The Issue The issue is whether Petitioner and her family are entitled to services on account of her developmental disability.
Findings Of Fact Petitioner was born on September 8, 1981. Seven years ago, she suffered a severe brain injury as a result of five hours of diabetes-induced seizures resulting from low blood sugar. The incident left Petitioner in an entirely dependent state. Presently, at 20 years old, Petitioner has the intellectual development of a two-year-old and requires constant care, seven days a week, 24 hours a day. Petitioner's present condition actually represents a marked improvement from her condition immediately after the seizures and brain injury. Declining to institutionalize Petitioner, her parents have provided the care that Petitioner has needed to regain her abilities to walk and talk (with considerable difficulty) and to use her arms and hands. Despite these dramatic developments, Petitioner still requires as much care as she required immediately after the injury; she cannot, for example, feed herself or maintain continence. Behaviorally, Petitioner presents a considerable challenge due to her nonexistent impulse control and tendency toward explosive outbursts. At 5 feet, seven inches tall and 200 pounds, Petitioner is strong, and she is capable of attacking with unmediated force. Petitioner's father, who is 48 years old, is six feet, one inch tall and weighs 350 pounds. Her mother, who is 42 years old, is at least the size of Petitioner. When infuriated, Petitioner can physically overpower her parents, as well as her 18-year-old and 22-year- old siblings--all of whom have suffered injuries from Petitioner's attacks. Petitioner's father has suffered cellulitis at the site of an injury that he sustained from one of his daughter's attacks. Petitioner has a very limited attention span and frustrates easily. She does not like being closed in, and, when upset, she strikes out. In addition to attacking her caregivers, Petitioner has damaged property in her outbursts. Her father estimates that Petitioner has broken seven motor vehicle windshields--sometimes while the vehicle was in operation. Several times a day Petitioner becomes agitated and engages in physical outbursts. Managing Petitioner's unpredictable and dangerous behavior has placed considerable demands on her parents. Petitioner's father is the senior pastor of North Palm Baptist Church in Miami. Petitioner's mother is an administrative assistant to the Director of Missions of the Miami Baptist Association. Each weekday during the school year, Petitioner leaves home at 6:00 a.m. to ride a bus to her special school, and she returns by bus at 3:30 p.m. Her father must cut short his workday to meet the school bus each afternoon. For respite care, Petitioner's parents seek the assistance of a person capable medically of supervising Petitioner's severe diabetes, such as administering her injections, and capable physically of handling Petitioner's disruptive behavior. Petitioner's father normally sleeps near Petitioner, who wakes up every time her covers come off, which may happen 75 times a night. The intensive, unending care that Petitioner's parents have had to provide their daughter has caused them great stress. For speech therapy, Petitioner's parents seek assistance to remediate Petitioner's extensive verbal deficits. For two years after the incident, Petitioner was nonverbal. Her ability to articulate has slowly improved, but she remains nonverbal at school. For personal services, Petitioner's parents seek the assistance of a person to meet Petitioner when she gets off the bus from school, give her a snack, bathe her, and attend her until her parents come home from work. This person must have the physical capability of ensuring that Petitioner does not injure herself or others during one of her frequent and unpredictable outbursts. Petitioner and her parents moved to Florida from South Carolina in July 2000. Within a month, Petitioner had applied for developmental disability services. However, Petitioner has not been able to obtain general revenue-funded services or Home and Community-Based Waiver services funded by Medicaid. In rejecting Petitioner's request for services, Respondent has relied on two documents: "Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions" (Spending Plan) and "Developmental Disabilities Program Crisis Identification Tool-- revised 9/2001" (Crisis Identification Tool). Respondent also relies on testimony that Petitioner lacks the funds to provide developmental disability services to all applicants. Although Respondent does not dispute that Petitioner otherwise qualifies for the developmental disability services that she seeks--from both programs--Respondent contends that she does not qualify under the Spending Plan and related documents, which Respondent contends it must apply due to the lack of funds. The Spending Plan states in part: By June 30, 2001, [Respondent] expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver). . . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, [Respondent] will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . . * * * Spending Plan priority for FY 01-02: Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001. Cramer v. Bush class members--estimated 20 persons who will be served upon request, throughout the fiscal year. Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year. Persons discharged from the Mentally Retarded Defendant Program. Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client. In order to serve the estimated 6,774 individuals who are projected to want and need Waiver serves during FY 01-02, enrollment on the Waiver will be phased in as described above. Compliance with the Spending Plan Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Personal Care Assistance Services As required by Medicaid regulations, [Respondent] must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan. Provision of Waiver services must also comply with federally approved service definitions. Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan must receive the service through this funding. [The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.] New requests for personal care assistance will be assessed first to determine whether Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description. * * * Require Use of Waiver Funding, where available Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver- funded services, but who have refused services funded through the Waiver. Some people who are eligible have rejected services funded through the Waiver. [Respondent] will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. Maximize Federal Funding Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception. * * * The legislative proviso language supplied after the hearing by Respondent consists of selections of "Conference Report on SB 2000: General Appropriations for 2001-02--May 1, 2001." The relevant portion states: Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community-Based Services Waiver Services in accordance with a spending plan developed by [Respondent] and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with [Respondent's] policy for serving persons on the waiting list. Two other, related documents are relevant. The Crisis Identification Tool identifies several categories of crisis. The first category is a criminal court order. The second category is a danger to self or others, which requires a current exhibition of "behaviors that": result in harm to the person or others that, in turn, creates a life-threatening situation for the person or others or will result in bodily harm to the person or others that will require emergency medical care from a physician if services are not provided immediately. The other categories are "confirmed abuse/neglect," "homeless[ness]," "caregiver unable to give care," and "health issues." Under the unable-caregiver category, the Crisis Identification Tool adds: The individual's current caregiver is expressing extreme duress, is no longer safely able to provide care for the individual due to advanced age, illness or injury and the individual is in immediate need of services in order to remain living with the caregiver or to locate an alternative living arrangement. . . . The remainder of the Crisis Identification Tool warns applicants that there is a waiting list for services in the Waiver program, even for those applicants classified as in crisis. Developmental Disabilities Program Policy Directive PD#01-07, issued September 25, 2001 (Policy Directive), confirms this warning when it warns: With 2001-02 appropriations and the Spending Plan, "[Respondent] will have funding to enroll up to a total of ten persons per month statewide on the Waiver, who are in crisis." Noting that the Crisis Identification Tool will remain in effect until June 30, 2002, the Policy Directive emphasizes that "[t]his policy will clarify the procedures used in determining the ten crisis cases per month statewide in accordance with the 2001-2002 Spending Plan." The Policy Directive describes the procedures for completing and examining a Crisis Identification Tool. The Policy Directive notes that, for applicants posing a danger to self or others, the District's behavioral analyst, local review committee chair, or other appropriate behavior analysis professional must review the Crisis Identification Tool and make a recommendation. After completing its tasks, the District committee sends the Crisis Identification Tool to the Developmental Disabilities central office in Tallahassee. The central office meets one week monthly, through June 2002, to "determine individuals in most critical need." The Policy Directive adds that the "[i]ndividuals who were not selected . . . will be carried forward and reconsidered each month until they are determined to be one of the ten crisis cases for a month or they are served in accordance with the spending plan." In the alternative, the central office may also find that the individual is "not . . . in need of immediate waiver services" and inform the individual of its finding. As noted in the Preliminary Statement, Petitioner seeks developmental disability services in DOAH Case No. 02-1238 and in DOAH Case No. 02-1241. The Developmental Disabilities Hearing Request described in the Preliminary Statement distinguishes between two programs based on funding sources: Medicaid waiver and general revenue. DOAH Case No. 02-1241 requests services under the Home and Community-Based Services Waiver program, in which the federal government has provided Florida with funds, under a waiver of institutionalization requirements, for certain developmental disability services to eligible persons. DOAH Case No. 02-1238 requests services under a state program in which Respondent uses largely, if not exclusively, general revenue funds to purchase certain developmental disability services for eligible persons. The focus of both these cases has not been on Petitioner's general eligibility, but on Respondent's limited funds and Petitioner's eligibility based on spending-prioritization policies that Respondent has adopted and the Legislature has approved. The Spending Plan, Crisis Identification Tool and legislative proviso language approving the Spending Plan all expressly pertain to the Waiver program. The Spending Plan addresses the relationship between the Waiver program with the general revenue-funded program, which is identified at least partly as Individual and Family Supports funding, by warning that persons who have refused Medicaid Waiver-funded services or who are even "awaiting enrollment" in the Waiver program may no longer obtain general revenue-funded services. Under the Spending Plan, Crisis Identification Tool and legislative proviso language, Petitioner is properly denied developmental disability services under the Medicaid Waiver-funded program. In addition to confirming the insufficiency of funds in the Waiver program, these documents demonstrate that Petitioner fails to satisfy a prioritization criterion that could gain her earlier funding. Arguably, Petitioner was entitled to classification as an individual in crisis, either due to her posing a danger to her self or others or due to the "extreme duress" suffered by her parents as caregivers. However, the record permits no basis to overturn the decision of Respondent's central office that, for each month, other crisis applications posed greater urgency. Although the central office should have maintained Petitioner's Crisis Identification Tool for reconsideration each month, the record permits no basis to revisit any of the central office's decisions during the ensuing months, and the term of the procedures governing the use of the Crisis Identification Tool expired at the end of last month. However, the Spending Plan, Crisis Identification Tool, and legislative proviso language do not address the general revenue-funded program. Petitioner is eligible for developmental disability services covered by this program. Respondent's proof of lack of funds in this program is itself insufficient, unsupported by the documentation that accompanies Respondent's same claim as to Medicaid Waiver-funded services.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for covered developmental disability services in DOAH Case No. 02-1238 and denying Petitioner's application for developmental disability services in DOAH Case No. 02-1241. DONE AND ENTERED this 10th day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 10th day of July, 2002. COPIES FURNISHED: Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Reverend Ronald Satterwhite Qualified Representative 8260 Northwest 172nd Street Hialeah, Florida 33015 Hilda Fluriach District 11 Legal Counsel Department of Children and Family Services 401 Northwest Second Avenue Suite N-1020 Miami, Florida 33128
The Issue The issue in this proceeding is whether Petitioner Monroe Lee Kelly, the minor son of his personal representative and mother, Kimberly Maffei Kelly, should immediately receive developmental services or remain on a waiting list for such services.
