Findings Of Fact The Petitioner is a certified public accountant licensed in the State of Pennsylvania, having been licensed in 1961. The Petitioner is seeking licensure as a certified public accountant in Florida pursuant to the provisions of Chapter 43.308(3)(b), Florida Statutes, and Rule 21A-29.01(1)(b), Florida Administrative Code, that is, he seeks licensure in Florida by endorsement based upon his Pennsylvania licensure without the necessity for taking the Florida examination. At the time of the Petitioner's initial licensing in the State of Pennsylvania in 1961 he met Florida's requirements in the areas of education and experience. The Petitioner currently holds a valid license in Pennsylvania and is licensed in other states. The Board of Accountancy reviewed the Petitioner's application and determined that he met the Florida requirements for education and experience and that he was administered the same examination in Pennsylvania in 1961 that was administered in Florida in 1961, the uniform certified public accountancy examination administered by the American Institute of Certified Public Accountants (AICPA). The Board determined, however, in its non-final order, that the Petitioner did not receive grades on that examination administered in Pennsylvania that would have constituted passing grades in Florida and denied his application. The rules of the Board require that an applicant for licensure as a certified public accountant receive a grade of 75 or above on all parts of an examination administered by the American Institute of Certified Public Accountants. See Rule 2IA-28.05(2)(3), Florida Administrative Code. The rules in effect in 1961 also required that a grade of 75 or above be received on all four subjects of the examination in order to achieve licensure in Florida. See Rules of the State Board of Accountancy Relative to Examinations and the Issuance and Revocation of Certificates, Rule 1(f). See also Section 473.10, Florida Statutes (1961). The requirement that applicants for licensure by endorsement receive grades on all four areas of the AICPA Exam of 75 or better has been enforced in Florida since the 1930's and has been a requirement embodied in the rules of the Board since 1949. In February, 1961, the Pennsylvania Board of Accountancy, pursuant to a resolution enacted for insular reasons of its own, determined to accept as passing the Petitioner's and other candidates' scores in the Law and Practice portions of the AICPA licensure examination, even though those grades were below the score of 75. The Board thus deemed that the Petitioner passed the examination for purposes of licensure in Pennsylvania with a score of "75" by fiat, even though in fact the Petitioner did not receive an actual score of 75 in those two subject areas as determined by the AICPA which administered and graded the examination. The acceptance of the lower grade on the part of the Pennsylvania Board was not done pursuant to a regrading of the Petitioner's exam in an attempt to correct mistakes or errors in the AICPA's finding regarding his score, but was rather simply due to an arbitrary determination by the Pennsylvania Board that for the Petitioner and certain other Pennsylvania applicants the lower grade in that particular instance would be considered as passing. The Petitioner had no knowledge that the Pennsylvania Board had taken this action in arbitrarily upgrading his scores on two portions of the exam so that he passed the entire exam until he began his application process with the Florida State Board of Accountancy in September, 1980. During its investigation of the Petitioner's application for licensure by endorsement, the Florida Board of Accountancy ascertained that the Petitioner had in fact received grades of 65 in the Law and Practice pertions of the Uniform AICPA Examination which were then subsequently arbitrarily raised by resolution of the Pennsylvania Board. The Florida Beard has at no time accepted as passing grades for a licensure examination those grades by applicants of less than 75 on the AICPA examination. It is true that prior to the Florida Board's becoming aware, in 1973, of the fact that Pennsylvania had arbitrarily raised some grades of its applicants, it did in fact accept some similarly situated candidates for licensure by endorsement in Florida. After becoming aware at that time of this arbitrary grade-raising process, the Board has consistently refused licensure to applicants from other states who actually received less than 75 on the AICPA Examination as determined by the AICPA. For considerations of equity and fairness the Board did, however, allow candidates who had already been licensed in Florida by endorsement prior to the Board's becoming aware of this anomaly to retain their licenses. Since the Petitioner failed to meet the AICPA examination requirement of a grade of 75 or better on all portions of the examination which was set forth and adopted in the Florida rules and statutes in effect at the time of his licensure in Pennsylvania in 1961, his request for licensure by endorsement was denied by the Board's non-final order on December 8, 1980.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is RECOMMENDED that the denial of the Petitioner's application for licensure by endorsement by the Board of Accountancy of the State of Florida be upheld and that the petition be denied. DONE AND ENTERED this 22nd day of June, 1981 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 22nd day of June, 1981. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 John J. Rimes, III, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32301
The Issue The issue presented is whether Mr. Lord should be granted additional credit for his answer to question number 144 on the April 1990 Professional Engineer licensure examination.
