STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAKE CHESKIN, )

)

Petitioner, )

)

vs. ) Case No. 02-1652

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 12, 2002, by video teleconference, with the parties appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mark Cheskin, Father1

7860 Southwest 52nd Court Miami, Florida 33143

For Respondent: Hilda A. Fluriach, Esquire

Department of Children and Family Services

401 Northwest Second Avenue Suite N-1020

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Respondent has sufficient general revenue funds to provide the Petitioner with services under the Respondent's Developmental Disabilities Program.

PRELIMINARY STATEMENT

In a letter dated February 19, 2002, the Department of Children and Family Services ("Department") advised Jake Cheskin that, concerning his request for physical, occupational, and speech therapy services,

[w]e 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 State Spending Plan as approved by the Legislature.

Mark Cheskin, Jake's father, timely requested a hearing on his son's behalf to challenge the Department's refusal to provide the requested services to his son. The Department transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The final hearing was scheduled for June 12, 2002.

Because the undersigned was not certain of the issue to be resolved in this proceeding, an Order to Show Cause was entered on May 14, 2002, explaining the undersigned's concerns and

requiring the parties to explain why, if the denial was based on a conclusion of law, the case should not be returned to the Department. In addition, if the parties believed that the case was properly before the Division of Administrative Hearings, they were requested to identify the issue to be resolved in the proceeding.

Mr. Cheskin responded to the order and expressed his belief that the only factual dispute to be resolved in the matter was whether his son is eligible to receive services under the Department's Developmental Disabilities Program. The Department did not respond to the Order to Show Cause until the final hearing, at which time the Department stated that the only issue to be resolved in this case is whether the Department had sufficient general revenue funds to begin providing services to Jake at the time his eligibility for such services was established.

At the hearing, Mr. Cheskin testified on behalf of his son; he did not offer any exhibits into evidence. The Department presented the testimony of Evelyn Alvarez, an employee of the Department. Respondent's Exhibit 1 was offered and received into evidence. At the request of the Department and without objection, official recognition was taken of Chapter 393, Florida Statutes, specifically Sections 393.13(3)(c) and (d) and

1. , Florida Statutes, and of that portion of the Conference Report on Senate Bill 2000: General Appropriations for

   2001-2002, consisting of pages 85 through 90 and 399.

   
   

   At the hearing, counsel for the Department indicated that the Department would be filing a transcript of the proceedings with the Division of Administrative Hearings. In a subsequent conversation with the undersigned's assistant, counsel for the Department stated that the Department would not file a transcript and would not submit a proposed recommended order. On July 19, 2002, however, a transcript of the proceedings was filed, and both parties timely filed proposed findings of fact and conclusions of law.

   FINDINGS OF FACT

   
   

   Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

   1. The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program.

   2. Jake is a resident of Miami, Florida, and is four and one-half years of age, having been born October 6, 1997.

   3. On October 24, 2000, Jake's parents submitted on his behalf an application requesting that the Department enroll him in its Developmental Disabilities Program and provide him with physical, occupational, and speech therapy services as a developmentally disabled individual.2

   4. The parties stipulated to the following facts:

      
      

      1. Jake has a rare genetic disorder called "Williams Syndrome," which causes significant developmental delays. Jake also has a significant hearing impairment, which exasperates his developmental delays. Among other developmental delays, Jake cannot walk on his own, is unable to talk, and is unable to respond to verbal requests.

      2. Jake requires regular and frequent physical, occupational, and speech therapies, and Jake is eligible to receive these services under the Department's Developmental Disabilities Program.

   5. A social worker employed by the Department advised Jake's mother on October 25, 2000, that Jake was eligible for the requested services. The social worker developed a family support plan, which Jake's mother signed on January 12, 2001. Pursuant to the Department's policies, the Department considered

      Jake a "client" of the Department and eligible for services on the date the family support plan was signed.

   6. According to the Department's witness, the funding category at issue in this case is state general revenue funds appropriated by the Florida Legislature and not federal funds.

   7. Upon receiving Jake's application for services under the Department's Developmental Disabilities Program, the Department reviewed the request and implemented a prioritization schedule set forth in a Department memorandum dated June 1, 2001. The subject matter of the memorandum is identified as "State Fiscal Year 2001-2002 Spending Plan Implementation Instructions ("Spending Plan")."3

   8. The Spending Plan was developed in accordance with the following directive of the Legislature, which is found in the Conference Report on SB 2000: General Appropriations for

      2001-02, May 1, 2001 ("Conference Report"):

      
      

      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 the Department of Children and Family Services 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 the department's policy for serving persons on the waiting list.

      
      

   9. The Spending Plan relates to the distribution of funds to persons served through the Home and Community-Based Waiver Services program ("Waiver Program"), which is co-funded by the federal government as part of the Medicaid program.4

   10. The Spending Plan establishes five "priority" categories for providing services through the Waiver Program: Persons who were clients as of July 1, 1999; members of the class in the case of Cramer v. Bush; persons not on the original waiting list who are in crisis (an estimated ten new clients monthly, statewide); persons discharged from the Mentally Retarded Defendant Program; and "[p]ersons 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."

   11. The Spending Plan further provides that "[i]n 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."

   12. According to the procedure specified in the Spending Plan, a waiting list for Waiver Program services is maintained by the Department's Central Office of the Developmental

       Disabilities Program, and that office advises the various districts when they may begin providing services to a person on the list. According to the Spending Plan, services are to be provided to individuals on the waiting list "subject to vacancies on the Waiver and available funding."

