The Issue Whether Petitioner may be granted a family day care home registration/license.
Findings Of Fact Petitioner operated a licensed family day care home from 1992 until June 2002, when she ceased to operate a home. In late 2002 or early 2003, Petitioner applied to DCF for a new license. Petitioner's new application was denied solely because of information found during the background screening, including information from her prior licensure file. Glenda McDonald was Petitioner's day care supervisor during Petitioner's prior licensure. In that capacity, Ms. McDonald conducted regular inspections of Petitioner's day care home. On August 25, 1992, Ms. McDonald's superior sent Petitioner a letter stating that Petitioner was operating a day care facility in excess of its licensed capacity and requiring Petitioner to come into compliance by August 28, 1992. Petitioner credibly denied that she received this letter. The letter was not sent to Petitioner's address of record and no proof of the allegations in the letter were presented. During Petitioner's prior licensure, DCF generated four abuse/neglect reports related to Petitioner's day care home. None of these reports were written by Ms. McDonald, who was never a child protection investigator (CPI). Copies of these reports were included in Petitioner's old licensure file.1/ Abuse/neglect Report 1998-050246 relates to a child who wandered away from Petitioner's day care home on May 1, 1998. The report was verified for "inadequate supervision: neglect" against Petitioner. As a result of the events giving rise to the May 1, 1998 abuse/neglect report, Ms. McDonald cited Petitioner's day care home on June 4, 1998, with one count of "Class II non- compliance: lack of direct supervision," pursuant to Florida Administrative Code Rules 10M-12.020(5)(a) and 65C-22.001(5)(a). Since this exhibit was a carbon copy in Ms. McDonald's possession, it is inferred that Petitioner actually received a copy of this informal citation. Ms. McDonald also issued a warning letter to Petitioner on June 4, 1998, citing only Rule 10M-12.0202(5)(a), and saying that Petitioner could appeal after she received a subsequent fine letter for either $50.00 or $100.00. In connection with the May 1, 1998 incident, Ms. McDonald had interviewed Petitioner, who had made various admissions. After her investigation, Ms. McDonald was satisfied that a child entrusted to Petitioner's care had walked out of Petitioner's enclosed yard and further had walked beside a busy road, without Petitioner's knowledge, and that the child had been picked up by the police after nearly two hours' absence, near a busy intersection. In the course of Ms. McDonald's investigation, Petitioner had admitted her caretaker responsibility for the child but had denied that he was a paying day care client. At the hearing in the instant case, Petitioner maintained essentially the same position. Abuse/neglect Report 1999-105502 relates to allegations, arising on August 19, 1999, that Petitioner had locked day care children in a time-out room or "cubby" and that day care children had been beaten. No indicators were found by the CPI against Petitioner for corporal punishment. The report was eventually closed with "some indicators" against Petitioner as the caretaker responsible for confinement and bizarre punishment, constituting neglect. However, DCF did not classify or close this report at all until January 25, 2002. As a result, the report refers to "prior reports," but lists reports for both previous and subsequent years: 98-505246, 99-105502, 99-118736, 00-128236, and 02-006119. Because the classification of abuse/neglect report 99-105502 depended upon reports after its date of commencement, some of which cannot be assessed as to status,2/ and because no competent, credible evidence concerning the underlying August 19, 1999, event alleged in the report was presented in the instant hearing, report 1999-105502 is discounted in its entirety as evidence of any wrong-doing, abuse, or neglect by Petitioner.3/ Abuse/neglect Report 1999-118736 relates to allegations of bite marks found on a nine-month-old child in Petitioner's day care home on September 17, 1999. Petitioner was listed therein as a "significant other." The report was "closed with no on-going care needed." Abuse/neglect report 2000-128236 relates to bite marks found on one two-year-old child inflicted by another two-year old child, both of whom were in Petitioner's day care home on August 16, 2000. This report was classified only as "investigation complete," and further stated that Petitioner was the caretaker responsible. The report further noted that the CPI wanted DCF to consider "removing" Petitioner's license due to the number of abuse/neglect reports with "verified" allegations and some indicators. Yet as of the closure of this report, there appears to have been only the 1998 verified report. (See Findings of Fact 7 and 8). Due to all of the inconsistencies within the 1999 and 2000 reports, due to there being only one report (No. 98-050246) ever actually classified as "verified," and due to the legally indefinite nature of the classifications assigned by CPIs in 1999 and 2000, it is apparent that the CPIs who completed the 1999 and 2000 abuse/neglect reports had no clear understanding of the terms required by law for classifying them. Because of the vague classifications assigned to the 1999 and 2000 reports, it may be inferred that Petitioner was never provided a timely opportunity to contest them. (See also Finding of Fact 17.) Therefore, these reports cannot be called either "verified," "confirmed," "upheld," or "uncontested." (See Conclusion of Law 27). On November 24, 1999, Ms. McDonald wrote Petitioner to express DCF's concern, pursuant to Florida Administrative Code Rule 65C-22.001(5)(a), after the CPI's investigation and her own independent inspection arising from "the repeated abuse reports". Ms. McDonald's use of the plural for "abuse reports" is noted. However, her letter stated no "concern" other than the incident of September 17, 1999, on which investigation had been closed, naming Petitioner only as a "significant other." The letter was sent certified mail to inform Petitioner that the violation was being classified as a Class II violation with a $25.00 fine for each day of violation and she could appeal when she got a subsequent fine letter. No return of certified mail receipt was offered in evidence. Ms. McDonald testified in the instant case that she was contemporaneously aware of the bites on the nine-month-old who was in Petitioner's day care on September 17, 1999, and that she also was contemporaneously aware of another child who had been bitten while in Petitioner's day care. It is inferred from her testimony that Ms. McDonald was familiar, from her regular inspections, with the events surrounding the August 16, 2000, abuse/neglect report of a two-year-old child suffering bite marks from another two-year-old child, because Ms. McDonald further testified that it was upon the second biting incident that DCF began to seriously consider revoking Petitioner's first license. (See Findings of Fact 10-11). On or about December 11, 2000, a DCF attorney drafted an administrative complaint against Petitioner. The administrative complaint sought only to impose administrative fines for violations as follows: one 65C-20.009(3)(a) violation, Class I, inadequate supervision, with a fine of $100.00; one 65C-20.009(3)(a), Class II violation, inadequate supervision, with a fine of $50.00; and one 65C-20.009(3)(a) violation, Class II, inadequate supervision, with a fine of $50.00. The administrative complaint contained no prayer to revoke Petitioner's license. The charges contained therein apparently were solely the result of the abuse/neglect reports arising from incidents on May 1, 1998 (the wandering child incident); September 17, 1999, (the bites on the nine-month-old child); and August 16, 2000, (the bites on the two-year-old child). An administrative complaint is merely an allegation. Of itself, it proves none of the charges contained therein. Moreover, there is no clear evidence that Petitioner ever received the foregoing administrative complaint so as to have an opportunity to contest the charges. However, the administrative complaint suggests, contrary to some testimony, that Petitioner had not previously been fined for these dates. It also clearly demonstrates that, as of December 11, 2000, DCF did not view the wandering child or the two incidents of biting children biting each other as Code violations worthy of revoking Petitioner's license. Ms. McDonald testified that in 2002, as a result of the foregoing administrative complaint, she told Petitioner that DCF would not renew Petitioner's license when it came up for renewal, and that consequently, Petitioner agreed to retire and never reapply for a day care license, rather than suffer administrative prosecution. Petitioner credibly denied that such a scenario had ever occurred. Petitioner testified that she had never signed anything, did not know there were charges pending against her, and only "retired" in 2002 because she had been hospitalized and unable to work for a period of time. Her husband credibly corroborated her desire to retire after hospitalization. Because the 2000 administrative complaint was apparently never served on Petitioner; because of the greater weight of Petitioner's and her husband's combined testimony; because DCF seems to have repeatedly intended to assess different degrees of noncompliance and different amounts of fines for the same alleged events; because DCF introduced warnings and citations but no fine letters containing the opportunity to appeal/contest; and because it is not credible that someone licensed for 10 years would retire and guarantee never to reapply, only to avoid what, at worst, would be a $200 fine, Petitioner and her husband are found to be the more credible witnesses on why Petitioner surrendered her first license, and it is accordingly found that Petitioner surrendered her first license without coercion by DCF and without giving DCF any promise not to reapply. Petitioner is also found credible that she did not know there were any continuing problems as a result of any of the oral or written warnings she had received. Her testimony in this respect is understood to mean that she never received a notice permitting her to contest any of the four abuse/neglect reports discussed, supra., or any formal notices to pay fines.
