The Issue The issue is whether Respondent discriminated against Petitioner based on marital status in determining his monthly retirement benefits in violation of the provisions of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner Kenneth Fritz (Petitioner or Mr. Fritz) has been a firefighter with the City of Pembroke Pines (Respondent or the City) since 1991. His date of birth is June 6, 1948, and he entered the Deferred Retirement Option Program (DROP) on December 1, 2006, at age 58.5 years old. As Respondent's employee, Mr. Fritz participated in the City's Pension Plan for Firefighters and Police Officers (the Plan). The DROP option that Mr. Fritz chose allowed him to name a joint annuitant and contingent survivors. Mr. Fritz, who has been divorced since 1986, chose his daughter who on December 1, 2006, was 32.25 years old, and his son who was 29.333 years old, as his surviving beneficiaries. Each will receive a 50 percent share of the retirement income upon his death payable for the remainder of their lives. Mr. Fritz alleged that the pension fund benefit system discriminates against him based on marital status. There is no factual dispute that his benefits, with a 32-year-old daughter are $3,938.12 a month, as compared to $4,366.59 a month if he had a 32-year-old wife. The benefits are not affected by his having named his son as an additional beneficiary. Mr. Fritz brought his concerns to the attention of Patricia Shoemaker, the Benefits Administrator for Municipal Police Officers' and Firefighters' Retirement Funds for the State of Florida Department of Management Services. On January 29, 2008, March 17, 2008, July 9, 2008, and September 25, 2008, Ms. Shoemaker sent letters to Mr. Anthony Napolitano, Chairman of the Pembroke Pines Firefighter's Pension Plan, requesting an explanation of the apparent violation of the following statutory provisions: § 175.333. Discrimination in benefit formula prohibited; restrictions regarding designation of joint annuitants. For any municipality, special fire control district, chapter plan, local law municipality, local law special fire control district, or local law plan under this chapter: and (1) No plan shall discriminate in its benefit formula based on color, national origin, sex, or marital status. § 175.071(2) Any and all acts and decisions shall be effectuated by vote of a majority of the members of the board; however, no trustee shall take part in any action in connection with the trustee's own participation in the fund, and no unfair discrimination shall be shown to any individual firefighter participating in the fund. (Emphasis added.) In her letter of September 25, 2008, Ms. Shoemaker noted that she had received no responses to her previous letters and that "[W]hile state premium tax moneys were released this year based on our understanding that the Board was researching this matter, future state tax moneys will not be released unless the plan is determined to be in compliance with Chapters (sic) 175, F.S." On October 15, 2008, Deputy City Attorney Julie F. Klahr finally responded to Ms. Shoemaker as follows: Your letter to the Pembroke Pines Police and Fire Retirement Plan has been referred to this office for reply. The issue is whether a spouse only benefit is discriminatory on the basis of marital status. For the reasons which follow, the benefit is fully in compliance with Florida law. Section 175.333(2)(a), Florida Statutes, clearly recognizes the propriety of a plan offering a spouse only survivorship benefit that alone should resolve this issue. The benefit at issue in Pembroke Pines is a spouse-only benefit, which not only exceeds the minimums required by Chapter 175, but also pre-dates the enactment of Ch. 99-1, Laws of Florida (1999). The complaining employee sought to designate a child as a beneficiary but without an age appropriate actuarial reduction. Nothing in Chapter 175, or any other law, mandates a retirement plan to provide a costly, generation skipping benefit without providing for actuarial equivalence. To the extent that your view is that the plan provision must be altered, it is a "minimum benefit" which is required, only if unencumbered Chapter 175 insurance premium tax rebates are present to pay the full cost as provided in §175.351. The City does not concede this is a correct interpretation, nor does any such Chapter money exist. Any required action to the contrary is an improper unfunded mandate. Moreover, the provisions of the Internal Revenue Code and corresponding regulations of the Department of the Treasury mandated the use of the actuarial factors at issue. Nothing in Chapter 175, Florida Statutes, directs a plan to violate tax provisions necessary to maintain qualification. It is the City's position that according a benefit to a spouse of a deceased member, provided the plan otherwise exceeds minimum benefits under Chapter 175, is a matter reserved to the City under its home rule powers in the Florida Constitution and Chapter 166, Florida Statutes. If any member feels aggrieved by the structure of the Ordinance Code, that person may seek remedies under Chapter 760, Florida Statutes. It should be observed, however, that the status at issue is that of the purported survivor and not the member. As a result, no violation of Florida's civil rights law is presented. See, Donato v. AT & T, 767 So.2d 1146 (Fla. 2000). Further §760.10(8)(b), Florida Statutes, exempts bona fide retirement plans from coverage under this law. The first provision cited as support for the City's position is as follows: § 175.333(2)(a) If a plan offers a joint annuitant option and the member selects such option, or if a plan specifies that the member's spouse is to receive the benefits that continue to be payable upon the death of the member, then, in both of these cases, after retirement benefits have commenced, a retired member may change his or her designation of joint annuitant or beneficiary only twice. Although the Deputy City Attorney asserted that this section alone should resolve the matter, Mr. Fritz observed the subsection does not authorize discrimination based on marital status but only limits the number of times that a joint annuitant or beneficiary may be changed. The City also relied on the fact that the Plan predates Chapter 99-1, Laws of Florida, but the statement of legislative intent indicates that the law is applicable to existing plans, and reads as follows: Legislative declaration. It is hereby declared by the Legislature that firefighters, as hereinafter defined, perform state and municipal functions; . . . and that their activities are vital to the public safety. It is further declared that firefighters employed by special fire control districts serve under the same circumstances and perform the same duties as firefighters employed by municipalities and should therefore be entitled to the benefits available under this chapter. Therefore, the Legislature declares that it is a proper and legitimate state purpose to provide a uniform retirement system for the benefit of firefighters as hereinafter defined and intends, in implementing the provisions of s. 14, Art. X of the State Constitution as they relate to municipal and special district firefighters' pension trust fund systems and plans, that such retirement systems or plans be managed, administered, operated, and funded in such manner as to maximize the protection of the firefighters' pension trust funds . . . This chapter hereby establishes, for all municipal and special district pension plans existing now or hereafter under this chapter, including chapter plans and local law plans, minimum benefits and minimum standards for the operation and funding of such plans, hereinafter referred to as firefighters' pension trust funds. The minimum benefits and minimum standards set forth in this chapter may not be diminished by local charter, ordinance, or resolution or by special act