The Issue Whether Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 should be denied on the ground that said claim was not timely filed with Department of Management Services, Division of State Employees' Insurance (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and has been at all times material to the instant case, a participant in the State of Florida Flexible Benefits Plan (hereinafter referred to as the "Plan") with an established Medical Reimbursement Account. The following were among the medical expenses incurred by Petitioner and members of her immediate family during the 1992 calendar year: DATE TYPE OF SERVICE AMOUNT 6/29/92 Dental $70.00 7/9/92 Dental $310.00 7/11/92 Endodontic $450.00 7/17/92 Optical $266.75 7/22/92 Dental $500.00 7/27/92 Optical $84.70 8/19/92 Optical $416.50 12/29/92 Dental $210.00 In August of 1992, Hurricane Andrew ravaged parts of South Florida. Petitioner's residence was extensively damaged by the storm. Most of the contents of the residence, including medical records and receipts, were destroyed. Petitioner and her family were forced to vacate the premises. They packed their remaining belongings and moved to another location in Dade County, with the intention of returning to their home once the damage to the structure had been repaired. As of the date of the hearing in this case, all of the necessary repairs to the home had yet to be made and therefore the family had not moved back in. Petitioner and the other members of her family were among those residents of South Florida whose lives were significantly disrupted by the hurricane and the destruction and devastation it caused In the aftermath of the hurricane, Petitioner directed her energies toward obtaining a return to normalcy in her life. Although she realized that there were medical expense reimbursement claims that she needed to file with the Department, filing these claims was not a priority of hers. She focused her attention on other matters that she considered to be more deserving of her time given her situation. In January or February of 1993, Petitioner telephoned the Department to inquire if extensions of time for filing reimbursement claims were being given to Plan participants, such as herself, who were still suffering from the consequences of Hurricane Andrew. The person to whom Petitioner spoke advised her that such extensions were indeed being given. Based upon what she had been told by this Department representative, Petitioner reasonably believed that she would be able to file reimbursement claims for 1992 medical expenses after March 1, 1993, without having these claims rejected on the ground that they had been untimely filed. She therefore felt that there was no urgency with respect to the filing of these claims and she acted accordingly. Shortly after gathering all of the supporting documentation she believed she needed, 1 Petitioner, on September 29, 1993, filed a claim with the Department requesting that she be reimbursed from her Medical Reimbursement Account for the medical expenses enumerated in Finding of Fact 2 of this Recommended Order. The Department designated the claim as Claim No. 34092993. Petitioner also sought reimbursement, through the filing of this claim, of certain medical expenses incurred in 1993, including $140.00 for dental work that Petitioner had inadvertently indicated on the claim form had been performed in July of 1992. The work had actually been done in July of 1993. By letter dated October 8, 1993, the Department advised Petitioner that "[o]nly expenses for services rendered during the January 1, 1993 through December 31, 1993 plan year are eligible for reimbursement" and that "[s]ince [her] 1992 expense does not fall within this plan year, it is not reimbursable." Petitioner responded to this advisement by sending the following letter, dated November 28, 1993, to the Department: This is a petition or application requesting a formal hearing on my Claim #34092993 for Payment/Reimbursement for expenses incurred during my period of coverage for 1992. This Claim was denied. My Name is: Luretha F. Lucky My Address is: 10430 S.W. 162nd Terrace (temporary) Miami, Florida 33157 My permanent address is: 10361 S.W. 139th Street Miami, Florida 33176 I am employed at Florida International University, Miami, Florida 33199. I filed my claim late because my home was severely damaged when hit [b]y Hurricane Andrew, August 24, 1992. In addition, the content[s] in my home w[ere] destroyed, therefore, it took awhile for me to collect documentation for my claim from medical personnel. Also, I had to move and the few items saved were packed away. Lastly, I called the Department of Management Services, Division of State Employees' Insurance to inform them of what had happened to me and asked if . . . they were providing extensions on submitting claims. I was told they were. My mistake was not asking and recording the name of the person with whom I spoke. As you can see from my temporary address, I am still not back in my home! In fact we just settled (with the assistance of the Insurance Commissioner's Office) with our insurance company to complete the work on our home. We had to request an extension on filing our income tax for 1992. This past year has been an awful experience for us, and I do hope you will provide me a hearing on my reimbursement. My Claim # is: 34092993. The decision that my claim was denied was received by regular mail. Thank you very much for considering my request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department enter a final order finding Petitioner's September 29, 1993, claim (Claim No. 34092993) for reimbursement of expenses for medical services rendered in 1992 to have been timely filed and therefore subject to consideration on its merits. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of April, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 15th day of April, 1994.
The Issue Whether Petitioner is entitled to receive attorney's fees and costs from Respondent pursuant to Section 57.111, Florida Statutes.