Recommendation Upon 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 registration for licensing as a day care home, subject to her fulfilling all the other requirements for a new license applicant. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 7th day of June, 2004.
Findings Of Fact Petitioner, Mr. Thomas P. O'Connell, at times pertinent hereto, was an employee of the Florida Atlantic University. From 1974 until January 1978, he and his wife were enrollees in the State of Florida Group Health Insurance Plan under the category of "family coverage." The Petitioner's wife had a health condition which resulted in her becoming eligible for social security disability benefits in 1976. In January 1978, she had to begin undergoing kidney dialysis treatments. She also became eligible for Medicare benefits at about this time. Petitioner's wife was 55 years of age at the time. In January 1978, Petitioner called the personnel office at the university to find out if, since she had become enrolled in the Medicare system due to her kidney ailment, if she was entitled to the State Group Health Insurance Plan Medicare supplement coverage, that is an increment of benefits which pays for the approximate twenty percent of medical and hospitalization bills which Medicare does not cover for Medicare eligible recipients. The Petitioner inquired in this regard of Mrs. Ethel Worthington of the Florida Atlantic University's Personnel Department. He was told that, because she was only 55 years of age, she could not be covered by the State Group Health Plan's Medicare supplement coverage. Mrs. Worthington or another employee of the university's personnel office told him, according to his understanding, that his wife could still be covered under the family plan but that he or they could not collect benefits both from Medicare and from the family plan. Mr. O'Connell thus believed that the family plan coverage for his wife was redundant and that Medicare would provide her needed benefits. He therefore canceled his State family plan coverage, opting instead for single individual health insurance coverage. The Petitioner had been aware prior to this, however, that Medicare did not pay the final twenty percent of a given bill. The employee he conversed with about this in the personnel office told him he was free to remain on family plan coverage. He mistook their advice that both benefits could not be collected to mean that the family plan would not pay for her at all if she were eligible for Medicare and that the State health plan would not provide a coordination of benefits with her Medicare coverage since she was under 65 years of age and thus not entitled to the State Medicare supplement coverage. Indeed, that was the case and the State's plan, both before and after the adoption of the self-insurance plan in May of 1978, provided for coordination of benefits between its own coverage and Medicare coverage such that the State plan would pay for an eligible family member who was under 65 years of age and eligible for Medicare up to, on a coordination basis with Medicare, a hundred percent of the charges. In other words, under the coordination of benefits concept in effect before and after May of 1978, the State plan would pay for that portion of hospital bills or other medical expenses which Medicare did not pay for, provided the Petitioner's wife was covered under the "family plan." Based upon this misunderstanding that no coordination of benefits was available for family members eligible for Medicare benefits until they reached age 65, the Petitioner elected to cancel his family coverage and opt for individual coverage under the State's plan in January 1978. On April 13, 1978, an open meeting was held to explain the new State Employee's Group Health Self-Insurance Plan, which Petitioner attended. This plan was ultimately adopted in May of 1978, and as stated above, included the coordination of benefits provision for family members eligible for Medicare who were not yet 65, provided family coverage was obtained by the eligible employees. On April 12, 1978, the Petitioner had enrolled in the new group health self-insurance plan for "individual I coverage"; thus, for purposes of this inquiry, continuing the individual coverage he had had since January of that year. At the meeting, it was explained that indeed the family plan coverage would provide coordination of benefits with Medicare or Medicare- eligible dependents of employees and thus pay for expenses not covered by Medicare. Mr. John Wallace, the Director of Personnel for Florida Atlantic University, was at that meeting assisting and explaining the new program and its benefits and provisions to employees. He does not recall the Petitioner asking questions, but also does not recall telling anyone present that a wife could not be covered under the State family plan if she was under age 65 and eligible for Medicare. Mr. O'Connell believes that at this meeting, he talked with Mrs. Ethel Worthington, a secretary at the university's Office of Personnel concerning his wife's coverage. Mrs. Worthington, however, did not attend any of those meetings. She does not recall conversing with the Petitioner at any time about his family coverage or other matter. An information packet (Respondent's exhibits) explaining the self- insurance plan including its family coverage aspect had been distributed to employees by mailing in March, 1978. Thus, the Petitioner elected to sign up for single or individual coverage (on April 12) after receiving the packet of explanatory materials and, thus, he did not have available to him only information from his telephone conversation with an employee of the personnel office in January, 1978 to consider when electing which coverage to apply for. Rather, he had an accurate explanation of the provisions of the new plan in March or early April, 1978, before he exercised his option to retain individual coverage on April 12, 1978. Further, the Petitioner did not rely on information supplied him at the April 13th meeting because he had already signed up for individual coverage the day before. The brochure contained in Exhibit 5 clearly shows that the family plan coordinates benefits with medicare coverage for dependents under that plan. The Petitioner may have been informed by unknown employees of the university's personnel office that single or individual coverage was substantially cheaper than family plan coverage, but it was not established that a representation was made to the effect that the State's family plan coverage and the Medicare coverage applicable to the Petitioner's wife's situation was redundant. In any event, under the new self-insurance plan, the Petitioner had until April 20, 1978, to enroll. As stated above, the Petitioner voluntarily enrolled in individual I coverage again on April 12, 1978, similar to the individual coverage he had elected to obtain when he dropped his family coverage in January, 1978. Because he had been an employee for longer than 31 days and because his wife had been a dependent for longer than 31 days (see below cited rule), the Petitioner was required to furnish medical proof of insurability for himself and all dependents (his wife). Because the kidney ailment had to be revealed on the medical forms submitted with the application for family-plan coverage, the carrier, Blue Cross/Blue Shield, exercised its right to refuse to assume that risk and would not provide coverage for the Petitioner's wife.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in this record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, thereupon RECOMMENDED that the Petitioner by Thomas P. O'Connell to be allowed to enroll in the State of Florida's group health self-insurance plan family coverage without being required to furnish medical proof of insurability for himself and his dependent be DENIED. DONE AND ORDERED this 13th day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1983. COPIES FURNISHED: No names or addresses were attached
