Findings Of Fact Effective January 1, 1982, HRS and Respondent entered into a Vendor Agreement for Participation in the Florida WIC Program. The WlC Program is a highly specialized nutritional program, subsidized by the Federal Government for the benefit of certain low income persons. Pursuant to the aforementioned agreement, Respondent agreed to: Provide only authorized quantities of approved WIC foods for purchase with food check, accurately determine the charges to the WIC Program, and clearly complete the "pay exactly" box on the food check prior to obtaining the signa- ture of the authorized participating parent, guardian, or proxy. Provide the approved WIC foods to participant at the same price or less than the price charged other customers. The Vendor Agreement between HRS and Respondent also provided that: If the State WIC Agency or local agency determines that the Vendor is unable or unwilling to properly comply with this agreement and/or Federal or State WIC Program rules, regulations, or policies, the State or local agency shall, after - thirty (30) days written notice, suspend the Vendor from further participation in the WIC Program for a period of up to one (1) year. The State or local WIC agency shall, upon thirty (30) days written notice, suspend the Vendor from participation in the WIC Program for a period of not less than three months upon substantiation of abuse of the WIC Program including, but not limited to the following: Providing . . . unauthorized foods in lieu of authorized supplemental foods. * * * Charging the WIC Program an amount for supplemental foods more than other cus- tomers are charged for the same food items * * * 5. Actual or attempted violation of appli- cable laws. HRS administers the WIC Program by issuing to eligible individuals negotiable checks that reflect designated categories of foods which may be purchased with the checks. Specific foods eligible for purchase in each category are on the back side of the checks. Clients to whom checks are issued take them to an approved Vendor participant store and purchase the foods as authorized by category. Vendor-participants in the WIC Program are instructed to disallow purchases of foods not specifically listed on the checks, and are further instructed at the time of the purchase to first insert the cash register amount of the purchase on the check and then to have the client sign the check. Individual vendor-participants are monitored by computer printout in HRS' Tallahassee office. When vendors' store prices for individual items exceed 20 percent of the average price for those items in a given county area, the local WIC office performs an investigation of the store by using undercover personnel to pass specifically identified checks through the store to identify where the overcharging is occurring and whether proper foods are being authorized for purchase by vendor-participants. Monitoring activities conducted by HRS preliminarily indicated Respondent was charging in excess of 20 percent above the norm in his area consistently, and in one case as high as 90 percent above norm. As a result of the aforementioned monitoring activities, specific identifiable checks were forwarded to the Orange County WIC Office and a staff member was assigned to go to despondent's store utilizing these checks for the purchase of goods. Four separate visits were made by a staff member, and on three of those instances the investigator was furnished with sales slips. On each separate occasion the investigator was asked by store personnel to sign the check prior to the purchase amount being inserted on the check as required by the agreement between HRS and Respondent. The investigator consummated purchases, and on at least three of those purchases individual items of unauthorized food were allowed to be purchased by Respondent. After the checks were cashed by Respondent and returned to the HRS office, it was found that three of the four checks were cashed for amounts in excess of the actual purchase price of the articles, ranging from $.3.37 to $3.83 in amount of the actual marked purchase price. Respondent, prior to the aforementioned purchases, had been duly instructed by HRS personnel concerning the correct procedures to be used in participating in the WIC Program. Further, HRS duly notified Respondent of its intent to take sanctions in the form of a suspension of his participation in the WIC Program.
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of · the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this :2.2.: day of A pkl ,2010, in Tallahassee, Florida. i Cc_ Thomas W. Arnold, Secretary Ii"l Agency for Health Care Administration Monique M. Barbour, M.D. - Final Order (Case No.: 09-6346MPI; Provider No.: 3797805-01; C.I. No.: 09-9019-000) Page 1 of3Filed April 23, 2010 4:10 PM Division of Administrative Hearings.A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Monique M. Barbour, M.D. Clear Vue Laser Eye Center 7657 Lake Worth Road Lake Worth, Florida 33467 Telephone: (561) 432-4141 Fax: (561) 432-4166 (Via U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Ken Yon, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Peter Williams, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Florida Department of Health Medical License #ME0068835 (Via Email Only) CERTIFICATE OF SERVICE ts2 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the '23 day of ----L- ,_.b.,. ,,_1--r4J- ,2010. ¢5? Richard Shoop,:,qu2e Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue In their joint stipulation, the parties framed the issues for determination in Phase 1 of this proceeding as follows: Whether a reasonable trier of fact can infer from the "Phase 1 Evidence" that Petitioner committed the infraction of a pattern of overcharging. Whether the "Phase 1 Evidence," which is assumed to be admissible, true, and accurate, for purposes of Phase 1, is sufficient for the trier of fact to find that the Department has met its burden of proving by clear and convincing evidence that Petitioner engaged in a pattern of overcharging.