Findings Of Fact Monroe Lee Kelly is three years old and displays verbal apraxia. Verbal apraxia is delayed speech development. He became a client of Developmental Services on July 28, 2000, after a legislatively designated funding cut-off date of July 1, 1999. Monroe Kelly was receiving speech therapy through Children's Medical Services. However, because he turned three years old he no longer qualifies for services under the medical program even though his apraxia is still a problem. Therefore, the medical program referred Monroe Kelly to Developmental Services for evaluation. Petitioner's mother was also informed by the Department that her son could receive speech therapy to ameliorate this condition from the school system. Verbal apraxia puts Monroe Lee Kelly at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Monroe Lee Kelly as a client because of his risk status. His mother, for personal reasons, did not apply for benefits through the Medicaid Waiver program. Thus Monroe Lee Kelly is a client of the Developmental Services Program of the Department and is therefore eligible to receive developmental services from that program. The only question is whether Monroe Lee Kelly should receive those services for which he is eligible immediately or remain on the waiting list. Currently there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 2000. A long and complex chain of events and circumstances led to the situation faced by Monroe Lee Kelly. Prior to the 1999 legislative session and after federal litigation, the Department identified 23,361 Developmental Services clients who were enrolled in the developmental services program but were receiving inadequate services. The Governor, members of the Legislature, and the Department met to address this problem and jointly proposed to the Legislature for fiscal year 1999-2000, a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program, because that program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on them must be prioritized. The Legislature directed the Department to prioritize these limited funds by requiring that they be spent first on providing full services to the 23,361 clients already known to the Department as of July 1, 2000. The Department implemented this mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 2000, would receive services. All others would be put on a waiting list. The Department is currently working on a Legislative Budget Request for the coming year which will address the needs of clients, such as Monroe Lee Kelly who came into the system after July 1, 2000. Even so, Monroe Lee Kelly is not eligible for the Medicaid Waiver since Ms. Kelly has declined to apply for Medicaid. The funds she seeks come from another source, the Individual and Family Support appropriation. Nevertheless, for the reasons set forth below, the result in this case is the same as if her child had been on the Medicaid Waiver. In order to consistently apply the legislative intent behind this appropriation scheme to all Developmental Services clients, the Department has applied the prioritization described in paragraph 7, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. The prioritization is required because, in the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained stable, the new client base has increased by approximately 8,000 clients since July 1, 1999, and the Department can only provide funds to new clients by withholding services from existing clients who received these services in past years. An untenable result. Moreover, the interests of fairness require that the allocation of Developmental Services money be made on a consistent basis. This is particularly true inasmuch as many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Finally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys entrusted to it by the Legislature in the same manner as the Medicaid Waiver moneys is not unreasonable or unfair. Because Monroe Lee Kelly became a client after July 1, 1999, he can only receive services if he is in crisis. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. Monroe Lee Kelly met none of the foregoing criteria. Consequently, the Department could not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Monroe Lee Kelly on the waiting list of clients to be served by the Department's Developmental Services Program. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 19th day of December, 2000. COPIES FURNISHED: Kimberly Maffei Kelly 9127 Foxwood Drive Tallahassee, Florida 32308 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 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 The principal issue in this case is whether the Petitioner is entitled to reimbursement under the State of Florida Group Health Insurance Plan for certain health care expenses she has incurred since she became a State employee and enrolled in the Plan. The Petitioner contends that she is entitled to reimbursement and to attorney's fees. The Respondent contends that the Petitioner is entitled to neither. The central factual dispute is whether the Petitioner's claim for benefits is barred by the provision in the Plan which excludes benefits for pre-existing conditions during the first 365 days of participation in the Plan. At the formal hearing in this case, the Petitioner testified on her own behalf and also presented the testimony of Donald M. Whitley, II, Ph.D. The Respondent presented the testimony of Mr. William Seaton. Both parties offered exhibits. Also, the parties stipulated to the filing of the transcript of the deposition of F. A. Munasifi, M.D., as a late-filed exhibit. Subsequent to the hearing both parties filed proposed recommended orders, which have been carefully considered during the preparation of this recommended order. Specific rulings on the findings of fact proposed by both parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Findings based on admissions Petitioner, Terri J. Ganson, (hereinafter "Petitioner" or "Ganson") enrolled in the State of Florida Group Health Insurance Plan (hereinafter "Plan") in January, 1986, and has been validly enrolled as a member in good standing since said date. The pre-existing condition exclusion appears as Subsection VIII.C. of the State Employees Group Self-Insurance Document and provides: For any accident or illness for which an insured received diagnostic treatment or received services within three hundred and sixty-five (365) consecutive days prior to the effective date of coverage, no payment will be allowed for services related to such accident or illness which are received during the three hundred and sixty-five (365) conse- cutive days subsequent to the effective date of coverage; however covered services related to such accident or illness which are received after three hundred and sixty-five (365) consecutive days of coverage are cover- ed by the plan. The Plan, at Subsection I.AE., defines "illness" as follows: "Illness" means physical sickness or disease, pregnancy, bodily injury, congenital anomaly or mental or nervous disorder. Illness for the purposes of this Plan shall entitle an insured to benefits for any medically nece- ssary services related to elective surgical procedures performed by a physician for the purpose of sterilization. By the terms of the Plan, the pre-existing condition paragraph of the Plan applied to claims filed by Petitioner for treatments received during the period from February 1, 1986, until January 31, 1987. Those claims submitted by Petitioner or on Petitioner's behalf for reimbursement under the Plan which were denied on the basis of the pre-existing condition exclusion and which are the subject of this dispute amount to a total of $5,682.15 for services provided by the following providers in the respective amounts shown: a. TMRMC $2,352.65 b. Dr. Shamis $225.50 c. Dr. Munasifi $50.00 d. Biomedical Ref. $50.00 e. Dr. Whitley $3,000.00 The services received by Petitioner for which reimbursement is in dispute were services actually received by Petitioner, Petitioner was charged for such services in the aggregate amounts specified, such services were medically necessary treatments, such services were rendered for the treatment of bipolar disorder, and such services were otherwise covered by the Plan. Petitioner is entitled to reimbursement for the amount of the charges for such services, without limitation or exclusion, if said condition for which services were rendered did not constitute a pre-existing condition (i.e., an "accident or illness" for which Petitioner "received diagnostic treatment or received services within three hundred and sixty-five days prior to . . ." her enrollment in the Plan. Findings based on the testimony and the exhibits Prior to her enrollment in the Plan, the Petitioner had been diagnosed as having situational depression, for which she had received treatment prior to her enrollment in the Plan. Part of that treatment occurred within three hundred sixty-five days immediately preceding Petitioner's enrollment in the Plan. Prior to her enrollment in the Plan, the Petitioner had never been diagnosed as having bipolar affective disorder. Prior to her enrollment in the Plan, the Petitioner had never been treated for bipolar affective disorder. Bipolar affective disorder is believed to be caused by a deregulation of the chemical neurotransmitters in the brain. The primary treatment modality for bipolar affective disorder is the administration of lithium carbonate. The administration of lithium carbonate is specific for bipolar affective disorder and the use of lithium carbonate is one of the main differences between treatment for bipolar affective disorder and the type of depression for which Petitioner was treated prior to her enrollment in the Plan. Behavioral therapy may also be of assistance in the treatment of the symptoms of bipolar affective disorder, as it is in the treatment of the symptoms of other conditions which cause depression. Situational depression and bipolar affective disorder are separate and distinct conditions; they are not the same condition. Specifically, the former is not an earlier stage of the latter. The fact that both conditions have certain common symptoms (i.e., periods of depression) does not mean that they are the same condition.