08-001577RP Carrie Johnson, As Lawful Custodian And Next Friend Of Minor Child, Jevon Evens vs. Department Of Children And Family Services Status: Closed DOAH Final Order on Tuesday, November 4, 2008.

Summary: The proposed rule is not an invalid exercise of delegated legislative authority; operative cut-off date of 10/01/07 for repayment of public assistance benefit overpayment is not arbitrary and does not contravene statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARRIE JOHNSON, AS LAWFUL )

CUSTODIAN AND NEXT FRIEND OF )

MINOR CHILD, JEVON EVENS, )

)

Petitioners, )

)

vs. ) Case Nos. 08-1577RP

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

SUMMARY FINAL ORDER

A formal administrative hearing was unnecessary in this

case before the Division of Administrative Hearings, by

Daniel M. Kilbride, Administrative Law Judge, and this matter

is decided on Cross Motions for Summary Final Order.

APPEARANCES

For Petitioner: Cindy Huddleston, Esquire

Vileta Combs, Esquire

Florida Legal Services, Inc.

2425 Torreya Drive

Tallahassee, Florida 32303

Valory Greenfield, Esquire

Florida Legal Services, Inc.

3000 Biscayne Boulevard, Suite 450

Miami, Florida 33137

Heather Tagert, Esquire

Bay Area Legal Services, Inc.

829 W. Martin Luther King Boulevard

Suite 200

Tampa, Florida 33603

For Respondent: Herschel C. Minnis, Esquire

Department of Children and Family Services

1317 Winewood Boulevard

Building. 2, Room 204B

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUES

Whether proposed rule 65A-1.900(2)(a) of Respondent is an

invalid exercise of delegated legislative authority because the

proposed rule is arbitrary and capricious and/or it enlarges,

modifies, or contravenes Section 414.41, Florida Statutes, the

specific provision of law implemented.

PRELIMINARY STATEMENT

There are several interrelated cases which commenced when

Petitioner challenged an unpromulgated policy of Respondent's as

an unadopted agency statement meeting the definition of a rule.

This policy prohibited payment of pre-October 1, 2007, cash

assistance withheld from Petitioner Carrie Johnson and her

grandson Jevon Evens. The Petition to Determine Invalidity of

Unadopted Rule, dated November 2, 2007 [hereafter "First

Petition], was assigned DOAH Case No. 07-5066RU. After

undertaking discovery, Petitioner moved for summary final order

on February 1, 2008, asking this tribunal to find the unadopted

policy invalid. Respondent then proposed a rule which

"address[ed] the agency statement Petitioner contends

constitutes an unpromulgated rule" and moved, inter alia , to

abate the case. See Respondent's Motion to Dismiss or

Alternative Stay/Abate Administrative Proceedings [hereafter

"Motion to Abate"]. Petitioner did not object to abatement, and

the unpromulgated rule challenge, Case No. 07-5066RU, was placed

in abeyance. An Order placing the case in abeyance was entered

on March 13, 2008.

After entry of the abatement of Petitioner's First

Petition, Respondent published a Proposed Rule amending Florida

Administrative Code Rule 65A-1.900(2)(a) to incorporate the

agency statement challenged as unpromulgated. Petitioner

challenged the validity of the substance of the proposed rule as

being beyond delegated legislative authority. Petition to

Determine Invalidity of Proposed Rule, filed March 28, 2008

(hereafter "Second Petition), was assigned DOAH Case No.

08-1577RU. The unpromulgated rule challenge, First Petition,

and the proposed rule challenge, Second Petition, were

consolidated by Order dated April 9, 2008.

Petitioner thereafter moved for summary final order on her

Second Petition, the proposed rule challenge. Respondent

responded by stating it would delete the contested sentence that

allegedly makes the proposed rule an invalid exercise of

delegated legislative authority. Thereafter, Respondent's

Notice of Change was published in the Florida Administrative

Weekly demonstrating that the challenged language providing

". . . [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 . . ." is deleted from

proposed rule 65A-1.900(2)(a). Based on this chain of events,

Petitioner moved to set aside its March 13, 2008, Order Placing

Case 07-5066RU in Abeyance.

Timely following Respondent's publication of its Notice of

Change, Petitioner challenged the validity of the Notice of

Change as being beyond delegated legislative authority.

