STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TESHA LaSHAWN ATKINSON, LaTESHA ) BARKI ATKINSON, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 88-4583RP

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on December 12-13, 1988, in Tallahassee, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioners: Patricia Clare

Jacksonville Area Legal Aid, Inc.

604 Hogan Street

Jacksonville, Florida 32202

Cindy Huddleston

Florida Legal Services, Inc.

345 South Magnolia Drive, Suite A-27 Tallahassee, Florida 32301

Paulette Ettachild

Legal Services of Greater Miami, Inc.

225 North East 34th Street, Suite 300 Miami, Florida 33137

For Respondent: Carl Bruce Morstadt

Department of Health and Rehabilitative Services

1323 Winewood Blvd.

Tallahassee, Florida 32301

George Morris

Department of Health and Rehabilitative Services

1317 Winewood Blvd.

Tallahassee, Florida 32301

BACKGROUND AND PROCEDURAL MATTERS

This case began on September 16, 1988, when the Petitioners filed a Petition to Determine Invalidity of Proposed Rule No. 10C-1.113 which had been promulgated by the Department of Health and Rehabilitative Services (Department). This proposed rule had been advertised for adoption in Florida Law Weekly on August 26, 1988. The specific authority for the proposed rule was cited as Section 409.026, Florida Statutes, and the law to be implemented was Section 409.029, Florida Statutes. The case was forwarded to the Division of Administrative Hearings for formal proceedings on September 16, 1988. A Notice of Hearing dated September 23,1988, scheduled the case for hearing on October 10, 1988. The parties then stipulated to the continuance of this matter and requested that the case be rescheduled for November 7-8, 1988. Thereafter, the Petitioners requested a second continuance (to which the Department agreed), which was granted, and the matter was rescheduled for December 5 and 12, 1988.

On November 2, 1988, Petitioners moved to amend their petition and alleged that as a result of discovery, new grounds which were not previously known and which were not apparent on the face of the proposed rule, were now known which would invalidate the proposed rule; such motion was granted on November 23, 1988. Thereafter, the Department amended the proposed rule and the economic impact statement. On December 9, 1988, Petitioners moved for leave to file an amended petition in order to challenge the proposed rule, as amended. This motion was granted. Commencement of the hearing was then delayed until December 12, 1988, in order to allow the parties additional time for discovery and preparation.

The amended petition alleged the amended proposed rule is an invalid exercise of delegated legislative authority in that: it violates Section 409.029(8)(b), Florida Statutes, by requiring applicants and recipients with children under three years of age to participate in the Department's employment and training program; it violates Section 409.029(7)(a)(1)(c), Florida Statutes, by relying upon teenage parents to leave their children in unlicensed child care instead of encouraging them to make licensed child care contracts; it violates Section 409.029(i)(5), Florida Statutes, by instituting a mandatory teenage parent program without publicizing the existence of the voluntary teenage parent program authorized by the 1987 Florida legislature; it violates teenage mothers' and their children's rights of privacy as guaranteed by the Florida and United States Constitutions; it violates Section 409.029(2)(i)(4), Florida Statutes, by failing to make expenditures where they can do the most good; it violates Section 409.029(9)(e), Florida Statutes, by failing to allow teenage parents who have dropped out of school the choice of pursuing high school completion or an equivalency certificate; it violates Section 409.029(9)(e), Florida Statutes, by requiring teenage parents who are pursuing a high school diploma or equivalency to participate in other program activities; it violates Section 120.54(13)(b), Florida Statutes, because it was substantially amended for reasons other than those authorized; it fails to restrict its applicability to only those teenage parents living in the counties where the rule will be implemented; and it is being implemented despite the pendency of this challenge to its validity in violation of Section 120.54, Florida Statutes.

At the hearing, Petitioners presented the testimony of the following witnesses: Dr. Connor M. Walters, accepted as an expert in early infancy and early child development, and Petitioner, Tesha LaShawn Atkinson. Petitioners' exhibits numbered 1-6, 8-11, and 13-18 were admitted into evidence. The Department presented the testimony of the following witnesses: Susan Muenchow, program supervisor for child daycare for the Children Youth and Families Office

at the Department; Jack Brizius, accepted as an expert in policy development in human services, welfare, education and job training; Dr. Rhonda S. Cameron, psychologist, accepted as an expert regarding the emotional and psychological issues relating to adolescent mothers and teenage mothers-to-be; Dr. Prentiss Findlay, accepted as an expert in pediatrics; and Jim Clark, director of the Project Independence program. The Department's exhibits numbered 1, 2, 7, 8,

1. , 19, 20, 21, 23, and 24 were admitted into evidence. The parties agreed to file their proposed findings of fact and conclusions of law within ten (10) days of the filing of the transcript. The transcript was filed on January 11, 1989. The Petitioners moved for leave to file a proposal in excess of forty pages which was granted. The proposed findings of fact and conclusions of law were filed on January 23, 1989, and have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

   
   

   STATEMENT OF THE ISSUE

   
   

   The central issue in this case is whether the proposed rule 10C-1.113, Florida Administrative Code, is invalid.

