STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE LEE KELLY, )

)

Petitioner, )

)

vs. ) Case No. 00-4254

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 20, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Kimberly Maffei Kelly, pro se

9127 Foxwood Drive

Tallahassee, Florida 32308

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner Monroe Lee Kelly, the minor son of his personal representative and mother, Kimberly Maffei Kelly, should immediately receive

developmental services or remain on a waiting list for such

services.

PRELIMINARY STATEMENT

On behalf of her three-year-old son, Monroe Lee Kelly, Petitioner's mother asked for an administrative hearing to challenge the decision of the Department of Children and Family Services to place Monroe Lee Kelly on a waiting list for developmental services rather than to provide them as soon as he qualified for them.

At the hearing, Petitioner's mother offered into evidence one exhibit and called one witness. Neither Petitioner nor Petitioner's father, who also appeared at the hearing, were sworn in as witnesses. Respondent Department of Children and Family Services (Department), introduced seven exhibits into evidence and offered the testimony of two witnesses, Deputy Chief of Operations (Developmental Services Program) Kerry Schoolfield and Human Services Counselor Janet Herring.

After the hearing, both parties filed Proposed Recommended Order's on November 30, 2000.

FINDINGS OF FACT

1. Monroe Lee Kelly is three years old and displays verbal apraxia. Verbal apraxia is delayed speech development. He became a client of Developmental Services on July 28, 2000, after a legislatively designated funding cut-off date of July 1,

   1999. Monroe Kelly was receiving speech therapy through Children's Medical Services. However, because he turned three years old he no longer qualifies for services under the medical program even though his apraxia is still a problem. Therefore, the medical program referred Monroe Kelly to Developmental Services for evaluation. Petitioner's mother was also informed by the Department that her son could receive speech therapy to ameliorate this condition from the school system. Verbal apraxia puts Monroe Lee Kelly at risk of having a developmental disability, but is not itself a developmental disability.

   Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Monroe Lee Kelly as a client because of his risk status. His mother, for personal reasons, did not apply for benefits through the Medicaid Waiver program.

2. Thus Monroe Lee Kelly is a client of the Developmental Services Program of the Department and is therefore eligible to receive developmental services from that program. The only question is whether Monroe Lee Kelly should receive those services for which he is eligible immediately or remain on the waiting list. Currently there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 2000.

3. A long and complex chain of events and circumstances led to the situation faced by Monroe Lee Kelly. Prior to the 1999 legislative session and after federal litigation, the Department identified 23,361 Developmental Services clients who were enrolled in the developmental services program but were receiving inadequate services.

4. The Governor, members of the Legislature, and the Department met to address this problem and jointly proposed to the Legislature for fiscal year 1999-2000, a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001.

5. The Legislature elected to route the new moneys into the Medicaid Waiver program, because that program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature.

6. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid

   program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on them must be prioritized.

7. The Legislature directed the Department to prioritize these limited funds by requiring that they be spent first on providing full services to the 23,361 clients already known to the Department as of July 1, 2000.

8. The Department implemented this mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 2000, would receive services. All others would be put on a waiting list. The Department is currently working on a Legislative Budget Request for the coming year which will address the needs of clients, such as Monroe Lee Kelly who came into the system after July 1, 2000.

9. Even so, Monroe Lee Kelly is not eligible for the Medicaid Waiver since Ms. Kelly has declined to apply for Medicaid. The funds she seeks come from another source, the Individual and Family Support appropriation. Nevertheless, for the reasons set forth below, the result in this case is the same as if her child had been on the Medicaid Waiver.

10. In order to consistently apply the legislative intent behind this appropriation scheme to all Developmental Services clients, the Department has applied the prioritization described in paragraph 7, not only to the appropriations made through the

    Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation.

11. The prioritization is required because, in the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained stable, the new client base has increased by approximately 8,000 clients since July 1, 1999, and the Department can only provide funds to new clients by withholding services from existing clients who received these services in past years. An untenable result. Moreover, the interests of fairness require that the allocation of Developmental Services money be made on a consistent basis. This is particularly true inasmuch as many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Finally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys entrusted to it by the Legislature in the same manner as the Medicaid Waiver moneys is not unreasonable or unfair.