of the Legislature, nor may the minimum benefits or minimum standards be reduced or offset by any other local, state, or federal law that may include firefighters in its operation, except as provided under s. 112.65. (Emphasis added.) The City claimed, but Ms. Shoemaker's reference in her letter to the release of state premium tax moneys appears to contradict its claim, that it does not have to pay minimum benefits required by Chapter 175, although not conceding its applicability, because it has no unencumbered insurance premium tax money, a prerequisite the imposition of the following requirement: § 175.351. Municipalities and special fire control districts having their own pension plans for firefighters. For any municipality, special fire control district, local law municipality, local law special fire control district, or local law plan under this chapter, in order for municipalities and special fire control districts with their own pension plans for firefighters, or for firefighters and police officers, where included, to participate in the distribution of the tax fund established pursuant to s. 175.101, local law plans must meet the minimum benefits and minimum standards set forth in this chapter. * * * However, local law plans in effect on October 1, 1998, shall be required to comply with the minimum benefit provisions of this chapter only to the extent that additional premium tax revenues become available to incrementally fund the cost of such compliance as provided in s. 175.162(2)(a). (Emphasis added.) Apparently, not satisfied with the answer, on January 20, 2009, Ms. Shoemaker wrote again, this time to Ms Klahr, as follows: Dear Ms. Klahr This is to acknowledge receipt of your October 15, 2008 letter in response to my July 9, 2008 letter to the Board of the Firefighters' Pension Plan. While we appreciate your response regarding the propriety of a plan offering a spousal benefit and the appropriateness of an age appropriate actuarial reduction, our question for the Board was a different one relating to the plan's compliance with the provisions of ss. 175.333(1) and 175.071(2), F. S. as they relate to discrimination based on marital status. Based on our understanding of the issue relating to the calculation of the member's benefits, Mr. Fritz does not have a spouse, but wishes to designate his daughter as his beneficiary. He understands and agrees that it is appropriate to actuarialty [sic] adjust his benefit based on the age of his daughter. The actuary provided two calculations, one based on a spouse that was his daughter's age and one based on a beneficiary that was his daughter's age. His benefit when calculated with a young age spouse was greater than his benefit when calculated with the same young age beneficiary. It appears that the only difference in the two calculations is the marital status of the member and not the age of the joint annuitant. If our understanding of the facts relating to this issue are incorrect, please let me know. We have asked that the Board review the plan provisions with their plan attorney and actuary and provide an explanation as to how the plan meets the statutory provisions, specifically ss. 175.333(1) and 175.071 (2), F. S. Mr. Fritz pointed out that, in addition to the statutory provisions cited in Ms. Shoemaker's letter and various others that he cited, the City's Employee Handbook also includes a statement that the City does not discriminate based on marital status. The City's actuary noted that, however outdated, the additional benefit is based on the assumption that a firefighter's spouse is more dependent on the employee's income and pension then any other adult relative. In addition, the deputy city attorney testified that the Plan was adopted in the firefighters' collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the FCHR issue a final order finding that Respondent did not commit an unlawful employment practice. DONE AND ENTERED this 1st day of September, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 1st day of September, 2009. COPIES FURNISHED: James A. Cherof, Esquire Goren, Cherof, Doody & Ezrol, P.A. 3099 East Commercial Boulevard Fort Lauderdale, Florida 33308 Kenneth R. Fritz 16389 Malibu Drive Fort Lauderdale, Florida 33326 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue At issue in this case is whether Respondents, the Office of Insurance Regulation ("OIR" or "the Office") or the Financial Services Commission ("the Commission") have developed agency statements of general applicability meeting the definition of a rule in section 120.52(10), Florida Statutes (2011), governing its review, evaluation, recalculation, and disposition of excessive profits filings submitted pursuant to section 627.215, Florida Statutes (2011). If so, it must be determined whether those statements have been adopted as rules pursuant to the rulemaking process in section 120.54(1).
Findings Of Fact Premier is a foreign insurer authorized to write workers' compensation insurance in the State of Florida. As a workers' compensation insurer, Premier is subject to the jurisdiction of the Office. Premier began writing workers' compensation insurance coverage in Florida on January 1, 2005. The Office is a subdivision of the Financial Services Commission responsible for the administration of the Insurance Code, including section 627.215. Section 627.215(1)(a) requires that insurer groups writing workers' compensation insurance file with the Office on a form prescribed by the Commission, the calendar-year earned premium; accident-year incurred losses and loss adjustment expenses; the administrative and selling expenses incurred in Florida or allocated to Florida for the calendar year; and policyholder dividends applicable to the calendar year. Insurer groups writing other types of insurance are also governed by the provisions of this section. The purpose of section 627.215 is to determine whether insurers have realized an excessive profit and if so, to provide a mechanism for determining the profit and ordering its return to consumers. Insurer groups are also required to file a schedule of Florida loss and loss adjustment experience for each of the three years prior to the most recent accident year. Section 627.215(2) provides that "[t]he incurred losses and loss adjustment expenses shall be valued as of December 31 of the first year following the latest accident year to be reported, developed to an ultimate basis, and at two 12-month intervals thereafter, each developed to an ultimate basis, so that a total of three evaluations will be provided for each accident year." Section 627.215 contains definitions that are critical to understanding the method for determining excess profits. Those definitions are as follows: "Underwriting gain or loss" is computed as follows "the sum of the accident-year incurred losses and loss adjustment expenses as of December 31 of the year, developed to an ultimate basis, plus the administrative and selling expenses incurred in the calendar year, plus policyholder dividends applicable to the calendar year, shall be subtracted from the calendar-year earned premium." § 627.215(4). "Anticipated underwriting profit" means "the sum of the dollar amounts obtained by multiplying, for each rate filing of the insurer group in effect during such period, the earned premium applicable to such rate filing during such period by the percentage factor included in such rate filing for profit and contingencies, such percentage factor having been determined with due recognition to investment income from funds generated by Florida business, except that the anticipated underwriting profit . . . shall be calculated using a profit and contingencies factor that is not less than zero." § 627.215(8). Section 627.215 requires that the underwriting gain or loss be compared to the anticipated underwriting profit, which, as previously stated, is tied to the