Petitioner charges that Respondent materially failed to follow

rulemaking procedures/requirements and acted arbitrarily and

capriciously. Petition to Determine Invalidity of Notice

of Change to Proposed Rule 65A-1.900(2)(a) was filed

June 25, 2008 (hereafter "Third Petition"), and assigned

DOAH Case No. 08-3106RP. Petitioner further filed a motion to

consolidate the Third Petition with the first two challenges.

Following the filing of the Third Petition, Respondent

moved for summary disposition of same. After responding to

same, Petitioner cross-moved for summary final order on her

Third Petition. On September 9, 2008, Respondent published with

Florida Administrative Weekly, a Notice of Proposed Rule

65A-4.220, which sets out inter alia , Respondent's proposal for

limiting the application of policy changes in the Temporary Cash

Assistance (TCA) program, and if, and when, it will notify TCA

recipients about policy changes that may affect them. A public

hearing was held on the proposed rule on October 8, 2008.

Petitioner filed a Petition to Determine Invalidity of

Proposed Rule 65A-4.220 on October 20, 2008 (hereafter Fourth

Petition), which was assigned DOAH Case No. 08-5227RP. That

matter remains pending.

FINDINGS OF FACT

The undisputed material facts are as follows:

1. 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.

2. 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.

3. Respondent's records show that, at least as early as

1992, Jevon lived with Ms. Johnson.

4. At one time, Jevon went to live with his natural

mother. However, Jevon moved back in with his grandmother,

Carrie Johnson.

5. Respondent charged Jevon's natural mother with an

overpayment of $2,562 in TCA benefits.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. Carrie Johnson is substantially affected by the

proposed rule and, thus, has standing in this challenge.

12. 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."

13. 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."

14. The operative date of October 1, 2007, was set forth

in the second sentence of 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").

15. Petitioner alleges that the operative date of

October 1, 2007, is arbitrary and capricious.

16. Proposed rule 65A-1.900(2)(a), as published on

March 7, 2008, reads, in its pertinent parts, as follows:

* * *

(2) Persons Responsible for Repayment of

Overpayment.

(a) 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 :

1. Eighteen (18) years of age or older ,

2. A teen parent receiving assistance for

themselves as an adult ,

3. An emancipated minor, or

4. An individual who has become married

even if the marriage ended in divorce.

(Underlining in original)

17. 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 rulemaking is the alignment

of policies for recovery of overpayment in the public assistance

program.

18. 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.)

19. 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. . . ."

20. 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).

21. When Respondent submitted documents to the Joint

Administrative Procedures Committee (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.

22. There is no written record of JAPC instructing

Respondent to hold a public hearing to discuss the Notice of

Change.

23. 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. 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.

CONCLUSIONS OF LAW

Jurisdiction

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.56, Florida Statutes (2007).

25. Petitioner is an individual whose substantial

interests will be affected by the proposed rule, and has

standing to bring this rule challenge.

Burden of Proof

26. Initially, Petitioner "shall state with particularity

the objections to the proposed rule and the reasons that the

proposed rule is an invalid exercise of delegated legislative

authority." § 120.56(2)(a), Fla. Stat (2007). Then, the

Respondent "has the burden to prove by a preponderance of the

evidence that the proposed rule is not an invalid exercise of

delegated legislative authority as to the objections raised."

Id. ; see also Southwest Florida Water Management District v.

Charlotte County , 774 So. 2d 903, 908 (Fla. 2nd DCA 2001).

("Nothing in Subsection 120.56(2) requires the agency to carry

the burden of presenting evidence to disprove an objection

alleged in a petition challenging a proposed rule. Instead a

party challenging a proposed rule has the burden of establishing

a factual basis for the objections to the rule, and then the

agency has the ultimate burden of persuasion to show that the

proposed rule is a valid exercise of delegated legislative

authority."), citing St. Johns River Water Management District

v. Consolidated-Tomoka Land Co. , 717 So. 2d 72, 76 (Fla. 1st

DCA 1998). The court in Consolidated-Tomoka Land Co. , declined

to require the agency to go forward with evidence to disprove

every objection made in the petition. Consolidated-Tomoka

Land Co. , 717 So. 2d at 76. Instead, the court adopted a

practical approach that requires the party challenging the

proposed rule to establish a factual basis for the objections

put forth in the petition. Id. at 77.

