The Issue Whether, at the time Petitioner made application for financial subsidy for wheelchair transportation, the denial by the Department, as a conclusion of law, for a lack of general revenue funds, was appropriate.
Findings Of Fact Based upon the testimony of the witness and consideration of the pleadings filed in this cause, the following relevant and material facts are found. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes. Matthew Dying, a developmentally disabled person who lives in his family home, applied for and received services funded by the Department of Children and Family Services which were paid, in part or in full, from the Department's General Revenue Funds. Petitioner, by and through Kearn Pienta, made application to the Department for Wheelchair Transport Services. At no time was Petitioner advised to specify a particular Department funding source to pay for the requested services. The Department denied Petitioner's request for Wheelchair Transport Services subsidy. The Department's denial was based on the position that the requested services were not authorized to be paid from the Department's General Revenue Funds. The Department, after discussion with Karen Pienta, agreed to provide the requested Wheelchair Transport Services paid from Medicaid Waiver funding source of which Matthew Dying is a client and a recipient. The Department is required to transfer a percentage of its General Revenue funds into the Medicaid Waiver funding for payment services. Petitioner, at the time of this final hearing, was receiving Wheelchair Transport Services. Having secured the services requested and thereafter refusing to attend this hearing is evidence of Petitioner's intent to withdraw the Administrative Complaint herein filed. Therefore, Petitioner's challenge to Respondent's initial denial of the original request need not be addressed to dispose of this matter.
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 The issue in this case is whether the wheelchair transport driver certifications of each of the Respondents should be revoked.
Findings Of Fact The Director is responsible for, inter alia, providing wheelchair transport driver certifications in Pinellas County. Gammage, Miller, and Stewart were each certified by the Director to be a wheelchair transport driver. Each of the Respondents worked for Wheelchair Transport Service, Inc. (the "Employer"). The process by which drivers obtain a certification from the Director is as follows: The Employer hires an individual to be a driver. It is the responsibility of the Employer to make sure each driver applicant has been fingerprinted. The Employer must also forward each driver's application to the Florida Department of Law Enforcement ("FDLE") for a criminal background check. When the background check is complete, the Employer must certify to the Director by way of an affidavit that the applicant for certification: has not been convicted of a felony; (2) has not been convicted of a misdemeanor directly related to his or her employment; and (3) has not pled nolo contendere to any charge of felony. The Employer must also affirm that it has attempted to contact the applicant's prior employers, that the applicant is of good moral character, and that the Employer has contacted three non-related individuals to attest to the applicant's morality. Once this process is complete, the Employer provides the Director with the driver's application along with an "Affidavit As To Background" for the driver. Upon receipt of this information, the Director would issue a certification to the applicant. The Director does not normally do an independent background check on the applicants. Rather, it relies upon the affidavit from the employing entity. In January 2006, the Director received a copy of an anonymous letter that had been sent to a local hospital which provided services to a large number of Veteran's Administration patients. The letter alleged improprieties by the Employer, specifically that it was hiring unqualified drivers. The qualifications of drivers are important to the Director because drivers are transporting the most vulnerable members of society, i.e., the sick, weak, infirm, and elderly. Based on the allegations in the anonymous letter, the Director undertook an independent investigation. Despite its limited financial resources, the Director performed a background check on all drivers for the Employer. The investigation found that seven drivers, including the three Respondents, had disqualifying criminal histories. For Gammage, the Employer had provided an affidavit to the Director stating that Gammage met all the criteria for certification and had no disqualifying criminal background. The affidavit was signed by Gammage and by a representative of the Employer. The affidavit was notarized, but it is unclear whose signature was being affirmed by the notary. Gammage, despite the representations in the affidavit, did have a disqualifying criminal history. He had two felonies, a burglary in 1994 and a sale of cocaine conviction in 1997. He served time in jail for at least one of the felonies. Nonetheless, the Director relied upon the affidavit from the Employer and issued Gammage a certification. After receiving his certification, Gammage worked for the Employer driving wheelchair transport vehicles for approximately seven years. He has been recertified every two years and has a clean employment record. The affidavit for Miller also affirmed that a background check had been done, that Miller had no felonies or other disqualifying criminal history, and that he was of good moral character. Miller's affidavit is not signed by the Employer, but "Wheelchair Transport Service, Inc." is stamped or typed on the signature line. The affidavit is notarized, presumably affirming Miller's signature since it is the only actual signature on the affidavit. Miller, too, actually had felonies in his background. He was found guilty of dealing in stolen property in 1994. Another felony charge, cruelty to a child, had been reduced