Conclusions Having reviewed the administrative complaints (2009002070 & 2009002071) dated March 31, 2009, and March 30, 2009 respectively, attached hereto and incorporated herein (Ex. 1 and IA), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. _ 2. Respondent shall pay an administrative fine in the amount of $10,000.00. The administrative fine is due and payable within thirty (30) days of the date ofrendition ofthis Order. Filed January 8, 2010 4:28 PM Division of Administrative Hearings. Checks should be made payable to the "Agency for Health Care Administration." The check, along with a reference to these case numbers, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. Respondent's petitions for formal administrative proceedings are hereby dismissed. Each party shall bear its own costs and attorney's fees. a.u.-r• The above-styled cases are hereby closed. DONE and ORDERED this day of 20/Qin Tallahassee, Leon County, Florida. ealth C' are Administration AP ARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE AP ARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Parker D. Eastin, Esquire Broad and Cassel One Financial Plaza, Suite 2700 Fort Lauderdale, Florida 33394 (U.S. Mail) Tria Lawton-Russell Assistant General Counsel Agency for Health Care Administration 8350 NW 52nd Terrace, Suite #103 Miami, Florida 33166 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Hon. Eleanor M. Hunter Administrative Law Judge Division of Administrative Hearings The DeSoto Buil ing 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Home Health Agency Agency for Health Care Administration 2727 Mahan Drive, MS #34 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE )o/ , I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the G ay of-C 20/..P_. Richard Shoop, Agency Clerk: Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873
The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of September, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner should continue to receive services of incontinence supplies from Respondent.
Findings Of Fact William suffers from Spina Bifida (SB), having been born with SB, and is confined to a wheelchair. Among other things, SB affects his bladder and urinary tract system. William is now 17 years of age. William must catheterize each day. If he does not, bladder infections will occur, which in turn will lead to kidney problems. William is in need of diapers, which assist in preventing infections. As a result of SB, William also suffers from incontinence. He is in need of diapers. In addition to helping his medical condition, the diapers help to maintain William’s self-esteem when he is around his classmates and others. There is no dispute that William has a disability, that he needs diapers, and that he is eligible for the service. As of November 1, 2001, the Department terminated the services of providing diapers to William because there were “insufficient funds with which to continue funding the service,” with such service being “funded solely through the Department’s Individual Family Supports [IFS] or General Revenue.” The Department provided written notification of the termination by letter dated March 15, 2002. Ms. St. Pierre was orally notified by William's Support Coordinator on November 15, 2001; shortly thereafter, a letter was to be sent to Ms. St. Pierre from the Department explaining the reason for the termination. No evidence was presented to show that the letter was sent. IFS is funded by general revenue dollars. The providing of William's service--providing diapers-- is through general revenue. William is continuing to receive the service pending the outcome of the instant case. Only recently, in or around July 2002, Ms. St. Pierre became re-employed after having been unemployed for approximately three months. The focus of the instant matter is not on William’s eligibility for services but on the Department’s limited funds and on the spending-prioritization policies adopted by the Department and approved by the Florida Legislature. One of the documents that the Department relies upon for the termination of William’s service is the “Developmental Disabilities Home and Community Based Services Waiver Fiscal Year 2001-2002 Spending Plan Instructions” (Spending Plan). The Spending Plan states in pertinent part: By June 30, 2001, the Department of Children and Families expects to serve 25,002 persons through the Developmental Disabilities Home and Community Based Services Waiver (Waiver). . . . In order to be able to serve the greatest number of persons possible within the legislative appropriation for Waiver services, the Department will implement a number of strategies to ensure that appropriate Waiver services are provided in the most cost-effective manner. . . . * * * Spending Plan priority for FY 01-02: Remaining persons from July 1, 1999 waiting list--350 persons who will be served during July and August 2001. Cramer v. Bush class members--estimated 20 persons who will be served upon request, throughout the fiscal year. Persons who are determined to be [in] crisis who were not on the original waiting list--estimated at 10 persons per month and to be served throughout the fiscal year. Persons discharged from the Mentally Retarded Defendant Program. Persons who have become clients since July 1, 1999, in date order (new waiting list)--projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding. The list of such individuals will be developed at the central office; persons will be served in date order, based on the date the individual became a client. In order to serve the estimated 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above. Compliance with the Spending Plan Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. The Central Office will monitor all enrollment activity and notify districts when an individual has been enrolled on the Waiver, and to proceed with the provision of services. The Central Office of the Developmental Disabilities Program will review and process District requests for assignment of a Waiver slot, based on the District's "crisis" determination. Upon completion of the Central Office review, where the Central Office has confirmed a determination of "crisis", the District will be notified when the individual is enrolled on the Waiver, and to proceed with the provision of services. The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Personal Care Assistance Services As required by Medicaid regulations, the Department must require the use of regular Medicaid State Plan services when the individual is eligible to receive the services through the Medicaid State Plan. Provision of Waiver services must also comply with federally approved service definitions. Developmental Disabilities currently provides personal care assistance services to 1,232 children. Some of these children may be eligible under regular Medicaid EPSDT (Early, Periodic Screening, Diagnosis & Treatment) coverage. Medicaid state plan covers Personal Care Assistance for children who are eligible to receive nursing services. Children eligible for personal care assistance under Medicaid state plan must receive the service through this funding. [The ensuing five paragraphs continue to discuss children, the Medicaid state plan, and the Waiver.] New requests for personal care assistance will be assessed first to determine whether [the] Medicaid state plan is appropriate. If this is not appropriate, the need for coverage under the Waiver will be made according to the federally approved service description. * * * Require Use of Waiver Funding, where available Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, Individual and Family Supports (IFS) funding is no longer available for persons who are eligible to receive Waiver-funded services, but who have refused services funded through the Waiver. Some people who are eligible have rejected services funded through the Waiver. The Department will offer Waiver services to those individuals. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. Maximize Federal Funding Similarly, effective immediately, all covered Waiver services must be provided through Waiver funding. The purchase of Waiver billable services through the IFS budget category is no longer allowable, unless the Central Office has approved an exception. As to the Spending Plan, as it relates to spending at the local level, the Department's local districts submit their needs to the Department and the Department determines the allocations. The Department determines how the dollars will be spent. The Department also relies upon the following document: "Developmental Disabilities Program Fiscal Year 2001-2002 Spending Plan, Interim Notice To Individuals Seeking Services From The Florida Developmental Disabilities Program"--Revised September 2001--hereinafter, Interim Notice. The Interim Notice addresses the Waiver program and provides in pertinent part: The Agency for Health Care Administration, the State Medicaid Agency, and the Department of Children and Family Services have requested permission from the Department of Health and Human Services, Health Care Financing Administration (HCFA), to add 450 additional persons to the Florida Developmental Services Home and Community- Based Services Waiver (Waiver) between now and March 1, 2002. At this point, with the funding appropriated by the Florida Legislature for fiscal year 2001-2002, the Department anticipates that it will enroll no more than 450 persons on the Waiver before March 1, 2002. The persons who will be enrolled on the Waiver out of these available slots or vacancies are as follows: No more than 350 persons who became clients of the Developmental Disabilities Program prior to July 1, 1999, and who wish to be enrolled on the Waiver. No more than 80 persons who have become clients of the Developmental Disabilities Program after July 1, 1999, who are determined to be in a life-threatening crisis. . . . All individuals currently residing in private ICF/DDs who, after choice counseling, request community-based placement and are determined by the state's treatment professionals to be appropriate for community-based placement. You may have heard that the Florida Legislature appropriated $78,000,000 in additional funding to community-based services individuals with developmental disabilities. However, only about $20,000,000 of this appropriation will be available to enroll new individuals on the Waiver. About $58,000,000 of the appropriated amount for community-based services for fiscal year 2001-2002 is needed to continue funding services for individuals who were enrolled on the Waiver last year. . . . William's mother did not receive a copy of the Interim Notice. Additionally, the Department relies upon the following document: "Developmental Services Home and Community-Based Services Waiver Services Directory." This document too addresses the Waiver program. Further, the Department relies upon two legislative conference reports for fiscal year 1999-2000 and 2000-2001. The two conference reports are instructive. The "Conference Report on Senate Bill 2500: General Appropriations for 1999-2000" provides in pertinent part: From the funds in Specific Appropriation 381, $20,000,000 in recurring Tobacco Settlement Trust Fund and $25,259,108 in Operations and Maintenance Trust Funds are provided to meet the needs of developmental services participants based on the individuals' most recent support plans. This lump sum is a continuation of the 1998-99 appropriation based on a redesigned system. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services . . . A budget amendment for the release of all or a portion of this lump sum is contingent upon accurately reporting the needs of those persons who are under-served waiver participants to the legislature. The "Conference Report on House Bill 2500: General Appropriations Act FY 2000-2001" provides in pertinent part: Funds in Specific Appropriation 344 and 339 are provided to meet the needs of developmental services Medicaid Waiver participants based on the individuals' most recent support plans. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ECF/DD) institutional placements into Home and Community Based Waiver residential placements or other community waiver services, and 2) Meeting the needs of identified under served participants in the Home and Community Based Waiver Services . . . The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services with the exception of room and board payment. . . . No conference report for the fiscal year 2001-2002 was presented by the Department. The Department relies upon several other documents that pertain to the Developmental Services Home and Community-Based Services waiver. The testimony of the Department's witness, as to the Department's funding, focused primarily on the Waiver program, not general revenue. The focus of Department's documents is the Waiver program, not general revenue. The Department's evidence of lack of general revenue funds is insufficient.
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 reinstating the providing of diaper services to William Alaire. DONE AND ENTERED this 26th day of November, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 26th day of November, 2002. COPIES FURNISHED: Wendy St. Pierre Qualified Representative 1295 Savoyard Way Royal Palm Beach, Florida 33411 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Conclusions Having reviewed the Administrative Complaints, the Amended Notice of Intent to Deny (“NOI”) letter, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: The Agency has jurisdiction over the above-named party pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 1. The Agency issued the attached NOI and Election of Rights form (Exhibit 1). The Election of Rights form advised of the right to an administrative hearing. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms. (Exhibits 2-8) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Exhibit 9) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 1 Filed September 9, 2013 4:36 PM Division of Administrative Hearings 5. Sarai Home Care Inc. shall: a. Pay the Agency $6,606.00. b. Retain a consultant who has been an administrator for at least five (5) years and whose facility has not been cited with a Class I, Class II, or three or more uncorrected Class III deficiencies in the last five (5) years. It shall also disclose the identity of the consultant that it has retained within 10 days of the signing of the Settlement Agreement by its administrator. c. Reduce its capacity to fifteen (15) beds. At the time of its licensure renewal, Sarai Home Care can return to its original capacity of 17 beds once the renewal license is granted. d. Not have more than two (2) residents in a bedroom. e. Not be cited with a Class I, Class II, or three of more Class III deficiencies prior to its renewal license being granted. If Sarai Home Care Inc. is cited with a Class I, Class Il, or a Class II] prior to its renewal license being granted, this shall be grounds for revocation of its license if any such citation is not challenged by Sarai Home Care Inc., or if challenged, is upheld after all appeals. 6. This Agreement shall supersede the Notice of Intent to Deny (NOI). If the Agency has not already completed its review of the application, it shall resume its review of the application upon entry of the Final Order adopting this Agreement. Nothing in this Agreement, however, shall prohibit the Agency from denying the application based upon any statute, rule, or regulation, and, if applicable, an unsatisfactory licensure survey. 7. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 180 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 | ORDERED at Tallahassee, Florida, on this 1 day of Siptbe— , 2013. Elizdbeth Duis Aan Agency for Hea are Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct .capy of this Final Order was served on the below-named persons by the method designated on this 7 is day of < SS elas , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Shaddrick Haston, Unit Manager Lourdes A. Naranjo, Senior Attorney Licensure Unit Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Paul Anthony Dieguez, Esq. Local Field Office Smith and Associates Agency for Health Care Administration 1499 South Harbor City Blvd., Suite 200 (Electronic Mail) Melbourne, Florida 32901 (U.S. Mail) Claude B. Arrington Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue The issue in this proceeding is whether Petitioner Ryan Flint, the minor son of his personal representative and mother, Madeline Flint, should immediately receive developmental services or remain on a waiting list for such services until funding is available.
