STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMY BRODY,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-3051

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on November 29, 2001, Largo, Florida.

APPEARANCES

For Petitioner: Susan Haubenstock-Greenburg, Esquire Post Office Box 1588

Tampa, Florida 33601-1588

Cynthia A. Mikos, Esquire

205 North Parsons Avenue Suite A

Brandon, Florida 33510-4515

For Respondent: Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

STATEMENT OF THE ISSUE

Did the Department of Children and Family Services (Department) improperly deny the in-home subsidy of $400.00 per month to Petitioner?

PRELIMINARY STATEMENT

By a Notice of Denial of Requested Services Funded Through General Revenue dated March 08, 2001, the Department of Children and Family Services (Department) advised Petitioner's mother and legal guardian, Jo Anne Weaver, that the recently requested

in-home subsidy had been denied for the following reason: Medical necessity for this service has not been demonstrated as defined in Chapter 59G-1.010(166), Florida Administrative Code. By letter dated March 14, 2001, Jo Anne Weaver requested an administrative hearing on the denial of the in-home subsidy.

By a Notice dated July 26, 2001, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioner presented the testimony of Stanley E. Watkins and Jo Anne Weaver. Petitioner did not offer any documentary evidence. The Department presented the testimony of Wanda Blanton and Joan Clark. The Department’s Exhibits 1 through 8 were admitted in evidence.

A Transcript of this proceeding was filed with the Division on December 21, 2001. The parties timely filed their Proposed

Recommended Orders.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family Care Program, and the provisions of in-home subsidies.

2. Petitioner is a 30-year-old severely developmentally disabled woman who suffers from cerebral palsy and is totally blind. Petitioner is confined to a wheelchair, cannot care for herself, and is totally dependent on others for her care 24 hours a day.

3. Petitioner lives with her mother and legal guardian, Jo Anne Weaver, and her stepfather, in the Weaver's home, which was purchased by the Weavers in March 2001, with a mortgage, after renting the home for three years.

4. The Weavers have made modifications to the home to accommodate Petitioner's needs, including a ceiling lift that

   takes Petitioner from her bed, through the hall, and into her bathroom.

5. Mr. Weaver is school teacher who works two nights a week in addition to daytime employment. Jo Anne Weaver sells advertising for the Jewish Press and earns $170.00 per week, plus $50.00 per week for expenses.

6. In addition to the in-home subsidy, Petitioner receives assistance through the Department under the Medicaid Waiver Program, which allocates funds to provide Petitioner with in- home caregivers and other in-home services, such as companion services, personal care assistance, respite care, and consumable medical supplies.

7. The funds under the Medicaid Waiver Program are paid directly to the caregivers and service providers and not to Petitioner or her guardian.

8. The Medicaid Waiver Program, through a cost plan established and approved each year for Petitioner, allocates funds to provide a maximum of ten hours per day of caregiver services to Petitioner. Petitioner's family, primarily her mother and stepfather, provide uncompensated care to Petitioner the remaining 14 hours of each day. Petitioner's mother gets up several times each night to diaper Petitioner and to reposition her in the bed.

9. Due to a number of factors, Medicaid Waiver Program services that have been approved under a support plan may not ultimately be received by the disabled person.

10. Petitioner has never used all the funding allocated under her support plan.

11. Although the Medicaid Waiver Program authorizes the provisions of funds for caregivers for 10 hours each day, Petitioner's mother has been unable to arrange consistently for caregivers to come to the home for the full 70 hours each week because it is very difficult to find, secure, and keep caregivers who will provide services under the terms of the Medicaid Waiver Program.

12. In addition to the services authorized under the Medicaid Waiver Program, Petitioner has been, since 1995, receiving a monthly in-home subsidy of $400.00 per month in accordance with Section 393.0695, Florida Statutes. The in-home subsidy is paid from general revenue funds and is not part of Medicaid program, and is the only payment that Petitioner or the Weavers receive directly from the Department. However, Petitioner receives $74.00 per month Supplemental Security Income and $478.00 per month court-ordered support payment from her father. Additionally, Petitioner's father pays for her Blue Cross/Blue Shield health insurance coverage. The Weavers pay for Petitioner's out-of-pocket medical and dental expenses.

13. Petitioner's Proposed Developmental Services Cost Plan (Support Plan) with a development date of December 15, 2000, shows a proposed cost of $87,518.96. This amount included a

    $400.00 per month ($4,800.00 per year) in-home subsidy for basic living necessities as set forth in Subsection 393.0695(2), Florida Statutes.

14. At the time the proposed support plan was submitted, the average cost for institutional placement was $71,424.44.

15. On August 27, 1999, the Department issued the Developmental Services Home and Community-Based Services, WAIVER CLARIFICATION P.D.#99-05 REV02, Waiver Cost Review Policy with an effective date of October 1, 1999 (Policy Directive), which stated in pertinent part as follows:

    
    

    Effective October 1, 1999, individuals with an annual average cost in excess of Intermediate Care Facilities for persons with Developmental Disabilities (ICF/DD) shall only be enrolled into the waiver if the Secretary of the Department approves an exception. . . If the total costs to support an individual in the community exceed the ICF/DD cost, the plan must be submitted for review and approval or denial before the individual is added to the waiver. . . .

