STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WAYNE MCDUFFY,
Petitioner,
vs.
DEPARTMENT OF CHILDREN AND FAMILIES,
Respondent.
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) Case No. 02-1239
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RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on
May 30 and September 3, 2002, at sites in Tallahassee and Miami, Florida.
APPEARANCES
For Petitioner: Deborah Moore (Petitioner’s mother)
2930 Northwest 156th Street Miami, Florida 33054
For Respondent: Hilda Fluriach, Esquire
Department of Children and Family Services
401 Northwest Second Avenue Suite N-1020
Miami, Florida 33128
STATEMENT OF THE ISSUE
The issue in this case is whether Petitioner and his family are entitled to be provided developmental services through Respondent.
PRELIMINARY STATEMENT
On December 17, 2001, Respondent Department of Children and Families sent a letter to Petitioner Wayne McDuffy which informed him that his pending request for developmental services could not be approved unless he were in crisis, and that Respondent had found him not to be in crisis. Petitioner’s mother, Deborah Moore, timely requested a hearing for her son, and on March 22, 2002, Respondent referred the matter to the Division of Administrative Hearings.
The final hearing began on May 30, 2002, as scheduled, with both parties present. Ms. Moore testified on her son’s behalf and offered four Petitioner’s Exhibits, numbered 1 through 4, each of which was received into evidence. During Petitioner’s case-in-chief, based on information presented at the hearing, the undersigned elected to continue the proceeding to a later date, to allow Petitioner an opportunity to amend his petition to challenge other agency actions of which Petitioner had been unaware. Thereafter, on June 7, 2002, Petitioner filed an amended petition.
The final hearing reconvened on September 3, 2002. Ms. Moore again testified, and as well Petitioner called Eugene Porter, a family friend. Petitioner offered no additional exhibits. Respondent presented the testimony of two agency employees: Thelma Bass, Human Services Program Specialist; and
Evelyn Alvarez, Program Operations Administrator of the Developmental Disabilities Program. Respondent also moved into evidence 11 Respondent’s Exhibits, numbered 1 through 11.
The final hearing transcripts——one volume for each session——were filed with the Division of Administrative Hearings on July 16, 2002, and December 2, 2002. Each side filed a proposed recommended order.
FINDINGS OF FACT
Petitioner Wayne McDuffy (“Wayne”), presently age 9, is mentally retarded as a result of Down’s Syndrome. It is undisputed that he is eligible to receive developmental services through Respondent Department of Children and Families (“DCF”).
Wayne has been known to DCF since at least 1996 or 1997 and has received services at some time(s) in the past. From February 2000 through the present, however, Wayne has not received services. Nevertheless, at times during this latter period, as will be discussed below, Wayne has been a “client” of DCF.
In February 2000, Wayne’s mother, Deborah Moore (“Moore”), made application to DCF, on behalf of her son, for developmental services. She desired, and continues to request, personal care assistance and residential placement to help manage Wayne, who is occasionally violent and aggressive towards others, including Moore’s younger child.
Funding for the services that DCF provides to the developmentally disabled is available though the Individual Family Supports Program (“IFS”), which the state pays for out of general revenue, and the Home and Community-Based Services Waiver Program (the “Waiver”), for which the Florida Medicaid Program (“Medicaid”) pays with federal and state monies. When Moore applied for services in February 2000, she did not know about, or appreciate the differences between, these two funding sources.
Some time after February 2000, probably in the summer of that year, a DCF caseworker verbally notified Moore that Wayne had been accepted into the Waiver and would soon be receiving services as a client of DCF. Moore kept in telephone contact with DCF and, in September 2000, verbally notified the local office that she was moving to a new address, which she provided, together with a phone number. Services, however, never commenced.
Meanwhile, on October 3, 2000, DCF assigned Wayne’s case to an interim support coordinator at Advantage in Support, Inc. (“Advantage”), a third-party provider under contract with DCF. An employee of Advantage placed telephone calls to, and personally visited, Moore’s old residence, i.e. the one from which she and her family had moved in September 2000. That phone number had been disconnected, however, and no one came to
the door at the house where Moore and her family no longer lived.1 On November 2, 2000, Advantage returned Wayne’s file to
DCF.
