STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNICE SIMON,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-1653

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 28, 2002, by video teleconference between West Palm Beach and Tallahassee, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bernice Simon, pro se

6768 10th Avenue, North, Number 101 Lake Worth, Florida 33467

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

The issue in this case is whether the Petitioner's request that the Respondent pay for certain supplies may be denied based

on Respondent's limited funding and on Respondent's spending priorities as set forth in a Spending Plan.

PRELIMINARY STATEMENT

At the final hearing on June 28, 2002, the Petitioner testified on her own behalf, and also presented the testimony of one other witness, her husband. The Petitioner offered one exhibit, which was received in evidence.

The Respondent presented the testimony of two witnesses and offered five exhibits at hearing, all of which were received in evidence. At the request of the judge, the parties also filed a post-hearing joint exhibit.

The parties elected not to file a transcript of the hearing. The parties were allowed 15 days within which to file proposed recommended orders. The Respondent filed a timely Proposed Recommended Order. The Petitioner has not filed any post-hearing documents.

FINDINGS OF FACT

1. The Petitioner, Bernice Simon, as a result of having spina bifida, is incontinent of both bowel and bladder. She needs incontinence supplies, and will continue to need such supplies in the future. All parties agree that the Petitioner has a medical need for the incontinence supplies she seeks to have the Respondent continue to provide.

2. On April 19, 2001, Bernice Simon signed a Notice of Eligibility for ICF/DD and Developmental Services Home and Community-Based Services Waiver. It stated "This is to inform you that Bernice Simon has been determined eligible for ICF/DD services or the Developmental Services Home and Community-Based Services Waiver." The form indicates "Client doesn't want the Medwaiver at this time. She can apply in future if she changes her mind."

3. On October 18, 2001, Human Services Counselor Christina Tookes notified Ms. Simon: "I regret to inform you that unless you apply for the Waiver we are unable to provide services at this time. Be also advised that the Department, at this present time, are [sic] not providing any new service to any consumers until further notices by our Legislators from Tallahassee. This is unfortunate, but we are instructed to follow guidelines and procedures mandated by our Department Heads."

4. On March 15, 2002, Ms. Simon was notified that incontinence supplies were terminated due to insufficient funds with which to continue funding the service.

5. The Spending Plan Instructions states include the following:

   The 2001 Florida Legislature appropriated additional funds for the Developmental Disabilities Program to serve additional persons and annualize services begun during state fiscal year 2000-2001. In order to

   accomplish the goals established by the Governor and the Legislature, it is imperative that the approved spending plan be implemented and followed. Approved

   prioritization schedule and policy decisions must be implemented in order to be able to serve the number of individuals funded for state fiscal year 2001-2002.

   
   

   Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. . . . 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.

   
   

   Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, 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. 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.

   
   

6. The Petitioner was informed of the scope, intensity, and duration of services for which funding by the government was available. She was notified repeatedly that services might be discontinued.

7. By reason of their assets and income, the Petitioner and her husband are not eligible for enrollment in the Home and Community-Based Medicaid Waiver Program.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this cause. Sections 120.569 and 120.57, Florida Statutes.

9. "Developmental disability" means a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.

10. The Department shall notify each applicant, in writing, of its eligibility decision. Any applicant determined by the department to be ineligible for developmental services shall have the right to appeal this decision pursuant to Sections 120.569 and 120.57, Florida Statutes.

11. Section 393.13, Florida Statutes, Personal treatment of persons who are developmentally disabled, states in part:

    (3)(c) Persons who are developmentally disabled shall receive services, within available sources . . .

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

    
    

12. Section 393.066, Florida Statutes, Community services and treatment for persons who are developmentally disabled, states in relevant 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.

       
       

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       (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. . . .

       
       

13. Rule 59G-8.200, Florida Administrative Code, Home and Community-Based Services Waivers, states in 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.

       
       

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       1. Developmental Services Waiver

          1. 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.

       
       

14. The Department's implementation of its spending plan for the fiscal year 2000-2001 is set forth in a memo dated May 22, 2000, and states in relevant part:

    The purpose of this memorandum is to reiterate the policy for implementing new services in accordance with the FY 1999-2000 and FY 2000-2001 legislative appropriations. The 2000 Florida Legislature has provided the funding requested to complete the state's plan to eliminate the original waiting list. The original waiting list is defined as those persons who were clients of the Department as of July 1, 1999, with unmet needs. . . . Persons who are new to the system, i.e., since July 1, 1999, should be served after those on the original waiting list and only after instructions from the central office in Tallahassee. The only exceptions to this are individuals who are determined to be in crisis, in accordance with the Crisis Assessment

    Tool. . . .

    
    

15. The Department's termination of payment for the Petitioner's incontinence supplies was consistent with the statutory, rule, and policy provisions quoted above.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the petition in this case.

DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 6th day of September, 2002.

COPIES FURNISHED:

Colleen Farnsworth, Esquire Department of Children and

Family Services

111 South Sapodilla Avenue Suite 201

West Palm Beach, Florida 33401

Bernice Simon

6768 10th Avenue, North, Number 101 Lake Worth, Florida 33467

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

Family Services

1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Jerry Regier, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

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: 02-001653

Orders for Case No: 02-001653