Findings Of Fact On June 24, 1994, Dolly Davis, Insurance Specialist at the Department's Daytona Beach Service Office, sent a letter to Mary Russo, Examiner, Bureau of Specialty Insurers, which brought to the Department's attention that Capital was utilizing a billing service disclosure form in conjunction with its standard premium financing agreement to collect a charge for a supplemental product, allegedly in violation of Sections 627.8405 and 627.838, Florida Statutes. On August 25, 1994, Al Willis, Bureau Chief, Bureau of Specialty Insurance, sent a memorandum to Dennis Silverman, Legal Services, in which Mr. Willis requested the Division of Legal Services to issue an immediate final order to revoke Capital's license to transact premium financing or to fine Capital for allegedly violating Sections 627.8405 and 627.838, Florida Statutes. Mr. Willis explained in the memorandum that the Department became aware of the alleged violations through examinations of Ace Auto Insurance and Accountable Auto-Star, both of which were believed to be affiliated with Capital. On August 30, 1994, the Department issued its Notice of Intent to Non-Renew Capital National's license. The Department stated in the Notice that the Department had obtained evidence that Capital was financing automobile club memberships in violation of Section 627.8405, Florida Statutes, and was utilizing a form in conjunction with its premium finance agreement which had not been approved by the Department in violation of Section 627.838, Florida Statutes. The case was referred to the Division of Administrative Hearings for an administrative hearing. The parties agreed to submit memoranda of law and proposed recommended orders based on stipulated facts in lieu of an evidentiary hearing. The parties agreed that the sole issue to be determined by the administrative law judge was whether Capital was financing the purchase of automobile club memberships in violation of Section 627.8405, Florida Statutes. The parties stipulated that the billing service disclosure form used by Capital is executed on the same day the premium finance agreement is executed, and the billing disclosure form is physically a separate document from the premium finance agreement. On January 8, 1996, the administrative law judge entered a Recommended Order, concluding that although the billing service disclosure form was part of the premium finance agreement, Capital was not financing automobile club memberships and, therefore, was not in violation of Section 627.8405, Florida Statutes. On February 15, 1996, the Department issued a declaratory statement, In the Matter of Just Premium Finance, Inc., Case No. 12412-95-C-JAB, in which the Department took the position that Section 627.8405, Florida Statutes, prohibits as financing a premium finance company's collection of a charge for the purchase of a supplemental product, despite the fact that the premium company does not advance any funds or charge a rate of interest for performing the service. On March 1, 1996, the Department entered a final order concluding that Capital was financing automobile club memberships in violation of Section 627.8405, Florida Statutes. Capital appealed the final order to the Third District Court of Appeal, Capital National Financial Corporation v. Department of Insurance and Treasurer, Case No. 96-0826. On November 6, 1996, the Department issued a Report of Examination for Dome Premium Finance Company, in which the Department noted that Dome was engaging in activities prohibited by Section 627.8405, Florida Statutes, by utilizing a separate billing disclosure form for the payment of supplemental products. On November 18, 1996, the Department sent a letter to Richard Perry, President of Perry and Company, in which the Department requested confirmation that all companies managed or serviced by Perry and Company had terminated the practice of using separate consumer finance agreements. On January 12, 1997, Mr. Perry verified that all companies managed or serviced by Perry and Company had terminated this practice. Perry and Company manages and/or services the following premium finance companies: Freedom Premium Finance Corporation; Equity Premium, Inc.; Puritan Budget Plan, Inc.; and Gibraltar Budget Plan, Inc. Capital National was the only premium finance company to challenge the Department's interpretation of Section 627.8405, Florida Statutes, and thus, it was the only premium finance company to receive a Notice of Intent to Non-Renew its license. The Notice of Intent to Non-Renew was used for the first time against Capital and has never been used again. On March 12, 1997, the Third District Court of Appeal reversed the Department's final order, finding that Capital was not financing automobile club membership under Section 627.8405, Florida Statutes. On April 29, 1997, pursuant to the Third District Court of Appeal's Mandate, the Department issued an amended final order consistent with the Appellate Court's decision. Capital incurred total attorney's fees of $23,010 and costs of $2,024 in defending against the Department's Notice of Intent not to renew Capital's premium finance license. The Department has agreed that the fees and costs are reasonable. Capital is domiciled in the State of Florida. Currently Capital has ten employees. Since its inception, Capital has never had more than 15 employees.
Findings Of Fact Petitioner, Seminole Community Action, Inc. (SCA), is a community action agency serving Seminole County, Florida. The organization is a non- profit corporation located at 1101 Pine Avenue, Sanford, Florida and has been in operation since 1966. According to its by-laws, SCA administers the Community Services Block Grant (CSBG) program in Seminole County. The general purpose of the agency is to plan and mobilize resources to help improve the quality of life for low income families throughout the community. Its primary source of funding has been from the federal and state governments although it does receive a small amount of private funding through contributions. Effective July, 1982 the responsibility for administering the CSBG program was shifted from the federal government to respondent, Department of Community Affairs (DCA). This meant that applications for CSBG funding would thereafter be filed with respondent rather than the United States Department of Health and Human Services. After considerable difficulty in preparing its initial application, SCA filed an application with DCA on January 28, 1983 seeking a $95,435 CSBG grant retroactive to the period December 1, 1982 through September 30, 1983. The contract called for monthly payments to SCA of $9,543.50 and required SCA to serve an estimated 4,075 CSBG eligible low-income clients during the 10-month period. Prior to filing the application, DCA representatives spent two days with SCA officials assisting them in completing the application. At that time, SCA was told that its fiscal records and operations were inadequate, that certain changes would be necessary relative to recording liabilities on its books, that its purchasing procedures must be improved, and that its record- keeping in general was in poor condition. Because of these deficiencies, DCA advised SCA by letter dated February 18, 1983, that seven special conditions pertaining to fiscal accountability would attach to the grant of funds. These conditions are set forth in Attachment A to the contract. In addition, DCA advised SCA by letter dated February 24, 1983 of federal requirements pertaining to the composition of its board of directors. Information concerning SCA's compliance with the board requirements was requested no later than March 17, 1983. A contract was eventually signed by SCA on March 29, 1983 whereby it agreed to adhere to the seven special conditions. DCA representatives made two "monitoring visits" to SCA on May 18-20, 1983 and June 1-3, 1983 to determine if the organization's fiscal operation, board composition and program services were in compliance with state regulations and contract terms. Although SCA was given advance notice