Findings Of Fact The evidence presented in Phase 1, which, as stipulated by the parties, has been deemed to be competent and admissible for purposes of Phase 1, together with the parties' joint statement of undisputed facts, established the facts that follow. The Dispute As a food vendor under contract with the Department, J&L is authorized to accept food checks from participants in the Special Supplemental Nutrition Program for Women, Infants and Children ("WIC")1 and to receive payment on these checks from the Department, which administers the program in Florida. In this case, the Department seeks to disqualify J&L from participating in the WIC program for a period of three years as a mandatory sanction for allegedly having committed a serious violation of the federal regulations, namely, engaging in a "pattern of overcharging." J&L denies the charge. Background On May 24, 2000, Jean H. Cesaire, as the owner and authorized representative of J&L, executed a written agreement with the Department (the "WIC Vendor Agreement") which, by its terms, took effect on May 18, 2000. Under the WIC Vendor Agreement, J&L agreed broadly to comply with all state and federal WIC program rules, regulations, policies, and applicable law, and generally, among other things, to accept WIC food checks from program participants, to "[c]harge WIC customers the same price or less than the price charged to other customers in the quantities specified on the food checks and to not charge the WIC program for food not received by the customer." For its part, the Department agreed, among other things, to pay J&L "the amounts on properly redeemed food checks upon compliance by the vendor with the conditions contained [in the WIC Vendor Agreement]." Participants in the WIC program purchase groceries with food checks (sometimes also called "food vouchers," "food instruments," or "WIC checks") that they are provided based on individual nutritional needs. Each food check——and there are a number of different types, numerically identified——describes the kind and quantity of items that my be bought with that particular check. All of the check types at issue in this case afford the participant a menu of selections from which to choose, some offering a wider variety of options than others. For example, check type 029 permits the participant to purchase as many as five separate foodstuffs (some being available in alternative forms, e.g. frozen or liquid) in amounts up to a stated maximum, as follows: milk (1.5 gallons or six cans evaporated or 6 quarts dry); cheese (up to one pound); juice (12 ounces frozen or one 46-ounce can/bottle); cereal (up to 36 ounces); and eggs (one dozen). Because, as the WIC Vendor Agreement directs, "[t]he vendor shall not require WIC customers to purchase all of the items prescribed on the WIC check," a participant is free to tender a check type 029 in payment for, say, three cans of evaporated milk and a half pound of cheese. Doing so, of course, would unwisely "leave money on the table," needlessly relinquishing available benefits, but this sort of "under-consuming" is theoretically possible. Consequently, check type 029 permits a large number of potential purchase combinations. Other check types offer fewer choices. Check type 301, for instance, authorizes the purchase of up to seven, one-ounce cans of concentrated liquid infant formula, the WIC customer's only choice (in addition to quantity) being that between the brands Good Start and Alsoy. The limited menu on this check will produce (at least in most instances, presumably) one of two purchase combinations: either seven cans of Good Start or seven cans of Alsoy. The possibility that a participant might buy, e.g., three cans of Good Start and four of Alsoy, however, together with the potential for under-consuming (i.e. buying fewer than seven cans), increase the number of purchase combinations. Under the WIC Vendor Agreement, J&L is required to "submit an accurately completed WIC Food Price List to the department or local WIC office upon request." On July 20, 2000, J&L provided such a list to the Department. The Florida WIC Program Food Price List that J&L furnished the Department (the "Price List") constituted a representation by J&L that it would charge WIC customers (and hence the WIC program) the prices stated therein. Although a maximum price is not printed on the food checks used in Florida, it is possible, using J&L's Price List, to determine the costliest purchase combination available under a particular check type when presented in J&L's store. Simply put, the most expensive possible purchase for a given check type comprises the largest allowable amount of the priciest form of each foodstuff prescribed on the check. The sum total of the respective prices of these items (as set forth in the Price List) equals the check's dollar-limit in J&L's store. The Charge and the Department's Theory By a letter addressed to Mr. Cesaire and dated November 20, 2000, the Department notified J&L of its intent to disqualify the vendor from participating in the WIC Program for a period of three years, based on J&L's allegedly having engaged in a pattern of overcharging.2 In pertinent part, the Department alleged: During a visit to your store on July 20, 2000, [an inspection of WIC checks] showed: You were systematically charging a fixed price——i.e. the highest amount allowed for reimbursement by the Department——regardless of what customers actually purchased, and You were systematically charging amounts that were higher than your shelf prices for WIC food items, as set forth in the [Price List]. . . . . Since that visit, an audit of WIC checks submitted for payment by your store revealed that you continued to overcharge the WIC Program by routinely charging a fixed price and by claiming reimbursement for WIC checks in amounts that exceed your stated food item prices. Although these allegations imply that the Department has direct proof that J&L both (a) systematically charged a "fixed price" and (b) routinely charged WIC participants amounts that exceeded the current contract prices, in fact it is undisputed that statement (b) is the ultimate factual determination that the Department draws from basic premise (a). That is, the Department has no direct evidence that J&L routinely charged WIC participants prices in excess of those stated in the Price List; rather, it possesses proof that J&L systematically charged the dollar-limit on purchases paid for with the various food check types at issue, and the Department considers this to be circumstantial evidence of the violation charged. Underscoring the foregoing point is this from the parties' statement of facts not requiring proof at trial: 26. The parties stipulate that there is no particular WIC check that can be identified as having been utilized in the commission of an "overcharge" in that there is no way to tell what a customer actually purchased during a particular WIC transaction.