STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FELICITA CRUZ,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

) Case No. 02-2553

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 5, 2002, by video teleconference between Orlando and Tallahassee, Florida, and on October 15, 2002, by telephone conference call, before Carolyn S. Holifield, an Administrative Law Judge of the Division of Administrative Hearings.

For Petitioner: Nilda Cruz, mother of Petitioner

2605 Quail Pond Way Kissimmee, Florida 34743

For Respondent: Beryl Thompson-McClary, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services (Department) improperly denied funds to Felicita Cruz for the purchase of a specialized wheelchair.

PRELIMINARY STATEMENT

By letter dated March 29, 2002, the Department advised Nilda Cruz, mother of Petitioner, Felicita Cruz, that her request for a specialized wheelchair had been denied due to a lack of general revenue funds. The letter, titled "Notice of Denial Due to Lack of General Revenue Funds" stated, "[w]e regret to inform you, as a conclusion of law, 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."

After receiving the Notice of Denial Due to Lack of General Revenue Funds, Nilda Cruz requested an administrative hearing.

By a Notice dated June 21, 2002, the Department referred the letter to the Division of Administrative Hearings (Division) for assignment of an Administrative Law Judge for the conduct of a formal hearing.

At hearing, Nilda Cruz testified on behalf of her daughter, Felicita Cruz. Petitioner's Exhibits 1 and 2 were admitted into evidence. The Department presented the testimony of three

witnesses: Frances Young, a program administrator with the Department; Nilda Cruz, mother of Petitioner; and Helen Tasker, a program administrator with the Department. The Department's Exhibits 1 through 8 were admitted into evidence. The proceeding was recorded, but no transcript was filed with the Division. Neither Petitioner nor the Department filed proposed

recommended orders.

FINDINGS OF FACT

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

1. The Department is the agency in the State of Florida charged with the responsibility of administering the Developmental Services Program, pursuant to Chapter 393, Florida Statutes.

2. Petitioner, Felicita Cruz, is a twenty-six-year-old woman who is developmentally disabled. Petitioner has Rett Syndrome, a neurological disorder, and, as a result thereof, she is mentally retarded, has scoliosis and is unable to walk and talk. Due to Petitioner's lack of mobility, she must be regularly repositioned by someone.

3. About fourteen years ago, Petitioner had surgery to alleviate some of the physical problems associated with her scoliosis. At or near the time of the surgery, a rod was placed in Petitioner's spine.

4. Currently, Petitioner does not have a wheelchair, but she does have a stroller. Petitioner's stroller is several years old, does not meet her needs, and is no longer appropriate.

5. There is no dispute that Petitioner needs a specialized fitted wheelchair.

6. Petitioner's Waiver Support Coordinator/Case Manager for about four years stated the following in a letter dated September 3, 2002:

   Around February of 2002, I was asked for the case file to be handed back in to Developmental Services. Even though, [sic] I currently have no professional responsibility for this case, I am asserting my opinion that Ms. Cruz has need of a specialized, fitted wheelchair, conducive to her progressive spinal deformation. Also, due to her lack of initiative and inability to ambulate without intensive support, a wheelchair is primary for her mobility concerns. Without appropriate fitted physical support, her spinal condition can worsen, and cause more severity and progression with her disability.

   
   

7. A letter dated September 3, 2002, from the occupational therapist who works with Petitioner at Tandem Healthcare of Kissimmee, the nursing home where Petitioner resides, also indicates that Petitioner needs a specialized wheelchair. The letter states in relevant part the following:

   [B]ecause of her disability, Felicita Cruz requires a specialized wheelchair.

   Presently she is in a stroller. This is inappropriate for the following reasons:

   1. It is the same stroller she has had for many years. Her needs have changed and should be addressed.

   2. She has sclerosis [sic] and requires a wheelchair which will be more supportive of her back.

   3. She slides out of the stroller, and this presents a safety risk.

   
   

   Ms. Cruz requires a specialized wheelchair which will improve both her physical well being, and increase safety in her current environment.

   
   

8. Petitioner became a consumer of the Developmental Services Program in 1999 and was deemed eligible for the Department's Developmental Services Home and Community-Based Waiver Program ("Home and Community-Based Waiver Program"). Subsequently, in 2000 or early 2001, Nilda Cruz requested a specialized wheelchair for Petitioner. When this request was made, Petitioner was living at home with her mother, who was her primary caregiver.

