The Issue Whether Respondent violated Section 760.10(1), Florida Statutes, when it discharged Petitioner.
Findings Of Fact Respondent, Cardio-Pulmonary Center of Bethesda, Inc. (Center), operates a Health and Fitness Center in conjunction with Bethesda Memorial Hospital located in Boynton Beach, Florida. On or about December, 1988, three separate business entities operated at the Health and Fitness Center: the Cardio-Pulmonary Center, a Fitness Department open to the general public, and a Sports Medicine and Back Care Center. Petitioner, Diane H. Cramer (Cramer), was hired by the Center as a secretary/receptionist on or about December 19, 1988. Cramer suffers from chronic depression caused by a chemical imbalance. When she is not in crisis she is highly functional; however when she is in crisis, there is criteria for a major depressive disorder which affects her ability to function normally in her day-to-day activities. For the entire length of Petitioner's Employment with the Center, Randy Colman (Colman) held the position of Director of the Cardio-Pulmonary Center. Colman was Cramer's immediate supervisor from December 1988 through September, 1991. In approximately August 1989, Cramer was promoted to the newly-created position of Office Manager based on her good job performance. Her duties included supervision of the office staff of the Cardiac Rehabilitation Department and the Sports and Back Care Center. Cramer's work performance continued to be satisfactory until early January, 1990. She broke up with her boyfriend and began to experience bouts of depression in which she would feel sad and angry and would isolate herself from others. She had contemplated suicide and told her co-workers about her suicidal thoughts. She would put her head down on her desk. When Colman would ask her to do something, she would look at him as if to say "why are you asking me to do this." Her emotional behavior had escalated to the point that it was affecting the performance of her co-workers. On January 19, 1990, Colman gave Cramer a memorandum outlining his concerns. He suggested that she speak to someone who was qualified in crisis management and depression and that she take a few days off. In response to Cramer's complaints to Colman that she lacked private space and private time at work, he suggested that she try a different work schedule which would allow her some privacy in her current work space. Additionally, he advised her that if she could not become more considerate and cordial to her co-workers that he would require her to take some time off and visit the employee health nurse before returning to work. Colman discussed these concerns as well in a conversation with Cramer on January 19, 1990. Cramer followed Colman's suggestion and took some leave time. When she returned from leave, she had improved and her work performance was satisfactory. Cramer did try the different work schedule suggested by Colman in his January 19, 1990 memorandum but she went back to her old work schedule. She did not seek any counseling in January, 1990. In June, 1990, Cramer experienced another bout of depression. On June 25, she had told Ken Goby (Goby), a co-worker, that she was depressed and that if she did not come into work the next day, it would be because she had killed herself. Goby relayed his conversation with Cramer to Colman. On June 26, Colman met Cramer at the entrance of the building and told her that he was concerned about her well-being. He gave her a memorandum which outlined his expectations of her work performance. Additionally, he advised her that she was suspended without pay until such time as she saw the employee health nurse, Ruth Tillman. He gave her an appointment time with Ms. Tillman. If she chose not to see the nurse, she was advised to sign the resignation form which was included with the memorandum. Cramer did see Nurse Tillman. As a result of her conversation with the nurse, Cramer went to see her endocrinologist, who referred her to Dr. Tomelleri. She saw Dr. Tomelleri on July 5. Cramer began taking medication and returned to work. Colman spoke with Nurse Tillman after her visit with Cramer and he was satisfied that Cramer could return to work. Having judged the credibility of the witnesses, I find that when Cramer returned to work she did not advise either Colman or Kathy Vredenburgh that she had seen a doctor, that she was diagnosed as being depressed, or that she was taking medication. However, the evidence is clear that Colman knew that Cramer was having emotional problems, which he judged to be depression. From the time she returned to work in July, 1990 until the early part of January, 1991, Cramer's work performance was satisfactory. Her mood swings were no different from any of the other employees at the Center. In the fall of 1990, Cramer received a seven percent merit increase and a .5 percent bonus raise. Beginning in January, 1991, Cramer began to come to work in a bad mood several times a month. She had a "snitty" way of dealing with her co-workers and the patients. She did not make any suicide threats. 