Back at DCF, Wayne’s file came into the hands of Thelma
Bass (“Bass”), then a Medicaid Waiver Specialist. Bass left a telephone message for Moore at her place of employment but did not receive a return call.2 Thereafter, Bass drafted a letter to Moore3 dated November 28, 2000, which read:
You had requested that Wayne McDuffy be placed on the Medicaid Waiver program. This we did and an interim support coordinator was assigned to him. The agency tried without success to set up appointments to see Nelson. You never responded to her calls. We would love to assist you in providing the needed services for your son, however, this is impossible as you refuse to cooperate with the independent support coordinator.[4] It is important that you contact us if you desire to receive and/or continue receiving services from the Developmental Disabilities Program. If I do not hear from you by December 7, 2000, we will close this case.
We love to hear from you, please call me at 305-808-6236.
Bass normally sends letters such as this one by certified mail. In this particular instance, however, she did not use certified mail.5 Nor did Bass personally put this letter into the mailbox. Rather, she directed that it be sent out by others in the ordinary course of her office’s business.
For reasons unknown,6 Moore did not receive the November 28, 2000, letter.7 Being thus unaware of the deadline that Bass had imposed, Moore could not and did not meet it; in other words, she failed timely to respond to the letter she had not seen. On December 15, 2000, Bass closed Wayne’s file, without first taking any affirmative steps to confirm the actual delivery of the letter of November 28, 2000, which would have been Moore’s only notice of the critical deadline. No notice of any kind was contemporaneously provided to Moore or Wayne regarding the closure of Wayne’s file.
Although Moore was clueless as to what had occurred, the closing of Wayne’s case would have disastrous effects on his (and her) substantial interests. Because, when Wayne stopped being a client, his “slot” in the Waiver was given to someone else——and, as will be seen, would be very difficult to get back.
In early 2001 (probably January), Moore contacted DCF to inquire about the services that she had been promised but had yet to receive. She was informed that her son’s case had been closed, and that she would need to re-apply. DCF did not tell Moore, then or ever, that she could request a hearing to challenge the agency’s decision to close Wayne’s file based on her failure to respond to Bass’s November 28, 2000, letter (which Moore had not received and hence remained ignorant of).
Moore did as she was told. On April 12, 2001, she again applied for services on Wayne’s behalf, signing an application for participation in the Waiver. She still did not know about the different sources of funds (Medicaid and IFS) for developmental services or appreciate how the issue of funding sources might impact upon her request for services.
On April 20, 2001, a district-level Crisis Identification Tool Review Committee (the “Committee”) met to consider Wayne’s new application for services. This meeting was necessary because, by this time, slots in the Waiver were so limited that DCF was able to accept only those applicants who were in “crisis” as determined by an internal, unpromulgated “Crisis Identification Tool.”8 Applicants deemed not to be in crisis were now being placed on a waiting list, to be served in date order, based on the date of becoming a client of DCF.
The Committee decided, on April 20, 2001, that Wayne was not in crisis. Thus, he was placed on the waiting list, with an eligibility date——which determines his place in line——of (or around) April 12, 2001.
No one at DCF took the trouble, in April 2001, to formally notify Wayne or Moore, in writing, that the Committee had found Wayne not to be in crisis, much less to advise them of the consequences of that decision or of Wayne’s right to request an administrative hearing. Nor did DCF inform either of them of
its determination, or of Wayne’s right to challenge such decision, in May, June, July, August, September, October, or November of 2001. It was not until December 17, 2001——eight months after the fact——that DCF finally sent Wayne a letter (by certified mail), in care of his mother, telling him about the agency’s decision and notifying him of the right to request a hearing.
The December 17, 2001, notice of agency action, which was signed by Evelyn Alvarez (“Alvarez”), Program Operation Administrator, provided in pertinent part:9
We regret to inform you that your request cannot be granted within the limits of the Department’s appropriated general revenue funds unless an individual is in crisis as determined by application of the Department’s Crisis Identification Tool.
Using the Crisis Identification Tool to assess your situation, the Department finds that you are not in crisis. Florida law, therefore, prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the State Spending Plan as approved by the Florida Legislature.
(Emphasis added).