Findings Of Fact Mr. Lord (Candidate #301402) received a score of 66.3 percent on the April 20, 1991, Principals and Practice portion of the Professional Engineer examination. A minimum passing score was 70.0 percent. Mr. Lord challenged the scoring of his response to question number 144. Question number 144 is an essay question involving an assembly line problem where four separate stations are used to assemble a product in sequence. A fifth station can assist in maximizing the number of finished products produced per hour, and is capable of performing all operations. The correct answer to question number 144 was 100 products per hour, while Mr. Lord's answer was 25 pieces per hour. Petitioner received a score of 2 (out of a possible 10) points on question number 144. This was based on the scoring plan developed for the exam by the National Council of Examiners for Engineering and Surveying. Mr. Lord used a method of averaging station assembly times to determine the maximum average number of products each station could produce. The averaging method gave a solution which did not identify the central issue presented by the essay question: identifying and eliminating the bottlenecks in production. Mr. Lord also made an assumption that the initial four stations could do all operations, thus defining the model inaccurately. This misreading allowed Mr. Lord to use an averaging methodology. Mr. Granata, the Department's expert, testified that it is a coincidence of the numbers that if you multiply Respondent's answer (25) by four (the initial number of machines) you get the Board's answer (100). Mr. Greenbaum, Petitioner's expert witness, testified that Petitioner's answer is "unique" and that he, as an expert, would have answered the question using a methodology similar to the one developed by the Department's expert, Mr. Granata, and by the NCEE (National Council of Examiners for Engineering).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the challenge to the grading of Mr. Lord's response to question 144 on the April 1990 Professional Engineer licensure examination be dismissed. RECOMMENDED this 14th day of March, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991. COPIES FURNISHED: William F. Whitson, Law Clerk Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Curtis Lord 1416A Old Lystra Road Chapel Hill, NC 27514 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The following facts are based upon the stipulation of the parties (Exhibit 1): Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Massachusetts in 1979. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Connecticut in 1980. Petitioner, KAREN G. THIBODEAU, was an apprenticed optician with various licensed opticians in the States of Massachusetts and Connecticut for the past four to five years. Petitioner, KAREN G. THIBODEAU, on or about May, 1980, while living and employed in Connecticut, made a telephone call to the Board of Opticians in the State of Florida, with reference to her eligibility in taking the examination for a dispensing opticians license. After Petitioner detailed her formal training and work experience, she was advised that she was qualified to take the Florida Opticians Examination as the result of her having been licensed in both the States of Massachusetts and Connecticut and having five years apprentice experience. The Board of Opticians then mailed her an application form which she filled out and returned to them with a seventy five dollar ($75.00) money order for the examination and twenty dollars ($20.00) to register with the State of Florida. As a direct result of this telephone conversation with a representative of the Board of Opticians of the Department of Professional Regulations of the State of Florida, the Petitioner, KAREN G. THIBODEAU, quit her job in Connecticut and moved to Florida anticipating taking the aforesaid examination. After she had moved to Florida in reliance of the representations made to her by the Board of Opticians, she was notified that she was not qualified to take the said examination. Petitioner's application was considered by the Board of Opticianry on July 10, 1981 in Tallahassee, Florida and it was found that the Petitioner, KAREN G. THIBODEAU, did not meet the statutory requirements of s. 484.007(1), Florida Statutes (1979), although at the time she contacted the Board, she did meet the requirements of s. 484.03, Florida Statutes (1977), which was the prior licensing statute for the Board of Opticianry and was no longer in effect at the time. The Board further held that they did not have the authority to admit Petitioner, KAREN G. THIBODEAU, into the examination .for licensure as an optician in the State of Florida since she did not qualify under the current statute, s. 484.007(1), Florida Statutes (1979), even if they felt she had relied on the Board's prior representations that she would be allowed to take the examination to her detriment. The sole issue for consideration at this hearing is whether the Board of Opticianry has the authority to allow the Petitioner, KAREN G. THIBODEAU, to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board of Opticianry is estopped for asserting the new statute as a denial of her right to sit for the next exam since she has detrimentally relied on their representation that her qualifications under the old statute, s. 484.03, Florida Statutes (1977), qualified her to sit immediately for said examination." The following are additional Findings of Fact based upon testimony adduced at the hearing: When Petitioner made her telephone call to the Board of Opticians in May, 1980, she asked to speak to one of the Board members, but was assured by a woman who answered the phone that she could answer any questions Petitioner might have concerning her qualifications. At this time, Petitioner informed the person taking the call that she planned to move to Florida if she was qualified to take the examination for a dispensing optician license. Petitioner thereafter moved to Florida and is now employed by Sheppard Optical at Delray Beach, Florida where she is earning $200.00 a week. She was making approximately $300.00 a week when she left Connecticut and anticipated a higher income when she commenced practicing under her opticians license in Connecticut. (Testimony of Petitioner) Prior to the consolidation of the various state licensing boards into the Department of Professional Regulation in 1979, the practice of the Board of Opticianry, under the apprentice requirements of Section 484.03, Florida Statutes, (1977) was to permit individuals who had apprenticed in another state, but not in Florida, for the specified time of not less than three years, to register with the Board, and then make application for and take the examination for licensure. This was frequently done by means of telephone calls authorizing the individual to make application. In some cases, letters were sent which contained a similar authorization. Subsequent to Petitioner's telephone call to the Board in May, 1980, the new Executive Director of the Board of Opticianry, Herbert F. Varn, changed this practice to conform to the applicable statute which requires individuals to register as an apprentice with the Board and not admit such individuals to examination until after they had thereafter completed the requisite three year period of apprenticeship. In some isolated cases, the Board had permitted individuals who had previously received a letter authorizing them to take the examination, even though they had not been registered in Florida for the requisite three year period, to take the examination. However, after reorganization, the Board did not permit individuals to take the examination based solely upon any oral assurances received from persons in the prior Executive Director's office. (Testimony of Varn) The order of the Board of Opticianry, dated September 2, 1981, denying Petitioner's application stated that she had not met the statutory requirements for licensure by examination pursuant to Section 484.067(1), Florida Statutes, because she had not completed the requisite two school year course of study in a recognized school of opticianry, had not actively practiced as a licensed optician in another state for more than three years preceding the application, and had not registered as an apprentice with the Department and served not less than a three year apprenticeship under appropriate supervision. The present Executive Director of the Board is of the opinion that there would be no detriment to the public if Petitioner was allowed to sit for the examination based on her prior training and experience, but acknowledges that this is a matter for Board determination. (Testimony of Varn, pleadings)
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent on the basis of her failure to timely comply with continuing education requirements established by Section 626.2815, Florida Statutes.
