STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD SHAMBO, )

)

Petitioner, )

vs. ) CASE NO. 93-4617

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal telephone conference hearing in the above-styled case on January 26, 1994. All parties were present in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Richard E. Shambo

125 Cooper Drive

Santee, South Carolina 29142

For Respondent: Karen Miller

District Legal Counsel Department of Health and

Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES

The central issue in this case is whether the fee charged to Petitioner should be reduced.

PRELIMINARY STATEMENT

This case began on January 13, 1993, when the Department of Health and Rehabilitative Services (Department) issued a letter notifying Petitioner that his request to reduce the fee for Linda Shambo had been denied. Thereafter, Petitioner requested a review of the decision, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on August 19, 1993.

At the hearing, Petitioner testified on his own behalf and presented financial records which have been marked and received into evidence as Petitioner's Composite Exhibit 1. Cora Perry and Sally Stewart testified on behalf of the Department. A transcript of the proceeding has not been filed.

FINDINGS OF FACT

1. Petitioner, Richard Shambo, is the legal guardian for Linda Shambo.

   
   

2. Linda Shambo is a "client" as defined in Section 402.33(1)(b), Florida Statutes, and has been assessed a fee in the amount of $286.00 per month by the Department.

   
   

3. Such fee is paid by the Petitioner as the client's guardian. Petitioner manages the client's financial resources.

   
   

4. The client resides in a group home, an intensive care level 3 facility, for which the monthly charge is $633.00. No dispute was made as to the appropriateness of that charge.

   
   

5. The fee which has been assessed in this case is equal to the monthly charge less the client's reimbursements from other sources (e.g. Social Security benefits).

   
   

6. The Department's Fee Collection Review Committee met on January 8, 1993 to review the fee assessed for this client. Such committee denied Petitioner's request for a reduction in fee and advised him of his right to an administrative review of that decision.

   
   

7. The client's income over the last few years has declined due to lower interest rates. According to Petitioner, if the assessed fee is not reduced from $286 to $250 per month, the client will have insufficient income to cover the assessment. As a result, the client's principal will be reduced to cover the difference. Such testimony has been deemed credible and has not been challenged by the Department.

   
   

8. No argument as to the appropriateness of other expenditures made on behalf of this client has been raised. Accordingly, it is found that the client's income less such appropriate expenses is insufficient to yield a disposable income sufficient to cover the fee assessed by the Department.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Section 402.33, Florida Statutes, provides, in pertinent part:

    
    

    (2) The department, in accordance with rules established by it, shall either charge, assess, or collect, or cause to be charged, assessed, or collected, fees for any service it provides to its clients . . .

    * * *

    (4) The department shall:

    1. At least annually, determine or establish the cost of providing services for which charges will be made.

       (6)(a) The department may not require a client or responsible party to pay fees it may assess that exceed the client's or responsible party's ability to pay. Such ability to pay

       shall be based upon the income of the client

       or responsible party, including any inheritance or bequests he may receive, and shall be determined according to uniform criteria and rules adopted by the department, unless the amount of the fee is specifically established by statute. The department shall assess the effects upon clients, responsible parties, services, and revenues of determining the ability to pay based upon:

       1. The client's or responsible party's gross income, the number of persons dependent on that income, and the number of such persons who are clients;

          * * *

          (7)(a) The department shall by rule establish procedures of clients or responsible parties to request a review of assessed fees. Further, the department shall advise such clients or responsible parties of the criteria which are used to make determinations on requests for reduction or waiver of fees.

    2. If the department denies a request for a fee reduction or waiver, it shall inform the client or responsible party of his right to appeal the decision pursuant to the provisions of chapter 120. (Emphasis added)

    
    

11. Rule 10-6.014, Florida Administrative Code, (which cites Section 402.33, Florida Statutes, as its authority) provides:

    
    

    The department shall:

    1. At least annually, determine or establish the cost of providing services for which charges will be made, and

    2. Annually review uniform criteria for determining ability to pay or participate in the cost of service. The uniform criteria is described in rules 10-6.019 and 10-6.020 of this chapter.

       
       

12. Rule 10-6.019, Florida Administrative Code, provides, in pertinent part:

    
    

    1. Upon submission of the financial information required by this chapter, or the court order for clients in short term placement, the department shall compute the fee according to the fee formula as found in rule 10-6.020

       or fee schedule as found in subsection (3), or assess the Court ordered payment.

    2. Fees for residential services charged to clients with no dependents shall be based on the fee formula in Rule 10-6.020.

       * * *

       (5) If the department makes any retroactive adjustment on the basis of additional financial information the department may:

       1. Refund payors for overpayment of fees;

       2. At the payor's option, offset overpayments against future billings; or

       3. Bill the payor for any underpayments.

       
       

13. Rule 10-6.020, Florida Administrative Code, entitled "Fee Formula for Residential Services for Adult Clients with No Dependents" provides, in pertinent part:

    
    

    1. Contingent upon the satisfactory completion and submittal of the Financial Information Form, the client will be assessed a fee based on the ability to pay, determined according to the following formula:

       1. Gross income less normal payroll deductions for social security and income tax equals net income.

       2. Net income less fixed and other allowable expenses equals disposable income.

    2. The residential fee is the lower of:

    1. The client's disposable income after providing for a personal allowance in accordance with rule 10-6.018.

    2. The cost of care less reimbursements from other sources.

    
    

14. Rule 10-6.022, Florida Administrative Code, provides, in part:

    
    

    1. A client or responsible party may request a review of the fee if they do not agree with the assessment.

       * * *

       1. The department shall inform persons requesting a review of the fee assessed of the criteria used to evaluate such requests, as follows:

          1. Each member of a family unit, including the client, is entitled to receive the benefits of an equitable share of the family's income.

          2. The fee assessed shall not cause the family to be unable to purchase directly medical or dental treatment or other services prescribed in the client's habilitation, rehabilitation, or treatment plan.

          3. The department shall not be expected to accept payment for residential services which is less than the cost of caring for the client at home, except for a family with insufficient income to meet basic needs.

          4. A client or responsible party shall not expect to increase his net worth by diverting income to savings or investment in preference to reimbursing the department for the fee assessed.

          5. The payment of the assessed fee shall not force the family members remaining at home to live on an income which would qualify them for public assistance.

          6. Resources available for payment of the assessed fee for residential services shall not be diverted for expenditures which would not be possible if the client lived at home.

          7. The fee assessed shall not cause the family to be unable to visit or otherwise be actively involved in the rehabilitation of the client.

       
       

15. In this case, the Petitioner has established that a reduction in fee is appropriate. The statute and rules noted above establish criteria for fee assessment based upon the income of the client. Accordingly, the amount of the principal may not be diverted either to avoid payment or to impair future ability to make payment. The Petitioner has invested the principal in an effort to provide for this client. Despite such efforts, due to lower interest rates and other limitations placed on the fiduciary, the income on the client's principal is insufficient to cover the total expenses expected. By reducing the fee to $250.00, absent unforeseeable developments, the Petitioner should be able to provide for the client indefinitely. If the fee assessed is not reduced and the principal amount is reduced, obviously the client's ability to pay in the future will be seriously impaired.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order granting Petitioner's request for a reduced fee.

DONE AND RECOMMENDED this 29th day of March, 1994, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4617

Neither party submitted a proposed recommended order.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard E. Shambo

125 Cooper Drive

Santee, South Carolina 29142

Karen M. Miller District Legal Counsel

Department of Health and Rehabilitative Services

111 Georgia Avenue

West Palm Beach, Florida 33401

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-004617

Orders for Case No: 93-004617