09-003546 Hillsborough County vs. Department Of Juvenile Justice Status: Closed Recommended Order on Friday, February 26, 2010.

Summary: Petition should be dismissed, where Respondent simply followed its own unchallenged rule in calculating Petitioner's costs for predisposition secure juvenile detention care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLSBOROUGH COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 09-3546

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 17, 2009, an administrative hearing in this

case was held in Tampa, Florida, before Lawrence P. Stevenson,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen M. Todd, Esquire

Jan McDonald, Esquire

Hillsborough County Attorney's Office

Post Office Box 1110

Tampa, Florida 33601

For Respondent: Brian Berkowitz, Esquire

Department of Juvenile Justice

Knight Building, Room 312V

2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent assessed

Petitioner for secure juvenile detention care for the 2007-2008

fiscal year in a manner that implements Section 985.686, Florida

Statutes, 1 and Florida Administrative Code Chapter 63G-1.

PRELIMINARY STATEMENT

By way of a petition styled "Initiation of Proceedings

Pursuant to 28-106.201, F.A.C." (Petition), Petitioner

Hillsborough County seeks to contest alleged per diem rate

increases and increased assessments imposed by Respondent

Department of Juvenile Justice (the Department) pursuant to

Section 985.686, Florida Statutes, and Florida Administrative

Code Chapter 63G-1.

The Petition alleges that the Department, in a letter dated

June 5, 2009, unilaterally and without authority in statute or

rule increased the counties' per diem rate for detention care

from $212 per day to $237 per day. Hillsborough County alleges

that the injustice of this arbitrary and capricious action is

compounded by the fact that the state's per diem rate for

virtually the same services has decreased.

At the hearing, Hillsborough County raised the additional

issue of whether the Department properly used the final

reconciliation from fiscal year 2005-2006 as the basis for its

estimate of utilization days at the outset of the 2007-2008

fiscal year.

The hearing was scheduled for and held on September 17,

2009. At the hearing, Hillsborough County presented the

testimony of Beth Davis, the Department's Director of Program

Accountability, and of Jan MacLeod, Hillsborough County's

criminal justice liaison. Hillsborough County's Exhibits P-1

through P-10 were admitted into evidence. The Department called

Beth Davis as its witness. The Department's Exhibits R-1

through R-5 were admitted into evidence.

The one-volume Transcript of the hearing was filed at the

Division of Administrative Hearings on November 2, 2009. By

order dated November 24, 2009, the Department's unopposed motion

to extend the time for filing proposed recommended orders was

granted, and the parties were given until November 25, 2009, to

file proposed recommended orders. The parties timely filed

their Proposed Recommended Orders on November 25, 2009.

FINDINGS OF FACT

1. The Department is the state agency responsible for

administering the cost-sharing requirements of Section 985.686,

Florida Statutes, regarding detention care provided for

juveniles. Hillsborough County is not a "fiscally constrained

county" as that term is defined in Section 985.686(2)(b),

Florida Statutes. For the balance of this Recommended Order,

the term "county" or "counties" will refer to counties that are

not fiscally constrained.

2. Section 985.686(1), Florida Statutes, provides that the

"state and counties have a joint obligation, as provided in this

section, to contribute to the financial support of the detention

care provided for juveniles."

3. Section 985.686(2)(a), Florida Statutes, defines

"detention care," for purposes of this section, to mean "secure

detention." 2 / Section 985.03(18)(a), Florida Statutes, defines

"secure detention" to mean "temporary custody of the child while

the child is under the physical restriction of a detention

center or facility pending adjudication, disposition, or

placement."

4. Section 985.686(3), Florida Statutes, provides in

relevant part that each county "shall pay the costs of providing

detention care . . . for juveniles for the period of time prior

to final court disposition. The Department shall develop an

accounts payable system to allocate costs that are payable by

the counties."

