STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK J. HALEY, )

)

Petitioner, )

)

vs. ) Case No. 00-2664

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on February 21, 2001, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Richard E. Haley, pro se

193 La Colina Drive

Edgewater Beach, Florida 32141

For Respondent: Cathy B. McAllister, Esquire

Department of Children and Family Services

210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269

STATEMENT OF THE ISSUE

The issue is whether Petitioner's request for eligibility for developmental services should be approved.

PRELIMINARY STATEMENT

This matter began on June 26, 2000, when Respondent, Department of Children and Family Services, advised Petitioner, Mark J. Haley, that his request for developmental services had been denied. Thereafter, Petitioner requested a hearing under Section 120.569, Florida Statutes, to contest the preliminary decision. The matter was referred by Respondent to the Division of Administrative Hearings on June 29, 2000, with a request that an Administrative Law Judge be assigned to conduct a hearing.

By Notice of Hearing dated July 16, 2000, a final hearing was scheduled on February 6, 2001, in Daytona Beach, Florida. On the undersigned's own motion, the matter was continued to February 21, 2001, at the same location. On February 1, 2001, the case was transferred from Administrative Law Judge S. Diane Cleavinger to the undersigned.

At the final hearing, Petitioner was represented by his father, Richard E. Haley, who also testified on his behalf. Petitioner testified on his own behalf and presented the testimony of Steven Graydo, who is employed by ARC of Alachua County, Inc. Also, he offered Petitioner's Composite Exhibits

1 and 2, which were received in evidence. Respondent presented the testimony of F. Clifton Robertson, a developmental disabilities counselor advisor. Also, it

offered Respondent's Exhibits 1-4, which were received in evidence. Finally, the undersigned tookofficial recognition of Sections 393.063(12) and (34), Florida Statutes (2000).

There is no transcript of the hearing. The parties waived their right to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this dispute over the provision of developmental services, Petitioner, Mark J. Haley, who is 36 years of age, seeks to establish eligibility for such services. Respondent, Department of Children and Family Services (DCFS), which administers that program, has denied the request on the ground that Petitioner's medical condition does not qualify him for services.

2. Under guidelines established in Section 393.063, Florida Statutes (2000), in order to qualify for DCFS services, an applicant must demonstrate that he or she has a developmental disability. That term is defined in part in Subsection (12) as "a disorder or syndrome that is attributable to . . . Prader-Willi [S]yndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely."

3. Subsection (34) of the same statute goes on to define Prader-Willi Syndrone (PWS) as "an inherited condition typlified by neonatal hypotonia with failure to thrive, hyperphagia or an excessive drive to eat which leads to obesity usually at 18 to 36 months of age, mild to moderate retardation, hypogonadism, short stature, mild facial dysmorphism, and a characteristic neurobehavior." (Emphasis added)

4. When he was 18 years old, Petitioner stood six feet, three inches tall and weighed 190 pounds. He was an honor student and merit scholar. Tragically, however, he was diagnosed with a tumor affecting his hypothalumus (an area of the brain), which required surgery and radiation. Over time, and due to damage to his hypothalumus, Petitioner has acquired the symptoms of PWS, which include obesity, uncontrolled appetite, a lack of testosterone, and short temper with poor short-term memory.

5. In April 1999, Petitioner was examined by a University of Florida physician who specializes in genetics. He confirmed that Petitioner's "[a]quired [PMS] is not the result of a genetic defect, but [is] due to damage to the hypothalamus . . . because of his brain tumor." Contrary to an assertion by Petitioner, there is no persuasive medical evidence of record that the tumor was present from a very

   early age and therefore his condition can be characterized as inherited. Rather, a Texas neurosurgeon simply opined that the tumor was "slow growing," and "was most likely present for more than a year before he was first seen and operated on in 1983," when Petitioner was 18 years old.