9. Apparently, in response to Nilda Cruz's request and upon the Department's determination that Petitioner needed a specialized wheelchair, Petitioner's Department-assigned case worker took steps to assist Petitioner with obtaining a specialized wheelchair. In February 2001, Petitioner was being fitted for a specialized wheelchair, through the Home and Community-Based Waiver Program. However, during this time and

   prior to the Department's purchasing the specialized wheelchair for Petitioner, her health declined and she was hospitalized from late March 2001 until April 4, 2001. After being released from the hospital, upon the advice of Petitioner's physician, on or about April 5, 2001, Petitioner was placed in a nursing home.

10. Prior to Petitioner's being placed in a nursing home, she remained eligible for the Home and Community-Based Waiver Program. Based on that eligibility, the specialized wheelchair could have been funded by the Home and Community-Based Waiver Program. However, after Petitioner moved to a nursing home, she was ineligible for the Home and Community-Based Waiver Program and any services or equipment funded by that program.

11. Although Petitioner is no longer eligible for the Home and Community-Based Waiver Program, she continues to be a client of Developmental Services and is eligible for services and equipment authorized under that program.

12. There are no funds available in the general revenue category of the Developmental Services' budget and none have been allocated. Due to the lack of funds, the Department was unable to purchase the specialized wheelchair that Petitioner needs and, accordingly, it denied Petitioner's request for the wheelchair.

13. In an effort to assist Petitioner, Department employees and Nilda Cruz met with the administrator of Tandem

    Healthcare, the nursing home at which Petitioner resides, to request that the nursing home purchase the specialized wheelchair for Petitioner. The administrator agreed to purchase a regular wheelchair at a cost of between $400.00 to $700.00, but not the specialized wheelchair that would cost an estimated

    $2,000.00.

    
    

    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. Petitioner, as applicant for the equipment she seeks, has the burden of proof. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

16. Petitioner is eligible for developmental disability services under the general revenue-funded Developmental Services Program. However, as a resident of a nursing home, Petitioner is ineligible for services and funding under the Department's Home and Community-Based Waiver Program.

17. State agencies are prohibited from spending money in excess of appropriations. Article VII, Section 1, Florida Constitution. Also, Section 216.311, Florida Statutes, provides that "[n]o agency . . . of the state shall contract to spend, or enter into any agreement to spend, any moneys in excess of the amount appropriated to such agency."

18. 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).

19. The principle enunciated in paragraph 18 applies to the instant case. Here, the Department determined that it could not purchase the specialized wheelchair that Petitioner needs because it lacks the funds to do so. General revenue funds are not available for the Department to fund services or equipment for Petitioner and, unless and until such funds are appropriated by the legislature, the Department is unable to grant Petitioner's request.

20. The Department's decision to deny Petitioner's request is consistent with the constitutional and statutory mandates noted in paragraph 17.

21. Notwithstanding the parties' agreeing that Petitioner is eligible for services under the Department's Developmental Services Program, by virtue of Petitioner's residing in a nursing home, she is ineligible for the Home and Community-Based Services Waiver Program and funds allocated to that program. Based on Petitioner's eligibility status, the funds necessary to purchase a specialized wheelchair for Petitioner must come from the Department's general revenue fund.

22. While this is a difficult case, given that all parties agree that Petitioner needs a specialized wheelchair, in absence of a legislative appropriation, the Department has no funds to grant Petitioner's request.

RECOMMENDATION

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

is

RECOMMENDED that the Department enter a final order that

denies Petitioner's request for the specialized wheelchair, unless and until general revenue funds or other appropriately designated funds are available for such purpose.

DONE AND ENTERED this 20th day of November, 2002, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 20th day of November, 2002.

COPIES FURNISHED:

Felicita Cruz c/o Nilda Cruz

2605 Quail Pond Way Kissimmee, Florida 34743

Beryl Thompson-McClary, Esquire Department of Children and Family Services

400 West Robinson Street, Suite S-1106 Orlando, Florida 32801

Paul F. Flounlacker, Jr., 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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-002553

Orders for Case No: 02-002553