02-001652 Jake Cheskin vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, July 31, 2002.

Summary: Department established that child eligible to receive services for the developmentally disabled not entitled to services paid out of general revenue funds because child was on waiting list for services provided through Medicaid Waiver Program.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAKE CHESKIN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1652

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hea ring was held in this case

on June 12, 2002, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahas see, Florida.

APPEARANCES

For Petitioner: Mark Cheskin, Father 1

7860 Southwest 52nd Court

Miami, Florida 33143

For Respondent: Hilda A. Fluriach, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N - 1020

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Respondent has sufficient general revenue fu nds

to provide the Petitioner with services under the Respondent's

Developmental Disabilities Program.

PRELIMINARY STATEMENT

In a letter dated February 19, 2002, the Department of

Children and Family Services ("Department") advised Jake Cheskin

that, conce rning his request for physical, occupational, and

speech therapy services,

[w]e regret to inform you, as a conclusion

of law, that your request cannot be granted

within the limits of the Department's

appropriated general revenue funds, and

Florida law proh ibits the Department from

spending or committing funds in excess of

its appropriation. Please see

Section 393.13(2)(c) and (d), F.S., and

refer to the State Spending Plan as approved

by the Legislature.

Mark Cheskin, Jake's father, timely requested a hea ring on his

son's behalf to challenge the Department's refusal to provide

the requested services to his son. The Department transmitted

the matter to the Division of Administrative Hearings for

assignment of an administrative law judge. The final hearing

was scheduled for June 12, 2002.

Because the undersigned was not certain of the issue to be

resolved in this proceeding, an Order to Show Cause was entered

on May 14, 2002, explaining the undersigned's concerns and

requiring the parties to explain why, if the denial was based on

a conclusion of law, the case should not be returned to the

Department. In addition, if the parties believed that the case

was properly before the Division of Administrative Hearings,

they were requested to identify the issue to b e resolved in the

proceeding.

Mr. Cheskin responded to the order and expressed his belief

that the only factual dispute to be resolved in the matter was

whether his son is eligible to receive services under the

Department's Developmental Disabilities Progr am. The Department

did not respond to the Order to Show Cause until the final

hearing, at which time the Department stated that the only issue

to be resolved in this case is whether the Department had

sufficient general revenue funds to begin providing se rvices to

Jake at the time his eligibility for such services was

established.

At the hearing, Mr. Cheskin testified on behalf of his son;

he did not offer any exhibits into evidence. The Department

presented the testimony of Evelyn Alvarez, an employee of the

Department. Respondent's Exhibit 1 was offered and received

into evidence. At the request of the Department and without

objection, official recognition was taken of Chapter 393,

Florida Statutes, specifically Sections 393.13(3)(c) and (d) and

393.14 , Florida Statutes, and of that portion of the Conference

Report on Senate Bill 2000: General Appropriations for

2001 - 2002, consisting of pages 85 through 90 and 399.

At the hearing, counsel for the Department indicated that

the Department would be filing a transcript of the proceedings

with the Division of Administrative Hearings. In a subsequent

conversation with the undersigned's assistant, counsel for the

Department stated that the Department would not file a

transcript and would not submit a proposed recommended order.

On July 19, 2002, however, a transcript of the proceedings was

filed, and both parties timely filed proposed findings of fact

and conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final h earing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department is the state agency charged with

administering and determining eligibility for services to

developmentally disabled individuals pursuant to Flor ida's

Developmental Disabilities Prevention and Community Services

Act, Chapter 393, Florida Statutes. Section 393.065, Florida

Statutes. The program developed by the Department is known as

the Developmental Disabilities Program.

2. Jake is a resident o f Miami, Florida, and is four and

one - half years of age, having been born October 6, 1997.

3. On October 24, 2000, Jake's parents submitted on his

behalf an application requesting that the Department enroll him

in its Developmental Disabilities Program an d provide him with

physical, occupational, and speech therapy services as a

developmentally disabled individual. 2

4. The parties stipulated to the following facts:

a. Jake has a rare genetic disorder called "Williams

Syndrome," which causes significant d evelopmental delays. Jake

also has a significant hearing impairment, which exasperates his

developmental delays. Among other developmental delays, Jake

cannot walk on his own, is unable to talk, and is unable to

respond to verbal requests.

b. Jake requi res regular and frequent physical,

occupational, and speech therapies, and Jake is eligible to

receive these services under the Department's Developmental

Disabilities Program.

5. A social worker employed by the Department advised

Jake's mother on October 25, 2000, that Jake was eligible for

the requested services. The social worker developed a family

support plan, which Jake's mother signed on January 12, 2001.

Pursuant to the Department's policies, the Department considered

Jake a "client" of the Depar tment and eligible for services on

the date the family support plan was signed.