In response to the foregoing letter, Moore timely requested a hearing on Wayne’s behalf. At the first session of the final hearing, which took place on May 30, 2002, DCF disclosed the November 28, 2000, letter and represented that Wayne’s file had been closed based on Moore’s failure to respond
to that letter. In addition, at the May 30, 2002, hearing, DCF admitted certain facts that revealed the consequences of DCF’s decision to close Wayne’s file: (1) Wayne lost his slot in the Waiver effective December 15, 2000; (2) At the time Wayne was approved for the Waiver, he did not need to be in crisis to receive a slot, but as of April 2001, he did need to be in crisis to avoid being placed on a waiting list; (3) Had Wayne’s file not been closed, he would have remained in the Waiver irrespective of whether he was in crisis, provided he continued to meet the Medicaid eligibility criteria; and (4) Wayne meets the Medicaid eligibility criteria for the Waiver. In sum, therefore, if Moore had received and responded to Bass’s November 28, 2000, letter, then, in all likelihood, Wayne would be receiving developmental services today under the Waiver.
The undersigned continued the final hearing to allow Moore an opportunity to amend Wayne’s petition to challenge the obviously significant decision to close Wayne’s case in December 2000 (which was separate and distinct from the agency’s decision, made in April 2001 but not communicated to the substantially affected party until December 2001, that Wayne is not in crisis according to DCF’s criteria).
On June 7, 2002, Moore filed an amended petition on behalf of her son, thereby placing DCF’s December 2000 decision in issue.
On June 27, 2002, without first seeking or obtaining leave, DCF filed a “corrective letter” from Alvarez to Wayne dated June 27, 2002. This letter (which was sent by certified mail) provided in pertinent part:10
You recently[11] received a letter, dated December 17, 2001, responding to your request for general revenue funded services from the Developmental Disabilities program.[12] Upon our review of the letter sent to you, we discovered that the letter contained language addressing the Department’s Crisis Identification Tool.
This language does not apply to request for General Revenue funded services. The first paragraph of your letter should read as follows:
We regret to inform you, as a conclusion of law,[13] that your request cannot be granted within the limits of the Department’s appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.066(4), F.S., and refer to the State Spending Plan as approved by the Florida Legislature.
(Italics in original).
At the second session of the final hearing on September 3, 2002, DCF’s attorney relied upon the “corrective letter” to argue that the question whether Wayne is in crisis for purposes of the Waiver is not ripe for adjudication because “the process is still going on,” and to contend that Wayne will some day have an opportunity to litigate all Waiver-related issues in a Medicaid “fair hearing” before a DCF hearing officer
(assuming, that is, DCF ever gets around to giving Wayne a clear point of entry into such a proceeding, which it still had not done as of September 3, 2002). DCF’s legal contentions will be discussed in the Conclusions of Law below. However, the undersigned rejects here, as factually incorrect, the assertion that DCF somehow has not yet determined whether Wayne is in crisis. Rather, as previously found, the Committee met and decided the “crisis” issue against Wayne on April 20, 2001, and DCF belatedly gave him a clear point of entry to challenge that decision via Alvarez’s letter of December 12, 2001. Wayne then properly exercised his right to challenge DCF’s “crisis” decision. These are matters of historical fact that DCF cannot make disappear through the magic of a revisionist “corrective letter.”
Ultimate Factual Determinations
DCF’s momentous decision to close Wayne’s file in December 2000 was arbitrary and capricious, in that the action was taken based on Moore’s failure to respond in time to a letter that she had never received——which latter fact DCF would have known had it exercised reasonable efforts to confirm whether Moore had actual notice of the deadline that Bass had unilaterally imposed. A reasonable governmental official would not make a decision of similar detriment to another person’s substantial interests, based solely on the latter’s silence,
without first attempting to verify that the adversely affected person was aware of his or her obligation to speak.
CONCLUSIONS OF LAW
Jurisdiction
DCF argues that the Division of Administrative Hearings (“DOAH”) lacks jurisdiction to entertain any challenges to DCF’s decisions affecting Wayne’s participation in the Waiver. These subjects, according to DCF, are within the exclusive jurisdiction of DCF, pursuant to its authority to conduct “fair hearings” for Medicaid. The undersigned disagrees.