applicable rate filing for the insurer. Rate filings represent a forecast of expected results, while the excess profits filing is based on actual expenses for the same timeframe. The actual calculation for determining whether an insurer has reaped excess profits is included in section 627.215(7)(a): Beginning with the July 1, 1991, report for workers' compensation insurance, employer's liability insurance, and commercial casualty insurance, an excessive profit has been realized if the net aggregate underwriting gain for all these lines combined is greater than the net aggregate anticipated underwriting profit for these lines plus 5 percent of earned premiums for the 3 most recent calendar years for which data is filed under this section. . . Should the Office determine, using this calculation, that an excess profit has been realized, the Office is required to order a return of those excess profits after affording the insurer group an opportunity for hearing pursuant to chapter 120. OIR B1-15 (Form F) is a form that the Office has adopted in Florida Administrative Code Rule 69O-189.007, which was promulgated pursuant to the authority in section 627.215. The information submitted by an insurer group on Form F is used by the Office to calculate the amount of excessive profits, if any, that a company has realized for the three calendar-accident years reported. The terms "loss adjustment expenses," and "administrative and selling expenses," are not defined by statute. Nor are they defined in rule 69O-189.007 or the instructions for Form F. On or about June 30, 2009, Premier filed its original Form F Filing with the Office pursuant to section 627.215 and rule 69O-189.007. Rule 69O-189.007 requires that a Form F be filed each year on or before July 1. The first page of Form F includes section four, under which calendar year administrative and selling expenses are listed. Section four includes five subparts: A) commissions and brokerage expenses; B) other acquisition, field supervision and collection expense; C) general expenses incurred; D) taxes, licenses and fees incurred; and E) other expenses not included above. Premier subsequently filed three amendments to its Form F filing on December 11, 2009; on June 21, 2010; and on January 13, 2012. In each of its amended filings, Premier included the federal income tax expense attributable to underwriting profit it earned during the 2005-2007 period. These expenses were included under section four(E). No guidance is provided in section 627.215, in rule 60O- 189.007, or in the instructions for Form F, to identify what expenses may properly be included in the Form F filing. There is no indication in any of these three sources, or in any other document identified by the Office, that identifies whether federal income taxes are to be included or excluded from expenses to be reported in a Form F filing. While the form clearly references taxes, licenses and fees incurred under section 4(D), the instructions do not delineate what types of taxes, licenses and fees should be included. The instructions simply state: "for each of the expenses in item 4, please provide an explanation of the methodology used in deriving the expenses, including supporting data." The Office takes the position that federal income taxes should not be reported as an expense for the purpose of determining excess profits. It position, as characterized by Petitioner, is that "in determining what expenses may be deducted in calculating whether and to what extent excessive profits have been realized during the reporting period, the Office shall disallow any deduction for federal income tax or the net effect of federal income tax accrued or paid during the reporting period." According to James Watford, a Department actuary who reviews the excess profits reports, this position has not changed at any time in the last ten years. In August 2009, a petition was filed against the Office challenging the statement stated above as an unadopted rule. FFVA Mutual Insurance Co. v. Office of Insurance Regulation, DOAH Case No. 09-4193RU. The proceeding in the FFVA case was placed in abeyance based upon the Office's agreement to initiate rulemaking. A Notice of Development of Rulemaking was published and a workshop was conducted on February 22, 2010. On or about June 17, 2010, James Watford circulated proposed changes to rule 69O-189.007, which included changes to the instructions to Form F. Among those proposed changes was the addition of the following statement: "[f]ederal income tax is not to be included as an expense because the 'anticipated underwriting profit' is based on a pre-Federal income tax profit and contingencies factor." This language would have placed the position consistently taken by the Office in the materials incorporated into the rule. On November 17, 2010, a second rule development workshop was held on the proposed changes to rule 69O-189.007. However, no further action toward adopting the proposed revisions took place. At some point, the FFVA challenge was dismissed based upon a settlement between the parties, and the Office never sought approval from the Commission to notice the proposed changes for rulemaking. No further action has been taken to adopt the Office's position through the chapter 120 rulemaking process, and no credible explanation was provided to explain why the Office did not present the proposed changes to the Commission to obtain permission to notice the proposed rules. Although Mr. Watford testified that the Office has "clearly enunciated [its] position on federal income tax," he acknowledged that it has not been adopted through the rulemaking process. He stated, "before that ever came into existence, we had discussions with companies about the appropriateness of including that the fact that it is already included in the profit factor. . . . It was not published in a rule, because it is -- we thought it was pretty commonly understood by most parties." The Office insists that it is not feasible to consider federal income taxes in the excess profits calculation. It pointed to no real impediment to adopting its position of not considering federal income taxes through the rulemaking process. On January 4, 2011, Governor Scott issued Executive Order 11-1, which temporarily suspended rulemaking for executive branch agencies reporting to the Governor. Executive Order 11-1 was issued 11 months after the Office published its first Notice of Rule Development in February 2010, and did not apply to either the Office or the Commission. The Office also points to publications published by other entities, such as the Actuarial Standards Board and the National Association of Insurance Commissioners ("NAIC"), to support its position that federal income taxes may not be considered in determining excess profits. However, section 627.215 does not reference any of these publications, and they are not incorporated by reference in the Office's rule regarding excessive profits. Nor do these publications expressly reference what can be considered for excess profits calculations. During the 2012 legislative session, section 627.215 was amended to delete the excess profits filing requirement for workers' compensation insurance. § 7, ch. 2012-213, Laws of Fla. Section 627.213 had not been amended prior to this year since 2003. However, the Office continues to assert its position with respect to the exclusion federal income taxes as an expense to those filings remaining in the "pipeline." Section 627.215 continues to apply to other types of insurance.
The Issue Whether the Notice of Change to proposed rule 65A-1.900(2)(a) of Respondent is an invalid exercise of delegated legislative authority, under Subsection 120.56(1)(c), Florida Statutes, because the proposed rule is arbitrary and capricious and because Respondent has failed to follow rulemaking procedure or requirements in attempting to change its proposed rule.
