The Issue The issue is whether Petitioner is eligible for the receipt of general revenue funds in the categories of homemaker services and equipment repair and replacement.
Findings Of Fact Petitioner was born on July 11, 1953. She suffers from cerebral palsy. She received special education for several years. For 11 years, she has worked two and one-half days weekly in the Dade County State Attorney's Office, where she mails out orders. Petitioner lives by herself in a home that she owns. Her disability interferes with walking. She entered the hearing room by placing her outstretched arms across her mother's shoulders, against which she placed her weight that her immobilized legs could not bear. Petitioner frequently falls. When walking without the assistance of another person or device, Petitioner presses her arms against a wall for the necessary support. For the last 12 years, Petitioner has used a three- wheeled scooter with a small electric motor to ambulate. This device has proved superior to crutches, which "get away from me." Petitioner has used the scooter to get to the physician's office, take out the garbage from her home, and perform her work in the State Attorney's Office. Seven months ago, the scooter broke. Petitioner has previously had the scooter repaired three times; her present scooter is four years old. The two batteries remain good, but the motor has become inoperative. No longer able to use the scooter at work, Petitioner sometimes falls down as she tries to walk along the walls. When this happens, a coworker brings her a chair so she can get back up. Recently, during a bomb threat, a coworker had to wheel Petitioner out of the building using an executive chair. In the past, Petitioner has obtained monetary support from her mother. However, her mother has recently retired and is now living on a pension of $800 monthly. Petitioner's disabilities prevent her from performing common housekeeping chores like mopping floors and putting clothes in the washer. Able to do a limited amount of these tasks, Petitioner has long relied on her daughter to perform the portion of these tasks that Petitioner cannot perform. However, her daughter is 19 years old and has moved out to attend college, so she is no longer available to perform these tasks. Petitioner's 65-year-old mother cannot do household chores due to an arthritic shoulder. More than anything else, Petitioner seeks limited assistance to achieve maximum independence. Unable to afford special transportation services and without her scooter, Petitioner now mostly watches television at home alone. During her one-hour lunch break, Petitioner is no longer able to leave the building. Petitioner became a client of Respondent in August 2001. As conceded by Respondent's sole witness, Petitioner is otherwise eligible for the services that she seeks, except that sufficient funds are not available. As reflected in the Developmental Disabilities Hearing Request, Petitioner has sought services funded by general revenue funds, not Medicaid Waiver funds. In support of its denial of services based on funding limitation, Respondent has relied upon spending-plan criteria contained in Respondent Exhibit 1. Respondent Exhibit 1 details a five-part prioritization schedule for the provision of services. In order, the following persons are served: persons who were clients as of July 1, 1999; members of the class action styled Cramer v. Bush; persons in crisis (estimated at 10 new clients monthly statewide); persons discharged from the Mentally Retarded Defendant Program; and persons who have become clients since July 1, 1999. Based on the present record, Respondent's reliance upon Respondent Exhibit 1 is misplaced. The present record suggests that the five-part prioritization schedule described in the preceding paragraph is for persons seeking Medicaid Waiver services, not General Revenue funds. For instance, immediately following the fifth priority, the document reveals that the schedule is for Medicaid Waiver clients when the document states: "In order to serve the estimated additional 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above." The testimony of Respondent's sole witness relied on Respondent Exhibit 1, which appears on its face not to govern Petitioner's request for services. Thus, Respondent's evidence of insufficiency of funds is itself insufficient.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's requests for homemaker and equipment repair and replacement services. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2002. COPIES FURNISHED: Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Veronica Roker 2282 Northwest 152nd Street Opa Locka, Florida 33054 Hilda Fluriach District 11 Legal Counsel Department of Children and Family Services 401 Northwest 2nd Avenue Suite N-1014 Miami, Florida 33128
Conclusions Having reviewed the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the Petitioner, a renewal applicant for assisted living facility licensure, the attached Notice of Intent to Deny and Election of Rights form. (Ex. 1) The Election of Rights form advised the Petitioner of the right to an administrative hearing pursuant to Sections 120.57(1) and 120.57(2), Florida Statutes. 2. The Petitioner filed a Petition for Formal Administrative Hearing. 3. The Petitioner subsequently filed a Notice of Voluntary Dismissal. (Ex. 2) IT IS THEREFORE ORDERED THAT: 1. The Petitioner’s request for hearing is dismissed, the Agency’s Notice of Intent to Deny is upheld, and the Petitioner’s renewal application for an assisted living facility license is DENIED. 2. In accordance with Florida law, the expiration date of the existing license is extended 30 days for the sole purpose of allowing the safe and orderly discharge of clients. At the conclusion of 30 days or upon the discontinuance of operations, whichever is first in time, the Petitioner shall immediately return the license certificate for the license which is the subject of this action to the appropriate licensure unit in Tallahassee, Florida. 3. In accordance with Florida law, the Petitioner is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in authorizing statutes and applicable rules. The Petitioner is advised of Section 408.810, Florida Statutes (2013). 4. In accordance with Florida law, the Petitioner is responsible for any refunds that may have to be made to the clients. The Petitioner is advised of Section 429.31, Florida Statutes (2013). 1 Filed May 20, 2014 11:28 AM Division of Administrative Hearings 5. