The Issue The issue in this case is whether just cause exists for Petitioner, Hernando County School Board (the “School Board” or “Board”), to terminate the employment of Respondent, Renee Koulouris.1/
Findings Of Fact The School Board is responsible for hiring, supervising, and firing all employees within the Hernando County School System. This responsibility includes taking administrative action when an employee violates any rule or policy of the Board. Mrs. Koulouris was hired by the School Board approximately 15 years ago as a fourth grade teacher. At the beginning of the 2016-2017 school year, she was transferred to a fifth grade class in order to provide assistance to a struggling team. Her principal, Mr. Piesik, described Mrs. Koulouris as a very strong teacher with very high standards. Mr. Piesik said Mrs. Koulouris ran her classroom like “a well-oiled machine.” Mrs. Koulouris has had no disciplinary actions prior to the incident at issue in the present proceeding. One of the duties of a fifth grade teacher is to administer the Florida Standards Assessment (“FSA”) tests in four different subject areas: Language Arts; Math; Writing; and Science. The tests are an integral part of a student’s education and are used to determine placement in the next grade level, i.e., which classes the student will be eligible for upon advancement to middle school. It is imperative that FSA tests are administered correctly and securely. Extra measures are taken to ensure that all students take the tests independently, without assistance from anyone. Protocols are put in place to monitor students who are taking the tests. Mrs. Koulouris attended all of the required training prior to administering the tests. She also signed the Test Administration and Security Agreement, and the Test Administrator Prohibited Activities Agreement, acknowledging her understanding of the test protocols. Some of the FSA tests are administered in the classroom; some are done in the computer lab. In either case, the teacher administering the tests must diligently follow all rules and procedures. Fairness and honesty is paramount. The Board recommends the presence of a proctor in addition to the teacher when tests are given to certain sized classes. No proctor was present when the tests at issue herein were administered. Mrs. Koulouris is accused of inappropriately assisting students during the FSA tests she administered in the 2016-2017 school year. Those tests were taken over a period of three months: The writing test was administered on February 20, 2017; the English test was given on April 19 and 22, 2017; the Science tests were given on May 1 and 2, 2017; and the Math test was done on May 5 and 9, 2017. During this same time frame, Mrs. Koulouris’ classes took a number of practice FSA tests (as well as regular tests in various subjects). Mrs. Koulouris is alleged to have assisted students by signaling them during the FSA tests to indicate that their answer to a particular question might be wrong. This was allegedly done by tapping a student or making a particular face at them. Any student so notified would then be expected to change their answer. It is also alleged that Mrs. Koulouris would stand behind students for long periods of time, tapping or nudging them if they wrote or entered an incorrect answer. If the allegations are true, Mrs. Koulouris would be in violation of the test protocols and policies. Mrs. Koulouris adamantly and credibly denied any such behavior. She describes her “assistance” to the students as follows: She explains the test-taking process. She stresses the need to concentrate and stay on track. She tells them that if they do not know an answer, to move on and come back to that question later. She reminds them to be thorough and to take their time, thinking about each question carefully. She instructs the students to go back over their work when they finish, time allowing. In order not to disturb the students while they are testing, she prefers to remain at her desk rather than walking around the room. However, she does move around the room on rare occasions, or when she sees a student who is off task, e.g., sleeping or gazing out the window. She would sometimes tap a student’s desk to get them back on track or, in some instances, to wake them up. The testimony of the two students who appeared at final hearing in this matter supports Mrs. Koulouris’ description of her normal process for administering an FSA test. In the weeks leading up to the FSA tests, Mrs. Koulouris would give a number of practice exams so that the students would become accustomed to the test format. She does help students during the practice tests, but generally for the purpose of keeping them focused, not to correct their answers. She uses facial expressions and eye contact to provide that assistance. Mrs. Koulouris’ demeanor at final hearing gave credence to her testimony. She seemed very sincere concerning her actions and her entire testimony was credible. The allegations concerning Mrs. Koulouris’ actions during the 2016-2017 FSA testing cycle came about towards the end of that school year. As she described it: Fifth grade “graduation” occurred on May 18, 2017, a Thursday, at which time awards were handed out to students based on their performance. The following day, Friday, Mrs. Koulouris was in a multipurpose room tending children who would be picked up by their parents. Other adults were present in the room. Mr. F., a fellow Suncoast teacher whose son was a student in Mrs. Koulouris’ class, approached Mrs. Koulouris. Mr. F. angrily asked why his son had not received a “gold award” at the graduation ceremony held the day before. Mrs. Koulouris explained that the child had not achieved the necessary grade point average to receive a gold award. Mr. F. told her he was very “pissed off” and that if he found out that Mrs. Koulouris did something “on purpose” to hurt his son, he would be extremely angry at her. Mrs. Koulouris felt very intimidated by Mr. F.’s demeanor and his language. She was also very surprised, as she thought she had a good relationship with the student and had been fair with him. Mrs. Koulouris reported the incident with Mr. F. to her team leader and then to the principal, Mr. Piesik. Mr. Piesik reprimanded Mr. F. for his behavior and told Mr. F. not to have any further contact with Mrs. Koulouris unless an administrator was present. On the following Monday, Mr. F. went to Mr. Piesik and reported that-–according to statements made by Mr. F.’s son over the weekend-–Mrs. Koulouris had improperly assisted her students during the FSA tests. The timing of Mr. F.’s allegation against Mrs. Koulouris is extremely suspect. The principal immediately undertook an investigation to determine whether the allegation had any merit. He prepared a list of questions to be posed to Mrs. Koulouris’ students. Mr. Piesik went to the classroom on May 23, 2017, and talked individually with several randomly selected students, asking them the questions he had prepared in advance. (Mr. F.’s son was intentionally excluded from the group of students to be questioned.) Some of the questions were very innocuous, i.e., Mr. Piesik asked about the school year and about the FSA testing in general. He then pointedly asked, “During the FSA testing, did your teacher do anything to help students get the right answers?” A few of the students apparently indicated that Mrs. Koulouris had said something about making a face or nudging them if they were off task, gave a wrong answer, or were making mistakes. Others said that no such comments were made by Mrs. Koulouris. Mr. Piesik compiled the students’ answers to his queries and contacted two school district administrators: Matthew Goldrick, supervisor for professional standards; and Linda Pierce, supervisor of assessment and accountability. The administrators suggested Mr. Piesik continue his investigation of the matter. Next, Mr. Piesik drafted a form containing three statements and one question. The singular question on the form was, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” He placed “Yes” and “No” lines beneath the question to record the students’ responses. The three statements drafted for inclusion on the form were: (1) “Yes I knew Mrs. Koulouris was helping students on the test.” (2) “Mrs. Koulouris did NOT help me on the test.” (3) “Mrs. Koulouris helped me on the test by giving a tap or a look so I knew I needed to change my answers.” Beneath the question and statements were these words: “Please indicate which test she helped you on. Math – Reading - Science.” On the following day, May 24, 2017, Mr. Piesik interviewed all 22 of the students who had undergone FSA testing with Mrs. Koulouris, including Mr. F.’s son. This time, the principal used his newly created form containing the one question and three statements. If the student agreed with a statement when it was read to him or her, Mr. Piesik would place a check next to the statement. He would circle either yes or no after asking the question, depending on the student’s answer. The principal testified that “all 22 students” answered “Yes” to the question of whether Mrs. Koulouris said she would tap them if their answer was wrong. Of those students, 12 said Mrs. Koulouris was “helping students” during the test, seven indicated they had been helped, and 13 said Mrs. Koulouris did not help them. However, some of the same students who said their teacher was helping students when asked on May 24, 2017, had said just the opposite on May 23, 2017. The discrepancy in their answers leads to the conclusion that the questions, as posed, were either unclear to the students or were unintentionally leading in nature. By way of example, student C.M.F., who had presumably answered “Yes” to the question posed on May 24, 2014, as to whether Mrs. Koulouris had helped students during the FSA testing (since all students had responded that way), said in her deposition that she misunderstood the question Mr. Piesik had asked her, that it was “all a misunderstanding.” She maturely opined that, “So, it is very commonly known that people cannot understand something because it was worded a way that they thought it would mean something else. And I thought what the principal, Mr. Piesik, said, he had asked me if she had helped with the – if Mrs. Koulouris had helped with the test, but he didn’t say the specific FSA so I thought he was talking about tests in general. And sometimes she would explain, like rephrase stuff and explain it to us for the normal tests, but never for the FSA.” This sort of equivocation renders the students’ statements virtually uncredible. Two of the students testified at final hearing. Their testimony was insufficient to adequately corroborate the hearsay evidence found in the written forms. Student A.S. said at final hearing that “before tests” Mrs. Koulouris would tell us she would tap students on the shoulder if they were “way off track” and you “needed to get back in the game.” However, she did not remember any student being touched during the FSA tests. A.S.’s testimony was too equivocal to establish whether or not Mrs. Koulouris had assisted any students during the FSA tests. It is notable that the School Board did not cite to any of A.S.’s testimony from final hearing, but instead relied upon the less certain and unclear statements made by students in their depositions, which are both hearsay in nature and less credible than live testimony. Student A.W.’s memory of the events was even more clouded. She believes she remembers one student messing up the order of his responses (i.e., answering up and down rather than side to side on the answer sheet) and Mrs. Koulouris helped him get realigned, but does not believe Mrs. Koulouris otherwise assisted anyone during the tests. When confronted with her response to the principal’s form questions, A.W. simply could not remember being asked the questions or how she responded. On May 23, 2017, Mr. Piesik had asked her the question from his form, “During the FSA testing, did your teacher do anything to help students get the right answers?” She responded, “No.” On May 24, 2017, she answered “Yes” to the question, “Did Mrs. Koulouris instruct you before FSA test [sic] that if she tapped you or gave you a strange look it meant your answer was incorrect and you needed to change it?” At final hearing, A.W. answered “No” to the question, “Did you see or hear Mrs. Koulouris make the statement, ‘If I look at you funny or strange or if I give you a tap on the shoulder, that means you need to change your answers’?” Again, the testimony was inconsistent and was not sufficient support to corroborate or affirm the information found in the forms.2/ The truth of whether Mrs. Koulouris helped students on the FSA tests cannot be established by Petitioner’s evidence, the supposed student responses as tallied by Mr. Piesik, due to their hearsay nature and various discrepancies. When considering how the allegation against Mrs. Koulouris first arose, i.e., after her confrontation with her fellow teacher, Mr. F., and the equivocal testimony of the students, there is insufficient basis to support the allegations against her. Findings of Ultimate Fact Under Florida law, whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Accordingly, whether conduct alleged in an administrative complaint violates the laws, rules and policies set forth in the charging document is a factual, not legal, determination. The Board has not met its burden in this case of proving that Mrs. Koulouris engaged in the conduct for which she was charged. Although Mr. Piesik testified as to his conclusion based on interviews with students, that conclusion was not corroborated by the students’ testimony. The double hearsay nature of the students’ responses to Mr. Piesik’s questions, coupled with the vague recollections of students actually testifying, is wholly insufficient to satisfy the Board’s burden of proof. It is clear Mrs. Koulouris gave her students instructions about how to take the FSA tests, administered practice test at which the strict FSA rules were not applicable, monitored the tests and redirected students who were sleeping or otherwise distracted, and sometimes walked around the classroom. But the evidence is woefully short of proving wrongdoing or improper assistance to students. Notably, the deposition transcripts offered into evidence jointly by the parties were not helpful to the finder of fact. The students’ responses to questions were vague and disjointed. Each of the parties interpreted the students’ statements differently, each seeming to think the statements supported their position in this matter. Besides the obvious hearsay nature of the evidence, the statements were nebulous, and lacking clarity or persuasiveness. The students contradicted each other, some could not even remember where they were sitting during testing, and their memories seemed, at best, confused.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Hernando County School Board, finding no cause to terminate the employment of Respondent, Renee Koulouris, as there is insufficient evidence that she violated statutes, rules or policies regarding the administration of FSA tests. DONE AND ENTERED this 3rd day of April, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 3rd day of April, 2018.