   
   

   FINDINGS OF FACT

   
   

   Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

   
   

   1. Petitioner, Tesha LaShawn Atkinson, is the sixteen (16) year old mother of Petitioners, LaTesha Barki Atkinson, age two years and two months, and Tiffany LaShawn Atkinson, age four months and two weeks; such ages being determined as of the filing of the amended petition on December 9, 1988. Accordingly, Petitioner, Tesha LaShawn Atkinson, is a "teenage parent" as that term is defined in Section 409.029, Florida Statutes.

      
      

   2. Petitioners reside at 1353 W. 15 Street, Jacksonville, Florida, which is within a geographical area where the proposed rule would be implemented.

      
      

   3. Petitioners are currently recipients of Aid to Families with Dependent Children (AFDC). Petitioners' AFDC family number is 224-76-77.

      
      

   4. Pursuant to the proposed rule, Petitioner, Tesha LaShawn Atkinson, would be required to attend school or otherwise participate in a Project Independence program in order to continue receiving AFDC benefits.

      
      

   5. Petitioner, Tesha LaShawn Atkinson, has completed the 10th grade. She has no family member available to care for her children during the daytime hours she would be required to participate in Project Independence. Further, she does not wish to place her children in a daycare center.

      
      

   6. Proposed rule 10C-1.113 requires each AFDC applicant and recipient to participate in the AFDC employment and training program, unless exempted under federal or state guidelines. An exemption is available for a child under age 16; unless the child is a teenage parent. A "teenage parent" includes any person 14 years of age or older but less than 20 years of age who is pregnant or who is already a parent. Other exemptions are available for a pregnant woman in her third trimester and a custodial teen parent during the three month period following the birth of the child. A teen parent with a four month old child who is an AFDC applicant or recipient would be required to comply with the rule.

   7. The proposed rule 10C-1.113 is similar to programs being implemented in other states such as Arkansas. These similar plans condition the eligibility for welfare benefits to school attendance or appropriate training programs. Plans implemented in other states have accomplished the goal of having welfare teen mothers become less likely to remain on welfare since literacy is increased, ability to earn more money is increased, and the chance of having a second child is reduced.

      
      

   8. The proposed rule requires that a mandatory participant comply with the program and provides sanction procedures for the failure or refusal to comply. Prior to initiating sanctioning, the employment and training staff is required to determine whether the participant failed or refused to comply for reasons of good cause. Among the reasons cited as constituting good cause are that needed child care or transportation support services are not available. The Department is obligated to provide the necessary support services defined in Section 409.029(7)(a), Florida Statutes, to the extent that funds are available. If child care, transportation or any other support service that is necessary to enable participation in a program activity is not available, the participant is not required to participate until the needed service becomes available.

      
      

   9. The Department has printed a handbook which directs the districts to implement the teen parent program. The publication, however, clearly states that the proposed rule has been challenged and that while "the rule challenge is pending, teens are required to participate, but cannot be sanctioned for refusal or failure to participate."

      
      

   10. The proposed rule is to be implemented state-wide to the extent funds are available. At this point in time, however, all 11 Department districts will be represented by the program operating in only 14 counties. Only estimates can be given for the number of teen parents within those counties who will participate in the program. Consequently, the costs associated with the implementation of the program have been calculated based upon the numbers in the affected counties. As the program grows and funding becomes available, all areas would be required to comply.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

       
       

   12. Section 409.029, Florida Statutes, known as the "Florida Employment Opportunity Act," provides, in part:

       
       

       (2)(h) Special programs for teenage parents who are public assistance applicants and recipients should be developed to prevent long-term welfare dependency.

       * * *

       (3)(e) "Program participant" means an AFDC applicant or recipient or a food stamp recipient who is required to participate or who volunteers to participate in the employment and training activities provided for in this act.

       * * *

       (3)(g) "Teenage parent" includes any person

       14 years of age or older but less than 20

       years of age who is pregnant or who is already a parent.