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program and private contracts. ORDERED in Tallahassee, Florida on this Le day of YA Nea , 2014. Mier) Elizabeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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 by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of 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. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy-of this Final Order has been furnished by the method designated to the persons named below on this ay of VA Z Z » 2014. Richard J. Shoop, Agency Cler! Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 Jan Mills Catherine A. Avery, Acting Unit Manager Facilities Intake Unit Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration Cnteroffice Mail) (Interoffice Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (nteroffice Mail) Arlene Mayo-Davis, Field Office Manager Area |] — Dade Agency for Health Care Administration (Interoffice Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Interoffice Mail) Teresita A. Vivo, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Interoffice Mail) Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive. Suite 101 Tallahassee, Florida 32308 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. (3) Any person who knowingly alters, defaces, or falsifies a license certificate issued by the agency, or causes or procures any person to commit such an offense, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any licensee or provider who displays an altered, defaced, or falsified license certificate is subject to the penalties set forth in s. 408.815 and an administrative fine of $1,000 for each day of illegal display. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until 3 compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue for determination is whether Petitioner satisfies the eligibility requirements in Subsection 121.081(1)(f), Florida Statutes (2005), to purchase past service credit in the Florida Retirement System (FRS).
Findings Of Fact Petitioner was employed as a State Certified Paramedic by Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), in Brevard County, Florida, from sometime in December 1976 through September 30, 1999. From October 1, 1999, through the date of the formal hearing, Petitioner was employed as a county employee in an identical capacity with Brevard County Fire Rescue (BCFR). Petitioner's employment with HCVAS and BCFR was continuous, with no break in service. Petitioner performed identical services with HCVAS and BCFR and had identical duties and responsibilities. At BCFR, Petitioner received credit for 80 percent of the seniority and leave accrued while Petitioner was employed with HCVAS. From sometime in October 1992 through September 30, 1999, HCVAS furnished emergency and non-emergency ambulance service in an area the parties refer to as the central part of Brevard County, Florida, that is legally described in Petitioner's Exhibit A (the service area). HCVAS furnished ambulance service pursuant to a contract with the Brevard County Board of County Commissioners (the County). HCVAS was an independent contractor with the exclusive right to provide ambulance service in the service area. The County, rather than HCVAS, provided emergency ambulance service for that part of the County outside the service area. A company identified in the record as Coastal Health Services provided non-emergency ambulance service outside the service area. HCVAS was an "employing entity which was not an employer under the [FRS]," within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). HCVAS was a private, non-profit company rather than a government entity. However, employees of HCVAS were not volunteers, but were full-time employees of HCVAS. HCVAS paid its employees, including Petitioner, from funds received from the County. The County retained exclusive control of communication and dispatching of emergency calls for the entire County, including the service area. The County required HCVAS to maintain communication equipment that was compatible with the central communication system. On October 1, 1999, the County effected an "assumption of functions or activities" from HCVAS within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). The County allowed the contract with HCVAS to expire on September 30, 1999. On April 13, 1999, the County authorized BCFR to provide emergency ambulance service to the service area previously served by HCVAS. The County also authorized the county manager to purchase rescue units and equipment and required the county manager to give first priority to units and equipment of HCVAS. Eligibility for HCVAS employees such as Petitioner to participate in the FRS arose through the assumption of HCVAS functions by the County. The County did not employ HCVAS employees, including Petitioner, as a result of competitive selection. The primary conditions of employment for HCVAS employees such as Petitioner were that each HCVAS employee must apply for employment with the County no later than May 29, 1999; possess a valid Florida driver's license; and pass a criminal background check. The County directed its Public Safety Department (Department) to give special consideration to HCVAS employees, including Petitioner, by hiring as many HCVAS employees as possible. Applications for employment from the general public were to be accepted only if employment positions remained unfilled after placing all qualified HCVAS employees in available positions. Approximately 95 HCVAS employees, including Petitioner, applied for employment with the County. The County employed approximately 90 of the 95 applicants. The five applicants who were not employed were rejected because the applicants either did not possess a valid Florida driver's license or did not pass the criminal background screening. Rejection of an applicant required approval of two supervisors. On October 1, 1999, the County recognized past service with HCVAS by new employees such as Petitioner. The County credited each new employee with seniority, annual leave, and sick leave based on a contractual formula negotiated with the labor union equal to 80 percent of seniority, annual leave, and sick leave earned while employed by HCVAS. On October 1, 1999, former HCVAS employees employed by the County, including Petitioner, became entitled to participate in the FRS system through the "assumption of functions or activities" by the County from HCVAS "which was not an employer under the system" within the meaning of Subsection 121.021(1)(f), Florida Statutes (2005). On the same date, Petitioner became a member of the special risk class of FRS and is "entitled to receive past-service credit . . . for the time" Petitioner "was an employee of [HCVAS] . . . the "other employing entity." On November 6, 2003, Petitioner applied to purchase