The Issue Whether Respondent (“Desiree Seaton”) violated Petitioner, the School Board of Marion County’s (“the School Board”),1 drug-free workplace policy; 1 The School Board’s official name is “The School Board of Marion County.” § 1001.40, Fla. Stat. (2020)(providing that “[t]he governing body of each school district shall be a district school board. Each district school board is constituted a body corporate by the name of ‘The School Board of County, Florida.’”). The case style has been amended accordingly. and, if so, whether her employment with the School Board should be terminated.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: The School Board maintains an alcohol and drug-free workplace. Section 6.33 of the School Board’s Human Resources Manual provides that: It is further the intent of the School Board of Marion County to comply with the Omnibus Transportation Employee Testing Act (OTETA), regulations of the Federal Highway Administration (FHWA) contained in 49 CFR Parts 40 and 382, et al, Section 2345.091, Florida Statutes, the provisions of the Drug-Free Workplace Act, and other applicable state and federal safety programs. This policy shall also affirm the Board’s position that an employee in a safety sensitive position may be considered impaired at any measurable level by the use of alcohol and/or controlled substances. Pursuant to OTETA and its implementing regulations, drug and alcohol testing is mandated for all safety sensitive identified employees who function in a safety sensitive position. Section 6.33 further specifies that prohibited substances include “marijuana, amphetamines, opiates, phencyclidine (PCP), and cocaine.” In 3 Ms. Seaton’s exhibits were misnumbered in that there was no Respondent’s Exhibit 10. addition, “[i]llegal use includes the use or possession of any illegal drug, and the misuse of legally prescribed or obtained prescription drugs.” Also, “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” Section 6.33 states that random drug testing “may take place at any time, with or without proximity to driving,” and that there will be random drug testing for “all identified safety sensitive positions.” A “safety sensitive position” is defined as “[a]ny function for which a commercial driver’s license is mandated and in which a driver operates a vehicle designed to carry sixteen (16) or more passengers, a vehicle which weighs 26,000 + 1 pounds, or a vehicle which carries a placard indicating hazardous cargo.” Furthermore, drug testing shall be conducted by “independent, certified laboratories utilizing recognized techniques.” While the School Board maintains a drug and alcohol-free workplace, it encourages employees with chemical dependency to seek treatment: The School Board of Marion County recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of The School Board of Marion County to seek rehabilitation of employees with a self-admitted or medically determined drug problem. The School Board of Marion County will make every effort to assist those self-admitted and/or referred employees while being treated. Employees who are unwilling to participate in rehabilitation may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education rules, and applicable provisions of collective bargaining agreements. Substance Abuse Program – At any time prior to notification of a required test, an employee is encouraged to contact the Employee Assistance program. Such employees may be required to submit to testing as a part of a treatment program. The laboratory that conducts drug-testing for the School Board randomly selects individuals who will be tested during the upcoming quarter. The School Board then schedules those individuals for testing throughout the quarter so that a large number of drivers are not unavailable for work at the same time. During the next quarter, a different set of individuals are selected. Brent Carson is the School Board’s Director of Professional Practices. He becomes involved in employee disciplinary cases that rise above the level of a reprimand. Mr. Carson testified that the School Board has no ability to test employees other than the individuals the laboratory selects for testing: Q: To protect the integrity of the random testing, do you have the ability to vary from that random list provided by the outside lab? A: We have to test who they say – who they identify as the random employees. Q: So if you decided to pick and choose – if they pick someone and you said, no, I’m not going to bother with that person today, do you believe that could affect the randomness, if you will, if that’s the right word, of the test procedure, that it could affect the testing procedure and call into question if you start picking and choosing who’s not giving tests to people on the list? A: Yes, that would definitely, I think, impugn the efficacy of having random tests. If an employee has a positive drug test for a prescription medication, then the School Board’s Medical Review Officer (“MRO”) gives that employee three days to produce a valid prescription for that medication. If the employee produces a valid prescription, then the positive test is deemed to be a negative test. In addition, an employee can have a urine sample retested at his or her own expense. If there is no retest and no valid prescription is produced, then the School Board puts the employee on paid administrative leave pending the outcome of disciplinary proceedings. With regard to the consequences of a positive test, the Manual states that “[c]overed employees testing positive at any level for alcohol or controlled substances are in violation of district policy and will be immediately removed from their safety sensitive positions. A violation of federal, state, or District requirements shall be grounds for dismissal.” Mr. Carson testified that there is no progressive discipline for safety- sensitive positions. The first time an employee tests positive for an illegal substance or one for which that employee does not have a prescription, that employee is recommended for termination. Mr. Carson testified that the Superintendent has always recommended termination for violations of the School Board’s drug-free workplace policy: “Whether it’s random, whether it’s reasonable suspicion or whether it’s a drug test based off of injury, we have always recommended the termination of the employee.” Ms. Seaton Tests Positive for Opioids Ms. Seaton began working for the School Board as a bus driver in December of 2017. On February 5, 2018, Ms. Seaton signed a document acknowledging that bus drivers must “[s]ubmit to random, post accident and reasonable suspicion drug testing.”[4] Ms. Seaton has undergone surgeries in the past and testified that she has been prescribed hydrocodone “for years on and off depending on the 4 Prior to the positive drug test at issue in the instant case, Ms. Seaton had no disciplinary issues and had no other positive drug tests. surgery.”5 Ms. Seaton claims to be allergic to oxycodone, and it has been her habit to take hydrocodone only when she has excruciating pain.6 Ms. Seaton suffered a work-related injury on October 2, 2020, and described it as follows: I always help out where I can. So we have spare buses that we need to move from one compound to the other, and on this particular day I was taking one of the spare buses back over to another compound. As I was getting off the bus, I always grab with my right hand to the bar and my left hand on the dashboard. My hand slipped off the 5 Ms. Seaton had a double knee replacement surgery in August of 2019 and was prescribed hydrocodone. Respondent’s Exhibit 7 is a photograph of a pill bottle indicating that Ms. Seaton had been prescribed 60 hydrocodone pills. However, no date is visible from the photograph. 6 Respondent’s Exhibit 8 is a letter from a physician stating that Ms. Seaton has treated with him since December 21, 2018. The letter notes that Ms. Seaton is allergic to codeine and Premarin. There is no mention of Ms. Seaton being allergic to oxycodone. Also, hydrocodone was not among the medications this particular physician has prescribed for Ms. Seaton. dashboard and I went forward. And from there I suffered a rotator cuff tear and some other, like, bone spurs.[7] After the accident, Ms. Seaton took a drug test on October 2, 2020, and the test returned negative results for opiates, marijuana, cocaine, amphetamines, propoxyphene, PCP, barbiturates, and benzodiazepines. Medical documentation from an October 5, 2020, evaluation by a workers’ compensation physician indicates Ms. Seaton had a contusion of the left elbow and shoulder, a left shoulder strain, a left elbow strain, and a neck strain. An MRI on January 5, 2021, revealed a posterior labrum tear along with a possible anterior dislocation of her left shoulder. Since her accident, Ms. Seaton had been driving her mother’s car because it is an automatic, and Ms. Seaton has a stick shift. Ms. Seaton flew out-of-town to visit her son in Baltimore on October 22, 2020. Because 7 Ms. Seaton has had a difficult recovery from her injury and is dissatisfied with the treatment she received through workers’ compensation. After receiving a second opinion from her primary care physician, Ms. Seaton had shoulder surgery on February 26, 2021. At the time of the final hearing, she did not know whether the surgery would ultimately prove to be a success: “I am still in ongoing treatment. It started October 2nd. I went through holy heck with our – the way that Concentra work[s] – which is the people they use for workmen’s comp – they make you go through physical therapy before you can actually get an MRI done, because they say that it’s required by the insurance company. They had given me ultrasound – not an ultrasound. X-rays when I first had the injuries. And from there they said I had to go through physical therapy, I went through that a month. And then from there I went for an MRI which determined that they saw something, but they couldn’t know exactly. So they, then again, another MRI, a contrast MRI. I want to say I had that done December 23rd where they finally saw that. And we still, let me still – I didn’t have my surgery until February 26th. So from October 2nd to February 26th, I did not have surgery. And I was in constant pain. At nighttime with the rotator cuff, it’s kind of – in the daytime it’s tolerable, but at nighttime it’s excruciating pain, something to do with the way the muscles go. I’m not a doctor, but – I mean, it would be online. But it’s when you’re laying down you’re in a lot of pain. I had pain from my neck all the way shooting to my arm. It would be like a shooting pain and [ ] constant. On December 23rd, when I actually had the MRI to determine that I did have a rotator cuff tear, at that point I got tired of the Concentra doctors because they weren’t doing anything for my pain, and I went to my primary care for a second opinion, [and] he sent me to a pain management doctor. As of December 30th I have been on pain management with him, which is, like, Lyrica and hydrocodone and tramadol. So between the two. I still have therapy like I go three times a week. And I’m expected – like six more weeks. I still can’t – they’re not feeling that I’m where I’m supposed to be at this point. I’m supposed to be able to lift my arm a certain way, and it’s not. So I still have another set of therapy that I have to go through. I’m praying that everything goes back to normal. But I still have neck pain and we’re waiting to see if that clears up, I might have to go back to a neck specialist next.” Ms. Seaton did not want to leave her mother without transportation, she drove her own manual-shift car to and from an airport in Orlando, 90 minutes each way. However, using her left arm for driving caused her a great deal of pain. Upon her return to Florida, Ms. Seaton took a hydrocodone during the night of Sunday, October 25, 2020, because the pain was preventing her from sleeping. The hydrocodone came from a prescription: A: I’ve had hydrocodone prescribed to me for years on and off, depending on the surgery, because I can’t take oxycodone, which is the one that they’re saying came up on my test. The one that I took for – on October 25th, I want to say, it was a Sunday, it was from my previous surgery that I had. ALJ: Hold on. We need to get this straight. It looks like your drug test was October 27th, according to Petitioner’s Exhibit 1. A: Correct. ALJ: Are you telling me you took something prior to – just prior to October 27th? A: Correct. ALJ: What did you take? A: Hydrocodone. ALJ: Did you have a prescription for hydrocodone? A: Yes. During her stay in Baltimore, Ms. Seaton ate two biscuits sprinkled with poppy seeds. On October 26, 2021, and on the morning of October 27, 2021, Ms. Seaton also ate bagels sprinkled with poppy seeds. Ms. Seaton was notified during the morning of October 27, 2020, that she had been selected for drug testing that day. At that point in time, she was on light duty due to her injury and assigned to the transportation help desk.8 On approximately November 4, 2020, the testing laboratory reported that Ms. Seaton’s urine sample had tested positive for oxycodone and oxymorphone.9 The School Board notified Ms. Seaton on November 5, 2020, that she had been placed on administrative leave, with pay, during the pendency of an internal investigation. Mr. Carson met with Ms. Seaton on December 2, 2020, to inform her of the Superintendent’s recommendation that she be terminated. Ms. Seaton told Mr. Carson that she did not know how she could have tested positive for oxycodone because she is allergic to that medication. Mr. Carson and Ms. Seaton disagree about other aspects of the meeting. Specifically, Ms. Seaton claims that she mentioned during the December 2, 2020, meeting that she took hydrocodone and had a prescription for that medication. Mr. Carson does not recall Ms. Seaton making that comment.10 8 Even though Ms. Seaton was on light duty status, Mr. Carson testified that she was still subject to random drug testing: “Employees that are subject to random drug tests based off of their status because they’re CDL holders and drivers, they’re expected to stay in the pool for random drug tests if they are on light duty. The only time they are removed from that list is if they’re in a no-work status.” 9 The laboratory report entered into evidence was not authenticated, either by a witness or by self-authentication as provided in section 90.902, Florida Statutes (2020). Furthermore, no witness was produced to testify that the laboratory report was a business record and thus subject to an exception to the hearsay rule. The laboratory report is, therefore, unreliable hearsay. 10 During questioning by Petitioner’s counsel, Ms. Seaton claimed that she told the School Board’s MRO about her hydrocodone prescription: Q: Now, the note on the drug test that says it was positive lists oxycodone. Correct? A: Yes. Mr. Carson and Ms. Seaton spoke again on January 8, 2021, and Ms. Seaton stated for the first time to Mr. Carson that she had taken a long trip during the weekend prior to the October 27, 2020,11 drug test. She relayed that she was experiencing a lot of pain after driving and took some pills to alleviate the pain. According to Mr. Carson, Ms. Seaton did not identify the pills she took, state that she had a prescription, or offer him evidence that she had a prescription for opioids.12 As described above in the Preliminary Statement, Ms. Seaton speculated in her December 11, 2020, response to the Superintendent’s allegations that the positive test result could have been caused by poppy seeds she ate in the days preceding the drug test. This was the first time that Q: Do you understand that oxycodone is a different drug than hydrocodone? A: Yes. After doing research, yes. Well, actually speaking with the MRO officer, because he called it Percocet and I said, well, that’s impossible because I can’t take Percocet because I’m allergic to it. And so I told him, I said, all the Percocets, all those things, every time I have a surgery the doctors try to give me that and I tell them, no, I can’t have that because I get really sick and break out with [a] rash and vomiting, so they don’t prescribe that. That’s why I get prescribed hydrocodone. Q: So you’re saying that you told the MRO you took hydrocodone? A: Correct, hydro. Q: And even after you told him that, he still reported a positive test. Correct? A: He said he had to go by what he has there. 11 October 27, 2020, was a Tuesday. 12 Ms. Seaton explained during the final hearing that she did not provide the School Board with a copy of her prescription because no one ever asked her to do so. Mr. Carson was aware of Ms. Seaton asserting that poppy seeds could have caused her positive test result.13 Ms. Seaton testified that she did not tell the School Board about her hydrocodone prescription because she was on desk duty following the accident and did not anticipate ever driving a school bus again: ALJ: I guess what I’m struggling with is given your accidents and the pain you were experiencing, it seems perfectly reasonable that you would be on some sort of opioid. I guess on the other hand, you know, if you tested positive, I guess it seems like a reasonable person would show the School Board a prescription for any kind of pain med, regardless [of] whether they tested positive, or not. I guess that’s what I’m struggling a little bit with. * * * So is it your testimony that – according to my notes, there were three – there have been three conversations or discussions between you and the School Board. The first one with Mr. Carson where he told you about the positive test. And let me just clarify. During that first conversation, did you mention the hydrocodone? A: Yes, I did. With Mr. Carson in the first conversation. ALJ: All right. So you disagree with his testimony that during the first conversation you said simply, I have no idea how that tested positive? 13 Mr. Carson testified that “[m]y brief understanding of it is that you would have to consume a great deal of poppy seeds for it to alter any type of drug test. I don’t know what that limit is. But that’s not something that we’re able to delineate in a drug test, whether it’s truly a substance or if it’s poppy seeds.” Mr. Carson disclosed that the basis for that aforementioned statement came from “the internet.” Because the School Board elicited no testimony indicating that Mr. Carson has any independent knowledge or expertise with drug testing or a related field, the undersigned does not credit his assertion that someone would have to “consume a great deal of poppy seeds” in order to affect a drug test. * * * A: Yes. And I did ask him because I wanted to remember that, I said to him, as much pain as I was in, if I had to do it again, I would. But the difference is I would tell my supervisor. Because I really didn’t – in the role that I was in, which was a desk job, I was not in any safety risk for anyone, I would never get on a bus, nor was I – I knew I wasn’t getting on a bus any time soon with the injury that I had. But I would never, ever put anybody at risk. I wouldn’t even get on a bus because my CDL, I figured my CDL was going to be taken. That’s another thing - - ALJ: Ms. Seaton, did you say, -- I may be mistaken. I thought I heard you testify that you’ve had a hydrocodone prescription for many years. Was that accurate or did I mishear? A: On different occasions for surgeries, correct. * * * ALJ: On the day that you injured your shoulder on the school bus and hurt your rotator cuff, the injury that we were talking about, at that time did you have any hydrocodone prescription? A: Yes. * * * ALJ: Were you taking hydrocodone at that time? A: No, sir.[14] During the final hearing, Ms. Seaton moved Respondent’s Exhibit 7 into evidence, and a portion thereof was a picture of a prescription bottle for 14 Ms. Seaton then testified that her trip to Baltimore resulted in her taking hydrocodone to alleviate pain in her left shoulder. 60 hydrocodone pills with Ms. Seaton’s name on the bottle. Ms. Seaton offered the following testimony in support of that Exhibit: ALJ: So, Ms. Seaton, this picture of the prescription bottle, can you give me some background on this? When was this prescribed to you? When do you fill it? Who prescribed it to you, and why? * * * A: The original prescription was prescribed to me in August, and it was for my double knee replacement by Dr. Raymond Weiand at the Orthopedic Institute. Petitioner’s Counsel: August, you said, prior to the injury, August of 2020? A: No, ‘19. * * * ALJ: I think you may have discussed this, but were you taking hydrocodone consistently or without a break from that date to the day of your accident and beyond? A: No, sir. I only took hydrocodone when I had excruciating pain. This is not something that I take on a regular, like – like if I have pain then I was taking it. That’s why I put Exhibit 1, it will state - - it wasn’t in my system. ALJ: But is your testimony that at some point after your accident which resulted in your injured shoulder, is it your testimony that you are taking hydrocodone to relieve the pain resulting from that accident? A: That is correct. The night when I returned from the trip, I was in so much – I kept waking up out of my sleep because the pain was so bad that I took the pill for it to go to sleep, to go back to sleep, because I did not want to miss work. ALJ: Okay. Mr. Levitt, do you have any cross on that issue regarding this exhibit? Petitioner’s Counsel: Let me think --- So you have August 2019 for a knee operation, and when was the last time you took it for the knee operation? Like back in 2019, or as the judge asked, were you continuing to take it? A: I took it around my birthday, July – July 28th of the 2020, I took some then. Petitioner’s Counsel: For what, for your knee? A: Yes. Petitioner’s Counsel: But this was never prescribed for your shoulder. Correct? A: No, sir. Ms. Seaton had left shoulder surgery on February 26, 2021. The post- operative diagnosis notes she had a rotator cuff tear and superior labral tearing. Ultimate Findings Petitioner’s Exhibit 1 is the only record evidence supporting the School Board’s allegation that Ms. Seaton “provided a urine sample and it was reported as a positive test for opioids.” Petitioner’s Exhibit 1 is a report from a laboratory indicating that the urine sample Ms. Seaton provided on October 27, 2020, tested positive for oxycodone and oxymorphone. Petitioner’s Exhibit 1 is hearsay in that it is an out-of-court statement being offered to prove the truth of the matter asserted therein, i.e., that Ms. Seaton’s urine sample from October 27, 2020, tested positive for opioids. The School Board did not present a records custodian from the testing laboratory or otherwise attempt to have Petitioner’s Exhibit 1 accepted into evidence under the business records exception to the hearsay rule. There is no record evidence supplementing or corroborating that Ms. Seaton’s urine sample was positive for opioids, the allegation specifically pled in the Administrative Complaint. Thus, there is no evidentiary support for the School Board’s allegation that Ms. Seaton committed “misconduct in office” or that there is “just cause for discipline.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be DISMISSED. DONE AND ENTERED this 28th day of May, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2021. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Dr. Diane Gullett, Superintendent Marion County Public Schools 512 Southeast 3rd Street Ocala, Florida 34471 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Desiree M. Seaton 5 Hemlock Loop Lane Ocala, Florida 34472
The Issue Whether Respondent’s employment as a school psychologist should be terminated on the grounds set forth in the Notice of Specific Charges.