[3] (However, this should not be construed as an admission by [the Department] that [J&L] did not commit a pattern of overcharging by maximum pricing, which is a theory that views the checks [in question] as a whole and not individually.) At the core of the Department's case is a chart containing data derived from hundreds of individual WIC checks that the Department contends collectively demonstrate a pattern of overcharging. The parties call this chart the "Matrix," and it is reproduced in full below. J & L #4626 Check Type Date Cleared Number of Checks Amount Highest Price Lowest Price 29 7/11/00 1 $ 25.99 $ 25.98 $ 18.32 7/18/00 1 $ 25.99 7/25/00 1 $ 22.82 8/29/00 1 $ 22.82 10/10/00 2 $ 22.82 31 6/28/00 52 $ 16.93 $ 16.23 $ 15.03 7/11/00 16 $ 16.93 7/18/00 30 $ 16.93 7/25/00 37 $ 13.53 8/1/00 34 $ 16.23 8/8/00 47 $ 16.23 8/15/00 40 $ 16.23 8/22/00 42 $ 16.23 8/29/00 57 $ 16.23 9/12/00 1 $ 16.23 9/19/00 12 $ 16.23 9/26/00 1 $ 16.03 9/26/00 22 $ 16.23 10/2/00 59 $ 16.23 10/10/00 45 $ 16.23 10/17/00 1 $ 11.10 10/17/00 8 $ 16.23 10/23/00 64 $ 16.23 10/30/00 1 $ 12.72 10/30/00 47 $ 16.23 11/7/00 1 $ 12.23 11/7/00 76 $ 16.23 11/10/00 1 $ 14.23 11/10/00 3 $ 16.23 11/14/00 56 $ 16.23 11/15/00 1 $ 16.23 11/20/00 40 $ 16.23 11/28/00 31 $ 16.23 33 6/25/00 12 $ 10.49 $ 10.34 $ 9.45 7/11/00 5 $ 10.49 7/18/00 12 $ 10.49 7/25/00 15 $ 9.64 8/1/00 9 $ 10.34 8/8/00 13 $ 10.34 8/15/00 10 $ 10.34 8/22/00 16 $ 10.34 8/29/00 7 $ 10.34 9/12/00 5 $ 10.34 9/19/00 4 $ 10.34 9/26/00 1 $ 9.16 9/26/00 6 $ 10.34 10/2/00 15 $ 10.34 10/10/00 13 $ 10.34 10/17/00 13 $ 9.64 10/30/00 1 $ 6.64 10/30/00 1 $ 7.25 10/30/00 20 $ 9.64 11/7/00 12 $ 10.34 11/10/00 11 $ 10.34 11/14/00 17 $ 10.34 11/17/00 1 $ 7.47 11/20/00 21 $ 10.34 11/24/00 1 $ 7.16 11/28/00 1 $ 10.34 86 8/29/00 1 $ 13.95 $ 13.87 $ 13.27 9/19/00 1 $ 13.17 159 6/28/00 50 $ 7.96 $ 7.51 $ 6.75 7/11/00 18 $ 7.96 7/18/00 32 $ 7.96 7/25/00 39 $ 6.74 8/1/00 35 $ 7.51 8/8/00 50 $ 7.51 8/15/00 40 $ 7.51 8/22/00 44 $ 7.51 8/29/00 66 $ 7.51 9/12/00 9 $ 7.51 9/19/00 15 $ 7.51 9/26/00 26 $ 7.51 10/2/00 62 $ 7.51 10/10/00 49 $ 7.51 10/17/00 59 $ 7.51 10/18/00 1 $ 7.51 10/23/00 64 $ 7.51 10/30/00 1 $ 4.46 10/30/00 50 $ 7.51 11/7/00 48 $ 7.51 11/10/00 1 $ 7.47 11/14/00 59 $ 7.51 11/15/00 1 $ 7.51 11/20/00 45 $ 7.51 11/28/00 41 $ 7.51 160 7/18/00 1 $ 27.49 $ 30.16 $ 21.67 7/25/00 1 $ 24.20 8/1/00 3 $ 24.20 8/8/00 3 $ 24.20 8/15/00 1 $ 24.20 8/22/00 4 $ 24.20 8/29/00 4 $ 24.20 9/12/00 1 $ 24.20 9/19/00 1 $ 24.20 9/26/00 5 $ 24.20 10/2/00 5 $ 24.20 10/10/00 5 $ 24.20 10/17/00 2 $ 24.20 10/30/00 8 $ 24.20 11/7/00 4 $ 24.20 11/10/00 3 $ 24.20 11/14/00 6 $ 24.20 11/20/00 8 $ 24.20 11/28/00 1 $ 24.20 162 6/28/00 26 $ 30.49 $ 33.05 $ 27.77 7/11/00 11 $ 30.49 7/18/00 26 $ 30.49 7/25/00 26 $ 30.40 8/1/00 20 $ 30.40 8/8/00 28 $ 30.40 8/15/00 31 $ 30.40 8/22/00 19 $ 30.40 8/29/00 24 $ 30.40 9/12/00 6 $ 30.40 9/19/00 7 $ 30.40 9/26/00 14 $ 30.40 10/2/00 36 $ 30.40 10/10/00 23 $ 30.40 10/17/00 27 $ 30.40 10/23/00 38 $ 30.40 10/30/00 20 $ 30.40 11/7/00 18 $ 30.40 11/10/00 1 $ 30.40 11/14/00 38 $ 30.40 11/20/00 27 $ 30.40 11/28/00 16 $ 30.40 201 7/11/00 1 $ 23.90 $ 21.00 $ 20.30 7/18/00 2 $ 23.90 7/25/00 2 $ 21.00 8/1/00 8 $ 21.00 8/8/00 5 $ 21.00 8/15/00 3 $ 21.00 8/22/00 11 $ 21.00 8/29/00 1 $ 21.00 9/19/00 1 $ 21.00 9/26/00 3 $ 21.00 10/2/00 6 $ 21.00 10/10/00 4 $ 21.00 10/17/00 7 $ 21.00 10/23/00 5 $ 21.00 11/7/00 9 $ 21.00 11/10/00 5 $ 21.00 11/14/00 3 $ 21.00 11/15/00 1 $ 21.00 11/20/00 10 $ 21.00 11/28/00 5 $ 21.00 202 7/18/00 2 $ 50.80 $ 45.00 $ 43.50 8/1/00 3 $ 45.00 8/8/00 5 $ 45.00 8/15/00 7 $ 45.00 8/22/00 6 $ 45.00 8/29/00 5 $ 45.00 9/12/00 1 $ 45.00 9/26/00 3 $ 45.00 10/2/00 4 $ 45.00 10/10/00 5 $ 45.00 10/17/00 5 $ 45.00 10/23/00 6 $ 45.00 11/7/00 6 $ 45.00 11/10/00 7 $ 45.00 11/14/00 5 $ 45.00 11/20/11 4 $ 45.00 11/28/00 8 $ 45.00 203 7/11/00 3 $ 54.80 $ 48.89 $ 47.19 7/18/00 5 $ 54.80 7/25/00 1 $ 48.89 8/1/00 5 $ 48.89 8/8/00 8 $ 48.89 8/15/00 10 $ 48.89 8/22/00 10 $ 48.89 8/29/00 7 $ 48.89 9/12/00 3 $ 48.89 9/19/00 2 $ 48.89 9/26/00 7 $ 48.89 10/2/00 7 $ 48.89 10/10/00 7 $ 48.89 10/17/00 9 $ 48.89 10/23/00 7 $ 48.98 10/30/00 8 $ 48.89 11/7/00 8 $ 48.89 11/10/00 3 $ 48.89 11/14/00 6 $ 48.89 11/20/00 6 $ 48.89 11/28/00 14 $ 48.89 204 7/11/00 1 $ 53.80 $ 48.00 $ 46.40 7/18/00 5 $ 53.80 7/25/00 3 $ 48.00 8/1/00 9 $ 48.00 8/8/00 11 $ 48.00 8/15/00 9 $ 48.00 8/22/00 17 $ 48.00 8/29/00 6 $ 48.00 9/12/00 1 $ 48.00 9/19/00 1 $ 48.00 9/26/00 5 $ 48.00 10/10/00 18 $ 48.00 10/17/00 15 $ 48.00 10/23/00 10 $ 48.00 10/30/00 3 $ 48.00 11/7/00 15 $ 48.00 11/10/00 11 $ 48.00 11/14/00 9 $ 48.00 11/20/00 13 $ 48.00 11/28/00 15 $ 48.00 205 7/11/00 3 $ 59.71 $ 53.58 $ 51.78 7/18/00 4 $ 59.71 7/25/00 2 $ 53.58 8/1/00 4 $ 53.58 8/8/00 8 $ 53.58 8/15/00 11 $ 53.58 8/22/00 6 $ 53.58 8/29/00 7 $ 53.58 9/12/00 2 $ 53.58 9/19/00 2 $ 53.58 9/26/00 7 $ 53.58 10/2/00 10 $ 53.58 10/10/00 3 $ 53.58 10/17/00 8 $ 53.58 10/23/00 8 $ 53.58 10/30/00 8 $ 53.58 11/7/00 7 $ 53.58 11/10/00 2 $ 53.58 11/14/00 6 $ 53.58 11/15/00 1 $ 53.58 11/20/00 7 $ 53.58 11/28/00 15 $ 53.58 The Matrix shows that for about a four month period, from August through November 2000, a high percentage of the WIC check types 029, 031, 033, 086, 159, 160, 162, 201, 202, 203, 204, and 205 that J&L submitted for payment were written at the particular check's dollar-limit. Two explanations for this phenomenon come readily to mind: Either, in these hundreds of transactions, the individual WIC consumers, presumably making their respective purchases largely unknown to (and independent of) one another, just happened consistently to select the most expensive combination of items available on these many checks, or the checks do not accurately and truthfully reflect the actual purchases made. The Department argues that the former, innocent explanation is incredible, leaving the latter, inculpatory explanation as the lone reasonable inference. Weighing the Department's Proof The strength of the Department's theory depends, in part, on the number of purchase combinations arising under each of the food checks in question: the more combinations the less likely the observed pattern of uniformity in check prices can credibly be explained as innocent coincidence. In this regard, the Department implicitly