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CHELSEA PERDUE-WASHINGTON vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 02-002374 (2002)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Jun. 17, 2002 Number: 02-002374 Latest Update: Dec. 20, 2002

The Issue Whether or not Petitioner's application for certification as an Independent Waiver Support Coordinator should be approved.

Findings Of Fact Respondent is the state agency that implements programs and services for persons who are developmentally disabled. In this capacity, Respondent certifies and enrolls qualified individuals, private businesses, not-for-profit organizations, and units of local government to provide services to developmentally disabled persons under the Developmental Disabilities Program Developmental Services Home and Community- based Services waiver program. In so doing, Respondent must ensure that all federal requirements are met and that the health and welfare of developmentally disabled persons are protected. Respondent has established reasonable academic, training and experience criteria for individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators as a part of the Developmental Disabilities Program Developmental Services Home and Community-based Services waiver program. For example, these minimum qualifications include a bachelor's degree and three years of professional experience in developmental disabilities, special education, or related fields. In addition to the academic, training and experience criteria, Respondent conducts background screening in an attempt to assess the suitability of individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators. Part of the background screening involves a review of the work product, performance appraisals, and achieved outcomes of any applicant who has rendered services to individuals receiving developmental disabilities services. Respondent may deny certification to an applicant if it receives evidence of an adverse history with Respondent or the Agency for Health Care Administration as a result of background screening. Prior to Petitioner's application to be certified as an Independent Waiver Support Coordinator, she was employed by an institutional services provider which provided services to individuals with developmental disabilities; her job with the institutional services provider had essentially the same responsibilities as she would have if she became an Independent Waiver Support Coordinator. Respondent solicited and received an evaluation of Petitioner's work performance with the independent services provider. Petitioner's supervisor indicated that Petitioner's work was not satisfactory and that she would not rehire her. Respondent determined this negative evaluation as evidence of an adverse history sufficient to disqualify Petitioner and deny her certification.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for certification as an Independent Waiver Support Coordinator. DONE AND ENTERED this 12th day of September, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of September, 2002. COPIES FURNISHED: Joseph K. Birch 34 East Pine Street Orlando, Florida 32802 Chelsea Predue-Washington Post Office Box 1117 Clarcona, Florida 32710-1117 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700

USC (1) 42 CFR 441.300 Florida Laws (3) 120.57393.066393.501
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AGENCY FOR HEALTH CARE ADMINISTRATION vs LYNK SERVICES, INC., 09-006165MPI (2009)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Nov. 10, 2009 Number: 09-006165MPI Latest Update: May 04, 2010

The Issue The issues in the case are whether Lynk Services, Inc. (Respondent), violated applicable provisions of the Florida Administrative Code, and, if so, what penalty should be imposed.

Findings Of Fact The Florida Medicaid Developmental Disabilities Waiver Program (Waiver) provides approved health and personal services to qualified recipients. The Agency for Persons with Disabilities (APD) administers the Waiver and conducts audits of participating health care providers. The time period relevant to this case (the "audit period") was April 1, 2006, through June 30, 2006. At all times material to this case, the Respondent was the Waiver Support Coordinator (WSC) for Waiver recipient R.M. At all times material to this case, Premier Health Care (Premier) was the personal care assistance provider assigned by the Respondent to R.M. On March 31, 2006, the Respondent filed with APD, an authorization for personal care services to be provided to R.M. by Premier for the one-year period commencing on April 1, 2006. Premier filed claims for the provision of personal care service to R.M. during at least part of the audit period. The Florida Medicaid program paid the claims. Premier did not provide personal care assistance to R.M. during the audit period. The only service provided to R.M. during the audit period by a Premier employee was supervision of oxygen usage, which is not a personal care service. The Respondent did not file any request to amend the service authorization to reflect the services actually provided by Premier to R.M. An overpayment of $2,006.00 occurred, based on payment by APD for personal care services that were not provided to R.M.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order stating that the Respondent violated applicable requirements as set forth herein and assessing a fine of $1,000 and requiring the submission of an acceptable corrective action plan. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 6th day of April, 2010. COPIES FURNISHED: Lynne Ballou, CEO, WSC Lynk Services, Inc. 2189 Cleveland Street, Suite 207 Clearwater, Florida 33765 Andrew T. Sheeran, Esquire Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308