credit in the FRS for his past service with HCVAS. On December 23, 2003, Respondent denied Petitioner's request on the ground that a "merger, transfer or consolidation" of functions between units of government did not occur. On January 8, 2004, Petitioner provided Respondent with a written reply. The reply explained that the application to purchase credit for past service was based on the County's assumption of functions or services by an employing entity that was not an employer under the FRS and not on a merger, transfer, or consolidation of functions between units of government. By letters dated April 16 and May 25, 2004, Respondent issued written statements of proposed Final Agency Action. On April 16, 2004, Respondent based its proposed agency action on the express ground that a "merger, transfer or consolidation" had not occurred when the County undertook emergency ambulance service in the service area. On May 25, 2004, Respondent added the additional ground that an assumption of functions did not occur between governmental units because HCVAS was a "not-for- profit corporation" and not a "unit of government."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application to purchase credit in the FRS for past service with HCVAS. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2006. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Adrienne E. Trent, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Alberto Dominguez, General Counsel Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent for Case No. 2012007833. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. The Respondent waived the right to receive an Administrative Complaint and Election of Rights form for Case No. 2012010596. (Ex. 2) 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Respondent’s assisted living facility licenses for Northwest Care Center ] (License No. 7365) and Northwest Care Center III (License No. 8425) are relinquished and cancelled. 6. The Respondent and Ethelene B. Moore, individually, shall not seek licensure nor operate any facility licensed by the Agency for a period of 5 years from the date of execution of this Agreement. 7. Administrative fines and survey fees of $20,500.00 are imposed against the Respondent, but STAYED for purposes of collection as long the Respondent and Ms. Moore not seek any licensure from the Agency. In the event that the Respondent or Ms. Moore seeks licensure from the Agency after the period set forth above, the applicant shall pay $20,500.00 before any application for license can be considered. 1 Filed April 17, 2013 1:30 PM Division of Administrative Hearings 8. The Respondent is responsible for any refunds that may be due to any clients. 9. The Respondent shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Respondent is advised of Section 408.810, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 10. The Respondent is given notice of Florida law regarding unlicensed activity and is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this. 7D day of Mr . 2013. Elizabeth Duddk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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 by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of 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. CERTIFICATE OF SERVICE I CERTIFY that a true and tne oo ee of wis Final Order was re on the below-named persons by the method designated on this / potas “pe , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II Office of the General Counsel Agency for Health Care Administration (Electronic Mail) George F. Indest UI, Esq. The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 (U.S. Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearing (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until 3 compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions There is competent substantial evidence to support a conclusion that Miami-Dade County owed a duty of care that was breached when its bus driver ran a red traffic signal, directly and proximately causing the Claimant’s permanent and severe injuries. ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with Section 768.28(8), Florida Statutes, but not with Section 3 of this claim bill, Claimant’s attorney has submitted a closing statement affirming that the attorney’s fees are 25 percent of the amount of the award, and that the lobbyists' fees are an additional 6 percent. The Claimants have entered into an agreement to pay costs that was approved by the guardian and the court. Costs are expected to range between $25,783.29, the amount as of January 15, 2007, to $75,783.29 by the end of the claim bill process. LEGISLATIVE HISTORY: This is the first time that a claim bill has been filed to compensate Schneidine Theogene. RECOMMENDATIONS: For the reasons set forth in this report, I recommend that Senate Bill 56 (2008) be reported FAVORABLY. Respectfully submitted, cc: Senator Dave Aronberg Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Mark Kruse, House Special Master Counsel of Record
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, itis ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent’s assisted living facility license is SURRENDERED. 3 The Respondent shall pay the Agency $3,000.00, due within 9 months of the date of this Final Order. The cancelled check(s) act as receipt(s) of payment. If the Respondent reapplies for any licenses an additional balance of $1,370.00 must be paid to receive any licenses if otherwise qualified. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 1 Filed June 11, 2013 8:38 AM Division of Administrative Hearings 4. The Respondent is responsible for any refunds that may be due to any clients. 5. The Respondent shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Respondent is advised of Section 408.810, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_ /@_ day of Arne , 2013. Elizabeth Didek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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 by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of 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. CERTIFICATE OF SERVICE I CERTIFY that a true and correc yy of this Final Order _was served on the below-named persons by the method designated on this "Oty of we , 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL 32308-5403 Telephone: (850) 412-3630 2 Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) David Selby Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Letitia Stephens, Administrator/Owner From The Heart Assisted Living Agency for Health Care Administration 536 61" Street South (Electronic Mail) St. Petersburg, FL 33712 (U.S. Mail) Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) Itis unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issues in these cases are whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation in Palm Beach County, Florida, and whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation Services in Duval County, Florida, are contrary to Respondent’s governing statutes, Respondent’s rules or policies, or the request for proposals.