has conceded that under-consuming (i.e. foregoing the purchase of some authorized foodstuff(s) or buying less than the maximum allowed quantities thereof) is so infrequent as to have a negligible effect on the analysis.4 This is so because the Department has calculated a "lowest price" for each check type, that being (presumably) the least costliest combination of available items, assuming that the participant purchases the maximum amount of all the listed foodstuffs.5 Accepting the Department's assumptions in arriving at the "lowest price" figures reduces the number of potential purchase combinations, somewhat to the detriment of the Department's position. As mentioned above, some check types offer more food items than others. Check type 029, which already has been examined, allows the participant to buy five separate foods (milk, cheese, juice, cereal, and eggs), as does check type 160 (milk, cheese, juice, cereal, and eggs). Check type 162 lists six products (milk, cheese, juice, cereal, eggs, and peanut butter). Check type 086 authorizes the purchase of four items (milk, cheese, eggs, and peanut butter). Several checks permit the purchase of three food items: 031 (milk, cheese, juice); 159 (milk, juice, eggs); 203 (formula, juice, cereal); and 205 (formula, juice, cereal). One check type, 033, lists two items: milk and cheese. A few (check types 201, 202, and 204) allow the purchase of only one food item: infant formula. Obviously, the greater the number of food items (and attendant alternative forms or brands), the greater the number of purchase combinations, making the Department's argument facially more persuasive in connection with check types 029, 160, and 162, for example, than with respect to check types 201, 202, and 204. There are other factors to consider in evaluating the probative value of the Department's Matrix. One is the number of transactions associated with each check type, and the statistical significance of these numbers. For some check types, especially 029, 086, and, to a lesser extent, 160, the number of transactions during the pertinent period is seemingly too small to demonstrate a pattern, which casts doubt on the validity of the Department's desired inference of wrongdoing concerning these particular checks. Further, no expert testimony providing a comprehensive statistical analysis of the Matrix was (or would be) offered,6 and that also adversely affects the overall weight of this evidence. A related consideration involves the number of customers that the subject transactions comprehend. Assume, as a thought experiment, that every transaction identified in the Matrix involved a separate WIC participant. If true, that fact would bolster the Department's theory, because the probability that the observed uniformity in purchase prices occurred randomly presumably diminishes as the number of customers increases. On the other hand, it seems likely that, over the course of the months in question, some WIC participants used more than one food check to make multiple purchases in J&L's store; hence, the total number of such participants should be less than the total number of transactions reflected in the Matrix. The fewer the participants, the less persuasive the Department's theory, since price-uniformity presumably becomes more likely (and thus less suspicious) as the number of buyers decreases. The evidence in the record does not reveal the actual number of customers involved, which negatively affects the evidential weight of the Matrix. Moreover, there is (and would be) no evidence, such as expert opinion testimony on buying habits in the relevant market, bearing on whether, for any given check type, a particular purchase combination was more or less likely than any other.7 This deficiency undermines the probative value of the Matrix, because it is unreasonable to assume that all purchase combinations are equally likely or, more to the point, that the most expensive combinations are not likely to be seen with greater frequency than others. Indeed, it might reasonably be supposed that the most costly purchase combinations would be the most popular (and thus most often occurring) ones, not only because high-demand items tend to command higher prices than less desired products, but also because WIC participants, as rational economic actors, presumably would want to maximize their benefits. If this supposition were true, then the uniformity in purchase prices shown in the Matrix might not be as anomalous as the Department would have it. It could be, of course, that the high degree of price- uniformity (nearly 100% with some check types) seen here is telling; one can imagine an expert testifying, to make up an example, that while 75% of purchases are expected to be at the dollar-limit, 95% price-uniformity is suspiciously outside the normal distribution. These hypothetical numbers underscore the point, however, that absent such evidence the factfinder is left without a benchmark against which to measure the probative value of the Matrix. The buying patterns it reflects may be highly suspicious, somewhat suspicious——or completely innocent. In addition, to enlarge the foregoing point, because it is reasonable to assume that some percentage——perhaps a significant number——of "regular" purchases (i.e. those untainted by any misconduct) will be at the dollar-limit, it follows that not all of the transactions identified on the Matrix can reasonably be considered suspect. The lack of evidence concerning the percentage of dollar-limit purchases made in similarly-situated, law-abiding stores makes it impossible to calculate, for any given check type, how many of the transactions identified on the Matrix might reasonably be regarded as suspicious——and hence impossible to determine whether, assuming the Matrix is circumstantial evidence of wrongdoing, the violations occurred in a “pattern.” The Department has attempted to shore up its proof with the testimony of John Harrison, a longtime employee of the Department who has extensive experience in conducting compliance investigations of WIC vendors. In an affidavit, Mr. Harrison avers, in pertinent part, as follows: I was instrumental in the development of a retailer profiling system that is used to identify suspect WIC check redemption activities. I continue to provide training and guidance to the Florida WIC Program's investigators in the use of this system. During the past year, data from the system was used to identify [J&L] in Miami for investigation, along with several similar stores in Dade and Broward County that cater to clients