The Issue The issue presented is whether Petitioner is entitled to a refund of monies paid into his medical reimbursement account.
Findings Of Fact Petitioner has a Ph.D and has been a professor at Florida State University (FSU) since November 2003. Petitioner met his now-wife Veronika in England in September 2004. In the summer of 2005 she quit her job in London and came to Tallahassee. She enrolled in FSU's graduate program to fulfill the conditions of her visa. Petitioner attempted to add her to his health insurance coverage claiming that she was a dependent or a "partner," reasoning that since she was living with him she was "effectively" his wife. When required to produce a marriage license, Petitioner was unable to do so. Accordingly, since she was not legally his spouse and, therefore, was not eligible to be covered under Petitioner's benefits, his attempt to include her in his health insurance coverage was unsuccessful. From the beginning of his employment up through the time of the final hearing in this cause, Petitioner has received every year the Department's Benefits Guide for active State employees. He has also received additional information yearly regarding the State's benefits program and options during the annual open enrollment period. In 2005 Petitioner began participating in the State of Florida's pre-tax flexible spending account program by setting up a medical reimbursement account (MRA). Each year he had approximately $600 deducted from his gross salary (pre-tax) to cover medical expenses not covered under his health insurance plan. In 2008 he and Veronika began fertility treatments, incurring approximately $14,000 in bills for these treatments. In April 2008 Veronika became pregnant. Petitioner and Veronika were married on May 7, 2008. Because his marriage was a qualifying status change, he was allowed to add her to his health insurance coverage because she became eligible as his spouse. On approximately May 20, 2008, he took his check to the Human Resources office at FSU to pay the additional charge resulting from converting his health insurance from individual coverage to family coverage. He gave his check to Jackie Williams, who worked in that office and who had contacted him about the need to pay the additional money. On that date he also made arrangements to increase his MRA from $600 to $5,000, with the increased payroll deductions to begin July 1 since he was on a nine-month contract. In December 2008 he submitted a claim for reimbursement from his MRA for the fertility treatments that Veronika underwent prior to their marriage. That claim was denied because the treatments occurred prior to the time that Veronika became an eligible dependent. Since those expenses were not eligible for reimbursement, he next sought to reduce his election of $5,000 for his MRA back down to his normal level of $600. He told other personnel in FSU's Human Resources office that Williams had told him that he could claim reimbursement from his MRA for expenses incurred by Veronika before her marriage to him since the plan year for an MRA was from January through December. Based solely upon Petitioner's assertion that Williams gave him wrong information, other personnel in that office directed a memorandum to People First telling that company, which operates the State of Florida's payroll and employee benefits services, that due to an "agency error" Petitioner's MRA should be reduced to its prior level. That request was also denied because a change in Petitioner's MRA could only be made during open enrollment or because of a qualifying status change, and neither condition applied. Jackie Williams remembers her contacts with Petitioner because Veronika spells her name with a "k," which is an unusual way to spell it. Williams only discussed with Petitioner his health insurance coverage and did not discuss with him his MRA. Petitioner asserts that the Benefits Guide, which he consulted, lends credence to the misinformation he says Williams gave him because it provides in the section describing MRAs: "The entire amount in your account is available at the beginning of the plan year." That sentence, however, speaks only to the issue of the timing of claims filed against the account. It does not speak to the eligibility of expenses claimed. The Benefits Guide is very clear as to who is eligible to receive benefits under the State's employee benefits options. It uses plain language that has not changed from year to year although the page number on which the explanation is given may change. The Benefits Guide for 2008 on page 11, for example, states clearly that all active full-time or part-time State of Florida employees qualify for coverage under the benefits plans described in the Guide plus the employee's spouse and children. Eligibility for reimbursement of expenses is quite different from the time period during which claims for eligible expenses can be made. Although the State's MRA plan year runs from January through December, the expenses of only eligible persons will be covered. Since Veronika and Petitioner did not marry until May 7, 2008, her medical expenses before that date do not qualify for reimbursement from Petitioner's MRA, just as she did not qualify to be added to Petitioner's health insurance coverage until they married. To the extent that Petitioner claims he was misled by Jackie Williams, his argument is not persuasive. First, Petitioner had his Benefits Guide which gave the correct information, and his reliance on one sentence in the Guide which does not refer to eligible persons or eligible expenses is illogical and misplaced. Second, Williams' testimony that she did not discuss his MRA with him and that she remembers her transactions with him because of the unusual spelling of Veronika is credible and was supported by the way both Petitioner and Williams referred to that spelling during her testimony at the final hearing. Veronika's medical expenses incurred before her marriage to Petitioner do not qualify for reimbursement from Petitioner's MRA. Further, Petitioner is not entitled to a reduction in his 2008 MRA contribution due to an "agency error" or a misrepresentation by FSU's Human Resources office because no agency error or misrepresentation was made. Quite simply put, Petitioner herein seeks a benefit of marriage prior to the time he was entitled to enjoy it under both the law and the State of Florida's employee benefits plans.