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order to the following effect: Reimbursing the Petitioner for her medical expenses in the amounts stipulated to by the parties, namely, $5,682.15; and Denying the Petitioner's claim for attorney's fees in this proceeding. DONE AND ENTERED this 30th day of November, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-1654 The following are my specific rulings on all of the findings of the findings of fact proposed by the parties: Findings proposed by Petitioner: Paragraph 1 (including subparts [a] through [f]): Accepted. Paragraphs 2 and 3: Rejected as unnecessary details in light of admitted facts. Paragraphs 4 and 5: Accepted in substance with most details omitted as unnecessary. Paragraph 6: First sentence accepted. Second sentence rejected as unnecessary details. Paragraphs 7, 8, 9, 10, 11, 12, 13, and 14: Rejected as unnecessary details in light of admitted facts. Paragraphs 15, 16, 17, and 18: Rejected as subordinate and unnecessary details. Paragraph 19: First sentence accepted. Second sentence rejected as subordinate and unnecessary details. Paragraphs 20 and 21: Accepted. Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Paragraph 29: First sentence accepted in substance. Remainder of this paragraph rejected as subordinate and unnecessary details. Paragraphs 30, 31 and 32: Accepted in substance. Paragraphs 33, 34, and 35: Rejected as unnecessary details in light of admitted facts. Paragraphs 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46: Rejected as subordinate and unnecessary details. Paragraphs 47, 48, 49, 50, and 51: Rejected as consti-tuting summaries of argument rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1, 2, and 3: Rejected as unnecessary details in light of admitted facts, with exception of proposed finding regarding effective date of coverage. Paragraphs 4, 5, and 6: Accepted in substance. Paragraph 7: Accepted in substance with unnecesary details deleted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Rejected as unnecessary details in light of the admitted facts and also as not entirely consistent with the greater weight of the evidence. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance as to date of first diagnosis. Rejected insofar as it suggests that Dr. Munasifi "refused" to make a particular statement. Paragraph 13: Rejected as subordinate and unnecessary details. Paragraph 14: Accepted as to nature of diagnosis. The remainder is rejected as subordinate and unnecessary details. Paragraph 15: First sentence is accepted. Second sentence is rejected as contrary to the greater weight of the evidence. Third and fourth sentences are rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 16 and 17: Rejected as subordinate and unnecessary details. Paragraph 18: Rejected as irrelevant and as an over- simplification which suggests an inference not warranted by the greater weight of the evidence. Final unnumbered summary paragraph: Rejected as constituting a summary of testimony rather than proposed findings of fact and, in any event, as subordinate and unnecessary details. COPIES FURNISHED: Kenneth D. Kranz, Esquire Eric B. Tilton, P.A. P. O. Drawer 550 Tallahassee, Florida 32302 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The issue is whether Respondent is entitled to recovery of overpayments of disability benefits resulting from the alleged failure to reduce such payments by offsetting social security benefits.
Findings Of Fact From March 1, 2007, until February 26, 2010, Petitioner was employed by the Department of Health as a Dental Consultant for the Prosecution Services Unit. During the period of his employment, Petitioner was a Select Exempt Service employee. Respondent is responsible for the administration of the state group insurance program. As authorized by law, Respondent has contracted with NorthGate Arinso to provide human resources management services, including the administration of employee health insurance benefits. The electronic portal for state employees to access personnel information is the “People First” system. During his employment with the Department of Health, Petitioner participated in the Florida state group insurance program, and was enrolled as a member of the State Employees PPO Plan. At the time of his enrollment in the state group insurance program, Respondent was provided with the Senior Management and Select Exempt Service Employees' State Group Disability Insurance Program benefits booklet. The booklet provides, under the heading "Benefit Reduction Provisions," that: Benefits payable under this insurance will be reduced by the amount of: Any disability or retirement Social Security Benefits for which the employee is eligible, and benefits for which the employee's spouse or children are eligible as a result of the employee's eligibility for Social Security benefits. DSGI reserves the right to estimate the amounts of any Social Security benefits until the employee has applied for such benefits and the Social Security Administration has made a final determination, and to reduce the plan benefits as if these Social Security benefits were paid. Benefit payments made by DSGI will be adjusted when a determination is made by the Social Security Administration. If such a determination reveals an overpayment by the Plan, DSGI has the right to recover any such overpayment. Petitioner has a supplemental disability life insurance policy with the Cigna insurance company. The supplemental policy is not administered by Respondent, and did not affect the state disability insurance benefits. While employed at the Department of Health, Petitioner began to experience debilitating health problems. By October, 2009, his condition had advanced to the degree that he could no longer work. Petitioner began to contemplate going on disability. He was uncertain as to whether he would be allowed to resign from state employment and still qualify for disability benefits. Petitioner?s daughter, Karen Halperin Cyphers, researched the issue and discovered that it had been resolved by judicial decision in a manner that would allow Petitioner to retire from state employment, but maintain his disability benefits for the full term allowed by law. Ms. Cyphers sought confirmation from Respondent that Petitioner would qualify for disability benefits if he resigned his position. On January 29, 2010, Respondent e-mailed a letter to Ms. Cyphers confirming that “benefits will not terminate solely because an insured terminates employment with the state. To be eligible for these benefits, all other requirements must be satisfied.” On February 17, 2010, Petitioner filed his claim for benefits under the state disability plan, and the required Attending Physician?s Statement. The Attending Physician?s Statement confirmed that Petitioner was not able to work. Petitioner thereafter went on leave-without-pay status on February 18, 2010. His last day of employment with the Department of Health was February 27, 2010. Petitioner was eligible for state disability benefits for 364 days, or into February, 2011. At all times pertinent to this proceeding, Petitioner?s wife, Dr. Gail Halperin,1/ was responsible for handling the family?s finances. Petitioner consulted with Mrs. Halperin when he was able. However, the severity of Petitioner?s medical condition, which necessitated a stay of almost five weeks at the Mayo Clinic, often made communications regarding finances impractical. Mrs. Halperin used electronic banking services, and frequently checked the family account to ensure that the bi- weekly state disability benefit payments had been deposited. On March 12, 2010, Mrs. Halperin wrote to Respondent to object to an underpayment in one of the first disability benefit payments to Petitioner. The underpayment amount resulted from an issue regarding four days of available leave, which would have made Petitioner ineligible for benefits for the period of March 1 through March 4, 2010. In her e-mail, Mrs. Halperin acknowledged having read the "Benefit Reduction Provisions" of the benefits booklet regarding reduction of state benefits by Social Security benefits, but as to any such reductions of Petitioner?s state benefits, noted that Petitioner “did apply of [sic] social security, but he does not expect to hear from them for quite some time.” The underpayment issue was resolved, and Petitioner was ultimately paid for the disputed four days. By a Notice of Award from the Social Security Administration dated September 3, 2010, Petitioner was notified that he had been determined to be entitled to Social Security Disability benefits in the amount of $1,818.00 per month. He received his regular monthly payment for September, 2010, and a lump-sum payment of $5,454.00, for the months of June-August, 2010. As was her practice regarding state disability payments, Mrs. Halperin regularly checked her bank accounts to ensure that the payments were deposited, and knew that Social Security Disability Income benefits were being paid to Petitioner. Petitioner did not inform Respondent when he became eligible for Social Security Disability Income benefits, or when he began receiving those payments. During his period of disability, Petitioner had a dispute with Cigna regarding its denial of a waiver of his supplemental disability policy premium. On November 14, 2010, Mrs. Halperin sent an appeal of the denial to Rhonda Whethers, an employee of Cigna. The appeal, sent by e-mail, consisted of roughly nine pages of printed text and eight exhibits. Mrs. Halperin described Petitioner's medical condition in detail, and requested that Cigna waive the premium to keep the policy in effect. Mrs. Halperin sent copies of the appeal to Cigna's manager of Specialty Lines Administration, to the Director of Cabinet Affairs for the Florida Attorney General, to the Insurance Consumer Advocate for the Department of Financial Services, and to Michele Robletto, the DSGI Division Director. In the description of Petitioner's medical condition, Mrs. Halperin stated that "[i]ndeed, Minnesota Life, the State of Florida through the State Group Health Plan, and the U.S. Social Security Disability Insurance (SSDI) program have fully approved [Petitioner's] claim of total disability from ANY and ALL work." That statement is the only time in which mention of Petitioner's Social Security benefits was made to Respondent. The reference, which was not directed to Respondent, is too indirect to constitute notice to Respondent of Petitioner's Social Security benefits. On February 1, 2011, Respondent sent Petitioner a notice that his Attending Physician?s Statement had not been updated. On February 6, 2011, in response to the previous notice, Mrs. Halperin sent a