6. According to the Department's witness, the funding

category at issue in this case is state general revenue funds

appropriated by the Florida Legislature and not federal fun ds.

7. Upon receiving Jake's application for services under

the Department's Developmental Disabilities Program, the

Department reviewed the request and implemented a prioritization

schedule set forth in a Department memorandum dated June 1,

2001. The su bject matter of the memorandum is identified as

"State Fiscal Year 2001 - 2002 Spending Plan Implementation

Instructions ("Spending Plan")." 3

8. The Spending Plan was developed in accordance with the

following directive of the Legislature, which is found in the

Conference Report on SB 2000: General Appropriations for

2001 - 02, May 1, 2001 ("Conference Report"):

Funds in Specific Appropriations 374 and 377

are intended to provide Home and Community -

Based Services Waiver Services in accordance

with a spending plan developed by the

Department of Children and Family Services

and submitted to the Executive Office of the

Governor for approval by November 1, 2001.

Such plan shall include a financially

feasible timeframe for providing services to

persons who are on waiting lists for fiscal

years 1999 - 2000 and 2000 - 2001 and those

eligible persons who apply for services

during fiscal year 2001 - 2002. Such persons

shall be enrolled in the waiver in

accordance with the department's policy for

serving persons on the waiti ng list.

9. The Spending Plan relates to the distribution of funds

to persons served through the Home and Community - Based Waiver

Services program ("Waiver Program"), which is co - funded by the

federal government as part of the Medicaid program. 4

10. The Spending Plan establishes five "priority"

categories for providing services through the Waiver Program:

Persons who were clients as of July 1, 1999; members of the

class in the case of Cramer v. Bush ; persons not on the original

waiting list who are in cr isis (an estimated ten new clients

monthly, statewide); persons discharged from the Mentally

Retarded Defendant Program; and "[p]ersons who have become

clients since July 1, 1999, in date order (new waiting list) --

projected to be approximately 6,284 pers ons remaining to be

phased in between March 2002 and June 2002, subject to vacancies

on the Waiver and available funding."

11. The Spending Plan further provides that "[i]n order to

serve the estimated additional 6,774 individuals who are

projected to wan t and need Waiver services during FY 01 - 02,

enrollment on the Waiver will be phased in as described above."

12. According to the procedure specified in the Spending

Plan, a waiting list for Waiver Program services is maintained

by the Department's Central Office of the Developmental

Disabilities Program, and that office advises the various

districts when they may begin providing services to a person on

the list. According to the Spending Plan, services are to be

provided to individuals on the waiting list "subject to

vacancies on the Waiver and available funding."

13. Upon review of his application for services, the

Department classified Jake in the fifth category of the Spending

Plan as a person who become a client after July 1, 1999, and his

name was pl aced on the waiting list to receive services provided

through Waiver Program funding.

14. Although no evidence was presented on this point, it

is apparent from the text of the Spending Plan that, in addition

to the Waiver Program funding for services to t he

developmentally disabled, there is a second source of funding

for services to these individuals, Individual and Family

Supports ("IFS") funding. 5 The Department did not provide any

indication in its denial letter and it did not present any

evidence at the final hearing to establish that the "general

revenue funds" at issue were IFS funds. It has been necessary

to infer from the record that such is the case. 6

15. Although the Department presented no evidence with

respect to Jake's eligibility for servi ces from IFS funds or

with respect to the availability of IFS funds to provide Jake

with the services for which he is eligible, the Spending Plan

provides: "The use of non - Waiver funds (Individual and Family

Supports (IFS) budget category) to fund service s for additional

persons who are awaiting enrollment on the Waiver is

prohibited." The only possible inference from the evidence

presented by the Department and from the record as a whole is

that, notwithstanding the reasons stated in the Department's

den ial letter in this case, Jake was denied services from IFS

funds because he was placed on the Medicaid Waiver Program

waiting list.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2001).

17. In the normal case involving the denial of an

application for a license or for services provided by a state

agency, the applicant bears the burden of prov ing entitlement to

licensure or eligibility for services. See Dept. of Banking and

Finance v. Osbourne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

However, in this case, the Department concedes that Jake is

eligible for the services he has requested and bas es its refusal

to provide the services on the lack of general revenue funds.

This is in the nature of an affirmative defense, and the

Department, as the party asserting the affirmative on the

funding issue, is required to prove by a preponderance of the

e vidence that its refusal to provide Jake immediately with the

services for which he is eligible is justified. See

Section 120.57(1)(j), Florida Statutes (1999); Department of

Transportation v. J.W.C. Co, Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

18. Sect ion 393.13, Florida Statutes, provides, in

pertinent part, as follows:

(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

th at the system of care which the state

provides to individuals who 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 pers ons who are developmentally

disabled is in need of substantial

improvement 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 principles 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 inst itutionalization in

settings that are least restrictive to the

client.

