STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VLADIMIR VEGA,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-1418

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on June 12, 2002, in Orlando, Florida.

APPEARANCES

For Petitioner: Ruth Vega

Qualified Representative 2017 Diamond Drive

Orlando, Florida 32807

For Respondent: Beryl Thompson-McClary, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether or not Respondent's denial of Petitioner's request for services from the Developmental Disabilities Program due to lack of General Revenue Funds is warranted.

PRELIMINARY STATEMENT

Petitioner, Vladimir Vega, is an adult who Respondent determined in February 2001 was eligible for "services from the Developmental Disabilities Program under the category Mental Retardation/Cerebral Palsy." Ruth Vega is Vladimir's mother; she had been designated legal guardian of her son in Massachusetts, but no guardianship has been established in Florida.

On June 1, 2001, Respondent sent Petitioner a letter titled, "Notice of Denial Due to Lack of General Revenue Funds" which advised, in part, that, "your request cannot be granted within the limits of the Department's appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation.

Please see Section 393.13(2)(c) and (d), F.S., and refer to the Spending Plan as approved by the Florida Legislature."

On June 15, 2001, after receipt of a Notice of Denial Due to Lack of General Revenue Funds from Respondent, Mrs. Vega requested a hearing on behalf of her son, which led to an informal hearing on March 29, 2002, before a Department of Children and Family Services Hearing Officer. Upon determining that there were disputed issues of material fact, the Hearing Officer remanded the matter back to the Agency Clerk,

recommending that the matter be forwarded to the Division of Administrative Hearings for a formal hearing.

On April 8, 2002, the Agency Clerk entered an Order Transferring Case to Division of Administrative Hearings to "consider the issue of the department's denial of petitioner's request due to the lack of General Revenue Funds."

On April 10, 2002, the case was received by the Division of Administrative Hearings; on the same day an Initial Order was sent to the parties. On April 19, 2002, the case was set for final hearing on June 12, 2002, in Orlando, Florida.

At the final hearing, Petitioner, Vladimir Vega, did not appear but was represented by his mother, Ruth Vega, who is designated a Qualified Representative for her son for the hearing. Mrs. Vega testified and presented one exhibit, an eligibility letter dated February 12, 2001, from Respondent, which was admitted into evidence as Petitioner's Exhibit 1.

Respondent presented two witnesses: Helen Tasker, Programs Operations Administrator, and Sharon Jennings, Senior Human Services Counselor Supervisor. Respondent presented three exhibits: Respondent's A - Notice to Individuals Who Have Become a Client of Developmental Disabilities or Submitted an Application to Become a Client of Developmental Disabilities Since July 1, 1999; Respondent's Composite B - Policy Directive PD#01-03, Interim Procedures for Processing Requests or DS/HCBS

Applications for Developmental Services Home and Community-Based Services Waivers, Effective Date: April 1, 2001 (20 pages); Developmental Disabilities Program, Policy Directive PD#01-07, Interim Procedures for Review of Crisis Identification Tools, Effective: June 1, 2001 (6 pages); and Respondent's C - June 1, 2001, letter to Mr. Vladimir Vega c/o Ruth Vega from Sharon Jennings, subject: Notice of Denial Due to Lack of General Revenue Funds. Respondent requested that official notice be taken of Section 216.331, Florida Statutes.

While it is not directly relevant to the determination of the issue presented, it is noted that Petitioner became a resident of a funded residential group home facility in October 2001, where his needs are being met.

No transcript of proceedings was ordered. On June 14, 2002, Mrs. Vega directed a letter to the undersigned wherein she "request[ed] a copy of the transcript of my son's case hearing (No. 02-1418) . . . . Vladimir is indigent, therefore, I believe he is entitled to a free copy." Mrs. Vega was directed to the Clerk of the Division of Administrative Hearings, in order to proceed with Petitioner's request.

On July 3, 2002, Respondent requested additional time in which to file a proposed recommended order; the request was granted. The period for filing Respondent's proposed

recommended order was extended until July 19, 2002. Respondent timely filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner is a young adult who has cerebral palsy and mental retardation. On February 12, 2001, Respondent determined him to be eligible for services from the Developmental Disabilities Program and, as such, is determined to be a "client" of Respondent.

2. Respondent provides services to those determined to be eligible ("clients") and who receive these services in their homes through a state funding category known as Individual and Family Support ("IFS"). In the instant case, Petitioner was requesting "diapers and adult day training."

3. On June 1, 2001, Respondent directed a letter to Vladimir Vega c/o Ruth Vega which stated, in part:

   This letter concerns the following request for services.