copy of the September 3, 2010, Notice of Award from the Social Security Administration to Respondent. That letter was the first disclosure to Respondent of Petitioner's eligibility for, and receipt of, payments of Social Security disability benefits. Based on the September 3, 2010 letter, Respondent determined that Petitioner had been receiving state disability benefits without the reduction of Social Security benefits as provided for by rule. Thereafter, Respondent calculated that Petitioner was overpaid in the amount of $13,925.82. On February 21, 2011, Respondent notified Petitioner that it had overpaid him $13,925.82, in State Group Disability Income benefits. That figure is found to accurately reflect the amount of state benefits that were not reduced by corresponding payments of Social Security benefits. Petitioner argues that neither rule 60P-9.005 nor the the Senior Management and Select Exempt Service Employees' State Group Disability Insurance Program benefits booklet contains a requirement that a recipient of state disability benefits notify Respondent of eligibility for or receipt of Social Security disability benefits, and that as a result, Respondent should be estopped from recovering any overpayments. Rule 60P-9.005 and the Senior Management and Select Exempt Service Employees' State Group Disability Insurance Program benefits booklet are both clear and unequivocal that state disability benefits are to be reduced by Social Security disability benefits. Respondent receives no information directly from the federal government regarding disability benefits. Thus, it is the responsibility of recipients of state disability income to understand and comply with the law. Petitioner testified that neither he nor his family had any intent to mislead the state. The undersigned accepts that as true. Nonetheless, Petitioner received state disability benefits after he became eligible for and began receiving Social Security benefits, without the reduction required by law. Thus, Respondent is entitled to recovery of the overpayments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services enter a final order finding that Respondent is entitled to recovery of overpayments of disability benefits in the amount of $13,925.82. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 19th day of April, 2012.
The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 2001, 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, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 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 Whether Respondent's certification as a support coordinator under the Medicaid waiver program should be renewed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating persons to be certified as support coordinators under the home and community based services program. At all times material to the allegations in this case, Respondent, Leonel Mederos, was certified as a support coordinator and did business through his company, Las Americas Support Services. For the period 1992 through 1995, Karlene Peyton was the program administrator for the Department's developmental services program which was responsible for the support coordinators under the home and community based services program. The developmental services program provides services to clients developmentally disabled, e.g., persons who are mentally retarded, have autism, cerebral palsy or spina bifida. Developmentally disabled persons are entitled to receive benefits such as supportive living services, employment services, training services, residential services, and case management services. The Department administers such services pursuant to Chapter 393, Florida Statutes, and Chapter 10F-13,Florida Administrative Code. As part of the system to provide services to the developmentally disabled, the home and community based services program (HCBSP) was established under the Medicaid program. This program adds a support coordinator who is not employed by the Department but who serves as a case manager for the client. In order to qualify under the HCBSP, clients must be Medicaid eligible and have the specified range of disability. For example, a client who is mentally retarded would be evaluated based upon their IQ level and deficiencies in activities of daily living. In the instant case, the persons providing assistance or case management to the developmentally disabled client are designated as waiver support coordinators. The waiver support coordinators are Medicaid providers. When the Department established the waiver support coordinators program, it promulgated statewide policies and written guidelines to regulate the system. It also developed district specific guidelines or policies. One policy, for example, is the limitation on the number of cases assigned to each support coordinator. A waiver support coordinator may not have more than thirty-five (35) clients. Respondent had been an employee with the Department at the time the waiver support coordinators program was established in Dade County. He left the agency to become, and was certified as, a Medicaid waiver support coordinator under the home and community based services program. Respondent qualified Las Americas Support Services as an entity through which waiver support coordinators might work. In order to become certified Respondent was required to complete training requirements related to statewide and district training. Topics covered in the training included Department rules and policies related to the Medicaid waiver program, support plans, plan implementation, services, record keeping, documentation of services and billing, and the use of the Department's computer system. As part of the application package completed on or about May 20, 1993, Respondent executed assurances which are part of the Medicaid provider agreement. The assurances are Respondent's representation to the Department that he will comply with specific conditions. These assurances provided, in pertinent part: 3. All individuals employed as support coordinators will meet the minimum require- ments of a bachelors degree in a human service field and two years of experience with individuals who have a developmental disability. Evidence of these qualifications will be maintained in each individual's employee personnel file. * * * 6. The provider shall maintain financial records in accordance with a recognized system of accounting to accurately reflect the details of the business and shall undergo an annual financial audit of its support coordination program, which may be part of an agency-wide audit. * * * 21. The provider assures that it will maintain the client central record in accordance with 393, F.S. * * * 24. The provider assures compliance with requirements of Chapter 393, F.S. and the proposed DS/Home and Community Based Services Waiver Rule, 10F-13, F.A.C. * * * 27. The provider assures that no more [than] thirty-five individuals will be assigned to a support coordinator who is serving Developmental Services HCBS waiver clients. * * * 29. The provider understands that payment for independent support coordination services is made from state and federal funds and that any falsification or concealment of a material fact may be prosecuted under state and federal laws. The provider further understands that such falsification or concealment is a breach of the DS/HCBS certification and may result in cancellation of same by the department. * * * 31. The provider agrees to return to the department any overpayments received that were disbursed to the provider by the depart- ment. In the event that the department discovers an overpayment has been made, the department will notify the provider of such a finding. Except for provided in No.32 below, the provider agrees to make repayment within thirty (30) days of recipt (sic) of such notification unless the parties are able to agree upon an alternative schedule. Respondent attended and completed the statewide training portion for certification in June, 1993. He completed the district training (with information pertinent specifically to District 11) in July, 1993. He was fully certified to perform as a support coordinator from July 1, 1993 through July 1, 1994. In June, 1994, as part of the recertification process, Respondent executed another assurances agreement. Subsequently, his certification was renewed for the period September 1, 1994 through February 28, 1995. This second assurances agreement, while not identical to the first, in substance had the same provisions as those outlined above in paragraph 17 above. For each client to be served by a waiver support coordinator, a support plan must be developed that identifies the specific services needed by the client. Such plan is developed with input from the client, the client's family, as well as the service providers who are to provide the needed services. The driving force to establish the support plan must be the client's individual needs. Once the support plan is in place the services coordinator must verify that the services are properly and satisfactorily delivered to the client. The coordinator must keep accurate case notes reflecting the date, time, and description of all services provided to the client. The documentation maintained by the services coordinator serves to verify that the services were delivered. As part of the process, the coordinator must also have a cost plan which identifies the expenses budgeted for each service the client is to receive. Every cost plan must be submitted to the Department for approval, and only services which have been approved may be billed by the service coordinator. Every support coordinator is required to maintain case notes of all activities performed on behalf of a client. No activity may be billed to the Medicaid waiver program which is not supported by case notes reflecting the identity of the client, the date of the service, the time of the service and the description of the service. At all times material to this case, the support coordinators billed time based upon quarter hour increments. For example, one through fifteen minutes was billed as one unit, sixteen through 30 minutes as two units, and so on for a total of 4 units per hour. Each support coordinator was responsible for logging their billing units directly into the Department's computer system. Only services which have been approved may be billed and may not include administrative duties such as faxing, copying, transferring case records or other office