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for a retroactive reduction in his MRA. DONE AND ENTERED this 16th day of September, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2009. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Gavin Naylor 1531 Tallavana Trail Havana, Florida 32333 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Check No. 98506 dated May 15, 1984, issued by the School Board of Pinellas County in the amount of 941,567.65 was mailed to Respondent on May 16, 1984, to pay the social security withholding taxes for the payroll period May 1- 15, 1984. This check was in the correct amount due, and the envelope containing this check was addressed to the correct address of Respondent, P. O. Box 9000, Tallahassee, Florida 32303. Check No. 98506 payable to Social Security Contributions Trust Fund was received by Respondent at 8:13 a.m., May 22, 1984, at Tallahassee, Florida. U. S. Post Office, Clearwater Branch, has a two-day standard delivery time from Clearwater to Tallahassee for mail received at that post office. Section 121.071(5), Florida Statutes, is applicable to these proceedings, as is Section 650.05(4), Florida Statutes. On September 29, 1983, Pinellas County School Board was informed by Second Notice (Exhibit 1) of the changes in payment of social security taxes effective January 1, 1984, which required all reporting activities to remit payments in time to be received by Respondent no later than the twentieth of the month for payroll period ending during the first 15 days of the month. The Division of Retirement is a state agency responsible for collecting social security contributions from all public employers in Florida and remitting same to the United States Government by the last day of each month for those payroll periods ending during the first 15 days of the month. Section 650.05(4), Florida Statutes, provides for a 1 percent delinquent fee for delinquent payments. Payment of $9,698.16 covering penalty and interest was paid by Petitioner by check dated September 28, 1984 (Exhibit 3). This payment was made under protest.
The Issue Whether Petitioner owes child support and, if so, the amount of the indebtedness and whether Respondent should report that indebtedness to credit reporting agencies.
Findings Of Fact In 1983, the Florida Department of Health and Rehabilitative Services (DHRS) filed a paternity action against Petitioner in the Circuit Court for Broward County, Florida. This matter was assigned Case Number 83-1335 CH. The proceeding was filed to determine whether Petitioner was the father of a child born to Debra Bethea on November 17, 1979. This matter was voluntarily dismissed by the DHRS on December 29, 1983. Petitioner made a court appearance prior to the dismissal, and he received a copy of the notice of dismissal. In 1992, DHRS and Ms. Bethea filed a Complaint to Determine Paternity and Child Support in Broward Circuit Court, where it was assigned Case Number 92-4134(23). Like the 1983 proceeding, this pertained to the child born to Debra Bethea on November 17, 1979. In 1992, the Broward County Sheriff's Office used a Return of Service form which contained the following to reflect that a complaint had been served on a defendant by substitute service: At the defendant's usual place of abode on "any person residing therein" the age of fifteen years or older, to wit: in accordance with the provisions of F.S. 48.031(1), Florida Statutes. The Return of Service filed in Case 92-4134(23) reflected that a copy of the complaint had been served on Petitioner on February 28, 1992, by substitute service. The person with whom the complaint was left at Petitioner's "usual place of abode" was a Mr. Turner who was identified as being a "friend." The second paternity complaint was heard by a hearing officer who made findings and recommendations to the presiding judge. The "Report of the Hearing Officer on Paternity and Support" dated June 22, 1992, filed in Case 92-4134(23) (the Report) reflects that a clerical default was entered against Petitioner on April 14, 1992. The hearing officer recommended that the Court enter an order adjudicating Petitioner to be the father of the child and ordering that he pay child support in the amount of $221.00 per month until the child reached 18 years of age. 1/ These payments were to be made through the Court's Support Payment Unit. Petitioner did not appear at the proceeding before the hearing officer. The recommendation as to the child's paternity was based on the testimony of Ms. Bethea. On June 29, 1992, the presiding judge entered an order that ratified the Report, adopted its findings, and ordered the parties to comply with all items contained in the Report. This is a facially valid order from a court of competent jurisdiction. The sums of $28.36, $56.72, and $23.75 were paid in the years 1992, 1993, and 1994, respectively. No other payments or credits were made. As of September 30, 1999, Petitioner owed the sum of $28,604.17 in back child support. Petitioner had made no child support payments between that date and the date of the final hearing in this proceeding. Petitioner testified that he was homeless in February 1992 and that he did not know Mr. Turner. He also testified that he knew nothing of the second paternity proceeding, that he was not the father of the child, and that reporting this debt to credit reporting agencies will destroy his credit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner owes back child support in the amount of $28,604.17. It is further recommended that Respondent report that arrearage to appropriate credit reporting agencies pursuant to Section 61.1354(2), Florida Statutes. DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of April, 2000.