Findings Of Fact The undisputed material facts are as follows: Carrie Johnson is the maternal grandmother and caretaker of Jevon Kyshan Evens, aged 17, and Willard Cody Sanders, aged 15. Ms. Johnson and her grandchildren live at 806 E. James Street, Tampa, Florida 33603. Ms. Johnson has court-ordered custody of both of her grandchildren. During all times relevant to these proceedings, Jevon Kyshan Evens was a minor child. Ms. Johnson currently receives a maximum of $637 in Supplemental Security Income (hereafter "SSI") subsistence disability benefits. She gets governmental housing assistance. She also gets TCA for both grandsons to help her care for them. For her two grandsons, the most Ms. Johnson is eligible to receive in TCA is a grant of $241 each month. Respondent's records show that, at least as early as 1992, Jevon lived with Ms. Johnson. At one time, Jevon went to live with his natural mother. However, Jevon moved back in with his grandmother, Carrie Johnson. Respondent charged Jevon's natural mother with an overpayment of $2,562 in TCA benefits. Respondent reduced Petitioner's cash assistance benefits as a means to recover the outstanding cash assistance overpayment claim established against the mother. The authority cited for Respondent's action was Florida Administrative Code Rule 65A-1.900, which implements Section 414.41, Florida Statutes. Prior to October 1, 2007, Respondent began to collect Jevon's mother's overpayment by reducing the amount of TCA it gave to Carrie Johnson for Jevon. Respondent recouped at least $369 of Jevon's mother's overpayment from Jevon's temporary assistance between 2005 and the end of 2007. Respondent continued to reduce Ms. Johnson's TCA benefits to recoup Jevon's mother's overpayment until the end of December 2007. Effective October 1, 2007, however, Respondent changed its cash assistance program's benefit recovery policy based on a different interpretation of Subsection 414.41(1), Florida Statutes. Prior to October 1, 2007, all participants in the cash assistance program at the time an overpayment occurred were identified as a "responsible person" for purposes of repayment of a cash assistance overpayment claim. However, as of October 1, 2007, the meaning of "responsible person" was changed by making "adults" the only group of people who could be responsible for repaying cash assistance overpayment claims. Therefore, it excluded recovery of cash assistance overpayments from minors. Consistent with the new policy concerning "adults" and "responsible persons," Respondent voluntarily restored cash assistance benefits to currently active cash assistance households that contained a minor child in the assistance group if the household's cash assistance benefits had been reduced to recover repayment of an outstanding overpayment cash assistance claim. The restoration period covered October 1, 2007, through December 31, 2007. Petitioner's household was a benefactor of Respondent's decisions to restore the cash assistance benefits for the months of October and November, 2007. Although Respondent paid Ms. Johnson supplemental TCA to offset the benefits it recovered in October and November 2007, Respondent did not return to Jevon or Carrie Johnson any of the money that it kept from Jevon's cash assistance prior to October 1, 2007, in order to recoup his mother's overpayment. Carrie Johnson is substantially affected by the Proposed Rule and, thus, has standing in this challenge. On December 14, 2007, Respondent published Notice of Development of Rulemaking with the stated purpose of "align[ing] . . . policies for recovery of overpayment in the public assistance programs." On March 7, 2008, Respondent published Notice of Proposed Rule stating that "the proposed rule aligns policies for recovery of overpayment in the public assistance programs. . . . The proposed rule amends language about who is responsible for repayment of overpayment of public assistance benefits." The operative date of October 1, 2007, was set forth in the second sentence of the proposed rule 65A-1.900(2)(a) ("Cash assistance benefits will not be paid to offset recovery prior to October 1, 2007, from individuals who were children in the overpaid assistance group"). Petitioner alleged that the operative date of October 1, 2007, was arbitrary and capricious. Proposed rule 65A-1.900(2)(a), as published on March 7, 2008, reads, in its pertinent parts, as follows: * * * Persons Responsible for Repayment of Overpayment. Persons who received AFDC and cash assistance overpayments as an adult shall be responsible for repayment of the overpayment Cash assistance benefits will not be paid to offset recovery prior to October 1, 2007 from individuals who were children in the overpaid assistance group. * * * (e) For the purpose of this rule, an adult is defined as: Eighteen (18) years of age or older, A teen parent receiving assistance for themselves as an adult, An emancipated minor, or An individual who has become married even if the marriage ended in divorce. (Underlining in original) The summary section of the proposed rule states that it ". . . amends language about who is responsible for repayment of overpayment of public assistance benefits. . . ." The purpose and effect of the proposed rule making is the alignment of policies for recovery of overpayment in the public assistance program. Subsection 414.41(1), Florida Statutes, reads, in its pertinent parts, as follows: 414.41. Recovery of payments made due to mistake or fraud. -- (1) Whenever it becomes apparent that any person . . . has received any public assistance under this chapter to which she or he is not entitled, through either simple mistake or fraud on the part of the department or on the part of the recipient or participant, the department shall take all necessary steps to recover the overpayment. Recovery may include Federal Income Tax Refund Offset Program collections activities in conjunction with Food and Consumer Service and the Internal Revenue Service to intercept income tax refunds due to clients who owe food stamp or WAGES debt to the state. The department will follow the guidelines in accordance with federal rules and regulations and consistent with the Food Stamp Program. The department may make appropriate settlements and shall establish a policy and cost-effective rules to be used in the computation and recovery of such overpayments. (Emphasis added.) Following the filing of Petitioner's Motion for Summary Final Order on the Second Petition, Respondent moved to delete the contested sentence Petitioner objected to. Thereafter, Respondent's Notice of Change was published in the Florida Administrative Weekly striking the sentence which read: ". . . [c]ash assistance benefits will not be paid to offset recovery prior to October 1, 2007, from individuals who were children in the overpaid assistance group. " Following publication of the Notice of Change, the Third Petition was filed, in which Petitioner seeks a determination that the Notice of Change, the scheduled public hearing, and Respondent's intent to change the language of proposed rule 65A-1.900(2)(a), Florida Administrative Code, as originally published in the Florida Administrative Weekly, by deleting a sentence constitute an invalid exercise of delegated legislative authority. See § 120.52(8)(a), Fla. Stat. (2007) At no time at any public hearing on proposed rule 65A-1.900(2)(a) was testimony given suggesting that the sentence challenged by Petitioner in proposed rule 65A-1.900(2)(a) should be placed in a rule other than Rule 65A-1.900. Respondent did not receive any written material or objections from the Joint Administrative Procedures Committee (JAPC) advising Respondent that the challenged sentence should be moved from Rule 65A-1.900. When Respondent submitted documents to JAPC concerning a Notice of Change to Proposed Rule 65A-1.900, no reason for the change was included in these documents. JAPC wrote to Respondent and asked the agency to explain the reason for the Notice of Change. Respondent has not responded to JAPC's request for an explanation of the reason for the Notice of Change. There is no written record of JAPC instructing Respondent to hold a public hearing to discuss the Notice of Change. Respondent published a Notice of Rule Development to amend Florida Administrative Code Rule 65A-4.220. The draft text of the proposed rule was published and a public hearing was held on October 8, 2008. Following the public hearing, a Petition to Determine the Invalidity of Proposed Rule 65A-4.220 was filed October 20, 2008 (hereafter "Fourth Petition"), and assigned DOAH Case No. 08-5227RP.