of the visits, and told to have appropriate records available to substantiate fiscal reports, client records, compliance with the seven special contract conditions, and other matters, the auditors found a "lack of compliance with the law for the structure of the Board," 1/ "lack of fiscal procedures and adequate controls for fiscal accountability," "no documentation that the agency (was) serving low income persons," and a "questionable effort" to provide services to that class of persons. A more detailed list of deficiencies is found in respondent's exhibit 8 received in evidence. As a result of the above deficiencies, SCA was advised by letter dated June 15, 1983 that "it (was) imperative that corrective measures be promptly undertaken to correct these problems." A deadline for compliance in eight specific areas was set for July 15, 1983, and if it did not do so, SCA was told the contract would be terminated. On July 15, 1983, SCA was notified by letter that its contract was being terminated effective June 30, 1983. Such action was appropriate because SCA failed (a) to comply with board of director structure requirements, (b) to resolve a carry-over debt from a prior year, (c) to justify a $9,544 budget amendment, (d) to resolve $3,700 in disallowed costs, and (e) to "demonstrate a continuing fiscal accountability to the satisfaction of the Department." Petitioner has also participated in the State Weatherization Assistance Program whereby it receives state funds for conservation purposes. These are federal grant monies funded under the Low-Income Home Energy Assistance Act of 1981, and are granted for the purpose of providing information, services and technical assistance concerning weatherization and energy conservation to the low income community. It received $21,432 in grant funds during the fiscal year 1982-83, and was subjected to an audit by a state monitoring team in July, 1983 to insure compliance with program goals. The team found SCA had paid salaries from the grant funds in violation of federal regulations and had constructed a "cooler room" to store surplus food with grant monies in violation of federal law. Then, too, CA's administrative expenses totaled 34.9 percent of total funds which was far in excess of the norm of 5 percent for other agencies. Finally, it spent on the average over $1,300 to weatherize each home when the maximum allowed was only $1,000 per home. Because of these deficiencies, SCA's application for renewal of the program during 1983-84 was properly denied. Petitioner has also made application for CSBG funds for fiscal year 1983-84. Since the time its 1982-83 contract was terminated, SCA has failed to satisfy the concerns which were raised in the letter of July 15, 1983 which terminated the contract. Specifically, its Board of Directors still does not comply with federal or state requirements, and its fiscal irregularities have not been resolved. Until it does so, it is ineligible for grant funds and DCA is justified in refusing to approve SCA's applications. SCA contends all matters raised in the July 15, 1983 termination letter have been satisfactorily resolved. In making this contention it relies primarily upon a letter dated February 15, 1984 from the United States Department of Health and Rehabilitative Services to SCA, and the adoption of amended by- laws which comply with federal guidelines pertaining to community action agency board of directors. However, neither the letter nor the amended by-laws satisfy the long-standing deficiencies cited by DCA.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the relief requested in Seminole Community Action, Inc.'s petition be DENIED. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the observation of the demeanor of the witnesses, the following facts are found: Respondent, Lloyd R. Day, has been employed by the Madison County School Board in the position of Finance Officer since May, 1971. He has been continuously employed in this position through a series of one-year contracts. On April 2, 1982, the School Board, upon recommendation of Petitioner, reemployed Respondent for the period commencing July 1, 1982, and continuing through June 30, 1983. Petitioner, Randall M. Buchanan, became Superintendent of Schools in Madison County in 1977. His duties are defined by law and rules promulgated by the School Board of Madison County. As part of his duties as Director of Finance, Respondent invested the idle funds of the Madison County District School Board following his employment in May, 1971, and continued to perform this function until approximately October, 1980. At the time Petitioner became Superintendent, he requested that employees write down their current duties to assist him in learning their functions. He retained this information in his own office files. This informal job description established that the finance officer was responsible for investment of all idle funds. Two other job descriptions for the position of finance officer also existed, one in the personnel office, which assigns responsibility for the investment of idle funds to the Finance Director, and one filed with the Public Employees Relations Commission, which does not include this specific function but contains an "other assigned duties" clause. The School Board has not adopted an official job description for the position of finance officer. This evidence, the testimony of Petitioner and Respondent, as well as the accepted practices within the school system established that Respondent was responsible for this function. He exercised his duty to invest idle funds of the Madison County District School Board from January, 1977, until approximately October, 1980, and did an excellent job investing during that period. His efforts enabled the Madison County District School Board to construct a half- million dollar football stadium with interest earned on such investment of idle funds in the Board's capital outlay account. During the fiscal year commencing July 1, 1979, and ending June 30, 1980 (1980 fiscal year), Respondent made 102 separate investments of idle School Board funds in certificates of deposit and repurchase agreements. As a result, the Madison County School Board earned interest income of $245,862.51. Respondent was criticized, however, in the audit report prepared by the Auditor General's Office for his investment practices during the 1980 fiscal year due to his failure to follow-up investments made by telephone with written confirmation or documentation. Respondent was so angered and upset with the auditor's criticism of the manner in which he made investments in the 1980 fiscal year that he told the auditor he would leave the School Board's funds in a passbook savings account rather than comply with the auditor's recommended investment procedures. With the exception of three certificates of deposit and one repurchase agreement, Respondent did in fact leave the funds in a passbook savings account at the Bank of Greenville, which paid a rate of 5.25 percent. As a result, interest income in the 1981 fiscal year (which ended June 30, 1981) totaled only $104,976.52, approximately $140,000.00 less than that which was earned in the 1980 fiscal year. In the report of the Auditor General for the 1981 fiscal year, the auditor noted on page 4, paragraph (13),that the Madison County District School Board lost approximately $92,000.00 in interest income as a result of failing to invest School Board funds in accordance with State Law. Section 236.24(2) , Florida Statutes, effective July 1, 1980, provides that a District School Board may invest funds not needed for immediate cash requirements in savings accounts only if the interest rate received is not less than prevailing US. Treasury Bill rates. Respondent was knowledgeable of that fact, having attended the Summer Conference of the Florida School Finance Officers Association in Orlando, Florida, in June, 1980. Following his return from that meeting, Respondent prepared a memorandum to Superintendent Buchanan dated July 8, 1980, in which he stated: At a meeting held