of the WIC Program. The investigation of [J&L] confirmed for the Department what had been suggested by the computerized profile of the store and led to the allegations set forth in the November 20, 2000, disqualification letter: that the store was charging a fixed price that was unrelated to the shelf price of foods actually purchased by WIC customers. That is to say, [J&L] has systematically and methodically overcharged the WIC Program for approved WIC foods. The allegations of fixed pricing by [J&L] were substantiated to the Department's satisfaction through comparison with other independently owned stores in Miami-Dade County that appear to be charging fair and honest prices. The computer profile in these stores shows that a wide variety of prices are charged on WIC checks, which reflects the fact that WIC customers make different selections among the types and brands of foods that are approved for purchase. In my years of experience in investigating fraud by retailers in the WIC Program, I have not seen fixed pricing of the kind committed by [J&L], excepting several recent examples in Miami-Dade County. Even if Mr. Harrison's affidavit testimony were believed, this proof has little probative value because all the witness has said, at bottom, is that a computer-generated profile, which is not in evidence, together with other data not in the record, were sufficiently persuasive to convince the Department that J&L is guilty of the instant charge. The Department's burden, however, is to prove J&L's guilt to the factfinder's satisfaction——not merely to tell him that it truly believes the accused store is guilty. On its face, therefore, Mr. Harrison's testimony is not persuasive evidence of the facts that the Department must prove to prevail. Further, without the profile and other information underlying Mr. Harrison's conclusory assertions of guilt, the factfinder cannot independently assess the credibility of his assertions, which consequently are entitled to no more weight than allegations. The Department's proof suffers from another serious shortcoming. Assume, for argument's sake, that the high percentage of dollar-limit checks shown in the Matrix persuasively establishes, inferentially, that the checks which J&L submitted for payment do not accurately and truthfully reflect the actual purchases its WIC customers made. This would mean that J&L has done something wrong. But, the question then would arise, must that "something" be patterned overcharging? Upon reflection, it becomes apparent that the practice of "fixed pricing" or "maximum pricing" (as the Department has called it) could be used to cover up a number of different transgressions. One of them, certainly, is patterned overcharging. If, for example, J&L charged a purchaser of frozen orange juice the (higher) contract price for canned orange juice, that would be a form of overcharging. If this unsavory practice were consistently followed for all food items on all check types, a pattern of "maximum pricing" such as that seen in the Matrix would be produced.8 Imagine another scenario in which a vendor charges every user of check type 029 for a dozen eggs——even those purchasers who choose not to buy eggs. Charging WIC customers for food not received is a separate violation, distinct from overcharging. Yet, if this particular form of fraud were repeated consistently with regard to all check types, a pattern of "maximum pricing" also might emerge——even if no customers (or too few to constitute a "pattern") were "overcharged."9 Providing unauthorized food items is another serious violation. Imagine that a vendor were selling WIC customers ice cream and cookies and other unauthorized foods, and charging them for cheese and eggs and cereal. That, too, might result in a pattern of "maximum pricing," but the violation would not be overcharging. The same can be said about the provision of non- food items, and about the sale of alcoholic beverages and tobacco products as well. These also are separate violations that do not involve overcharging (as that offense is defined in the regulations) but could as readily as overcharging produce a pattern of "maximum pricing." The bottom line is, even if the factfinder were inclined to infer from the pattern of "maximum pricing" shown in the Matrix that J&L committed WIC program violations, for the Department to prevail he would need to infer from that first inference the conclusion that J&L was overcharging its customers and not engaging in some distinguishable wrongdoing (or combination of separate wrongs) with which a pattern of "maximum pricing" would be consistent. He would need further to infer that the overcharging had occurred with such frequency as to constitute a pattern of overcharging (because, remember, a dollar-limit check is not necessarily the product of an overcharge). In other words, to determine that J&L is guilty of the offence charged would require a pyramiding of inference upon inference. Ultimate Factual Determinations From August through November 2000, a high percentage of the WIC checks that J&L submitted for reimbursement were written at their respective dollar-limits. To be sure, this pattern of "maximum pricing" is fishy when considered in the abstract; the evidence, however, fails generally to put this seemingly suspicious pattern into a real-world context, and it fails in particular to establish, as a benchmark, the percentage of checks that would be written at the dollar-limit in the absence of wrongdoing. Thus, being unwilling to infer that the Matrix pattern is per se indicative of wrongdoing, the factfinder is not persuaded that J&L more likely than not engaged in misconduct. Additionally, even if the factfinder were willing to infer that the Matrix pattern would not have emerged but for some wrongdoing on J&L’s part, it would yet be too much of a stretch to infer further that the violation was overcharging as opposed to something else. Because J&L was accused of overcharging and nothing else, J&L cannot be found guilty of the specific offense charged. Finally, while it would be unreasonable to infer, from the Matrix alone, that J&L likely had engaged in overcharging, it would be irrational to infer that any suspected overcharging occurred so regularly as to constitute a pattern, because no demonstrated basis in fact or logic supports the proposition that every dollar-limit check is evidence of a transaction tainted with the fraud of overcharging, and the record reveals no principled basis for distinguishing between innocent maximum purchases and those resulting from misconduct.