Findings Of Fact At all times material hereto, Respondent was a school psychologist employed by Petitioner pursuant to a continuing contract. Respondent was first employed by Petitioner in 1968 as a guidance counselor. In 1974 she began her employment as a school psychologist. At all times relevant to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) and subject to the provisions of the collective bargaining agreement between Petitioner and UTD. At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 1001.32, Florida Statutes (2005).2 For administrative purposes, Petitioner’s school district is divided into regions. R3 is the region to which Respondent has been assigned at the times relevant to this proceeding. In R3, each school, whether an elementary, middle, or high school, has a CST. Each such team includes an administrator, a school counselor, one or more special education teachers, a school psychologist, and other specialists as appropriate. Typically, a child is referred to the CST because he or she is experiencing difficulties, such as academic or behavioral problems. The child’s case is discussed at a CST meeting and the CST decides whether to refer the child to a school psychologist for a psychoeducational evaluation. If that decision is in the affirmative, certain background information is put together and that information is sent to the R3 office to be opened as a case file. The assigned school psychologist receives the case file, performs a psychological evaluation on the child, writes a report detailing his or her findings, and returns the case file to a staffing specialist. The staffing specialist schedules another CST meeting to determine the next appropriate step in the process, which may result in the preparation of an Individualized Education Plan (IEP) for the student. Petitioner has adopted a manual titled “Psychological Services Procedures Manual” (the Manual) that defines the psychological services provided by Petitioner and delineates the procedures school psychologists are to follow in testing, evaluating, referring and placing students who qualify for the ESE program. The Manual also provides an evaluation report format that school psychologists are to follow. School psychologists are required to keep certain records and file certain monthly reports. They are required to report the number of evaluations and other services performed during the month on a form titled “Psychological Services Monthly Report.” They are also required to keep a case log by school for each student with an open case file at that school. The case log contains the names of children whose cases are opened at each school and the status of the case. The case log is updated monthly to reflect the status of each case. A school psychologist is an essential member of the CST and is a critical player in the development of IEPs for students who qualify for ESE. Time constraints are placed on the CST and on each school psychologist. Petitioner’s policy is that the period from the initial referral of a child to a CST to the development of the child’s IEP (for those children who qualify for ESE services) should not exceed 90 days. Since September 2004, Florida Administrative Code Rule 6A-6.0331 has required that students who are suspected of having a disability must be evaluated within a period of time, not to exceed 60 school days in which the student is in attendance. School psychologists are instructed to make every effort to complete the psychological evaluation report and to submit the report for typing within five days after the evaluation is completed. Typically, each school psychologist in R3 is responsible for two or three assigned schools. In an average week, school psychologists spend most of their time at their assigned schools, where they are required to keep the same work hours as the instructional personnel assigned to that school. At the school, the school psychologist meets with other school personnel (whether informally or as part of a CST) and evaluates students. Each school psychologist has at least one day a week at the R3 office, where he or she writes reports and consults with other R3 personnel as needed. During the R3 office day, new cases are assigned and special assignments are made. EVALUATIONS THROUGH SCHOOL YEAR 2001-02 From the school year 1990-91 through the school year 2000-01, Martha Boden was Respondent’s supervisor. For each of those school years, Ms. Boden evaluated Respondent’s performance. During those years, Ms. Boden received a myriad of complaints about Respondent’s job performance. Several school principals testified that they would not want Respondent to serve as their school psychologist based on unfavorable experiences with Respondent during the school years Ms. Boden served as her supervisor. Despite the complaints she received about Respondent, Ms. Boden evaluated Respondent’s performance as being acceptable for each year Ms. Boden supervised Respondent. Each annual evaluation of Respondent by Ms. Boden was a summative evaluation in the sense that Ms. Boden considered all information, both good and bad, that she had about Respondent’s job performance. Ms. Boden’s conclusion that Respondent was an acceptable employee for each of the years that she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the school years 1990-91 through 2000-01 does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance was problematic and provides a context for subsequent evaluations. Ms. Boden exerted considerable effort in attempts to help Respondent improve her job performance. Respondent did not take advantage of the help Ms. Boden offered. Respondent knew from Ms. Boden that she was required to produce timely, accurate psychological evaluations and monthly reports. Myra Silverstein supervised and evaluated Respondent for the 2001-02 school year. That evaluation was also a summative evaluation and also concluded that Respondent was an acceptable employee. Ms. Silverstein’s conclusion that Respondent was an acceptable employee for the year she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the 2001-02 school year does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance continued to be problematic and provides additional context for subsequent evaluations. DELAYED EVALUATIONS AND REPORTS During the school years subsequent to the 2001-02 school year Respondent failed, on multiple occasions, to timely evaluate and complete reports for children who were being evaluated for ESE services. At Olinda Elementary School, a student was tested by Respondent on February 23, 2004 and Respondent did not close the case until January 12, 2005. Partly because of that delay, the principal of Olinda Elementary School requested that a school psychologist other than Respondent be assigned to her school. During the 2004-05 school year, Respondent was assigned to evaluate two students at Miami Springs Elementary School. More than a year passed between the time Respondent received her assignment and the time she did the testing. During the 2003-04 school year, Respondent was assigned a case in January 2004. Respondent did not do the testing on this student until July 2004 and she did not complete her report until January 2005. At Orchard Villa Elementary, Respondent was assigned a case during the summer of 2004. As of June 2005, the case had not been closed. There was no justification for the lapses in time between the dates of assignment and the dates of completion of Respondent’s reports.3 The CSTs could not determine appropriate strategies for the students Respondent was assigned to evaluate without a psychological report. Respondent’s lapses between her assignments and the completion of her reports delayed the staffing of those students and delayed the development of and the provision of appropriate services for those students. Mary Paz, the Instructional Supervisor at the R3 office became Respondent’s supervisor in March 2004. After she assumed that responsibility, Ms. Paz received multiple complaints from principals and parents as to Respondent’s repeated failures to timely complete evaluations and/or reports. In May 2004, Ms. Paz received a memorandum from an assistant principal at Banyan Elementary School regarding an incomplete evaluation report done by Respondent. Material in the case file established that the Bender Gestalt evaluation was administered, but the Respondent’s report made no mention of that diagnostic tool. Another school psychologist was called in to complete Respondent’s report. Pamela Sanders-White was the principal of Orchard Villa Elementary School during the 2004-05 school year. Respondent was the school psychologist for that school during that school year. Ms. Sanders-White received complaints from teachers, parents, and students pertaining to Respondent’s failure to timely complete her work. Ms. Sanders-White requested that a school psychologist other than Respondent be assigned to her school for the school year 2005-06. CONFRONTATIONS AT IEP MEETINGS Petitioner presented evidence that Respondent argued with other professionals during several CST meetings and that she walked out of one such meeting. Petitioner also presented evidence that a few of Respondent's professional opinions were rejected by other professionals. That evidence, while accepted as credible, did not prove or tend to prove that Respondent was incompetent or that she was insubordinate, which are the charges alleged in the Notice of Specific Charges. Consequently, the proposed findings in paragraphs 22, 23, 25, and 26 of Petitioner's Proposed Recommended Order have not been considered by the undersigned in reaching the ultimate findings of this Recommended Order. INACCURATE REPORTS Gail Pacheco has been the Chairperson for Psychological Services in R3 since the 1989-90 school year. She is not a supervisor of the R3 school psychologists, but she works with their supervisors as the supervisor’s designee in resolving problems. At Joseph Jackson’s request after he became Respondent’s supervisor in 2003, Ms. Pacheco reviewed 30 reports prepared by Respondent and monitored all 28 school psychologists in R3 for compliance with time frames for testing, preparation of psychological reports, and case closure. Each of the 30 reports prepared by Respondent and reviewed by Ms. Pacheco had at least one error.4 On May 28, 2003, Mr. Jackson requested all school psychologists, including Respondent, to select a sample evaluation report for review by the respective region chairperson. Respondent did not timely comply with Mr. Jackson’s request. When she did comply, the evaluation report she submitted contained numerous errors, including Respondent’s erroneous conclusion as to the student’s qualification for services.5 In December 2003 Dr. Sue Lee Buslinger-Clifford became the Instructional Supervisor of Psychological Services at the District office. Her job duties included the supervision of all school psychologists, which included the authority to give directives to all school psychologists, including Respondent. Dr. Buslinger-Clifford’s testimony, considered with the other evidence presented by the parties, established that Respondent failed to follow District procedures in the use of two personality or emotional assessments instruments in evaluating students. Respondent’s reports were not individualized for each student, with most of her reports using similar, standardized language. In the academic assessment of students, the reports should identify the needs of the child, the skill level of the child, and specific recommendations. Respondent’s reports often contained the same recommendations written in general, non- specific language that did not recommend the implementation of specific services for the student. Some reports were missing information and others contained limited information that was not helpful for the teacher and the members of CSTs. In addition to typographical and grammatical errors, Respondent’s reports contained test use and procedural errors. On one evaluation report Respondent misinterpreted evaluation data, which caused her to reach an erroneous conclusion as to a student’s eligibility for services.6 On some occasions, Respondent’s narrative report was inconsistent with the report of the evaluation data. Respondent had difficulty managing her time. Her student evaluations generally took longer than they should have. Dr. Buslinger-Clifford reviewed certain reports submitted by Respondent and advised Respondent as to corrections that needed to be made. Respondent did not comply with that advice. Mr. Jackson, as Respondent’s supervisor, reviewed her monthly reports for August through October, 2003, and determined that Respondent’s productivity was greatly below that of the average school psychologist, despite having a similar caseload. Mr. Jackson further determined that Respondent had a backlog that was growing each month; that some of the reports were incomplete; and that some of the reports were inconsistent or misleading. On October 31, 2003, Mr. Jackson notified Respondent in a memorandum of serious concerns that he had related to her poor job performance, and he directed Respondent to provide him with answers to certain questions pertaining to her performance7 no later than November 10, 2003, at 9:00 a.m. Mr. Jackson requested information as to six specific issues. First, he wanted a written response as to an alleged incident at Westview Middle School during which Respondent got into an argument with a staffing specialist in front of a student’s parents during a CST meeting. Second, he wanted to know why three identified cases had not been completed in a timely manner and ordered her to attach the psychological reports for those students with her response. Third, he wanted her to explain her lack of productivity and provide Medicaid forms for nine students who she had evaluated. Fourth, he wanted Respondent to provide Ms. Pacheco with a copy of a recent psychological report so Ms. Pacheco could review it. Fifth, he wanted an explanation as to why she had not provided a psychological report for review when such a report had been requested of her on three occasions. Sixth, he wanted Respondent to explain why she continued to use an instrument (WIAT) that she allegedly could not score. On November 7, 2003, Respondent responded to Mr. Jackson’s memorandum and requested a 60-day extension of the deadline for her response to his questions. Respondent’s response included the following: You have demanded a written response in five (5) days to a long list of you [sic] allegations, to which you offered not [sic] proof, only conjecture, opinions, and a partially extracted table; that was delivered by registered mail on Saturday afternoon at my residence. I feel sure that this memorandum was written and typed on the MDCPS [Miami-Dade County Public School] time clock. No consideration was given for my time clock, or the release of my daily time schedule to complete such a task. The sixty-day extension period is therefore needed to consult my archives in order to give you a detailed and accurate response. I need ample time to secure financial expense; legal advisement and representation; and a typist (all of which I will be seeking reimbursement), before undertaking such a task. Mr. Jackson gave Respondent until November 14, 2003, to respond to his memorandum. That was a reasonable deadline. Respondent did not meet the deadline established by Mr. Jackson. On December 17, 2003, Respondent responded in writing to the questions Mr. Jackson had asked in his memorandum.8 Mr. Jackson was not satisfied with Respondent’s response and continued to have concerns about her job performance. Mr. Jackson’s dissatisfaction with Respondent’s response was reasonable. His continued concerns about her job performance were also reasonable. JANUARY 2004 CONFERENCE FOR THE RECORD On January 15, 2004, Mr. Jackson had a Conference for the Record (CFR) with Respondent. A CFR is a meeting of record, held by a supervisor with an employee who is or may be under investigation for possible disciplinary action, to apprise the employee of the review of the record and the possible disciplinary action, and to give the employee an opportunity to respond or append the record. At the CFR conducted January 15, 2004, Mr. Jackson discussed his continued concerns with Respondent and considered her responses (both written and verbal). Mr. Jackson prepared a memorandum dated January 22, 2004, which summarized the events that transpired at the CFR held January 15, 2004. In the memorandum, Mr. Jackson gave Respondent the following directives: Your are to be professional and courteous to all staff at all times. You are also to represent the school system in a positive light at all times. This directive begins immediately and continues indefinitely. You are to complete evaluations of each child within a week of the beginning of testing, unless approved by the Executive Director or the Instructional Supervisor of the Division of Psychological Services or the ACCESS Center 3 Chairperson. Additional testing must be approved by the Chairperson which may be suggested by you and/or the Chairperson. The additional testing is to be completed within one week of notification of the determination for more testing. A completed report of each evaluation must be submitted for typing to the ACCESS Center within two weeks after the evaluation is completed. (Day that the last assessment instrument has been administered.) All evaluations are to be correctly reflected on your monthly report (log). This directive is ongoing and will be reviewed by the 10th of each month, for the next three months. Your monthly reports/logs are to reflect increased productivity beginning with the February report, averaging a minimum of 10 psychoeducational evaluations per month, unless approved by the Executive Director. Your productivity will be reviewed monthly. If you do not have the assigned cases, you are to request cases from your ACCESS Center chairperson. You are to complete a minimum of 10 psychological evaluations during the next four weeks. The Psychological Services Monthly Report, with a copy of the completed typed report for each of the 10 evaluations attached, is to be submitted to the office of the Executive Director of the Division of Psychological Services on February 27, 2004. All psychological evaluation reports are to be completed and delivered to Ms. Gail Pacheco for review within two weeks after the day the last assessment instrument has been administered. All corrections are to be completed within two school days after they have been received from Ms. Pacheco. No case should be given to the staffing specialist for staffing until the case has been approved by Ms. Pacheco. This directive is to be implemented immediately and will be reviewed randomly by the Executive Director of the Division of Psychological Services during the next six weeks. Reviewing of all reports by the ACCESS Center Chairperson and timelines for completion will be adjusted as needed. You were referred to the Employee Assistance Program through a Supervisory Referral for performance of professional duties related to assignment failures. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to your professional status with Miami-Dade Public Schools. In the memorandum dated January 22, 2004, Mr. Jackson advised Respondent that he would review the information in the CFR with appropriate school officials and that he would take the following additional action: All directives will be monitored as stated in the conference and in this memorandum. If you successfully complete the directives, the requirements of the directives will be adjusted to reflect the requirements of all ACCESS Center based school psychologists. If you do not successfully complete the directives, additional directives will be added to assist you in becoming the desired professional you are capable of being. MARCH 2004 CFR Mr. Jackson conducted a second CFR with Respondent on March 19, 2004. Petitioner established that there continued to be concerns with all six of the directives given to Respondent following the January 2004 CFR. As to directive 1, Mr. Jackson continued to receive complaints as to Respondent’s interaction with school-based staff. Petitioner established that Respondent failed to comply with directives 2, 3, 4, and 5. Respondent did not timely complete the evaluation of each child to whom she was assigned nor did she seek or obtain approval from the R3 chairperson for additional testing. Respondent did not submit completed psychological evaluation reports to the R3 office within two weeks of completing all of the evaluations. Respondent’s case log report reflects that 10 cases were completed but only eight evaluation reports were submitted. None of the evaluation reports on Respondent’s monthly case log report were submitted for review as required. Psychoeducational evaluation reports were not timely submitted to Ms. Pacheco for review. Numerous errors were reflected on the psychoeducational evaluation reports that were submitted. Ms. Pacheco returned the reports to Respondent with instructions to correct the reports. Respondent did not return corrected reports to Ms. Pacheco. Respondent declined to participate in the Employee Assistance Program, which was offered in Directive 6.9 In addition to re-issuing the directives that had been given at the January CFR, Mr. Jackson issued directives requiring Respondent to report to work on time, to report her presence at the school site to a designated contact person, and to complete a Professional Improvement Plan (PIP) that was based on specified indicators pursuant to Petitioner’s Professional Assessment and Comprehensive Evaluation System (PACES).1 In addition, Mr. Jackson changed Respondent’s schedule to reduce the number of schools she would have to travel to in order to conduct the number of evaluations Mr. Jackson had directed her to evaluate each month. This change was made in an effort to assist Respondent meet her productivity directives. MAY 2004 CFR Mr. Jackson conducted a CFR with Respondent on May 7, 2004. Petitioner established that Respondent continued to fail to meet the directives that Mr. Jackson had imposed as to productivity. Respondent’s evaluation reports and monthly case reports continued to contain procedural and substantive errors. Respondent failed to submit copies of her evaluation reports to Mr. Jackson’s office as directed. Mr. Jackson issued revised directives to Respondent. Those revised directives, which were similar to the previously issued directives, are set forth in Petitioner’s Exhibit 143 and are incorporated herein by reference. Again, Respondent was directed to complete a PIP on specified indicators on the PACES evaluation system. The PIP Respondent was required to complete was admitted into evidence as Petitioner’s Exhibit 144. ANNUAL EVALUATION FOR 2003-04 SCHOOL YEAR On May 7, 2004, Mr. Jackson completed his annual evaluation of Respondent’s job performance for the 2003-04 school year.11 Part A of the evaluation form contains six domains. Mr. Jackson rated Respondent as meeting standards for each of the six domains in Part A. Those domains are “Preparation and Planning”, “Management”, “Human Relationship”, “Professional Practice”, and “Contribution to School Improvement”. Part B contains the seventh domain of “Professional Responsibilities”. For that seventh domain, Mr. Jackson rated Respondent as not meeting standards. Mr. Jackson’s overall rating of Respondent was that she did not meet standards. On the PACES evaluation form, the evaluator can make one of the following three recommendations: “Recommended for Employment”, “Not Recommended for Employment”, or “Performance Probation Carry-over.” Mr. Jackson recommended the third option, which meant that Respondent’s performance probation was to be carried over to the next school year. Respondent’s May, June, July, and August, 2004, case reports established that she continued to fail to meet productivity directives. She typically did not timely submit reports for typing and she did not complete the assigned number of evaluations. She developed a backlog for her assigned cases. SEPTEMBER 2004 CFR On September 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. Dr. Buslinger-Clifford attended that meeting. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 165 and are incorporated by reference. Included in the directives was another PIP (Petitioner’s Exhibit 167). Mr. Jackson ordered Respondent to return 17 cases that had been assigned to her to Dr. Buslinger-Clifford for reassignment. On September 24, 2004, Respondent complied with that order and those cases were reassigned. Also as directed, Respondent reviewed with Dr. Buslinger-Clifford Respondent’s backlog of 26 other cases. Dr. Buslinger-Clifford observed that Respondent’s case files were disorganized, some contained mold, and some contained pieces of dead roaches. Respondent submitted 26 reports for typing in mid October 2004. Her October 2004 case report fails to reflect that those cases were submitted for typing. NOVEMBER 2004 CFR On November 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. She had not completed her PIP; the psychological evaluation reports she submitted contained typographical, grammatical, and procedural errors; and she did not submit contact information she had been instructed to submit. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 188 and are incorporated by reference. On November 16, 2004, Mr. Jackson reprimanded Respondent in writing. That reprimand is set forth in Petitioner’s Exhibit 189, which is incorporated herein by reference. On November 17, 2004, Respondent provided Mr. Jackson with a report listing the cases that had been assigned to her. That list was not accurate because Respondent failed to list five cases that had been assigned to her. Respondent continued to fail to evaluate cases that had been assigned to her on a timely basis. Respondent’s case status reports for January and February 2005, did not follow district polices. From those reports, Mr. Jackson could not determine the status of cases that had been assigned to Respondent. FEBRUARY 2005 CFR For the school year 2004-05, Robert Kalinsky was the personnel director for R3 and DanySu Pritchett was the Administrative Director of Petitioner’s Office of Professional Standards (OPS). On February 15, 2005, Ms. Pritchett conducted a CFR with Respondent at the OPS offices. Respondent, Mr. Kalinsky, Mr. Jackson, Dr. Bulsinger-Clifford, and two union representatives also attended the CFR. Petitioner’s Exhibit 206, a summary of that CFR, is hereby incorporated by reference. The summary of that CFR reflects the following statement by Ms. Pritchett: The record reflects that you have been repeatedly insubordinate and grossly insubordinate to directives issued to you by Mr. Jackson. Additionally, the record reflects your failure to complete and submit psychological evaluation reports [for] review by the required timelines and your failure to submit monthly reports/logs. . . . Mr. Kalinsy received numerous complaints from school- based personnel about Respondent’s performance. Mr. Kalinsky had difficulty locating Respondent on one occasion because Respondent was not at her scheduled location and had not informed her contact person at the school where she was going. He had difficulty locating her on another occasion because she did not timely report to work at the school site she was scheduled to serve. On March 2, 2005, Mr. Kalinsky wrote Respondent a memorandum advising her that she was in violation of directives that had been issued to her at prior CFRs. That memorandum, Petitioner’s Exhibit 214, is hereby incorporated by reference. On March 5, 2005, Mr. Kalinsky revised Respondent’s schedule so that Tuesdays, Wednesdays, and Thursdays of each week were reserved for completion of prior assignments. Mr. Kalinsky directed Respondent to submit five completed cases to R3 each Friday. Mr. Kalinsky had the authority to issue that directive to Respondent. The directive was reasonable. On Friday, March 18, 2005, Respondent failed to comply with that directive. Respondent also failed to comply with Mr. Kalinsky’s directive on Friday, March 25, 2005. Mr. Kalinsky issued another memorandum to Respondent on March 31, 2005, for failing to comply with his directive. That memorandum, Petitioner’s Exhibit 222, is incorporated by reference. On May 27, 2005, in the PACES annual evaluation for the School Year 2004-05, Mr. Kalinsky rated Respondent as not meeting standards. Respondent had consistently failed to follow directives that had been issued to her as to timelines and productivity, had failed to adhere to Petitioner’s policies and procedures, and had turned in reports that contained inaccuracies, errors, and misleading information. Mr. Kalinsky did not recommend Respondent for further employment because he reasonably concluded that Respondent had not been fulfilling her professional responsibilities. Respondent’s supervisors recommended the termination of her employment as a school psychologist. Petitioner followed all applicable procedures in processing that recommendation, which resulted in the School Board action at its regular meeting on May 18, 2005, that underpins this proceeding. Dating from Ms. Boden tenure as Respondent’s supervisor in the 1990s, Petitioner made reasonable efforts to try to help Respondent improve her performance. Respondent consistently rejected those efforts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order adopting the findings of fact and conclusions of law set forth herein. It is also RECOMMENDED that the Final Order terminate Respondent’s employment. DONE AND ENTERED this 25th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 25th day of April, 2006.
The Issue Whether Petitioner has a developmental disability that makes her eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is almost 59 years old. She has lived a very sheltered life, and she has always been considered to be "slow" by her family. Petitioner moved to Florida in the early 1990's, and she currently resides in Merritt Island. Petitioner lived at home with her parents until two and one-half years ago when her mother had a debilitating stroke and was moved into a nursing home. Since then, Petitioner has lived by herself. Petitioner never learned to ride a bike or drive a car. She did not date. Petitioner's work experience, as detailed in the 1974 report prepared by psychologist William McManus (discussed below), was limited to 11 years as a stock clerk in a family business. She has not worked since 1973. Petitioner has the social skills of a 12 to 13-year-old child. She reads at the fifth grade level. Petitioner is incapable of managing her own finances. Petitioner's social security check is sent to Ms. Michalsky, who pays Petitioner's rent for her. Petitioner is incapable of managing her own diet. Her meals consist primarily of sweets, microwave foods, and sodas. Ms. Michalsky, Petitioner's second cousin and the only relative who lives near her, has been Petitioner's de facto guardian since Petitioner's mother suffered the stroke. Ms. Michalsky has children of her own, and she is unable to adequately care for Petitioner. It was apparent from Ms. Michalsky testimony at hearing that she is genuinely concerned for Petitioner's safety and well-being. Petitioner attended and graduated from St. Mary of Perpetual Help High School (St. Mary) in June 1962. Out of a class of 99 students, Petitioner was ranked 99th. Petitioner's transcript from St. Mary shows that she received grades at or near the lowest passing grade in all of her classes. This suggests that Petitioner was being "socially promoted." Petitioner's transcript also shows that she scored very poorly on all of the standardized tests that she took. Petitioner took the Otis S-A Test Form A (Otis Test) in January 1958. She was 14 years old at the time. The purpose of the Otis Test is to determine a cognitive IQ. A score of 100 is considered average. The standard deviation for the test is 15. A person whose score is more than two standard deviations below the average, i.e., a score below 70, is considered to be retarded. Petitioner's IQ, as determined by the Otis Test, was 73. The margin of error for the Otis Test is +/- five points. Thus, Petitioner's "actual" IQ was between 68 and 78. Petitioner scored in the third percentile of the Differential Aptitude Test (DAT), meaning that she scored higher than only three percent of the people who took the test. Petitioner took this test in April 1959. She was 15 years old at the time. Her score on the DAT roughly translates into an IQ level of 75. Petitioner was in the first percentile on the SRA National Education Development Test, meaning that she scored higher than only one percent of the people who took the test. Petitioner took this test in the spring of 1960. She was 17 years old at the time. In July 1974, Petitioner was examined by William McManus, a licensed psychologist. Mr. McManus examined Petitioner based upon the Wechsler Adult Intelligence Scale (Wechsler Scale). Petitioner was 31 years old at the time. The Wechsler Scale includes 11 subtests, each of which are separately scored. The scores of the subtests are used to formulate a verbal IQ, a performance IQ, and an overall IQ. The separate scoring of the subtests allows a more detailed analysis of the subject's IQ, which in turn results in a more accurate reflection of the subject's learning abilities. The average score on each subtest is ten. Scores between seven and ten are considered average; scores between five and seven are considered borderline; and scores less than five are considered very low. There is typically no "scatter" in the scores of a person who is retarded. In other words, the person's score on all or almost all of the 11 subtests are in the very low range, i.e., below five. There was considerable "scatter" in the Petitioner's scores on the subtests. She scored in the average range on five of the 11 subtests; she scored in the borderline range on four of the subtests; and she scored in the very low range on only two of the subtests. Petitioner's overall IQ, as determined by the Wechsler Scale, was 75. Her verbal IQ was 79 and her performance IQ was 73. The information originally submitted to the Department with Petitioner's application for developmental services included only medical records. Those records did not include any of the IQ test scores described above. Neither the medical records originally submitted to the Department (which were not introduced at the hearing), nor any of the evidence introduced at the hearing suggest that Petitioner suffers from cerebral palsy, autism, spina bifida, or Prader-Willi syndrome. The denial letter issued by the Department on July 24, 2001, was based only upon the medical records submitted with the application. After receiving the denial letter, Ms. Michalsky spoke with Department employee Pat Rosbury regarding the type of information needed by the Department. Based upon those conversations, Ms. Michalsky provided additional records to the Department, including records showing the IQ test results described above. Ms. Michalsky was unable to obtain any additional records from Petitioner's childhood because such records are over 50 years old. The Department forwarded the supplemental records to Dr. Yerushalmi on October 16, 2001, because the scores showed borderline retardation. Dr. Yerushalmi did not personally evaluate Petitioner, but based upon her review of the IQ test scores described above, she concluded that Petitioner is not retarded and, hence, not eligible for developmental services from the Department. Dr. Yerushalmi "suspects" that Petitioner had a learning disability as a child and that disability, coupled with her sheltered upbringing, led to her current state. The Department did not issue a new denial letter after Dr. Yerushalmi's review of the supplemental records confirmed the Department's original decision that Petitioner is ineligible for developmental services. Petitioner's request for a formal administrative hearing was dated October 17, 2001, and was received by the Department on October 19, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner to be ineligible for developmental services. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 6th day of June, 2002.
The Issue At issue in these proceedings is whether petitioner suffers from "retardation," as that term is defined by Section 393.063(41), Florida Statutes, and therefore qualifies for services under Chapter 393, Florida Statutes, the "Developmental Disabilities Prevention and Community Services Act."
Findings Of Fact Petitioner, Lucky Graham (Lucky), was born September 18, 1973, and was, at the time of hearing, 19 years of age. Lucky has resided his entire life with his grandmother, Susie Griggs, in Miami, Dade County, Florida, and has been effectively abandoned by his mother and father. When not attending the Dorsey Skill Center, a program offered by the Dade County Public School system to develop minimal skills necessary to acquire a vocational skill, Lucky spends most of his free time alone in his room, and does not interact socially or play with other children beyond his immediate family. Notwithstanding, Lucky does interact with members of his immediate family; attend family outings; contribute to minor chores around the house such as hanging laundry, washing dishes and mopping floors; maintain himself and his room in a neat manner; and prepare food and drink for himself, at least to some unspecified extent. Lucky cannot, however, without supervision, shop or make change, but can utilize public transportation to and from Dorsey Skill Center without supervision. Lucky's limited social skills are, likewise, apparent at the Dorsey Skill Center where his interaction with other students is limited. Lucky's functional performance, as opposed to his learning ability, is also apparent from his past performance at school, where it was rated at the first grade level. As such, he is unable to read or write to any significant extent and cannot perform mathematical calculations beyond the most basic addition and substraction; i.e., he cannot add two digit numbers that require carrying and cannot perform substraction that requires borrowing from another number (regrouping). He did, however, complete a vocational training program for auto body repair and was, as of October 8, 1992, and apparently at the time of hearing, enrolled in a auto mechanics program at Dorsey Skill Center. (Tr. p 46, Petitioner's Exhibit 9). The quality of Lucky's performance was not, however, placed of record. Current and past testing administered through the Dade County School System, for functional ability (vocational ability), as opposed to learning ability, evidence that Lucky functions on a level comparable to mildly mentally retarded individuals. In this regard, he was found to be impulsive, disorganized and lacking concentration, and to be most appropriately placed in a sheltered workshop environment with direct supervision and below competitive employment capacity. During the course of his life, Lucky has been administered a number of intelligence assessment tests. In July 1977, at age 3 years 10 months, he was administered the Stanford Binet by the University of Miami Child Development Center and achieved an IQ score of 55. Lucky was described as "hesitant in coming into the testing room but . . . fairly cooperative throughout." Thereafter, he was administered the following intellectual assessment instruments by the Dade County Public Schools prior to his eighteenth birthday: in March 1980, at age 6 years 6 months, he was administered the Wechsler Intelligence Scale for Children--Revised (WISC-R) and received a verbal score of 65, a performance score of 55, and a full scale IQ score of 56; and, in October 1984, at age 11 years 1 month, he was administered the WISC-R and received a verbal score of 58, a performance score of 58, and a full scale IQ score of 54. During these testing sessions, Lucky was observed to have been minimally cooperative, with low frustration level, and highly distractible. If reliable, such tests would reflect a performance which was two or more standard deviations from the mean, and within the mild range of mental retardation. While not administered contemporaneously with the administration of intellectual assessment instruments, a Vineland Adaptive Behavior Scales (Vineland) was administered to Lucky through the Dade County Public Schools in January 1988, when he was 14 years 4 months. The results of such test reflected an adaptive behavior score of 51, and an age equivalent of 5 years. Such result would indicate a deficit in Lucky's adaptive behavior skills compared with other children his age. On August 8, 1991, pursuant to an order of the Circuit Court, Dade County, Florida, Lucky was evaluated by Walter B. Reid, Ph.D., a clinical psychologist associated with the Metropolitan Dade County Department of Human Resources, Office of Rehabilitative Services, Juvenile Court Mental Health Clinic. Dr. Reid administered the Wechsler Adult Intelligence Scale (WAIS) to Lucky, whose cooperation during such testing was observed to be good, and he achieved a verbal score of 68, a performance score of 70, and a full scale IQ of Dr. Reid concluded that Lucky suffered mild mental retardation and opined: . . . his [Lucky's] abilities should be thoroughly assessed by the Division of Vocational Rehabilitation as it is my opinion . . . this young man can function in a sheltered workshop and live in a group adult facility . . . Plans should be under- taken immediately to get this youth into appropriate training as soon as he gets out of high school in order for him to learn skills that will make it possible for him to work and to learn skills in the area of socialization. This is a pleasant young man, who, in my opinion, has the capability of working and living semi-independently. Thereafter, on August 26, 1991, apparently at the request of the Circuit Court, Juvenile Division, Lucky was assessed by the Department pursuant to the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Services, to determine whether he was eligible for services as a consequence of a disorder or syndrome which was attributable to retardation. The Wechsler Adult Intelligence Scale-Revised (WAIS-R) was administered to Lucky, who was described as cooperative and motivated during the session, and he achieved a verbal score of 71, a performance score of 78, and a full scale IQ of 73. This placed Lucky within the borderline range of intellectual functioning, but not two or more standard deviations from the mean score of the WAIS-R. A subtest analysis revealed strengths in "the putting together" of concrete forms and psychomotor speed. Difficulties were noticed in verbal conceptualization and language abilities. In addition to the WAIS-R, Lucky was also administered the Vineland Adaptive Behavior Scales. He obtained a communication domain standard score of 30, a daily living skills domain standard score of 90, and a socialization domain score of 63. His adaptive Behavior Composite Score was 56. This score placed Lucky within the Moderate range of adaptive functioning. Based on the foregoing testing, the Department, following review by and the recommendation of its Diagnosis and Evaluation Team, advised the court that Lucky was not eligible for services of the Developmental Services Program Office under the category of mental retardation. The basic reason for such denial was Lucky's failure to test two or more standard deviations from the mean score of the WAIS-R which was administered on August 26, 1991, as well as the failure of the Vineland to reliable reflect a significant deficit in adaptive behavior. Also considered was the questionable reliability of prior testing.1/ Following the Department's denial, a timely request for formal hearing pursuant to Section 120.57(1), Florida Statutes, was filed on behalf of Lucky to review, de novo, the Department's decision. Here, resolution of the issue as to whether Lucky has been shown to suffer from "retardation" as that term is defined by law, discussed infra, resolves itself to a determination of the reliability of the various tests that have been administered to Lucky, as well as the proper interpretation to be accorded those tests. In such endeavor, the testimony of Bill E. Mosman, Ph.D., Psychology, which was lucid, cogent, and credible, has been accorded deference. In the opinion of Dr. Mosman, accepted protocol dictates that an IQ score alone, derived from an intelligence assessment instrument, is not a reliable indicator of mental retardation unless it is a valid reliable score. Such opinion likewise prevails with regard to adaptive behavior instruments. Here, Dr. Mosman opines that the IQ scores attributable to Lucky are not a reliable indication of mental retardation because Lucky's performance on most of the various parts of the tests reflects a performance level above that ascribed to those suffering retardation. In the opinion of Dr. Mosman, which is credited, the full scale scores ascribed to Lucky were artificially lowered because of his deficiencies in only a few parts of the tests. These deficiencies are reasonably attributable to a learning disability and, to a lesser extent, certain deficits in socialization, and not mental retardation. Consistent with such conclusion is the lack of cooperation and motivation exhibited by Lucky during earlier testing, and the otherwise inexplicable rise in his full scale IQ score over prior testing. Consequently, the test results do not reliably reflect a disorder attributable to retardation. The same opinion prevails regarding Lucky's performance on the adaptive behavior instruments which, when examined by their constituent parts, demonstrates that Lucky scores lower in the areas consistent with learning disabilities as opposed to retardation. In sum, although Lucky may be functioning at a low intelligence level, he is not mentally retarded. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered which denies petitioner's application for services for the developmentally disabled under the category of mental retardation. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of August 1993. WILLIAM J. KENDRICK 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 10 day of August, 1993.