As a general proposition, Wayne and his mother are entitled to an administrative hearing pursuant to Sections
120.569 and 120.57, Florida Statutes, whenever DCF makes a decision that affects their substantial interests. This right is specifically guaranteed in Section 393.124, Florida Statutes, which provides in relevant part:
REVIEW OF DEPARTMENT DECISIONS.–
Any developmental services applicant or client, or his or her parent, guardian, guardian advocate, or authorized representative, who has any substantial interest determined by the department, shall have the right to request an administrative hearing pursuant to ss. 120.569 and 120.57.
Notice of the right to an administrative hearing shall be given, both verbally and in writing, to the applicant or client, and his or her parent, guardian, guardian advocate, or authorized
representative, at the same time that the department gives the applicant or client notice of the department's action. The notice shall be given, both verbally and in writing, in the language of the client or applicant and in English.
A request for a hearing under this section shall be made to the department, in writing, within 30 days of the applicant's or client's receipt of the notice.
The Department urges that Section 409.285, Florida Statutes, and Rule 65-2.042, Florida Administrative Code, are controlling. The statute provides as follows:
If an application for public assistance is not acted upon within a reasonable time after the filing of the application, or is denied in whole or in part, or if an assistance payment is modified or canceled, the applicant or recipient may appeal the decision to the Department of Children and Family Services in the manner and form prescribed by the department.
The hearing authority may be the Secretary of Children and Family Services, a panel of department officials, or a hearing officer appointed for that purpose. The hearing authority is responsible for a final administrative decision in the name of the department on all issues that have been the subject of a hearing. With regard to the department, the decision of the hearing authority is final and binding. The department is responsible for seeing that the decision is carried out promptly.
The department may adopt rules to administer this section. Rules for the Temporary Assistance for Needy Families block grant programs must be similar to the federal requirements for Medicaid programs.
Section 409.285, Florida Statutes (emphasis added). The rule, which implements the foregoing statute, provides in pertinent
part:
The Department of Children and Family Services, hereinafter referred to as Department or Agency, is required to provide notice and an opportunity of a hearing to any applicant or recipient when the Department's action, intended action or failure to act would adversely affect the individual's or family's eligibility for an amount or type of Financial Assistance, Medical Assistance, Social Services, or Food Stamp Program Benefits, or where action on a claim for such assistance or services is unreasonably delayed.
The hearings covered by Rule 65-2.042, F.A.C., et seq., are those within the Department of Children and Family Services in the execution of those social and economic programs administered by the former Division of Family Services of the Department of Health and Rehabilitative Services prior to the reorganization effected by Chapter 75-48, Laws of Florida.
Parties in any Section 120.569, F.S., proceedings are agencies and appellants. Party includes the Agency.
Hearings Officer shall mean the individual presiding over the Hearing. The Hearings will be conducted by a Hearings Officer from the Office of Appeal Hearings, which is within the Office of Inspector General.
All parties shall be entitled to receive notice of Hearings, conferences and decisions of the Agency and those other rights afforded by Chapter 120.
When staff personnel and others appear as witnesses, the staff and others shall be sworn and subject to examination and cross- examination.
Rule 65-2.042, Florida Administrative Code (emphasis added).
As Rule 65-2.042, Florida Administrative Code, makes clear, DCF’s authority to conduct “fair hearings” extends to decisions affecting eligibility and unreasonable delays in the decision-making process. The relevant, Waiver-related decisions in this case are (1) the closure of Wayne’s file in December 2000 and (2) the “no crisis” finding in April 2001. Neither decision affected Wayne’s eligibility for Waiver-funded services, and Petitioner has not challenged either decision on the basis of unreasonable delay. Thus, while DCF’s argument on jurisdiction might have merit in other circumstances, it is not persuasive in these.
Further, DCF’s decision to close Wayne’s case on December 15, 2000, was based solely on Moore’s failure to respond to a letter (which she had not received) on or before a deadline that Bass had unilaterally chosen to impose. DCF has not shown (or even attempted to show) that any Medicaid law permits or requires DCF to close a client’s file for not responding to a letter within the timeframe dictated by the letter’s author. In short, the closure of Wayne’s file had nothing to do with any Medicaid statute or rule but was simply a substantial interests determination of the sort that falls squarely under Chapter 120. Indeed, DCF’s counsel conceded this point at the first session of the final hearing, where she stated:
The closing of the file is not a fair hearing issue. The closing of the file, it would be a 120 hearing.
