STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL RAYMOND, )

)

Petitioner, )

)

vs. ) Case No. 00-4223

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on December 22, 2000, in Daytona Beach, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Michael Raymond, pro se

5268 Isabelle Avenue

Port Orange, Florida 32127

For Respondent: Cathy McAllister, Esquire

Department of Children and Family Services

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

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner's request for immediate developmental disability

services, placing him instead on a waiting list for those services due to the unavailability of funds.

PRELIMINARY STATEMENT

By letter dated July 13, 2000, Respondent Department of Children and Family Services (Respondent) denied Petitioner Michael Raymond's (Petitioner) request for developmental disability services in a day-training program. Respondent based the denial on an unavailability of funds for those services.

On July 26, 2000, Petitioner filed a request for an administrative hearing to contest the denial of immediate services. On September 18, 2000, Respondent issued a Notice of Intention to Dismiss Request for Hearing Unless Petitioner Files Additional Information Within Twenty-One Days. Petitioner filed that information on October 8, 2000. Respondent referred this case to the Division of Administrative Hearings on October 12, 2000.

The parties filed a Joint Response to Initial Order on October 19, 2000. A Notice of Hearing dated October 24, 2000, scheduled the case for hearing on December 22, 2000.

Respondent presented its evidence first at the hearing as a convenience to Petitioner. Respondent presented the testimony of two witnesses and offered eight exhibits which were accepted

into evidence. Petitioner presented the testimony of one witness and offered three exhibits which were accepted into evidence.

A Transcript of the proceeding was filed on January 12, 2001. Respondent filed its Proposed Recommended Order on January 18, 2001. Petitioner did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. There are three primary funding sources for persons with developmental disabilities: Individual and Family Supports (IFS program); Home and Community Based Waiver for Persons with Developmental Disabilities (HCBW or Medicaid Waiver program); and Intermediate Care Facility for Developmentally Disabled Clients (ICF/DD program).

2. The IFS program is funded from the state's general revenue. Based upon available funds, this program can pay for summer camps and other services that are not available under the other two programs.

3. The HCBW program provides a variety of services to individuals with developmental disabilities under Section

   19.15 (c) of the Social Security Act. It is a federal matching dollar program with approximately 50 percent of the funds furnished by the state and 50 percent of the funds furnished by

   the federal Medicaid program. Unlike the IFS and ICF/DD programs, the HCBW program can pay for residential habilitation in a home or community setting.

4. The ICF/DD program serves clients in an institutional setting under a Medicaid entitlement program. Unlike the IFS and HCBW programs, which are not entitlement programs, the funds for the ICF/DD program are not limited and do not have to be prioritized.

5. The federal government's Health Care Finance Administration (HCFA) has to approve the state's HCBW program. HCFA's approval serves as a waiver of certain federal Medicaid requirements. The waiver allows the state to serve individuals in community-based settings instead of institutions. The approval process includes identification of the number of individuals to be served, as well as defining the services to be provided and setting forth provider qualifications.

6. In 1998, HCFA approved Respondent's five-year plan for an HCBW program. Under the plan as amended each fiscal year, Respondent makes a commitment to serve the lesser of a target number of individuals or the number of persons authorized by the state legislature. The target number of persons was 15,302, 22,433, and 25,945 for the 1998-1999, 1999-2000, and 2000-2001 fiscal years, respectively. Any difference between the target

   number of individuals to be served and the actual number of individuals served is based on the funds appropriated by the state legislature.

7. Historically, the state has not been able to serve all individuals identified as developmentally disabled. The persons who are not served are placed on a statewide waiting list. Traditionally, individuals are removed from the waiting list and begin receiving services as funds become available.

8. Prior to the 1999 legislative session and after federal litigation, Respondent identified the number of developmentally disabled individuals who were under-served or receiving no services. Respondent made this effort in anticipation of receiving additional funding to begin eliminating the existing waiting list. At that time, Respondent identified 23,361 persons who were on the waiting list.

9. In 1999, Respondent developed and submitted to the Legislature a two-year spending plan. The purpose of the plan was to eliminate the existing waiting list by addressing the needs of the 23,361 people over a two-year period. Respondent based the plan on data then available and the existing case load. The plan assumed that Respondent would prioritize populations and provide services in an organized manner.