Findings Of Fact At the time of the hearing, Ryan Flint was three years old and has been identified as being on the "autism spectrum." Autism spectrum puts Ryan at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Ryan Flint as a client because of his risk status. The parties stipulated that Ryan is eligible for services of the Developmental Services Program. Ryan became a client of Developmental Services on June 20, 2000. Despite the rejection language of the notice of denial letter, Ryan was placed on a waiting list and may ultimately be provided the requested services from Respondent. Currently, there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 1999. Ryan was receiving services through Children's Home Society. However, because he turned three years old he no longer qualifies for services under that program. Children's Home Society referred him to Developmental Services for evaluation. Mrs. Flint recalls that the "intake" for services was done May 11, 2000. It was Mrs. Flint's impression from the intake interview that Ryan would receive the requested services. This continued to be her impression when Ryan's service plan was written in June of 2000. Ryan currently receives some occupational therapy services through the local school board. However, these occupational services are limited to those which are only educationally necessary such as writing skills and do not extend to other non-educational skills such as running. A long and complex chain of events and circumstances led to the situation faced by Ryan Flint. Prior to the 1999 legislative session, the Department identified 23,361 Developmental Services clients who were either not getting services from the developmental services program or who were not receiving adequate services. The Department's Legislative Budget Request for fiscal year 1999-2000, included a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program. That program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on such programs must be prioritized. The Legislature directed the Department to prioritize these limited funds in proviso language of the 1999-2000 Appropriations Act: . . . Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The 2000 Appropriations Act contained proviso language identical to that found in the 1999 Appropriations Act referenced in paragraph 9. The Department implemented this legislative mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 1999, would receive services. All others would be put on a waiting list. Ryan Flint is not eligible for the Medicaid Waiver Program. The funds Mrs. Flint seeks come from another source, the Individual and Family Support appropriation. However, as a matter of policy, the Department has applied the prioritization described in paragraph 11, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. This policy was communicated to the Department's District Administrators and Developmental Services Program Administrators in a memorandum dated May 22, 2000. Utilizing this policy, the result in this case is the same as if Ryan had been on the Medicaid waiver. Jo Ann Braun, a Human Services Counselor with the Department, was not aware of the new policy until August of 2000. Thus, she could not have been aware of the new policy at the time she wrote Ryan's service plan which was in June 2000. According to Ms. Braun, as this policy was in the process of being disseminated through the Department, there may have been some clients who did not meet the crisis criteria and who entered the system after July 1, 1999, who received services. However, once the Department staff received and began implementing the policy, new clients were put on the waiting list and did not begin to receive services. In the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained static, the new client base has increased by approximately 8,000 clients since July 1, 1999. Since the client base increased by 8,000 but the funding did not increase, the Department was faced with a decision as to how to fairly and consistently use the funding that was available. The Department determined that the only way it could provide funds to new clients would be by withholding services from existing clients who already received these services. However, it is not the policy of the Department to take money from someone who already is receiving services and give it to someone new. Faced with two choices, neither of which was desirable, the Department implemented a policy which requires that the allocation of Developmental Services moneys be made on a consistent basis. That is, the Department elected to apply these moneys in a manner consistent with the Medicaid Waiver appropriation. Moreover, many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Additionally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys in the same manner as the Medicaid Waiver moneys is not unreasonable or arbitrary. Applying the Department's policy, Ryan can only receive services if he is in crisis because he became a client after July 1, 1999. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. The parties stipulated that Ryan Flint met none of the foregoing criteria. Consequently, the Department did not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Ryan Flint on the waiting list of clients to be served by the Department's Developmental Services Program, and providing those services to him as soon as funds become available to do so. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 12th day of January, 2001. COPIES FURNISHED: Madeline Flint 1327 Conservancy Drive Tallahassee, Florida 32312 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Department of Health and Rehabilitative Services, acted fraudulently, arbitrarily, illegally or dishonestly in the selection of Salem Villages MRDD, Inc., (Salem) as the recipient of the award which is the subject of this proceeding.
Findings Of Fact On June 21, 1991, Respondent published a bed need in the Florida Administrative Weekly and also issued a Request for Proposals (RFP) for the licensure, development and operation of 258 beds statewide to be contained in Intermediate Care Facilities For The Developmentally Disabled (ICF/DD). Any formal protest of an award in response to a proposal was required to be filed within the ten day period prescribed in Section 120.53(5), Florida Statutes. The published bed need and RFP called for the development of one or more configurations of six bed homes in each of Respondent's 11 service districts. The configuration at issue in this proceeding, Configuration 91-D3-01, called for a total of four homes (24 beds) to be developed in Alachua, Columbia and Bradford Counties. All these counties are located within Respondent's District III. The award process combined efforts of Respondent's State Developmental Services Program Office in Tallahassee with efforts of each District Developmental Services Office. The Tallahassee Office provided general oversight, advised the district offices, and sought to provide some uniformity to the approach taken by each of Respondent's service districts. Respondent's State Developmental Services Program Office in Tallahassee took the lead in development of the bid application package, publication of the bed need and the evaluation instrument, and reviewed for approval the award recommendations made at the district level. Respondent's Tallahassee office also obtained credit checks for bidders and disseminated that information to the appropriate districts. Respondent's Tallahassee Office of State Developmental Services Program was headed by Kingsley R. Ross, then Assistant Secretary for Developmental Services. Ross was the RFP issuing officer. He delegated responsibility to his staff, including Kathleen Winstead who headed the unit exercising responsibility for ICF/DD. Respondent's individual service districts were responsible for evaluating, scoring, and selecting the successful applicant for each district configuration to be awarded. In view of the needs of the individual service districts, available resources in each district, and effectiveness of the individual proposal within a particular district, the process was structured in a manner that the local district bid committees were the de facto decision makers for the award in each district. While the district decisions were subject to acceptance by Respondent's Office of State Developmental Services Program in Tallahassee, the role of the Tallahassee office was limited to instructing district staffs in methodology to be used in evaluating proposals and reviewing district compliance with guidelines. Scores assigned to each proposal and the proposal selected were not actually subjected to re-determination by the Tallahassee office. The bed need and request for proposals had been under development by Respondent for more than a year. In the