       * * *

       (8)(b) Every public assistance applicant and recipient whose youngest child is 3 years of age or older shall be required to participate in the employment and training program as provided in this act, unless the applicant or recipient is determined to be exempt according to applicable federal exemption criteria or to be deferred from participation according to paragraph (c).

       * * *

       (9)(e) A teenage parent participant who has dropped out of school or who is working on his high school equivalency as prescribed in paragraph (i) shall be encouraged and given the opportunity to work on a high school diploma or equivalency and receive support services under this act and not be required to participate in other program activities. A teenage parent public assistance applicant or recipient who chooses not to pursue high school completion or an equivalency certificate as prescribed in paragraph (i) shall participate in appropriate program activities based on the assessment and prescribed in the employment plan contract.

       * * *

       (9)(i) Continued educational participation for the purpose of meeting the participation requirements of this act, in all instances, depends upon satisfactory progress and regular attendance as determined by the educational entity.

       
       

   13. Petitioners argue that the proposed rule is being implemented despite the pendency of this challenge to its validity in violation of Section 120.54(4)(c), Florida Statutes. The publication of a handbook which outlines applicable procedures does not, of itself, establish that the rule is being improperly implemented. In any event, this would not be a matter for determination before this tribunal.

       
       

   14. Petitioners argue that the proposed rule is invalid because it fails to restrict its applicability to only those teenage parents living in the counties where the rule will be implemented. The Department is not obligated to restrict the implementation of the proposed rule and has indicated a geographical limitation only due to the availability of services and funding.

       To the extent funding and services are available, state-wide implementation is contemplated. Accordingly, it is not inappropriate to limit the scope of its effectiveness. The proposed rule is not invalid on the basis of its scope of implementation.

       
       

   15. Petitioners argue that the proposed rule is invalid because it was substantially amended for reasons other than those authorized. The amendments to the proposed rule were either technical changes which did not affect the substance of the rule or were changes in response to written material relating

       to the rule received by the agency within 21 days after the notice and made a part of the record of these proceedings and were in accordance with Section 120.54(13)(b), Florida Statutes. Consequently, the challenge to the proposed rule on the grounds of improper amendment must fail.

       
       

   16. Petitioners' contentions that the proposed rule requires teenage parents who are pursuing a high school diploma or equivalency to participate in other program activities and that it fails to allow teenage parents who have dropped out of school the choice of pursuing high school completion or an equivalency certification are without merit and are unsupported by the record in this cause. The rule specifies that a drop-out shall continue in an educational setting to obtain a diploma or certification unless it would be inappropriate to do so. Further, the proposed rule allows a participant to continue working on a diploma or certificate if they are making satisfactory progress and attending. Both of the cited provisions meet the statutory directive found in Section 409.029(9)(i), Florida Statutes.

       
       

   17. Also deemed without merit or unsupported by the record in this matter are Petitioners assertions that the proposed rule fails to make expenditures where they can do the most good, causes teenage parents to leave their children in unlicensed child care instead of encouraging them to make licensed child care contracts, and institutes a mandatory program without publicizing the voluntary program. The Department has established a rational basis for the program to be implemented. That the Department might expend monies in areas and on programs differing from the objectives of the Petitioners' does not invalidate the rule. The distinction between licensed child care and unlicensed care is not addressed by statute. If appropriate care is unavailable, the parent is not required to comply with the rule. If child care is available, and if a participant needs such care in order to participate in the program, such support is to be provided. See Section 409.029(7)(a)1., Florida Statutes. To the extent a teenage parent is not exempt, participation is mandatory as for any other AFDC applicant or recipient. The Department should make teenage parents aware of the program on a voluntary basis; however, whether that has been done or will be done is not, as a matter of law, a basis for invalidating the rule.

       
       

   18. Petitioners also claim that the proposed rule violates teenage mothers' and their children's rights of privacy as guaranteed by the Florida and United States Constitutions. In this case, the legislature has made specific findings which substantiate the rationale behind the law. The legislative findings and intent are found in Section 409.029(2), Florida Statutes. The Department has further established a bona fide need for the program and that the program suggested for teenage parents has been proven successful in other states. Consequently, the state interest of assisting public assistance recipients to successfully make the transition to self-supporting citizens does not unreasonably interfere with the recipients' rights. Therefore, to the extent that the rule requires a teenage parent who is not otherwise exempt to participate in the program, the proposed rule is not invalid as an infringement of any constitutional right.