Final Hearing Transcript (May 30, 2002) at page 58, lines 5-7.
The same is true of DCF’s factual determination that Wayne is not in crisis. This decision was based not on Medicaid law but on DCF’s unpromulgated “tool” for determining priority of placement into the Waiver. It, too, was a garden-variety substantial interests determination under Chapter 120. Once DCF referred the matter to DOAH, the “no crisis” determination came within DOAH’s jurisdiction. The agency’s attempt, as a party litigant, to deprive DOAH of jurisdiction by sending the “corrective letter” was legally ineffective.
Finally, the premise on which DCF’s position on jurisdiction rests——that conducting “fair hearings” is a province delegated exclusively to DCF——is faulty. While DCF has the authority to conduct certain hearings “in house,” it is not compelled to do so. To begin, Section 120.80(7), Florida Statutes, provides that hearings within DCF relating to “the execution of . . . social and economic programs . . . need not be conducted by an administrative law judge assigned by [DOAH]” (emphasis added)——which implies that they may be. Consistent therewith, Section 409.285(2), Florida Statutes, specifically permits hearings conducted under that statute to be held before “a hearing officer appointed for that purpose,” which could be
an administrative law judge. Thus, although DCF prefers that “fair hearings” be “conducted by a Hearings Officer from the Office of Appeal Hearings, which is within the Office of Inspector General,” see Rule 65-2.042(3), Florida Administrative Code, it is not expressly forbidden from referring particular matters to DOAH, which was done in this case after Moore requested a hearing on DCF’s “no crisis” determination.
It is concluded, therefore, that DOAH has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The Spending Plan
DCF contends that its decisions to place Wayne on the Waiver waiting list and to deny him services funded through general revenue appropriations were “consistent with” DCF’s Spending Plan for State Fiscal Year 2001-2002. As evidence of this Spending Plan, DCF introduced a memorandum containing instructions for implementing the Spending Plan. The memorandum contains a description of the procedure whereby clients who are not in crisis are placed on a waiting list for Waiver services. Also in the memorandum appears the following directive:
(Boldface in original). The logic of DCF’s position, then, is as follows: (1) Because Wayne is not in crisis he is properly on the waiting list; and (2) Because Wayne is on the waiting list he cannot be provided services funded out of general revenue. The second of these premises will be discussed first.
As far as the record in this case discloses, the prohibition against using general revenue to fund services for a person on the Waiver waiting list arises from the Spending Plan for State Fiscal Year 2001-2002. Yet, DCF made its fateful “no crisis” decision with regard to Wayne in April 2001——during State Fiscal Year 2000-2001, before the adoption of the Spending Plan on which DCF relies. DCF has made no attempt to establish that a prohibition adopted in the Spending Plan for State Fiscal Year 2001-2002 should be retroactive to clients whose substantial interests were determined, at least preliminarily, in a previous fiscal year.14 Moreover, if retroactivity were not a problem, then the relevant spending plan would be the one in place for the current fiscal year, 2002-2003. Indeed, of the possibly controlling spending plans, DCF has chosen to introduce the one that is most obviously inapplicable, for the plan in evidence was not in effect at the time DCF initially determined Wayne’s substantial interests, it is not in effect today, and it will not be in effect at the time a final order is issued.
Accordingly, and in any event, to the extent that DCF is relying upon a policy that prohibits the use of general revenue to provide services to Wayne because he is on the Waiver waiting list, the agency has failed to support and defend its policy in this proceeding with competent and substantial evidence. See Southpointe Pharmacy v. Department of Health and
Rehabilitative Services, 596 So. 2d 106, 111 (Fla. 1st DCA 1992); St. Francis Hospital, Inc. v. Department of Health and Rehabilitative Services, 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989).
Availability of Funds
DCF maintains that it cannot provide services to Wayne out of general revenue because there is not enough money in the IFS budget to fund his request. In support of this contention, DCF cites Section 393.13(3)(c), Florida Statutes, which states:
Persons with developmental disabilities shall receive services, within available sources, which protect the personal liberty of the individual and which are provided in the least restrictive conditions necessary to achieve the purpose of treatment.