15 In January, 1991, Cramer complained to Ken Goby that Colman was giving all his work responsibilities away and that they were doing all his work. Mr. Goby told Colman what Cramer had said. Based on Dr. Tomelleri's notes, Cramer had quit taking her medication sometime in January, 1991. She went back on her medication in late January, 1991. She was doing well when she next saw Dr. Tomelleri in March, 1991. Based on Dr. Tomelleri's notes, Cramer would do well as long as she continued to take her medication. In September, 1991, Colman was granted additional managerial responsibilities at the Center, and Kathy Vredenburgh was made Cramer's immediate supervisor. Colman and Ms. Vredenburgh conducted a performance evaluation of Cramer in September, 1991. Cramer was given a low rating. In November, 1991, one of Cramer's co-workers was having personal problems and asked Cramer if she could use the telephone in Cramer's office for a personal phone call. Cramer let her use the telephone; however, the co- worker's conversation dragged on and Cramer asked her to get off the phone so that Cramer could get back to her desk. Cramer got angry and threw a piece of paper. On November 29, 1991, Cramer received a reprimand for the incident and was cautioned that emotional outbursts, visible sulking, and performance of non- work related functions was not acceptable behavior and would not be tolerated. Prior to the issuance of the reprimand, Colman and Ms. Vredenburgh discussed Cramer's behavior. Based on Ms. Vredenburgh notes, it is clear that she was not aware that Cramer was currently being seen by a psychiatrist. In December of 1991 or January of 1992, Cramer got into an argument with a patient over some medical records. Cramer raised her voice at the patient. In April of 1992, Kent Goby became Cramer's immediate supervisor. Cramer was certified to teach SALSArobics, which is modified low impact aerobic exercises set to Latin music and movements. In October, 1991, she approached Colman with a proposal to introduce the program at the Center. By memorandum dated November 15, 1991, she followed up a meeting with Colman concerning her proposal and addressed several questions that he had concerning the program. Colman gave her his written comments on November 25, 1991. Cramer wanted to be the instructor of SALSArobics. On June 5, 1992, Goby and Cramer had a conversation concerning the SALSArobics. Cramer told Goby that Colman had been very negative about the program. She stated that if Colman did not appreciate all the work and research that she had done then, "The hell with him." On the following Monday, June 8, Goby again spoke with Cramer about SALSArobics. Goby told Cramer that he would be meeting with the Center's exercise instructor to discuss the possibility of starting the program. Cramer told Goby that she felt that the fitness center probably was worried about her influencing members from existing aerobic classes and that she would not want anyone else to teach SALSArobics. She told Goby "screw them." On June 9, Goby relayed his conversations with Cramer about SALSArobics to Colman. Based on the Center's records, and notes of Goby, Cramer was late three times in March, 1992, and twice in May, 1992. It is not clear why she was late in March. Her tardiness in May resulted from oversleeping on one occasion and a back ache caused by her bed on the other occasion. Cramer came to work late on June 9, 10, and 11. The evidence did not establish that she was late on these days because of her depression. Sometime during the week of June 9, 1992, Cramer made comments to Colman regarding her tardiness. Once she told him that she could not understand "how people get to work on time." On another occasion, when he observed her walking in late, she told him that she was "always" late. She did not advise Colman that her tardiness was due to her depression. Cramer's employment was terminated on or about June 11, 1992, due to "inappropriate job performance, i.e. tardiness, emotional outbursts, and general attitude towards the center and [her] co-workers." Cramer