10. The two-year spending plan called for new funding in the amount of $98,167,008 for the 1999-2000 fiscal year. The

    plan provided for the delivery of additional services to 15,984 people in the first year (July 1, 1999 through June 30, 2000), with the remaining 7,377 people receiving services in the second year (July 1, 2000 through June 30, 2001). The two-year spending plan estimated that additional funding in the amount of

    $118,215,693 would be required for the 2000-2001 fiscal year to serve the 23,361 people on the waiting list.

11. The two-year spending plan contained the following priorities:

    1. Identify those persons in crisis, both in need of residential or community-based care, and serve them in the first six months.

       
       

       [This goal assumed that Respondent would serve 1,590 persons identified as in crisis in the first six months of the 1999-2000 fiscal year.]

       
       

    2. Identify those persons who are eligible for ICF/DD [Intermediate Care Facilities/Developmental Disabled] (LON [Levels of Need] 3, 4, & 5) and are in need of additional services and provide services (DOE vs. Bush).

       
       

       [This goal assumed that Respondent would continue to serve 1,298 persons already participating in the Medicaid waiver program and begin serving 5,237 additional persons in that program by the end of the 1999-2000 fiscal year.]

       
       

    3. Provide home and community-based services to persons who wish to move from the private institutions to the community (Cramer vs. Bush).

       [This goal assumed that certain numbers of people would elect to move from a private ICF/DD or a nursing home to the community program in the 1999-2000 and 2000-2001 fiscal years.]

       
       

    4. Determine the unmet needs of persons living in residential care, or needing residential care (not crisis) and who are ICF/DD eligible and provide services.

       
       

       [This goal assumed that Respondent would provide enhanced residential care to some persons and new residential care for others.]

       
       

    5. Determine the unmet need of persons not eligible for ICF/DD (LON 1&2) and begin meeting their needs.

       
       

       [This goal assumed that Respondent would meet the needs of all people then on the Medicaid waiver program in the first year. It also assumed that Respondent would provide services to 25 percent of the population who were not on the Medicaid program in the 1999-2000 fiscal year with the remainder receiving services in the 2000-2001 fiscal year.]

       
       

12. In the 1999 legislative season, the Legislature renewed funding for services provided to the existing clients of the HCBW, ICF/DD, and IFS programs. The Legislature also provided additional funding for developmentally disabled persons in the amount of $98,167,008, to meet the priorities, in order, as follows: (a) transitions for those requesting transfers from ICF/DD institutional placements into HCBW residential placements; and (b) meeting the needs of identified under-served participants in the HCBW program. The 1999 Legislature did not

    provide any additional funding for the IFS program that would allow Respondent to increase the number of persons served in the IFS program without decreasing services provided to existing clients.

13. In a memorandum dated June 22, 1999, Respondent advised its district administrators that the 1999-2000 spending plan was approved. The memorandum described certain tasks that had to be completed, together with relevant time frames, before Respondent could spend the appropriated funds. These tasks included the following: (a) Serve persons in crisis; (b) Serve persons wishing to move from ICF/DD to community placements;

    (c) Serve persons on the waiver with unmet needs or who are under-served; (d) Serve persons eligible for ICF/DD or HCBS waiver with unmet needs; and (e) Serve persons with limited and minimal levels of need who are not enrolled in the waiver (not enrolled in HCBW and not eligible for ICF/DD or waiver.)

14. The two-year spending plan developed by Respondent in 1999 did not take into consideration the needs of developmentally disabled persons who were not in crisis and who applied for and became entitled to services after July 1, 1999. Therefore, as non-crisis applicants qualified for services after July 1, 1999, Respondent placed their names on a second waiting list. The new waiting list grew at an unprecedented rate due to the redesigned system and the influx of additional funds.

15. During the 2000 legislative session, Respondent requested and the Legislature appropriated sufficient funds to continue the services provided to persons in the 1999 General Appropriations Act and for an additional 7,377 persons to be served in the 2000-2001 fiscal year. Once again the new funds were earmarked as follows: (a) for clients requesting transfers from a ICF/DD program to a HCBW program; and (b) for under- served clients in the HCBW program. The Legislature earmarked all of the new funding for the HCBW program. The Conference Report on House Bill 2145, General Appropriation Act FY 2000- 2001, Section 3, Specific Appropriation No. 344, specifically stated:

    The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments.