Findings Of Fact The Commission is an independent commission of the State of Florida created pursuant to Section 427.012, Florida Statutes (2009),1 and is housed administratively within the Department. The Commission sought proposals to provide Medicaid non-emergency medical transportation, and the Department administered the procurement process for the Commission by issuing the RFP and otherwise administratively handling the procurement for the Commission. Contracts were to be awarded for ten counties, including Palm Beach and Duval Counties. The proposers were required to submit a separate proposal for each county for which they were seeking a contract. The RFP incorporated three separate addenda, numbered one through three. Addendum No. 2 included a list of potential proposers’ questions concerning the RFP and the Commission’s responses to those questions. Each proposer was required to include with its proposal a signed acknowledgement certifying its receipt of each addendum. When the notice of solicitation was posted and the addenda were issued, no party filed a protest of the specifications within 72 hours of the posting or issuance of the addenda. MV Contract Transportation, Inc., and TMS Joint Venture submitted their responses to the RFP for both Duval and Palm Beach Counties. MV Contract Transportation, Inc., is a Delaware Corporation, which was incorporated on September 23, 2003. It is a wholly-owned subsidiary of MV Transportation, Inc., which is a California corporation incorporated on December 18, 1978. MV Contract Transportation, Inc., is a separate corporation from MV Transportation, Inc. MV Contract Transportation, Inc., and MV Transportation, Inc., have separate federal employer identification numbers, bank accounts, officers, and directors. TMS Joint Venture was formed by TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., pursuant to a Joint Venture Agreement dated October 15, 2009. TMS Joint Venture refers to the term “TMS” throughout its proposals as TMS Joint Venture and its respective venturers. TMS Management Group, Inc., was formed on January 4, 2005. Transportation Management Services of Brevard, Inc., was formed on November 23, 2004. Relevant portions of the Joint Venture Agreement provide: TMSG [TMS Management Group, Inc.] and TMSB [Transportation Management Services of Brevard, Inc.] do hereby acknowledge, pledge, and covenant with one another to allow the full use of their personnel, equipment, assets, and facilities to support and perform any contract(s) to which the Joint Venture may become a party and to do such other things and provide other support to TMS [TMS Joint Venture], as may be reasonably necessary, to allow TMS to submit bids, proposals, or otherwise respond to solicitations for its services on the projects and to perform all contracts which may be awarded to TMS. * * * TMSG shall provide financial and administrative support to TMS. In doing so, it is hereby authorized to submit bids and proposals on behalf of TMS. It is further authorized to execute contracts on TMS’ behalf and to thereby bind both TMSG and TMSB as Venturers. TMSG shall also be authorized to accept and cash checks made payable to TMS and to deposit such into its accounts for subsequent use and distribution in accordance with the joint instructions of the Venturers. TMSG shall otherwise be authorized to take all actions, including but not limited to the submission of all payment requests, payment of related bills and expenses, negotiate and execute any needed subcontracts, provider agreements, obtain insurance or bonds if needed and to otherwise execute all documents and conduct all of the business of TMS for the benefit of the Venture. TMS Joint Venture has been awarded contracts pursuant to the RFP for other counties. Those contracts have been entered into by the Commission and TMS Joint Venture/TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc. The Department posted its initial Notice of Intent to Award the contracts pursuant to the RFP at 5:00 p.m. on November 16, 2009. For the Duval County contract, the posting showed that “MV Contract Transportation” had earned a total score of 88.33 and that TMS Joint Venture had earned a total score of 83.99. The initial Notice of Intent to Award proposed to award the Duval County contract to MV Contract Transportation, Inc. On November 19, 2009, TMS Joint Venture filed a notice of intent to protest the contract award for Duval County pursuant to the RFP. The notice of intent to protest identified the RFP by number, RFP-DOT 09/10-9005-JP-Duval County, Fl. The notice of protest stated: Please be advised that this firm represents the interests of TMS Joint Venture (“TMS”) regarding the above referenced matter. Please accept this as written notice of TMS’s intent to protest the above referenced intended award to MV Transportation, Inc. (“MV”). This Notice of Intent to Protest is being forwarded to you pursuant to paragraph 29.1 of the RFP and Florida Statute 120.57. No evidence was presented that any of the parties were confused about who was the intended awardee for the Duval County contract. No evidence was presented that, at the time of the filing of the notice of intent to protest, any of the parties were uncertain that TMS Joint Venture was protesting the intended award of the Duval County contract to MV Contract Transportation, Inc. In its Petition to Intervene for the Duval County contract, MV Contract Transportation, Inc., stated: On November 16, 2009, the Department posted a Notice of Intent to Award the Duval Contract to MV Contract. On November 19, 2009, TMS filed its Notice of Intent to Protest the award to MV Contract. On November 30, TMS filed a Formal Written Protest and Petition for Formal Administrative Hearing (“the Petition”). The initial posting for Palm Beach County showed that TMS Joint Venture had a total score of 91.66 and that “MV Contract Transportation” had a total score of 91.65. The initial Notice of Intent to Award proposed to award the Palm Beach County contract to TMS Joint Venture. On November 18, 2009, MV Contract Transportation, Inc., filed a notice of intent to protest the award of the Palm Beach County contract to TMS Joint Venture. On December 16, 2009, the Department posted a revised