was not in a crisis situation during the time of the occurrence of the circumstances which led to her discharge. Based on the medical records prepared by Dr. Tomelleri, Cramer saw him in March, 1992 and did not visit him again until July 17, 1992. Cramer's claim for unemployment compensation benefits was refused by an Appeals Referee. The Appeals Referee concluded that Cramer was terminated for misconduct connected with her work. The decision of the Appeals Referee was affirmed by the Florida Unemployment Appeals Commission and by the Florida Fourth District Court of Appeal. Cramer filed a timely charge of discrimination with the Florida Commission on Human Relations. Cramer's charge alleged that she was "laid off" because of a perceived handicap, severe depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Cardio-Pulmonary Center of Bethesda, Inc. did not commit an unlawful employment practice and that Diane H. Cramer's Petition for Relief from an Unlawful Employment Practice be dismissed. DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1260 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-5: Accepted in substance. Paragraph 6: The second half of the first sentence is rejected as subordinate to the facts actually found. The remainder of the paragraph is accepted in substance. Paragraphs 7-12: Accepted in substance. Paragraph 13: The first sentence is accepted in substance. Having judged the credibility of the witnesses, I reject the second sentence. Paragraphs 14-17: Accepted in substance. Paragraph 16: Rejected as subordinate to the facts actually found. Paragraph 17: Rejected to the extent that it implies that Cramer was deliberately excluded by her co-workers. Having judged the credibility of the witnesses, the evidence established that Cramer had been invited to go to lunch but had declined because of lack of money. Paragraphs 18-20: Rejected as subordinate to the facts actually found. Paragraph 21: Having judged the credibility of Cramer, I reject the first part of the sentence as not credible. The second part of the sentence is accepted in substance to the extent that Cramer did have episodes of depression. Paragraph 22: Having judged the credibility of Cramer, I reject this paragraph as not supported by credible evidence. Paragraph 23: Rejected as subordinate to the facts actually found. Paragraph 24: Accepted in substance to the extent that it refers to the time of discharge. The evidence is clear that Cramer had received warnings during her employment with the Center concerning her tardiness and her dealings with co-workers and clients. Paragraphs 25-31: Accepted in substance. Paragraphs 32-41: Rejected as subordinate to the facts actually found. Paragraphs 42-44: Accepted in substance. Paragraph 45: Accepted to the extent that the statement is generally true. Rejected to the extent that it implies that the tardiness that resulted in part in Cramer's discharge were caused by her depression. Paragraphs 46-48: Accepted in substance. Paragraphs 49-53: Accepted in substance to the extent Ms. Vredenburgh felt that Cramer had emotional problems which should be addressed in counseling. Paragraph 54: Accepted in substance. Paragraphs 55-61: Rejected as subordinate to the facts actually found. Paragraph 62: Accepted in substance. Paragraph 63: Rejected as subordinate to the facts actually found. No Paragraph 64 Paragraphs 65-71: Accepted in substance. Paragraph 72: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraphs 73-75: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: Rejected as unnecessary. Paragraphs 4-8: Accepted in substance. Paragraph 9: The second sentence is rejected to the extent that it implies that Colman did not perceive that Cramer had emotional problems. The remainder is accepted in substance. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary. Paragraphs 12-19: Accepted in substance. Paragraphs 20-21: Rejected as recitation of testimony. Paragraphs 22-28: Accepted in substance. Paragraph 29: The first two sentences are accepted in substance. The last sentence is rejected as constituting argument. Paragraph 30: Accepted in substance. Paragraph 31: Rejected as unnecessary. Paragraphs 32-39: Accepted in substance. Paragraph 40: The first and third sentences are rejected. Based on Colman's memoranda, I find that he did know that she had some emotional problems. The second sentence is accepted in substance. The last sentence is accepted in substance to the extent that there was no competent substantial evidence to indicate that Goby did have knowledge of Cramer's condition, psychiatric visits or medication. Paragraph 41: Accepted. COPIES FURNISHED: Elizabeth S. Syger, Esquire Michael W. Casey, III First Union Financial Center, Suite 3600 200 South Biscayne Boulevard Miami, Florida 33131-2338 Gary A. Isaacs, Esquire One Clearlake Centre 250 Australian Avenue South Suite 503 West Palm Beach, Florida 33401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ----3_ day of J--+Ni 1_c..y....,....,_-..._.