STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA ROKER, )

)

Petitioner, )

)

vs. ) Case No. 02-1244

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on May 10, 2002.

APPEARANCES

For Petitioner: Veronica Roker, pro se

2282 Northwest 152nd Street Opa Locka, Florida 33054

For Respondent: Hilda Fluriach

District 11 Legal Counsel Department of Children and

Family Services

401 Northwest 2nd Avenue Suite N-1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible for the receipt of general revenue funds in the categories of homemaker services and equipment repair and replacement.

PRELIMINARY STATEMENT

By Developmental Disabilities Hearing Request filed March 4, 2002, Respondent acknowledged that Petitioner has

requested a hearing because Respondent "has taken the following action regarding the individual's eligibility for or receipt of Medicaid Waiver General Revenue (check one) ["General Revenue" is circled] benefits from [Respondent]: denial of homemaker services, equipment repair & replacement."

The attached letter dated December 28, 2001, from Respondent to Petitioner advises her that Respondent was denying her request for homemaker services and equipment repair and replacement due to the "limits of [Respondent's] appropriated general revenue funds" and the legal prohibition against spending funds in excess of appropriations. The letter relies upon Section 393.13(2)(c) and (d), Florida Statutes, and the State Spending Plan, as approved by the Florida Legislature.

At the hearing, Petitioner called two witnesses and offered into evidence one exhibit: Petitioner Exhibit 1. Respondent called one witness and offered into evidence two exhibits: Respondent Exhibits 1-2. All exhibits were admitted.

The parties did not order a transcript. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner was born on July 11, 1953. She suffers from cerebral palsy. She received special education for several years. For 11 years, she has worked two and one-half days weekly in the Dade County State Attorney's Office, where she mails out orders. Petitioner lives by herself in a home that she owns.

2. Her disability interferes with walking. She entered the hearing room by placing her outstretched arms across her mother's shoulders, against which she placed her weight that her immobilized legs could not bear. Petitioner frequently falls. When walking without the assistance of another person or device, Petitioner presses her arms against a wall for the necessary support.

3. For the last 12 years, Petitioner has used a three- wheeled scooter with a small electric motor to ambulate. This device has proved superior to crutches, which "get away from me." Petitioner has used the scooter to get to the physician's office, take out the garbage from her home, and perform her work in the State Attorney's Office.

4. Seven months ago, the scooter broke. Petitioner has previously had the scooter repaired three times; her present scooter is four years old. The two batteries remain good, but the motor has become inoperative.

5. No longer able to use the scooter at work, Petitioner sometimes falls down as she tries to walk along the walls. When this happens, a coworker brings her a chair so she can get back up. Recently, during a bomb threat, a coworker had to wheel Petitioner out of the building using an executive chair.

6. In the past, Petitioner has obtained monetary support from her mother. However, her mother has recently retired and is now living on a pension of $800 monthly.

7. Petitioner's disabilities prevent her from performing common housekeeping chores like mopping floors and putting clothes in the washer. Able to do a limited amount of these tasks, Petitioner has long relied on her daughter to perform the portion of these tasks that Petitioner cannot perform. However, her daughter is 19 years old and has moved out to attend college, so she is no longer available to perform these tasks. Petitioner's 65-year-old mother cannot do household chores due to an arthritic shoulder.

8. More than anything else, Petitioner seeks limited assistance to achieve maximum independence. Unable to afford special transportation services and without her scooter, Petitioner now mostly watches television at home alone. During her one-hour lunch break, Petitioner is no longer able to leave the building.

9. Petitioner became a client of Respondent in August 2001. As conceded by Respondent's sole witness, Petitioner is otherwise eligible for the services that she seeks, except that sufficient funds are not available.

10. As reflected in the Developmental Disabilities Hearing Request, Petitioner has sought services funded by general revenue funds, not Medicaid Waiver funds. In support of its denial of services based on funding limitation, Respondent has relied upon spending-plan criteria contained in Respondent Exhibit 1.

11. Respondent Exhibit 1 details a five-part prioritization schedule for the provision of services. In order, the following persons are served: persons who were clients as of July 1, 1999; members of the class action styled Cramer v. Bush; persons in crisis (estimated at 10 new clients monthly statewide); persons discharged from the Mentally Retarded Defendant Program; and persons who have become clients since July 1, 1999.

12. Based on the present record, Respondent's reliance upon Respondent Exhibit 1 is misplaced. The present record suggests that the five-part prioritization schedule described in the preceding paragraph is for persons seeking Medicaid Waiver services, not General Revenue funds. For instance, immediately following the fifth priority, the document reveals that the

    schedule is for Medicaid Waiver clients when the document states: "In order to serve the estimated additional 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above."