in Orlando, Florida, by the Department of Education, recent legislation was discussed and explained to us. One Bill (CSSB 559)(Chapter 80-103, effective July 1, 1980) pertained to the subject of investment of public funds. The explanation given us at this meeting was that we are precluded from investing in time deposits unless the rate of return equals US. Treasury Bill rates. Respondent's memorandum went on to indicate that the Florida Bankers Association's interpretation of the new law was in agreement with that of the Department of Education. Respondent concluded his memorandum by stating "future investments must yield at least US. Treasury Bill rates or we must invest in US. Treasury Bills. By memorandum dated August 25, 1980, Respondent advised Superintendent Buchanan of the investment of School Board funds in two certificates of deposit. in addition, he advised the Superintendent that on August 25, 1980, he talked to personnel at the Department of Administration, Local Government Surplus Trust Fund, to request a quote on the amount of funds which he was putting up for bid. Respondent notes in his memorandum that when he received the response from the Local Government Surplus Trust Fund, they quoted rates substantially higher than the rates quoted by local banking institutions. Acting on this information, Respondent prepared an agenda item requesting that the Madison County District School Board authorize investments with the Local Government Surplus Trust Fund. At its meeting on September 4, 1980, Respondent appeared before the Board and explained the request to them. The Board voted to authorize investment of funds in the Local Government Surplus Trust Fund unless the Hoard obtain a rate of interest from a local banking institution of within one-half percent of that paid by the Fund. Although he received authorization by the Board on September 4, 1980, to invest funds with the Local Government Surplus Trust Fund, Respondent took no further action to initiate any such investments and, in fact, made no investments with the Fund until after the Madison County District School Board received the official audit report for the 1981 fiscal year from the Auditor General in June, 1982. Respondent claimed that the idle funds were not invested in other investment forms due to workload, lack of direction and a preexisting directive by the Petitioner not to place funds out of the county. These assertions are not credible and are rejected. Rather, Respondent left funds in passbook savings because of the audit criticism over his failure to confirm and document verbal fund transactions. Because of Respondent's failure to properly invest idle funds, the School Board lost approximately $92,000.00 in the fiscal year which ended June 30, 1981. Petitioner claimed that he was not aware of either the problem or its magnitude until after receipt of the final audit in June, 1982, one year later. However, in October, 1981, auditors from the Auditor General's Office met with Petitioner and Respondent and criticized the manner in which funds had been invested and the revenues received from such investments. The testimony of an employee of the Auditor General established that he told Petitioner of the problem and that he acknowledged it. In January, 1982, a second auditor meeting with the Petitioner took place, this time with School Board member Albert W. Waldrep present. Again, Petitioner was told of the problem and its magnitude in terms of dollars and cents. School Board member Claude Pickles, on his volition, met with representatives from the Auditor General's Office on January 26, 1982, and was similarly informed. Petitioner took no disciplinary action against Respondent until after the audit criticism was reported in the local newspaper in Madison County in June, 1982. In April, 1982, Petitioner had recommended the reemployment of Respondent and the School Board renewed his contract. At the time of Respondent's reemployment, the Superintendent and at least two of the five School Board members were aware of the audit criticism relating to the investment of funds. Still it was not until the newspaper reported the audit criticism that Petitioner or the School Board acted to discharge Respondent. There was no evidence of any prior disciplinary action against Respondent, nor had he ever received a written performance evaluation during his employment with the Madison County School Board.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner suspend Respondent without pay for a period of one year. DONE and ENTERED this 11th day of March, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1983. COPIES FURNISHED: David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John D. Carlson, Esquire 1030 E. Lafayette Street, Suite 112 Tallahassee, Florida 32301 Randall M. Buchanan, Superintendent Madison County School Board Madison, Florida 32340 =================================================================
Findings Of Fact The Petitioner, a nonprofit corporation, was licensed by the Respondent to operate as a vocational, technical, or trade school during 1977. The school was designed to teach business machine repair and maintenance skills to students. The Petitioner applied for a renewal of the license with the Respondent for 1978. By letter dated August 14, 1978, the Respondent advised the Petitioner that it would not reissue the license. The Petitioner requested an administrative hearing, and this proceeding ensued. Beginning in January, 1977, the Petitioner was funded by the "CETA Administration" as a service delivery agent. Under this funding, the Petitioner would submit requests for reimbursement based upon its expenditures in providing an educational program to its students, and the Petitioner was funded directly. Petitioner enjoyed this status from January through September, 1977, and received a total of $87,806.07 in direct funding. As of October 1, 1977, the Petitioner's funding status with CETA changed. After that date the Petitioner became what was called a "sub-subgrantee" of the vocational education component of the local CETA Administration. The vocational education component of CETA became the service delivery agent, and was directly funded. The Petitioner thereafter was not able to do its own recruiting of students, and no longer received direct funding from CETA. Rather, CETA would pay to students a stipend adequate to compensate them for tuition, and other costs of the program. On October 1, the Petitioner had eleven students. Despite the Petitioner's efforts to provide the new service delivery agent with the names of persons interested in participating in the Petitioner's program, CETA did not refer new students to the program. The school lost approximately one student per month from October, 1977 through May, 1978. CETA discontinued all funding of the Petitioner on June 7, 1978. Since that date the Petitioner has had no students. The financial statement submitted by the Petitioner to the Respondent in connection with the renewal application revealed that the Petitioner was operating with a net income loss of $524.76; had total assets of minus $203.57; a fund balance of minus $446.96; and total liabilities of more than two hundred dollars. The projected finances for the period October 1, 1978 through September 30, 1979 indicates that the school will lose approximately ten thousand dollars. The Petitioner, in its renewal application, did not reveal that it had had a drastic change in its funding status, and that it had lost all of its students. During the time that it was in operation, only approximately five persons completed the Petitioner's course work. The Petitioner submitted with its renewal application, a copy of its school catalog. The catalog revealed that certain persons remained on the school's board of directors, who in fact had resigned from these positions. This failure is excusable. The catalog that was submitted was the same catalog that had been used the year before. Due to the loss of its CETA funding, the Petitioner could not afford to have new catalogs printed.
