vs. ) Case Nos. 02-1238
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on May 20, 2002.
The issue is whether Petitioner and her family are entitled to services on account of her developmental disability.
By letter dated January 25, 2002, Respondent advised Petitioner that it was denying her request for speech therapy, respite care, and personal services. The letter explains: "your request cannot be granted within the limits of the Department's appropriated general revenue funds unless an individual is in crisis as determined by the application of the Department's Crisis Identification Tool. Using the Crisis Identification Tool to assess your situation, the Department finds that you are not in crisis." The letter adds that, under the circumstances, Section 393.13(2)(c) and (d), Florida Statutes, prohibits Respondent from spending funds in excess of its appropriation.
By Developmental Disabilities Hearing Request filed March 18, 2002, Respondent documented its "denial of participation in the Developmental Services Home & Community
Based Services Waiver. Denial of Speech Therapy, Respite care & personal services. Client requesting both hearings." The Developmental Disabilities Hearing Request states that Petitioner sought "Medicaid Waiver" and "General Revenue" benefits from Respondent.
Petitioner requested a hearing on this denial of benefits and thus commenced DOAH Case No. 02-1238.
By letter filed March 18, 2002, Respondent advised Petitioner that it was denying her request to participate in the "Developmental Services Home and Community-Based Services waiver." Citing 42 Code of Federal Regulations Section 441.303(f)(6), the letter explains: "the Department does not have adequate funds available (and an available opening) both to meeting the existing obligations set forth in the spending plan approved by the Florida Legislature and to serve you on the waiver as you have requested. Instead, you have been placed on a waiting list for a waiver." The letter advises that Petitioner may request a "fair hearing," pursuant to 42 Code of Federal Regulations Section 431.200, to contest Respondent's "denial of your participation on the waiver."
Respondent filed the same Developmental Disabilities Hearing Request as it did in the other case. Petitioner requested a hearing on this denial of benefits and thus commenced DOAH Case No. 02-1241.
At the hearing, Petitioner called one witness and offered into evidence no exhibits. Respondent called one witness and offered into evidence three exhibits: Respondent Exhibits 1-3. All exhibits were admitted. The Administrative Law Judge left the record open for Respondent to file an exhibit of Legislative proviso language approving a prioritization schedule for the provision of services. By Notice of Filing dated July 3, 2002,
Respondent filed on July 8, 2002, the documents contained in the notice, and the Administrative Law Judge accepts these documents as additional exhibits in these cases.
The parties did not order a transcript. On June 13, 2002, Respondent filed a letter containing Proposed Findings of Fact. Petitioner did not file a proposed recommended order.
Petitioner was born on September 8, 1981. Seven years ago, she suffered a severe brain injury as a result of five hours of diabetes-induced seizures resulting from low blood sugar. The incident left Petitioner in an entirely dependent state. Presently, at 20 years old, Petitioner has the intellectual development of a two-year-old and requires constant care, seven days a week, 24 hours a day.
Petitioner's present condition actually represents a marked improvement from her condition immediately after the seizures and brain injury. Declining to institutionalize Petitioner, her parents have provided the care that Petitioner has needed to regain her abilities to walk and talk (with considerable difficulty) and to use her arms and hands. Despite these dramatic developments, Petitioner still requires as much care as she required immediately after the injury; she cannot, for example, feed herself or maintain continence.
Behaviorally, Petitioner presents a considerable challenge due to her nonexistent impulse control and tendency toward explosive outbursts. At 5 feet, seven inches tall and
200 pounds, Petitioner is strong, and she is capable of attacking with unmediated force. Petitioner's father, who is 48 years old, is six feet, one inch tall and weighs 350 pounds. Her mother, who is 42 years old, is at least the size of Petitioner. When infuriated, Petitioner can physically overpower her parents, as well as her 18-year-old and 22-year- old siblings--all of whom have suffered injuries from Petitioner's attacks. Petitioner's father has suffered cellulitis at the site of an injury that he sustained from one of his daughter's attacks.
Petitioner has a very limited attention span and frustrates easily. She does not like being closed in, and, when upset, she strikes out. In addition to attacking her caregivers, Petitioner has damaged property in her outbursts. Her father estimates that Petitioner has broken seven motor vehicle windshields--sometimes while the vehicle was in operation.
Several times a day Petitioner becomes agitated and engages in physical outbursts. Managing Petitioner's unpredictable and dangerous behavior has placed considerable demands on her parents. Petitioner's father is the senior
pastor of North Palm Baptist Church in Miami. Petitioner's mother is an administrative assistant to the Director of Missions of the Miami Baptist Association. Each weekday during the school year, Petitioner leaves home at 6:00 a.m. to ride a bus to her special school, and she returns by bus at 3:30 p.m. Her father must cut short his workday to meet the school bus each afternoon.
For respite care, Petitioner's parents seek the assistance of a person capable medically of supervising Petitioner's severe diabetes, such as administering her injections, and capable physically of handling Petitioner's disruptive behavior. Petitioner's father normally sleeps near Petitioner, who wakes up every time her covers come off, which may happen 75 times a night. The intensive, unending care that Petitioner's parents have had to provide their daughter has caused them great stress.