Florida Laws (3) 120.569120.57409.913 Florida Administrative Code (1) 59G-9.070
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MARY C. JOHNSON vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 04-000271 (2004)
Division of Administrative Hearings, Florida Filed:Ocala, Florida Jan. 22, 2004 Number: 04-000271 Latest Update: Sep. 24, 2004

The Issue Whether Petitioner may be granted a family day care home registration/license.

Findings Of Fact Petitioner operated a licensed family day care home from 1992 until June 2002, when she ceased to operate a home. In late 2002 or early 2003, Petitioner applied to DCF for a new license. Petitioner's new application was denied solely because of information found during the background screening, including information from her prior licensure file. Glenda McDonald was Petitioner's day care supervisor during Petitioner's prior licensure. In that capacity, Ms. McDonald conducted regular inspections of Petitioner's day care home. On August 25, 1992, Ms. McDonald's superior sent Petitioner a letter stating that Petitioner was operating a day care facility in excess of its licensed capacity and requiring Petitioner to come into compliance by August 28, 1992. Petitioner credibly denied that she received this letter. The letter was not sent to Petitioner's address of record and no proof of the allegations in the letter were presented. During Petitioner's prior licensure, DCF generated four abuse/neglect reports related to Petitioner's day care home. None of these reports were written by Ms. McDonald, who was never a child protection investigator (CPI). Copies of these reports were included in Petitioner's old licensure file.1/ Abuse/neglect Report 1998-050246 relates to a child who wandered away from Petitioner's day care home on May 1, 1998. The report was verified for "inadequate supervision: neglect" against Petitioner. As a result of the events giving rise to the May 1, 1998 abuse/neglect report, Ms. McDonald cited Petitioner's day care home on June 4, 1998, with one count of "Class II non- compliance: lack of direct supervision," pursuant to Florida Administrative Code Rules 10M-12.020(5)(a) and 65C-22.001(5)(a). Since this exhibit was a carbon copy in Ms. McDonald's possession, it is inferred that Petitioner actually received a copy of this informal citation. Ms. McDonald also issued a warning letter to Petitioner on June 4, 1998, citing only Rule 10M-12.0202(5)(a), and saying that Petitioner could appeal after she received a subsequent fine letter for either $50.00 or $100.00. In connection with the May 1, 1998 incident, Ms. McDonald had interviewed Petitioner, who had made various admissions. After her investigation, Ms. McDonald was satisfied that a child entrusted to Petitioner's care had walked out of Petitioner's enclosed yard and further had walked beside a busy road, without Petitioner's knowledge, and that the child had been picked up by the police after nearly two hours' absence, near a busy intersection. In the course of Ms. McDonald's investigation, Petitioner had admitted her caretaker responsibility for the child but had denied that he was a paying day care client. At the hearing in the instant case, Petitioner maintained essentially the same position. Abuse/neglect Report 1999-105502 relates to allegations, arising on August 19, 1999, that Petitioner had locked day care children in a time-out room or "cubby" and that day care children had been beaten. No indicators were found by the CPI against Petitioner for corporal punishment. The report was eventually closed with "some indicators" against Petitioner as the caretaker responsible for confinement and bizarre punishment, constituting neglect. However, DCF did not classify or close this report at all until January 25, 2002. As a result, the report refers to "prior reports," but lists reports for both previous and subsequent years: 98-505246, 99-105502, 99-118736, 00-128236, and 02-006119. Because the classification of abuse/neglect report 99-105502 depended upon reports after its date of commencement, some of which cannot be assessed as to status,2/ and because no competent, credible evidence concerning the underlying August 19, 1999, event alleged in the report was presented in the instant hearing, report 1999-105502 is discounted in its entirety as evidence of any wrong-doing, abuse, or neglect by Petitioner.3/ Abuse/neglect Report 1999-118736 relates to allegations of bite marks found on a nine-month-old child in Petitioner's day care home on September 17, 1999. Petitioner was listed therein as a "significant other." The report was "closed with no on-going care needed." Abuse/neglect report 2000-128236 relates to bite marks found on one two-year-old child inflicted by another two-year old child, both of whom were in Petitioner's day care home on August 16, 2000. This report was classified only as "investigation complete," and further stated that Petitioner was the caretaker responsible. The report further noted that the CPI wanted DCF to consider "removing" Petitioner's license due to the number of abuse/neglect reports with "verified" allegations and some indicators. Yet as of the closure of this report, there appears to have been only the 1998 verified report. (See Findings of Fact 7 and 8). Due to all of the inconsistencies within the 1999 and 2000 reports, due to there being only one report (No. 98-050246) ever actually classified as "verified," and