course of that process, meetings were held between Respondent's staff and potential providers to elicit input from corporations and organizations providing residential services to the developmentally disabled. Leslie Leech, Petitioner's president, participated in one of those meetings in November, 1990, to develop the criteria to be used for evaluating responses to the proposal solicitation. As part of the process preceding issuance of the RFP, an earlier bed need had been published and withdrawn. A conference was held in connection with this earlier publication. The conference was recorded and transcribed. A copy of that conference transcript was admitted into evidence in this proceeding. Since the first bed need publication was substantially the same as the one of June 21, 1991, which is associated with the RFP at issue in this proceeding, a second bidder's conference was not held in connection with the instant bed need publication and RFP. The RFP provided that any intent to protest the bed need advertisement or proposal application package must be filed in writing within seventy-two hours after June 21, 1991 and a formal written protest submitted within 10 calendar days after the submission of the intent to protest. No protests were filed. The RFP required as one of two mandatory or "fatal" items that each provider desiring to submit a proposal file a letter of intent with the Residential Services Director (RSD) in each district where the configurations to be bid upon were to be located. The deadline for letters of intent to be submitted was July 21, 1991. Respondent required letters of intent so as to insure Respondent's ability to provide potential applicants with necessary information and to give Respondent an understanding of the identity and nature of the applicant. The letter of intent was to be submitted by the actual applicant or an agency that was clearly linked to the eventual applicant. Should the actual applicant not be named in the letter of intent, Respondent wanted to understand the relationship between the corporation that submitted the letter of intent and the corporation submitting the application. Respondent wanted the system to be flexible so as to encourage agencies to submit bids and not to have disqualifications on minor technicalities. The second fatal item requirement was the submission of a separate, complete proposal to the district RSD within 90 days of the publication of bed need. The resultant submission deadline was September 19, 1991. RSDs would then perform a completeness review of the submitted applications. The RFP package contained explanations and instructions regarding each of 14 categories or areas of concern upon which proposals were to be evaluated. RFP instructions required submission of written statements for each category which would explain such matters as the methods of operation to be used, protection of clients' rights, planned client activities and choices, financial strength of the provider, the budget, and services and treatment to be provided to clients. Also required by the RFP were certain supporting documents in connection with the 14 categories. Also contained in the package was a copy of the actual evaluation scoresheet which would be used by the district bid committee in the evaluation and scoring of submitted proposals. Seventeen critical items were to be considered by RSDs in the course of a completeness review of a proposal. The 17 items included: submission of the required number of application copies; compliance with formatting and page limitation requirements; submission of a notarized Public Entity Crime Statement; submission of certain corporate commitments and authorizations; and submission of a letter of credit from a qualified financial institution for an amount sufficient to construct or acquire the homes and operate them for the first 60 days. The district evaluation committees were instructed on the RFP scoresheet to also evaluate each item of a proposal for completeness and adequacy in scoring the individual proposals. Members of the evaluation committee in each district were selected locally in accordance with guidelines issued from Respondent's Tallahassee office which specified the types of expertise and experience to be represented on each committee. The RSD in each district was required to serve on the committee, absent a disqualifying conflict of interest. In District III, where the protest which is the subject of this proceeding originated, the evaluation committee appointed by the District Administrator at the time of the first published bed need (which was subsequently withdrawn) was carried over to review RFPs pursuant to the second bed need notice published on June 21, 1991. Respondent employees who served as members of the evaluation committee for District III were: Charmaine Gibson, the RSD for the district; Vernita Hughes, a program supervisor in Respondent's Ocala office; Donna Van Leer, a quality control supervisor at a residential facility for the developmentally disabled; Vicki Crafton-Zinn, a contract specialist supervisor; and Mary Hawks, the head of District III's administrative services. Van Leer was a later appointee than the other committee members inasmuch as she replaced another person who was on maternity leave at the time the RFPs were evaluated. Signed conflict of interest forms were produced at the final hearing for all members of the evaluation committee with the singular exception of the chairperson, Charmaine Gibson. Although the evidence establishes that Gibson signed such a form and that her answers to all questions on the form were in the negative, the form was subsequently misplaced. Gibson's duties as RSD required her to be in frequent contact with staff of Res-Care Inc., (Res-Care) an organization associated with the Intervenor, Salem Villages MRDD, Inc., in this matter. Res-Care also operates facilities for the mentally retarded which are located in District III and Gibson's duties as RSD require her to supervise the contract between Respondent and Res-Care governing the operation of those facilities. Res-Care's local manager, Carol Willis, is a former employee of Respondent and previously supervised Gibson during that employment. The two women have continued to see each other in the context of their present positions of employment, as well as an occasional social contact. There was, however, no evidence presented regarding any non-business or social contact between the two women during the evaluation process of the RFPs which are involved in this proceeding. Although she did not know that Gibson was even a member of the evaluation committee until after Petitioner filed its protest, Willis and her superior, Terry Brownson, did have casual conversations with Gibson about possible employment with Res-Care. The conversations took place several months before the June 21, 1991 publication of bed need and involved a mention of the possible establishment of Res-Care operations in the Virgin Islands to which Gibson professed interest. No definite job offer was ever made and Gibson knew that the possibility of such expansion by Res-Care had been abandoned well before the selection committee met to consider the RFPs. Edith Taylor, an aunt of Gibson's, served on a committee established by Res-Care to oversee Res-Care's operation of the cluster facilities for the mentally retarded. Taylor was recommended by Gibson to Res-Care for service on the committee which protects the rights and interests of Respondent clients living in the facilities. Gibson's recommendation was premised on the fact that Taylor had a number of years of experience as a teacher for the developmentally disabled. Taylor's position on the committee was unpaid and provided her with no material benefits. Gibson did not supervise or exercise any authority over any other member of the evaluation committee. She was not in a position which would have permitted her to affect job security or status of any other member of the committee, nor did she attempt to influence any committee member with regard to the competing proposals. Further, the evidence establishes that she conducted herself impartially during the evaluation process. As RSD, Gibson had questions about the completeness of the proposals of both Petitioner and Salem following her initial review. Subsequently, Kathleen Winstead in Respondent's Tallahassee office required both applicants to forward additional information and documentation concerning bonds proposed to be used by Salem and Petitioner for financing in their proposals. The additional information was submitted by both applicants and accepted for the purpose of clarifying Gibson's concerns. Gibson's supervisor, Martha Foshee, notified both Petitioner and Salem by letters dated October 2, 1991, that their proposals were deemed sufficiently complete to