{_· , 2014, m Tallahassee, Florida. /\ /' f ' .' C \ ).;'-(/ '((l /r- ELIZABETH DUDEK, SECRETARY (Agency for Health Care Admforstration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. (OPPOSING COUNSEL) Peter A Lewis, Esquire 302 North Shannon Lakes Drive Suitel0l Tallahassee, Florida 32309 (Via U.S. Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Station 9 Tallahassee, Florida 32308 (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Karen Chang, Bureau Chief Medicaid Program Analysis 2727 Mahan Drive Building 2, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration 2727 Mahan Drive, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Kristin M. Bigham Office of the Attorney General The Capitol PL - 01 Tallahassee, FL 32399-1050 (Via US Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the of -;,;;-D, 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning Certificate of Need ("CON") Application No. 10094 to establish a 24-bed adult inpatient psychiatric hospital and CON Application No. 10095 to establish a 26-bed adult inpatient psychiatric hospital, both of which were filed by HAVEN BEHAVIORAL SERVICES OF FLORIDA, LLC (hereinafter “Haven”) in the Second Batching Cycle of 2010. The Agency preliminarily denied both of Haven’s CON applications. Thereafter, Haven timely filed a Petition for Formal Administrative Hearing with respect to the denials in CON 10095, DOAH Case No. 11-265, and CON 10094, DOAH Case No. 11-267, which the Agency Clerk forwarded to the Division of Administrative Hearings (‘DOAH”). On February 14, 2011, the Intervenor, The Ocala Behavioral Health, LLC d/b/a The Vines Hospital, filed a Motion to Consolidate DOAH Case Nos. 11-265 and 11-267. On March 2, 2011, DOAH issued an Order of Consolidation consolidating both cases. On March 8, 2011, Haven filed a Notice of Voluntary Dismissal withdrawing its CON applications in DOAH Case Nos. 11-265 and 11-276. On March 10, 2011, DOAH issued an Order Closing Files as a result of the voluntary dismissals. It is therefore ORDERED and ADJUDGED: 1. The voluntary dismissals by Haven and the Order Closing Files by DOAH are hereby acknowledged and accepted. 2. The above-styled cases are hereby closed. DONE and ORDERED this (ZA. day of Brit , 2011, in Tallahassee, Florida. ELIZABETH PUDEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
Conclusions Having reviewed the Statements of Deficiencies, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the Petitioner the attached Statement of Deficiencies after an unannounced licensure complaint inspection. (Ex. 1). 2. The Petitioner filed a Petition for Formal Hearing, which was referred to the Division of Administrative Hearings. The Petitioner later filed a Notice of Voluntary Dismissal. (Ex. 2). Based upon the foregoing, this case is CLOSED. ORDERED at Tallahassee, Florida, on this 3 day of Mar, , 2015, Elizapéth D' , 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. Filed March 4, 2015 3:27 PM Division of Administrative Hearings CERTIFICATE OF SERVICE I CERTIFY that a true and correct co persons by the method designated on this Po of this Final Order was served on the below-named ay of L ech, , 2015. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Alba M. Rodriguez Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Geoffrey D. Smith, Esquire geoff@smithlawtlh.com (Electronic Mail) Nelson E. Rodney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.A. 3023 North Shannon Lakes Drive, #101 Tallahassee, Florida 32309 (U.S. Mail) Mary Li Creasy Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Conclusions AHCA No. 2009000180 RENDITION NO.: AHCA- \ 3 · ) 00 S -S-OLC THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: 1 . The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1 ). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the applic ation, it shall resume its review of the app lica tion. The Applicant shall pay the Agency an administrative fee of $4,000.00 within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration" containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Dri ve , MS# 14 Tallahassee , Florida 32308 Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney's fees. This matter is closed. ORDERED in Ta ll ahassee , Florida, on this V/ day of _ l_i(_>_f-v----9=c-t"-1-,- , 2013. retary are Administration Filed October 31, 2013 3:07 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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 ofrendition of the order to be reviewed. CERTIFICATE OF SERVICE 0::,6, , I HEREBY CERTIFY that a true and correct cop 1:J_11al Order was the below- named persons/entities by the method designated on thi of 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas M. Hoeler, Chief Facilities Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Peter A. Lewis, Esquire Law Office of Peter A. Lewis, P. L. 3023 North Shannon Lakes Drive, Suite 101 Tallahassee, Florida 32309 (U.S. Mail) 2
Findings Of Fact Introduction On February 26, 1988 respondent, Department of Health and Rehabilitative Services (HRS), through its District IX office, advertised a Request for Proposal (RFP) in the Florida Administrative Weekly inviting qualified and interested organizations and vendors to submit proposals for the designation of an Area Agency on Aging in District IX. The designation would run from May 2, 1988 through the end of the calendar year but the successful vendor could be expected to be redesignated in subsequent years. According to the advertisement: Proposals will be received by District IX until 12:00 p.m., EST, March 24, 1988, for the designation of an Area Agency on Aging authorized under Title III of the Older Americans Act as amended, within the jurisdictional areas of Martin, St. Lucie, Indian River, Okeechobee and Palm Beach Counties. * * * Contract awards will be based on approximately 75 percent federal funds, 11 percent general revenue and 14 percent local matching funds. * * * Written inquiries concerning the Request for Proposals will be received until 4:00 p.m., EST, March 11, 1988. A Bidders Conference, to review the proposed format and contract award process, will be held on March 4, 1988. * * * Under this proposal, HRS intended to award the contract to the best qualified firm since price proposals were not being submitted. To this extent, the proceeding differs from the typical state project where the contract is ordinarily awarded to the lowest and most responsive bidder. In response to the above RFP, petitioner, Banyan Area Agency on Aging, Inc. (Banyan), timely submitted its proposal. As it turned out, Banyan was the only organization that filed a bid. After being reviewed by a seven person evaluation committee, the proposal was given a score of 480 out of a possible 1525 and a recommendation that it be rejected. This recommendation was later adopted by the District Administrator. This decision was conveyed to petitioner by letter dated April 4, 1988. That prompted a request for hearing by petitioner to challenge the preliminary agency action. As grounds for contesting the action, petitioner contended the agency was arbitrary and capricious in rejecting its proposal. If its preliminary action is sustained, HRS intends to seek authority from the Department of General Services to negotiate a noncompetitive bid. Under this process, HRS desires to designate, after a screening process, one person from each of the five counties to serve on the board of a corporation to be established to run the program. Thus, HRS does not intend to readvertise the RFP and seek competitive proposals a second time. The Contract The contract in question is funded principally through federal grant dollars under the federal Older Americans Act of 1965, as amended. The monies, commonly known as Title III funds, are used to provide programs for senior citizens. Respondent is the State agency charged with the responsibility of administering the program funds. To receive federal funds, HRS was required to prepare a state plan and submit it to the U.S. Commissioner on Aging for his approval. A part of that plan calls for HRS, or District IX in this case, to designate an area agency on aging (AAA) to plan and administer a comprehensive and coordinated system of services for the aging in the five county area of Palm Beach, Okeechobee, Indian River, Martin and S. Lucie Counties. Among other things, the local AAA must develop an area plan for supportive services, senior centers and nutrition services in the five county area. The AAA will receive $300,000 to cover administrative costs in administering the program and will be in charge of dispensing several million dollars annually in grant dollars for aging programs. District IX had previously designated Gulfstream