5. In summary, Section 985.686, Florida Statutes, requires

each non-fiscally restrained county to pay the costs associated

with secure detention during predisposition care, and the

Department to pay the costs of secure detention during post-

disposition care. 3 /

6. Each year, the Legislature determines the total amount

of the appropriation for juvenile detention care and assigns a

portion of the total to be paid by the counties through a trust

fund, and a portion to be paid by the Department through general

revenue. Section 985.686(5), Florida Statutes, sets forth the

general mechanism for this allocation process:

Each county shall incorporate into its

annual county budget sufficient funds to pay

its costs of detention care for juveniles

who reside in that county for the period of

time prior to final court disposition. This

amount shall be based upon the prior use of

secure detention for juveniles who are

residents of that county, as calculated by

the department. Each county shall pay the

estimated costs at the beginning of each

month. Any difference between the estimated

costs and actual costs shall be reconciled

at the end of the state fiscal year. 4 /

7. In 2007, Hillsborough County filed with the Department

a petition that would be referred to the Division of

Administrative Hearings and assigned Case No. 07-4398. In that

petition, Hillsborough County complained that the Department was

improperly calculating the counties' share of secure detention

costs. The Department was arriving at a per diem rate by

dividing the total detention budget (both the state's general

revenue share and the counties' trust fund share) by the total

number of predisposition and post-disposition days. Thus, the

calculated per diem rate for the Department and the counties was

the same. Hillsborough County argued that this methodology was

inconsistent with both Section 985.686, Florida Statutes, and

Florida Administrative Code Chapter 63G-1, because those

provisions require that only the counties' share of the budget

and detention days be used in calculating the counties' costs.

8. Administrative Law Judge Daniel Manry agreed with

Hillsborough County that the Department's methodology conflicted

with Florida Administrative Code Rule 63G-1.004, and recommended

that the Department calculate the costs of predisposition care

in Hillsborough County using the methodology prescribed by rule.

Hillsborough County v. Department of Juvenile Justice , Case No.

07-4398 (DOAH March 7, 2008). In a Final Order entered on

June 4, 2008, the Department adopted Judge Manry's

recommendation in all significant respects.

9. In his Recommended Order, Judge Manry compared the

actual calculation performed by the Department, which employed

the total appropriation of $125,327,667.00, to the calculation

required by Florida Administrative Code Rule 63G-1.004, which

would have employed the amount appropriated for the counties'

trust fund, $101,628,064.00. Hillsborough County was allocated

47,714 utilization days out of a total of 579,409 utilization

days allocated to all counties, or 8.234 percent of the total.

Multiplying the counties' trust fund total by the percentage of

days allocated to Hillsborough County, in accordance with the

rule, would have derived a gross assessment of $8,368,054.79.

10. The Department deviated from the rule by defining the

cost of detention to include the total appropriation, including

the amount allocable to fiscally constrained counties and to the

Department for post-disposition detention care, and dividing

that number by the total number of utilization days

(predisposition and post-disposition) to derive a per diem rate

of $176.70 for all detention care. The Department then

multiplied the per diem rate times the 47,714 days allocated to

Hillsborough County to derive a gross assessment of

$8,400,165.73 for Hillsborough County.

11. Judge Manry recommended that the Department follow the

rule and impose the "authorized" gross assessment of

$8,368,054.79, rather than the higher number derived by

deviating from the rule. The Department accepted Judge Manry's

recommendation in its Final Order, albeit with a correction in

rounding method that resulted in an estimated assessment of

$8,369,013.00 for the 2007-2008 fiscal year.

12. In light of the decision in Case No. 07-4398, 5 / the

Department followed the procedure set forth in Florida

Administrative Code Chapter 63G-1 to arrive at a final

reconciled assessment for the 2007-2008 fiscal year of

$7,971,227.00, issued on January 30, 2009. Because Hillsborough

County had paid estimated assessments of $8,431,267.00, the

county was due a credit of $460,039.83. 6 / The Department ceased

the calculation of a per diem rate and confined its calculation

to the predisposition costs and predisposition utilization days,

i.e. , those costs and days attributable solely to the counties.

