STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID DENEALE,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-4273

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 19, 2003, with the parties appearing before Florence Snyder Rivas, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edwin Satter, pro haec vice

1774 Southwest Columbia Street Port St. Lucie, Florida 34987

For Respondent: Laurel Hopper, Esquire

Department of Children and Family Services

337 North Fourth Street Fort Pierce, Florida 34950

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

By letter dated September 25, 2002, the Respondent, Department of Children and Family Services (Respondent, Department or DCFS), notified Petitioner (Petitioner or Deneale) that his request for developmental disability services was denied. The Petitioner timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of Jane Satter and Edward Satter. Mr. Satter, a retired attorney, also represented Deneale with the consent of DCFS and the tribunal. The Department presented testimony from Steve Stoltz, Developmental Disabilities Program Administrator. Respondent’s Exhibits 1 through 3 were received in evidence without objection.

The transcript of these proceedings was filed on April 2, 2003. The Department filed a Proposed Recommended Order.

FINDINGS OF FACT

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.

2. As of August 23, 2002, Deneale is eligible for developmental services in the areas of support coordination;

   adult day training and transportation; non residential habilitation; residential placement; residential habilitation; adult dental; and behavioral services.

3. The only lawful funding source from which these services could be provided to Deneale this year is the general revenue appropriation to DCFS.

4. By letter dated September 25, 2002, DCFS advised Deneale that, with regard to those services for which he is eligible:

   [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.

   
   

5. Florida law does in fact prohibit the use of general revenue funds to provide developmental disability services to Deneale and to similarly situated clients when the general revenue budget is in a deficit condition.

6. Section 216.311(1), Florida Statutes, provides in pertinent part as follows:

   No Agency or branch of state government shall contract to spend, or enter into an agreement to spend, any moneys in excess of the amount appropriated to such agency or branch, unless specifically authorized by law. . . .

   
   

7. When the 2002-2003 fiscal year commenced on July 1, 2002, the general revenue budget was already in a $13 million deficit.

8. The deficit had escalated to approximately $17 million by the time of the September 25, 2002, denial of services letter, and by the time of the final hearing had climbed to $23 million.

9. The deficit exists because once clients begin receiving benefits, they may not lawfully be denied those benefits so long as they remain eligible for services. Moreover, once a client begins to receive services, federal law mandates that they be provided with any additional services for which they may become eligible, irrespective of whether or not general revenue funds are available. The cost of furnishing services to clients already being provided services for which they are eligibile has created a deficit which, in the absence of additional funding for DCFS's general revenue appropriation, will continue to grow.

10. The deficit is also exacerbated by inflation, and by increases in the costs of services provided to individuals already receiving benefits.

11. Deneale was placed on a wait list for Medicaid assistance for the services for which he is eligible, retroactive to his August 2002 eligibility date. As a practical

    matter, there is little hope that he will be reached in a timely manner.

12. Caring for Deneale is a demanding task. He rises at 4:00 a.m. and requires constant attention from his mother and step-father, except for the hours he spends at an adult day care program for which his family pays from dwindling personal funds.

13. The demands of caring for Deneale have taken a severe toll on his mother's health, as well as on her marriage of 27 years duration. Mr. Satter loves his family, but is seriously considering divorce because he can no longer cope with the burden of his stepson's care. Even at the cost of her marriage, Mrs. Satter is not willing to abandon her son, which she would have to do in order for the state to step in and relieve the family of the burden of providing Deneale with the full-time care and supervision he requires to survive.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.569, Florida Statutes.

15. At the hearing, the undersigned inquired of counsel whether any cases concerning denial of benefits for lack of general revenue funds had previously been adjudicated or were pending before the Division of Administrative Hearings (DOAH). DCFS counsel cited only one case, Alejandro Penaloza v.

    Department of Children and Family Services, DOAH Case No. 02- 1663 (Recommended Order November 1, 2002) and asked that official recognition be taken of the case.

16. In fact, at least 12 recommended orders have addressed the legal and factual matters at issue here. A reading of previous DOAH decisions reveals that inconsistent results have been reached with regard to such matters as burden of proof, leading to apparently inconsistent results.

17. It appears that the author of DCFS's Proposed Recommended Order in this case was aware of those decisions. This is a reasonable inference because DCFS's Proposed Recommended Order attempted to discredit conclusions of law reached by other administrative law judges on matters which had not been discussed at the final hearing in this case.

18. Here, as in previous DOAH proceedings dealing with similar claims and defenses, DCFS contends that it is Petitioner's burden to prove that the Department has funds to pay for the services for which he is eligible. It appears that a majority of the administrative law judges who have considered the issue has adopted DCFS's position regarding burden of proof, but the undersigned concurs with her colleagues Judge Patricia Hart Malono and Judge John G. VanLaningham that the more persuasive view was articulated by Judge Robert E. Meale in Amber Satterwhite v. Department of Children and Family Services,

    DOAH Case Nos. 02-1238 and 02-1241, 2002 WL 1592409, *8

    
    

    (Recommended Order July 10, 2002) which holds:

    
    

    The issue of lack of funding is an affirmative defense similar to impossibility of performance. Compare Michel v. Beau Rivage Beach Resort Inc., 774 So. 2d 900 (Fla. 4th DCA 2001) and American Aviation Inc. v. Aero-Flight Service Inc., 712 So. 2d 809 (Fla. 4th DCA 1998) (impossibility of performance is an affirmative defense). The burden of proof as to an affirmative defense is on the party asserting the defense. See e.g., Captains Table, Inc. v. Khouri, 208 So. 2d 677 (Fla. 4th DCA 1968). Obviously, developmentally disabled persons lack Respondent's access to the data concerning funding levels in various programs.

    
    

19. DCFS did not address the foregoing analysis, but did attempt to rebut it by citing a case decided by the Illinois Court of Claims. DCFS's analysis on this point was unpersuasive.

20. DCFS also argues that Petitioner lacks standing to bring this action, citing Brasfield & Gorrie General Contractor, Inc. v. Ajax Const. Co., Inc., of Tallahassee, 627 So. 2d 1200, 1202-1203 (Fla. 1st DCA. 1993). There, the court held that a party which had not bid on a contract lacked standing to challenge the manner in which the bid process was conducted. This case does not support an argument that Petitioner's substantial interests are not in fact implicated by the Department's denial of services to which he is admittedly entitled.

21. Section 393.066(4), Florida Statutes, states that the services requested by Deneale are available "to the extent of available resources."

22. Section 65B-4.0008(1), Florida Administrative Code, states that “the Department’s Developmental Services Program shall provide all clients with appropriate services in accordance with their habilitation plan [now called a support plan]. Implementation of this policy, however, is subject to availability of funds.”

23. In this case, DCFS has carried its burden to show, by a greater weight of evidence, that Deneale is not entitled to receive services as a developmentally disabled individual because, even though he is eligible for such services, the general revenue funds appropriated to provide such services are presently in deficit, and the law precludes additional deficit spending for new clients.

24. Instead, Deneale is entitled to be placed on the wait list as of the date of his eligibility, August 23, 2002, for services from the Medicaid program.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Deneale the developmental services for which he was determined eligible as of August 22, 2002.

DONE AND ENTERED this 18th day of April, 2003, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Laurel Hopper, Esquire Department of Children and

Family Services

337 North Fourth Street Fort Pierce, Florida 34950

FLORENCE SNYDER RIVAS

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 18th day of April, 2003.

Jane and Edwin Satter

1774 Southwest Columbia Street Port St. Lucie, Florida 34987

Paul Flounlacker, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700

Jerry Regier, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

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: 02-004273

Orders for Case No: 02-004273