Findings Of Fact The Respondent is currently licensed by the Florida Department of Insurance ("Department") as a General Lines (2-20) Agent. During the period from August 1, 1995, through July 31, 1997, the Respondent was licensed as a General Lines (2-20) Agent and as a Life, Health, and Variable Annuity (2-15) Agent. At all times material to this case, insurance agents licensed in Florida have been required to complete continuing education courses every two years. Licensed insurance agents can meet their continuing education requirements by attending seminars, taking classroom courses, or taking self-study courses. During the period from August 1, 1995, through July 31, 1997, the Respondent was required to complete 28 hours of continuing education courses. /3 The required courses could be taken and completed at any time during that two-year period. At all times material, the Respondent has been aware of the continuing education requirements applicable to licensed insurance agents. The Respondent resides in Key Largo, Florida, and has lived at the same address for at least 10 years. Miami, Florida, is about 60 miles from Key Largo. Key West is about 100 miles from Key Largo. During the period from August 1, 1995, through July 31, 1997, there were 11 continuing education courses offered in Key largo. During that same period there were 73 continuing education courses offered in Monroe County. During that same period there were approximately 3,000 continuing education courses offered in Dade County. The Respondent waited until July 16, 1997, which was 15 days before the end of her two-year continuing education deadline, before taking any action to comply with the continuing education requirements. On that day she ordered two self-study courses from a course provider named Noble. If an insurance agent chooses a self-study course to fulfill the continuing education requirements, the course is not considered to be completed until the agent has taken a monitored examination on the course material and has achieved a score of at least 70 percent. The Respondent finished her study of the course materials she bought from Noble by the end of July 1997, but she did not take and pass the examinations on those materials until the end of August 1997, which was three or four weeks past the end of her compliance deadline. In July of 1997, the Respondent was nursing an infant child. Although Noble had a testing site in Miami, the Respondent did not want to go to Miami to take the examinations for her self-study courses, because a trip to Miami would interfere with nursing her child. The Respondent waited until the end of August, because by that time Noble had opened a testing site in Key Largo. All insurance agents who failed to comply with the continuing education requirements for the period ending July 31, 1997, were sent a Preliminary Notice of Non-Compliance. All agents who did not respond to the Preliminary Notice of Non- Compliance were sent a Final Notice of Non-compliance. Both preliminary and final notices were sent to the Respondent. The Department initiated disciplinary action against all insurance agents who were found to have failed to comply with the continuing education requirements. The Department offered each of the non-compliant agents an opportunity to settle the disciplinary actions by payment of an administrative fine in the amount of $250.00. Numerous insurance agents settled on those terms. In one case, such a disciplinary action was resolved by a stipulated six-month license suspension.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Insurance issue a final order concluding that the Respondent is guilty of failing to comply with statutory and rule provisions regarding continuing education, and imposing a penalty consisting of a six-month suspension of the Respondent's license. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 8th day of October, 1999.
The Issue The issue for consideration herein was whether Petitioner was properly graded for her performance of the Procedure in the Binocular Indirect Ophthalmoscopic testing on the Florida Optometry Examination conducted in Miami, Florida, on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Board of Optometry, (Board), was the state agency in Florida responsible for the licensing of optometrists in this state. Petitioner, Rhonda L. Wicks, graduated from the Southern California College of Optometry in 1985. She was licensed as a registered optometrist in California in 1985 and was thereafter commissioned in the United States Air Force in the grade of Captain. She was assigned as an optometrist at the MacDill Air Force Base Hospital in Tampa immediately thereafter, and in 1987, was made the Chief of the optometry service at that hospital, a position she still holds. In that capacity, she supervises several other optometrists and, in addition, sees approximately 20 patients per day for a total of over 14,000 patients since assuming that position. Approximately 10% of these involve the administration of the binocular indirect ophthalmoscopic, (BIO), procedure. In addition to passing the licensure examination in California, while still in school she passed the IAB, an internationally recognized certification examination, and, in addition, passed her national boards. Dr. Wicks took the 1988 Florida optometry examination given on September 16 - 18, 1988 at the Baskin-Palmer Eye Institute in Miami, Florida. When graded, she was found to have passed all portions of the examination except the clinical portion for which, on protest, she received an additional 2.5 points which raised her score to 73.5 out of a possible 100. The passing grade in this portion of the exam is 80. Primarily, her difficulties were in the area of the BIO procedure, worth 15 points, for which she was awarded only 2.5 points. She also experienced difficulty on the retinoscopy section for which she received 0 out of 8 possible points, but does not contest her score on that portion. She contests only the evaluation and grading of the BIO procedure. Dr. Wicks was graded by two examiners on the BIO procedure, each of whom gave her a "yes" or "no" grade on each of three sections. One examiner gave her three "no's" for a 0 score. The other examiner gave her two "no's" and a "yes". As a result, she was awarded one half credit or 2.5 points for the "yes" score given her by one examiner on one third of the procedure. In preparing for the written portions of the examination, she studied the materials furnished by the Department. She also considers her taking of the IAB as preparation for this examination. As for the clinical section, she felt comfortable using the practice she has carried on for three years as appropriate preparation except for 2 procedures for which she sought and received help from two ophthalmologists on staff at the MacDill Hospital. Prior to taking the examination, she read that portion of the study guide dealing with patient criteria, and was also familiar with that portion dealing with requirements of the BIO process. To her recollection, the study guide did not mention the required position of the patient during the accomplishment of the procedures but merely outlined what the candidate would be required to demonstrate. Examination of the study guide confirms Petitioner's understanding. The Department relies on that portion of the guide found on page 7 thereof which refers to the criteria for the patient supplied by the candidate and indicates that the patient must be willing to undergo a dilation procedure in the reclined position. The Board contends this indicates "advance notice" of the requirement that the BIO procedure be accomplished in the reclined position. This does not necessarily follow, however. The morning of the examination, one of the examiners briefed the candidates on the layout of the room in which the procedures would be done and the conditions under which they would be accomplished. It was at this time that Petitioner got her first notification that the BIO procedure would be done with the patient in the