functions which are included in the rate paid to support coordinators. Each support coordinator is subject to a review wherein Department personnel audit client records to determine compliance with the Medicaid program policy requirements. In November, 1994, Department personnel were reviewing the qualifications of two persons employed as support coordinators through Respondent's company. When Respondent could not produce either the original degrees or authenticated transcripts for the two coordinators (which would evidence the requisite degree required for the coordinators), Respondent was instructed to return all case records assigned to the two workers to the Department. When the case records were returned, the Department discovered billing discrepancies. For example, it discovered Respondent had overbilled for certain clients and had billed for services not allowed. When this was uncovered, the Department elected to perform an in-depth review of the Respondent's business record keeping. The materials reviewed were from Respondent who was responsible for their origin and accuracy. From November 1994 through February 1995, the Department attempted to reconcile Respondent's case records with the billing which had been submitted to the agency by the Respondent. As a result of this audit, it is found the Respondent overbilled by billing more units that were documented. The Respondent overbilled by billing for services which are not allowed and had not been approved. The Respondent overbilled by billing for services provided by an unqualified services coordinators for whom appropriate documentation has not been provided. The Respondent overbilled by exceeding the amount of an authorized payment thereby making a payment not approved by the Department. In addition to the foregoing, the Respondent attempted to serve seventy (70) clients. Such number exceeds the number of clients a services coordinator is authorized to have. Based upon the foregoing, the Department decided on March 1, 1995 not to renew Respondent's certification. Respondent timely challenged that decision. The application and assurances executed by Respondent provided a notice that the failure to comply with the Medicaid waiver policies constitutes grounds for denying or cancelling certification in the program.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order affirming the agency action letter of March 1, 1995, which determined not to renew the Respondent's certification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of January, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1997. APPENDIX Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 12, 14 through 23, 25 through 31, and 33 are accepted. With regard to paragraph 13, the assurances contained, in substance, the same provisions but were not identical to the first ones executed by Respondent. With regard to paragraph 24, it is accepted that Respondent received a warning regarding soliciting clients otherwise rejected as irrelevant or not supported by the record. With regard to paragraph 32, it is accepted that Respondent was offered assistance for remediation purposes and was not singled-out for disparate treatment; otherwise rejected as irrelevant or argument or comment. Rulings on the proposed findings of fact submitted by Respondent: 1. Paragraphs 1 and 2 are rejected as argument, comment, or contrary to the weight of the credible evidence. COPIES FURNISHED: Myron M. Gold, Esquire FOX AND GOLD, P.A. 2900 South West 28th Terrace Miami, Florida 33133 Hilda A. Fluriach, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee,Florida 32399-0700
The Issue Whether proposed amendments to Florida Administrative Code Rule 59G-8.200 are invalid exercises of delegated legislative authority.
Findings Of Fact AHCA is designated as the single state agency for administering the Federal/State Medicaid Program pursuant to Section 409.902, Florida Statutes (2003).2 The Florida Medicaid Developmental Services Home and Community-Based Services Waiver Program (HCBS or DS waiver services) is one of several Medicaid waiver programs. HCBS is designed to provide services to individuals with developmental disabilities to allow them to remain in the community and avoid placement in institutions. AHCA and DCF have entered into an agreement, by which DCF has agreed to implement the HCBS program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS program, and DCF is required to operate the program in accordance with those policies, rules, and regulations. The Florida Association of Rehabilitation Facilities, Inc. (FARF), is a not-for-profit 501(c)3 corporation, and a state-wide association of corporate organizations providing services to handicapped and developmentally disabled persons. Of the 61 members of FARF, 51 are Medicaid home and community- based waiver providers who provide services to developmentally disabled persons, who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. The Association for Retarded Citizens of Florida, Inc. (ARC), a not-for-profit corporation, is a state-wide association which works through advocacy, education, and training to reduce the incidence of mental retardation and other developmental disabilities. It has 43 affiliate chapters located throughout the state. Of those affiliate chapters, 40 are Medicaid providers, which provide Medicaid services to developmentally disabled persons who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. ARC also has approximately 1,500 individual members. Between 25 to 50 percent of the individual members are either self-advocate recipients of services from the HCBS waiver program or family members or guardians of HCBS waiver program recipients. On January 17, 2003, AHCA published a Notice of Rule Development concerning proposed amendments to Florida Administrative Code Rule 59G-8.200. The proposed amendments incorporated by reference changes to a handbook entitled "Developmental Services Waiver Services and Coverage and Limitations Handbook" (Handbook). AHCA published its Notice of Proposed Rule on July 25, 2003. A First Notice of Change was published on October 17, 2003, and a Second Notice of Change was published on November 26, 2003. A Notice of Additional Hearing was published on November 26, 2003, and a final public hearing on the proposed amendments was held on January 6, 2004. The Handbook's purpose is stated in the Handbook as follows: The purpose of the Medicaid handbooks is to furnish the Medicaid provider with the policies and procedures needed to receive reimbursement for covered services provided to eligible Florida Medicaid recipients. The Handbook provides that a provider must have a signed DS Waiver Services Agreement with DCF in order to be eligible to provide DS waiver services. The Developmental Disabilities Program Medicaid Waiver Services Agreement (DS Waiver Services Agreement) requires the provider to comply with all the terms and conditions contained in the Handbook for specific services rendered by the provider. During the rulemaking process, AHCA involved stakeholders in the development of the amendments to Florida Administrative Code Rule 59G-8.200, including changes to the Handbook. A stakeholder is an organization or individual who has a primary interest in the HCBS waiver program or is directly affected by changes in the program. At the final hearing, Shelly Brantley, former bureau chief of AHCA's Medicaid Program Development, correctly described ARC and FARF as stakeholders for the HCBS waiver program. Petitioners conducted surveys of their membership to determine whether the proposed changes to the Handbook would adversely affect their members. Surveys were also conducted to determine whether any of the members were small businesses as that term is defined in Section 288.703, Florida Statutes. Of the 51 provider members in FARF, 15 qualified as small businesses having less than 200 employees and less than $5 million in total assets. Of ARC's 40 provider members, 38 met the small business definition of Section 288.703, Florida Statutes. Such surveys by associations provide the type of information that would be commonly relied upon by reasonably prudent persons in the conduct of their affairs. AHCA acknowledged that small businesses would be impacted by the changes to the Handbook, and the impact to small businesses was discussed and considered in developing the proposed rules. As of the date of the final hearing, AHCA had not sent a copy of the proposed rules to the small business ombudsman of the Office of Tourism, Trade, and Economic Development as required by Subsection 120.54(3)(b)2.b., Florida Statutes. Petitioners have alleged that AHCA failed to follow applicable rulemaking procedures by not having the Handbook available at the time of the publication of the notice of rulemaking on July 25, 2003, and the notices of changes published on October 17, 2003, and November 21, 2003. Although the Handbook was incorporated by reference as an amendment to Florida Administrative Code Rule 59G-8.200(12), the major purpose of the amendment was to make changes in the Handbook. The Notice of Rulemaking published on July 25, 2003, provided that the Handbook was available from the Medicaid fiscal agent. However, the revised Handbook was not generally available until August 2003. Further revisions to the Handbook were not readily available at the time the notices of changes were published. The lack of availability of the Handbook on the dates of the publication of the notices did not impair the fairness of the rulemaking proceedings or the substantial interests of Petitioners. Petitioners had an opportunity to review the handbook and to give input to AHCA concerning the proposed changes. Petitioners did get copies of the revised Handbook in time to meaningfully participate in the two public hearings which were held on the proposed rules, and Petitioners had an opportunity to provide written comments on the revisions to the Handbook. At the final public hearing held on January 6, 2004, AHCA provided the participants with a "clean copy" of the Handbook, meaning a copy in which the underlines and strike- throughs had been deleted and the text read as it would read when published in the Florida Administrative Code. This caused confusion among the attendees at the public hearing because "clean copy" Handbooks had not been available to the public prior to the final hearing. With one exception concerning residential habilitation services for children, which is discussed below, the "clean copy" of the Handbook was essentially the same as the version which had been available to the public, in which added language was underlined and deleted language was struck-through. The interests of Petitioners and the fairness of the rulemaking proceedings were not impaired by the use of a "clean copy" of the Handbook at the January 2004 final public hearing. A state Medicaid Agency is required to provide notice to a recipient ten days before the agency takes action to reduce a benefit pursuant to 42 CFR Section 431.200. The evidence did not establish whether AHCA provided notice to HCBS waiver recipients that the proposed changes to the rule would reduce certain benefits. Some of Petitioners' witnesses did not think that any of their individual members received notice, but there was no direct evidence to establish that no notice was provided. Petitioners challenged the following provision of the Handbook: Providers wishing to expand their status from a solo provider to an agency provider, or a provider desiring to obtain certification in additional waiver services must be approved by the district in order to expand. A provider must have attained an overall score of at least 85% on their last quality assurance monitoring conducted by the Agency, the Department, or an authorized agent of the Agency or Department in order to be considered for expansion. Petitioners argue that the language in this portion of the Handbook is vague and gives AHCA unbridled discretion when "considering" a provider for expansion. The language is not vague and does not give AHCA unbridled discretion when a provider is considered for expansion. In order for a provider to be considered for expansion, the provider must have scored at least 85 percent on their last quality assurance monitoring. The 85-percent score is a threshold which the provider must meet before AHCA will determine whether the provider meets other criteria for expansion, which are set out in the Handbook, statutes, and rules. Recipients have a freedom of choice in selecting their service providers from among enrolled, qualified service providers. Recipients may change service providers to meet the goals and objectives set out in the their support plans. Petitioners have challenged the following provision, which AHCA proposes to add to the freedom of choice section of the Handbook: Freedom of choice includes recipient responsibility for selection of the most cost beneficial environment and combination of services and supports to accomplish the recipient's goals. Petitioners contend that the language is vague, arbitrary, and capricious, fails to establish adequate standards for agency discretion, and vests unbridled discretion in AHCA. The term "cost beneficial" is defined in the Handbook to mean "economical in terms of the goods or services received and the money spent." The Handbook also contains the following definition for a support plan: Support plan is an individualized plan of supports and services designed to meet the needs of an enrolled recipient. This plan is based upon the preferences, interests, talents, attributes and needs of a recipient. The recipient or parent, legal guardian advocate, as appropriate, shall be consulted in the development of the plan and shall be receive a copy of the plan and any revisions made to the plan. Each plan shall include the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives and a specification of all services authorized. The plan shall include provisions for the most appropriate level of care for the recipient. The ultimate goal of each plan, whenever possible, shall be to enable the recipient to live a dignified life in the least restrictive setting, appropriate to the recipient's needs. The support plan must be completed according to the instructions provided by the Department. (emphasis supplied) The "most cost-beneficial" language is not new. It already exists in the current Handbook, which is incorporated by reference in Florida Administrative Code Rule 59G-8.200. The proposed amendment does not impose a new requirement on recipients, and it is not vague, arbitrary, or capricious. The "most cost beneficial" language is consistent with the Handbook provision defining the terms "medical necessity" or "medically necessary" as they relate to the determination of the need and appropriateness of Medicaid services for a recipient. One of the conditions needed for a determination that a service is a medical necessity is that the service "be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available, statewide." Petitioners have challenged the following provision of the Handbook: All direct service providers are required to complete training in the Department Direct Care Core Competencies Training, or an equivalent curriculum approved by the Department within 120 days from the effective date of this rule. Said training may be completed using the Department's web- based instruction, self-paced instruction, or classroom instruction. Providers are expected to have direct care staff who are competent in a set of direct care core areas. A curriculum has been developed to provide assistance to the providers in training their direct staff to become competent in these direct care areas. The training curriculum consists of two modules, with three different training formats. Petitioners contend that the curriculum was not completely developed, and would not be in existence at the time the rules are adopted. The Web-based format was completed in the fall of 2003, and the other two formats were completed in the spring of 2004. Thus, the Department's Direct Care Core Competencies Training is available. Petitioners have challenged the following provision of the Handbook: The current Department approved assessment, entitled Individual Cost Guidelines (ICG), is a tool designed to determine the recipients' resource allocations of waiver(s) funds for recipients receiving supports from the State of Florida, Department of Children and Families, Developmental Disabilities Program (DDP). The ICG is a validated tool that provides a rational basis for the allocation of the waiver funds to individuals with developmental disabilities. Waiver(s) funds refers to funds allocated through the Developmental Services HCBS waiver, the Supported Living Wavier, and the Consumer- Directed Care Plus waiver (CDC+). The instructions for the completion of this assessment is provided by the Department and is completed at least every three years or as determined necessary by the recipient and the waiver support coordinator, due to changing needs of the recipients. It is Petitioners' contention that the ICG, like the Direct Care Core Competencies Training, was not completed and would not be available to the providers prior to the adoption of the proposed rules. The ICG was completed in the fall of 2003. Its validity and reliability as an assessment tool for assessing needs of individual recipients has been tested. During September and October 2003, a three-day workshop was held in every district of DCF for the purpose of training workers to administer the ICG. The first day of the workshop provided an overview for interested persons. Hardcopies of the ICG were handed out for review by the participants, including providers. Petitioners have challenged the portion of the Handbook which provides, "[t]he primary live in support worker shall be named on the lease along with all other recipients." It is Petitioners' position that the proposed language is in conflict with unchallenged language in the proposed Handbook and is contrary to the guidelines in the State Medicaid Manual. The unchallenged portion of the Handbook at page 2-77 provides: The in-home support provider or the provider's immediate family shall not be the recipient's landlord of have any interest in the ownership of the housing unit as stated in Chapter 65B-11.005(2)(c), F.A.C.[3] If renting, the name of the recipient receiving in-home support services must appear on the lease singularly or as a guarantor. The State Medicaid Manual provides at page 4-450, subsection 12, that "FFP for live-in care givers is not available in situations in which the recipient lives in a caregiver's home or a residence owned or leased by the provider of Medicaid services." AHCA contends that the purpose for requiring the live- in support worker to sign the lease is to prevent the live-in home support worker (worker) from taking advantage of the recipient by failing to contribute anything to the normal living expenses. Having the worker named on the lease does not guarantee that the worker will pay his or her portion of the rent. The recipient is still liable to the landlord whether the worker pays, and the worker would be liable whether the recipient paid. The unchallenged portion of the proposed changes to the Handbook provides that the worker must pay an equal share of the room and board for the home. Having the worker on the lease poses problems when the worker is no longer providing services. The landlord may not be willing to renegotiate the lease by substituting another worker on the lease. Additionally, the worker may not wish to vacate the premises just because he or she is no longer providing services, and, since the worker is a lessee of the property, the recipient may have to find new quarters if the recipient does not desire to share the home with the worker. Petitioners have challenged the portion of the Handbook which provides that "[t]he amount of respite services are determined individually and limited to no more than thirty (30) days per year, (720 hours) per recipient." Respite care is defined in the Handbook as "a service that provides supportive care and supervision to a recipient when the primary caregiver is unable to perform these duties due to a planned brief absence, an emergency absence or when the caregiver is available, but temporarily unable to care for or supervise the recipient for a brief period of time." Respite care services are designed to be provided for a short time. In determining the amount of time to limit respite care, AHCA reviewed historical data and did not find that many individuals used respite care service for more than two weeks. Stakeholders, family members of recipients, and recipients were involved in discussions with AHCA concerning the time limitation to 30 days. AHCA reviewed other waiver state agencies and found that waivers for individuals with developmental disabilities have similar limits on respite care. Individuals