Findings Of Fact On July 17, 1981, Petitioner, Sharron K. Goodman, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Marion County, Florida, which is a part of the North Cooling Climatic Region for purposes of determining the level of assistance to be given claimants. Although the application required that applicant furnish a Medical Certification for Cooling Form, she failed to do so. On July 21, 1981, the Department requested the claimant furnish the omitted information in order to complete her application. Because she failed to comply with this request, the application was ultimately denied. Applicant's household includes herself and her three children. She receives no monthly income except for a food stamp allowance. Except for the omitted form, applicant was otherwise qualified to receive $182 in cooling assistance benefits. Because she has no transportation, Petitioner was unable to secure a completed Medical Certification for Cooling Form on a timely basis although she attempted to do so on several occasions. She did obtain the necessary form around the first of August when she received medical treatment in Gainesville, Florida. The form establishes that applicant is in need of cooling assistance due to the existence of a chronic medical condition which requires a controlled temperature to prevent adverse effects which would be life-threatening.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner, Sharron K. Goodman, be GRANTED. DONE and ENTERED this 16th day of November, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1981. COPIES FURNISHED: Ms. Sharron K. Goodman Route 2, Box 749-P Silver Springs, Florida 32688 Joseph E. Hodges 2002 N.W. 13th Street, 4th Floor Gainesville, Florida 32601
The Issue The issue presented for decision herein is whether or not the Petitioner is entitled to be reimbursed for certain special equipment and supplies based on her claim to be reimbursed under the State of Florida Employees Group Health Self-Insurance Plan (herein the Plan)
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, posthearing memoranda, and the entire record compiled herein, I hereby make the following relevant findings of fact. During times material herein, the Petitioner was employed by the State of Florida, Department of Environmental Regulation, in Tallahassee, Florida and was eligible for, and was a member entitled to benefits under the State of Florida Employees Group Health Self-Insurance Plan. On May 12, 1982, the Petitioner was involved in an automobile accident which resulted in injuries leaving her an incomplete paraplegic. As a result of this accident, the Petitioner incurred certain expenses which prompted her (Petitioner) to submit a claim for reimbursement of certain expenses including the following items: Gresham hand controls purchased on approximately September 17, 1982 for $390. Walton exercise bicycle purchased on September 30, 1982 for $195. Building materials to construct an entrance ramp into her home for a sum total of $211.50. A reciprocal walker purchased on approximately September 30, 1982 for $50. Cuff weights purchased also on approximately September 30, 1982 for approximately $24. Surfak, a drug which the Petitioner purchases monthly for the sum of approximately $10.59 monthly. The total cost of the items claimed was approximately $881.09. The Petitioner submitted her claim to the Plan's Administrator, Blue Cross, on October 18, 1982, seeking reimbursement of the $881.09 (minus the 20 percent deductible) for the cost of the above items along with receipts and a doctor's letter stating the need for such items. The request was assigned claim number 22931382321 by Blue Cross and was processed by staff. By letter dated June 6, 1983, Blue Cross notified Petitioner of the denial of her claim for the hand controls, exercise bike, building materials and the drug Surfak. Blue Cross honored Petitioner's claim for the reciprocal walker and the cuff weights. The Gresham hand control is a device attached to an automobile to help a paraplegic drive an automobile by permitting the operator to control acceleration and braking with their hands instead of their feet. The building materials claimed by Petitioner were used to construct a ramp to allow access to and from the Petitioner's residence. The exercise bike is used by the Petitioner to aid in her physical therapy to strengthen her leg muscles. Surfak is a drug used in assisting a person with limited mobility to control their bowel movements. Petitioner has a continual use for Surfak based on her condition. Surfak is a non-prescription drug.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent reimburse the Petitioner for the expenses incurred by her, less the appropriate deductible, for the purchase of the Walton exercise bike. In all other respects, the Petitioner's claim for reimbursement of expenses incurred by her and as submitted by her claim to the Respondent on October 18, 1982, be DENIED. RECOMMENDED this 8th day of March, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984.
Findings Of Fact Petitioners are the parents and legal guardians of Emberlyn. On January 19, 2019, Ms. Davis gave birth to Emberlyn, a single gestation of 38 weeks, at the Hospital. Emberlyn was delivered by spontaneous vaginal birth and weighed 2,530 grams. Samir Mohammad Shakfeh, M.D., provided obstetrical services and delivered Emberlyn. The undisputed evidence in the record consists of affidavits and reports of two physicians—Dr. Donald Willis, a board-certified obstetrician, and Dr. Luis Bello-Espinosa, a board-certified pediatric neurologist who conducted an independent medical examination (“IME”) of Emberlyn. Dr. Willis reviewed the medical records and summarized his opinions about Emberlyn’s delivery and the attendant complications in a report, dated February 23, 2020. According to Dr. Willis, Ms. Davis’s pregnancy was uncomplicated until just before her delivery when an ultrasound suggested fetal growth delay. At that point, Ms. Davis was admitted to the Hospital for induction of labor. The labor was complicated by recurrent episodes of variable fetal heart rate decelerations with the development of rebound tachycardia prior to delivery and a maternal fever of 102.3 degrees. Emberlyn’s low birth weight was consistent with fetal growth delay or small-for-gestational age. Emberlyn was depressed at birth, limp, and without respiratory effort. The Hospital administered bag and mask ventilation for about 30 seconds, after which Emberlyn began spontaneous respiratory effort. Her APGAR scores were four at one minute, five at five minutes, and eight at ten minutes. About 30 minutes after birth, Emberlyn showed decreased perfusion and tone with grunting. She began suffering seizures that day and her arterial blood gas showed metabolic acidosis. On day four, an MRI showed restricted diffusion consistent with a hypoxic brain injury. Based on the medical records, Dr. Willis opined to a degree of medical probability that an obstetrical event resulting in oxygen deprivation to the brain occurred during labor, delivery, and continuing into the immediate post-delivery period. Dr. Willis further opined that the oxygen deprivation event caused brain injury, though he could not comment on the severity. Dr. Bello-Espinosa reviewed the medical records, conducted an IME on Emberlyn, and summarized his opinions in a report, dated July 10, 2020, as to whether Emberlyn suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. After being diagnosed with small-for-gestational age, perinatal depression, respiratory distress, and metabolic acidosis, Emberlyn was transferred to Johns Hopkins Children’s Hospital. On day one, she suffered episodes of apneas and developed hyponatremia, hypocalcemia, and hypomagnesemia. On day two, Emberlyn exhibited left-sided rhythmic jerking of her arm and leg with simultaneous twitching of her left face, which lasted about five minutes. Dr. Bello-Espinosa confirmed that the MRI taken on day four showed restricted diffusion in the brain most likely secondary to ischemic injury. Thereafter, Emberlyn remained stable until her discharge on January 30, 2019. A developmental evaluation performed the day after her discharge found that Emberlyn was at high risk for developmental delay due to hypoxic ischemic encephalopathy and seizures. Since her discharge, she has not suffered any seizure activity and has not been on anti-seizure medication since she was seven months old. On February 6, 2019, a follow-up MRI found that the previous areas of restricted diffusion were no longer visualized. Though subtle changes in right frontal and left temporal occipital regions existed, the diffusion changes noted in the first MRI spared the basal ganglia, posterior limbs of the internal capsule, and the cerebellum. Dr. Bello-Espinosa conducted an IME on July 10, 2020. Emberlyn was small for her age, but she appeared well-developed and well-nourished. She was alert, tracked, had very good attention, and was able to follow simple directions. Her neurological, motor, and sensory examinations were normal. Based on the medical records and his IME, Dr. Bello-Espinosa opined to a degree of medical probability that Emberlyn does not suffer from permanent and substantial mental or physical impairment.