The Issue Whether DHRS may compel Ronald H. Pollard to pay the maintenance fee. Whether DHRS properly determined the amount of maintenance fee.
Findings Of Fact Herman Pollard is hospitalized at Florida State Hospital, Chattahoochee, Florida, and has been since July 26, 1989. Herman is competent, but has suffered from a mental illness diagnosed as schizophrenia for many years and has been institutionalized periodically for the treatment of this disease over the years. He has spent more years with his family than he has spent being institutionalized. Herman Pollard receives monthly Social Security Disability Income (SSDI) benefits from the Social Security Administration (SSA). His father had been appointed Representative Payee by SSA to receive Herman's SSDI benefits. For several years prior to 1988, Herman Pollard lived in North Carolina. After his father died, Herman relocated to Tallahassee, Florida, and lived with his brother, Ronald Pollard, and his brother's wife. The brother's 62-year-old mother resides in another Florida city. She is unable to care for Herman, and Ronald is the only living relative able to care for Herman. Ronald was appointed Representative Payee for his brother. A Representative Payee receives and disburses Social Security benefits on behalf of a social beneficiary. A Representative Payee has a fiduciary duty under federal law to disburse the money received to pay for the actual recipient's needs and care. However, the federal law prohibits any legal action by a creditor to enforce payment of a debt by a creditor or any assignment of future benefits. A Representative Payee may be criminally prosecuted by the Federal Government for violation of his fiduciary duty. Although Ronald acceded to his father's request to take care of Herman, Ronald has not adopted Herman or been made his legal custodian or guardian. Ronald Pollard is not legally responsible for his brother's support. A Responsible Party is legally responsible for a patient's financial support. Upon moving to Tallahassee, Herman lived in an apartment with Ronald and his wife. He spent the day in an adult day care program. However, his behavior became increasingly disturbing to the other adults requiring care; and Herman had to cease his participation. Ronald's apartment provided cramped living quarters for the three of them. Ronald and his wife purchased a three-bedroom home to provide Herman with his own bedroom. Herman is unable to drive, and Ronald and his wife provide transportation for Herman for treatment and doctors' visits. Ronald informally apportions one-third of the expenses, e.g., mortgage and car payments, food, clothing, and utilities, to Herman. The $346.00 in SSDI, which Ronald received in benefits for Herman, is less than one-half of the monthly expenses of $700.00 incurred in Herman's behalf. Because of Herman's mental illness, he was determined to be in need of more specialized temporary care than was available at home and was placed in a local treatment facility. Subsequently, it was determined that a more restrictive setting was required; and Herman was involuntarily placed in the Florida State Hospital. On July 24, 1990, a Final Order was issued authorizing continued involuntary placement for Herman. In re: Herman Pollard, Case No. 90-4023(B). On October 1, 1989, DHRS provided Ronald Pollard with a Notice of Maintenance Fee, having identified Ronald as the Responsible Party. The Notice advised Ronald of monthly billings of $296.00 for Herman's stay at the Hospital. On November 27, 1989, Ronald responded with a request that the "billings be adjusted to no liability" against him. (Hearing Officer's emphasis. On March 12, 1990, DHRS' Fee Waiver Committee recommended denial of Ronald's request for a fee waiver, stating that: Discussions with appropriate staff indicate client's treatment is expected to be long term. Also, the brother's current apartment (sic) was purchased after the client was admitted. Ronald advised Ronald E. Rohan, Florida State Hospital's Accounting Supervisor and Acting Chairman of the Fee Waiver Committee, that he and his wife purchased their house before Herman was hospitalized. DHRS stipulates they did. On March 21, 1990, DHRS' District Administrator denied Ronald's request for a fee waiver. On March 29, 1990, Ronald was advised that this request had been disapproved because, "Discussions with appropriate staff indicate client's treatment is expected to be long term." On April 4, 1990, Ronald requested an administrative hearing. DHRS arrives annually at a daily charge for medical and personal services for its patients. This charge is currently $200.00 per day. The State is charged by law to assess and collect for the services which the Hospital provides. DHRS determined Herman's maintenance fee generally based upon disposable income. DHRS computes disposable income based upon Rule 10-6.020, Florida Administrative Code. Domestic expenses such as rent, automobile payments or transportation costs for Herman were not considered by DHRS because it did not consider Herman as having domestic expenses. DHRS included Herman's SSDI benefits as income and after allowing $50.00 for his personal use, set his maintenance fee at $296.00. Rule 10-6.010(19), Florida Administrative Code, excludes SSDI benefits from income. DHRS uses a combination of persuasion, threat of court action, and