STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM ALAIRE, )

)

Petitioner, )

)

vs. ) Case No. 02-1651

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 14, 2002, in West Palm Beach, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wendy St. Pierre

Qualified Representative 1295 Savoyard Way

Royal Palm Beach, Florida 33411

For Respondent: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner should continue to receive services of incontinence supplies from Respondent.

PRELIMINARY STATEMENT

By letter dated March 15, 2002, the Department of Children and Family Services (Department) notified Wendy St. Pierre, then Wendy Alaire, that the service of diapers provided to her son, William Alaire (William), was terminated on November 1, 2001.

The letter further stated that, through an “oversight,” the District Developmental Disabilities Program Office had failed to advise her of her right to appeal the termination of services and that “services were terminated because there are insufficient funds with which to continue funding the service.” Ms. St.

Pierre contested the termination of services and requested a hearing. This matter was referred to the Division of Administrative Hearings on April 26, 2002.

At the hearing, the Department presented the testimony of two witnesses and entered eight exhibits (Respondent's Exhibits numbered 1-8) into evidence. Ms. St. Pierre testified and entered no exhibits into evidence.

The Department did not wish to order a transcript of the hearing. At the close of the hearing, Ms. St. Pierre was provided a time certain to determine if she wanted a transcript. She later filed a notice that she did not wish a transcript of the hearing. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following Ms. St. Pierre’s notice.

The parties timely filed post-hearing submissions, which have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. William suffers from Spina Bifida (SB), having been born with SB, and is confined to a wheelchair. Among other things, SB affects his bladder and urinary tract system. William is now 17 years of age.

2. William must catheterize each day. If he does not, bladder infections will occur, which in turn will lead to kidney problems. William is in need of diapers, which assist in preventing infections.

3. As a result of SB, William also suffers from incontinence. He is in need of diapers. In addition to helping his medical condition, the diapers help to maintain William’s self-esteem when he is around his classmates and others.

4. There is no dispute that William has a disability, that he needs diapers, and that he is eligible for the service.

5. As of November 1, 2001, the Department terminated the services of providing diapers to William because there were “insufficient funds with which to continue funding the service,” with such service being “funded solely through the Department’s Individual Family Supports [IFS] or General Revenue.” The Department provided written notification of the termination by

   letter dated March 15, 2002. Ms. St. Pierre was orally notified by William's Support Coordinator on November 15, 2001; shortly thereafter, a letter was to be sent to Ms. St. Pierre from the Department explaining the reason for the termination. No evidence was presented to show that the letter was sent.

6. IFS is funded by general revenue dollars.

   
   

7. The providing of William's service--providing diapers-- is through general revenue. William is continuing to receive the service pending the outcome of the instant case.

8. Only recently, in or around July 2002, Ms. St. Pierre became re-employed after having been unemployed for approximately three months.

9. The focus of the instant matter is not on William’s eligibility for services but on the Department’s limited funds and on the spending-prioritization policies adopted by the Department and approved by the Florida Legislature.

10. One of the documents that the Department relies upon for the termination of William’s service is the “Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions” (Spending Plan).

11. The Spending Plan states in pertinent part:

    
    

    By June 30, 2001, the Department of Children and Families 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, the Department 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:

    1. Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001.

    2. Cramer v. Bush class members--estimated

       20 persons who will be served upon request, throughout the fiscal year.

    3. 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.

    4. Persons discharged from the Mentally Retarded Defendant Program.

    5. 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 services 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, the Department 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 [the] 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. The Department 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.

       
       

12. As to the Spending Plan, as it relates to spending at the local level, the Department's local districts submit their needs to the Department and the Department determines the allocations. The Department determines how the dollars will be spent.

13. The Department also relies upon the following document: "Developmental Disabilities Program Fiscal Year 2001-2002 Spending Plan, Interim Notice To Individuals Seeking Services From The Florida Developmental Disabilities Program"--Revised September 2001--hereinafter, Interim Notice. The Interim Notice addresses the Waiver program and provides in pertinent part:

    The Agency for Health Care Administration, the State Medicaid Agency, and the Department of Children and Family Services have requested permission from the Department of Health and Human Services, Health Care Financing Administration (HCFA), to add 450 additional persons to the Florida Developmental Services Home and Community- Based Services Waiver (Waiver) between now and March 1, 2002. At this point, with the funding appropriated by the Florida Legislature for fiscal year 2001-2002, the Department anticipates that it will enroll no more than 450 persons on the Waiver before March 1, 2002. The persons who will be enrolled on the Waiver out of these available slots or vacancies are as follows:

    
    

    1. No more than 350 persons who became clients of the Developmental Disabilities Program prior to July 1, 1999, and who wish to be enrolled on the Waiver.

       
       

    2. No more than 80 persons who have become clients of the Developmental Disabilities Program after July 1, 1999, who are determined to be in a life-threatening crisis. . . .

       
       

    3. All individuals currently residing in private ICF/DDs who, after choice counseling, request community-based placement and are determined by the state's treatment professionals to be appropriate for

    community-based placement.

    
    

    You may have heard that the Florida Legislature appropriated $78,000,000 in additional funding to community-based services individuals with developmental disabilities. However, only about

    $20,000,000 of this appropriation will be available to enroll new individuals on the Waiver.