       
       

   19. Finally, Petitioners contend that the proposed rule violates Section 409.029(8)(b), Florida Statutes, by requiring applicants and recipients with children under three years of age to participate in the Department's employment and training program. Specifically, since the rule exempts a parent or a caretaker relative of a child under age 3, who personally provides full-time care of the child with only brief and infrequent absences, the true thrust of this challenge is the requirement that teen parents with a child under age 3 must participate. Obviously, teen parents have been targeted for good reason.

       The statistical data confirms the increased likelihood that teen mothers away from an educational or training setting will become pregnant with a second child within a short period of time. Further, the Department has established that teen parents who are placed back into an educational or training setting become more self-sufficient. While the proposed rule has a noble purpose, the authority to enact a rule is limited by the statutory guidelines set by the legislature. In this instance, the legislature has spoken clearly and unambiguously. Section 409.029(8)(b), Florida Statutes, provides:

       
       

       (b) Every public assistance applicant and recipient whose youngest child is 3 years of age or older shall be required to participate in the employment and training program as provided in this act, unless the applicant or recipient is determined to be exempt according to applicable federal exemption criteria or to be deferred from participation according to paragraph (c).

       
       

   20. The Florida Employment Opportunity Act accomplished several objectives. First, it mandated that public assistance recipients participate in an employment and training program. It also directed the Department to develop special programs for teenage parents who are public assistance applicants and recipients so that long-term welfare dependency might be prevented. The legislature contemplated that participation in this program would be both mandatory for some and voluntary for others. See Section 409.029(3)(e), Florida Statutes. Teenage parents who are otherwise exempt might wish to voluntarily participate in the program. However, by law, no parent whose youngest child is under 3 years of age must participate and the proposed rule may not exceed such statutory authority by creating a second mandatory class of participants. Consequently, those portions of the proposed rule which require a teenage parent with a child under 3 years of age to participate in the employment and training program or be sanctioned must be declared invalid as an invalid exercise of delegated legislative authority.

Based on the foregoing, it is ORDERED:

That the proposed rule 10C-1.113 is an invalid exercise of delegated legislative authority to the extent that it requires teenage parents who are public assistance applicants or recipients and who have a child under 3 years of age to participate in the employment and training program provided by the Florida Employment Opportunity Act.

DONE and ORDERED this 21st day of February, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1989.

APPENDIX

RULINGS ON PETITIONERS' PROPOSED FINDINGS OF FACT:

1. Paragraphs 1-3 are accepted.

2. Paragraph 4 is rejected as argument.

3. Paragraphs 5-8 are rejected as argument, unsupported by the record, or irrelevant.

4. Paragraphs 9-13 are rejected as irrelevant, immaterial, outside the scope of the record presented herein, or a conclusion of law and fact previously not timely made an issue in this cause.

5. Paragraph 14 is rejected as argument or a conclusion of law.

6. Paragraph 15 is rejected as argument or a conclusion of law.

7. Paragraph 16 is rejected as irrelevant or immaterial.

8. Paragraphs 17 and 18 are accepted but are irrelevant or immaterial.

9. Paragraphs 19-25 are rejected as argument, irrelevant, or immaterial to the issues of this case.

10. Paragraph 26 is accepted.

11. Paragraphs 27-30 are accepted.

12. Paragraphs 31-41 are rejected as irrelevant, immaterial, or unnecessary to the determination of the issues of this case.

13. Paragraphs 42-104 are rejected as irrelevant, conclusions of law, argument, or unsupported by the record.

14. Paragraphs 105-107 are accepted.

15. Paragraphs 108-109 are accepted but are irrelevant or immaterial. Licensed vs. unlicensed care is not at issue in this cause. If appropriate child care is unavailable (a determination made on a case-by-case basis), the recipient is not required to participate.

16. Paragraphs 110-112 are rejected as unsupported by the record, argument, or irrelevant.

17. Paragraphs 113 and 114 are accepted but are irrelevant.

18. Paragraphs 115-120 are rejected as contrary to the weight of the evidence presented.

19. Paragraph 121 is rejected as contrary to the evidence since only newborns were described with limited immunization. Children of several months' age do have immunity to infection. The record was unclear as to when, exactly, the immune system is developed.

20. Paragraphs 122-141 are rejected as irrelevant, immaterial, or contrary to the weight of evidence in this cause.

21. Paragraphs 142-148 are accepted but are irrelevant or immaterial to this cause.

22. Paragraph 149 is accepted.

23. Paragraph 150 is rejected, the rule will be implemented state-wide but initially only in 14 counties.

24. Paragraphs 151 and 152 are accepted.

25. Paragraphs 153-154 are rejected as conclusion of law argument, irrelevant or unsupported by the record.

26. Paragraphs 155-161 are rejected as argument, conclusion of law, irrelevant, immaterial, or unsupported by the record.