13. In the instant case, Hillsborough County argues that

the Department should not be allowed to adjust the per diem rate

that it established at the outset of the 2007-2008 fiscal year.

The per diem rate of $176.70 should be applied to the actual

number of predisposition days attributed to Hillsborough County,

37,528 as of January 30, 2009, for a final assessment of

$6,631,197.60. 7 / In contrast, Hillsborough County's actual year

end cost of $7,971,227.00, divided by 37,528 days, would derive

a per diem rate of $212.41. Hillsborough County argues that

there is no merit or equity in this sharp rise in its per diem

rate, despite its having more than 13,000 fewer actual

utilization days than was estimated at the beginning of the

year. Hillsborough County also argues that there is no merit in

the drastically reduced per diem rate enjoyed by the Department

due to its mid-year adjustment in the method of calculating

costs.

14. Hillsborough County's argument ignores the fact that

the Department's mid-year adjustment in methodology was prompted

by Hillsborough County's own successful attack on the

methodology that derived the $176.70 per diem in the first

place. As Hillsborough County itself successfully argued, the

$176.70 per diem rate was in derogation of Florida

Administrative Code Rule 63G-1.004, because it included costs

not attributable to the counties. Hillsborough County could

have had no reasonable expectation that the Department would

continue to apply that rate after the result of DOAH Case No.

07-4398.

15. Hillsborough County successfully argued that the

counties' expenses should be calculated separately from the

Department's expenses. It should therefore come as no surprise

to the county that a separate calculation will derive different

per diem rates for the counties and the Department.

16. More importantly, the "per diem rate" is not the

driver of the formula for calculating the costs of either the

counties or the Department. Beth Davis, the Department's

director of program accountability, testified that "the per diem

rate is simply a mathematical calculation of estimated and/or

final costs divided by utilization." The $176.70 per diem rate

was an estimate calculated by the Department prior to the 2007-

2008 fiscal year, and would always have been subject to change

once the actual utilization data and costs were known at the end

of the year. When the actual number of predisposition days

turns out to be smaller than the number estimated at the start

of the fiscal year, the actual per diem rate will naturally be

higher than the estimated per diem rate, absent a proportionate

reduction in the legislatively appropriated costs.

17. Hillsborough County did not dispute the actual

utilization and cost data employed by the Department, and

pointed to no rule or statute binding the Department to its

first estimate of the per diem rate. In fact, the evidence

established that the Department's final calculation was

performed in accordance with Florida Administrative Code Chapter

63G-1 and in conformance to the Final Order in DOAH Case No. 07-

4398. 8 /

18. At the hearing, Hillsborough County also contested the

Department's use of the final reconciliation from fiscal year

2005-2006 as the basis for its estimate of utilization days at

the outset of the 2007-2008 fiscal year. Hillsborough County

argues that Florida Administrative Code Rule 63G-1.004(1)

requires that each county's share of predisposition detention

costs be "based upon usage during the previous fiscal year. . ."

Thus, the estimate for the 2007-2008 fiscal year should have

been based on usage from the 2006-2007 fiscal year, not that for

the 2005-2006 fiscal year.

19. The Department explained that the Legislature meets

and passes the budget for the next fiscal year in the spring,

well before the end of the current fiscal year. The Department,

therefore, is required to make its estimate of utilization days

for the next fiscal year prior to the conclusion of the current

fiscal year. The calculation for the estimated costs to the

counties for fiscal year 2007-2008 was made early in 2007, while

the fiscal year 2006-2007 was still underway. The most recent

fiscal year with complete and reconciled data was the 2005-2006

fiscal year. The Department used the data from the 2005-2006

fiscal year to estimate the utilization days for the 2007-2008

fiscal year. At the time of the estimate, 2005-2006 was "the

previous fiscal year." Under the circumstances, the

Department's use of data from the 2005-2006 fiscal year did not

violate Florida Administrative Code Rule 63G-1.004(1).

