STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUDY KUHN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0266

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 6, 1996, a formal administrative hearing was held in this case in Melbourne, Florida, before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: James A. Sawyer, Jr.

District 7 Legal Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

For Respondent: Ms. Mary Sandra Kuhn

Qualified Representative

250 South Sykes Creek Parkway Apartment 201B

Merritt Island, Florida 32952 STATEMENT OF THE ISSUE

Whether a Developmental Services client may receive Medicaid waiver funds for personal recreational transportation services.

PRELIMINARY STATEMENT

By letter dated December 7, 1995, Petitioner's request for the expansion of transportation services provided by Respondent through the use of Medicaid waiver funds was denied. Petitioner requested a formal administrative hearing. This matter was referred to the Division of Administrative Hearings on January 10, 1996, and this hearing followed.

Upon convening the formal hearing, Petitioner requested that her mother, next friend and guardian, Mary Sandra Kuhn, be authorized to represent her during the hearing. Upon diligent inquiry, Sandra Kuhn was determined to be qualified and capable of representing the rights and interests of Petitioner and was authorized to represent her at the hearing. Petitioner called two witnesses

and testified on her own behalf. Eight exhibits were received into evidence, including portions of draft rule 10F-13.005, Florida Administrative Code.

Respondent called one witness and did not offer any additional exhibits. Official Recognition was taken of Section 393.066, Florida Statutes (1995).

A transcript of the hearing was not prepared. Neither party submitted proposed findings of fact. Petitioner submitted a letter, dated March 13, 1996, which is considered to be conclusions of law and argument. It has been given careful consideration.

FINDINGS OF FACT

1. Petitioner is a healthy, alert 27-year-old female individual, who was born with Downs Syndrome and is visually impaired.

   
   

2. Petitioner is an adult and is a Medicaid waiver client of Developmental Services and is receiving supported living services.

   
   

3. Petitioner, by her choice, is presently residing in the home of her mother, Sandra Kuhn. She desires to continue to live independently outside of a group home or institutional setting.

   
   

4. Petitioner desires to have an active social life, outside of work. At present, she participates in the Special Olympics, bowling, attends dances and dates. However, Petitioner's participation is restricted because she must rely on her mother or friends to provide transportation to these functions. She is capable of using a taxi; however, she has limited funds for such purpose.

   
   

5. Petitioner is employed on a regular basis at Brevard Achievement Center (BAC), the local sheltered workshop. She receives transportation services from Space Coast Area Transit (SCAT) five days a week to transport her to and from work. Payment for this service comes from Medicaid waiver funds.

   
   

6. Funds are also provided for Respite Care services for family members on a regular basis.

   
   

7. Petitioner takes the position that the goal of the statute and rules relating to supported living services is to allow clients to live as independently as possible in their own houses and to achieve productive lives as close to normal as possible. Section 393.066(1) and (4), Florida Statutes. Petitioner states that an important part of living a normal and productive life is the ability to partake of recreational and leisure activities and to develop interpersonal relations outside of work or the client's immediate family. This can be accomplished by authorizing waiver funds to provide transportation services to special events or regularly-scheduled activities. Petitioner argues that such services may be authorized under the current rules, as provided in Rule 10F-11.006(1),(3),(h),(l),(m),(p), Florida Administrative Code. The Department is considering a change in its policy regarding the use of waiver funds to provide transportation services for leisure and/or recreational uses by drafting proposed Chapter 10F-13, Florida Administrative Code.

   
   

8. Such services have been requested by Petitioner in her support plan for more than two years. Petitioner's Support Coordinator has supported this request. However, such request has been denied by the District Seven Developmental Services Office.

9. Respondent takes the position that waiver funds can only be used to provide transportation services for such purposes that will prevent the institutionalization of a client. The District's position is that regardless of whether funding is available, waiver funds cannot be used to provide for recreational or leisure activities.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter, pursuant to the provisions of Sections 120.57(1) and 393.0651, Florida Statutes (1993).

    
    

11. Chapter 393, Florida Statutes, known as the Developmental Disabilities Prevention and Community Services Act, contains definitions in Section 393.063, Florida Statutes, which state, in pertinent part:

    
    

    1. 'Active treatment' means the provision of services by an interdisciplinary team necessary to maximize a client's individual independence or prevent regression or loss of functional status.

       1. 'Client' means any person determined eligible by the department for developmental services.

       2. 'Client advocate' means a friend or relative of the client, or of the client's immediate family, who advocates for the best interests of the client in any proceedings under this chapter in which the client or his

          or her family has the right or duty to participate.

       3. 'Habilitation' means the process by which a client is assisted to acquire and maintain those life skills which enable the client to cope more effectively with the demands of his or her condition and environment and to raise the level of his or her physical, mental, and social efficiency. It includes, but is not limited to, programs of formal structured education and treatment.