to a misdemeanor, but it may also be a disqualifying event due to the nature of the crime. Miller's application and affidavit were provided to the Director, and a certification was duly issued. Stewart also applied for certification through the Employer. Stewart's affidavit affirmed his qualifications to be a wheelchair transport driver, i.e., the absence of a disqualifying criminal history and that he was of good moral character. The affidavit introduced into evidence was not signed or stamped by the Employer, nor was it notarized. According to Stewart, this was one of several affidavits he had done for his Employer. However, Stewart had a disqualifying criminal history as well. His record included battery on a police officer in 1991 and robbery with a deadly weapon in 1992. Despite this fact, the Director issued a certification for Stewart.1 All of the Respondents testified that they had told the Employer about their criminal backgrounds, but the Employer indicated to them that it didn't matter. All of the Respondents believed that the Employer was able to "take care of the problem" so that they could become certified. None of the three Respondents directly told the Director that they had no criminal history. In fact, under the certification process, it was solely the Employer's duty to advise the Director. It is clear the Employer--not the Respondents-- intentionally misled the Director concerning the criminal history of the three Respondents. Nonetheless, the Director continues to use the Employer to provide wheelchair transport services because "they have changed the way they do things." Apparently, the Employer now provides an FDLE background check along with the application and affidavit. Gammage, Miller, and Stewart have proven they are good employees. Each has a clean record with the Employer (Gammage for seven years or more), and each continues to work for the Employer outside Pinellas County. The medical director was kind in her praise of the three men, but firm in her stance that they were not eligible to have wheelchair transport driver certifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Pinellas County Emergency Medical Services, Office of the Medical Director, revoking the certifications of each Respondent. DONE AND ENTERED this 11th day of December, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2007.
The Issue The ultimate issue is whether Coyle is eligible for vocational rehabilitation benefits. The eligibility requirements for vocational rehabilitation benefits are set forth in both federal and state law. An individual is eligible when it is certified that: A physical or mental disability is present; A substantial handicap to employment exists; and Vocational rehabilitation services may reasonably be expected to render an individual fit to engage in gainful employment. Based upon the evidence presented at the hearing, there is no viable dispute that Coyle would not benefit from the receipt of vocational rehabilitation services, or that a documented physical disability does not exist. The real factual issue presented is whether Coyle has a substantial handicap to his employment. Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders filed March 4 and March 15, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Michael L. Coyle, applied for vocational rehabilitation services on May 28, 1982. Coyle is a 46-year-old white male who is divorced with custody of his seven-year-old daughter. Coyle worked for 14 years as a printer/compositor for the Sarasota Herald-Tribune. This job required that Coyle stand during his entire work day. Prior to working for the Sarasota Herald-Tribune, Coyle worked as an airline ticket clerk and supervised the loading of freight for an airline. These positions required that Coyle stand during much of his work day. When Coyle applied for vocational rehabilitation services, he was on medical leave from the Sarasota Herald-Tribune on advice of his personal physician. This medical leave was for the purpose of alleviating pain in Coyle's left knee. This pain had become incapacitating. When Coyle applied for vocational rehabilitation services, his medical leave was almost over, and the condition in his left knee had not improved. Coyle's employer, the Sarasota Herald-Tribune, had no positions available in which Coyle could work seated, and Coyle could not perform his duties as a printer/compositor while seated. Coyle was required to perform his duties while standing, and no opportunity existed for Coyle to be seated periodically during his work day. Coyle's application for vocational rehabilitation services was approved, and Coyle was certified as eligible on July 1, 1982. A rehabilitative plan was not prepared for Coyle by Coyle's counselor. Before a rehabilitative plan could becompleted, Coyle applied for additional benefits, to include transportation and maintenance costs. By this time, Coyle's medical studies were completed and their results available. The physicians reported that Coyle had a degenerative and chronic joint disease in his left knee; however, Coyle was able to work if he took aspirin and alleviated the strain on his knee by not standing. Based upon these reports, Coyle's request for maintenance and transportation costs were denied. Based upon the reevaluation of the medical opinions, the agency determined that Coyle was not eligible to receive any vocational rehabilitation benefits. Coyle was notified of the agency's decision to terminate his vocational rehabilitation benefits, and Coyle timely initiated administrative review of that determination. Coyle's records do not reflect that Coyle had applied for SSI and food stamps. Coyle receives some money as an insurance payment for his disability from private insurance maintained through his former employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, Michael L. Coyle's basic vocational rehabilitation benefits should be reinstated retroactive to the date of original termination. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of April, 1983.