The Issue Whether petitioner should recover $735 allegedly disbursed by respondent under Contract 3-14.073-051 to one Kenneth L. Jenks?
Findings Of Fact Kenneth L. Jenks of Franklin County was enrolled in a CETA program administered by the Bay County School Board at some point during 1983.
Recommendation It is, accordingly RECOMMENDED: That petitioner abandon its efforts to recover from respondent any monies claimed under Contract No. 3-14.073-051. DONE and ENTERED this 7th day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1984. COPIES FURNISHED: Lizanne Batey, Chief Bureau of Job Training Department of Labor & Employment Security Division of Labor, Employment & Training Tallahassee, Florida 32301 Hiram J. Spurling, Director Job Training Partnership Act Program Department of Education Division of Vocational Education Knott Building Tallahassee, Florida 32301 =================================================================
The Issue Whether the Notice of Change to proposed rule 65A-1.900(2)(a) of Respondent is an invalid exercise of delegated legislative authority, under Subsection 120.56(1)(c), Florida Statutes, because the proposed rule is arbitrary and capricious and because Respondent has failed to follow rulemaking procedure or requirements in attempting to change its proposed rule.
Findings Of Fact The undisputed material facts are as follows: Carrie Johnson is the maternal grandmother and caretaker of Jevon Kyshan Evens, aged 17, and Willard Cody Sanders, aged 15. Ms. Johnson and her grandchildren live at 806 E. James Street, Tampa, Florida 33603. Ms. Johnson has court-ordered custody of both of her grandchildren. During all times relevant to these proceedings, Jevon Kyshan Evens was a minor child. Ms. Johnson currently receives a maximum of $637 in Supplemental Security Income (hereafter "SSI") subsistence disability benefits. She gets governmental housing assistance. She also gets TCA for both grandsons to help her care for them. For her two grandsons, the most Ms. Johnson is eligible to receive in TCA is a grant of $241 each month. Respondent's records show that, at least as early as 1992, Jevon lived with Ms. Johnson. At one time, Jevon went to live with his natural mother. However, Jevon moved back in with his grandmother, Carrie Johnson. Respondent charged Jevon's natural mother with an overpayment of $2,562 in TCA benefits. Respondent reduced Petitioner's cash assistance benefits as a means to recover the outstanding cash assistance overpayment claim established against the mother. The authority cited for Respondent's action was Florida Administrative Code Rule 65A-1.900, which implements Section 414.41, Florida Statutes. Prior to October 1, 2007, Respondent began to collect Jevon's mother's overpayment by reducing the amount of TCA it gave to Carrie Johnson for Jevon. Respondent recouped at least $369 of Jevon's mother's overpayment from Jevon's temporary assistance between 2005 and the end of 2007. Respondent continued to reduce Ms. Johnson's TCA benefits to recoup Jevon's mother's overpayment until the end of December 2007. Effective October 1, 2007, however, Respondent changed its cash assistance program's benefit recovery policy based on a different interpretation of Subsection 414.41(1), Florida Statutes. Prior to October 1, 2007, all participants in the cash assistance program at the time an overpayment occurred were identified as a "responsible person" for purposes of repayment of a cash assistance overpayment claim. However, as of October 1, 2007, the meaning of "responsible person" was changed by making "adults" the only group of people who could be responsible for repaying cash assistance overpayment claims. Therefore, it excluded recovery of cash assistance overpayments from minors. Consistent with the new policy concerning "adults" and "responsible persons," Respondent voluntarily restored cash assistance benefits to currently active cash assistance households that contained a minor child in the assistance group if the household's cash assistance benefits had been reduced to recover repayment of an outstanding overpayment cash assistance claim. The restoration period covered October 1, 2007, through December 31, 2007. Petitioner's household was a benefactor of Respondent's decisions to restore the cash assistance benefits for the months of October and November, 2007. Although Respondent paid Ms. Johnson supplemental TCA to offset the benefits it recovered in October and November 2007, Respondent did not return to Jevon or Carrie Johnson any of the money that it kept from Jevon's cash assistance prior to October 1, 2007, in order to recoup his mother's overpayment. Carrie Johnson is substantially affected by the Proposed Rule and, thus, has standing in this challenge. On December 14, 2007, Respondent published Notice of Development of Rulemaking with the stated purpose of "align[ing] . . . policies for recovery of overpayment in the public assistance programs." On March 7, 2008, Respondent published Notice of Proposed Rule stating that "the proposed rule aligns policies for recovery of overpayment in the public assistance programs. . . . The proposed rule amends language about who is responsible for repayment of overpayment of public assistance benefits." The operative date of October 1, 2007, was set forth in the second sentence of the proposed rule 65A-1.900(2)(a) ("Cash assistance benefits will not be paid to offset recovery prior to October 1, 2007, from individuals who were children in the overpaid assistance group"). Petitioner alleged that the operative date of October 1, 2007, was arbitrary and capricious. Proposed rule 65A-1.900(2)(a), as published on March 7, 2008, reads, in its pertinent parts, as follows: * * * Persons Responsible for Repayment of Overpayment. Persons who received AFDC and cash assistance overpayments as an adult shall be responsible for repayment of the overpayment Cash assistance benefits will not be paid to offset recovery prior to October 1, 2007 from individuals who were children in the overpaid assistance group. * * * (e) For the purpose of this rule, an adult is defined as: Eighteen (18) years of age or older, A teen parent receiving assistance for themselves as an adult, An emancipated minor, or An individual who has