whose primary caregiver may become unavailable for a period of greater than 30 days may receive other types of services to assist them while their caregivers are absent. The types of services that may be available are determined on a case-by-case basis. Petitioners have challenged the portion of the Handbook which provides: III. FINES AND PENALTIES In accordance with the provisions of Section 402.73(7), Florida Statutes, and Section 65-29.001, Florida Administrative Code, penalties may be imposed for failure to implement or to make acceptable progress on such quality improvement plans as specified in Section II.A of this Agreement. The increments of penalty imposition that shall apply, unless the Department determines that extenuating circumstances exist, shall be based upon the severity of the non-compliance, non-performance or unacceptable performance that generated the need for a quality improvement plan. The penalty, if imposed, shall not exceed ten percent (10%) of the total billed by the provider for services during the period in which the quality improvement plan has not been implemented, or in which acceptable progress toward implementation has not been made. This period is defined, as the time period from receipt of the report of findings to the time of the follow-up determination that correction or progress toward improvement has not been made. Non-compliance that is determined to have a direct effect on individual health and safety shall result in the imposition of a ten percent (10%) penalty of the total payments billed by the provider during the period in which the quality improvement plan has not been implemented or in which acceptable progress toward implementation has not been made. Non-compliance involving the provision of training responsibilities or direct service to the individual not having a direct effect on individual health and safety shall result in the imposition of a five percent (5%) penalty. Non-compliance as a result of unacceptable performance of administrative tasks, such as policy and procedure development, shall result in the imposition of a two percent(2%) penalty. In the event of nonpayment, the Department will request the Agency for Health Care Administration deduct the amount of the penalty from claims submitted by the provider for the covered time period. This penalty provision is contained in the DS Waiver Services Agreement contained in Appendix B of the Handbook. The providers are required to complete the agreement to provide services to recipients and are required to comply with the terms and conditions of the agreement. Although the agreement is between the Developmental Disabilities Program of DCF and the providers, DCF is entering into the agreement pursuant to an interagency agreement between DCF and AHCA that DCF will operate the waiver program on behalf of AHCA. AHCA establishes the rules, policies, procedures, regulations, manuals, and handbooks under which DCF operates the program. The inclusion of the penalties provision in the agreement is done based on the authority of Subsection 402.73(7), Florida Statutes, and Florida Administrative Code Rule 65-29.001, which govern the authority of DCF, not AHCA. If AHCA seeks to impose penalties on providers relating to the waiver program, it can do so only based on its statutory authority. DCF merely stands in the shoes of AHCA and has only the authority for the operation of the waiver program that AHCA would have if AHCA were operating the program itself. Petitioners have challenged the portion of the Handbook which reduces the maximum limits of residential habilitation services from 365 days to 350 days. AHCA contends that the reduction of days is merely a reduction in the maximum number of days that a provider can bill for residential habilitation services. The rate at which the provider is being compensated includes a 15-day vacancy factor. The State Medicaid Manual from the Center for Medicare and Medicaid allows for this type of reimbursement and provides: FFP [federal financial participation] is not available to facilities providing services in residential settings on days when waiver recipients are temporarily absent and are not receiving covered waiver services (sometimes called reserve bed days). Medicaid payment may be made only for waiver services actually provided to an eligible recipient. Since providers incur fixed costs such as rent, staff salaries, insurance, etc., even when a waiver recipient is temporarily absent, you may account for such continuing costs when developing payment rates for these providers. For example, rent is generally paid for a period of 1 month. However, day habilitation services are generally furnished only 5 days per week. You may take the entire month's rental cost into consideration in setting the rate paid for services furnished on the days the recipient is present. Similarly, if data shows that a recipient is served in residential habilitation an average of 325 days per year and the slot is held open when the recipient is on a leave of absence, you may consider the entire yearly cost to the provider when establishing its rate of payment. However, in the rate setting process, it must be assumed that a facility will not have a 100 percent utilization rate every day of the year. Consequently, payment rates are established by dividing the provider's total allowable costs by the number of Medicaid patient days you estimate recipients will actually utilize. The change from 365 days to 350 days is not a reduction in service, it is a reimbursement method which utilizes a 15-day vacancy factor. The number of days chosen was based on information furnished by the providers to AHCA during a survey completed in July 2003. Based on the survey, it was concluded that the providers billed for services for 345 to 350 days per year. Contrary to its present position, Petitioner FARF took the position early in the rulemaking procedure that billing on a 365-day year would be harmful to the providers. In a letter to AHCA dated February 4, 2003, Terry Farmer, CEO of FARF, advised: Attached is a compilation of written comments from Florida ARF members on the proposed rule #59G-8.200, titled "the Home and Community Based Services Waiver." * * * Going to the 365 day billing schedule will create hardships for consumers, families and providers because it discourages weekly home visits and doesn't address frequent hospitalizations or vacations. The 15 day down factor is very low for consumers who want to go home 2-3 times a month and would also like a yearly vacation. Recommendation: Increase the down factor to 5 days per month (60 days per year) to accommodate for absences in order to reduce the negative impact of home visits and vacations upon both the consumer and group home provider. This is particularly important when the focus is on meeting Personal Outcomes that may result in the consumer being away from the group home. Petitioners have challenged the portion of the Handbook which deleted the following provision: Residential habilitation services may be provided to children residing in a licensed facility or children with severe behavioral issues living in their family home. The child must have a written behavior analysis service plan that is written and monitored by a certified behavior analyst, in order for the services by a behavior assistant to be reimbursed under residential habilitation. The focus of the service is to assist the parents in training and implementing the behavior analysis services plan. At the final hearing, AHCA conceded that it was in error when it deleted the language relating to the provision of residential habilitation services to children and stated that the language would be reinstated. Section 409.908, Florida Statutes, provides: Subject to specific appropriations, the agency shall reimburse Medicaid providers, in accordance with state and federal law, according to methodologies set forth in the rules of the agency and in policy manuals and handbooks incorporated by reference therein. AHCA set out its rate methodology for Developmental Services Home and Community Based Services rate reimbursement in Appendix A of the Handbook. Petitioners have challenged the rate methodology, stating that it was vague, failed to establish standards for agency discretion and vested unbridled discretion in AHCA's determination of rate reimbursement. The rate of reimbursement cannot be determined based on rate methodology. However, based on a reading of the introductory language to the rate methodology, it does not appear that it was the intent of AHCA to be able to determine the rates by using the rate methodology in Appendix A, and staff of AHCA readily admit that a specific rate for a specific service cannot be determined using the language in the methodology alone. The first paragraph of the methodology states: The following section describes key aspects of the Developmental Services (DS) Home and Community Based Services (HCBS) rate reimbursement structure. Specifically the cost items for each rate component are listed, agency and independent contract status is defined, and the rate structure for various services is described. It appears that the methodology set out in Appendix A is an overview of the process that was used in determining the rates. AHCA is in the process of developing rules that set out the actual rates that will be used. Petitioners have challenged the portion of the Handbook which provides that the maximum limit for adult day training is 240 days, a reduction from 260 days. The reduction of adult day training days is a limitation on services and a limitation on billing. The rate for providing adult day training contains a similar vacancy factor as contained in the rate for residential habilitation services. The purpose of adult day training is to provide training for skills acquisition. Adult day training is provided five days a week, meaning that the maximum time any recipient could spend in adult day training is 260 days a week. However, adult day training is not provided 260 days a year. No training is provided on holidays such as Christmas, Thanksgiving, Memorial Day, Labor Day, and other normal holidays. Generally, individuals do not attend training 260 days a year for other reasons such as hospitalizations. In determining that 240 days would be sufficient in amount, duration, and scope, AHCA contacted providers and learned that recipients generally do not receive adult day training more than 240 days per year.