The Issue Case Number 95-l967: Whether the Respondent should be dismissed from his employment with the Duval County School Board [School Board] for the violations alleged in the Superintendent's Notice of Dismissal dated April 7, 1995. Case Number 95-l987: Whether the Education Practices Commission [EPC] should revoke or suspend the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Commissioner's Administrative Complaint dated February 23, 1995.
Findings Of Fact The Petitioner takes exception to the findings of fact contained in the Recommended Order at paragraphs 12, 19, and 27, wherein the Hearing Officer found that the evidence did not prove that the Respondent had committed the violations charged as referenced in each finding. This conclusion is not supported by competent and substantial evidence as required by section 120.57(1)(a)10., Florida Statutes. The Hearing Officer was convinced that the altitude of forms utilized by the Respondent in selling the non-insurance products (motor clubs) to Hulan Mitchell, Jenna Chester and Michele Humose demonstrated that they had given their informed consent. However, the Hearing Officer overlooked the blatant misrepresentation and false statement contained in the "premium" receipts issued to each of the insured. Although the Hearing Officer is free to determine the credibility of the witness' testimony, the Hearing Officer cannot ignore or reject unrefuted competent and substantial evidence in the record that clearly and convincingly demonstrates that the premium receipts are a misrepresentation of fact or false statement. No witness testimony is necessary to make this finding. The documents speak for themselves and were not otherwise questioned or refuted. The record unequivocally established the following: Hulan Mitchell - The "premium" receipt (Pet. Ex. "1") issued to Mr. Mitchell indicates a total premium of $378. The actual cost of the "insurance" was $328 with a downpayment of $98 required. See Premium Finance Agreement (Pet. Ex. "1") This is absolutely unrefuted on the record. The premium receipt includes $50 for the cost of the motor club, which is not a policy of insurance and accordingly is not "premium". Also the downpayment required, purportedly for insurance, included $50 for the motor club ($98 + $50 = $148). Furthermore, based on clear documentary evidence in the record, Mr. Mitchell was again subject to a misrepresentation of fact (undisputed) wherein on July 9, 1993 he received a letter (Pet. Ex. "1") threatening to cancel his "insurance" policy because he did not pay a $48 balance due on the motor club. Accordingly the record clearly indicates that the Respondent has made a false or misleading statement with reference to the insurance transaction for Mr. Mitchell. The fact that the Hearing Officer held that Mr. Mitchell knew (despite his testimony otherwise) that he had purchased a motor club, does not negate the fact that the Respondent made a false or misleading statement. JENNA CHESTER - The deceptive premium receipt practice was visited upon Ms. Chester on two occasions. First on February 1, 1994 a "premium" receipt (Pet. Ex. "2") was issued in an amount of $670 for "total premium" due and a required downpayment of $261. The actual cost of the "insurance" was $585 with a required downpayment of $176. See Premium Finance Agreement (Pet. Ex. "2") The "premium" receipt and downpayment included a non-insurance fee for a motor club in the amount of $85. On May 23, 1994 Ms. Chester went to the Respondent to repurchase coverage which had been cancelled. At that time, another "premium" receipt was issued to her in the amount of a "total premium" of $719 and a required downpayment of $286 (Pet. Ex. "2") The actual cost of the insurance was $619 and a required downpayment of $186. See Premium Finance Agreement (Pet. Ex. "2") The additional $100 was for the non-insurance motor club which was sold to Ms. Chester. Although the Hearing Officer held that Ms. Chester knew she was purchasing this motor club (despite Ms. Chester's testimony otherwise) this does not negate the fact that the Respondent has made false or misleading statement in this insurance transaction with Ms. Chester. Michelle Humose - The unrefuted documentary evidence indicates that on May 5, 1994, Ms. Humose was issued a "premium" receipt (Pet. Ex. "3") indicating a "total premium" in the amount of $92 and a required downpayment of $348. The actual cost of the "insurance" was $826 with a required downpayment of $248 See Premium Finance Agreement (Pet. Ex. "3") The additional $100 included in the "premium" receipt was for the non-insurance motor club sold to Ms. Humose. Again despite the Hearing Officer's finding contrary to Ms. Humose's direct testimony that she did not know she was purchasing a motor club, the Respondent has clearly and convincingly made a false or misleading statement with respect to this insurance transaction with Ms. Humose. It is implicit in the Findings of Fact by the Hearing Officer that each referenced transaction took place as described herein. The Hearing Officer merely failed to explicitly state in the Recommended Order that the unrefuted documentary evidence establishes a prima facie misrepresentation of fact. Indeed, the exact factual scenario established herein was determined to constitute a misrepresentation in In the Matter of: Kenneth Michael Whitaker, Case Number 93-L-432DDH (Final Order dated July 3, 1995). It was specifically determined "that the Respondent's standard business practice of combining the costs of insurance overages with the costs of the auto club memberships and then calling such costs "total premium" on receipts issued to customers constituted a misrepresentation and was deceptive." Also, it was further determined "that the Respondent's standard business practice of deducting all or part of the ancillary product fee up front resulted in false statements on other documents that the full downpayment for premium or financing of premium had been made, when in actuality it had not." Whitaker Final Order at pp's 9-10. The Department determined that this activity was a violation of section 626.611(9), Florida Statutes. This finding was also affirmed on appeal in Whitaker v. Department of Insurance and Treasurer, Case No. 95-2702, (21 FLW 1353, Slip Opinion dated June 13, 1996). The court upheld this violation when it summarized the practice in the opinion as follows: Appellant took all or part of the ancillary product from the required premium downpayment and gave the consumer a receipt which listed the full downpayment as "Total Premium". The receipt did not reveal that part of the "premium" went to purchase an ancillary product. Whitaker Slip Opinion at pp's 3-4. This type of fraudulent and deceptive practice also constitutes a violation of section 626.9541(1)(b), Florida Statutes, by placing before the public a representation or statement which is untrue, deceptive or misleading. The Hearing Officer has already considered the unrefuted facts on the record and was clearly in error to make a finding otherwise. Accordingly, pursuant to section 120.57(a)(a) 10., Florida Statutes, which reads in part: 5 The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. the Department may modify the findings of fact. In this case there was no competent and substantial evidence to make a finding that the Respondent did not make a false or misleading statement with the premium receipts issued in this cause. A review of the entire record demonstrates unrefuted documentary evidence which supports the modified findings of fact contained herein. Therefore, Petitioner's exceptions to findings of fact 12, 19 and 27 are hereby GRANTED. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW The Petitioner takes exception to conclusions of law at paragraphs 30 and 31, based on the Hearing Officer's rejection of unrefuted facts established on the record, i.e., deceptive and misleading premium receipts. Conclusions of Law 30 and 31 are revised to reflect that the premium receipts issued to insureds constitute fraudulent and deceptive practices as well as placing before the public a representation or statement which is untrue, deceptive, or misleading. Conclusion of Law 30 is modified as follows: In this case, the Respondent was charged with violating sections 2.11 (4), 626.611(5), 626.611(7), 626.611(9), 626.611(13), 626.621(2), 626.621(6), 626.9541(1)(b), 626.9541(1)(e), 626.9541(1)(k)1., and 626.9541(1)(z), Florida Statutes. Boiled down to the essentials the Department alleged that Respondent violated the provisions listed above by unlawfully selling insured motor club memberships without their informed consent, made false and misleading statements regarding the coverage provided and falsely represented and illegally required insured to purchase motor club membership as part of their purchase of automobile insurance and that Respondent engaged in the prohibited practice of "sliding" additional coverages or products into the purchase of the insured without the informed consent of the insured. This revision is necessary because the Hearing Officer failed to include sections 626.9541(1)(b) and 62.9541(1)(e), Florida Statutes, as alleged violations. Conclusion of Law 31 is likewise revised as follows: The Department failed to establish by clear and convincing evidence that Respondent attempted to "slide" coverage or ancillary products involved in this case. Likewise, the evidence did not clearly or convincingly demonstrate that Respondent did not obtain the informed consent of her customers prior to selling them the auto club memberships involved here. However, based on the unrefuted evidence in the record, the Respondent has violated sections 626.611(9) and 626.9541(1)(b), Florida Statutes, by issuing "premium receipts" which falsely and deceptively represented "total premium" which included a fee for a non-insurance product, ie. motor club membership. Accordingly, the Respondent is guilty of three counts of violating sections 626.611(9) and 626.9541(1)(b), Florida Statutes. The Petitioner's exceptions to conclusions of law 30 and 31 are-hereby GRANTED. RULING ON EXCEPTIONS TO RECOMMENDATION The Petitioner takes exception to the recommendation that the Administrative Complaint be dismissed. The Penalty Guidelines contained in Chapter 4-231, Florida Administrative Code, should be applied in this case. There are three documented violations (one for each count) of engaging in fraudulent and dishonest practices as prohibited in section 626.611 (9), Florida Statutes, and placing before the public a representation 6r statement which is untrue, deceptive or misleading in violation of section 626.9541(1)(b), Florida Statutes. Under the penalty guidelines, a violation of section 626.611(9), Florida Statutes, requires a suspension of 9 months per count. Under the penalty guidelines, a violation of section 626.9541(1)(b), Florida Statutes, requires a suspension of 6 months per count. Based on Rule 4-231.040, Florida Administrative Code, the highest penalty per count should be assessed, therefore the appropriate penalty is three counts at 9 months for a total suspension period of 27 months. Since the total required suspension exceeds 2 years, the appropriate sanction is the revocation of the Respondent's licenses in accordance with section 626.641(1), Florida Statutes. The violation of section 626.9541(1)(b), Florida Statutes, permits the assessment of an additional fine on top of any other administrative sanction, pursuant to section 626.9521, Florida Statutes. This section permits fines for wilful violations of up to $10,000 per violation not to exceed $100,000. The Petitioner recommends that a fine of $3,000 be assessed against the Respondent. However, insufficient grounds have been demonstrated to justify the assessment of a $3,000 administrative fine. Therefore, Petitioner's exceptions to the recommendation are hereby GRANTED, except for the Petitioner's argument for an additional sanction in the form of a $3,000 administrative fine which is hereby DENIED. PENALTY Rule 4-231.160, Florida Administrative Code, prescribes the aggravating and mitigating factors which the Department shall consider and, if warranted, apply to the total penalty in reaching the final penalty. Aggravating factors in this matter, as delineated in Rule 4-231.160, Florida Administrative Code, are the willfulness of the Respondent's conduct and the existence of secondary violations established in Counts I-III of the Administrative Complaint. Only minimal mitigating factors exist which are outweighed by the aggravating factors. The existence of these aggravating factors would increase the Respondent ` s total penalty, thereby resulting in a higher final penalty. Increasing the Respondent's total penalty would be pointless, however, for section 626.641(1), Florida Statutes, limits a licensee's period of suspension to a maximum of 2 years. The Respondent's 27-month total penalty already exceeds the two-year statutory limit. Consequently, the Department has determined that a revocation of the Respondent's insurance agent license is warranted and appropriate in this matter, and is necessary to adequately protect the insurance-buying pubic. IT IS THEREBY ORDERED: All licenses and eligibility for licensure held by TARA JEANNE SMITH, are hereby REVOKED, pursuant to the provisions of sections 626.611, 626.621, 626.641(2) and 626.651(1), Florida Statutes, effective the date of this Final Order. As of the date of this Final Order, the Respondent shall not engage in or attempt or profess to engage in any transaction or business for which a license or permit is required under the Florida Insurance Code, or directly or indirectly own, control or be employed in any manner by an insurance agent or agency. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida 32399-0333, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 4th day of September, 1996, in Tallahassee, Florida. BILL NELSON Treasurer and Insurance Commissioner COPIES FURNISHED: Tara Jeanne Smith 2588 Panther Creek Road, Apt. A Tallahassee, Florida 32308-5628 Charles J. Grimsley, Esquire Charles J. Grimsley and Associates, P.A. 1880 Brickell Avenue Miami, Florida 33129 Diane Cleavinger, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Stephen C. Fredrickson, Esquire Division of Legal Services 200 E. Gaines Street Tallahassee, Florida 32399-0333
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, as to DOAH Case Number 95-1987, the Respondent be found guilty of violating Sections 231.28(1)(i), Florida Statutes, by violating Rules 6B-1.006(4)(b) and (5)(a), (g), (h), and (i), Florida Administrative Code. It is further recommended that: Respondent's teaching certificate be revoked for a period of one year. Respondent shall pay the EPC a fine in the amount of $2,000.00. Prior to being recertified in the State as an educator, Respondent shall successfully complete one three-hour college level course in the area of ethics. Should the Respondent be recertified as an educator in the State of Florida after his period of revocation, Respondent shall be placed on probation for a period of three years, under such terms and conditions as the EPC may prescribe. During the period of probation, Respondent's scope of practice shall be restricted so that he shall have no administrative authority over any employee. Respondent receive a letter of reprimand. IT IS FURTHER RECOMMENDED that, as to DOAH Case Number 95-1967, the Respondent be found guilty of violating Sections 231.28(1)(i), Florida Statutes, by violating Rules 6B-1.006(4)(b) and (5)(a), (g), (h), and (i), Florida Administrative Code. It is further recommended that: 1. The School Board of Duval County take such actions as it deems appropriate to include suspension and discharge, however, because of the lack of general public knowledge, that the Respondent be considered for reinstatement after having completed any penalties imposed by the Department, and being recertified. DONE and ENTERED this 24th day of May, 1996, in Tallahassee, Florida. STEPHEN F. DEAN, 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 24th day of May, 1996. APPENDIX TO RECOMMENDED ORDER CASE NOS. 95-1967 and 95-1987 The parties submitted proposed findings of fact which were read and considered. The following sates where the findings were adopted or where they were rejected: DOE'S FINDINGS RECOMMENDED ORDER Paragraphs 1-18 Adopted as 1-18 Paragraph 19 Conclusion of law Paragraphs 20-46 Adopted, although renumbered in some instances. DUVAL COUNTY'S FINDINGS Duval County's findings were a verbatim repetition of the DOE's findings. TASKETT'S FINDINGS RECOMMENDED ORDER Paragraphs 1-22 Adopted or subsumed in the findings. Paragraphs 23 and 24 Are not necessary to the factual conclusion reached. Paragraph 25 Adopted or subsumed in the findings. COPIES FURNISHED: Ronald G. Stowers, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, FL 32399-0400 Thomas E. Crowder, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32207 John M. Merrett, Esquire 220 East Forsyth Street Jacksonville, FL 32202 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, FL 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207-8154
The Issue Whether Respondent's proposed decision to award a contract to Florida Youth Academy, Inc., pursuant to Request for Proposals No. F4G01, is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.