be further evaluated by District III's evaluation committee. Since there were questions regarding proposals received in other districts throughout the state, Respondent's Tallahassee office issued modifications to the RFP by letters to applicants dated October 21, 1991. The modifications provided an additional opportunity, until October 28, 1991, for previously rejected applicants to submit information correcting completeness errors or omissions in their proposals. The previous deadline for proposal submission had been September 19, 1991. The time for filing protests to the ultimate award was also extended from 10 to 30 days and the bond requirements for filing a protest were eliminated. As previously noted, the proposals of Petitioner and Salem had previously been determined to be complete and qualified for evaluation. Respondent's modifications to the RFP did not result in an award anywhere in the state to proposers whose initial proposals had been rejected for lack of completeness. After the proposals in District III were deemed complete by Gibson, she forwarded a copy of each proposal to members of the district evaluation committee. The proposals were voluminous with many supporting documents. Committee members were to review the proposals individually, making notes regarding any perceived strengths or weaknesses in each. Such individual review of the proposals by committee members was very time consuming. Following their individual study of the proposals, members of the District III evaluation committee met on November 13-14, 1991, as a group to rate and review the proposals. Melverine Cunningham, an HRS employee, was present to take notes. Each proposal was separately reviewed by the committee in accordance with the Content Review Of Proposal form (rating sheet) provided in the RFP. After discussion, the committee reached agreement on a score for each section of a particular proposal. Each proposal was given a final score by totalling the points awarded in the individual sections. Committee comments justifying a higher or lower than average score were written on the content review form. Each of the content review forms were signed at the conclusion of the proposal rating by the committee. All proposals, including Petitioner's and Salem's, were evaluated and rated in the same way. Salem's proposal received the highest number of points, 388, followed by Petitioner's proposal with a total score of 379 points. The committee recommended to Respondent's Tallahassee office that Salem receive the award. In the event that Salem failed to accept the award, the committee recommended that the award should go to Petitioner. Following their deliberations and decision, Gibson advised the committee members that a comparative review report had to be completed and forwarded to Respondent's Tallahassee office to inform the Tallahassee office of the committee findings on each section of the proposals. The report was to effectively provide a summary of the committee's findings. Due to time constraints, the committee members signed the comparative review form at the conclusion of their deliberations on November 14, 1991, and authorized Gibson to complete the form using the notes taken during the committee's two day meeting. The comparative review report was completed by Gibson and forwarded to Tallahassee on November 15, 1991. The report fairly and accurately summarized the committee's views and recommendation. The report was prepared in accordance with instructions and was consistent with the committee's work. The method of preparation of the comparative report did not impact the award process. Upon receipt in Tallahassee, Kingsley Ross's staff reviewed the recommendation of each district to determine whether the recommendation in that district was supported by the comparative review report and whether procedures had been followed. Upon confirmation in writing by his staff, Ross accepted the district recommendations. Acceptance of the District III recommendation, as well as recommendations by all other service districts, was confirmed in a statewide award list published on November 22, 1991. Ross provided further confirmation of award or rejection to each applicant in each service district by letter on November 21, 1991. Petitioner received awards in other district (Districts VIII and XI) and accepted those awards. Salem also received awards in other districts. Salem timely accepted the award in District III (Configuration ID 91- D3-01) and provided Respondent with the necessary financial information. Petitioner's protest of the award in District III was received by the district's legal counsel on December 19, 1991. As such, the protest was filed more than 10 days after the award, a violation of Section 2.20 of the initial RFP. The protest was, however, filed within the 30 day period permitted by Respondent's RFP modifications contained in the October 21, 1991 letter. Further, in accordance with those modifications, Petitioner declined to post the bond originally required by the RFP. SALEM'S PROPOSAL Gibson received Salem's letter of intent to submit a proposal on July 22, 1991. The proposal was submitted on behalf of Salem Housing/Health Care Villages, two non-profit corporate entities with a common board of directors and control. This concept was utilized by Salem as the result of uncertainty as to which corporation would file the proposal. Within the letter of intent, Salem declared its intention to enter into development and management agreements with Res-Care. A list of Res-Care directors were also submitted, along with the common directors of the not for profit corporations. Prior to the September 19, 1991 deadline, Salem's proposal was submitted by an entity known as Salem Villages MRDD, Inc. The proposal cover sheet identified the proposal as that of Salem Housing and Health Care Village in cooperation with Res-Care, Inc. Health Care Villages, Inc. changed its name to Salem Villages, Inc. The Intervenor, Salem Villages MRDD, Inc., a not for profit corporation, is a subsidiary corporation of Salem Villages, Inc., formerly known as Health Care Villages, Inc. The relationship of these companies to one another and to the reference "Salem Housing/Health Care Villages" noted in the letter of intent was fully described in the proposal. The first page of the proposal provided an explanatory note which reads as follows: NOTE: The letter of Intent for this proposal was in the name Salem Housing/Healthcare Villages, which were two affiliated not-for- profit organizations with a common Board of Directors. During the process of preparing this Proposal Application, Healthcare Villages legally changed its name to Salem Villages MRDD, Inc., to clarify its affiliation. Some application materials using the prior name had already been printed. We apologize for any confusion. The correct name of the applicant is Salem Villages MRDD, Inc. The note should have included the facts that Health Care Villages, Inc. had changed its name to Salem Villages, Inc. and also that Salem Villages, Inc. created a subsidiary, Salem Villages MRDD, Inc., which is the applicant and Intervenor in this proceeding. The body of the proposal did in fact disclose all the information. The proposal identified the legal name of the applicant as Salem Villages MRDD, Inc. and included a certificate of the Secretary of State of Florida showing that a Florida corporation by that name had filed its articles of incorporation on September 6, 1991. The financial system in the proposal explained that: Salem Village, Inc. was formerly known as Health Care Villages, Inc. Salem Village, Inc. formed a subsidiary, Salem Villages MRDD, Inc. on September 8, 1991. The applicant for the ICF/DD homes is Salem Villages MRDD, Inc. Salem Housing Corporation and Salem Villages, Inc. had common directors and officers. The proposal clearly reflected Salem's relationship to Health Care Villages, Inc. and Salem Villages, Inc. A certificate from the Secretary of State that Res-Care, Inc. was authorized to do business in the State of Florida was also included. There was no intent to deceive or conceal by Salem nor was there any evidence of a deliberate attempt to circumvent the requirements and purposes of the letter of intent. Respondent was aware that the name of the applicant differed from that within the letter of intent and accepted Salem's explanation contained within the proposal prior to making the award. The letter of intent submitted was sufficient to meet the purposes for which Respondent required a timely letter of intent as a material or, in the language of the RFP, a fatal item. Salem's proposal clearly and repeatedly revealed that Res-Care would play an important role in the ICF/DD's should the contract be awarded to Salem. Res-Care was selected by Salem to be the managing agent for the project. Salem, as