01-002451 Douglas Gunther vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, January 7, 2002.

Summary: Respondent failed to show no funds available and that there was a more feasible, cost-effective means of providing nursing services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS GUNTHER, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2451

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing

before P. Michael Ruff, duly - designated Administrative Law Judge

of the Division of Administrative Hearings, on October 3, 2001,

in Daytona Beach, Florida. The appearances were as follows:

APPEAR ANCES

For Petitioner: Gordon B. Scott, Esquire

Advocacy Center for Persons with

Disabilities, Inc.

2671 Executive Center Circle, West

Tallahassee, Florida 32301 - 5092

For Respondent: Cathy McAllister, Esquire

Departmen t of Children and

Family Services

210 North Palmetto Avenue

Suite 412

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUES

This issues to be resolved in this proceeding concern

whether the Petitioner's funding for skilled nursing ser vices

should continue to be provided in the manner and from funding

sources presently operative, or whether there is a more cost -

effective means of addressing his need for skilled nursing

services; and whether there are sufficient funds for use by the

deve lopmental disability program for his skilled nursing

services.

PRELIMINARY STATEMENT

This dispute relates to an authorization by the Legislature

for the Department of Children and Family Services (Department)

to implement programs to prevent, correct, cu re, or reduce the

severity of developmental disabilities. The Department is thus

responsible for administering the developmental disabilities

Home and Community - Based Services Waiver (HCBS)(Waiver). The

HCBS or Waiver is a Medicaid program that pays for the services

for developmentally disabled persons with a combination of

federal and state funds. The Petitioner is a Medicaid recipient

and is developmentally disabled and eligible for the HCBS

Waiver. Although skilled nursing services are covered and

pr ovided for under this waiver, the Petitioner's nursing

services are instead paid from general revenue because there are

no HCBS Waiver - fee accepting, skilled nursing providers in the

Daytona Beach area who can provide that service to him under the

fee reim bursement protocol required by the HCBS Waiver program.

The Department, by letter of May 15, 2001, advised the

Petitioner that his skilled nursing services would be terminated

because (1) "there is a more cost - effective means of addressing

the situation t hat requires the service"; and (2) "there are

insufficient funds with which to continue funding the service."

The Petitioner timely contested that initial decision and this

formal proceeding ensued.

The cause was ultimately assigned to the undersigned

Ad ministrative Law Judge and came on for hearing as noticed. At

the hearing, the Respondent, the Department, presented seven

exhibits and the testimony of two witnesses: Edwin B.

DeBardeleben, Program Administrator with the Developmental

Disabilities Progra m Office in District 12; and Casey Flug,

Program Specialist with the Developmental Disabilities Program

Office in District 12. Official recognition was taken of

Section 393.066(4), Florida Statutes. The Petitioner presented

the testimony of Douglas Gunth er, the Petitioner, and Dana

Sanders, his support coordinator. Subsequent to the hearing,

the parties availed themselves of the right to submit Proposed

Recommended Orders which have been considered in the rendition

of this Recommended Order.

FINDINGS OF FACT

1. The parties essentially agree on all relevant facts

involving the Petitioner's eligibility for, and receipt of,

developmental disability program services. Neither party

disputes that the Petitioner is currently eligible and is

receiving service s under the HCBS Waiver, because of the primary

diagnosis of spina bifuda, and but for the current scarcity of

HCBS Waiver (Medicaid Waiver) (Med Waiver) funding or fee -

accepting skilled nursing service providers, this dispute would

not exist.

2. The Fl orida Medicaid Waiver program is a waiver by the

federal government of regular Medicaid rules to service

individuals in community - based settings as an alternative to

institutional placement in intermediate care facilities for the

developmentally disabled. The Legislature in the Appropriations

Act for the 2001 - 2002 fiscal year passed "proviso language"

which limited spending on the developmentally disabled

recipients to spending provided by a "spending plan" enacted by

the Department in which the districts of the Department are to

provide services pursuant to an established set of priorities

and prohibitions.

3. The Department enacted a spending plan which states in

pertinent part, "Effective immediately, all covered waiver

services must be provided throu gh waiver funding. The purchase

of wavier billable services through the IFS budget category

[general revenue] is no longer allowable unless the central

office has approved an exception." Thus, funding for the HCBS

Waiver is intended to be in accordance w ith the spending plan

developed by the Department, which was required to be submitted

to the Governor for approval by November 1, 2001. Pursuant to

this plan, the Department prohibits the use of general revenue

funds to pay for services provided with the HCBS Waiver program

unless an exception is authorized by the central office of the

Department.

4. The Petitioner, Douglas Gunther, is a waiver program

participant and has been since April 2000. He has been

receiving skilled nursing services funded by th e Med - Waiver

program and funded partially through Individual and Family

Support (IFS), a general revenue budget category, since April

2000.

