02-002673 Bridget Ellingham vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, December 23, 2002.

Summary: Agency contributed to denial of Petitioner`s request by not providing either a point of entry to challenge close out or properly processing timely request for benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGET ELLINGHAM, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2673

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on November 21, 2002, in Vero Beach, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: William N. Swift, Esquire

William N. Swift, P.A.

901 Southwest Martin Downs Boulevard

Suite 208

Palm City, Florida 34990

For Respondent: Laurel Hopper, Esquire

Department of Children and

Family Serv ices

337 North Fourth Street

Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

Whether the Petitioner should receive general revenue funds

allocated to the Department of Children and Family Services.

PRELIMINARY STATEMEN T

By letter dated May 24, 2002, the Department of Children

and Family Services (Department) notified the Petitioner,

Bridget Ellingham, that her request for residential placement

funding had been denied. The basis of the denial was stated to

be the Depart ment's inability to commit funds in excess of its

appropriation. In essence, the Department claimed it did not

have funds available within its budget to provide the service

requested by the Petitioner. The Petitioner, by and through her

mother, challenge d the denial and timely sought an

administrative review of the decision.

The case was then forwarded to the Division of

Administrative Hearings for formal proceedings and assigned DOAH

Case No. 02 - 2673. A Notice of Hearing was entered and the

matter was p romptly scheduled for hearing. Although continued

by stipulation and consent of counsel, the case was ultimately

heard on November 21, 2002.

At the hearing, the Petitioner's mother, Tammy Desjardins,

testified for the Petitioner. Petitioner’s Exhibit 1 w as

received in evidence. The Respondent offered testimony from

Stephen Stoltz. The Department's Exhibits 1 - 5 were admitted

into evidence. All requests for official recognition were

granted. The parties have outlined the pertinent provisions of

Florida law and case precedent in their Proposed Recommended

Orders. The Proposed Recommended Orders have been fully

considered in the preparation of this order. The transcript of

the proceedings was not filed.

FINDINGS OF FACT

1. The Petitioner is an 18 year - old female who is eligible

for services as an individual with mental retardation. The

Department (or its predecessor) first provided benefits to the

Petitioner in 1985 based upon such eligibility (Downs Syndrome).

2. Although an applicant for services i n the Department’s

District 15, the Petitioner currently attends a residential

placement in Miami, Florida. From the undisputed evidence,

Petitioner is performing well in her placement and is learning

life skills. Petitioner exhibits child - like behaviors , however,

and is dependent on adult supervision for her well being.

3. The Petitioner is a client of the Department’s

Developmental Disabilities Program and would have received the

benefits requested in this cause but for the lack of funds. It

is the De partment’s position that the appropriations allocated

to the Department by the Legislature did not provide sufficient

funds to meet the Petitioner’s claim and that it would be

unlawful for the Department to exceed its appropriated budget.

4. Because the D epartment does not have funds for all of

the eligible recipients (clients), the Department prioritizes

the claims and places clients whose benefits are not provided on

a waiting list. In fact, the Petitioner is on the Medicaid

Waiver Program waiting list for the services sought.

5. The Petitioner’s mother has provided for her daughter

and incurred debt to do so. She must have financial assistance

in order to keep the Petitioner at the school where she is doing

well.

6. The Department provides assistan ce for persons like

Petitioner only when they are deemed to be “in crisis.” The

Department maintains that the Petitioner does not currently meet

its definition for “crisis” intervention.

7. The Petitioner’s services from the Developmental

Disabilities Program were canceled without notice to the

Petitioner in 1988.

8. The Petitioner timely sought benefits in 1998 or 1999

and would be receiving the benefits now sought had the

Department properly processed the application through the

correct program.

9. The Department appropriates funds through its district

offices. In this case, District 15 (where the Petitioner’s

mother resides) does not have funds available to meet the

Petitioner’s claim. Whether statewide funds are unavailable is

unknown.

10. Wer e the Petitioner’s mother to abandon the

Petitioner, it is unlikely the Petitioner could provide for her

own needs; she would be in “crisis.”

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subje ct matter of these

proceedings. Section 120.57, Florida Statutes.

12. Section 216.311, Florida Statutes, prohibits the

Department from spending money in excess of the amount

appropriated to it. Nevertheless, while District 15 may not

have the funds avai lable to commit for the Petitioner’s request,

no evidence was presented as to the Department’s inability to

fund the service sought.

13. The Petitioner has demonstrated she is eligible,

entitled to benefits, and in dire need. Had the Department

properly processed her request for benefits the Petitioner would

be receiving assistance. Additionally, had the Department

provided the Petitioner with a point of entry to challenge her

withdrawal from the program she might have already received

assistance.

14. I t is therefore concluded that the Petitioner has

demonstrated that she is in critical need of assistance. The

Department has not established that there are no funds to meet

the Petitioner’s claim. While District 15 may not have funds,

had the Department properly processed the Petitioner’s

application the Department could have provided for the

Petitioner’s need.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Family Servic es enter a final order granting Petitioner’s

request for services.

DONE AND ENTERED this 23rd day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 23rd day of December, 2002.

COPIES FURNISHED :

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and

Family Services

1317 Wine wood 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 32399 - 0700

Laurel Hopper, Esquire

Departm ent of Children and

Family Services

337 North Fourth Street

Fort Pierce, Florida 34950

William N. Swift, Esquire

William N. Swift, P.A.

901 Southwest Martin Downs Boulevard

Suite 208

Palm City, Florida 34990

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.