it is needed. However, Rebecca has unusual needs in that, as opposed to other clients, she incurs regular transportation costs between the Lyall Group Home and her mother's home, food must be purchased for her while she is at her mother's home, and her mother must pay increased utilities while she is there. HRS will pay an additional $28 a month (in addition to the $50 personal allowance) for unusual expenses. Clearly, Rebecca's food, transportation, and utility costs while at her mother's logically exceed $28 per month and Rebecca is, therefore, entitled to the extra $28 payment from HRS.
Petitioners are not entitled to a reduction in the assessed fee, however, since they have failed to prove the reasonable costs of Rebecca Lillien's unusual expenses of transportation, food, and utilities attendant to her visits with her mother.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto-and the subject matter hereof. Section 120.57(1), Florida Statutes.
Section 402.33(2), Florida Statutes, authorizes HRS to assess and collect fees for services provided to clients. Section 402.33(6)(a), Florida Statutes, requires HRS to assess a fee based upon the client's ability to pay and further requires that ability to pay be determined based upon the income of the client. In accordance with Section 402.33(7)(a), Florida Statutes, HRS has established rules regulating fee collections. Sections 10-6.10 through 10-6.24, Florida-Administrative Code, effective January 23, 1985. Benefits payments specifically designated to meet the needs of the client will first be applied to the cost of care, after providing for the personal allowance. Section 10-6.16(2), Florida Administrative Code. Additionally, an HRS manual entitled "Fee Assessment and Collection" was admitted in evidence.
Section 402.33, Florida Statutes, Chapter 10-6, Florida Administrative Code, and HRS' procedures manual clearly establish that a client is liable for maintenance fees. Rebecca Lillien is an adult, unmarried client and is therefore a one-person family. Rebecca Lillien is therefore responsible for her maintenance fee to the extent of her ability to pay. Although Audrey Lillien is
not liable for maintenance fees for Rebecca Lillien in her capacity as a parent of an adult client, she is responsible for maintenance fees in her capacity as representative payee.
Since Rebecca Lillien's income is derived from Social Security and SSI payments, federal regulations regarding the expenditure of those funds also apply. Section 404.2040, 20CFR Ch. 111, regulates the use of benefit payments and provides as follows:
Current maintenance. We will consider that payments we certify to a representative payee have been used for the use and benefit for the beneficiary if they are used for the beneficiary's current maintenance. Current maintenance includes costs incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.
* * *
Institutional care. If a beneficiary is receiving care in a Federal, State, or private institution because of mental or physical incapacity, current maintenance includes the customary charges made by the institution, as well as expenditures for those items which will aid in the beneficiary's recovery or release from the institution or expenses for personal needs which will improve the beneficiary's conditions while in the institution.
HRS relies upon its fee collection manual (although it has not been shown that the manual has been adopted by rule) and upon Sections 10-6.01 through 10-6.09, Florida Administrative Code, which rules were repealed effective January 23, 1985, in support of its arguments. Although the rules no longer so require, the rules previously in effect did provide that the review committee could take into consideration unusual, severe and unavoidable expenses or obligations which substantially reduce a client's ability to pay and which warrant special consideration in either assessing a reduced fee or in granting a waiver of fee. The evidence in this cause indicates that it is still the practice of HRS to evaluate requests for waiver or reduction on a case-by-case basis taking into account severe or unusual circumstances. Those circumstances would, of course, have to be proven by the client seeking such a reduction or waiver since only the client is in a position to know the
client's income and expenses and special circumstances which should be taken into account.
In this cause, Audrey Lillien on behalf of Rebecca Lillien has-proven only that Rebecca's moneys have been spent for Rebecca's "wants" and not for Rebecca's needs." Further, the moneys that have been expended on Rebecca are unreasonable and excessive; therefore, they fail to prove any reasonable needs which Rebecca has which are not being met. For this reason, Rebecca Lillien is not entitled to a waiver of fee since it is clear that she has the ability for a goodly portion of her own care and maintenance. The only evidence regarding unusual expenses involves the fact that she does visit frequently with her mother and is therefore entitled to transportation costs to and from the Lyall Group Home and further is entitled to some reimbursement for the food provided to her when she is visiting . her mother. Petitioners' failure to present any evidence as to the reasonable cost of these items results in the failure of Petitioners to prove any entitlement to a reduction of the assessed fee. The evidence is, however, sufficient to indicate that the $28 incidental allowance which HRS can pay in addition to the regular $50 a month personal allowance is required to meet Rebecca's unusual expenses created by her visitation with her mother, an activity recommended in her habilitation plan.
Petitioners argue that this case involves an attempt by HRS to revoke a fee waiver. Petitioners' argument is simply not supported by the applicable statutes and rules. The Department is required to review a client's ability to pay, and to establish the cost of providing services for which charges will be made, on an annual basis. Section 402.33(4), Florida Statutes; Section
10-6.14, Florida Administrative Code. Likewise without merit is Petitioners' argument (which appears to be somewhat in the nature of an estoppel argument) that since HRS District Eleven did not previously apply the law correctly when it granted a waiver of fee, then HRS cannot correctly apply the law now. Such an argument bears little discussion. Suffice it to say, that the evidence is clear that there has not been a change in policy or a change in the law there has simply been an acknowledgment that personnel in District Eleven were taking into account factors not authorized by statute or rule in granting waivers of fee and that compliance with the law is now being required.
It should be noted that Audrey Lillien's failure to prove that Rebecca Lillien is entitled to a waiver of fee or a reduction in fee only applies to the fee being established now for Rebecca's care and maintenance at the Lyall Group Home.
There is a statutory requirement that the Department revisit the cost of providing services for which charges will be made and the criteria for determining ability to pay on an annual basis.
Further, HRS employees testified that the Maintenance Fee Information form, HRS Form 280, must be completed annually, since the information contained thereon is used to compute the amount of fee to be assessed against a client.
As specifically set forth in the Findings of Fact section of this Recommended Order, HRS waived its claim to retroactive reimbursement plus interest for the time period preceding April, 1985. The delayed final hearing in this de novo proceeding would have the effect of making Audrey and Rebecca Lillien once again subject to retroactive reimbursement if HRS is permitted to assess the fee for the care and maintenance of Rebecca Lillien as of April, 1985. Not only would such result be inequitable but it would also result in a hardship which most likely would prevent visitation between Rebecca and Audrey Lillien, contrary to the requirements of Section 10-6.22(4)(g), Florida Administrative Code. Simply stated, Rebecca and Audrey each have gross incomes of only $345 per month, and there are no funds available to pay a retroactive billing. For this reason the assessed fee of $295 should become effective only upon entry of the Final Order in this cause.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Rebecca Lillien's request for a waiver of fee; assessing a fee of
$295 per month, effective upon entry of a Final Order in this cause; and granting to Rebecca Lillien the sum of $28 per month as an incidental allowance in addition to the $50 per month standard personal allowance to assist in the unusual expenses related to her visits with her mother, effective upon entry of a Final Order in this cause.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1986.
Rena R. Magnolnick, Esquire 2138 Biscayne Boulevard
Rehabilitative Services 2200 N.W. 7th Avenue Miami, Florida 33127
Leo PloLkin, Esquire 2085 U.S. 19 North
