The Issue The issue in this case is whether Petitioner, Robert D. Taylor, is eligible for the services offered by Respondent's Developmental Services Program.
Findings Of Fact Petitioner, Robert D. Taylor (Petitioner), filed an application with Respondent, the Department of Children and Family Services (Department), to receive services of the Department's Developmental Services Program. Based on information provided by Mrs. Tye, the suspected developmental disability/medical conditions which were the basis for Petitioner's potential eligibility were mild mental retardation and behavior problems. Following submittal of Petitioner's application, his eligibility for the Development Services Program was reviewed and determined by Dr. Bruce Crowell, a licensed psychologist employed by the Department. In order to determine Petitioner's eligibility, Dr. Crowell reviewed Petitioner's school psychological evaluations, all of which were completed prior to Petitioner's eighteenth birthday. According to Petitioner's school psychological evaluations, the Wechsler Intelligence Scale for Children, Third Edition, was administered to Petitioner in January 1993. Petitioner obtained a verbal Intelligence Quotient (IQ) of 80, a performance IQ of 82, and a full scale IQ of 79. Petitioner was also evaluated by Dr. Ruth Nentwig, a licensed psychologist, in June 16, 1999. As part of her evaluation, Dr. Nentwig administered the WAIS-III, an instrument that measures an individual's overall intellectual functioning. On the WAIS-III, Petitioner obtained a verbal IQ of 86, a performance IQ of 80, and a full scale IQ of 82. This evaluation was completed prior to Petitioner's eighteenth birthday. Based upon the statutory criteria, Petitioner is not eligible for services provided by the Department's Developmental Services Program. The IQ scores obtained by Petitioner place him in the low average to borderline intellectual functioning level and are not indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have to obtain a full scale IQ score of 69 or lower to be considered retarded and eligible for the Department's Developmental Services Program. Moreover, manifestation of such impairment would have to be documented prior to age 18 in order to demonstrate eligibility for the program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, the Department of Children and Family Services, enter an order denying Petitioner's application for services through the Developmental Services Program. DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2000. COPIES FURNISHED: Robert D. Taylor c/o Sarah Tye 1455 Winston Road Fort Myers, Florida 33917 Eugenie Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The Respondent, Andromeda Preschool (hereafter, Andromeda) seeks a formal hearing on the proposed administrative fine assessed by the Department. The only issue is whether Andromeda knew or had reasonable cause to suspect that an incident of abuse had occurred, and violated Section 415.504(1), Florida Statutes, by failing to report timely the alleged incident.
Findings Of Fact It is uncontested that Andromeda, as a licensed day care facility, is subject to the reporting requirements of Section 415.504, Florida Statutes. On January 16, 1998, a Friday, between 3:00 and 4:00 p.m., M.H. overheard E.H., an 8 year-old boy at Andromeda, telling at least two other boys that S.R., a 17 year-old male employee of the Andromeda, had wanted to perform oral sex on E.H. M.H., who is the sister of S.R. and also an employee of the school, reported the conversation she overheard to J.L., another employee of Andromeda. J.L. immediately reported the overheard conversation to Adrain Campbell, a co-director of Andromeda. Both M.H. and J.L. reported the conversation because of concern about the vulgar and graphic language used by E.H., who had exhibited a history of using vulgar language. Ms. Campbell conducted interviews with M.H., E.H., and the two boys with whom he was talking. E.H. told Ms. Campbell that S.R. had told him that S.R. wanted to perform oral sex on him. The two friends of E.H. reported to Ms. Campbell what E.H. said, but reported the conversation about oral sex between E.H. and S.R. took place while S.R. was baby-sitting E.H. M.H. reported to Ms. Campbell that S.R. had never baby-sat for E.H. Following the interview with the younger children, Ms. Campbell interviewed S.R. S.R. vehemently denied the accusations and appeared to be visibly shaken. Ms. Campbell sent a letter to the parents of E.H. on Friday, January 16, 1998, requesting a meeting with the mother of E.H. on Monday morning, January 19, 1998. The letter was hand delivered to the father of E.H. between 4:00 p.m. and 4:30 p.m. on January 16, 1998. The letter set out the essence of the reported conversation, and expressed Ms. Campbell's concern for the type of language and conversation used by E.H. Ms. Campbell did not consider the