Steward v. Dept. of Children and Families, 1D03-0651.

• Decision Date: 11 December 2003
• Docket Number: No. 1D03-0651.,1D03-0651.
• Citation: 865 So.2d 528
• Parties: Brett STEWARD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

865 So.2d 528

Brett STEWARD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 1D03-0651.

District Court of Appeal of Florida, First District.

December 11, 2003.

Rehearing Denied February 12, 2004.

Gordon B. Scott, Advocacy Center for Persons With Disabilities, Inc., Tallahassee, for Appellant.

Ralph J. McMurphy, Wildwood, for Appellee.

HAWKES, J.

Appellant, Brett Steward, had previously been found eligible to receive benefits through the Developmental Disabilities Home and Community-Based Waiver Program (DDHP). He is ten years old, mildly retarded, has Spina Bifida, Hydrocephalis, a hearing deficit, significant kidney disease, a urostomy for bladder elimination and a colostomy for bowel elimination. He is incontinent, and uses diapers due to occasional urine leaking, and uses a wheelchair because he has no use of his lower extremities.

Steward appeals a final order entered by the Department of Children & Families (DCF), denying his request to remove heavy pile carpeting in his home, and replace it with ceramic tile or linoleum. Since Steward lacks upper body strength, the carpeting forced him to obtain assistance in pushing his wheelchair to access the various rooms in his home. Without assistance, he was forced to crawl on his stomach, using his elbows to propel himself. DCF denied Steward's request due to their belief that replacement of floor coverings was excluded under the Developmental Services Waiver Services Medicaid Coverage and Limitations Handbook (Handbook), and no exceptions were permitted. We reverse and remand.

An environmental modification assessment of Steward's home was performed at the request of his support coordinator, and Janice Bloom, Steward's grandmother and guardian. DCF was advised by Steward's support coordinator that the carpeting should be replaced with a new solid surface to enable Steward to use his wheelchair independently, alleviate the unsanitary and odiferous conditions caused by his incontinence, and minimize his exposure to harmful bacteria. A doctor and an Advanced Registered Nurse Practitioner from Shands Hospital opined that the removal of the carpeting in Steward's home, and its replacement with tile or linoleum, was medically necessary. After DCF denied Appellant's request on grounds that replacement of floor coverings was not covered under the DDHP, an administrative hearing was held.

At the hearing, Steward's counsel conceded the Handbook, addressing Environmental Accessability Adaptations (EAAs), excludes carpeting and flooring, but argued exceptions were permissible. DCF's expert witness, Martin Reid, admitted waivers are permitted, but testified he did not request a waiver. Following Reid's testimony, the hearing officer asked Reid if the Handbook contained a provision which would permit a waiver in this case. Reid testified he was "not familiar with it." The hearing officer clarified Reid's answer, then stated "if there is a provision which would allow an exception, then I think [DCF] probably should have—should have taken that avenue."

Subsequently, a...