    
    

    About $58,000,000 of the appropriated amount for community-based services for fiscal year 2001-2002 is needed to continue funding services for individuals who were enrolled on the Waiver last year. . . .

    
    

14. William's mother did not receive a copy of the Interim Notice.

15. Additionally, the Department relies upon the following document: "Developmental Services Home and Community-Based Services Waiver Services Directory." This document too addresses the Waiver program.

16. Further, the Department relies upon two legislative conference reports for fiscal year 1999-2000 and 2000-2001. The two conference reports are instructive. The "Conference Report on Senate Bill 2500: General Appropriations for 1999-2000" provides in pertinent part:

    From the funds in Specific Appropriation 381,

    $20,000,000 in recurring Tobacco Settlement Trust Fund and $25,259,108 in Operations and Maintenance Trust Funds are provided to meet the needs of developmental services participants based on the individuals' most recent support plans. This lump sum is a continuation of the 1998-99 appropriation based on a redesigned system. Priorities for

    this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services

    . . . A budget amendment for the release of all or a portion of this lump sum is contingent upon accurately reporting the needs of those persons who are under-served waiver participants to the legislature.

    
    

    The "Conference Report on House Bill 2500: General Appropriations Act FY 2000-2001" provides in pertinent part:

    Funds in Specific Appropriation 344 and 339 are provided to meet the needs of developmental services Medicaid Waiver participants based on the individuals' most recent support plans. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements or other community waiver services, and 2) Meeting the needs of identified under served participants in the Home and Community Based Waiver Services . . . 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

    payment. . . .

    
    

17. No conference report for the fiscal year 2001-2002 was presented by the Department.

18. The Department relies upon several other documents that pertain to the Developmental Services Home and Community-Based Services waiver.

19. The testimony of the Department's witness, as to the Department's funding, focused primarily on the Waiver program, not general revenue. The focus of Department's documents is the Waiver program, not general revenue. The Department's evidence of lack of general revenue funds is insufficient.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

21. Section 393.066, Florida Statutes, provides in pertinent part:

    (1) The Department of Children and Family Services shall plan, develop, organize, and implement its programs of services and treatment for persons who are developmentally disabled along district lines. The goal of such programs shall be to allow clients to live as independently as possible in their own homes or communities and to achieve productive lives as close to normal as possible.

    
    

    * * *

    
    

    (5) Provided it is consistent with the intent of the Legislature, the department shall prioritize increased appropriations provided for community-based services for

    developmentally disabled individuals toward individualized, community-based supports and services for consumers and their families.

    Further, the department's 5-year plan for Developmental Services shall reflect a priority toward individualized, community- based supports and services for consumers and their families.

    
    

22. Rule 59G-8.200, Florida Administrative Code, entitled "Home and Community-Based Services Waivers," provides in pertinent part:

    (1) Purpose. Under authority of section 2176 of Public Law 97-35, Florida obtained waivers of federal Medicaid requirements to enable the provision of specified home and community-based (HCB) services to persons at risk of institutionalization. Through the administration of several different federal waivers, Medicaid reimburses enrolled providers for services that eligible recipients may need to avoid institutionalization. Waiver program participants must meet institutional level of care requirements. The HCB waiver services are designed to allow the recipients to remain at home or in a home-like setting. To meet federal requirements, Medicaid must demonstrate each waiver's cost-effectiveness.

    
    

    * * *

    
    

    (12) Developmental Services Waiver

    (a) Program Summary. This program provides HCB waiver services to recipients with developmental disabilities who are clients of the Department of Health and Rehabilitative Services (HRS) developmental services (DS) program, and who are eligible for admission to an intermediate care facility for the mentally retarded-developmentally disabled (ICF/MR-DD). The recipients have elected to receive services in the community rather than in an ICF/MR-DD.

    
    

23. Section 393.13, Florida Statutes, provides in pertinent part:

    (3) RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL DISABILITIES.–The rights described in this subsection shall apply to all persons with developmental disabilities, whether or not such persons are clients of the department.

    
    

    * * *

    
    

    1. Persons with developmental disabilities shall receive services, within available sources . . . .

    2. Persons who are developmentally disabled shall have a right to participate in an appropriate program of quality education and training services, within available

    resources . . . .

    
    

24. Lack of funding is an affirmative defense similar to the impossibility of performance. See Michael 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). As to an affirmative defense, the burden of proof is on the party asserting the defense. See Captain's Table, Inc. v. Khouri, 208 So. 2d 677 (Fla. 4th DCA 1968). Without question, developmentally disabled persons lack the Department's access to the data concerning funding levels in various programs.

25. The Department failed to demonstrate a lack of funds under the general revenue-funded program.

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 reinstating the providing of diaper services to William Alaire.

DONE AND ENTERED this 26th day of November, 2002, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 26th day of November, 2002.

COPIES FURNISHED:

Wendy St. Pierre Qualified Representative 1295 Savoyard Way

Royal Palm Beach, Florida 33411

Colleen Farnsworth, Esquire Department of Children and

Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

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: 02-001651

Orders for Case No: 02-001651