6. While living in Texas, Petitioner's weight ballooned to 525 pounds. Because of parental concern, in January 1999 Petitioner relocated to Volusia County, Florida, where his parents reside in a retirement community. The parents' intention was to place their son under strict supervision and dietary control in the hopes of reducing his weight. Their efforts have been somewhat successful as Petitioner has lost approximately 100 pounds in the last year and now weighs around 425 pounds.

7. Petitioner's condition is permanent. He suffers from uncontrolled appetite and other deficits which necessitate full-time supervision. He is unable to care for himself. Suffice it to say that Petitioner's elderly parents have encountered difficulty in providing the necessary supervision that he requires.

8. In March 2000, Petitioner filed a request with the DCFS seeking developmental services for his condition. The request was eventually denied on the ground that state law

   requires that a person have inherited, and not acquired, PWS in order to qualify for services.

9. If services are approved, clients are typically placed in a facility that specializes in the full-time treatment and care of persons with PWS. One such facility is ARC of Alachua County, Inc. (ARC), which has 42 PWS patients under its care at this time. Petitioner points out that 4 clients at the facility have acquired PWS, and therefore there is precedent for his receiving services. However, those 4 also have a primary diagnosis of mental retardation, which qualifies them for developmental services, irrespective of the PWS condition. Petitioner does not have mild to moderate retardation.

10. Petitioner's elderly parents are legitimately concerned that once they are gone, there will be no one to care for their son, who requires constant supervision, and that his modest social security disability check is insufficient to pay for services at ARC, which cost around

    $50,000.00 per year. Besides that, the full-time job of supervising their son is a taxing one, and they are not sure how long they can continue to do this. An ARC representative confirmed that the job of caring for a person with PWS is extremely difficult, and he praised the parents for their

    perserverance. Notwithstanding these genuine concerns, however, there is no relief available in this proceeding.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2000).

12. As the party seeking eligibility for developmental services, Petitioner bears the burden of proving his eligibility for such services.

13. Under state law, Petitioner must establish that he has a "developmental disability," as that term is defined, in order to qualify for services. Section 393.063(12), Florida Statutes (2000), identifies PWS as a qualifying disability, but it must be an "inherited condition," and not an acquired one. Whether this distinction in the law was intentional or simply an oversight by its drafters is unknown. In any event, because Petitioner has acquired, and not inherited, PWS, as the law is now written, he cannot qualify for services.

14. In reaching this conclusion, the undersigned has considered several contentions raised by Petitioner at hearing. First, he contended that the tumor causing the condition was present from early childhood, and therefore the PWS can be characterized as "inherited." However, the more

    persuasive evidence shows that the condition was acquired after surgery at age 18.

15. Petitioner also suggested that under the circumstances presented here, the DCFS could waive the requirement that the disability be inherited. While variances or waivers of rules can be granted in certain circumstances, the law does not allow an agency to waive the requirements of a statute. See Section 120.542(1), Florida Statutes (2000)("[t]his section does not authorize agencies to grant variances or waivers to statutes").

16. Petitioner further contended that 4 persons at ARC with acquired-like symptoms of PWS have been determined to be eligible for DCFS services. As pointed out in Finding of Fact 9, however, those persons have a primary diagnosis of mental retardation, which qualifies them for services on that basis alone.

17. Finally, Petitioner's case presents an extremely unfortunate situation where he is being denied needed state assistance because of a narrow definition in the statute. Unless another type of assistance is available, however, Petitioner's only remedy appears to be to seek a change in the law.

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 denying Petitioner's request for a determination that he is eligible for developmental services.

DONE AND ENTERED this 6th day of March, 2001, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

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 March, 2001.

COPIES FURNISHED:

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard E. Haley

193 La Colina Drive Edgewater, Florida 32141

Cathy B. McAllister, Esquire Department of Children and

Family Services

210 North Palmetto Avenue, Suite 210 Daytona Beach, Florida 32114-3269

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to file 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 a final order in this case.

Docket for Case No: 00-002664

Orders for Case No: 00-002664