(Emphasis added). The agency also relies upon Section 216.311(1), Florida Statutes, which provides:
No agency or branch of state government shall contract to spend, or enter into any agreement to spend, any moneys in excess of the amount appropriated to such agency or branch unless specifically authorized by law, and any contract or agreement in
violation of this chapter shall be null and void.
The undersigned agrees with and adopts the analysis of his colleague, Judge Robert E. Meale, who has concluded that:
The issue of lack of funding is an affirmative defense similar to impossibility of performance. Compare Michel v. Beau Rivage Beach Resort Inc., 774 So. 2d 900 (Fla. 4th DCA 2001) and American Aviation Inc v. Aero-Flight Service Inc., 712 So. 2d 809 (Fla. 4th DCA 1998) (impossibility of performance is an affirmative defense). The burden of proof as to an affirmative defense is on the party asserting the defense. See e.g., Captains Table, Inc. v. Khouri, 208 So. 2d 677 (Fla. 4th DCA 1968). Obviously, developmentally disabled persons lack Respondent's access to the data concerning funding levels in various programs.
Amber Satterwhite v. Department of Children and Family Services, DOAH Case Nos. 02-1238 & 02-1241, 2002 WL 1592409, *8
(Recommended Order July 10, 2002).
The only credible evidence pertaining to the availability of funds that DCF introduced at hearing is a document entitled “Conference Report on SB 2000: General Appropriations for 2001-2002 —— May 1, 2001” (“Conference Report”). The Conference Report purports to show the amount of money appropriated for IFS and the Waiver for fiscal year 2001- 2002. In addition, the Conference Report contains various “provisos” that DCF believes are important.15
The immediately obvious problem with the Conference Report is that it does not pertain either to the fiscal year in which Wayne’s substantial interests were determined preliminarily——indeed, the document was not even in existence at the time the Committee decided Wayne was not in crisis——or to the present fiscal year. Therefore, the Conference Report has little, if any, probative value in this case.
But even if the Conference Report were relevant, it shows but one side of the funding equation: the amount of money that flowed into the agency. To complete the picture and prove its defense, DCF needed to show that all the IFS money was spent on other clients, leaving none for Wayne. DCF did not prove this crucial fact. Thus, its affirmative defense of lack of funds fails for lack of evidence.
The Decision to Close Wayne’s Case
In addition to, and in support of, the ultimate factual determination that DCF’s decision to close Wayne’s case was arbitrary and capricious, the undersigned renders the following conclusions.
First, Bass’s letter to Moore of November 28, 2000, failed to comply with Rule 65-2.043, Florida Administrative Code, which provides in pertinent part:
Every applicant or recipient shall be informed in writing at the time of application and at the time of any action on
his/her claim, of the right to a Hearing, the method of obtaining this Hearing, and that he/she may present his/her case or have legal counsel or an authorized representative present it.
* * *
(4) In all other cases "timely" means that the notice is mailed at least 10 days before the date of action, that is, the date upon which the action would become effective. "Adequate" means a written notice that includes a statement of what action the agency intends to take, the reasons for the intended agency action, explanation of the individual's right to request an evidentiary hearing (if provided) and a State Agency hearing, and the circumstances under which assistance is continued if a hearing is requested. The specific regulations supporting the action must be included for Medicaid actions.
Bass’s letter was not mailed 10 days before the December 7, 2000, deadline and did not explain Wayne’s right to request a hearing. (The letter was also silent as to the specific supporting regulations, which would have been required if the closure of Wayne’s case were a “Medicaid action.”)
Second, DCF never provided Wayne or his mother a clear point of entry to challenge the decision to close Wayne’s case. As a matter of law, therefore, DCF’s decision never ripened into final agency action; the closure of Wayne’s file was——and will remain until the entry of a final order brings this formal administrative proceeding to a conclusion——a preliminary agency action. See Florida League of Cities, Inc. v. Administration
Commission, 586 So. 2d 397, 413 (Fla. 1st DCA 1991)(“Any substantially affected person must [timely] be provided with a clear point of entry . . . to formal or informal administrative proceedings under section 120.57. . . . Until proceedings are had satisfying section 120.57, or an opportunity for them is clearly offered and waived, there can be no agency action affecting the substantial interests of a person.”); Capeletti Bros., Inc. v. State Dept. of Transp., 362 So. 2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So. 2d 1374 (1979)(“[A]n adverse determination of a party’s substantial interests is ineffective until an order has properly been entered[,] after proceedings under Section 120.57.”).