Findings Of Fact On June 19, 2001, the Department issued and advertised RFP No. F4G01 for the design, implementation, and operation of a moderate risk residential program with a daily capacity of 30 youthful female offenders who have been committed to the Department after having been assessed and classified as a medium risk to public safety. This was an on-going program, and PEMHS was the incumbent contractor. PEMHS and FYA submitted proposals, which were opened on July 24, 2001. Three qualified agency employees, Mary Mills, Nicholas Lefrancois, and Jennifer Gallman, were given the assignment of evaluating the proposals in accordance with the requirements of the RFP and an evaluation score sheet providing evaluation and scoring criteria. The evaluators worked separately and returned their completed score sheets to Genanne Wilson, the contract administrator who developed the RFP. Ms. Wilson tabulated the scores. On August 31, 2001, the Department posted the tabulations for the RFP, recommending the contract be awarded to FYA. FYA received 328 points, and PEMHS received 288 points. FYA's score was corrected to 303 points when it was discovered that Ms. Wilson had applied an incorrect weighting factor to the points awarded FYA for CMBE participation. The correction did not affect the outcome of the process. PEMHS filed a formal written protest on September 14, 2001, and an amended formal written protest on October 19, 2001. Section L of the RFP set forth the proposal award criteria. Subsection L.1 described the RFP's sole "Fatal Item" as follows: Fatal Item A proposal with a "no" response to the following question shall be rejected without further consideration. Did the Offeror submit an original, signed State of Florida, Request for Proposal, Contractual Services Acknowledgment Form (PUR 7033)? _____ Yes No If the above item is marked "NO" the evaluation of this proposal will STOP! The referenced Form PUR 7033 is prescribed by the Department of Management Services, Division of Purchasing, for inclusion in all agency RFPs. Rule 60A-1.002(7)(c), Florida Administrative Code. The form lists 17 separate General Conditions applicable to all contracts, provides potential vendors with information as to posting of proposal tabulations, and, most importantly, provides space for a manual signature by an authorized representative of the prospective vendor, stating the vendor's assent to the following statement: I certify that this Proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a Proposal for the same services, supplies or equipment and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this Proposal and certify that I am authorized to sign this Proposal for the Proposer and that the Proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a Proposal to an agency for the State of Florida, the Proposer offers and agrees that if the Proposal is accepted, the Proposer will convey, sell, assign or transfer to the State of Florida, all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Antitrust Laws of the United States and the State of Florida for the price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the Proposer. The vendor's manual signature on Form PUR 7033 binds the vendor to the terms of its proposal, should it prevail at the end of the evaluation process. The RFP was made available to vendors via download from the Department's Internet web page. The web page allowed the downloading of the Form PUR 7033, but also allowed the downloading of a form similar but not identical to Form PUR 7033. This second form included the language quoted above binding the vendor to its proposal and the space for the manual signature assenting to those terms, but did not include the 17 General Conditions found on the Form PUR 7033. The proposal submitted by FYA employed the second form, not the Form PUR 7033. It included the manual signature of Dr. Devyani Desai, the president and chief executive officer of FYA, indisputably a person authorized to bind FYA to its proposal. PEMHS' protest contends that, given the strict language of the "Fatal Item" RFP term, FYA's proposal should have been rejected out of hand for failure to include the mandatory Form PUR 7033. Genanne Wilson, the contract administrator, was the person charged with deciding whether the FYA proposal should be rejected. She consulted a Department attorney, who advised her that the second form was acceptable and met the criterion for submission of a Form PUR 7033. Based on that advice, Ms. Wilson distributed the FYA proposal to the three evaluators for scoring. The evaluators' score sheets contained a space calling for them to confirm the presence of the Form PUR 7033, but the testimony at the hearing established that the evaluators relied on Ms. Wilson for that information. Mr. Lefrancois testified that he assumed he would not have received the proposals for evaluation at all had they not contained the Form PUR 7033. The seventeen General Conditions set forth on Form PUR 7033 are commonly referred to as the "boilerplate" language included in any contract issued pursuant to an RFP. They include the terms of submission and opening of proposals, bid protest procedures, terms of invoicing and payment, conflict of interest notices, public records requirements, and contractual restrictions regarding assignment, default, advertising, liability, and cancellation. All of the substantive areas of the General Conditions were set forth in substance, if not precisely the same form, within the RFP itself. While pressing its claim that the literal language of the RFP should apply to disqualify FYA's proposal, PEMHS offered no evidence that FYA gained any competitive advantage by submitting the alternative form that it downloaded from the Department's own web site. No party contended that the submission of the alternative form would release FYA from any of the General Conditions. The Department has modified Form PUR 7033 to include blank signature spaces to be signed in the event the bidder enters into a contract with the Department. PEMHS argued that FYA's failure to include the modified Form PUR 7033 meant that FYA and the Department would be unable to finalize the contract by signature. PEMHS offered no statutory or rule citation that would require the contract to be executed on the modified Form PUR 7033, or that would prohibit the Department from drafting a separate document for the parties to sign in execution of their contract. Greg Chown, the Department's director of contracts, testified that the lack of a signature page in the bid documents would not prevent the Department from subsequently entering into a contract with a successful bidder. In summary, FYA filled out and submitted a form provided by the Department. The form bound FYA to its proposal just as the Form PUR 7033 bound PEMHS to its proposal. FYA gained no competitive advantage by submitting the alternative form. The RFP labeled submission of the Form PUR 7033 a "Fatal Item," but the clear intent of this requirement was to ensure a firm commitment by the vendor, not to trap an unwary bidder who inadvertently downloaded the alternative form from the Department's own web page. The alternative form signed by FYA's president complied with the substance of the "Fatal Item" requirement. In view of all the evidence, FYA's failure to submit a Form PUR 7033 was at most a minor irregularity, properly waived by the Department in the interest of preserving competition in a situation in which only two proposals were received. Section K.3.3 of the RFP provided that the bidder must present "a letter of intent to enter into local interagency agreements required in program objectives: submit cooperative agreement(s) or contract(s) with local school districts describing the manner in which education services shall be provided in performance of this contract." PEMHS contended that one evaluator, Mr. Lefrancois, awarded FYA a "satisfactory" score of three points for this item despite the fact that FYA did not submit the required cooperative agreement or contract.1 In response to Section K.3.3, FYA submitted a letter from Frank Potjunas, the supervisor of dropout prevention services for Pinellas County Schools. The letter, addressed to FYA's president, stated: It has come to my attention that you are applying to the Department of Juvenile Justice to provide a 30 bed residential program for moderate risk girls at your Largo facility. As a Pinellas County School administrator and a member of Florida Youth Academy's Advisory Council, I have spent many days at your program. I have worked closely with the FYA administration and staff and I am aware of the services and care you provide to at-risk youth. I support your application, and if I can be of any further help please let me know. PEMHS contended that the above letter did not constitute either a letter of intent or an actual contract as contemplated by Section K.3.3 of the RFP, and that Mr. Lefrancois therefore erred in awarding FYA three points for this item. PEMHS also pointed out that evaluator Mary Mills agreed that the FYA response was inadequate and that she awarded FYA only two points for this item. The third evaluator, Jennifer Gallman, also awarded FYA three points for this item. She testified that a cooperative agreement signed by all parties would be an ideal submission, but that only the incumbent bidder can realistically be expected to have such an agreement in place. A bidder who does not enjoy the advantage of incumbency should demonstrate that it has made contacts within the community and enlisted support for its prospective program. Ms. Gallman was satisfied that the letter quoted above satisfied Section K.3.3 when read in conjunction with its accompanying text in the FYA proposal: Florida Youth Academy intends to modify existing cooperative agreement [sic] with the Pinellas County School Board to provide onsite dropout prevention programming for these additional beds. There will be one classroom for every 19 youth. A letter of intent from Pinellas County School System is included in this submittal. In summary, the issue raised by PEMHS regarding Section K.3.3 amounts to no more than a minor difference of opinion among the evaluators. Two of the evaluators found FYA's response "adequate" and awarded three points. One of the evaluators found FYA's response "poor" and awarded two points. Either opinion is rational and defensible. Nothing in the FYA response to Section K.3.3 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. Section K.4 of the RFP, entitled "Organizational Capability," required the bidder to submit seven items: An organization chart identifying relationships between dedicated program staff and corporate staff, along with a narrative detailing the capacity of program staff to accomplish program objectives. A synopsis of corporate qualifications indicating ability to manage and meet performance objectives of the proposed program, including copies of corporate documents. A plan to illustrate adequate internal administrative review and monitoring services to assure performance for the program. A resume for each professional staff member to include name, position titles, certifications and qualifications of those providing service. A staffing plan to include name, position titles, and weekly hours allocated to ensure quality service delivery. Narrative description that outlines the arrangements that will be in existence at the time of contract award to rent, purchase or otherwise acquire the needed facilities, equipment or other resources required to perform the contract. Narrative outlining the Offeror's ability to perform the contractual services taking into consideration any existing contracts with the Department, other state agencies or any other agency in which the Offeror has entered into a contractual relationship.2 PEMHS contended that FYA's proposal did not address items 3 and 5 of Section K.4, but that two of the evaluators nonetheless awarded FYA an "adequate" score of three points for this section, while the third evaluator awarded a "poor" score of two points. While FYA's proposal did not separately set out the "plans" referenced in items 3 and 5, a fair reading of the proposal as a whole could lead a rational evaluator to conclude that FYA addressed the substance of those items. As with the dispute over the scoring of Section K.3.3, this issue involves a minor difference of opinion among the evaluators as to the adequacy of FYA's response. Two of the evaluators, judging the proposal in its entirety, determined that FYA adequately addressed the requirements of Section K.4. One evaluator disagreed, finding the response "poor." Either opinion is rational and defensible. Nothing in the FYA response to Section K.4 or in the evaluators' scoring thereof merits a finding that the agency's actions were clearly erroneous, contrary to competition, arbitrary, capricious, or in contravention of the applicable rules, statutes, or the requirements of the RFP. PEMHS complained that evaluator Mary Mills changed her score for two items in her evaluation of PEMHS' proposal. The evidence established that in one instance, Ms. Mills lowered the score from three points to two. In the other instance, Ms. Mills raised the score from two points to three. The evidence further established that Ms. Mills made these changes on her own, prior to submitting her completed evaluation to Ms. Wilson. In each instance, her completed review of the entire PEMHS proposal caused Ms. Mills to reconsider the score she had preliminarily awarded. PEMHS failed to establish that Ms. Mills did anything inconsistent with the duties of a conscientious evaluator. Finally, PEMHS alleged that FYA submitted false information concerning its past performance. Section K.4.1 of the RFP set forth the requirement for documentation of past performance: The Offeror shall submit documentation to support the following: An established history of program implementation within the fiscal constraints of any previous contracts. Achieved measurable results in educational achievements by participants. Satisfactory or higher ratings in a similar program Quality Assurance Evaluation. Involvement by the community in which the program is located indicating the community's support for the continuation of the program, such as local boards, volunteers, local financial or in-kind support, and support by local governmental organizations. Any documentation to support the program's recidivism rates for clients served. The corresponding section of the score sheet provided a possible five points for each of the five aspects of past performance listed in Section K.4, for a possible total of 25 points. Each of the evaluators awarded FYA an "adequate" score of three points for each of the items, except for the item corresponding to "satisfactory or higher ratings in a similar program Quality Assurance Evaluation." For this item, Mr. Lefrancois and Ms. Gallman awarded FYA a "very good" score of four points. Each of them noted that the superior rating on this item was based on FYA's having operated other programs that had achieved "deemed" status, the highest rating available under Quality Assurance Evaluations conducted by the Department. PEMHS alleged that the experience claimed by FYA in its proposal is actually that of another company, Florida Health Facilities, L.P., the assets of which FYA acquired in 2000. PEMHS claims that it was misleading, if not actually false, for FYA to claim credit for accomplishments achieved prior to 2000, and that the evaluators' crediting FYA with those accomplishments fatally undermined the integrity of the procurement process. Contrary to PEMHS' implication, FYA's proposal made no effort to disguise the facts. It stated, in pertinent part: Dr. Devyani N. Desai is the President & CEO of Florida Youth Academy, Inc., which was formed in September 2000 to acquire Florida Health Facilities' business and property. (p. 36) * * * Florida Youth Academy operates 132 beds at the Largo facility, which has received deemed status every year since 1998. It also leases Wilson Youth Academy facility at Land O'Lakes of 32 moderate risk beds. This facility has also received deemed status since 1999. Through the change of ownership FYA has retained all the key management personnel. (p. 37) * * * As noted in the Organizational Capability section of this proposal, FYA programs formerly owned and operated by Florida Health Facilities, L.P., has been [sic] a proven provider of female and female [sic] services for the State, and also the Circuit 6 service area. Along with general program implementation, Florida Youth Academy has also been successful in maintaining financial stability and utilizing the per diem dollars within the constraints of the contract. The formalized report of the audit for year 2000 will be made available upon request. Examples of FYA's ability to provide quality program [sic] is outlined below: FYA currently operates four treatment programs, with varying levels of care. The programs consist of 96 High Risk, 18 Moderate Risk, 18 Low Risk and additional 32 Moderate Risk program [sic] located in another county. Three of the four residential commitment programs have received excellent quality Assurance rating with deemed status results for a consecutive two-year period. (p. 37-38) * * * The facilities have received five year's [sic] of Quality Assurance surveying. Each year ongoing improvements have been evident through increasing scores and achievement of deemed status ratings. Since program development, all levels of care have been proven to be effective at implementing which [sic] meet and exceed QA standards. In the most recent survey of 2000, all the programs achieved and/or maintained deemed status reporting . . . . (p. 38) * * * The current programs at the facility of Florida Youth Academy were previously owned and operated by Florida Health Facilities, L.P. The programs have been operated consistently through change of ownership. The recidivism rate at FYA is below average for comparable programs. The most recent experience is 28% and 30% for High Risk and Moderate Risk programs respectively. (p. 38) PEMHS' implication that FYA submitted false information is unfounded. As the quoted examples from its proposal indicate, FYA directly stated that it had acquired the assets of Florida Health Facilities in 2000, and emphasized that it had made strong efforts to maintain continuity of personnel and services during the transition. PEMHS offered no evidence to document that FYA has failed to maintain the documented quality of the "deemed" facilities it now owns. It was not arbitrary, capricious, or contrary to competition for the evaluators to accept FYA's representations as to the historical and continuing quality of the programs it acquired, absent any evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding the contract for a moderate risk residential program in Pinellas County for 30 female offenders, pursuant to RFP No. F4G01, to Florida Youth Academy, Inc., and dismissing the protest of Personal Enrichment Through Medical Services, Inc. DONE AND ENTERED this 29th day of November, 2001, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 29th day of November, 2001.
