5D04-4205 French v. DCF

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-4205

Case Date: 01/02/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

SARAH FRENCH, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. ________________________________/ Opinion filed January 6, 2006 Administrative Appeal from the Department of Children and Families. George F. Indest, III, and Joanne Kenna, of George F. Indest, III, P.A., The Health Law Firm, Altamonte Springs, for Appellant. Charles J. Crist, Jr., Attorney General, and Ann Cocheu, Assistant Attorney General, Tallahassee, for Appellee. PLEUS, C.J. This is an appeal of a final administrative order in which a hearing officer found that the Department of Children and Families (DCF) wrongfully disenrolled Sarah French from the Consumer Directed Care (CDC) Program. The final order directed that French be reenrolled in the program. French appeals, arguing that the hearing officer (1) failed to order corrective payments retroactive to the date of the error and (2) erred Case No. 5D04-4205

by denying her request for attorney's fees. French also seeks attorney's fees for this appeal. DCF does not challe nge the hearing officer's fact findings or her conclusion that French should be reenrolled in the CDC Program. Accordingly, we affirm that portion of the order. However, the hearing officer failed to order corrective payments retroactive to the date of the error. Both the Florida and federal administrative rules require the hearing officer to order corrective payments. Accordingly, we remand this case to the hearing officer to award corrective payments retroactive to October 31, 2003. Regarding attorney's fees, we agree with DCF that the hearing officer did not have authority to consider the issue of attorney's fees under section 120.595, Florida Statutes, as that statute is currently configured. We disagree, however, with DCF's contention that it is exempt from attorney's fee awards under this statute altogether. We therefore quash that portion of the order denying attorney's fees and remand for appointment of an administrative law judge to consider French's request for attorney's fees pursuant to section 120.595(1)(b), Florida Statutes. We also grant French's

request for appellate attorney's fees in an amount to be determined by the administrative law judge on remand. Facts Sarah French was born in 1984 with cerebral palsy, which left her with serious physical and mental disabilities. These include quadriplegic cerebral palsy,

developmental delay, severe osteoporosis, severe muscle spasms, scoliosis, incontinence, kidney stones and frequent urinary tract infections. Sarah lives with her parents and requires 24 hour assistance. Sarah's mother, Gail French, is Sarah's

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personal care assistant of choice, assisting her with bathing, feeding, dressing, brushing her teeth, changing her diapers and all other daily living functions. In July 2000, Sarah was enrolled in a Medicaid program called the Home and Community Based Developmental Services Program, also known as the HCBS or Medwaiver 1915 program. This federal program is administered in Florida by DCF. Among other things, it provides for personal care assistance from outside providers designated by DCF. In July 2002, Sarah's caseworker, Kathy Marinelli, drafted a support plan for the upcoming year, which recommended 12 hours per day of personal care assistance. She also recommended enrolling Sarah in an experimental Medicaid Program called the Consumer Directed Care (CDC) Program, which allows recipients to select their own personal care assistant, an option not available under the Medwaiver 1915 program. On October 21, 2002, DCF approved Sarah's enrollment in the CDC Program and approved Sarah's mother as her personal care assistant. However, it only approved six hours per day of personal care assistance, instead of 12 hours, as medically necessary. Sarah appealed DCF's determination that she was entitled to only six hours per day of personal care assistance instead of the requested 12 hours. A hearing officer considered Sarah's appeal and agreed with her on that issue. On August 15, 2003, the hearing officer found that DCF had "contracted with the petitioner's mother, Gail French, to provide personal care assistance (PCA) to the petitioner" and that French "clearly demonstrated that the 12 hours of daily personal care assistance is not in excess of the petitioner's need for personal care assistance."

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One month later, on or about September 19, 2003, CDC Senior Program Specialist Sarah Heggen conducted a telephone conference with Sarah's CDC coordinator, Kathy Marinelli, and Sarah's mother, Gail French. During that call, Heggen determined that Gail's alleged back condition prevented her from continuing as Sarah's personal care assistant. This decision was based on two statements from Gail French's doctor, Dr. Conavay, dating back to January and May of 2002. Gail denied any back problems or inability to care for Sarah. On September 23, 2003, Dr. Conavay provided a statement stating that "Mrs. French's back exam is normal and she is pain free and has no physical activity or occupational restrictions. I feel she is fully capable to meet the needs and requirements of watching over the medical needs of her daughter Sarah." Despite this updated information, DCF issued a corrective action plan, effective October 1, 2003, requiring Gail French to hire another personal care assistant for Sarah. It also stated that if "alternative assistance is not available by October 31, 2003, Sarah French will return to the [Medwaiver] 1915 program." DCF sent the plan to Sarah and Gail French on October 10. They received it on October 21. On October 23, French requested a hearing on the corrective action plan. She made additional requests for a hearing on October 30 and November 5, 2003. On October 31, DCF disenrolled Sarah from the CDC Program for failure to comply with the corrective action plan. On December 3, DCF sent French a letter informing her that its decision to issue a corrective action plan and its subsequent decision to disenroll Sarah in the CDC Program had been upheld. It further stated: In transitioning from the CDC Program back to the [Medwaiver 1915 Program], no loss of services is

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experienced. Therefore, there is no formal hearing process on that issue. After numerous letters to the Secretary of DCF, Sarah's appeal was finally registered with the Office of Appeal Hearings in late January 2004. A hearing officer heard Sarah's appeal on several days over a four -month period. On November 22, 2004, the hearing officer issued a final order finding that (1) DCF unilaterally developed the corrective action plan instead of in cooperation with the Frenches, as is required by DCF's own protocol; (2) DCF's decision to remove Gail French as Sarah's personal care assistant was not supported by competent evidence, given the fact that more recent evidence from the same doctor indicated that Gail was perfectly able to care for Sarah and therefore, the corrective action plan was unnecessary; (3) DCF failed to timely mail the corrective action plan to the Frenches, giving them only 10 days to find an alternate provider; (4) because the corrective action plan was not necessary, DCF erred in disenrolling Sarah from the CDC Program for noncompliance with the plan; (5) Sarah was entitled to a fair hearing to review DCF's decision to disenroll her from the CDC Program; (6) DCF erroneously denied Sarah's request for an appeal based on a misinterpretation of its own protocol; (7) DCF failed to forward Sarah's requests for a hearing until January 31, 2004, which was not within the required time period of three days; and (8) French was not entitled to attorney's fees because DCF's actions did not rise to the level of improper purpose. 42 C.F.R.

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