reclined position. It was also at this time, during the briefing, that the candidates were advised that they were not to be permitted to move the chair in which the patient was placed. At this point another candidate, who is, as is Petitioner, short of stature, asked if the candidate could sit the patient up in the chair and this candidate was advised that she could not. Under these conditions Petitioner attempted to perform the BIO procedure. When she found she could not do it because she was not tall enough, she notified her examiners of the problem and was told by one to "do the best you can." Her complaint of inability to accomplish the procedure because of the physical problem of her height was reiterated 3 times, and on each occasion, she received the same response. In the BIO procedure, the doctor examines the patient's eye through a lens in an attempt to get a view of the patient's retina. Petitioner contends that in order to properly and accurately accomplish the procedure, the doctor has to be 23 inches away from the patient's eye. This 23 inches is made up of the following segments: the distance between the instrument lens and the patient's eye must be approximately 2 inches; the lens in the instrument has a thickness of 1 inch; and the examiner should be approximately 20 inches away from the lens. Petitioner demonstrated through a diagram that the chair in which her patient was reclined placed the back of his head 30 inches from the floor. Added to that is the average 7 inch thickness of a human head from the back to the front of the eyeball. When that 37 inches is added to the 23 inches described, (patient's eye to examiner's eye), a total of 60 inches, (5 feet), is shown. To accomplish the procedure, the candidate must bend over so that the plane of his or her face is parallel to the floor in order to allow the candidate to look, with the instrument used, down through the lens into the patient's eye. According to Petitioner, when she places her head in the appropriate position to look down through the instrument, into her patient's eye, her eye is 53 inches from the floor. This is 7 inches below where it should be in order to properly accomplish the procedure with the patient reclined on the chair as it existed the day of this examination. Petitioner is 62 inches tall when standing straight, and 53 inches is insufficient to allow her to properly accomplish the procedure. She was not allowed either to move the chair or do the procedure with the patient sitting up. The day of the examination, Petitioner tried to accomplish the procedure by standing on her toes, by leaning back, and by taking other measures in an attempt to give her an appropriate view of the patient's eye. Nothing seemed to work. It was at this time she advised the two examiners observing her that she was physically unable to accomplish the procedure due to the height situation and was told, "do the best you can." Candidates are advised, prior to the examination, that if they experience difficulty of any nature during the examination, they are to bring it to the immediate attention of the examiner, and if that does not result in correction of the problem, to fill out and submit a comment card at the end of the examination whereon the candidate outlines the nature of the problem experienced. In this case, Petitioner did not fill in the comment card because she did not think it applied to her situation. She was of the opinion the card was to be filled out only when equipment did not work or the examination, for some other reason that could be corrected, was not appropriate. Here, the equipment worked as it should and the test was appropriate. In addition, the examiners also did what they were supposed to do. Gregory M. Smith served as a patient for Dr. DeFrank at the same examination taken by the Petitioner. During the course of Dr. DeFrank's testing, she performed the BIO examination on him just as Petitioner attempted to do with her patient. However, Dr. DeFrank, also a short woman, was allowed to have Mr. Smith sit up for her performance of the procedure and as a result, was able to accomplish it properly. Mr. Smith had been examined by the examiners prior to Dr. DeFrank's performance of the procedure, and one of the examiners performed the BIO procedure on him while he was in a reclined positions. However, before Dr. DeFrank entered the examination room with the other examiner, Smith was returned to the upright position and Dr. DeFrank did her procedure with him in that position. Dr. James J. Murtagh, an ophthalmologist and Chief of the Ophthalmology service at the MacDill hospital, and Petitioner's supervisor, has observed her in the performance of her duties for a period of two years. He is satisfied she is fully competent to do the procedure in question and, in fact, does it on a daily basis. In his expert opinion, there is no requirement that the BIO be accomplished with the patient in a reclined position. In fact, he feels it is best that the procedure be accomplished with the patient in a position most comfortable and convenient to both the patient and the doctor. The position of the patient, reclined or erect, has no bearing on the doctor's ability to do the procedure properly from an optometric or ophthalmological standpoint. The purpose of the BIO procedure is to examine the back side of the retina. It is necessary to extend the view out to the sides and, admittedly, this can best be done with the patient reclined. He is satisfied, however, that the major portion of the back of the eye, that portion to be observed through this procedure, can be seen easily in either the reclined or the upright position. Dr. Den Beste, Respondent's expert, is of the opinion that because of the nature of the area sought to be examined, it is best that the patient be reclined so that the doctor can, without discomfort, easily move to examine all portions of the retina from the top to the bottom and from side to side. Which procedure is better, however, is of little consequence here since the issue is not which procedure is better but whether the procedure legitimately can be accomplished in an upright position. In this regard, Dr. Murtagh's opinion that it can be is not necessarily inconsistent with Dr. Den Beste's opinion that it is better done in a reclining position. In its answers to Petitioner's Request For Admissions, the Respondent admitted that the BIO procedure can be accomplished on a patient seated in an upright position. The statute does not require that the supine position be utilized for an examination but the Board requires it in its examination because: (1) it is felt the supine position is better for examination purposes, and (2) it is easier for the examiners to observe the candidate's performance of the procedure. On the other hand, a representative of the manufacturer of the instrument utilized by the optometrist in performing the BIO procedure indicated that the instrument is best used in an upright position. Nonetheless, Dr. Den Beste disagrees with this when the instrument is to be used in a qualification examination situation. Under the physical conditions confronted by the Petitioner at the examination site, however, Dr. Murtagh is convinced it would be impossible for her to have accomplished the procedure with the patient reclined. Both Dr. Den Beste and Dr. Loewe, the Department's examination specialist, indicate that when Petitioner experienced her difficulty, she should have immediately pointed out her problem and called for help. They contend that Petitioner failed to do this. The evidence clearly shows, however, that after attempting the procedure, Petitioner, on at least three occasions, advised her examiners she was unable to accomplish the procedure because of the height and distance constraints, and was advised to do the best she could. The purpose of the comment card is to afford the examiners the opportunity to look into a problem situation, take corrective action on the spot if appropriate and possible, and to take future corrective action to prevent a recurrence