The Issue The matter concerns the amount of the money to be reimbursed to the Agency for Health Care Administration for medical expenses paid on behalf of Mark Crain, a Medicaid recipient, following a settlement recovered from a third party.
Findings Of Fact This proceeding determines the amount the Agency should be paid to satisfy a Medicaid lien following Petitioner’s recovery of a $100,000 settlement from a third party. The Agency asserts that it is entitled to recover $35,700, which is the amount it calculated using the formula set forth in section 409.410(11)(f). The facts that gave rise to this matter are found pursuant to a stipulation of the parties.3/ On June 23, 2016, Petitioner was working for a tree pruning company. Petitioner’s employer assigned him to remove several branches from a tree. As directed, Petitioner climbed to the top of the tree and secured himself with one rope lanyard. Unfortunately, after he began pruning, Petitioner cut through the rope lanyard, lost his balance, and plummeted 30 feet to the ground. As a result of the fall, Petitioner suffered significant physical and neurological injuries. Petitioner underwent multiple surgeries. His medical procedures included an open reduction with internal fixation on his right wrist, lumbar fusion surgery, and a lumbar laminectomy. At the final hearing, Petitioner’s counsel represented that Petitioner’s medical prognosis is not fully known at this time. However, what is known is that Petitioner will continue to experience serious neurologic deficits. Petitioner’s injuries have left him with overall mobility issues and have affected his ability to walk normally. He suffers from a right foot drop and has limited feeling below his waist. The parties also stipulated that Petitioner has completed all medical treatment and therapy related to his accident. However, Petitioner is uncertain whether or not he will be able to return to normal activities in the future. Petitioner incurred sizable medical expenses due to his injuries. The charges for Petitioner’s medical procedures totaled approximately $375,000. However, only $62,067.28 has actually been paid for his medical care. Of this amount, the Florida Medicaid program paid $41,992.33. (In addition to the $41,992.22 paid by Medicaid, other health insurance covered $20,075.06.) Petitioner did not present evidence of monetary damages other than his past medical expenses. Petitioner subsequently initiated a civil cause of action for negligence against his (former) employer. Petitioner alleged that he was not properly trained how to safely secure himself to the tree. According to Petitioner’s counsel, Petitioner’s employer should have instructed him to use two lanyards instead of one. After two years of litigation, Petitioner settled his negligence action for $100,000. The settlement did not allocate Petitioner’s award between past medical expenses and other damage categories. The Agency, through the Florida Medicaid program, paid a total of $41,992.33 for Petitioner’s medical treatment resulting from the accident.4/ All of the expenditures that Florida Medicaid spent on Petitioner’s behalf are attributed to past medical expenses. Under section 409.910, the Agency is to be repaid for its Medicaid expenditures out of any recovery from liable third parties. Accordingly, when the Agency was notified of the settlement of Petitioner’s lawsuit, it asserted a Medicaid lien against the amount Petitioner recovered. The Agency claims that, pursuant to the formula set forth in section 409.910(11)(f), it should collect $37,500 to satisfy the medical costs it paid on Petitioner’s behalf. (As discussed in endnote 7, the “default” formula in section 409.910(11)(f) allows the Agency to collect $37,500 to satisfy its Medicaid lien.) The Agency maintains that it should receive the full amount of its lien regardless of whether Petitioner settled for less than what Petitioner believes is the full value of his damages. Petitioner, on the other hand, asserts that the Agency should be reimbursed a lesser portion of the settlement than the amount calculated using the section 409.910(11)(f) formula. Exercising its right to challenge the Medicaid lien pursuant to section 409.910(17)(b), Petitioner specifically argues that, taking into account the full value of Petitioner’s damages, the Agency’s Medicaid lien should be reduced proportionately. Otherwise, the application of the statutory formula would permit the Agency to collect more than that portion of the settlement that fairly represents Petitioner’s compensation for past medical expenses. Petitioner requests the Agency’s allocation from Petitioner’s third-party recovery be reduced to $4,199.23. To establish the value of his damages, Petitioner submitted the medical bills from his accident, as well as relied upon the stipulated facts. Petitioner’s medical bills show that he sustained the injuries identified above, as well as underwent surgery on his spine and wrist. To place a monetary value on Petitioner’s injuries, Petitioner’s counsel represented that his law firm appraised Petitioner’s injuries at no less than $1 to 2 million. However, Petitioner did not introduce any evidence or testimony corroborating this injury valuation or substantiating an amount Petitioner might have recovered at trial in his personal injury cause of action.5/ Neither did Petitioner offer evidence of additional damages Petitioner might be facing from his accident, such as future medical expenses, loss of quality of life, loss of employment or wages, or pain and suffering. Based on his estimate, Petitioner’s counsel asserted that the $100,000 settlement is far less than the actual value of Petitioner’s injuries and does not adequately compensate Petitioner for his damages. Therefore, a lesser portion of the settlement should be allocated to reimburse Medicaid, instead of the full amount of the lien. Petitioner proposes that a ratio should be applied based on the full value of Petitioner’s damages (conservatively estimated at $1,000,000) compared to the amount that Petitioner actually recovered ($100,000). Using these numbers, Petitioner’s settlement represents a 10 percent recovery of Petitioner’s damages. In like manner, the Medicaid lien should be reduced to 10 percent or $4,199.23 ($41,992.33 times .10). Therefore, Petitioner asserts that $4,199.23 is the portion of his third- party settlement that represents the equitable and fair amount the Florida Medicaid program should recoup for its payments for Petitioner’s medical care. The Agency was not a party to Petitioner’s negligence action or Petitioner’s $100,000 settlement. No portion of the $100,000 settlement represents reimbursement for future medical expenses. The undersigned finds that, based on the evidence in the record, Petitioner failed to prove, by a preponderance of the evidence, that a lesser portion of Petitioner’s settlement should be allocated as reimbursement for medical expenses than the amount the Agency calculated pursuant to the formula set forth in section 409.910(11)(f). Accordingly, the Agency is entitled to recover $37,500 from Petitioner’s recovery of $100,000 from a third party to satisfy its Medicaid lien.