The Issue Whether respondent should be disqualified from participating as a vendor in the Supplemental Food Program for Women, Infants and Children, known as the WIC Program.
Findings Of Fact The Special Supplemental Food Program for Women, Infants and Children (WIC Program) is funded by the United States Department of Agriculture under the Child Nutrition Act, Public Law No. 95-626. All funding for the WIC Program is federal; no state funds are used. The Department of Health and Rehabilitative Services (HRS) is the state health agency which is authorized to administer the WIC Program in Florida. The United States Department of Agriculture has promulgated regulations relating to the WIC Program which are set forth in 7 CFR Section 246.1 et seq. Among these regulations is the following requirement: The State agency shall establish policies which determine the type and level of sanctions to be applied against food vendors, based upon the severity and nature of the Program violations observed, and such other factors as the State agency determines appropriate.... 7 CFR 246.12(k)(1). Although HRS has established policies prescribing the type and level of sanctions to be applied, which are set forth in HRS Manual No. 150-24, dated May 1, 1983, and HRS Manual No. 150-24A, dated January 24, 1986, none of the policies have been promulgated as rules adopted pursuant to Chapter 120, Florida Statutes. Indeed, HRS has promulgated no rules relating to the WIC Program. The WIC Program provides certain important foods to pregnant women, infants and children. Program participants are examined by health professionals who determine the need for supplemental food and nutritional guidance. The participants receive checks for specific kinds and amounts of nutritious foods. The checks are redeemed at grocery stores that are approved by HRS. A participating grocer, or vendor, must meet certain qualification to participate in the program and must sign an agreement with HRS. The agreement expires at the end of each year and a new agreement is signed. A WIC check is similar to other types of checks and is redeemed by the vendor simply by depositing the check in his bank account. However, there are restrictions on the use of a WIC check. A WIC check can be used only to purchase the items listed on the face of the check. When a WIC check is presented for the purchase of items, the vendor must total the prices for the food listed on the check separately from any other food being purchased, ensuring that only the exact types and amounts of food listed on the check are included. The vendor then fills in the exact amount of the purchase on the check, and the customer signs the check. On March 21, 1984, HRS first contacted Sunrise Grocery in relation to its application to become a qualified vendor. At the time the owner of Sunrise Groceries was Albert Daa's, respondent's father. At the time of this visit, an application was filled out, and the rules and regulations set forth in HRS Manual No. 150-24 were explained. It was noted that the store lacked the minimum inventory of WIC foods. Another visit was made on April 20, 1984, at which time the store apparently reapplied for participation in the WIC Program. The store was subsequently qualified as a WIC Program vendor. On May 9, 1984, another visit was made to the store for the purpose of training. The rules and regulations, program procedures, and sanctions for program abuses were explained. The owner of Sunrise Groceries at this time was Albert Daa's and he signed this contact report. On September 20, 1984, HRS conducted a Vendor Compliance Review. The purpose of a Vendor Compliance Review is to ensure that the vendor understands WIC Program requirements and the obligations of a WIC vendor. The respondent, Isam Daa's, signed the report as the owner of the store. One of the requirements specifically discussed with respondent was the requirement that WIC checks not be written for amounts exceeding the actual shelf price of the food purchased. On December 11, 1984, HRS again visited Sunrise Groceries to discuss certain check redemption problems. Again, the consequences of overcharging were discussed. Respondent signed the report. On December 19, 1984, the respondent, as the owner and authorized representative of Sunrise Groceries, entered into an agreement with HRS effective January 1, 1985 through December 31, 1985, to participate as a vendor in the WIC Program. As part of this agreement, the respondent agreed to process WIC Program food checks in accordance with the terms of the agreement and state and federal WIC Program rules, regulations and policies. Respondent agreed to provide supplemental foods at the current price or at less than the current price charged to other customers. Respondent also agreed to be accountable for the actions of his employees in the utilization of food checks. Respondent and HRS have entered into the same agreement every year since then. On March 27, 1985, the respondent was sent a certified letter from John Harrison, program specialist with the Florida WIC Program. Respondent was advised that the charges on WIC checks deposited by his store had been exceeding the average for Hillsborough County stores by more than two dollars per check. The letter stated that vendors must charge competitive prices for WIC foods and stated that the prices charged by respondent had not been competitive. The letter specifically reminded respondent of the WIC Program requirement that a check may only be written for the total shelf price of the foods received by the customer. The letter informed respondent that his failure to comply with these or other requirements could result in the disqualification of his store for up to three years. In August of 1985, Mr. Harrison, who was the Senior Compliance Specialist for the WIC Program, received a call from the local agency indicating that there might be a problem with Sunrise Groceries. Further, a computer printout of September 17, 1985, showed that the average check redeemed by Sunrise Groceries was $2.70 over the average check redeemed in Hillsborough County for the same food. Mr. Harrison therefore made the decision to monitor Sunrise Groceries by using HRS investigators posing as clients. The investigators' checks were specially marked and issued for monitoring purposes. Checks were issued to four different investigators who made 14 purchases between the dates of September 20, 1985 and October 8, 1985. The monitoring of vendor stores is performed by each HRS investigator in substantially the same manner. The investigator goes into the store, purchases certain food items with a WIC check, and notes the amount that is written by the cashier on the check. After leaving the store, the investigator records the actual shelf price of each item purchased. The shelf price is the price that is stamped or placed on the item. Each investigator prepares a Monitoring Purchase Report for each check. The report indicates the time and date of purchase and the check used. The report lists the food prescription, the actual items purchased, the shelf prices for those items, and the amount of check. The investigator also records any other observations. Monitoring Purchase Reports are form reports that are routinely prepared by agency investigators in the course of their duties. Investigators Lenore Brantley and Sandy Kirkover testified at the hearing. Ms. Brantley made purchases at Sunrise Groceries on October 2, October 7, and October 8, 1985. On October 2, Ms. Brantley purchased items with a shelf price of $15.50. The amount written on the check was $17.72. On October 7, 1985, Ms. Brantley purchased items that had a shelf price of $13.01. The amount written on the check was $13.56. On October 8, 1985, Ms. Brantley purchased items with a shelf price of $4.16. The amount the cashier wrote on the check was $4.77. Ms. Kirkover visited Sunrise Groceries on September 20, September 25, and September 30, 1985. On September 20, 1985, Ms. Kirkover purchased items totaling $15.65. The amount written on the check was $16.27. On September 25, 1985, Ms. Kirkover indicated that the shelf price of the items purchased was $13.37 and the amount of the