5. The Petitioner's skilled nursing services are covered

"waiver services," all of which would be paid by the Med - Waiver

program if provided by an approved, Med - Waiver provider (nurse),

instead of a non - waiver provider (a nurse who has not entered

into an agreement to accept the Med - Waiver fee schedule). A

request for an exception to continue the funding of some skil led

nursing services through general revenue IFS budget funds, was

made by District 12, but was not granted by the Department's

central program office. The District 12 Developmental

Disabilities Office is prohibited by the state - wide spending

plan from co ntinuing the purchase of service, such as the

Petitioner needs, with the general revenue IFS budget funds for

all services normally covered by the Med - Waiver program, because

of a directive to "maximize federal funding." See Department's

Exhibit 2 in evid ence. According to the Department, the funding

of such skilled nursing services through the use of any general

revenue IFS budget funds would require an exception to the

spending plan provisions to be granted by the central program

office of the Departmen t which has not as yet been accomplished.

No other source of funding, such as "spina bifuda fund" monies

were shown to be currently available to fund skilled nursing

services for the Petitioner other than the Med - Waiver funding

program, or if the Petition er was in an institutional facility

(more expensive) then state Medicaid funds could be provided.

6. Skilled nursing services are more costly when paid to a

non - waiver provider than to a Med - Waiver nursing provider

because a Med - Waiver provider must nego tiate and agree to accept

certain lower Medicaid rates in order to become a Med - Waiver

provider, contract nurse.

7. The Petitioner has a physician's prescription for

skilled nursing to be provided from one to two hours per day.

He is developmentally dis abled because of his spina bifuda

condition and arnold - chairi syndrome. He basically must use a

wheel chair for all ambulation.

8. He receives a bowel therapy program with digital

stimulation, range of motion therapy, blood pressure monitoring,

and hi s personal care needs, such as showering, dressing, and

transfer. Occasionally he receives treatment for decubitus

ulcers. The bowel program therapy requires the services of a

skilled nurse.

9. The Petitioner became eligible for the HCBS Waiver in

May 2000. Shortly thereafter, the Department agreed to continue

to pay his skilled nursing service with general revenue dollars

because there were no HCBS Waiver nursing providers enrolled in

the Daytona Beach area who could provide that service to him for

th e HCBS Waiver - approved rates.

10. The Department allowed the Petitioner one year to

transition his provision of nursing services to Med - Waiver

services. He did not do that because such an HCBS Waiver

provider could not be located in the Daytona Beach are a. When

the Petitioner failed to obtain skilled nursing services from a

Med - Waiver provider, the Department sent him a notice to

terminate the service of skilled nursing with general revenue

funds on May 15, 2001, which engendered this dispute. The

Petit ioner was notified that his skilled nursing services funded

by general revenue were to be terminated because "there was a

more cost - effective means of addressing his nursing requirements

and that there were insufficient funds with which to continue

funding that service." See Exhibit 7 in evidence.

11. The Department was aware at the time the termination

notification was sent to the Petitioner that there were no HCBS

Waiver skilled nursing providers available in the Daytona Beach

area to care for the Petit ioner's needs. Without skilled

nursing services, the Petitioner would be required to be

institutionalized, which is at a much higher cost in dollars,

aside from the human cost involved. The Department currently

has funding with which to pay for the skill ed nursing care from

its IFS funds, because it is paying for them currently, pending

resolution of the subject dispute. The spending plan referenced

above, while mandating that such not be provided from general

revenue or IFS funds but rather through HCBS Waiver funding,

allows for the central office of the Department to grant an

exception to the prohibition on the current mode of payment.

That is an alternative available which could keep the Petitioner

from more costly institutionalization while the part ies work

diligently to attempt to locate and enroll, by contract, an

appropriate nursing service provider or providers who will

accept the fee reimbursement levels mandated by the HCBS Waiver

program.

CONCLUSIONS OF LAW

12. The Division of Administra tive Hearings has

jurisdiction of parties hereto and the subject matter hereof in

accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

13. Generally the burden of proof is on the party

asserting the affirmative of the issue and who seeks to c hange

the status quo. See Balino vs. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1985). In

the instant situation, the Respondent agency has the burden, by

seeking to change the Petitioner's services and funding. It

thu s must establish that a more cost - effective means of

addressing the Petitioner's need for skilled nursing services

exists, and that sufficient funds with which to continue paying

for those services in the present mode are not available.

14. The amount, du ration, scope, and type of the skilled

nursing services required by the Petitioner was not contested in

these proceedings nor was the risk of his institutionalization

unless the nursing service is provided, in dispute. It is the

notice of service terminat ion, for the putative reason of

cost - effectiveness and lack of funding, which is at issue.