Notice of Intent to Award the Palm Beach County contract to “MV Contract Transportation.” The total score of TMS Joint Venture was revised to 89.65, based on a scrivener’s error by an evaluator. One of the evaluators had made a mistake in recording the scores from his handwritten score sheet to the typed score sheet. There was no evidence presented that any of the evaluators were given an opportunity to revisit or change their original scoring of the proposals. On December 18, 2009, TMS Joint Venture filed a notice of intent to protest the intended award of the Palm Beach County contract to MV Contract Transportation, Inc. TMS Joint Venture filed a Petition for Formal Hearing concerning the Palm Beach County contract with the Commission on December 28, 2009, as stated in the Certificate of Service. Section 1 of the Introduction portion of the RFP provides: The Department intends to award contracts to responsive and responsible Proposer or Proposers whose proposal is determined to be the most advantageous to the Department. . . . After the award, said Proposer will be referred to as the “Vendors.” For the purpose of each document, the term “Proposer” means the prime Vendor acting on its own behalf and those individuals, partnerships, firms, or corporations comprising the Proposer team. The term “prime vendor” is not defined in the RFP. There are references in other sections of the RFP which require the identification of the “prime contractor” in the completion of the Bidder Opportunity List and the Anticipated DBE Participation Statement. The terms prime contractor and prime vendor are synonymous. The Department interprets the term “prime vendor” to mean the entity that will be entering into the contract with the Commission and that will be bound legally to the terms of the contract. The cover letter of each proposal and the forms submitted which required a signature are signed by W.C. Pihl, vice president. Mr. Pihl is a vice president of business development for MV Contract Transportation, Inc. The cover pages of the proposals at issue submitted by MV Contract Transportation, Inc., state that the proposal is submitted by MV Contract Transportation, Inc., and underneath that name further state in italics “A Wholly Owned Subsidiary of MV Transportation, Inc.” The cover letter in each proposal states: “Enclosed please find MV Contract Transportation’s proposal in response to the State of Florida Department of Transportation’s Request for Proposal for Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted, and “I encourage you to select MV Contract Transportation as your partner for the provision of Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted. The Bid Opportunity List, which was required to be submitted with each proposal, identified the prime contractor as MV Contract Transportation, Inc. If awarded the contracts for Duval and Palm Beach Counties, MV Contract Transportation, Inc., is the entity who would be entering into the contracts and who would be legally bound to the contracts. It is clear that MV Contract Transportation, Inc., is the prime vendor for the proposals at issue. The proposals submitted by TMS Joint Venture stated: “The TMS Joint Venture with its respective Venturers are hereinafter collectively referenced throughout this proposal as ‘TMS,’ which is the entity submitting this proposal.” The proposals identified TMS Joint Venture as the prime vendor. On October 12, 2009, the Department issued Addendum No. 2 to the RFP, which included questions that were received from prospective proposers and the Commission’s responses. Question 7 stated: “Page 18, Section 28, Proposal Evaluation: Is the evaluation of the proposal strictly limited to the prime vendor and the Proposer Team as identified in Section 1, invitation?” The Commission’s written response was: “The evaluation of the proposal is based on the prime vendor and their demonstration of their ability to fulfill the requirements of the scope of services.” TMS Joint Venture takes the position that question 7 in Addendum No. 2 means that the evaluation of a proposer’s experience and capability to fulfill the requirement of the scope of services is limited to a review of the experience and capability of the prime vendor and that the experience of others who are part of the proposer team may not be considered by the evaluators. MV Contract Transportation, Inc., takes the position that the experience of others who are a part of the proposer team may be considered in determining whether the prime vendor has the ability to fulfill the requirements of the scope of services. It is not clear from the testimony what the position of the Commission is concerning whether question 7 in Addendum No. 2 limited the evaluation to the prime vendors’ experience. Joyce Plummer, the Department employee responsible for the procurement, relied on the Commission for the answers to the questions asked by the proposers. Bobby Jernigan, the executive director of the Commission, relied on his staff to answer the questions. Thus, no one clearly stated the Commission’s position as to what the Commission intended by the response to question 7 in Addendum No. 2. The proposed recommended order of the Commission does little to shed light on whether the Commission intended to limit the evaluation to the experience of the prime vendor. For example, in its proposed recommended order, the Commission states that the statements about MV Contract Transportation, Inc.’s, experience which included MV Transportation, Inc.’s, experience were not misrepresentations, “as long as it is proper for the proposer to have included information about its parent company” and certain claims made by MV Contract Transportation, Inc., are true, “unless MV can only make claims as to the particulars of MV Contract Transportation, Inc.” Based on question 7 and the response to question 7 in Addendum No. 2 and the definition of proposer in the RFP, the evaluation and scoring of the proposals were to be based on the experience, solvency, assets, and capabilities of the prime vendor and not the prime vendor and the proposer team. If the Commission had wanted the experience and solvency of parent companies and affiliates to be considered in the evaluation, it could have said so in its response to question 7, but it did not do so. Section 8.1 of the Special Conditions of the RFP states: The Department will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. The Proposer shall identify necessary experienced personnel and facilities to support the activities associated with this proposal. Section 20.2 of the Special Conditions of the RFP provides that the proposals shall include an executive summary, a