check was $13.51. She stated that the shelf price of the cheese was $3.05 a pound but that the cashier rang up $3.19 for the cheese. However, Ms. Brantley's report of October 7, 1985, indicates that the cheese actually cost $3.19. Thus, the amount written on the check was correct. On September 30, 1985, Ms. Kirkover purchased items with a shelf price of $4.15, and the cashier wrote on the check $4.15. Two of the monitoring purchase reports filled out by Ms. Grooms were accompanied by receipts for the groceries purchased with that check. Ms. Grooms used two checks for purchasing items at the same time on October 7, 1985. One check was used to purchase a gallon of whole milk and a half-gallon of milk. The receipt reflects the correct shelf price of those items, $4.16. The check, however, was filled-out for $4.71, which would have been the correct price if three half-gallons of milk had been purchased. The other check was for a variety of items, including a gallon and a half of milk. Ms. Grooms purchased one full gallon and one half-gallon. However, the receipt reveals that she was charged for three half-gallons. Further, the receipt shows the total for the purchases of $13.59, yet the check was written for $13.99. From the evidence presented, it is apparent that WIC checks filled out by respondent, or his employees, do not always reflect the actual shelf price of the food purchased. Indeed, from the evidence presented, it is quite clear that overcharging was the rule rather than the exception. Further, in certain cases the overcharging followed the same pattern, indicating that the overcharging was not a result of merely making an error on the price but was intentional. For example, it appeared to be a routine practice for respondent to charge for three half-gallons of milk, when a one gallon and a half-gallon were purchased, resulting in a 55-cent overcharge on each occasion. Mr. Daa's blamed most of the errors on a female cashier who worked for him for about two months. However, two of the three times Ms. Brantley purchased groceries, the cashier was a male. Several of the other reports also indicate that the cashier was a male. On December 4, 1985, respondent received a letter dated November 27, 1985, from petitioner proposing to disqualify respondent from the WIC Program for a period of three years effective January 1, 1986. The letter states that the proposed disqualification "is due to overcharges on WIC checks." No specific factual allegations were made by petitioner in the letter. Sunrise Groceries is a small business operating as a convenience grocery store in an area predominantly inhabited by persons of low income and poverty. The action proposed by petitioner will affect respondent's substantial interests by curtailing his ability to operate his small business. In HRS Manual No. 150-24, dated May 1, 1983, the consequences of vendor abuse are set forth. Section 15-17(a)(4) provides as follows: Vendors will be suspended/disqualified from the WIC Program for a period of not less than one (1) month and not more than three (3) years for: * * * (c) charging the participants more for supplemental foods than other customers are charged for the same foods. Attachment 3 to Chapter 15 sets forth the periods of disqualification to be imposed by HRS as follows: The periods of disqualification set forth below will be imposed by the State Agency in response to documented cases of Program abuse by vendors; i.e., violations of WIC Program rules and requirements which constitute a breach of the WIC Vendor Agreement. The period of disqualification will depend upon such considerations as the nature and extent of the violations, previous efforts to promote compliance, and hardships for participants that may result from the disqualification of a vendor. * * * Maximum Maximum 1st Number of Addi- Period of Violation Offense tional Offenses Disqualification *** *** *** *** Charging Warning 2 1 year WIC Parti- cipants more than the shelf prices of food *** *** *** *** HRS Manual No. 150-24A, dated January 24, 1986, revised the periods of disqualification. Attachment 3 to Chapter 15 states: The periods of disqualification set forth below may be imposed by the State Agency in response to documented cases of program abuse by vendors.... The actual period of disqualification will depend upon such considerations as the nature and extent of the violations, previous efforts to promote compliance, and hardships for participants that may result from the disqualification of a vendor. Period of Violation Disqualification *** *** Charging WIC participants more than the 3 years shelf price of food No specific evidence was presented at the hearing as to whether the disqualification of respondent from the WIC Program would create hardships for participants in the program. However, the WIC check computer print-out entered into evidence established that respondent does a substantial business with program participants. By November 15, 1985, respondent had cashed over 2,000 WIC checks in 1985.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent has charged the state more for supplemental foods than charged other customers, in that the amounts respondent filled-in on WIC checks were greater than the shelf price of the foods purchased, and warning respondent that any future violations could result in respondent's disqualification as a vendor in the WIC Program. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0802 Rulings on Petitioner's proposed findings of fact: Accepted generally. Accepted to the degree specified in the order. Accepted that respondent was advised that failure to comply with program requirements could result in disqualification. Respondent was also advised of the sanctions set forth in Manual 150-24. Accepted that overcharges were made on WIC checks as charged. Rejected. Federal regulations require the state to set policies determining the sanctions to be imposed. Rejected. The policy allowing for disqualification for a first offense did not go into effect until 1986. Rulings on Respondent's proposed findings of fact: Not a finding of fact, but facts stipulated to by the parties have been accepted. Rejected by contrary findings and as not supported by the evidence presented. Accepted. Accepted in that there was no finding made that respondent had ever been charged with "overcharging" prior to the instant case. Rejected in that the HRS manuals introduced into evidence established HRS' policy. Rejected to the degree it suggests that respondent has committed no act which would subject him to sanctions. COPIES FURNISHED: Fredrick P. Wilk, Esquire District VI Legal Counsel Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 Paul S. Buchmann, Esquire 212 North Collins Street Plant City, Florida 33566 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent David R. Hutto d/b/a Neighborhood Discount, signed a contract with the WIC Program administered by the Petitioner Department of Health and Rehabilitative Services on December 27, 1982, effective for the calendar year January 1 through December 31, 1983. One of the general conditions in the contract specifies that Neighborhood Discount, as a vendor, may be disqualified from participation in the WIC Program if it is disqualified from participation in any United States Department of Agriculture, Food and Nutrition Service Program. Respondent, operating as Neighborhood Discount, was disqualified from participation in the Food Stamp Program of the United States Department of Agriculture, Food and Nutrition Service Program, beginning July 16, 1983, for a period of six months. The basis for the disqualification was the sale of fourteen ineligible items including beer, cigarettes and a pocket knife.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered dismissing the proceedings to suspend the Respondent's WIC Program participation. DONE and ENTERED this 9th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of March, 1984. COPIES FURNISHED: Anthony W. DeLuccia, Jr., Esquire Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 David R. Hutto Neighborhood Discount 2130 Ford Street Fort Myers, Florida 33001 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