Finally, because DCF’s determination of Wayne’s substantial interests was arbitrary and capricious,16 it is unenforceable, as a matter of law. See City of Port Orange v. Leechase Corp., 430 So. 2d 534, 535-36 (Fla. 5th DCA 1983)(courts will protect public from governmental agency’s unreasonable and arbitrary exercise of executive branch power).
The “No Crisis” Determination
DCF’s finding that Wayne is not in crisis was made only because Wayne’s case had been closed and his mother directed to re-apply for services; it was, recall, not necessary for Wayne to be in crisis when he was approved for the Waiver in the year 2000, and, had DCF not closed his case, it would not
have been necessary for Wayne subsequently to be found in crisis to remain on the Waiver. As just discussed, however, Wayne’s case should not have been closed, because DCF did not have factually or legally sufficient grounds for doing so. It follows, then, that the “no crisis” decision should not have been made. Because the correct disposition here is to remedy DCF’s erroneous decision to close Wayne’s file, the “crisis” issue is irrelevant and need not be decided on the merits.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order that, one, rescinds the preliminary agency action taken in December 2000 which resulted in the closure of Wayne’s case and, two, grants all relief necessary to place Wayne in as favorable a position as he would have been in today were it not for DCF’s wrongful closure of his case on or about December 15, 2000.
DONE AND ENTERED this 7th day of February, 2003, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
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 7th day of February, 2003.
ENDNOTES
1/ There is no persuasive evidence that anyone associated with DCF attempted to contact Moore, by phone, letter, or in person, at her family’s new home in the year 2000.
2/ Moore never received any telephone messages from DCF or its agents at her place of employment.
3/ The letter was properly addressed to Moore’s Post Office Box.
4/ The accusation that Moore had refused to cooperate with the independent support coordinator——which suggests that Moore was willfully obstructing DCF’s efforts to help her——was baseless.
5/ Although Bass testified that she was “pretty sure” she had used certified mail, the fact-finder rejects this somewhat equivocal affirmation as inconsistent with other facts and circumstances. For one thing, unlike other letters that DCF did send to Moore by certified mail (such as the notices of agency action), the November 28, 2000, letter does not contain the words “certified mail” and the unique article number that is assigned to each piece of certified mail. Second, DCF did not produce the receipt——stamped with the date of mailing——that is given to the sender of a certified letter. Third, DCF did not produce the signature record that would exist if Moore had, in fact, received the letter. Finally, Bass testified that she had never even bothered to check whether the letter had been received. While the undersigned credits Ms. Bass’s testimony in this regard, he simply cannot believe that the sender of a certified letter would take adverse action against the addressee for failing to respond to such letter without first verifying delivery——which is, after all, the usual purpose of using certified mail.
6/ The undersigned could reasonably infer, from the fact that Moore never received the November 28, 2000, letter, that DCF failed to mail Bass’s correspondence. See Best Meridian Ins. Co. v. Tuaty, 752 So. 2d 733, 737 (Fla. 3d DCA 2000). Because such a finding is not necessary to reach the appropriate decision, however, the undersigned declines to resolve the issue one way or the other.
7/ Resolving conflicts in the evidence, the undersigned accepts Moore’s testimony that she had not seen the letter before this litigation began. He considers it highly unlikely that Moore would have failed to contact Bass had she received the November 28, 2000, correspondence.
The undersigned has not overlooked the rebuttable presumption of receipt that arises from proof that a letter was properly addressed, stamped, and mailed. See, e.g., Brown v.
Giffen Industries, Inc., 281 So. 2d 897, 900 (Fla. 1973); Richardson v. Department of Revenue ex rel. Moore, 742 So. 2d 445, 446 (Fla. 4th DCA 1999). It is at least debatable, however, whether such presumption even comes into play in this case. There is, for one, scant evidence regarding the normal office practices of DCF concerning the mailing of such notices as Bass’s letter to Moore, which proof is necessary to set up the presumption. See Reeves v. State Dept. of Health and Rehabilitative Services, 652 So. 2d 471, 472 (Fla. 1st DCA 1995). Additionally, while there was some evidence that DCF “normally” uses certified mail to send notices such as the November 28, 2000, letter, it has been determined as a matter of fact that on this particular occasion DCF did not act in conformity with such practice. It is doubtful that the rebuttable presumption of receipt arises when the organization that would claim it failed to follow its routine mailing practices with respect to the correspondence in question, in the absence of other persuasive evidence that the letter was sent.