27. A rule may not be declared invalid on any ground other

than whether the rule is an invalid exercise of delegated

legislative authority without impermissibly extending the

authority of the Administrative Law Judge (ALJ). See Schiffman

v. Department of Professional Regulation, Board of Pharmacy ,

581 So. 2d 1375, 1379 (Fla. 1st DCA 1991)("An administrative

agency has only the authority that the legislature has conferred

it by statute."). Thus, a proposed rule may not be invalidated

simply because the ALJ believes it is not the wisest or best

choice. See Bd. of Trustees of Internal Improvement Fund v.

Levy , 656 So. 2d 1359, 1364 (Fla. 1st DCA 1995)("The issue

before the [ALJ] in this [rule challenge] case was not whether

the Trustees made the best choice . . . or whether their choice

is one that the appellee finds desirable . . . ."); Dravo Basic

Materials Co., Inc. v. Department of Transportation , 602 So. 2d

632, 634 (Fla. 2nd DCA 1992)("It is not our task, however, to

write the best rule for DOT. That was not the task of the

[ALJ].").

28. Petitioner contends that when the Legislature amended

Subsection 414.41(1), Florida Statutes, it intended to prohibit

or preclude Respondent from reducing her cash assistance

benefits to repay the overpayment claim established against

Jevon Evens' mother. Petitioner contends that when the

Legislature amended Subsection 414.41(1), Florida Statutes, it

also intended to incorporate by reference Title 7 Code of

Federal Regulations subpart 273.17, Restoration of lost

benefits. Subpart 273.17 is the basis for Petitioner's claim of

entitlement to restored cash assistance benefits prior to

October 1, 2007.

Statutory Construction

29. Legislative intent is the polestar that guides a

court's statutory construction analysis. Reynolds v. State ,

842 So. 2d 46, 49 (Fla. 2002). In determining the Legislature's

intent in using a particular word in a statute, the courts may

examine other uses of the word in similar contexts. Hankey v.

Yarian , 755 So. 2d 93, 96 (Fla. 2000).

30. Statutory phrases are not to be read in isolation, but

rather within the context of the entire section. Jones v. ETS

of New Orleans, Inc. , 793 So. 2d 912, 915 (Fla. 2001). The

legislative use of different terms in different sections is

strong evidence that different meanings were intended.

Department of Professional Regulation, Board of Medical

Examiners v. Durrani , 455 So. 2d 515, 518 (Fla. 1st DCA 1984).

31. When the Legislature enacts a statute, it is presumed

to know existing statutes and the case law construing them.

Williams v. Christian , 335 So. 2d 358, 360 (Fla. 1st DCA 1976).

32. The statutory construction principle in pari materia

requires two statutes relating to the same thing or subject to

be construed together "so as to harmonize both statutes and give

effect to the Legislature's intent." Maggio v. Florida

Department of Labor and Employment , 899 So. 2d 1074, 1078

(Fla. 2005).

33. Legislative intent can be discerned by reading the

statute as a whole. See , e.g. , Young v. Progressive

Southeastern Ins. Co. , 753 So. 2d 80 (Fla. 2000); Acosta v.

Richter , 671

So. 2d 149 (Fla. 1996); and Klonis v. Department of Revenue ,

766 So. 2d 1186 (Fla. 1st DCA 2000). Legislative history

concerning Subsection 414.41(1), Florida Statutes, can also be

used to discern legislative intent. See Department of Insurance

v. Insurance Services Offices , 434 So. 2d 908, 911 (Fla. 1st

DCA 1983).

34. It is widely recognized that "[a]gencies are to be

accorded wide discretion in the exercise of their lawful

rulemaking-authority, clearly conferred or fairly implied and

consistent with the agency's general statutory duties."

Department of Natural Resources v. Wingfield Development

Company , 581 So. 2d 193, 197 (Fla. 1st DCA 1991).

35. Respondent is to be "accord[ed] great deference to

administrative interpretations of statutes which the . . .

agency is required to enforce." Department of Environmental

Regulation v. Goldring , 477 So. 2d 532, 534 (Fla. 1985).