management plan, and a technical plan. The sections were described in the RFP as follows: EXECUTIVE SUMMARY The Proposer shall provide an Executive Summary to be written in nontechnical language to summarize the Proposer’s overall capabilities and approaches for accomplishing the services specified herein. The Proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER’S MANAGEMENT PLAN The Proposer shall provide a management plan which describes administration, management and key personnel. Administration and Management The Proposer should include a description of the organizational structure and management style established and the methodology to be used to control costs, services, reliability and to maintain schedules; as well as the means of coordination and communication between the Proposer and the Commission. The Proposer shall provide a management plan which describes administration, management and key personnel. The plan should address the following: Company’s experience in providing specialized transportation services, including but not limited to Medicaid NET. Include location and duration. Company’s assets available to operate in the county proposed to be served. List all assets that will be committed to this project. Describe the proposed local service area organizational structure and how it fits into the overall organizational structure of your company. Company’s ability to comply with the reporting requirements and the Scope of Services. Cite any failures to provide adequate and timely reporting in the past. Company’s solvency and ability to assume the risks of service provision in the proposed county. Does your company have a policies and procedures manual? If so, describe the type of policies and procedures contained in your manual, how often they are updated and how they are maintained. (Please provide a copy.) Describe your company’s driver training program. How will you ensure you’re [sic] your drivers and the drivers of any subcontracted transportation providers are trained? Does your company have a Quality Management Plan? If so, please provide a copy. If not, describe your methods for ensuring quality of services. Describe your company’s process for the procurement of subcontracted operators, if applicable, including your efforts for recruitment and retention of minority businesses. Please describe how your company’s internal office practices lessen the impact on non-renewable resources and global climate change (reduction in water, energy, paper use, minimalization of hazardous materials, compressed or flexible work week schedules, etc.). Discuss what initiatives your company will implement to effectively manage current funding levels and secure additional funds to support the system. Provide 3-5 professional references regarding your organization’s ability and experience in providing specialized transportation, including but not limited to Medicaid NET services. The references should state the period of time service was provided. Identification of Key Personnel The Proposer should provide the names of key personnel on the Proposer’s team, as well as a resume for each individual proposed and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively for the project and to the assigned tasks should also be indicated. 3. PROPOSER’S TECHNICAL PLAN The Proposer shall provide a technical plan which explains technical approach and facility capabilities. Technical Approach The Proposer should explain the approach, capabilities, and means to be used in accomplishing the tasks in the Scope of Services, and where significant development difficulties may be anticipated and resolved. Any specific techniques to be used should also be addressed in addition to the following: The Proposer should provide a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this work. Identify your company’s software and demonstrate its ability to comply with CMS, HIPPA and Commission software necessary for reporting data as required in Exhibit A, scope of services. Provide documentation demonstrating the number of specialized transportation trips, including but not limited to, Medicaid NET, provided on a monthly basis and show the complaint ration on said trips. Please state when and where these trips were provided. Describe your company’s process for tracking and resolving complaints received. Please include the length of time it takes a complaint to be resolved by your organization. Describe your company’s ability to monitor activities of subcontracted operators. Reference evaluation tools used and include copies in proposals if available. Please describe your company’s vehicle inspection and maintenance program to ensure safe and reliable functioning of their vehicles. Address how your company will comply with the requirements of Chapter 14- 90, FAC. Have your vehicles or your subcontractors vehicles, been involved in any accidents that resulted in a fatality over the last year? Please attach the accident report(s). Describe the process to acquire vehicles for use in the service area. Provide the estimated amount of time required to acquire vehicles. Please describe any alternative energy resources your company or your subcontractors (or expectations listed in procurement for subcontractors) may utilize, such as solar or wind energy, and use of bio-diesel or other alternative fuels in support of your company’s energy needs. Provide a detailed plan describing the process that will be followed to ensure a smooth contract start-up on January 1, 2010. Based on the definition of proposer, which includes the prime vendor and the proposer team, and based on the information which was required to be submitted, it is clear that the Commission contemplated that the prime vendor would not necessarily be providing all the services required by the contract and that some services could be subcontracted. In Addendum No. 2, the Commission responded affirmatively to question 8 which provided: Page 15, Section 2a, Proposer’s Management Plan, #1 through #12 and Page 16, Section 3. Proposer’s Technical Plan #1 through #10, the terms “company” and “organization” are used throughout this section. Please verify that these terms are to mean the “Proposer.” The RFP and Addenda are not models of clarity; however, when the responses to questions 7 and 8 in Addendum No. 2 are considered together, information could be included about the prime vendor and the proposer team, but only the information about the prime vendor would be used in the evaluation process. Thus, the proposals would have to identify what information related to the prime vendor and what information related to the proposer team. The parties have stipulated as follows: MV