court action to recover payment of maintenance fees from a Responsible Party. DHRS may obtain a lien against the Responsible Party's real property in favor of DHRS pursuant to Section 402.17, Florida Statutes, and Rule 10-6.023(6), Florida Administrative Code. In this case, DHRS is treating the Representative Payee, Ronald Pollard, as a Responsible Party. On June 25, 1990, Kingsley R. Ross, an Assistant Secretary of DHRS, acknowledged that charging, assessing or collecting fees by DHRS from social security benefits may be in conflict with federal statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that DHRS assess the maintenance fee in accordance with its formula at zero; amend its records to reflect that Ronald Pollard is not liable for the treatment or debts of Herman Pollard; and cease its efforts in this matter since collection is barred by federal law DONE and ENTERED this 18 day of October, 1990, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2999 Petitioner's Proposed Findings of Fact Unnumbered paragraph numbers 1-10 are substantially adopted but reorganized and rewritten. Respondent's Proposed Findings of Fact 1-7. Adopted. Rejected, as contrary to the facts. Herman lived with Ronald, Herman had domestic expenses. Rejected. As discussed in the Conclusions of Law, Ronald is not the Responsible Party. Rejected. There has been a legal claim asserted. To the extent that these proceedings are legal actions, Petitioner and Respondent are engaged in litigating this dispute. COPIES FURNISHED: George Drumming, Jr., Esquire 317 E. Park Avenue Tallahassee, FL 32301 Gene Stephens Assistant Hospital Attorney Florida State Hospital Chattahoochee, FL 32324 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is whether Petitioner is eligible for services under the Home Care for Disabled Adults Program.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a 41-year-old retired State of Florida employee. She retired on disability in August 2002 as a result of "extreme" and "terminal" medical problems, the precise nature of which is not reflected in the record. At the time of her retirement, Petitioner was working for the Department. She had worked for the Department and its predecessor, the Department of Health and Rehabilitative Services, for slightly more than ten years and she was a member of the Florida Retirement System (FRS). The Department is the state agency responsible for administering the Home Care for Disabled Adults Program ("HC/DA Program"). HC/DA Program The HC/DA Program is a state-funded program related to the federal supplemental security income (SSI) program. As such, the HC/DA Program is referred to as an "SSI-related program." The HC/DA Program is intended to provide an alternative to institutional or nursing home care for disabled adults. It does so by providing monthly support and maintenance payments for the care of eligible disabled adults in family-type living arrangements in private homes. The income threshold for the HC/DA Program is 300 percent of the SSI federal benefit rate, which is currently $552.00 per month. Accordingly, the income threshold for the HC/DA Program is $1,656.00 per month. An individual who has income in excess of $1,656.00 per month is ineligible for services under the HC/DA Program, no matter how significant his or her needs are. It is undisputed that Petitioner meets all of the other eligibility requirements for the HC/DA Program except the income threshold. Petitioner's Income and the Health Insurance Subsidy Petitioner does not receive SSI benefits. Her only sources of income are a disability benefit she receives from the federal Social Security Administration (SSA) and a pension benefit she receives from the FRS. Petitioner's SSA disability benefit is $983.00 per month. Petitioner's gross FRS pension benefit is $701.00 per month. Her net benefit is only $410.00 per month as a result of health insurance premiums which are paid to Blue Cross and Blue Shield of Florida (BC/BS) by Petitioner through "payroll deductions." Included in Petitioner's gross FRS pension benefit is a health insurance subsidy of $50.40 per month. The subsidy amount is based upon the number of years of creditable service that Petitioner had with the State. It is calculated at a rate of $5.00 for each year of service. The subsidy may only be used by Petitioner to purchase health insurance. The subsidy does not cover the entire cost of Petitioner's health insurance. Even with the subsidy, Petitioner pays approximately $240.00 per month to BC/BS for health insurance. The subsidy is "optional" in the sense that Petitioner was required to separately apply for it under the FRS. However, upon application, the subsidy is legally owed to Petitioner as a result of her ten years of service to the State. The subsidy is paid directly to Petitioner, although Petitioner never actually receives the money since she has chosen to have it (and the remainder of her insurance premium) transferred to BC/BS through a “payroll deduction” from her monthly FRS check. Petitioner's total income is $1,684.00 per month if the health insurance subsidy is included, and it is $1,633.60 per month if the subsidy is excluded. Department's Review of Petitioner's HC/DA Application and Determination of Ineligibility On March 5, 2003, Petitioner met with Tracy Seymour, an adult services counselor with the