State agencies may be liable for attorney fees

State agencies may be liable for
attorney fees
April Hunt Sentinel Staff Writer

January 18, 2006

People who feel wronged by a state agency could soon have an easier
time finding a lawyer to take on the state.

The 5th District Court of Appeal recently ruled that the Department of
Children & Families, the Agency for Persons with Disabilities and
other departments with administrative hearings may be liable for
attorney's fees when people challenge those hearings in court and win.

"We do not agree with DCF's contention that (state law) exempts it
from attorney's fees altogether," the court wrote in its Jan. 6
opinion. "To allow otherwise . . . would allow DCF to avoid the
penalty for their own misconduct."

DCF has not decided whether it will appeal.

Although another appeals court could decide differently, attorneys and
advocates for the disabled said the ruling for an administrative-law
judge to decide how much DCF owes the opposing side's lawyer will be
felt statewide.

That's because nearly all of the disabled and medically needy served
by the state are poor enough to qualify for Medicaid. They and their
families and advocates rarely have the money to pay the $15,000 or
more it costs to appeal in court if an internal ruling goes against
them.

"It's very expensive to do an appeal, and these are people who are too
poor to pay for their own medication or to support themselves," said
Altamonte Springs attorney George Indest, who represented the family
in the appeal that led to this month's ruling.

At issue was whether DCF in 2003 improperly dropped Sarah French from
a medical program that allowed her to pay her mother, Gail, to serve
as her personal-care assistant. The agency had sought to put Sarah in
the program the year before.

Sarah French, now 21, has severe cerebral palsy and related medical
problems. She lives with her parents in east Orange County, where her
mother has provided around-the-clock care since she was born.

Gail French hired Indest after DCF dropped Sarah from the program
without hearing her appeal in-house. The agency delayed the issue, and
payment for medical services, for more than a year.

"Other disabled people are going without because they have to have
others speak for them," Gail French said. "They didn't bargain on
someone fighting back."

The Agency for Persons with Disabilities now handles the program that
Sarah was enrolled in as well as other services for the state's
developmentally disabled. The agency -- which serves people with
autism, cerebral palsy, Down syndrome, mental retardation and spina
bifida -- acknowledged the precedent.

"If the district court's opinion stands, it could establish a new
procedure for seeking attorney's fees in fair hearings that could
potentially impact other programs beyond the issue in the case,"
agency spokeswoman Lindsay Hodges said.

Officials from DCF, which also holds internal hearings on its
decisions, are reviewing the ruling to decide what its next step may
be, spokeswoman Zoraya Suarez said.

John Hall, executive director of Florida ARC, an agency that serves
the mentally retarded, said he hopes the ruling stands because it does
more than create more attorneys willing to take on cases.

"We are more focused on preventing those services from being cut, and
needing the hearings, to begin with," Hall said. "The exciting part is
that knowing there is now an incentive for that to happen."

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