STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGET ELLINGHAM, )

)

Petitioner, )

)

vs. ) Case No. 02-2673

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 21, 2002, in Vero Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William N. Swift, Esquire

William N. Swift, P.A.

901 Southwest Martin Downs Boulevard Suite 208

Palm City, Florida 34990

For Respondent: Laurel Hopper, Esquire

Department of Children and Family Services

337 North Fourth Street Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

Whether the Petitioner should receive general revenue funds allocated to the Department of Children and Family Services.

PRELIMINARY STATEMENT

By letter dated May 24, 2002, the Department of Children and Family Services (Department) notified the Petitioner, Bridget Ellingham, that her request for residential placement funding had been denied. The basis of the denial was stated to be the Department's inability to commit funds in excess of its appropriation. In essence, the Department claimed it did not have funds available within its budget to provide the service requested by the Petitioner. The Petitioner, by and through her mother, challenged the denial and timely sought an administrative review of the decision.

The case was then forwarded to the Division of Administrative Hearings for formal proceedings and assigned DOAH Case No. 02-2673. A Notice of Hearing was entered and the matter was promptly scheduled for hearing. Although continued by stipulation and consent of counsel, the case was ultimately heard on November 21, 2002.

At the hearing, the Petitioner's mother, Tammy Desjardins, testified for the Petitioner. Petitioner’s Exhibit 1 was received in evidence. The Respondent offered testimony from Stephen Stoltz. The Department's Exhibits 1-5 were admitted into evidence. All requests for official recognition were granted. The parties have outlined the pertinent provisions of Florida law and case precedent in their Proposed Recommended

Orders. The Proposed Recommended Orders have been fully considered in the preparation of this order. The transcript of the proceedings was not filed.

FINDINGS OF FACT

1. The Petitioner is an 18 year-old female who is eligible for services as an individual with mental retardation. The Department (or its predecessor) first provided benefits to the Petitioner in 1985 based upon such eligibility (Downs Syndrome).

2. Although an applicant for services in the Department’s District 15, the Petitioner currently attends a residential placement in Miami, Florida. From the undisputed evidence, Petitioner is performing well in her placement and is learning life skills. Petitioner exhibits child-like behaviors, however, and is dependent on adult supervision for her well being.

3. The Petitioner is a client of the Department’s Developmental Disabilities Program and would have received the benefits requested in this cause but for the lack of funds. It is the Department’s position that the appropriations allocated to the Department by the Legislature did not provide sufficient funds to meet the Petitioner’s claim and that it would be unlawful for the Department to exceed its appropriated budget.

4. Because the Department does not have funds for all of the eligible recipients (clients), the Department prioritizes the claims and places clients whose benefits are not provided on

   a waiting list. In fact, the Petitioner is on the Medicaid Waiver Program waiting list for the services sought.

5. The Petitioner’s mother has provided for her daughter and incurred debt to do so. She must have financial assistance in order to keep the Petitioner at the school where she is doing well.

6. The Department provides assistance for persons like Petitioner only when they are deemed to be “in crisis.” The Department maintains that the Petitioner does not currently meet its definition for “crisis” intervention.

7. The Petitioner’s services from the Developmental Disabilities Program were canceled without notice to the Petitioner in 1988.

8. The Petitioner timely sought benefits in 1998 or 1999 and would be receiving the benefits now sought had the Department properly processed the application through the correct program.

9. The Department appropriates funds through its district offices. In this case, District 15 (where the Petitioner’s mother resides) does not have funds available to meet the Petitioner’s claim. Whether statewide funds are unavailable is unknown.

10. Were the Petitioner’s mother to abandon the Petitioner, it is unlikely the Petitioner could provide for her own needs; she would be in “crisis.”

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

12. Section 216.311, Florida Statutes, prohibits the Department from spending money in excess of the amount appropriated to it. Nevertheless, while District 15 may not have the funds available to commit for the Petitioner’s request, no evidence was presented as to the Department’s inability to fund the service sought.

13. The Petitioner has demonstrated she is eligible, entitled to benefits, and in dire need. Had the Department properly processed her request for benefits the Petitioner would be receiving assistance. Additionally, had the Department provided the Petitioner with a point of entry to challenge her withdrawal from the program she might have already received assistance.

14. It is therefore concluded that the Petitioner has demonstrated that she is in critical need of assistance. The Department has not established that there are no funds to meet the Petitioner’s claim. While District 15 may not have funds,

had the Department properly processed the Petitioner’s application the Department could have provided for the

Petitioner’s need.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner’s request for services.

DONE AND ENTERED this 23rd day of December, 2002, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 23rd day of December, 2002.

COPIES FURNISHED:

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

Laurel Hopper, Esquire Department of Children and

Family Services

337 North Fourth Street Fort Pierce, Florida 34950

William N. Swift, Esquire William N. Swift, P.A.

901 Southwest Martin Downs Boulevard Suite 208

Palm City, Florida 34990

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: 02-002673

Orders for Case No: 02-002673