36. "[T]he agency's interpretation of a statute need not

be the sole possible interpretation or even the most desirable

one; it need only be within the range of possible

interpretations." Department of Professional Regulation, Board

of Medicine Examiners v. Durrani , 455 So. 2d 515, 517 (Fla. 1st

DCA 1984). See Board of Podiatric Medicine v. Florida Medical

Association , 779 So. 2d 658, 660 (Fla. 1st DCA 2001) (upholding

agency's definition "[i]n light of the broad discretion and

deference which is accorded an agency in the interpretation of a

statute which it administers, and because such an interpretation

should be upheld when it is within the range of permissible

interpretations[.]").

37. The ALJ has the discretion to declare the proposed

rule wholly or partly invalid. § 120.56(2)(b), Fla. Stat.

(2007).

38. Respondent's interpretation is reasonable in that by

amending Subsection 414.41(1), Florida Statutes, the Legislature

intended only to: (1) give Respondent the authority to use the

collection activities of the Federal Income Tax Refund Offset

Program, and (2) if Respondent used the Federal Income Tax

Refund Offset Program, Respondent must follow the guidelines in

Title 7 Code of Federal Regulations subpart 273.18(n) governing

the Treasury's Offset Program.

39. There is no evidence tending to show Petitioner's

interpretation of the language amending Subsection 414.41(1),

Florida Statutes, is what the Legislature intended. More

importantly, interpreting the language in the amendment as

including or incorporating federal Food Stamp Program's

guidelines on restoring cost benefits and/or as stopping

recovery of cash assistance overpayment debts by reducing

Petitioner's cash assistance benefit award makes the

Legislature's specific and express use of "Federal Income Tax

Refund Offset Program collection activities" and the

Legislature's specific and express use of "intercept income tax

refunds due to clients who owe food stamp or wages debt to the

state," completely meaningless.

40. Therefore, Petitioner's reading and interpretation of

the language amending Subsection 414.41(1), Florida Statutes, is

rejected. See Times Publishing Co. v. Williams , 222 So. 2d 470

(Fla. 2nd DCA 1969) (a court cannot presume that the Legislature

employed useless language in enacting a statute). See also City

of St. Petersburg v. Nasworthy , 751 So. 2d 772, 774 (Fla. 1st

DCA 2000) (the "doctrine of the last antecedent," provides that

relative and qualifying words, phrases and clauses are to be

applied to the words or phrase immediately preceding, and are

not to be construed as extending to, or including, others more

remote.). Clearly, Petitioner's interpretation of Subsection

414.41(1), Florida Statutes, violates the doctrine of the last

antecedent.

41. In conclusion, proposed rule 65A-1.900(2)(a) changes

Respondent's policy about who is liable for repayment of cash

assistance overpayment debts owed to the state. The change is

made by saying, in a clear and straightforward manner, "adults"

are the "responsible persons." The term "adults" is defined in

proposed rule 65A-1.900(2)(e). As defined, persons who were

minor children in the cash assistance group when the overpayment

occurred will no longer be responsible for repayment of the cash

assistance overpayment debt.

42. The ultimate question in a proposed rule challenge is

whether the rule is "an invalid exercise of delegated

legislative authority." § 120.56(1), Fla. Stat. (2007).

Subsection 120.52(8), Florida Statutes (2007), defines the term

as an "action which goes beyond the powers, functions, and

duties delegated by the Legislature."

43. In 1999, the Legislature revised the closing paragraph

of Subsection 120.52(8), Florida Statutes, after the decision in

Consolidated-Tomoka Land Co. , which held that "[a] rule is a

valid exercise of delegated legislative authority if it

regulates a matter directly within the class of powers and

duties identified in the statute to be implemented."

Consolidated-Tomoka Land Co. , 717 So. 2d at 80.

44. The language of Subsection 120.52(8), Florida

Statutes, was amended to read:

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties , nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute. (Emphasis

supplied.)