13. The testimony of Respondent's sole witness relied on Respondent Exhibit 1, which appears on its face not to govern Petitioner's request for services. Thus, Respondent's evidence of insufficiency of funds is itself insufficient.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

15. Section 393.13(1) and (2) provides:

    
    

    1. Short title.--This act shall be known as "The Bill of Rights of Persons Who are Developmentally Disabled."

    2. Legislative intent.--

    1. The Legislature finds and declares that the system of care which the state provides to individuals who are developmentally disabled must be designed to meet the needs of the clients as well as protect the integrity of their legal and human rights. Further, the current system of care for persons who are developmentally disabled is in need of substantial improvement in order to provide truly meaningful treatment and habilitation.

    2. The Legislature further finds and declares that the design and delivery of treatment and services to persons who are developmentally

       disabled should be directed by the principles of normalization and therefore should:

       1. Abate the use of large institutions.

       2. Continue the development of community- based services which provide reasonable alternatives to institutionalization in settings that are least restrictive to the client.

       3. Provide training and education to individuals who are developmentally disabled which will maximize their potential to lead independent and productive lives and which will afford opportunities for outward mobility from institutions.

    3. It is the intent of the Legislature that duplicative and unnecessary administrative procedures and practices shall be eliminated, and areas of responsibility shall be clearly defined and consolidated in order to economically utilize present resources. Furthermore, personnel providing services should be sufficiently qualified and experienced to meet the needs of the clients, and they must be sufficient in number to provide treatment in a manner which is beneficial to the clients.

    4. It is the intent of the Legislature:

       1. To articulate the existing legal and human rights of persons who are developmentally disabled so that they may be exercised and protected. Persons with developmental disabilities shall have all the rights enjoyed by citizens of the state and the United States.

       2. To provide a mechanism for the identification, evaluation, and treatment of persons with developmental disabilities.

       3. To divert those individuals from institutional commitment who, by virtue of comprehensive assessment, can be placed in less costly, more effective community environments and programs.

       4. To develop a plan which will indicate the most effective and efficient manner in which to implement treatment programs which are meaningful to individuals with developmental disabilities, while safeguarding and respecting the legal and human rights of such individuals.

       5. Once the plan developed under the provisions of subparagraph 4. is presented to the

          Legislature, to fund improvements in the program in accordance with the availability of state resources and yearly priorities determined by the Legislature.

       6. To ensure that persons with developmental disabilities receive treatment and habilitation which fosters the developmental potential of the individual.

       7. To provide programs for the proper habilitation and treatment of persons with developmental disabilities which shall include, but not be limited to, comprehensive medical/dental care, education, recreation, specialized therapies, training, social services, transportation, guardianship, family care programs, day services, and habilitative and rehabilitative services suited to the needs of the individual regardless of age, degree of disability, or handicapping condition. No person with developmental disabilities shall be deprived of these enumerated services by reason of inability to pay.

       8. To fully effectuate the normalization principle through the establishment of community services for persons with developmental disabilities as a viable and practical alternative to institutional care at each stage of individual life development. If care in a residential facility becomes necessary, it shall be in the least restrictive setting.

    5. It is the clear, unequivocal intent of this act to guarantee individual dignity, liberty, pursuit of happiness, and protection of the civil and legal rights of persons with developmental disabilities.

    
    

16. Petitioner bears the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

17. Respondent does not dispute Petitioner's general eligibility for the services that she seeks. Respondent asserts only that Petitioner may not receive these services because

Respondent lacks the funds. However, the present record does not support Respondent's assertion. The testimony of Respondent's sole witness is unsupported by the document on which she relies. Absent such support, the provisions of Section 393.13(2)(d)5 do not apply, and the remainder of the cited statutory provisions amply support Petitioner's claim for the modest services that she requires to maintain the independence that she has courageously maintained for many years with the help of family members whose services are, for entirely legitimate reasons, no longer available to her.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's requests for homemaker and equipment repair and replacement services.

DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 3rd day of July, 2002.

COPIES FURNISHED:

Paul F. Flounlacker, Jr., Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B 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

Veronica Roker

2282 Northwest 152nd Street Opa Locka, Florida 33054

Hilda Fluriach

District 11 Legal Counsel Department of Children and

Family Services

401 Northwest 2nd Avenue Suite N-1014

Miami, Florida 33128

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-001244

Orders for Case No: 02-001244