Findings Of Fact On September 13, 1985, respondent, Bernard Gross, was found in contempt of the Circuit Court in and for Dade County, Florida, for failing to comply with previous orders of the court to provide child support. According to the order rendered by the court, Gross was in arrears in the amount of $4,650 as of September 4, 1985. A copy of the order has been received into evidence as petitioner's exhibit 2. By letter dated October 24, 1985 petitioner, Department of Health and Rehabilitative Services (HRS), through its contractor, the Office of the State Attorney, advised Gross that it intended to intercept his federal income tax refund, if any, to satisfy the past-due child support. According to the letter, the past due amount was then $4,425. Gross was further advised he could request an administrative hearing to contest this action no later than November 25, 1985. However, the agency's letter was not postmarked until November 26, 1985, or after the point of entry had expired, and was not received by Gross until December 6, 1985. The letter further erroneously identified the amount due as an "AFDC" claim, which meant the person due the support payments was receiving assistance under the federal Aid to Families with Dependent Children program. This was incorrect. Gross was given an informal meeting with HRS personnel on January 29, 1986, for an undisclosed purpose. However, later HRS correspondence implies it was for the purpose of allowing Gross to attempt to get HRS to reconsider its earlier decision to intercept his income tax refund. When this effort was apparently unsuccessful, HRS, through its contractor, issued a Notice of Right to Hearing in Non-AFDC Cases on March 3, 1986, offering Gross an opportunity for a formal hearing. The notice made reference to the earlier court order dated September 13, 1985, and stated the arrearage due was greater than $500, the support was owed to or on behalf of a minor child, and it was more than three months past due. Gross thereafter timely requested a formal hearing. The clerk of the Circuit Court in and for Dade County maintains a central depository which has an account history for each person paying child and spousal support. According to the computer printout on Gross' account, Gross owed $4,650 as of September 4, 1985, but it decreased to $4,255 as of December 25, 1985. The amount is subject to change each week since the printout indicates Gross must pay $85 per week in child support. The printout has been received into evidence as petitioner's exhibit 1. Gross did not challenge or contest the accuracy of the numbers contained in the document. At final hearing petitioner ore tenus amended its request to claim only $4,255. That amount is the last amount shown on Gross' payment record, and is the balance due as of December 25, 1985. This date was selected by petitioner's counsel since it represents the most current data on respondent's account. Gross' former wife confirmed that Gross owed her more than $4,000 as of the end of 1985, but could not state the precise amount owed. Federal regulations (45 CFR 303.72) govern the conditions under which a federal income tax refund may be intercepted in a non-AFDC case to offset past- due support owed by the taxpayer. As is pertinent here, they require that the taxpayer owe support to or on behalf of a minor child and that it be not less than $500. Regulations also require that the agency substantiate the delinquent amount with a copy of the "court order, or an order of an administrative process established under State law, for support and maintenance of a child, or of a child and the parent with whom the child is living," "a copy of the payment record," or if no payment record exists, "an affidavit signed by the custodial parent attesting to the amount of support owed." In this regard, petitioner tendered into evidence a copy of the September 13, 1985 court order, a certified copy of the clerk of the circuit court's payment record, and offered the testimony of Gross' former wife, the latter in an effort to establish the amount owed her as of the end of 1985. Through his own testimony, and the submission of respondent's composite exhibit 1, Gross contended that various errors occurred in the administrative process that culminated in the final hearing. First, he cited the agency's failure to send its October 24, 1985 letter until November 26, or after the original point of entry had expired. He also pointed out that this notice was dated only fifty days after the court order, and that a minimum of ninety days is required by law. He further contended he had no opportunity prior to hearing to question the amount of past-due support allegedly owed. Finally, he pointed out that the court order of September 13 refers to an arrearage of $4,650, the proposed agency action on March 3 relies upon an arrearage of $4,450, and at hearing petitioner claimed the past due amount was $4,255. He did not deny that he owed the above amounts, but contended the agency was bound to seek only the amount shown in the court order, and by later changing the amount allegedly due, HRS has invalidated its claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered certifying a claim to the Secretary of the Treasury in the amount of $4,255 against respondent's federal income tax refund, if any. DONE and ORDERED this 23rd day of October 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 23rd day of October 1986.
The Issue The issue in this case is whether Petitioner is entitled to receive supplemental compensation under the Firefighters Supplemental Compensation Program.
Findings Of Fact At all material times, Petitioner has been employed as a firefighter with the City of Deland Fire Department. By submitting course transcripts on September 18 and 20, 1989, Petitioner applied to the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance for additional compensation under the Firefighter Supplemental Compensation Program. The course transcripts were from Brevard Community College and Valencia Community College. The Brevard transcript showed that, over a four-year period ending September 13, 1989, Petitioner had earned 69 semester credit hours, for which he was awarded an associate in arts degree in August, 1988. (All credit hours reported below are semester credit hours.) The courses for which Petitioner earned credits at Brevard are as follows (three credit hours for each course unless indicated otherwise in parentheses): general psychology, general chemistry I and II, general chemistry lab I and II (each 1), engineering graphics (4), college algebra, weight training (1), communications I and II, stage band (1), archery (1), fundamentals of speech communication, swimming (1), college trigonometry, first aid and safety (2), organic chemistry I and II, organic chemistry lab I and II (each 1), academic/career planning, U.S. history I and II, oceanography, introduction to physical geology, cardiopulmonary resuscitation (1), tennis (1), survey of American literature, contemporary humanities of the 20th century, and--following the receipt of the degree-- developmental psychology. After earning his associate in arts degree, petitioner took ten credit hours at Valencia Community College during the second session of the 1988-89 school year. The courses and their credit hours are: fundamentals of emergency medical technology (4), fundamentals of emergency medical technology practice (3), and emergency medical technician clinical practicum (3) By notice dated October 18, 1989, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that the information that he had submitted for entry into the Supplemental Compensation Program was not acceptable. The notice explains that Petitioner "does not have 18 hours fire science within degree transcript." The notice advises at the bottom: "When you have all of the appropriate paperwork properly filled out, please resubmit." By letter dated November 8, 1989, Frederick C. Stark, Chief of the Bureau of Fire Standards and Training, informed Petitioner that his transcripts failed to disclose a "major study concentration area" to qualify for supplemental compensation. The letter quotes Rule 4A-37.071(2), Florida Administrative Code: The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically identified in Rule 4A-37.073 are considered by the Division to be readily identifiable and applicable as fire-related. The letter advises Petitioner of his right to a hearing. Following some communications from Petitioner, Mr. Stark wrote another letter to Petitioner dated November 27, 1989. The letter states in its entirety: After further review of your