reported conversation as an allegation of misconduct by S.R., but an incident of vulgar language use by E.H. On Monday, January 19, 1998, S.H., the mother of E.H., met with Lori Studenski, co-director of Andromeda, and Margie Smith, an employee of Andromeda. The mother advised Smith and Studenski that she had questioned E.H. the preceding evening about allegations reported by Ms. Campbell, and E.H. informed her that S.R. had “touched his privates.” This alleged touching had not previously been disclosed to Andromeda. Smith and Studenski advised the mother that they believed S.R.'s denials, and that they felt E.H. was being influenced by older children. S.H. indicated she would question E.H. further. Both E.H. and his sister attended Andromeda on January 19, 1998, according to their normal schedule. On Tuesday morning, January 20, 1998, another meeting was held between Ms. Studenski and S.H., the allegedly abused child's mother. S.H. reported to Studenski that E.H. was again questioned by S.H. and her husband on Monday evening, January 19, 1998. E.H. related to them how S.R. had performed oral sex on E.H. twice in the kitchen at Andromeda with E.H. shouting, “No, no.” This was the third version of events reported by E.H. S.H. advised Ms. Studenski that she would be speaking with the pastor of their church. Again, E.H. and his sister both attended Andromeda as normal on Tuesday, January 20, 1998. Ms. Campbell and Ms. Studenski doubted that the alleged incident could have occurred in the kitchen as described by E.H. because the kitchen at Andromeda is very open. It has a large, open window that looks into the children’s game room/dining area. Further, the doorway into the kitchen is adjacent to that window and has a split door, the top half of which is approximately the same height as the open window, and all of the classrooms at Andromeda have glass panels in the doors and windows without shades. Paul Campanale, an employee of the Department of Children and Family Services whose duties include investigating allegations of child abuse, testified. His office received a report from the Central Abuse Reporting Hotline in Tallahassee at approximately 3:39 p.m. on January 20, 1998, and Campanale began his investigation at 4:42 p.m. on the same date. The report of abuse upon which Mr. Campanale based his investigation was that S.R. had performed oral sex on E.H. before Christmas 1997. Mr. Campanale testified that he had no record of when the incident was first reported, either to the parents of E.H. or to Andromeda. This allegation by E.H. was not related to the staff at Andromeda until January 20, 1998. By telephone, Mr. Campanale spoke with Margie Smith and Lori Studenski of Andromeda. Campanale was advised that the alleged incident was not reported earlier by Andromeda because Andromeda was conducting an internal investigation. He interviewed E.H. around noon on January 21, 1998. E.H. reported that he was in the kitchen at Andromeda around the New Year washing dishes, when S.R. performed oral sex on him. Following his interview with E.H., Mr. Campanale concluded that there were “some indicators” of an incident of abuse based solely on his interview with E.H. Mr. Campanale did not conduct any further follow-up investigation or interviews with any of the Andromeda personnel or S.R., nor did he visit the facilities at Andromeda. Vivian Farley and Maurice W. Murray, Jr., also testified as witnesses for the Department. Mr. Murray is the day care facility supervisor for the Department covering an area of five counties. Ms. Farley is involved with the licensing of day care facilities and her duties include investigating complaints of noncompliance with reporting requirements. Mr. Campanale filed a complaint regarding the failure to report the incident with the Petitioner on February 19, 1998. Mr. Murray, as supervisor, assigned the responsibility of investigating the non-reporting to Ms. Farley. Although a variety of resources and information is available to day care centers, there are no specific guidelines promulgated by the Department that defines reasonable cause to suspect abuse. Ms. Farley indicated that any report of an incident by a child, no matter how far-fetched, should be reported. Ms. Farley was the only witness testifying on behalf of the Department who was familiar with the facilities at Andromeda. She concurred in the testimony given by Ms. Campbell and Ms. Studenski as to the openness of the kitchen area where the alleged incident purportedly occurred, as well as the visibility features of the classrooms at Andromeda.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED: That a final order be entered finding that the allegations of the administrative complaint not proven; that Section 415.504(1), Florida Statutes, was not violated; and that the imposition of a civil penalty in the amount of $250.00 be rescinded. DONE AND ENTERED this 21st day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1998. COPIES FURNISHED: S. Grier Wells, Esquire 3100 Barnett Center 50 North Laura Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to services from the Developmental Disabilities Program. Whether adequate funds are available to provide these services given Respondent's existing appropriations.
