STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DESTINY SMITH,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 00-4539

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in Lake City, Florida, on December 14, 2000, before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Destiny Smith, pro se

27619 25th Place

Branford, Florida 32008

For Respondent: Lucy Goddard, Esquire

Department of Children and Family Services

Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services (Department) failed to immediately provide Destiny Smith with the developmental services to which she is entitled.

PRELIMINARY STATEMENT

On May 4, 2000, Petitioner applied to the Department for developmental services. It was determined that she was eligible on July 11, 2000. On October 11, 2000, the Department rejected her request on the basis of lack of funds. Despite the words of rejection contained in the letter, she has been placed on a waiting list and may ultimately be provided the requested services. In any event, on October 17, 2000, Petitioner requested a formal administrative hearing. Petitioner was assisted at the hearing by her stepmother, Kathleen Smith.

The Department provided the testimony of James W. Smith, Adult and Development Services Program Administrator, and Brad Letu, Human Services Counselor III. The Department offered eight exhibits which were accepted into evidence. Kathleen Smith testified on behalf of her stepdaughter. Petitioner did not offer any exhibits.

A Transcript of the hearing was filed with the Division of Administrative Hearings on December 22, 2000. The Department timely filed a Proposed Recommended Order which was considered in the preparation of this Recommended Order. No proposed recommended order was received from Petitioner.

FINDINGS OF FACT

1. For the period July 1, 1998 through June 30, 2003, the Health Care Financing Administration (HCFA), Region IV, of the

   U.S. Department of Health and Human Services, by agreement with the State of Florida, has agreed to permit the Department to provide services in a home and community-based setting to persons diagnosed with mental retardation or developmental disabilities. This was allowed as an alternative to receiving services in an institutional setting. It is referred to as the Home and Community-Based Services Waiver Program, or less formally, the "waiver" or "waiver program."

2. The waiver provided that in "year three" of the program, 25,945 persons would be served, should the Florida Legislature appropriate sufficient funds to serve that number. If the appropriation is insufficient, then fewer persons will be served. Fiscal year 2000-2001 is "year three."

3. Florida has elected to serve the number of individuals funded by the Florida Legislature, up to the number listed in the waiver agreement with HCFA, in fiscal year 2000-2001.

4. Historically, all individuals eligible for developmental services have not received them because of insufficient funding. The Florida Legislature, when providing funding for this program in 1999, established priorities in the

   1999-2000 General Appropriations Act, through the use of proviso

   
   

   language.

   
   

   Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements; and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan.

   
   

5. The Department implemented the 1999 appropriation for fiscal year 1999-2000 by promulgating a spending plan that directed the Department's districts to provide services to 15,984 persons pursuant to the priorities set by the Florida Legislature.

6. The 2000 Florida Legislature appropriated funds to serve an additional 7,377 persons for a total of 23,360. This appropriation contained proviso language which was identical to that found in the 1999 General Appropriations Act. An addition to the proviso, however, stated that, "The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments."

7. The Department implemented the 2000 appropriation by promulgating a spending plan that continued the previous year's spending plan. This plan stated that individuals who are new to

   the system after July 1, 1999, would only be served after those on the original waiting list are served, unless they have been determined to be in crisis pursuant to a crisis assessment tool.

8. Petitioner applied for the general revenue individual and family support program. This program is in the category of "non-Medicaid covered services."

9. The Department determined that Petitioner was eligible for developmental services on July 11, 2000. However, the Department further determined that Petitioner did not presently qualify for funds appropriated for fiscal year 2000-2001 because she became eligible after July 1, 1999, and because the program she sought was one which the Florida Legislature determined should be funded at the previous year's level.

10. The crisis assessment tool is used to identify individuals who are in crisis situations. A crisis situation occurs when there is a court order mandating care; when there has been a determination that an individual is dangerous to himself, herself, or others; where there is abuse or neglect; where the person is homeless; when the person's caregiver can no longer provide for the person; or in other situations where there is a need to ensure the individual's safety and security.

11. Petitioner does not meet any of the criteria on the crisis identification tool. As a result, she is not eligible for immediate service.

12. At the time of the hearing there were individuals who were on the waiting list who were determined to be eligible prior to July 1, 1999 who have not yet been served. Only after those individuals are served can the persons eligible after July 1, 1999, be served. Petitioner may ultimately be provided developmental services, but this cannot occur until funds are available to the Department for that purpose.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

14. The burden of proof in this case is on the Petitioner.

    
    

    Florida Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778

    
    

    (Fla. 1st DCA 1981). In order to prevail, Petitioner must prove her case by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes.

15. Chapter 393, Florida Statues, provides a scheme for addressing the needs of developmentally disabled persons in the state.

16. Section 393.066(4), Florida Statutes, provides that the Department's provision of developmental services is limited by the availability of funds.

17. Consistent with the Legislature's proviso language in the 1999 and 2000 General Appropriations Act, the Department

established priorities in the FY 1999-2000 Spending Plan. This plan was reiterated for fiscal year 2000-2001 in a departmental memorandum dated May 22, 2000. The spending plans set forth a lawful method of deciding priorities for receipt of services, and in particular, provided that those who applied first would be served first, unless a crisis situation was extant.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Department enter a final order finding that the Petitioner is not entitled to receive developmental services until the Department determines that funds are available for that purpose.

DONE AND ENTERED this 8th day of January, 2001, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2001.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Children and

Family Services

Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602

Destiny Smith 27619 25th Place

Branford, Florida 32008

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-004539

Orders for Case No: 00-004539