00-004700 Eric Aach vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, March 27, 2001.

Summary: Petitioner is eligible for developmental services due to his autism; funding for urgently needed services are not available due to policy directive and lack of funding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIC AACH, )

)

Petitioner, )

)

vs. ) Case No. 00-4700

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings,

in the above-styled case on February 2, 2001, by video

conference between Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner : Lori Aach, parent of Petitioner

5777 Craindale Drive

Orlando, Florida 32819

For Respondent : Eric Dunlap, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801-1782

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to services from the

Developmental Disabilities Program.

Whether adequate funds are available to provide these

services given Respondent's existing appropriations.

PRELIMINARY STATEMENT

Petitioner applied for developmental services in July 2000.

By letter dated September 29, 2000, Petitioner's application for

services was denied. Petitioner filed a request for a hearing

to challenge the denial of services on October 20, 2000. This

matter was referred to the Division of Administrative Hearings

for adjudication on November 17, 2000, and was set for hearing.

Following a continuance granted at the request of Respondent, a

formal hearing was held on February 2, 2001.

At the hearing, Petitioner's mother, Lori Aach, testified

on behalf of Petitioner. Rene Johnson, Senior Human Services

Counselor, was also called as a witness, and two exhibits were

admitted into evidence. One exhibit was admitted in evidence on

behalf of Respondent. At the behest of the Administrative Law

Judge (ALJ), three additional exhibits were admitted.

The hearing was recorded but not transcribed. Petitioner

has not filed post-hearing submittals as of the date of this

Order. Respondent filed its Proposed Recommended Order on

February 6, 2001.

FINDINGS OF FACT

1. The Petitioner is a seven-year-old boy who has a

diagnosis of autism. In addition, he has been diagnosed with

mild mental retardation and severe intractable seizure disorder.

2. Approximately on July 7, 2000, Petitioner's parents

requested services for toilet training, incontinent supplies,

behavioral training, respite services, speech therapy, and

occupation and physical assessments. Upon receipt of the

application and review of relevant documentation, Petitioner was

determined to be eligible for developmental services under the

provisions of Chapter 393, Florida Statutes (2000).

3. By letter dated September 29, 2000, Respondent advised

Petitioner that his request for services had been denied. The

reason identified for the denial was as follows: "There are not

adequate funds available for the service(s), given the

Department's existing appropriations." Petitioner requested a

hearing to challenge Respondent's denial of services.

4. At the hearing, it was established that, although

Petitioner is eligible for services, the Florida Legislature

appropriated additional funding only to be used to provide

needed services for individuals who were clients of Respondent

and were waiting for services on July 1, 1999.

5. In order to comply with the mandate of the Legislature,

Respondent issued Policy Directive PD number 00-07, dated

August 30, 2000, which authorizes services be provided only to

individuals who were clients on July 1, 1999, and were awaiting

services. Respondent will not provide services to individuals

who become clients after July 1, 1999, until approximately

June 30, 2001, unless the new clients are determined to be in

immediate crisis or danger.

6. No evidence was presented to demonstrate that

Petitioner was in immediate crisis or danger. However, the need

for these services is urgent.

7. Petitioner's mother made a telephone call to the

Respondent approximately three years ago inquiring about

services available for her son. Following that phone call,

Petitioner did not submit an application for services and was

never denied services or eligibility. The only application for

services submitted by Petitioner was in July of 2000 and

eligibility was approved. Petitioner cannot be considered as a

client of Respondent until after July 1, 1999.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter pursuant to

Sections 120.569, 120.57(1), and 393.065, Florida Statutes.

9. Respondent is the agency of state government charged

with providing services for the developmentally disabled who

qualify. Section 393.065, Florida Statutes.

10. Petitioner has the burden of proof to demonstrate that

he is eligible for services under the Developmental Disabilities

Program of Respondent and that there were adequate funds

available and appropriated by the legislature to provide the

requested services. Florida Department of Transportation v.

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

11. Petitioner has demonstrated that he is eligible for

services under the program. However, he was not able to

demonstrate that adequate funds for the services were available,

given the Respondent's existing appropriations.

12. Respondent may not expend funds from its budget unless

there has been the requisite appropriation. Funding is only

available for individuals who were clients prior to July 1,

1999. To date, the Legislature has not funded services for

those individuals, like Petitioner, that became clients after

July 1, 1999, even though those services are urgently needed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner's application for services be

approved and Petitioner be placed on the waiting list for

services when new funding becomes available.

DONE AND ENTERED this 27th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of March, 2001.

COPIES FURNISHED :

Eric Aach

c/o Lori Aach

5777 Craindale Drive

Orlando, Florida 32819

Eric Dunlap, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801-1782

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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.