due to the legally indefinite nature of the classifications assigned by CPIs in 1999 and 2000, it is apparent that the CPIs who completed the 1999 and 2000 abuse/neglect reports had no clear understanding of the terms required by law for classifying them. Because of the vague classifications assigned to the 1999 and 2000 reports, it may be inferred that Petitioner was never provided a timely opportunity to contest them. (See also Finding of Fact 17.) Therefore, these reports cannot be called either "verified," "confirmed," "upheld," or "uncontested." (See Conclusion of Law 27). On November 24, 1999, Ms. McDonald wrote Petitioner to express DCF's concern, pursuant to Florida Administrative Code Rule 65C-22.001(5)(a), after the CPI's investigation and her own independent inspection arising from "the repeated abuse reports". Ms. McDonald's use of the plural for "abuse reports" is noted. However, her letter stated no "concern" other than the incident of September 17, 1999, on which investigation had been closed, naming Petitioner only as a "significant other." The letter was sent certified mail to inform Petitioner that the violation was being classified as a Class II violation with a $25.00 fine for each day of violation and she could appeal when she got a subsequent fine letter. No return of certified mail receipt was offered in evidence. Ms. McDonald testified in the instant case that she was contemporaneously aware of the bites on the nine-month-old who was in Petitioner's day care on September 17, 1999, and that she also was contemporaneously aware of another child who had been bitten while in Petitioner's day care. It is inferred from her testimony that Ms. McDonald was familiar, from her regular inspections, with the events surrounding the August 16, 2000, abuse/neglect report of a two-year-old child suffering bite marks from another two-year-old child, because Ms. McDonald further testified that it was upon the second biting incident that DCF began to seriously consider revoking Petitioner's first license. (See Findings of Fact 10-11). On or about December 11, 2000, a DCF attorney drafted an administrative complaint against Petitioner. The administrative complaint sought only to impose administrative fines for violations as follows: one 65C-20.009(3)(a) violation, Class I, inadequate supervision, with a fine of $100.00; one 65C-20.009(3)(a), Class II violation, inadequate supervision, with a fine of $50.00; and one 65C-20.009(3)(a) violation, Class II, inadequate supervision, with a fine of $50.00. The administrative complaint contained no prayer to revoke Petitioner's license. The charges contained therein apparently were solely the result of the abuse/neglect reports arising from incidents on May 1, 1998 (the wandering child incident); September 17, 1999, (the bites on the nine-month-old child); and August 16, 2000, (the bites on the two-year-old child). An administrative complaint is merely an allegation. Of itself, it proves none of the charges contained therein. Moreover, there is no clear evidence that Petitioner ever received the foregoing administrative complaint so as to have an opportunity to contest the charges. However, the administrative complaint suggests, contrary to some testimony, that Petitioner had not previously been fined for these dates. It also clearly demonstrates that, as of December 11, 2000, DCF did not view the wandering child or the two incidents of biting children biting each other as Code violations worthy of revoking Petitioner's license. Ms. McDonald testified that in 2002, as a result of the foregoing administrative complaint, she told Petitioner that DCF would not renew Petitioner's license when it came up for renewal, and that consequently, Petitioner agreed to retire and never reapply for a day care license, rather than suffer administrative prosecution. Petitioner credibly denied that such a scenario had ever occurred. Petitioner testified that she had never signed anything, did not know there were charges pending against her, and only "retired" in 2002 because she had been hospitalized and unable to work for a period of time. Her husband credibly corroborated her desire to retire after hospitalization. Because the 2000 administrative complaint was apparently never served on Petitioner; because of the greater weight of Petitioner's and her husband's combined testimony; because DCF seems to have repeatedly intended to assess different degrees of noncompliance and different amounts of fines for the same alleged events; because DCF introduced warnings and citations but no fine letters containing the opportunity to appeal/contest; and because it is not credible that someone licensed for 10 years would retire and guarantee never to reapply, only to avoid what, at worst, would be a $200 fine, Petitioner and her husband are found to be the more credible witnesses on why Petitioner surrendered her first license, and it is accordingly found that Petitioner surrendered her first license without coercion by DCF and without giving DCF any promise not to reapply. Petitioner is also found credible that she did not know there were any continuing problems as a result of any of the oral or written warnings she had received. Her testimony in this respect is understood to mean that she never received a notice permitting her to contest any of the four abuse/neglect reports discussed, supra., or any formal notices to pay fines.

Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order granting Petitioner registration for licensing as a day care home, subject to her fulfilling all the other requirements for a new license applicant. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 7th day of June, 2004.

Florida Laws (15) 120.5739.201402.301402.302402.305402.3055402.308402.313402.319409.175409.176415.102415.103435.04827.03
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AGENCY FOR HEALTH CARE ADMINISTRATION vs ALLCARE HEALTH AND HUMAN SERVICES, INC., 12-002594MPI (2012)
Division of Administrative Hearings, Florida Filed:Port St. Lucie, Florida Aug. 03, 2012 Number: 12-002594MPI Latest Update: Apr. 29, 2013

The Issue Whether Allcare Health and Human Services, Inc. (Respondent), a Medicaid provider, was overpaid by the Florida Medicaid Program as alleged in the Amended Final Audit Report (Amended FAR) dated August 31, 2012. Also at issue are the amounts of any overpayment, whether any penalty should be imposed (and the amount thereof), and whether the Agency for Health Care Administration (Petitioner) is entitled to recover its costs (and the amount thereof).

Findings Of Fact At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. Among its duties, Petitioner is required to conduct audits and to recover "overpayments . . . as appropriate." Section 409.913(1)(e) defines "overpayment" to mean "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." Petitioner's Bureau of Medicaid Services has the responsibility for polices regarding Developmental Disabilities Waiver and Provider Reimbursement. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks. Respondent is required to comply with the Florida Medicaid Provider General Handbook, the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, and the Provider Reimbursement Handbook. Respondent is an experienced Medicaid provider that provides a variety of Medicaid services. Respondent's annual billings to the Medicaid program exceed $1,000,000.00. Among the Medicaid services it provides, Respondent provides Companion Services (billing code S5135) to recipients under the Developmental Disabilities Home and Community Based Services Waiver Program. There is coverage limitation for Companion Services. A recipient can receive no more than 24 quarter-hours (six hours) of Companion Services per day and no more than 30 hours of Companion Services per week. The alleged overpayments at issue were based on billings for days on which Companion Services exceeded six hours. As part of a larger audit of Medicaid providers, Petitioner audited Respondent based on billings for Companion Services submitted by Respondent and paid by Petitioner. All of the services at issue in this proceeding were paid by Petitioner to Respondent based on Respondent's billings. Taking information reflected by Respondent's billings for Companion Services to 46 recipients during the audit period, Petitioner generated a Preliminary Audit Report (PAR) on March 14, 2012. The PAR cited the Coverage Handbook, statues, and rules Petitioner relied upon. Petitioner attached to the PAR a detailed audit report that determined that Respondent was overpaid $135,023.38 for Companion Services during the audit period. The PAR was not final agency action. Respondent was advised of the following options: Pay the identified overpayment in this notice within 15 days of the receipt of this letter and wait for the issuance of the final audit report. If you wish to submit documentation in support of the claims identified as overpayments, you must do so within 15 days of receipt of this letter. Documentation that appears to be altered, or in any other way appears not to be authentic, will not serve to reduce the overpayment. Documentation must clearly identify which discrepancy, as set forth in the attached audit findings, it purports to support. Any documentation received will be taken under consideration and you will be notified of the results of the review. If you choose not to respond, wait for the issuance of the final audit report. The PAR also contained the following advice: A final audit report will be issued that will include the final identified overpayment, applied sanctions, and assessed costs, taking into consideration any information or documentation that you have already submitted. Any amount due will be offset by any amount already received by the Agency in this matter. The final audit report will inform you of any hearing rights that you may wish to exercise. Respondent did not respond to the PAR. Ms. Williams testified, credibly, that she was out of the country because of her mother's death when the PAR was issued. Petitioner generated a Final Audit Report (FAR) dated April 13, 2012, and subsequently an Amended FAR dated August 31, 2012, which assessed against Respondent the alleged overpayment in the amount of $135,023.38, a fine in the amount of $27,004.68, and costs in the amount of $49.22.1 Ms. Williams received the FAR. The Amended FAR was filed after the matter had been referred to DOAH. The undersigned granted Petitioner's