§ 120.52(8), Fla. Stat. (2005). See Board of Trustees of the

Internal Improvement Trust Fund v. Day Cruise Association, Inc. ,

794 So. 2d 696 (Fla. 1st DCA 2001); See also Southwest Florida

Water Management District v. Save the Manatee Club, Inc. ,

773 So. 2d 594 (Fla. 1st DCA 2000).

45. The test for invalid delegation of legislative

authority is whether a rule gives effect to a "specific law to

be implemented" and whether the rule implements or interprets

"specific powers and duties." Day Cruise , 794 So. 2d at 704.

46. The court in Day Cruise discussed the importance of

the 1999 Administrative Procedure Act (the "Act") amendments as

follows:

Under the 1996 and 1999 amendments to the

APA, it is now clear, agencies have

rulemaking authority only where the

Legislature has enacted a specific statute,

and authorized the agency to implement it,

and then only if the (proposed) rule

implements or interprets specific powers or

duties, as opposed to improvising in an area

that can be said to fall only generally

within some class of powers or duties the

Legislature has conferred on the agency.

Day Cruise , 794 So. 2d at 700. See generally Save the Manatee

Club, Inc. , 773 So. 2d at 598-599 (interpreting Subsection

120.52(8), Florida Statutes (1999), as removing an agency of the

authority to adopt a rule merely because it is with the agency's

class of powers and duties).

47. Petitioner contends proposed rule 65A-1.900(2)(a)

enlarges, modifies, or contravenes Subsection 414.41(1), Florida

Statutes. However, nothing in Subsection 414.41(1), Florida

Statutes, forbids or prohibits Respondent from limiting the

composition of the group of persons responsible for repayment of

cash assistance overpayment debts to adults. There is also

nothing in Subsection 414.41(1), Florida Statutes, that forbids

or prohibits Respondent from removing minor children of the cash

assistance group from the group of persons who will continue to

be responsible for repayment of cash assistance overpayment

debts. Therefore, changing the definition of "persons

responsible" by limiting liability for repayment of cash

assistance overpayment debts to "adults" does not contravene

Subsection 414.41(1), Florida Statutes.

48. Changing the composition of the group of persons who

will remain liable and responsible for repayment of cash

assistance overpayment debts was the result of a closer

examination of Subsection 414.41(1), Florida Statutes.

Specifically, Subsection 414.41(1), Florida Statutes, clearly

makes any person who " received " public assistance under chapter

414 to which they are not entitled liable for repayment of cash

assistance overpayment debts.

49. However, prior to September 2007, Subsection

414.41(1), Florida Statutes, was interpreted to mean that minor

children could and would also be made responsible for repayment

of cash assistance overpayment debts because they were

considered to be the recipient of the cash assistance benefit.

This interpretation was unduly harsh and punished children for

acts of their parent(s) and/or caregivers. Under this

interpretation, minor children are included as "persons

responsible" for repayment based on what could appear to be

their having directly benefited from the cash assistance

payment.

50. Removing minor children of cash assistance groups from

the group of "persons responsible" for repayment of cash

assistance overpayment debts does not enlarge or modify

Subsection 414.41(1), Florida Statutes. On its face, Subsection

414.41.(1), Florida Statutes, only makes liable those persons

who "received" cash assistance benefits they are not entitled to

receive. Minor children do not apply for cash assistance

benefits. Minor children do not receive cash assistance

benefits in the same sense as a payee receives cash assistance

grants. Cash assistance benefits are not given in-hand to minor

children. Rather, cash assistance benefits are issued to and

received by adults. Therefore, minor children, literally, do

not meet the definition of "participant" set forth in Subsection

414.0252(9), Florida Statutes. Accordingly, the removal of

minor children from the group of "persons responsible" for

repayment of cash assistance overpayment debts does not

constitute an unlawful enlargement or modification of Subsection

414.41(1), Florida Statutes.

51. Offsetting cash assistance benefits to collect

outstanding cash assistance overpayment debts is not an unlawful

enlargement, modification, or contravention of Subsection

414.41(1), Florida Statutes, as set forth in Florida

Administrative Code Rule 65A-1.900 and proposed rule

65A-1.900(2)(a). In fact, offsetting cash assistance benefits

as a means of collecting cash assistance overpayment debts is

fully consistent with Subsection 414.41(1), Florida Statutes.