become married even if the marriage ended in divorce. (Underlining in original) The summary section of the proposed rule states that it ". . . amends language about who is responsible for repayment of overpayment of public assistance benefits. . . ." The purpose and effect of the proposed rule making is the alignment of policies for recovery of overpayment in the public assistance program. Subsection 414.41(1), Florida Statutes, reads, in its pertinent parts, as follows: 414.41. Recovery of payments made due to mistake or fraud. -- (1) Whenever it becomes apparent that any person . . . has received any public assistance under this chapter to which she or he is not entitled, through either simple mistake or fraud on the part of the department or on the part of the recipient or participant, the department shall take all necessary steps to recover the overpayment. Recovery may include Federal Income Tax Refund Offset Program collections activities in conjunction with Food and Consumer Service and the Internal Revenue Service to intercept income tax refunds due to clients who owe food stamp or WAGES debt to the state. The department will follow the guidelines in accordance with federal rules and regulations and consistent with the Food Stamp Program. The department may make appropriate settlements and shall establish a policy and cost-effective rules to be used in the computation and recovery of such overpayments. (Emphasis added.) Following the filing of Petitioner's Motion for Summary Final Order on the Second Petition, Respondent moved to delete the contested sentence Petitioner objected to. Thereafter, Respondent's Notice of Change was published in the Florida Administrative Weekly striking the sentence which read: ". . . [c]ash assistance benefits will not be paid to offset recovery prior to October 1, 2007, from individuals who were children in the overpaid assistance group. " Following publication of the Notice of Change, the Third Petition was filed, in which Petitioner seeks a determination that the Notice of Change, the scheduled public hearing, and Respondent's intent to change the language of proposed rule 65A-1.900(2)(a), Florida Administrative Code, as originally published in the Florida Administrative Weekly, by deleting a sentence constitute an invalid exercise of delegated legislative authority. See § 120.52(8)(a), Fla. Stat. (2007) At no time at any public hearing on proposed rule 65A-1.900(2)(a) was testimony given suggesting that the sentence challenged by Petitioner in proposed rule 65A-1.900(2)(a) should be placed in a rule other than Rule 65A-1.900. Respondent did not receive any written material or objections from the Joint Administrative Procedures Committee (JAPC) advising Respondent that the challenged sentence should be moved from Rule 65A-1.900. When Respondent submitted documents to JAPC concerning a Notice of Change to Proposed Rule 65A-1.900, no reason for the change was included in these documents. JAPC wrote to Respondent and asked the agency to explain the reason for the Notice of Change. Respondent has not responded to JAPC's request for an explanation of the reason for the Notice of Change. There is no written record of JAPC instructing Respondent to hold a public hearing to discuss the Notice of Change. Respondent published a Notice of Rule Development to amend Florida Administrative Code Rule 65A-4.220. The draft text of the proposed rule was published and a public hearing was held on October 8, 2008. Following the public hearing, a Petition to Determine the Invalidity of Proposed Rule 65A-4.220 was filed October 20, 2008 (hereafter "Fourth Petition"), and assigned DOAH Case No. 08-5227RP.
Findings Of Fact The Petitioner Florida Farmworker's Council, Inc., applied or funding under the Community Service Block Grant (CSBG) Program for the fiscal year beginning July 1, 1982, and ending June 30, 1983, with the Respondent Department of Community Affairs. Since the Respondent Department had recently assumed administration of the program from the federal government and neither rules nor funding information was available, the Department entered into an agreement with the Petitioner for interim funding covering a two-month period. The first month funding of $33,727.25 was released to the Petitioner subject to certain conditions. When the Department determined that the conditions were not fully met, the second month's funding was not released. Subsequently, as a result of various reviews, the Department determined that the original application was unacceptable, and a determination was made to withhold the remainder of the grant request totaling $370,999.75. An informal hearing was held in Fort Lauderdale, Florida, and resulted in a Final Order which gave the Petitioner an opportunity to resubmit its application with conditions. Following an exchange of correspondence and meetings between the parties, the Department agreed to fund the Council to the extent it operated a program in accordance with state and federal lab and pursuant to the program described in its application. A program review audit was conducted by the Department in June, 1983. In the audit is was concluded that while considerable funds were expended, the Petitioner's program activities were at a level which was unacceptable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Department denying the Petitioner's request for funding in the amount of $370,999.75, which represents eleven months of funding for fiscal year 1982-1983. DONE and ENTERED this 14th day of December, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of December, 1983. COPIES FURNISHED: W. George Allen, Esquire 116 Southeast Sixth Court Post Office Box 14738 Fort Lauderdale, Florida 33302 Mary Clark, Esquire General Counsel Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301 John M. DeGrove, Secretary Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue Whether the Respondent, John Obrzut, should be terminated from his employment for reasons of incompetence and his alleged failure to advise the Superintendent of the Franklin County School District time and filing requirements under the above-cited Statute, because of failure to submit required monthly reports to the School Board as well as for unauthorized absences.
