Amos v. Department of Health and Rehabilitative Services, Dist. IV
| Decision Date | 30 December 1983 |
| Docket Number | No. AB-99,AB-99 |
| Citation | 444 So.2d 43 |
| Parties | Dorothy AMOS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DISTRICT IV, Appellee. |
| Court | Florida District Court of Appeals |
Mark Greenberg, Jacksonville, for appellant.
Judith Curtin Fendrich, Asst. Gen. Counsel, Dept. of Health and Rehabilitative Services, Tallahassee, for appellee.
This cause is before us on appeal from a final order of the Department of Health and Rehabilitative Services affirming the Department's decision to deny appellant benefits in the Aid to Families with Dependent Children (AFDC) Program, based upon the Department's finding that Appellant Amos refused to cooperate in establishing the paternity of her daughter. We reverse the agency's action, since it was based upon "CSE Policy Clearance 79-6," a rule which has not been promulgated pursuant to the Florida Administrative Procedure Act. Further, the Department has not met its burden of affirmatively showing in the record that the "policy" is a reasonable one.
In the AFDC Program, a mother receiving assistance is required to cooperate with the Department in establishing the paternity of any child born out of wedlock for whom AFDC assistance is requested. If the Department determines that the mother has refused without good cause to cooperate with the agency in establishing paternity, the mother's needs will be removed from the AFDC grant and a different adult, called a "protective payee," is then appointed by the agency to receive a reduced grant for the benefit of the children in the household; the mother is not entitled to the use of the grant and is ineligible for Medicaid coverage for herself. One aspect of the AFDC cooperation requirement is that the mother must agree to pursue a paternity action against the alleged father through the Department's Child Support Enforcement (CSE) Unit.
It is uncontroverted that appellant filled out the Department's forms entitled "Request to Add a Child to an AFDC Grant" and "Confidential Verification of Birth," in each of which she named the putative father of her child, and that she later complied with the Department's request to provide information for its "Absent Parent Basic Information Form," including the putative father's address, telephone number, place of employment, and a description of his automobile. According to the AFDC case record, appellant was expressly asked whether any person other than the named putative father could have been the father of her child, to which she replied in the negative. Appellant signed a verified complaint for paternity against the putative father and repeatedly contacted the CSE Unit to determine the status of the paternity action and to offer her assistance.
Subsequent to the filing of the paternity complaint, the putative father requested an HLA (Human Leucocyte Antigen) blood test, 1 to which appellant voluntarily agreed, even though the Department's cooperation rule does not require an AFDC recipient to participate in a blood test. Appellant appeared with her child at the designated location and submitted to blood sampling for both herself and the child; the samples were sent by the Department to a laboratory in Atlanta which reported the results to the CSE Unit by letter, which stated, in part: "Because the father ... does not share the required haplotype A3-BW35 with [appellant's child] the alleged father cannot be the biological father of the child."
Upon receipt of the HLA test results, the CSE Unit determined that appellant should be removed from her household AFDC grant because she had "refused to cooperate" in establishing paternity, based upon a document entitled "CSE Policy Clearance 79-6." This Policy Clearance essentially provides that when a woman names the putative father of her child, and subsequent HLA testing "excludes" the named putative father, the CSE Unit shall recommend to the AFDC Unit that the mother be removed from the household grant. The CSE Unit voluntarily dismissed appellant's paternity suit and sent an internal memorandum directing the AFDC Unit to apply CSE Policy Clearance 79-6 to appellant. The CSE Unit did not contact or otherwise advise appellant prior to sending a recommendation to remove her from the AFDC grant. The AFDC Unit sent appellant a notice stating that the Unit had received "information" from the CSE Unit that she had not cooperated in establishing paternity and that she would therefore be removed from the grant and a protective payee designated. No formal notice of adverse action or statement of the right to request a hearing was sent; appellant was merely informed that she should come into the AFDC office on a specified date and bring with her a person who could be designated the protective payee.
Appellant requested a hearing, which was held before an HRS hearing officer and resulted in facts being established as outlined above. At the hearing, Department representatives acknowledged that Amos had consistently named the putative father, that she had provided information sufficient to identify and locate him, that she had voluntarily initiated the paternity action against him, and that she had voluntarily participated in the HLA blood test in the context of the paternity action. 2 Nevertheless the Department took the position that removal of appellant from the grant for "refusal to cooperate" was required by CSE Policy Clearance 79-6.
The hearing officer entered an order holding that appellant had refused to cooperate in establishing the paternity of her child. In his order, the hearing officer acknowledged that appellant had been consistent in her assertion of the identity of the putative father and that the only contrary evidence was the result of the HLA test, but noted that this court had recently held that the results of HLA blood testing were admissible 3 and concluded that termination of appellant's grant for refusal to cooperate was therefore appropriate. In so doing, the hearing officer departed from his earlier holding in Counts v. Department of Health and Rehabilitative Services (District 4, Duval County, Unit 99, August 27, 1980), 4 a nearly identical case.
As a condition of receiving federal financial participation, a state must operate its AFDC program in accordance with federal law, 5 which requires, as a condition of eligibility for AFDC, that an applicant cooperate with the State in establishing the paternity of a child born out of wedlock, and further provides that if the applicant refuses to cooperate without good cause, assistance for the child must be provided by means of a "protective payment" to a third party rather than a grant to the applicant. The United States Department of Health and Human Services has promulgated regulations implementing this section at 45 Code of Federal Regulations, Section 232.12, in which "cooperation" is defined to include specified actions, all of which are relevant to or necessary for establishing paternity and support. In order to implement the provisions of 45 Code of Federal Regulations, Section 232.12, the Florida Department of Health and Rehabilitative Services promulgated Rule 10C-1.62, Florida Administrative Code. 6
We do not accept the Department's characterization of CSE Policy Clearance 79-6 as merely a clarification of the definition of "cooperation" in Rule 10C-1.62 and the federal statutes. The Department's policy directing exclusion of a grant recipient based upon the result of a single HLA test does not derive directly or indirectly from the language of Rule 10C-1.62, Florida Administrative Code, or the federal law which it implements, and is not an unavoidable inference from the test result. Further, the agency requires that CSE Policy Clearance 79-6 be followed without discretion by every AFDC office in Florida. CSE Policy Clearance 79-6 has every characteristic of a...
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