27. Paragraphs 162-168 are accepted.

28. Paragraph 169 is accepted but is irrelevant.

29. Paragraphs 170-172 are accepted.

30. Paragraphs 173 and 174 are accepted but are irrelevant.

31. Paragraphs 175-177 are rejected as contrary to the weight of the evidence presented.

32. Paragraph 178 is rejected as unsupported by the record.

33. Paragraphs 179-183 are accepted.

34. Paragraphs 184-87 are rejected as irrelevant or immaterial.

35. Paragraphs 188-189 are rejected as argument, conclusion of law or unsupported by the record.

RULINGS ON THE DEPARTMENT'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1-19 are accepted.

2. Paragraphs 20-25 are accepted but are irrelevant or immaterial.

3. Paragraph 26 is rejected as irrelevant, immaterial, or unsupported by the record.

4. Paragraph 27 is accepted but is irrelevant.

5. Paragraphs 28-32 are accepted but are irrelevant.

6. Paragraphs 33-35 are accepted.

7. Paragraph 36 is rejected as argument.

8. Paragraphs 37-42 are rejected as irrelevant or immaterial.

9. With the deletion of the word "awfully," paragraph 43 is accepted.

10. Paragraphs 43-47 are accepted.

11. Paragraph 48-49 are accepted but are irrelevant.

12. Paragraph 50 is accepted.

13. Paragraph 51 is rejected as argument.

14. Paragraphs 52-55 are accepted.

15. Paragraph 56 is rejected as commentary, argument, or irrelevant.

16. Paragraph 57 is accepted.

17. Paragraphs 58-61 are accepted.

COPIES FURNISHED:

Patricia A. Clare

Jacksonville Area Legal Aid, Inc. 604 Hogan Street

Jacksonville, Florida 32202-4092

Cindy Huddleston

Florida Legal Services, Inc.

345 S. Magnolia Drive, Suite A-27 Tallahassee, Florida 32301

Paulette Ettachild

Legal Services of Greater Miami

225 N.E. 34th Street, Suite 300 Miami, Florida 33137

Carl Bruce Norstadt Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

George Morris

Department of Health and Rehabilitative Services

1317 Winewood Blvd.

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures

Committee

120 Holland Building Tallahassee, Florida 32399-1300

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED, TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH - THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO DEPARTMENT OF HEALTH AND FILE MOTION FOR REHEARING AND REHABILITATIVE SERVICES, DISPOSITION THEREOF IF FILED.

Appellant, CASE NO. 89-681

DOAH CASE NO. 88-4583RP

vs.

TESHA LaSHAWN ATKINSON, LaTESHA BARKI ATKINSON, and TIFFANY LaSHAWN ATKINSON, by

and through TESHA LaSHAWN ATKINSON, their mother and next friend,

Appellees.

/ Opinion filed August 16, 1989.

An appeal from a final order of the Division of Administrative Hearings. Ken Muszynski, Assistant General Counsel, for appellant.

Patricia Clare, Jacksonville Area Legal Aid, Inc., Cindy Huddleston, Florida Legal Services, Inc., Tallahassee, and Paulette Ettachild, Legal Services of Greater Miami, Inc, for appellees.

PER CURIAM.

The Florida Department of Health and Rehabilitative Services appeals an order of the Division of Administrative Hearings that held invalid in part proposed Rule 10C-1.113, Florida Administrative Code. The hearing officer found that the portion of the proposed rule which required the participation of teenage parents with children more than three months old in an employment and training program exceeded the agency's authority under section 409.029(8)(b), Florida Statutes (1987). Now the parties have brought to our attention the enactment of chapters 89-334 and 89-379, Laws of Florida, which authorize the portion of the proposed rule that was held invalid. The parties are in agreement therefore that this appeal is moot, but disagree as to the proper disposition of this cause. We find the appropriate remedy is to vacate the hearing officer's order and remand to the Division of Administrative Hearings

for further appropriate proceedings, Mayo v. Florida Grapefruit Growers Protective Association, 123 Fla. 227, 166 So. 554 (1936).

BOOTH, JOANOS and MINER, JJ., CONCUR.

Docket for Case No: 88-004583RP

Orders for Case No: 88-004583RP