of the problem at some later time. If the problem complained of is merely related to candidate technique, the examiners can do nothing about it. In the instant case, however, both Den Beste and Loewe feel the Petitioner should have filled out the form when she experienced the difficulty now reported and had she done so, something might have been done at that time. Both Den Beste and Loewe, however, indicate that to the best of their knowledge, the issue of the distance, as experienced by Petitioner here, has never been raised by any examinee in the past. At the hearing, Dr. Den Beste, while denying any prior knowledge of Petitioner's inability to perform the procedure because of her short stature, indicated that if someone did claim the procedure could not be accomplished because he or she was too short, there were some options open which included (1) lowering the chair, (2) adjusting the headset, or (3) pulling the patient's head into a different position so that the procedure could be accomplished. To now state that adjustments to the chair would have been acceptable provides no benefit to Petitioner here who, the evidence does not controvert, was told at the examination she was not allowed to adjust the chair at any time. According to Dr. Loewe, the test as it is configured is not designed to trick candidates. Tests are designed with the hope of fairly testing the skills of all candidates. If it appears there is a problem area, then test officials try to correct it or warn of it in the study guide. Dr. Loewe's inquiry into the examination conditions subsequent to Petitioner's examination revealed that there were several candidates who asked if it were necessary to do the BIO procedure with the patient in a supine position. She also admitted that filling out a comment card is not a prerequisite to filing a formal challenge to the grading or scoring. Dr. Loewe further indicated that if a legitimate reason existed to allow a candidate to perform the BIO procedure on a patient seated in an upright position because of some physical handicap, such as the candidate being confined to a wheel chair, they would make arrangements to accommodate the candidate. There appears to be little difference to be shown, from a practical standpoint, between someone who cannot examine a patient in a supine position because of their confinement to a wheel chair and one who cannot perform the examination appropriately because of his or her physical shortness and the resultant inability to get in a proper position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner be retested on the BIO procedure only, without payment of additional fee, either at a special examination held for that purpose or at the next regularly schedule optometry examination administered by Respondent Board of Optometry. RECOMMENDED this 23rd day of October, 1989 in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1912 The following constitutes my specific rulings pursuant to S 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 12. Accepted and incorporated herein. 13. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. - 29. Accepted and incorporated herein. 30. & 31. Accepted and incorporated herein. 32. & 33. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 40. Accepted and incorporated herein. 41. - 46. Accepted and incorporated herein. Accepted. - 51. Accepted and incorporated herein. Accepted and incorporated herein. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. - 62. Accepted. 63. & 64. Accepted and incorporated herein. 65. - 67. Accepted. 68. - 70. Accepted and incorporated herein. For the Respondent: 1. & 2. Accepted and incorporated herein. Not a Finding of Fact but a statement of the Petitioner's position. & 5. Accepted and incorporated herein. 6. & 7. Not Findings of Fact but a restatement of Petitioner's testimony. Accurate. Accepted and incorporated herein. Accepted as an accurate summary of the evidence on that point. Accepted that the problem could have been corrected. Accepted. COPIES FURNISHED: Richard M. Hanchett, Esquire Trenham, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. 2700 Barnett Plaza Post Office Box 1102 Tampa, Florida 33601 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Guilford Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether alleged statements attributed to the Board of Optometry were made by the Board, and if so, whether the statements constitute unpromulgated rules prohibited by Section 120.54(1)(a), Florida Statutes, (Supp. 1996).
Findings Of Fact The parties stipulated as a matter of fact that: The FOA is a not-for-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, to practice optometry in Florida. All FOA members are subject to and regulated by the Board of Optometry and its rules. The FOA has approximately 1,022 members. The Board of Optometry is the agency responsible for regulating the optometric practice of all FOA members. Board rules and agency statements of general applicability regulate the optometric practice of all FOA members. Individual members of the FOA, being subject to and regulated by the rules and policy of the Board of optometry, are persons whose substantial interests will be affected by the alleged agency statements and are thus substantially affected persons within the meaning of Section 120.56(1)(e), Florida Statutes (Supp. 1966). As all members of the FOA are subject to and regulated by Board rules and statements of general applicability, a substantial number of the FOA’s members would be substantially affected by the alleged statements. The objective of the FOA is to promote and protect the interests of the general public and licensed optometrists in ensuring the availability of high quality eye care at an affordable price. The FOA represents its members through the provision of education and training, and by participation in administrative proceedings, legislative activities, and court litigation. Petitioner, Brian Lloyd Weber, O.D., is an optometrist licensed and practicing in Florida. Petitioner, 29/49 Optical Inc., (29/49), is a corporation which operates optical establishments in Florida. The Board of Optometry is the state agency in Florida which licenses optometrists and regulates the practice of optometry in this state. On January 29, 1992, the Probable Cause Panel of the Board of Optometry determined there was probable cause to discipline the license of Dr. Weber because of an alleged violation of Section 463.014(1)(b), Florida Statutes, involving the corporate practice of optometry. Thereafter, on February 2, 1992, an Administrative Complaint was filed with the Board which alleged that Dr. Weber had violated the cited statute by engaging in the practice of optometry with a corporation not composed of other health care providers; by entering into a corporate arrangement which permitted an unlicensed person to practice optometry through Dr. Weber, in violation of Rule 21Q-3.008, (now Rule 59V-3.008, Florida Administrative Code); and by holding himself out to the public as available to render professional services in a manner which implies he is professionally associated with an entity which is not a licensed practitioner, also in violation of the Rule. The investigation conducted by the then Department of Professional Regulation, which led up to the action of the panel and the filing of the Administrative Complaint indicated that Dr. Weber owned 250 shares of stock in 29/49, along with an optician, Anthony Record, not licensed to provide optometry services, who also owns stock in the corporation. Allegedly, the corporation operated at five different locations, at one or more of which eye examinations were performed. It was also alleged that 29/49 had publicly advertised itself as an entity which provided complete eye examinations, and that Dr. Weber performed the eye examinations described in the advertisements. In fact, Dr. Weber is a director and officer of 29/49. He holds a 75% ownership share in the corporation. Both Dr. Weber and Mr. Record control the corporation and share the duties and profits