Area Agency on Aging (Gulfstream) as its AAA. However, due to a combination of faulty management, lack of supervision and other factors, Gulfstream was designated as AAA in May, 1987. Since then, HRS has received several waivers from the Commissioner on Aging but now faces a mandate to designate a District IX AAA by October 1, 1988 or lose its federal funding. To avoid a recurrence of the Gulfstream problem, the HRS District IX contract manager, and several other district personnel, prepared a comprehensive RFP to be issued in conjunction with the selection of a new AAA designee. After a draft was assembled at the local level, the RFP was forwarded to HRS' Tallahassee office where further refinements were made. The final product has been received in evidence as petitioner's exhibit 9 and respondent's exhibit 11. According to the District IX contract manager, the RFP is the "state of the art" in terms of what an AAA ought to be. The RFP is a voluminous document, weighing some 6 1/2 pounds according to Banyan, and requires a great deal of information and detail regarding the AAA organization, procedures, and program plans and goals to satisfy the federal act. The RFP was given to interested organizations, including Banyan, around March 1, 1988. This gave vendors approximately three and one-half weeks to prepare and submit a proposal. Only Banyan was interested in being the designee and thus was the only bidder on the job. Its proposal contained 135 pages. Evaluation Process HRS created a seven person evaluation committee to review the proposals. The committee included five HRS employees and two non-HRS members. All members were given Banyan's proposal prior to the selection date. On March 28, 1988 the committee met and each member independently evaluated Banyan's proposal. Although a top score of 1525 was theoretically possible, Banyan received an average overall score from each There of 480, or a rating of approximately thirty-one and one half percent. After the scores were tallied, Banyan was given one hour to orally explain its proposal before the full committee. At the conclusion of the presentation, the committee voted unanimously to reject the proposal. The reasons for rejecting Banyan's proposal are set forth in respondent's exhibit 2. The three primary deficiencies, as broadly stated, were the "proposal did not develop ideas fully enough to demonstrate a clear understanding of the needs and conditions of the District IX 60+ population," the proposal "did not demonstrate a clear understanding of the role and responsibility of area agency on aging nor was there evidence of administrative capability,' and (c) the proposal "did not offer assurance that current board members fully understood their position as the governing board." At hearing, several members of the committee amplified on the above three shortcomings and pointed out specific deficiencies in Banyan's proposal which led them to reject the proposal. For example, the proposal failed to focus on areas outside of Palm Beach County, did not contain a proposed budget, lacked minority representation, failed to fully identify goals and objectives, did not include a detailed description of the fair hearing process and the make- up and procedure of the advisory council and omitted the corporation's bylaws. Given these deficiencies, and others, HRS was justified in rejecting the bid. Petitioner's Case Petitioner contends that three and one-half weeks was too short a time to prepare a responsible proposal to the RFP. In this regard, HRS acknowledged it was a lengthy RFP, but it considered the time adequate for a qualified and experienced organization, particularly since much of the RFP was reference material. Banyan also pointed out that its board of directors was made up of highly qualified people with impressive work experience. While this is true, as evidenced by testimony at hearing, none were experienced in managing a federally funded program of this magnitude. Banyan further stated that, after the proposal was filed, it could have corrected or expanded on many of its abbreviated responses. However, once the proposal was filed, such changes were impermissible. Finally, Banyan conceded that while many of its responses were brief and nonspecific, this was because Banyan intended to rely upon HRS for technical assistance to implement the programs. However, the RFP called for specific, detailed responses so that HRS could properly evaluate the proposal. Allegations of Bias or Impropriety There is no evidence that the committee acted unfairly or improperly during the evaluation process or that any eber was personally biased towards Banyan. There is also no evidence that HRS rejected the bid so that it could "control" the management of the program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the protest filed by petitioner be DENIED and that a Final Order be entered confirming the rejection of petitioner's proposal. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of June, 1988. COPIES FURNISHED: Mr. Colman B. Stein 100 Worth Avenue Apartment 416 Palm Beach, Florida 33480 Laurel D. Hopper, Esquire 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement, attached hereto and incorporated herein as Exhibit “1.” Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 19 day of _ becembar __. 2014, in Tallahassee, Florida. Agency for Health Care Administration Final Order Engagement No. NH10-047L Page | of 3 Filed January 7, 2015 8:00 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. John E. Terrel, Esquire Agency for Health Care Administration 1700 North Monroe Street - Bureau of Finance and Accounting Suite 11-116 (Interoffice Mail) Tallahassee, Florida 32303 (Via U.S. Mail) Bureau of Health Quality Assurance Agency for Health Care Administration (Interoffice Mail) Stuart Williams, General Counsel Zainab Day, Medicaid Audit Services Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Interoffice Mail) Shena Grantham, Chief Willis F. Melvin, Jr., Esquire Medicaid FFS Counsel Assistant General Counsel (nteroffice Mail) Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 (Via Interoffice Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Final Order Engagement No. NH10-047L Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to A ¢ the above named addressees by U.S. Mail on this thes day of Daw , 2014. y chard J. Shoop, ¥Squire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Final Order Engagement No. NH10-047L Page 3 of 3 STATE OF PLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION ARC BRADENTON HC, INC. d/b/a THE NURSING CENTER AT FREEDOM VILLAGE, Petitioner, VS. ENGAGEMENT No: NH10-047L PROVIDER No.: 347195 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. SETTLEMENT AGREEMENT Respondent, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION CAHCA” or “the Agency”), and Petitioner, ARC BRADENTON HC, INC, d/b/a THE NURSING CENTER AT FREEDOM VILLAGE (“PROVIDER”). by and through the undersigned, hereby stipulate and agree as follows: L. This Agreement is entered into between the parties to resolve disputed issues arising from audit engagement NH10-047L., 2. The PROVIDER is a Medicaid provider in the State of Florida operating a nursing home facility that was audited by the Agency. 3. In the audit engagement number fisted in paragraph i above. AHCA audited the PROVIDERS’ cost reports. covering the audit period ending in 2007. Settlement Agreement Page 1 of 6 EXHIBIT 1 4. In its subsequent Audit Report, AHCA notified the PROVIDER that Medicaid reimbursement principles required adjustment of the costs stated in the cost report. The Agency further notified the PROVIDER of the adjustments AHICA was making to the cost reports. 5. In response to AHCA’s Audit Repert, the PROVIDER filed a Umely petition for administrative hearing, and identified specific adjustments that it appealed. The PROVIDER requested that the Agency hold the petition in abeyance in order to afford the parties an opportunity to resolve the disputed adjustments. 6. Subsequent to the petition for administrative hearing. AHCA and the PROVIDER exchanged documents and discussed the disputed adjustments. As a result of the aforementioned exchanges, the parties agree to accept all of the Agency's adjustments that were subject te these proceedings as set forth in the Audit Report, exeept for the following andit adjustments which the parties agree shall be changed or removed as set forth below: ARC BRADENTON HC, INC. d/b/a THE NURSING CENTER AT FREEDOM VILLAGE NH1i@-047L For the Period 6/12/2006 through 11/31/2007 1. Remove adjustment 29; 2. Remove adjustment 36: 3 Remove adjustment $9: 4, Remove adjustment 60: 5. Remove adjustment 77; 6, Remove adjustment 80: 7, Change adjustment 18 from ($15.437) to ($1,883). 7 In order to resolve this matter without further administrative proceedings. and to avoid incurring further costs, PROVIDER and AHCA expressly agree the adjustment resolutions as set forth in paragraph 6 above completely resolve and settle this case and this agreement. upon Settlement Agreement Page 2 of 2 execution by the parties, constitutes the PROVIDERS” withdrawal of their petition for xdministrative hearing. with prejudice. 