Findings Of Fact On May 6, 1985, the Respondent entered into an employment contract with the Franklin County School Board for employment in the position of Finance Officer and Business Manager. The contract's term continued through June 30, 1986, with a commencing date of July 1, 1985. The contract provided for a probationary status for Respondent. The Respondent was provided with a copy of the job description for the Finance Officer/Business Manager position he accepted and contracted for at the time of his employment. That job description established that the individual directly responsible to the Superintendent and the School Board for all activities concerned with the financial operations of the school system was the Finance Officer/Business Manager, Dr. Obrzut. Superintendent Gloria Tucker interviewed Dr. Obrzut for this position and was especially concerned that he understand the duties he would have in that office because the School Board was experiencing financial difficulties at that time, primarily related to the disheveled condition of its records for the past several fiscal years due at least in part to previous mismanagement by those with Dr. Obrzut's responsibilities. The Respondent was informed that it would be necessary for him, as Finance Officer, to reconstruct portions of those records. Dr. Obrzut did not inquire regarding the specific status of the records during the time of his employment interview and once he became employed he found the problem to be considerably worse than he had expected. Ms. Tucker informed the Respondent that his duties would include keeping her advised of the "TRIM Bill" time requirements in order to meet the budget publication date of July 25, 1985, as required by that law. His job description also required him to prepare a monthly financial statement showing receipts, disbursements and the balance of funds available in the district budget. Additionally, on June 24, 1985, after he was hired, the Respondent was given the various task assignments, in writing, from the Superintendent. These involved: (1) gathering necessary data and preparing the budget amendment for the June 27, 1985 School Board meeting; (2) develop with Mr. Johnson's help the baseline data that would establish the "time-line" for reconciliation of the 1982-1983 and 1983-1984 budgets, which was one of the Respondent's two major priorities for June and July of 1985 because, given the disarray of its financial records, the Board had an immediate necessity to know what cash reserves it truly had on hand; (3) set up a time schedule concerning when final reports were due on each federal and State project and when that information would be available to the Superintendent, as well as to give the Superintendent a written report as to how the "time-line" would operate during July and August of 1985. (4) The Respondent was required to set up a written time schedule as when Department of Education reports were due so that no reports would be filed late. Assignment number 5 involved reviewing the requirements for budget preparation as stated in the law regarding time requirements (i.e. the "TRIM Bill"). The Respondent was to directly contact the County property appraiser concerning when tax millage information from his office would be ready for the budgeting process. The Respondent's past employment history involved various clerical, accounting and financial analyst positions for most of the last two decades, as well as substantial periods of time spent obtaining graduate degrees. His longest period of employment was four years with the Department of Transportation, where he supervised a clerical unit with a number of employees reporting to him. Prior to his employment with the Franklin County School Board, he had no experience as the overall supervisor of financial operations of any agency of government or a private enterprise. He had no experience with school finance procedures established under Chapter 237, Florida Statutes. On June 24, 1985, the Respondent was given the assignment involving task number 5 mentioned above, whereby he was to review the requirements for budget preparation as stated in the above- cited Statute regarding time requirements. He contacted the property appraiser concerning when the Superintendent and the Board might expect tax millage information from his office required for the budget process. The Respondent was also verbally instructed by the Superintendent at this same time to keep her informed of all specific dates required by the law concerning budget events. In the course of these verbal instructions, the Superintendent advised Dr. Obrzut that she was especially concerned about this because this was her first time to be involved in the budgeting process as a Superintendent of Schools. On June 25, 1985, Dr. Obrzut advised the Superintendent that he had called the Franklin County property appraiser's office and it provided him no information on the requirements for the budget process at that time, in the form of the tax millage information, but he expected advice from them on this subject on June 27, 1985. He also advised the Superintendent at this time that he expected to receive a planning document, with the time requirements for the budgeting process, in the mail from the Department of Education and also expected to receive a copy of it personally at a school financial officer's meeting in Tampa. Dr. Obrzut reviewed Section 200.065, Florida Statutes (the "TRIM Bill"), as requested by the Superintendent, but his testimony establishes that he has no recollection of making any notes or recollection concerning the sequence of events required by the Statute as deadlines in the budget preparation process. In any event, the Respondent had no further communication with the Superintendent concerning the budget time requirements. He subsequently learned that a copy of the planning document would also be mailed to the Superintendent and therefore simply assumed she would monitor the State's various budget planning event time requirements herself. He took no further steps to advise her of the various critical time deadlines. In fact, no one in the Franklin County School District administration was monitoring the budget time schedule of events because the Superintendent, whom the financial officer, Dr. Obrzut, directly reported to, was relying on Obrzut to do this. This fact, however, was discovered accidentally by Mr. David Johnson, a contract certified public accountant, who was performing an audit of the internal accounts of the various district schools. Mr. Johnson was meeting with the Superintendent concerning matters about the internal audit on a Wednesday in July 1985, when he inquired of her as to the status of the district's advertising of its forthcoming budget, as required by law. The Superintendent advised him that Dr. Obrzut was monitoring the schedule of events and deadlines concerning the budget preparation