Findings Of Fact The Petitioner is a seven-year-old boy who has a diagnosis of autism. In addition, he has been diagnosed with mild mental retardation and severe intractable seizure disorder. Approximately on July 7, 2000, Petitioner's parents requested services for toilet training, incontinent supplies, behavioral training, respite services, speech therapy, and occupation and physical assessments. Upon receipt of the application and review of relevant documentation, Petitioner was determined to be eligible for developmental services under the provisions of Chapter 393, Florida Statutes (2000). By letter dated September 29, 2000, Respondent advised Petitioner that his request for services had been denied. The reason identified for the denial was as follows: "There are not adequate funds available for the service(s), given the Department's existing appropriations." Petitioner requested a hearing to challenge Respondent's denial of services. At the hearing, it was established that, although Petitioner is eligible for services, the Florida Legislature appropriated additional funding only to be used to provide needed services for individuals who were clients of Respondent and were waiting for services on July 1, 1999. In order to comply with the mandate of the Legislature, Respondent issued Policy Directive PD number 00-07, dated August 30, 2000, which authorizes services be provided only to individuals who were clients on July 1, 1999, and were awaiting services. Respondent will not provide services to individuals who become clients after July 1, 1999, until approximately June 30, 2001, unless the new clients are determined to be in immediate crisis or danger. No evidence was presented to demonstrate that Petitioner was in immediate crisis or danger. However, the need for these services is urgent. Petitioner's mother made a telephone call to the Respondent approximately three years ago inquiring about services available for her son. Following that phone call, Petitioner did not submit an application for services and was never denied services or eligibility. The only application for services submitted by Petitioner was in July of 2000 and eligibility was approved. Petitioner cannot be considered as a client of Respondent until after July 1, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for services be approved and Petitioner be placed on the waiting list for services when new funding becomes available. DONE AND ENTERED this 27th day of March, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of March, 2001. COPIES FURNISHED: Eric Aach c/o Lori Aach 5777 Craindale Drive Orlando, Florida 32819 Eric Dunlap, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent engaged in the practice of discrimination against Petitioner when terminating him from employment as a firefighter due to a medical condition.
Findings Of Fact Petitioner, Jonathan Race, was employed by Respondent, Orange County Fire Rescue Department, since January 1989, and worked in the Operations Division as a Lieutenant/EMS Supervisor. In this role, he managed, coordinated, and performed firefighting and emergency rescue services. In the mid-1990s, Petitioner was diagnosed with atrial fibrillation which ultimately resulted, in July 2001, in his undergoing an open heart surgical procedure known as the "MAZE" procedure. Following the open heart surgery, Petitioner had a pacemaker installed in August 2001. Petitioner's cardiologist from 1997 to January, 2005, was Arnold Einhorn, M.D. Barry Portnoy, M.D., is a physician under contract with Orange County to perform annual physical examinations for members of the Orange County Fire Rescue Department. While Dr. Einhorn served as Petitioner's cardiologist, he had periodic conversations with Dr. Portnoy concerning Petitioner's cardiac condition. On May 20, 2003, Dr. Einhorn wrote a letter to Dr. Portnoy in which he stated that Petitioner, "continues to be on medical therapy with beta blockers and Digoxin and his underlying heart rate is in the 30s and this making him dependent on the pacemaker approximately 80% of the time." Dr. Einhorn concluded at that time that Petitioner needed to continue with his medications and use of the pacemaker. Petitioner, concluded, Dr. Einhorn, "is dependent on the pacemaker." On January 16, 2004, Dr. Portnoy conducted an annual physical for Petitioner. On February 6, 2004, Dr. Portnoy stated in his evaluation of Petitioner: "Classification deferred pending additional information. . . . Employee may continue in his/her present duties for no more than 30 