motion to file the Amended FAR without objection from Respondent. The amount of the alleged overpayment remained the same in the PAR, FAR, and Amended FAR. The amounts of the fine and costs remained the same in the FAR and Amended FAR. Billings are submitted by providers using a form that is available, together with applicable billing guidelines, on the Medicaid Fiscal Agent Web Portal at "http://mymedicaid- florida.com." Ms. Williams, who prepares all of the Medicaid billings for Respondent, routinely uses that website and is familiar with its contents. Ms. Williams knows how to access and complete billing forms. She also knows how to access handbooks, including information as to coverage limitations. The billing form used by Medicaid providers has a "from date of service" column and a "to date of service" column. For Companion Services, the form will permit a provider to put only one date of service. For each of the challenged billings at issue in this proceeding, the same date was listed in these two columns. As an example, Mr. Posey's audit analysis for recipient A.B.L. on Bates stamp page 56 of Petitioner's Exhibit 3 reflects that the first "from date of service" was March 31, 2010, and the "to date of service" was also March 31, 2010. The number of units billed and paid for was 40 quarter-hours. Since the coverage limitation is 24 quarter-hours for a day, Mr. Posey determined that the provider was overpaid by 16 quarter-hour units for that billing day. Mr. Posey determined the reimbursement rate for each quarter-hour unit of service and multiplied that rate by the number of excess quarter-hour units. That product is the amount of the overpayment for that date. Using the same example for recipient A.B.L. on March 31, 2010, the auditor multiplied 16 quarter-hour units by $3.37 (the quarter hour reimbursement rate), and determined that the provider had been overpaid $53.92 for that date of service for that recipient. Mr. Posey performed a similar analysis for each of Respondent's billings during the audit period and determined the overpayment for all days of service on which the billed amount for the recipient exceeded 16 quarter-hour units of service. The auditor then added the overpayments, with the resulting sum being $135,023.38, the amount of the claimed overpayment. Respondent asserts that it did not receive any overpayment because it utilized "span" billing, i.e., it provided services over more than one day, but billed for those services under the last day the service was performed. Some coverage limitations are based on time periods greater than one day. There are coverage limitations based on weekly, monthly, and annual periods. Span billing for those periods is acceptable in that the provider is to insert the date the service began in the "from date of service" column and the date the service ended in the "to date of service" column. While the billing form will not permit different dates in these two columns if the service has a one-day coverage limitation, the form will permit different dates if the coverage limitation for a service is based on more than a one-day period. Ms. Williams testified that she provided Petitioner with time records of her employees who actually provided the subject services to the different recipients. According to Ms. Williams, those records substantiate her claim that there was no overpayment. Those records were provided to Petitioner after the issuance of the FAR. Petitioner did not analyze those records. Those time records were not introduced as evidence, and there was no other evidence to support Ms. Williams' testimony.2 Ms. Williams testified that she had not been trained that span billing was not permitted where there is a one-day coverage limitation. Ms. Williams knew or should have known that Companion Services had a one-day coverage limitation. Respondent's billings do not justify the payments it received. Petitioner has recouped an overpayment from Respondent on one prior occasion. Among other topics, the FAR advised Respondent of its right to request an administrative hearing pursuant to the provisions of chapter 120. Thereafter, Respondent requested a formal administrative hearing, the matter was referred to DOAH, and this proceeding followed. The overpayments at issue are the result of Respondent's misinterpretation of Petitioner's billing requirements. No fraud or abuse is involved in this proceeding.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Allcare Health and Human Services, Inc., was overpaid by the Florida Medicaid Program in the principal amount of $135,023.38. It is further recommended that the final order require Allcare Health and Human Services, Inc., to repay the Florida Medicaid the amount of $135,023.38 together with applicable interest and cost in the amount of $49.22. It is further recommended that the final order impose against Allcare Health and Human Services, Inc., an administrative fine in the amount of $27,004.68. S DONE AND ENTERED this 18th day of January, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of January, 2013.