The Issue The issue is whether Petitioner's son is eligible for assistance from the Developmental Services Program.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this proceeding, Petitioner, Donald Hall, Sr., has appealed an eligibility decision of Respondent, Department of Children and Family Services (Department), which denied an application for mental retardation assistance for his son, Donald Hall, Jr. (Don), now almost 21 years of age, under the Developmental Services Program (Program). As a ground, the Department simply stated that the son was "not eligible for assistance." As clarified at hearing, Respondent takes the position that Don does not meet the statutory definition of a retarded person and therefore he does not qualify for assistance. The test for assistance The Program provides services to persons with specific developmental disabilities, such as mental retardation, cerebral palsy, spina bifida, and autism. In order to be eligible for mental retardation assistance, an individual must meet the definition of "retardation," as that term is defined in Section 393.063(44), Florida Statutes (1999). That provision defines the term as meaning "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." As further defined by the same statute, the term "significantly subaverage general intellectual functioning" means "performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department." In this case, the mean score is 100, and the standard deviation is 15; thus, an individual must have general intellectual functioning of at least two deviations below 100, or a score of less than 70, in order to qualify under this part of the definition. To determine intellectual functioning, standardized testing is performed; one such test is the Wechsler Intelligence Scale for Children (Wechsler), as revised from time to time, which was administered to Don. "Adaptive behavior" is defined as "the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community." In plainer terms, adaptive behavior means the individual's ability to function in everyday tasks in the world. This includes such things as providing personal care to oneself, expressing oneself, and finding one's way around. This behavior is measured by instruments such as the Vineland Adaptive Behavior Scale (Vineland). Finally, both the subaverage general intellectual functioning and deficits in adaptive behavior must have manifested and been present before the individual reached the age of 18. In this case, the Department asserts that it is "eighty percent" sure that Don is not mentally retarded. It acknowledges, however, that he does have "significant difficulties in all areas of functioning." More specifically, the Department bases its denial on the fact that Don's 1995 tests indicated that his adaptive behavior was equivalent to other children of the same age, and that his intellectual functioning tests, principally the 1990 test and one score in 1995, revealed that he is in the borderline range between low average and mentally retarded. Don's background Don was born on November 5, 1979. Even while attending an educable mentally handicapped class at Parkwood Heights Elementary School, a public school in Duval County, Florida, Don experienced difficulty in coping with the curriculum. Indeed, after he had already repeated the first and third grades, and he was in danger of failing the fourth grade as well, public school officials transferred Don from the public school to Morning Star School (Morning Star), a private school for students with learning disabilities, including those who are mildly mentally handicapped. Later, when teachers at Morning Star expressed concern that Don had "gone as far as they could help him," and he was too old to retain eligibility, Don was referred by a child study team to Alden Road Exceptional Student Center (Alden Road), a public school (grades 6-12) for mentally handicapped students. Due to his present age (almost 21), he has only one year of eligibility left at Alden Road. At the school, Don receives limited academic instruction and has a supervised job. Don became eligible for Social Security death benefits when his natural mother died. Recently, his parents (father and stepmother) made application for those benefits to be converted to greater, more permanent Social Security benefits because of his condition. Their request was quickly approved, and Donald now receives lifetime monthly Social Security benefits. Don's test results for general intellectual functioning On April 24, 1990, when Don was 10 years old, he was given a psychological evaluation, which included the Wechsler test, to produce verbal, performance, and full scale intelligence quotients (IQs). The verbal IQ is a composite score of several subtests that make up the intelligence scale, including verbal reasoning, verbal memory, and verbal expressive skills. The performance score is based on a group of nonverbal tests, such as putting blocks and puzzles together, sequencing pictures, and marking coded symbols in a timed environment. Those results indicated a verbal IQ of 78, a performance IQ of 77, and a full scale IQ of 76. These scores placed him in the "borderline range" of intellectual functioning somewhere between low average and mentally retarded. The Wechsler test was revised in 1991 to provide a more valid estimate of intellectual functioning compared to the current day population. This resulted in students who retook the test scoring at least 5 points lower, and sometimes even lower, than they did on the earlier version of the test. Therefore, it is not surprising that Don attained lower scores on subsequent tests. The evidence establishes that a child will typically attain higher IQ scores at an earlier age, and that as he grows older, his scores will "tail off." This is because a child's intellectual skills reach a plateau, and the child is not learning new skills at a higher level as his age increases. Therefore, later tests scores are more indicative of Don's intellectual functioning. In 1993, when he was 13 years old, Don was again evaluated by the Duval County School Board and received a verbal IQ of 65, a performance IQ of 54, and a full scale IQ of 56 on the Wechsler test. More than likely for the two reasons given above, these scores were substantially lower than the scores achieved in 1990, and they indicated that Don was "in the range of mild mental retardatation" and therefore eligible for services. In 1995, when Don was 16 years old, he was again given the Wechsler test by a psychologist and was found to have a verbal IQ of 71, a performance IQ of 54, and a full scale IQ of Except for the verbal score, Don's IQ scores placed him in the range of mild mental retardation. On the 1995 verbal IQ score, which is made up of ten subtests, Don had one subtest with a score of 91, which raised his overall verbal IQ score to 71. Without that score, the verbal IQ would have been in the 60s, or in the mildly mentally retarded range. The evidence shows that it is quite common for children with mild to moderate deficiencies to score within the average range on some types of achievement measures. For example, some mildly retarded children will achieve a high level on academic tests, such as in the 80s or 90s, but they have little comprehension as to what those words mean. More than likely, Don fits within this category, and an overall verbal score of less than 70 is more reflective of his intellectual functioning. Based on the 1993 and 1995 tests, Don has general intellectual functioning of at least two deviations below 100, and therefore he qualifies for assistance under this part of the test. Adaptive behavior skills As noted above, this category measures Don's ability to deal with everyday tasks. To be eligible for services, an applicant must have deficits in his adaptive behavior which manifested before the age of 18. Presently, and for eight months out of the year, Don works from noon until 8:00 p.m. Monday through Friday at Jacksonville University "in the skullery room and [doing] tables." He relies on community transportation (from door to door) to get to and from work. When not working, he attends Alden Road where he receives limited academic instruction. According to a Vineland instrument prepared by an Alden Road teacher in December 1995, Don then had an overall adaptive behavior composite of 16 years old, or one roughly equivalent to other children of the same age. More specifically, in terms of communication, he was functioning at the age of 16; in terms of daily living skills, he was reporting at a greater level than the 18-year-old level; and in terms of socialization, he was slightly lower than a 16-year-old. The teacher who prepared the raw data on which the test score was derived was surprised to learn that her data produced a result which indicated that Don had adaptive skills equivalent to someone his own age. Based on her actual experience with him in the classroom, she found Don to be "functioning way below" her own son, who was the same age as Don. She further established that he can follow only the most "simple" instructions, and he will always need someone "looking out for him." This was corroborated by Don's parents and family friends. The Vineland test result also differs markedly from Don's real life experience. Don lives at home with his father and stepmother; he requires "constant supervision all day," even while working; and he is unable to live by himself. He is a "very trusting person," is easily subject to unscrupulous persons who could take advantage of him, and cannot manage his own money. Indeed, his psychologist described him as being "an easy target to be taken advantage of [by others]." Although Don is able to administer to some of his basic personal hygiene needs, he still requires constant reminders to do such things as wash his hair or brush his teeth. Finally, Don has minimal problem solving skills, and he is easily confused by instructions unless they are "very simple." In short, these are real deficits in adaptive behavior and are sufficient to make Don eligible for Program services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for Program benefits for Donald Hall, Jr. DONE AND ENTERED this 14th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of July, 2000. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josefina M. Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Kathryn L. Sands, Esquire 1830 Atlantic Boulevard Jacksonville, Florida 32207-3404 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The primary issue is whether the process used by the Department of Education (Department) for evaluating and ranking the proposals submitted in response to Request For Proposal (RFP) 99-03 for the Florida Comprehensive Assessment Test (FCAT) administration contract was contrary to the provisions of the RFP in a way that was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The RFP for the FCAT describes a five stage process for evaluating proposals. In Stage I, the Department’s Purchasing Office determined whether a proposal contained certain mandatory documents and statements and was sufficiently responsive to the requirements of the RFP to permit a complete evaluation. Stage II involved the Department’s evaluation of a bidder’s corporate qualifications to determine whether the bidder has the experience and capability to do the type of work that will be required in administering the FCAT. Stage III was the Department’s evaluation of a bidder’s management plan and production proposal. In Stage IV, the Department evaluated a bidder’s cost proposal. Stage V involved the ranking of proposals based on points awarded in Stages II-IV. If a proposal did not meet the requirements at any one stage of the evaluation process, it was not to be evaluated in the following stage. Instead, it was to be disqualified from further consideration. Stages II and III of the evaluation process were conducted by an evaluation team comprised of six Department employees: Dr. Debby Houston, Ms. Lynn Joszefczyk, Dr. Peggy Stillwell, Dr. Cornelia Orr, Dr. Laura Melvin, and Ms. Karen Bennett. Dr. Thomas Fisher, head of the Department’s Assessment and Evaluation Services Section, and Dr. Mark Heidorn, Administrator for K-12 Assessment Programs within the Department’s Assessment and Evaluation Services Section, served as non-voting co-chairs of the evaluation team. The focus of this proceeding is Stage II of the evaluation process addressing a bidder’s corporate qualifications. RFP Provisions Regarding Corporate Qualification The FCAT administration contractor will be required to administer tests to approximately one and a half million students each year in a variety of subject areas at numerous grade levels. The FCAT program involves a complex set of interrelated work activities requiring specialized human resources, technological systems and procedures. The FCAT must be implemented annually within limited time periods. The FCAT administration contractor must meet critical deadlines for the delivery of test materials to school districts and the delivery of student scores prior to the end of the school year. In developing the RFP, the Department deliberately established a set of minimum requirements for corporate qualifications that a bidder was to demonstrate in order for its proposal to be eligible for further evaluation. The purpose of the RFP’s minimum corporate qualifications requirements was to limit bidding to qualified vendors who have demonstrated prior experience in successfully administering large-scale assessment projects like the FCAT, thereby providing the Department with some degree of assurance that the winning bidder could successfully administer the FCAT. The instructions to bidders regarding the minimum requirements for corporate qualifications are contained in RFP Section 10, which gives directions on proposal preparation. Section 10.1, which lists certain mandatory documents and statements to be included in the bidder’s proposal, requires that a transmittal letter contain "[a] statement certifying that the bidder has met the minimum corporate qualifications as specified in the RFP." These "minimum corporate qualifications" are set forth in RFP Appendix J. RFP Section 10.2 identifies what a bidder is required to include in its proposal with respect to corporate qualifications. The first paragraph of Section 10.2 directs a bidder generally to describe its qualifications and experience performing tasks similar to those that it would perform in administering the FCAT, in order to demonstrate that the bidder is qualified where it states: Part II of a bidder’s proposal shall be entitled Corporate Qualifications. It shall provide a description of the bidder’s qualifications and prior experience in performing tasks similar to those required in this RFP. The discussion shall include a description of the bidder’s background and relevant experience that qualifies it to provide the products and services required by the RFP. RFP Section 10.2, however, is not limited to a directive that qualifications and past experience be described generally. Instead, Section 10.2, also communicates, in plain and unambiguous terms, that there are specific minimum corporate qualifications a bidder must demonstrate: The minimum expectations for corporate qualifications and experience are shown in Appendix J. There are two separate sets of factors, one set of eight for the developmental contractor and another set of nine for the administration contractor. Bidders must demonstrate their Corporate Qualifications in terms of the factors that are applicable to the activities for which a bid is being submitted -- development or administration. For each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects. (Emphasis added.) Moreover, Section 10.2 singles out for emphasis, in relation to the administration component of the RFP, the importance placed on a bidder’s ability to demonstrate experience processing a large volume of tests: The [bidder’s prior completed] projects must have included work tasks similar to those described herein, particularly in test development or processing a comparable number of tests. The bidder will provide a description of the contracted services; the contract period; and the name, address, and telephone number of a contact person for each of the contracting agencies. This description shall (1) document how long the organization has been providing similar services; (2) provide details of the bidder’s experience relevant to the services required by this RFP; and (3) describe the bidder’s other testing projects, products, and services that are similar to those required by this RFP. (Emphasis added.) The Department thus made clear its concern that bidders demonstrate experience with large-scale projects. RFP Appendix J sets forth nine different criteria (C1 through C9) for the administration contractor. As stated in RFP Section 10.2, "[f]or each criterion, the bidder must demonstrate that the minimum threshold of experience has been achieved with prior completed projects . . . ." (emphasis added). Appendix J contains a chart which lists for each criterion: (1) a summary of the related FCAT work task, (2) the detailed criteria for the bidder’s experience related to that work task, and (3) the necessary documentation a bidder must provide. Criterion C4 and Criterion C6 include work tasks that involve the use of image-based scoring technology. C4 and C6 are the only corporate qualifications criteria at issue in this proceeding. RFP Provisions Involving Corporate Qualifications for Image-Based Scoring "Handscoring" is the test administration activity in which open-ended or performance-based student responses are assessed. This practice involves a person reading something the student has written as part of the test, as distinguished from machine scoring multiple choice responses (i.e., the filled-in "bubbles" on an answer sheet). There are two types of handscoring: (1) paper-based handscoring, and (2) image-based handscoring. Paper-based handscoring requires that a student response paper be sent to a reader, who then reviews the student’s response as written on the paper and enters a score on a separate score sheet. Image-based handscoring involves a scanned image of the student’s response being transmitted to a reader electronically. The student’s response is then projected on a computer screen, where the reader reviews it and assigns a score using the computer. The RFP requires that the reading and math portions of the FCAT be handscored on-line using imaging technology beginning with the February 2000 FCAT administration. The RFP provides that the writing portion of the FCAT may be handscored using either the paper-based method or on-line imaging technology during the February 2000 and 2001 FCAT administrations. However, on-line image-based scoring of the writing portion of the FCAT is required for all FCAT administrations after February 2001. An image-based scoring system involves complex computer technology. William Bramlett, an expert in designing and implementing large-scale imaging computer systems and networks, presented unrefuted testimony that an image-based scoring system will be faced with special challenges when processing large volumes of tests. These challenges involve the need to automate image quality control, to manage the local and wide area network load, to assure adequate server performance and storage requirements, and to manage the work flow in a distributed environment. In particular, having an image-based scoring system process an increasing volume of tests is not simply a matter of adding more components. Rather, the system’s basic software architecture must be able to understand and manage the added elements and volume involved in a larger operation. According to Bramlett, there are two ways that the Department could assess the ability of a bidder to perform a large- scale, image-based scoring project such as the FCAT from a technological perspective: (1) have the bidder provide enough technological information about its system to be able to model or simulate the system and predict its performance for the volumes involved, or (2) require demonstrated ability through completion of prior similar projects. Dr. Mark Heidorn, Administrator for Florida’s K-12 Statewide Assessment Programs, was the primary author of RFP Sections 1-8, which describe the work tasks for the FCAT -- the goods and services vendors are to provide and respond to in their technical proposals. Dr. Heidorn testified that in the Department’s testing procurements involving complex technology, the Department has never required specific descriptions of the technology to be used. Instead, the Department has relied on the bidder’s experience in performing similar projects. Thus, the RFP does not specifically require that bidders describe in detail the particular strategies and approaches they intend to employ when designing and implementing an image-based scoring system for FCAT. Instead, the Department relied on the RFP requirements calling for demonstrated experience as a basis to understand that the bidder could implement such an image-based scoring system. Approximately 717,000 to 828,000 student tests will be scored annually by the FCAT administration contractor using imaging technology. The RFP, however, does not require that bidders demonstrate image-based scoring experience at that magnitude. Instead, the RFP requires bidders to demonstrate only a far less demanding minimum level of experience using image-based scoring technology. Criterion C4 and Criterion C6 in Appendix J of the RFP each require that a bidder demonstrate prior experience administering "a minimum of two" assessment programs using imaged- based scoring that involved "at least 200,000 students annually." The requirements for documenting a "minimum of two" programs or projects for C4 and C6 involving "at least 200,000 students annually" are material because they are intended to provide the Department with assurance that the FCAT administration contractor can perform the large-scale, image-based scoring requirements of the contract from a technological perspective. Such experience would indicate that the bidder would have been required to address the sort of system issues described by Bramlett. Dr. Heidorn testified that the number 200,000 was used in C4 and C6 "to indicate the level of magnitude of experience which represented for us a comfortable level to show that a contractor had enough experience to ultimately do the project that we were interested in completing." Dr. Fisher, who authored Appendix J, testified that the 200,000 figure was included in C4 and C6 because it was a number judged sufficiently characteristic of large-scale programs to be relevant for C4 and C6. Dr. Fisher further testified that the Department was interested in