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

21. The burden of proof is on the party asserting the

affirmative of an issue. Florida Department of Transportation

v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981);

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (Fla. 1st DCA 1977). The proposed agency action is

to assess Hillsborough County for predisposition care within its

jurisdiction. The Department asserts the affirmative of that

issue and must prove by a preponderance of the evidence that the

proposed assessment should become final agency action.

22. The record evidence established that, in light of the

decision in DOAH Case No. 07-4398, the Department ceased its

practice of deviating from the requirements of Florida

Administrative Code Chapter 63G-1 by lumping together the

counties' and the Department's utilization days and costs in the

calculation of a single "per diem rate" for all providers of

juvenile detention care.

23. In response to DOAH Case No. 07-4398, the Department

ceased to perform even the mathematical calculation of a per

diem rate. The Department confined its calculation to the

predisposition costs and predisposition utilization days, i.e. ,

those costs and days attributable solely to the counties, and

based the final calculation of Hillsborough County's costs on

the county's percentage of the total predisposition utilization

days for all counties.

24. The Department did no more and no less than to follow

its own rules. The Department has met its burden of proof and

demonstrated through the record evidence that the final

reconciled costs for Hillsborough County's predisposition

juvenile detention for the 2007-2008 fiscal year were assessed

in accordance with Section 985.686, Florida Statutes, and

Florida Administrative Code Chapter 63G-1.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Juvenile Justice enter a

final order denying Hillsborough County's Petition, and making

its proposed assessment final.

DONE AND ENTERED this 26th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 26th day of February, 2010.

ENDNOTES

1 / Unless otherwise noted, all statutory references are to the

2009 edition of the Florida Statutes. Section 985.686, Florida

Statutes, has not been amended in a manner of significance to

this proceeding since its enactment in 2004. It was originally

numbered Section 985.2155, but was renumbered in 2006. See

§ 95, Chapter 2006-120, Laws of Florida.

2 / The term "detention care" is thus narrower for purposes of

Section 985.686 than it is elsewhere in Chapter 985, Florida

Statutes. Section 985.03, Florida Statutes, which sets forth

the definitions of terms for purposes of Chapter 985, defines

the term as follows:

(18) "Detention care" means the temporary

care of a child in secure, nonsecure, or

home detention, pending a court adjudication

or disposition or execution of a court

order. There are three types of detention

care, as follows:

(a) "Secure detention" means temporary

custody of the child while the child is

under the physical restriction of a

detention center or facility pending

adjudication, disposition, or placement.

(b) "Non-secure detention" means temporary

custody of the child while the child is in a

residential home in the community in a

physically nonrestrictive environment under

the supervision of the Department of

Juvenile Justice pending adjudication,

disposition, or placement.

(c) "Home detention" means temporary

custody of the child while the child is

released to the custody of the parent,

guardian, or custodian in a physically

nonrestrictive environment under the

supervision of the department staff pending

adjudication, disposition, or placement.

3 / The definition of "detention center or facility" at Section

985.03(19), Florida Statutes, provides that such a facility may

be used only pending court adjudication or pending the

disposition or execution of a court order. A facility used for

the commitment of adjudicated delinquents cannot be considered a

"detention center or facility." Thus, the post-disposition care

provided by the Department under Section 985.686, Florida

Statutes, is limited to care in a "detention center or facility"

after adjudication or disposition but prior to the final

residential placement ordered by the court. See Section

985.433, Florida Statutes, for the detailed procedures regarding

disposition hearings in delinquency cases. See also

Hillsborough County v. Department of Juvenile Justice , Case No.

07-4398 (DOAH March 7, 2008), at ¶¶ 2-8 for a detailed

discussion of the statutory distinction between predisposition

and post-disposition care.