days while awaiting further evaluation." On June 4, 2004, Dr. Portnoy completed his evaluation of Petitioner, imposing a restriction of "No functioning as a member of a team or independently where sudden incapacitation could result in harm to himself, risk to others, or mission failure." Dr. Portnoy placed Petitioner on light duty, which resulted in his assignment to an office job at fire headquarters. Respondent's policy dictates that, when an employee is placed on light duty, a medical review is conducted. After being placed on restricted or light duty, a medical review of Petitioner was commenced in June 2004. Respondent's medical review committee requested that Petitioner obtain from his cardiologist, Dr. Einhorn, information concerning Petitioner's cardiac condition. On January 5, 2005, Dr. Einhorn, at Petitioner's request, sent a letter to Dr. Portnoy in which he stated, in part, "We have been trying to wean the patient off beta blockers and Digoxin to see if the patient is still pacemaker dependent. He is now not on any Digoxin and Toprol and interrogation of his pacemaker revealed 30% atrial paced with 16 runs of atrial fibrillation." Based upon the information received from Dr. Einhorn by Dr. Portnoy, Respondent sent Petitioner a letter dated February 17, 2005, which stated that Respondent had determined there was a preponderance of evidence that restrictions placed on Petitioner by Dr. Portnoy would continue indefinitely and that Petitioner would not be able to return to his position in the Operations Division as Lieutenant/EMS Supervisor. Respondent concluded that under Article 34.11 of the Collective Bargaining Agreement, Petitioner would be medically separated from his employment with the County, effective March 26, 2005, at 19:30 hours. While on light office duty, Petitioner was given additional time to pursue other jobs with Orange County. Petitioner did not find another job with Orange County. On March 10, 2005, after Petitioner had received the February 17 letter from Respondent, Amish Parikh, M.D., wrote a letter "To Whom It May Concern", in which he stated that Petitioner "is now pacing only 0.8% of the time and it is not considered pacemaker-dependent. I believe the pacemaker is not a limiting factor in his ability to perform his job and he should be permitted to return to full duty without restrictions." Nothing in this letter makes reference to any medications Petitioner would be required to take in the future. On April 15, 2005, after Petitioner had been terminated from his employment with Respondent, Petitioner was examined by another cardiologist, Sunil M. Kakkar, M.D., who concluded that Petitioner was not pacemaker dependent and could return to full duties with Respondent. Neither Dr. Parikh nor Dr. Kakkar testified at the hearing. Their written reports appear to be based upon one visit by Petitioner with each of them. On March 23, 2005, Dr. Portnoy reviewed the March 10 letter from Dr. Parikh. Dr. Portnoy did not change his determination that Petitioner was pacemaker dependent after his review of Dr. Parikh's letter. Dr. Portnoy did not lift the restrictions he had imposed on Petitioner. At the time of hearing, Petitioner continued to take medications, both aspirin and Toprol, for his cardiac condition. David Hart worked as a firefighter with Respondent from March 16, 1981, through his voluntary retirement, with the rank of Engineer, on February 10, 2005. Mr. Hart was diagnosed with atrial fibrillation in 1992 and was treated for the condition with medications for the ensuing six years. Mr. Hart had a pacemaker implanted in October of 1998, and had the pacemaker in place through his retirement. While still employed by Respondent, Mr. Hart's private cardiologist, Dr. Filart, provided Respondent and Dr. Portnoy with information concerning the pacemaker, and determined that Mr. Hart was not pacemaker dependent. Based upon Dr. Filart's determination that Mr. Hart was not pacemaker dependent, Mr. Hart was not removed from duty or placed on restricted duty due to his pacemaker. Mr. Hart agreed that the decision with respect to pacemaker dependency should be made by the patient's cardiologist. Petitioner claims that he was discriminated against by Respondent due to disparate treatment between himself and David Hart. He alleges he is not pacemaker dependent, is similar to Mr. Hart, and, therefore, should not have been medically separated from his employment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jonathan A. Race 1081 Dean Street St. Cloud, Florida 34771 Gary M. Glassman, Esquire Orange County Attorney's Office Litigation Section 435 North Orange Avenue, 3rd Floor Orlando, Florida 32801 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent properly denied Petitioner's request for immediate developmental disability services, placing him instead on a waiting list for those services due to the unavailability of funds.