of the operation. The firm provides optitianry services, as defined in Sections 484.002(3) and (7), Florida Statutes. Dr. Weber asserts that the operations of 29/49 are separate from the operations of his optometric practice, and claims that the Board’s direction to him to change the corporate structure of 29/49 so as to dissolve his partnership with a lay person is a continuation of what he claims is a long-standing policy of prohibiting the joint ownership of an optitianry between and optometrist and a lay person. Before a hearing was held on the Administrative Complaint, Dr. Weber and counsel for the Board entered into a stipulation which, if accepted by the Board, would have resolved the pending disciplinary action. The stipulation was presented to the Board at its July 8, 1993 meeting, at which time the Board voted to reject it and to propose a counter-stipulation. At that meeting, the Board did not enunciate any of the alleged agency statements at issue here nor did it take a position as to what Dr. Weber must do to rectify the practice situation to its satisfaction. Nonetheless, by Order dated September 9, 1993, the Board formally rejected the proposed stipulation and proposed its own stipulation. On September 12, 1996, Dr. Weber and the Agency’s counsel presented a second stipulation to the Board for settlement of the disciplinary matter, but again the Board voted to reject the stipulation and to offer its own second counter- stipulation. This counter-proposal called for Dr. Weber to change his corporate structure so that he no longer violated the statutory prohibition against practicing optometry with non- licensed individuals, and that he no longer practice with a lay person. This second counter-proposal by the Board did not enunciate any of the alleged agency statements at issue herein. This second counter-proposal was promulgated in an Order of the Board issued on October 15, 1996. Sections 463.014(1)(a)&(b), Florida Statutes, provide: No corporation, lay body, organization, or individual other than a licensed practitioner shall engage in the practice of optometry through the means of engaging the services, upon a salary, commission, or other means or inducement, of any person licensed to practice optometry in this state. Nothing in this section shall be deemed to prohibit the association of a licensed practitioner with a multidisciplinary group of licensed health care professionals, the primary objective of which is the diagnosis and treatment of the human body. No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group or lay individual. This provision shall not prohibit licensed practitioners from employing, or from forming partnership or professional associations with, licensed practitioners licensed in this state or with other licensed health care professionals, the primary objective of whom is the diagnosis and treatment of the human body. Consistent therewith, the Board of Optometry has promulgated Rule 59V-3.008, Florida Administrative Code, which implements the provisions of the statute. Rule 59V-3.008, Florida Administrative Code, restates the intent of the legislature regarding the need for licensure of practitioners of optometry, defines a “licensed practitioner”, and thereafter outlines with particularity those actions which may and those which may not be carried on by licensed optometrists in Florida. The rule is quite clear in its definitions and leaves little room for misunderstanding regarding what constitutes the practice of optometry and optometric services; those individuals who must be licensed; what professional activities a licensed practitioner may perform and what activities constitute a violation of Section 463.014,Florida Statutes. Of specific relevance to the issues herein are: (15)(b) Entering into any agreement (whether written or oral) which allows, permits or facilitates an entity which itself is not a licensed practitioner to practice optometry, to offer optometric services to the public, or to control through any means whatever any aspect of the practice of optometry. Allowing, permitting, encouraging, forbearing, or condoning any advertisement including those placed in a newspaper, magazine, brochure, flier, telephone directory, or on television or radio, which implies or suggests that the licensed practitioner is professionally associated or affiliated with an entity which itself is not a licensed practitioner. Occupying or otherwise using professional office space in any manner which does not clearly and sufficiently indicate to the public that his/her practice of optometry is independent of and not associated with an entity which itself is not a licensed practitioner. , (I), and(j), [which all refer with specificity to some action which relates to the practice of optometry by a licensed practitioner with an entity which itself is not a licensed licensed practitioner.] This rule has been challenged in the courts and determined to be a valid exercise of delegated legislative authority. Petitioner claims that pronouncements by the Board of Optometry since the passage of the relevant statute and the promulgation of the relevant rule, including a Declaratory Statement by the Board in response to a Petition therefore by Phillip R. Sidran, O.D. in 1991, found at 13 FALR 4804; and in discussion of members at various meetings of the Board’s Probable Cause Panel; all indicate that the Board has formulated a policy regarding the instant issue which is neither a statute nor a properly promulgated rule. In 1991, Dr. Sidran, a licensed optometrist, sought a declaratory statement from the Board regarding the propriety of having a licensed optician share the revenues and responsibilities deriving from the optical portion of his practice. In its Declaratory Statement, issued on October 9, 1991, the Board specifically referred to and quoted the controlling portions of the statute and the rule which it then interpreted as indicating such an arrangement was prohibited. At no time did the Board promulgate new guidelines or expand the strictures imposed by the existing statute and rule. It applied an existing statute and rule to the factual situation posed by Dr. Sidran and concluded that under the facts of that case, the existing statute and rule prohibited the proposed relationship. The subsequent discussion of that opinion at the meeting of the Board’s Probable Cause Panel, convened on January 29, 1992, to consider proposed disciplinary action against Dr. Weber for the situation described here with 20/49, again interpreted existing statute and rule but did not formulate policy. Petitioner further refers to two additional meetings of the Board of Optometry at its meetings on July 8, 1993 and September 12, 1996, at both of which the members present discussed the situation regarding Dr. Weber’s business relationship in 29/49. He claims that in both situations, the Board members made policy statements which should have been formalized through the promulgation of a rule amendment or supplement. Review of the transcripts of those meeting does not support Dr. Weber’s position, however. It is clear that in each case the Board members examined the facts presented to them, applied the existing statutory and rule provisions to those facts, and concluded that the Petitioner’s actions constituted a violation of existing law. The Board’s position vis a vis Dr. Weber’s business arrangement was made a part of the Board’s counter-proposal to the stipulation of settlement initially agreed to by Dr. Weber and the Department’s counsel. In it’s counter-stipulation, which came out of the September 12, 1996 Board meeting, the Board required Dr. Weber to “... change his corporate structure so he is no longer in violation of Section 463.014(1)(b), Florida Statues, and that [his] practice be changed so that he is no longer practicing with a lay person.”
The Issue Whether Petitioner's challenge to the grades she received on certain portions of the clinical examination administered in December 1996 (to applicants for licensure as a dentist) should be sustained.