52. Specifically, Subsection 414.41(1), Florida Statutes,

clearly establishes that the Legislature intended for cash

assistance overpayment debts to be recovered by the offsetting

of benefits. Subsection 414.41(1), Florida Statutes, reads, in

its pertinent part, ". . . the department shall take all

necessary steps to recover the overpayment . . . ," and further,

". . . [t]he department . . . shall establish a policy and cost-

effective rules to be used in the computation and recovery of

such overpayments."

53. The use of a policy of offsetting current cash

assistance benefits by the amount of an outstanding cash

assistance overpayment debt is a cost-effective method of

collecting cash assistance overpayment debts. The cost-

effectiveness of offsetting benefits as a collections tool is

apparent from the Legislature's enactment of Subsection

414.41(1), Florida Statutes, which clearly gives Respondent the

authority to use the Federal Income Tax Refund Offset Program to

collect cash assistance overpayment debts. Therefore, Rule

65A-1.900 and proposed rule 65A-1.900(2)(a) are not only within

the scope of and consistent with what the Legislature intended

by enacting Sections 414.41 and 414.45, Florida Statutes, but

Rule 65A-1.900 and proposed rule 65A-1.900 are also not

arbitrary or capricious, or otherwise an invalid exercise of

delegated legislative authority by Respondent.

54. Petitioner contends that offsetting and keeping cash

assistance benefits collected from her to repay the outstanding

cash assistance overpayment debt owed by and established against

Jevon Evens' mother is wrong. Petitioner's contention is based

on her erroneous interpretation of Subsection 414.41(1), Florida

Statutes. Garrison Corporation v. Department of Health and

Rehabilitative Services , 662, So. 2d 1374 (Fla. 1st DCA 1995);

Debose v. Department of Health and Rehabilitative Services , 598

So. 2d 195 (Fla. 3rd DCA 1992); Gonzalez v. Department of Health

and Rehabilitative Services , 558 So. 2d 32 (Fla. 1st DCA 1989).

55. In addition, Respondent has stated it will change

proposed rule 65A-1.900(2)(a) by removing the passage, ". . .

[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. . . ." Therefore, it is not

necessary for this tribunal to determine at this time whether

keeping cash assistance benefits collected to repay cash

assistance overpayment debts pursuant to existing Rule

65A-1.900(2)(a) is correct or not. See , e.g. , Osceola Fish

Farmers Association v. Division of Administrative Hearings ,

830 So. 2d 932 (Fla. 4th DCA 2002).

56. Moreover, deciding if it is, or would be, wrong for

Respondent to keep the monitary value of all collections from

Petitioner's cash assistance benefits from June 2005 through

September 2008, is not properly before this tribunal.

Specifically, jurisdiction of this proceeding was invoked

pursuant to Subsection 120.56(2)(a), Florida Statutes. This

statute does not empower DOAH to determine or adjudicate whether

Respondent's offsetting and keeping cash assistance benefit to

repay the outstanding cash assistance overpayment debt owed by

and established against Jevon Evans' mother is wrong.

Therefore, this aspect of the claim or contention is not

properly before this tribunal. Claims of this nature can and

must be adjudicated before the Department of Children and

Families pursuant to Florida Administrative Code Rule 65-1.056.

ORDER

Based on the foregoing findings of fact and conclusions of

law, it is

ORDERED that (1) Petitioner's Motion for Summary Final

Order is Denied, (2) Respondent's Motion for Final Summary Order

is Granted, and (3) the Petition to Determine Invalidity of

Proposed Rule 65A-1.900(2)(a) is dismissed.

DONE AND ORDERED this 4th day of November, 2008, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of November, 2008.

COPIES FURNISHED :

Valory Greenfield, Esquire

Florida Legal Services, Inc.

3000 Biscayne Boulevard, Suite 450

Miami, Florida 33137

Cindy Huddleston, Esquire

Florida Legal Services, Inc.

2425 Torreya Drive

Tallahassee, Florida 32303

Heather Tagert, Esquire

Bay Area Legal Services, Inc.

829 West Martin Luther King Boulevard

Suite 200

Tampa, Florida 33603

John J. Copelan, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Herschel C. Minnis, Esquire

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204N

Tallahassee, Florida 32399-0700

Scott Boyd, General Counsel

Administrative Procedures Committee, 1100

Holland Building, Room 120

Tallahassee, Florida 32399

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.