4 / Florida Administrative Code Rule 63G-1.004, adopted on

July 16, 2006, provides the detailed method by which the county

is to estimate costs:

(1) Each county’s share of predisposition

detention costs is based upon usage during

the previous fiscal year, with the first

year’s estimates based upon usage during

fiscal year 2004-05. Estimates will be

calculated as follows:

(a) All youth served in secure detention

during the relevant fiscal year as reflected

in the Juvenile Justice Information System

will be identified;

(b) Each placement record will be matched

to the appropriate referral based upon the

referral identification code. Placements

associated with administrative handling,

such as pick-up orders and violations of

probation, will be matched to a disposition

date for their corresponding statutory

charge;

(c) The number of service days in secure

detention is computed by including all days

up to and including the date of final

disposition for the subject referral.

(2) Each county will receive a percentage

computed by dividing the number of days used

during the previous year by the total number

of days used by all counties. The resulting

percentage, when multiplied by the cost of

detention care as fixed by the legislature,

constitutes the county’s estimated annual

cost.

(3) The estimated cost will be billed to

the counties in monthly installments.

(4) Invoices are to be mailed on the first

day of the month prior to the service

period, so that an invoice for the August

service period will be mailed on July 1.

Florida Administrative Code Rule 63G-1.008 provides the

method by which the Department is to reconcile the estimated

payments with the actual costs of predisposition secure

detention:

(1) On or before January 31 of each year,

the Department shall provide a

reconciliation statement to each paying

county. The statement shall reflect the

difference between the estimated costs paid

by the county during the past fiscal year

and the actual cost of the county’s usage

during that period.

(2) If a county’s actual usage is found to

have exceeded the amount paid during the

fiscal year, the county will be invoiced for

the excess usage. The invoice will

accompany the reconciliation statement, and

shall be payable on or before April 1.

(3) If a county’s actual usage was less

than the estimated amounts paid during the

fiscal year, the county will be credited for

its excess payments. Credit will be

reflected in the April billing, which is

mailed on March 1, and will carry forward as

necessary.

5 / Judge Manry also authored the Recommended Order in a

companion case, Hillsborough County v. Department of Juvenile

Justice , Case No. 07-4432 (DOAH March 10, 2008), that dealt with

the allocation of utilization days. That issue is not directly

germane to this Recommended Order.

6 / The Department issued at least two subsequent "adjusted"

reconciliation statements reducing Hillsborough County's credit.

In Hillsborough County, Florida v. Department of Juvenile

Justice , Case No. 09-4340 (DOAH December 18, 2009),

Administrative Law Judge William Quattlebaum agreed with

Hillsborough County's position and held that the January 30,

2009, assessment was the only annual reconciliation statement

authorized by statute or rule. In a Final Order issued on

January 20, 2010, the Department adopted Judge Quattlebaum's

Recommended Order and ordered the subsequent reconciliation

statements "disregarded and expunged."

7 / In its own calculations, Hillsborough County employed the

lesser number of 34,163 days found in the Department's final

adjusted reconciliation of June 4, 2009. However, the

Department has since "disregarded and expunged" all

reconciliation statements subsequent to January 30, 2009, in

respect of Hillsborough County's successful challenge. See

endnote 6, supra .

8 / Hillsborough County also contended that the Department's

current methodology requires the counties to bear a

disproportionate share of the costs for secure juvenile

detention, because the counties' per diem rate for

predisposition detention is much greater than the Department's

per diem rate for post-disposition detention, even though the

actual costs of a day of detention are the same whether it is

predisposition or post-disposition. As found above, the "per

diem rate" is merely the result of a mathematical calculation;

it is not a number that drives the calculation. The

Department's methodology is consistent with the relevant statute

and rules. Hillsborough County's equity arguments are more

properly directed to the Legislature than to this tribunal.

COPIES FURNISHED :

Stephen M. Todd, Esquire

Jan McDonald, Esquire

Hillsborough County Attorney's Office

Post Office Box 1110

Tampa, Florida 33601

Brian Berkowitz, Esquire

Department of Juvenile Justice

Knight Building, Room 312V

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Frank Peterman, Jr., Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Jennifer Parker, General Counsel

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.