STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RYAN FLINT, )

)

Petitioner, )

)

vs. ) Case Nos. 00-4255

) 00-4675

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 14, 2000, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Madeline Flint

1327 Conservancy Drive East Tallahassee, Florida 32312

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 Ryan Flint, the minor son of his personal representative and mother, Madeline Flint, should immediately receive developmental

services or remain on a waiting list for such services until

funding is available.

PRELIMINARY STATEMENT

Respondent, Department of Children and Family Services (Department) notified Petitioner's mother on August 25, 2000, that her request for occupational therapy and diapers had been denied because there were not adequate funds available for the service, given the Department's existing appropriations. On behalf of her three-year-old son, Ryan Flint, Petitioner's mother asked for an administrative hearing to challenge this decision. The case was referred to the Division of Administrative Hearings on October 17, 2000.

On October 19, 2000, Respondent notified Petitioner's mother that her request for shoes/orthotics had been denied because there were not adequate funds available for the service, given the Department's existing appropriations. Petitioner's mother again requested an administrative hearing to challenge this decision. The case was referred to the Division of Administrative Hearings on November 14, 2000.

The cases were consolidated on November 27, 2000.

At the hearing, Petitioner's mother testified on behalf of her son and presented the testimony of two witnesses, Addie Holt and Joanne Braun. Respondent (Department) introduced seven

exhibits into evidence and offered the testimony of three witnesses, Mac McCoy, Joanne Braun, and Addie Holt.

The hearing was not transcribed. On December 26, 2000, Respondent timely filed a Proposed Recommended Order which has been considered in the preparation of this Recommended Order. Petitioner has not filed any post-hearing submission.

FINDINGS OF FACT

1. At the time of the hearing, Ryan Flint was three years old and has been identified as being on the "autism spectrum." Autism spectrum puts Ryan 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 Ryan Flint as a client because of his risk status. The parties stipulated that Ryan is eligible for services of the Developmental Services Program.

2. Ryan became a client of Developmental Services on

   
   

   June 20, 2000. Despite the rejection language of the notice of denial letter, Ryan was placed on a waiting list and may ultimately be provided the requested services from Respondent. Currently, there are approximately eight thousand persons who became clients of the Developmental Services Program after

   July 1, 1999.

3. Ryan was receiving services through Children's Home Society. However, because he turned three years old he no longer qualifies for services under that program. Children's Home Society referred him to Developmental Services for evaluation. Mrs. Flint recalls that the "intake" for services was done May 11, 2000. It was Mrs. Flint's impression from the intake interview that Ryan would receive the requested services. This continued to be her impression when Ryan's service plan was written in June of 2000.

4. Ryan currently receives some occupational therapy services through the local school board. However, these occupational services are limited to those which are only educationally necessary such as writing skills and do not extend to other non-educational skills such as running.

5. A long and complex chain of events and circumstances led to the situation faced by Ryan Flint. Prior to the 1999 legislative session, the Department identified 23,361 Developmental Services clients who were either not getting services from the developmental services program or who were not receiving adequate services.

6. The Department's Legislative Budget Request for fiscal year 1999-2000, included 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.

7. The Legislature elected to route the new moneys into the Medicaid Waiver program. 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.

8. 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 such programs must be prioritized.

9. The Legislature directed the Department to prioritize these limited funds in proviso language of the 1999-2000 Appropriations Act:

   . . . Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of

   identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan.

   
   

10. The 2000 Appropriations Act contained proviso language identical to that found in the 1999 Appropriations Act referenced in paragraph 9.

11. The Department implemented this legislative mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 1999, would receive services. All others would be put on a waiting list.

12. Ryan Flint is not eligible for the Medicaid Waiver Program. The funds Mrs. Flint seeks come from another source, the Individual and Family Support appropriation.

13. However, as a matter of policy, the Department has applied the prioritization described in paragraph 11, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. This policy was communicated to the Department's District Administrators and Developmental Services Program Administrators in a memorandum dated May 22, 2000. Utilizing this policy, the result in this case is the same as if Ryan had been on the Medicaid waiver.

14. Jo Ann Braun, a Human Services Counselor with the Department, was not aware of the new policy until August of

    2000. Thus, she could not have been aware of the new policy at the time she wrote Ryan's service plan which was in June 2000. According to Ms. Braun, as this policy was in the process of being disseminated through the Department, there may have been some clients who did not meet the crisis criteria and who entered the system after July 1, 1999, who received services.

    However, once the Department staff received and began implementing the policy, new clients were put on the waiting list and did not begin to receive services.

15. 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 static, the new client base has increased by approximately 8,000 clients since July 1, 1999.

16. Since the client base increased by 8,000 but the funding did not increase, the Department was faced with a decision as to how to fairly and consistently use the funding that was available. The Department determined that the only way it could provide funds to new clients would be by withholding services from existing clients who already received these services. However, it is not the policy of the Department to take money from someone who already is receiving services and give it to someone new. Faced with two choices, neither of which was desirable, the Department implemented a policy which

    requires that the allocation of Developmental Services moneys be made on a consistent basis. That is, the Department elected to apply these moneys in a manner consistent with the Medicaid Waiver appropriation. Moreover, many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Additionally, 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 in the same manner as the Medicaid Waiver moneys is not unreasonable or arbitrary.

17. Applying the Department's policy, Ryan can only receive services if he is in crisis because he became a client after July 1, 1999. 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.

    
    

18. The parties stipulated that Ryan Flint met none of the foregoing criteria. Consequently, the Department did not provide him the services his mother sought on his behalf.

    CONCLUSIONS OF LAW

    
    

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

20. 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 to 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.

21. The Legislature itself has mandated that the Department's provision of services is limited by the extent of available resources. See Section 393.066(4)(a), Florida Statutes. State agencies are prohibited from spending money in excess of appropriations. Article VII, Section 1, Florida

    Constitution, and see Section 216.311, Florida Statutes.

    
    

22. 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 Appeal 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 Appeal 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).

23. 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). Budgetary decision

    making is strictly within the agency head's executive discretion. Brooke, supra.

24. 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 decided 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 the legislative directives which mandated that the Medicaid Waiver moneys be so prioritized.

25. The parties stipulated that Ryan has not met any of the six crisis criteria which might have allowed the Department to except him from the waiting list and provide him services. While this is a most difficult case, the Department cannot, consistent with its budget and its policy, grant Ms. Flint's

request.

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 Ryan Flint on the waiting list of clients to

be served by the Department's Developmental Services Program, and providing those services to him as soon as funds become available to do so.

DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 12th day of January, 2001.

COPIES FURNISHED:

Madeline Flint

1327 Conservancy Drive

Tallahassee, Florida 32312

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: 00-004255

Orders for Case No: 00-004255