Florida Laws (2) 120.569409.913
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DESTINY SMITH vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 00-004539 (2000)
Division of Administrative Hearings, Florida Filed:Lake City, Florida Nov. 06, 2000 Number: 00-004539 Latest Update: Apr. 02, 2001

The Issue Whether the Department of Children and Family Services (Department) failed to immediately provide Destiny Smith with the developmental services to which she is entitled.

Findings Of Fact For the period July 1, 1998 through June 30, 2003, the Health Care Financing Administration (HCFA), Region IV, of the U.S. Department of Health and Human Services, by agreement with the State of Florida, has agreed to permit the Department to provide services in a home and community-based setting to persons diagnosed with mental retardation or developmental disabilities. This was allowed as an alternative to receiving services in an institutional setting. It is referred to as the Home and Community-Based Services Waiver Program, or less formally, the "waiver" or "waiver program." The waiver provided that in "year three" of the program, 25,945 persons would be served, should the Florida Legislature appropriate sufficient funds to serve that number. If the appropriation is insufficient, then fewer persons will be served. Fiscal year 2000-2001 is "year three." Florida has elected to serve the number of individuals funded by the Florida Legislature, up to the number listed in the waiver agreement with HCFA, in fiscal year 2000-2001. Historically, all individuals eligible for developmental services have not received them because of insufficient funding. The Florida Legislature, when providing funding for this program in 1999, established priorities in the 1999-2000 General Appropriations Act, through the use of proviso language. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements; and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The Department implemented the 1999 appropriation for fiscal year 1999-2000 by promulgating a spending plan that directed the Department's districts to provide services to 15,984 persons pursuant to the priorities set by the Florida Legislature. The 2000 Florida Legislature appropriated funds to serve an additional 7,377 persons for a total of 23,360. This appropriation contained proviso language which was identical to that found in the 1999 General Appropriations Act. An addition to the proviso, however, stated that, "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." The Department implemented the 2000 appropriation by promulgating a spending plan that continued the previous year's spending plan. This plan stated that individuals who are new to the system after July 1, 1999, would only be served after those on the original waiting list are served, unless they have been determined to be in crisis pursuant to a crisis assessment tool. Petitioner applied for the general revenue individual and family support program. This program is in the category of "non-Medicaid covered services." The Department determined that Petitioner was eligible for developmental services on July 11, 2000. However, the Department further determined that Petitioner did not presently qualify for funds appropriated for fiscal year 2000-2001 because she became eligible after July 1, 1999, and because the program she sought was one which the Florida Legislature determined should be funded at the previous year's level. The crisis assessment tool is used to identify individuals who are in crisis situations. A crisis situation occurs when there is a court order mandating care; when there has been a determination that an individual is dangerous to himself, herself, or others; where there is abuse or neglect; where the person is homeless; when the person's caregiver can no longer provide for the person; or in other situations where there is a need to ensure the individual's safety and security. Petitioner does not meet any of the criteria on the crisis identification tool. As a result, she is not eligible for immediate service. At the time of the hearing there were individuals who were on the waiting list who were determined to be eligible prior to July 1, 1999 who have not yet been served. Only after those individuals are served can the persons eligible after July 1, 1999, be served. Petitioner may ultimately be provided developmental services, but this cannot occur until funds are available to the Department for that purpose.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that the Petitioner is not entitled to receive developmental services until the Department determines that funds are available for that purpose. DONE AND ENTERED this 8th day of January, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 8th day of January, 2001. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Destiny Smith 27619 25th Place Branford, Florida 32008 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