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 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. As of August 23, 2002, Deneale is eligible for developmental services in the areas of support coordination; adult day training and transportation; non residential habilitation; residential placement; residential habilitation; adult dental; and behavioral services. The only lawful funding source from which these services could be provided to Deneale this year is the general revenue appropriation to DCFS. By letter dated September 25, 2002, DCFS advised Deneale that, with regard to those services for which he is eligible: [W]e 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 State Spending Plan as approved by the Legislature. Florida law does in fact prohibit the use of general revenue funds to provide developmental disability services to Deneale and to similarly situated clients when the general revenue budget is in a deficit condition. Section 216.311(1), Florida Statutes, provides in pertinent part as follows: No Agency or branch of state government shall contract to spend, or enter into an agreement to spend, any moneys in excess of the amount appropriated to such agency or branch, unless specifically authorized by law. . . . When the 2002-2003 fiscal year commenced on July 1, 2002, the general revenue budget was already in a $13 million deficit. The deficit had escalated to approximately $17 million by the time of the September 25, 2002, denial of services letter, and by the time of the final hearing had climbed to $23 million. The deficit exists because once clients begin receiving benefits, they may not lawfully be denied those benefits so long as they remain eligible for services. Moreover, once a client begins to receive services, federal law mandates that they be provided with any additional services for which they may become eligible, irrespective of whether or not general revenue funds are available. The cost of furnishing services to clients already being provided services for which they are eligibile has created a deficit which, in the absence of additional funding for DCFS's general revenue appropriation, will continue to grow. The deficit is also exacerbated by inflation, and by increases in the costs of services provided to individuals already receiving benefits. Deneale was placed on a wait list for Medicaid assistance for the services for which he is eligible, retroactive to his August 2002 eligibility date. As a practical matter, there is little hope that he will be reached in a timely manner. Caring for Deneale is a demanding task. He rises at 4:00 a.m. and requires constant attention from his mother and step-father, except for the hours he spends at an adult day care program for which his family pays from dwindling personal funds. The demands of caring for Deneale have taken a severe toll on his mother's health, as well as on her marriage of 27 years duration. Mr. Satter loves his family, but is seriously considering divorce because he can no longer cope with the burden of his stepson's care. Even at the cost of her marriage, Mrs. Satter is not willing to abandon her son, which she would have to do in order for the state to step in and relieve the family of the burden of providing Deneale with the full-time care and supervision he requires to survive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Deneale the developmental services for which he was determined eligible as of August 22, 2002. DONE AND ENTERED this 18th day of April, 2003, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Laurel Hopper, Esquire Department of Children and Family Services 337 North Fourth Street Fort Pierce, Florida 34950 FLORENCE SNYDER RIVAS 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 18th day of April, 2003. Jane and Edwin Satter 1774 Southwest Columbia Street Port St. Lucie, Florida 34987 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 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 issue is whether Department of Lottery Rule 53ER88-16, entitled Handicap Accessibility, is an invalid exercise of delegated legislative authority because it does not require handicap parking spaces at the location of lottery ticket vendors.
Findings Of Fact Dr. Steven Krisher was trained and practiced as a dentist until he developed the disability of multiple entrapment neuropathy, which now has progressed to the point that he can no longer engage in gainful employment, drive an automobile, exercise, or engage in sports. In order to be mobile outside his home he uses a wheelchair. He holds a permit for disabled parking from the Department of Highway Safety and Motor Vehicles. The Department of Lottery promulgated Rule 53ER88-16, Florida Administrative Code, to replace its prior rule on handicap accessibility. The text of the current rule, which is the subject of this challenge, is as follows: Retailers shall be required to provide accessibility for disabled persons on habitable grade levels according to the following minimum specifications: A ramp 44 inches wide for changes in level in excess of 1/2 inch at doorways. The grade shall be not more than 1 inch vertically in 12 inches horizontally. A platform at the top of the ramp which is five feet by five feet if the door opens onto the platform, or three feet deep and five feet wide if the door does not open onto the platform. Aisles or pathways from the entrance door to the counter at which lottery tickets are sold shall be 44 inches in width. A clear turn-around space of at least five feet square in front of the counter at which lottery tickets are sold. An entrance door meeting one of the following specifications: Single leaf walk-through swinging door, 32 inches; One leaf of manually operated multiple- leaf swinging door, 32 inches; Any other walk-through opening, 29 inches. The Department shall not enter into a retailer contract with any retailer whose application is received by the Department after the date of adoption of this rule until the retailer is in compliance with the requirements of paragraphs 1 through 5 above. All retailers whose applications were received by the Department prior to the effective date of this rule shall, not later than 90 days after contracting with the Department, provide the Department with a certificate under oath, affirming that the retailer is in full compliance with the handicap accessibility requirements set forth above. This section does not apply to a retail location which has an entrance door threshold more than 12 inches above ground level.