The Issue Whether or not Respondent's denial of Petitioner's request for services from the Developmental Disabilities Program due to lack of General Revenue Funds is warranted.
Findings Of Fact Petitioner is a young adult who has cerebral palsy and mental retardation. On February 12, 2001, Respondent determined him to be eligible for services from the Developmental Disabilities Program and, as such, is determined to be a "client" of Respondent. Respondent provides services to those determined to be eligible ("clients") and who receive these services in their homes through a state funding category known as Individual and Family Support ("IFS"). In the instant case, Petitioner was requesting "diapers and adult day training." On June 1, 2001, Respondent directed a letter to Vladimir Vega c/o Ruth Vega which stated, in part: This letter concerns the following request for services. Diapers & Adult Day Training We regret to inform you, as a conclusion of law, that your request cannot be granted within the limits of the Department's appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the Spending Plan as approved by the Florida Legislature. Respondent's Policy Directive PD#01-03 advises that, [I]n 1999 and 2000, the Florida Legislature appropriated additional funding to be used to provide needed services for individuals who had been clients of the Department of Children and Family Services, Developmental Disabilities Program (formerly Developmental Services Program) as of July 1, 1999. To guide how the additional funding was to be spent, the Legislature approved a Spending Plan, which set priorities for spending by the Developmental Disabilities Program through June 30, 2001. This new money was appropriated to serve individuals who were clients of the Department and were waiting for services on July 1, 1999. Some of these individuals have waited many years for funding for services to become available. Therefore, the Department must, consistent with the mandate of the Legislature serve these individuals first. Between now and June 30, 2001, the Department will focus its efforts on completing this task. The Department will not be able to provide services to individuals who were not clients of Developmental Disabilities on July 1, 1999, until individuals who were clients are served. As a result of the application of Respondent's administrative directives, Petitioner, although determined to be an eligible "client," was denied services and placed on a waiting list. Exception is made and services provided for certain "clients" who became eligible after July 1, 1999, and are placed on the waiting list, if they were determined to be "in crisis" as defined by a criteria created by Respondent. Petitioner was determined not to be "in crisis." Achieving the "in crisis" category may be a meaningless, as only 10 "in crisis" clients receive services monthly statewide. Respondent presented two witnesses who testified regarding Petitioner's eligibility determination, Respondent's policies and procedures as they were applied to Petitioner, and that General Revenue Funds were not available to fund services for Petitioner. Their testimony is accepted as credible except as related to the lack of availability of General Revenue Funds; neither were qualified to present evidence regarding this subject. No other evidence of lack of availability of General Revenue Funds was presented. Petitioner's mother testified as to Petitioner's eligibility and that he is presently the resident of a funded residential group home facility, but offered no evidence of damages sustained as a result of the denial of services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for requested developmental disability services. DONE AND ENTERED this 29th day of July, 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 29th day of July, 2002. COPIES FURNISHED: Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Ruth Vega Qualified Representative 2017 Diamond Drive Orlando, Florida 32807 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
The Issue Whether the Respondent has sufficient general revenue funds to provide the Petitioner with services under the Respondent's Developmental Disabilities Program.
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. Jake is a resident of Miami, Florida, and is four and one-half years of age, having been born October 6, 1997. On October 24, 2000, Jake's parents submitted on his behalf an application requesting that the Department enroll him in its Developmental Disabilities Program and provide him with physical, occupational, and speech therapy services as a developmentally disabled individual.2 The parties stipulated to the following facts: Jake has a rare genetic disorder called "Williams Syndrome," which causes significant developmental delays. Jake also has a significant hearing impairment, which exasperates his developmental delays. Among other developmental delays, Jake cannot walk on his own, is unable to talk, and is unable to respond to verbal requests. Jake requires regular and frequent physical, occupational, and speech therapies, and Jake is eligible to receive these services under the Department's Developmental Disabilities Program. A social worker employed by the Department advised Jake's mother on October 25, 2000, that Jake was eligible for the requested services. The social worker developed a family support plan, which Jake's mother signed on January 12, 2001. Pursuant to the Department's policies, the Department considered Jake a "client" of the Department and eligible for services on the date the family support plan was signed. According to the Department's witness, the funding category at issue in this case is state general revenue funds appropriated by the Florida Legislature and not federal funds. Upon receiving Jake's application for services under the Department's Developmental Disabilities Program, the Department reviewed the request and implemented a prioritization schedule set forth in a Department memorandum dated June 1, 2001. The subject matter of the memorandum is identified as "State Fiscal Year 2001-2002 Spending Plan Implementation Instructions ("Spending Plan")."3 The Spending Plan was developed in accordance with the following directive of the Legislature, which is found in the Conference Report on SB 2000: General Appropriations for 2001-02, May 1, 2001 ("Conference Report"): Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community- Based Services Waiver Services in accordance with a spending plan developed by the Department of Children and Family Services and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with the department's policy for serving persons on the waiting list. The Spending Plan relates to the distribution of funds to persons served through the Home and Community-Based Waiver Services program ("Waiver Program"), which is co-funded by the federal government as part of the Medicaid program.4 The Spending Plan establishes five "priority" categories for providing services through the Waiver Program: Persons who were clients as of July 1, 1999; members of the class in the case of Cramer v. Bush; persons not on the original waiting list who are in crisis (an estimated ten new clients monthly, statewide); persons discharged from the Mentally Retarded Defendant Program; and "[p]ersons who have become clients since July 1, 1999, in date order (new waiting list) -- projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding." The Spending Plan further provides that "[i]n order to serve the estimated additional 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above." According to the procedure specified in the Spending Plan, a waiting list for Waiver Program services is maintained by the Department's Central Office of the Developmental Disabilities Program, and that office advises the various districts when they may begin providing services to a person on the list. According to the Spending Plan, services are to be provided to individuals on the waiting list "subject to vacancies on the Waiver and available funding." Upon review of his application for services, the Department classified Jake in the fifth category of the Spending Plan as a person who become a client after July 1, 1999, and his name was placed on the waiting list to receive services provided through Waiver Program funding. Although no evidence was presented on this point, it is apparent from the text of the Spending Plan that, in addition to the Waiver Program funding for services to the developmentally disabled, there is a second source of funding for services to these individuals, Individual and Family Supports ("IFS") funding.5 The Department did not provide any indication in its denial letter and it did not present any evidence at the final hearing to establish that the "general revenue funds" at issue were IFS funds. It has been necessary to infer from the record that such is the case.6 Although the Department presented no evidence with respect to Jake's eligibility for services from IFS funds or with respect to the availability of IFS funds to provide Jake with the services for which he is eligible, the Spending Plan provides: "The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited." The only possible inference from the evidence presented by the Department and from the record as a whole is that, notwithstanding the reasons stated in the Department's denial letter in this case, Jake was denied services from IFS funds because he was placed on the Medicaid Waiver Program waiting list.
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 finding that Jake Cheskin shall remain on the waiting list for Home and Community-Based Waiver Services under the Developmental Disabilities Program and ordering that Jake Cheskin shall be provided with the physical, occupational, and speech therapy services for which he is eligible as soon as a vacancy occurs or additional funding is available under the Department's Developmental Disabilities Program.8 DONE AND ENTERED this 31st day of July, 2002, 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 31st day of July, 2002.