   13. Upon review of his application for services, the Department classified Jake in the fifth category of the Spending Plan as a person who become a client after July 1, 1999, and his name was placed on the waiting list to receive services provided through Waiver Program funding.

   14. Although no evidence was presented on this point, it is apparent from the text of the Spending Plan that, in addition to the Waiver Program funding for services to the developmentally disabled, there is a second source of funding for services to these individuals, Individual and Family Supports ("IFS") funding.5 The Department did not provide any indication in its denial letter and it did not present any evidence at the final hearing to establish that the "general revenue funds" at issue were IFS funds. It has been necessary to infer from the record that such is the case.6

   15. Although the Department presented no evidence with respect to Jake's eligibility for services from IFS funds or with respect to the availability of IFS funds to provide Jake with the services for which he is eligible, the Spending Plan

       provides: "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." The only possible inference from the evidence presented by the Department and from the record as a whole is that, notwithstanding the reasons stated in the Department's denial letter in this case, Jake was denied services from IFS funds because he was placed on the Medicaid Waiver Program waiting list.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).

   17. In the normal case involving the denial of an application for a license or for services provided by a state agency, the applicant bears the burden of proving entitlement to licensure or eligibility for services. See Dept. of Banking and

       Finance v. Osbourne Stern & Co., 670 So. 2d 932 (Fla. 1996). However, in this case, the Department concedes that Jake is eligible for the services he has requested and bases its refusal to provide the services on the lack of general revenue funds.

       This is in the nature of an affirmative defense, and the Department, as the party asserting the affirmative on the

       funding issue, is required to prove by a preponderance of the evidence that its refusal to provide Jake immediately with the services for which he is eligible is justified. See

       Section 120.57(1)(j), Florida Statutes (1999); Department of Transportation v. J.W.C. Co, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   18. Section 393.13, Florida Statutes, provides, in pertinent part, as follows:

       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.

          
          

          * * *

          1. It is the intent of the Legislature:

             
             

             * * *

             
             

             1. 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.

             2. 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.

             3. 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.

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

             5. 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.

             6. 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. . . .

          2. 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.

       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, which protect the personal liberty of the individual and which are provided in the least restrictive conditions necessary to achieve the purpose of treatment.

          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, regardless of chronological age or degree of

          disability. . . .

          
          

   19. The Department created the Developmental Disabilities Program in accordance with the directive in Section 393.066(1),

       Florida Statutes (2000), that the Department

       
       

       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.

       
       

   20. It is concluded, based on the findings of fact herein, that the record is sufficient to establish, by a preponderance of the evidence, that, at the time of the final hearing, Jake was not entitled to receive services as a developmentally disabled individual because, even though he is eligible for such services, he is on the waiting list for services from Waiver Program funding and the Department is precluded from using IFS funds to provide services to individuals awaiting services funded under the Waiver Program. Jake's classification under category five of the prioritization schedule was not challenged, and, at some undetermined point in the future, he will receive the services that he needs and for which he is eligible.7

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 finding that Jake Cheskin shall remain on the waiting list for Home and Community-Based Waiver Services under the Developmental Disabilities Program and ordering that Jake Cheskin shall be provided with the physical, occupational, and speech therapy services for which he is

eligible as soon as a vacancy occurs or additional funding is available under the Department's Developmental Disabilities Program.8

DONE AND ENTERED this 31st day of July, 2002, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 31st day of July, 2002.

ENDNOTES

1/ Mr. Cheskin represented the interests of his son, Jake Cheskin, who is a minor child.

2/ In its Proposed Recommended Order, the Department included as a proposed finding of fact that an application for Jake's enrollment in the Home and Community-Based Waiver Services program was also submitted on October 24, 2000. This fact is not, however, to be found in the record of this proceeding.

3/ Because the validity of the Spending Plan has not been challenged by Petitioner in this proceeding, it is assumed for the purposes of this proceeding only that the Spending Plan is valid.

4/ The Conference Report provides that the "[f]unds in Specific Appropriation 377 and 374 are provided to meet the needs of developmental services Medicaid Waiver participants based on the individuals' most recent support plans." Also, the Spending

Plan provides: "Provision of Waiver services must also comply with federally approved service definitions."

5/ These funds are included in Specific Appropriation 375 in the Conference Report.

6/ In its Proposed Recommended Order, the Department included in the Preliminary Statement an explanation of the two sources of funding for the Department's Developmental Disabilities Program, the Waiver Program funds and IFS funds. There was, however, no evidence presented at the hearing to establish this on the record.

7/ The dearth of evidence presented by the Department to support its decision in this case made the preparation of this Recommended Order very frustrating, based as it is on inferences and assumptions extracted from a sparse record.

8/ It is hoped that the Department has counseled Jake's parents on the availability from other sources of the services Jake needs and that it keeps Jake's parents apprised of Jake's standing on the Waiver Program waiting list.

COPIES FURNISHED:

Mark R. Cheskin, Esquire 7860 Southwest 52nd Court Miami, Florida 33143

Hilda Fluriach, Esquire

Department of Children and Family Services

401 Northwest Second Avenue Suite N-1020

Miami, Florida 33128

Josie Tomayo, General Counsel

Department of Children and Family Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Paul F. Flounlacker, Jr., Agency Clerk 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 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: 02-001652

Orders for Case No: 02-001652