Findings Of Fact Because no evidence was offered at the final hearing held in this case, the undersigned is unable to make any findings of fact relating to the merits of Petitioner's Examination Challenge.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health, Board of Dentistry, issue a Final Order dismissing Petitioner's Examination Challenge. DONE AND ENTERED this 20th day of November, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1997. COPIES FURNISHED: Dr. Michele E. Worthy, pro se 7501 East Treasure Drive Apartment 6-L North Bay Village, Florida 33141 Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Tallahassee, Florida 32308-5403 William Buckhalt, Executive Director Department of Health, Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0765 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building Six Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes (2009), the issue is whether Respondent Agency for Health Care Administration (AHCA) properly determined that Petitioner Maximus Health Services, Inc.'s (Maximus) reply to Invitation to Negotiate 0904 (ITN 0904) was non-responsive for failure to meet mandatory criteria.
Findings Of Fact Beginning in 2006, the Florida Legislature required the AHCA to implement Medicaid Reform. Medicaid Reform was intended to empower consumers to take an active role in their health care decisions. To serve that purpose, the Legislature required the AHCA to contract with a choice counseling/enrollment broker to provide Medicaid services in Broward, Duval, Nassau, Clay, and Baker counties. ITN 0904 sought to procure an enrollment broker for a three-year contract. It was released on March 9, 2009. The resulting contract is worth in excess of $30 million dollars from June 1, 2009, through June 30, 2011. ITN 0904 consisted of a series of attachments, including the following in relevant part: (a) Attachment C contained “Special Conditions"; (b) Attachment E provided “Evaluation Criteria”; and (c) Attachment G set forth "Required Certifications." The mandatory requirements of ITN 0904 were announced at Section C.7 of ITN 0904 as follows: C.7 Mandatory Requirements: The State has established certain requirements with respect to responses submitted to competitive solicitations. The use of "shall", "must", or "will" (except to indicate futurity) in this solicitation, indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the solicitation requirement, provides an advantage to one respondent over another, or has a potentially significant affect of the quality of the response or on the cost to the state. Material deviations cannot be waived. The words "should" or "may" in this solicitation, indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such desirable feature (sic) will not in itself cause rejection of a response. Section C.13 set forth the required certifications as follows in pertinent part: Required Certifications: The following certifications, contained in Attachment G, are required and must be submitted with the response: * * * Certification Regarding Terminated Contracts - certifying the vendor (including its subsidiaries and affiliates) has not unilaterally and willfully terminated any previous state or federal contracts for cause within the past five (5) years. FAILURE TO SUBMIT ATTACHMENT G, REQUIRED CERTIFICATIONS, SIGNED BY AN AUTHORIZED OFFICIAL WITHOUT EXCEPTIONS OR CAVEATS, WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S RESPONSE. Section C.14 described the proposal guarantee as follows in relevant part: Proposal Guarantee: The original technical response must be accompanied by a proposal guarantee payable to the State of Florida in the amount of $260,000. The respondent must be the guarantor. Section C.38 contains general instructions for response preparation and submission as follows in pertinent part: The solicitation response shall consist of the following parts: A. Transmittal Letter This letter is mandatory . . . . The following documentation shall also be included with the transmittal letter: Proposal Guarantee, as required in Section C.14. Signed Attachment G, Required Certifications, as required in Section C.13. Signed Attachment L, Attestation of No Conflict, attesting that the vendor has no conflict of interest as described in Section C.31. FAILURE TO SUBMIT THE MANDATORY TRANSMITAL LETTER, INCLUDING ITEMS 1-3 ABOVE, WILL RESULT IN REJECTION OF THE PROPOSAL. In Attachment E of ITN 0904, AHCA set forth the evaluation criteria it would use to assess the merits of responses. In Section E.1, the Agency announced that it would review mandatory criteria as follows: E.1 Review of Mandatory Criteria The Procurement Office will evaluate responses to this solicitation against the mandatory criteria found in Part I, Mandatory Criteria. Responses failing to comply with all mandatory criteria will not be considered for further evaluation. Part I is entitled Technical Response Mandatory Criteria. It is a checklist of some of the mandatory requirements of ITN 0904 and states as follows in relevant part: This evaluation sheet will be used by the Agency for Health Care Administration to designate proposals as "responsive" or "non- responsive". If the answer to any of the questions in the table below falls in to the "No" column, the proposal will be designated as "non-responsive" and will not be considered for further evaluation. QUESTIONS YES NO A. Does the response include a transmittal letter, signed by an individual having authority to bind the vendor, containing the following information, as outlined in Section C.38.A? The proposal guarantee, as specified in Section C.15 (sic)of this solicitation; ? A signed Attachment G, Required Certifications, as specified in Section C.13 of this solicitation; ? Attachment G is a form for all required certifications, including but not limited to the following: Certification Regarding Terminated Contracts I hereby certify that my company (including its subsidiaries and affiliates) has not unilaterally or willfully terminated any previous contract prior to the end of the contract with a state or the federal government and has not had a contract terminated by a state or the federal government for cause, prior to the end of the contract, within the past five years. Signature of Authorized Official Date On July 30, 2008, after receiving questions from interested vendors, AHCA issued an Addendum No. 1 to ITN 0904. The purpose of the addendum was to provide clarification and additional information, to make changes to certain attachments, and provide AHCA's response to questions received from prospective vendors. The addendum included the following statement: To the extent this Addendum gives rise to a protest, failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. The following pertinent questions and answers were included in Addendum No. 1: Question 1: Pursuant to Attachment A.9 and Attachment C.13, please clarify whether the certification relates to the vendor terminated a contract or the government agency terminated a contract, or two different certifications. Answer: Please see Attachment G, Required Certifications, as referenced in Attachment C.13. This certification relates to the vendor (including its subsidiaries and affiliates) unilaterally or willfully terminating any previous contract prior to the end of the contract with a state or the federal government, and to the vendor having a contract terminated by a state