Findings Of Fact There are three primary funding sources for persons with developmental disabilities: Individual and Family Supports (IFS program); Home and Community Based Waiver for Persons with Developmental Disabilities (HCBW or Medicaid Waiver program); and Intermediate Care Facility for Developmentally Disabled Clients (ICF/DD program). The IFS program is funded from the state's general revenue. Based upon available funds, this program can pay for summer camps and other services that are not available under the other two programs. The HCBW program provides a variety of services to individuals with developmental disabilities under Section 19.15 (c) of the Social Security Act. It is a federal matching dollar program with approximately 50 percent of the funds furnished by the state and 50 percent of the funds furnished by the federal Medicaid program. Unlike the IFS and ICF/DD programs, the HCBW program can pay for residential habilitation in a home or community setting. The ICF/DD program serves clients in an institutional setting under a Medicaid entitlement program. Unlike the IFS and HCBW programs, which are not entitlement programs, the funds for the ICF/DD program are not limited and do not have to be prioritized. The federal government's Health Care Finance Administration (HCFA) has to approve the state's HCBW program. HCFA's approval serves as a waiver of certain federal Medicaid requirements. The waiver allows the state to serve individuals in community-based settings instead of institutions. The approval process includes identification of the number of individuals to be served, as well as defining the services to be provided and setting forth provider qualifications. In 1998, HCFA approved Respondent's five-year plan for an HCBW program. Under the plan as amended each fiscal year, Respondent makes a commitment to serve the lesser of a target number of individuals or the number of persons authorized by the state legislature. The target number of persons was 15,302, 22,433, and 25,945 for the 1998-1999, 1999-2000, and 2000-2001 fiscal years, respectively. Any difference between the target number of individuals to be served and the actual number of individuals served is based on the funds appropriated by the state legislature. Historically, the state has not been able to serve all individuals identified as developmentally disabled. The persons who are not served are placed on a statewide waiting list. Traditionally, individuals are removed from the waiting list and begin receiving services as funds become available. Prior to the 1999 legislative session and after federal litigation, Respondent identified the number of developmentally disabled individuals who were under-served or receiving no services. Respondent made this effort in anticipation of receiving additional funding to begin eliminating the existing waiting list. At that time, Respondent identified 23,361 persons who were on the waiting list. In 1999, Respondent developed and submitted to the Legislature a two-year spending plan. The purpose of the plan was to eliminate the existing waiting list by addressing the needs of the 23,361 people over a two-year period. Respondent based the plan on data then available and the existing case load. The plan assumed that Respondent would prioritize populations and provide services in an organized manner. The two-year spending plan called for new funding in the amount of $98,167,008 for the 1999-2000 fiscal year. The plan provided for the delivery of additional services to 15,984 people in the first year (July 1, 1999 through June 30, 2000), with the remaining 7,377 people receiving services in the second year (July 1, 2000 through June 30, 2001). The two-year spending plan estimated that additional funding in the amount of $118,215,693 would be required for the 2000-2001 fiscal year to serve the 23,361 people on the waiting list. The two-year spending plan contained the following priorities: Identify those persons in crisis, both in need of residential or community-based care, and serve them in the first six months. [This goal assumed that Respondent would serve 1,590 persons identified as in crisis in the first six months of the 1999-2000 fiscal year.] Identify those persons who are eligible for ICF/DD [Intermediate Care Facilities/Developmental Disabled] (LON [Levels of Need] 3, 4, & 5) and are in need of additional services and provide services (DOE vs. Bush). [This goal assumed that Respondent would continue to serve 1,298 persons already participating in the Medicaid waiver program and begin serving 5,237 additional persons in that program by the end of the 1999-2000 fiscal year.] Provide home and community-based services to persons who wish to move from the private institutions to the community (Cramer vs. Bush). [This goal assumed that certain numbers of people would elect to move from a private ICF/DD or a nursing home