8. After issuance of the Final Order, PROVIDER and AHCA further agree that the Agency shall recalculate the per diem rates for the above-stated audit period and issue a notice of the recalculation. Where the PROVIDER was overpaid, the PROVIDER will reimburse the Agency the full amount of the overpayment within thirty (30) days of such notice. Where the PROVIDER was underpaid AHCA will pay the PROVIDER the full amount of the underpayment within forty-five (45) days of such notice. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable ~ MS #14 2727 Mahan Drive, Building 2. Suite 200 Tallahassee. Florida 32308 Notice to the PROVIDER shall be made to: John &. Ferrel. Equire 1700 North Monroe Street Suite 11-116 Tallahassee. Florida 32303 9. Payment shall clearly indicate it is pursuant to a settlement agreement and shall reference the audiv/engagement number. 10. PROVIDER agrees that failure lo pay any monies due and owing undet the terms of this Agreement shall constitute PROVIDERS’ authorization for the Agency. without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to the PROVIDER for any Medicaid claims. 1. ALICA is entitled to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable law. Settlement Agreement Page 3 of 3 2. This settlement does not constitute an admission of wrongdoing or error by the parties with respect to this case or any other matter. 3. Each party shall bear their espective attormeys” fees and cosis. iPany, 4. The signatories to this Agreement. acting in their representative capacities, are duly authorized to enter into this Agreement on behalf of the party represented. 15. The parties further agree a facsimile or photocopy reproduction of this Agreement shall be sufficient for the parties te enforce the Agreement, The PROVIDER agrees. however, to forward a copy of this Agreement to ANIC A with original signatures. and understand that a Final Order may not be issued until said original Agreement is received by AHCA. 16. This Agreement shall be construed in accordance with the provisions of the laws of Florida, Venue for any action arising from this Agreement shail be in Leon County, Florida. 17. This Agreement constitutes the entire agreement between PROVIDER and the AHCA, including anyone acting for, assuciated with or employed by them. concerning all matters and supersedes any prior discussions, agreements cr understandings; there are no promises. representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modifications or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 18. This is an Agreement of settlement and compromise. made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with cach party compromising and settling any potential correctness or ineorrectness of ifs understandings. information and contentions as to facts and law, so that no misunderstanding or misinformation shall be 4 ground fur rescission hereof. Settlement Agreement Page 4of4 10.” Exeept with respect to any recaiculation(s) described ia paragraph & above, PROVIDER expressly waive in this matter their right to any hearing pursuant to sections §§120.569 or 120.37, Florida Statutes, the making of findings of fact and conclusions of law by the Agency. and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding these proceedings and any and all issues raised herein, other than enforcement of this Agreement. The PROVIDER further agrees the Agency shall issue a Final Order, which adopts this Agreement. 20. This Agreement is and shall be deemed jointly drafied and written by all partics to it and shall not be construed or interpreted against the party originating or preparing it. 2t. To the extent any provision of this Agreement is prohibited by law for any reason. such provision shall be effective fo the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement, 22, This Agreement shall inure to the benefit of and de binding on each party’s successors, ansigns, heirs, administrators, representatives and Lrustees. ARC BRADENTON HC, INC. d/b/a THE NURSING CENTER AT FREEDOM VILLAGE NH16-047L C 4 Dated: OE PT bd 204 Sead beewa pe a og, a ° Provider’s Representative FM. & wy Lf ., ce Bt Dated: eee of 2014 Legal Coungel for Provider : 4 oi. E Tore? Settlement Agreement Page 5 af 5 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 JustinSenior Deputy Secri tuart Williams General Counsel She ranth: Medicaid FFS Chief Counsel ill. 4 Broloh Willis F. Melvin, Jr. Assistant General Counsel Dated: 12/9 2014 Dated: [oe [s , 2014 Dated: (1/4 @ . 2014 Dated: Wavembec 25° 2014 Settlement Agreement Page 6 of 6