   
   

   Diapers & Adult Day Training

   
   

   We regret to inform you, as a conclusion of law, that your request cannot be granted within the limits of the Department's appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the Spending Plan as approved by the Florida Legislature.

4. Respondent's Policy Directive PD#01-03 advises that,

   
   

   [I]n 1999 and 2000, the Florida Legislature appropriated additional funding to be used to provide needed services for individuals who had been clients of the Department of Children and Family Services, Developmental Disabilities Program (formerly Developmental Services Program) as of July 1, 1999. To guide how the additional funding was to be spent, the Legislature approved a Spending Plan, which set priorities for spending by the Developmental Disabilities Program through June 30, 2001.

   
   

   This new money was appropriated to serve individuals who were clients of the Department and were waiting for services on July 1, 1999. Some of these individuals have waited many years for funding for services to become available. Therefore, the Department must, consistent with the mandate of the Legislature serve these individuals first. Between now and June 30, 2001, the Department will focus its efforts on completing this task. The Department will not be able to provide services to individuals who were not clients of Developmental Disabilities on July 1, 1999, until individuals who were clients are served.

   
   

5. As a result of the application of Respondent's administrative directives, Petitioner, although determined to be an eligible "client," was denied services and placed on a waiting list. Exception is made and services provided for certain "clients" who became eligible after July 1, 1999, and are placed on the waiting list, if they were determined to be "in crisis" as defined by a criteria created by Respondent. Petitioner was determined not to be "in crisis." Achieving the

   "in crisis" category may be a meaningless, as only 10 "in crisis" clients receive services monthly statewide.

6. Respondent presented two witnesses who testified regarding Petitioner's eligibility determination, Respondent's policies and procedures as they were applied to Petitioner, and that General Revenue Funds were not available to fund services for Petitioner. Their testimony is accepted as credible except as related to the lack of availability of General Revenue Funds; neither were qualified to present evidence regarding this subject. No other evidence of lack of availability of General Revenue Funds was presented.

7. Petitioner's mother testified as to Petitioner's eligibility and that he is presently the resident of a funded residential group home facility, but offered no evidence of damages sustained as a result of the denial of services.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. Subsection 120.57(1), Florida Statutes.

9. 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). Petitioner is eligible for developmental disability services under the general revenue- funded program and the Medicaid waiver-funded program.

10. Subsection 216.311(1), Florida Statutes, states, as follows: "(1) No agency or branch of state government shall contract to spend, or enter into any agreement to spend, any moneys in excess of the amount appropriated to such agency or branch unless specifically authorized by law, and any contract or agreement in violation of this chapter shall be null and void."

11. Lack of state funding and the statutory prohibition against spending in excess of appropriations give rise to the defense of "impossibility of performance." If proved, they provide a legally sufficient defense for not supplying the developmental disability services that Petitioner has sought and for which it was determined that he was eligible. The predicate for the applicability of Subsection 216.311(1), Florida Statutes, is a demonstration of lack of funding. "Impossibility of performance" refers to those situations where one side of a contract becomes impossible to perform. Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So. 2d 614, 617 (Fla. 2d DCA 1965). "Impossibility of performance" is an affirmative defense. Michel v. Beau Rivage Beach Resort, Inc., 774 So. 2d 900 (Fla. 4th DCA 2001); American Aviation, Inc. v. Aero-Flight Service, Inc., 712 So. 2d 809 (Fla. 4th DCA 1998). The burden of proof as to an affirmative defense is on the party asserting

    the defense. Captain's Table, Inc. v. Khouri, 208 So. 2d 677 (Fla. 4th DCA 1968).

12. While Respondent has suggested Petitioner failed to demonstrate the availability of General Revenue Funds, he has no such burden. His obligation is to establish eligibility and damages as a result of the denial of services. The burden of proof of the affirmative defense of lack of funds is on Respondent. Respondent has failed to demonstrate a lack of General Revenue Funds for the Developmental Disabilities Program.

13. Petitioner failed to demonstrate any damages which were the result of having been denied the requested services: diapers and adult day training.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for requested developmental disability services.

DONE AND ENTERED this 29th day of July, 2002, in Tallahassee, Leon County, Florida.

JEFF B. CLARK

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 29th day of July, 2002.

COPIES FURNISHED:

Beryl Thompson-McClary, Esquire Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

Ruth Vega

Qualified Representative 2017 Diamond Drive

Orlando, Florida 32807

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

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: 02-001418

Orders for Case No: 02-001418