applicant executed all the certifications required by Section 2 of the RFP. Res-Care executed all the certifications in Section 2 with the exception of the certificate of financial commitment. Res-Care's commitment to Respondent contained within Salem's proposal are substantial. Res-Care commits its organization, its experience and its expertise to the proposal. Res-Care also commits to the financial commitments made within the proposal. The financial commitments include a term loan and revolving line of credit in the total amount of $9,000,000.00 which would be available for the homes if awarded. Petitioner's proposal also reflects its reliance on the support of non related corporations. Petitioner admitted in its proposal that it was not capable of handling the financing of these homes on its own. Petitioner "teamed up" with a corporation, CIL Realty of Florida, Inc., a Florida corporation. Both CIL Realty of Florida, Inc. and its parent, Corporation for Independent Living (CIL) were to undertake substantial responsibility regarding the acquisition of the homes and maintenance thereafter. The proposals of both Salem and Petitioner contain commitments for tax exempt bond financing to acquire, equip and open the homes. Neither CIL Realty of Florida, Inc. nor CIL signed any certifications to Respondent as part of Petitioner's proposal. While Petitioner asserted that the information in Salem's proposal regarding the experience and financial strength of Res-Care should not have been considered by Respondent in rating Salem's proposal, the bid evaluation committee considered all the information contained in each proposal in arriving at its rating for that proposal. As such the committee treated all applicants exactly the same and provided no advantage or disadvantage to any applicant. Respondent required the applicant to provide financial information in order to determine the applicant's ability to complete the project. Salem's proposal provided a sufficient amount of such information to Respondent. Salem's proposal included two years of audited financial statements from Res- Care and a draft of audited financial statement for over two years for Salem Villages, Inc. and its related companies which included Salem. The draft audit and financial statement were prepared by Coopers and Lybrand, CPA's. Coopers and Lybrand were preparing the report for inclusion in Salem's proposal. The auditors included information as late as September 6, 1991, making it impossible for the audit to become finalized prior to the deadline for submission of the proposal. Respondent did not require Salem to submit financial statements on the board members. Respondent did not require Petitioner to submit financial statements on its board members, although Petitioner's proposal, unlike Salem's, failed to contain audited financial statements for the two previous years. Res-Care did not submit a certificate of financial commitment of the applicant. This certification related to a successful applicant's providing Respondent with proof, satisfactory to Respondent, of the financial ability to obtain and operate the home for sixty days. Following the award, Salem provided commitment letters from Summit Capital Marketing, Inc., Res-Care and its bank, Citizens Fidelity Bank, in support of this request. Salem's proposal complied with the RFP's two fatal item requirements, receipt of the letter of intent and the proposal within the required time frame. Salem's proposal also complied with the critical items of the RFP, including specifying a per diem rate that was within the current Florida Title XIX ICF/MR- DD Reimbursement Plan. The financial information submitted by Salem with respect to its parent and Res-Care adequately explained the financial history of the corporations for the purposes of Respondent, which were to secure an indication of the financial ability of the applicants to carry out their proposals if awarded. In addition to the financial statements for Salem, and Res-Care, Salem submitted other documentation of its and Res-Care's ability to perform, including a letter of intent from Summit Capital Markets, Inc. committing that company to secure long-term, tax-exempt bond funding for the configurations for which Salem was bidding and a letter from Citizens Fidelity Bank of Louisville, Kentucky stating Res-Care had total credit of $9,000,000.00 available from that bank to be used in the operation of the homes. In the RFP, Respondent reserved the right to determine in its discretion what constituted an acceptable equivalent to the required conditional letter of credit to be submitted with each proposal and the final letter of credit to be posted by the successful applicant. Respondent determined that the letters from Summit Capital Markets, Inc. committing to secure bond financing for Salem were sufficient to meet these financial conditions. Respondent accepted and, in making the award, relied upon the proposal commitments made to it by both Salem and Res-Care. Respondent found Res-Care's participation integral to the proposal and to the award. Salem is bound to continue the relationship with Res-Care. Salem will be the owner of the home and the provider with its responsibilities. Res-Care will be the managing agent for Salem. When considered as a whole, as was properly done by Respondent, the proposal of Salem disclosed sufficient information to allow Respondent to conduct a reasonable and fair evaluation on the specifics of Salem's proposal and compare it fairly to the other proposals submitted. The evaluation and selection procedure designed and utilized by Respondent in response to the legislature's authorization and direction, although not altogether perfect, was basically fair to all who submitted proposals and did not result in any discernible advantage to any particular proposer at the expense of another. The procedure as designed and utilized was reasonable, logical and in compliance with the requirement of law. There was no evidence sufficient to establish any abuse of discretion, arbitrariness, fraud or illegality on the part of HRS that resulted in any unfair advantage for Salem or disadvantage for Petitioner. The procedures and methods utilized in actuality were applied evenly and fairly to both Salem and Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of Configuration 91-D3-01 to Salem. DONE AND ENTERED this 2 day of September, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 2 day of September, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS OF FACT 1-15. Adopted in substance. 16. Rejected, unnecessary 17-20. Adopted in substance. 21. Adopted with regard to the first five sentences. The remaining of this proposed finding is rejected as unnecessary. 21-30. Adopted in substance. 31. Rejected as unnecessary. 32-41. Adopted in substance, although not verbatim. 42. Rejected, unnecessary. 43-44. Adopted in substance. Adopted by reference. Adopted by reference. 47-48. Adopted in substance. 49. Rejected as unnecessary. 50-51. Adopted in substance. Adopted, but not verbatim. Adopted in substance. 54-57. Adopted in substance. Adopted by reference. Adopted by reference. 60-62. Adopted in substance. 63-91. Adopted in substance, although not verbatim. 92-99. Rejected as unnecessary. Regardless of the conduct of Petitioner's counsel, factual findings regarding that conduct are not relevant to a determination of the issues in this proceeding. INTERVENOR'S PROPOSED FINDINGS OF FACT 1-33. Adopted in substance. 34-53. Adopted in substance, although not verbatim. 54-59. Adopted by reference. 60-82. Adopted in substance. 83. Rejected, see comment regarding proposed findings of Respondent with regard to conduct of Petitioner's counsel. 84-87. Rejected, unnecessary. PETITIONER'S PROPOSED FINDINGS OF FACT Petitioner, Sunrise Community, Inc. submitted a document entitled "Proposed Findings of Fact". The document was 175 pages in length, containing 825 proposed factual findings. The proposed findings of fact were submitted by Petitioner's counsel without leave or approval by the Hearing Officer to depart from the requirements of Rule 22I-6.031 (3), Florida Administrative Code. Accordingly, the Hearing Officer has reviewed the proposed findings of fact submitted by Petitioner's counsel and to the extent possible those proposed findings have been addressed in the Findings of Fact established by the Hearing Officer. In view of the excessive length and redundancy of many of Petitioner's proposed findings, it is not possible to address them individually in this Appendix. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Steven M. Weinger, Esq. 2650 SW 27th Avenue, 2nd Floor Miami, FL 33133 Ralph McMurphy, Esq. HRS District III 1000 NE 16 Avenue, Bldg. H. Gainesville, FL 32609 Emery Rosenbluth, Esq. 111 N. Orange Ave. Suite 900 Orlando, FL 32802-0285