Contract’s proposals, in part, described the experience, contracts, facilities, assets and/or personnel of some of its related entities (parent and affiliated corporations). Throughout its proposals MV Contract Transportation, Inc., refers to the term “MV,” which it identifies on page 9 of each of the proposals as “MV Transportation, Inc. and its affiliates.” The cover letters for the proposals state that MV is the current Subcontracted Transportation Provider (STP) for the county for which the proposal is being submitted, meaning that MV is the current STP for Palm Beach and Duval Counties. However, MV is not the current STP provider in each of the counties; MV Contract Transportation, Inc., is the current STP provider in the two counties. In its proposals, MV Contract Transportation, Inc., refers to the experience of MV, meaning MV Transportation, Inc., and its affiliates. The proposals do not identify who the affiliates are. One would presume that MV Contract Transportation, Inc., is one of the affiliates, since it is a wholly-owned subsidiary of MV Transportation, Inc., and is submitting the proposals. The proposals do not delineate between the experience and capabilities of MV Contract Transportation, Inc., and MV Transportation, Inc., and its affiliates. The RFP required that each proposal address the “Company’s solvency and ability to assume the risks of service provision in the proposed county.” The RFP did not require that certain documents, such as a financial statement, be submitted to satisfy this requirement. How this requirement was to be addressed was to be left to the proposer. MV Contract Transportation, Inc.’s proposals address the solvency issue by the following: 5. Financial Resources and Stability MV is a privately held firm that has neither been bought by nor merged with another firm. The lack of this debt load associated with such transactions has allowed MV to control interest costs and keep money in the pockets of our customers and employees and out of those of lenders. MV is in sound financial condition and has proven ability to run services efficiently. We are well positioned to handle the risks of this program, and understand the contractual expectations of the CTD, and the service expectations of our passengers. The Company’s financial position is solid, and has strengthened over the last three years as evidenced by the increase in working capital and working capital ratios. The Company has the financial resources and wherewithal to meet its financial obligations. For more information regarding the financial viability of MV, please contact Mr. Jeff Heavin, Chief Financial Officer, at (707)863-8980, extension 3009. Based on the definition of MV in MV Contract Transportation, Inc.’s, proposals, an evaluator could not tell to what extent the proposal is addressing the solvency of MV Contract Transportation, Inc., and the ability of MV Contract Transportation, Inc., to assume the risks of service provision in the proposed county. This is important because MV Contract Transportation, Inc., is the entity that would be legally bound and responsible to perform under the contract. The Commission would not be contracting with MV Transportation, Inc., or other affiliates of MV Contract Transportation, Inc., and, therefore, cannot hold MV Transportation, Inc., liable for the performance of the contract. Section 28 of the Special Conditions of the RFP provides: Evaluation Process: A Technical Review team will be established to review and evaluate each proposal submitted in response to the Request for Proposals (RFP). The Technical Review team will be comprised of at least three persons with background, experience, and/or professional credentials in relative service areas. The Procurement Office will distribute to each member of the Technical Review team a copy of each technical proposal. The Technical Review team members will independently evaluate the proposals on the criteria established in the section below entitled “Criteria for Evaluation” in order to assure that proposals are uniformly rated. The Technical Review team will assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. Proposing firms must attain a score of seventy (70) points or higher on the Technical Proposal to be considered responsive. During the process of evaluation, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. Criteria for Evaluation Proposals will be evaluated and graded in accordance with the criteria detailed below. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Proposer’s Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, approach and capabilities, to assure a quality product. The following point system is established for scoring the technical proposals: Point Value Executive Summary 25 Management Plan 30 Technical Plan 45 The evaluators selected by the Commission to evaluate the proposals for Duval County were Karen Somerset, Douglas Harper, and Elizabeth De Jesus. The evaluators selected to evaluate the proposals for Palm Beach County were Karen Somerset, Douglas Harper, and Angela Morlok. The evaluators were advised that they were not to discuss the proposals with the other evaluators and that they were required to do an independent evaluation. Each evaluator was to fill out a technical evaluation summary sheet, which essentially tracked the areas listed in Section 20.2 of the RFP for what was to be included in the proposals for the executive summary, the management plan, and the technical plan. Each evaluator based his or her scoring on the maximum allowable points per category. Some evaluators assigned points for various aspects of the proposals, and others just gave points on the overall quality of the category being evaluated. Regardless of the method that an evaluator used to allocate the maximum points for each category, the evaluator evaluated all the proposals in the same manner. None of the evaluators discussed the proposals with the other evaluators, nor did the evaluators discuss how the proposals were to be scored with one another. The RFP did not require the evaluation team members to meet to develop a method to allocate the maximum amount of points for the categories to be evaluated. Although the RFP states, “[t]he Technical Review team will assign points utilizing the technical evaluation criteria identified herein,” it is reasonable to construe the RFP to mean that each of the evaluators was to assign points independently. This reading is reasonable because the rest of the sentence in which that language appears reads “and complete a technical summary.” The technical summary was not to be completed by the evaluation team as a whole. Each evaluator was to complete his or her own