For speech therapy, Petitioner's parents seek assistance to remediate Petitioner's extensive verbal deficits. For two years after the incident, Petitioner was nonverbal. Her ability to articulate has slowly improved, but she remains nonverbal at school.
For personal services, Petitioner's parents seek the assistance of a person to meet Petitioner when she gets off the bus from school, give her a snack, bathe her, and attend her
until her parents come home from work. This person must have the physical capability of ensuring that Petitioner does not injure herself or others during one of her frequent and unpredictable outbursts.
Petitioner and her parents moved to Florida from South Carolina in July 2000. Within a month, Petitioner had applied for developmental disability services. However, Petitioner has not been able to obtain general revenue-funded services or Home and Community-Based Waiver services funded by Medicaid.
In rejecting Petitioner's request for services, Respondent has relied on two documents: "Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions" (Spending Plan) and "Developmental Disabilities Program Crisis Identification Tool-- revised 9/2001" (Crisis Identification Tool). Respondent also relies on testimony that Petitioner lacks the funds to provide developmental disability services to all applicants. Although Respondent does not dispute that Petitioner otherwise qualifies for the developmental disability services that she seeks--from both programs--Respondent contends that she does not qualify under the Spending Plan and related documents, which Respondent contends it must apply due to the lack of funds.
The Spending Plan states in part:
By June 30, 2001, [Respondent] expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver).
. . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, [Respondent] will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . .
* * * Spending Plan priority for FY 01-02:
Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001.
Cramer v. Bush class members--estimated
20 persons who will be served upon request, throughout the fiscal year.
Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year.
Persons discharged from the Mentally Retarded Defendant Program.
Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client.
In order to serve the estimated 6,774 individuals who are projected to want and need Waiver serves during FY 01-02, enrollment on the Waiver will be phased in as described above.
Compliance with the Spending Plan
Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited.
Personal Care Assistance Services
As required by Medicaid regulations, [Respondent] must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan.
Provision of Waiver services must also comply with federally approved service definitions.
Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan
must receive the service through this funding.
[The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.]
New requests for personal care assistance will be assessed first to determine whether Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description.
* * *
Require Use of Waiver Funding, where available
Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver- funded services, but who have refused services funded through the Waiver.
Some people who are eligible have rejected services funded through the Waiver. [Respondent] will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice.
Maximize Federal Funding
Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception.
* * *
The legislative proviso language supplied after the hearing by Respondent consists of selections of "Conference Report on SB 2000: General Appropriations for 2001-02--May 1, 2001." The relevant portion states:
Funds in Specific Appropriations 374 and 377 are intended to provide Home and
Community-Based Services Waiver Services in accordance with a spending plan developed by [Respondent] and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with [Respondent's] policy for serving persons on the waiting list.
Two other, related documents are relevant. The Crisis Identification Tool identifies several categories of crisis. The first category is a criminal court order. The second category is a danger to self or others, which requires a current exhibition of "behaviors that":
result in harm to the person or others that, in turn, creates a life-threatening situation for the person or others or
will result in bodily harm to the person or others that will require emergency medical care from a physician if services are not provided immediately.
The other categories are "confirmed abuse/neglect," "homeless[ness]," "caregiver unable to give care," and "health
issues." Under the unable-caregiver category, the Crisis Identification Tool adds:
The individual's current caregiver is expressing extreme duress, is no longer safely able to provide care for the individual due to advanced age, illness or injury and the individual is in immediate need of services in order to remain living with the caregiver or to locate an alternative living arrangement. . . .
The remainder of the Crisis Identification Tool warns applicants that there is a waiting list for services in the Waiver program, even for those applicants classified as in crisis.
Developmental Disabilities Program Policy Directive PD#01-07, issued September 25, 2001 (Policy Directive), confirms this warning when it warns: With 2001-02 appropriations and the Spending Plan, "[Respondent] will have funding to enroll up to a total of ten persons per month statewide on the Waiver, who are in crisis." Noting that the Crisis Identification Tool will remain in effect until June 30, 2002, the Policy Directive emphasizes that "[t]his policy will clarify the procedures used in determining the ten crisis cases per month statewide in accordance with the 2001-2002 Spending Plan."
The Policy Directive describes the procedures for completing and examining a Crisis Identification Tool. The Policy Directive notes that, for applicants posing a danger to self or others, the District's behavioral analyst, local review
committee chair, or other appropriate behavior analysis professional must review the Crisis Identification Tool and make a recommendation. After completing its tasks, the District committee sends the Crisis Identification Tool to the Developmental Disabilities central office in Tallahassee. The central office meets one week monthly, through June 2002, to "determine individuals in most critical need." The Policy Directive adds that the "[i]ndividuals who were not selected
. . . will be carried forward and reconsidered each month until they are determined to be one of the ten crisis cases for a month or they are served in accordance with the spending plan." In the alternative, the central office may also find that the individual is "not . . . in need of immediate waiver services" and inform the individual of its finding.