Florida Laws (2) 120.57393.066
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NORMAN K. WRIGHT vs UNIVERSAL CITY DEVELOPMENT PARTNERS D/B/A UNIVERSAL ORLANDO, 04-003126 (2004)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Sep. 02, 2004 Number: 04-003126 Latest Update: Mar. 10, 2005

The Issue The issues for determination in this proceeding are whether Respondent discriminated against Petitioner on the basis of a handicap, within the meaning of Section 760.10, Florida Statutes (2002), and whether the same alleged discrimination violated Section 448.045, Florida Statutes (2002).

Findings Of Fact Petitioner is a handicapped person. Petitioner is bipolar and has episodes of psychosis and occasional ideations of suicide and homicide. On January 14, 2003, Petitioner returned to work after an extended vacation, during which he suffered a psychotic episode and was diagnosed with his handicap. Respondent scheduled an in-office hearing, identified in the record as a "fit-for-duty hearing," because Respondent was concerned for the safety of Petitioner and other employees. Respondent denied Petitioner's request to postpone the hearing for one day to allow Petitioner to get back into "the swing of work routine." Petitioner requested 30 days of accrued personal leave. Respondent granted the request, and Petitioner was due back on the job on February 18, 2003. At the conclusion of the 30-day leave, Respondent granted Petitioner's request for medical leave. The medical leave began on February 18, 2003, and Petitioner was scheduled to return to work on July 3, 2004. Respondent's policy requires every employee that is on medical leave, including Petitioner, to be certified by a physician that the employee is fit to return to work, with or without reasonable accommodation. A physician's certification is a prerequisite for any employee on medical leave to return to his or her job after medical leave. During Petitioner's medical leave, Petitioner sought treatment from several physicians. As of the date of the administrative hearing, no doctor had certified Petitioner as fit to return to work because Petitioner consistently refused to take medication prescribed for his handicap. After going on medical leave, Petitioner received short-term disability benefits and, at the time of the administrative hearing, was receiving long-term disability benefits. The long-term benefits were scheduled to expire in August 2005. Petitioner is not contractually entitled to long- term disability benefits unless Petitioner is unable to perform all of the material and substantial duties of his regular occupation. When Petitioner's medical leave ended on July 3, 2004, Petitioner was not medically certified as fit to return to work. Petitioner refused to take medication prescribed for his condition and continued to receive long-term disability benefits. Respondent refused to accommodate Petitioner any further with additional leave. Respondent terminated Petitioner's employment on July 3, 2004.

Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not unlawfully discriminate against Petitioner by convening a "fit-for-duty hearing" or by subsequently terminating Petitioner's employment. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman K. Wright 826 Grand Cayman Court Orlando, Florida 32835 J. Lester Kaney, Esquire Cobb & Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301

USC (3) 29 U.S.C 79142 U.S.C 1211142 U.S.C 12112 CFR (1) 29 CFR 1630.14(c) Florida Laws (5) 120.569120.57448.045448.103760.10
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