02-001244 Veronica Roker vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, July 3, 2002.

Summary: Petitioner established eligibility for homemaker and equipment repair or replacement services for disabled. Respondent`s defense of lack of funds is based on Medicaid waiver program, but this case is based on general revenue fund program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERONICA ROKER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1244

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

______________________________)

RECOMMENDED ORD ER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on May 10, 2002.

APPEARANCES

For Petitioner: Veronica Roker, pro se

2282 Northwest 152nd Street

Opa Locka, Florida 33054

For Respondent: Hilda Fluriach

District 11 Legal Counsel

Department of Children and

Family Services

401 Northwest 2nd Avenue

Suite N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible for the receipt

of general revenue funds in the categories of homemaker services

and equipment re pair and replacement.

PRELIMINARY STATEMENT

By Developmental Disabilities Hearing Request filed

March 4, 2002, Respondent acknowledged that Petitioner has

requested a hearing because Respondent "has taken the following

action regarding the individual's el igibility for or receipt of

Medicaid Waiver General Revenue (check one) ["General Revenue"

is circled] benefits from [Respondent]: denial of homemaker

services, equipment repair & replacement."

The attached letter dated December 28, 2001, from

Respondent to Petitioner advises her that Respondent was denying

her request for homemaker services and equipment repair and

replacement due to the "limits of [Respondent's] appropriated

general revenue funds" and the legal prohibition against

spending funds in exce ss of appropriations. The letter relies

upon Section 393.13(2)(c) and (d), Florida Statutes, and the

State Spending Plan, as approved by the Florida Legislature.

At the hearing, Petitioner called two witnesses and offered

into evidence one exhibit: Peti tioner Exhibit 1. Respondent

called one witness and offered into evidence two exhibits:

Respondent Exhibits 1 - 2. All exhibits were admitted.

The parties did not order a transcript. Neither party

filed a proposed recommended order.

FINDINGS OF FACT

1. Petitioner was born on July 11, 1953. She suffers from

cerebral palsy. She received special education for several

years. For 11 years, she has worked two and one - half days

weekly in the Dade County State Attorney's Office, where she

mails out orders. Petitioner lives by herself in a home that

she owns.

2. Her disability interferes with walking. She entered

the hearing room by placing her outstretched arms across her

mother's shoulders, against which she placed her weight that her

immobilized legs co uld not bear. Petitioner frequently falls.

When walking without the assistance of another person or device,

Petitioner presses her arms against a wall for the necessary

support.

3. For the last 12 years, Petitioner has used a three -

wheeled scooter with a small electric motor to ambulate. This

device has proved superior to crutches, which "get away from

me." Petitioner has used the scooter to get to the physician's

office, take out the garbage from her home, and perform her work

in the State Attorney's Office.

4. Seven months ago, the scooter broke. Petitioner has

previously had the scooter repaired three times; her present

scooter is four years old. The two batteries remain good, but

the motor has become inoperative.

5. No longer able to use the sco oter at work, Petitioner

sometimes falls down as she tries to walk along the walls. When

this happens, a coworker brings her a chair so she can get back

up. Recently, during a bomb threat, a coworker had to wheel

Petitioner out of the building using an e xecutive chair.

6. In the past, Petitioner has obtained monetary support

from her mother. However, her mother has recently retired and

is now living on a pension of $800 monthly.

7. Petitioner's disabilities prevent her from performing

common housekeepi ng chores like mopping floors and putting

clothes in the washer. Able to do a limited amount of these

tasks, Petitioner has long relied on her daughter to perform the

portion of these tasks that Petitioner cannot perform. However,

her daughter is 19 year s old and has moved out to attend

college, so she is no longer available to perform these tasks.

Petitioner's 65 - year - old mother cannot do household chores due

to an arthritic shoulder.

8. More than anything else, Petitioner seeks limited

assistance to a chieve maximum independence. Unable to afford

special transportation services and without her scooter,

Petitioner now mostly watches television at home alone. During

her one - hour lunch break, Petitioner is no longer able to leave

the building.

9. Peti tioner became a client of Respondent in August

2001. As conceded by Respondent's sole witness, Petitioner is

otherwise eligible for the services that she seeks, except that

sufficient funds are not available.

10. As reflected in the Developmental Disabi lities Hearing

Request, Petitioner has sought services funded by general

revenue funds, not Medicaid Waiver funds. In support of its

denial of services based on funding limitation, Respondent has

relied upon spending - plan criteria contained in Respondent

Exhibit 1.

11. Respondent Exhibit 1 details a five - part

prioritization schedule for the provision of services. In

order, the following persons are served: persons who were

clients as of July 1, 1999; members of the class action styled

Cramer v. Bush ; persons in crisis (estimated at 10 new clients

monthly statewide); persons discharged from the Mentally

Retarded Defendant Program; and persons who have become clients

since July 1, 1999.