transcript from Valencia Junior College, may I suggest that you take the necessary courses needed to get an Emergency Medical Technology degree. I feel that this would be the best way to go since you already have courses in this area. If I can be of any further assistance please call me at [number omitted]. Petitioner re-enrolled in Brevard Community College for the second semester starting January 8, 1990. He completed a three-credit hour course in statistics and a two-credit hour course in medical terminology. He also received credit, through a CLEP examination, for four credit hours in general biology. On June 18, 1990, Petitioner resubmitted the transcript materials showing the additional coursework at Brevard Community College. By letter dated July 10, 1990, Mr. Stark informed Petitioner that his application for entry into the Firefighters Supplemental Compensation Program had been denied for noncompliance with Section 633.382, Florida Statutes, and Chapter 4A-37, Florida Administrative Code. The letter quotes Rule 4A-37.085(2) as follows: "To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met: Possess an eligible Associate or Bachelors Degree." Prior to advising of a right to a hearing, the letter concludes: "it has been determined that your Degree is not readily identifiable and applicable as fire-related, per Rule 4A- 37.084. By letter dated July 17, 1990, to the Bureau of Fire Standards and Training, Petitioner requested a formal administrative hearing. The letter states that Petitioner had at least 18 semester hours readily identifiable and applicable as fire-related. In the July 17 letter, Petitioner asserts that he had called Mr. Stark prior to taking the additional courses and had been told that he needed only six additional semester hours, because he had 12 semester hours in approved courses. The letter claims that Mr. Stark had approved specific courses prior to Petitioner's taking them and had said it was unnecessary to confirm anything in writing. Petitioner complains in the letter that he was only lately told that he could meet the 18 semester-hour requirement only by earning a new associate degree. To earn an associate in arts or associate in science degree from Brevard Community College, a student must satisfy various requirements, such as completing a "prescribed course of study which includes at least 64 semester hours of credit," according to the college catalog. The associate in arts degree offers no opportunity to declare a major. 1/ The associate in science degree offers various majors. The associate in science technical program offers a major in fire technology that is designed to "qualify fire personnel for career advancement." The coursework described in this program represents strong evidence of the kind of courses that are fire- related. The coursework for the associate in science degree with a major in fire technology requires, among other things, the following courses and credit hours: two English courses (3 each), one physical science course (3), one chemistry course (3), one algebra course (3), two government courses (3 each), one human relations course (3), and two physical education courses (1 each). Although Petitioner did not take the identical courses required for the associate in science degree with a major in fire technology, he took comparable courses that, in each case, were more difficult than those required for the associate in science degree. The courses that Petitioner took that correspond in subject matter and credit hours to the Brevard requirements for a major in fire technology are: general psychology (3), general chemistry I (3), college algebra (3), communications I (3), fundamentals of speech communication (3), weight training and swimming (2), and U.S. history I and II (6). Other fire-related courses are first aid and safety (2) and cardiopulmonary resuscitation (1). Petitioner thus earned, prior to receiving his associate in arts degree, 26 hours in courses that are readily identifiable and applicable as fire-related. Valencia Community College is similar to Brevard Community College in offering no majors within the associate in arts degree. Valencia's associate in science degree with a major in fire science requires the following courses and credit hours: composition (3), U.S. government (3), psychology in business and industry (3), business math (3), fundamentals of speech (3), technical communication (3), introduction to general chemistry (4), introduction to sociology (3), and humanities (3). when measured against the requirements of Valencia Community College for a major in fire science, in terms of subject matter and credit hours, Petitioner earned a total of 25 or 28 credit hours in fire-related courses. Adding the first aid and cardiopulmonary resuscitation courses, Petitioner earned, in this comparison to the Valencia requirements, between 28 and 31 credit hours in courses that are clearly fire-related and within a major study concentration area that is fire-related. Neither an associate nor bachelor degree is required for Petitioner's present job as a firefighter. His job responsibilities include preventing and extinguishing fires, maintaining firefighting equipment, and conducting life support activities. His specific responsibilities include raising and climbing ladders, using chemical extinguishers, performing rescue activities, conducting fire education, performing life-support activities, and attending training courses to learn more about fire prevention and protection.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance, Division of State Fire Marshall, issue an amended final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly commencing no later than the first full calendar month following the date of the initial final order entered in this case. RECOMMENDED this 11th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Attorney Lisa S. Santucci Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Peter T. Campbell, III 445 Clarewood Boulevard Titusville, FL 32796
The Issue The issue in this case is whether the Department of Revenue should apply the Petitioner's $2,500 lottery prize to reduce an outstanding Public Assistance Obligation for child support.
Findings Of Fact By a Final Order on Support entered by the Circuit Court, Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, in Case No. 88-20006, on April 9, 1990, nunc pro tunc September 5, 1989, it was established that the Petitioner was the father of a child born out of wedlock on May 13, 1983, and that he owed the State a Public Assistance Obligation in the amount of $8,249 for AFDC paid to the mother for the support of the child prior to the Final Order of Support. The court ordered the Petitioner to pay $6.37 a week towards the Public Assistance Obligation and $48.96 a week for current child support. The Petitioner has met these court-imposed obligations. Notwithstanding having met the court-imposed obligations, and the intercept of an IRS income tax refund that reduced the remaining balance, $3,761.57 remained to be paid on the Public Assistance Obligation as of August 14, 1998.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order certifying that the Department of Lottery should pay the Petitioner's $2,500 lottery prize to the Department of Revenue for application to the Petitioner's outstanding Public Assistance Obligation. DONE AND ENTERED this 8th day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 COPIES FURNISHED: John Reynolds 1707 Walnut Street Tampa, Florida 33607 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1998. Chriss Walker, Senior Attorney Department of Revenue Post Office Box 8030 Tallahassee, Florida 32314 Louisa Warren, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following relevant facts are found. On November 25, 1974 the Circuit Court, Pinellas County, Florida entered a Final Judgement dissolving the marriage of James Richard Fortner, Jr. and his wife Joyce Adrienne Fortner, granting the father custody of the parties' minor child, James Richard Fortner, III, and incorporating the Property Settlement Agreement (Agreement) entered into by the parties and ordering the parties to comply with the Agreement. Paragraph 2 of the Agreement provides for the father to have the care, custody and control of the minor child, James Richard Fortner, III. The husband agreed to totally support the minor child and waived any contribution from the wife. Further, the father agreed to "always take care of and totally support the minor child." Subsequent to the Final Order dissolving the marriage, the father's mother, Mary J. Fortner, gained physical custody of