to the community program in the 1999-2000 and 2000-2001 fiscal years.] Determine the unmet needs of persons living in residential care, or needing residential care (not crisis) and who are ICF/DD eligible and provide services. [This goal assumed that Respondent would provide enhanced residential care to some persons and new residential care for others.] Determine the unmet need of persons not eligible for ICF/DD (LON 1&2) and begin meeting their needs. [This goal assumed that Respondent would meet the needs of all people then on the Medicaid waiver program in the first year. It also assumed that Respondent would provide services to 25 percent of the population who were not on the Medicaid program in the 1999-2000 fiscal year with the remainder receiving services in the 2000-2001 fiscal year.] In the 1999 legislative season, the Legislature renewed funding for services provided to the existing clients of the HCBW, ICF/DD, and IFS programs. The Legislature also provided additional funding for developmentally disabled persons in the amount of $98,167,008, to meet the priorities, in order, as follows: (a) transitions for those requesting transfers from ICF/DD institutional placements into HCBW residential placements; and (b) meeting the needs of identified under-served participants in the HCBW program. The 1999 Legislature did not provide any additional funding for the IFS program that would allow Respondent to increase the number of persons served in the IFS program without decreasing services provided to existing clients. In a memorandum dated June 22, 1999, Respondent advised its district administrators that the 1999-2000 spending plan was approved. The memorandum described certain tasks that had to be completed, together with relevant time frames, before Respondent could spend the appropriated funds. These tasks included the following: (a) Serve persons in crisis; (b) Serve persons wishing to move from ICF/DD to community placements; (c) Serve persons on the waiver with unmet needs or who are under-served; (d) Serve persons eligible for ICF/DD or HCBS waiver with unmet needs; and (e) Serve persons with limited and minimal levels of need who are not enrolled in the waiver (not enrolled in HCBW and not eligible for ICF/DD or waiver.) The two-year spending plan developed by Respondent in 1999 did not take into consideration the needs of developmentally disabled persons who were not in crisis and who applied for and became entitled to services after July 1, 1999. Therefore, as non-crisis applicants qualified for services after July 1, 1999, Respondent placed their names on a second waiting list. The new waiting list grew at an unprecedented rate due to the redesigned system and the influx of additional funds. During the 2000 legislative session, Respondent requested and the Legislature appropriated sufficient funds to continue the services provided to persons in the 1999 General Appropriations Act and for an additional 7,377 persons to be served in the 2000-2001 fiscal year. Once again the new funds were earmarked as follows: (a) for clients requesting transfers from a ICF/DD program to a HCBW program; and (b) for under- served clients in the HCBW program. The Legislature earmarked all of the new funding for the HCBW program. The Conference Report on House Bill 2145, General Appropriation Act FY 2000- 2001, Section 3, Specific Appropriation No. 344, specifically stated: The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments. In accordance with the Legislature's appropriations and proviso language for the 1999-2000 and 2000-2001 fiscal years, Respondent implemented a policy to eliminate the existing waiting list for persons seeking developmental disability services. Respondent properly determined that persons with unmet needs, who were on the waiting list as of July 1, 1999, would be served before any one who applied for services after that date. According to Respondent's policy, the only exceptions would be individuals who were determined to be in crisis. Respondent's proposed budget for the 2001-2002 fiscal year calls for additional funding for clients who applied for services after July 1, 1999. Respondent projects that 6,774 additional persons would become clients or be waiting for services by the end of the 2001-2002 fiscal year--a net increase in the caseload of 2,258 people annually. Until funding becomes available, these additional people will remain on a waiting list. Under the spending plan in effect at the time of the hearing, some individuals who were on the wait list as of July 1, 1999, still are not receiving services for which they are eligible. These persons are in the process of obtaining services and must be served before persons who became or will become eligible after July 1, 1999. Petitioner became eligible for developmental services in November 1999. He does not presently qualify for services funded by the Legislature in fiscal year 2000-2001 for three reasons: (a) he became eligible after July 1, 1999; (b) he applied for IFS services, a funding category for which the Legislature did not appropriate any new funds for new clients; and (c) he is not in crisis. Additionally, Petitioner is currently having his residential training needs met through the Conklin Center, Division of Blind Services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner remain on the list of clients waiting to receive developmental disability services. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of February, 2001. COPIES FURNISHED: Michael Raymond 5268 Isabelle Avenue Port Orange, Florida 32127 Cathy McAllister, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Mr. Davis is a resident of Miami, Florida, and is 20 years of age. Mr. Davis submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual. The Department evaluated Mr. Davis's application and determined that he was not eligible to receive services through the Developmental Disabilities Program. In making this determination, the Department considered a Psychiatric Evaluation Summary dated August 18, 1998, that was prepared by J.O. Pagan, M.D. Dr. Pagan stated in the summary that Mr. Davis was "diagnosed early in his life as a child with Autistic characteristics," and he noted that, throughout his life, Mr. Davis has "had symptoms associated to hyperactivity, Tics, and perseverance behaviors." According to Dr. Pagan, Mr. Davis "diagnostically belongs in the Autistic Spectrum and more specifically to the Asperger's Syndrome." In evaluating Mr. Davis's eligibility for enrollment in the Developmental Disabilities Program, the Department also considered a Multi-Disciplinary Team Report prepared by the Division of Student Services of the Miami-Dade County public school system. Mr. Davis was a student in the Miami-Dade County public school system's Exceptional Student Education program, which provides appropriate education for students with disabilities. The Multi-Disciplinary Team Report was part of a required re-evaluation performed by school personnel in order to determine Mr. Davis's psycho-educational status. The report is based on a re-evaluation of Mr. Davis conducted on March 25 and April 1, 1998, when he was 17 years of age and an 11th grade student at Coral Reef Senior High School. It is noted in the report that Mr. Davis "has been diagnosed with Aspergers Autism and Bipolar Disorder" and that he was first evaluated by the Dade County Public Schools in May 1987, at which time he had medical diagnoses "including Attention Deficit Disorder, Pervasive Developmental Disorder and Affective Disorder Bipolar Type." The Wechsler Adult Intelligence Scale - Third Edition was administered to Mr. Davis during the 1998 re-evaluation. Mr. Davis obtained a Full Scale IQ of 100 on the Wechsler Adult Intelligence Scale, with a Verbal IQ of 110 and a Performance IQ of 89. The evaluator also noted in the Multi-Disciplinary Team Report that Mr. Davis "is capable of completing at least grade level academic work, yet his lack of attention and concentration often impede his progress. At present, his social skills remain underdeveloped." During his last two years in high school, Mr. Davis was classified as having the exceptionality of autism,2 and he was placed in a classroom for students with varying exceptionalities. The school system provided Mr. Davis with extensive and intensive services designed to assist him in making the transition from school to independent living and employment. The school system provided Mr. Davis with a one-on- one aide to work with him on his behavioral problems, and the school system's transition team worked with Mr. Davis to help him develop independent living skills. Mr. Davis has received training in computers and took courses at the Robert Morgan Vocation School in high-level computer programming. He graduated from Coral Reef Senior High School in June 1999. Although Mr. Davis was very successful in the program developed by the school system's transition team, he is now exhibiting some behavioral problems that he did not exhibit when he finished high school. He needs individualized support in order to live independently because his autistic tendencies are very strong, especially in the area of his behavior. Mr. Davis also needs services in the area of vocational training because his level of functioning is not yet high enough to permit him to seek employment. Mr. Davis has the potential to live independently and to be a productive member of society. He is, however, in need of community services in order to meet this potential. Mr. Davis applied to the state for vocational rehabilitation services but was denied these services because his IQ is too low.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Jeffrey Davis for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 25th day of September, 2001.
