02-001663 Alejandro Penaloza vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, November 1, 2002.

Summary: Inadequate funding together with prioritized spending eliminates the Department`s ability to provide services for this eligible and needy client.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEJANDRO PENALOZA, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1663

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case by video teleconference on July 30, 2002, with the

parties appearing from Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Alejan dro A. Penaloza, Father

o/b/o Alejandro Penaloza, Son

12205 Northwest Sixth Street

Miami, Florida 33182

For Respondent: Rosemarie Rinaldi, ADLC

Hilda A. Fluriach, Esquire

Department of Children And

Family Services

401 Northwest Second Avenue, N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether the Petitioner should receive benefits for the

services requested.

PRELIMINARY STATEMENT

On August 3, 2001, the Respondent, Department of Children

and Family Services (Department), issued a letter notifying

the Petitioner that his request for services could not be

granted. The basis of the denial was the lack of monies

available within the limits of the Department's appropriated

general revenue funds and the prohibition against spending

funds in excess of its appropriation. The Petitioner timely

challenged the denial of services and the matter was referred

to the Divisi on of Administrative Hearings for formal

proceedings.

At the hearing, the father testified on behalf of his

son's interests. The Department presented testimony from

Evelyn Alvarez and the Respondent's Exhibits 1 - 3 were received

in evidence.

The Transcript of these proceedings was filed on

October 2, 2002. The Department's Proposed Recommended Order

was filed on October 15, 2002, and has been considered in the

preparation of this Recommended Order. The Petitioner did not

file a proposed order.

FINDINGS OF FACT

1. The Petitioner is a 20 - year - old male who has been

diagnosed with mental retardation. The Petitioner resides

with his parents who provide for his care. Currently the

Petitioner receives medical benefits through the father's

health insurance. He also receives some funding through

social security benefits.

2. The Petitioner is a client of the Developmental

Disabilities Program and his eligibility to receive benefits

is not disputed by the Department. The Petitioner is eligible

for benefits. T he Petitioner applied for, and has been

denied, dental, companion, personal care assistance, and

respite benefits.

3. The Petitioner would have received the benefits

requested but for the lack of funding in the appropriations

for the Department.

4. Because of the lack of funding, the Department

prioritizes those who will receive benefits. Unfortunately,

the Petitioner is on a waiting list for the Medicaid Waiver

Program, and the Individual and Family Support Program does

not have sufficient funds appro priated to pay for the services

requested by the Petitioner.

5. The Department may not use general revenue funds to

fund services for persons awaiting enrollment in the Medicaid

Waiver program.

6. The Petitioner's parents need assistance in providing

for the care of their son. The Petitioner must be attended

lest he be considered "at risk." The parents have incurred

debt to provide for their son, have pursued all avenues for

assistance known to them, and have unselfishly tended to his

needs. The only w ay the Petitioner may now receive additional

benefits would be if the parents abandon their son so that he

might be deemed "in crisis."

7. The Petitioner did not become a client of the

Developmental Disabilities Program until after July 1, 1999.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. Section 120.57, Florida Statutes.

9. Section 216.311(1), Florida Statutes, provides:

(1) No agency or branch of state

government shall contract to spend, or

enter into any agreement to spend, any

moneys in excess of the amount appropriated

to such agency or branch unless

specifically authorized by law, and any

contract or agreement in violation of this

chapter shall be null and void.

10. The Department has demonstrated that there are

insufficient funds in the general revenue appropriations to

provide the services sought by the Petitioner. Since he is

technically not "in crisis" the Petitioner must wait for the

services for which he is entitled and eligible.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Children and

Family Services enter a Final Order denying the benefits

sought by the Petitioner at this time.

DONE AND ENTERED this 1st day of November, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

Administrative Law Jud ge

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 1st day of November, 2002.

COPIES FURNISHED :

Hilda Fluriach, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N - 1020

Miami, Florida 33128

Alejandro A. Penaloza

c/o Alejandro O. Penaloza

12205 Northwest 6th Street

Miami, Florida 33182

Jerry Reiger, Secretary

Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Child ren 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. Any

exceptions to this Recommended Order should be filed with the

agency that will issue th e Final Order in this case.