the minor child. It is unclear how the grandmother gained custody of the minor child since there is no order granting her custody. Subsequent to the grandmother gaining custody of the minor child, she applied for AFDC and was granted public assistance. On June 20, 1985 the Circuit Court, Pinellas County, Florida, entered an Order of Support against the Petitioner in favor of the Department and Mary J. Fortner in the amount of $51.50 per month ($50.00 support + 1.50 fee) to repay the state of Florida for public assistance expended on the minor child. Subsequent to this Order of Support on June 28, 1988, the Circuit Court, Pinellas County, Florida heard a Motion for Contempt and Review for Increase. On August 3, 1988 the court entered an order continuing the matter until September 8, 1988 and ordered the Department to investigate how the grandmother, Mary J. Fortner obtained custody of the minor child from James R. Fortner, Jr. The court file reveals that the hearing scheduled for September 8, 1988 was never held nor does the court file in this case or the dissolution of marriage case reveal any order finding Petitioner in arrears for any child support. The Department claims $547.00 for reimbursement of monies paid through the AFDC program to Mary J. Fortner and $2,047.51 for reimbursement of monies paid to the custodial foster parents for the minor child. There was no evidence that the Department ever attempted to investigate how Mary J. Fortner gained custody of the minor child or ever attempted to collect any of the public assistance funds expended on the minor child from the minor child's father who was granted custody of child and who waived child support from the Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order to the effect that the Department is not entitled to intercept the Petitioner's federal tax refund and further recommend that any federal tax refund which may already have been intercepted shall be returned to Adrienne Horne. DONE and SUBMITTED this 29th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Respondent in this case. The Petitioner did not file any proposed findings of fact and conclusions of law. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-2. Covered in Preliminary Statement. 3.-4. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Not material. First sentence adopted in Finding of Fact 7, otherwise not material or relevant. Adopted in Finding of Fact 8. Not material or relevant. Not a finding of fact but a quotation of Section 409.256(1), Florida Statutes, and the Department assertion as to the effect of the Order of Support which should handled in the conclusions of law. Copies furnished to: Adrienne J. Horne P.O. Box 2554 Lake Placid, FL 33852-2534 Lisa A. Heerman, Esq. Mensh and MacIntosh, P.A. 5536 Central Avenue St. Petersburg, FL 33707 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Did the Department of Children and Family Services (Department) improperly deny funds to Maurice Parkes for the purchase of bottled water?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family care program, and the provisions of in-home subsidies. Petitioner is a developmentally disabled child who lives in his family's home and receives numerous services from the Department for his developmental disability, medical, and physical problems. The services presently being furnished to Petitioner are funded through the Medicaid Waiver Program. The bottled water at issue is not funded through the Medicaid Waiver Program and would have to be funded through General Revenue funds. General Revenue funds appropriated by the legislature for the fiscal year 2001-2002 to the Department have largely been moved to the Medicaid Waiver Program to obtain the benefit of federal matching funds, which are provided at the rate of 55 cents for each 45 cents of state funds. The use of General Revenue Funds to obtain matching federal funds for the Medicaid Waiver Program allows the Department to service some of those developmentally disabled clients that are presently eligible for the Medicaid Waiver Program but have not been receiving services due to lack of funding. There are no uncommitted funds in the General Revenue category of the Developmental Services' budget that could be used to fund the purchase of bottled water for Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request to provide him with bottled water. DONE AND ENTERED this 9th day of July, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2002. COPIES FURNISHED: Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Maurice Parkes c/o Erika Parkes 2229 Bonita Way, South St. Petersburg, Florida 33712 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
Findings Of Fact The marriage of Ronald Yelvington and Marsha Yelvington was dissolved some time prior to this proceeding. The couple had four children. On December 3, 1982, Ronald Yelvington executed a stipulation to repay arrearages of court-ordered child support due to the State of Florida in the amount of $4,542.00. Repayment was to be made at the rate of $5.00 per week. The stipulation acknowledged the four children and acknowledged that they had received public assistance from November 1, 1978 until October 31, 1981. The Department joined in the stipulation. (Petitioner's Exhibit #2) On February 18, 1983, Circuit Judge E. L. Eastmore entered an order to repay debt and arrears, adopting the terms of the parties' stipulation. Payments were to be made to the Clerk of the Circuit Court and disbursed by the Clerk to the Department, as reimbursement for public assistance paid for the benefit of Yelvington's minor children. (Petitioner's Exhibit #2) Ronald Yelvington has paid regularly, by payroll deduction. As of May 18, 1988, his balance due on the arrearages account was $3,286.70, including an additional arrearage of $119.70. (Petitioner's Exhibit #1) Until this proceeding, Mr. Yelvington was unaware that he was accruing an additional arrearage. He attributes the arrearage to the fact that his company changed to a bimonthly pay period. His current spouse, Carol Yelvington, called HRS and Lew Merryday's office to let them know that the pay period was different. They told her they would let the Yelvingtons know if there was a problem. The next contact was the notice of IRS intercept. HRS has a policy of pursuing IRS intercept even when the party is paying regularly under a stipulation regarding an arrearage, if the funds are available in a tax refund. Linda Bailey, the child Support Enforcement Supervisor, does not know how much is available in Mr. Yelvington's tax refund. She concedes that the policy causes confusion and resentment in a party who is making regular payments. Ronald Yelvington agrees that he owes the arrearage, although he does not understand the basis for the additional $119.70, or why no one informed him that he was getting behind for insufficient payroll deductions. He believes that intercept might be a speedy resolution, but he distrusts the figures stated by HRS. His former and current spouses vehemently object to the intercept, as they feel that the money would otherwise go to them and their children. Neither argues that the refund is partly theirs by virtue of having filed a joint tax return as a wage earner. HRS does not maintain an accounting of payments made under the child support enforcement program. It relies instead on the accounting provided by the Clerk of the Circuit Court, as it is the Clerk's office that is responsible for receiving and disbursing the funds.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered finding that the Department should notify the Secretary of Treasury as provided in Title 42, U.S. Code, Section 644(a)(1), that Ronald Yelvington owes past-due support in an amount to be established at the time the notice is provided. That is, the sum of $3,286.70, owed as of May 18, 1988, should be reduced by those amounts paid by Mr. Yelvington since that date. It is further recommended that Ronald Yelvington be provided a copy of the Clerk of Circuit Court accounting of his payments on the arrearage established by Judge Eastmore's February 18, 1983 Order. DONE and RECOMMENDED this 13th day of June, 1988, in Tallahassee, Florida. MARY CLARK 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 13th day of June, 1988. COPIES FURNISHED: Lew Merryday, Jr., Esquire 425 North Palm Avenue Palatka, Florida 32077 Ronald M. Yelvington 5417 Coyote Trail Orlando, Florida 32308 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ms. Marsha Yelvington Martin 5834 Windermere Drive Jacksonville, Florida 32211 Marsha Yelvington Post Office Box 608 Pierson, Florida 32080