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 o pportunities for outward

mobility from institutions.

* * *

(d) It is the intent of the Legislature:

* * *

3. To divert those individuals from

institutional commitment who, by virtue of

comprehensive assessment, can be placed in

less costly, more e ffective 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

developmental disabilities, while

safeguardi ng 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 resour ces 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 services,

transportation, guardianship, fam ily 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 disabilities

shall be deprived of these en umerated

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

practical alternative to institutional care

at each stage of individual life

development. . . .

(e) It is the clear, unequivocal intent

of this act to guarantee individual dignity,

liberty, pursuit of happiness, and

protection of the civil and legal rights of

persons with developmental disabiliti es.

(3) RIGHTS OF ALL PERSONS WITH

DEVELOPMENTAL DISABILITIES. – The rights

described in this subsection shall apply to

all persons with developmental disabilities,

whether or not such persons are clients of

the department.

* * *

(c) Persons with dev elopmental

disabilities shall receive services, within

available sources, which protect the

personal liberty of the individual and which

are provided in the least restrictive

conditions necessary to achieve the purpose

of treatment.

(d) Persons who are developmentally

disabled shall have a right to participate

in an appropriate program of quality

education and training services, within

available resources, regardless of

chronological age or degree of

disability. . . .

19. The Department created the Developmental Disabilities

Program in accordance with the directive in Section 393.066(1),

Florida Statutes (2000), that the Department

plan, develop, organize, and implement its

programs of services and treatment for

persons who are developmentally disabl ed

along district lines. The goal of such

programs shall be to allow clients to live

as independently as possible in their own

homes or communities and to achieve

productive lives as close to normal as

possible.

20. It is concluded, based on the findi ngs of fact herein,

that the record is sufficient to establish, by a preponderance

of the evidence, that, at the time of the final hearing, Jake

was not entitled to receive services as a developmentally

disabled individual because, even though he is eligib le for such

services, he is on the waiting list for services from Waiver

Program funding and the Department is precluded from using IFS

funds to provide services to individuals awaiting services

funded under the Waiver Program. Jake's classification under

category five of the prioritization schedule was not challenged,

and, at some undetermined point in the future, he will receive

the services that he needs and for which he is eligible. 7

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusio ns of

Law, it is RECOMMENDED that the Department of Children and

Family Services enter a final order finding that Jake Cheskin

shall remain on the waiting list for Home and Community - Based

Waiver Services under the Developmental Disabilities Program and

or dering that Jake Cheskin shall be provided with the physical,

occupational, and speech therapy services for which he is

eligible as soon as a vacancy occurs or additional funding is

available under the Department's Developmental Disabilities

Program. 8

DO NE AND ENTERED this 31st day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 31st day of July, 2002.

ENDNOTES

1 / Mr. Cheskin represented the interests of his son, Jake

Cheskin, who is a minor child.

2 / In its Propos ed Recommended Order, the Department included as

a proposed finding of fact that an application for Jake's

enrollment in the Home and Community - Based Waiver Services

program was also submitted on October 24, 2000. This fact is

not, however, to be found in the record of this proceeding.

3 / Because the validity of the Spending Plan has not been

challenged by Petitioner in this proceeding, it is assumed for

the purposes of this proceeding only that the Spending Plan is

valid.

4 / The Conference Report prov ides that the "[f]unds in Specific

Appropriation 377 and 374 are provided to meet the needs of

developmental services Medicaid Waiver participants based on the

individuals' most recent support plans." Also, the Spending

Plan provides: "Provision of Waive r services must also comply

with federally approved service definitions."

5 / These funds are included in Specific Appropriation 375 in the

Conference Report.

6 / In its Proposed Recommended Order, the Department included in

the Preliminary Statement an explanation of the two sources of

funding for the Department's Developmental Disabilities Program,

the Waiver Program funds and IFS funds. There was, however, no

evidence presented at the hearing to establish this on the

record.

7 / The dearth of evidenc e presented by the Department to support

its decision in this case made the preparation of this

Recommended Order very frustrating, based as it is on inferences

and assumptions extracted from a sparse record.

8 / It is hoped that the Department has counse led Jake's parents

on the availability from other sources of the services Jake

needs and that it keeps Jake's parents apprised of Jake's

standing on the Waiver Program waiting list.

COPIES FURNISHED:

Mark R. Cheskin, Esquire

7860 Southwest 52nd Court

Miami, Florida 33143

Hilda Fluriach, Esquire

Department of Children and Family Services

401 Northwest Second Av enue

Suite N - 1020

Miami, Florida 33128

Josie Tomayo, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

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. An y exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.