As noted in the Preliminary Statement, Petitioner seeks developmental disability services in DOAH Case No. 02-1238 and in DOAH Case No. 02-1241. The Developmental Disabilities Hearing Request described in the Preliminary Statement distinguishes between two programs based on funding sources: Medicaid waiver and general revenue. DOAH Case No. 02-1241 requests services under the Home and Community-Based Services Waiver program, in which the federal government has provided Florida with funds, under a waiver of institutionalization requirements, for certain developmental disability services to
eligible persons. DOAH Case No. 02-1238 requests services under a state program in which Respondent uses largely, if not exclusively, general revenue funds to purchase certain developmental disability services for eligible persons. The focus of both these cases has not been on Petitioner's general eligibility, but on Respondent's limited funds and Petitioner's eligibility based on spending-prioritization policies that Respondent has adopted and the Legislature has approved.
The Spending Plan, Crisis Identification Tool and legislative proviso language approving the Spending Plan all expressly pertain to the Waiver program. The Spending Plan addresses the relationship between the Waiver program with the general revenue-funded program, which is identified at least partly as Individual and Family Supports funding, by warning that persons who have refused Medicaid Waiver-funded services or who are even "awaiting enrollment" in the Waiver program may no longer obtain general revenue-funded services.
Under the Spending Plan, Crisis Identification Tool and legislative proviso language, Petitioner is properly denied developmental disability services under the Medicaid
Waiver-funded program. In addition to confirming the insufficiency of funds in the Waiver program, these documents demonstrate that Petitioner fails to satisfy a prioritization criterion that could gain her earlier funding. Arguably,
Petitioner was entitled to classification as an individual in crisis, either due to her posing a danger to her self or others or due to the "extreme duress" suffered by her parents as caregivers. However, the record permits no basis to overturn the decision of Respondent's central office that, for each month, other crisis applications posed greater urgency.
Although the central office should have maintained Petitioner's Crisis Identification Tool for reconsideration each month, the record permits no basis to revisit any of the central office's decisions during the ensuing months, and the term of the procedures governing the use of the Crisis Identification Tool expired at the end of last month.
However, the Spending Plan, Crisis Identification Tool, and legislative proviso language do not address the general revenue-funded program. Petitioner is eligible for developmental disability services covered by this program. Respondent's proof of lack of funds in this program is itself insufficient, unsupported by the documentation that accompanies Respondent's same claim as to Medicaid Waiver-funded services.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of Case No. 02-1238, which involves a request for developmental disability services to be
paid from general revenues. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
The jurisdiction is less clear in DOAH Case No.
02-1241, which involves a request for developmental disability services to be paid under the Home and Community-Based Services Waiver program. For disputes under this program, Respondent typically conducts "FAIR hearings," pursuant to 42 Code of Federal Regulations Section 200 et seq.
However, Respondent appears to have the authority to refer such disputes to the Division of Administrative Hearings, as it obviously has done in this case. Section 120.80(7) provides only that the agency is not required to submit these disputes to the Division of Administrative Hearings:
Department of Children and Family Services.Notwithstanding s. 120.57(1)(a), hearings conducted within the Department of Children and Family Services in the execution of those social and economic programs administered by the former Division of Family Services of the former Department of Health and Rehabilitative Services prior to the reorganization effected by chapter 75-48, Laws of Florida, need not be conducted by an administrative law judge assigned by the division.
As an applicant, Petitioner bears the burden of proof.
Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). However, Petitioner is generally
eligible for developmental disability services under the general revenue-funded program and the Medicaid Waiver-funded program.
Lack of funding is a legally sufficient defense to supplying the developmental disability services that Petitioner has sought. See Section 393.13(3)(c). The issue of lack of funding is an affirmative defense similar to impossibility of performance. Compare Michel v. Beau Rivage Beach Resort, Inc., 774 So. 2d 900 (Fla. 4th DCA 2001) and American Aviation, Inc. v. Aero-Flight Service, Inc., 712 So. 2d 809 (Fla. 4th DCA 1998) (impossibility of performance is an affirmative defense). The burden of proof as to an affirmative defense is on the party asserting the defense. See, e.g., Captain's Table, Inc. v. Khouri, 208 So. 2d 677 (Fla. 4th DCA 1968). Obviously, developmentally disabled persons lack Respondent's access to the data concerning funding levels in various programs.
Respondent has demonstrated a lack of funds under the Medicaid Waiver-funded program and has demonstrated further that the application of its prioritization policies requires the denial of Petitioner's application in DOAH Case No. 02-1241. However, Respondent has failed to demonstrate a lack of funds under the general revenue-funded program.
RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for covered developmental disability services in DOAH Case No. 02-1238 and denying Petitioner's application for developmental disability services in DOAH Case No. 02-1241.
DONE AND ENTERED this 10th day of July, 2002, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2002.
Paul F. Flounlacker, Jr., Agency Clerk Department of Children and
Reverend Ronald Satterwhite Qualified Representative 8260 Northwest 172nd Street Hialeah, Florida 33015
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