That said, even if the presumption were applicable, Moore’s believable testimony that she never received the letter created an issue of fact as to whether she had received notice of the response deadline that Bass had imposed. See, e.g., Torrey v.
Torrey, 815 So. 2d 773, 775-76 (Fla. 4th DCA 2002); W.T.
Holding, Inc. v. State Agency For Health Care Admin., 682 So. 2d 1224, 1225 (Fla. 4th DCA 1996). The undersigned, finding the presumption (if it arose) to have been rebutted, has settled this factual issue in Moore’s favor.
8/ The undersigned cannot help but note that the Crisis Identification Tool appears on its face to be a rule by definition and hence subject to challenge pursuant to Section 120.56(4), Florida Statutes.
9/ This letter was not introduced into evidence, but, because it is effectively a pleading in this matter, the undersigned has taken official recognition of the document.
10/ The “corrective letter” is tantamount to an unauthorized amended pleading. As such, the undersigned considered it inoperative as a means of modifying the issues for hearing. Indeed, the undersigned specifically advised DCF at the second session of the final hearing that the issue whether Wayne is in crisis remained relevant. As it turns out, the “crisis” issue need not be reached, although the undersigned could not have known that this would be the case at the time of the final hearing.
11/ “Recently” hardly seems the appropriate adverb here, given that half a year had passed, during which time formal administrative proceedings had been initiated and a final hearing commenced.
12/ This description of Wayne’s request beggars belief. There is no persuasive evidence that Moore ever requested “general revenue funded services” as opposed to, say, Medicaid funded services. In fact, although Moore did not understand where the funds would come from, she actually requested Waiver services, which are not “general revenue funded.” Further, DCF treated her request as an application for the Waiver, which is why the Committee was convened to evaluate the “crisis” issue.
13/ This is a misnomer. Whether DCF has sufficient general revenue funds on hand to pay for the services that Wayne’s mother wants is a question of fact, not a conclusion of law.
14/ Because an agency may not adopt retroactive rules absent express statutory authority, see Section 120.54(1)(f), Florida Statutes, it is not self-evident, to say the least, that a non- rule spending plan should be given retroactive effect.
15/ Explanatory language in an appropriations bill might be indicative of legislative intent, but it lacks the force and effect of law. See Moreau v. Lewis, 648 So. 2d 124, 126-27 (Fla. 1995).
16/ An arbitrary decision is one that is not supported by facts or logic, or is despotic. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. denied, 376 So. 2d 74 (1979). Under the arbitrary
and capricious standard, "an agency is to be subjected only to the most rudimentary command of rationality. The reviewing court is not authorized to examine whether the agency’s empirical conclusions have support in substantial evidence." Adam Smith Enterprises, Inc. v. State Dept. of Environmental Regulation, 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). Still,
the reviewing court must consider whether the agency: (1) has considered all relevant factors; (2) has given actual, good faith consideration to those factors; and (3) has used reason rather than whim to progress from consideration of each of these factors to its final decision.
Id.
The second district nicely framed the review standard in
these terms: "If an administrative decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is neither arbitrary nor capricious." Dravo Basic Materials Co., Inc. v. State Dept. of Transp., 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992). As the court observed, this "is usually a fact-intensive determination." Id. at 634.
COPIES FURNISHED:
Deborah Moore
2930 Northwest 156th Street Miami, Florida 33054
Hilda Fluriach, Esquire
Department of Children and Family Services
401 Northwest Second Avenue Suite N-1020
Miami, Florida 33128
Jerry Regier, Secretary
Department of Children and Family Services 1317 Winewood Boulevard
Building 1, Room 202
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
Paul Flounlacker, Agency Clerk
Department of Children and Family Services 1317 Winewood Boulevard
Building 2, Room 204B 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 16, 2003 | Agency Final Order | |
| Feb. 07, 2003 | Recommended Order | Petitioner and his family are entitled to the provision of developmental services through Respondent. |