or the federal government for cause prior to the end of the contract, within the past five years. * * * Question 8: Attachment C.13 - Please clarify whether the bidder will be disqualified if there is even one instance where a government contract was terminated for cause in the past 3 years. Answer: Respondents must submit a signed certification (Attachment G) in order to be considered responsive. Maximus admits that it asked Question 8 and received the answer set forth above. Maximus did not challenge any of the specifications in ITN 0904 after issuance of Addendum No. 1. Bruce Caswell, the President and Chief Executive Officer of Maximus, signed the required certifications on Attachment G on August 24, 2009. On the following page, Mr. Caswell included information about a terminated contract involving its parent company, Maximus, Inc., as set forth below. AHS, Maximus, and Policy Studies, Inc. (PSI) submitted replies to ITN 0904 on or about August 24, 2009. AHCA opened the replies that same day and forwarded them to AHCA's Procurement Officer, Barbara Vaughan. Ms. Vaughan had the responsibility to determine compliance with ITN 0904's "Technical Response Mandatory Criteria," using the checklist set forth above. Ms. Vaughan has been AHCA's Procurement Administrator since April 2009. She does not have knowledge and experience in all the technical areas for which AHCA may procure services. During the hearing, Ms. Vaughan did not know what an enrollment broker service is. She did not read the technical responses to ITN 0904. She only examined whether the responses included the mandatory items on the checklist. Sometime in September 2009, Ms. Vaughan determined that Maximus had submitted a non-responsive proposal because it included information regarding a contract that the State of Connecticut terminated with Maximus, Inc. Specifically, Maximus included the following additional information following its certification on Attachment G: ADDITIONAL INFORMATION FOR ITN ATTACHMENT G As noted in the form on the previous page, we certify that MAXIMUS Health Services has not terminated any contract or been terminated prior to the end of the contract term during the past five years. Since, MAXIMUS Health Services is a subsidiary of MAXIMUS, Inc. we offer information about the parent company with respect to this certification. Of the thousands of contracts held by MAXIMUS, Inc. during the past five years, there is one incident of relevance. In this situation, in 2007, a MAXIMUS, Inc. contract to provide an updated criminal justice information system was terminated by the State of Connecticut prior to the end of the contract term after the primary subcontractor of MAXIMUS, Inc. abandoned the project. MAXIMUS, Inc. is disputing the State's termination and has sued its primary subcontractor. Mr. Caswell decided to include the forgoing exception or caveat following his certification because he understood that Maximus, Inc., as Maximus' parent company, was an affiliate and he did not want any misunderstanding. Mr. Caswell's interpretation of the word "affiliate" is consistent with the definition applied by AHCA in its review of the Technical Response Mandatory Criteria. At the hearing, Mr. Caswell, testified regarding the Connecticut contract. According to Mr. Caswell, Maximus, Inc., found itself in a position where it was unable to deliver on a contract for an integrated criminal justice solution with the State of Connecticut due to the mal-performance of its subcontractor. Mr. Caswell stated that Maximus, Inc., then moved to terminate the contract for convenience pursuant to the contract's terms; however, the State of Connecticut rejected Maximus' termination for convenience. Mr. Caswell admitted that the State of Connecticut then terminated the contract for cause and filed suit against Maximus, Inc., in approximately November 2007. Maximus is defending itself and suing its former sub-contractor in that on-going litigation. The State of Connecticut has alleged damages of $6.5 million dollars in their claim against Maximus, Inc. As a company listed on the New York Stock Exchange, Maximus, Inc., had annual revenues of approximately $717 million during the most recent fiscal year. The company has no debt and $87 million of cash on hand. The Connecticut dispute is less than one percent of the company's annual revenues. The following facts are undisputed: (a) Maximus has performed thousands of contracts without cancellation; Maximus is a wholly-owned subsidiary of Maximus, Inc.; Maximus, Inc., is a leading provider of health and human services and consulting and program management services primarily to state governments; (d) Maximus, Inc., offers Medicaid-managed care enrollment brokerage services for thirteen states around the country, serving nearly 15 million Medicaid beneficiaries; and (e) Maximus performs enrollment broker contracts for several states. These facts do not make the Connecticut litigation immaterial considering AHCA's clear intent in drafting ITN 0904 relative to terminated contracts. The mandatory requirement for a certification regarding terminated contracts, without exceptions or caveats, was a reasonable specification because, as Mr. Caswell testified, disputes like the one between Connecticut and Maximus, Inc., are common in the industry. Ms. Vaughan correctly interpreted the language of ITN 0904 when she concluded that no explanation of a terminated contract involving a vender or its affiliates was allowed by the solicitation. Therefore, Ms. Vaughan did not forward Maximus' proposal for scoring by the evaluation team. In comparing Maximus' submission to the mandatory requirement for a proposal guarantee to the checklist included in Attachment E, Ms. Vaughan determined that Maximus' submission was responsive. She reached this conclusion even though Maximus' proposal guarantee was not in its own name as required by Section C.14. Instead, Maximus included a "Bid Bond" guaranteed by Maximus, Inc. The bond identifies Maximus, Inc., as Principal, Travelers Casualty and Surety Company of America, as Surety, and AHCA, as Obligee. The bond erroneously states that Maximus, Inc., has submitted a bid for Solicitation Number AHCA ITN 0904, Florida Medicaid Enrollment Broker Services. The bond then goes on to describe its terms and conditions. There is no mention of the Surety guaranteeing performance by any subsidiary or affiliate of Maximus, Inc., or specifically by Maximus. Ms. Vaughan made her decision to reject Maximus’ bid just a week or two after bid openings, sometime in September 2009. However, AHCA did not announce its bid decision as it related to Maximus at that time. Instead, AHCA announced the rejection of Maximus after it announced the intended award of contract to AHS. The notice of Maximus' rejection followed an evaluation of responses by AHS and PSI, a negotiation session with AHS and PSI, and a subsequent negotiation session with AHS, who then provided the best and final offer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the protest. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 26th day of January, 2010. COPIES FURNISHED: Seann M. Frazier, Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302-7742 Rachic Avanni Wilson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building III, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William E. Williams, Esquire Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