and advertising process. Mr. Johnson thereupon visited Dr. Obrzut at his office and retrieved from him the planning document that Obrzut had received from the Department of Education. Mr. Johnson informed the Superintendent that the budget must be completed and ready for advertising prior to the following Tuesday. This was the first time the Superintendent had learned of the immediately impending deadline for budget advertising as required by the above Statute. The Franklin County School District employees responsible for preparation of the budget then had to work through the entire weekend that ensued in order to timely complete the budget in time for the advertising deadline on Tuesday. The testimony of the Superintendent as well as Mr. Johnson, who has extensive experience in the field of educational finance and was accepted as an expert in that field, established that had that deadline been missed the Franklin County School District would have lost approximately $500,000 in tax revenues needed to fund its $3,000,000 operating budget. Dr. Obrzut acknowledged that he was responsible for ensuring that the federal cash advance reports were sent to the Department of Education in a timely fashion in order to ensure the continuous flow of funds to the district for the district's federally funded projects. He established that he prepared one of these reports himself and delegated the task of preparing the September 1985 report to one of his subordinate employees, Donna Ward. He admitted he did not monitor her work and ensure that the report was timely filed and did not learn of the fact that it had not been filed until the Superintendent informed him of that fact at the time she informed him she would recommend his dismissal. The report was delinquent at that time and the district had already ceased to receive federal funds because of that delinquency. David Johnson was accepted as an expert witness in the areas of accounting and Florida school finance. He worked for the Office of the Auditor General for three years and then spent several years in the capacity of a school Finance Officer. He is a certified public accountant and currently operates an accounting firm that renders accounting assistance to four school districts in Florida. Additionally, he serves as chairman of the Walton County School Board. Mr. Johnson was retained to assist Dr. Obrzut in reconstructing the ledgers and records for the fiscal years 1982- 83 and 1983-84. He was also asked to school Dr. Obrzut in the legal and regulatory requirements and accounting procedures attendant to the peculiarities of Florida school finance. Mr. Johnson established that he had great difficulty explaining to Dr. Obrzut the nuances and peculiarities of the Florida school finance law, reporting requirements and accounting procedures. He spent more than one full day in attempting to explain these duties of Dr. Obrzut's position to him. Dr. Obrzut would indicate that he understood, but later conversation revealed that he did not in fact understand what had been explained to him. Further, Dr. Obrzut showed a penchant for discussing tangential or even unrelated matters with great Verbosity during Mr. Johnson's attempts to explain his financial duties to him. This may have frustrated Dr. Obrzut's opportunity to understand the explanation of his financial duties and the requirements of his position and doubtless frustrated Mr. Johnson's efforts to explain them. In any event, Mr. Johnson established that, based upon his association with Dr. Obrzut over a period of several months, that Dr. Obrzut did not possess the knowledge and skills necessary to enable him to serve as a School District Finance Officer, even in view of his educational degrees in the areas of finance. This opinion was unrebutted.
Recommendation Having considered the foregoing Findings of Fact, the Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent John Obrzut be terminated from his position of employment with the School Board of Franklin County. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1775 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Respondent's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted, but not for the material import sought to be conveyed. Rejected as to its overall import as not in accordance with the greater weight of the testimony and evidence presented. Accepted to the extent that the Petitioner failed to present evidence of any unauthorized absences, but the remainder of this proposed finding is rejected as not comporting with the greater weight of the material evidence presented. Rejected as not in accordance with the greater weight of the evidence and testimony presented, except that the record does not reflect that he ever received any written reprimand or warning. Accepted. COPIES FURNISHED: Van P. Russell, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Edward S. Stafman, Esquire 317 East Park Avenue Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Gloria H. Tucker, Superintendent Franklin County School District 155 Avenue E Apalachicola, Florida 32320
The Issue Did the Department of Children and Family Services (Department) improperly deny funds to Maurice Parkes for the purchase of bottled water?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: 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. Petitioner is a developmentally disabled child who lives in his family's home and receives numerous services from the Department for his developmental disability, medical, and physical problems. The services presently being furnished to Petitioner are funded through the Medicaid Waiver Program. The bottled water at issue is not funded through the Medicaid Waiver Program and would have to be funded through General Revenue funds. General Revenue funds appropriated by the legislature for the fiscal year 2001-2002 to the Department have largely been moved to the Medicaid Waiver Program to obtain the benefit of federal matching funds, which are provided at the rate of 55 cents for each 45 cents of state funds. The use of General Revenue Funds to obtain matching federal funds for the Medicaid Waiver Program allows the Department to service some of those developmentally disabled clients that are presently eligible for the Medicaid Waiver Program but have not been receiving services due to lack of funding. There are no uncommitted funds in the General Revenue category of the Developmental Services' budget that could be used to fund the purchase of bottled water for Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request to provide him with bottled water. DONE AND ENTERED this 9th day of July, 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2002. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Maurice Parkes c/o Erika Parkes 2229 Bonita Way, South St. Petersburg, Florida 33712 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 204B Tallahassee, Florida 32399-0700