Department, to determine whether she might be eligible for services under the HC/DA Program. Ms. Seymour helped Petitioner complete the application for the HC/DA Program, and gathered general income information from Petitioner. Petitioner's application was then forwarded to the Department's economic self-sufficiency unit for review. That unit is responsible for determining income eligibility where, as here, the applicant is not receiving SSI benefits. To determine income eligibility, the economic self- sufficiency caseworker verifies the income and resource information provided by the applicant on the application. Pamela Bolen was the caseworker responsible for reviewing Petitioner's application. Ms. Bolen contacted the SSA and obtained a print-out detailing Petitioner's disability benefit. That print-out confirmed that Petitioner received an SSA benefit in the amount of $983.00 per month. Ms. Bolen next called the Division of Retirement (DOR) to obtain information related to Petitioner's FRS pension benefit. Ms. Bolen was told that Petitioner's benefit was $650.60 per month with an additional $50.40 per month being paid towards Petitioner’s health insurance by the State. Later, Ms. Bolen received a print-out from DOR which reflected Petitioner's gross FRS pension benefit as being $701.00. That figure is the sum of $650.60 and $50.40. Because Ms. Bolen had not previously done an income eligibility determination for the HC/DA Program, she was unsure as to whether the $50.40 insurance subsidy was to be included or excluded when determining Petitioner's income. As a result, she contacted the economic self-sufficiency "help desk" for guidance. Roger Menotti, an administrator with 18 years of experience in the economic self-sufficiency unit, responded to Ms Bolen's inquiry. Mr. Menotti researched those portions of the Department's policy manual that relate to the HC/DA Program. The policy manual is not adopted by rule, nor is it incorporated by reference in any Department rule. However, the policy manual is consistent with the Department rules governing the HC/DA Program as well as the federal SSI rules. Section 2640.0115.02 of the policy manual provides that "gross income is used to determine eligibility" for the HC/DA Program. Section 1840.0102 of the policy manual provides that "[s]ome deductions withheld from gross income must be included as income" and that section specifically lists health insurance premiums as an example of such a deduction. Section 1840.0118 of the policy manual provides: A vendor payment is a money payment made for SFU [sic] expenses by an individual or organization outside of the SFU [sic] from funds not legally owed to the SFU [sic]. Vendor payments are excluded as income. . . . * * * Direct payments to a creditor or vendor on behalf of an individual are vendor payments and are excluded as available income to the individual with exception. When a vendor payment results in the individual directly receiving income, the income is included. . . . (Emphasis supplied.) Section 1440.1400 of the policy manual provides that: Individuals must apply for and diligently pursue to conclusion an application for all other benefits for which they may be eligible as a condition of eligibility [for the HC/DA Program]. Need cannot be established nor eligibility determined upon failure to do so. Section 1440.1400 specifically identifies retirement benefits and health insurance payments as examples of the other benefits for which the applicant must apply. Based upon his review of the policy manual, and particularly the sections quoted above, Mr. Menotti concluded that the health insurance subsidy is not a "vendor payment" and that it must be included in Petitioner’s gross income. Mr. Menotti conveyed this conclusion to Ms. Bolen. Thereafter, Ms. Bolen updated her calculations to reflect Petitioner's total monthly income as $1,684.00, which exceeds the income threshold for the HC/DA Program. Ms. Bolen then returned the application to Ms. Seymour. Based upon the economic self-sufficiency unit's determination that Petitioner's income exceeded the threshold for the HC/DA Program, Ms. Seymour notified Petitioner in writing on March 20, 2003, that she was "financially ineligible" to receive home care services. Ms. Bolen knew Petitioner when she was a Department employee. She and Ms. Seymour are continuing to work with Petitioner to identify Department programs for which Petitioner may be eligible. As of the date of the hearing, those efforts had resulted in Petitioner being found eligible for the Department's Medical Needy Program. Upon learning that her income exceeded the threshold for the HC/DA Program, Petitioner considered giving up the health insurance subsidy in order to reduce her income below the threshold. Ms. Bolen advised her not to do so. Ms. Bolen's advice was based upon Section 1440.1400 of the policy manual which does not allow an applicant for services under the HC/DA program to turn down other benefits or assistance that they may be eligible for. Had Ms. Bolen not given Petitioner this advice, Petitioner would have given up the health insurance subsidy for no reason. In a final effort to determine whether there was any means by which Petitioner could be found eligible for services under the HC/DA Program, Petitioner’s case was referred to Lynn Raichelson, an adult services policy specialist with the Department's Tallahassee office, for review. Ms. Raichelson contacted DOR to obtain information regarding the operation of the health insurance subsidy. She also contacted the Atlanta office of the SSA, which is the federal agency responsible for administration of the SSI program. Based upon information that she received from those sources, Mr. Raichelson concluded that the subsidy must be included as income in determining eligibility for services under the HC/DA Program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order denying Petitioner's application for services under the Home Care for Disabled Adults Program because her income level exceeds the threshold for the program. DONE AND ENTERED this 30th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 30th day of July, 2003.