technical summary for each of the proposals evaluated. Other than Ms. Somerset, who skimmed the contents of the RFP, none of the evaluators had reviewed the RFP, including the addenda, prior to their evaluations of the proposals. Thus, the evaluators were not aware that they were to evaluate the prime vendor, rather than the proposer as defined by the RFP. The evaluators did not consider whether the experience and capabilities being evaluated were those of MV Contract Transportation, Inc., or MV Transportation, Inc. They thought the proposer was “MV.” Some of the evaluators knew that “MV” had the STP transportation contracts in Palm Beach and Duval Counties and assumed that entity who had those contracts was the proposer. Section 1 of the Special Conditions of the RFP provides: Since July 1, 2003, the Department has been using the State of Florida’s web-based electronic procurement system. MyFloridaMarketPlace. PROPOSERS MUST BE REGISTERED IN THE STATE OF FLORIDA’S MYFLORIDAMARKETPLACE SYSTEM BY THE TIME AND DATE OF THE TECHNICAL PROPOSAL OPENING OR THEY WILL BE CONSIDERED NON-RESPONSIVE (see Special Condition 18). (Emphasis in original) TMS Joint Venture is not registered with the myFloridaMarketPlace system; however, the venturers, TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., are registered with the myFloridaMarketPlace system. No credible evidence was presented on whether the joint venture could have been registered with the myFloridaMarketPlace system. Question 9 of Addendum No. 2 of the RFP stated: “On several forms, the proposer’s FEID number is referenced. If the proposer is a joint venture, shall the FEID numbers of each venturer be listed or shall only the lead administrative venturer’s FEID number be listed?” The Commission’s written response stated: “Only the lead administrative venturer’s FEID number should be listed.” An entity’s FEID number can be used to register with the myFloridaMarketPlace system. Thus, TMS Joint Venture took this response also to mean that, since both the venturers were registered on the myFloridaMarketPlace system, the listing of the lead administrative venturer as being registered on the myFloridaMarketPlace system was sufficient to make the proposals responsive. When Ms. Plummer received the proposals from TMS Joint Venture, she questioned whether the proposals were responsive and discussed it with her supervisor. The Department took the position that both venturers were listed on the system; thus, the registering of the lead administrative venturer was sufficient to deem the proposals of TMS Joint Venture responsive to the requirement to be registered on the myFloridaMarketPlace system. The parties have stipulated that “TMS’s proposals described the experience, contracts, facilities, assets and/or personnel of its Joint Venturers.” MV Contract Transportation, Inc., contends that TMS Joint Venture is not responsive to the RFP because it listed Greater Pinellas Transportation Management Services, Inc. (GPTMS), as the provider for a contract that was listed in the experience section of TMS Joint Venture’s proposals. The listing was clear that GPTMS had been the contractor for the project listed and not TMS Joint Venture. The evaluators could tell by reading TMS Joint Venture’s proposals what experience related to TMS Joint Venture and what experience related to GPTMS. The evaluators could not tell from reading the proposals of MV Contract Transportation, Inc., what experience was related to MV Contract Transportation, Inc., because the experience was described as the experience of MV, which was defined as MV Transportation, Inc., and its affiliates. The RFP required proposers to provide “a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this contract.” TMS Joint Venture described its call center in Clearwater, which “contains 6,000 square feet, with 3,700 feet of additional space to rapidly expand, of administrative space and provides for all functional areas.” TMS Joint Venture leases the building in which the call center is located, but it currently shares space in the call center with GPTMS. TMS Joint Venture did not disclose that it is currently sharing space with GPTMS. However, there was no evidence presented that the call center as it currently exists does not have sufficient capability to meet the needs of the contracts at issue. In TMS Joint Venture’s proposals, the Management Plan section states: The TMS senior management has spent years constructing and honing our client eligibility screening systems. TMS staff began innovating these systems in 1991, when management quantitatively analyzed our existing transportation systems. TMS was alarmed when we quantified the considerable costs that running trips for ineligible clients, imposed on the business. The Management Plan goes on to say what measures TMS Joint Venture takes to ensure that ineligible clients do not receive services. Mr. David McDonald, the president of TMS Management Group, Inc., explained that the language was meant to demonstrate that the senior staff members of TMS Joint Venture had been constructing and honing eligibility systems since 1991 and that they had applied their experience in developing the screening measures used by TMS Joint Venture. In TMS Joint Venture’s proposals, the Management Plan includes the following statement: For more than 15 years, the TMS team has managed the administration, coordination, and provision of Medicaid and all other types of human transportation. The TMS operations team has nearly 350 years of Medicaid and other transportation related service delivery experience. This statement is referring to the experience of the management team members and not specifically to the number of years that TMS Joint Venture or the venturers had been in business. That portion of the proposals goes on to list the various current contracts of the venturers of TMS Joint Venture. Section 19 of the Special Conditions of the RFP provides: Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, and improper and/or undated signatures. Section 16 of Pur 1001 form attached to the RFP provides: Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State’s best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the evaluation of the proposals of MV Contract Transportation, Inc., were contrary to the RFP; that the way in which MV Contract Transportation, Inc., submitted its proposals prevents the evaluators from evaluating the proposals in accordance with the RFP; that the notices of protests and formal protests of TMS Joint Venture were timely filed; and that the proposals of TMS Joint Venture are responsive to the RFP. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2010.