12. Because Monroe Lee Kelly became a client after July 1, 1999, he can only receive services if he is in crisis. The Department has identified six conditions which, if present,

    constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are:

    A court order from a criminal proceeding requires the Department to provide services.

    
    

    The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately.

    
    

    The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur.

    
    

    The client is homeless, living either in a homeless shelter or on the street.

    
    

    The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver.

    
    

    Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided.

    
    

13. Monroe Lee Kelly met none of the foregoing criteria.

    
    

    Consequently, the Department could not provide him the services his mother sought on his behalf.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

15. The Legislature has directed that the Department of Children and Family Services provide services to developmentally disabled clients through the Home and Community Based Waiver

    appropriations and the Individual and Family Support appropriations. Within the parameters set by the Legislature for these funds the Department has the discretion and must prioritize the allocation of these funds among the developmentally disabled population in a reasonable manner. The Department, having both the programmatic expertise in this area and the obligation to serve these citizens in a responsible manner, is and ought to be accorded great deference in performing this function. In this case, the Department has made such a reasonable allocation in this case.

16. The Legislature itself has mandated that the Department's provision of services is limited by the extent of available resources. See Section 390.066(4)(a), Florida Statutes. Section 216.311, Florida Statutes, makes it illegal for any state agency to spend money in excess of its appropriations.

17. In Department of Health and Rehabilitative Services v.

Brooke, 573 So. 2d 363 (Fla. 1st DCA 1991), a trial court ordered, among other things, that the Department make a placement of a child which would cause it to spend money in excess of its appropriation. The First District Court of Appeals reversed, finding that any attempt to compel the Department to spend in excess of its resources was outside the jurisdiction of the trial court. Brooke, supra, 573 So. 2d at

370. In a similar situation, the Fourth District Court of Appeals ruled that compelling an agency to spend beyond its appropriation constitutes a violation of the doctrine of separation of powers. See Department of Juvenile Justice v. C.M., 704 So. 2d 1123, 1125 (Fla. 4th DCA 1998).

1. The same principle applies to an agency's reasonable prioritization decisions with regard to existing funds. See Department of Health and Rehabilitative Services v. V.L., 583

   So. 2d 765, 767 (Fla. 5th DCA 1991).

   
   

2. In the instant case, the Department was compelled to decide how it could serve the previously existing 23,361 clients and the additional 8,000 persons who became clients since

   July 1, 1999, with moneys sufficient to serve only the original 23,361 clients. In so deciding, the Department reasoned that the fairest approach was to serve first the clients who had been waiting the longest, while seeking additional funds from the Legislature for those clients who came into the system later.

   This determination was consistent with principles of equity and with the legislative directives which mandated that the Medicaid Waiver moneys be so prioritized.

3. Ms. Kelly presented no evidence of any kind to indicate that her son met any of the six crisis criteria which might have allowed the Department to except Monroe Lee Kelly from the waiting list and provide him services. As a

   consequence, the Department cannot, consistent with its budget, grant Ms. Kelly's request.

4. Finally, Petitioner sought to raise an estoppel argument based on her misinterpretation of statements made by Developmental Services counselors regarding the availability of funds. Even taking Ms. Kelly's non-testimonial representations as evidence, it was clear her assertions were based on a misunderstanding of the conversation she had with the Department. No Department employee made a misrepresentation of fact regarding entitlement to funds. Therefore, estoppel does not apply.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a Final Order leaving Monroe Lee Kelly on the waiting list of clients to be served by the Department's Developmental Services Program.

DONE AND ENTERED this 19th day of December, 2000, in

Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 19th day of December, 2000.

COPIES FURNISHED:

Kimberly Maffei Kelly 9127 Foxwood Drive

Tallahassee, Florida 32308

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949

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: 00-004254

Orders for Case No: 00-004254