12. Based on the present record, Respondent's reliance

upon Respond ent Exhibit 1 is misplaced. The present record

suggests that the five - part prioritization schedule described in

the preceding paragraph is for persons seeking Medicaid Waiver

services, not General Revenue funds. For instance, immediately

following the fi fth priority, the document reveals that the

schedule is for Medicaid Waiver clients when the document

states: "In order to serve the estimated additional 6,774

individuals who are projected to want and need Waiver services

during FY 01 - 02, enrollment on t he Waiver will be phased in as

described above."

13. The testimony of Respondent's sole witness relied on

Respondent Exhibit 1, which appears on its face not to govern

Petitioner's request for services. Thus, Respondent's evidence

of insufficiency of fun ds is itself insufficient.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

15. Section 393.13(1) and (2) provides:

(1) Short title. -- This act shall be known as

"The Bill of Rights of Persons Who are

Developmentally Disabled."

(2) Legislative intent. --

(a) The Legislature finds and declares that the

system of care which the state provides to

individuals wh o are developmentally disabled must

be designed to meet the needs of the clients as

well as protect the integrity of their legal and

human rights. Further, the current system of

care for persons who are developmentally disabled

is in need of substantial i mprovement in order to

provide truly meaningful treatment and

habilitation.

(b) The Legislature further finds and declares

that the design and delivery of treatment and

services to persons who are developmentally

disabled should be directed by the princip les of

normalization and therefore should:

1. Abate the use of large institutions.

2. Continue the development of community -

based services which provide reasonable

alternatives to institutionalization in settings

that are least restrictive to the c lient.

3. Provide training and education to

individuals who are developmentally disabled

which will maximize their potential to lead

independent and productive lives and which will

afford opportunities for outward mobility from

institutions.

(c) It is the intent of the Legislature that

duplicative and unnecessary administrative

procedures and practices shall be eliminated, and

areas of responsibility shall be clearly defined

and consolidated in order to economically utilize

present resources. Furtherm ore, personnel

providing services should be sufficiently

qualified and experienced to meet the needs of

the clients, and they must be sufficient in

number to provide treatment in a manner which is

beneficial to the clients.

(d) It is the intent of the Leg islature:

1. To articulate the existing legal and human

rights of persons who are developmentally

disabled so that they may be exercised and

protected. Persons with developmental

disabilities shall have all the rights enjoyed by

citizens of the state and the United States.

2. To provide a mechanism for the

identification, evaluation, and treatment of

persons with developmental disabilities.

3. To divert those individuals from

institutional commitment who, by virtue of

comprehensive assessment, can be placed in less

costly, more effective community environments and

programs.

4. To develop a plan which will indicate the

most effective and efficient manner in which to

implement treatment programs which are meaningful

to individuals with develop mental disabilities,

while safeguarding and respecting the legal and

human rights of such individuals.

5. Once the plan developed under the

provisions of subparagraph 4. is presented to the

Legislature, to fund improvements in the program

in accordance with the availability of state

resources and yearly priorities determined by the

Legislature.

6. To ensure that persons with developmental

disabilities receive treatment and habilitation

which fosters the developmental potential of the

individual.

7. To provide programs for the proper

habilitation and treatment of persons with

developmental disabilities which shall include,

but not be limited to, comprehensive

medical/dental care, education, recreation,

specialized therapies, training, social servi ces,

transportation, guardianship, family care

programs, day services, and habilitative and

rehabilitative services suited to the needs of

the individual regardless of age, degree of

disability, or handicapping condition. No person

with developmental disa bilities shall be deprived

of these enumerated services by reason of

inability to pay.

8. To fully effectuate the normalization

principle through the establishment of community

services for persons with developmental

disabilities as a viable and practi cal

alternative to institutional care at each stage

of individual life development. If care in a

residential facility becomes necessary, it shall

be in the least restrictive setting.

(e) It is the clear, unequivocal intent of this

act to guarantee indivi dual dignity, liberty,

pursuit of happiness, and protection of the civil

and legal rights of persons with developmental

disabilities.

16. Petitioner bears the burden of proof. Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

17. Respondent does not dispute Petitioner's general

eligibility for the services that she seeks. Respondent asserts

only that Petitioner may not receive these services because

Respondent lacks the funds. However, the present record does

not support Respondent's assertion. The testimony of

Respondent's sole witness is unsupported by the document on

which she relies. Absent such support, the provisions of

Section 393.13(2)(d)5 do not apply, and the remainder of the

cited statutory provis ions amply support Petitioner's claim for

the modest services that she requires to maintain the

independence that she has courageously maintained for many years

with the help of family members whose services are, for entirely

legitimate reasons, no longer available to her.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family

Services enter a final order granting Petitioner's requests for

homemaker and equipment repair and replacement services.

DONE AND ENTERED this 3rd day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 3rd day of July, 2002.

COPIES FURNISHED:

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32 399 - 0700

Veronica Roker

2282 Northwest 152nd Street

Opa Locka, Florida 33054

Hilda Fluriach

District 11 Legal Counsel

Department of Children and

Family Services

401 Northwest 2nd Avenue

Suite N - 1014

Miami, Florida 33128

NOTICE OF RIGHT TO SUBMIT EX CEPTIONS

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 must be filed with the agency that

will issue the final order in this case.