Findings Of Fact Petitioner was employed by Palm Beach County from 1954 to 1968 as Assistant County Engineer and County Engineer. During this period he was a member of SCOERS, had deductions taken from his salary for retirement, and became eligible for full retirement based on years of service when he reached the age of 60 in April, 1983. From 1954 to 1956 six percent (6 percent) [5 percent prior to July 1, 1955] was deducted from Petitioner's salary as his retirement contributions pursuant to the retirement plan in effect for state and county officers and employees. In 1957 the Legislature amended Chapter 122, Florida Statutes, by providing social security coverage for state and county employees electing to be so covered. All groups of employees, including SCOERS employees, were divided into Division A and Division B. Those in Division B were those who made an election in writing to have their retirement deductions changed from six percent (6 percent) to four percent (4 percent) to have FICA deductions withheld from their salaries, and to be covered by the Social Security System. Those not so electing remained in Division A, their employment was not covered by social security, and their retirement deduction was six percent (6 percent). As a county employee any election Petitioner made to convert from Division A to Division B would have been made to Palm Beach County, who provided the names of those so electing to the Comptroller's Office, who in 1958 handled the retirement files for the state. No list of names submitted by the counties has been retained by the state. Palm Beach County does not maintain active personnel files for retired people and had no personnel records for Petitioner in the dead files. Accordingly, at the time of the hearing Palm Beach County had no written election from Petitioner to change from Division A to Division B. When the employees in these SCOERs system elected to change to social security coverage in 1957 or 1958, part of the sum they had contributed to their state retirement was transferred to the Social Security Administration to make their entry into social security retroactive to January 1, 1956. The maximum that was transferred to the Social Security Administration for any one member of SCOERS so electing was $178.50. This amount was transferred from Petitioner's retirement account to the Social Security Administration in 1958. Effective January 1, 1956, Petitioner's contribution to SCOERS was calculated at four percent (4 percent) of his salary and this amount was deducted monthly until his employment with Palm Beach County ended in 1968. During the period Petitioner was employed by Palm Beach County he contributed to this retirement fund at the rate of six percent (6 percent) for 1.17 years and at the rate of four percent (4 percent) for12.91 years. From 1958 through 1962 annual statements were submitted to SCOERS members showing the contributions to and the status of their retirement accounts. In 1963 such a statement was provided on July 1, 1963. Thereafter, the statements were submitted on a fiscal year basis. At no time did Petitioner protest the FICA deductions from his salary or question the percentage deducted from his pay for the retirement fund. Petitioner now contends that he did not pay any attention to the deductions from his salary to the retirement fund and was unaware that social security deductions were being taken. This contention is not consistent with Petitioner's testimony that he is a fiscal conservative nor with his background as an engineer. In addition to the referendum made available to employees under the SCOERS in 1957 to elect to be covered by social security the Legislature subsequently established other referendums in 1959 and again in the 1960s providing members of SCOERS other opportunities to elect social security coverage. On December 1, 1970, the Florida Retirement System was started and membership in the old Florida retirement systems, including SCOERS, was closed. All members of the Florida Retirement System are covered by social security. Of the approximately ten thousand employees not in the Florida Retirement System, i.e., still in SCOERS, teachers and law enforcement retirement systems, less than one hundred remain in Division A and are not covered by social security. A special Statute of Limitations bars actions to modify contributions to the Social Security System three years three months and fifteen days after the contributions are made. Accordingly, Petitioner's coverage under social security from 1956 to 1968 is irrevocable.
