STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAURICE PARKES,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-1354

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on May 16, 2002, in Largo, Florida.

APPEARANCES

For Petitioner: Erika Parkes, Qualified Representative 2229 Bonita Way, South

St. Petersburg, Florida 33712

For Respondent: Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630 STATEMENT OF THE ISSUE

Did the Department of Children and Family Services (Department) improperly deny funds to Maurice Parkes for the purchase of bottled water?

PRELIMINARY STATEMENT

By letter dated August 27, 2001, the Department advised Erika Parks, mother of Maurice Parkes, that her request for bottled water for Maurice Parkes had been denied due to the lack of General Revenue funds. The letter further advised Petitioner to see Subsections 393.13(2)(c) and (d), Florida Statutes, and to refer to the State Spending Plan as approved by the Florida Legislature. During the formal hearing, the reference to Subsections 393.13(2)(c) and (d), Florida Statutes, was amended to read Subsections 393.13(3)(c) and (d), Florida Statutes. By letter dated September 27, 2001, Erika Parkes requested an administrative hearing on the denial by the Department to furnish bottled water for Maurice Parkes. By a Notice dated April 3, 2002, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Erika Parkes testified on behalf of her son, Maurice Parkes. Petitioner did not offer any documentary evidence. The Department presented the testimony of Diane Dudgeon. The Department's Exhibits 1 an 2 were admitted in evidence. The record was left open to allow the Department to

submit relevant portions of the State Spending Plan as approved by the Florida Legislature referred to in the letter of

August 27, 2001. The Department, at the time of its submittal of its Proposed Recommended Order, presented proviso language from the General Revenue Appropriations for 2001-02, Conference Report, Developmental Disabilities as the Department's Exhibit 3, which was admitted in evidence.

There was no transcript of this proceeding filed with the Division. The Department timely filed its Proposed Recommended Order. Petitioner elected not to file a proposed recommended

order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family care program, and the provisions of in-home subsidies.

2. Petitioner is a developmentally disabled child who lives in his family's home and receives numerous services from the Department for his developmental disability, medical, and physical problems.

3. The services presently being furnished to Petitioner are funded through the Medicaid Waiver Program.

4. The bottled water at issue is not funded through the Medicaid Waiver Program and would have to be funded through General Revenue funds.

5. General Revenue funds appropriated by the legislature for the fiscal year 2001-2002 to the Department have largely been moved to the Medicaid Waiver Program to obtain the benefit of federal matching funds, which are provided at the rate of 55 cents for each 45 cents of state funds.

6. The use of General Revenue Funds to obtain matching federal funds for the Medicaid Waiver Program allows the Department to service some of those developmentally disabled clients that are presently eligible for the Medicaid Waiver Program but have not been receiving services due to lack of funding.

7. There are no uncommitted funds in the General Revenue category of the Developmental Services' budget that could be used to fund the purchase of bottled water for Petitioner.

   CONCLUSIONS OF LAW

   
   

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

9. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

   396 So. 2d 778 (Fla. 1st DCA 1981). The Petitioner has the burden of proof in this proceeding. To meet his burden, the Petitioner must establish facts upon which his allegations are based by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 and Section 120.57(1)(j), Florida Statutes (2001).

10. The Legislature has mandated that the Department's provision of services is limited to the resources available. See Subsection 393.066(4), Florida Statutes. State agencies are prohibited from spending money in excess of appropriations. Article VII, Section 1, Florida Constitution, and see Section 216.11, Florida Statutes.

11. Individuals with developmental disabilities are entitled to receive appropriate services within available resources. See Subsections 393.13(3)(c) and (d), Florida Statutes. While it is the Department's responsibility to implement these provisions, the Department can only provide those services that can be paid for within the parameters set by the Legislature for these funds. The Department has the discretion to prioritize the allocation of these funds among the

    developmentally disabled population in a reasonable manner. In this case, the Department has made a reasonable allocation.

    Budgetary decision-making is strictly within the agency head's executive discretion. Department of Health and Rehabilitative Services v. Brooke, 573 So. 2d 363 (Fla. 1st DCA 1991).

12. The Department is authorized to transfer General Revenue funds to the Medicaid Waiver Program in order to obtain the benefit of additional federal funds.

13. Petitioner has failed to meet his burden to show that the Department had sufficient uncommitted General Revenue funds with which to provide him with bottled water.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request to provide him with bottled water.

DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2002.

COPIES FURNISHED:

Frank H. Nagatani, Esquire

Department of Children and Family Services 11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Maurice Parkes c/o Erika Parkes

2229 Bonita Way, South

St. Petersburg, Florida 33712

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 204B Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 02-001354

Orders for Case No: 02-001354