Balino v. Department of Health and Rehabilitative Services

• Decision Date: 11 July 1977
• Docket Number: No. EE-62,EE-62
• Citation: 348 So.2d 349
• Parties: America BALINO et al., Petitioners, v. The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, et al., Respondents.
• Court: Florida District Court of Appeals

Page 349

348 So.2d 349

America BALINO et al., Petitioners, v. The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, et al., Respondents.

No. EE-62.

District Court of Appeal of Florida, First District.

July 11, 1977.

Stephen Maher, Legal Services of Greater Miami, Inc., Miami, for petitioners.

Chester G. Senf, Jacksonville, for respondents.

ERVIN, Judge.

The issue before us is who has the burden of proof at a reclassification hearing, the recipients of Medicaid benefits seeking continued assistance, or the Department of Health and Rehabilitative Services? We agree that the burden should be placed upon the Department and reverse.

Petitioners are elderly Medicaid recipients residing in Florida nursing homes. In September, 1975, the Secretary of the Department of Health, Education and Welfare promulgated regulations setting forth new and more restrictive criteria which Medicaid recipients must meet in order to receive skilled nursing care. 45 C.F.R. 405.126-.128. In complying with the new regulations, the Department of Health and Rehabilitative Services then made changes in its level of care definitions. Fla.Admin.Code Rule 10C-7.21. HRS also undertook a massive state-wide reclassification of skilled care nursing home patients.

HEW's regulations provide in those cases where the state intends to discontinue, suspend or reduce assistance, it shall first give timely and adequate notice of such intention. 45 C.F.R. 205.10(a)(4). It is also provided that before discontinuing such benefits, an opportunity for a "fair" hearing shall be granted to any applicant who requests a hearing. 45 C.F.R. 205.10(a)(5). Here, after HRS provided such notice, a single group hearing was held before a hearing officer with the petitioners' consent. Following the hearing an order was entered by the hearing officer which, as it pertained to the burden of proof, stated:

"The State has the burden of proof at the hearing. Although Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), does not speak directly to this issue, it does require a fair and meaningful opportunity, under the circumstances, for a client to be heard and to challenge agency decision-making. Given the status of petitioners in these cases, i. e., nursing home residents incapable of caring for themselves, and given the presence of doctors, nurses and social workers on the medical review teams which are recommending the reclassifications, it should not constitute an undue burden to require respondents to sustain the burden of proof. As a practical matter, this simply means that respondents have to establish the grounds for reclassification, by a preponderance of the evidence, to the satisfaction of the hearing officer."

The Secretary of HRS rejected the hearing officer's recommended order as to the burden of proof, stating:

"The Petitioners have the burden of proof at the hearing as Federal law requires that Medicaid recipients prove eligibility."

At the outset we must disagree with the Secretary's conclusion that federal law requires such recipients to prove continued eligibility. This may be a correct interpretation of a recipient's burden necessary to establish initial eligibility under appropriate federal regulations, 45 C.F.R. Sections 405.126-. 128, but we have been cited to no federal statutes or federal regulations which require such recipients, once so classified, to have thrust upon them the burden of proof as to their continued eligibility. The general rule is, that as in court proceedings, the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal. State Department of Agriculture and Consumer Services v. Strickland, 262 So.2d 893 (Fla. 1st DCA 1972); Florida Dept. of Health and R. S. v. Career Serv. Com'n, 289 So.2d 412 (Fla. 4th DCA 1974); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976). Florida's Administrative Procedure Act is silent on the subject, although its federal counterpart is essentially the same as Florida decisional law. 5 U.S.C. § 556(d).

There is an even more compelling reason why the burden should be placed upon HRS. The hearing officer made an explicit finding of fact, not rejected by the Secretary's final order, ¹ that petitioners were "nursing home residents incapable of caring for themselves, . . . ." This finding has not been challenged by HRS on review and it comes before us clothed with a presumption of correctness. Hayes v. Bowman, 91 So.2d 795 (Fla. 1957); Florida Rate Conf. v. Florida Railroad & P. U. Com'n., 108 So.2d 601 (Fla. 1959); O'Neil v Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). Such being the case, the guidelines set forth in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), are appropriately applicable to this cause. The federal regulations pertaining to hearings specifically require they shall be conducted pursuant to "the due process standards set forth . . . in Goldberg v. Kelly. . . ." 45 C.F.R. 205.10(a)(1)(ii).

In Goldberg, residents of New York City who were receiving financial aid under state or federally assisted welfare programs brought actions alleging that welfare officials had either terminated or were about to terminate such aid without prior notice and hearing in violation of due process. After the commencement of the actions, welfare authorities adopted procedures whereby a recipient was given notice of the proposed termination of payments, and a right to have the proposed termination reviewed by a...