The Issue Whether Petitioner was properly denied home energy assistance as requested.
Findings Of Fact Petitioner is an 84-year-old unemployed homemaker whose entire and total income is a monthly Social Security payment of $300.04 and, periodically, when certain real property she owns is rented, a monthly rental check of $87.50. On December 23, 1982, because the property had not been rented for several months, Petitioner filled out and submitted a "Household Application for Home Energy Assistance" form at the Ocala, Florida, office of the Department of Health and Rehabilitative Services (HRS). On this form, she listed, inter alia, her household makeup (she, alone), her Social Security number, and the amount of income she had each month, including the usual rent which she was not getting at the time. On January 13, 1983, HRS sent Mrs. Roberson a form letter requesting further information. This information requested was the award letter from Social Security, telling the amount she was getting each month, and something telling the rent she received, signed by the tenant. She was to provide this information before January 27, 1983. Apparently, Petitioner did not understand the request, and no one from HRS contacted her other than by this form letter. Sometime thereafter, Petitioner went into the HRS office and filled out another application form thinking that was the information requested. No action was taken on the second application. In any event, the requested information was not submitted and, as a result, the application was denied. Petitioner's family size and income would qualify her for assistance had her response to the request for additional information been timely. All during the time the Low Income Energy Assistance Program was in operation in Ocala, HRS had at least 6 or 7 staff members in the office to help individuals fill out their application forms and to answer questions posed by applicants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department of Health and Rehabilitative Services deny Petitioner's application for low income energy assistance benefits. RECOMMENDED this 2nd day of June, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 2nd day of June, 1983. COPIES FURNISHED: Emily Roberson 2277 N. W. 12th Street Ocala, Florida 32675 James Sawyer, Esquire District Counsel Department of Health and Rehabilitative Services 2002 N.W. 13th Street Gainesville, Florida 32601 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues for determination are: (1) whether Petitioner owes overdue child support arrears; and (2) whether Respondent is authorized to levy Petitioner’s bank account at the MacDill Federal Credit Union, Tampa, Florida, and apply the funds to reduce or satisfy Petitioner’s past due child support obligation.
Findings Of Fact On April 21, 1994, a circuit court judge in the Circuit Court, in and for Duval County, Florida (Circuit Court), issued Final Judgment determining paternity and establishing support in Case No. 94-929-FM, in the case of Loquita D. Taylor and the State of Florida, Department of Health and Rehabilitative Services vs. Donald L. Baldwin. The Final Judgment established that Petitioner was the legal parent of Ashley Marie Taylor, born March 25, 1993, and that Petitioner owed to the State of Florida $1337.00 in public assistance. The Final Judgment ordered Petitioner to pay $35.00 per week child support through the court support depository. In October 1998, Petitioner made one lump sum payment of $3,983.85 towards his child support. At the hearing held December 2, 1998, in Case No. 94-929-FM, the court-appointed Hearing Officer held Petitioner “in willful indirect contempt of this Court for failure to pay child support as ordered while having the ability to pay.” Based on the child support payment records of the court depository, the court-appointed Hearing Officer found Petitioner was “in arrears in Court ordered child support in the amount of $5,858.15 through the payment due December 2, 1998.” On December 14, 1998, the Circuit Court adopted the Recommendations of its Hearing Officer as its order. In paragraph 12 of those Recommendations, which became order of the Circuit Court, the Circuit Court suspended enforcement of Petitioner’s ongoing child support, so long as the minor child received Social Security on behalf of Petitioner, but ordered Petitioner “to pay $140.00 per month towards the arrearages.” The Mandatory Addendum to the December 14, 1998, Circuit Court Order on Motion for Contempt instructed Petitioner to “immediately notify” the Clerk of the Court and the Department of Revenue, Office of Child Support Enforcement “in writing, of any change of residence or employment. Failure to receive notice of a future hearing because of a party’s failure to comply with this requirement will not be a defense. . . ." (emphasis in original) In 1999, according to the records of the Clerk of the Court, Petitioner made only two payments, for a combined total of $560.00, towards his December 2, 1998, arrears of $5,858.15. These two payments brought his outstanding arrears to $5,298.15. Petitioner made his last child support payment towards the arrears on May 7, 1999. To