    
    

16. On December 29, 2000, in accordance with the above Policy Directive, Petitioner's Proposed Support Plan was submitted to the Department's Tallahassee office for review.

17. On January 19, 2001, Susan Dickerson, Chief concurred in the recommendation to approve the Proposed Support Plan

    with the following exceptions:

    
    

    Other Adaptive Equipment and stroller repairs and adaptations should be determined as medically necessary before approval.

    Physical therapy approved only for the amount in excess of coverage by Medicaid state plan. Family subsidy for $400.00 of general revenue funds monthly is not approved. WSC should explore other less costly options for providing services including attending a day program. (Emphasis furnished)

    
    

18. On January 23, 2001, a reconsideration of Susan Dickerson's decision was requested, and on February 15, 2001, Kathleen A. Kearney, Secretary, concurred in the earlier recommendation, which included the same exceptions.

19. By a Notice of Denial of Requested Service Funded Through General Revenue dated March 8, 2001, the Department advised Petitioner that her request for in-house subsidy had been denied because "Medical necessity for this service had not been demonstrated as defined in Chapter 59G-1.010(166), Florida

    Administrative Code." (Emphasis furnished). There was no other reason offered, including the unavailability of funds for this service under existing appropriations, given by the Department for denying Petitioner's request for the in-house subsidy. The Department has not alleged that funds were unavailable to provide the in-house subsidy to Petitioner.

20. The final cost approved for the support plan was

    
    

    $82,718.96.

    
    

21. The Petitioner has demonstrated a need for the in-home subsidy in the amount requested.

    CONCLUSIONS OF LAW

    
    

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

23. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

396 So. 2d 778 (Fla. 1st DCA 1981). The Petitioner has the burden of proof in this proceeding. To meet her burden, the Petitioner must establish facts upon which her allegations are based by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996), and Subsection 120.57(1)(j), Florida Statutes (2001).

24. Subsections 393.068 (1)(d), (3), (5), Florida Statutes, in pertinent part provide as follows:

1. The family care program is established for the purpose of providing services and support to families and individuals with developmental disabilities in order to maintain the individual in the home environment and avoid costly out-of- home residential placement. The Legislature

recognizes the importance of family support in the long-range success of deinstitutionalization. Services and support available to families and individuals with developmental disabilities shall emphasize community living and enable individuals with developmental disabilities to enjoy typical lifestyles. One way

to accomplish this is to recognize that families are the greatest resource available to individuals who have developmental disabilities and that families must be supported in their role as primary care givers. Services and support authorized under this program shall include the services listed under s. 393.066(4) and, in addition, shall included, but not limited to:

(d) In-home subsidies.

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(3) The direct service provider of a client enrolled in the family care program shall be reimbursed according to a rate schedule set by the department. In-home subsidies cited in paragraph (1)(d) shall be provided according to s. 393.0695 and are not subject to any other payment method or rate schedule provided for in this section.

* * *

(5) The department may contract for the provision of any portion of the services required by the program, except for in-home subsidies cited in paragraph (1)(d), which shall be provided pursuant to s. 393.0695. (Emphasis furnished).

25. Subsections 393.0695 (2), (3), (4), Florida Statutes, provide:

1. In-home subsidies may be used to pay for basic living necessities, including, but not limited to: rent, utilities, food,

   clothing, toiletries, household supplies, and other household items. In-home subsidies may not be used to pay a contractor for the provision of services and supports to the client or to pay for medical or dental services, medicines, medical supplies, or adaptive equipment or aids.

   
   

2. In-home subsidies must be based on an individual determination of need and must not exceed maximum amounts set by the department and reassessed by the department quarterly.

   
   

3. Payments may be made monthly and shall be considered a client service rather than a purchase of service (Emphasis

furnished).

1. It is clear from the above-cited statutory language that the determination of entitlement to in-house subsidies is based on an individual determination of need and does not require a showing of "medical necessity" as that term is defined in Rule 59G-1.010(166), Florida Administrative Code. The statutory prohibition of using in-home subsidies for the purchase of medical or dental services, medicines, medical supplies, or adaptive equipment or aids lends support to the position that the Legislature did not intend to require a showing of "medical necessity" in order to be entitled to

   in-home subsidies.

   
   

2. Clearly, the Department has the authority, and is given the discretion, to approve or to disapprove the payment of in-house subsidies. However, to disapprove an in-house subsidy,

the Department must make a determination that no need has been determined, or if need has been determined, that adequate funds are not available, given the Department's existing appropriations. Petitioner has met her burden to show that that there was a need for the in-home subsidy, and that funds were available to the Department under its existing appropriations to fund Petitioner's in-home subsidy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order approving Petitioner's request for in-home subsidy in the amount of $400.00 per month.

DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 4th day of February, 2002.

COPIES FURNISHED:

Susan Haubenstock-Greenburg, Esquire Post Office Box 1588

Tampa, Florida 33601-1588

Frank H. Nagatani, Esquire Department of Children

and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Peggy Sanford, Agency Clerk Department of Children

and Family Services 1317 Winewood Boulevard Building 2, Room 204B

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-003051

Orders for Case No: 01-003051