15. The Department has the responsibility for the

developmental disability program pursuant to Chapter 393,

Florida Statutes. A "developmental disability" is d efined as a

"disorder or syndrome which is attributable to . . . spina

bifuda . . . and that constitutes a substantial handicap that

can reasonably be expected to continue indefinitely." See

Section 393.063(12), Florida Statutes. There is no question

tha t Petitioner meets the definition of "developmentally

disabled" and is entitled to the protections and services

authorized by Chapter 393, Florida Statutes.

16. Terminating the provision of services is only

cost - effective if those services are availab le from another,

less expensive funding source. In the instant case, there was

no proof that there is another effective funding source because

there are no HCBS Waiver providers within a reasonable distance

of Daytona Beach which could trigger the use of the cheaper HCBS

Waiver funding. Since the Petitioner needs the services on a

daily basis and is confined to wheel chair, with attendant

transportation problems, it is not reasonable to expect him to

drive great distances beyond Volusia County, at least, to obtain

such daily services. There is no evidence in the record that

there is any out - patient service at an institution in the

immediate vicinity whereby the Petitioner could obtain such

services in a less expensive manner as through the HCBS Waiver

pro gram. Additionally, the risk of institutionalization and its

attendant higher cost was not shown to have been considered by

the Department and, at present, is the only other known means of

the Petitioner obtaining the services, if the present IFS

related funding is terminated, since there are no approved, HCBS

Waiver nursing providers in his vicinity. Accordingly, the

assertion that there is a more cost - effective means of

addressing the Petitioner's nursing service needs is not proven

in this record.

17. The Department also maintains that there are not

sufficient funds with which to continue to pay for the

Petitioner's nursing service needs in its present mode. It

bases that assertion upon a directive from its central office in

implementation of its spen ding plan to discontinue funding

services to those entitled to services which are covered under

the HCBS Waiver program and proviso language in the 2000

Appropriations Bill (Senate Bill 2000). That Appropriations

Bill language and spending plan mandate do es, however, provide

for the granting of exceptions from the Department's central

office, which has simply not been done in the Petitioner's case,

at least as yet.

18. Thus, no evidence was presented to show that

Petitioner's particular needs could be cov ered and met under the

waiver program since there are no HCBS Waiver providers in the

Daytona Beach vicinity that could serve his needs on a daily

basis. Thus, as a practical matter, that is not a less

expensive funding source or alternative means of obta ining

services at the present time.

19. Further, the Department continues to pay for his

services from a skilled nursing provider. Thus, there are funds

available to cover the Petitioner's needs; even if under the

Department's currently adopted spending plan, these funds should

not be used for this purpose, absent the granting of an

exception from the Department's central office.

20. In summary, the Respondent has not established by

preponderant evidence that a more cost - effective means of

addressing th e Petitioner's needs, in a practical sense, exists,

nor has it been established that there are insufficient funds

with which to continue to pay for the Petitioner's skilled

nursing service needs in the near future. The obvious solution

to this problem is for: (1) The Department to arrange for the

granting of an exception so that the present mode of funding can

continue; and (2) that both parties cooperate in making diligent

efforts over a reasonable time, for instance, the next year, to

attempt to find an d qualify skilled nursing service providers

under the HCBS Waiver program. It is somewhat disingenuous to

argue, as did a Department witness, that the Department has no

authority to seek to enroll HCBS Waiver program nursing

providers when, under its spen ding plan, and the Appropriations

Act enacted by the Legislature, it has an obvious mandate to

limit cost and conserve funds in every way appropriate.

RECOMMENDATION

Having considered the foregoing Findings of Fact and

Conclusions of Law, and evidence of record, the pleadings and

arguments of the parties, and the candor and demeanor of the

witnesses, it is, therefore:

RECOMMENDED that a final order be entered continuing the

present mode of funding for the Petitioner's skilled nursing

services for the imme diate future by the granting of an

exception to the spending plan mandate referenced above by the

Department. It is further

RECOMMENDED that both the Petitioner and the Department

make strenuous efforts to collaborate and locate and enroll one

or more app ropriate skilled nursing service providers under the

HCBS Waiver program within the next year from the date of the

final order.

DONE AND ENTERED this 7th day of January, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

P. MIC HAEL RUFF

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

D ivision of Administrative Hearings

this 7th day of January, 2002.

COPIES FURNISHED :

Cathy McAllister, Esquire

Department of Children and

Family Services

210 North Palmetto Avenue

Suite 412

Daytona Beach, Florida 32114

Gordon B. Scott, Esquire

Advoca cy Center for Persons with

Disabilities, Inc.

2671 Executive Center Circle, West

Tallahassee, Florida 32301 - 5092

Peggy Sanford, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Flori da 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.