Opinion
No. 1D20-3507
10-12-2022
C. C., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
Rachel Siegel-McLaughlin of Disability Rights Florida, Inc., Tallahassee, for Appellant. Carrie B. McNamara, Agency for Persons with Disabilities, Tallahassee, for Appellee.
Rachel Siegel-McLaughlin of Disability Rights Florida, Inc., Tallahassee, for Appellant.
Carrie B. McNamara, Agency for Persons with Disabilities, Tallahassee, for Appellee.
Tanenbaum, J. The appellant is a developmentally disabled adult enrolled in iBudget, a Medicaid Home and Community-Based Services delivery system overseen by the Agency for Persons with Disabilities ("APD"). See § 393.0662, Fla. Stat. (2020). Thanks to the iBudget system, the appellant can receive crucial treatment while residing with her family instead of in an institution. See § 393.062, Fla. Stat. The appellant receives services through the Consumer Directed Care Plus ("CDC Plus") program. Her mother serves as both her guardian and her CDC Plus representative.
The family originally had resided in Orlando and received services through APD's Central Region Area 7. The family moved north to Clay County and took up residence in Northeast Region Area 4. The mother did not provide the U.S. Postal Service with a forwarding address. She saw no reason to do so because she did not receive a lot of mail. Indeed, most of her iBudget information and bills arrived electronically. In an e-mail dated March 10, 2020, the mother reached out to APD's regional operations manager to inform her of the recent move. The mother expressed her confusion regarding who she should contact in the Northeast Region. Within half an hour, the manager responded to the mother's e-mail, stating, "We will be happy to assist you with your request." She informed the mother that she had copied "our clerical staff ... and her supervisor ... on the waiver unit here in Orlando to facilitate this transfer." On May 5, 2020, the mother e-mailed her new CDC Plus consultant to provide him with her new mailing address. The consultant e-mailed the mother on May 7, informing her that he had updated her new address "in the APD computer system."
Around this time, APD reduced the amount the appellant would receive for personal support services. By statute, APD owed the appellant notice about two separate matters in connection with this reduction. It had to notify her of the adverse iBudget action it decided to take, and contemporaneously , it had to notify her of her right to request an administrative hearing. See § 393.125(1)(c), Fla. Stat. More than this, APD had to provide each notice "both verbally and in writing." Id. The appellant had thirty days from when she received such notice to request an administrative hearing. She sought to challenge the reduction via a request for an administrative hearing, but she did so months after APD contends it provided her the written notice. At the heart of this appeal is whether there is sufficient evidence to demonstrate she received the notice when APD says she did.
APD undoubtedly issued a "Notice of iBudget Amount" that informed the appellant of the reduction of benefits and advised her of the right to appeal the agency's action by filing a request for an administrative hearing. That notice issued on April 14, 2020. The appellant sought to challenge the reduction in services by requesting the administrative hearing, but she did not make the request until about six months after APD says it sent her the notice, on August 21, 2020. The appellant claims she did not receive notice until two days before, on August 19, 2020, when the notice was e-mailed to her from her lawyer. Rather than address the merits of the appellant's complaint about the reduction in benefits, APD moved to dismiss the administrative proceeding as having been untimely initiated.
At an evidentiary hearing on the motion, the regional program supervisor for APD's waiver unit testified on behalf of APD. She explained that when the agency sends out a notice of an iBudget adjustment that takes negative action against an individual, it does not also verbally contact the individual; the written notice is sent to the individual and e-mailed to the program consultant that works with the beneficiary. When asked how APD knew that the appellant's mother truly received notice of the iBudget revision and information regarding the right to appeal, the program supervisor responded, "Because we have an updated purchasing plan with a change of budget amount that was done [by the mother] during the month of May." She pointed to the signature page of the "consumer directive care plus purchasing plan," and noted it was signed off on by the mother around the time the notice supposedly was sent.
As the supervisor saw it, since the mother "apparently got a new budget amount and was doing a new purchasing plan ... she had to have known that something had changed." She added, "Whether she reached out and discussed [it] with her consultant," in order to question why it had changed, that was "part of her responsibility and something she should have done." The supervisor continued, "If she signed off on a purchasing plan that changed the budget without understanding why that was made, I have no control over that." When asked whether, if the appellant's mother was told by her consultant to change the budget, and she did so, that also mean she had received a copy of the notice, the supervisor responded: "If she was smart and asked for a copy if she didn't receive one. I don't know.... I can't tell you that. But it leads me to believe that she knew something occurred." To put the supervisor's answer more succinctly and less obtusely, APD had no way of knowing whether the appellant received the notice that APD sent.
By contrast, the mother testified she did not receive the April 14, 2020, notice. Her previous support coordinator did not give her a copy of the notice or inform her that there had been a reduction in the appellant's support services. She also testified that she informed her coordinator she wanted to move, but he told her "they were slowing down because of the [COVID-19] pandemic and that he couldn't turn in the paperwork until May." Neither was he "allowed" to drop off paperwork to her to take to the Jacksonville office because "the offices were closed." The mother claimed that when she moved, she provided her former coordinator with her new address and believed he would update her address in the system.
Basically, APD presented zero competent, substantial evidence that established the date when the appellant received the notice. At best, APD established with proper evidence when it mailed the notice to her, and APD admitted that it does not provide the additional verbal notice required by law. As to when the appellant received the notice, then, the hearing officer was left only with the appellant's unrebutted testimony that she did not receive any notice until her lawyer provided it to her, months after APD claimed. She filed her formal request for an administrative hearing two days later, well within the thirty-day period for doing so.
Despite this evidence, the hearing officer found that the appellant received the notice the same day that APD ostensibly mailed it. This finding simply confounds, because there was no evidence that the notice was sent out for hand or same-day delivery and no evidence that she received it that day. There was not even evidence from which to reasonably infer that the appellant received the notice on the date it was mailed.
We are to set aside agency action and remand for further proceedings when the "agency's action depends on any finding of fact that is not supported by competent, substantial evidence in the record." § 120.68(7)(b), Fla. Stat. The hearing officer's dismissal for lack of jurisdiction depended entirely on her unsupported finding as to when the appellant received the notice. Setting aside the dismissal of the appellant's request for a hearing under section 393.125 is more than justified on this record. We will set aside the dismissal and remand this case so that the appellant may have a full hearing on the merits, as required by section 393.125 and the other provisions referenced therein.
SET ASIDE and REMAND for further proceedings.
Ray and Jay, JJ., concur.