    
    

16. In accordance with the Legislature's appropriations and proviso language for the 1999-2000 and 2000-2001 fiscal years, Respondent implemented a policy to eliminate the existing waiting list for persons seeking developmental disability services. Respondent properly determined that persons with unmet needs, who were on the waiting list as of July 1, 1999, would be served before any one who applied for services after

    that date. According to Respondent's policy, the only exceptions would be individuals who were determined to be in crisis.

17. Respondent's proposed budget for the 2001-2002 fiscal year calls for additional funding for clients who applied for services after July 1, 1999. Respondent projects that 6,774 additional persons would become clients or be waiting for services by the end of the 2001-2002 fiscal year--a net increase in the caseload of 2,258 people annually. Until funding becomes available, these additional people will remain on a waiting list.

18. Under the spending plan in effect at the time of the hearing, some individuals who were on the wait list as of July 1, 1999, still are not receiving services for which they are eligible. These persons are in the process of obtaining services and must be served before persons who became or will become eligible after July 1, 1999.

19. Petitioner became eligible for developmental services in November 1999. He does not presently qualify for services funded by the Legislature in fiscal year 2000-2001 for three reasons: (a) he became eligible after July 1, 1999; (b) he applied for IFS services, a funding category for which the Legislature did not appropriate any new funds for new clients;

    and (c) he is not in crisis. Additionally, Petitioner is currently having his residential training needs met through the Conklin Center, Division of Blind Services.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

21. It is undisputed that Petitioner is eligible to receive services for developmentally disabled persons under the IFS program. The question is whether there are funds currently available that Respondent could use to provide Petitioner with those services. Petitioner has the burden of proving by a preponderance of evidence that such funds are available. Young

    v. Department of Community Affairs, 625 So. 2d 831, 833 (Fla. 1993). He has not met that burden.

22. The Legislature has directed that Respondent provide services to developmentally disabled clients primarily through the HCBW program. The Legislature continues to fund the provision of services for existing clients in the other two programs (IFS and ICF/DD) but new funds are to be expended moving as many clients as possible into the HCBW program. Within the parameters set by the Legislature, Respondent has the

    authority to and has properly established priorities to meet the needs of the under-served and un-served individuals who were on the waiting list as of July 1, 1999.

23. In Section 393.066(4)(a), Florida Statutes, Respondent's provision of services is limited by the extent of available resources. Section 216.311, Florida Statutes, makes it illegal for any state agency to spend money in excess of appropriation. Absent specific legislative direction, it is the exclusive province of the executive branch to decide how to prioritize the distribution of limited appropriations. Department of Health and Rehabilitative Services v. Brooke, 573 So. 2d 363 (Fla. 1st DCA 1991).

24. In this case, Respondent was compelled to decide how it could serve 23,361 clients on the original waiting list and additional persons who became clients after July 1, 1999. Respondent made a reasonable and rational decision to serve people on the original list who had been waiting the longest. Respondent is currently seeking additional funds from the Legislature for clients who became or will become eligible for services after July 1, 1999.

25. Petitioner requested services under the IFS program, not the HCBW program. The Legislature has not provided Respondent with funds to serve new clients in the IFS program.

    For Petitioner to receive a share of the IFS funds currently available, some other existing client's services would have to be decreased.

26. Under the circumstances, Respondent's decision to meet the needs of all clients eligible for services as of July 1, 1999, before providing services to more recent clients like Petitioner, is not arbitrary or capricious. To the contrary, Respondent's policy is reasonable and rational given the limited availability of funds.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Respondent enter a final order affirming its decision that Petitioner remain on the list of clients waiting to receive developmental disability services.

DONE AND ENTERED this 2nd day of February, 2001, in

Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 2nd day of February, 2001.

COPIES FURNISHED:

Michael Raymond

5268 Isabelle Avenue

Port Orange, Florida 32127

Cathy McAllister, Esquire Department of Children and

Family Services

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

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

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: 00-004223

Orders for Case No: 00-004223