       4. 'Support coordinator' means a person who is designated by the department to assist individuals and families in identifying their desires, capacities, needs, and resources, as

       well as finding and gaining access to necessary supports and services; advocating on behalf of the individual and family; maintaining relevant records; and monitoring and evaluating the delivery of supports and services to determine the extent to which they meet the needs and expectations identified by the individual, family, and others who participated in the development of the support plan.

12. Section 393.0651, Florida Statutes, provides, in pertinent part:

    
    

    Family or individual support plan. - The department shall provide for an appropriate

    . . . individual support plan for each client. The . . . client . . . shall be consulted in the development of the plan and shall receive a copy of the plan. . . . The ultimate goal of each plan, whenever possible, shall be to enable the client to live a dignified life in the least restrictive setting, be that in the home or in the community. . . .

    (3) Each family or individual support plan shall be facilitated through case management designed solely to advance the individual needs of the client.

13. Section 393.066, Florida Statutes, provides, in pertinent part: Community services and treatment for persons who a developmentally

    disabled. -

    
    

    1. . . . 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. . . .

       1. Community-based services shall, to the extent of available resources, include:

          . . .

          (f) Recreation.

          1. Transportation.

          2. Other habilitative and rehabilitative services as needed.

          
          

14. Section 393.066, Florida Statutes, has been implemented through the adoption of administrative rules by the Respondent. Rules relating to supported living services have been codified in Chapter 10F-11, Florida Administrative Code.

    
    

15. Rule 10F-11.002, Florida Administrative Code, relating to definitions, states, in pertinent part:

    
    

    1. 'Individual' mean an adult who has developmental disabilities, who is a client of developmental services as defined in Chapter 393, F.S., and is receiving supported living services.

    (8) 'Support plan' means a plan of supports and services for the individual developed in such a manner whereby the individual controls and directs the process. The support plan identifies the preferences and needs of the individual and authorizes the supports, resources and services necessary to meet

    those preferences and needs.

    (11) 'Supported living services' means the

    provision of supports necessary for an adult who has a developmental disability to establish, live in and maintain his or her own household in the community. For purposes

    of this rule, supported living services include supported living coaching provided through state general revenue funds, the CSLA Medicaid state plan option and the Developmental Services Home and Community-Based Services (DS/HCBS) Waiver.

    
    

16. Rule 10F-11.003, Florida Administrative Code, relating to eligibility for services, states, in pertinent part:

    
    

    1. All persons eighteen (18) years of age or older who have developmental disabilities, reside within the state of Florida and are clients of developmental services shall be eligible for supported living services.

       (3) Persons who are clients of developmental services shall make a request for such services through their support coordinator.

       (5) Supported living services must be authorized by an individual's support plan. . . .

       
       

17. Rule 10F-11.006, Florida Administrative Code, relating to planning for supported living services, states, in pertinent part:

    
    

    1. An individual's desire and willingness to participate in supported living shall be considered as part of the support planning process, and supported living services shall be authorized by the support plan when

       requested by the individual or the individual's guardian.

       (3) Supported living services are authorized and provided in any of the following support areas based on functional assessment of the individual's capacities in the community and the individual's preferences.

       (l) Recreation and leisure;

       (q) Facilitation of one-to-one relation-ships;

       . . .

       
       

18. Review of the statutes and rules indicates that the District's interpretation of the purposes for which the waiver funds can be used is too narrow. The ultimate goal of community services is to enable a client to live a dignified life in the least restrictive setting, to live as independently as possible, and to achieve productive lives as close to normal as possible. Sections 393.0651 and 393.066(1), Florida Statutes. Such a statement encompasses more than merely providing transportation services to and from work. It includes other community-based services, such as transportation for recreation and leisure, subject to the extent of available resources. Section 393.066(4), Florida Statutes.

    
    

19. Petitioner's request for transportation services for recreation and leisure purposes should be approved on a limited basis, such as, once a week within a reasonable geographic distance from her home. It should be for

organized social activities, such as, a bowling league, special olympic events and scheduled dances. All such authorization shall be subject to available resources.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a Final Order granting Petitioner's request for waiver funds to be used for

transportation services, subject to the restrictions contained in paragraph 19 and availability of funds for such purpose.

DONE and ENTERED this 24th day of April, 1996, in Tallahassee, Florida.

DANIEL M. KILBRIDE, 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 24th day of April, 1996.

COPIES FURNISHED:

James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite S-827 Orlando, Florida 32801

Ms. Mary Sandra Kuhn

250 South Sykes Creek Parkway Apartment 201B

Merritt Island, Florida 32952

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 728

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health and

Rehabilitative Services Building 7, Suite 728

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to 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: 96-000266

Orders for Case No: 96-000266