having information that a bidder’s experience included projects of a sufficient magnitude so that the bidder would have experienced the kinds of processing issues and concerns that arise in a large-scale testing program. The Department emphasized this specific quantitative minimum requirement in response to a question raised at the Bidder’s Conference held on November 13, 1998: Q9: In Appendix J, the criteria for evaluating corporate quality for the administration operations C4, indicates that the bidder must have experience imaging as indicated. Does this mean that the bid [sic] must bid for using [sic] imaging technology for reading and mathematics tests? A: Yes. The writing assessment may be handscored for two years, and then it will be scored using imaging technology. To be responsive, a bid must be for imaging. The corporate experience required (200,000 students annually for which reports were produced in three months) could be the combined experience of the primary contractor and the subcontractors. (Emphasis added.) Criterion C4 addresses the RFP work tasks relating to handscoring, including both the image-based handscoring of the reading and math portions of the FCAT for all administrations and the writing portions of the FCAT for later administrations. The "Work Task" column for C4 in Appendix J of the RFP states: Design and implement efficient and effective procedures for handscoring student responses to performance tasks within the limited time constraints of the assessment schedule. Handscoring involves image-based scoring of reading and mathematics tasks for all administrations and writing tasks for later administrations at secure scoring sites. Retrieve and score student responses from early district sample schools and deliver required data to the test development contractor within critical time periods for calibration and scaling. The "Necessary Documentation" column for C4 in Appendix J states: Bidder must document successful completion of a minimum of two performance item scoring projects for statewide assessment programs during the last four years for which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The "Criteria" column for C4 in Appendix J, like the related work tasks in the RFP, addresses both image-based handscoring of reading and math, as well as paper-based or image- based handscoring of writing. In connection with all handscoring work tasks, "[t]he bidder must demonstrate completion of test administration projects for a statewide program for which performance items were scored using scoring rubrics and associated scoring protocols." With respect to the work tasks for handscoring the reading and math portions of the FCAT, "[t]he bidder must demonstrate completion of statewide assessment programs involving scoring multiple-choice and performance items for at least 200,000 students annually for which reports were produced in three months." In addition, for the reading and math work tasks, "[e]xperience must been shown in the use of imaging technology and hand-scoring student written responses with completion of scoring within limited time restrictions." This provision dealing with "imaging technology" experience self-evidently addresses the reading and math components, because separate language addresses imaging experience in connection with the writing component. The relevant handscoring experience for the reading and math aspects of the program is experience using image-based technology. By contrast, with respect to the work tasks for scoring the writing portions of the FCAT, "the bidder must also demonstrate completion of statewide assessment programs involving paper-based or imaged scoring student responses to writing assessment prompts for at least 200,000 students annually for which reports were produced in three months." (Emphasis added.) Criterion C6 addresses work tasks relating to designing and implementing systems for processing, scanning, imaging and scoring student responses to mixed-format tests within limited time constraints. The "Work Task" column for C6 in RFP Appendix J states: Design and implement systems for the processing, scanning, imaging, and scoring of student responses to test forms incorporating both multiple-choice and constructed response items (mixed-format) within the limited time constraints of the assessment schedule. Scoring of student responses involves implementation of IRT scoring tables and software provided by the development contractor within critical time periods. The "Necessary Documentation" column for C6 in Appendix J states: Bidder must document successful completion of a minimum of two test administration projects for statewide assessment programs during the last four years in which the bidder was required to perform as described in the Criteria column. (Emphasis added.) The Criteria column for C6 in Appendix J states: The bidder must demonstrate completion of test administration projects for statewide assessment programs or other large-scale assessment programs that required the bidder to design and implement systems for processing, scanning, imaging, and scoring responses to mixed-format tests for at least 200,000 students annually for which reports were produced in three months. Experience must be shown in use of imaging student responses for online presentation to readers during handscoring. (Emphasis added.) RFP Provisions Per Corporate Qualifications The procedure for evaluating a bidder’s corporate qualifications is described in RFP Section 11.3: The Department will evaluate how well the resources and experience described in each bidder’s proposal qualify the bidder to provide the services required by the provisions of this RFP. Consideration will be given to the length of time and the extent to which the bidder and any proposed subcontractors have been providing services similar or identical to those requested in this RFP. The bidder’s personnel resources as well as the bidder’s computer, financial, and other technological resources will be considered in evaluating a bidder’s qualifications to meet the requirements of this RFP. Client references will be contacted and such reference checks will be used in judging a bidder’s qualifications. The criteria to be used to rate a bidder’s corporate qualifications to meet the requirements of this RFP are shown in Appendix J and will be applied as follows: * * * Administrative Activities. Each of the nine administration activities criteria in Appendix J will be individually rated by members of the evaluation team. The team members will use the rating scale shown in Figure 1 below. Individual team members will review the bidder’s corporate qualifications and rate the response with a rating of one to five. The ratings across all evaluators for each factor will be averaged, rounded to the nearest tenth, and summed across all criteria. If each evaluator assigns the maximum number of points for each criterion, the total number of points will be 45. To meet the requirements of Stage II, the proposal must achieve a minimum rating of 27 points and have no individual criterion for which the number of points averaged across evaluators and then rounded is less than 3.0. Each proposal that receives a qualifying score based on the evaluation of the bidder’s qualifications will be further evaluated in Stage III. Figure 1 Evaluation Scale for Corporate Qualifications 5 Excellent 4 3 Satisfactory 2 1 Unsatisfactory The bidder has demonstrated exceptional experience and capability to perform the required tasks. The bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks. The bidder either has not established its corporate qualifications or does not have adequate qualifications. RFP Section 11.3 provides that each of the nine corporate qualifications criteria for administration operations in Appendix J (C1 through C9) will be individually rated by the six members of the evaluation team using a scale of one to five. A rating of three is designated as "satisfactory" which means that "[t]he bidder has demonstrated that it meets an acceptable level of experience and capability to perform the required tasks." In order to be further evaluated, Section 11.3 provides that there must be no individual corporate qualifications criterion for which the bidder’s proposal receives a score less than 3.0 (average points across evaluators). Dr. Fisher, the primary author of Section 11.3 of the RFP, referred to the 3.0 rating as the "cut score." (Emphasis added.) The RFP’s clear and unambiguous terms thus establish the "minimum threshold" of experience that a bidder "must demonstrate" in its proposal for Criterion C1 through Criterion C9. The "minimum threshold" of experience that a bidder must demonstrate for each criterion is described in Appendix J of the RFP. If a proposal failed to demonstrate that the bidder meets the minimum threshold of experience for a particular criterion in Appendix J, the bidder obviously would not have demonstrated "that it meets an acceptable level of experience and capability to perform the required tasks." Thus, in that setting, an evaluator was to have assigned the proposal a rating of less than "satisfactory," or less than three, for that criterion. (Emphasis added.) The fact that a score less than "3" was expected for -- and would eliminate -- proposals that did not demonstrate the "minimum threshold" of experience does not render meaningless the potential scores of "1" and "2." Those scores may reflect the degree to which a bidder’s demonstrated experience was judged to fall below the threshold. Although some corporate capability minimums were stated quantitatively (i.e., "minimum of two," or "at least 200,000"), others were open to a more qualitative assessment (i.e., "large-scale," "systems," or "reports"). Moreover, a proposal that included demonstrated experience in some manner responsive to each aspect of Appendix J might nevertheless be assigned a score of less than "3," based on how an evaluator assessed the quality of the experience described in the proposal. By the terms of the RFP, however, an average score across evaluators of less than 3 represented essentially a decision that the minimum threshold of experience was not demonstrated. Had the Department truly intended Appendix J to reflect only general targets or guidelines, there were many alternative ways to communicate such an intent without giving mandatory direction about what bidders "must demonstrate" or without establishing quantitative minimums (i.e. "a minimum of two," or "at least 200,000"). RFP Appendix K, for instance, sets forth the evaluation criteria for technical proposals in broad terms that do not require the bidder to provide anything in particular. Even within Appendix J, other than in Criterion C4 and Criterion C6, bidders were to show experience with "large-scale" projects rather than experience at a quantified level. Pursuant to the RFP’s plain language, in order to meet the "minimum threshold" of experience for Criterion C4 and Criterion C6, a bidder "must demonstrate," among other things, successful completion of a "minimum of two" projects, each involving the use of image-based scoring technology in administering tests to "at least 200,000 students annually." Department’s Evaluation of Corporate Qualifications In evaluating Harcourt’s proposal, the Department failed to give effect to the plain RFP language stating that a bidder "must document" successful completion of a "minimum of two" testing projects involving "at least 200,000 students annually" in order to meet the "minimum threshold" of experience for C4 and C6. Dr. Fisher was the primary author of Sections 10, 11 and Appendix J of the RFP. He testified that during the Stage II evaluation of corporate qualifications, the evaluation team applied a "holistic" approach, like that used in grading open-ended written responses in student test assessments. Under the holistic approach that Dr. Fisher described, each member of the evaluation team was to study the proposals, compare the information in the proposals to everything contained in Appendix J, and then assign a rating for each criterion in Appendix J based on "how well" the evaluator felt the proposal meets the needs of the agency. Notwithstanding Dr. Fisher’s present position, the RFP’s terms and their context demonstrate that the minimum requirements for corporate qualifications are in RFP Appendix J. During the hearing, Dr. Fisher was twice asked to identify language in the RFP indicating that the Department would apply a "holistic" approach when evaluating corporate qualifications. Both times, Dr. Fisher was unable to point to any explicit RFP language putting bidders on notice that the Department would be using a "holistic" approach to evaluating proposals and treating the Appendix J thresholds merely as targets. In addition, Dr. Fisher testified that the Department did not engage in any discussion at the bidders’ conference about the evaluation method that was going to be used other than drawing the bidders’ attention to the language in the RFP. As written, the RFP establishes minimum thresholds of experience to be demonstrated. Where, as in the RFP, certain of those minimum thresholds are spelled out in quantitative terms that are not open to interpretation or judgment, it is neither reasonable nor logical to rate a proposal as having demonstrated "an acceptable level of experience" when it has not demonstrated the specified minimum levels, even if other requirements with which it was grouped were satisfied. The plain RFP language unambiguously indicates that an analytic method, not a "holistic" method, will be applied in evaluating corporate qualifications. Dr. Fisher acknowledged that, in an assessment using an analytic method, there is considerable effort placed up front in deciding the specific factors that will be analyzed and those factors are listed and explained. Dr. Fisher admitted that the Department went into considerable detail in Appendix J of the RFP to explain to the bidders the minimums they had to demonstrate and the documentation that was required. In addition, Dr. Orr, who served as a member of the evaluation team and who herself develops student assessment tests, stated that in assessments using the "holistic" method there is a scoring rubric applied, but that rubric does not contain minimum criteria like those found in the RFP for FCAT. The holistic method applied by the Department ignores very specific RFP language which spells out minimum requirements for corporate qualifications. Harcourt’s Corporate Qualifications for C4 and C6 Harcourt’s proposal lists the same three projects administered by Harcourt for both Criterion C4 and Criterion C6: the Connecticut Mastery Test ("CMT"), the Connecticut Academic Performance Test ("CAPT") and the Delaware Student Testing Program ("DSTP"). Harcourt’s proposal also lists for Criterion C4 projects administered by its proposed scoring subcontractors, Measurement Incorporated ("MI") and Data Recognition Corporation ("DRC"). However, none of the projects listed for MI or DRC involve image- based scoring. Thus, the MI and DRC projects do not demonstrate any volume of image-based scoring as required by C6 and by the portion of C4 which relates to the work task for the imaged-based scoring of the math and reading portions of the FCAT. Harcourt’s proposal states that "[a]pproximately 35,000 students per year in grade 10 are tested with the CAPT." Harcourt’s proposal states that "[a]pproximately 120,000 students per year in grades 4, 6 and 8 are tested with the CMT." Harcourt’s proposal states that "[a]pproximately 40,000 students in grades 3, 5, 8, and 10" are tested with the DSTP. Although the descriptions of the CMT and the CAPT in Harcourt’s proposal discuss image-based scoring, there is nothing in the description of the DSTP that addresses image-based scoring. There is no evidence that the evaluators were ever made aware that the DSTP involved image-based scoring. Moreover, although the Department called the Delaware Department of Education ("DDOE") as a reference for Harcourt’s development proposal, the Department did not discuss Harcourt’s administration of the DSTP (including whether the DSTP involves image-based scoring) with the DDOE. Harcourt overstated the number of students tested in the projects it referenced to demonstrate experience with image-based scoring. Harcourt admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 120,000 students with the CMT. In fact, the total number of students tested by Harcourt on an annual basis under the CMT has ranged from 110,273 in the 1996- 97 school year to 116,679 in the 1998-99 school year. Harcourt also admitted at hearing that, prior to submitting its proposal, Harcourt had never tested 35,000 students in grade 10 with the CAPT. Instead, the total number of grade 10 students tested by Harcourt on an annual basis with the CAPT ranged from 30,243 in 1997 to 31,390 in 1998. In addition, Harcourt admitted at hearing that, prior to submitting its proposal, it had conducted only one "live" administration of the DSTP (as distinguished from field testing). That administration of the DSTP involved only 33,051, not 40,000, students in grades 3, 5, 8 and 10. Harcourt itself recognized that "field tests" of the DSTP are not responsive to C4 and C6, as evidenced by Harcourt’s own decision not to include in its proposal the number of students field tested under the DSTP. Even assuming that the numbers in Harcourt’s proposal are accurate, and that the description of the DSTP in Harcourt’s proposal reflected image-based scoring, Harcourt’s proposal on its face does not document any single project administered by Harcourt for C4 or C6 involving image-based testing of more than 120,000 students annually. When the projects are aggregated, the total number of students claimed as tested annually still does not reach the level of "at least 200,000;" it comes to only 195,000, and it reaches that level only once due to the single administration of the DSTP. Moreover, even if that 195,000 were considered "close enough" to the 200,000 level required, it was achieved only one time, while Appendix J plainly directs that there be a minimum of two times that testing at that level has been performed. The situation worsens for Harcourt when using the true numbers of students tested under the CMT, CAPT, and DSTP, because Harcourt cannot document any single image-based scoring project it has administered involving testing more than 116,679 students annually. Moreover, when the true numbers of students tested are aggregated, the total rises only to 181,120 students tested annually on one occasion, and no more than 141,663 tested annually on any other occasion. Despite this shortfall from the minimum threshold of experience, under the Department’s holistic approach the evaluators assigned Harcourt’s proposal four ratings of 3.0 and two ratings of 4.0 for C4, for an average of 3.3 on C4; and five ratings of 3.0 and one rating of 4.0 for C6, for an average of 3.2 on C6. Applying the plain language of the RFP in Sections 10 and 11 and Appendix J, Harcourt did not demonstrate that it meets an acceptable level of experience and capability for C4 or C6, because Harcourt did not satisfy the minimum threshold for each criterion by demonstrating a minimum of two prior completed projects involving image-based scoring requiring testing of at least 200,000 students annually. Harcourt’s proposal should not have received any rating of 3.0 or higher on C4 or C6 and should have been disqualified from further evaluation due to failure to demonstrate the minimum experience that the Department required in order to be assured that Harcourt can successfully administer the FCAT program. NCS’s Compliance With RFP Requirements Even though the NCS proposal did not meet all of the mandatory requirements, and despite the requirement of Section 11.2 that the proposal be automatically disqualified under such circumstances, the Department waived NCS’s noncompliance as a minor irregularity. The factors in C4 and C6 were set, minimal requirements with which NCS did not comply. For example, one of the two programs NCS submitted in response to Criteria C4 and C6 was the National Assessment of Educational Progress program ("NAEP"). NAEP, however, is not a "statewide assessment program" within the meaning of that term as used in Criteria C4 and C6. Indeed, NCS admitted that NAEP is not a statewide assessment program and that, without consideration of that program, NCS’s proposal is not responsive to Criteria C4 and C6 because NCS has not have submitted the required proof of having administered two statewide assessment programs. This error cannot be cured by relying on the additional experience of NCS’s subcontractor because that experience does not show that its subcontractor produced reports within three months, and so such experience does not demonstrate compliance with Criteria C4. The Department deliberately limited the competition for the FCAT contract to firms with specified minimum levels of experience. As opined at final hearing, if the Department in the RFP had announced to potential bidders that the type of experience it asked vendors to describe were only targets, goals and guidelines, and that a failure to demonstrate target levels of experience would not be disqualifying, then the competitive environment for this procurement would have differed since only 2.06 evaluation points (out of a possible 150) separated the NCS and Harcourt scores. Dr. Heidorn conceded that multiple companies with experience in different aspects of the FCAT program -- a computer/imaging company and a firm experienced in educational testing -- might combine to perform a contract like the FCAT. Yet, that combination of firms would be discouraged from bidding because they could not demonstrate the minimum experience spelled out in the RFP. Language in the RFP, indicating the "holistic" evaluation that was to be applied, could have resulted in a different field of potential and actual bidders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, State of Florida, Department of Education, enter a Final Order rejecting the bids submitted by Harcourt and NCS for the administration component of the RFP. The Department should then seek new proposals. DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 25th day of May, 1999. COPIES FURNISHED: Karen D. Walker, Esquire Holland and Knight, LLP Post Office Drawer 810 Tallahassee, Florida 32302 Mark D. Colley, Esquire Holland and Knight, LLP Suite 400 2100 Pennsylvania Avenue, Northwest Washington, D.C. 20037 Charles S. Ruberg, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Paul R. Ezatoff, Jr., Esquire Christopher B. Lunny, Esquire Katz, Kutter, Haigler, Alderman, Bryant and Yon, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32302-7741 Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