collect the unpaid arrearages, the Department sent a Notice to Freeze to the MacDill Federal Credit Union in Tampa, Florida, on August 3, 2000. In the notice, which was sent by certified mail, the Department advised the MacDill Federal Credit Union that Petitioner had a past due and/or overdue child-support obligation of $5,289.15 as of August 3, 2000. Moreover, the Department directed the bank not to transfer, dispose of, or return any credits, debts, or other personal property owned by or owed to Petitioner. On August 7, 2000, the MacDill Federal Credit Union verified that it had frozen the savings account identified as belonging to Petitioner. Petitioner had $2,814.41 in his savings account. On August 10, 2000, the Department sent a Notice of Intent to Levy by certified mail to Petitioner at his last known address. That notice provided in pertinent part the following: You are hereby notified that pursuant to Section 409.25656, Florida Statutes, the Department of Revenue intends to levy on credits, or personal property belonging to the obligor named above [Petitioner], or debts owed to the obligor. The property consists of liquid assets and is in the control of MACDILL FCU. This action is taken for nonpayment of child support by the obligor in the amount of $5,289.151 as of 08/03/2000. You are hereby notified that you may contest the agency’s action to levy on the above referenced property. You may do so by either filing an action in Circuit Court or by requesting an administrative hearing. If you wish to request an administrative hearing, you must file your petition for hearing, in writing, in accordance with the Notice of Rights attached to this Notice. If you elect to file an action in Circuit Court, your complaint must be filed with the Clerk of Court within twenty-one (21) days of your receipt of this notice. . . . You may NOT request both an administrative hearing and a hearing in circuit court. * * * NOTICE TO A NONOBLIGOR JOINT OWNER: If you claim you have an equal right to all of the money levied upon in a joint account, these hearing rights apply to you. (Emphasis in original.) Attached to the Notice of Intent to Levy were a Notice of Rights form that detailed the due process rights as provided for in Section 409.25656, Florida Statutes and a copy of Rules 28-106.201 and 28-106.301, Florida Administrative Code. On or about August 21, 2000, Petitioner timely filed an initial Petition for Formal Hearing (Petition), which requested a “formal hearing concerning the Notice of Intent to Levy.” On or about August 21, 2000, the Department issued and sent a Notice of Extension of Freeze to the MacDill Federal Credit Union. The notice advised the bank that Petitioner had “filed an action in the circuit court or under Chapter 120, Florida Statutes, to contest the Department of Revenue’s intention to levy upon assets as specified in the Notice of Freeze.” The Department further directed the MacDill Federal Credit Union not to transfer, dispose, or return any credits, debts or other personal property owned/controlled by Petitioner and in the bank’s possession and control. Finally, the Notice of Extension of Freeze stated that the Notice remained effective “until final resolution of the circuit court or Chapter 120 action, and the Department issued a Notice of Levy or a Notice of Full or Partial Release of Freeze.” The Department dismissed the initial Petition without prejudice because it was not in substantial compliance with either Rule 28-106.201 or, alternatively, Rule 28-106.301, Florida Administrative Code, and allowed Petitioner an opportunity to file an amended petition. Petitioner timely filed an amended Petition (Amended Petition), which was in substantial compliance with the Rules. On or about November 2, 2000, the Department referred the matter to the Division of Administrative Hearings to conduct the hearing. Petitioner submitted as a late-filed exhibit a Billing Statement, dated March 7, 2001, and a Pay Stub from the Social Security Administration concerning benefits of $1,664.00 paid in error to Petitioner and requesting repayment in full either “right away” or by “smaller amount monthly over a longer period of time.” The Payment Stub that accompanied the Billing Statement indicated that the overpayment could be repaid by check, by money order, or by MasterCard, Visa, or Discover. The statement from MacDill Federal Credit Union for October 1, 2000, through December 31, 2000, supplied by Petitioner indicates that he had a savings account balance of $2,862.22. Petitioner's uncontroverted testimony was that he is totally disabled, and his sole income is from Social Security. Petitioner asserted all the money in the account was from Social Security payments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Revenue enter a final order that (1) levies such funds as available in Petitioner's savings account at the MacDill Federal Credit Union up to the amount of his arrears; (2) applies the funds to reduce Petitioner's past due child support obligation; and (3) credits Petitioner for said payment. DONE AND ENTERED this 3rd day of May, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of May, 2001.
